Justices of the Virgin Islands Supreme Court heard oral arguments about whether former Senator-at-Large Steven Payne was denied due process when the 34th Legislature ousted him in July 2022. The case was sent to the high court after a judge in Superior Court ruled against the Legislature.
Chief Justice Rhys Hodge and Associate Justices Maria Cabret and Ive Swan heard arguments Tuesday morning at the Crown Bay, St. Thomas courthouse. Attorney Treston Moore represented Payne; outside legislative counsel Joseph Arellano argued on behalf of lawmakers. Senate Chief Legal Counsel Amos Carty, Jr. and Senate President Novelle Francis attended the hearing, as did former Senator Clarence Payne — the plaintiff’s brother.
Each side was given 15 minutes apiece, but the time was extended for question-and-answer bouts between the justices and lawyers.
Arellano refuted Payne’s claim that he was denied due process — a 14th Amendment right under the U.S. Constitution — when his fellow lawmakers expelled him in July 2022. The expulsion was introduced as a last-minute amendment as the body considered the findings from an internal ethics review board over allegations of sexual harassment.
The Ethics Committee sent recommendations for a suspension and a reprimand after Payne was accused of sexually harassing a Senate staffer.
Moore argued that as a U.S. territory and under the Revised Organic Act, expelling elected lawmakers is not enumerated as a legislative power. However, the Organic Act did enumerate punitive measures the Legislature could take when members broke the rules.
“They are allowed to do many things under their authority … The one thing they cannot do is expel someone without an enumerating standard,” Moore said.
Arellano said lawmakers were within their prerogative to expel Payne because their language in the Organic Act was expansive enough to include expulsion, even if it did not specifically say so.
“They run their house,” he told the high court.
Cabaret asked Arellano if he thought the Supreme Court panel had authority to rule. She also asked him to explain the difference between Payne’s case and a recent one where former Senate candidates Kevin Rodriguez and Janelle Sarauw fought over ethics and eligibility.
The Legislature’s lawyer said the court was right to rule in the prior case because the parties were contestants for a Senate seat. But Payne held a seat when the ethics challenge arose. Arellano said it was up to the Legislature to have its say.
The chief justice questioned each side on different aspects of the case. Hodge asked Arellano why he thought Payne did not object to being expelled without receiving prior notice of the body’s intention; to Payne’s attorney, Hodge asked whether a late opinion issued by the lower court after the Supreme Court decided to accept the case should be erased from the court’s record.
Neither legal team offered their thoughts to Hodge’s questions.
Swan asked if the language of the Organic Act was broad enough to allow lawmakers to expel one of their elected members.
It may take several weeks before the high court issues its written opinion.
Editor’s Note: This story has been corrected to say that the right to due process is listed under the 14th Amendment of the U.S. Constitution. An earlier version of the story incorrectly cited it as a Sixth Amendment right.
