V.I. Supreme Court Chief Justice Rhys S. Hodge on Wednesday denied a motion by the V.I. Legislature that sought nearly $100,000 in costs and attorney fees it says it spent defending against a lawsuit brought by former Senator-at-Large Steven Payne Sr. The request was filed two weeks too late, and without the proper notice, he said.
Payne filed the complaint in V.I. Superior Court in July 2022 after he was expelled from the 34th Legislature by his colleagues over allegations of sexual harassment by a staff member.
At issue was whether the Senate is authorized under the Revised Organic Act of 1954 to be the sole judge of the elections and qualifications of its members. Payne contended that lawmakers may discipline, but not expel, a member.
In what it called an “extraordinarily rare” move, the V.I. Supreme Court transferred the lawsuit to its jurisdiction in January, citing in part the Superior Court’s failure to issue a key opinion on a motion to dismiss for more than a year and a half.
Hodge and Associate Justices Maria Cabret and Ive Swan heard oral arguments on March 12 at the high court in Crown Bay on St. Thomas. Ten days later they issued an opinion upholding the Legislature’s expulsion of Payne and dismissing the case with prejudice, meaning it may not be brought again.
On Monday the Legislature, represented by Arellano & Associates, filed two motions seeking to recoup some of the money it says it spent defending against the complaint in both the Superior and Supreme courts.
According to its accounting, the Legislature sought a total award of $99,304.24, including:
– $1,904.24 for an award of costs
– $48,000 (rounded), for an award of 90 percent of its attorney’s fees in the V.I. Supreme Court
– $45,400 (rounded), for an award of 75 percent of fees in Superior Court
– $4,000 for fees for the instant fee petition
The Legislature noted in a memorandum of law accompanying its motions for fees and costs that the filing was timely because the case was not an appellate proceeding but an original proceeding because it was transferred, not appealed, to the Supreme Court. In such cases the time limit to seek reimbursement is within 30 days of the final order, it said, citing V.I. Code, Title 5, Section 541, and Rule 54 of the Virgin Islands Rules of Civil Procedure.
“Hence, the instant Motions for Costs and Fees filed herein today are timely,” the memorandum stated. It included a footnote stating that because April 21 fell on a Sunday, the deadline moved to the next business day, so filing the motions on Monday was within the proper timeframe.
However, in his order issued Wednesday, Hodge said the Legislature’s motions and accompanying memorandum were filed two weeks too late. Citing Virgin Islands Rules of Appellate Procedure, he said an itemized and verified request for costs and fees should have been made within 14 days after judgment was entered.
“Here, this Court entered judgment on March 22, 2024, yet the Legislature did not file its motion until 31 days later, well after expiration of the 14-day limitations period codified in Appellate Rule 30(b),” Hodge wrote.
“Moreover, the Legislature has failed to file any motion to file its request for costs and attorneys’ fees out of time, let alone one that demonstrates ‘extraordinary circumstances’ to justify the late filing. As such, Appellate Rule 30(b) mandates that this Court deny the motion as untimely,” he stated.
