SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN CRAIG W. BARSHINGER, ) Plaintiff, vs. CASE NO. ST-11-CV-24 LEGISLATURE OF THE VIRGIN ISLANDS, Defendant. ) MEMORANDUM OPINION Pending before the Court are (1) Defendant’s motion to dismiss the Complaint;' (2) Plaintiff's motion for injunctive relief; and (3) Plaintiff's motion to disqualify.’ * For the following reasons, Defendant’s motion to dismiss will be granted in part, Plaintiff's motion to disqualify will be denied as moot, and the Court will reserve its ruling on Plaintiff's motion for injunctive relief. FACTUAL AND PROCEDURAL HISTORY Plaintiff was elected as an at-large senator for the 26',° 28",° and 29" ’ Legislatures of the Virgin Islands. During the 26" Legislature, Plaintiff purportedly expended $19,153.65 of his own funds for the purposes of maintaining his offices and * Defendant filed its motion on February 14, 2011, and Plaintiff filed his opposition on March 15, 2011. ? Plaintiff filed his motion on March 15, 2011. Plaintiff filed his motion on March 17, 2011. “ The Court notes that Defendant filed a motion for extension of time to respond to Plaintiff's motion for summary judgment, but neither the motion for summary judgment nor the response are part of the record. * Plaintiff was elected on or about November 2, 2004. ° Plaintiff was elected on or about November 2, 2008. ’ Plaintiff was elected on or about November 2, 2010. Craig W. Barshinger v. Legislature of the Virgin Islands Memorandum Opinion, September 28, 2012 Page 2 of 4 was not reimbursed by the Legislature. During the 28" Legislature, Plaintiff purportedly expended $11,723.36 that was also not reimbursed. Plaintiff asserts he expended an additional amount of $9,513.91 in 2010 and $5,310.64 during a period of forced administrative leave. On January 14, 2011, Plaintiff filed a Complaint seeking a total reimbursement of $45,701.47 exclusive of interest and costs. ANALYSIS Defendant moves to dismiss on the ground that this matter presents a non- judiciable political question. Fed. R. Civ. P. 12(b), made applicable to the Superior Court through SUPER CT. R. 7, provides that upon motion by the pleader, a claim, counterclaim, cross-claim, or third party claim shall be dismissed when there is a “failure to state a claim upon which relief can be granted” to the claimant. When determining whether the allegations in a compliant are sufficiently pled, a court must engage in a three step inquiry: First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.”.... Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth”.... Finally, “where there are well pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”® A motion to dismiss a complaint should be denied if the factual allegations are “enough to raise a right to relief above the speculative level.”° * Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Ashcroft v. Igbal, 556 U.S. 662, 881 (2009)). * Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d. Cir. 2008). See also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Craig W. Barshinger v. Legislature of the Virgin Islands Memorandum Opinion, September 28, 2012 Page 3 of 4 Under the political question doctrine, “certain cases present questions that are non-justiciable.”"° A matter is non-justiciable when “a concern over the separation of powers between coordinate branches of government is so inextricably intertwined to the case at hand that a judicial forum would be an inappropriate place for resolution of that issue.”!! Courts decline to interfere with the internal workings of the legislative branch when a matter concerns a legislature’s violation of its own internal rules.'* On the other hand, when a legislative body violates some external source of law, such as a constitutional or statutory provision, the matter is judiciable. = Plaintiff asserts that Defendant has violated an external source of law, namely 2 V.LC. § 76. Under the statute, a member of the Legislature “shall receive a base allotment of 2% of the total budget of the Legislative Branch for the operation of the member’s senatorial office.”!* A member elected “at-large” shall receive an “allotment not to exceed 5% of the total budget of the Legislative Branch to provide for staffing of the member’s office in both districts” in addition to the member’s base allotment.'* While 2 V.I.C. § 76(a) entitles a senator to receive 2% of the total budget of the Legislative Branch in a given year, 2 V.I.C. § 76(d) operates as a cap for the 5% allotment and suggests that the Legislature has the discretion to determine whether a senator shall receive the full amount of the allotment in a given year. As a result, Plaintiff states a claim upon which relief can be granted under 2 V.I.C. § 76(a), but presents a non- © Goodwin v. U.S. Federal Election Com'n, 2012 WL 4009903, at *6 (D.V.I. 2012). 11 iq, (citing Baker v. Carr, 369 U.S. 186, 217 (1962)). 2 Brown v. Hansen, 973 F.2d 1118, 1122 (3d Cir. 1992). Bid. 49 V.1.C. § 76(a). 52 V.1.C. § 76(d). Craig W. Barshinger v. Legislature of the Virgin Islands Memorandum Opinion, September 28, 2012 Page 4 of 4 judiciable political question under 2 V.I.C. § 76(d). Accordingly, Defendant’s motion to dismiss will be granted in part and denied in part. The Court will also give Plaintiff leave to amend his Complaint in light of this Opinion and will consider Plaintiff's motion for injunctive relief after amended pleadings have been filed. In addition, the Court will deny Plaintiff's motion to disqualify Senator Russell as moot as Senator Russell is no longer Defendant’s counsel. An Order consistent with this Opinion shall follow. Dated: Septemberaé, 2012 —___ a> HON. MICHAEL C. DUNSTON ATTEST: Venetia H. Velazquez, Esq. JUDGE OF THE SUPERIOR COURT Clerk | OF THE VIRGIN ISLANDS Lori Tyson Court Clerk Supervisor / le = LMUB SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN CRAIG W. BARSHINGER, ) Plaintiff, ) ) vs. ) CASE NO. ST-11-CV-24 ) LEGISLATURE OF THE VIRGIN ISLANDS, ) ) Defendant. ) ) ORDER The Court having issued a Memorandum Opinion on this date, it is ORDERED that Defendant’s motion to dismiss is GRANTED with respect to Plaintiffs claims under 2 V.I.C. § 76(d); and it is ORDERED that Defendant’s motion to dismiss is DENIED with respect to Plaintiff's claims under 2 V.I.C. § 76(a); and it is ORDERED that Plaintiff is given leave to amend the pleadings by November 16, 2012; and it is ORDERED that Plaintiff's motion to disqualify is DENIED as moot; and it is ORDERED that a copy of this Order and the accompanying Memorandum Opinion shall be directed to counsel of record. Dated: SeptemberQ@, 2012 ee a HON. MICHAEL C. DUNSTON ATTEST: Venetia H. Velazquez, Esq. JUDGE OF THE SUPERIOR COURT Cl i ff OF THE VIRGIN ISLANDS 4 AY iA by: he KIA . = Dongvan Court Clerk Supervisor MIX AYA