Tuesday, October 30, 2007

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.

Wednesday, October 17, 2007

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.]

Sunday, October 14, 2007

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.

Wednesday, October 10, 2007

Service of Process on Korean Nationals

The CNMI business community draws members from many nationalities. When it comes to litigation, service of process can get tricky. I came across a terrific blog by Brendon Carr, an American lawyer in Korea who has some great insights into Korean business and law practices. Regarding service on a Korean resident-defendant, the only party who may effect service of process is the court. Korea has adopted the Hague Service Convention, and has a "Central Authority" through which all papers must be routed in addition to an official form (downloadable PDF). American attorneys may make service requests directly to:

Ministry of Court Administration
Attn.: Director of International Affairs
967 Seocho-dong, Seocho-gu

All papers must be translated into Korean. For a terrific primer on international service, check out the Proskauer Rose LLP manual on international litigation.

Monday, October 8, 2007

Electronic Discovery in the Federal Courts

On Saturday, the CNMI Bar got together for the Fourteenth Annual District Meeting for the Northern Mariana Islands, hosted by our own Judge Munson. Judge Consuelo B. Marshall from the US District Court of the Central District of California gave a terrific presentation on e-discovery. From audience response, it appears that at this point e-discovery has not been heavily utilized here in the CNMI-- but it is surely coming. With the amount of emails being sent, and the amount of data being stored electronically, it is just a matter of time before attorneys in the CNMI will have to start dealing with e-discovery. In addition to a thorough presentation, Judge Marshall referred the bar to the Federal Judicial Center publication (2007) entitled Managing Discovery of Electronic Information: A Pocket Guide for Judges. The publication details amendments to the Federal Rules of Civil Procedure 16, 26, 33, 34 and 37 which went into effect December 1, 2006 and deal with electronically stored information (“ESI”). ESI is different from traditional data in that it is dependent on the computer system which created it, it typically contains “metadata,” i.e. hidden or embedded data as to creation date, author, etc, and it doesn’t necessarily get deleted when the user deletes it. Basically, ESI is treated the same as other discovery as far as evidentiary objections. But because of the “dynamic” nature of ESI, the rules have evolved to identify and preserve data which might otherwise be deleted. Judge Marshall stressed that in order for lawyers to avoid sanctions, they must advise their clients not to destroy relevant ESI when litigation is imminent—even if the client has a good faith memory recycling system in place. (But see Rule 37). Rule 26(f) deals with ensuring parties meet responsibilities for avoiding spoliation of evidence. Rule 26(b)(5) deals with establishing procedures for asserting a privilege or attorney work product protection claim after an ESI document has been discovered. The issue of whether a privilege has been waived continues to be a substantive legal question which is an issue for the court. Proposed Rule 502 of Evidence was published for comment in August, 2006, and provides that inadvertent disclosure of ESI constitutes a waiver only if a party did not take reasonable precautions to prevent disclosure and did not make reasonable and prompt efforts to rectify the error. In April, 2007, the Advisory Committee on Evidence recommended that the Standing Committee on Rules of Practice and Procedure adopt Rule 502 with some changes. Among the pertinent changes, the text was clarified to indicate that Rule 502 applies in all federal court cases, including cases in which state law provides the rule of decision. In addition, language which strengthened the protections against waiver by inadvertent disclosure was added, while the selective waiver provision was dropped. If the court finds that a disclosure is not a waiver, that finding will be enforceable in subsequent proceedings regardless of party agreement. Finally, the definition of work product will also include intangible information.

Sunday, October 7, 2007

Negligence Suit against Doctor Defendant Dismissed under Public Law 15-22

The CNMI Public Employee Legal Defense and Indemnification Act (PELDIA) was repealed by Public Law 15-22, which mandates that Commonwealth employees who obtain a certification from the Attorney General that they were acting within the scope of their employment be dismissed from negligence lawsuits. Public Law 15-22, enacted on July 28, 2006, is based on the Federal Tort Claims Act. In this personal injury case, the court dismissed Plaintiff’s negligence claim against a doctor Defendant. Owens v. Saccomanno, Civ. Action No. 04-0288, March 21, 2007 (Wiseman, J.). As a threshold matter, the court held that it could adopt the review procedure employed by federal courts and find that Attorney General certifications are subject to review by the trial court. The court cited to 9th Circuit cases which provide that: 1. the trial court should apply respondeat superior when reviewing a certification; 2. the initial burden of proof is on the party seeking review of the certification; 3. the certification is prima facie evidence that the employee was acting within the scope of his employment; and 4. the trial court may hold a hearing to resolve factual hearing as long as there is a disputed issue of material fact. Plaintiff argued that the doctor should not have received a certification because he was an “independent contractor.” The CNMI Supreme Court has spoken on the factors to be considered in determining whether a person serves as an employee or independent contractor. Castro v. Hotel Nikko Saipan, Inc., 4 N.M.I. 268, 273 (1995). Judge Wiseman further identified factors which relate to medical professionals enumerated by federal courts. These factors are whether: 1. the professional accepted an assignment as an employee or a contractor; 2. the hired professional was required to provide personal liability coverage; 3. the professional provided his own equipment; and 4. the Government supervised the professional daily. Because the employment contract specifically characterized defendant’s position as “employee-employer,” the Court gave little weight to the fact that the contract was short in duration. In addition although the contract did not provide all benefits usually covered for Commonwealth employees, those omissions did not conclusively indicate that defendant was not an employee. Finally, plaintiff did not establish an issue of fact regarding the supervision of defendant. Looking to whether defendant acted within the scope of his employment, the Court found that the conduct was not so “unusual or startling” that it would be unforeseeable to an employer.

Friday, October 5, 2007

Federal District Court finds section 4434(e)(1) of the Nonresident Workers Act Unconstitutional

Auto Marine, Inc. v. Sablan, Case No. CV-05-0042, District Court of the Northern Mariana Islands, October 2, 2007 (Munson, J.). A local water sports corporation challenged the constitutionality of a local statute which provided that certain jobs could not be filled by nonresident workers (taxi drivers, secretaries, bookkeepers, accounting clerks, messengers, receptionists, surface tour boat operators, bus drivers, and telephone switchboard operators). The corporation’s Filipino boat operators were arrested and subjected to deportation proceedings, even though they were employed pursuant to employment contracts approved by the Commonwealth Director of Labor, and criminal charges were brought against the corporation’s president for employing aliens who did not have lawful documentation and authority to be employed--all under the authority of 3 CMC 4434(e)(1). The Court found that 3 CMC 4434(e)(1), part of the Nonresident Workers Act (“NRWA”), was discriminatory on its face because the NRWA treats nonresidents differently from residents and citizens of the Northern Mariana Islands. In then determining the legitimacy of the statute despite its discriminatory nature, Judge Munson reviewed the purpose of the NRWA, which is “to provide a balanced and stable economy in the Commonwealth by providing residents a preference in employment….” (citation omitted) This provision of the statute, however, did not survive the equal protection challenge under a rational basis test. The Court found that, instead of providing a preference to resident workers, 3 CMC 4434(e)(1) “completely forecloses nonresident workers from employment in specific job classifications.” As a result, there is no prevention of impairment of local wages because the statute does not actually create temporary alien labor in the specific job classifications. The Government did not provide any further basis for why it chose to single out these specific job classifications, or why the Government should prevent certain positions from being filled if there are no available qualified resident workers. While the 9th Circuit has in the past upheld the NRWA, it has also made clear at the same time that there is a “possibility that discrete elements of the CNMI's temporary worker program could violate the equal protection rights of nonresident workers.” See Sagana v. Tenorio, 384 F.3d 731, 741-742 (9th Cir. 2004). It would seem that the District Court has now identified one such violation.

Wednesday, October 3, 2007

Condominium Law Supported by AG Opinion

In an Attorney General's Opinion released this September, the Condominium exception to Article XII of the CNMI Constitution (Section 3), implemented by Public Law 15-49, was found to be constitutional. (Disclaimer: my husband participated in the drafting of the opinion). For those readers not intimately familiar with CNMI laws, Article XII limits land ownership to persons of Northern Marianas descent. Persons who are not of Northern Marianas descent may lease private lands for a maximum of 55 years. Public Law 15-49 implements the Condominum exception by more clearly breaking down the form of ownership into a unit, a common area, and a descent restricted estate, and more clearly defines the ownership rights of the parties. In a lengthy opinion which discussed the development of the law interpreting Article XII, the AG emphasized the fact that the Legislature was putting into effect the will of the people through the Article XII condominium exception. As a result, the AG found that a necessary easement was created running to condominium units which would preserve the perpetual nature of ownership in units above the first floor. With renewed corporate interest in the CNMI as a retirement and vacation destination for Asia, it is in the interest of the CNMI to clarify its condominium laws to provide a stable base for long term investment. However, while an AG's opinion is persuasive, the final interpretation will come from the Court if and when the issue is raised through litigation. Hopefully any uncertainty raised by this possibility will not negatively affect development.

CNMI adopts the Uniform Partnership Act

In a move which will clarify how business is done via partnerships in the Commonwealth, Acting Governor Villagomez has signed House Bill 15-178 (now Public Law 15-88). The new Public Law 15-88 adopts American partnership laws through the Uniform Partnership Act of 1997. The Saipan Tribune reports that we are joining 49 US States who have adopted the Uniform Partnership Act of 1997. The new law incorporates common law on partnerships as well as how to deal with complex issues such as dissolution and limited liability partnerships.