Saipan Tribune

Thursday, June 20, 2013

Saturday, October 20, 2012

Wiseman: Sgt. Deleon Guerrero deserves award of attorney's fees

Superior Court Associate Judge David A. Wiseman stood pat in his earlier decision to award attorney's fees to Police Sgt. James C. Deleon Guerrero for bringing a lawsuit to protest the Department of Public Safety's discriminatory practices in its promotion and hiring.

In his order Thursday denying DPS' motion to amend his judgment, Wiseman said the private attorney general doctrine of attorney's fees apply in this case, reiterating his earlier ruling that he operated under the evidence before him at the time of his decision.

Wiseman said DPS has not shown any new reason why he should reconsider his earlier judgment.

In March 2012, Wiseman issued a judgment favorable to Sgt. Deleon Guerrero in his lawsuit against DPS.

“Here, DPS turned a blind eye to Deleon Guerrero's grievances, and the Civil Service Commission was unable to hear his grievance due to lack of quorum, forcing him to hire an attorney to remedy the agency's selection principles with reallocation and 'outside hire promotions,'” Wiseman said in that order.

Wiseman determined that there were continuing violations by DPS constituting de facto promotion by reallocation, which were not proper.

Wiseman awarded Deleon Guerrero attorneys' fees and costs on grounds of his prosecution of a private attorney general action.

The judge ordered DPS to demote Eloy K. Fitial of Tinian DPS from captain to sergeant.

DPS, through the Office of the Attorney General, filed a motion to amend findings of facts and to alter or amend the judgment.

OAG pointed out that Fitial was actually demoted in October 2011 and that the court must amend its findings of fact and conclusions of law to clarify its judgment.

Deleon Guerrero, through counsel Robert T. Torres, argued that DPS has not alleged any intervening change in law and has failed to demonstrate manifest injustice.

Torres argued that despite the alleged post-hearing demotion of Fitial, the record still establishes there is evidence to justify the awarding of attorney's fees.

Torres said the court noted that despite DPS' assertions that its practice of wrongful promotions had ended, the evidence indicated that it had not.

On the attorney's fees issue, OAG claimed that the award of attorney's fees based on the private attorney general doctrine of attorney's fees should be revised because the doctrine has been struck down by the U.S. Supreme Court and is disfavored by a majority of states.

Torres argued that the purpose of the private attorney general doctrine of attorney's fees is to encourage suits that effectuate strong public policies by awarding attorney's fees to those who successfully bring such suits and thereby benefit a broad class of citizens.

In denying DPS' motion, Wiseman said DPS has not pointed to any intervening change in the controlling law or the availability of new evidence.

Wiseman said DPS points to evidence in existence prior to entry of judgment.

Further, he said, DPS has failed to demonstrate any clear error or the need to prevent manifest injustice.

On the attorney's fees, Wiseman said even if he had been made aware of demotion of Fitial before entry of his judgment, the fact remains that Deleon Guerrero was forced to hire an attorney and shoulder the expenses of litigating the issue for the benefit of not only himself but all government employees.