For those who practice in the courts of the Virgin Islands, there is a weary acceptance that justice will come, but it might not come quickly. Sometimes—either due to the complexity of a case or a court’s congested docket—a motion or petition will linger on a judge’s docket for months or (in extreme cases) even years. In these situations, a litigant has only two choices: Sit back and wait for a ruling or try to get the case moving with a writ of mandamus.
A writ of mandamus is an order from a higher court to a lower court ordering it to properly fulfill its official duties or correct an abuse of discretion. To obtain a writ of mandamus, a petitioner has to establish both that (i) he and she doesn’t have any other means to attain the desired relief; and (ii) the right to the writ is clear and indisputable. However, even if these requirements are met, the higher court must use its discretion and be satisfied that the writ is appropriate in the situation at hand.
In order to determine whether a writ of mandamus is appropriate under Virgin Islands law, a reviewing court will consider factors including—but not limited to—the public interest, the importance or unimportance of the question presented, and considerations of equity and justice. The remedy of mandamus is a drastic one, and is to be used only in extraordinary situations.
In April 2013, The Bank of Nova Scotia filed a petition for writ of mandamus with the Virgin Islands Supreme Court. The petition asked that the Supreme Court direct the Superior Court judge who was presiding over its case, The Bank of Nova Scotia v. Thomas, et. al. to either rule on the Bank’s pending proposed Judgment and Order of Foreclosure or explain why the requirements were not satisfied.
As related in the Supreme Court’s opinion, the Bank filed an action for debt and foreclosure of real property in 2010 against Richard and Kenneth Thomas, who mortgaged real property that they owned as tenants-in-common. When Kenneth did not respond to the complaint, the Clerk of the Superior Court entered default against him. Richard filed an answer, but died while the litigation was pending. When the Bank learned of Richard’s death, and that a probate estate had not yet been opened, it moved to amend the complaint to identify his unknown heirs as defendants. This motion was granted. When no heirs appeared in the action, a default was entered. The Bank shortly thereafter filed a motion for a default judgment against Kenneth and Richard’s unknown heirs.
At a March 15, 2013 hearing on the Bank’s motion, Richard’s former attorney stated that—other than Kenneth—Richard had two surviving heirs: an elderly woman and a minor who was incompetent. At the conclusion of the hearing, the Superior Court deferred its decision on the propriety of entering a default judgment against the allegedly handicapped minor. On April 10, 2013, the Superior Court entered a written order to that effect. Two weeks later, the Bank filed its petition for writ of mandamus with the Supreme Court to get the case moving again.
But the Supreme Court’s recitation of the facts does not quite capture the flavor of the March 15 hearing. According to the transcript, the Superior Court judge was mid-way through his findings of facts and conclusions of law in favor of the Bank when Richard’s former counsel suddenly appeared before the judge. The attorney—a relative of the surviving heirs—claimed that the family had been unable to probate Richard’s estate due to the declining health of Richard’s widow. The Bank responded that it had been working with the family for over two years to resolve this matter short of foreclosure, and that it would continue to work with the family during the six-month post-foreclosure redemption period to allow the family to redeem the property. As the hearing progressed, the judge appeared to focus in on the mentally disabled heir and whether default judgment could be entered against him. The Bank pointed out that the family—who was fully aware of the foreclosure proceedings—could have appeared on the disabled heir’s behalf or opened a probate estate. Instead, at the eleventh hour, unsubstantiated new information about this heir was being offered to stymie the Bank’s foreclosure action. The judge initially appeared to agree, stating that the heir’s interest was subject to the Bank’s mortgage and that there had been no motion to set aside the default against the heir due to his incompetency. However, after brief recess, the judge stated that he would defer judgment and reconvene the hearing in a matter of weeks to render a decision.
The Supreme Court wasn’t clear from the wording of the Bank’s petition whether it wanted an order requiring the Superior Court judge to grant its motion for default judgment or to issue a ruling. As far as the Bank requesting the Supreme Court to compel the Superior Court judge to grant its motion, it held that the first prerequisite for mandamus relief was not satisfied (that it had no other adequate means to attain the desired relief). If the Superior Court judge ultimately denied its motion, the Bank could appeal that decision to the Supreme Court after a final judgment.
On the other hand, if the Bank wanted a ruling on its motion, the appeals process, the Supreme Court explained, wasn’t the best choice to obtain comparable relief. A failure to rule—by its very nature—would preclude the entry of an appealable final judgment, which is prerequisite to an eventual direct appeal. The Supreme Court stated that the way that a court disposes of cases is within its discretion; as a result, its delay in ruling on a motion typically doesn’t call for mandamus relief unless it is "undue delay is tantamount to a failure to exercise jurisdiction."
The Supreme Court held that the Superior Court judge didn’t engage in undue delay and didn’t fail to exercise jurisdiction. He held a hearing on the Bank’s motion within two months, and when it heard that one of Richard’s heirs was possibly a mentally disabled minor, the judge—after much deliberation—decided that an immediate oral ruling from the bench was not appropriate. In addition, the Superior Court judge’s representations at the conclusion of the motion hearing and his order, demonstrated that he intended to rule on the Bank’s motion.
But a review of the hearing transcript and the Superior Court judge’s April 10 order calls that interpretation into question. At the hearing, the judge stated that he would reconvene the hearing to render a judgment. In the April 10 order, however, the judge states only that the ruling on the Bank’s motion for default judgment would be “deferred” in light of the disabled heir. The judge gave no inkling of any intention to rule on the Bank’s motion, leaving the Bank without any guidance on how to move the case forward.
This is not to say that the Supreme Court came to the wrong result. In past cases, the Supreme Court found mandamus relief appropriate after a delay of more than 8 months, see In re Government of the V.I., S.Ct. Civ. No. 2009-021, 2009 WL 1351508 (V.I. May 13, 2009); a delay of 10 months, see In re Eliot, S.Ct. Civ. No. 2010–0004, 2010 WL 4962814 (V.I. Sept. 24, 2010); and a delay of 13 months, see In re Fleming, S. Ct. Civ. No. 2011–0109, 2012 WL 917315, at *3 (V.I. Mar. 15, 2012). In this case, the Bank filed its mandamus petition only two weeks after the judge deferred ruling on the Bank’s motion, which is nowhere near the length of delay needed to obtain mandamus relief in the Virgin Islands. In light of the circumstances, the Supreme Court decided that the judge didn’t breach his duty to rule on the Bank’s motion within a reasonable time. The petition for relief was denied.
And yet, the Bank’s mandamus efforts are understandable when viewing the entire arc of the case. According to the transcript, the Bank did everything right. It served Richard with the foreclosure complaint. When Richard died, the Bank moved to have his unknown heirs joined as defendants. It published notice of the foreclosure action to alert the heirs of the suit. In the meantime, it held numerous discussions over a two-year period with the family-member attorney concerning the case. The family never once moved to set aside the default, appearing in court only at the last minute to thwart the Bank’s legitimate foreclosure efforts. And then, rather than ruling up-or-down on the Bank’s motion, the Court simply tabled the matter.
Could the Bank have taken a different tack? Certainly. It could have formally requested a ruling on its motion. It could have asked the judge to order the appointment of a guardian ad litem for the disabled heir. But anyone who has experienced the legal limbo of deferred rulings knows that neither of these tactics is likely to stir judge to further action. Although judges properly have the final say on how they run their dockets, cases will continue languish if a judge is only required to do something with the case, regardless of whether that something moves the case toward resolution. Indeed, mandamus relief has been denied where a judge has consistently refused to rule on dispositive motions, only to request supplemental briefing once the mandamus petition has been filed. This sets up a perverse set of incentives, where all a hypothetically cynical judge has to do to reset the mandamus clock is order irrelevant briefing or simply suggest that it might rule someday. Even though the Supreme Court properly reserves mandamus for only the most egregious cases, it offers nothing to prevent judges from bringing the wheels of justice to a grinding halt. Thus, instead of offering a litigant like the Bank a way out, the Supreme Court says that a frustrated party can only sit back and wait.
In re Bank of Nova Scotia, 2013 WL 4878071 (V.I. September 13, 2013)