In re Certification of Belgrove [1997] FMSC 19; 8 FSM Intrm. 074 (App. 1997) (28 May 1997)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. P1-1997

IN RE CERTIFICATION OF ANGELA MARIA BELGROVE,
Petitioner.

ORDER GRANTING PETITION FOR A WRIT OF MANDAMUS

Decided: May 28, 1997

BEFORE:

Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court

APPEARANCES:

For the Petitioner: Carole Rafferty, Esq.
Chief of Litigation
Office of the FSM Attorney General
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Respondent: William Van Hook, Esq.
General Counsel, FSM Supreme Court
P.O. Box PS-J
Palikir, Pohnpei FM 96941

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HEADNOTES

Attorney, Trial Counselor and Client - Admission to Practice
A motion to appear pro hac vice requires a Rule II(B) certification as to the morals and character of the applying attorney. In re Certification of Belgrove, 8 FSM Intrm. 74, 77 (App. 1997).

Attorney, Trial Counselor and Client - Admission to Practice
The FSM Supreme Court has the discretion to properly raise the issue of the fitness and character of an applicant for admission to the FSM bar even when the rule's requirements have been met by the applicant's actions because the court may require, in addition to the applicant's certificate, other proof of good character. In re Certification of Belgrove, 8 FSM Intrm. 74, 77 (App. 1997).

Attorney, Trial Counselor and Client - Admission to Practice
When there are pending criminal or professional responsibilities charges against an applicant to the FSM bar the FSM Supreme Court normally has the necessary discretion to investigate and reach a conclusion concerning the applicant's character and fitness. That discretion may be abused by an unexplained, lengthy delay. Failure to exercise the discretion within a reasonable time is an abuse of the discretion. In re Certification of Belgrove, 8 FSM Intrm. 74, 77-78 (App. 1997).

Mandamus and Prohibition
Mandamus will lie to require the performance of a clear non-discretionary duty, or to prevent a clear abuse of power, but it does not lie to control judicial discretion, except when that discretion has been abused. In re Certification of Belgrove, 8 FSM Intrm. 74, 78 (App. 1997).

Mandamus and Prohibition
Although mandamus cases usually involve judges and arise out of pending cases, a case may arise out of an administrative procedure and the public official may be a clerk instead of a judge or justice. Nonetheless the same principles apply, and mandamus may be the appropriate remedy where there is undue delay. In re Certification of Belgrove, 8 FSM Intrm. 74, 78 (App. 1997).

Mandamus and Prohibition
As with other extraordinary writs, mandamus will not issue unless no other adequate remedy is available. In re Certification of Belgrove, 8 FSM Intrm. 74, 78 (App. 1997).

Attorney, Trial Counselor and Client - Admission to Practice; Mandamus and Prohibition
When there is no right of appeal from the Chief Clerk's deferral of an applicant's certification as an attorney entitled to practice law before the FSM Supreme Court, and no other remedy exists, and when the deferral was without giving the applicant a hearing, and the deferral was continued during an unexplained, lengthy delay in the subsequent disciplinary proceeding, constituting an abuse of the discretion allowed by the admission rules, a writ of mandamus will lie to compel the certification of the applicant. In re Certification of Belgrove, 8 FSM Intrm. 74, 78 (App. 1997).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

On March 19, 1997, Angela Maria Belgrove filed her Petition for Writ of Mandamus directing the Chief Clerk of Court to certify her as an attorney entitled to practice law before the FSM Supreme Court. The petition was served the same day on the respondent, the Chief Clerk of Court, and on the Chief Justice. The respondent appears to have been delegated authority to administer the Rules of Admission. He processes the applications, administers the bar examination and certifies that the applicants have met the requirements of Rule II of the FSM Rules for Admission.

Pursuant to Rule 21(c) of the Rules of Appellate Procedure and our order the respondent filed his answer to the petition on April 14, 1997. He is represented by the General Counsel of the FSM Supreme Court. The case presents no disputed facts.

The petitioner applied for and successfully passed the bar examination given on August 1, 1996. On September 25, 1996, the Chief Justice directed the respondent to "defer" petitioner's admission because of three matters that arose in July, 1996 in the course of one case in which the petitioner, an FSM assistant attorney general, represented the government. The respondent has continued to obey that direction. But for the deferral, the respondent would have certified the petitioner as an attorney.

We conclude that the direction to defer the admission without giving the petitioner a hearing is unlawful and the unexplained lengthy delay in the subsequent disciplinary proceeding is an abuse of discretion, and that the writ should issue.

I.

In compliance with Rule II of the FSM Rules for Admission to Practice Before the FSM Supreme Court, the petitioner applied to take the August 1996 bar examination and submitted a Certificate of Good Standing from California and her affidavit to meet the morals and character requirement pursuant to Rule II(B). On July 18, 1996, the respondent notified the petitioner that she was expected to take the examination on August 1, 1996.

On September 12, 1996, the respondent notified the petitioner that she had passed the examination, and requested that her statement of good moral character and fitness for admission be updated. The petitioner fulfilled this requirement by submitting her affidavit to the respondent on September 16, 1996.

On September 25, 1996, the Chief Justice instructed the respondent by letter to defer the petitioner's admission. The pertinent paragraph is quoted below because it caused the deferral and because it is the complaint or charge that later initiated disciplinary proceedings against the petitioner.

There is pending In the Matter of Ting Hong Oceanic Enterprises Co. Ltd. a motion by Ting Hong Counsel asking the Court to order the FSM Attorney General and Assistant Attorney General Angela Belgrove to show cause why they should not be found in contempt for disobedience of this Court Order of July 5, 1996. There is also the question of whether Ms. Belgrove made misrepresentation to the Court during the July 26, 1996 hearing regarding whether the documents received from Ting Hong had been copied at the time. I am also concerned about the timing of the filing of the motion to stay on July 10, 1996. Because of the pendency of these matters, I think it would be appropriate that the admission of Ms. Belgrove to practice law in the FSM Supreme Court be deferred. Ms. Belgrove may continue to appear in the cases in which she has already been granted permission to appear under Rule VI A [sic] of the FSM Rules of Admission.

The petitioner received a copy of this letter on September 25. On September 27, she wrote the Chief Justice reviewing her compliance with the rules and requesting that he reconsider the deferral. Alternatively, she requested information of what procedures the court intended to follow and whether she would have an opportunity to be heard. On September 30, the Chief Justice wrote in reply that the matter would be handled under the Disciplinary Rules and Procedures [which became effective on October 1, 1996].

On December 4, the Chief Justice instructed the respondent to docket a disciplinary proceeding against the petitioner based on documents he enclosed - the letters of September 25, 27 and 30 described above, and Ting Hong's Motion to Show Cause. By letter of January 6, 1997, the Chief Justice advised the respondent that he had assigned the matter to himself for preliminary review pursuant to Rule 4(b) of the Disciplinary Rules and Procedures. The Chief Justice has neither dismissed the complaint nor assigned a Disciplinary Counsel.

On January 30, 1997, the petitioner received notice of the pending disciplinary matter by the respondent's letter to her that the Chief Justice had assigned the case to himself for preliminary review. On February 20, 1997, the petitioner wrote the respondent requesting that, to assist in the review, the disciplinary file be supplemented with certain existing documents and with two additional affidavits.

On February 17, 1997, the petitioner filed a Petition for Admission to Practice Before the FSM Supreme Court in the trial division. It was addressed to the Chief Justice and the respondent. The petition related the petitioner's compliance with and successful fulfillment of each part of the Rules of Admission. The disciplinary proceeding was not mentioned. There has been no response to the petition.

The Chief Justice has permitted the petitioner to continue to appear pro hac vice in matters that she had been given approval to appear in prior to her taking the bar examination and in matters that have arisen since she was notified of the deferral. Each motion to appear pro hac vice requires a certification pursuant to Rule II(B) as to the morals and character of the attorney applying to appear. Subsequent to the deferral, the Chief Justice has granted motions containing these certifications.

II.

By September 16, 1996, the petitioner had fulfilled every requirement of the Rules of Admission. This gave her the right to be certified as an attorney entitled to practice.

The petitioner contends that the respondent had a nondiscretionary duty to certify the applicant at that time. She relies on Rule II in its entirety, which at its end includes this sentence: "Upon Court certification of successful completion of the examination, the applicant shall be certified as an attorney entitled to practice law before the Federated States of Micronesia Supreme Court." FSM Adm. R. II(D).

We do not agree that the respondent had no discretion in the matter. Rule II(B) (Morals and Character Requirements) includes, "The court may require, in addition to the applicant's certificate other proof of good character." We hold that this permits the court to properly raise the applicant's fitness even when the requirements of the rule have been met by the applicant's actions.

Properly, evidence that she did not meet the morals and character requirement had to be produced in order to deny or to defer her admission. In re Evans[1975] USCA5 1993; , 524 F.2d 1004, 1007 (5th Cir. 1975). Due process required that she be given prompt notice of the problem and given an opportunity to be heard. She was informed of the problem, but her request to be heard met the response that a forthcoming disciplinary proceeding would provide the process that was due. There has never been a hearing.

Instead of affording a prompt hearing, the matter was indefinitely postponed. That violated the petitioner's due process rights. There is no finding before the respondent that the petitioner does not meet the morals and character requirements.

With the lodging of the complaint that commenced the disciplinary proceeding, a new element existed because the Rules of Admission contain this passage, "If any such charges, [criminal or of violations of professional responsibilities] . . . are pe or heee been made made against the applicant these shall be certified and described in detail in the application and will beect tther investigation by the court." FSM Adm. R. II(B) (emphasis added). This whis would ould normally invest the court with the necessary discretion to investigate and reach a conclusion concerning character and fitness. However, that discretion has been abused in this case by the unexplained, lengthy delay in starting and prosecuting the disciplinary proceeding. The failure to exercise the discretion is an abuse of the discretion. That delay has defeated the ends of substantial justice and is manifestly unreasonable. Thus, even though we find that there is discretion in the application of the rules of admission, that discretion has been abused by the failure to exercise the discretion within a reasonable time.

Our cases have held that mandamus will lie to require the performance of a clear non-discretionary duty. See, e.g., In re Raitoun[1984] FMSC 10; , 1 FSM Intrm. 561, 562 (App. 1984). We have also held that it may lie to prevent a clear abuse of power. Senda v. Trial Division, [1994] FMSC 40; 6 FSM Intrm. 336, 338 (App. 1994). This accords with holdings in the United States. In re Virginia (Virginia v. Rives), [1879] USSC 188; 100 U.S. 313, 323[1879] USSC 188; , 25 L. Ed. 667, 671 (1880) ("It [mandamus] does not lie to control judicial discretion, except when that discretion has been abused . . 0;.")AM. JUR. 2UR. 2D MaMandamus § 311 (1970).

The cases in the FSM Supreme Court involving mandamus involved judges and arose out of pending cases. The present case arises out of an administrative procedure and the public official is the Chief Clerk instead of a judge or justice. Nonetheless the same principles apply. See, e.g., In re Failure of Justice to Resign, [1995] FMCSC 3; 7 FSM Intrm. 105 (Chk. S. Ct. App. 1995). United States authorities are in accord. Hannon v. Bartlett, 402 N.Y.S.2d 710, 712 (N.Y. Sup. Ct. 1977) (unwarranted postponement of civil service examinations: "In view of the undue delay, mandamus is clearly the appropriate remedy."); 52 AM. JUR. 2D Mandamus § 164 (1970).

As with other extraordinary writs, mandamus will not issue unless no other adequate remedy is available. Election Commissioner v. Petewon, [1994] FMCSC 2; 6 FSM Intrm. 491, 497, 1 CSR 5, 9 (Chk. S. Ct. App. 1994). In this case, petitioner has no right of appeal from the Chief Clerk's deferral, nor does another remedy exist. Although not a prerequisite for the writ, we note that the petitioner requested admission from the respondent and from the Chief Justice. She also asked the Chief Justice for a hearing.

III.

As of September 16, 1996, the petitioner had met all the requirements of Rule II(B) and was entitled to be admitted to practice. The deferral of that admission without giving the petitioner a hearing is unlawful. The continued deferral during the unexplained, lengthy delay in the subsequent disciplinary proceeding constituted an abuse of the discretion allowed by the rule. The petition is accordingly granted. The writ will issue.

Our direction that the respondent certify the petitioner as an attorney entitled to practice before the FSM Supreme Court does not affect the pending disciplinary proceeding. The parties invited us to take judicial notice of that proceeding, and we have. We have gone no further.

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