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FOR PUBLICATION IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX GERARD LUZ JAMES II, In His Individual Capacity, and MARY L. MOORHEAD, In Her Individual Capacity, Petitioners, HONORABLE JOHN P. DE JONGH, JR., GOVERNOR OF THE VIRGIN ISLANDS OF THE UNITED STATES, Respondent. CASE NO: SX-09-CV-319 PETITION FOR WRIT OF MANDAMUS Emile A. Henderson III, Esq. LAW OFFICES OF YVETTE ROSS-EDWARDS 115 Queen Street Frederiksted, St. Croix U. S. Virgin Islands 00840 Attorneyfor Petitioners Carol Thomas-Jacobs, Esq. Erika Scott, Esq. DEPARTMENT OF JUSTICE Office ofthe Attorney General GERS Building, 2nd Floor St. Thomas, U.S.V.I. 00801 Attorneys for Respondent DONOHUE, SR., DARRYL DEAN, Presiding Judge: MEMORANDUM OPINION (Filed: December3lg , 2009) THIS MATTER is before the Court on a Verified Petition for Writ ofMandamus filed by Petitioners, Gerard Luz James II, in His Individual Capacity, and Mary L. Moorhead, in Her Fifth Constitutional Convention et. al. v. deJongh Case No. SX-09-CV-319 ORDER Individual Capacity (hereinafter "Petitioners").1 Respondent, Honorable John P. deJongh, Jr., Governor of the Virgin Islands of the United States (hereinafter "Respondent") filed an Answer thereto. I. FACTUAL and PROCEDURAL BACKGROUND Pursuant to Public Law 94-584 § 1, the United States Congress (hereinafter "Congress") authorized "the peoples of the Virgin Islands and of Guam, respectively, to organize governments pursuant to constitutions of their own adoption . . . ." Section 2(a) of Pub. L. No. 94-584 further provides that "[t]he Legislatures ofthe Virgin Islands and Guam, respectively, are authorized to call constitutional conventions to draft, within the existing territorial-Federal relationship, constitutions for the local self-government of the people of the Virgin Islands and Guam." The 25th Legislature ofthe Virgin Islands (hereinafter "V.I. Legislature") enacted Act No. 6688,3 which established the Fifth Constitutional Convention (hereinafter "Convention"). In accordance with Act No. 6688(1)(b), the Convention was tasked with preparing and agreeingupon a draft of the constitution of the Virgin Islands. Act No. 6688(1 )(o) proscribed the procedure in ' The Verified Petition for Writ ofMandamus was originally filed byThe Fifth Constitutional Convention; Gerard Luz James, II, Officially as President ofthe Convention and in His Individual Capacity; and Mary L. Moorhead, Officially as Secretary of the Convention and in Her Individual Capacity. On July 30, 2009, Respondent filed a Motion to Dismiss arguing that the enabling statutes did not give the Convention or its delegates the authority to sue or be sued. Petitioners countered that even if the Convention and its President and Secretary in their official capacities could not filesuit,James and Moorhead in their individual capacities should be allowed to proceed under 5 V.I.C. § 80. On October 13,2009, the Court issued an Order dismissing the action as to Petitioners, The Fifth Constitutional Convention; Gerard Luz James, II, Officially as President ofthe Convention; and Mary L. Moorhead, Officially as Secretary ofthe Convention. The Court held that the Convention, and James and Moorhead acting in their respective official capacities did not have authority to act beyond the powers given to them as enumerated in Act No. 6688. The Court held, nonetheless, that Petitioners James and Moorhead had taxpayer standing to proceed in their individual capacities because the issue presented was one of great public importance and interest to the Territory of the Virgin Islands that warranted judicial review. 2 Asamended byPub. L. 96-597. 3 As amended by Act Nos. 6820, 6839, 6934, 6969, 6970, 7055, 7057, and 7061. Fifth Constitutional Convention et. al. v. deJongh Case No. SX-09-CV-319 ORDER which the proposed constitution would be handled once adopted by the Convention. The Convention was required to adopt a proposed constitution no later than May 31, 2009.4 The Governor ofthe Virgin Islands had ten days to forward the proposed constitution to the President ofthe United States (hereinafter "President") once it was delivered to him by the Convention. See Act No. 6688(1)(o). It is undisputed that the Convention delivered the proposed Constitution to Respondent on June 1, 2009. The Verified Petition for Writ ofMandamus, filed on June 30,2009, alleges that Respondent failed to forward the proposed Constitution to the President within the ten days required by Act No. 6688. Petitioners argue that Respondent's act of not forwarding the proposed Constitution to the President is in violation ofPub. L. No. 94-584 and Act No. 6688 as neither law allows Respondent to modify, amend, veto, or withhold the proposed Constitution. Respondent admits that the proposed Constitution was not forwarded to the President. Respondent's argument appears to be that the proposed Constitution does not comply with the requirements of Pub. L. No. 94-584 § 2(b) and because of this, was apparently not forwarded to the President. Respondent makes no further supporting argument regarding non-compliance. On July 14, 2009, Respondent filed a Motion to Compel, arguing that petitions for writ of mandamus must be pled according to the Rules 10(b) and 8(a)(2) of the Federal Rules of Civil Procedure. Respondent asserted his difficulty with responding to the Verified Petition for Writ of Mandamus because the allegations were set forth in narrative form instead ofnumbered paragraphs. This Court held that a petition for writ of mandamus need not strictly be pled in compliance with 4 Asamended byActNo. 7055. Fifth Constitutional Convention et. al. v. deJongh Case No. SX-09-CV-319 ORDER Federal Rules 8(a)(2) and Rule 10. Additionally, the Court found that the Petition did not suffer from such pleading or procedural defects that would render it unanswerable. Therefore, this Court held it was unnecessary to order Petitioners replead the Petition, and ordered Respondent to file any responsive pleading to the Verified Petition for Writ ofMandamus within ten days. On October 27, 2009, rather than filing a response that substantively argued the merits of Petitioners' claims, Respondent filed an Answer to Verified Petition for Writ of Mandamus numerically denying or admitting the Petitioners' allegations and asserting defenses and affirmative defenses. II. STANDARD and DISCUSSION The Court's authority to grant mandamus relief is found in Title 5, Section 1361(a) of the Virgin Islands Code, which provides: [that the court] may issue a mandatory order to any inferior court, corporation, board, officer, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station... .The order shall not be issued in any casewherethereis a plain, speedy,and adequateremedyintheordinary course of the law. In short, Section 1361(a) states that a mandamus order may be issuedto compel anofficerto perform a duty resulting from an office, trust, or station. Respondent, as the Governorofthe VirginIslands,is the chiefexecutive officer ofthe Virgin Islands5 and therefore, falls within the Court'sjurisdictionas a public officer. Nonetheless, before mandamus reliefmay be granted, Virgin Islands law mandates thata courtfind: (1)the Petitioner hasa clearrighttothe reliefsought,(2)Respondent has aplainly defined and peremptory duty to do the act in question, and (3) there is no other adequate remedy available. See Donastorg v. Gov'tofVirgin Islands, 45 V.I. 259,273 (Terr. Ct. 2003); Goodwin v. St. 5See Section 11 oftheRevised Organic Act of 1954 (as amended). Fifth Constitutional Convention et. al. v. deJongh Case No. SX-09-CV-319 ORDER Thomas-St.John Bd. of Elections, 43 V.I. 89, 97 (Terr. Ct. 2000). "Mandamus relief is an extraordinary remedy and should only be issued ifthere are compelling circumstances." Donastorg, 45 V.I. at 273. Petitioners allege that they have a clear right as individual taxpayers to have the Court issue a writ of mandamus because Respondent is in violation of Pub. L. No. 94-584 and Act No. 6688. Petitioners do have the right as individual taxpayers to seek mandamus relief from the Court; nevertheless, the Court must still find that all the three requirements are met before such relief is granted. If Petitioners demonstrate a clear right to the relief sought, that Respondent failed to perform a plainly defined and peremptory duty, and there is no other adequate remedy available, mandamus relief would be appropriate under Title 5 V.I.C. § 1361. This Court has previously determinedthat taxpayer standing maybe grantedwherea petition for mandamus relief is sought to enforce a statutory duty of a public official, and the petitioner demonstrates that he or she is a taxpayer and that there is an issue of great public importance. See Case No: SX-09-CV-319, Order dated Oct. 13, 2009, pgs. 8, 10. This Court held that this is such a case - where the issue, ofwhether Respondent's failure to forward the proposed Constitution was a violation of statutory law, is an issue of great public concern to the Territory ofthe Virgin Islands warranting judicial review. Id. The significant issue before the Court centers on whether Respondent had a plainly defined and peremptory duty to forward the proposed Constitution to the President and whether his failure to do so was contrary to Pub. L. No. 94-584 and/or Act No. 6688 making him susceptible to an order of mandamus. A finding that Respondent had a plainly defined and peremptory statutory duty, which he Fifth Constitutional Convention et. al. v. deJongh Case No. SX-09-CV-319 ORDER failed to perform, would constitute Petitioners' clear and indisputable right to mandamus relief. Specifically, "[a] party possesses a clear and indisputable right when the relief sought constitutes a specific, ministerial act, devoid ofthe exercise ofjudgment or discretion." In re People of Virgin Islands, 2009 WL 1351508, *5 (V.I. May 13,2009). Additionally, "[i]t is well established that a writ may only issue to direct one to perform an obligatory duty... It will issue only where the duty to be performed is ministerial and the obligation to act peremptory, and plainly defined. The law must not only authorize the demanded action, but require it; the duty must be clear and indisputable." Russell v. Kendall, 2006 WL 3613269, *5 (D.V.I. App. Div. Dec. 11, 2006) (quoting UnitedStates ex rel. McLennan v. Wilbur, 283 U.S. 414, 420 (1931) (citations omitted)). The Court must turn to the language of Pub. L. No. 94-584 and Act No. 6688 to determine whether Respondent failed to perform a mandated duty by not forwarding the proposed Constitution to the President of the United States. Section (l)(o) of Act No. 6688 reads: [T]he President of the Convention shall submit [the proposed Constitution] to the Governor ofthe Virgin Islands, in compliance with the provisions ofPublic Law 94- 584, section 4, and the proposed Constitution shall, within ten days after it was submitted to him, be submitted by the Governor to the President ofthe United States, (emphasis added). Section 4 of Pub. L. No. 94-584 provides: [T]he conventions shall submit to the Governor of the Virgin Islands a proposed constitution for the Virgin Islands and to the Governor of Guam a proposed constitution for Guam which shall comply with the requirements set forth in section 2(b) above. Such constitutions shall be submitted to the President ofthe United States by the Governors of the Virgin Islands and Guam, (emphasis added). "Courts must presume that a legislature says in a statute what it means and means in a statute what it says there. Consequently, the first step in interpreting a statute is to determine whether the Fifth Constitutional Convention et. al. v. deJongh Case No. SX-09-CV-319 ORDER language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete." Joseph v. People of Virgin Islands, 2008 WL 5663569, *4, n. 9 (D.V.I. App. Div. Dec. 9,2008) (internal quotation marks and internal citations omitted). See also Gov't ofVirgin Islands v. Santiago, 798 F. Supp. 274, 279 (D.V.I.1992) (holding "if the statutory language is unambiguous, its plain meaning is regarded as conclusive except in rare and exceptional circumstances.") (internal quotation marks and citations omitted). "Furthermore, although literal interpretation ofa statute is favored, the intention prevails over the letter, and thus no statute should be read literally if such a reading is contrary to its objective." Gilbert, 2009 WL 3297267 at 3. (citations and internal quotation and punctuation marks omitted). The Court finds that the language of both statutes has a plain and unambiguous meaning. Section (l)(o) ofAct No. 6688 clearly states "the proposed Constitution shall, within ten days after it was submitted to him, be submitted by the Governor to the President ofthe United States." Likewise, Section 4 ofPub. L. No. 94-5.84 states "such constitutions shall be submitted to the President ofthe United States by the Governor[] of the Virgin Islands. . .." According to both Pub. L. No. 94-584 and Act No. 6688, the Governor ofthe Virgin Islands is required to submit the proposed Constitution to the President. Neither statute is ambiguous with regard to Respondent's role and neither statute contains language authorizing Respondent to act beyond the mandate to forward the proposed Constitution. The statutes unambiguously state Respondent's duty. His only duty regarding the proposed Constitution was to submit it to the President, within ten days after it was submitted to him. The Court notes that Respondent failed to raise the issue ofvagueness or ambiguity in either statute. Fifth Constitutional Convention et. al. v. deJongh Case No. SX-09-CV-319 ORDER Therefore, the Court's inquiry ends with the plain and unambiguous meaning ofPub. L. No. 94-584 and Act No. 6688. See Joseph, 2008 WL 5663569, at *4, n. 9; Santiago, 798 F. Supp. at 279. Moreover, there is no evidence ofa contrary intention ofthe Congress or the V.I. Legislature. "[I]f the language of the statute expresses Congress's [sic] intent with sufficient precision, the inquiry ends there and the statute is enforced according to its terms." InreLordAbbettMutualFunds Fee Litigation, 553 F.3d 248,254 (3d Cir. 2009) (quoting UnitedStates v. Gregg, 226 F.3d 253,257 (3d Cir.2000). See also Gilbertv. People ofVirgin Islands,2009 WL 3297267, *3 (V.I. Oct. 6,2009) (quoting Inre InfantSherman, 49 V.I. 452,456 (2008) (holding "in construing a statute, ifthe intent ofthe Legislature is clear, that is the end ofthe matter."). If Congress or the V.I. Legislature intended to authorize any other action by Respondent, such language would have been written into the statutes. For instance, Pub. L. No. 94-584 § 5 specifies that within sixty calendar days ofreceiving a constitution, "the President shall transmit such constitution together with his comments to the Congress." Section 5 explicitly requires the President to transmit the constitution withhis comments. There was no such authority given to Respondent. Likewise, section 5 authorizes Congress to "approve[] the constitution, or modif[y] or amend[] it, in whole or in part, by joint resolution." See Pub. L. No. 94-584 § 5. Therefore, Congress is authorized to make modifications and amendments. No such authority was given to Respondent. Seeing that authority to do anything beyond forward the proposed Constitution is absent in both statutes, and finding no ambiguity in the language ofeither statute, this Court is compelled to find that Respondent has failed to perform a clear and plainly defined statutory duty. Hence, the Court finds that the elements for an order ofmandamus pursuant to Title 5 V.I.C. § 1361 have been met - Petitioners have a clear right to the relief requested, FifthConstitutional Convention et. al. v. deJongh Case No. SX-09-CV-319 ORDER Respondent has a plainly defined and peremptory duty to do the act in question, and there is no other adequate remedy available. III. CONCLUSION The Court finds that Respondent has a specific non-discretionary duty required by both Pub. L. No. 94-584 and Act No. 6688 to forward the proposed Constitution to the President ofthe United States. Respondent's failure to forward the proposed Constitution constitutes a violation ofPub. L. No. 94-584 and Act No. 6688. Within the confines ofthe language ofboth statutes, Respondent's duty entails only submitting the proposed Constitution to the President of the United States. The statutes authorize nothing more and nothing less. There is no authority for Respondent to amend, modify, revise, withhold, or take any other action regarding the proposed Constitution beyond his enumerated duty. Consequently, it was not within Respondent's power to take contrary action by not forwarding the proposed Constitution to the President ofthe United States. Accordingly, mandamus relief is appropriate and Respondent shall be ordered to proceed with his duty pursuant to Pub. L. No. 94-584 and Act No. 6688 and forward the proposed Constitution to the President ofthe United States within ten (10) business days. An appropriate Order of even date follows. DATED this Z > day ofDecember, 20( ATTEST: VENETIA H. VELAZQUEZ, ESQ. Clerk of the Court Chief Deputy Clerk Dated: \<^\o3| 0*? DARRYL DEAN DONOHUE, SR. Presiding Judge of the Superior Court FOR PUBLICATION IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX GERARD LUZ JAMES II, In His Individual Capacity, and MARY L. MOORHEAD, In Her Individual Capacity, Petitioners, HONORABLE JOHN P. DE JONGH, JR., GOVERNOR OF THE VIRGIN ISLANDS OF THE UNITED STATES, Respondent. CASE NO: SX-09-CV-319 PETITION FOR WRIT OF MANDAMUS ORDER For reasons stated in the accompanying Memorandum Opinion ofthe even date and having fully been advised of the premises therein, it is hereby ORDERED that Petitioners' Verified Petition for Writ ofMandamus is hereby GRANTED. It is further ORDERED that Respondent shall take the appropriate steps consistent with this Order and shall proceed with his duty pursuant to Pub. L. No. 94-584 and Act No. 6688 to forward the proposed Constitution to the President of the United Stajes within ten (10) business days. DONE and SO ORDERED this J. 3> day ofDecember^ ATTEST: VENETIA H. VELAZQUEZ, ESQ. Clerk of the Court BygB Chief Deputy Clerk Dated: U*-\»?ffi Jr DAR$YCl)EAN DONOHUE, SR. Presiding Judge of the Superior Court