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2013 Unpublished Opinions
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October 10, 2013
S. Ct. Civ. No. 2012-0013
In re Suspension of Maxwell McIntosh, Esq.
      In matters coming before the Court pursuant to the Office of Disciplinary Counsel’s notice and motion for order directing payment of certain funds, along with a duly-executed “Offer to Consent Discipline,” pursuant to which a suspended attorney consents to his disbarment and various other remedies as sanctions for numerous instances of ethical misconduct, the offer to consent is accepted and Disciplinary Counsel’s motion is granted, as modified. Although it was filed by Disciplinary Counsel rather than the Ethics and Grievance Committee of the Virgin Islands Bar Association, the offer to consent is properly before the court, and in that offer the attorney admits to converting client property, failing to safeguard and segregate trust property, failing to respond to the new grievances filed against him, violating the terms of prior suspension orders, and failing to pay court-ordered fines and restitution in a timely manner. Based on these admissions, as well as the attorney’s history of prior discipline, disbarment represents the appropriate sanction. In addition, emergency relief is appropriate on Disciplinary Counsel’s motion regarding payment of funds, given the attorney’s admission to knowingly converting client property, disregarding court orders, and refusing to pay restitution and fines despite having the means to do so. Thus, in order to ensure that the attorney meets his obligations to both the government and the grievants, the Office of Disciplinary Counsel is appointed as the receiver of the accounts receivable for the attorney’s former law practice, and the Superior Court is directed not to issue any payments to the attorney directly. The Superior Court, as the court in which these matters are pending, shall exercise supervisory authority over the pertinent funds. After ascertaining the total amount of outstanding receivables, Disciplinary Counsel may submit a plan, for this Court’s consideration, to determine how those funds may be released.
      Download Per Curiam Opinion  (27 kb)

October 7, 2013
S. Ct. Civ. No. 2012-0096
Joseph B. W. Arellano v. Carol Ann Rich
      On a “Petition for Rehearing Before the Full Court,” which is construed as a motion for full panel review of an order issued by the Chief Justice dismissing this appeal for lack of jurisdiction, the application is denied. Even applying the standard that no special deference is accorded to a single justice’s disposition, and that the full court exercises its own judgment, the movant has not met his burden. Under 4 V.I.C. § 33(b)(1) the Court has jurisdiction over appeals of interlocutory orders of the Superior Court of the Virgin Islands involving injunctions, but the statute clearly requires that there be an “order[].” This requirement is echoed in V.I.S.CT.R. 4(c) requiring that every notice of appeal “designate the judgment [or] order” appealed from. In this case, the Superior Court neither granted nor denied the pertinent motions, and thus there is nothing for on appeal. For these reasons, the motion for full panel review is denied.
      Download Per Curiam Opinion  (17 kb)

September 13, 2013
S. Ct. Civ. No. 2013-0033
In re: The Bank of Nova Scotia
      A petition for a writ of mandamus to direct the Nominal Respondent – a Superior Court judge presiding over a bank’s lawsuit for debt and foreclosure upon real property – to rule on its pending application for relief is denied. To obtain a writ of mandamus, a petitioner must establish that it has no other adequate means to attain the desired relief and that its right to the writ is clear and indisputable. To the extent the bank intends this application to request that the Nominal Respondent be directed to grant its motion, the first prerequisite for mandamus relief is not satisfied, for if the motion is ultimately denied the bank may appeal that decision to this Court upon entry of a final judgment. If, however, the bank’s petition simply requests a ruling on its motion, the ordinary appeals process would not represent a practical avenue for obtaining comparable relief, since a failure to rule—by its very nature—would preclude entry of an appealable final appealable judgment. However, not all failures to rule, even if for an extended period of time, qualify for mandamus relief. Since the manner in which a court disposes of cases on its docket is within its discretion, a trial court’s delay in ruling on a motion will generally not warrant mandamus relief unless its undue delay is tantamount to a failure to exercise jurisdiction. In this case it cannot be said that the Nominal Respondent has engaged in any undue delay, let alone failed to exercise jurisdiction, as a hearing was held on the motion for default judgment within two months of its filing, and those proceedings and the resulting order clearly demonstrate that he intends to rule on the bank’s motion. It cannot be said that the Nominal Respondent has breached his duty to rule on the bank’s motion within a reasonable time. For the foregoing reasons, the bank has failed to meet its burden of establishing entitlement to a writ of mandamus, and the petition is denied.
      Download Per Curiam Opinion   (18 kb)

September 12, 2013
S. Ct. Civ. No. 2013-0056
In re: People of the Virgin Islands
      On a petition for a writ of prohibition filed by the People of the Virgin Islands, requesting that the Nominal Respondent—the Superior Court judge presiding over a pending criminal case—be prohibited from directing the Department of Justice pay for an indigent criminal defendant’s pre-conviction mental health evaluation, the petition is denied. The People possess adequate alternative means to attain the desired relief without a writ, since the People can indirectly obtain appellate review by disobeying the Order by not paying the costs of the examination from the Department of Justice’s budget, standing in contempt, and then appealing the order imposing the contempt sanction. The People also failed to establish that they possess a clear and indisputable right to the relief sought in their petition. The United States Supreme Court has expressly held that the Due Process Clause of the Fourteenth Amendment to the United States Constitution compels state governments to provide an indigent criminal defendant with access to a competent psychiatrist at government expense if the defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial. In the absence of any legislation providing for which government entity should pay for this constitutionally-mandated expenditure, it cannot be said that the Nominal Respondent acted clearly contrary to well-settled law in concluding that the Department of Justice—and not the Office of the Territorial Public Defender, the Superior Court, or some other entity—should pay for the defendant's evaluation. Thus the People have not established that they are entitled to a writ of prohibition, and the petition is denied.
      Download Opinion  (17 kb)

June 19, 2013
S. Ct. Civ. No. 2013-0046
In re Ruben Rivera-Moreno
      A writ of mandamus to compel a Superior Court judge, rather than a magistrate, to consider the petitioner’s application for writ of habeas corpus is denied. Petitioner has the remedy of appeal available to him, making mandamus relief inappropriate. In any event, 4 V.I.C. § 123 – which delineates the jurisdiction of Superior Court magistrates – authorizes a magistrate to conduct hearings, including evidentiary hearings, to submit proposed findings of fact and to make recommendations for the disposition by a Superior Court judge of applications of post-trial relief made by individuals convicted of criminal offenses, which includes habeas corpus applications. Clerical error in checking a box on the referral form was of no importance since the habeas corpus petition and other filings in the underlying matter clearly reflect that petitioner is challenging his convictions rather than the conditions of his confinement, and the form could be clarified by the Superior Court judge if desired. The petition for writ of mandamus is denied.
      Download Opinion  (22 kb)

April 29, 2013
S. Ct. Crim. No. 2008-0107
Alan H. DeGroot v. People of the Virgin Islands
      The conviction of a defendant who pled guilty under the terms of a plea agreement to the crime of attempting to obtain money by false pretenses under 14 V.I.C. §§ 331(2) and 834(2), but challenged his conviction on the ground that presenting a forged check to a bank does not constitute the crime of attempting to obtain money by false pretenses, is affirmed. A defect in the charging information does not deprive the Superior Court of its power to adjudicate a criminal case, but rather goes to the merits of the case. Thus – assuming without deciding that the information in this case failed to allege an essential element of the crime of attempting to obtain money by false pretenses – the Superior Court clearly possessed subject matter jurisdiction to accept the defendant’s guilty plea. He may not challenge the sufficiency of the information for the first time on appeal because, by pleading guilty, he has admitted to all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence. Because the defendant pled guilty unconditionally, and was subsequently convicted for the crime of attempting to obtain money by false pretenses, the inquiry on appeal must be limited to whether the underlying plea was both counseled and voluntary, and he has failed to challenge the guilty plea on these grounds. The record indicates that the defendant knowingly, intelligently, and voluntarily pled guilty to the crime of attempting to obtain money by false pretenses. Therefore, the judgment of the Superior Court is affirmed.
      Download Opinion  (110 kb)

April 5, 2013
S. Ct. Civ. No. 2013-0015
In re: Amelia B. Joseph
      A petition for writ of mandamus directing payment to a Virgin Islands attorney for services rendered in two court-appointed cases is denied because the respondents have now paid her in full. Respondents have not moved to dismiss this matter as moot, and the mootness doctrine, as applied by Virgin Islands courts, represents a non-jurisdictional claims processing rule that is subject to waiver. Moreover, the petition seeks additional relief beyond an order directing immediate payment, and there is a reasonable likelihood that this dispute may recur at some future date. Nevertheless, in determining whether a writ of mandamus is appropriate the factors considered include, but are not limited to, the public interest, the importance or unimportance of the question presented, and equity and justice. The remedy of mandamus is a drastic one, to be invoked only in extraordinary situations. Here, since the attorney has been paid, it cannot be said that issuing a writ directing the respondents to pay her would further the public interest, and the attorney has not requested a declaration that the respondents' apparent present practice of taking up to 60 days to issue payments to court-appointed counsel is illegal. Accordingly, it simply cannot be concluded that a writ of mandamus is appropriate under the circumstances.
      Download Per Curiam Opinion  (29 kb)

March 14, 2013
S. Ct. BA. No. 2012-0106
In re Michael Motylinski, Esq.
      In a disciplinary inquiry relating to the suspension of an attorney by the Supreme Court of Ohio for violating Rules 1.4(a)(4), 1.4(b), and 5.5(a) of the Ohio Rules of Professional Conduct, stemming from misconduct between August 2009 and February 2010, while the attorney was a specially admitted attorney in the Virgin Islands, the matter is referred to the Ethics and Grievance Committee to issue recommendations as to (1) whether this Court should impose identical reciprocal discipline on the attorney for the ethical misconduct found by the Ohio Supreme Court, and (2) whether two attorneys should be disciplined for the purported misconduct that Disciplinary Counsel alleges they have committed. While the Committee shall follow the procedure set forth in Rule 207 as closely as is practical, since these issues arise in proceedings under Supreme Court Rules 201(a) and 203(c)—matters in which the Committee typically has no involvement—the Committee’s recommendations shall be non-binding, and this Court shall make the ultimate decision with regard to (1) whether the motion for pro hac vice admission should be granted or denied, and (2) what sanctions, if any, should be imposed. This matter shall be held in abeyance and final decision deferred pending the issuance of recommendations by the Ethics and Grievance Committee, which shall be filed no later than two (2) days after issuance of this Order.
      Download Per Curiam Order  (87 kb)

March 14, 2013
S. Ct. Civ. No. 2012-0013, S. Ct. Civ. No. 2012-0025
In re Suspension of Maxwell McIntosh, Esq., as a Member of the V.I. Bar
      In bar discipline matters arising from repeated failure of a suspended attorney to comply with numerous court rules and orders, as well as the failure of the Virgin Islands Bar Association to notify the public of his suspension, the attorney is held in civil contempt for failure to comply with court orders that established specific deadlines for certain filings, missing virtually every deadline established, including the deadlines that he himself proposed. In fashioning an appropriate sanction, a $2,000.00 fine is imposed – representing the costs associated with attempting to coerce compliance in hearings and orders – as well as an additional fine of $10 per day accruing from the day after the date of entry of this Opinion until an affidavit that fully complies with Supreme Court Rule 207.5.5(g) is filed. If this daily fine is insufficient to coerce compliance, this Court reserves the right to modify the sanction at a future date, including, if necessary, ordering this attorney's incarceration. However, neither the Bar Association nor its president will be held in civil contempt regarding the publication of notice of this attorney's suspension, since it cannot be concluded that proof of their non-compliance with prior directions is clear and convincing to such an extent as to warrant the severe sanction of civil contempt.
      Download Per Curiam Opinion  (99 kb)

January 11, 2013
S. Ct. Civ. No. 2012-0130
Medina Henry v. Cecilia Dennery
      After a prior reversal and remand in this forcible entry and detainer proceeding, Henry v. Dennery, 55 V.I. 986 (V.I. 2011), the Appellate Division did not limit itself to the factual record before the Magistrate Division but chose instead to order a second trial de novo, where it considered additional evidence that had not been heard by the magistrate, reciting that “[b]oth parties indicated that they preferred a trial de novo.” Summary reversal pursuant to Internal Operating Procedure 9.4 is warranted because the Appellate Division’s October 26, 2012 Opinion acknowledged that Superior Court Rule 322 was applicable to the appeal before it, that the Rule prohibited consideration of new evidence, and that it required a deferential, clear error standard of review for factual findings, yet the court nevertheless deliberately chose not to follow the Rule. The fact that the Appellate Division believed that proceeding in derogation of Rule 322 in this case would somehow benefit both parties by providing them with additional due process rights is simply no excuse for a single judge setting aside a mandatory court Rule that was validly adopted by the Superior Court pursuant to its rulemaking authority. Moreover, parties cannot simply stipulate to the law, and may not stipulate to an appellate court’s application of a different standard of review of a lower court decision. Fleeting language in the Appellate Division's opinion reciting that it would have reached the same result even if it followed the Rule 322 procedure is immaterial, since it provides no explanation for the decision. The unique relationship between the Magistrate Division and the Appellate Division, as well as the practice traditionally employed when a higher appellate court reverses a lower appellate court, counsels against looking beyond the four corners of the Appellate Division’s decision and directly reviewing the Magistrate Division’s decision. The October 26, 2012 Opinion is reversed and the matter is again remanded to the Appellate Division, for further proceedings consistent with this decision.
      Download Opinion  (22 kb)
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