Payne v. Fawkes

• Decision Date: 24 September 2014
• Docket Number: Civil Action No. 2014-053,Civil Action No. 2014-055
• 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, Defendants. 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, Defendants.
• Court: U.S. District Court — Virgin Islands

PAUL PAYNE, GLENDALY FELIX,TYRONE HENDRICKSON, ANNETH EVELYNand 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, Defendants.

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, Defendants.

Civil Action No. 2014-053

Civil Action No. 2014-055

DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX

September 24, 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 requests for a permanent injunction and declaratory relief filed by Plaintiffs Paul Payne, Glendaly Felix, Tyrone Hendrickson, Anneth Evelyn, and Nancy Paulina (the "Voter Plaintiffs") on September 7, 2014, and by Plaintiff Senator Alicia "Chucky" Hansen ("Senator Hansen") on September 8, 2014 (collectively, "Plaintiffs").¹ Plaintiffs seek a permanent injunction directing Defendants Caroline Fawkes ("Defendant Fawkes"), as Supervisor of Elections for the Virgin Islands, and the Virgin Islands Joint Board of Elections ("Defendant Joint Board") to place Senator Hansen's name on the ballot for the upcoming November 4, 2014 general election. Plaintiffs base their request for injunctive relief on 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 wil[l]ful failure to file income tax returns . . . and restore[d] her civil rights in all respects." (Dkt. No. 5-6 at 2).²

In addition to Plaintiffs' request for a permanent injunction, Plaintiffs also seek declaratory relief. In this latter regard, Plaintiffs seek an Order from this Court declaring that the Governor's pardon "removes any impediment" under Section 6(b) of the Revised Organic Act to Senator Hansen's eligibility to run for the office of Senator in the Legislature of the Virgin Islands, or to currently serve as a Senator in the Legislature, based on her 2008 convictions for willful failure to file income tax returns. (Dkt. No. 1 at ¶ 8).

For the reasons that follow, the Court will grant Plaintiffs' request for injunctive relief, and enter a permanent injunction directing Defendants to place Senator Hansen's name on the ballot for the upcoming November 4, 2014 general election. Further, the Court will grant Plaintiffs' request for declaratory relief, in part, and enter an Order stating that Governor de Jongh's September 3, 2014 pardon "removes any impediment" under Section 6(b) of the Revised Organic Act to Senator Hansen's eligibility to run for the office of Senator in the Legislature of the Virgin Islands, based on her 2008 tax convictions.

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. 5-2 at 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 upcoming November 4, 2014 general election. (Id. at ¶¶ 2-3). On May 14, 2014, DefendantFawkes 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 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).

In an Opinion entered on August 28, 2014, the Supreme Court found that Senator Hansen's convictions constitute crimes involving moral turpitude "that render[ed] her ineligible to serve in the 31st Legislature," and that Senator Hansen should be "remove[d] . . . from the general election ballot." (Dkt. No. 5-2 at 35-36). In its Order reversing the Superior Court's decision, the Supreme Court directed the Superior Court to "order the Supervisor of Elections to set aside the nomination papers of Alicia 'Chucky' Hansen." (Dkt. No. 5-3 at 3). 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 at 2). By letter dated September 2, 2014, Defendant Fawkes provided Senator Hansen with notice of her disqualification. (Temporary Restraining Order Hearing Ex. 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 at 2). On September 4, 2014, following the issuance of the pardon, Senator Hansen filed new nomination papers. (Dkt. No. 5-1). However, notwithstanding the pardon, and her subsequently filed nomination papers, Defendants refused to recognize Senator Hansen's eligibility to be placed on the ballot for the November 4, 2014 general election. (Dkt. 1 at ¶ 7).

Plaintiffs then filed the instant actions arguing that: (1) 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; (2) the Governor's pardon operated retroactively to cure Senator Hansen's deficient May 2014 nomination papers; (3) Senator Hansen's September 2014 nomination papers were valid because they cured the defect in her May 2014 nomination papers; and (4) the Court should therefore issue an Order requiring Defendants Fawkes and the Joint Board to place Senator Hansen's name on the November 4, 2014 general election ballot. (Id. at ¶¶ 1, 6, 8). Plaintiffs assert that, by not putting Senator Hansen on the ballot, Defendants failed to give effect to Section 6(b) of the Revised Organic Act and violated various constitutional provisions including the Due Process Clause, the Equal Protection Clause, and the First Amendment. (Id. at ¶¶ 1, 7, 25).

The Court heard oral argument on Plaintiffs' request for a Temporary Restraining Order ("TRO") on September 10, 2014.³ The arguments presented by Defendants were in accord withthose offered by Plaintiffs.⁴ By Memorandum Opinion and Order issued on September 12, 2014, the Court entered a TRO directing Defendants Fawkes and the Joint Board to place Senator Hansen's name on the ballot for the November 4, 2014 general election. (Dkt. Nos. 20 [TRO], 21 [TRO Opinion]). Pursuant to Federal Rule of Civil Procedure 65(b), the TRO was entered for fourteen days, to remain in effect through September 26, 2014. (Dkt. No. 20 at 1).

In its September 12 Order, the Court also directed the parties to inform the Court by written notice filed by 5:00 p.m. that same day "whether they request[ed] the opportunity for additional briefing and/or oral argument in this matter." (Id.). The Court further advised that, "in the absence of further written and/or oral submissions from the parties, the Court [would] base its decision regarding a Permanent Injunction and final declaratory relief on the filings currently before the Court and the arguments presented at the [TRO] hearing." (Id.). The parties filed timely submissions advising the Court that no additional briefing or oral argument was necessary. (Dkt. Nos. 22, 23). Presently before the Court, therefore, are Plaintiffs' requests for a permanent injunction and declaratory relief.

I. JURISDICTION

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 Senator Hansen'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. See Thorstenn 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. See Abulkhair...