April 1, 2005 – Amid controversy about his qualifications, Alva Swan's nomination for the post of attorney general of the Virgin Islands was approved by the Senate Rules and Judiciary Committee Friday and forwarded to the full body with favorable recommendations.
The controversy began when Sen. Ronald Russell, an attorney, inquired whether Swan could qualify for the position because he is not a member of the V.I. Bar.
Swan is a member of the District of Columbia Bar, according to his resume, but has never taken the local bar examination. In 1992, Swan was "specially admitted" to the Justice Department under the Farrelly Administration and has been serving within the department since. Swan has served as acting attorney general for more than a year – six months in 1993, his current six-month term, and for short periods he was left in charge when former Attorney General Iver Stridiron left the territory or took leaves.
Stridiron introduced Swan before the body Friday, saying Swan has "been around the block a few times."
"I truly believe that he is qualified and is the best person for this job," Stridiron told the committee members.
However, Russell raised concerns as to Swan's qualifications. Russell asked Swan whether his nomination did not pose a conflict of interest because his brother Ive Swan is a Superior Court judge.
"I don't see the conflict," Swan said, adding he would not be appearing before the courts for the most part.
Yvonne Tharpes, acting chief legal counsel for the Legislature, was summoned to address Russell's first concern.
Tharpes said the V.I. Code and the Revised Organic Act both govern the qualifications of attorney general. According to the V.I. Code, the attorney general must be a "qualified practitioner" of law in front of the highest court of a state or territory.
However, Tharpes said the Superior Court of the Virgin Islands, formerly Territorial Court, has the full force of the law. The court determined in a 1992 opinion – "In Re: Application of Moorehead" – that the rules governing admission of an attorney to practice law in the territory are guided by the Superior Court.
In accordance with that opinion, the court deems that any attorney who is specially admitted to work for a government department "must be supervised" by an attorney who is recognized by the V.I. Bar, Tharpes said.
Tharpes said the question in this case is "Who supervises the attorney general if he is specially admitted?" She said this could pose a problem because cases involving the government could be dismissed.
"This is purely up to the court, and not up to the Legislature or the executive branch," Tharpes said, in response to a question by Russell for her advice to the body. "The rule is designed to protect the public."
Russell said he would make a motion at the appropriate time concerning Swan's nomination.
Sen. Usie Richards asked Swan why he had not taken the V.I. Bar examination.
"You didn't need to be a member of the V.I. Bar to work as an employee of the Department of Justice," Swan said of his reason for not taking the local bar exam.
Sen. Celestino A. White Sr. said former Attorney General Godfrey DeCastro was not a member of the V.I. Bar yet he served as attorney general. White urged his colleagues to approve Swan's nomination.
Richards and Russell both asked to make motions. Committee chairman Sen. Shawn-Michael Malone recognized Richards, who moved that the committee approve Swan's nomination with a favorable recommendation. The motion passed with a 5-1 vote, with one member absent.
Sens. Lorraine L. Berry, Malone, Terrance "Positive" Nelson, Richards and White voted in the affirmative. Russell was the lone dissenting voice. Sen. Pedro Encarnacion was absent.
Russell said Friday evening, he voted no because of the court rules that call for supervision of specially admitted attorneys and because of the legal ramifications that could occur if Swan is approved.
"He could be challenged by any attorney or defendant in court," Russell said, adding that Swan's nomination could allow criminals to get away on a "legal technicality" if they pursued the matter in court. "I would like to avoid that situation."
Russell also said DeCastro served as attorney general before the court ruling in 1992, so the rule would not have applied to him because it was not yet in effect.
He added, "Just because DeCastro was confirmed, does not mean it was right."
In other action, the Rules committee also approved the nomination of Patricia Rhymer-Todman to the Board of Psychology Examiners and forwarded it to the full body with a favorable recommendation.
The full Senate will vote on the two nominees at a hearing tentatively set for May 4.
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