ST. CROIX — The Virgin Islands Supreme Court on Tuesday rejected Governor Albert Bryan Jr.’s claim that the Senate’s restructure of the VI Water and Power Authority’s governing board in 2021 was unconstitutional, according to the opinion of the Supreme Court.
The Supreme Court upheld a Superior Court ruling from March 8, 2023 that the Senate’s amendment restructuring the WAPA governing board does not violate the separation of powers doctrine and is a valid exercise of legislative authority.
Senate Majority Leader Kenneth Gittens, in a statement issued Tuesday, said the long and unnecessary battle between the Legislature and the Bryan/Roach administration has ended now that the Supreme Court has upheld the ruling allowing for the reorganization of WAPA’s governing board.
“This is a victory on behalf of the people of the Virgin Islands, and going forward all board members must be appointed to manage the affairs of the Authority per Act 8472,” Gittens, one of the primary sponsors of the measure, said in a statement. “Both the Superior and Supreme Court have now ruled that the Legislature acted fully within its authority.”
Gittens said his colleagues united for real reform at WAPA by voting for legislation that requires the utility’s board be composed of individuals with greater expertise in energy, technology, economics, and finance. He noted WAPA could not immediately implement this change because the matter was brought before the Superior Court by the governor.
The measure restructuring the WAPA board, Bill No. 34-0026 (Act No. 8472), was proposed by former Senator Janelle Sarauw. The other sponsors besides Gittens were Senators Marvin Blyden, Samuel Carriόn, Alma Francis Heyliger, Donna Frett-Gregory, and Javan James Sr., as well as former Senator Kurt Vialet. Former Senator Genevieve Whitaker was a co-sponsor. The Legislature approved the measure during legislative session on May 4, 2021. Bryan vetoed it on May 19, 2021.
Act No. 8472 became law on August 8, 2021 when the Legislature unanimously voted to override the governor’s veto of the bill, which reduced the number of WAPA’s board members to seven from nine, established minimum criteria to serve on the board, and eliminated two out of three Cabinet-level governmental members while designating the director of the VI Energy Office as the governmental member.
The VI Department of Justice subsequently filed a complaint against WAPA in Superior Court on behalf of Bryan, who alleged various violations of the Revised Organic Act of 1954 by Act No. 8472 and sought injunctive relief and declaratory judgment. After the Superior Court determined the act was not unconstitutional, Bryan appealed to the Supreme Court.
Attorneys representing the governor began arguing their case before the Supreme Court March 12 on St. Thomas.
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On appeal, Bryan argued that, in enacting Act No. 8472, the Legislature “intentionally, purposefully, and inorganically encroached on the province of the executive by decreasing the governor’s supervision and control of the board by reducing the number of Cabinet members that served at his pleasure from three out of nine board members ... [and] by directly appointing the director of the Energy Office to the board,” according to the Supreme Court’s opinion. Bryan further concluded that the Act violated the separation of powers doctrine because it removed board members — a right reserved to the governor by the ROA.”
Deputy Attorney General Ian Clement began arguing before the Supreme Court on March 12 that Act No. 8472 tipped balance to the Legislature too far, violating separation of powers, and affecting the governor’s ability to carry out his duties. He continued arguing the case on March 18.
In his appeal, Bryan argued the Superior Court erred when it failed to find the act was ultimately unconstitutional, and that the Superior Court abused its discretion by lifting the preliminary injunction and denying his motion for permanent injunction and declaratory relief. He, therefore, requested the Supreme Court to vacate the Superior Court’s March 8, 2023 order, find the Act violates the separation of powers doctrine, and grant his request for permanent injunction and declaratory relief.
The Supreme Court agreed with the lower court’s finding that WAPA, a public corporation and autonomous governmental instrumentality, resides in the executive branch, but that the executive branch is limited in its control over WAPA, unlike pure executive-level agencies. Given that the separation of powers arguments are entirely premised on the incorrect assumption that WAPA is a purely executive agency and failed to take account the Legislature’s intent of keeping WAPA autonomous, the Supreme Court found that the arguments must fail. The Supreme Court agreed with the Superior Court’s finding that the Legislature did not infringe upon the governor’s appointment powers by enacting Act No. 8472.
The Supreme Court concluded that the Superior Court did not err when it found that Act No. 8472 did not violate the separation of powers doctrine, that the Superior Court did not err when it denied Bryan’s request for declaratory judgment, and that the Superior Court did not abuse its discretion by denying Bryan’s request for a permanent injunction and lifting the preliminary injunction order. The Supreme Court affirmed the Superior Court’s March 8, 2023 memorandum opinion and order.
