Government of the Virgin Islands

47 V.I. 178, 2005 V.I. LEXIS 19
CourtSuperior Court of The Virgin Islands
DecidedSeptember 20, 2005
DocketFamily Division Custody No. 31/1996
StatusPublished
Cited by1 cases

This text of 47 V.I. 178 (Government of the Virgin Islands) is published on Counsel Stack Legal Research, covering Superior Court of The Virgin Islands primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Government of the Virgin Islands, 47 V.I. 178, 2005 V.I. LEXIS 19 (visuper 2005).

Opinion

KENDALL, Judge

MEMORANDUM AND OPINION

(September 20, 2005)

THIS MATTER is before the Court on Attorney George Dudley’s “Motion for Substitution of Counsel” and “Motion to Stay Order of the Superior Court” pending appeal of this Court’s Order dated June 16, 2005. The Government has filed an “Informational Motion” noting, inter alia, that the appeal does not “involv[e] either the minor or the [181]*181Government.” The Court will treat the Government’s Motion as a declination to either oppose or join in the “Motion to Stay” and, based upon the reasons set forth below, both Motions will be denied.

I. Factual Background.

On October 22, 1996, the Government filed a Petition to have the minor R.F. placed in the custody of the Department of Human Services because she was in danger of abuse and neglect. By Order dated November 7, 1996, the Court.appointed Attorney Henry Carr, III to serve as Guardian ad'litem for the minor: Attorney Carr served in that capacity until January, 2002 when; by Order dated January 29, 2002, the Court entered an “Order Appointing Counsel” in which it relieved him of further responsibility. in the matter and appointed Attorney George Dudley as Guardian ad litem for the minor.

On January 31st, 2002, Attorney Paula Norkaitis, an associate in the law firm “Dudley, Topper and Feuerzeig, LLP” filed a “Notice of Appearance” with the Court as Guardian ad litem for the minor R.F. No “Motion for Substitution of Counsel” was filed by either Attorney Norkaitis or Attorney Dudley nor was there any Order by the Court approving the de facto substitution or appointing Attorney Norkaitis as Guardian ad litem for the minor. Attorney Norkaitis appeared on behalf of the minor during several hearings until her last appearance on April 7, 2003.

On October 6, 2003, Attorney A.J. Stone, another associate in the firm of Dudley, Topper and Feuerzeig, filed a “Notice of Appearance” as Guardian ad litem for the minor. Again, no “Motion for Substitution of Counsel” was filed by either,Counsel nor was there any Order by the Court approving the substitution. Attorney Stone represented the minor until December 20, 2004 when Attorney Clay Travis, also an associate in the firm, appeared on behalf of the minor during a review hearing without even filing a “Notice of Appearance” or “Motion for Substitution of Counsel.”

The undersigned was assigned to the Family Division effective September 1, 2004 and first heard the case on December 20, 2004. The matter was continued to May 2, 2005 for review.

Upon a closer review of the record in preparation for the May 2, 2005 hearing, the Court became aware that Attorney George Dudley had never been relieved of his responsibility to represent the minor. When the case [182]*182was called, the Court questioned Attorney Travis about Attorney Dudley’s whereabouts and was advised that he was.in his office. Because he was improperly before the Court, Attorney Travis was directed to contact Attorney Dudley and advise him to appear in Court to represent the minor as previously Ordered. The matter was passed pending his appearance.

When Attorney Dudley appeared, the. Court noted that it was the .second time recently that it had occasion to Order him to appear in Court after he had been appointed to represent individuals.1 The Court stated that it did not intend in future to Order him to appear in pending matters where he was duly appointed and placed him on. notice that that was the last time it was going to direct his appearance in Court after being Ordered to do so.

At the conclusion of the Hearing, Attorney Dudley was Ordered to appear at the next hearing prepared to represent the minor. He was also Ordered to ascertain the cases to which he had been appointed by this Court and to appear at all hearings in connection therewith, failing which a warrant would be- issued for his arrest in addition to the issuance of an Order for him to Show Cause why he should riot be held in contempt of Court. This Order was reduced to writing and entered on June 16, 2005.

On July 11, 2005, Attorney Dudley filed a “Motion for Substitution of Counsel” seeking to “substitute Dudley, Topper and Feuerzeig, LLP as the appointed counsel [for the minor] or to allow [him] to designate any competent attorney in the firm to appear in his sted”. In support of the Motion, he adopted .the arguments set forth in his administrative petition dated February 16, 2005 to Presiding Judge Maria Cabret seeking to set aside his appointment to represent the minor,. S.B., in Juvenile Case No. 01/2005.

On July 15, 2005, Attorney: Dudley filed a. “Notice, of Appeal” of the Court’s Order.of June 16, 2005.2 On July 22, 2005, the .“Motion to Stay Order of the Superior Court” pending appeal was filed.

[183]*183II. Discussion

A. The Standard for Evaluating a Motion to Stay.

In Republic of Phillipines v. Westinghouse Elec. Corp., 949 F.2d 653, 658 (3d Cir. 1991), the Third Circuit noted that in deciding whether to grant a stay pending appeal, the following factors must be considered:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; (4) where the public interest lies.

See also, Anderson vs. Government of the Virgin Islands, 947 F. Supp. 894, 897 (D.V.I. 1996).

These factors do not represent a rigid formula, but should be individualized for each case presented to the Court. Phillipines, at 658, citing Hilton v. Braunskill, 481 U.S. 770, 777, 107 S. Ct. 2113, 2119, 95 L. Ed. 2d 724 (1987). Thus, this Court will analyze each of the four factors in light of the distinctive aspects relevant to this case.

B. Likelihood of Success on the Merits.

(i) Lack of subject matter jurisdiction: inapplicability of Bertoli.

Attorney Dudley states that he is likely to succeed because his appeal, which he alleges “challenges the propriety of mandating the appearance of a particular appointed attorney rather than a competent designee of the appointed attorney,” is supported by the decision in United States v. Bertoli, 994 F.2d 1002 (3d Cir. 1993). Attorney Dudley’s reliance on Bertoli is misplaced. Both with respect to the facts and the law, that case is clearly distinguishable from the case at bar.

Bertoli involved an appeal by a law firm from an Order of the U.S. District Court for the District of New Jersey appointing the firm as standby counsel for its former client, Richard Bertoli, in the Government’s criminal action against him. During pre-trial proceedings, Bertoli discharged the firm which had been retained by him and elected to proceed pro se. He did not qualify for indigent status. The Court’s Order required the firm, inter alia,

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Bluebook (online)
47 V.I. 178, 2005 V.I. LEXIS 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/government-of-the-virgin-islands-visuper-2005.