Thursday, October 30, 2008

291. Yay-Phillies

Um, yeah. Yay! Phillies. Good win.

Tuesday, October 28, 2008

290. Sorting through the Legal-Speak

I read the article in today's Tribune where Greg Baka responds to Tina Sablan's Open Government Act request. I can't help but comment! I'm thinking out loud here, so please feel free to point out where I've gone astray.

Greg seems to give 2 basic reasons not to disclose how the CNMI government is funding the lawsuit against the US challenging federalization of our immigration. The Open Government Act doesn't apply because the information is "litigation related" and there are no other "non-litigation related documents."

The Open Government Act--OGA
The people of the CNMI did not yield their sovereignty to the Governor or government which serves them. The people, in delegating authority, did not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people must remain informed so that they may retain control over the government they've created.

We have an "open government act" which provides us access to information in our government. It is to be construed in favor of access; any and all exceptions are to be construed narrowly or strictly.

We have a right to know how the government spends our public funds. We have given the government a narrow exception that provides for non-disclosure of documents necessary to allow it to prosecute and defend legal cases. But this exception is subject to interpretation. Is it so broad that we have given up the right to know how public funds are spent in litigation? Or is it a narrower exception?

The litigation exception to the OGA
Greg seems to argue that the "litigation" exception for disclosure under the OGA is co-extensive with the attorney-client privilege.

The attorney-client privilege is a privilege between client and attorney and is invoked by the client. Attorneys, of course, must keep their client's confidences. So one question to begin with here is "who is the client?" The CNMI is the plaintiff--that means our government is the client. To me that means the people are all part of that client base. (Think government "of the people, by the people, for the people.") The OGA seems to recognize that the people, who hold sovereignty, must be kept in the loop of information.

EDIT: I've now learned that it is clear law that
the identity of a client, the fee agreement and payments of fees are NOT protected by the attorney client privilege or the work product doctrine.

There's a whole string of cases in the federal courts on the issue and all going in the same direction--not protected. In the 9th circuit, a case to look at is In re Michaelson, 511 F. 2d 882, 888 (9th Cir. 1975). So Greg gains nothing by arguing that attorney-client privilege protects this information. IT DOESN'T.

Even if the privilege generally did, however, protect such information, I don't think that there is necessarily a co-extensive protection from the OGA, which requires limited, strictly-construed protection to litigation-related matters in order to keep secrets from the public.

The federal courts rulings that fee arrangements are "peripheral" and not litigation-related, not work product, all seem to undermine Greg's supposed analysis. I wonder what he cites as authority for his position. (The newspapers don't say and don't carry his full letter.)

It seems reasonable to me that the people should be allowed in on the secret of who represents them and how that firm is being paid. An attorney would not be able to keep this information secret from his client. And the government shouldn't be allowed to keep this information secret from the people who are, ultimately, the client.

The protection of litigation materials from discovery by the adverse party should be narrowly construed to mean only those materials necessary in the prosecution or defense, the untimely disclosure of which could affect the outcome. The Marianas Variety article mentions a report Howard Willens gave in a cabinet meeting on the progress of the lawsuit; to me, this clearly falls within the exception. In contrast, though, the OGA requires that employment and salary matters are within the clear ambit of public information. I don't think you can cloak this information under the "litigation" label and then claim that it's protected from disclosure.

And in this particular instance, it doesn't seem as if we're talking about some great secret that, in the hands of the opposition, would give them an unfair advantage in the litigation. We're talking about public funds and how they're used. It isn't likely going to help the Federal Government in the lawsuit to know how much money we're spending on it--unless the Governor is illegally using federal dollars for the project (in which case, the Feds could find out anyway by an audit of their own). There's no suggestion that he is using federal funds, so why not disclose the truth?

And this is where I can't figure things out. Why doesn't our Governor want to tell us where the money is coming from? Has he started thinking that the public funds are his alone and that he's not constrained by the CNMI Constitution and his public duty? Has he no obligation to report to the people?

And that's a very scary thought. Tina Sablan is right to be using the OGA, whose very purpose is to keep the citizenry informed so we can make sure our government is operating the way we want it to.

If the money is coming from elsewhere, not public funds, then we, the people are possibly NOT the client. And the lawsuit should not be filed in the name of the CNMI. At the very least, we need to know about this, if this is happening. The professional rules of conduct prohibit an attorney from being directed or regulated in his/her professional judgment by anyone other than the client. If the law firm representing the CNMI is being paid by someone other than the CNMI, we need to know so we can make sure that someone else isn't the one directing the litigation.

No documents that aren't litigation-related?
Greg says there are no documents that aren't "litigation-related." That no re-programing of funds is involved. That the money is coming from the Governor's discretionary fund. That's what we want to know more about. How does the Governor have half-a-million dollars in discretionary funds? Why can't those funds be used for more pressing needs? That's why we need to be informed.

Greg has construed the "litigation-related" term so broadly that everything about the lawsuit is said to fall within its bounds. He also insists that it is perfectly normal to use outside counsel for CNMI-government lawsuits, despite the CNMI Constitution's clear prescriptive statement that all legal actions by the CNMI must be filed by the CNMI Office of Attorney General (OAG). This is in apparent answer to the underlying question, the reason we want the information-why are we spending money on an outside firm and why isn't the CNMI AG handling this case?

As to the use of "outside counsel," the OAG does work through all of its assistant AGs and the AG himself cannot personally review every piece of litigation before it is filed. That makes sense. But it doesn't necessarily follow that you can constitutionally delegate the responsibility of the AG to represent the CNMI outside of the AG office to private counsel, or to do so without a written delegation.

The reason the AG delegates within the office is because of the workload. I also see the necessity of being able to have different counsel when there are "conflicts of interest" but theoretically, if you (the AG's office) represent only one client-the CNMI government-then you shouldn't have any conflicts. (Conflicts arise when you represent more than one client.) That leaves "lack of specialized experience" or "resource constraints" as justifications for needing outside counsel. The latter-resource constraints-is a bogus suggestion. If you have hundred of thousands of dollars to hire private counsel, you are not constrained by limited resources.

So that leaves delegating to outside counsel because of lack of specialized experience. But the CNMI Constitution doesn't give a loophole to the requirement for the AG to represent the CNMI in all litigation for this reason. And the OAG could just as easily hire an attorney in-house who does have the experience. So again, none of these reasons for why the CNMI executive is saying they can hire private, outside counsel and NOT have the AG's Office sign on the complaint and do the work are persuasive or logical.

And saying that the Governor does not have to create documents to disclose is just ludicrous. There are documents: Do you really expect us to believe that you've hired a law firm and are paying thousands of dollars (hundreds of thousands of dollars) and have no written agreement? Of course there is a writing /contract. Even the model rules of professional conduct strongly urge attorneys to put their fee-agreements in writing. The issue is simply whether these documents are "litigation related" and exempt under the OPA or not.

The CNMI Government, including Governor Benigno R. Fitial, should not be allowed to hide information from the public, deciding what we need to know and what we don't, when it comes to where public money is coming from, how it's being spent, and how matters and actions being done in the public's name are being paid.

So all in all, I'm not impressed by Greg Baka's obfuscation with Legal Speak. Who is paying for this litigation and where are the funds coming from? If we're using public funds, we have a right to know. Tell us.

And Saipan Tribune--use a photo of Greg Baka-not Alan Barak!

Friday, October 24, 2008

289. We Need a Little Humor In Our Lives.

Adults: $12 (FOA members $10)
Students: $5

October 24, 25, & 26
Friday & Saturday: 7 PM
Sunday: 3PM

We all need a little more humor in our lives, especially given the hysterical tone of recent events about the proposed Marine Monument and the Delegate race and the federalization lawsuit and the DEA strip search of inaugural-flight passengers and the ...

So take a break from reality. Yes, there's High School Musical 3 at the movie theatre, but you can watch that later. This weekend at the American Memorial Park auditorium, Friends of the Arts are presenting THE GOOD DOCTOR, a play written by Neil Simon.

Neil Simon is a famous 20th century playwright of such favorites as Barefoot in the Park and The Odd Couple. He's not only won over the public, he's received notable awards, including the Pulitzer Prize (1991).

THE GOOD DOCTOR is Neil Simon's humorous take on a series of short stories by Anton Chekhov. What's not to love?

Tuesday, October 21, 2008

288. WOW! Community Involvement.

I loved the public meeting last night on the Marianas Trench Marine National Monument proposal. I loved that so many people showed up. (I estimated about 300; Angelo reports 360). I loved that both "sides" were adequately represented; I think orange shirts definitely outnumbered nay-sayers (about 2 to 1), and would also note that some supporters of the monument proposal were not in orange.

I loved that the community that came was fairly diverse--lots of Chamorros, Carolinians and mainland Americans, and some Chinese, Filippino, and other community members. I loved that the age demographics included everyone from manhoben to manamko.

Yesterday was a hot, humid day (to answer Mike Tripp), so it was fortunate that the Hibiscus Hall at Fiesta resort was sufficiently air-conditioned. The initial presentation by high-ranking U.S. government officials was marred by the Fiesta Resort's ridiculous sound system that kept piping in karaoke from somewhere else. I was sitting toward the back and had difficulty hearing all that was said, and had difficulty reading the screen where the print size of the text displayed was just a bit small for my poor vision.

What I did hear echoed what I'd already learned: the proposal is a work-in-progress; the U.S. feels that the central and western Pacific have not gotten sufficient attention and need greater focus; the coral structures in the waters of the Marianas and especially at the northernmost islands are amazingly healthy and valuable for study; the bio-diversity of our waters is rich and worth protecting; the geological features are unique in the world; the U.S. is looking for input and suggestions and would welcome the CNMI's involvement.

We then broke up into groups of approximately 10 to 12 people. Although the federal officials said they would circulate around the room, they never got to our group. Other groups attracted lots more attention as those without chairs moved around to join in the discussions. In our group, we went around to each person and kept writing comments on a flip-chart, everyone having a chance to say what they wanted until no one had any more comments to add. Although most of our group were in favor of the monument, we did have dissent. All comments got written on the flip chart, without debate, without hard-feelings.

What I found most interesting in the group I was in is that at times I agreed with the "dissent"--e.g. the President has a lot of power and can do what he wants without CNMI's input and that seems unfair. At another point, the "dissent" seemed to agree with the proponents--e.g. that we need federal assistance/money to protect the northern waters and accomplish our CNMI Constitution's promise.

We also had an interesting group in that some had been to the islands--one a research scientist, another for pleasure and sport--but most had not. The discussions were fairly free-flowing, with people in groups circulating to other groups, some people leaving early, others arriving late.

Our flip-chart sheets were turned in to the federal officials and we closed up our discussion about 7:15 PM. I spent the next 15 minutes chatting with Lyle Laverty, Assistant Secretary for Fish, Wildlife and Parks at the U.S. Department of Interior. He was impressed at how engaged our youth are in environmental issues and said he wished they could engage with kids in New York City and other places who seemed disconnected from environmental awareness.

I also "fraternized with the enemy" meaning I chatted with people wearing buttons that had the red circle/bar "No" sign over the words Monument. Some are people I know and like. I had the feeling we wouldn't convince each other of anything, except that it was nice to see each other again.

I think this meeting was one of the most successful community involvement meetings I've ever been to. Unlike the federalization march and meetings, where an overwhelming "for" group dominated and the "anti" group was pretty-much not invited, and unlike the debate on the Saipan casino initiative, where the whole point was to "debate," this meeting had the express purpose of letting everyone have a voice and have a say and have everyone listen, too.

It was uplifting. It could help us find common ground.

Thanks to the U.S. federal officials who initiated this wonderful forum. Thanks to the CNMI officials who helped make it happen. Thanks to all members of the community who came out and shared their views.

Just a great WOW!

(Now someone loan me some photos to add to this blog post. I was too busy to take any.)

Sunday, October 19, 2008

287. First ever YWP NaNoWriMos on Saipan!

I am very happy that this year there is a group of students who will attempt the insane and manic task of writing a novel in 30 days! This November 15 SSHS students tackle the blank page, the morass of ideas free-floating in their brains, the technology and ergonomic hurdles, and challenge themselves to WRITE 50,000 words. They're happy now.

Just wait until December 1, when the month-long journey is over. I predict they'll be even happier!

It's not too late to join. Students at SSHS can contact teacher Jonathan Cabrera. Anyone interested can contact me.

Wednesday, October 15, 2008

On Poverty

October 15, 2008 is Blog Action day, committed to the discussion of poverty.

Where to begin? Causes? Resultant problem? Solutions?

These are just my random thoughts.

I've been a poverty lawyer for more than 30 years. I help low income (and no income) clients get access to justice by having me, a free lawyer, represent them in court. I only handle civil cases, and I work for a private non-profit agency that is one of hundreds of such organizations funded in part by the U.S. government's Legal Services Corporation.

Lawyers are not the first line of defense for poor people. They need food, shelter, clothing, medical care. The children also need free, public, appropriate education. These are critical needs.

But lawyers can help poor people use what little they have to get their basic needs met; can advocate for them to get benefits from programs that may help; and can try to protect them from being cheated out of the basic fairness of being heard when they are involved (or need to be involved) in some litigation.

As with all goods and services needed by the poor, there aren't enough poverty lawyers to do the job. And so we get put into the horrible position of deciding what is a "priority" and whose case isn't important enough for our limited resources.

Some have no sympathy for the poor. They view poverty as a result of laziness or stupidity or personal fault (criminal conduct, bad health habits). There is no doubt that there are lazy and stupid, the criminal and those who don't take care of themselves, among the poor. But these same attributes can be found among the middle class and the rich. These individual traits do NOT explain poverty.

The successful do not want to believe that the system that has allowed them to progress is somehow unfair. There is a resentment by people of means toward the indigent because, if the system is wrong, then their success isn't as meaningful; and a change in the system could also change their own personal fates.

Poverty exists throughout the world, and has existed throughout the centuries. In hindsight, we can easily see that the feudal system kept the masses in poverty and illiteracy --as a system. But we are blinded to the faults of our current economic system.

Our current capitalist system is definitely an improvement over feudalism. We have a larger middle class and some protections for the poor. But there is a staggering discrepancy between those at the top of the economic ladder and those at the bottom, and there is no real way to eliminate the bottom rungs. If those at the bottom manage to move up, someone in the middle will be moving down.

I don't have answers. I don't know what are solutions. (I'm not embracing socialism here because I'm not all that knowledgeable about the ins and outs of such an option.)

I only know that we must keep trying. We must recognize that poverty is with us, not because individuals are weak or bad, but because our system needs improving.

Monday, October 13, 2008

285. Words on the Brink

Another bit of news--Words disappearing from dictionary.

Read about it here. Some of these words are roborant, imho!

I voted in the poll to save words, but some of the polling booths are already closing. If you want to save any of these words, better hurry over and vote.

I voted for words I thought would not have large followings, because I'd like to save all of the words, if that makes sense.

My choices:
Exuviate--to shed (a skin or similar outer covering)
Muliebrity--the condition of being a woman (because we know it's a condition!)
Olid--foul smelling (the only word on the list I actually knew).

Close seconds-the ones I would have voted for if I hadn't been trying to save them all:
Embrangle--to confuse or entangle
Fubsy--short and stout, squat
Skirr--a whirring or grating sound, as of the wings of birds in flight

And words for this year's NaNoWriMo effort:
Malison--a curse
Villipend--to treat or regard with contempt

I like them all, really!

284. Ah--The Glory!!!

I have now officially been named as the Municipal Liason for the region Micronesia by the gurus at NaNoWriMo! They are so happy to have such an exotic and remote corner of the world on their ML map, they've mentioned this specifically on their website front page breaking news. Ah, the glory! The Honor! The power of having a title!

If you want any information about NaNoWriMo (as in National Novel Writing Month), feel free to contact me.

I'll be taking the program into Saipan Southern High School, thanks to sophomore Engligh teacher, Jonathan Cabrera. I'm not sure how many students will be signing up, but I believe some hapless students in the 5th period English classes may be tagged for the honor. :-)

I'll also be figuring out when we have our KICK-OFF party, so if you have any suggestions of date and place, let your voice be heard.

Wednesday, October 8, 2008

283. Find Oreo--FOUND!!!

Angelo Villagomez is looking for his dog, Oreo, who was last seen around Garapan Tuesday, 10/7 about 6 PM. He's still missing. If you find him, collect him (he's a people-friendly animal) and notify Angelo.

Tuesday, October 7, 2008

282. Those Stinking Rules

According to today's news, (and we had hints of this earlier thanks to Tina Sablan), CUC failed to comply with federal EPA permitting requirements.


They were in a hurry? They thought the US laws didn't apply to them (and don't confuse us with the concept of federalism!)? The money was burning a hole in their pockets?

Now our Governor "fears that the lack of permits or permitting process would postpone or eliminate" uninterrupted service.

Let's see...Joe Taotao doesn't comply with CUC regs in hooking up power to his house because he needs power now, his family will suffer without it, and doing it the right way would postpone his service. What would happen? I'm pretty sure CUC would disconnect him before you could say Governor Benigno R. Fitial.

Remember, this is the same Governor who was so terribly concerned about our schools complying with water quality PERMITTING from DEQ that he shut the schools down for not having permits-despite the real meaning of the water quality tests, the fact that schools had already addressed the issues, and the failure of DEQ, beyond PSS's control, to return and do follow up testing. It was so extraordinarily important that the PERMITTING requirements be complied with that he interrupted school for our children.

But now he's going to argue that the US is somehow wrong for suggesting the CNMI should comply with US permitting requirements for environmental quality? That making us comply would interrupt our power, so we should get a pass until we "eventually work" it out?

"We don't want to be stuck until all the "i's are dotted and all the 't's crossed..."
Charles Reyes, press secretary for the Governor's office

We don't want the rules applied to us the way we applied them to PSS?

Our government spends 1.5 million dollars without first checking to see if the "solution" is legal? And then tries to dance around the fact?


Monday, October 6, 2008

281. E-mail Problems

If you're trying to e-mail and I don't respond, it's because I can't access my personal e-mail. Sorry. (Try me at work, or leave a comment here.)

Saturday, October 4, 2008

280.. Interesting historical note

So I'm researching for my Nanowrimo novel. And found this--on October 7, 1902, Guam was rocked by more than 180 earthquake shocks! Reported in New Zealand news.

[My code isn't working so I'm having trouble linking.]

It's from the Wanganui Herald, Volume XXXVI, Issue 10768, 8 October 1902, Page 3 (try this and put in Guam earthquake for your search term).

Not relevant for the time period I'm hoping to write about, but a bit interesting.

Wednesday, October 1, 2008

279. Tech Problems at NaNoWriMo-Waah!

We knew this might happen.

The tech gurus at the Office of Letters and Light (OLL) closed down the Nanowrimo site about September 21, with a promise to re-open on October 1.

Then they did a little shifty sleight of hand and re-opened early. Cheers!

But they warned us that, come October 1, when the hordes of writers from around the world came thundering back, the site might crash.

And lo--the site is down. The message says the site is currently overloaded.

But it's worse than that. While Nanowrimo was officially locked down, some of us were hanging around the forums at Script Frenzy (that other OLL project). And now it, too, has crashed. Leaving all of us nanowrimo fans homeless, without even a place to go to discuss what's happening, and in limbo as to our calls of distress.

Not to mention all the unanswered forum questions. It's like sitting in the dark (figuratively speaking).