Mackay's advancement to Superior Court delayed

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ST. THOMAS - Two months after the V.I. Legislature confirmed the appointment of V.I. Magistrate Judge Kathleen Mackay to the V.I. Superior Court bench, Mackay continues to handle cases in the Magistrate Division.

Meanwhile, the caseload of the judge who Mackay was appointed to replace - retired Superior Court Judge Brenda Hollar - is being looked after by law clerks, and new cases are being assigned to the St. Thomas-St. John District's three other Superior Court judges, according to Presiding Judge Darryl Donohue Sr.

Hollar announced her retirement in an August 2012 letter to Gov. John deJongh Jr. and officially stepped down at the end of November. DeJongh nominated Mackay to replace Hollar in October, along with three other judicial nominations.

The 29th Legislature approved all of the appointments in mid-November.

All of the new appointees except for Mackay are "up and running" at their new posts, Donohue said.

However, Donohue said Mackay agreed to continue serving as a magistrate judge until a replacement is found to assist Magistrate Judge Alan Smith.

"She's volunteered to basically continue working handling magistrate cases so as not to leave Magistrate Smith on his own," Donohue said.

Furthermore, the V.I. Code requires "no fewer than two magistrates per judicial district," leaving it unclear whether Mackay legally could transfer posts before a replacement is appointed.

Mackay did not respond to requests for comment for this article.

Replacing a magistrate judge in the territory involves the following steps, according to Donohue, the V.I. Code and Superior Court rules:

- Whenever there is a vacancy in a magistrate position, the Presiding Judge shall establish a magistrate selection panel to provide a list of at least two nominees for the Superior Court to consider in filling the position.

- The panel must consist of 11 citizens from the judicial district where the vacancy exists, four of whom must be non-attorneys. The panel must include an assistant attorney general, a territorial public defender and an active member of the Virgin Islands Bar in private practice. The Superior Court shall adopt rules, standards and procedures for the magistrate selection panel to follow in submitting its nominees. Seven members of the committee constitutes a quorum.

- All applicants must submit to a federal and local background check.

- If the panel fails to submit at least two nominees within 90 days after the Presiding Judge establishes the panel, then the Presiding Judge may appoint the magistrate without further delay.

Donohue said he plans to appoint the panel once the application window for the new magistrate judge closes on Feb. 8. He said all of the Superior Court judges then will consider whichever names the panel approves and vote on who to appoint.

Donohue said the exact length of time for the whole process depends on several factors, most notably the number of applicants, because they all must undergo background checks.

"If we have two applications, that could be handled expeditiously," he said. "If we have 10 or 15, clearly that's going to slow things down."

Donohue said he hoped to have the position filled "probably sometime around May."

Until then, Donohue said, law clerks and the other Superior Court judges will pick up the slack.

"We're not going to let anything that was actually pending before Judge Hollar - we're not going to let them just fall into squalor," Donohue said.

To be eligible to serve as a magistrate judge, applicants must be U.S. citizens, be members of the V.I. Bar Association and have engaged in the active practice of law in the territory for not less than five years immediately prior to their nomination. The salary for the St. Thomas-St. John magistrate job posting is $129,200.

- Contact reporter Lou Mattei at 714-9124 or email

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