Creque v. Luis
| Decision Date | 04 September 1985 |
| Docket Number | Civ. No. 1985/212. |
| Citation | 616 F. Supp. 843 |
| Parties | Margaret L. CREQUE, and Benjamin Banks, Petitioners, v. Hon. Juan LUIS, Victor G. Schneider, Stephanos O'Reilly, Cecil George, Willem Westerbaan and John Harvey, Respondents. |
| Court | U.S. District Court — Virgin Islands |
Edith L. Bornn and David A. Bornn, Charlotte Amalie, St. Thomas, V.I. for petitioners.
Leroy Mercer, Dept. of Law, Charlotte Amalie, St. Thomas, V.I., for Juan Luis.
Samuel H. Hall Jr., Charlotte Amalie, St. Thomas, V.I. for respondents Schneider, O'Reilly, George, Westerbaan and Harvey.
THIS CASE is before the Court on the application of the plaintiffs Margaret L. Creque, ("Creque"), and Benjamin Banks, ("Banks"), for preliminary and permanent injunctive relief. It was consolidated for hearing purposes with Caribbean Energy Co., Inc. v. South Shore Alumina, Inc. et al., Civil No. 1985/202 and General Engineering Corp. v. V.I. Water and Power Authority, Civil No. 1985/182. After a hearing, advanced for a final hearing on the merits on the issues discussed in this opinion, the Court made Findings of Fact and Conclusions of Law which granted permanent injunctive relief to Creque and Banks barring any interference with their rights and obligations as members of the board of the V.I. Water and Power Authority ("WAPA"). We held that they were legal members of the board, and we further ordered that any action taken by WAPA or its committees during the time Creque and Banks were barred from participation would be without legal effect.
Because the decision herein is precedential, a written opinion is being issued.
Both Creque and Banks were confirmed by the Legislature for terms on the WAPA board effective May 5, 1981, she for a one year term and he for a three year term. Although Creque was also renominated for a full three year term, the Legislature never acted on the renomination. After the expiration of their terms, they both continued to sit as board members and participate in board decisions. On May 23, 1985, both of them were present when the WAPA board met to consider a proposal from Caribbean Energy Co., Inc. to supply power and water to WAPA for resale to consumers on St. Croix. By a vote of a majority of the board members present, such a proposal was accepted and the board chairman was authorized to sign an agreement which embodied the proposal. This he did immediately after the meeting. Both Creque and Banks supported the agreement with Caribbean Energy Co., Inc., and Creque placed her signature on the document as secretary.
The agreement did not meet with favor from the Governor, Hon. Juan Luis.
Between May 23, 1985 and August 8, 1985, board members were subjected to heavy pressure from the Governor and others, seeking board approval of an arrangement with South Shore Alumina, Inc. for the supply of water and power on St. Croix. All parties agree that WAPA could not have two contracts for the supply of water and power. South Shore Alumina, Inc. is a Virgin Islands corporation whose principals are prominent St. Croix natives and/or residents. Caribbean Energy Co., Inc. is a wholly owned subsidiary of Donaldson, Lufkin and Jenrette, a large financial and investment firm based in New York.
Creque and Banks opposed the arrangement with South Shore, on grounds a contract already existed with Caribbean Energy Co., Inc. After their opposition to South Shore was expressed, they were informed by the Governor's acting attorney general on August 8, 1985, that they were not validly sitting as WAPA board members by reason of the expiration of their terms. On the same day, the WAPA board conducted a meeting. Creque and Banks were not permitted from that time forward to participate in the meeting as members of the board. The Governor, pursuant to his authority under 30 V.I.C. Section 103, had replaced the designated governmental members with Messrs. O'Reilly, Schneider and George, who are members of his administration. With their votes now dominant in the absence of Creque and Banks, O'Reilly was elected chairman of the WAPA board.
This action resulted, and the Court granted the motion of Creque and Banks to consolidate the hearing with a trial on the merits pursuant to Fed.R.Civ.P. 65(a)(2).
The central issue we must decide is whether Creque and Banks, whose terms had expired, continued to validly hold their seats pending appointment and confirmation of their respective successors. The parties agree that no successors have been nominated and confirmed. To decide this issue, the Court must decide whether 30 V.I.C. Section 103(a) or 3 V.I.C. Section 65a applies to WAPA board members who hold over after expiration of their terms. A discussion of the history of each of these sections is required. Title 30, Virgin Islands Code, Section 101 et seq. created WAPA in 1964, as an autonomous instrumentality of the Government of the Virgin Islands, having a personality and legal existence separate and apart from the Government of the Virgin Islands. (Section 103(a) and (b)). It took the form of a public corporation with a perpetual existence, to be governed by a Governing Board comprised of both governmental and non-governmental members. The non-governmental members were appointed by the governor subject to the advice and consent of the Legislature. Contained within the section providing for appointment of non-governmental members was this language:
Each appointed member shall serve until the appointment and qualification of his successor. Section 103(a)
In 1978, the Legislature adopted, and the governor signed, legislation amending Section 103(a) and making other changes in the full section. The only change pertinent to this case was the substitution of the following language for that cited above in the original statute:
... provided, however, that each member shall serve until the appointment and confirmation of his successor.
Act No. 4108, March 14, 1978, Session Laws, 1978, p. 42.
Again, in 1980, the Governor sought to reorganize the Governing Board of WAPA and he sent to the Legislature a bill to accomplish that effect. Included in the proposed legislation, which was adopted by the Legislature and then signed by the Governor, was a reaffirmation of the language contained in the 1978 legislation and cited immediately above. Act. No. 4497, October 23, 1980, Session Laws, 1980, p. 224.
On each of the occasions when Section 103(a) was amended, in 1978 and 1980, the present governor was territorial chief executive.
In 1974, the Legislature approved and the governor signed, legislation creating 3 V.I.C. Section 65a, which was included in the general statutory provisions dealing with departments and agencies of the Virgin Islands government. Act. No. 3554, April 10, 1974, Session Laws, 1974, p. 80.
Section 65a, as pertinent to our consideration, states:
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General Engineering Corp. v. Virgin Islands Water and Power Auth.
...WAPA board, brought against the Governor and various members of his administration and the WAPA board. Creque and Banks v. Hon. Juan Luis, et al, 616 F.Supp. 843 (D.V.I. 1985). We consolidated this matter with the two cases described below, and held a hearing advanced, as to this claim, for......
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Creque v. Luis
...for injunctive relief against interference with their WAPA board membership status by Governor Luis. Creque v. Luis, No. 1985/212 (D.V.I.1985), 616 F.Supp. 843. The governor now appeals that decision to this WAPA was created by statute in 1964, 30 V.I.C. Sec. 103, and is an autonomous gover......