ST. CROIX — The candidacy lawsuit Supervisor of Elections Caroline Fawkes filed in her official capacity against the Virgin Islands Board of Elections to disqualify Ida Smith’s nomination petition for delegate to Congress cannot proceed unless it is amended to add Smith as a defendant, a Superior Court judge ruled during a hearing today.
Judge Yvette Ross-Edwards further indicated she expects to rule in the interim on whether Fawkes has the capacity to sue on behalf of the government, an issue attorneys argued during today’s hearing.
Discussing Smith’s rights, Ross-Edwards said Smith has a right to appear before the court and enter her own defense separate from the Board of Elections since the outcome of the case will affect her. She gave Fawkes one week to amend her complaint and add Smith as a party.
Attorney Brooke Rutherford, of McChain Hamm & Associates, who represents Fawkes, said after the hearing she would amend the complaint originally filed on October 17 as requested by the court.
Assistant Attorney General Christopher Timmons, acting chief of the VI Department of Justice’s Civil Division, who represents the Board of Elections, said what is important to the defendants is that the election is not affected, noting early voting has already taken place.
“To have the election take a turn in the middle of that, I think would be outrageous,” he said.
Attorney General Gordon Rhea, who attended the hearing, said in a statement it is important that Tuesday’s election takes place without interruption.
“I am pleased with the court’s decision and am confident that the remaining issues can be determined in an orderly fashion after the election without risking disenfranchising the impressive number of citizens who voted early,” Rhea said in a statement, commending Timmons for his “thoughtful presentation.”
Fawkes said after the hearing that candidates can be disqualified up until the certification of the general election results on November 15.
The case could also establish legal precedent when it comes to whether the supervisor of elections has the capacity to sue on behalf of the government.
Ross-Edwards said the issue of whether the supervisor of elections has legal capacity to sue has never been addressed in a VI court.
Fawkes filed a lawsuit October 17 in Superior Court against the Board of Elections to disqualify Smith’s nomination petition for delegate to Congress after the board voted to add Smith to the general election ballot during a meeting on September 4 even though Fawkes determined she did not meet the qualifications established by law for the office.
READ MORE: “Fawkes files lawsuit to disqualify Ida Smith’s nomination petition after ‘illegal’ BOE vote”
Fawkes requested a temporary restraining order, preliminary and permanent injunction, and declaratory relief. An order denying the TRO dated October 31 was entered by the court clerk the same day.
Before getting into the merits of the preliminary injunction request, Ross-Edwards said she intended to address the capacity issue. She allowed Timmons to place his argument on the record first since he argued in the defense’s opposition to Fawkes’ motion for TRO/preliminary injunction that the supervisor lacks capacity to sue on behalf of the government or to retain private counsel to do so.
Timmons said Fawkes lacks statutory power and authority to sue in her official capacity, citing prior case law. He pointed out the Office of the Supervisor of Elections was created by the Legislature of the Virgin Islands.
“It lacks the authority to take any action the Legislature has not sanctioned,” he said about the supervisor’s office.
Timmons said the enabling statute that created the supervisor’s office is silent on the supervisor’s ability to sue or be sued. Since the office is not a separate government instrumentality, he argued it cannot sue or be sued.
“This is a big deal,” he said, stressing that the government would be bound in the future if it is bound by Fawkes’ actions in this case.
Rutherford argued that the Office of the Attorney General would not be able to represent both Fawkes and the Board of Elections, especially after Rhea issued an opinion upon request by the board that Smith was a qualified candidate. She said Fawkes, therefore, had to retain private counsel.
If the court determines Fawkes does not have capacity to bring the complaint, Rutherford said it would be filed by Fawkes in her individual capacity as a voter. In response, Timmons clarified a new lawsuit would have to be filed.
After hearing arguments from both attorneys and reviewing case law they cited to support their arguments, Ross-Edwards said the cited cases did not conclusively resolve the capacity issue before the court. She said, however, it was clear that the Legislature of the Virgin Islands did not exclusively authorize the supervisor of elections or Board of Elections to sue or be sued. Since the cited cases did not provide guidance on the capacity issue, Ross-Edwards said she would issue a written ruling in the coming days.
