Challenging times in court

The Grand Court’s vindication last month of West Bay representative Tara Rivers sparked lively discussion in the legal community and political circles and prompted an appeal by attorney Steve McField on behalf of John Gordon Hewitt, whose wife Velma Powery-Hewitt, ran unsuccessfully for a seat in West Bay.  

 

Chief Justice Anthony Smellie’s original decision on Aug. 9 – following three days of testimony and three weeks of private deliberation – exculpated Rivers from allegations that she was ineligible to stand in the May general election for Legislative Assembly, much less hold one of her district’s four parliamentary seats, and by extension, accept appointment as Premier Alden McLaughlin’s Minister for Education, Employment and Gender Affairs.  

Rivers’s eligibility had been challenged earlier, in a June petition to the Grand Court claiming she had violated constitutional provisions requiring seven years’ residency in Cayman prior to any nomination for election. According to the petition, she had acquired, used and renewed a U.S. passport, a document she was entitled to by virtue of her birthplace, it violated constitutional provisions against legislators holding foreign citizenship. 

Both the initial petition and the Aug. 23 “civil appeal” were filed by John Gordon Hewitt, husband of Velma Powery-Hewitt, who also ran in the May polls as a United Democratic Party candidate for a seat in West Bay. She finished fifth in the four-seat district, receiving 411 fewer votes than Rivers, an Independent, and 235 votes short of fourth-place finisher and longtime UDP MLA Capt. Eugene Ebanks. 

Rivers’s accession marked the first time in memory that the UDP, led by former premier and perennial MLA McKeeva Bush, did not monopolize the district’s seats. Mr. Hewitt’s petition sought to remedy the anomaly, asking the court to overturn Rivers’s selection, elevating his wife in her stead. 

Rejecting allegations that the UDP had quietly stage-managed the petition, Bush said he had no part in the challenge, despite courtroom council by attorney Steve McField, UDP co-founder and frequent attorney for party matters. While he did not lead the team, his presence and advice were consistent. 

“I never took it as a challenge, I took no part, and I am waiting to see what happens now,” Bush said. “This was not a UDP challenge and there are no UDP ‘fingerprints’ on it. 

“We are not part of this and we did not do anything,” he said, claiming not to be worried about his party’s setback in the polls. 

“We will see. I have always had people working with me to get things done – roads, schools, a post office, a fire station, cemeteries – and all because people worked with me on it. Let’s see what happens and hope that we are better off. I have extended my hand of friendship,” Bush said. 

 

Passport issue  

Mr. Hewitt’s petition to the Court of Appeal comes in contradistinction to Chief Justice Smellie’s decision, which accepts Rivers’s defense in its entirety — and is crucial to the basis for the appeal, proffered not on the basis of the Elections Law but on constitutional grounds. 

The chief justice allowed Rivers’s claim of residency, despite long periods of absence from the Cayman Islands. Equally, he accepted her claim that simple ownership of a U.S. passport – gained only by virtue of her birth — did not compromise her loyalty or commitment to the Cayman Islands. The document did not place her, in the legal phrase, “under an acknowledgement of allegiance, obedience or adherence to a foreign power.” 

The passport issue was never in serious contention after lengthy testimony by David Kole, professor of constitutional law at Georgetown University in Washington, D.C. Kole cited a 1972 Washington District Court decision in which U.S. Secretary of State William Rogers lost a bid to require an oath of allegiance from U.S. passport applicants. 

Under U.S. law, Kole said, a passport is “incident” of U.S. citizenship, no more than a kind of by-product. 

By the 1972 decision, he told the court, a passport “cannot be conditioned” on allegiance. “You can hate the U.S. and everything it stands for, but you are entitled to a passport. No allegiance is required. It is unconstitutional to require a declaration of allegiance, any acknowledgement, or to take an oath. Travel and citizenship [are] a right and cannot be conditioned on an oath of allegiance.” 

Challenged by Mr. Hewitt’s counsel, Kole replied that not even a failure to renounce U.S. citizenship could be construed as an act of allegiance. Those born in the United States “have a right to citizenship, and a failure to renounce it is not an acknowledgement of allegiance. It is just not true. And that has never been questioned or overruled. It is absolutely good law.” 

Nor was Rivers’s April 19, 2006, renewal of her U.S. passport “an act of allegiance,” Kole said. Dual nationals were required to use their U.S. passport when entering, leaving or transiting the country, explicitly confirmed by Rivers in her own testimony. 

Cayman law, the chief justice decided, did not contradict this. Citing the “framers” of the Constitution, prominently among them Rivers’s own counsel, Professor Jeffrey Jowell, Chief Justice Smellie observed that the complainants sought an interpretation that the public should be protected from “individuals who might genuinely be unable to serve the Cayman Islands competently and honestly without divided allegiances.” 

Were this view to prevail, however, it would mean those framers “also, incongruously, decided to prohibit anyone from serving who had made use of a purely administrative benefit of a foreign citizenship to which they are to be freely entitled, and in return for which they had to express no promises of allegiance and so be taken as acknowledging none in return.” 

In other words, he indicated, the complaint was over-wrought, making little sense in a local context. 

“No rule of law or precedent has emerged to bind or persuade me to the conclusion, that by renewing or using her United States passport, it can be suggested [she] had been placed under – and remained under – an acknowledgment of allegiance to the United States as a foreign state, at the date of her nomination or election,” the Chief Justice said. 

Rivers’s allegiance remained undivided: “I am satisfied that [she], in renewing and using her United States passport as an ordinary incident of her United States citizenship acquired by birth — and a citizenship she is allowed to keep by virtue of section 61(2)(b) of the Constitution — has not placed herself under any acknowledgement of allegiance, obedience or adherence to a foreign power …” 

 

Implications for other candidates  

While the passport issue was eclipsed by the question of how someone living in London for 31 months could claim Cayman Islands residency, the fallout from the citizenship debate resonated throughout the community in the days following the chief justice’s decision. 

The implications involved three candidates in particular. Bodden Town MLA aspirant Richard Christian sought a ballot slot in March representing the People’s National Alliance, the breakaway party of renegade UDP members who governed briefly after Bush’s ouster following his December 2012 arrest on corruption charges. 

The Elections Office, acting on advice from the attorney general, disqualified Christian because he holds a U.S. passport, gained by virtue of birth. 

George Town MLA aspirant Sharon Roulstone met with similar objections from the Elections Office. Unlike Rivers or Christian, however, Roulstone was born in the Cayman Islands, gaining her U.S. passport through her father’s citizenship. Based on Elections Office advice, she quickly surrendered the document, taking the precipitate step of renouncing her overseas ties. She finished eighth out of 21 candidates in the six-seat George Town district and now faces efforts to regain her U.S. passport and citizenship. 

The final twist regards Cline Glidden, 2009-2012 UDP MLA for West Bay, post-2012 People’s National Alliance MLA and May candidate in the district. 

Glidden said he had held a U.S. passport for years, and no one had said anything to him. “I was born in New York City, I always had a U.S. passport, and it has never been an issue.”  

He ultimately surrendered the document, he said, “because I hadn’t used it in years and there was no need for it, but I didn’t have to renounce it as a candidate.” 

 

Residency questions  

The critical issue for many attending the Rivers hearing were the arguments about residency. The Constitution requires MLA candidates to be locally resident for seven years prior to their nomination. Absences longer than 400 days during those seven years are prohibited. 

Exceptions are stipulated, however, for education, for government service, for service on an airline or merchant vessel or for medical reasons. 

The chief justice labored at length on the question, citing both common law and even a 1996 decision in Cayman’s Court of Appeal, pondering Rivers’s work at the UK law firm Allen & Overy from October 2006 to May 2009. 

Her attorneys argued she was resident in both the U.K. and the Cayman Islands, citing regular, frequent visits to West Bay, her family home, her myriad personal papers and possessions and her consistent assertions, both private and public, including on her U.K. tax returns, for example, that she was “not ordinarily resident in the U.K.”

 

In the end, he accepted Jowell’s clam that she was resident in both jurisdictions.  

“The first question is whether the residence qualification requirements of the Constitution allow for residence in Cayman as well as in another country at the same time,” he said. 

The question relied on “whether the individual has a permanent home in the relevant country, has family and/or business ties to this country, the frequency and length of any visits here and any other factors,” he said. 

“In the absence of any definition in the Constitution itself that prevents the application of settled common-law principles, [Professor Jowell’s] submission that ‘residence’ may mean ordinary residence in more than one place at the same time is compelling and, in my view, is plainly correct.” 

In what he called a “generous and purposive interpretation” of the Constitution, Chief Justice Smellie said nothing in its provisions “suggests that the framers of the Constitution intended to preclude the settled common-law meaning of residence as allowing for abode in more than one place at the same time … 

“Had the intention been to treat the concept of residence as meaning ‘exclusively resident’ within the islands, the provision could have so stated,” he said. 

The verdict left only the question of whether Rivers had been absent more than 400 days during her 31 months in London, an answer the chief justice sought within the constitutional exceptions. 

Essentially, he concluded, the law firm qualified as an “educational establishment,” citing Allen & Overy’s record of instruction, the critical need to achieve professional standards in a modern world and similar training in the medical and accountancy fields.  

Quoting Jowell’s pleading, the chief justice detailed Rivers’s “115 hours of instructions, 68 formal classes, 48 formal lectures, two seminars and 10 tutorials” administered by the firm as she studied for the Professional Conduct and Associates Examination and the Qualified Lawyers Transfer Test. 

“Petitioners in the recognized professions are typically required to undertake intensive practical training before they might finally be admitted to practice,” the chief justice said. “In the case of the medical profession, this period of training, termed ‘internship,’ is usually undertaken at a hospital and under a training contract of employment as intern entered into for those purposes … it is generally recognized and accepted that the hospital becomes an educational establishment, an institution of learning.” 

Likewise, he said, the Institute of Chartered Accountants for England and Wales required similar training contracts with professional firms for candidates to qualify. 

“Thus, in my view, the meaning of the words ‘educational establishment’ is not to be confined to ‘colleges,’ ‘universities’ or other such exclusively academic institutions. Had the framers of the Constitution so intended, such more exclusive wording could readily have been used,” the chief justice said. 

In sum, he rejected any suggestion that constitutional provisions should bar otherwise educated and qualified candidates “from serving the islands as members of the legislature.” 

He concluded by declaring, “I am satisfied that those periods of absence from the islands in excess of 400 days are therefore to be disregarded … During her absences abroad … the Cayman Islands remained her domicile and ordinary place of residence and her absence from the islands was primarily for the purposes of attendance at practical educational establishments … coming within the meaning of … the Constitution.”  

 

Question of precedent  

The chief justice’s decision left only the question of “settled law,” whether his conclusions would rank as definitive throughout the Commonwealth, establishing firm precedent in the interpretation of constitutional questions, or whether it might repose equally alongside other, similarly interpretive – and possibly variant — decisions from other Commonwealth jurisdictions. 

While the jury on that is still out, Mr. Hewitt’s appeal, if successful, may go some way toward determining the question. 

Essentially, the suit turns on the words “generous and purposive interpretation” invoked by the chief justice in his decision. McField claims the Constitution must be closely read and its “words must be given their ordinary and natural meaning, which must be strictly interpreted to give effect to [the document’s] meaning, spirit and intent.” 

The chief justice’s “generous and purposive interpretation,” he said, was “wrong in law and must be avoided.” 

Rejecting the top juror’s acceptance of Rivers’s “dual residency” in London and the Cayman Islands, for example, McField challenges the chief justice’s constitutional interpretation, seeking to circumvent proscriptions against appealing elections issues. 

“The residency referred to in the Constitution,” he writes, “is a requirement of being physically present in the Cayman Islands for the period set out in Section 61, subject to the exceptions set it therein.” 

Similarly, “the learned chief justice fell into further error,” misinterpreting the constitutional phrase “attendance at an educational establishment” to include Rivers’s London law firm Allen & Overy and its in-house training programs, McField claims.  

Properly construed, McField writes, the phrase should have been given its “ordinary and natural meaning …, [of] an institution dedicated to education.” 

By invoking a “broad and purposive meaning,” the chief justice “further fell into error … which had the effect of distorting the spirit, meaning and intent of the Constitution,” he said. 

The Court of Appeal may accept or reject Mr. Hewitt’s plea, depending on a determination of whether the appellate judges have jurisdiction, whether the suit is merely an effort to circumvent the proscription on Elections Law appeals or if, in fact, it genuinely broaches constitutional questions and is worthy of hearing. 

Considering the stakes – political representation in the Legislative Assembly, electoral choice and timely conduct of government business – the court’s determination is likely to come sooner rather than later. 

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The judgment that Tara Rivers was eligible to stand in the May general election for Legislative Assembly and hold one of her district’s four parliamentary seats has been appealed.

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