After a Full Day, Senate Still Undecided on Filling Vacant Seat with Rodriquez or Sarauw

After more than 13 hours of testimony and debate over the qualifications of Kevin Rodriquez to serve in the Legislature, senators recessed after midnight and announced it will take up the question again Thursday.

“After many litigations, this process still has to be determined,” Senate President Myron Jackson said during the day-long hearing. “This discourse speaks to the process that began before the formation of the 32nd Legislature. On January 9, 2017, the Board of Elections gave an oath of office to members of the 32nd Legislature with an exception of Senator-Elect Rodriquez.”

At issue is whether Rodriquez is legally qualified to serve, because he asserted Tennessee residency in a legal proceeding in that state.

The St. Thomas/St. John Board of Elections certified Kevin Rodriquez as a candidate and, after the November 2016, general election, as a winner, after Rodriquez came in sixth to fill the seven St. Thomas-St. John legislative seats.

But candidate, Janelle Sarauw sued to stop Rodriquez from being seated, arguing that Rodriquez had asserted in court documents filed in 2016 that he was a bona fide resident of Tennessee and therefore could not meet the three-year V.I. residency requirement set by V.I. law.

The V.I. Supreme Court determined that in his bankruptcy petition, Rodriquez swore under penalty of perjury that he lived in Tennessee and had not lived in another state anytime during the preceding three years. It applied the doctrine of “judicial estoppel,” saying that Rodriquez’s claim under oath in one court prevented him from claiming the opposite in another court.

Later, a federal court dismissed two suits over the election and said the governor could call a special election. Gov. Kenneth Mapp did so and Janelle Sarauw won that election in April.

A federal appellate court then ruled that the V.I. Legislature was the body that had to decide whether or not Rodriquez or Sarauw should be seated.

This is pursuant to a section of the Revised Organic Act of the Virgin Islands, the de facto constitution for the territory, that states in part, no person shall be eligible to be a member of the legislature who has not been a bona-fide resident of the Virgin Islands for at least three years preceding the date of election.

“I was a bona-fide resident of the Virgin Islands since January 5, 2013, when I moved back home from Tennessee for good. The undisputed evidence that I have presented prove that I was qualified to run for senate,” Rodriquez said.

“Can you define the term bona-fide resident?” asked Sen. Marvin Blyden. V.I.Attorney General Claude Walker said the Revised Organic Act does not define the term. “However, because the Revised Organic Act serves as a de facto constitution for the Virgin Islands, to determine meaning, we should consider how similar language has been used in other state constitutions.”

Despite the testimonies presented, resident Janelle Sarauw stated that the Senate-Elect Rodriquez was not residing in the territory. “The Forward Movement Team maintains that Mr. Rodriguez does not meet the eligibility requirements as it pertains to residency,” said Sarauw.

“What does residency mean?” asked Sen. Brian Smith. Attorney Kye Walker, who is contracted legal counsel for the Legislature in the lawsuits over the case, said there is no single clear legal definition for the term residency. Sen Brian continued his inquiry, “What does domicile mean in terms of a registrant’s legal residence?”

Walker said, “A person can have two residencies but only one domicile. Legal residence or domicile is the place where a person habitually resides when not called elsewhere to work for a temporary purpose.”

Similarly, Sen. Nereida O’Reilly asked for further clarification of the term domicile. “Can legal domicile be determined by a person obtaining a driver’s license or voter’s registration card?” she asked.

“Domicile is established by physical presence in a place in connection with state of mind concerning one’s intent to remain there. The act does not speak specifically to driver’s license or a voter’s registration card,” Walker said.

Sen. Alicia “Chucky” Hansen inquired about the qualifications of Senator-Elect Rodriquez.

“In accordance to the requirements by law, have you found that Rodriquez fulfilled all legal obligations of the Board of Elections?” asked Sen. Hansen. Caroline Fawkes, Supervisor of Elections for the Election System of the Virgin Islands said Rodriquez was “a certified candidate who was legally eligible to run for public office.”

Sen. Janette Millin Young had questions as it relates to the deficiencies of a candidate.

“In the previous election, were there letters of deficiencies that were mailed?” Supervisor Fawkes answered, “Yes, there were candidates who received a letter.” Millin Young asked, “Can you provide examples of a deficiency?” Fawkes said, incorrect or not, enough signatures and inadequate mailing or physical addresses can lead to candidate receiving a letter of deficiency. Millin Young asked if Rodriquez a recipient of such letter and Fawkes said he was not.

The question remains whether a majority of the Legislature is persuaded that Rodriquez meets the residency requirement based on his statements that he is a resident and his other ties to the territory. Or if many will be persuaded that his sworn declaration of Tennessee residency in bankruptcy court and the V.I. Supreme Court’s statement that he is “estopped” from declaring V.I. residency mean he does not meet the residency requirement.

Tuesday’s hearing was conducted by the Senate sitting as “a committee of the whole,” a committee on which all members sit, which can discuss business without many of the formal rules of the body. The Senate is scheduled to meet in full session Wednesday to consider bills that have been passed out of committee. A news release issued late Tuesday after the 13-hour session concluded said the committee of the whole would remain in recess until Thursday.