Sen. Donna Frett-Gregory and members of the 34th Legislature have demanded an immediate stay of proceedings in former Sen. Steven Payne’s lawsuit against them, claiming in a motion filed Monday that Judge Renee Gumbs Carty was presiding over the case while her term on the bench was expired.
The Legislature is requesting in a separate motion that Gumbs Carty respond by Friday to questions concerning her authority to act in the case from Dec. 1, 2022, when her appointment to the V.I. Superior Court expired, and May 14, when she was designated a senior sitting judge by the chief justice, according to the motion.
It also is asking for information about her compensation during that 5 1/2-month period and whether she was paid the salary of a sitting judge or on a per diem basis.
The stay of any further proceedings in the case, including the issuance of any memorandum opinions or orders by Gumbs Carty, should extend until 10 business days after her response to the queries “to allow sufficient time for the Legislature to consider its options and remedies,” the motion states.
It also objects to Gumbs Carty’s continued jurisdiction over the case “if any action was taken improperly or without full authority.”
The move comes just over a week after Gumbs Carty set a March 14 bench trial date in the case and denied two pending motions to dismiss the suit that were filed in August and October 2022.
At issue is whether the 34th Legislature and then Senate President Frett-Gregory violated the body’s own rules when they voted 14-1 to expel Payne on July 20, 2022, over sexual harassment allegations against him. Payne was the lone nay vote and has denied any wrongdoing. The Democratic Party subsequently selected Angel Bolques Jr. to finish Payne’s term, and he won election that fall to the St. John senator-at-large seat.
Payne’s lawsuit, filed on July 28, 2022, contends that lawmakers may discipline, but not expel, a member. In doing so, they disenfranchised the voters who elected him to serve in the 34th Legislature, his attorney Treston Moore has said.
Payne is joined in the complaint by St. John resident Noellise Powell, who alleges that she was unduly deprived of the services provided by the candidate she voted for.
The Legislature, represented by Joseph B. Arellano, has argued that even if the 34th Legislature broke its own rules, it would be wrong for the court to intervene because that would violate the separation of powers doctrine, a constitutional law that limits any branch of government from exercising the core functions of another.
It has also argued in a Motion to Take Judicial Notice filed Nov. 13 that the Revised Organic Act, which functions as the territory’s constitution, broadly implies that the Legislature has the authority to expel senators, if not explicitly stating such.
Now, the Legislature is calling into question Gumbs Carty’s authority to have issued rulings in the case while her term was apparently expired.
According to Monday’s filing, Superior Court judges are appointed for six years and may continue in office for another 180 days after their term expires unless a successor is appointed sooner. It alleges that in Gumbs Carty’s case, she was confirmed by the Legislature on June 3, 2016, and her term expired on June 3, 2022 — before Payne was expelled by the Senate and before he filed his suit.
Gumbs Carty’s successor, Judge Carol Thomas Jacobs, was confirmed on April 14 — more than six months past the expiration of Gumbs Carty’s initial term, which under the 180-day extension ended on Nov. 30, 2022, the motion states.
“The Legislature is unaware of any authority by which Judge Gumbs Carty could continue to lawfully sit as a Judge after the expiration of her hold-over term on December 1, 2022,” it says, and notes that notwithstanding, she entered five orders in the case between that time and her appointment as a senior sitting judge.
“The Legislature hereby formally OBJECTS in the strongest possible terms to any Orders which may have been issued by Judge Gumbs Carty which were ultra vires, and further OBJECTS to Judge Gumbs Carty’s continued jurisdiction over this case, if any action was taken improperly or without full authority,” the motion states, including bold-face emphasis. Ultra vires refers to actions taken beyond one’s legal power.
The orders included a 13-page memorandum opinion denying the Legislature’s motion to dismiss the case on grounds of mootness, in part because the 34th Legislature no longer exists, having been replaced by the 35th Legislature, that was issued on April 25.
The matter raises “very troubling questions about Judge Gumbs Carty’s authority and jurisdiction over this case during a period of over 5 1/2-months during which time she was issuing various Orders, convening oral argument, and otherwise exercising judicial oversight of this case,” the motion states.
Gumbs Carty had not responded to the motions as of Monday evening, according to the court docket.