Sunday, June 22, 2008
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
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
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.