For Publication 
 
IN THE SUPREME COURT OF THE VIRGIN ISLANDS 
 
NANDI SEKOU, MARTIAL WEBSTER, 
and TERRENCE JOSEPH, as members of 
the Virgin Islands Board of Education, on 
their own behalf and on behalf of the 
Board of Education, 
          Appellants/Plaintiffs, 
 
v. 
 
MARY MOORHEAD, JUDY GOMEZ, 
and JENNIFER JONES,  
          Appellees/Defendants. 
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S. Ct. Civ. No. 2018-0011 
Re: Super. Ct. Civ. No. 01/2017 (STX) 
 
 
 
 
On Appeal from the Superior Court of the Virgin Islands 
Division of St. Croix 
Superior Court Judge: Hon. Douglas A. Brady 
 
Considered: May 14, 2019 
Filed: April 24, 2020 
 
Cite as: 2020 VI 4 
 
BEFORE:  
RHYS S. HODGE, Chief Justice; MARIA M. CABRET, Associate Justice; and 
IVE ARLINGTON SWAN, Associate Justice. 
 
APPEARANCES: 
 
Nandi Sekou, Esq. 
St. Croix, U.S.V.I. 
Attorney for Appellants, 
 
Su-Layne U. Walker, Esq. 
Assistant Attorney General 
St. Thomas, U.S.V.I. 
Attorney for Appellee Judy Gomez, 
 
Maria T. Hodge, Esq. 
Hodge & Hodge 
St. Thomas, U.S.V.I. 
Attorney for Appellee Jennifer Jones.1 
 
1 Although appearing pro se in the Superior Court proceeding and being identified as an appellee 
in this appeal, Mary Moorhead has not filed any documents with this Court with respect to this 
appeal. 
Sekou v. Moorhead 
S. Ct. Civ. No. 2018-0011 
Opinion of the Court 
Page 2 of 15 
 
 
OPINION OF THE COURT 
 
HODGE, Chief Justice. 
 
¶1 
Appellants Nandi Sekou, Martial Webster, and Terrence Joseph appeal from several orders 
entered by the Superior Court in the underlying matter, which had the effect of dismissing all their 
claims against Appellees Mary Moorhead, Judy Gomez, and Jennifer Jones.  For the reasons that 
follow, we affirm the judgment of the Superior Court. 
I. 
BACKGROUND 
¶2 
This case is the culmination of a long-standing dispute between members of the elected 
Virgin Islands Board of Education (hereafter “Board”).  At a regularly scheduled Board meeting 
held January 15-16, 2016, Moorhead and Gomez orchestrated a voted to remove Sekou and Joseph 
as, respectively, Chair and Vice-Chair of the Board.  On February 18, 2016, Sekou, Webster, and 
Joseph filed an action, docketed as Super. Ct. Civ. No. 71/2016 (STX), alleging that their removal 
had been unlawful because the Board’s bylaws require that all matters considered at Board 
meetings be included in an official, publicly-circulated agenda no later than three days in advance 
of the meeting, and that Moorhead and Gomez had interfered with the daily operations of the 
agency.  The Superior Court, in a February 19, 2016 order, granted a temporary restraining order 
and enjoined Moorhead and Gomez from entering into any contracts, taking any actions binding 
upon the Board, or directing the daily management of the office and employees of the Board.  Jones 
represented Moorhead and Gomez in that lawsuit in her capacity as legal counsel to the Board. 
¶3 
After issuance of the temporary restraining order, the Board held a meeting on March 18, 
2016, with the timely-circulated agenda providing for a vote on the removal of Sekou as Chair and 
Joseph as Vice-Chair and, if necessary, election of a new Chair and Vice-Chair.  At that meeting, 
Sekou v. Moorhead 
S. Ct. Civ. No. 2018-0011 
Opinion of the Court 
Page 3 of 15 
 
the Board voted to remove Sekou and Joseph from their positions and elected Moorhead as Chair 
and Gomez as Vice-Chair.  Given these developments, the Superior Court dismissed Super. Ct. 
Civ. No. 71/2016 (STX) as moot.  While Sekou, Webster, and Joseph appealed from that dismissal 
order, this Court dismissed that appeal for failure to prosecute in an August 9, 2016 order. 
¶4 
On January 3, 2017, Sekou, Webster, and Joseph filed the instant lawsuit against 
Moorhead, Gomez, and Jones.  The complaint stated that they were bringing the lawsuit both in 
their capacities as members of the Board, as well as on behalf of the Board itself.  Count I of the 
complaint alleged that Moorhead and Gomez had refused to timely call a meeting for election of 
new Board officers following the 2016 general election, in violation of 3 V.I.C. § 98(a), and sought 
a temporary restraining order compelling the Board to hold such a meeting between January 9 and 
January 13, 2017.  Count II alleged that Jones’s representation of Moorhead and Gomez in Super. 
Ct. Civ. No. 71/2016 (STX) was improper and sought an accounting and disgorgement of all 
monies paid to Jones in connection with that representation.  Count III alleged that Sekou, Webster, 
and Joseph had “paid considerable monies and incurred substantial obligations to retain private 
counsel to vindicate their rights, and those of the Board, in the prior litigation,” and requested 
“nominal, compensatory, consequential, and punitive damages.”  (J.A. 34.) 
¶5 
Jones filed a motion to dismiss the lawsuit on January 31, 2017.  The motion sought 
dismissal for failure to state a claim with respect to Count II and dismissal of all claims on the 
grounds that Sekou, Webster, and Joseph lacked both authority and standing to bring the lawsuit.  
In addition to joining that motion, Gomez filed a supplemental motion to dismiss Count III on 
grounds that it represented an attempt to impermissibly collect costs and attorney’s fees for Super. 
Ct. Civ. No. 71/2016 (STX) in circumvention of 5 V.I.C. § 541.  Moorhead both joined that motion 
and requested that Count I of the complaint be dismissed as moot. 
Sekou v. Moorhead 
S. Ct. Civ. No. 2018-0011 
Opinion of the Court 
Page 4 of 15 
 
¶6 
On February 3, 2017, the Superior Court issued an order directing Sekou, Webster, and 
Joseph to file a response to the motion to dismiss no later than February 21, 2017.   However, 
rather than file a substantive response, Sekou, Webster, and Joseph instead filed a motion to strike 
the motion to dismiss on grounds that the motion had attached exhibits outside of the pleadings 
and made legal arguments based on those exhibits.2   
¶7 
The Superior Court, in a March 2, 2017 order, denied the motion to strike, but 
acknowledged that the motion to dismiss did include exhibits outside of the pleadings and 
converted the motion to dismiss into a motion for summary judgment.  The March 2, 2017 order 
further sua sponte granted Sekou, Webster, and Joseph an additional 21 days to respond to the 
converted motion.  However, Sekou, Webster, and Joseph again failed to file a substantive 
response by the court’s deadline.  Instead, on March 23, 2017, they filed a motion to stay the 
proceeding because they planned to file a motion to disqualify the Virgin Islands Department of 
Justice from representing Gomez. The next day, Sekou, Webster, and Joseph filed their motion to 
disqualify.   Gomez and Jones separately filed oppositions, and Sekou, Webster, and Joseph 
subsequently moved for an evidentiary hearing on their disqualification motion.   
¶8 
Ultimately, the Superior Court, in a May 22, 2017 order, stated that “the Court will grant 
Plaintiffs’ Motion for Evidentiary Hearing,” but that “at such hearing Parties shall be prepared to 
present arguments as to all Motions presently pending before the Court,” and specifically noted 
that “[t]his hearing shall include, first of all, the presentation of argument and relevant evidence 
concerning Defendant Jones’ Motion for Summary Judgment.”  (J.A. 208.)  The Superior Court 
 
2 Previously, on February 2, 2017, Sekou, Webster, and Joseph filed an informational motion with 
the Superior Court, which stated that they objected in writing to the Virgin Islands Department of 
Justice representing Gomez but that they “do not believe that a Motion to Strike the DOJ’s 
appearance in this case on behalf of Defendant Gomez is warranted at this time.”  (J.A. 80-80a.) 
Sekou v. Moorhead 
S. Ct. Civ. No. 2018-0011 
Opinion of the Court 
Page 5 of 15 
 
then sua sponte extended the deadline for Sekou, Webster, and Joseph to file a substantive response 
to the motion for summary judgment to June 16, 2017, and also required them to show cause for 
their failure to submit a response within the deadlines provided in its February 3, 2017 and March 
2, 2017 orders. 
¶9 
Sekou, Webster, and Joseph filed their opposition to the summary judgment motion on 
June 16, 2017.  In their opposition, they argued that Jones’s motion should not have been converted 
to a motion for summary judgment under either the former rules of civil procedure applicable to 
the Superior Court—which were in effect at the time the motion had been filed—or the Virgin 
Islands Rules of Civil Procedure, which went into effect on March 31, 2017.  And while their 
response included legal arguments opposing Jones’s request for dismissal of Count II, they did not 
address Jones’s claim that they lacked authority to bring the action on behalf of the Board, and 
they responded to Jones’s standing argument by dismissing it as “frivolous” and reiterating that 
they had spent a “very considerable amount of money in prosecuting the 2016 case.”  (J.A. 216.) 
¶10 
The Superior Court held a hearing on July 28, 2017.  However, at the start of the hearing, 
the Superior Court stated that it had denied the plaintiffs’ motion for an evidentiary hearing on the 
motion to disqualify.  (J.A. 342.)  When the plaintiffs, through their counsel, noted that the May 
22, 2017 order had granted their motion for an evidentiary hearing, the Superior Court inquired as 
to what evidence the plaintiffs needed to present, given that 3 V.I.C. § 114(a)(6) authorized such 
representation.  Ultimately, no evidence was presented with respect to the motion to disqualify.  
After hearing arguments, the Superior Court denied the motion to disqualify the Department of 
Justice, and took the summary judgment motion under advisement.   
¶11 
On September 12, 2017, the Superior Court issued an opinion and order which granted 
summary judgment in favor of the defendants on Counts II and III.  As to Count II, the Superior 
Sekou v. Moorhead 
S. Ct. Civ. No. 2018-0011 
Opinion of the Court 
Page 6 of 15 
 
Court noted that Sekou, Webster, and Joseph had “almost entirely fail[ed] to address the issue of 
standing” even though Jones’s motion had dedicated pages of argument to the question of whether 
Sekou, Webster, and Joseph had standing and authority to seek, purportedly on behalf of the Board, 
an accounting and disgorgement of Jones’s legal fees.  After considering the pertinent statutes 
establishing the Board and delineating its powers, the Superior Court concluded that “the power 
to bring suit on behalf of the Board pursuant to 17 V.I.C. § 21(a)(8) may only be delegated to 
individual Board members by majority vote.”  (J.A. 307.)  Similarly, the Superior Court 
determined that while individual Board members “may have an implied right to review records of 
business conducted by the Board in order to make fully informed decisions in exercising their 
individual power to vote concerning the business of the Board,” the plaintiffs had failed to present 
any legal argument or authority to support the proposition that individual Board members had a 
right to demand and review records belong to third parties such as Jones.  With respect to Count 
III, the Superior Court found that 5 V.I.C. § 541 governs the award of costs and fees, and that in 
any event Sekou, Webster, and Joseph were not the prevailing parties in Super. Ct. Civ. No. 
71/2016 (STX), in that their complaint had been dismissed as moot.   
¶12 
The Superior Court further noted that Moorhead had requested the dismissal of Count I as 
moot, and it appeared that the parties had proceeded on the assumption that Count I had been either 
mooted or voluntarily withdrawn.  However, the Superior Court directed Sekou, Webster, and 
Joseph to respond to the mootness concern within 28 days.  When neither Sekou, Webster, nor 
Joseph filed a response, the Superior Court issued a December 7, 2017 opinion and order 
dismissing Count I as moot.  However, on December 18, 2017, Sekou, Webster, and Joseph filed 
a motion for reconsideration of the December 7, 2017 opinion and order, on grounds that they had 
never received a copy of the September 12, 2017 opinion and order.  The Superior Court, in a 
Sekou v. Moorhead 
S. Ct. Civ. No. 2018-0011 
Opinion of the Court 
Page 7 of 15 
 
December 22, 2017 order, granted the motion for reconsideration, and granted Sekou, Webster, 
and Joseph twenty days to file a response to the mootness question, which they ultimately did on 
January 17, 2018.  Ultimately, in a January 23, 2018 order, the Superior Court characterized the 
plaintiffs’ January 17, 2018 filing as a motion under Virgin Islands Rule of Civil Procedure 60(b), 
and denied the motion on grounds that they had failed to present any legal argument as to why any 
of the exceptions to the mootness doctrine were applicable to Count I.  Sekou, Webster, and Joseph 
timely filed a notice of appeal with this Court on February 20, 2018.  See V.I. R. APP. P. 4(a)(1). 
II. 
DISCUSSION 
A. Jurisdiction and Standard of Review 
¶13 
We have jurisdiction over “all appeals from the decisions of the courts of the Virgin Islands 
established by local law[.]” 48 U.S.C. § 1613a(d); see also 4 V.I.C. § 32(a) (granting this Court 
jurisdiction over “all appeals arising from final judgments, final decrees or final orders of the 
Superior Court”).  Because it resolved the last outstanding claims between the parties, the Superior 
Court’s January 23, 2018 order constitutes a final appealable judgment. 
¶14 
This Court exercises de novo review over the Superior Court's application of law, and 
reviews factual findings for clear error. St. Thomas—St. John Bd. of Elections v. Daniel, 49 V.I. 
322, 329 (V.I. 2007). 
B. Motion to Disqualify 
¶15 
In their appellate brief, Sekou, Webster, and Joseph allege that the Superior Court abused 
its discretion when it did not allow them to present evidence on their motion to disqualify at the 
July 28, 2017 hearing, even though the May 22, 2017 order stated that it was granting their motion 
for an evidentiary hearing.  Moreover, they assert that in any case the Superior Court erred when 
it denied their motion to disqualify the Department of Justice from representing Gomez. 
Sekou v. Moorhead 
S. Ct. Civ. No. 2018-0011 
Opinion of the Court 
Page 8 of 15 
 
¶16 
Sekou, Webster, and Joseph are correct that the May 22, 2017 order expressly stated that 
their motion for an evidentiary hearing was being granted, and that the Superior Court therefore 
proceeded inconsistently with its own directive at the July 28, 2017 hearing when it effectively 
only heard oral arguments on the motion to disqualify.  However, the Virgin Islands Rules of 
Appellate Procedure provide that “[n]o error or defect in any ruling or order or in anything done 
or omitted by the Superior Court or by any of the parties is ground for granting relief or reversal 
on appeal where its probable impact, in light of all of the evidence in the case, is sufficiently minor 
so as not to affect the substantial rights of the parties.”  V.I. R. APP. P. 4(i). 
¶17 
Ordinarily, the Superior Court should hold an evidentiary hearing when considering 
whether an attorney should be disqualified as counsel.  In re Drue, 57 V.I. 524 (V.I. 2012).  
However, this Court has already held that the Superior Court need not hold an evidentiary 
hearing—even if one would ordinarily be required—if the moving party “fails to ‘present[] a 
colorable factual basis to support [its] claim.’”  3RC & Co. v. Boynes Trucking Sys., 63 V.I. 544, 
561 (V.I. 2015) (quoting Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1175-76 (3d Cir. 
1990)). 
¶18 
This is such a case.  When the Superior Court questioned why Sekou, Webster, and Joseph 
needed to introduce evidence to support their claim, it expressly invoked 3 V.I.C. § 114(a)(6), 
which by its own terms authorizes the Attorney General of the Virgin Islands “to appear for and 
represent the executive branch of the Government of the United States Virgin Islands, and all 
departments, boards, commissions, agencies, instrumentalities or officers thereof, before all 
administrative tribunals or bodies of any nature, in all legal or quasi-legal matters, hearings or 
Sekou v. Moorhead 
S. Ct. Civ. No. 2018-0011 
Opinion of the Court 
Page 9 of 15 
 
proceedings.”3  (emphasis added).  The sole argument given in support of disqualifying the 
Attorney General from representing Gomez is that Sekou, Webster, and Joseph are also members 
of the Board.  However, this Court previously rejected a virtually identical argument in a case in 
which members of the Virgin Islands Board of Elections had sued the Supervisor of Elections and 
objected to the Department of Justice representing the Supervisor.  Moses v. Fawkes, 66 V.I. 454, 
470-71 (V.I. 2017).  Consequently, because the issue of whether the Department of Justice is 
authorized to represent Gomez rests on a pure question of statutory interpretation,4 and that statute 
has already been interpreted by this Court to permit such representation, there was no colorable 
factual basis to support disqualifying the Attorney General. Thus the Superior Court committed no 
error when it denied the motion to disqualify, and any error in converting the hearing on the motion 
 
3 In their appellate brief, Sekou, Webster, and Joseph assert that “[i]n the instant case, Defendants 
Gomez and Moorhead are being sued in their individual capacities.”  (Appellants’ Br. 23.)  
However, it is clear from their complaint that Sekou, Webster, and Joseph are suing Gomez and 
Moorhead exclusively for actions they took in their respective capacities as Vice-Chair and Chair 
of the Board. 
 
4 Sekou, Webster, and Joseph allege that a conflict of interest exists because the Department of 
Justice is representing the Virgin Islands Department of Labor in an unrelated lawsuit against the 
Board, and the Board has purportedly not consented to the dual representation.  Rule 211.1.7 of 
the Virgin Islands Rules of Professional Conduct provides that 
 
Except as provided in paragraph (b), a lawyer shall not represent a client if the 
representation involves a concurrent conflict of interest.  A concurrent conflict of 
interest exists if:  
(1) the representation of one client will be directly adverse to another client 
. . . . 
 
V.I.S.CT.R. 211.1.7.(a)(1).  But here, the Department of Justice is representing Gomez, not the 
Board.  In any event, it is not clear how the Department of Justice’s representation of Gomez in 
this matter would be “directly adverse” to its representation of the Department of Labor in a wholly 
unrelated lawsuit against the Board. 
Sekou v. Moorhead 
S. Ct. Civ. No. 2018-0011 
Opinion of the Court 
Page 10 of 15 
 
to disqualify from an evidentiary hearing to oral arguments is harmless.5 
C. Conversion of Motion to Dismiss 
¶19 
Sekou, Webster, and Joseph renew their argument that the Superior Court improperly 
converted the motion to dismiss into a motion for a summary judgment.   According to them, the 
converted motion was “procedurally defective under both the old rules and the new rules” of civil 
procedure.  (Appellants’ Br. 28.)  The “new rules” they refer to are the Virgin Islands Rules of 
Civil Procedure, which became effective on March 31, 2017, and replaced the “old rules” of civil 
procedure, including former Superior Court Rule 7, which provided that “[t]he practice and 
procedure in the Superior Court shall be governed by the Rules of the Superior Court and, to the 
 
5 The concurring in part and dissenting in part opinion asserts that our interpretation of section 114 
purportedly violates the constitutional separation of powers because the Department of Justice 
“could conceivably represent Virgin Islands senators or judges in civil matters.”  2020 V.I. 4 ¶ 58.  
Because the Department of Justice and the Board of Education are both within the executive 
branch, permitting the Department of Justice to represent Gomez as Vice-Chair of the Board poses 
no separation of power concerns.  See 3 V.I.C. § 97; see also St. Croix Avis v. West Indian Co., 
Ltd., 2019 VI Super 81 ¶ 31 (“There is no fourth branch of government.  So, [the independent 
agency] is not a fourth branch of the Virgin islands Government[,] [b]ut is part of the executive 
branch.”). 
 
In any case, courts have repeatedly held that the separation of powers is not violated when 
the Attorney General, the Department of Justice, or comparable officials represent the legislative 
or judicial branches in civil litigation. See, e.g., Waterman v. Anenberg, 197 F.Supp. 11, 12 (E.D. 
N.Y. 1961) (holding that “there is no merit” to plaintiff’s claim that the Attorney General lacks the 
authority to represent judges of New York City’s municipal court who have been sued under 42 
U.S.C. § 1983); Hussey v. Say, 384 P.3d 1282, 1291 (Haw. 2016) (rejecting argument that the 
Hawai’i Attorney General cannot represent the Hawai’i House of Representatives); Johnson v. 
Board of Bar Overseers of Ma., No. 06-P-1809, 2007 WL 4234100, at *3 (Mass. Ct. App. Dec. 3, 
2007) (unpublished) (“[t]he Attorney General also has a common law duty to represent the public 
interest and enforce public rights,” and thus “the Attorney General may represent members of the 
judiciary” and “also may . . . represent the arms of the judiciary”).  Of course, as co-equal branches 
of government, the legislative and judicial branches may elect to retain independent counsel in lieu 
of accepting representation by the Department of Justice.  See, e.g., 4 V.I.C. § 4(c)(5)(J) 
(authorizing the Administrator of Courts, subject to the administrative authority of the Supreme 
Court and the Chief Justice, to “procur[e] legal services to enforce any rights granted to the Virgin 
Islands court system or to represent individual judges, justices, magistrate judges, supervisors, and 
other court personnel in legal matters arising from performance of their official duties. . . .”). 
Sekou v. Moorhead 
S. Ct. Civ. No. 2018-0011 
Opinion of the Court 
Page 11 of 15 
 
extent not inconsistent therewith, by the Rules of the District Court, the Federal Rules of Civil 
Procedure, the Federal Rules of Criminal Procedure and the Federal Rules of Evidence.”   
¶20 
Although Jones filed her motion on January 31, 2017, and the Virgin Islands Rules of Civil 
Procedure did not go into effect until two months later on March 31, 2017, Rule 1-1(c)(2)(B) of 
the Virgin Islands Rules of Civil Procedure provides that the new rules would apply to pending 
cases unless “applying them in a particular previously-pending action would be infeasible or would 
work an injustice.”  Because Sekou, Webster, and Joseph assert that the January 31, 2017 motion 
is “procedurally defective” due to a failure to comply with provisions of Virgin Islands Rule of 
Civil Procedure 56 that lack a counterpart in Federal Rule of Civil Procedure 56,6 it would clearly 
“be infeasible or would work an injustice” to retroactively apply those provisions to the January 
31, 2017 motion.  Therefore, we apply the old rules with respect to determining whether the motion 
was procedurally defective.  Accord, Mills-Williams v. Mapp, 67 V.I. 574, 586 (V.I. 2017) 
(applying the old pleading rules to a pleading that had been filed and dismissed prior to adoption 
of the Virgin Islands Rules of Civil Procedure). 
¶21 
In their brief, Sekou, Webster, and Joseph allege that Jones’s motion was defective because 
of United States District Court of the Virgin Islands Local Rule 56.1.  That Rule, which they assert 
was made applicable through former Superior Court Rule 7, required that a party file a separate 
statement of material facts with a summary judgment motion.  However, the January 31, 2017 
 
6 Although the Federal Rules of Civil Procedure served as a model for many provisions of the 
Virgin Islands Rules of Civil Procedure, the Reporter’s Note accompanying Virgin Islands Rule 
of Civil Procedure 56 reflects that the Advisory Committee on Rules had concluded that Federal 
Rule of Civil Procedure 56 did not “adequately elicit statements of undisputed and disputed facts 
that prove very helpful in the fair disposition of summary judgment motions.”  V.I. R. CIV. P. 56 
Reporter’s Note.  Thus, Virgin Islands Rule of Civil Procedure 56 contains several requirements 
meant to address this concern, including requiring the movant to include “a discrete section of the 
moving papers that states undisputed facts individually, and numbers them.”  Id. 
Sekou v. Moorhead 
S. Ct. Civ. No. 2018-0011 
Opinion of the Court 
Page 12 of 15 
 
motion had been filed as a motion to dismiss; it only became a summary judgment motion when 
the Superior Court converted it to one after determining that it raised matters outside the pleadings. 
See FED. R. CIV. P. 12(d).  Sekou, Webster, and Joseph have cited to no legal authority to support 
the proposition that formatting requirements applicable to summary judgment motions may be 
retroactively applied to a motion that the litigant never intended to serve as a summary judgment 
motion.    
¶22 
Nevertheless, we need not determine whether the conversion of Jones’s motion to dismiss 
to one for summary judgment by the court required her to comply with the procedural rules 
applicable to summary judgment motions.  This Court has already held that District Court Rule 
56.1 has never been made applicable to Superior Court proceedings through Rule 7.  See 
Vanterpool v. Gov’t of the V.I., 63 V.I. 563, 583 (V.I. 2015) (“District Court Rule 56.1 does not 
apply to proceedings in the Superior Court, because it merely established a filing requirement for 
which there was no basis to extend to the Superior Court.”). Consequently, Jones was never 
obligated to comply with District Court Rule 56.1. 
D. Summary Judgment 
¶23 
Sekou, Webster, and Joseph contend that the Superior Court erred when it granted the 
motion for summary judgment with respect to Counts II and III.  However, virtually all of their 
legal arguments in this regard focus on the merits, particularly whether Jones was authorized to 
represent Moorhead and Gomez in Super. Ct. Civ. No. 71/2016 (STX).  But the September 12, 
2017 opinion reflects that the Superior Court granted summary judgment on Counts II and III 
primarily based on its determination that Sekou, Webster, and Joseph lacked authority or standing 
to assert those causes of action.  As the Superior Court correctly recognized,  
The Virgin Islands Board of Education has authority and jurisdiction to— 
Sekou v. Moorhead 
S. Ct. Civ. No. 2018-0011 
Opinion of the Court 
Page 13 of 15 
 
. . . . 
(8) bring court proceedings for enforcement of rights and the collection of accounts, 
and to this end may contract for such personal services as are deemed necessary by 
the Board; 
 
17 V.I.C. § 21(a)(8).  However, the statute establishing the Board expressly provides that 
The business which the Board is authorized to transact shall be done at regular or 
special meetings at which not less than five members are present, and no act shall 
be valid unless voted for by an affirmative vote of a majority of the members 
present, and a true record made of such votes. 
 
3 V.I.C. § 98(b).  Thus, a court proceeding to enforce the Board’s rights is only authorized if it 
receives the affirmative votes of a majority of the members present at a regular or special meeting 
at which there is a quorum.  Here, it is undisputed that no majority of the Board has authorized 
Sekou, Webster, and Joseph’s lawsuit.  Therefore, the Superior Court committed no error when it 
held that Sekou, Webster, and Joseph lacked the authority or standing to bring Counts II and III 
on behalf of the Board.  Cf., Hansen v. O’Reilly, 62 V.I. 494, 519-20 (V.I. 2015) (recognizing the 
principle that a board may only act through an affirmative vote of a majority of its members at a 
meeting). 
¶24 
Similarly, the Superior Court committed no error when it held that Sekou, Webster, and 
Joseph could not bring Count III even in their personal capacities.  In its September 12, 2017 
opinion, the Superior Court emphasized that 5 V.I.C. § 541 governs the award of costs and 
attorneys’ fees.  That statute provides, in pertinent part, as follows: 
(a) Costs which may be allowed in a civil action include: 
. . . . 
(6) Attorney's fees as provided in subsection (b) of this section. 
(b) The measure and mode of compensation of attorneys shall be left to the 
agreement, express or implied, of the parties; but there shall be allowed to the 
prevailing party in the judgment such sums as the court in its discretion may fix by 
way of indemnity for his attorney's fees in maintaining the action or defenses 
thereto; provided, however, the award of attorney's fees in personal injury cases is 
prohibited unless the court finds that the complaint filed or the defense is frivolous. 
Sekou v. Moorhead 
S. Ct. Civ. No. 2018-0011 
Opinion of the Court 
Page 14 of 15 
 
 
5 V.I.C. § 541(a)-(b) (emphasis added). As the Superior Court indicated in its September 12, 2017 
opinion, it is—at best—questionable whether Sekou, Webster, and Joseph were the “prevailing 
party” in Super. Ct. Civ. No. 71/2016 (STX), given that the action had been dismissed as moot.7  
However, the proper mechanism for Sekou, Webster, and Joseph to be reimbursed for their costs 
and attorneys’ fees was not a separate lawsuit, but a timely-filed motion for costs attorneys’ fees 
in Super. Ct. Civ. No. 71/2016 (STX), which if granted would have provided for payment of those 
costs and fees “in the judgment” of that case.  See In re Royers, S. Ct. Civ. No. 2014-0023, 2014 
WL 2938456, at *2 (V.I. June 30, 2014) (unpublished) ( “[T]he better practice is for the trial court 
to defer entry of the written judgment until after a ruling is made on the issue of attorney’s fees, 
and incorporate all of its rulings into a single, written judgment”) (quoting McClure v. County of 
Jackson, 648 S.E.2d 546, 551 (N.C. Ct. App. 2007)).  Significantly, even though this was the stated 
basis for the dismissal of Count III, Sekou, Webster, and Joseph do not even attempt to address 
the issue in their appellate brief. See V.I. R. APP. P. 22(m).  Consequently, the Superior Court 
committed no error when it granted summary judgment to Gomez, Moorhead, and Jones on Counts 
II and III. 
E. Mootness 
¶25 
Finally, Sekou, Webster, and Joseph contend that the Superior Court erred when it 
 
7 Although the Superior Court concluded that Sekou, Webster, and Joseph were not the prevailing 
party in that case because it had been dismissed as moot, the fact that a case has nominally been 
dismissed does not necessarily preclude an award of fees and costs as a prevailing party.  Rather, 
courts must consider the events that led to the case becoming moot, including whether the party 
has actually received a benefit despite the dismissal.  See Metropolitan Pittsburgh Crusade for 
Voters v. City of Pittsburgh, 964 F.2d 244, 249-51 (3d Cir. 1992).  Nevertheless, we decline to 
resolve this issue as part of this appeal because the appropriate mechanism for Sekou, Webster, 
and Joseph to obtain costs and attorneys’ fees is not a separate lawsuit, but a timely-filed motion 
in Super. Ct. Civ. No. 71/2016 (STX) requesting such an award under 5 V.I.C. § 541.  
Sekou v. Moorhead 
S. Ct. Civ. No. 2018-0011 
Opinion of the Court 
Page 15 of 15 
 
dismissed Count I as moot.  However, as with their filing in the Superior Court, their appellate 
brief simply states that exceptions to the mootness doctrine exist, and that this Court has previously 
declined to dismiss certain appeals as moot, without providing any legal argument whatsoever as 
to how any of those exceptions are applicable to the dismissal of Count I of their complaint.  
Therefore, Sekou, Webster, and Joseph have waived this argument.  See V.I. Taxi Ass’n v. V.I. Port 
Auth., 67 V.I. 643, 665 n.14 (V.I. 2017) (“Although we have recognized exceptions to the 
mootness doctrine . . . [the appellant] has not argued that any such exceptions apply here.  
Accordingly, any such argument is waived.”); see also V.I. R. APP. P. 22(m) (“Issues that . . . are 
only adverted to in a perfunctory manner or unsupported by argument and citation to legal 
authority, are deemed waived for purposes of appeal.”). 
III. CONCLUSION 
 
¶26 
The Superior Court committed no error when it denied the motion to disqualify the 
Department of Justice, converted the motion to dismiss to a motion for summary judgment, entered 
summary judgment in favor of Moorhead, Gomez, and Jones with respect to Counts II and III, and 
dismissed Count I as moot.  Accordingly, we affirm the final judgment of the Superior Court 
dismissing all claims in this action. 
Dated this 24th day of April, 2020. 
 
 
 
 
 
 
 
 
BY THE COURT: 
 
 
 
 
 
 
 
 
 
/s/ Rhys S. Hodge________ 
 
 
 
 
 
 
 
RHYS S. HODGE 
 
 
 
 
 
 
 
 
Chief Justice  
 
ATTEST:  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
VERONICA J. HANDY, ESQ. 
Clerk of the Court 
SWAN, Associate Justice, concurring in part and dissenting in part 
¶27 
Appellants Nandi Sekou, Martial Webster, and Terrance Joseph appeal the Superior 
Court’s January 19, 2018 order denying their motion for reconsideration. Appellants filed the 
motion following the court’s December 7, 2017 order granting Defendant Mary Moorhead’s 
motion to dismiss count one of Appellants’ three count complaint.1 For the reasons elucidated 
below, I concur in part and dissent in part with the majority’s opinion. 
I. 
FACTS AND PROCEDURAL HISTORY 
¶28 
This matter is before this Court following a contentious course. On February 18, 2016, 
Appellants filed a complaint in the Superior Court’s St. Croix Division disputing numerous actions 
taken by the Virgin Islands Board of Education (“BOE”) after its scheduled January 15-16, 2016 
meeting. At the meeting, a majority of the BOE members present voted to remove Nandi Sekou 
and Terrance Joseph as Chair and Vice-Chair respectively and to install Mary Moorhead as Chair 
and Judy Gomez as Vice-Chair. However, BOE regulations instruct that all matters to be 
considered by the Board at the meeting be published no later than three days before an upcoming 
meeting in its official, publicly-circulated agenda. (J.A. 17). Appellants’ 2016 complaint alleged 
that BOE’s agenda prior to the January 15-16, 2016 meeting failed to include the subject of the 
removal and election of officers, in violation of BOE by-laws. The complaint also alleged that 
Moorhead’s and Gomez’s actions following the unauthorized election jeopardized the Board’s 
stability because Moorhead and Gomez abused their authority by interfering with routine board 
operations.  
 
1 In a September 12, 2017 order, the Superior Court dismissed Count 2 and Count 3 of the Appellants’ complaint as 
moot.  
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¶29 
On February 19, 2016, the Superior Court granted Appellants’ motion for a temporary 
restraining order (“TRO”) precluding further action by the newly elected officers. On March 4, 
2016, the court continued Appellants’ motion for a preliminary injunction and extended the TRO 
until a regularly scheduled BOE meeting could be held to clarify the issue of the board’s elections. 
Importantly, all parties agreed to the TRO extension until a board meeting verifying the January 
15-16, 2016 elections was held.  
¶30 
On March 18, 2016, BOE held a proper meeting with sufficient notice to its members. At 
the meeting, BOE upheld Sekou’s and Joseph’s removal and simultaneously confirmed 
Moorhead’s and Gomez’s installation. Eventually, the court dismissed Appellants’ complaint as 
moot because the March 18, 2016 meeting was conducted in accordance with board by-laws and 
3 V.I.C. §§ 97-98. The court also noted that Appellants did not contest the legitimacy of the March 
18 meeting. Nonetheless, on June 23, 2016, Appellants filed a notice of appeal with this Court, 
which we dismissed for want of timely prosecution on August 9, 2016.  
¶31 
On January 3, 2017, Appellants filed a three count verified complaint. In count one, 
Appellants alleged that Moorhead and Gomez violated 3 V.I.C. § 98(a) by failing to timely call a 
meeting for the election of new officers following the 2016 general election and asked the court to 
implement a TRO compelling BOE to hold such a meeting between January 9 and January 13, 
2017 rather than January 21, 2017 as had been scheduled by defendants. In count two, Appellants 
argued that Appellee Jennifer Jones’s 2016 representation of the other Appellees in the 2016 action 
was unauthorized and improper. Accordingly, Appellants asked the court for an accounting and 
disgorgement of all money paid to Jones for the representation. In count three, Appellants asserted 
that they expended considerable funds to vindicate their rights as well as those of BOE in the 2016 
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action and were successful in their efforts by obtaining and extending a TRO. Accordingly, 
Appellants sought compensatory, consequential, and punitive damages from all Appellees.  
¶32 
On January 31, 2017, Jones filed a motion to dismiss, which Gomez joined by filing a 
notice on February 22, 2017. Gomez supported her filing with a supplemental memorandum of 
law submitted on February 27, 2017. On February 23, 2017, Moorhead filed a separate letter with 
the court that the court designated as a motion to dismiss. On March 28, 2017, Moorhead, 
proceeding pro se, also joined Jones’s motion by filing a letter so stating.  
¶33 
On February 3, 2017, the Superior Court issued an order requiring that Appellants respond 
to Jones’s motion by February 21, 2017. However, on that day, Appellants filed a motion to strike, 
contending that Jones’s motion relied on matters outside the pleadings. On March 2, 2017, the 
court denied Appellants’ motion to strike. In the order, the court reasoned that Appellants failed to 
present any legal or factual basis for striking Jones’s motion to dismiss but rather offered 
considerable basis to convert Jones’s motion to strike into a motion for summary judgment. 
Accordingly, the court sua sponte transformed the motion to dismiss into a motion for summary 
judgment. Moreover, the court ordered Appellants to respond to Jones’s converted motion for 
summary judgment within 21 days of the March 2, 2017 hearing. However, on that day, Appellants 
filed a motion to stay further proceedings and, one day later, they filed a motion to disqualify the 
Department of Justice (“DOJ”) as counsel for Gomez. Gomez and Jones filed separate oppositions 
to Appellants’ motion to disqualify, which prompted Appellants to move for an evidentiary 
hearing.  
¶34 
On May 22, 2017, the Superior Court again ordered Appellants to respond to Jones’s 
converted summary judgment motion. Its order granted Appellants’ motion for an evidentiary 
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hearing, which the court scheduled for July 28, 2017. The order further informed the parties to be 
prepared to present arguments on all pending motions. On June 16, 2017, Appellants filed an 
opposition to Jones’s motion. On June 29, 2017, Jones replied to Appellants’ opposition. 
¶35 
On September 12, 2017, the court rendered its decision. As to count two, the court opined 
that Appellants failed to address the Appellees’ standing and authority arguments. On count three, 
the court found Appellants could not recover damages because they were not the prevailing parties 
in the 2016 action and their contention ignored the salient facts and established law, considering 
the matter was dismissed after a proper BOE meeting with adequate notice where officers were 
elected pursuant to the board’s rules and local law. Therefore, the court dismissed both counts.  
¶36 
On count one, the court granted Appellants 28 days to respond to Moorhead’s February 21, 
2017 letter that addressed the issue. However, the court noted count one was not subject to Jones’s 
summary judgment motion because neither Jones nor Gomez discussed the issue in their respective 
filings. The court concluded that the issue had become moot because Appellants’ February 2, 2017 
informative motion contained an explicit withdrawal of their demand for injunctive relief, which 
the court construed as a voluntary dismissal or, at least, a formal recognition the issue was moot.  
¶37 
On November 15, 2017, Moorhead filed a letter with the Superior Court, requesting that 
Appellants be deemed to have conceded to her February 23 motion to dismiss because they failed 
to respond. On December 6, 2017, the court entered an order on count one. Finding that Appellants’ 
continued demand for a declaratory judgment was insufficient to sustain the claim and that such a 
judgment would obliterate the court’s ability to render meaningful relief because of the absence of 
an actual case or controversy, the court dismissed count one.  
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¶38 
On December 18, 2017, Appellants filed a motion to reconsider the December 6 dismissal. 
In the motion, Appellants alleged that they never received the court’s September 12, 2017 order 
that dismissed counts one and two until November 2017 when their former attorney obtained a 
copy of the court’s December 6 order but lacked contact information to reach them. Therefore, 
Appellants asked the court for 20 days to respond to Moorhead’s motion. On December 22, 2017, 
the court issued an order construing Appellants’ motion to reconsider as a motion to extend the 
time in which to file a motion for reconsideration. Under that premise, the court granted Appellants 
20 days in which to file a proper motion to reconsider. 
¶39 
On January 16, 2018, Appellants filed a motion to reconsider and a memorandum in 
support of the motion to reconsider. In the support memorandum, Appellants premised the motion 
to reconsider on the court correcting clear error or preventing a manifest injustice. They asserted 
that, without court intervention, the full story would not be heard. They also argued that count one 
was not moot and cited federal case law to bolster their contention.  
¶40 
On January 22, 2018, the court denied Appellants’ motion for reconsideration. In the order, 
the court stated that Appellants cited no local case law or applicable rules to support their 
arguments. The court also found that Appellants’ motion failed to apply the federal mootness law 
it cited to the facts of the case. Finally, the court said, although the exception to the mootness 
doctrine cited by Appellants exists in the Virgin Islands, the exception principally applied to cases 
involving the general election of public officials and not the internal election of a board’s officers. 
Thus, the court could not identify any reason to grant Appellants’ motion.  
¶41 
On February 20, 2018, Appellants filed a notice of appeal to this Court. In the notice, 
Appellants posited four issues with which they took umbrage. First, they contended the Superior 
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Court abused its discretion in denying their motion for reconsideration. Second, they alleged that 
the court committed error in dismissing their complaint. Third, they asserted that the court abused 
its discretion by transforming an evidentiary hearing into oral arguments scheduled on the same 
day they appeared for the hearing. Fourth, they argued that the court erred in failing to dismiss the 
Attorney General from representing Judy Gomez.  
II. 
JURISDICTION 
¶42 
“The Supreme Court [has] jurisdiction over all appeals arising from final judgments, final 
decrees, and final orders of the Superior Court.” 4 V.I.C. § 32(a). “An order that disposes of all 
claims submitted to the Superior Court is considered final for the purposes of appeal.” Jung v. 
Ruiz, 59 V.I. 1050, 1057 (V.I. 2013) (citing Matthew v. Herman, 56 V.I. 674, 677 (V.I. 2012)). 
Because the Superior Court’s January 22, 2018 order denying Appellants’ motion for 
reconsideration disposed of all claims submitted for adjudication, the order is final and we exercise 
jurisdiction over Appellants’ appeal of the motion to reconsider. 
III. 
STANDARD OF REVIEW 
¶43 
We review the trial court’s factual findings for clear error and exercise plenary review over 
its legal determinations. Thomas v. People, 63 V.I. 595, 602-03 (V.I. 2015) (citing Simmonds v. 
People, 53 V.I. 549, 555 (V.I. 2010)). “The appropriate standard of review for a denial of a motion 
to reconsider is generally abuse of discretion, but if the trial court’s denial was based upon the 
interpretation or application of a legal precept, then review is plenary.” Lucan Corp., Inc. v. Robert 
L. Merwin & Co., Inc., No. 2007-15, 2008 WL 901492, at *2 (V.I. Jan. 7, 2008) (unpublished) 
(citing Koshatka v. Philadelphia Newspapers, Inc., 762 F.2d 329, 333 (3d Cir. 1985)).  
IV. 
DISCUSSION 
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A. The Superior Court did not Abuse its Discretion in Changing the July 28, 2017 
Evidentiary Hearing into a Hearing for Oral Arguments 
¶44 
On appeal, Appellants contend the Superior Court abused its discretion in modifying the 
July 28, 2017 evidentiary hearing on their motion to disqualify DOJ into oral arguments on the 
matter. A court abuses its discretion when its analysis and resulting conclusion are arbitrary or 
irrational. People v. Todman, 53 V.I. 431, 441 (V.I. 2010) (citing United States v. Universal Rehab. 
Servs. (PA), Inc., 205 F.3d 657, 665 (3d Cir. 2000)). See Poleon v. Gov’t. of the V.I., 184 F.Supp.2d 
428, 434 (D.V.I. 2002) (“An abuse of discretion is a clear or obvious error of judgment that must 
affect substantial rights, and not simply a different result which can arguably be obtained when 
applying the law to the facts of the case.”) (internal citations omitted); O’Boyle v. Thrasher, 647 
Fed. Appx. 994, 995 (11th Cir. 2016) (“The abuse of discretion standard of review is ‘extremely 
limited and highly deferential.’. . . When employing the abuse-of-discretion standard, ‘we must 
affirm unless we find the district court has made a clear error of judgment or has applied the wrong 
legal standard.’”) (citations omitted).   
¶45 
In its May 22, 2017 order, the Superior Court did state that it would hold an evidentiary 
hearing on Appellants’ motion to disqualify DOJ as counsel for Gomez. Appellants argue that the 
court abused its discretion when it prohibited the presentation of evidence and only permitted oral 
arguments on the issue at the July 28, 2017 hearing. However, Rule 4 of the Virgin Islands Rules 
of Appellate Procedure clearly provides that “[n]o error or defect in any ruling or order or in 
anything done or omitted by the Superior Court or by any of the parties is ground for granting 
relief or reversal on appeal where its probable impact, in light of all the evidence in the case, is 
sufficiently minor as not to affect the substantial rights of the parties.” V. I. R. APP. P. 4(i). See 
Pickering v. People, 66 V.I. 276, 289 (V.I. 2017) (“To affect [an appellant’s] substantial rights, 
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the error must be prejudicial, which means that there must be a reasonable probability that the error 
affected the outcome of the trial.”) (citations omitted); cf. United States v. Voigt, 89 F.3d 1050, 
1068 (3d Cir. 1996) (“[A]ny ‘error’ arising from the district court’s failure to hold an independent 
evidentiary hearing in this case is unquestionably harmless.”).    
¶46 
Although an evidentiary hearing is usually held when a party requests an attorney’s 
disqualification, local and federal case law suggest that a hearing is not always necessary. See 
Farrell v. Hess Oil Virgin Islands, 57 V.I. 50, 64-65 n.73 (V.I. Sup. Ct. 2012) (explaining that 
although the prevailing practice in the Virgin Islands is to hold an evidentiary hearing when 
deciding attorney disqualification motions, a court may decide the motion on the papers presented 
before it); Lowe v. Experian, 328 F. Supp.2d 1122, 1125 (D. Kan. 2004) (“In some instances an 
evidentiary hearing is required before the court may enter an order disqualifying counsel. An 
evidentiary hearing, however, is not required when the parties have fully briefed the issue and 
when there are no disputed issues or acts or there is otherwise no need for any additional evidence 
to be presented to the court.”); Gen. Mill Supply Co. v. SCA Servs., Inc., 697 F.2d 704, 710 (6th 
Cir. 1982) (“We think a decision for disqualification is adequately founded without an evidentiary 
hearing if the ‘factual inquiry’ is conducted in a manner that will allow appellate reviews, as it is 
when conducted on affidavits and documents that would be acceptable under Rule 56(e) . . . and 
if the district judge does not undertake to decide disputed issues of fact.”); GTE North, Inc. v. 
Apache Products Co., 914 F. Supp. 1575, 1580 (N.D. Ill 1996) (“Ordinarily, the proper method 
for the district court to make [an attorney disqualification] determination would be to either 
conduct an evidentiary hearing or review evidence in the form of affidavits.”), Weeks v. Indep. 
Sch. Dist. No. I-89 of Okla. Cnty., 230 F.3d 1201, 1212 (10th Cir. 2000) (explaining that the district 
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court had numerous reasons for not holding an evidentiary hearing including considerable 
evidence in the trial record before disqualifying an attorney); Voigt, 89 F.3d at 1076 (explaining 
that, although the court heard oral argument on the issue, the trial record was sufficient for the 
court to disqualify an attorney without an evidentiary hearing); Ruhlman v. Rudolfksy, No. 2:14-
CV-00879, 2017 WL 9771835, at *1 (D. Nev. Feb. 8, 2017) (unpublished) (explaining that an 
evidentiary hearing was unnecessary to disqualify a lawyer for violating a local Rule of 
Professional Conduct).           
¶47 
In this case, Appellants and Gomez filed papers relating to the issue of DOJ’s 
disqualification. As stated in Farrell, a court may decide the issue of an attorney’s disqualification 
based on the papers submitted by the parties without an evidentiary hearing when a proper 
evidentiary record is already before the court. That situation is precisely what transpired here. 
Appellants’ initial motion to disqualify DOJ contained approximately six pages of facts and three 
pages of argument, focusing on their contention that DOJ was disqualified pursuant to Rule 
1.7(a)(1) of the ABA Model Rules of Professional Conduct and the corresponding provisions of 
the local Virgin Islands Rules of Professional Conduct. (J.A.81-90). Additionally, Appellants 
attached exhibits to the motion. Id. Prior to filing the motion, Appellants filed a four page motion 
requesting an evidentiary hearing on the issue. (J.A. 179-182). After DOJ filed its opposition to 
the motion, Appellants filed an eight page reply. (J.A. 105-112). One day before the July 28, 2017 
hearing, Appellants filed a seven page motion that asked the court to disqualify DOJ alternatively 
as a sanction for interfering with the service of certain subpoenas. (J.A. 273-279). Lastly, Gomez, 
through DOJ, filed a nine page opposition to Appellants’ motion. Thus, the Superior Court had 
sufficient information to determine in advance of the hearing whether additional submissions 
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would be necessary or helpful in deciding the issue of whether DOJ should have been disqualified 
as Gomez’s counsel. Even if the court should have held the hearing and DOJ was disqualified, the 
error in failing to hold the hearing is harmless because neither the hearing nor DOJ’s 
disqualification would not have changed the outcome of the case since Appellants lacked standing 
to sue on BOE’s behalf, and they were not prejudiced by DOJ’s representation of Gomez. Droste 
v. Julien, 477 F.3d 1030, 1036 (8th Cir. 2007) (“[W]e believe an error in disqualifying counsel in 
the civil context is subject to a harmless error analysis.”) See also In re Westgate-California Corp., 
634 F.2d 459, 462 (11th Cir. 1980) (“Even if the failure to hold an evidentiary hearing on Royal 
Bank’s objections was error, the error was harmless. At the confirmation hearing, the district court 
had before it all of the evidence that was relevant to the determination of Royal Bank’s claim.”) 
Therefore, I conclude that the Superior Court did not abuse its discretion by not holding an 
evidentiary hearing on the issue of DOJ’s disqualification.   
B. DOJ Lacked Authority to Represent Gomez 
 
1. Statutory Interpretation 
¶48 
Appellants argue the Superior Court erred by not disqualifying DOJ as Gomez’s counsel. 
Under 3 V.I.C. § 114(a)(6)-(7), DOJ, through the Attorney General, is charged with representing 
the executive branch of the Virgin Islands government and providing legal advice to its officers.2, 
3 At the July 28, 2017 hearing, the court relied on section 114 in denying Appellants’ motion to 
 
2 “[T]o appear for and represent the executive branch of the Government of the United States Virgin Islands, and all 
departments, boards, commissions, agencies, instrumentalities or officers thereof, before all the tribunals or bodies 
of any nature, in all legal or quasi-legal matters, hearings or proceedings. All duties and functions with respect to the 
Government of the Virgin Islands, or any department, board, commission, agency, instrumentality, or officer 
thereof, hereto assigned to the United States attorney solely by virtue of laws of the Virgin Islands are hereby 
transferred to the Attorney General.” 3 V.I.C. § 114(a)(6).  
3 “[T]o furnish legal advice to the Governor and all executive departments, boards, commissions, agencies, 
instrumentalities and officers of the Government of the United States Virgin Islands, concerning any matter arising 
in connection with the exercise of their official powers and duties, and to supervise and direct the legal business of 
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disqualify DOJ as Gomez’s counsel. (J.A. 343-349). However, BOE is created under 3 V.I.C. § 97 
(a)-(b), which states that BOE is an independent agency comprised of a total of nine elected 
members with four members selected from each district and one at large member.4, 5  
¶49 
Because the issue of DOJ’s ability to represent Gomez is based on two distinct statutes, I 
first cite the statutory interpretation rules. This Court has said:  
The first step when interpreting a statute is to determine whether the language is 
unambiguous and the statutory scheme is coherent and consistent, no further 
inquiry is needed. In analyzing a statutory scheme, we must give effect to every 
provision, making sure to avoid interpreting any provision in a manner that would 
render it –or any other provision-wholly superfluous and without an independent 
meaning or function of its own. But even where a statutory scheme is plain and 
internally consistent, no statute should be read literally if such a reading is contrary 
to its objective [and] this Court must consider whether applying the statute’s literal 
language leads to . . . absurd consequences or is otherwise inconsistent with the 
Legislature’s intent.  
In re L. O. F., 62 V.I. 655, 661 (V.I. 2015) (citations omitted). See N.H. Lottery Comm’n v. Bar, 
No. 19-CV-163-PB, 2019 WL 2342674, at *11-12 (D. N.H. June 3, 2019) (unpublished) (“Most 
statutory text can be readily understood by a careful reader. In such cases, the court’s mission is 
clear: It must give the statute its plain meaning. . . . Sometimes, however, words have multiple 
meanings even when read in context, and legislators fail to achieve syntactic precision. . . . In such 
cases, a court cannot blind itself to permissible sources of meaning. It must instead undertake a 
 
every executive department, board, commission, agency, instrumentality, and officer of said government.” 3 V.I.C. § 
114(a)(7).   
4 “The Virgin Islands Board of Education, referred to as the ‘Board’ in the remainder of this section is established as 
an independent agency.” 3 V.I.C. § 97(a). 
5 “The Board shall consist of nine elected members. Four shall be elected by qualified electors of the district of St. 
Croix. Four shall be elected by qualified electors of the district of St. Thomas-St. John. One member shall be elected 
at large by qualified electors of the Virgin Islands from the Virgin Islands as a whole, provided that such member is 
a bona fide resident of St. John.” 3 V.I.C. § 97(b).   
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nuanced and comprehensive review of all relevant evidence to give the statute as a whole a fair 
reading.”). 
¶50 
Although 3 V.I.C § 114(a)(6) and (a)(7) appear unambiguous on their face, ambiguity 
arises in discerning whether the clause “. . . to appear for and represent the executive branch of the 
Government of the United States Virgin Islands . . .” in subsection (a)(6) extends to the subsequent 
clause. That is, did the Legislature intend the second clause to mean the Attorney General appears 
for and represents all executive branch departments, boards, commissions, agencies, 
instrumentalities, and officers or did it intend for the Attorney General to appear for and represent 
all government entities regardless of whether they were in the executive branch? Similarly, 
subsection (a)(7) presents an identical conundrum. Does the adjective “executive” in subsection 
(a)(7) only pertain to the noun departments or does it extend to all the other nouns in that series? 
Thus, the statute is ambiguous because it is open to multiple, plausible interpretations. One St. 
Peter, LLC v. Bd. Of Land Use Appeals, 67 V.I. 920, 924 (V.I. 2017); Sharpe v. State, 350 P.3d 
388, 391 (Nev. 2015). Fortunately, courts have developed various precepts to assist statutory 
interpretation. 
¶51 
The series-qualifier canon is a rule of statutory interpretation in which a modifier that 
appears at the beginning or end of a series of terms modifies the entire series “where the natural 
construction of the language demands that the clause be read as applicable to all.” See Thomas v. 
Bryant, 919 F.3d 298, 322 (5th Cir. 2019) (“When there is a straightforward, parallel construction 
that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies 
to the entire series. . . . A typical example is the phrase ‘forcibly assaults, resists, opposes, impedes, 
intimidates, or interferes with,’ in which the modifier ‘forcibly’ modifies each verb in the list.”) 
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(quoting ANTONIN SCALIA & BRYAN A. GARNER, READING THE LAW: THE INTERPRETATION OF 
LEGAL TEXTS 147 (2012)); United States v. Mateen, 764 F.3d 627, 631 (6th Cir. 2014) (explaining 
that use of a canon should not violate the principle that assumes each word in a statute has a 
particular, non-superfluous meaning); United States v. Loyd, 886 F.3d 686, 688 (8th Cir. 2018) 
(explaining that the series-qualifier canon trumps the last antecedent rule when there is no reason 
consistent with any discernible purpose of the statute to apply the limiting phrase to the last 
antecedent alone).  
¶52 
In this case, the clause in subsection (a)(6), “to appear for and represent the executive 
branch of the Government of the United States Virgin Islands,” logically modifies the second 
clause so that it not only provides a cohesive result, but also does not render any part of the 
subsection or the statute itself superfluous. The same result occurs when one applies the canon to 
the adjective “executive” in subsection (a)(7). Applying these principles, subsection (a)(6) means 
the Attorney General appears for and represents the executive branch and all executive branch 
entities and subsection (a)(7) signifies that the Attorney General advises the executive branch and 
all executive branch units. Therefore, I conclude the Legislature intended the Attorney General to 
be counsel for the executive branch and the offices and officers under its auspices.  
¶53 
Although Appellants’ brief cites Moses v. Fawkes, 66 V.I. 454 (V.I. 2017), the ruling in 
that case is inapplicable here because the enabling legislation for the Board of Education fails to 
indicate that it is an executive agency. Importantly, in statutes creating executive departments like 
DOJ or the Department of Education, the Legislature specifically noted they were executive 
agencies. See 3 V.I.C. § 91 (“The Department of Education . . . is continued as an executive 
department in the Government of the Virgin Islands.”); 3 V.I.C. § 111 (“There is hereby 
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established as an executive department in the Government of the United States Virgin Islands the 
Department of Justice . . . .”); Compare 18 V.I.C. § 41 (“There is a single Board of  Elections that 
governs both election districts.”); 3 V.I.C. § 97 (“The Virgin Islands Board of Education . . . is 
established as an independent agency.”). If the Legislature intended the Board of Education to be 
an executive agency, it could have easily included that language in the statute creating the Board. 
See de O’Neal v. Gov’t of the V.I., 68 V.I. 619, 626-27 (2018) (explaining that Congress could 
have used alternate language to make its intent clear and its decision not to specify particular 
entities by name is of consequence). “Courts . . . presume that a legislature knows the meaning of 
words, has used words of a particular statute advisedly, and has expressed its intent by the words 
found in the statute.” Baumann v. Pub. Employees Relations Bd., 68 V.I. 304, 338 (V.I. Super. Ct. 
2018) (internal citations, quotation marks, and alterations omitted). Accordingly, the Legislature’s 
failure to classify the Board of Education as an executive agency in the Board’s enabling provision 
was a deliberate decision and one that signifies the Board of Education was never intended to be 
an executive instrumentality because the Legislature would have explicitly and adroitly crafted 
language to embed such an intent in the organization’s enabling statute if it intended otherwise. 
Therefore, Appellants’ reliance on Moses is misplaced because this matter does not implicate the 
Board of Elections but instead centers on DOJ’s ability to represent BOE although it is not an 
executive agency.               
¶54 
Having concluded subsections (a)(6) and (a)(7) of section 114 clearly state that DOJ 
represents the executive branch and provides legal advice to its officers, I recognize section 97(a) 
proclaims BOE is an independent agency. Thus, the lynchpin of whether DOJ could represent BOE 
turns on whether BOE is an executive agency. 
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¶55 
In V.I. Daily News v. Gov’t. of the V.I., 45 V.I. 139, 143-44 (V.I. Super. Ct. 2002), the court 
evaluated whether the Public Services Commission (“PSC”) and its chairman were members of 
the executive branch and, as such, entitled to be represented by DOJ. In the case, the court 
recognized that the PSC was initially created under the Department of Public Works and continued 
to exist as part of the executive branch under the Department of Licensing and Consumer Affairs 
(“DLCA”) for budgetary reasons pursuant to 3 V.I.C. § 273. Thus, the court concluded that PSC, 
as a subdivision of DLCA and the governor’s ability to appoint and remove PSC members, was 
entitled to DOJ representation. See United States v. Molander, 683 F.Supp. 701, 704 (W.D. Wis. 
1988) (explaining that a sentencing commission in the judicial branch violated the Separation of 
Powers Clause since commission members were appointed and removed by the President); Free 
Enter. Fund v. Pub. Co. Accounting Oversight Bd., 537 F.3d 667, 676-77 (D.C. Cir. 2008) 
(explaining that executive departments are usually those immediately below the President on the 
organizational chart of the executive branch and that the heads of independent agencies need not 
be wholly controlled by the President as long as they are principal officers appointed (with the 
advice and consent of the Senate) and removable by the President); Municipality of St. Thomas/St. 
John v. Gordon, 2 V.I. 107, 118 (V.I. 1948) (“[T]he governor of the Virgin Islands has the 
appointive power in all executive appointments for the Virgin Islands . . .”).  
¶56 
In this case, BOE is an independent agency separate and distinct from the executive branch. 
Unlike the PSC in V.I. Daily News, BOE is not under the auspices of any executive department. 
BOE members are elected by Virgin Islands territorial voters, not appointed by the governor, and 
the governor cannot remove BOE members. Although 3 V.I.C. § 97(g) allows the governor to 
appoint a BOE member subject to the Legislature’s approval when a BOE vacancy exists, such an 
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occurrence is an exception to the election of BOE members and only occurs when a BOE member 
moves out of his district.6, 7    Moreover, after the court dismissed the 2016 action, Solicitor General 
Pamela R. Tepper and Assistant Attorney General Carol Thomas-Jacobs submitted letters that 
undeniably stated that DOJ did not represent BOE in legal proceedings. (J.A. 296, 299). Ignoring 
those letters as well as Appellants’ assertions that, in their nine years on the Board, the rule has 
always been DOJ does not represent BOE, the court permitted DOJ to represent Gomez. (J.A. 
347). This was a blatant error because BOE is not an executive agency which would trigger the 
protections of section 114. Regardless, I conclude the Superior Court’s decision to be harmless 
because DOJ’s disqualification would not have changed the outcome of the case and Appellants 
were not prejudiced by DOJ’s representation of Gomez. 
¶57 
Additionally, if as the majority contends, 3 V.I.C. §114(a)(6) and (a)(7) allow DOJ to 
represent any independent board of the Virgin Islands government, why did the Legislature not 
include that particular governmental unit in the language of either (a)(6) or (a)(7)? “Legislative 
intent is ‘expressed by omission as well as by inclusion.’” Olympus Aluminum Products, Inc. v. 
Kehm Enterprises, Ltd., 930 F.Supp. 1295, 1312 (N.D. Iowa 1996). Therefore, the Legislature 
specifically omitted independent boards from the text of (a)(6) and (a)(7) because it did not intend 
for DOJ to represent them.  
 
 
6 “The term of office for each member shall be four years beginning on the first Monday of January following the 
election. Members must reside in the district where they are elected, therefore, a vacancy shall occur whenever a 
member moves out of his district. . . .” 3 V.I.C. § 97(c). 
7 “The Governor of the Virgin Islands shall fill any vacancy in the office of a member of the Board of Education 
subject to the approval of the Legislature, except that the person appointed to such a vacancy shall be a resident of 
the same island as the member whose office is vacant. The person appointed shall serve the remainder of the term.” 
3 V.I.C. § 97(g).  
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2. Separation of Powers 
¶58 
The majority’s interpretation of 3 V.I.C § 114(a)(6) and (a)(7) creates potential 
constitutional conundrums relating to the separation of powers doctrine. Specifically, if DOJ 
represents all departments, boards, commissions, agencies, instrumentalities, and officers of the 
Virgin Islands government as the majority claims, DOJ could conceivably represent Virgin Islands 
senators or judges in civil matters. Undoubtedly, DOJ’s representation of the local Legislature or 
Judiciary infringes on the concept of three discrete governmental branches. Accordingly, the 
majority’s literal reading of sections 114(a)(6) and (a)(7) renders the provisions absurd and, given 
the statutory interpretation rules, without any legally binding effect.   
¶59 
“The separation of powers doctrine lies at the heart of our constitutional structure of 
government. In establishing the three branches of government, the Legislative, the Executive, and 
the Judicial, the Framers conferred separate and distinct powers on each, together with correlative 
checks and balances, as a safeguard against the encroachment or aggrandizement of one branch at 
the expense of another.” United States v. Scott, 688 F.Supp. 1483, 1488 (D. N.M. 1988) (citing 
Immigration & Naturalization Service v. Chadha, 462 U.S. 919 (1983)). Moreover, the 
Constitution’s Framers believed independence between the branches of government was pivotal 
to the preservation of liberty and that “[t]he accumulation of all powers legislative, executive and 
judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, 
or elective may justly be pronounced [as] the very definition of tyranny.” Id. at 1487-88. (citations 
omitted). Nonetheless, “[t]he doctrine of separation of powers does not require the three 
departments of government to remain ‘hermetically sealed’ from one another. . . . Rather the 
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Constitution envisions the three branches of government functioning independently within their 
separate areas, but cooperatively in their relations with each other.” Id. at 1490. (citations omitted).  
¶60 
Although the executive and legislative branches may have concurrent authority on certain 
matters that intermittently overlap, case law indicates the judiciary cannot be subject to 
impermissible intermingling because its function is to remain strictly impartial. Id. at 1488. 
(citations omitted). See Havana Club Holding, S.A. v. Galleon, 62 F.Supp.2d 1085, 1095 
(S.D.N.Y. 1999) (“Legislation violates the separation of powers doctrine when it ‘prescribes a rule 
of decision for courts to follow without permitting courts to exercise their judicial powers 
independently.’”). Moreover, courts have said a judicial separation of powers violation includes 
the appearance of impropriety litigants perceive when a judge who will decide their cases has an 
excessive entanglement with the executive branch. United States v. Smith, 686 F.Supp. 847, 856 
(D. Colo. 1988) (explaining the supervision and control of a prosecutorial office violated the 
separation of powers doctrine because of the intimate involvement between Article III courts and 
the executive branch which undermined the status of the judiciary as a neutral forum for the 
resolution of disputes between citizens and their government).  
¶61 
To determine the existence of a separation of powers issue, courts examine “the extent to 
which [the challenged statute] prevents the [particular] Branch from accomplishing its 
constitutionally assigned functions. . . . If it does, a further inquiry must be made as to whether 
that impact is justified by an overriding need to promote objectives within the constitutional 
authority of the acting branch.” Scott, 688 at 1490. (citations omitted). See Confederated Tribes of 
Siletz Indians of Oregon v. United States, 110 F.3d 688, 694 (9th Cir. 1997) (“[I]n determining 
whether the Act [in question] disrupts the proper balance between the coordinate branches, the 
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proper inquiry focuses on the extent to which it prevents the Executive Branch from accomplishing 
its constitutionally assigned functions.”) (citing Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 443 
(1977)). 
¶62 
Importantly, the separation of powers principle applies to the Virgin Islands through the 
Organic Act. “[T]he doctrine of separation of powers applies with respect to the coordinate 
branches of government in the Virgin Islands. The Organic Act of the Virgin Islands created three 
branches of government in the Virgin Islands. See 48 U.S.C. § 1571 (legislative branch); id. § 1591 
(executive branch); id. § 1611 (judicial branch). Congress therefore implicitly incorporated the 
principle of separation of powers into the law of the territory.” Smith v. Magras, 124 F.3d 457, 465 
(3rd Cir. 1997) (citing Springer v. Gov’t of the Philippine Is., 277 U.S. 189, 199-202 (1928)). 
¶63 
In this case, the majority’s interpretation of 3 V.I.C § 114(a)(6) and (a)(7) enables DOJ to 
represent both the Virgin Islands legislature and judiciary. That is, if, as the majority contends, 
DOJ represents all local governmental officers, boards, departments, and instrumentalities, then 
DOJ could legitimately represent the local legislative and judicial branches which consequently 
raises a potential separation of powers problem. Assuming the legislative separation of powers 
issue is resolvable because of the innate similarities between the executive and legislative 
branches, the judicial separation of powers issue persists. Accordingly, application of the 
separation of powers rules stated above is necessary to evaluate whether the majority’s 
interpretation prevents the local Judiciary from accomplishing its constitutionally prescribed 
duties. And, if it does, whether the interpretation is warranted by the executive branch’s 
constitutionally sanctioned objectives. 
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¶64 
As already stated, the judiciary’s role is to be impartial and objective. Dunston v. Mapp, 
No. 2016-38, 2016 WL 3976642, at *8 (D.V.I. July 22, 2016) (explaining that an Act did not 
violate the separation of powers doctrine because it did not threaten judicial independence nor did 
it allow the president to coerce judges in the execution of their professional duties). (citations 
omitted). However, the majority’s interpretation of 3 V.I.C § 114(a)(6) and (a)(7) threatens judicial 
independence if DOJ, as an executive branch department, can represent judges on civil matters 
because DOJ could intentionally or unintentionally insert policy considerations into its litigation 
strategy. Consequently, DOJ’s litigation strategy may include contrary or incompatible legal 
conclusions concerning specific statutes that a judge may have contemplated or will contemplate 
in deciding cases. Such excessive entanglement between the judiciary and the other branches of 
government is precisely the debacle the separation of powers doctrine prevents because litigants 
may believe judges have predetermined notions concerning the statutes they interpret. See Havana 
Club Holding, S.A. v. Galleon, S.A., 62 F.Supp.2d 1085, 1095 (S.D.N.Y. 1999) (“Under our 
tripartite system of government, the role of Congress is to enact laws of general applicability and 
it is for the courts to apply those laws in determining the outcome of particular cases. Legislation 
violates the separation of powers doctrine when it ‘prescribes a rule of decision for courts to follow 
without permitting courts to exercise their judicial powers independently.’”) (citations omitted). 
Therefore, the majority’s understanding of sections 114(a)(6) and (a)(7) presents a separation of 
powers problem that is warranted only if it is required for the executive branch to accomplish its 
constitutionally mandated objectives. 
¶65 
The executive branch’s power primarily encompasses its ability to enforce laws created by 
the Legislature as well as to appoint agents to enforce the Legislature’s laws. Municipality of St. 
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Thomas & St. John v. Gordon, 2 V.I. 107, 114 (D.V.I. 1948) (citing Myers v. United States, 272 
U.S. 52 (1926)). See Collins v. Mnuchin, 896 F3d 640, 661 (5th Cir. 2018) (The Constitution vests 
‘executive power’ in the president and obligates him to ‘take care that the laws are faithfully 
executed.’”). DOJ’s representation of either the Judiciary or Legislature is not required for the 
executive branch to accomplish these goals. Moreover, DOJ’s representation may hinder the 
Legislature’s ability to draft laws and the Judiciary’s ability to interpret laws because DOJ may 
substitute executive notions for either branch’s initiatives. Moreover, if DOJ represented the 
judiciary and the representation entailed opinions regarding specific statutes, litigants that appear 
before the judiciary may have less faith in its objectivity to impartially assess the litigants’ claims. 
Diminished faith in the judiciary because of an unconstitutional connection with one of the other 
governmental branches is one of the consequences the separation of powers doctrine prevents. 
Smith, 686 F.Supp. at 854-55 (“Partiality and predetermined views on behalf of their members are 
an accepted and integral element of the legislative and executive processes. In the case of the 
judiciary, however, impartiality and the absence of predetermined opinions are fundamental 
aspects of the judicial function.”). Therefore, the majority’s interpretation of subsections (a)(6) 
and (a)(7) of § 114 fails both prongs of the test and ultimately violates the separation of powers 
doctrine. 
¶66 
As an alternative to the majority’s interpretation, I support the methodology asserted in 
Am. Bankers Ins. Group, Inc. v. United States, 308 F.Supp.2d 1360 (S.D. Fla. 2004), rev’d on 
other grounds by 408 F.3d 1328 (11th Cir. 2005). In that case, the district court concluded a 
telecommunications statute was ambiguous and applied statutory interpretation tenets to decide 
best interpretation for the statute. After concluding the statute was ambiguous, the district court 
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considered the statute’s legislative intent and its limited legislative history. Finding that neither 
provided adequate assistance, the district court then consulted an IRS revenue ruling for additional 
insight. “A court may look at evidence of legislative intent other than the statutory language in 
only three circumstances: We may look to evidence of Congressional intent outside the four 
corners of the statute if ‘(1) the statute’s language is ambiguous; (2) applying it according to its 
plain meaning would lead to an absurd result; or (3) there is a clear intent of contrary legislative 
intent.” Id. at 1364. (citations omitted). If any of the three situations mentioned above is present, 
courts render substantial deference to an agency’s interpretation of a statute it’s charged with 
administering. See Sea Princess Services, Inc. v. United States, No. Civ. 95-00129, 1996 WL 
33362120, at *2 (D. Guam June 25, 1996). 
¶67 
To evaluate an agency’s statutory interpretation, courts apply a test announced in Chevron 
U.S.A. v. Natural Res. Def. Council, Inc., 476 U.S. 837 (1984). Since Chevron, courts have refined 
the test into a two-pronged analysis. “The first prong is ‘[w]hether Congress has directly spoken 
to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for 
the court, as well as the agency, must give effect to the unambiguously expressed intent of 
Congress.’ The second step is more deferential as the court examines whether the agency’s action 
is based on a permissible or reasonable construction of the statute.” Sea Princess Services, Inc., 
1996 WL 33362120, at *3.   
¶68 
However, although an agency’s statutory interpretation is entitled to deference, the degree 
of deference depends on how the interpretation is cultivated. Specifically, the Supreme Court later 
clarified its Chevron holding by stating the great “degree of deference required by Chevron is only 
warranted where the statutory interpretation is recorded in a regulation that was subject to notice-
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and-comment rulemaking or was promulgated in a manner similar to formal rulemaking.”  Am. 
Bankers Ins. Group, 308 F.Supp.2d at 1371 (citing United States v. Mead Corp., 533 U.S. 218, 
230-31 (2001)).  
¶69 
In Am. Bankers Ins. Group, the court concluded that the IRS informally promulgated the 
revenue ruling that interpreted the disputed telecommunications statute at issue in that case. 
Therefore, the court determined the revenue ruling was not entitled to the high deference 
articulated in Chevron. Nonetheless, it opined the revenue ruling was persuasive evidence of the 
IRS’s long-standing statutory interpretation which the court said was entitled to some deference. 
“[The] revenue ruling[] neither [has] ‘the force and effect of regulations’ . . . nor can [it] be used 
to overturn the ‘plain language of the statute’ . . . However, . . . , a revenue ruling is entitled to as 
much weight as its persuasiveness allows, much like a decision from a different circuit can be 
persuasive but is not binding on this Court.” Id. Furthermore, the court also stated that “although 
the Supreme Court . . . declined to ‘decide whether Revenue Rulings themselves are entitled to 
deference,’ [it] has noted that a ‘longstanding interpretation,’ if ‘reasonable, . . . attracts substantial 
judicial deference.” Id. (citations omitted). See United States v. Baxter Int’l, Inc., 345 F.3d 866, 
886-87 (11th Cir. 2003) (“The consistency of an agency’s interpretation over time is a factor in 
determining the level of deference due.”). 
¶70 
In this case, subsections (a)(6) and (a)(7) of § 114 are ambiguous and there is limited 
legislative history for the subsections because the legislative session notes were destroyed.8 
Accordingly, one turns to DOJ’s interpretation of the subsections to ascertain the amount of 
 
8 I contacted the Virgin Islands Legislature to obtain the session notes for subsections (a)(6) and (a)(7) of § 114. 
Regrettably, I was told the session notes were destroyed before they could be electronically stored on the 
organization’s computer database.    
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deference the interpretation should be afforded. Under Chevron, the analysis commences with an 
inquiry into whether the legislature has spoken on the issue. If it has, the inquiry ends. If it has not, 
the inquiry continues to assess the reasonableness of the agency’s statutory interpretation in light 
of the amount of deference the interpretation should be given.  
¶71 
In this case, the issue of whether subsections (a)(6) and (a)(7) empower DOJ to represent 
BOE has not been decided by the Virgin Islands Legislature. Therefore, the inquiry continues onto 
the test’s second prong. Under that element, the reasonableness of DOJ’s prior statutory 
interpretation is assessed. As mentioned above, DOJ has a long-standing policy of not representing 
BOE. Specifically, DOJ, through the Solicitor General Pamela Tepper and Deputy Attorney 
General Carol Thomas-Jacobs, unequivocally stated that DOJ did not represent BOE. (J.A. 296-
99). Similarly, Appellants stated, during their nine year tenure on BOE, the organizational policy 
was that DOJ did not represent BOE. Certainly, DOJ’s non-representation policy of BOE was 
reasonable because BOE has the ability to retain independent counsel to render legal advice and/or 
opinions to it. (J.A. 20). However, DOJ’s policy of not representing BOE was not delineated in a 
formal decree and cannot be afforded substantial deference under Chevron. Nonetheless, DOJ’s 
longstanding interpretation of subsections (a)(6) and (a)(7) is persuasive because BOE can retain 
independent counsel and the potential for conflicting interests if DOJ represents BOE against 
another executive agency namely the local Department of Education (“DOE”) is undeniable. See 
Sicard v. City of Sioux City, 950 F.Supp. 1420, 1434 (N.D. Iowa 1996) (“[T]he reviewing court 
should give effect to the agency’s interpretation so long as it is reasonable . . . The Eight Circuit 
Court of Appeals has said that ‘[d]eference is due when an agency has developed its interpretation 
contemporaneously with the regulation, when the agency has consistently applied the regulation 
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over time, and when the agency’s interpretation is the result of thorough and reasoned 
consideration.”) (internal citations and quotation marks omitted). Therefore, DOJ’s policy of not 
representing BOE should be enforced as a reasonable, long-standing agency interpretation of a 
statute it is charged with implementing.  
3. Conflict of Interest 
¶72 
Another salient point regarding the majority’s interpretation of subsections (a)(6) and (a)(7) 
is the effect it has on litigation between BOE and another executive agency. In such a scenario, 
which agency would DOJ represent? In part, Rule 211.1.7 of the Virgin Islands Rules of 
Professional Conduct states a lawyer cannot represent a client if the representation will adversely 
affect another client unless the lawyer reasonably believes he can diligently represent each affected 
client and obtains each affected client’s written consent to the representation.9  
¶73 
In Southern Visions, LLP v. Red Diamond, Inc., 370 F.Supp. 1314 (N.D. Ala. 2019), the 
district court disqualified a law firm from representing a new client after that client sued the firm’s 
other client. In the case, the law firm ceased representing the existing client three days after 
initiating representation of the new client. The court disqualified the law firm using rules almost 
identical to the local rules. The court held the firm violated rule 1.7 of Alabama’s Model Rules of 
Professional Conduct because it did not obtain the existing client’s consent to represent the new 
 
9 “(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a 
concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be 
directly adverse to another client; or (2) there is a significant risk the representation of one or more clients will be 
materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal 
interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a 
lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent 
and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the 
representation does not involve the assertion of a claim by one client against another client represented by the 
lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed 
consent, confirmed in writing.” V.I. R. PROF’L CONDUCT 211.1.7. 
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client and the firm could not represent the new client without adversely affecting its relationship 
with the existing client. 
¶74 
In this case, if the majority’s interpretation of subsections (a)(6) and (a)(7) is employed, 
DOJ may encounter a potential concurrent conflict of interest if it undertook the simultaneous 
representation of BOE and another executive agency where the two entities were litigation 
adversaries. Importantly, DOE and BOE have overlapping duties. In 3 V.I.C. § 96(a)(2), DOE 
must integrate a curriculum that incorporates technical and business skills. In 3 V.I.C. § 96(a)(3), 
DOE must administer and operate all public schools. In 3 V.I.C. § 96(a)(6), DOE is charged with 
operating a single school system including the selection and certification of DOE staff. In3 V.I.C. 
§ 96(a)(7), DOE may exercise other powers and perform other duties as prescribed by law. 
However, in 17 V.I.C. § 21(a)(1), BOE is charged with adopting curricula, prescribing general 
regulations, and doing anything necessary to for the proper establishment, maintenance, 
management, and operation of the public schools in the Virgin Islands. Similarly, in 17 V.I.C. § 
21(a)(5), BOE may approve or disapprove DOE’s recommendations for the qualifications of DOE 
staff. In 17 V.I.C. § 21(a)(6), BOE may approve or disapprove DOE’s selection and certification 
criteria for DOE staff. In 17 V.I.C. § 21(a)(9), BOE can promulgate rules and regulations for the 
certification of all educational institutions. In 17 V.I.C. § 21(b), BOE may perform other functions 
that may be prescribed or required by local or federal law.  
¶75 
If BOE disapproves of DOE staff certification recommendations or BOE disagrees with 
DOE’s school criteria and BOE uses DOJ to sue DOE to halt DOE’s actions, DOJ may encounter 
a concurrent conflict of interest if DOE also employs DOJ. That is, under Rule 211.1.7 of the 
Virgin Islands Rules of Professional Conduct, DOJ could not simultaneously represent BOE and 
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DOE in any of the aforementioned scenarios without adversely affecting one party’s interests since 
each party’s claims would conceivably be polar opposites. Therefore, the majority’s interpretation 
of subsections (a)(6) and (a)(7) of § 114 also creates the potential for concurrent conflicting 
interests if DOJ could, as the majority asserts, represent both the executive branch and independent 
boards within the Virgin Islands government.                                                                          
C. The Superior Court did not err in granting Jones’s converted summary judgment 
motion 
¶76 
Appellants argue the Superior Court erred in granting Jones’s converted summary 
judgment motion. Summary judgment should be granted if the movant shows that there is no 
genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Hawkins 
v. Greiner, 66 V.I. 112, 116 (V.I. 2017). See Scott v. Harris, 550 U.S. 372, 380 (2007) (explaining 
that a genuine dispute exists when a rational factfinder, considering the evidence in the summary 
judgment record, could find in favor of the non-moving party); Anderson v. Liberty Lobby, Inc., 
477 U.S. 242, 248 (1986) (explaining a fact is material if it might affect the outcome of the case); 
Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 804 (1999) (explaining that summary 
judgment is appropriate when the non-moving party fails to make an adequate showing on an 
essential element of the case, as to which that party has the burden of proof).   
¶77 
However, before I address the court’s acquiescence on Jones’s summary judgment motion, 
I consider Appellants’ contention that the court incorrectly converted Jones’s motion to dismiss 
into a motion for summary judgment. Appellants also assert that Jones’s motion for summary 
judgment lacked a separate statement of material facts as required by the old procedural rules and 
was also improper under the new rules since it lacked a written certification, in good faith, 
concerning the effect of the motion. Therefore, Appellants argue that the Superior Court should 
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have dismissed Jones’s converted summary judgment motion because it was procedurally 
defective and simultaneously assert the court erred in converting Jones’s motion to dismiss into 
one for summary judgment. I first discuss the alleged procedural defects.  
¶78 
The Virgin Islands Rules of Civil Procedure “govern . . . proceedings in any action pending 
on the effective date of the rules or amendments, unless . . . the Supreme Court . . . specifies 
otherwise by order . . . or . . . the Superior Court makes an express finding that applying them in a 
particular previously-pending action would be infeasible or work an injustice.” Remak v. Virgin 
Islands Water and Power Authority, No. ST-15-CV-662, 2017 WL 3122642, at *1 n. 1 (V.I. Super. 
Ct. July 21, 2017) (citing V.I. R. CIV. P. 1-1(c)(2)).  
¶79 
In this case, Jones’s motion to dismiss was filed on January 31, 2017. On March 2, 2017, 
the Superior Court sua sponte converted Jones’s motion to dismiss into a summary judgment 
motion. However, the Virgin Islands Rules of Civil Procedure were promulgated on March 31, 
2017. Hence, the Virgin Islands Rules did not exist to govern the conversion of the motion to 
dismiss to one for summary judgment. Accordingly, I evaluate Appellants’ allegations of improper 
format under the old rules rather than the new ones because the new rules contain specific 
provisions the old rules lack.10 This determination denotes the fundamental injustice and 
infeasibility that retrospective application of a new statute occasionally imparts on the parties. See 
Landgraf v. USI Film Products, 511 U.S. 244, 266 (1994) (“Elementary considerations of fairness 
dictate that individuals should have an opportunity to know what the law is and to conform their 
 
10 Rule 56 of the Virgin Islands Rules of Civil Procedure require a written certification that a party seeking summary 
judgment has a good faith basis for asserting a fact is disputed or indisputable. Rule 56 of the Federal Rules of Civil 
Procedure lack a written good faith certification.  The notes from Virgin Islands Rules of Civil Procedure Advisory 
Committee state the Committee specifically crafted the written certification requirement to prevent abuse of the 
summary judgment tool and to ensure the party seeking summary judgment has good faith basis to claim a fact is 
disputed or indisputable. V.I. R. CIV. P. 56 advisory committee’s note. 
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conduct accordingly. . . .”); Union Pacific R.R. Co. v. Laramie Stock Yards Co., 231 U.S. 190, 220 
(1913) (“The principle of these cases [on statutory construction] forbids a retrospective operation 
to be given to the statute under construction. To do so would cause in a high degree the evil and 
injustice of retrospective legislation.”); Winfree v. Northern Pac. Ry. Co., 227 U.S. 296, 302 (1913) 
(explaining that a statute “should not be construed as retrospective [because it] introduced a new 
policy and quite radically changed existing law”). 
¶80 
In their brief, Appellants argue that Jones’s converted Motion for Summary Judgment was 
procedurally defective because it lacked a separate statement of facts as required by the old rules. 
(Appellants’ Br. 26-27). Specifically, Appellants allege Jones’s failure to include a separate factual 
statement violated District Court Rule 56.1 which they assert was applicable to the Superior Court 
through Rule 7. However, no opinion has been located in which a party’s failure to comply with 
specific summary judgment filing requirements would be a litigated issue when the court converts 
a motion to dismiss into one for summary judgment under Rule 12(d). Moreover, in Vanterpool v. 
Gov’t of the V.I., 63 V.I. 563, 576 (V.I. 2015), this Court held District Court Rule 56.1 was not 
automatically applicable to the Superior Court because “federal rules like District Court Rule 56.1 
‘should be invoked only when a thorough review of applicable Virgin Islands statutes, Superior 
Court rules, and precedents from this Court reveals the absence of any other [applicable] 
procedure.’” (internal citations omitted). Essentially, Vanterpool stated that application of District 
Court Rule 56.1 to the Superior Court necessitates an independent assessment of whether the rule 
served a valid purpose when applied to Superior Court proceedings. Vanterpool, 63 V.I. at 582-
83. However, Vanterpool also noted Rule 56.1 did not apply to Superior Court proceedings merely 
because it established a filing requirement that did not always extend to the Superior Court. Id. 
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Therefore, the Superior Court did not err in failing to dismiss Jones’s converted summary judgment 
motion with its alleged structural deficiencies because District Court Rule 56.1 was inapplicable 
to the motion’s format. Regardless of our decision to assess Appellants’ contentions using the old 
rules, I agree with the Superior Court’s decision to deny Appellants’ arguments regarding Jones’s  
¶81 
Similarly, the Superior Court did not err when it converted Jones’s motion to dismiss into 
a motion for summary judgment because the motion to dismiss included information beyond the 
pleadings. Under both FED. R. CIV. P. 12(d) and V.I. R CIV. P. 12(d), if the parties present evidence 
outside the pleadings and the court considers that evidence, a motion to dismiss is converted to a 
motion for summary judgment. Lewis v. Asplundh Tree Expert Co., 305 Fed. Appx. 623, 627 (11th 
Cir. 2008). As required under the applicable Rule 12 provisions, the parties were given ample 
opportunity to file any materials necessary for consideration of summary judgment. Accordingly, 
because Jones’s motion to dismiss included information outside the pleadings and the court 
considered that evidence, the court correctly converted the motion to dismiss into a motion for 
summary judgment.      
¶82 
Turning to the substantive summary judgment motion, Appellants allege the Superior 
Court erred in granting the motion on the grounds they lacked standing and authority to sue on 
BOE’s behalf. In its September 12, 2017 order, the Superior Court noted that standing in the Virgin 
Islands is a doctrine of judicial restraint that allows courts to control the presentation of litigated 
issues to ensure they are fully and fairly explored.  (J.A. 306). See Legislature of the V.I. v. 
deJongh, 52 V.I. 650, 659 (V.I. 2009) (explaining that standing requires a plaintiff’s complaint to 
establish he has a personal stake in the alleged dispute, and that the alleged injury suffered is 
particularized to him)). Contrastingly, the court also indicated that authority or capacity involved 
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a litigant’s ability to appear before it to bring claims. Id. See Comm. on Conservation, Recreation, 
and Cultural Affairs of the Legislature of the V.I. v. V.I. Port Auth., 21 V.I. 584, 588 (V.I. 1985) 
(explaining that a legislative committee lacked authority to bring a suit against a government 
agency partly because a majority of legislators had not voted affirmatively for the action)). 
Declaring that 17 V.I.C. § 21(a)(8) and 3 V.I.C. § 98(b) prevented Appellants from bringing an 
accounting action on BOE’s behalf, the court dismissed Count II of the compliant.  
¶83 
Essentially, 17 V.I.C. § 21(a)(8) states that BOE may bring court proceedings to enforce 
the board’s rights and to collect outstanding accounts.11 However, 3 V.I.C. § 98(b) limits BOE’s 
ability to initiate any action, including legal proceedings, without an affirmative vote by a majority 
of the board members present at a regular or special meeting.12 In their January 2017 verified 
complaint, Appellants state they brought the action on BOE’s behalf. (J.A. 15-36). However, 
beyond the incidental powers afforded to BOE’s chairman, no individual BOE member has the 
ability to commence or advance any action without a majority vote by the board. In this case, BOE 
never authorized Appellants to initiate legal proceedings against appellees. Without an affirmative 
vote by the board on the issue of initiating court action, Appellants lacked authority to do so. 
Therefore, because Appellants lacked authority to sue on BOE’s behalf and there was no genuine 
dispute regarding this material fact to preclude a judgment in Appellees’ favor as a matter of law, 
the Superior Court did not err in granting Jones’s summary judgment motion on that basis.  
 
11 “The Virgin Islands Board of Education has authority and jurisdiction to . . . bring court proceedings for the 
enforcement of rights and the collection of accounts, and to this end may contract for such personal services as are 
deemed necessary by the Board.” 17 V.I.C. § 21(a)(8).  
12 “The business which the Board is authorized to transact shall be done at regular or special meetings at which not 
less than five members are present, and no act shall be valid unless voted for by an affirmative of a majority of the 
members present, and a true record made of such votes.” 3 V.I.C. § 98(b).  
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¶84 
Furthermore, I reach the same conclusion about the Superior Court’s dismissal of Count 
III. The court accurately cited 5 V.I.C. § 541 as the governing statute regarding the award of costs 
and attorney’s fees.13 Importantly, to recover costs and attorney’s fees, section 541 demands that 
the movant be the prevailing party in the litigation. However, as the Superior Court’s September 
12, 2017 opinion noted, it is debatable whether Appellants prevailed in the 2016 action because 
the case was dismissed as moot and was never adjudicated on the merits. However, the fact that 
the matter was dismissed as moot is not the sole factor in determining the issue of attorney’s fees. 
See Metropolitan Pittsburgh Crusade for Voters v. Pittsburgh, 964 F.2d 249-51 (3d. Cir 1992). 
Still, I need not contemplate whether Appellants were entitled to attorney’s fees as the prevailing 
party because the proper procedure to seek costs and attorney’s fees would have been to file a 
timely motion in the 2016 action for attorney’s fees and not file a separate suit. Because Appellants 
failed to do so, they waived the issue of attorney’s fees on appeal.  
D. The Superior Court did not err in denying Appellants’ Motion to Reconsider 
¶85 
The final question in this appeal concerns the Superior Court’s denial of Appellants’ 
motion to reconsider. Appellants argue the court erred in dismissing Count I as moot.14, 15 In their 
appellate brief, Appellants cite exceptions to the mootness doctrine which this Court has routinely 
invoked to preserve matters for appeal. See In re Holcombe, 63 V.I. 800, 819-20 (V.I. 2015); 
 
13 “(a) Costs which may be allowed in a civil action include: . . . (6) attorney’s fees as provided in subsection (b) of 
this section. (b) The measure and mode of compensation of attorneys shall be left to the agreement, express or 
implied, of the parties; but there shall be allowed to the prevailing party in a judgment such sums as the court in its 
discretion may fix by way of indemnity for his attorney’s fees in maintaining the action or defenses thereto; 
provided, however, the award of attorney’s fees in personal injury cases prohibited unless the court finds that the 
complaint filed or the defense is frivolous.” 5 V.I.C. § 541(a)(b).   
14 “A matter is deemed moot, ‘when there is no issue between the parties that can be resolved by the court.’” (J.A. 
315) (citing Chavayez v. Buhler, No. 2007-060, 2009 WL 1810914, at *10 (V.I. June 25, 2009) (internal citations 
omitted)).  
15 “In determining whether a matter is moot, the Court must evaluate, ‘whether changes in circumstances that 
prevailed at the beginning of the litigation have forestalled any occasion for meaningful relief.’” (J.A. 315) (citing 
Chavayez at *10) (internal citations omitted)).  
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Haynes v. Ottley, 61 V.I. 547, 558 (V.I. 2014)). However, Appellants’ brief fails to state why these 
exceptions are applicable in this case. Moreover, the Superior Court’s January 22, 2018 order 
denying appellant’s motion to reconsider expressly stated that Appellants’ motion was devoid of 
legal arguments as to how the mootness exceptions applied to the case and failed to apply to the 
facts of the present case the federal case law on mootness and motions to reconsider cited in the 
motion itself. (J.A. 337-338). Therefore, under V.I. R. CIV. P. 60(b), the Superior Court could not 
relieve Appellants from its December 6, 2017 order dismissing count one because appellants failed 
to present any legally cognizable argument to warrant reversal.16, 17 See Pramco II, LLC v. 
Cheyenne Water Serv., 50 V.I. 445, 450 (D.V.I. 2008) (“A motion to set aside a judgment under 
Rule 60(b) is committed to the sound discretion of the Court. . . . Moreover, relief under rule 60(b) 
is ‘to be granted only in exceptional circumstances.’”) (citations omitted); Smith v. Widman 
Trucking & Excavating, Inc., 627 F.2d 792, 795 (7th Cir. 1980) (“Rule 60(b) is to be used to 
disturb the finality of judgments only on narrow grounds and upon a showing of exceptional 
circumstances.”); Wells Fargo Bank, N.A. v. AMH Roman Two NC, LLC, 859 F.3d 295, 299 (4th 
Cir. 2017) (To succeed, “the moving party [on a Rule 60(b) motion] must usually make five 
showings: (1) a timely motion, (2) a meritorious defense, (3) an absence of unfair prejudice to the 
 
16 “On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or 
proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered 
evidence that could not, with reasonable diligence, have been discovered in time to move for a new trial under Rule 
59(b); (3) fraud (whether in a form previously called intrinsic or extrinsic), misrepresentation, or misconduct by an 
opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on 
an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any 
other relief that justifies relief.” V.I. R. CIV. P. 60(b).  
17 “. . . Rule 60(b) codifies the courts’ inherent, discretionary power-recognized for centuries in English practice- to 
set aside judgments where enforcement would produce an inequity.” Tanner v. Yukins, 776 F.3d 434, 438 (6th Cir. 
2015).  
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opponent, (4) exceptional circumstances, and (5) satisfying at least one of the six subsections of 
the Rule.”). Thus, the Superior Court did not err in denying Appellants’ motion to reconsider.  
V. 
CONCLUSION 
¶86 
I concur with the majority’s conclusion regarding the Superior Court’s decision to convert 
Jones’s motion to dismiss into a motion for summary judgment and its denial of appellant’s motion 
to reconsider. Moreover, although I agree with the majority that the Superior Court committed no 
error when it held oral arguments on the issue of DOJ’s disqualification, I dissent from the rationale 
the majority employs regarding the Superior Court’s decision on that issue as well as on the issue 
of DOJ’s ability to represent Gomez. 
Dated this 24th day of April 2020  
 
 
BY THE COURT: 
 
 
 
 
 
 
 
 
 
 
 
 
/s/ Ive Arlington Swan 
 
 
 
 
 
 
 
IVE ARLINGTON SWAN 
 
 
 
 
 
 
 
Associate Justice 
 
ATTEST: 
VERONICA J. HANDY, ESQ. 
Clerk of the Court