IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS & ST JOHN
***************
ALBERT BRYAN JR in his official )
capacity as Governor of the Virgin Islands )
and the GOVERNMENT OF THE VIRGIN ) CASE NO ST 2021 CV 00045
ISLANDS )
)
Plaintiffs ) ACTION FOR DECLARATORY
vs ) RELIEF TEMPORARY
) RESTRAINING ORDER
VIRGIN ISLANDS GOVERNMENT ) ACTION FOR DECLATORY
HOSPITAL AND HEALTH FACILITIES ) JUDGMENT AND INJUNCTIVE
CORPORATION inclusive of its Board of ) RELIEF
Directors and Directors of the Distnct )
Governing Boards for the Districts of St )
Thomas St John and St Croix, )
)
“MM
2021 VI Super 52U
MEMORANDUM OPINION AND ORDER
{[1 THIS MATTER is before the Court on Plaintiff’s Albert J Bryan Jr in his capacity as
Governor of the Virgin Islands, (hereinafter “Governor Bryan”) verified complaint for declaratory
relief, temporary restraining order, preliminary injunction and permanent injunction filed on
January 28 2021, and the stipulation of the parties enjoining the Defendant, the Board of the
Government Hospital and Health Facilities Corporation and its District Governing Boards from
implementing Act no 8438 filed with the Court on April 19 2021
{[2 The Court initially denied the request for a temporary restraining order and set this matter
for hearing on April 20, 2021 ' Despite the Court granting the stipulation entered by the parties,
Governor Bryan argued the need for the Court to rule on the issue as to whether Act No 8438
violates the Revised Organic Act
I FACTS
113 In 1994 Act No 6012 created the Virgin Islands Government Hospital and Health
Facilities Corporation (hereinafter the Corporation ) The Corporation was established with a
I The hearing was initially set for April 19, 2021 but was continued by the Court after an oral request of the parties
was made on April 16, 2021 during a Zoom status conference
2021 VI Super 52U
GVI v VI Gov’t Hospital and Health Factlmes
Case No ST 2021 CV 00045
Memorandum Opinion and Order
Page 2 of 6
two tiered governing system the Board of the Corporation (hereinafter the Board ) and two
District Governing Boards (hereinafter District Boards ’) The Board is charged with the
formulation of health policy and planning for health care delivery at the territorial level, and with
coordination of hospital policy, planning and decisrons between the two districts to ensure efficient
and coordinated hospital policy direction between the districts
114 The District Boards are charged with the formulation and determination of hospltal policy
and planning for their respective districts consistent with territorial policy established by the
Board Under Act No 6012, all three of the boards were comprised of members the Governor
could appoint and remove for cause
15 On July 14 2020 Bill No 33 0343 was introduced in the Virgin Islands Legislature The
purpose of the bill was a restructuring of the governing boards of the Corporation Under the bill,
the Board was reduced from fifteen to thirteen members and they would no longer all be appointed
by the Governor Five members would represent the District Board of St Croix, five members
would represent the District Board of St Thomas St John, and the final three spots would be filled
by members of the Governor s cabinet The Director of Property and Procurement, the Director of
the Office of Management and Budget or the Commissioner of Finance and one additional cabinet
member chosen by the Governor
116 The non Cabinet members would be comprised of two doctors elected by their
representative members of the District Boards two nurses, two attorneys, two Certified Public
Accountants, and two engineers or architects, one selected from each respective District Board
117 Bill No 33 0343, as introduced, sought to eliminate the Govemor’s power to remove
members for cause by deleting Title 19, Virgin Islands Code, Section 243(h)
118 Bill No 33 343 also sought to restructure the District Boards in a similar fashion Under
Act 6012, the District Boards were comprised of nine members appointed to serve by the
Governor Bill No 33 0343 changed the District Boards to consist of nine members; two doctors
elected by their union, the Association of Hospital Employed Physicians, one nurse elected by the
Virgin Islands Nurses Association, one attorney elected by the Virgin Islands Bar Association, on
member elected by the Virgin Islands Board of Accountancy, and one engineer or architect elected
by the Virgin Islands Board of Architects, Engineers and Land Surveyors The final three members
of the District Boards will be appointed by the Governor, however none of the members appointed
by the Governor are permitted to serve on the Board of the Corporation Furthermore, one of the
three appointees in each district must be a member of the Virgin Islands Chamber of Commerce,
not more than three of the non elected members of each District Board may be employees of the
Government of the Virgin Islands, and in the event of a vacancy caused by a professional
organization 5 failure to name a board member, the District Board itself may name a new interim
member to fill the position Like the Board, Bill No 33 0343 eliminated the Governor 5 power
remove any members of the District Boards for cause
2021 VI Super 52U
G V] v VI Gov’t Hospital and Health Faaltttes
Case No ST 2021 CV 00045
Memorandum Opinion and Order
Page 3 of 6
119 Bill No 33 0343 was approved by the Virgin Islands Legislature on September 25 2020
and sent to Governor Bryan for his signature on October 15, 2020 Governor Bryan exercised his
veto power on October 26, 2020 and the bill was sent back to the legislature where his veto was
overridden Bill No 33 0343 was formally adopted as Act No 8438 on December 30 2020
1110 On January 28, 2021, Governor Bryan filed a verified complaint requesting relief pursuant
to V 1 CODE ANN tit 5 § 1261 a declaratory judgment that Act No 8438 is unconstitutional
inorganic, and therefore invalid under the Revised Organic Act, and pursuant to V 1 CODE ANN
tit, 5 § 1268, injunctive relief preventing implementation of Act no 8438 The Court denied
Governor Bryan’s motion for a temporary restraining order on February 9, 2021 and the
Corporation agreed to stipulate to the conditions of the requested preliminary injunction which the
Court approved on April 22, 2021 Hearings were held on March 2 and April 16, 2021 with a bench
trial occurring on April 20, 2021
II ANALYSIS
A The constitutional principle of the separation of powers applies to the Virgin
Islands through the Revised Organic Act
1111 The first question before the Court is whether the separation of powers established in the
U S Constitution has been applied to the U S Virgin Islands through the Revised Organic Act
The court in Munzczpallty ofSt Thomas & St John v GordonZ held that the Revised Organic Act
does apply the separation of powers principle to the US Virgin Islands The issue in Gordon
involved the appointment of members to the Municipal Police Commission The Municipal
Council had changed the law allowing the Council to appoint two of the members while the
Governor appointed 2 other members Governor Bryan brought suit arguing that this violated the
separation of powers and was therefore invalid under the Revised Organic Act The Court in
Gordon determined that the separation of powers was applied to the US Virgin Islands by
comparing the Revised Organic Act of the Virgin Islands to that of the Philippines 3
1112 In Sprmger v thlzppme Islands, the United States Supreme Court ruled that the separation
of powers principal applied to the Philippines 4 The Court in Gordon found that based on the
similarities between the powers granted to the legislature and the executive in the Organic Acts of
both the Philippines and the V I , the Supreme Court ruling in Sprmger would have the same force
and effect in interpreting the question under the Organic Act of the Virgin Islands 5 This means
that the principle of separation of powers applies to the Virgin Islands through the Revised Organic
Act With this established, the primary issue in the case becomes whether Act No 8438 violates
: Mumczpallt) 0fSt Thomas & St John v Gordon 78 F Supp 440 443 (D V I 1948)
[d
4 Springer v Government 0fPhtltppme Islands 277 U S 189 201 (1928)
5 Mzmzczpaltty 0fSt Thomas & St John v Gordon
78 F Supp 440 443 (D V I 1948)
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G VI v VI Gov’t Hospital and Health Faczltttes
Case No ST 2021 CV 00045
Memorandum Opinion and Order
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the Revised Organic Act and is therefore invalid
B Act No 8438 violates the separation of powers by eliminating the Governor’s
removal power and is therefore inorganic and invalid
1113 James Madison, on the floor of the First Congress, said if any power whatsoever is in its
nature Executive, it is the power of appointing, overseeing, and controlling those who execute the
laws ’6 The landmark case regarding the executive branch and its power of appointment and
removal is Myers v United States In Myers, the Supreme Court held that the power of removal
was an executive function incidental to the power of appointment and therefore not subject to the
advice and consent power of the Senate 7 On July 21, 1917, Myers was appointed by the President
and confirmed by the Senate to be a postmaster in Portland, Oregon for a term of four years 8 On
January 20, 1920, his resignation was demanded and while he refused, he was eventually removed
from office on February 2, 1920, several months before his term was to end The statute that
establishes the postmaster office provided that postmasters of the first, second, and third classes
shall be appointed and may be removed by the President by and with the advice and consent of the
Senate ” 9 Myers was removed without the Senates consent The Court reasoned that when the
grant of the executive power is enforced by the express mandate to take care that the laws be
faithfully executed, it emphasizes the necessity for including within the executive power the
exclusive power of removal '0
fl14 The Court in Myeis further explained the permissible exercise of legislative power
Applying the precedent established in U S v Perkms, the Court recognized that because the
Constitution gives Congress the power to vest the appointment power of inferior officers in the
heads of departments, they may prescribe incidental regulations which control and restrict the
department heads and their exercise of the removal power ‘1 However, the Court noted that it has
never held that Congress has the power to draw to itself, or to either branch of it, the power to
remove or the right to participate in the exercise of that power ‘2 Article II grants to the president,
the executive power of the Government which extends to the general administrative control of
those executing the laws, including the power of appointment and removal of executive officers 13
1115 Since Myers, the Court has held that the legislative branch may regulate the removal power
In Humphrey 3 Ex r v U S , the Supreme Court held that restrictions on the President’s power of
removal to good cause when it came to members of the Federal Trade Commission was valid under
6 1 Annals of Cong 463 (1789)
7 Myels v UmtedStates 272 U S 52 122 (1926)
8 Id at 106
9 Id at 107
‘0 Id at 122
“ Id at 161
12 [d
‘3 Id at 164
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GVI v VI Gav’t Hospttal and Health Faunties
Case No ST 2021 CV 00045
Memorandum Opinion and Order
Page 5 0f 6
the Constitution ‘4 The Federal Trade Commission was an administrative body created by
Congress to carry into effect legislative policies embodied in the statute in accordance with the
legislative standard therein prescribed, and to perform other specified duties as a legislative or
judicial aid ‘5 This means that it could not be considered simply as an arm or eye of the executive ‘6
The Federal Trade Commission acts in a quasi leglslative, quasi judicial manner meaning that it
acts sometimes as a legislative agency and sometimes as a judicial agency, and it does not exercise
an executive function in the constitutional sense at all 17 The Court held that when determining
whether the power of the President to remove an officer shall prevail over the authority of Congress
to condition the power by fixing a definite term and precluding a removal except for cause, you
have to look at the character of the office ‘8 The President’s absolute removal power applies only
to executive officers ‘9
1116 The Court then must determine whether the Corporation is an executive agency and
whether the members of its Boards are executive officers The Corporation was created in 1992
by Act No 6012 which has been codified at 19 V I C § 243 In it the Corporation is defined as a
‘ body corporate and politic constituting a public benefit corporation of the Government of the
Virgin Islands ’ 20 For the Court to determine whether it is an executive agency, it is important to
look at the character of the office, as the Supreme Court did in Humphrey s The statute further
provides that the Board shall formulate and determine hospital policy and planning for health care
delivery at the territorial level and it shall coordinate hospital policy, planning, and decisions
between the two districts to ensure efficient and coordinated hospital policy direction between the
districts 2‘ In Myers, the Court described legislative power as the authority to make laws, but not
to enforce them or appoint the agents charged with the duty of such enforcement 22
1118 In light of Humphrey s, the Corporation does not exercise any legislative or judicial
functions in the same fashion as the Federal Trade Commission Rather, it coordinates hospital
policy under the current laws This demonstrates that it falls closer to an executive agency than a
legislative one More importantly, even if the Corporation were an agency in the mold of the
Federal Trade Commission under Humphrey s, the complete elimination of the Governor 8 power
to remove would run afoul of the separation of powers The legislative branch can place limits on
the executive 3 power to remove, but to eliminate the executive from the removal process
altogether is a Violation of the separation of powers Therefore, the Act, by its elimination of the
Governor 5 power to remove members of the Board and the District Boards, violates the separation
of powers and is invalid under the Revised Organic Act
'4 Humphrey 5 Ex I v UnitedStates 295 U S 602 629 (1935)
'5 Id at 628
l6 Id
17 [d
‘8 Id at 631
'9 1d at 632
20 V I Code Ann tit 19 § 243
7‘ Id
2 Myers v Umtea’States 272 U S 52 128 (1926)
2021 VI Super 52U
GVI v VI Gov’t Hospital and Health Faetllttes
Case No ST 2021 CV 00045
Memorandum Opinion and Order
Page 6 of 6
III CONCLUSION
1119 Accordingly the Court finds that Act 8438 violated the Revised Organic Act as it
completely eliminated the Governor s ability to remove members of the Hospital Corporate and
the District Boards Therefore, it is not necessary for the Court to determine if Governor Bryan has
satisfied the requirements for a permanent injunction
1120 Accordingly, it is hereby
ORDERED that Governor Bryan 3 request for Declaratory Relief is GRANTED; and it
is further
ORDERED that a copy of this Memorandum Opinion & Order shall be directed to counsel
of record
DATED May 20 2021 “
i1???) M TEJO
Judfln rior Court of the Virgin Islands
ATTEST
TA&VX ARA CHARI ES
C] W the Cou
By “(a (mom.
DUNN D DONG AN
Court Clem Supervisor / /