State of the Judiciary Address

[B]By MIGUEL S. DEMAPAN[/B] [I]Special to the Saipan Tribune[/I] [I]Editor’s Note: The following is the State of the Judiciary Address delivered by CNMI Supreme Court Chief Justice Miguel Demapan to a joint session of the 16th Commonwealth Legislature in the House of Representatives chamber on Capital Hill July 11, 2008. It is being published as a series due to its length.[/I] [B][I]Second part of a series[/I][/B]

With that said and out of the way, allow me a few minutes of your time to discuss with you the state of the Commonwealth Judiciary. It is my pleasure to report to you that the Commonwealth Judicial System is strong and working hard to not only meet the challenges before it, but to seek out challenges to better improve the judicial system.

I will not dwell too much on the annual report. But let me highlight some of the things we are doing each day in the judiciary. Let me discuss the area of probation services to you and how we can work together to find ways to minimize cost, and at the same time, assist those in our community who are in need of moral and psychological support.

The Commonwealth Judiciary is faced daily with all types of criminals and defendants. The spectrum of people we see daily is indeed large and of different shades. We see, at one end, people who happened to be in the wrong place at the wrong time and are not likely to repeat their crimes. These people are not a recurring problem, and once their cases are adjudicated, will most likely not be seen in court again. On the other end of the spectrum are those that commit very serious crimes, which hopefully you will agree that incarceration and harsh sentences are the only and most proper way to deal with them. These are the people who commit crimes that are very serious, and for there to be justice, lengthy jail times are usually the only solution.

The middle groups in this criminal spectrum are those that could be rescued from continuing down this dangerous slippery slope. I strongly believe that these are the people we need to invest our resources in. These are the kind of defendants for whom we could invest a little by placing them in supervised probation and putting emphasis toward correcting the errors they have committed, which eventually will result in reducing recidivism. The practice of supervised probation has been in use for many years. Its success, however, is dependent on the proper ratio of the number of clients to probation officers. A probation officer who services more than 300 clients can do little more than just say “todo mauleg” when doing follow-up meetings. There is a need to place more attention on probationers than the usual greetings we all experience before boarding a plane. We can see the difference between the intensive probation programs and the supervised probationary program. In the intensive program there is success because of the high officer to client ratio. This, my congressmen and women, is why the intensive program is so successful. Unless these people are monitored and controlled by more probation officers, with a high officer to client ratio, our only other option is incarceration; a path which is doomed to fail and quite expensive.

Please do not expect the old ways of “stern lecture or kind words” to treat and straighten out most adults, or for that matter, even juvenile offenders today. If we do not address these real issues here and now, these clients of the courts and DYS, are bound to a cycle of repeated trips to the Guma’ Hustisia and the Vicente T. Seman Correctional Facilities, with our people, us, paying the hefty bills.

This cycle of visits to and from the courthouse and jail must stop. It is costly, and our mission of rehabilitation is not going to work. For that reason, it is incumbent upon us to break this cycle and try something new, and I ask this legislative body to increase funding for community based services for adults; and as I have said earlier, also for juveniles. We can provide these services, which will save us the high cost of incarceration. The services I am proposing would properly identify the risks and needs of the clients and provide the resources necessary to help these people overcome their underlying problems. These resources will include referrals to our community guidance center for mental health treatment, chemical dependency treatment, or other services that the client needs. Prevention is preferable because it is less costly in the long run. Unless we alter our ways in dealing with defendants in the criminal justice system, we will continue to bear the heavy cost of operating and staffing our correctional facilities and judiciary.

Let me now touch on some of the work that we do in the judiciary. Under a federal grant from the State Justice Institute, the Judiciary contracted the National Center for State Courts to develop a strategic plan. The objective of the strategic plan was to create a systematic, interactive process for thinking through and conceiving an organization’s best possible future. The Court expert that we brought in to conduct the study emphasized that it is an essential element of sound management for any organization, and over the past decades, strategic planning has become a fundamental component of court management in court systems throughout the U.S. and around the world. In collaboration with the justices, judges, and staff, the Court developed, as part of the study, its unified vision statement which I would like to share with you:

“To ensure the people of the CNMI an independent Judiciary; fair, impartial, timely, sensitive and accountable judicial services; and the continuous pursuit of judicial excellence.”

The study further highlighted the court’s strengths and weaknesses, and provided us with reasonable time lines to achieve such goals. Of great interest to us judges is the establishment of time standards for the judges and justices to adhere to. I see the strategic plan as being very important and historic to the future of the courts in light of the economic challenges we are facing.

I would like now to once again turn to and touch upon the need to protect, at all costs, the sanctity of judicial independence. Judicial independence is one of the most integral components of the rule of law doctrine. Basically, the concept of judicial independence is to ensure that judges or justices are not under the dominion and control of other branches of government, and therefore, comfortable to impartially and without fear administer the law, be it our constitution or statutes. But this is a fragile and brittle concept. Experience has shown that if we do not do our utmost as citizens to uphold and preserve judicial independence, the gradual assault on the judiciary over time will be serious and the rule of law will be jeopardized. The late Chief Justice William H. Rehnquist wisely used a metaphor from a game he loves by comparing the role of a judge “to that of a referee in a basketball game who is obliged to call a foul against a member of a home team at a critical moment in the game: he will be soundly booed, but he is nonetheless obliged to call it as he saw it, not as the home crowds wants him to call it.”

I beg for your patience as I dwell a little longer on this topic of judicial independence. It is a topic that I am very familiar with after having spent about a quarter of a century in this profession, including time spent as a member of your third branch of government. I am forced to discuss this issue after seeing several proposed pieces of legislation, including initiatives, coming from the legislature aimed at curtailing judicial independence.

Article IV Section 5 of the NMI Constitution states that justices and judges shall have a 8 and 6 year term, respectively. Section 6 again provides that the salary of a judge or justice shall not be decreased during a term of office. These provisions, my dear friends, were not intended to ensure that the judiciary be the first to dip into the pot at each payroll. They were also not intended to ensure security for judges and justices on the bench during a financial crisis. By mandating a lengthy term of office and compensation that cannot be reduced, the founders of our Commonwealth Government sought to advance the importance of judicial independence from the legislature and the executive branch. This is a safeguard on the ability of a judge or justice to decide cases impartially without fear of retaliation.

This is one of the many works of genius in our Constitution. Imagine for one second, how life would be if our judges were insecure in their decision making authority. Imagine what would happen if a judge would bend over to appease a request of our politicians or a letter to the editor urging the judge to rule on specific issues now before the court. Imagine how a judge could potentially rule if a citizen sues the government over a civil rights violation, be it on the issue of freedom, liberty or property rights, and that judge is front and center without having the insulation of long tenure and protected income. And I say to you that it is a work of a genius by our people to insert these provisions into our constitution, because they work and have been tested in the federal and other state courts, and because our people do not want courts that are beholden to the executive or legislature, or to any influential or special interest groups.

I am overly concerned about the recent rash of proposed legislation initiatives aimed at the judiciary. While initiatives are one good ways to enact laws, we must always study carefully any proposed initiative to ensure we are firmly in full agreement in having it placed in our constitution. For once it is in, it is quite difficult to take it out; even in hard economic times.

While I cannot second guess the true intent of the creators of these proposed bills, I can only surmise that some members of the public or private sectors are not too happy about the outcomes of their cases in our court system. Again, I urge for a dialogue before any proposals of this magnitude is presented to the people for action.

Ladies and gentlemen, the decision making process is not just what you see in the courtroom you are in. It is a tedious process that involves shifting through the evidence and researching the entire jurisprudence in existence about your case. It does not just look at what is happening here in the CNMI, but also what is happening to the laws in the 50 United States and territories. In the trial court, I know it is a lonely and lengthy process to ensure that the authorities cited and presented by the lawyers to the court are proper and correct. As I said, it is a lengthy and cumbersome process, which at the end must again be reviewed in its entirety, depending on the standard of review for that particular issue or whether we have to review procedural errors made by the court. The Supreme Court also must cautiously review the issues presented and at times re-check the cited authorities to ensure that the laws of the CNMI and, United States, as well as other states’ common laws, are complied with. This again is a laborious process, but a system designed and intended to minimize the commission of errors, and not intended, in any way, to delay the issuance of an opinion or decision of the court. I, therefore, beg that before the passage of any bill that may impede the judge from doing his or her job correctly, serious and due consideration be given to request for the judiciary’s input and to take into account the ramifications of such actions on the courts’ decision making process.

[B][I]To be continued.[/I][/B] [I]Miguel S. Demapan is the Chief Justice of the CNMI Supreme Court.[/I]