On Appeal from the District Court of the Virgin Islands Division of Saint Croix.
Seitz, Becker, and Rosenn, Circuit Judges.
The Fifteenth Legislature of the Virgin Islands (the "Fifteenth Legislature") appeals from an order of the district court, 576 F. Supp. 733, declaring an act of the Fifteenth Legislature invalid as in violation of the Separation of Powers doctrine. This court has appellate jurisdiction under 28 U.S.C. § 1291.
The Revised Organic Act of 1954 provides for the appointment of executive officers by the governor with the advice and consent of the legislature. 48 U.S.C. § 1597(c) (1982). Neither the statutory language nor the legislative history of the Revised Organic Act outlines a specific method for exercising the power of advice and consent. However, since 1936 it had been the practice of the legislature to confirm an executive nomination if a majority of a quorum*fn1 of legislators voted to approve the nominee.
On May 9, 1983, the Fifteenth Legislature considered and passed a measure which modified the legislative practice for providing its advice and consent. The measure, which is applicable to the nominations of department and bureau chiefs, requires that a majority of the full membership of the legislature approve the executive appointment. The Governor of the Virgin Islands, Juan Luis (the "Governor"), vetoed the bill, but the Fifteenth Legislature overrode the veto by a two-thirds vote. The legislation was enacted as Act No. 4836 (the "Act") and was to become effective on October 1, 1983. In pertinent part the Act provides:
§ 65c. Advice & Consent of the Legislature
Notwithstanding any other provision of law to the contrary, whenever the provision of any law provides that the head of an executive department of the Government of the Virgin Islands or the head of any administrative unit or bureau within an executive department of the Government of the Virgin Islands shall be appointed or nominated by the Governor with the advice and consent or approval of the Legislature of the Virgin Islands, such advice and consent or approval shall not be considered as having been given until a majority of all the members of the Legislature have noted in the affirmative on such appointment or nomination.
V.I. CODE ANN. tit. 3, § 65c (Supp. 1984).
The Act effectively increases the minimum number of affirmative votes necessary to approve certain executive appointments. Since the legislature of the Virgin Islands is a 15-member unicameral body, a minimum of eight legislators must vote to approve a nomination under the Act.*fn2
Prior to the Act's effective date, the Governor brought suit in the district court, seeking a declaratory judgment that the Act was invalid. At trial, the Fifteenth Legislature moved to dismiss the action, arguing that a ripe case or controversy had not been presented. The district court denied the motion to dismiss, stating that the passage of the Act itself was sufficient to raise a case or controversy, irrespective of the existence of a particular nominee who would be subject to the ...