Thus far in 2013, the V.I. Supreme Court has rendered decisions rejecting an anonymous filing to prevent a V.I Bar Associations Ethics and Grievance investigation, upholding the suspension of an attorney, and upholding a claim for less than $1,000 in overtime.
In the Walter Gardiner/V.I. Kidney Center v. Jewel Diaz case, the court upheld a V.I. Superior Court Appellate Division ruling upholding a Labor Department ruling and Superior Court Small Claims Division ruling that Diaz was due $916 in overtime.
Gardiner argued before a magistrate judge that federal law – the Fair Labor Standards Act – measuring overtime from when work exceeds 40 hours in a single week preempts V.I. law saying overtime begins when work exceeds eight hours in a single day.
On appeal, Gardiner argued he was entitled to repayment of $5,000 he spend on Diaz’ education because she had agreed she would repay it if she did not remain in his employ for 18 months.
In a Jan. 2 opinion, the Supreme Court upheld a V.I. Superior Court Appellate Division ruling upholding the small claims judgment on Diaz’ behalf. The small claims court magistrate ruled the federal Fair Labor Standards Act does not preempt local law, and on that basis, awarded Diaz $916 plus $40 court costs.
Although it upheld the original verdict, the Supreme Court declined to rule on whether federal labor law preempts the more strict local law, writing "(b)ecause Gardiner did not argue before this Court or the Appellate Division the claim that the Federal Labor Standards Act preempts the local law regarding overtime, we will not address it."
The justices then discussed Gardiner’s claim for $5,000 in more detail, dismissing it on the grounds that Gardiner could have brought it up, but did not, during the initial trial, and so the appellate court was not obligated to address it. The justices also wrote "there was nothing to prevent Gardiner from filing his own separate small claims action for the $5,000 he claimed Diaz owed him."
In another case, In Re: Attorney Doe, an attorney anonymously filed a petition to the Supreme Court asking it to enjoin, or forbid, the V.I. Bar Association Ethics and Grievance Committee from continuing with respect to two pending grievances. The justices write that the attorney filed anonymously without asking permission from the court to use a fictitious name. Although rules of legal procedure established by the Supreme Court provide for confidential proceedings before the Ethics and Grievance Committee, "there is no court rule that permits Doe to initiate an original proceeding anonymously without first obtaining leave of this Court. Nevertheless, this Court shall exercise its discretion to entertain the petition, despite such failure," the opinion continues," the justices write in a footnote to the opinion, dated Jan. 10.
The anonymous "Doe" argued, in part, that the committee could not initiate proceedings on its own initiative and needed a person or entity to file a grievance – a "grievant." The Ethics Committee responded that existing Supreme Court rules specifically say the committee "may initiate such investigation."
While Doe contended such an interpretation renders the definition of a grievant meaningless, the justices write that view fails to note several powers vested only in a grievant, including the ability to veto the other party’s waiver of confidentiality of committee proceedings.
The justices also write that the standard for the Supreme Court to preemptively prohibit the committee from proceeding requires the petitioner to show it has no other adequate means to get relief. "Clearly, Doe possesses an adequate alternate means of attaining the desired relief in that he or she may simply allow both proceeding to run their natural course."
Lastly the court upheld the Parson’s V.I. law license suspension of Edward in an opinion dated Jan. 8.
A grievance was filed against Parson in 2002, saying he failed to arrange payment to a client after a representing the client in a successful personal injury action. The client, V.I. Bar Association and the court have been unable to contact Parson ever since, and Parson has not paid his bar association dues.
The court upheld an Office of Disciplinary Counsel decision to suspend Parson’s license for 12 months, and requiring him to pay restitution of $2,500 plus interest to the client, plus his Bar Association dues. The suspension is to be automatically extended another 12 months, each year, until Parson complies.
