Com. of Northern Mariana Islands v. Lizama, 93-10469

• Citation: 27 F.3d 444
• Decision Date: 09 May 1994
• Docket Number: No. 93-10469,93-10469
• Parties: COMMONWEALTH OF the NORTHERN MARIANA ISLANDS, Plaintiff-Appellee, v. Isidro R. LIZAMA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 444

27 F.3d 444

COMMONWEALTH OF the NORTHERN MARIANA ISLANDS, Plaintiff-Appellee, v. Isidro R. LIZAMA, Defendant-Appellant.

No. 93-10469.

United States Court of Appeals, Ninth Circuit.

Submitted May 9, 1994. ^*

Decided June 22, 1994.

G. Anthony Long, Saipan, MP, for defendant-appellant.

Cheryl M. Gill, Asst. Atty. Gen., Capitol Hill, Saipan, CM, for plaintiff-appellee.

Appeal from the Supreme Court of the Commonwealth of the Northern Mariana Islands.

Before FARRIS, BEEZER and RYMER, Circuit Judges.

Opinion by Judge RYMER.

RYMER, Circuit Judge:

This appeal turns on the construction and interpretation of local law by the Supreme Court of the Commonwealth of the Northern Mariana Islands (CNMI). We must decide whether the CNMI Supreme Court violated Isidro Lizama's due process rights by upholding Regulation 8301, a CNMI Revenue and Taxation Regulation giving customs officials the authority to conduct airport searches. ¹ Our review is limited to determining whether the CNMI Supreme Court's ruling was arbitrary, discriminatory, "untenable or amounts to a subterfuge to avoid federal review of a constitutional violation." Ferreira v. Borja, 1 F.3d 960, 962 (9th Cir.1993) (quotation marks omitted). We have jurisdiction, 48 U.S.C. Sec. 1694c(a), and we affirm.

I

On June 15, 1991, Lizama arrived at the Saipan airport on a direct flight from the Philippines, carrying a statue that appeared to be freshly painted. A customs officer, later joined by another, ran the statue through an airline's baggage x-ray machine, drilled several holes in the statue, and eventually cut through the statue's base and pried it open with a crowbar. The two officers discovered three bags of crystal methamphetamine inside the statue. Lizama was arrested and charged with importing and trafficking in methamphetamine in violation of 6 CMC Sec. 2301(a), and possession of a controlled substance, id. Sec. 2141(a)(1).

Lizama moved in the superior court to suppress the drugs found in the statue. Because another CNMI court had previously determined that warrantless searches by customs officers at the borders of any of the Northern Mariana Islands were reasonable under Article I, Sec. 3 of the Commonwealth Constitution (which tracks the Fourth Amendment of the United States Constitution), Lizama took the tack that Regulation 8301, authorizing customs officers to inspect baggage, parcels, cargo, and passengers arriving in the Commonwealth, was invalid because it was not promulgated in accordance with applicable local law.

The Administrative Procedure Act of the Trust Territory of the Pacific Islands (TT APA), which sets forth the procedural steps necessary to promulgate and adopt a rule or regulation, took effect on July 1, 1974. At that time, the Northern Mariana Islands were part of the Trust Territory. In 1978, the Northern Marianas became a self-governing commonwealth in political union with the United States. See generally Commonwealth v. Atalig, 723 F.2d 682, 684-85 (9th Cir.), cert. denied, 467 U.S. 1244, 104 S.Ct. 3518, 82 L.Ed.2d 826 (1984). The TT APA (along with other provisions of the TT Code) remained "in force and effect" in the CNMI "until and unless altered by" its government. Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America Sec. 505, Pub.L. No. 94-241, 90 Stat. 263 (1976), reprinted in 48 U.S.C. Sec. 1681 note (1988).

The CNMI Department of Finance initially promulgated Regulation 8301 as an "emergency regulation" pursuant to TT APA Sec. 4(2). ² After notice and comment, the Regulation was formally adopted on March 31, 1983, filed with the CNMI Corporate Registrar, and published in the Commonwealth Register; the Regulation was not filed with the Governor or the Trust Territory District Administrators, and it was not published in the Territorial Register.

When Regulation 8301 was adopted, the TT APA was still in effect. The Commonwealth Code (CMC), including its Administrative Procedure Act (CMC APA), became effective on January 1, 1984. Regulation 8301 was not republished in the Commonwealth Register nor was it thereafter filed with the Governor and Corporate Registrar.

The superior court agreed with Lizama that Regulation 8301 was void because it had not been filed with the "district administrator" of each district in the Trust Territory as required by Sec. 5(1) of the TT APA, or with the CNMI Governor as required by Sec. 9105(a) of the CMC APA, ³ and because it was not refiled and republished pursuant to the requirements of Sec. 9102(d) of the CMC APA, which provided that existing regulations had to be refiled and republished within 10 days of January 1, 1984 to remain in effect. ⁴ Without Regulation 8301, the superior court found that the customs officers lacked authority to conduct a warrantless search of the statue, Lizama's baggage, or his person. The court therefore held that the search was illegal and suppressed all evidence obtained as a result of the search. ⁵

The CNMI Supreme Court reversed, holding that Regulation 8301 had been validly promulgated pursuant to the TT APA, and that it remained valid after enactment of the CMC. Because the Regulation was an existing law at the time the CMC was adopted, the court held that the refiling and republishing requirements of Sec. 9102(d) were inapplicable. Commonwealth v. Lizama, No. 91-035, 1992 WL 515985 (N.Mar.I. Dec. 29, 1992).

Lizama filed this timely appeal, raising several arguments under the Due Process Clause. ⁶ He contends that the court's decision was arbitrary, departed from past interpretations of requirements that governed the transition from Trust Territory to Commonwealth, and resulted in the application of a statute that was unconstitutionally vague.

II

A

Lizama first argues that the CNMI Supreme Court's ruling was untenable because the Department of Finance failed to comply with the terms of Sec. 5(1) of the TT APA, which governed in the CNMI in 1983 and which called for the filing of certified copies of regulations with each district administrator. The supreme court held that the failure to comply with Sec. 5(1) did not render invalid a regulation otherwise properly adopted. While Sec. 5(1) did apply at the time the Regulation was promulgated, the CNMI Supreme Court's decision about what consequences flow from noncompliance with Sec. 5(1) is a final decision of "the ultimate expositor of local Northern Marianas law," Ferreira, 1 F.3d at 962 (quotation marks omitted), and we must accept it as authoritative.

Lizama contends that the supreme court's decision is contrary to Camacho v. Civil Service Commission, 666 F.2d 1257 (9th Cir.1982), where we upheld a decision by the Appellate Division of the District Court of the Northern Mariana Islands striking down certain rules of the CNMI Civil Service Commission that were not noticed in compliance with Sec. 4(1) of the TT APA. Lizama argues that the supreme court arbitrarily refused to follow Camacho and to invalidate Regulation 8301 on the ground that it was neither published in the Territorial Register nor posted "in convenient places in the district centers and in local government offices in each district," as Sec. 4(1)(a) of the TT APA requires.

However, Lizama did not argue in the CNMI Supreme Court that the Regulation was invalid for noncompliance with Sec. 4(1) until he moved for reconsideration of that court's ruling. Even if the supreme court might have reached a different result had the point been argued initially, the court's refusal to reconsider its opinion is not a "subterfuge," nor is it "untenable" or arbitrary. Ferreira, 1 F.3d at 962. We routinely refuse to consider on petitions for rehearing arguments not raised in a brief or at oral argument, see, e.g., United States v. Lewis, 798 F.2d 1250 (9th Cir.) (order), amending, 787 F.2d 1318, 1323 (9th Cir.1986), and we find no constitutional infirmity in the CNMI Supreme Court's decision to follow a similar course in these circumstances.

B

Lizama next argues that the supreme court's conclusion that filing the Regulation with the Governor was not required to ensure its validity ignores the plain language of 1 CMC Sec. 9105(a), and in so doing arbitrarily departs from that court's standard practice of construing statutory provisions according to their express language. Lizama relies on Aquino v. Tinian Cockfighting Board, No. 91-012, 1992 WL 396822 (N.Mar.I. Sept. 25, 1992), in which the CNMI Supreme Court held that the requirement of publishing an invitation to bid for a franchising license was mandatory, given the statute's "unambiguous" use of the word "shall" in introducing the publication requirement. ⁷ Aquino, 1992 WL 396822, at ^*3. According to Lizama, the court's adherence to a "plain meaning" rule in a case decided only three months before construing Sec. 9105(a) as not requiring filing with the Governor (notwithstanding the appearance of the word "shall" in the statute) illustrates that the ruling in his case was arbitrary, discriminatory, and untenable.

Although the court in Aquino determined that "shall" was "unambiguous under the context of Section 2415," id., it explicitly considered the purposes behind the publication requirement in reaching this conclusion. See id. (finding that publication "serves important public policies," including insuring fairness and generating a competitive response of bids for a scarce public resource). The supreme court in this case used the same mode of analysis: The court considered the purposes served by the filing requirement (specifically, providing notice of a regulation) and found they would not be served (and that public resources would be wasted) by requiring separate filings in offices located on the same floor of the same building. Lizama, 1992 WL 515985, at ^*5.

The CNMI Supreme Court has said that it "construe[s] a statute according to its plain-meaning [sic], where it is clear and unambiguous." Gioda v....