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Creque v. Luis

argued: September 16, 1986.

MARGARET L. CREQUE AND BENJAMIN BANKS
v.
HONORABLE JUAN LUIS, GOVERNOR VICTOR SCHNEIDER, ACTG. ATTY. GEN. STEPHANOS O'REILLY, CHAIRMAN CECIL GEORGE, MEMBER WILLIAM WESTERBANN, JOHN HARVEY, MEMBER OF V.I. WATER & POWER AUTHORITY BOARD OF GOVERNORS, APPELLANTS



On Appeal from the United States District Court for the District of The Virgin Islands, (St. Croix), Civil No. 85-0212.

Author: Adams

Before: ADAMS, STAPLETON, and GARTH, Circuit Judges

Opinion OF THE COURT

ADAMS, Circuit Judge.

This case arises out of a dispute between the territorial governor of the Virgin Islands, Juan Luis, and two members of the Virgin Islands Water and Power Authority (WAPA). District Judge O'Brien granted the request of Margaret Creque and Benjamin Banks for injunctive relief against interference with their WAPA board membership status by Governor Luis. Creque v. Luis, No. 1985/212 (D.V.I. 1985), 616 F. Supp. 843. The governor now appeals that decision to this Court.

I.

WAPA was created by statute in 1964, 30 V.I.C. § 103, and is an autonomous governmental instrumentality, charged with supplying power and water to the Virgin Islands. It is governed by a board composed of three cabinet-level and six non-governmental members, nominated by the governor and confirmed by the legislature.

Both Creque and Banks were nominated to the board by Governor Luis in 1981, and were confirmed by the legislature. Creque's term was for one year, and Banks's for three. After Creque's term expired in 1982, the governor renominated her for a full three-year term, but the legislature never acted on the nomination. Creque nonetheless continued to sit on the board and participate in board decisions even after the expiration of her term in 1982; Banks also continued to sit after his term expired in 1984. The governor did not object to this practice until the dispute that gave rise to both this case and General Engineering v. Virgin Islands Water and Power Authority, Nos. 85-3668 and 85-3700 (3d Cir. 1986), arose in 1985.

On May 23, 1985, the WAPA board adopted a proposal form the Caribbean Energy Company, a wholly owned subsidiary of the investment and financial firm of Donaldson, Lufkin & Jenrette; Carribean Energy was created specially to fulfill a contract to supply power to St. Croix residents. Both Creque and Banks supported the contract with Caribbean Energy.

Apparently, Governor Luis disapproved of this turn of events, favoring instead a plan proposed by South Shore Alumina, Inc., a Virgin Islands corporation whose principals are all prominent St. Croix citizens. Unable to persuade the WAPA board to void its contract with Caribbean Energy, Governor Luis sought to change the composition of the board, by replacing the governmental members and removing both Creque and Banks. On August 8, 1985, acting Attorney General Victor Schneider informed Creque and Banks that they were no longer valid board members, inasmuch as their terms had expired.

Creque and Banks filed suit in the district court of the Virgin Islands, seeking both preliminary and permanent injunctive relief barring any interference with their rights and obligations as members of the WAPA board. On August 28, 1985, Judge O'Brien granted the requested injunctive relief, issuing an order that declared:

That, until the plaintiffs are replaced as WAPA Board members, pursuant to 30 V.I.C. § 103(a) as amended, the defendants are PERMANENTLY ENJOINED from interfering with the rights of the plaintiffs to participate fully in the actions of the Board and its committees, and further that all actions taken by the WAPA Board from the time the plaintiffs were unlawfully prevented form participating on the Board, starting on August 8, 1985 up to the present date, be and the same are hereby declared WITHOUT LEGAL EFFECT.

App. at 3-4.

In a memorandum opinion issued on September 3, 1985, Judge O'Brien held that Creque and Banks continued to be valid WAPA board members despite the expiration of their terms pending nomination and confirmation of their respective successors. The court relied on 30 V.I.C. § 103(a) (as amended, 1980) which provides that "each ...


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