Criminal Restitution Orders as Civil Judgments

Sometimes a judge will order a person convicted of a crime to pay restitution to the victim for the victim's losses. This can range from a father forced to pay a college/victim his son's savings bond for fraudulently submitting a false financial aid application, to a thief who is forced to pay his victim for the value of the property he stole. Under PL 15-46, 6 CMC 4109(h)(new in the 2007 pocket part), we have a statute which says that a restitution order is a "judgment lien" that attaches to the property of the person subject to the order; may be perfected; and may be enforced against a probationer as if the order were a civil judgment enforceable by execution...." It appears that this type of restitution order can be enforced through a writ or order in aid of judgment before the same judge who handled the criminal case (and under the same index number). After taking a look at the Superior Court cases on the Law Revision site, I did not come up with any case where this has been done. So I took a general survey of US cases. It appears that when a statute authorizes victims of crime to enforce restitution orders as if they were civil judgments, the victim can use the restitution order to obtain further relief to force compliance--and, importantly, this can be done without an initial hearing or finding of noncompliance. See State v. Wiens, 77 Wn. App. 651, 656-657 (Wash. Ct. App. 1995). There is no need to start a new action, civil or criminal, to enforce a restitution order as if it was a judgment. See United States v. Mays, 430 F.3d 963, 967 (9th Cir. Cal. 2005). We have yet to see how the CNMI Superior Court will deal with this issue. I will be updating this post when I find out--stay tuned.

Administrative tips on filing Orders

I was appearing before a very fine Superior Court jurist today who remarked that practitioners should file both their PDF proposed order and an original order in a word processing format. This makes it possible for the Judge to make corrections, even if only to a date. This Judge told the lawyers present that often people assume that the Judge did not even read the order when it has been signed because such mistakes cannot be changed when the document is only in PDF format. One of the lawyers then informed us all that he was not able to upload his Microsoft Word documents to Lexis e-filing. I would think though, that for most of us, we can either transform the document into rich text format or another word processing program. In addition, there was some talk that Adobe 10 will allow editing of PDF documents. I did a search and only came up with Adobe 9--perhaps there is something in the works. At the end of the day, the more we know which will expedite our orders and keep the Court happy, the better.

Reading Electronic Court Orders

In a recent case, a colleague of mine was required to show proof to a bank that the new administrator had indeed been appointed by the court so that a trust account could be opened. The bank did not want to accept the court's order because there was no signature on the signature line. Instead, there was a banner across the top of the document which said it was signed with the court's seal. The electronic filing rules say that the person filing a document is deemed to have signed it. But while the legal community has adjusted to the (at first disconcerting, I admit) lack of signature on the line where we used to expect it, it may be that not all of our fellow colleagues in the business world have had the opportunity to adjust. As a result, I suggest that we send a copy of Rule 6.5 of the Commonwealth Rules for Electric Filing and Service along with orders we are asking others to comply with if there is any question raised.

Common Ground Lease Mistakes

In Saipan, property may only be "purchased" by non-indigenous people by a 55 year lease interest. Therefore, many real estate transactions are not transfers of fee simple estates, but rather leasehold estates. I was recently reviewing one of these leases and came across some common mistakes which I thought I'd just remind everyone to watch out for. First of all, make sure you don't lease for one minute over 55 years. The lease I saw was for a term from April 5, 2008 to April 5, 2063. The CNMI Constitution, Article XII, requires that a non-NMI descent person cannot acquire more than a 55 year interest. As a result, the lease must be drawn up, for example, beginning at 12:01 a.m. on April 5, 2008 and ending at 11:59 p.m. on April 4, 2063. It may seem like a ridiculous technicality, but it's the kind of thing someone will go looking for if they are seeking to void your lease--and the Constitution says that any transaction in violation of Article XII is "void ab initio," so it's better not to take any risks. In addition, the lease I looked at had an insufficient spousal consent. Here in the CNMI, where spouses have certain rights to share certain land, it is important to make sure that if you lease from one spouse, you have the other spouse "sign off" on that lease, and that the spouse's signature is appropriately notarized. I will go over some more lease options which, while not absolutely necessary, can be beneficial for landowners as well as tenants in future posts.

Federalization of the practice of law?

Lawyers in the United States are licensed by state. There are many states currently who allow a lawyer admitted in another state to become a member of their bar. This is referred to as reciprocity. Here in the CNMI, there is no reciprocity. In order to become a licensed member of the bar and practice law, an attorney must take the CNMI bar exam. Attorneys who have practiced for at least 5 years may take a shortened version. The CNMI Supreme Court is very serious about policing the unauthorized practice of law. There was a recent case where the Supreme Court took action concerning a lawyer who was practicing without a local license, even though she was employed by the Attorney General's Office. (See MP 33).

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.

Zoning Law enacted

Yesterday, Alan Barak, Esq., counsel for the Zoning Board, gave a lecture on the new Saipan Zoning Law of 2007. While the Zoning Law will be referenced at 10 CMC §3511 (PL 15-29), it is not yet in the new books and will be too big to fit, so the best bet is to go to http://www.zoning.gov.mp/ and download or order a copy. This law was enacted to improve the public health, safety and welfare of the people of the CNMI. While the actual requirements of landscaping and building setbacks will serve to beautify and de-clutter certain areas, the law is purposely not based on aesthetics but rather on specific, quantifiable requirements. In addition, private homeowners may continue to make changes to their homes without concern that they will be violating zoning laws, and this includes building additional houses on family land which may not have road access. (See Section 1304: private single family dwellings not required to obtain a zoning permit).

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.

Citation to unpublished cases

When I was a law clerk at the Supreme Court, the rule on citations to unpublished case law was simple: you can't do it. See Rule 51 of the Commonwealth Rules of Appellate Procedure. Now that I am out in private practice, I'm seeing a fair number of citations in Superior Court briefs to unpublished District Court cases, especially in the Ninth Circuit. I have also seen unpublished District Court cases cited by the Superior Court. In the CNMI, as a new jurisdiction, the law is still evolving, and there are certain types of cases which aren't getting published in the US that are helpful to us here: especially, I find, cases with pro se litigants. I figured that if I am a bit confused, I am not alone. So I took a look at our rules. From what I can see, we have the Rules of Practice, which address citation to unpublished opinions of the Superior Court and Ninth Circuit. See Rule 29. When there is a conflict with the Rules of Practice, the Rules of Civil Procedure govern, as they do here. See Schedule on Transitional Matters, Section 1, Rules of Civil Procedure.

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. Reno, 133 F.Supp.2d 1164 (N.D.Cal.2000); In re Antablian, 140 B.R. 534 (C.D.Cal.1992). That being said, an unpublished decision cannot be cited as precedent but as persuasive authority at most. Ninth Cir. R. 36-3; Schmier v. United States Court of Appeals for the Ninth Circuit, 279 F.3d 817, 825 (9th Cir.2002); Hart v. Massanari, 266 F.3d 1155, 1180 (9th Cir.2001). As of January 1, 2007, the Ninth Circuit has changed its rules to allow citation to unpublished dispositions and orders of the courts of its own circuit. See Rule 36-3(b)—but older unpublished Ninth Circuit opinions are still off limits in the Ninth Circuit.

When to file a notice of Appeal

With the Supreme Court’s recent decision of CPA v. Tinian Shipping Company, Inc. 2007 MP 22, I thought it would be a good idea to discuss notices of appeal. Filing a notice of appeal on time is crucial. The rule is that you have to file within 30 days after judgment from Superior Court. Our Supreme Court has made it clear that it will not assert jurisdiction over untimely filings. The law has been a bit confusing lately because the Supreme Court has recently changed the format of what constitutes a final appealable judgment.

"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.

The State of the Restatements

In the CNMI, we cite to the Restatements as precedent in the absence of local law. 7 CMC 3401. Recently, I’ve noticed a proliferation of Restatement Third editions and drafts, and this raises some questions for me. If a prior Restatement has been used as authority by our local courts, does that version of the Restatement then become the CNMI local law, such that we would not cite to a later edition? Will the CNMI courts find a Restatement Draft persuasive, considering that the Restatement is supposed to be a reflection of the common law of the United States? Does the fact that there has been some discussion about the validity of the Restatements themselves impact the CNMI? At this point, I haven’t seen any direct precedent on these issues from our courts. There are a lot of cases which parrot our statute, but not much to answer my questions. CJ Dela Cruz, in a one man opinion (with concurrences), noted that our reliance on the Restatements was merely a “short-hand attempt to fill a gap due to the absence of statutory laws in many areas.” Borja v. Goodman, 1 N. Mar. I. 225, n.4 (1990). Perhaps this suggests that we stick to whatever we have come up with, even if it’s from an old Restatement. My problem with this approach, however, is that I find that the newer editions are clearer and easier to understand than their predecessors. Of course, then we have to deal with the issue of whether the Restatement is actually reflecting the common law of the United States. Professor Kristen David Adams wrote a terrific article discussing these issues as they pertain mostly to the Virgin Islands, a jurisdiction with a very similar statute directing the courts to consider the Restatements authoritative in the absence of local law. “The Folly of Uniformity? Lessons from the Restatement Movement,” 33 Hofstra L. Rev. 423 (also to a lesser extent discussing CNMI cases and precedent). She cites to several Virgin Islands cases which have followed Restatement Drafts, suggesting that there is some persuasive reasoning out there for us to follow the Drafts--but the VI cases are a mixed bag. The article is actually very comprehensive and interesting, and I don’t do it justice to sum it up here—get on your electronic search vehicle of choice and take a look. [Professor Adams has recently followed up with an in depth discussion of the criticisms leveled at the Restatements, and how this may just reflect defects inherent in the common law system. “Blaming the Mirror: The Restatements and the Common Law,” 40 Ind. L. Rev. 205.]

New Zoning Law Open for Comment

The Zoning Board has requested comment on a new draft of the Saipan Zoning Law. According to the Saipan Tribune, there will be an open house on Monday, October 15, 2007 from 8:30am to 8:00pm at the American Memorial Park Visitor’s Center Auditorium, and then a Public Hearing on October 25, at 6:30pm at the Multi-Purpose Center in Susupe. I took a look at the new law, and I’m very impressed by the effort put forward by the Board. I like the emphasis on landscaping: especially the provisions for sidewalks and plantings. There are only two small concerns I have. For one, the requirement that Beach Road buildings have 75% windows facing the frontage may be excessive for this climate, even with covered walkways. I like the idea, and it is a beautiful look; I just can’t help but think of the owners and their power bills. I also like the sections which address nuisances and enforcement. The only thing I would add here is that there are other municipalities which have added criminal penalties to a willful failure to accept a citation issued by a code inspector. Also, it might be a good idea to include a catchall enforcement clause so that other departments with powers over dwellings (such as condemnation, for example) continue to be able to independently enforce their rules. Here’s an example: Enforcement by other means. Nothing contained in this division shall prohibit the municipality from enforcing its codes or ordinances by any other means.