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Government of Virgin Islands and Cyril E. King v. Eleventh Legislature of Virgin Islands and Senator

decided: June 3, 1976.

GOVERNMENT OF THE VIRGIN ISLANDS AND CYRIL E. KING, GOVERNOR OF THE VIRGIN ISLANDS
v.
ELEVENTH LEGISLATURE OF THE VIRGIN ISLANDS AND SENATOR AND PRESIDENT OF THE LEGISLATURE ELMO D. ROEBUCK, SENATOR AND VICE PRESIDENT OF THE LEGISLATURE BRITAIN H. BRYANT, SENATOR AND LEGISLATIVE SECRETARY ERIC E. DAWSON, SENATOR HECTOR L. CINTRON, SENATOR OTIS L. FELIX, SENATOR ROGER C. HILL, SENATOR FRITZ E. LAWAETZ, SENATOR JOHN L. MADURO, SENATOR CLAUDE A. MOLLOY, SENATOR AND CHAIRMAN OF THE FINANCE COMMITTEE EARLE B. OTTLEY, SENATOR JEAN A. ROMNEY, SENATOR NOBEL B. SAMUEL, SENATOR LLOYD L. WILLIAMS AND EXECUTIVE SECRETARY PATRICK N. WILLIAMS, APPELLANTS



Appeal from the District Court of the Virgin Islands, Division of St. Thomas.

Van Dusen, Adams and Rosenn, Circuit Judges.

Author: Van Dusen

Van Dusen, Circuit Judge.

This case presents for resolution a dispute between the Governor of the Virgin Islands and the Eleventh Legislature of the Virgin Islands over the nature and extent of the Governor's veto power. We affirm the district court's declaratory judgment in favor of the Governor.

Near the end of June 1975, the Legislature adopted three appropriations bills,*fn1 each bill containing several items of appropriation. These bills were duly presented to the Governor on June 30 and were signed by him on July 7 and 8. However, as authorized by § 9(d) of the 1954 Revised Organic Act of the Virgin Islands, 48 U.S.C. § 1575(d), the Governor appended to the bills at the time of signing them a statement of the items or parts or portions of the bills to which he objected. Section 9(d) provides that "the items, or parts or portions thereof, so objected to shall not take effect." This power exercised by the Governor is commonly referred to as an item veto.*fn2 On July 14, the Legislature reconsidered the items or portions objected to by the Governor and reapproved them by more than a two-thirds margin. The Legislature then sent a message to the Governor, stating that it had overridden his appended objections pursuant to § 9(d).

On July 28, 1975, the Attorney General of the Virgin Islands filed in the district court, on behalf of the Government of the Virgin Islands and the Governor, a two-count complaint against the Legislature, thirteen legislators and the Executive Secretary of the Legislature. The first count sought injunctive relief and a declaration that the Legislature's purported override of the Governor's veto of the items objected to by him was without force or effect. The second count dealt with a wholly distinct matter -- whether an act, passed by the Legislature over the Governor's veto pursuant to its recognized authority, impermissibly interferes with executive powers. In its answer, the Legislature denied the material allegations in each of the two counts of the complaint. Also the answer challenged the manner in which the Governor used his item veto power and sought a declaratory judgment that a proposal by the Governor to impound funds appropriated by and to the Legislature would be illegal.

The plaintiffs' first cause of action was heard on August 4, 1975, and on that day the district court delivered an oral ruling, holding that § 9(d) did not authorize the Legislature to override the item objections of the Governor which are appended to an approved appropriation bill. The district court entered an order*fn2a to that effect on August 7, in which it determined that there is no just cause for delay and expressly directed that final judgment be entered on its decision determining the issue raised by count I of the complaint. Under F.R. Civ. P. 54(b) and 28 U.S.C. § 1291, we have jurisdiction on appeal of the August 7 order. We do not have jurisdiction of, and we do not discuss, any of the other issues raised by the parties to this appeal.

I. Standing

Before proceeding to the merits of the issue before us, we address the question of the plaintiffs' standing. In Coleman v. Miller, 307 U.S. 433, 83 L. Ed. 1385, 59 S. Ct. 972 (1939), the Supreme Court held that it had jurisdiction to review a claim by 20 state senators that the tie-breaking vote cast by the state's Lieutenant Governor did not constitute an effective approval of an amendment to the Federal Constitution by that state legislature.

"Here, the plaintiffs include twenty senators, whose votes against ratification have been overridden and virtually held for naught although if they are right in their contentions their votes would have been sufficient to defeat ratification. We think that these senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes."

307 U.S. at 438. In the instant case, the Governor's stake in this litigation is identical with the stake of the 20 senators in Coleman. We conclude that the Governor has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination. . . ." Baker v. Carr, 369 U.S. 186, 204, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962).*fn3

In its answer, the Legislature asserted that the Government of the Virgin Islands was improperly named as a party plaintiff. Since this question was not pressed on appeal of the August 7 order, and since we are convinced that the Governor himself has standing and that, therefore, there is a case or controversy, we need not decide the propriety of naming the Government of the Virgin Islands as a party plaintiff in such a case.

II. Merits

Section 9(d) of the Revised Organic ...


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