Berman v Santos [1996] FMSC 32; 7 FSM Intrm. 624 (App. 1996) (7 November 1996)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION
Cite case as Berman v Santos, [1996] FMSC 32; 7 FSM Intrm. 624 (App. 1996)

MARY BERMAN,
Appellant,

vs.

POHNPEI SUPREME COURT CHIEF JUSTICE EDWEL
SANTOS, on his own and in his official capacity, and
POHNPEI STATE GOVERNMENT,
Appellees.

_________________________________________________

APPEAL CASE NO. P6-1996

BEFORE:

Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Ramon G. Villagomez, Temporary Justice, FSM Supreme Court*

*Associate Justice, Supreme Court of the Commonwealth of the Northern Marianas Islands

OPINION

Argued: September 18, 1996
Decided: November 7, 1996

APPEARANCES:

For the Appellant:
Mary Berman, Esq., pro se
P.O. Box 163
Kolonia, Pohnpei FM 96941

For the Appellees:
Todd Richards, Esq.
Assistant Attorney General
Pohnpei Department of Justice
P.O. Box 1555
Kolonia, Pohnpei FM 96941

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HEADNOTES

Attorney, Trial Counselor and Client - Admission to Practice; Federalism - National/State Power
The power to make rules governing the admission of attorneys to practice in state courts is a state power, not a power of the FSM Supreme Court Chief Justice. Berman v. Santos, [1996] FMSC 32; 7 FSM Intrm. 624, 626 (App. 1996).

Federalism - National/State Power
Among the powers reserved to the states is the control of administration and policy-making of all branches of state government. Berman v. Santos, [1996] FMSC 32; 7 FSM Intrm. 624, 626 (App. 1996).

Attorney, Trial Counselor and Client - Admission to Practice
Once an attorney has started private practice she must submit a $25 fee to the Pohnpei Supreme Court in order to be admitted there even if she was exempt from that requirement before as a government attorney. Berman v. Santos, [1996] FMSC 32; 7 FSM Intrm. 624, 627 (App. 1996).

Appeal and Certiorari - Briefs and Record
Any appellant would be hard pressed to prove a finding of fact at trial was clearly erroneous without a transcript of the trial proceedings. Berman v. Santos, [1996] FMSC 32; 7 FSM Intrm. 624, 627 (App. 1996).

Evidence - Burden of Proof
The burden of producing evidence in a civil trial generally lies with the plaintiff, who must establish a prima facie case to avoid a nonsuit or other adverse ruling. Berman v. Santos, [1996] FMSC 32; 7 FSM Intrm. 624, 627 (App. 1996).

* * * *

COURT'S OPINION

MARTIN G. YINUG, Associate Justice:

In Carlos v. FSM, 4 FSM Intrm. 17, 27, reh'g denied 4 FSM Intrm. 32 (App. 1989), we confirmed the power of the Chief Justice of the FSM Supreme Court to administer by rule the admission of attorneys to practice before the national courts. By this decision, we confirm the related principle that the Pohnpei Supreme Court has the authority to make rules governing the admission of attorneys to practice before it. Given the plain meaning of the Constitution, the delegation of state and national powers therein, and the federal structure of this nation's government, no other conclusion is possible.

Issues

Although the appellant raised four issues on appeal, we may dispose of this case by answering two questions:

1. Does the Pohnpei Supreme Court have the authority to promulgate and enforce rules governing admission of attorneys to practice before it? The Pohnpei Supreme Court has the authority.

2. Did the Trial Division commit clear error in its finding of fact that Mary Berman did not comply with the Pohnpei Supreme Court Rules for Admission to Practice by submitting her $25 admission fee? We find no error.

Background

Mary Berman seeks review of a ruling by the FSM Supreme Court Trial Division dismissing her claims at trial at the close of her case-in-chief. The appellant is an attorney, admitted to practice before the FSM Supreme Court, who has embarked on a long and so far unsuccessful attempt to gain admission to practice before the Pohnpei Supreme Court.

Berman worked as an attorney for the Department of Land of the Pohnpei State Government from September 1989 to September 1990. On November 20, 1989, Berman sent a letter to then Chief Justice Edwel Santos of the Pohnpei Supreme Court, applying for admission to practice before the state court. With this letter, Berman sent what she designated as "the applicable fee." The Pohnpei Supreme Court returned Berman's check for $25 at her request by letter dated February 19, 1990, while she was still employed by the State Government. (A fee is not required of attorneys who are state employees.)

In a letter dated July 31, 1991, Chief Justice Santos informed Berman that her application for admission to practice before the state court was not complete. Citing sections of the Pohnpei Supreme Court Rules of Admission, and enclosing a copy of the Rules, Chief Justice Santos informed Berman that she still needed to submit certain information and her $25 admission fee.

Berman filed a complaint in the FSM Supreme Court Trial Division against Chief Justice Santos in both his individual and official capacity, seeking damages and an injunction. Berman alleged that from the time the Pohnpei Supreme Court began to administer its own bar examination, that Chief Justice Santos had denied her the opportunity to take the bar examination. Berman claimed loss of income and employment opportunity, humiliation and injury to reputation, and civil rights violations. She also sought to enjoin Chief Justice Santos from interfering with her practice as an attorney before the Pohnpei Supreme Court.

In ruling on the parties' summary judgment motions and other pretrial motions, the Trial Division found that the Pohnpei Supreme Court had the authority to promulgate and administer rules regarding the admission of attorneys to practice. But the Trial Division denied summary judgment, finding a genuine issue of material fact as to whether Berman had paid the required $25 fee. Berman v. Santos, [1995] FMSC 40; 7 FSM Intrm. 231, 236-39 (Pon. 1995).

The Trial Division found at trial that Berman did not have a complete application for admission. Berman tendered the fee in November 1989. Upon Berman's request three months later, the Pohnpei Supreme Court returned the fee to her. The Trial Division also found that Berman did not prove by a preponderance of evidence that she later submitted the admission fee. Since Berman had shown no right to relief, the Trial Division granted the motion for directed verdict and dismissed the case with prejudice. This appeal followed.

State Courts May Regulate Admission of Attorneys

The FSM Constitution does not state explicitly which government body may make and enforce rules governing the admission of attorneys to practice before the courts of the various states. However, Article VIII, section 2 of the FSM Constitution provides: "A power not expressly delegated to the national government or prohibited to the states is a state power." The FSM Constitution does not prohibit the state courts from making rules regarding the admission of attorneys to practice before them. Although Article XI, section 9(e) grants the Chief Justice of the FSM Supreme Court the power to make rules governing the admission of attorneys, that rule-making power is limited by section and article to the national courts. Under a plain reading of the FSM Constitution, the power to make rules governing the admission of attorneys to practice in the state courts is a state power.

Constitutional history supports this conclusion. Committee proposal 21 was the principal convention proposal upon which the constitutional provisions concerning the division of powers between the state and national governments was based. Edwards v. Pohnpei, [1988] FMSC 6; 3 FSM Intrm. 350, 357 (Pon. 1988). First among the powers reserved to the states is the control of administration and policy-making of all branches of state government. SCREP No. 33, II J. of Micro. Con. Con. 813, 814. Determining those persons who may practice before the state courts is such an administrative and policy-making task. It is necessarily a function of state government.

Finally, we note the universal practice regarding the administration of admission of attorneys to practice in the United States, whose federal system of government we have in large part adopted. "The States enjoy broad power to regulate 'the practice of professions within their boundaries,' and '[t]he interest of the States in regulating lawyers is especially great since lawyers are essential to the primary government function of administering justice, and have historically been "officers of the courts."'" In re Primus[1978] USSC 90; , 436 U.S. 412, 422[1978] USSC 90; , 98 S. Ct. 1893, 1899, 56 L. Ed. 2d 417, 428 (1978). In addition, "[t]he practice of law is so intimately connected with the exercise of judicial power in the administration of justice that the right to define and regulate the practice naturally and logically belongs to the judicial department of the state government." 7 Am. Jur. 2d Attorneys at Law § 2 (1980). We see no reason to depart from these principles. Given this background, we have considered all of appellant's arguments that the Pohnpei Supreme Court may not regulate the admission of attorneys to practice befo and find them wholly withowithout merit.

Pohnpei Supreme Court Rules of Admission

Having determined that the Pohnpei Supreme Court may regulate the admission of attorneys to practice before it, we turn now to the Pohnpei Supreme Court Rules of Admission. Section 9 of the Rules of Admission governs the procedure for application. It requires that an applicant submit all the information required under section 5 (grandfathered admission) or section 6, as appropriate. Berman applied under section 6. Section 6(f) requires payment of an admission fee ($25 for attorneys) with the application. Section 6 also exempts attorneys working for the Pohnpei State and FSM governments and the Pohnpei branch of Micronesian Legal Services Corporation from the requirement of subsections 6(f) and (g). Thus, so long as Berman was employed by Pohnpei State, she was not required to pay the $25 admission fee. Once she started her own private practice, however, Berman was required to submit the $25 fee. We find no error in the Trial Division's conclusions on this point.

The Trial Division found that Berman did not prove she had paid the $25 admission fee. We review findings of fact on a clearly erroneous standard. Kinere v. Kosrae, [1993] FMSC 43; 6 FSM Intrm. 307, 309 (App. 1993). We can find nothing in the record submitted that suggests such an error. (We note that any appellant would be hard-pressed to prove an error of fact at trial without a transcript of trial proceedings. See FSM App. R. 10(b)(2).)

The appellant argues that the Trial Division committed error in requiring that she submit proof of her payment, rather than requiring the State Court to prove non-payment. It is, however, axiomatic that a plaintiff must at the very least make out a prima facie case of entitlement in order to proceed with a claim for relief. The burden of producing evidence in a civil trial generally lies with the plaintiff, who must establish a prima facie case to avoid a nonsuit or other adverse ruling. Meitou v. Uwera, [1991] FMCSC 2; 5 FSM Intrm. 139, 142 (Chk. S. Ct. Tr. 1991). Here, the Trial Division concluded that Berman did not make out a prima facie case that she had complied with the rules of admission. There is no error in the allocation of the burden of proof.

Finally, the appellant argues that even if she had submitted the $25 admission fee, that Chief Justice Santos bore grudges and had illegitimate reasons for blocking her admission. Our examination of the trial record indicates that this issue was not raised in the Trial Division or preserved for appeal. Loney v. FSM, [1987] FMSC 8; 3 FSM Intrm. 151, 154 (App. 1987). Even if it were raised at trial it is not necessary for us to reach it here. Berman would have to put on adequate evidence of entitlement - that is, compliance with the rules of admission - before she could reasonably begin to show the futility of her actions.

It is unfortunate that so much time and effort has been expended over something as simple as a $25 fee. Absent sufficient proof of payment, most of the argument before this court, and before the Trial Division, can rightly be characterized as "sound and fury, Signifying nothing." William Shakespeare, Macbeth act V, sc. 5. We affirm. Appeal dismissed.