ST. CROIX — The Virgin Islands Supreme Court recently issued two writs of mandamus directing Superior Court Judge Kathleen Mackay to issue final judgment in two separate cases within 60 days after failure to rule in a timely manner, according to Supreme Court documents.
Mackay has not issued any order for more than five years in one of the cases involving injuries that allegedly occurred during a soccer practice, while the judge’s inaction in the second case involving claims of ineffective assistance of counsel during trial has resulted in a nearly one-and-a-half-year delay, according to court documents.
Both matters came before the Supreme Court on two separate petitions for writ of mandamus, a written order from a higher court to a lower court commanding action.
Soccer practice:
Tariq Davis, in his petition for writ of mandamus, maintains Mackay has failed to rule on numerous motions for a period of years in his 2009 civil case against the American Youth Soccer Organization. On February 12, 2009, Davis, through his parents, initiated a civil action against numerous defendants for injuries that allegedly occurred during a soccer practice. The case was reassigned to Mackay on October 11, 2016 following various judicial retirements and recusals.
Davis filed an October 27, 2016 emergency motion to disqualify counsel for two of the defendants, which those defendants opposed. On September 1, 2017, those defendants filed a motion to authorize their counsel to take a video-taped deposition of an alleged witness, which Davis opposed on the same conflict-of-interest grounds that formed the basis for his still-pending motion to disqualify counsel.
Mackay did not issue any orders for nearly three years with the exception of one order granting a routine extension of time. Mackay indicated during a status conference on April 9, 2019 that she would refer the matter to mediation, and not rule on any pending motions unless mediation proved unsuccessful. Davis identified 26 substantive motions that remained outstanding and requested that the Superior Court first rule on its emergency motion to disqualify counsel since its disposition would affect other pending motions pertaining to discovery. To date, the Superior Court record reflects that Mackay has not entered any orders in the case since a mediation order on April 10, 2019. Davis, in a November 5, 2021 motion, identified 35 substantive motions that were pending in the case. Davis filed a third motion for a hearing on May 13, 2022, urging the Superior Court address the emergency motion to disqualify counsel and other pending motions expeditiously, noting that several witnesses had died or relocated in the intervening years. Davis ultimately filed the instant mandamus petition with the Supreme Court on August 18, 2022.
The Supreme Court noted in its August 30 opinion in support of issuing a writ of mandamus that it has already held that the failure of a Superior Court judge to take substantive action for 18 months or longer may constitute a breach of the ministerial duty to issue a ruling in a timely manner. The Supreme Court noted that the fact the parties in the civil case filed numerous motions cannot excuse the complete failure of Mackay to issue any order at all for more than five years and no substantive order since the date of case reassignment in 2016.
The Supreme Court found that Davis lacks an adequate alternate means of obtaining redress. Accordingly, since the public interest and other considerations strongly support mandamus relief, the Supreme Court indicated it would issue a writ of mandamus directing the nominal respondent, Mackay, to issue rulings on the emergency motion to disqualify counsel and all other substantive motions within 60 days of the date of its August 30 opinion or take other meaningful action to further the disposition of Davis’ case in that period.
“We find that Davis has a clear and indisputable right to have the nominal respondent rule on the pending motions in the underlying civil case since we cannot find any legitimate excuse for the more than five years of inaction,” the Supreme Court wrote in its opinion.
Ineffective assistance of counsel:
Patrick Riley, in his petition for writ of mandamus, maintains Mackay has failed to rule in a timely manner on his habeas corpus petition — Riley v. Government of the Virgin Islands. On July 31, 2019, Riley filed a petition with the Superior Court following his criminal conviction for writ of habeas corpus, which requested that the court set aside an unspecified judgment on grounds that he received ineffective assistance of counsel during trial. The government did not file a response to the petition, and Mackay issued no orders or rulings for more than a year. Mackay still did not issue any orders at all in the habeas corpus case after Riley filed his mandamus petition on July 8, 2020.
The Supreme Court subsequently issued a March 3, 2021 order that directed the government, and permitted Mackay to file an answer to the mandamus petition. Mackay did not file an answer. Instead, she notified the Supreme Court, through the clerk of the Superior Court, of entry of a March 22, 2021 scheduling order in the habeas corpus action that directed the government to file an informal response within 45 days, and for Riley to file a reply within 45 days. The government filed its informal response on May 4, 2021, while Riley filed his reply on June 24, 2021. Mackay has not issued a ruling or entered any other orders in the habeas corpus action even though more than three years have passed since the parties filed their documents.
The Supreme Court noted in its August 29 opinion in support of issuing a writ of mandamus that there appears no legitimate reason for delay at all in this case. While Riley’s initial habeas corpus petition did not include the case number for his underlying criminal conviction, the Supreme Court noted that the government filed a copy of the judgment and conviction with its informal response on May 4, 2021. Riley has not filed any documents with the Superior Court other than his habeas corpus petition and his timely-filed reply to the government’s informal response. The Supreme Court noted in its opinion that the need for a judge to issue a ruling in a timely manner is particularly important in habeas corpus cases, given that the Legislature of the Virgin Islands has mandated that habeas petitions receive expedited consideration.
The Supreme Court found that Riley lacks any other adequate means of obtaining a ruling on his petition for writ of habeas corpus, other than mandamus relief from the Supreme Court. The Supreme Court noted that the breach of ministerial duty Riley alleges — a failure to rule — is one that it cannot review on direct appeal, given that Mackay’s continued failure to rule precludes entry of an appealable final judgment. The Supreme Court found that there are no practical avenues for attaining relief that have been untried because Mackay has only entered one order in this case, which simply set filing deadlines.
The Supreme Court concluded that the issuance of a writ of mandamus is appropriate under the circumstances. Considering the Legislature of the Virgin Islands has mandated that the Superior Court consider petitions for writ of habeas corpus “without delay,” the Supreme Court noted that granting mandamus relief in this case would not simply further Riley’s private interests but would effectuate the intent of the Legislature and assist in the administration of justice. The Supreme Court further noted a habeas petitioner who has, in fact, been deprived of liberty unconstitutionally suffers irreparable injury enduring each day of wrongful incarceration.
Since the public interest and other considerations strongly support mandamus relief, the Supreme Court indicated it would issue a writ of mandamus directing the nominal respondent, Mackay, to issue final judgment on Riley’s habeas corpus petition within 60 days of the date of its August 29 opinion or take other meaningful action to further the disposition of Riley’s case in that period.
“We find that Riley has a clear and indisputable right to have the nominal respondent rule on his habeas corpus petition since we cannot find any legitimate excuse for the nearly one-and-one-half-year delay,” the Supreme Court wrote in its opinion. “Furthermore, Riley lacks an adequate alternate means of obtaining redress.”
Former Governor John de Jongh Jr. appointed Mackay as Superior Court judge in the St. Thomas/St. John District in 2012. She previously served as a magistrate judge in Superior Court from 2009 after a 20-year career as an attorney in private practice. Governor Albert Bryan Jr. reappointed her to serve a second six-year term in 2019. The 33rd Legislature confirmed her during legislative session on May 14, 2019 following a confirmation hearing before the Committee on Rules and Judiciary on April 24, 2019.
