With only a few days left before the official legislative swearing in, senator-elect Kevin Rodriquez’s political fate now rests in the hands of V.I. Superior Court Judge Kathleen Mackay, who said she would be working quickly to weigh all the information handed to her Wednesday after a quick, five-hour bench trial that dealt with challenges to Rodriquez’s eligibility to run for office.
Last week, Mackay granted a preliminary injunction that would keep Rodriquez from being sworn in while the lawsuit pending against him is settled. Filed by former senatorial candidate Janelle Sarauw and a member of the campaign staff, the suit alleges that Rodriquez has not met local residency requirements – which requires candidates seeking a Senate seat to have lived in the territory at least three years prior to running – based on 2016 bankruptcy filings in which he gives a Nashville address as his place of residence.
In her ruling, Mackay said that while the V.I. Code does not clearly define the term “bona fide resident,” it is up to the court to determine the intent. In filing the suit, the plaintiffs don’t have to show that they will actually win the case, but rather only that they have the possibility of winning, and there is strong evidence on both sides, she wrote.
Mackay convened Wednesday’s hearing in an attempt to settle the suit and, by the end of the day, said she would work quickly to come up with a verdict. Mackay said time was also a factor in her decision to deny Rodriquez’s motion for a jury trial, which she said could further delay the suit until after the swearing in.
With the motion for a jury trial out of the way, both sides were left to call witnesses to the stand. Sarauw appeared first, taking the stand briefly to explain that she was prompted to file the suit after receiving an anonymous email tip about Rodriquez’s bankruptcy filing. The attachment to the email, with the bankruptcy documents was 53 pages long, Sarauw said, and because of what it contained, her camp went forward with its claim.
After a brief recess, Rodriquez’s attorney, Christopher Kroblin, moved forward with several witnesses who took the stand to say that Rodriquez had worked with them at various times since he moved back to the territory from Tennessee in 2013. Among the witnesses was Pastor Earl O’Connor, principal of the Moravian School on St. Thomas, who said that Rodriquez had also enrolled his children in school for a brief period of time during the 2013-14 school year.
The defense’s argument also included a call in from Rodriquez’s wife, Kimberly Rodriquez, who said the couple had separated in January 2013 and after that, Kevin Rodriquez had moved back to St. Thomas with the intent of staying there indefinitely. Kimberly Rodriquez added that at one point, Kevin Rodriquez had also petitioned the family court on St. Thomas for custody of the couple’s two children but, because the court lacked jurisdiction since the children were still living in Tennessee, the case did not move forward.
Since the separation, Kimberly Rodriquez said that her husband has continued to live and work on St. Thomas, but comes to Tennessee on the children’s birthdays and special holidays to visit, but does not stay with her.
Speaking about the foreclosure of the couple’s house, which is the residence listed in the bankruptcy filings, Kimberly Rodriquez said the home was sold at a foreclosure sale. Kimberly Rodriquez said she notified her husband of the foreclosure, saying that it was a “wrongful foreclosure,” and that a lawsuit was filed against the bank.
“When I filed a lawsuit, he did not come to assist me with that lawsuit,” she said, adding that at a later date, Kevin Rodriquez did return to Tennessee to file for bankruptcy after he was told that she and the children were in the process of being evicted.
Under questioning from Sarauw’s lawyer, Edward Berry, Kimberly Rodriquez added that there have been discussions in the past two years between the couple to possibly reconcile due to medical issues with their son but there are “no definite decisions” to “physically unify.” No definite decision has been made to divorce either, she said.
Asked about the bankruptcy proceedings in January 2016, Kimberly Rodriquez said that her husband gave a “false” answer when he told the court that he lived in Tennessee at the time.
Berry read from transcripts obtained from the Tennessee courts: “Over the last 180 days before filing this petition, I have lived in this district longer than any other district.” Berry said that was “signed by Kevin Rodriquez during the bankruptcy proceedings in Tennessee.”
Kimberly Rodriquez said, “That is false. He lived on St. Thomas.”
Taking the stand afterward, Kevin Rodriquez additionally explained that he had moved out of the Tennessee house in the summer of 2012 and finally moved to St. Thomas in January 2013, living in his family’s house in Anna’s Retreat with his sister. Rodriquez said he also filed for custody of his children soon after moving back to the island because, at the time, his wife had someone living in the house with her and the kids.
Speaking about the house and foreclosure proceedings in response to questions from Sarauw’s attorney, Rodriquez said the couple bought the home in Tennessee in April 2007, but that it is “no longer tied to him.”
“The house was foreclosed to Citi Mortgage,” Rodriquez said. “That happened prior to me going back to Tennessee in January 2016. But it is still the residence of Kimberly and the children.”
Kevin Rodriquez said the house was first foreclosed on in 2010 when he lost his business – a Caribbean restaurant – and at the time, the couple contested the legality of the foreclosure. When the house was foreclosed on the second time, Rodriquez said he sought protection for his wife and children by seeking bankruptcy and filed suit in May 2015 again challenging the foreclosure.
“Will you give me at least that, up until the end of 2012, that Tennessee was your permanent home?” Berry questioned, after explaining that Rodriquez had taken a job with the state government, paid taxes in Tennessee and had registered to vote.
“I lived there,” Rodriquez responded. He added later that after separating from his wife, he had turned over the key to the Tennessee home and transferred out any bills that were in his name. Any money needed for bills was given to his wife to pay, he said.
On redirect from his attorney, Rodriquez said he went to Tennessee to file bankruptcy after his wife called and said they were being evicted. Rodriquez said at the time that he didn’t know the house was again being foreclosed on.
“I just jumped on the plane and went to file bankruptcy to have a place for my children to live,” he said, adding that he didn’t know that he had to be a resident of Tennessee to file for bankruptcy or file an action challenging the foreclosure. He said the house was his primary asset, valued at more than $300,000.
“Based on the homestead exemption, I was afforded the opportunity to file,” Rodriquez said, referring to certain protections offered within the Tennessee bankruptcy code. He added that he had owned the home up to 180 days prior to the proceeding and said that he was able to negotiate a settlement on the house.
Under cross examination, Berry pushed for an answer about why Rodriquez didn’t have his wife, who was still a resident of Tennessee, file for bankruptcy.
“If your understanding was that legally you didn’t have to be a resident of Tennessee, why did you lie to them and say that you were?” Berry questioned.
An objection to the question was sustained by Mackay, and Berry rephrased. Under further questioning, Rodriquez said that his wife had called him and said that she had tried, unsuccessfully, to stop the sale of the house.
“She said that my children were going to be evicted,” he said. “As a father, it was my responsibility to make sure I traveled to Tennessee to secure a home for my children.”
In closing arguments, Berry said the “crux” of the argument boiled down to the definitions of “residency” and “domicile,” which appear to be similar but, by law, are not.
“There is a huge difference in those terms – a person can be a resident of one, two, 10 different states and be domiciled in only one,” Berry said. “The court would have to be prepared to concede that a person can be domiciled in another state and be a senator here, and that’s not V.I. law.”
Berry added that a person, in general, cannot “pick up” a new domicile unless they have “clearly relinquished a former one.”
“The most benign spin here is the representations made to the Tennessee bankruptcy court,” Berry argued. “At the time, Mr. Rodriquez considered Tennessee to be his true home and if that wasn’t true, there’s no alternative conclusion other than that he said under federal penalty of law that it was.”
While Berry added that Rodriquez “benefitted heavily” from the bankruptcy proceedings, Kroblin in his closing arguments said that the pending lawsuit was simply an attempt by Sarauw – who came in eighth place in the Senate race – to still get a Senate seat.
“I believe the plaintiffs have essentially conceded that Mr. Rodriquez is essentially a resident,” Kroblin said. “I don’t see them even offering any opposition to that and as to whether or not he was domiciled here.”
“I think that we have pretty conclusive evidence that he was,” Kroblin said. What the evidence also points to, Kroblin added, is that Rodriquez simply moved to Tennessee after losing his government job under the Turnbull administration and, after separating from his wife, moved home.
“That’s what happens in life,” Kroblin said. “I think the record is clear that he always intended to return to St. Thomas and that, once he did, he didn’t intend to return to Tennessee.”
While Kroblin conceded that Rodriquez did list the Tennessee address on the bankruptcy forms, he explained that bankruptcy law would have allowed him to do so, since he did own an asset – the house – within the jurisdiction 180 days prior to filing.
“It was his residence. It’s where his children lived. He could have filed in Tennessee anyway,” Kroblin said. “He wasn’t trying to gain the system. In fact, the only one trying to gain the system are the losers of the election, the plaintiffs.”