Rivers case faces legal, cost hurdles

A special sitting of the Cayman Islands Court of Appeal may be necessary to hear a petition seeking to overturn the Grand Court’s early August vindication of the election of West Bay representative Tara Rivers.

The move is likely to cost plaintiff John Gordon Hewitt at least $25,000. The court will convene to adjudicate the petition, deciding initially if the panel has jurisdiction and whether the case has sufficient merit to proceed.

Applications on civil matters to the Court of Appeal cost an initial $5,000. Convening a special sitting requires an additional $20,000, intended to cover the costs of transportation, accommodation, salary and other expenses of each of at least three judges required to constitute a court session. However, the sum “does not even begin to cover the costs,” according to a court spokesman.

The next regular session of the appellate court is scheduled for Nov. 4. The plaintiff, through attorney Steve McField, filed an 11-page plea to the Court of Appeal on Aug. 23, citing nearly two dozen grounds for re-examination of Chief Justice Anthony Smellie’s Grand Court decision dismissing allegations that Ms Rivers had been ineligible to run in May 22 general election for a seat in the Legislative Assembly.

The petition had sought to unseat Ms Rivers, elevating Mr. Hewitt’s wife, candidate Velma Powery-Hewitt, who finished fifth by 235 votes in the four-seat district of West Bay.

After three days of testimony and three weeks of private deliberation, the chief justice rejected the charges, delivering what he described as a “broad and purposive interpretation” of constitutional clauses regarding both residency requirements and citizenship rules.

Ms Rivers, in his opinion, had not violated any of the constitutional proscriptions and he declared her duly elected.

Mr. McField on Friday sought redress, claiming the chief justice had repeatedly fallen into error, “distorting” the “ordinary and natural meaning” of constitutional clauses, “which must be strictly interpreted to give effect the constitution’s meaning, spirit and intent.”

Any other approach, he said, “was wrong in law and must be avoided.”

One local attorney addressing the issue suggested that citation of constitutional questions might simply disguise efforts to “circumvent” the Elections Law and Section 66 of the Constitution, explicitly prohibiting appeals of any elections decision, pronouncing the findings of the Grand Court “final and not subject to any appeal.”

“It’s all very fuzzy,” he said. “Proceedings under the Election Law have no right of appeal and the court could turn around and say it has no jurisdiction. It might ask if the decision was on constitutional issues or was limited to points under the Elections Law. The superior court must be satisfied.

“The appeals court might say that [Mr. McField] is trying to circumvent the constitution and there is still no right of appeal.”

Most importantly, however, is a description of the legal grounds for the appeal, which can only come on a particular point of law.

“If, for example,” one attorney offered, “the judge were to determine that Tara Rivers was not validly elected because she was a woman, let’s say, well, there is no legal proscription on that, but nonetheless there is no right of appeal.

“It must be an issue of law only, and no matter how wrong the judge might be, it still cannot be appealed,” he said.

“The question is if Steve McField says [the chief justice] made mistakes in law, applying the Constitution. Is that a circumvention of the non-appeal clauses or could we say that it is very important to determine what the constitutional meaning is?”

Should Mr. McField prevail, it is likely again to raise questions of elevating Ms Powery-Hewitt to Ms Rivers’s seat or staging a district by-election.

Should the petition be defeated, the option may be open for the attorney to seek redress at the Privy Council in the U.K.

The Court of Appeal Law states within its section 6 that no appeal shall follow “from any decision of the Grand Court in respect of which it is provided by any law in force in the islands that such decision is to be final.”

A further clause in that section states, “in such other cases as may be prescribed by rules of court as, in the opinion of the authority having power to make such rules, are of the nature of final decision.”

The next regular session of the appeals court is scheduled for Nov. 4.

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