Mapp v. Lawaetz
| Decision Date | 25 July 1989 |
| Docket Number | No. 89-3481,89-3481 |
| Citation | 882 F.2d 49 |
| Parties | Kenneth E. MAPP, Lillian Belardo de O'Neale, Virdin E. Brown, Bingley G. Richardson, Sr., Elmo D. Roebuck, Celestino A. White, Sr., Ana L. Davila, Howard Francis, Claude Petersen, Henry Sealey and Dr. Thomas Edwin Donoghue, Appellants, v. Honorable Bent LAWAETZ, President of the 18th Legislature, Lorraine Berry, Alicia Hansen, Edgar Isles, Robert O'Connor, David Puritz, Holland L. Redfield, II, Paul Alan Shatkin and St. Claire Williams, Appellees. . Submitted Under Third Circuit Rule 12(6) |
| Court | U.S. Court of Appeals — Third Circuit |
Julio A. Brady, Christiansted, St. Croix, U.S. Virgin Islands, for appellants.
Andrew L. Capdeville, St. Thomas, U.S. Virgin Islands, for appellees.
Before GIBBONS, Chief Judge, HUTCHINSON, Circuit Judge, and WOLIN, District Judge. *
Appellant Kenneth E. Mapp (Mapp) appeals an order of the Appellate Division of the District Court of the Virgin Islands. The district court reversed a decision of the Territorial Court of the Virgin Islands granting Mapp declaratory and injunctive relief against the president and other members of the 18th Legislature of the Virgin Islands (legislature) because the case was not justiciable.
The legislature had passed a bill removing Mapp as a member of that body and notified the Governor of the Virgin Islands that Mapp's seat was vacant. The bill based Mapp's removal on his failure to meet the standing requirements of voter registration and residency expressly set forth in Sec. 6(b) of the Revised Organic Act of 1954. Satisfying these conditions is required to be eligible for legislative office.
The district court held that the legislative majority required to remove a member for failure to meet the standing qualifications set forth in Sec. 6(b) was textually committed to the sole judgment of the legislature by Sec. 6(g) of that Act and was therefore a non-justiciable political question. However, Mapp contends that the procedure used to remove him by a simple majority vote violated his constitutional right to due process. We hold that the legislature's action in this case met due process requirements and that the question of whether its rule requiring a two-thirds vote applied to Mapp's case is a matter entrusted to that body for its final resolution.
Mapp is a long-time resident of the Virgin Islands and was a registered voter in the electoral district of St. Croix in 1987. In December of that year, he traveled to the State of Georgia to further his education. Appendix for Appellants (App.) at 6. In Georgia, he and his wife resided in a rented apartment in College Park. On January 11, 1988, he registered to vote in Fulton County, Georgia for the March 8, 1988 Democratic presidential preference primary. Appendix for Appellees (Supp.App.) at 35. In registering, Mapp swore that he was a citizen of the United States, the State of Georgia and Fulton County. He also affirmed that he possessed the qualifications of an elector as required by Georgia law and completed a card canceling his St. Croix registration. Id. at 36-37. On March 8, 1988, Mapp voted in the primary. App. at 8.
Neither Mapp's educational plans nor a subsequent business venture in Georgia worked out. Therefore, he left Georgia and returned to the Virgin Islands in April, 1988. Id. at 16. He did not re-register to vote in the Virgin Islands upon his return to St. Croix. Id. at 23-24.
Having once been a member of the legislature, Mapp decided to run again for a position in that body in the November, 1988 election. Not having received the card canceling Mapp's registration from Fulton County, the St. Croix Board of Elections certified his eligibility to run for the office of senator in the Virgin Islands' unicameral legislature. Supp.App. at 49. He was successful, and on December 2, 1988, the Board of Elections certified his election as a Senator in the 18th Legislature. Id. at 48. Mapp took the oath of office and assumed his senatorial duties on January 8, 1989.
One month later, on February 8, 1989, the supervisor of elections in St. Croix received the card from Fulton County canceling Mapp's Virgin Islands registration. The Board of Elections then met and attempted to withdraw its previous certification of Mapp because he did not qualify to seek and hold legislative office. Id. at 33-34, 50-51. Section 6(b) of the Revised Organic Act of 1954, the Virgin Islands' analogue of a state constitution, requires that members of the legislature be qualified voters and "bona fide residents" of the territory for three years before their election. By letter of April 12, 1989, appellee Senator Bent Lawaetz (Lawaetz), president of the legislature, was notified of this determination.
Lawaetz, in the name of the 18th Legislature, thereafter filed an action in district court seeking a declaratory judgment that Mapp was ineligible to continue serving as a member. On May 10, 1989, the district court dismissed that action, holding that the exclusive power and authority to determine Mapp's qualifications and eligibility for membership in the legislature rested with the legislature itself under Sec. 6(g) of the Revised Organic Act of 1954.
Immediately thereafter, Lawaetz sponsored Bill No. 18-0059 in the legislature. This bill recited the information that the election board had forwarded about Mapp's registration in Georgia, the relevant provisions of Sec. 6(b) on eligibility for the office of senator, the district court's decision not to intervene and the need to preserve "the integrity of the legislature." On the basis of all of these allegations, the bill asked the legislature to resolve:
SECTION 1. Kenneth E. Mapp is not qualified to be a member of the 18th Legislature of the Virgin Islands.
SECTION 2. Effective immediately, Kenneth E. Mapp is hereby removed as a member of the 18th Legislature.
Id. at 56. Mapp had notice of this bill's introduction and the allegations it contained.
Sitting as a committee of the whole, the legislature held a hearing on the bill on May 15-16, 1989. The hearing centered on whether Mapp had lost his domiciliary status as a result of his 1987 move to Georgia, his registration to vote there and his participation in the presidential preference primary. Both sides presented testimony and legal argument on that issue to the committee of the whole. In particular, Mapp testified and presented witnesses on his behalf. During the course of the hearing, Lawaetz ruled that the bill was subject to passage by a simple majority under Sec. 713 of the Rules of the 18th Legislature (Rule 713), rather than by a two-thirds majority under Sec. 813 of the Rules (Rule 813).
After closing arguments, the legislature reconstituted in regular session and deliberated on the merits of the bill. Although Lawaetz's earlier advice to the members, as presiding officer, that he interpreted the legislative rules to require only a simple majority vote to adopt this bill had not met objection, Senator Roebuck moved to apply Rule 813 and require a two-thirds affirmative vote for final passage. Lawaetz ruled that motion out of order. Roebuck challenged the chair's ruling, but the members upheld the chair by a 9 to 6 vote. App. at 86-89. This same 9 to 6 majority then voted for final passage. Id. at 90-91. 1 Lawaetz declared the bill enacted and directed Mapp to vacate his office.
Mapp complied with the legislative decision, but he also instituted an action in the territorial court seeking a declaration that Bill No. 18-0059 was not legally passed because the affirmative votes (9) fell short of a two-thirds majority (10) as required by Rule 813. In addition, he sought injunctive relief requiring the legislature to restore him to his seat. He contended that the legislature's failure to comply with Rule 813 violated his constitutional right to due process. He named as defendants all the members who had voted for his removal, including Lawaetz. They have contended throughout that Mapp's action against them is a non-justiciable political question.
The territorial court ruled that it had jurisdiction, that the case was justiciable and that the legislature violated Mapp's constitutional right to due process when it voted to apply Rule 713 instead of Rule 813 to the bill removing Mapp. Lawaetz and the other appellees then filed their appeal to the appellate division of the district court. On June 28, 1989, the appellate division granted them an expedited hearing and a stay of enforcement of the reinstatement order. Then, on July 14, 1989, the district court entered a final judgment which reversed and remanded the case to the territorial court with instructions to vacate its judgment and dismiss the complaint.
In the meantime, the legislature had notified the Governor of the Virgin Islands of the vacancy created by Mapp's removal from office, and he had issued a proclamation directing a special election to fill that vacancy to be held on August 8, 1989. On July 19, 1989, Mapp filed a notice of appeal in this Court and a motion for an expedited hearing on the merits. We entered an order the next day granting Mapp's motion for an expedited hearing, set a briefing schedule and directed that the case be submitted on July 27, 1989 to a panel of this Court.
We have jurisdiction over this appeal from the final order of the district court under 28 U.S.C.A. Sec. 1291 (West Supp.1989). The district court had jurisdiction over the appeal from the territorial court's order pursuant to Sec. 23A of the Revised Organic Act of 1954, as amended. Mapp contends that the territorial court had subject matter jurisdiction pursuant to V.I. Code Ann. tit. 4, Secs. 75-76 (Supp.1988), that the question was justiciable and that the territorial court properly exercised its jurisdiction to declare that passage of the resolution removing him from office by simple majority vote violated his...
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