Thursday, February 28, 2008

12. How to Read the News about Lawyers and Judges

The newspapers have been replete with stories, reports and accusations back and forth about judges, attorneys and clients. The “Malite estate” is practically a household term. It gets confusing. What do you believe? How do you figure out the “truth”?

It helps to keep some basic information at hand.

About judges: We have an “adversarial” system for our justice system. This means that litigants oppose each other and have the burden of proving their allegations. Judges do not act as witnesses or investigators, only as neutral arbitrators of information presented to them. No litigant gets a “perfect trial.” In fact, such a thing does not exist. Somewhere along the line, one of the many people involved in the judicial process (judge, attorney, litigant, witness, juror, or even court clerk) will make a mistake, as all humans do. What we strive for is not a perfect trial, but a fair one, before a judge or justice who, in the case at hand (regardless of other cases), has not made up his or her mind before the evidence or appeal is presented.

About attorneys: The first and highest duty an attorney owes is to the constitution and laws of the U.S. and CNMI. Whenever an attorney signs a document that is filed in court, the attorney is certifying that he or she believes it is true and legally supported, after a reasonable inquiry. If the allegations turn out to be false or the claim or appeal not legally supportable, and the attorney was not diligent before filing the pleading, the court can punish the attorney. This first duty also means that a lawyer must sometimes tell a client that what the client wants is unattainable, illegal or unsupportable. Clients do not like to hear this, but honorable attorneys will do their duty anyway.

The second duty of an attorney is to his or her client. Because our system is adversarial, the duty to the client necessarily pits the attorney against the other side. This does not mean the attorney must be rude or hostile to the opposing side. For the attorney, the client’s interests are paramount; the client’s interests—not the interests of the family, not the interests of the community, not the interests of some moral or religious point of view, and not any other interest. It also means that what a lawyer does is done in the name of the client, and it is in reality the client who is acting through the attorney. I’ve seen families maintain good social contacts despite litigation between themselves and they sometimes do this by blaming the lawyers. But in reality, the lawyer does not do anything without his or her client’s authorization.

The least of an attorney’s duties is to the opposing party, the media and the public. Basically an attorney must be fair. This essentially means “due process,” which is giving notice of claims and recognizing the opponent’s right to be heard.

About probate cases: Probate cases involve disposing of all of the assets and debts a person who died had, as of the time of his or her death. These assets and debts are called the “estate.” Anyone can file to probate an estate. One unusual feature of our rules is that even a creditor who claims the estate owes him money can file the case and ask to be appointed as the administrator.

The court appoints an executor, if there was a will, or an administrator, if not, to handle the probate procedure and move the case through court. This executor or administrator usually hires an attorney. And in these probate cases, the executor or administrator, as well as his or her attorney, owes a special “fiduciary” duty to the heirs of the estate and must look after their interests. Obviously, if the administrator is a creditor as allowed by our rules, there appears to be a conflict of interest between the creditor’s own interest and the duty to look after the heirs’ interest. For this reason, the court usually works hard to find an heir or other family member to step into the role of administrator rather than have a creditor do this, but the probate rules do allow a creditor to act as an administrator.

One aspect of the special duty of an executor or administrator concerns handling the estate’s assets. Executors, administrators and their attorneys need a court order to dispose of any of the estate’s assets. Court orders typically first require notice and an opportunity to be heard by all. The alleged violation of the rules mandating orders from the probate court before disposing of estate assets has been at the heart of many of the problems with probate matters.

Because of past problems, distrust, or even for information, one or more of the heirs or other family members may hire their own attorneys. Such an attorney owes a general lawyer’s duty (not an administrator’s duty) as outlined above—to the law, to the client, and minimally to the world. Heirs generally have a right to be heard.

About the legal profession: When any litigant has problems with an attorney there may be remedies available. The litigant may raise the problem to the judge in the court case where the problem arises and then on appeal. Another place to lodge complaints about attorneys is with the CNMI Bar Association, which has a disciplinary committee that investigates such complaints and makes recommendations for prosecution if warranted. If a litigant has a complaint about a judge, the litigant can ask to have the judge removed from the case in the pending court proceedings, or file a complaint against the judge for violation of the judicial canons of conduct.

About media reports: When complaints against lawyers and judges are taken directly to the media, the justice system becomes distorted. Some media reports are made based on one person’s opinion, usually a person involved in the proceedings and not a neutral decision-maker of investigative journalist. The statements to the media are sometimes libelous, declaring as fact what has not been proven, and depriving the “accused” lawyer or judge of having due process—a chance to have notice of the charges and an opportunity to defend against them.

Statements made directly to the media, through interviews and letters, are different than statements made in pleadings filed in court, and then reported by journalists. The court pleadings are made under the attorney’s certification of diligent investigation and truthfulness, with the threat of sanction if carelessly wrong. And a journalist tries to report accurately what can be verified. In contrast, the lure of quick access to newsprint and television, with their wide audiences, can encourage the individual who is interviewed or who writes a letter to make rash and vindictive statements without any facing test for reliability or truthfulness.

Judges and lawyers, the same as all people in our justice system, are innocent until proven guilty. Allegations and statements about fact made by individuals directly to the media are not proved. All we really know is that so-and-so makes the allegation.

So when analyzing a news report about a judge or attorney (or anyone, for that matter), start by asking these simple questions:

1. Has there already been a finding by a court? If yes and the finding supports the statement, that would make the statement more believable. However, it may be important to read the court’s opinion yourself. Sometimes people twist what the court has actually said to serve their own ends. If the court decision is against what the person is saying, there’s less reason to believe the person’s statement. If there’s been no court decision, you may want to withhold your judgment on the truth of the statement or allegation, recognizing that the statement is just a bunch of words without proof.

2. Does the person making the report have a stake in the outcome? If yes, recognize that they are not neutral and unbiased, and remember that bias and prejudice can make reports unreliable. Ask yourself whether the person making the statements may be using the media to push their hype when they cannot win legally. Or are they merely responding to attacks unjustly made against them in the media, when they haven’t yet had an opportunity to present their case?

3. Do you personally know the speaker, the person making the statements or allegations? If yes, you have a better insight into credibility. If not, you may have little to no ability to assess the truthfulness of the statements made. Be smart about what you do know and what you don’t.

We need less character assassination in the newspapers, whether the topic is political or legal. Principles, not personalities, should be the focus of discussion and rational debate. So when you read letters to the editor or stories in the media where someone is claiming that another has acted unethically or based on prejudice, be cautious. Don’t believe everything you read. Use what you know. Ask questions. And withhold judgment until you’re convinced, not by cheap shots and lots of talk, but by real evidence, tested through cross-examination in a court of law, and unbiased review.

Thursday, February 21, 2008

Child Custody in the CNMI

This post covers some basic legal issues on child custody in the CNMI.

When parents separate, the most difficult concerns are for the child. Many times, the parents will decide how to split their responsibilities and work out the child’s living arrangements. When parents are unable to reach a decision on how they will share in being a part of their child’s life, child custody can be determined by a court.

When does the court get involved in custody?

How does a court decide who gets custody?

What happens to the parent who doesn’t get custody?

What if I’m having problems with visitation because of the other parent or the other parent’s family?

Is there a child visitation center in the CNMI?

What if I believe the court’s decision on custody should be changed?

What if the parents agree about custody?

When does the court get involved in custody?

Generally, the child must still be a minor (less than 18 years old). In a divorce, the court will determine custody and specify it in the divorce decree. For unmarried parents, one of the parents will need to start a court action.     back to top

How does a court decide who gets custody?

Like most court actions, both parties present evidence – testimony or documents – to the court.

In deciding who gets custody, the main focus of the court is the best interests of the child. This is not necessarily the same thing as what a parent wants. The child’s best interests are based on the child’s needs and well-being.

Although the CNMI statutes do not provide details on how a court figures out what is in the child’s best interest, several factors may include the following:

● The stability and safety of the home.

● The love and affection between the child and each parent.

● The ability and desire of each parent to provide for the food, clothing, shelter, medical and other needs of the children. The financial ability to provide for the child is not significant in figuring out custody, because the court can award child support.

● The willingness of each parent to encourage a close and continuing relationship with the other parent (unless that parent is abusive or provides a very unhealthy environment).
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What happens to the parent who doesn’t get custody?

The court will almost always allow the other parent to have the right to child visitation. This is based on the understanding that children will normally do better when there is a meaningful relationship with both parents. The parents or the court will determine what the visitation schedule should be.     back to top

What if I’m having problems with visitation because of the other parent or the other parent’s family?

If a parent is concerned about the child’s safety during visitation with the other parent (for example, if there is a history of domestic violence, alcohol or drug abuse, etc.), then the concerned parent should explain to the court that visitation should be supervised, or that there should be some other form of restriction on visitation. If family members are speaking badly about a parent or making it difficult to transfer the children to the other parent, this should also be explained to the court.     back to top

Is there a child visitation center in the CNMI?

In Saipan, a child visitation center is planned to open this year (2008). The center will serve as a safe, neutral location where the exchange of children or actual visits can take place. A court may order visitation to be scheduled at the center, which will be managed by Connecting Families, a non-profit organization. The purpose of the center is to promote a healthy atmosphere between parents and their children during stressful times involving divorce, separation, domestic violence or substance abuse.     back to top

What if I believe the court’s decision on custody should be changed?

To change the terms of custody, there needs to have been a substantial change of circumstances since the original divorce decree or custody order. There can be many types of changes. However, to modify custody, the change must be substantial. Also, the custody modification still needs to be in the best interests of the child. You will need to file a motion for modification with the court. In your motion, you will need to explain the substantial change in circumstances. You will also need to explain how the custody modification will be in the best interests of the child.     back to top

What if the parents agree about custody?

If the parents agree on custody and visitation, they can give the court a copy of the written agreement and ask that the agreement be turned into a court order. This can be done by including the agreement in the divorce decree or custody order. However, the court may reject the agreement if it believes that it is not in the child’s best interests.     back to top

Tuesday, February 5, 2008

Food Stamps in the CNMI (part 2 of 2)

The previous post provided a brief history and current status of food stamps in the CNMI.

This post will cover your basic food stamp rights.

Basic Food Stamp Rights

If you are eligible for food stamps, you are entitled to receive them. This means you have several rights that you may exercise when dealing with the Nutrition Assistance Program (NAP), the CNMI agency that implements the food stamps program. Some of these rights are explained below (click one of the questions):

1. What if the NAP tells me that I cannot apply for food stamps?

2. Do I have to be a U.S. citizen to get food stamps?

3. What are the financial eligibility rules?

4. The Grievance Procedure. What if I’m denied food stamps, or my food stamps are cut or stopped?

5. What if I forget to tell the NAP about changes to my household, income or property?

6. What if an NAP caseworker treats me unfairly?

1. What if the NAP tells me that I cannot apply for food stamps?

You have the right to submit an application for food stamps. NAP cannot stop you from applying. See #6 below (What if an NAP caseworker treats me unfairly?).     back to top

2. Do I have to be a U.S. citizen to get food stamps?

Yes, but certain aliens may also qualify. Aliens who can qualify generally fall under U.S. immigration categories, such as those admitted for permanent residence (i.e., green card holders), refugees, and those granted asylum. If you cannot get food stamps, your family household members who are U.S. citizens or qualifying aliens may still be eligible to get them.     back to top

3. What are the financial eligibility rules?

Food stamps are a government benefit based on need. There are limits to an eligible household’s income and assets.

a. Income.

i. Can I get food stamps if I'm working?

Yes, you may be eligible to receive food stamp benefits if you earn below the income eligibility limit. Income limits vary depending on the number of persons in your household and their ages. Check with the NAP for the current limits.

ii. Can I get food stamps if I’m not working?

Yes, but you will most likely be required to participate in a work or training program. In the CNMI, this means registering with the Division of Employment Services (Dept. of Labor and Immigration). There are some instances where you do not have to comply with the work registration requirement, such as if you are younger than 18, 55 or older, are a full-time student, have a disability, or are at least six-months pregnant.

b. Assets.

Households may have $2,000 in readily accessible resources, like a bank account. Households may have $3,000 if at least one person is age 55 or older.
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4. THE GRIEVANCE PROCEDURE. What if I’m denied food stamps, or my food stamps are cut or stopped?

You have the right to a written notice if the NAP has decided to deny, terminate or lower the amount of your food stamps. The NAP notice must explain its decision. You have the right to challenge the decision by using the NAP’s grievance procedure.

a. For the grievance procedure, you have the right to request either an informal conference or fair hearing within 60 days of the food stamps denial, termination or decrease. Your request may be either oral or written. When you make your request, the NAP must provide you the grievance rules and procedure.

b. Notice of the conference or hearing is required and should explain what your grievance is about.

c. You may review your NAP file at a reasonable time before the hearing. The file must contain all the information that the NAP used in making its decision to deny, terminate or cut your food stamps.

d. A written order is required to issue within 5 business days of the hearing. The head of the NAP has 5 days after the hearing to review the order and make any changes. If this doesn’t happen, the order will become final. The order must be given to you within 5 days after it becomes final.

e. You have the right to continue to receive your food stamps during the grievance procedure.

f. The entire grievance procedure (from requesting a conference or hearing to receiving the NAP written decision) should take no longer than 60 days.

g. If you believe the final order is unfair, you can appeal it by filing a court action.
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5. What if I forget to tell the NAP about changes to my household, income or property?

You are responsible to report changes with the household's income, property, household members, or location of residence. If you don’t report these changes, the NAP may determine that you had been given too many food stamps in the past. If you owe a debt because of overissuance of food stamps, the NAP may try to collect payments from you, most likely by deducting a certain amount from your future monthly food stamp payments. If the NAP believes you were committing fraud by not reporting these changes, you may be disqualified from receiving food stamps for up to two years and be criminally liable.     back to top

6. What if an NAP caseworker treats me unfairly?

You have the right to ask for a hearing if your caseworker threatens you, does not follow the rules or tells you to do things that do not follow the rules, violates your privacy or does not treat you with dignity and respect. If this happens, you can file a grievance with the NAP to challenge the case worker’s improper or coercive behavior. back to top

Food Stamps in the CNMI (part 1 of 2)

The first of this two-post series provides a brief history and current status of food stamps in the Commonwealth of the Northern Mariana Islands. The second post will provide a Q&A on your basic food stamp rights in the CNMI.

The CNMI Nutrition Assistance Program

In December 1980, the U.S. Dept. of Agriculture (USDA) worked with American Samoa and the CNMI to design food stamp programs tailored to their unique cultural, social and economic circumstances. Here, those efforts resulted in the creation of the Nutrition Assistance Program (NAP), the CNMI's version of the food stamps program. The NAP is administered by the Department of Community and Cultural Affairs and operates under a block grant from the USDA.

The NAP earmarks 30% of food stamps for the purchase of local commodities (food and nonfood items such as fishing equipment, garden supplies and livestock). The policy provides work incentives to develop self-sufficiency and stimulate the local economy.

In the early 1990s, there were no more than 1,000 food stamp beneficiaries on Saipan, Tinian and Rota. That number increased to 6,773 by 2004. In September 2007, the NAP was serving 7,945 household members. For fiscal year 2008, the NAP’s budget has been capped at $9.42 million. The NAP has recently resorted to across-the-board benefit reductions and waiting lists on an as-needed basis to cope with the limited funding.

USDA Food & Nutrition Service Fact Sheet: Nutrition Assistance Block Grants.

“Food stamp funding capped at $9.4M,” Saipan Tribune, Sept. 28, 2007.

“NMI asks for more food stamp funding, “ Marianas Variety, June 10, 2004.