Luis v. Dennis, Civil No. 292-1983
| Decision Date | 28 November 1983 |
| Docket Number | Civil No. 292-1983 |
| Citation | 20 V.I. 373 |
| Parties | JUAN LUIS, GOVERNOR OF THE VIRGIN ISLANDS, Plaintiff v. HUGO DENNIS, JR., SIDNEY LEE, WILLIAM HARVEY, BENT LAWAETZ, CLEONE CREQUE-MAYNARD, RUBY SIMMONDS, LILLIANA BELARDO DE O'NEAL, LORRAINE BERRY, ADELBERT BRYAN, VIRDIN BROWN, ELMO ROEBUCK, MILTON FRETT, EDGAR ILES, LLOYD WILLIAMS, and KENNETH MAPP, Constituting the Fifteenth Legislature of the Virgin Islands, Defendants |
| Court | U.S. District Court — Virgin Islands |
Action for declaratory judgment regarding the validity of an Act of the Legislature which added a new statute providing that a majority of all of the members of the Legislature must vote to confirm the appointment of the head of an executive department. The District Court, O'Brien, J., held that since the Act violated the doctrine of separation of powers, it was void.ALAN D. SMITH, ESQ., First Assistant Attorney General (Department of Law), St. Thomas, V.I., for plaintiff
ERIC E. DAWSON, ESQ., Chief Legal Counsel (Fifteenth Legislature of the Virgin Islands), St. Thomas, V.I., for defendant
MEMORANDUM OPINION AND ORDER
This matter is before the Court on an Action for Declaratory Judgment pursuant to 5 V.I.C. §§ 1261-1262 and 28 U.S.C. § 2201. At issue is the validity of Act No. 4836 enacted by the Fifteenth Legislature of the Virgin Islands on June 14, 1983, over the veto of Governor Juan Luis. For the reasons set forth below we find thatAct No. 4836 is in violation of the doctrine of Separation of Powers as embodied in the Revised Organic Act of 1954 and therefore cannot stand.
The legislation in question was first considered and passed by the Legislature as Bill No. 15-0150 on May 9, 1983. It was vetoed by the Governor on May 25, 1983, but shortly thereafter the Legislature overrode the veto with a two-thirds vote. On October 1, 1983, this controversial piece of legislation became effective as Act No. 4836, adding a new section to Title 3 of the Virgin Islands Code. It provides in pertinent part:
The practical effect of Act No. 4836 is to increase the minimum number of affirmative votes necessary to confirm the appointment of the head of an executive department. Since 1936, a majority of a quorum present and voting, or at least five senators, was sufficient to confirm a gubernatorial nomination. Act No. 4836 requires a majority of all the members of the Legislature to vote affirmatively.
The issue presented for the Court's determination is whether, by requiring that an absolute majority of the Legislature give its advice and consent to certain gubernatorial appointments, Act No. 4836 usurps the Governor's power to appoint pursuant to 48 U.S.C. § 1597(c) in violation of the doctrine of Separation of Powers.
A. Separation of Powers Doctrine.
[1] It is not disputed that the doctrine of Separation of Powers is applicable in the Virgin Islands. In Municipality of St. Thomas & St. John v. Gordon, 78 F.Supp. 440 (D.V.I. 1948), the court statedthat the Organic Act of the Virgin Islands divides the Government into three separate departments: the legislative, executive and judicial.1 Id. at 442. See also Government v. Eleventh Legislature, 13 V.I. 53, 83 (D.V.I. 1976). The division of governmental powers among the three branches of government, each of which is separate from the others, and all of which are co-ordinate, is one of the fundamental principles of the American constitutional system.
[2] The importance of the Separation of Powers doctrine has been restated by the Supreme Court on numerous occasions. See, e.g., Buckley v. Valeo, 424 U.S. 1, 118-124 (1975); O'Donoghue v. United States, 289 U.S. 516, 533 (1933); Springer v. Philippine Islands, 277 U.S. 189, 201 (1927); Myers v. United States, 272 U.S. 52 (1926); Massachusetts v. Mellon, 262 U.S. 447, 488 (1922). According to Mellon, supra, the functions of the government under this system are apportioned.
[3] By setting up a tripartite government, the Framers of the Constitution built in a delicate system of checks and balances to safeguard against the encroachment or expansion of one branch at the expense of another. This was clearly expressed in Myers, supra:
The doctr.ine of the separation of powers was adopted by the Convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.
Id. at 293 (Brandeis, J., dissenting).
The Governor urges that under this doctrine the Legislature is precluded from infringing upon the executive power to appoint by expanding the power of advice and consent as envisioned in Act No. 4836. The Legislature, however, contends that it is not attempting to exercise its appointing power,2 or condition the appointing power it has delegated to the Governor; it is merely enacting into law the procedure for giving its advice and consent to appointments of the Governor. Brief of Defendants at 9.
It is undisputed that the Governor has the power to appoint and remove all officers of the executive branch of the Government of the Virgin Islands. 48 U.S.C. § 1591, Revised Organic Act of 1954, § 11. When appointing the heads of the executive branches, however, the Governor must act with the advice and consent of the Legislature. 48 U.S.C. § 1597(c), Revised Organic Act of 1954, § 16(c).
In determining whether Act No. 4836 violates the doctrine of Separation of Powers it is necessary to answer the question whether the power to confirm is a legislative or executive function. Other courts deciding the issue have found that confirmation or rejection of the Governor's appointments is an executive function which has been expressly delegated to the Senate or Legislature.3 Myers v. United States, 272 U.S. 138-39 (1926); Wittier v. Baumgartner, 144 N.W.2d 62, 71 (Sup. Ct. Neb. 1966); Walker v. Baker, 196 S.W.2d 324, 328 (Tex. 1946), 16 C.J.S. Constitutional Law § 168 (1956).
This was also the finding in Bradner v. Hammond, 553 P.2d 1 (Alaska 1976), where the court was faced with a very similar factual situation as that in the case at hand. It found that the appointing power must be an executive function lest the responsibility for carrying out executive duties be diffused and the goal of separation of the branches of the government be defeated. The confirmation power, the court reasoned, is a specific attribute of the appointive power of the executive. Id. at 6-7.
The Court in Springer v. Philippine Islands, 277 U.S. 189 (1927) distinguished the legislative power as the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. "Not having the power of appointment, unless expressly granted or incidental to its powers, the legislature cannot engraft executive duties upon a legislative office, since that would be to usurp the power of appointment by indirection."4 Id. at 202; Camacho v. Civil Service Comm'n, 666 F.2d 1257 (9th Cir. 1982).
The advice and consent power of the Legislature, therefore, represents a permitted invasion by one branch of the government into another. In Walker, supra, this was interpreted to mean that since the Constitution specifies the circumstances under which the Senate may defeat the Governor's appointments, there is an implied prohibition against its power to add to those circumstances. Id. at 328. Similarly, in Wittier, supra, the court found that the Legislature is prohibited by Constitutional provision from appointing officers, either directly or indirectly. Id. at 71.
Such an invasion of the Legislature into the traditionally executive functions of appointment should be strictly construed. Myers, supra at 139. An occasional specific provision conferring upon a given branch of government certain functions, which, by their nature, would otherwise fall within the general scope of the powers of another does not circumvent the purposes of the doctrine of Separation of Powers. Rather, such exceptions serve to emphasize the generally inviolate nature of the system. O'Donoghue v. United States, 289 U.S. 516, 530 (1933).
This brings us to the crux of the controversy. The Court must decide whether the Legislature can properly perform its advice and consent function by requiring that a majority of all 15 legislators vote affirmatively to confirm a gubernatorial appointee or whether this is a usurpation of the executive function in violation of the doctrine of Separation of Powers.
There is no language in the Revised Organic Act outlining how the power of advice and consent is to be exercised over executive nominations. Nor does the legislative history of the Revised Organic Act provide any insight into the intended meaning of advice and consent. S. Rep. No....
To continue reading
Request your trial
-
Territorial Court of Virgin Islands v. Richards
...the common American constitutional method of three separate coordinate and co-equal branches of government. Id.; Luis v. Dennis, 20 V.I. 373, 576 F.Supp. 733, 735 (D.V.I.1983), vacated, 751 F.2d 604 (3d Cir.1984). However, we make clear today that this system as applied to the Virgin Island......
-
Territorial Court of the Virgin Islands v. Richards
...the common American constitutional method of three separate coordinate and co-equal branches of government. Id.; Luis v. Dennis, 20 V.I. 373, 576 F. Supp. 733, 735 (D.V.I. 1983), vacated, 751 F.2d 604 (3d Cir. 1984). However, we make clear today that this system as applied to the Virgin Isl......