Wiseman denies motion to sanction Brown

The Superior Court has refused to impose sanctions against Attorney General Pamela Brown in connection with her lawsuit to block the Marianas Public Lands Authority from disbursing land compensation to a dialysis patient. The court had earlier dismissed Brown’s lawsuit against the patient.

In an order issued Wednesday, Associate Judge David A. Wiseman said he was not impressed by the AG’s arguments in support of its opposition to Rosario DLG. Kumagai’s motion to dismiss and finds its motive for some of its actions highly questionable.

However, Wiseman said, “the court is unable to find objectively, that the Attorney General’s Office’s conduct, however, perfunctory, rises to the level clearly evincing bad faith.”

“For this reason, it would be imprudent for this Court to exercise its inherent power outside of statute or procedural rules to levy sanctions in the form of Kumagai’s attorneys’ fees,” said the judge in denying Kumagai’s motion for reconsideration.

Kumagai has been a dialysis patient at the Commonwealth Health Center since 1998. She is also presently on the list for kidney transplant with the California Pacific Medical Center.

Brown filed the lawsuit to stop MPLA from disbursing a total of $1.3 million in land compensation to Kumagai and Victoria S. Nicholas, who owned wetlands. She also included MPLA as co-defendant in the case.

Brown, on behalf of the CNMI government, asked the court to enjoin the defendants and their attorneys or agents from drawing down a publicly financed Land Compensation Funds and disbursing $1,166,403.14 to Nicolas and $159,496.43 to Kumagai.

The plaintiff moved the court to issue a declaration that wetlands that are not used for right-of-way purposes cannot be compensated using Land Compensation Funds.

In September 2005, Wiseman granted Kumagai’s motion to dismiss Brown’s lawsuit against her. The judge ordered the Commonwealth Development Authority to proceed with the disbursement of a requisition authorizing payment of $159,408 in land compensation to Kumagai.

“In the case of Kumagai, the Attorney General signed a Court endorsed settlement agreement certifying that the underlying facts and law had been investigated,” the judge pointed out.

Wiseman, however, denied Nicholas’ motion to dismiss the claims against her. Unlike Kumagai, the judge said, the only party certifying that payment to Nicholas was proper was the MPLA.

Kumagai, through counsel Brien Sers Nicholas, moved the court to reconsider its decision. Essentially, she asked the court to reconsider its abstention from imposing Rule 11 sanctions against Brown, because sanctions, in the form of attorney fees are necessary to “prevent manifest injustice.”

In denying the motion, Wiseman said a court cannot impose Rule 11 sanctions in the form of attorney’s fees on its own initiative.

Wiseman said Rule II allows for sanctions in the form of reasonable attorneys’ fees and other costs incurred as a direct result of a violation only “if imposed on motion and warranted for effective deterrence.”

Thus, he said, according to the rule, he has no authority under Rule 11 to direct even an offending party or counsel to pay the attorney’s fees of the opposing party harmed by such violation.

But Wiseman said the court has the inherent power to order sanctions apart from Rule 11.

The judge said essentially, a court should impose its inherent powers when encountered with conduct, which defies classification in either Rule 11 or criminal contempt authority, and yet still threatens a court’s ability to function properly.

Wiseman said Kumagai has identified several instances of conduct that she considers sanctionable under the court’s inherent power.

Kumagai claimed that the AG brought this suit in bad faith when it promised not to interfere in the distribution of funds compensating Kumagai for her land.

She said the AGO sought to amend its complaint with an action unsupported by law for the purpose of “gamemanship”, and for making frivolous arguments as part of its opposition to Kumagai’s motion to dismiss.

Wiseman said Kumagai has failed to demonstrate to the court within the requirements for reconsideration, that the court should change its earlier abstention and grant sanctions against Brown.