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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN a SE i Plalntift CASE NO. ST-16-CV-0000734 ACTION FOR: DECLARATORY RELIEF vs CAROLINE FAWKES, IN HER age? See “eee? Sage? “age? Sage ee ee OFFICIAL CAPACITY AS SUPERVISOR OF ELECTIONS Defendant NOTICE OF ENTRY OF (2) MEMORANDUM OPINIONS AND (2) ORDERS TO: EDWARD L. BARRY, ESQ. ARIEL M. SMITH, ESQ., AAG MEAGAN L. JOHNSON, ESQ., AAG JULITA K. DE LEON, ESQ. CHRISTOPHER ALLEN KROBLIN, ESQ. MARJORIE WHALEN, ESQ. Please take notice that on December 29, 2016 a(n) (2) MEMORANDUM OPINIONS AND (2) ORDERS dated December 29, 2016 was entered by the Clerk in the above-entitled matter. Dated: December 29, 2016 Estrella H. George Acting Clerk of the Court JEANETTE SMITH COURT CLERK Il IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN JANELLE K. SARAUW and BRIGITTE BERRY, Plaintiffs, CASE NO: ST-16-CV-734 ) ) ) Vv. ) ) EMERGENCY ACTION CAROLINE FAWKES, in her official ) FOR DECLARATORY AND Capacity as SUPERVISOR OF ) INJUNCTIVE RELIEF ELECTIONS, VIRGIN ISLANDS JOINT ) (PENDENTE LITE AND BOARD OF ELECTIONS; BOARD OF ) PERMANENT); ELECTIONS, ST. THOMAS-ST. JOHN ) ALTERNATIVE PETITION and KEVIN A. RODRIGUEZ a/k/a ) FOR MANDAMUS Kevin A. Rodriquez, ) ) ) Defendants. MEMORANDUM OPINION THIS MATTER is before the Court on Plaintiffs' Motion for Preliminary Injunction, filed December 9, 2016. An evidentiary hearing was held on December 16, 2016, and the Court took the matter under advisement and allowed the parties to submit written closing arguments.! For the reasons set forth herein the Court will grant the Motion For Preliminary Injunction. BACKGROUND On November 8, 2016, the Virgin Islands held its biennial election to choose members of the Virgin Islands legislature and other public officers. According to the 1 At the hearing, Plaintiffs moved for a consolidation with the hearing on the merits, but all the Defendants opposed consolidation. So the hearings were not consolidated. Sarauw v. Fawkes et al Case No. ST-16-CV-734 Memorandum Opinion Re: Motion For Preliminary Injunction Revised Organic Act of 1954, no person is eligible to be a member of the legislature if he/she had “not been a bona fide resident of the Virgin Islands for at least three years next preceding the date of his election.” In each Virgin Islands’ general election, seven of fifteen senators are elected to represent the District of St. Thomas/St. John based on popular vote.® Plaintiff Janelle K. Sarauw and Defendant Kevin A. Rodriquez were among eighteen of the candidates who ran for one of the seven seats to represent St. Thomas/St. John in the Virgin Islands legislature. The official results of the election show that Rodriquez won a seat in the legislature because he came in sixth place with 4,134 votes, while Sarauw did not win a seat because she came in eighth place with 3,764 votes. Sarauw states that on November 21, 2016, she received an email from an anonymous source that included portions of a bankruptcy petition that Rodriquez filed on January 25, 2016 in Tennessee, in which he claimed he was a resident of Tennessee.‘ That same day, Plaintiff Brigitte Berry, who was a volunteer for Sarauw’s campaign, hand delivered a letter to the St. Thomas office of the Board of Elections disputing Rodriquez’s candidacy. In the letter, addressed to the supervisor of 2 See 48 U.S.C. 1572(b) (providing all the qualifications required to be a member of the Virgin Island Legislator.) 3 Seven senators are elected from St. Thomas/St. John, seven senators are elected from St. Croix, and one senator is chosen to be the “at large senator’ from St. John. * This representations will be further expounded upon in the discussion below. Sarauw v. Fawkes et al Case No. ST-16-CV-734 Memorandum Opinion Re: Motion For Preliminary Injunction elections (Defendant Fawkes), Berry disputed Rodriquez’s candidacy based on the residency requirement, and attached a copy of his bankruptcy petition. Despite Berry’s letter, the following day—November 22, 2016—the St. Thomas & St. John District Board of Elections certified the elections results, which included identifying Rodriquez as one of the seven successful candidates for the V.I. Legislature. Subsequently in a letter dated November 22, 2016 and sent by certified mail, Defendant Fawkes replied to Berry and stated that the time period to contest Rodriquez’s candidacy had already passed. Before receiving Fawkes’ response, Berry wrote another letter challenging Rodriquez’s candidacy and this time directed copies of the letters to all members of the Board of Elections. On December 9, 2016, Plaintiffs filed this action and an emergency motion for preliminary injunction. In their complaint, Plaintiffs allege that “Mr. Rodriguez [sic] was not a ‘bona fide resident of the Virgin Islands for at least three years next proceeding the date of his election, and therefore does not meet the legal requirements to be a Virgin Islands senator set forth in the Revised Organic Act of 1954, 48 U.S.C. § 1572(b).” In their motion for preliminary injunction, Plaintiffs requested that this Court set an expedited hearing. On December 16, 2016 the Court held an evidentiary hearing, which produced the relevant evidence discussed below.5 * Relevant to Rodriquez’s bona fide residency within the last three years. Sarauw v. Fawkes et al Case No. ST-16-CV-734 Memorandum Opinion Re: Motion For Preliminary Injunction FACTS Rodriquez is a native of St. Thomas, Virgin Islands and attended several schools on the island. In addition, his parents, his siblings, and other relatives had all lived in St. Thomas. He left the island to attend college in 1982. Rodriquez later returned to the Virgin Islands and held positions in government. With a change in administration he lost his job in the Virgin Islands and moved to Tennessee, his wife’s home state, in 2007 or 2008.6 In April 2007, Rodriquez and his wife bought a home in Nashville, Tennessee,? and his wife and children continue to reside there. Rodriquez’s wife and children did not live in St. Thomas at any time during the last three years. Rodriquez obtained a Tennessee driver's license, which he kept for seven (7) years, and registered to vote in Tennessee. Rodriquez testified that he moved back to St. Thomas in January 2013 because he was separated from his wife and wanted to relocate back to St. Thomas to gain employment. He secured a contract with HOPE, Inc. as an independent contractor. Ivy Moses, the CEO of HOPE, Inc., testified that Rodriquez worked full time for HOPE, Inc. between January 2013 and April 2015, except for an absence of one month in January 2015. Rodriquez was later employed with the 31*t Legislature from May 18, 2015 to October 30, 2015.8 ® In the course of his testimony, Rodriquez stated he left St. Thomas in 2007. Later he testified he left in 2008. However, the date of his departure is not relevant to these proceedings. 7 Plaintiffs’ Exhibit #6. 5 Defendant Exhibit # R10. Sarauw v. Fawkes et al Case No. ST-16-CV-734 Memorandum Opinion Re: Motion For Preliminary Injunction Rodriquez initially testified that he separated from his wife when he returned to St. Thomas in January 2013. However, he later testified that he wants his family to stay together as a family unit. He said he is uncertain if his wife and children will return to the Virgin Islands, but he is not divorced because “too many young men do not have a father figure or the support they need.” Finally Rodriquez states that part of the reason his children are not with him is because his son suffers from attention deficit disorder, and therefore stays in Tennessee for a better education. Rodriquez re-registered to vote in the Virgin Islands on May 8, 2014,9 and obtained a Virgin Islands driver’s license in 2016. He filed his 2013 and 2014 income tax returns in the Virgin Islands in January 2016,!9 and he filed is 2015 income tax return in the Virgin Islands sometime in 2016.1! All three tax returns show a St. Thomas post office box as Rodriquez’s mailing address. DISCUSSION In deciding whether to grant a preliminary injunction, the Superior Court must consider four factors: (1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably injured by denial of the relief; (8) whether granting preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting the preliminary 3 Defendant Exhibit R6. 10 Defendant Exhibit R2 and R3. 11 Defendant Exhibit R4. Sarauw v. Fawkes et al Case No. ST-16-CV-734 Memorandum Opinion Re: Motion For Preliminary Injunction relief will be in the public interest. Yusuf v. Hamed, 59 V.1. 841, 847 (V.I. 2013). The Court must evaluate the moving party's showing on all four factors under a sliding- scale standard. 3RC & Co. v. Boynes Trucking Sys., 63 V.I. 544, 557 (V.I. 2015). “In conducting this sliding-scale analysis, the Superior Court must make findings on each of the four factors and determine whether — when the factors are considered together and weighed against one another — the moving party has made ‘a clear showing that {it] is entitled to [injunctive] relief.” Id. (alteration in original). The Court will consider each factor in turn. I. PROBABILITY OF SUCCESS ON THE MERITS In order to show a reasonable probability of success on the merits, Plaintiffs do not need to show that they will actually prevail on the merits at trial, or even that their success is “more likely than not.” Yusuf, 59 V.I. at 848. Instead, the Plaintiffs must only show they have “a reasonable chance, or probability, of winning.” Id. A, The Meaning of “Bona fide Resident” The paramount issue between Plaintiffs and Rodriquez hinges on a determination of Rodriquez’s “bone fide residency.” The Revised Organic Act of 1954, codified at 48 U.S.C. § 1541-1645, “is the Virgin Islands' equivalent of a [state] constitution that serves as the basic charter of government in the territory.” Todmann v. People of the Virgin Islands, 57 V.I. 540, 546 (V.I. 2012) (alteration in Sarauw v. Fawkes et al Case No. ST-16-CV-734 Memorandum Opinion Re: Motion For Preliminary Injunction original). The Revised Organic Act of the Virgin Islands states that “No person shall be eligible to be a member of the legislature who... who has not been a bona fide resident of the Virgin Islands for at least three years next preceding the date of his election.” 48 U.S.C. § 1572 (b), also referred to as Section 6(b) of the ROA. The phrase “bona fide resident” is not defined within the Revised Organic Act. Consequently, the term “bona fide resident,” as used in section 6(b), has created some ambiguity between the parties. For example, Plaintiffs’ closing arguments use bona fide resident interchangeably with “resident” or “domicile” as defined in 18 V.I.C. § 262. See also 18 V.L.C. § 1 (‘“{DJomicile’ means a registrant's legal residence as determined in 18 V.I.C. section 262;”). However, the Revised Organic Act is a federal statue. Therefore, the Virgin Islands Legislature does not “possess the authority to enact a statute or rule that conclusively defines the phrase [bona fide resident} for purposes of section 6(b).” Bryan v. Fawkes, 61 V.I. 201, 230 (V.I. 2014). Furthermore, the Court understands section 262 to specifically apply to electors, and not candidates. !2 More importantly, the difference between “bona fide resident” and “resident” or “domicile” is not academic. Instead, the terms are distinguished throughout the 22 18 VLC. § 262 is titled “Residence defined.” However it falls within Chapter 13, which is titled Qualifications of Electors. Although titles of a statute are not considered law under 1 V.I.C. § 45, a title may be resorted to as an aid to construction. See 2A Sutherland Statutory Construction § 47:3 (7th ed.) (“Since the title of an act is essentially a part of the act and is itself a legislative expression of the general scope of the bill, it is proper to consider it in arriving at the intent of the legislature.”). Sarauw v. Fawkes et al Case No. ST-16-CV-734 Memorandum Opinion Re: Motion For Preliminary Injunction Virgin Islands Code and congressional hearings regarding the Revised Organic Act.'3 While legislative history often serves as a useful tool for determining the meaning of ambiguous or undefined language, the legislative history of the Revised Organic Act does not contain a definition of “bona fide resident.” Nonetheless, the absence of such an explicit definition does not leave the Court without interpretive tools. Because the Revise Organic Act is a federal statute adopted by Congress, in order to determine the definition of “bona fide resident” for the purposes of section 6(b), the Court must apply the rules of statutory construction to determine what Congress intended at the time it enacted the provision. Bryan, 61 V.I. 230-231. When the Court encounters undefined language in the ROA, the rules of statutory construction compel it to determine if the undefined language was used in any federal statute prior to Congress's adoption of the Revised Organic Act, and, if so, to ascertain how that phrase was defined by the United States Supreme Court. Bryan v. Fawkes, 61 V.I. 201, 231-32 (V.I. 2014). 13 For example, in 1983, 17 V.I.C. §471, which addresses veterans benefits, was amended to substitute the word “bona fide” for “domiciliaries.” See also 29 V.1.C. § 747 (defining bona fide resident in the Virgin Islands pursuant to the tax code. See also 22 V.I.C. § 758 (“be a bona fide resident of and actually reside in this territory”); 16 V.1.C. §181 (“A statement that the applicant is a bona fide resident of and domiciled in the Virgin Islands”). Congressional hearings on proposed amendments to the Revised Organic Act also briefly expressed differences between the terms “bona fide resident” and “resident” or “domicile.” See Hearings before the Committee on interior and insular Affairs, U.S. Senate (July 22, 1958) (Committee was assured that because of a “bona fide resident” requirement, individuals and large corporations that were domiciled in the continental United States could not set up operations in the Virgin islands and take advantage of certain exemptions.) See also Virgin islands—Elective Governor and Legislative Redistricting: Hearing on H.R. 11777 and H.R. 13277 Before the S.comm. on Territorial and Insular Affairs, 89°" Cong. 2 (1966) (Chairmen of the Subcommittee states that he hopes that Senator elected to St. John is not merely a “brief resident,” but instead a “bona fide resident”). Sarauw v. Fawkes et al Case No. ST-16-CV-734 Memorandum Opinion Re: Motion For Preliminary Injunction Such a determination may be made by considering other organic acts adopted by Congress,'4 or even by considering provisions in state constitutions that use the phrase “bona fide resident”—which have been the subject of judicial review.'5 Bryan, 61 V.I. at 232-33 (considering other organic acts adopted by Congress, and reviewing similar provision that appear in state constitutions). Neither method of determining “bona fide residency” has produced compelling results. Nevertheless, the phrase “bona fide resident” was often entrenched in the context of tax. Before the enactment of the Revised Organic Act, the word “bona fide resident” was often entrenched in the context of tax. See eg; Elk v. Wilkins, 112 U.S. 94, 112 (1884) (Harlan, J., dissenting) (‘an averment that the plaintiff is a citizen and bona fide resident of Nebraska implies, in law, that he is subject to taxation, and is taxed, in that State”); Santa Clara County v. Southern P. R. Co., 118 U.S. 394 (1886) (The United States Supreme Court analyzed the tax exemptions for bona fide residents of California, according to the Revenue and Taxation chapter of the California constitution.). 44 No other Organic Act that uses the phrase “bona fide resident” also defines the term “bona fide resident.” For example, Guam uses the phrase “bona fide resident” in its Organic Act of 1950, but that provision has not been defined either before or after 1954. 15 Louisiana is the only state that used the phrase “bona fide resident” in its state constitution and then later interpreted it. Prior to 1954, the phrase “bona fide resident” appeared in the Louisiana state constitution of 1913. However, the varying judicial interpretations thereafter do not set a concrete standard that can reasonably be imputed to Congress when creating the Revised Organic Act for the Virgin Islands. See Hall v. Godchaux, 149 La. 733, 746 (La. 1921) (“If the individual maintains a place to which he can return, as above indicated, he does in law have an actual bona fide residence”) contra Caufield v. Cravens, 138 La. 283, 286 (La. 1915) (In regards to bona fide residency, "The question is one largely of intention... determined by his expressions... and his testimony, when called on, considered in connection with his conduct and the circumstances of his life”). Sarauw v. Fawkes et al Case No. ST-16-CV-734 Memorandum Opinion Re: Motion For Preliminary Injunction In 1921, much of the United States Internal Revenue Code was made applicable to the Virgin Islands by the Act of Congress entitled "An Act making appropriations for the naval service for the fiscal year ending June 30, 1922, and for other purposes." Thereafter, the Internal Revenue Code of 1936 used the phrase “bona fide resident” for the purposes of determining tax liability. Therefore, in Virgin Islands law, the phrase “bona fide resident” was associated with taxation prior to the enactment of the Revised Organic Act of 1954. In fact, the 83" Congress used the term “bona fide resident” both in the Revised Organic Act of 1954, and the Internal Revenue Code of 1954!6—but still did not include a definition. Like Congress, the U.S. Supreme Court has not defined “bona fide resident,” but some federal courts have developed factors to define the term. For example, in Sochurek v. Commissioner,!” the Seventh Circuit established concrete factors to determine bona fide residency within the meaning of the Internal Revenue Code of 1954. See Sochurek, 300 F.2d at 38. (“we see a pattern evolve under which numerous factors have been considered as bearing on the determination of bona fide foreign residence.”). Sochurek designated the following eleven factors as indicia of bona fide residency: (1) intention of the taxpayer; (2) establishment of his home temporarily in the foreign country for an indefinite period; (8) participation in the activities of his 16 The USVI operates under a "mirror code" of the Internal Revenue Code, which substitutes "Virgin islands” for "United States." 47 300 F.2d 34 (7th Cir. 1962). Sarauw v. Fawkes et al Case No. ST-16-CV-734 Memorandum Opinion Re: Motion For Preliminary Injunction Page 1! of 28 chosen community on social and cultural levels, identification with the daily lives of the people and, in general, assimilation into the foreign environment; (4) physical presence in the foreign country consistent with his employment; (5) nature, extent and reasons for temporary absences from his temporary foreign home; (6) assumption of economic burdens and payment of taxes to the foreign country; (7) status of resident contrasted to that of transient or sojourner; (8) treatment accorded his income tax status by his employer; (9) marital status and residence of his family; (10) nature and duration of his employment; whether his assignment abroad could be promptly accomplished within a definite or specified time; and (11) good faith in making his trip abroad; whether for purpose of tax evasion. Id. Subsequently, the Third Circuit condensed the eleven factors found in Sochurek into four workable categories to determine whether certain persons were bona fide residents of the Virgin Islands for purposes of taxation. See Vento v. Dir. of V.I. Bureau of Internal Revenue, 715 F.3d 455 (3d Cir. 2013) (Obviously, the Virgin Islands is not a “foreign country,” but, as the parties and the District Court agreed, Sochurek applies nonetheless.). The four categories used in Vento are, 1) Intent, (2) Physical Presence (3) Social, Family, and Professional Relationships, and (4) the party’s own representations. Vento, 715 F.3d at 467-68. In harmony with the legislative history of the Revised Organic Act, and how federal courts have evaluated bona fide residency issues, this Court finds the factors Vento used to determine the bona fide residency of a tax payer persuasive in Sarauw v. Fawkes et al Case No. ST-16-CV-734 Memorandum Opinion Re: Motion For Preliminary Injunction determining if a candidate for the Virgin Islands Legislature is a bona fide resident pursuant to the Revised Organic Act. Having now established the applicable factors to determine if Rodriquez was a bona fide resident of the Virgin Islands for the three years preceding his election (November 2013 to November 2016), the Court must now determine if Plaintiffs have a reasonable chance, or probability, of winning at trial. The Court will address each of the four categories set forth in Vento in turn. B. Application of the Vento Factors 1. Intent A determination of Rodriquez’s intention to be a bona fide resident of the Virgin Islands hinges on the nature of his housing and employment. Vento, 715 F.3d at 467.18 For example, long term housing and employment weigh in favor of being a bona fide resident in comparison to temporary housing, or employment limited by contract. Id. Intent to become a resident is not the intent to “make a fixed and permanent home.” Id. at 470. Rather it is the intent to “remain indefinitely or at least for a substantial period” in the new location. Id. 18 These factors incorporate the 1*, 2™, 7**, 10 and 11'* Sochurek factors. Sarauw v. Fawkes et al Case No. ST-16-CV-734 Memorandum Opinion Re: Motion For Preliminary Injunction a. Housing Upon returning to St. Thomas from Tennessee in January 2013, Rodriquez owned a home in Tennessee and had a partial undivided interest in a home located in Estate Anna’s Retreat, St. Thomas, Virgin Islands. Rodriquez, along with two siblings, inherited the home in Anna’s Retreat from his parents.!9 The Anna’s Retreat property is the only place that Rodriquez has resided in St. Thomas since he returned to the island in January 2013, and it is the place he says he identifies as “home.” He testified that he has maintained a residence in St. Thomas since January 2013, and he had always intended to return to St. Thomas. Rodriquez testified that over the years he has sometimes lived in the main upstairs residence, and other times he has lived in a downstairs apartment. He said that between 2012 and 2016, a tenant occupied the main house for a portion of the time and he also had lived in the main residence for a portion of that period. He specifically recalled living in the main residence from January 2013 to April 2013, at which time he moved into the downstairs apartment. He testified that he owns furniture at the house. Plaintiffs argue that the Anna’s Retreat property should not be considered Rodriquez’s true home because “he was merely a 1/3 owner of this property as heir *9 Rodriquez testified his father died in 1994 and the matter remains in probate. The Court notes that its internal database shows the probate matter was filed in 1996 and dismissed in 2009. Sarauw v. Fawkes et al Case No. ST-16-CV-734 Memorandum Opinion Re: Motion For Preliminary Injunction (or devisce), along with siblings...fif title ever vested at all in this still-pending probate).” Paying rent weighs in favor of temporary housing, in comparison to paying a mortgage that favors long term housing. Vento, 715 F.3d at 467 (intent can be evidenced by the establishment of a long-term home). In this instance, it is not clear if Rodriquez paid rent while he occupies the family property, but Rodriquez has no responsibility for payment of any mortgage on the family property. Furthermore, while his mortgage on the Tennessee home evidences an intent to reside there long- term, in the same manner, his interest in the Anna’s Retreat Property may evidence an intent to remain in St. Thomas long-term. Consequently, this housing factor does not weigh heavily for or against Rodriquez’s bona fide residency in the Virgin Islands. b. Employment Rodriquez worked for HOPE Inc., from January 2013 to April 2015 as an independent contractor, and HOPE issued an IRS Form 1099 to Rodriquez for each of those tax years. Each Form 1099 reflected Rodriquez’s Tennessee address, although each Form 1099 was hand delivered to him at the HOPE office in St. Thomas. The independent contractor relationship with HOPE was temporary, which tends to weigh against a finding of bona fide residency. Based on the relevant facts, the Court finds that the analysis of the factors that show intent do not weigh strongly in favor of Rodriquez being a bona fide resident of the Virgin Islands for the requisite three years. In other words, based on the facts Sarauw v. Fawkes et al Case No. ST-16-CV-734 Memorandum Opinion Re: Motion For Preliminary Injunction before the Court, Vento’s intent factor cuts in favor of Plaintiffs’ having at least a reasonable chance of success on the merits. 2. Physical Presence The second category is physical presence. Vento, 715 F. 3d at 467.29 The testimony shows that Rodriquez was physically present in St. Thomas for most of the three years preceding the 2016 general election. His presence tends to demonstrate that, but for a brief one-month absence from HOPE, Inc. in January of 2015, Rodriquez was living and working in the Virgin Islands from January 2013 through April 2015, and from May 18, 2015 to October 30, 2015.21 Rodriquez also provided printouts of his accounts with the Innovative Telephone Company (for cable television service) and the V.I. Water and Power Authority for the Anna’s Retreat property. Both accounts were in his name.?? The Innovative Telephone account history shows cable service from August 13, 2013 to August 13, 2015.23 The account history from the V.I. Water and Power Authority shows continuous service from January 2013 to the present.24 In addition, he opened an account with St. Thomas Federal Credit 2° This category incorporates the 2", 4°", S**, and 7" factors from Sochurek. 21 The Court received no testimony regarding Rodriquez’s whereabouts during the one month he was not employed at HOPE, Inc., in January 2015, except that he held a position with the VI Government for one and one half days. Therefore, the remaining 28 days of January 2015 are unaccounted for. In addition, there is no record regarding his whereabouts between October 2015 {when he left the 31st Legislature) and May 2016 (when he filed papers to become a candidate for the senate). 22 Defendant Exhibit #R8 and R9. 23 Defendant Exhibit #R8. 24 Defendant Exhibit #R9. Sarauw v. Fawkes et al Case No. ST-16-CV-734 Memorandum Opinion Re: Motion For Preliminary Injunction Union on March 1, 2013.5 The Court finds therefore that the evidence suggests that Rodriquez mostly sustained a physical presence in the Virgin Islands since January 2013, which weighs in favor of finding bona fide residency for the requisite period and likewise cuts against Plaintiffs’ probability of success on the merits. 3. Social, Family, and Professional Relationships The indicia of social and professional relationships include participation in community activities on social and cultural levels, identification with the daily lives of the people, and general assimilation.26 The indicia of family relationships are marital status and residence of [Rodriquez’s] family. Running for the Legislature of the Virgin Islands is certainly a communal activity. Furthermore, Rodriquez was among the top seven vote getters, which shows assimilation into the Virgin Islands community. The Court hastens to add that Rodriquez is not and was not a stranger to the Virgin Islands. Having been born and raised in St. Thomas and, except for leaving the island to attend college, he lived in St. Thomas until 2007 or 2008. Therefore, only minimal assimilation, if any, would have been required when he returned to St. Thomas in 2007 or 2008. However, Rodriquez has not consistently observed other formalities of residency since November 2013. For example, after being legally registered to vote in 25 Plaintiff Exhibit #7. 26 Vento, 715 3d at 467, using the 3% and 9'" factors of Sochurek. Sarauw v. Fawkes et al Case No, ST-16-CV-734 Memorandum Opinion Re: Motion For Preliminary Injunction Tennessee, Rodriquez did not re-register to vote in the Virgin Islands until May 8, 2014. Also, at the time Redriqucz filed his petition to run for senator, he still had a Tennessee driver’s license, and he did not acquire a Virgin Islands driver's license until July 2016. Still, “Community social relationships are not the only type of relationships that factor into the residency calculus...marital, and family relationships matter as well...” Vento, 715 F.3d at 476. Rodriquez is not legally separated from his wife, and instead testified that they are an intact family unit, and he has an intention to remain married. Since 2013, his wife and two children have lived in the couple’s $300,000 marital home in Tennessee.2”? He states that the primary reason his family has not moved to the Virgin Islands is because the Virgin Islands does not offer appropriate schooling to meet his son’s needs, as his son has attention deficit disorder, and Tennessee offers “the best quality education.” There is no indication that Rodriquez’s wife has any intention to live in the Virgin Islands. While Rodriquez’s community involvement supports his bona fide residency, the fact that the vast majority of his “family unit’—which is comprised of Rodriquez, his two children, and his wife—resides in Tennessee cuts against a finding of bona fide residency. Consequently, the Court finds that the evidence regarding Rodriquez’s social, family, and professional relationships cuts against a finding of bona fide 27 Contra, the value of Rodriquez’s undivided interest in the St. Thomas family property is $83,333.00. See page 11 of Rodriquez’s bankruptcy petition. Sarauw v. Fawkes et al Case No. ST-16-CV-734 Memorandum Opinion Re: Motion For Preliminary Injunction residency, at least inasmuch as Plaintiffs have a reasonable probability of success of showing thal he was not a bona fide resident during the requisite period of time. 4. Self -identification Finally, the Court must consider Rodriquez’s own representations. If a person self-identifies as a resident of a place, by paying taxes there and observing the other economic burdens, civic obligations and legal formalities of residency, that would support a finding of bona fide residency. See Vento, 715 F.3d at 468, 478. In his favor, Rodriquez’s affidavits to become a candidate for the Virgin Islands legislature, filed in May 2016, state that he met all of the required qualifications.?® These factors tend to weigh in favor of a finding of bona fide residency. However, Rodriquez provided contrary responses, under penalty of perjury, to the questions in the bankruptcy petition that he filed in Tennessee in January 2016.79 Significantly, Rodriquez gave his Tennessee address as the place where he was living and stated he had not lived anywhere else during the preceding three years.®° The 28 plaintiffs’ Exhibit 12. 29 Plaintiffs’ Exhibit 1. 3° The following is an excerpt from the bankruptcy petition. To be consistent, the questions appear in bold: Page 2 of 53, Question 5. Where you live Answer: 4956 Indian Summer Drive Nashville, TN 37207 If your mailing address is different from the one above, fill It in here. (space left blank) Page 37 of 53, Question 2. During the last 3 years, have you live anywhere other than where you live now? Answer: No. Plaintiffs’ Ex. 1. Sarauw v. Fawkes et al Case No. ST-16-CV-734 Memorandum Opinion Re: Motion For Preliminary Injunction petition also posed the following question to Rodriquez, “why arc you choosing this district to file for bankruptcy?” For his response, Rodriquez had a choice of two boxes to check. One box states “Over the last 180 days before filing this petition, I have lived in this district longer than in any other district.” The second box states “I have another reason.” Despite the two options, Rodriquez selected the box that stated that over the last 180 days he had lived in that district longer than in any other. Rodriquez testified before this Court that he was working in Virgin Islands from January 2013 to October 2015. However, he told the Tennessee bankruptcy court that he had not lived in any other place (other than his Tennessee home) for the three years preceding his filing a petition for bankruptcy.*! Therefore, the Court finds that Rodriquez was self-identifying with Tennessee for a significant portion of the three year period at issue. Other responses in the bankruptcy petition reveal a closer nexus to Tennessee and his family than he admitted during the evidentiary hearing. The bankruptcy petition requested information regarding the debtor’s income. The pertinent part of the directions are as follows: Be as complete and accurate as possible. If two married people are filing jointly together (Debtor 1 and Debtor 2), both are equally responsible for supplying correct information. If you are married and not filing jointly, and your spouse is living with you, include information about your spouse. /f you are separated and your spouse 31 Rodriquez testified he did not “read” the petition before signing. But after coaxing from Plaintiffs’ counsel, he said he did “review” the petition before signing. Sarauw v. Fawkes et al Case No. ST-16-CV-734 Memorandum Opinion Re: Motion For Preliminary Injunction is not filing with you, do not include information about your spouse. (emphasis added). Rodriquez’s wife did not file for bankruptcy. However, he included her income in his responses.*8 Therefore, despite an instruction to not include his wife’s information if they were separated, Rodriquez affirmatively included her information in his answers. Therefore, the Court interprets those responses to mean that as of the date of the filing of the bankruptcy petition, January 25, 2016, Rodriquez did not consider himself separated from his wife nor his Tennessee residency. In addition, on May 4, 2016, Rodriquez filed suit in Tennessee against his mortgagee, in which he represented himself as a resident of Tennessee.*4 This too is another indicator of Rodriquez’s self-identification with Tennessee as recently as May 2016. Lastly, Rodriquez filed income tax returns in the Virgin Islands for tax years 2013, 2014, and 2015. However, Rodriquez’s 2013 and 2014 tax returns were not filed until January 2016. Therefore, Rodriquez’s filing of his 2013 and 2014 tax returns are not retroactive to their due dates (April 2014 and April 2015, respectively) or the years in which the income was earned for purposes of establishing residency. Instead, 32 Bankruptcy Petition. Plaintiffs’ Ex. 1. Page 32 of 53. 33 fd, Page 32-33 of 53. 38 Plaintiffs’ Exhibit 9. Sarauw v. Fawkes et al Case No. ST-16-CV-734 Memorandum Opinion Re: Motion For Preliminary Injunction the lax returns are only indicative of his residency beginning on the date he filed them in January 2016. The Court finds that, with respect to Vento’s self-identification factor, the Plaintiffs again have a reasonable probability of showing that Rodriquez was not a bona fide resident of the Virgin Islands based on his own representations— specifically those within his 2016 bankruptcy petition, his tax returns filed in the Virgin Islands in January 2016, and the representations in the May 2016 lawsuit. The strength of Rodriquez’s representations in the bankruptcy petition and his separate suit against the mortgagee outweighs his statement that St. Thomas is “home” and the representations in the affidavits filed with the Board of Elections. To summarize the Court’s findings with respect to the four Vento factors, when considering the category of Intent, these factors do not weigh strongly in favor of Rodriquez’s bona fide residency in the Virgin Islands for the requisite three years. With respect to the category of Physical Presence, the Court finds that these factors do weigh in favor of a finding of bona fide residency. With respect to the category of social, family and professional relationships, the Court finds that they do not weigh in favor of a bona fide residency for the requisite three years. Lastly, on the category of self-identifications, the Court finds that these factors do not weigh in favor of a finding of bona fide residency. Therefore, when considering all the categories, the Court finds that Plaintiffs have a reasonable probability of showing Rodriquez was not a bona fide resident of the Virgin Islands from November 2013 to November 2016. Sarauw v. Fawkes et al Case No. ST-16-CV-734 Memorandum Opinion Re: Motion For Preliminary Injunction To reiterate, Plaintiffs do not need to show that they will actually prevail on the merits at trial, or even that their success is “more likely than not.” Instead, Plaintiffs must be able to show they have a reasonable chance or probability at prevailing. In sum, the Court concludes that Plaintiffs have a reasonable probability of showing that Rodriquez is not a bona fide resident of the Virgin Islands for the three years preceding the November 2016 election. The Court will now consider an affirmative defense raised by Rodriquez before evaluating the other elements of a motion for preliminary injunction. C. Laches*®> Rodriquez argues that the Plaintiffs’ claim is barred by laches. “Laches is an affirmative defense under Rule 8(c) of the Federal Rules of Civil Procedure that bars a plaintiff's claim where there has been an inexcusable delay in prosecuting the claim in light of the equities of the case and prejudice to the defendant from the delay” St. Thomas-St. John Bd. of Elections v. Daniel, 49 V.I. 322, 330 (V.I. 2007). Laches requires proof of two elements: (1) inexcusable delay and (2) prejudice. Id. The Court finds Rodriquez’s argument that the Plaintiffs’ claim is barred by laches lacks merit. Both Plaintiffs testified that they heard rumors regarding Rodriquez’s Virgin Islands residency. Moreover, Sarauw testified that she read Rodriquez’s responses to 35 As an affirmative defense to Plaintiffs’ claims, Rodriquez’s laches argument cuts to Plaintiffs’ ultimate success on the merits. Consequently, the Court finds it proper to evaluate Rodriquez’s laches argument within the “probability of success on the merits” factor of the preliminary injunction analysis. Sarauw v. Fawkes et al Case No. ST-16-CV-734 Memorandum Opinion Re: Motion For Preliminary Injunction the candidate questionnaire published in the Daily News, which stated Rodriquez had re-slructured his debt. Rodriquez argues, based on Sarauw’s testimony, she “had actual knowledge that Rodriquez had filed for bankruptcy.” Def.’s Written Closing Statement 14. Rodriquez also argues that because the bankruptcy petition was accessible to the public, “Plaintiffs’ decision not to access the publicly available bankruptcy petition until after Plaintiff Sarauw did not win a seat in the Virgin Islands Legislature constitutes inexcusable delay, particularly in the election context.” Id. Plaintiffs and Rodriquez quarrel over whether or not Rodriquez’s statement about “restructuring his debt” gave Plaintiffs actual notice that he had filed bankruptcy. However, their quarrel is inconsequential because filing for bankruptcy——standing alone—does not have any bearing on Rodriquez’s eligibility to be a candidate for the Virgin Islands legislature. Rather, the representations within Rodriquez’s bankruptcy petition®*—in which he gave a Tennessee address as his place of residence and stated that he had not lived anywhere else during the previous three years—are the pieces of evidence which cast doubt as to whether he was a bona fide resident and therefore eligible to be a candidate in the November 2016 senatorial election. 36 Filed on January 25, 2016. Sarauw v. Fawkes et al Case No. ST-16-CV-734 Memorandum Opinion Re: Motion For Preliminary Injunction Thus, even though Defendant Rodriquez states that “Sarauw’s testimony demonstrates actual knowledge that Rodriquez had filed bankruptcy,” the pertinent inquiry is not when Plaintiffs gained knowledge that Rodriquez had filed bankruptcy but rather, when Plaintiffs gained knowledge (actual or constructive)?’ regarding the representation within the bankruptcy petition which cast doubt on Rodriquez’s bona fide residency in the Virgin Islands.38 Both Plaintiffs testified that they acquired knowledge of the representations on November 21, 2016, from an anonymous email that attached and highlighted the relevant sections of Rodriquez’s bankruptcy petition. Plaintiff Berry testified that within hours she wrote a letter to the Virgin Islands Board of Elections to challenge Rodriquez’s candidacy and hand delivered the letter to the Elections office that same day, before the elections were certified. In a letter dated November 22, 2016, the Supervisor of the Board of Elections Caroline Fawkes declined Berry’s request to de-certify Rodriquez, and instead stated “You may seek legal redress to further address your concerns.” On December 9, 2016 Plaintiff filed this action. 37 See St. Thomas-St, John Board of Elections v. Daniel, 49 V.1. at 332, n.10 (recognizing that a defendant may support a laches defense by demonstrating the plaintiff's constructive knowledge of the facts necessary to sustain his claim). 3" The Court notes that Rodriquez’s laches argument explicitly focuses on Plaintiffs’ “actual knowledge.” But, it appears to also argue that Plaintiffs possessed constructive knowledge which would preclude their claims. Regardless of how Rodriquez frames his argument, he nonetheless fails to demonstrate that Plaintiffs knew or should have known of the contents of his bankruptcy petition. Sarauw v. Fawkes et al Case No. ST-16-CV-734 Memorandum Opinion Re: Motion For Preliminary Injunction As Plaintiff Sarauw stated in her testimony, as a candidate in the election, she did not have a duty to “vel”®® uther candidates and determine if they were qualificd to run in the election. To be clear, it was not the filing for bankruptcy that calls Rodriquez’s eligibility into question. Instead it is his representations regarding his residency within the bankruptcy petition that gave birth to Plaintiffs’ claims, which they brought to this Court expeditiously after the Supervisor of Elections refused to take action on their complaint. Furthermore, there is no evidence that Rodriquez was prejudiced from the date of the anonymous letter, November 22, 2016 to the date Plaintiffs filed their complaint on December 9, 2016. During that time, Rodriquez candidacy was instead certified by the Board of Elections. Therefore, Rodriquez’s argument that Plaintiffs’ claim should be barred by laches lacks merit.° Therefore, the court must now weigh the remaining three factors in determine whether to grant a preliminary injunction. 39 Not only do candidates not have a duty to vet other candidates regarding their eligibility to run, but the vetting required by Plaintiffs in this case would certainly be extreme vetting because they would have had to evaluate Rodriquez’s 52 page bankruptcy petition, filed in another jurisdiction, to determine whether he was a bona fide resident of the Virgin Islands. 40 In reaching this conclusion, the Court is fully aware of the Virgin Island Supreme Court’s holding in St. Thomas-St. John Board of Elections v. Daniel. The Court would note that while the holding in Daniel emphasized the strength of a laches defense in the context of challenging post-election relief, it did so when a losing candidate filed a post- election complaint regarding electoral procedure. See generally 49 V.|. 331-332. In contrast, as discussed supra, the basis of Plaintiffs’ Complaint—Rodriquez’s lack of bona fide residency—was not readily discernable prior to the election. Sarauw v. Fawkes et al Case No. ST-16-CV-734 Memorandum Opinion Re: Motion For Preliminary Injunction Il, IRREPARABLE INJURY Irreparable injury is “certain and imminent harm for which a monetary award does not adequately compensate.” Yusuf v. Hamed, 59 V.1. 841, 854 (V.I. 2013). Stated differently, “The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” Gladfelter v. Fairleigh Dickinson Univ., 25 V.I. 91, 98 (Terr. Ct. 1990). It is doubtful that in the ordinary course of this litigation, corrective relief will be available to the Plaintiffs at a later date if the motion for preliminary injunction is denied. Defendant Rodriquez is scheduled to be sworn in as a senator in the 324 Legislature of the Virgin Islands within the next two weeks, thereby initiating the 327d Legislature’s role of being the sole judge of the election and qualifications of its members.*! The Plaintiffs would then be deprived the opportunity to seek legal redress in a case in which they have a reasonable probability of success. In addition, due to the implications and importance of this dispute, no monetary award has been claimed, nor can the Court mathematically compute an appropriate one.‘ The Court finds a 41 The 32 Legislature of the Virgin Islands will come into existence once they are sworn in January 9, 2017. Thus, at that time, it will become “the sole judge of the elections and qualifications of its members” according to the Revised Organic Act. 42 injunctive relief has been granted in the Virgin Islands to prevent the swearing in of candidates elected for public office. See Daniel v. V.1. Joint Boards of Elections, 49 V.1. 31, 35 (V.1. Super. Ct. 2007) (rev'd on other grounds) (finding that Plaintiff would suffer irreparable harm in the absence of temporary injunctive relief, the Superior Court issued Sarauw v. Fawkes et al Case No. ST-16-CV-734 Memorandum Opinion Re: Motion For Preliminary Injunction strong showing that the Plaintiffs will be irreparably injured by the denial of injunctive reliel. III. BALANCING OF HARM TO ALL DEFENDANTS The third factor for granting a preliminary injunction requires the Court to inquire into whether “granting preliminary relief will result in even greater harm to the nonmoving parties.” Yusuf, 59 V.I. at 847. None of the defendants have addressed any plausible irreparable injuries that would result by this injunctive relief. Nonetheless, the Court acknowledges that Rodriquez will be inconvenienced and delayed by this injunction. However, that delay is less harmful than the deprivation to the Plaintiffs if the motion for preliminary injunction were denied. Thus, the Court finds a clear showing that granting preliminary relief will not result in greater harm to the Defendants. IV. PUBLIC INTEREST Finally, this Court must “pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Yusuf, 59 V.I. at 858-59. “The public has a strong interest in agencies and officials complying with the laws that govern the territory.” Bryan v. Fawkes, 62 V.I. 19, 26 (V.I. 2014) (Bryan IZ). a temporary restraining order to preserve the status quo by delaying the date for the swearing-in of the certified delegates to the Fifth Constitutional Convention.) Sarauw v. Fawkes et al Case No. ST-16-CV-734 Memorandum Opinion Re: Motion For Preliminary injunction In Bryan II, this Court determined that public interest weighed against injunctive relicf because including nicknames on an election ballots were authorized, a common practice, and beneficial to the electorate. Id. 26-29 In contrast, public interest now weighs in favor of injunctive relief. Permitting a candidate who may not have been a bona fide resident for the three years preceding the election to be sworn into office would be contrary to the Revised Organic Act and would not foster the public’s confidence in the integrity of the elections system. Thus, the Court finds a strong showing that granting the preliminary injunction is in the public interest. CONCLUSION The Court finds that Plaintiffs have a reasonable probability of success on the merits; that the likelihood of irreparable harm to the Plaintiffs absent the injunction is greater than the harm Rodriquez will face as a result of the injunction; and that granting an injunction is in the public interest. Therefore, the Court will issue a preliminary injunction enjoining Rodriquez from taking the oath of office for the 324 Legislature pending further order of the court. DATED: December oat. 2016 LAE Lp Mee Kathleen Mackay Judge of the Superior Court of the Virgin Islands IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN kkkkkkkkickikk JANELLE K. SARAUW and ) BRIGITTE BERRY, ) CASE NO: ST-16-CV-734 Plaintiffs, ) Vv. ) ) EMERGENCY ACTION CAROLINE FAWKES, in her official ) FOR DECLARATORY AND Capacity as SUPERVISOR OF ) INJUNCTIVE RELIEF ELECTIONS, VIRGIN ISLANDS JOINT ) (PENDENTE LITE AND BOARD OF ELECTIONS; BOARD OF ) PERMANENT); ELECTIONS, ST. THOMAS-ST. JOHN ) ALTERNATIVE PETITION and KEVIN A. RODRIGUEZ a/k/a ) FOR MANDAMUS Kevin A. Rodriquez, ) ) Defendants. _) ORDER FOR PRELIMINARY INJUNCTION This matter is before the Court on Plaintiffs’ Motion For Preliminary Injunction. For the reasons set forth in the Memorandum Opinion entered on this day, it is hereby ORDERED that the Motion For Preliminary Injunction is GRANTED; ORDERED that Defendant Kevin A. Rodriquez is ENJOINED from taking the oath of office for the 32™4 Legislature, pending further order of the Court; ORDERED that the matter is scheduled for a trial on the merits on Monday, January 23, 2017, at 9:30 a.m.; and it is further Sarauw v, Caroline Fawkes, Supervisor of Elections, et al Case No. ST-16-CV-734 Order For Preliminary Injunction ORDERED that copies of this Order and the Memorandum Opinion shall be directed to all counscl of record DATED: December AT 2016 La faye Kathleen Mackay Judge of the Superior Court ATTEST of the Virgin Islands ESTRELLA H. GEORG k of the Gourt Acting BY. Cfaatn DONNA D. DO OVAN Acting Court Clerk vane 12,4) 2b IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN JANELLE K. SARAUW and ) BRIGITTE BERRY, ) CASE NO: ST-16-CV-734 Plaintiffs, ) v. } ) EMERGENCY ACTION CAROLINE FAWKES, in her official ) FOR DECLARATORY AND Capacity as SUPERVISOR OF ) INJUNCTIVE RELIEF ELECTIONS, VIRGIN ISLANDS JOINT ) (PENDENTE LITE AND BOARD OF ELECTIONS; BOARD OF +) PERMANENT); ELECTIONS, ST. THOMAS-ST. JOHN ) ALTERNATIVE PETITION and KEVIN A. RODRIGUEZ a/k/a ) FOR MANDAMUS Kevin A. Rodriquez, ) ) Defendants. ) MEMORANDUM OPINION THIS MATTER is before the Court on a Motion to Dismiss filed by Defendant Kevin A. Rodriquez. For the reasons set forth herein, the motion will be denied. BACKGROUND On November 8, 2016, the Virgin Islands held its senatorial election. According to section 6(a) of the Revised Organic Act of 1954 (the “ROA”), “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 next preceding the date of his election.”! In each Virgin Islands’ general election, seven of fifteen senators are elected to represent the District of St. Thomas/St. John based on popular vote. 1 The Revised Organic Act of 1954, § 6(a), 48 U.S.C. § 1572(b), reprinted in V.I. Cope ANN., Historical Documents, Organic Acts, and U.S. Constitution at 159-60 (1995) (preceding V.|. Cove ANN. tit. 1) (emphasis added). Sarauw v. Fawkes, et al. Case No. ST-16-CV-734 Memorandum Opinion RE: Motion To Dismiss Plaintiff Janelle K. Sarauw and Defendant Kevin A. Rodriquez were among eighteen candidates who ran for one of the seven seats to represent St. Thomas/St John in the Virgin Islands legislature. The official results of the election show that Rodriquez won a seat in the legislature because he came in sixth place with 4,134 votes, while Sarauw did not win a seat because she came in eighth place with 3,764 votes. Sarauw states that on November 21, 2016, she received an email from an anonymous source that included portions of a bankruptcy petition that Rodriquez filed in Tennessee in 2016 where he claimed he was a resident of Tennessee. That same day Plaintiff Brigitte Berry—a volunteer for Sarauw’s campaign—wrote a letter to Caroline Fawkes—the Virgin Islands Supervisor of Elections—which disputed Rodriquez’s candidacy. Berry attached a copy of a bankruptcy petition which Rodriquez filed in Tennessee. The following day, the St. Thomas & St. John District Board of Elections certified the election results. The certified results identified Rodriquez as one of the seven successful candidates for the V.I. Legislature. On November 22, 2016, Defendant Fawkes sent a reply to Berry, which stated that the time period to contest Rodriquez’s candidacy had already passed. Before receiving Fawkes’ response, Berry wrote another letter challenging Rodriquez’s candidacy and this time directed copies of the letters to all members of the Board of Elections. On December 9, 2016, Plaintiffs filed the instant action and an emergency motion for preliminary injunction. In their complaint, Plaintiffs allege that Rodriquez Sarauw v. Fawkes, et al. Case No. ST-16-CV-734 Memorandum Opinion RE: Motion To Dismiss was not a hona fide resident of the Virgin Islands for at least three years preceding the date of his election and therefore Rodriquez does not meet the legal requirements set forth in the ROA to be a Virgin Islands senator. In their motion for preliminary injunction, Plaintiffs requested this court set an expedited hearing. The Court subsequently conducted an evidentiary hearing on December 16, 2016, and in an order entered contemporaneously with this Opinion, granted Plaintiffs’ Motion for Preliminary Injunction. ANALYSIS Rodriquez’s Motion to Dismiss attacks the Court's jurisdiction to hear Plaintiffs’ Complaint and also attacks the constitutionality of the residency requirement contained within section 6(b) of the ROA. The Court will analyze these issues in turn. I, JURISDICTION AND JUSTICIABILITY Rodriquez fails to cite which section(s) of Fed. R. Civ. P. 12 he intended to invoke in his Motion to Dismiss. Nonetheless, Rodriquez begins by arguing that this court lacks jurisdiction on the basis of the separation of powers doctrine. He argues that the separation of powers doctrine precludes this Court from exercising jurisdiction over the case because the Revised Organic Act states that “the legislature shall be the sole judge of the elections and qualifications of its members.”2 More 2 Rodriquez’s Motion to Dismiss, at 2 (quoting ROA § 6(g)). Sarauw v. Fawkes, et al. Case No. ST-16-CV-734 Memorandum Opinion RE: Motion To Dismiss specifically, he contends that this Court’s ability to review the qualifications of a would-be senator terminates when the Supervisor of elections certifies the elections results—which essentially transforms the candidate for senate into a senator-elect. Rodriquez relies almost exclusively on the Virgin Islands Supreme Court’s decision in Haynes v. Ottley? to support his argument. He contends that Haynes stands for the proposition that once the Supervisor of Elections certifies election results, the qualifications of the electee are no longer reviewable by the Supervisor of Elections or the court. This Court disagrees. In Haynes, the Virgin Islands Supreme Court reviewed a Superior Court decision in which Haynes—a concerned non-candidate taxpayer—filed a complaint alleging in part that Ottley—the running mate of Democratic gubernatorial candidate Donna Christensen—had not been a bona fide resident of the Virgin Islands for the requisite period. At the time of the appeal, media outlets had published unofficial election results suggesting that the Christensen-Ottley ticket had lost the election by a substantial margin. Consequently, Ottley moved the Supreme Court to dismiss the appeal as moot. However, the Supreme Court did not. Importantly, the Supreme Court began its analysis by foreclosing the issue of mootness. The Court held that Haynes’s appeal would not be rendered moot until the election results had been certified by the Supervisor of Elections. In essence, the 361 VI. 547 (V.I. 2014). Sarauw v. Fawkes, et al. Case No. ST-16-CV-734 Memorandum Opinion RE: Motion To Dismiss appeal would have hecome moot upon certification because Ottley was on the losing ticket. Therefore, whether he was actually a bona fide resident would become wholly unimportant upon certification.’ Consequently, the Virgin Islands Supreme Court’s reasoning in Haynes regarding the Court’s review of a candidate’s qualifications to serve fails to support Rodriquez’s argument. Here, Rodriquez won a seat in the senatorial election. Thus, unlike Ottley, the issue of his ability to meet the qualifications set forth in the Revised Organic Act is not moot. Furthermore, contrary to Rodriquez’s contention, the issue of certification in Haynes cut to whether Haynes’s appeal was moot—not whether the separation of powers doctrine divested the Superior Court of its subject matter jurisdiction. The Virgin Islands Supreme Court squarely addressed a closely analogous issue in Bryan v. Fawkes (Bryan I). In Bryan I, the Virgin Islands Supreme Court conducted statutory interpretation to inform the term “moral turpitude” within Section 6(g) of the Revised Organic Act. The Court did so to decide whether a senatorial candidate was disqualified from becoming a senator on grounds that she had previously been convicted of tax evasion. The candidate that had been convicted 4 The Court found that Ottley’s eligibility to serve as lieutenant governor was not moot as the issue was one “capable of repetition yet evading review” because of the narrow time frame of the elections cycle. Haynes, 61V.1 at 559. 561 V.I. 201 (V.1. 2014). Sarauw v. Fawkes, et al. Case No. ST-16-CV-734 Memorandum Opinion RE: Motion To Dismiss of tax evasion argued that the separation of powers doctrine precluded the Court from reviewing her qualifications. However, the Court ultimately held, [Section 6(c) of the Revised Organic Act, as well as the local statutes enacted by the legislature pursuant to that provision, contemplates that an elected Board of Elections will administer the elections system— including enforcing the requirements of section 6(b)—before a particular legislature convenes, and that power will shift from the Board of Elections to that legislature pursuant to section 6(g) only after the election has concluded and that legislature has actually convened. Bryan I, 61 V.1. at 216 (emphasis added). The use of the conjunctive “and,” indicates that both conditions must be satisfied to shift power from the Board of Elections to the Legislature. Thus, the Virgin Islands Supreme Court clearly held that the Board of Elections maintains the ability to review a senator-elect’s qualifications until the legislature convenes. And, because this Court retains the ability to review decisions by the Board of Elections and its Supervisor,* this Court may review a senator-elect’s qualifications up until the legislature to which that senator-elect would be a member actually convenes. II. §DURATIONAL RESIDENCY REQUIREMENT Rodriquez moves this Court to find portions of the ROA unconstitutional.” In particular, he argues that section 6(b) of the ROA unconstitutionally requires each 5S VAC. § 1421. 7 Rodriquez’s Motion to Dismiss never explicitly identifies the source of the “three-year residency provision” that he asks the Court to find unconstitutional. Nonetheless, because Plaintiffs’ arguments hinge on the operation of section 6(b) of the ROA, the Court will infer that Rodriquez attacks section 6(b) of the ROA. Sarauw v. Fawkes, et al. Case No. ST-16-CV-734 Memorandum Opinion RE: Motion To Dismiss membher of the Virgin Islands Legislature to be a “bona fide resident of the Virgin Islands for at least. three years next preceding the date of his election...” Rodriquez asserts that the District Court of the Virgin Islands’ holding in Schneider v. Todman®’ provides binding precedent on this issue. Rodriquez argues that Schneider held “a nearly identical three-year residency provision was invalid and unenforceable because it violated the Equal Protection Clause of the Fourteenth Amendment.”® In addition, he argues that “an entire universe of decisions invalidating unconstitutional residency requirements” supports a finding of unconstitutionality of section 6(b) of the ROA.'° To begin, Rodriquez misstates the crux of the holding in Schneider as well as its relationship to this case. Schneider merely invalidated a portion of 2 V.L.C. § 102, which required that a legislative candidate live in the district in which he intended to run for at least three years.!! Importantly, this “district residency requirement” is imposed by § 102 in addition to the requirements contained in section 6(b) of the ROA.!2 In reaching its holding, the Schneider court found that the statutory section at issue was repugnant to both the Revised Organic Act and the Fourteenth Amendment.!3 On the other hand, Schneider explicitly stated that its ruling did not ® 13 V.1. 182 (D.V.1. 1976). ® Rodriquez’s Motion to Dismiss, at 6. 40 fd, 11 see Schneider, 13 V.1. at 192. (holding Title 2 V.1.C. § 103 unconstitutional). 22 V1.C. § 102. 13 Schneider, 13 V.I. at 187-188 (“This freedom of movement, this unity of political existence expressed in the Passenger Cases is entirely consonant with the philosophy and purpose of the Revised Organic Act of 1954, for what Sarauw v. Fawkes, et al. Case No. ST-16-CV-734 Memorandum Opinion RE: Motion To Dismiss “venture[] any opinion as to the legality of durational residency requirements per se, or what the length of any such requirement should be, if permissible.”"4 Furthermore, it did not rule on the constitutionality of any part of the ROA. As such, the Court finds that Schneider provides no support to invalidate the residency requirement of section 6(b) of the ROA. Second, Rodriquez argues that an “entire universe of decisions” support his contention that this Court should invalidate section 6(b) of the ROA. But, all of the opinions cited by Rodriquez are inapposite as explained below. Rodriquez first argues that the U.S. Supreme Court's opinion in Dunn v. Blumstein'5 supports invalidation of § 6(b) of the ROA. But, Dunn invalidated residency requirements for voter registration rather than for candidates for public office.'6 And, ensuing U.S. Supreme Court decisions contrast the illegitimacy of excessive durational residency requirements for voters with the legitimacy of durational residency requirements for candidates.!7 For instance, in Sununu v. Stark,'8 the U.S. Supreme Court summarily affirmed a lower court decision which the Congress sought to implant in the Virgin Islands was a single unified governmental entity, as it struck down the artificial barriers which divided the Virgin Islands politically into two separate municipalities, each with its own legislative body.”). M4 id, at 192. 15 405 U.S. 330 (1972). 18 Dunn, 405 U.S, at 360. 17 Chimento v. Stark, 353 F. Supp. 1211, 1218 (D.N.H. 1973), aff'd, 414 U.S. 802 (1973) (“[T]he right to public office {cannot] be equated to the right to vote in relationship to the right to travel. Candidacy for public office is quite different from voting, and one does not travel from one place to another contemplating that he will offer himself to the voters for election to state office.”) {internal citation omitted). 18 383 F, Supp. 1287 (D.N.H. 1974), aff'd, 420 U.S. 958 (1975). Sarauw v. Fawkes, et al. Case No. ST-16-CV-734 Memorandum Opinion RE: Motion To Dismiss upheld the constitutionality of a provision of New Hampshire’s constitution that imposed 4 seven year durational residency requirement on individuals interested in running for the state senate. Consequently, Sununu is far more analogous to this case than Dunn. Furthermore, Sununu’s holding unquestionably supports the constitutionality of § 6(b) of the ROA because it upheld a residency requirement for public office which was significantly longer than the one at issue in § 6(b).!® Rodriquez also cites Callaway v. Samson?° to support his argument. While opinions from the District Court of New Jersey are not precedential in the Virgin Islands, the Court will nonetheless consider its relationship to the issue at hand. In Callaway, an individual vying for a seat in Atlantic City’s city council challenged the constitutionality of a state statute that required candidates for local office to reside in the district or ward in which they intend to run for at least one year prior to running.2! Thus, while the district court held the subject statute unconstitutional, the issue in Callaway parallels the issue on Schneider and fails to provide an inkling of support for Rodriquez’s argument.” 19 Sununu, 383 F. Supp. at 1292. 20 193 F. Supp. 2d 783 (D.N.J. 2002). 21 Callaway, 193 F. Supp. 2d at 784. 22 In addition to Callaway, Rodriquez cites a host of federal district court cases with parallel holdings. Consequently, the Court finds all of the following cases inapposite to the case at hand for the same reason. See Robertson v. Bartels, 150 F. Supp. 2d 691, 692 (D.N.J. 2001) (invalidating a one year “district residency requirements” as unconstitutional); Brill v. Carter, 455 F. Supp. 172, 173 (D. Md. 1978) (invalidating a county charter provision requiring candidates to have lived in the county for one year prior to running for a seat in the county council); Headlee v. Franklin County Board of Elections, 368 F. Supp. 999, 1004 (S.D. Ohio 1973) (invalidating Ohio statute which required candidates in village elections to have resided in said village for one year prior to the election). Sarauw v. Fawkes, et al. Case No. ST-16-CV-734 Memorandum Opinion RE: Motion To Dismiss CONCLUSION After evaluating all of Redviquez’s arguments and authorilies,?" the Court finds no reason to hold § 6(b) of the Revised Organic Act of 1954 unconstitutional. 24 In addition, the separation of power doctrine does not divest this Court of jurisdiction over this matter. Consequently, Rodriquez’s Motion to Dismiss will be denied. An Order consistent with this Opinion will follow. DATED: December %7, 2016 wZZ S Aye cles | Kathleen Mackay Judge of the Superior Court ATTEST: of the Virgin Islands ESTRE H. GEORGE Actin: rk of tha Court BY: Uy nal yw DONNA DONOVAN pe Clerk Supervisor 12a, 4, 20! ( 23 The Court finds it sufficient to restrain its constitutional analysis of the ROA to the arguments presented by the parties. See Carducci v. Regan, 714 F.2d 171, 176, 230 U.S. App. D.C. 80 (D.C. Cir. 1983) (suggesting that, while courts are not precluded from reaching decisions on issues beyond the briefings, attempting to resolve complex legal questions without proper briefing by the parties deprives the court of the assistance of counsel necessary to properly develop the law in an adversarial system and declining to entertain appellant's argument); Southwestern Pa. Growth Alliance v. Browner, 121 F.3d 106, 121 (3rd Cir. 1997) (refusing to address complicated legal issues that were not properly developed by the parties in their briefs); Schneider's Dairy v. Serv. Pers. & Emples., Teamsters Local Union No. 205, 2013 U.S. Dist. LEXIS 174350, *5-6 n.1 (W.D. Pa. Dec. 10, 2013) (noting that “[i]t is not the Court's job to research and construct legal arguments open to parties ... In order to develop a legal argument effectively, the facts at issue must be bolstered by relevant legal authority; a perfunctory and undeveloped assertion is inadequate[.]”) (internal citation omitted); Tutu Park, Ltd. v. Harthman Leasing |, LLLP, 2016 V.I. LEXIS 159, *25 (V.I. Super. Ct. Sept. 27, 2016). 24 The Court would note that, to date, no portion of the Revised Organic Act has been overturned by a court in the Virgin Islands. IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN ticki JANELLE K. SARAUW and ) BRIGITTE BERRY, ) CASE NO: ST-16-CV-734 Plaintiffs, ) Vv. ) ) EMERGENCY ACTION CAROLINE FAWKES, in her official ) FOR DECLARATORY AND Capacity as SUPERVISOR OF ) INJUNCTIVE RELIEF ELECTIONS, VIRGIN ISLANDS JOINT ) (PENDENTE LITE AND ) ) ) ) ) BOARD OF ELECTIONS; BOARD OF PERMANENT); ELECTIONS, ST. THOMAS-ST. JOHN ALTERNATIVE PETITION and KEVIN A. RODRIGUEZ a/k/a FOR MANDAMUS Kevin A. Rodriquez, Defendants. ) ORDER This matter is before the Court on the Motion To Dismiss filed by Defendant Kevin A. Rodriquez. For the reasons set forth in the Memorandum Opinion entered on this day, it is hereby ORDERED that Rodriquez’s Motion To Dismiss is DENIED; and it is further ORDERED that copies of this Order and the Memorandum Opinion shall be directed to all counsel of record. DATED: December ee 7 , 2016 - yilin ne ef Kathleen Mackay Judge of the Superior Court ATTEST: of the Virgin Islands EST H. GEQRGE Acting k of the C DONNA D. DONOVAN 19-1 Acting Court Clerk Supervisor