Sunday, June 22, 2008

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.

Monday, June 16, 2008

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.

Wednesday, June 4, 2008

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.

Thursday, May 29, 2008

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.

Monday, February 18, 2008

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.

Friday, January 25, 2008

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 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.