Sunday, June 22, 2008
Monday, June 16, 2008
Wednesday, June 4, 2008
Thursday, May 29, 2008
Monday, February 18, 2008
The trend in some states seems to be leaning toward recognizing the broadening of legal practice. In Georgia, they have taken the idea of reciprocity one step further to allow "multi-jurisdictional" law practice. In essence, Georgia attorneys are allowed to do legal work elsewhere, and out-of-state lawyers get the right to set up shop in Georgia–without associating with local counsel. Currently in the CNMI, if an outsider wants to practice here, he may only do so under limited admission for one case pro hac vice, and the cost is prohibitive ($5,000.00 for a one year period). See the Rules of Admission, Rules 3 and 4. Otherwise, an outsider must associate with local CNMI counsel. There is a terrific website which lists the particulars for attorneys on what each state requires or allows regarding multi-jurisdictional practice.
I have no opinion on whether protectionist policies are good or bad for a particular state--and I note that particularly desirable states in which to retire, like Florida and Arizona, also do not allow reciprocity. But it seems as though the distinctions between the several states are breaking down as surely as the practice of law is expanding nationally and globally. I believe that the ease of electronic research and the continuing national standardization of bar testing suggest the inevitability of a national practice of law one day. Until then, keep checking the local rules.
Friday, January 25, 2008
Several very important points were touched upon, and I’ll try to sum them up here. First, there will be no variances awarded, and that goes especially for residential areas. This is because the purpose of a variance is not to change the current zoning scheme. However, a variance may be requested if the use fits into the character of a zone where it seems to belong, but for some reason it is not provided for specifically in the law. Second, non-conforming use property will be amortized for the life of the investment and then extinguished. However, it will be possible for nonconforming uses to convert or legalize. (See Section 1208). It was suggested that non-conforming use owners may want to register their non-conforming property before February 1, 2008 so that there is no question that the use was in effect before the implementation of the law. Third, there are a number of uses which are marked “conditional” in the law. This means that the property owner will have to ask permission and make a case before the zoning board. If, however, a property owner can convince the surrounding parcel owners to agree with a conditional use, the zoning board will accept the use. Fourth, there will be many situations where it is necessary to refer to multiple uses or multiple zones (the example was given of a ball park with a kiosk selling food and liquor). Each use and zone must be examined to determine whether the law is satisfied. Lastly, time lines have been built into the law so that prompt decisions will be rendered by the zoning board. (See Article 14).
All in all, the law looks to be very straightforward and well written. It contains tables of uses along with area by area maps to easily locate use zones, and it has a comprehensive table of contents. Developments other than single family homes will require a zoning permit. Accordingly, the zoning board suggests that owners who are planning to build contact the board first so that they can be sure to conform to the law up front instead of having to make costly changes later down the line.
Sunday, November 4, 2007
Rule 83.2 of the Civil Rules deals with citation to authority. The Superior Court requires the practitioner to provide the court with unavailable authority, but this is not specifically defined. Any authority not available in the Commonwealth Law Library, such as a treatise or law review article, must be attached in a length that is enough to provide a full understanding of the author's opinion. At this point, I believe the law library is out of date by possibly 10 years. This is because the Court decided a long time ago to put its resources on the side of progressiveness, and began subscribing to electronic research services. It seems to me that this rule is expansive on purpose. The Court currently subscribes to Westlaw, and so I would say that any citation to authority which is available on Westlaw would be equivalent to the law library. Anything else would need to be attached to the back of the papers. Also in the rule is that the Superior Court doesn't want to see secondary authority cited (such as Am.Jur.) if there is primary authority available . But if you have to cite a secondary source, it is permissible to cite with a parenthetical explaining why primary wasn't available.
Similarly, the District Court's Local Rules say that all citations should be in a generally recognized form, and any authority not available in the court's law library must be provided to the court. See LR 5.2 (c) and (d). It appears that the District Court is also open to reviewing citations of unpublished decisions as long as they are made available to the Court. In addition, there are courts which have argued that Ninth Circuit Rule 36-3 does not bar citations to unpublished decisions from other circuits. See Alvarenga-Villalobos v.
Tuesday, October 30, 2007
"In Kumagai, we noted that '[w]hile our rules do not explicitly state the obvious, we find that an entry of judgment or order issued as a separate document is a necessary adjunct that must be filed with the Superior Court clerk.' Id. at ¶ 22 (footnote omitted). We went on to state that “[a] thorough evaluation and collective reading of our Rules of Appellate Procedure, Rules of Civil Procedure and Rules of Practice make evident that without such an entry of judgment or order, this Court has no jurisdiction.” Id. Furthermore, we took explicit note that “Rule 54(a) . . . state[s]: ‘A judgment shall not contain a recital of pleadings, the report of a master, or the record of prior proceedings.’” Id. at ¶ 19 (quoting Com. R. Civ. P. 54(a))." CPA v. Tinian Shipping Company, Inc. 2007 MP 22 at ¶ 12
I think the Court is attempting to clarify the new rule now. In CPA, there were two judgments issued: one was issued initially as part of a “findings of fact and conclusions of law,” and then another judgment was issued subsequently containing essentially the same final judgment. The Supreme Court held that the correct judgment from which to start counting was the second judgment, or the “entry of judgment.” Essentially, the trial court writes out what it has found and what it has held, and, usually, the judgment amount, if any. Then, the clerk makes a separate piece of paper, approved and signed by the trial court, which it calls the final “judgment.” This is the official piece of paper that counts. The clerk enters that judgment, serves the parties, and then we start counting.
As the Kumagai Court put it, “[f]rom these rules, it is apparent that an “entry of judgment or order” is different from the announcement of a decision, sentence or order. An entry of judgment or order has been singled and differentiated from announced orders, decisions and sentences in the rules and must therefore itself be in a different form. It is further clear that an entry of judgment or order, filed with the clerk of the Superior Court is required before an appeal is permitted.” Commonwealth v. Kumagai, 2006 MP 20 at ¶ 18.
Now here is the potential problem I see. First of all, entry of judgment is left to the clerk. Time does not start running to appeal until entry of judgment. In many US courts, the clerk prepares the judgments to be signed the same day the decisions are made, and the judge just signs both the decision and the judgment concurrently. But what if the clerk doesn’t enter the judgment immediately after the decision is made by the trial court? In CPA, the first decision/judgment was made on May 21, 2004, and the second “entry of judgment” was issued June 18, 2004. How long do you have to wait for entry? Can you be sure, if you want to appeal, that it is okay to wait months or years for entry without foregoing your right to appeal? Can you be sure if you want to be able to depend on the finality of the judgment that the opposing party won't swoop down six months later with an appeal from a newly entered judgment? I would consider calendaring post judgment time for entry if you do not receive the entry of judgment with the initial decision and order. My recommendation would be that if the Court has not entered judgment within a month, to prompt the court to enter the judgment, if necessary by motion. Although it is not specifically laid out in the rule, I would be wary of trying to appeal very late in the game, even without an entry of judgment. Also keep in mind that under Rule 4(a)(2) of the Appellate Rules, a notice of appeal filed after the order but before the entry of judgment is treated as filed on the date of entry. So if you are not sure, it can't hurt to file your notice early.