May 4, 2005 – The territory has a new attorney general.
Members of the 26th Legislature approved the nomination of Alva Swan as attorney general of the Virgin Island during a regular session Wednesday with a 14-1 vote. Sen. Ronald E. Russell was the sole dissenting voice.
Russell, who is also an attorney, said he could not support Swan's nomination because Swan is not a member of the V.I. Bar and this could create a potential problem. At an April 1 hearing, Russell had raised the same concerns because of language in the V.I. Code that conflicted with the Revised Organic Act of 1954.
At the time, Yvonne Tharpes, acting chief legal counsel of the Legislature, told members of the Rules and Judiciary Committee that because Swan was a "specially admitted" attorney for the Justice Department, he had to be supervised by an attorney who is recognized by the V.I. Bar. The question, according to Tharpes, was that if Swan held the top Justice Department post, who would supervise him? (See "Swan, Not a Member of the Bar, Closes in on AG Job").
Since the April hearing, senators have received various opinions from judges and attorneys, including Magistrate Judge Geoffrey Barnard, and V.I. Solicitor General Elliot McIver Davis.
Although noting the apparent conflicts between the legislations in question, both Barnard and Davis said Swan was qualified for the position. Davis, to satisfy Tharpes supervision concerns, said Gov. Charles W. Turnbull would supervise Swan since he is the territory's chief executive.
However, Turnbull is not a member of the V.I. Bar as stipulated by the V.I. Superior Court rules as noted in Tharpes' opinion.
"Surely, Mr. Swan is qualified to the enth degree," Russell said, "but the issue is he won't be able to practice in a court of law."
Russell added, "I'm just hopeful that it won't create any problem in our courts."
Senate President Lorraine L. Berry said, "The apparent conflict is not pertinent to what qualifications the person must meet in order to become the attorney general."
Davis was clear on Thursday in an e-mail that the Superior Court Rule 302 does not require that a specially admitted attorney be supervised by a regularly admitted attorney. The pertinent language, he said, is: "[a specially admitted attorney] shall at all times be subject to the direction and control of the moving department or agency."
Davis wrote, "Thus, Swan is now subject to the direction and control of the agency he heads, but that department, like all departments is, pursuant to Section 11 of the Revised Organic Act of 1954, subject to the general supervision and control of the Governor of the Virgin Islands."
Davis said in a phone interview, "Swan was moved by the Department of Justice and he heads the Department of Justice. The V.I. Code and the Organic Act are what control qualifications for the attorney general."
Berry added, "I believe that there is a conflict in the legislation, and I believe the Legislature should correct it. We should not have a conflict in our laws."
The Senate president said she would still support Swan's nomination and work with her colleagues to amend the section of the V.I. Code governing the post of attorney general.
The senators then voted to approve Swan, who calmly sat at the back of the chambers with his family and friends.
"This Legislature has made my retirement complete," Swan said. "After this job, I am going straight out the door."
Swan pledged to work to fix some of the ails of the Justice Department, including problems at the Golden Grove Correctional Facility in St. Croix, and the department's image as an institution that is slow to prosecute.
"I don't want to be the best lawyer in the Justice Department," Swan said. "But I want to be the best manager."
In other action, senators also approved the nominations of Patricia Rhymer-Todman to the Board of Psychology Examiners, and Lloyd M. McAlpin to the Virgin Islands Casino Control Commission. Neither Rhymer-Todman nor McAlpin were present at the Senate session.
All 15 senators were present at Wednesday's session.
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