IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. THOMAS AND ST. JOHN



EMILY BROWN,



Plaintiff, Case No. ST-09-DV-201

VS.

Action for Domestic Violence

BOYD B. BROWN, JR. and

LAURIE VAN BEVERHOUDT,



Defendants.



Nee ee ee ee et ee



MEMORANDUM OPINION AND ORDER DENYING MOTION FOR

DISQUALIFICATION/RECUSAL



This matter is before the Court on the pleading filed by Defendant Boyd B.

Brown, Jr. entitled APPLICANT RULE 7.3 MOTION FOR RECONSIDERATION TO

COURT AFTER THE ENTRY OF THE ORDER OR DECISION and MOTION FOR

DISQUALIFICATION/RECUSAL OF magistrate (sic) KATHLEEN MACKAY pursuant to

Title 4 V.I. Code (3). The Plaintiff has filed no response to the motion. The Court will

address the motion for reconsideration in a separate order.



Plaintiff Emily Brown filed a domestic violence complaint against her son,

Defendant Boyd B. Brown, Jr., and his girlfriend, Defendant Laurie Van Beverhoudt, on

July 28, 2009. That same day Magistrate Alan D. Smith entered an ex-parte temporary

restraining order against the Defendants, pursuant to Title 16 Virgin Islands Code

Section 98, and the matter came on for hearing on August 6, 2009. All parties appeared

Pro Se, were sworn and testified.



The evidence revealed that Plaintiff and Defendants lived on the same property;



Plaintiff occupied the upstairs unit and Defendants occupied a downstairs unit with

Brown v. Brown



Case No. ST-09-DV-201



Memorandum Opinion and Order Denying Motion for Disqualification/Recusal

Page 2



partial facilities but no bathroom. Plaintiff testified that she had been the object of

Defendant Brown’s continuous verbal abuse and haranguing since he had been

released from prison, that his harassment had caused her physical maladies,

specifically high blood pressure, that she was at her wit’s end and could absolutely no

longer tolerate his abuse. While the Plaintiff was testifying about the abuse to which she

had been subject, Defendant Brown nodded his head. The Court found the Plaintiff

credible. Therefore, the Court entered an Order requiring the Defendants to vacate the

property and further restraining them from harassing, verbally abusing, threatening or

intimidating Plaintiff Emily Brown or from otherwise subjecting her to any form of

domestic violence. The Court further ordered Defendants to vacate the Plaintiff's

property within two weeks.



Defendant Brown’s motion for disqualification/recusal appears to be largely

based upon the fact that prior to filing the domestic violence complaint, the parties had

appeared, Pro Se, before the same undersigned magistrate in an action captioned



Emily Brown v. Boyd B. Brown, Jr., Action for Forcible Entry and Detainer, Case No.



ST-09-CV-323, which came before the court on July 28, 2009. The Court dismissed

that forcible entry and detainer matter for lack of subject matter jurisdiction because the

Defendant was not a paying tenant. The court pointed out to Plaintiff that her case

sounded in domestic violence and directed her to the family court division to file a



domestic violence complaint. It is apparent that the Plaintiff then filed the domestic



violence complaint that initiated this action.

Brown v. Brown



Case No. ST-09-DV-201



Memorandum Opinion and Order Denying Motion for Disqualification/Recusal

Page 3



Defendant Brown’s motion for disqualification/recusal argues, inter alia, that he

was denied due process and the undersigned was prejudiced and biased against him

because 1) the forcible entry and detainer matter came before the undersigned

magistrate, and 2) the undersigned magistrate acted as an advocate for Plaintiff by

referring her to the Family Court to file a domestic violence complaint.



Defendant Brown’s motion relies upon V.J. ANN. Tit. 4, §284 (3) and (4), which

applies to judges and justices only. Virgin Islands law defines a magistrate as a judicial

officer, but not as a judge. V.I. ANN. Tit. 4, §122(d). The Virgin Islands Code recites

no standard for a magistrate or judicial officer to be disqualified from a proceeding.

Nevertheless, the Court will apply the standards applicable to judges and justices.



No judge or justice shall sit or act as such in any action or proceeding:



(1) To which he is a party or in which he is primarily interested;



(2) When he is related to either party, or to an officer of a corporation which is a



party, by blood or marriage within the third degree;



(3) When in the action or proceeding or in any prior action or proceeding

involving the same issues, he has been of counsel for any party to the action

or proceeding; or



(4) When it is made to appear probable that, by reason of bias or prejudice of

such judge, a fair and impartial trial cannot be had before him.



Title 4 V.I.C. §284.

Defendant Brown argues that the Court acted as counsel for Emily Brown or was



biased against Defendant Brown in the action for forcible entry and detainer, and as a

Brown v. Brown



Case No. ST-09-DV-201



Memorandum Opinion and Order Denying Motion for Disqualification/Recusal

Page 4



result should be disqualified from presiding over the family court domestic violence

case. However, the Court dismissed the action for forcible entry and detainer on the

grounds that the landlord/tenant court did not have subject matter jurisdiction of the

dispute as presented by the Plaintiff. The Defendant did not present any evidence or

testimony in the forcible entry and detainer matter. A magistrate who dismisses an

action for lack of subject matter jurisdiction cannot be deemed to have been biased

against the defendant. The Court's recommendation to Plaintiff that she seek relief in

the Family Court does not rise to the level of acting as an advocate for the Plaintiff in

violation of Title 4 V.1.C. §284.



Defendant Brown had ample opportunity to present his case in the domestic

violence hearing and no partiality was shown to Plaintiff during the hearing. In addition,

the Motion for Disqualification/Recusal was filed after this case was decided.

Consequently, the Defendant waived his right to request a recusal or disqualification by

not objecting before the Court entered its order.



Accordingly, Defendant Brown’s Motion for Disqualification/Recusal is DENIED.



DATED: September <) 8, 2009 Lhd C Verlaan.



KATHLEEN MACKAY ~

ATTEST: Magistrate of the Superior Court

VENETIA H. VELAZQUEZ, ESQ. of the Virgin Islands

Clerk of thé Court



4



rt Clerk Supervisor G iA3 10 7



lh M. LOCKHART ~

C