Com. of Northern Mariana Islands v. Kaipat, 95-17239

• Decision Date: 27 August 1996
• Docket Number: No. 95-17239,95-17239
• Citation: 94 F.3d 574
• Parties: 96 Cal. Daily Op. Serv. 6342 COMMONWEALTH OF the NORTHERN MARIANA ISLANDS, Plaintiff-Appellee, v. Vincente Flores KAIPAT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 574

94 F.3d 574

96 Cal. Daily Op. Serv. 6342

COMMONWEALTH OF the NORTHERN MARIANA ISLANDS, Plaintiff-Appellee, v. Vincente Flores KAIPAT, Defendant-Appellant.

No. 95-17239.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 8, 1996.

Decided Aug. 27, 1996.

Gregory Baka, Assistant Public Defender, Saipan, MP, for defendant-appellant.

Nicole C. Forelli, Assistant Attorney General, Saipan, MP, for plaintiff-appellee.

Appeal from the Supreme Court, Northern Mariana Islands, Villagomez, Acting Chief Justice, Atalig, Justice, and Cruz, Special Judge, Presiding. D.C. No. CR-94-00041.

Before: WOOD, ^* CANBY, and RYMER, Circuit Judges.

RYMER, Circuit Judge:

We must decide whether a statute of the Commonwealth of the Northern Mariana Islands (CNMI) that earmarks civil and criminal fines imposed by the courts for a judicial building fund deprived Vincente Flores Kaipat of due process of law in violation of the Fourteenth Amendment to the United States Constitution when he was fined by a judge of the CNMI superior court.

Kaipat was found guilty of various traffic offenses and was sentenced to a term of imprisonment, probation, and a fine. He challenged the fine on the ground that it was used as a source of funding for a new judicial complex pursuant to the Judicial Building Fund Act of 1990, 1 CMC § 3405, thereby creating an improper incentive for the court to levy fines and calling into question the impartiality of the trial judge in violation of Kaipat's right to due process. The CNMI Supreme Court affirmed the trial court's denial of Kaipat's motion to reconsider the fine in a published opinion. Commonwealth v. Kaipat, No. 94-041 (CNMI Sup.Ct. Aug. 3, 1995).

We have not previously considered the due process implications of a statute earmarking funds that are generated by fines imposed by courts for criminal offenses, but the United States Supreme Court has provided bookends in Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (due process violated by fine imposed by mayor-judge whose compensation as judge was derived from, and whose city coffers--for which he was responsible--largely depended on, revenue from fines), and Dugan v. Ohio, 277 U.S. 61, 48 S.Ct. 439, 72 L.Ed. 784 (1928) (due process not violated by fine imposed by mayor-judge whose compensation did not come from fines and who had no executive responsibility for city finances). ¹ While there is little doubt that the CNMI legislature could have come up with a more felicitous way of funding construction of its courthouse, we conclude that this case is closer to Dugan than to Tumey, and that Kaipat has not shown a violation of his federal constitutional rights since the judge had no pecuniary interest in the fine and held no other position that could reasonably warrant a fear of partisan influence on his judgment.

As we have jurisdiction over Kaipat's timely appeal, 48 U.S.C. § 1824(a) and 1 CMC § 3103, we affirm.

I

The Judicial Building Fund Act of 1990, 1 CMC § 3405, ² creates a special fund within the Department of Finance known as the "Judicial Building Fund." It provides that all criminal and civil fines collected by Commonwealth courts and paid to the treasury are to be deposited and credited to the Fund. 1 CMC § 3405(a). The Fund was established "to pay the expenses to renovate and furnish existing Commonwealth judicial facilities in an aggregate amount not to exceed $250,000, and to construct and furnish a suitable building or buildings for the judicial branch of government." 1 CMC § 3405(b). The Governor is charged with expending the Fund and "consult[ing] closely with the Chief Justice as to the needs and requirements of the judicial branch for the construction of the judicial facilities." 1 CMC § 3405(c). Other funds may also be used by the Governor to build the facilities, and any funds left over after expenses and debts for the judicial complex have been paid will revert to the General Fund. 1 CMC § 3405(d), (e).

Kaipat was sentenced on March 11, 1994, following his conviction by the court on two counts of driving under the influence of alcohol; two of reckless driving; two of refusal to submit to a breath test; and one count each of eluding a police officer, disobeying a traffic sign, speeding, unsafe passing, and following a vehicle too closely. ³ For these offenses a defendant may be sentenced to time in custody and may be fined up to $5,350. 9 CMC §§ 5202, 5251, 5304, 5309, 7104-7106, 7111, 7112. Kaipat was sentenced to 60 days imprisonment, with 30 days suspended for one year; he was given two years probation; he was fined in the amount of $1,000; he was required to perform 100 hours of community service; his driver's license was suspended for one year; and he was ordered to undergo counseling at the Commonwealth Health Center.

When Kaipat moved for reconsideration of the monetary portion of his sentence, claiming that it violated his due process rights, the superior court denied the motion after considering the standards that different courts have applied in determining whether a judge's interest in the outcome of a case implicates due process. First, it noted that some courts have held that only a "direct, personal, substantial, pecuniary interest" violates due process. ⁴ The court concluded that under this standard, § 3405 does not create such an interest for judges to levy fines because the Judicial Building Fund was created solely for the purpose of constructing improved judicial facilities, not for paying any funds to any judge, and no judge has any control over expenditures from the Fund. The superior court next observed that other courts have focused on Tumey 's "possible temptation to the average man as a judge" standard. ⁵ The court concluded that § 3405 passes muster under this standard as well because actual construction of the new judicial complex depends on other funds, not on the comparatively much smaller sums deposited in the Judicial Building Fund. Finally, the superior court considered the "appearance of justice" test employed by the Court in In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (judge could not try case for which he served as one-man grand jury); see also Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir.1985) (construing Judicial Code to require recusal of judge after contact about prospective employment with law firms representing parties in pending case on ground of appearance of impropriety), and found that a neutral observer, fully informed as to the relationship between the Judicial Building Fund and the new judicial complex at the time of Kaipat's sentencing, would not entertain significant doubts that he would receive impartial justice in this case.

The CNMI Supreme Court affirmed, on somewhat different reasoning. In its view, the Tumey "direct, personal, substantial, pecuniary" standard has not been extended to other bases of recusal for judges, Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986) (bias and prejudice); and Tumey, Ward and Dugan do not apply because in each, the Court was not concerned with whether an earmarking of fines alone violated a defendant's right to a fair trial but with whether the judge had a direct pecuniary interest in convicting the defendant. Further, the court concluded, Kaipat's allegations that the judges would benefit from a modern courthouse do not implicate either an appearance of impropriety or indirect benefit which mandates recusal under the Fourteenth Amendment as they do not offend fundamental principles of justice under Aetna or our opinions in Paradis v. Arave, 20 F.3d 950 (9th Cir.1994), cert. denied, 513 U.S. 1117, 115 S.Ct. 915, 130 L.Ed.2d 796 (1995), and United States v. Heffington, 952 F.2d 275 (9th Cir.1991).

After Kaipat's sentencing but before the superior court's decision on reconsideration, the legislature authorized a $15 million loan from the CNMI Retirement Fund for construction of the Judicial Complex. ⁶ The Judicial Building Financing Act of 1994, N.Mar.I.Pub.L. 9-3. Ground was broken for the new Saipan Judicial Complex March 5, 1995, and construction is currently underway.

II

A

Tumey, Dugan and Ward arose out of criminal trials in mayors' courts in Ohio where the mayor also served as judge. They offer the closest guidance for resolving the due process question in this case.

In Tumey, the mayor fined Tumey $100 after convicting him for unlawfully possessing liquor. By statute, the mayor was entitled to retain his costs (in addition to his regular salary) as compensation for hearing liquor cases if the defendant was convicted; there was no other way the mayor could be paid for his service as judge. Half of the fines assessed in the "liquor court" went to the village of North College Hill to be used partly to pay marshals and detectives who secured convictions and who were supervised by the mayor, and partly for improvements and repairs to the village (where the mayor owned a house). Also by statute, the mayor was the village's chief executive officer and was charged with looking after the finances of the village as well as running the liquor court. Some $11,000 of the fines collected between May and December 1923 went to the village and $696 directly to the mayor. The Court held that Tumey was denied due process of law for two reasons. First, due process was violated because the judge had "a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case." ⁷ Tumey, 273 U.S. at 523, 47 S.Ct. at 441. The Court found no basis in the common law for condoning a system where the judge is paid for his service only when he convicts the defendant, and could not say that it was fair for a defendant to be brought before the mayor for judicial consideration of his guilt or innocence when the possible loss of monthly fees and costs might weigh against acquittal. Id. at 531-32, 47 S.Ct. at 444. Accordingly, it...