Payne v. Fawkes

• Decision Date: 12 September 2014
• Docket Number: Civil Action No. 2014-055,Civil Action No. 2014-053
• Citation: Payne v. Fawkes, Civil Action No. 2014-053, Civil Action No. 2014-055 (D. V.I. Sep 12, 2014)
• Parties: PAUL PAYNE, GLENDALY FELIX, TYRONE HENDRICKSON, ANNETH EVELYN and NANCY PAULINA, Plaintiffs, v. CAROLINE FAWKES, in her Individual Capacity, and in her Capacity as Supervisor of Elections for the U.S.V.I., and the JOINT V.I. BOARD OF ELECTIONS, Defendant. SENATOR ALICIA "CHUCKY" HANSEN, Plaintiff, v. CAROLINE FAWKES, in her Individual Capacity, and in her Capacity as Supervisor of Elections for the U.S.V.I., and the JOINT V.I. BOARD OF ELECTIONS, Defendant.
• Court: U.S. District Court — Virgin Islands

PAUL PAYNE, GLENDALY FELIX, TYRONE HENDRICKSON,ANNETH EVELYN and NANCY PAULINA, Plaintiffs, v. CAROLINE FAWKES, in her Individual Capacity, and in her Capacity as Supervisor

of Elections for the U.S.V.I., and the JOINT V.I. BOARD OF ELECTIONS, Defendant.

SENATOR ALICIA "CHUCKY" HANSEN, Plaintiff, v. CAROLINE FAWKES, in her Individual Capacity, and in her Capacity as Supervisor

of Elections for the U.S.V.I., and the JOINT V.I. BOARD OF ELECTIONS, Defendant.

Civil Action No. 2014-053

Civil Action No. 2014-055

DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX

September 12, 2014

Attorneys:

Lee J. Rohn, Esq.,

Rhea Lawrence, Esq.,

St. Croix, U.S.V.I.

For the Plaintiffs

Carol Thomas-Jacobs, Esq.,

St. Croix, U.S.V.I.

For the Defendants

MEMORANDUM OPINION

Lewis, Chief Judge

THIS MATTER comes before the Court on two separate "Complaint[s] and Emergency Application[s] for Temporary Restraining Order, Preliminary Injunction, Permanent Injunction, and Declaratory Relief," filed by PlaintiffsPaul Payne, Glendaly Felix, Tyrone Hendrickson, Anneth Evelyn, and Nancy Paulina(the "Voter Plaintiffs") on September 7, 2014 in Civil ActionNo. 14-cv-0053, and by Plaintiff Senator Alicia "Chucky" Hansen ("Senator Hansen") on September 8, 2014 in Civil ActionNo. 14-cv-0055(collectively, "Plaintiffs").¹Plaintiffs seek a "temporary, preliminary and permanent injunction" ordering DefendantsCaroline Fawkes, as Supervisor of Elections for the Virgin Islands, and the Virgin Islands Joint Board of Elections("Joint Board") to place Senator Hansen's name on the ballot for the upcoming November 4, 2014 general election.Plaintiffs' request for injunctive relief is grounded in a "Pardon of Alicia 'Chucky' Hansen" issued by John P. de Jongh, Jr., Governor of the Virgin Islands, on September 3, 2014, in which Governor de Jongh "pardon[ed] the convictions of Alicia 'Chucky' Hansen for the crimes of willful failure to file income tax returns . . . and restore[d] her civil rights in all respects."(Dkt. No. 5-6).²

In addition to Plaintiffs' request for injunctive relief, Plaintiffs also seek declaratory relief.In this regard, Plaintiffs seek an Order from this Court declaring that "the Pardon issued by the Governor of the Virgin Islands to Senator Hansen is valid and removes any impediment to Senator Hansen running for re-election in this election cycle under Section 6(b) of the Revised Organic Act; or from serving as a current V.I. Senator; or from running for re-election in this and future elections based on the conviction at issue[.]"(Dkt. No. 1 at ¶ 8).

The Court heard oral argument on Plaintiffs' request for a Temporary Restraining Order("TRO") on September 10, 2014.³The arguments presented by Defendants were in accord with those offered by Plaintiffs.⁴For the reasons set forth below, the Court will grant Plaintiffs' request for a TRO and issue an Order directing Defendant Fawkes and the Joint Board to place Senator Hansen's name on the ballot for the November 4, 2014 general election.

I.BACKGROUND

In 2008, Senator Hansen was convicted of three misdemeanor counts of willful failure to file income tax returns under the Virgin Islands Code, 33 V.I.C. § 1524.(Dkt. No. 1 at ¶ 2;Dkt.No. 5-2at 3).Notwithstanding her convictions, Senator Hansen was certified as a candidate and was elected to serve in both the 29th and 30th Legislatures of the Virgin Islands in 2010 and 2012, respectively.(Dkt. No. 1 at ¶ 45).

In May 2014, Senator Hansen was again certified to be on the ballot—this time, for the November 4, 2014 general election.(Id.at ¶ 2).On May 14, 2014, Defendant Fawkes informed voter Adelbert M. Bryan("Bryan"), who objected to Senator Hansen's certification, that Defendant Fawkes had examined Senator Hansen's nomination papers and determined that "she meets the qualifications established by law for public office as a senator."(Id.at ¶ 3).On May 19, 2014, Bryan filed a pro se petition in the Superior Court of the Virgin Islands alleging that Senator Hansen was "ineligible to hold public office and prohibited from being a member of the Virgin Islands Legislature" because her convictions for willful failure to file taxes constituted "crime[s] of moral turpitude" which disqualified her as a candidate under Section 6(b) of the Revised Organic Act, 48 U.S.C. § 1572(b).(Id.at ¶ 12).Following the Superior Court's dismissal of Bryan's petition, he appealed to the Supreme Court of the Virgin Islands.(Id.at ¶ 17).

On August 28, 2014, the Supreme Court found that Senator Hansen's convictions constituted crimes involving moral turpitude that rendered her ineligible to serve in the Legislature.(Dkt. No. 5-2at 35-36).In reversing the Superior Court's Order, the Supreme Court directed the Superior Court, on remand, to grant Bryan's petition and "order the Supervisor of Elections to set aside the nomination papers of Alicia 'Chucky' Hansen."(Dkt. No. 5-4).Consequently, on August 29, 2014, the Superior Court ordered Defendant Fawkes, as Supervisor of Elections, to "set aside the nomination papers of Alicia 'Chucky' Hansen, and remove the name of Alicia 'Chucky' Hansen from the general election ballot."(Dkt. No. 5-5).By letterdated September 2, 2014, Defendant Fawkes provided Senator Hansen with notice of her disqualification.(TRO HearingEx. 4).

On September 3, 2014, Governor de Jongh issued a pardon to Senator Hansen which states, in pertinent part:

NOW, THEREFORE, by the powers vested in me by Section 11 of the Revised Organic Act of 1954, as amended, and for the aforementioned reasons, I, John P. de Jongh, Jr., Governor of the United States Virgin Islands, do hereby pardon the convictions of Alicia "Chucky" Hansen for the crimes of wil[l]ful failure to file income tax returns under V.I. Code Ann. tit. 33, § 1524 and restore her civil rights in all respects.

(Dkt. No. 5-6).Following the issuance of the pardon, Senator Hansen filed her nomination papers dated September 4, 2014.(Dkt. No. 5-1).However, notwithstanding the pardon, Defendants have refused to recognize Senator Hansen's eligibility to be placed on the ballot for the November 4, 2014 general election.(Dkt. 1 at ¶ 7).Consequently, Plaintiffs filed the instant actions arguing: that the Governor's pardon restored Senator Hansen's civil rights, which made her eligible to be a member of the Legislature under Section 6(b) of the Revised Organic Act; that Senator Hansen filed new, post-pardon nomination papers which served to cure her earlier disqualification; and that the Court should therefore issue an Order requiring Defendants Fawkes and the Joint Board to place Senator Hansen's name on the November 2014 general election ballot.(Id.at ¶ 8).Plaintiffs assert that by not putting Senator Hansen on the ballot, Defendants are not giving effect to Section 6(b) of the Revised Organic Act and have violated various constitutional provisions including the Due Process Clause, the Equal Protection Clause, and the First Amendment.(Id.at ¶¶ 1, 7, 25).

II.APPLICABLE LEGAL PRINCIPLES

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331— federal question jurisdiction—because Plaintiffs allege that Defendants' refusal to put SenatorHansen's name on the November 4, 2014 general election ballot violates the Revised Organic Act of 1954, 48 U.S.C. §§ 1541-1645, and the United States Constitution.SeeThorstenn v. Barnard, 883 F.2d 217, 218(3d Cir.1989)("Since plaintiffs asserted a violation of a federal statute, viz., the Organic Act, the claims if brought in a United States District Court would have been cognizable under 28 U.S.C. § 1331.Subject matter jurisdiction in the district court for the Virgin Islands, therefore, existed pursuant to Section 22 of the Revised Organic Act of 1954[.]");Bell v. Pleasantville Hous. Auth., 443 F. App'x 731, 735(3d Cir.2011)(opining that district court had federal question subject matter jurisdiction over action on ground that plaintiff's claim arose under the Constitution).This Court also has subject matter jurisdiction pursuant to 28 U.S.C. § 1343—jurisdiction over civil rights actions—because Plaintiffs have alleged that Defendants' actions have deprived them of their civil rights pursuant to 42 U.S.C. § 1983.SeeAbulkhair v. Liberty Mut. Ins. Co., 441 F. App'x 927, 930(3d Cir.2011)(noting that when a plaintiff alleges a deprivation of his civil rights under 42 U.S.C. § 1983, jurisdiction exists "under 28 U.S.C. § 1331, the general federal question statute, and under 28 U.S.C. § 1343(a)(3), the jurisdictional counterpart to 42 U.S.C. § 1983.").

With respect to Plaintiffs' request for a TRO, Plaintiffs must demonstrate:

(1) a likelihood of success on the merits; (2) that [they] will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief.

Minard Run Oil Co. v. United States Forest Serv., 670 F.3d 236, 249-50(3d Cir.2011)(citingKos Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 708(3d Cir.2004)).If Plaintiffs are unable to establish that each element is in their favor, an injunction should not issue.Ferring Pharms., Inc. v. Watson Pharms., Inc., 2014 U.S. App. LEXIS 16426, at *11(3d Cir.Aug. 26, 2014)(citingNutraSweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151, 153(3d Cir.1999)).

III.DISCUSSION

Plaintiffs request a TRO "directing Caroline F. Fawkes and the Joint Election Board to place Senator Alicia 'Chucky' Hansen on the upcoming election ballot[.]"(Dkt. No. 1 at ¶ 1).Not only did Defendants offer no opposition to the entry of a TRO, Defendants made essentially the same arguments as Plaintiffs and requested the same relief at the TRO hearing.As discussed below, the Court finds that Plaintiffs have made the necessary showing on each of the four factors for injunctive relief under Rule 65 and, accordingly, will enter a TRO.

A.Likelihood of...