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Sunday, April 20, 2014

FOR LEADING COPS IN SUING DPS FOR DISCRIMINATORY PRACTICES
Justices: Deleon Guerrero deserves award of attorney’s fees

The CNMI Supreme Court affirmed yesterday the trial court’s decision to award attorney’s fees to then-police sergeant and now Department of Public Safety Commissioner James C. Deleon Guerrero for bringing a lawsuit to protest DPS’ discriminatory practices in its promotion and hiring.

Associate Justice John A. Manglona, and justices pro tem Joseph N. Camacho and Herb D. Soll determined that because Deleon Guerrero satisfies the three criteria before a court may award a party attorney’s fees under the private-attorney-general exception, they hold that Superior Court Associate Judge David A. Wiseman did not err by awarding Deleon Guerrero attorney’s fees.

The justices said that under the application of private-attorney-general exception, the criteria are the suit has societal importance; requires private enforcement; and the number of people that stands to benefit from the decision.
“Deleon Guerrero satisfies this high standard,” the justices said.

The private-attorney-general exception that Wiseman adopted as a basis for the award permits a court to order the losing party to pay the attorney’s fees of a private citizen who wins a lawsuit, if the three criteria are met.

Attorney Robert T. Torres, counsel for Deleon Guerrero and 25 other officers who intervened in the case, said yesterday that they took on the government to emphasize a simple point—civil service employees are entitled to a fair, transparent, and objective process in promotions.

“What happened as to the leapfrogging by certain DPS officers was unfair and unacceptable,” Torres said.

Torres said the CNMI Supreme Court affirmed the principle that whenever appropriate, the private attorney general doctrine entitles those who “fight city hall” and win to have their fees paid in the costly pursuit of righting a wrong.

“The irony, as observed by the Supreme Court, is that the costs of injustice could have been easily avoided but for hubris and disregard of the rules of fair play,” Torres said.

According to court records, having exhausted his administrative remedies, then Sgt. Deleon Guerrero, through Torres, filed the lawsuit with the Superior Court in 2009. Twenty-five other police officers joined Deleon Guerrero in the case.

In March 2012, Wiseman issued a judgment favorable to Deleon Guerrero in his lawsuit against DPS. Wiseman awarded him attorney’s fees and costs on grounds of his prosecution of a private-attorney-general action. The judge also ordered DPS to demote a Tinian police captain to sergeant.

DPS appealed, claiming that Wiseman erroneously awarded attorney’s fees for two reasons: the decision allegedly relied on a misunderstanding of fact; and wrongly rested on the private-attorney-general exception, which has not been adopted in the Commonwealth.

Deleon Guerrero cross-appealed. He argued that the Superior Court awarded attorney’s fees on not only the private-attorney-general exception but also the bad-faith exception, which has been adopted in the Commonwealth.

In the high court’s decision yesterday, the justices adopted the private-attorney general exception and affirmed Wiseman’s application of that exception to this case.

The justices ruled that the lawsuit both promoted meritocratic hiring practices and challenged government malfeasance, both things of significant social value.

Had DPS addressed the complaint and rescinded the improper hires, Deleon Guerrero would not have needed to sue, the justices said.

“Instead, DPS’ silence drew Deleon Guerrero’s claim out for years, raising the cost. That cost outweighed the benefits to Deleon Guerrero, who had, at best, an uncertain chance of receiving a promotion if his suit was successful,” the justices said.

The suit, they pointed out, benefits government employees because non-meritocratic hiring practices hurt morale; harm employees wrongly passed over for promotion; and increase the workload of employees who have to compensate for deficiencies in their under-qualified peers.

“The suit also benefits the community because non-meritocratic hiring leads to less-qualified staff and reduced incentives to do good work in pursuit of advancement, each of which contributes to a less effective police force,” the justices said.

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