Full Opinion

IN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS JESUS C. TUDELA, Personally and as Administrator of the Estate Of Angel Malite, Petitiollers, vs. COMMONWEALTH SUPERIOR COURT, Re�pOlldellt, PAMELA BROWN, Commonwealth Attorney General and FERMIN ATALIG, Secretary of Finance, Real Parties ill Illterest. SUPREME COURT ORIGINAL ACTION NO. 05-0002-0A ORDER Cite as: Tudela v. CNMI Superior Court 2006 MP 7 Argued and submitted on November 10,2005 Saipan,Northern Mariana Islands Page 2 of 14 Before: F. PHlLlP CARBULUDO, Designated Chief Justice; FRANCES M. TY D N I GCO­ GA TE WOO D, Designated Associate Justice; RO B ERT J. TORR ES, JR., Designated Associate Justice.i TORRES, J.: Jesus C. Tudela,administrator of the Estate of Angel Malile,filed this Petition for a Writ of Mandamus (Petition)seeking reversal of the Superior Court's order denying Tudela's request to dismiss the underlying complaint filed by Pamela Brown, as Attomey General (AG) against the Estate and other defendants in Superior Court Civil Action No.04�0563. The isolated issue before the court at this time is whether to entertain this Petition. After balancing the five factors for issuance of a writ of mandamus, we deny the Petition particularly because the trial court's denial of the motion to dismiss was not so clearly erroneous that a writ of mandamus,rather than an appeal,would be the pennissible method of review. FACTUAL AND PROCEDURAL BACKGROUND Prior to the local courts of the Commonwealth of the Northern Mariana Islands assuming jurisdiction over condemnation proceedings, the Trial Division of the High Court of the Trust Territory (I T) of the Paci fic Islands issued a judgment in 1978 condemning 1.7 acres of land that is now the site of Marianas High School. In the Matter of the Proceedings by the TTPI for Condemnation of the Property oflhe Estate ofAngel Malile, et ai,Civ. Act 26 1. Pursuant to the Judgment, a certifci ate of title to the property in fee simple was issued to the CN M I and the Government was to deposit $3,692.30as compensation for the taking. The money,which was to remain on deposit until either a court judgment distributed the funds or a signed stipulation by all condemnees for distribution was filed,was never distributed and apparently has been lost. I Chief Justice Miguel S. Demapan, Associate Justice Alexandro C. Castro and Associate Justice John A. Manglona recused themselves from deciding this matter. Page 3 of 14 The matter lay donnant for many years when in June 2004, an attomey for the Malite Estate made a presentation to the Marianas Public Lands Authority ( MPLA) Board of Directors asking for $3,450,000.00 as just compensation for the land that had been condemned in the T T action noted above. The MPLA Board later voted in favor of paying the $3,450,000.00 to the Estate. Edward Deleon Guerrero, one of the defendants and as MPLA Commissioner, requisitioned the $3,450,000.00. Under the Land Compensation Act of 2002, as amended by Public Law 13-161, all slich land compensation payments must be approved by the Commonwealth Development Authority (C DA). On advice of their counsel,the C DA initially declined to process the requisition. After meeting with the Governor, the MPLA and the C DA apparently agreed to pay the requisition. Believing that the Malite Estate had no legal right to claim compensation, the AG filed a "Complaint for Declaratory Relief, injunctive Relief, and Relief in the Nature of Mandamus or Prohibition"with the Superior Court of the Northern Mariana lslands. The AG sought to enjoin and restrain the MPLA and the C DA from disbursing the compensation payment of $3,450,000.00 to Tudela as administrator of the Malite Estate, until the legal issues surrounding the payment were decided by the trial court. The trial court granted a temporary restraining order but Tudela filed an Opposition to Motion for Declaratory Relief and Preliminary and Pemlanent Injunction stating that the AG did not meet the requirements for issuance of a preliminary injunction or temporary restraining order and that the AG had no standing to bring the action. Before the hearing on the preliminary injunction, C DA agreed that it would not disburse the money until the legal questions about the claim were resolved by the courts. C DA was then dismissed from the case. Page 4 of 14 Thereafter,Tudela and other defendants filed motions to dismiss under Com. R.Civ.Pro. 1 2(b) (6) arguing that the AG had no standing to bring the complaint and failed to exhaust administrative remedies. The movants asserted that the lack of standing emanated from Brown's purported illegal appointment as AG. Moreover, they argued that even if Brown was properly appointed, the AG has no "standing to bring lawsuits to decide land condemnation issues,"because the land compensation statutes give the MPLA and the C DA,not the AG,the power to administer, settle, and dispose of eminent domain cases. The movants further alleged that the AG had no standing because the AG cannot take a position contrary to the Governor. Concerning the alleged failure to exhaust administrative remedies, they claimed that since the AG did "not appeal or challenge the [ MPLA],s decision regarding the Maliti [sic] case . . . it waived its right to allow for administrative or judicial review." Memorandum of Points and Authorities in Support of Motion to Dismiss, ER []p.192. More specifically, the movants asserted that Public Law 13-25 requires an administrative review of any agency decision by written notice of a demand for review within 15 days from the agency decision,2and if no appeal is made,then the decision is unreviewable both administratively or judicially. Because the AG failed to exhaust administrative remedies by not appealing the MPLA's decision pursuant to Public Law 13-25, movants argued the AG should not be able to now attack the MPLA's decision to pay the money and the complaint should be dismissed. 1 Public Law 13-25 section II provides: Section II. Administrative Review. 15 days ofthe date ofservice upon any person or party affected by findings, orders, or (a) Within decisions ofthe agency made pursuant to Section 10 ofthis Act may a p peal to the Board of Public Lands bywritten notice.lfno a p peal is made to the board within 15 days ofthe date ofservice ofthe original findings, orders or decisions, the findings, orders or decisions shall be unreviewable administratively or judicially. Page 5 of 14 The trial court did not con fine its "analysis to the allegations and implications contained on the face of the complaint." n I stead, the court considered "matters outside the pleadings," treated the motions to dismiss as a motion for summary judgment under Com.R.Civ.P. 56, and denied the various motions to dismiss in an order entitled "Order Denying Various Motions to Dismiss,with Some Treated as Motions for Summary Judgment." Tudela thereafter filed the Petition seeking to overrule the trial court's order which denied the motions to dismiss. Brown, as the real party in interest, was permitted by court order to respond to the Petition and she filed a response (in the nature of an opposition). A Reply to the Opposition was then filed by Petitioner Tudela, by the MPLA, by MPLA Commissioner Deleon Guerrero,and by the MPLA Board. 3 LEGAL ANAL YSIS A. J UR S I DC I TO I N AN D S I SUANCE O F WRI TS The CN M I Supreme Court's writ jurisdiction is codified as part of the general jurisdiction of the CN M I Supreme Court and found in I C MC § 310 2 (b)which reads: " t( )he Supreme Court has original jurisdiction but not exclusive jurisdiction to issue wrti s of mandamus . . . and all other writs or orders necessary and appropriate to the full exercise of its appellate and supervisory jurisdiction." See also In re Feliciano,5 N.M.1. 2 1 1 ( 1999) (N. Mar. . I 1999). " We have jurisdiction over extraordinary writs pursuant to our general supervisory powers codi fied at I C MC §3 102(b)." Id. 112. 3 It does not a p pear the M P L A, the M P L A Board ,and M P L A Commissioner Deleon Guerrero are even properly parties to this Petition since they were not named as petitioners and did not join in the original petition. Although theyare named parties in the proceedings at the Su perior Court,the Petition is a se parate proceeding directed to the C NM I Su preme Coun's original jurisdiction. Page 6of 14 A writ of prohibition is a drastic remedy that will not be granted, except to con fine an inferior court to the exercise of its prescribed jurisdiction. Tenorio v. Superior Court, 1 N M.1. . I (N. Mar. I. 1989). In determining whether to issue a writ, we are guided by the five factors set out in Tenorio. These five factors are: I . The party seeking the writ has no other adequate means, slci h as direct appeal, to attain the relief desired; 2. The petitioner will be damaged or prejudiced in a way not correctable on appeal; 3.The lower court s' order is clearly erroneous as a matter of law; 4. The lower court's order is an oft-repeated error, or manifests a persistent disregard of applicable mles;and 5. The lower court's order raises new and important problems, or issues of law of fri st impression. Tenorio, I N.M.1. I ; see also Commonwealth v. Superior COllrt, I N.M. I. 287,294-95 (N. Mar. I. 1990). Our decision in Feliciano offers fru ther guidance on how to approach the issuance of a writ of mandamus in this particular case: The United States Supreme Court has given general guidance on when we may issue writs: The traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so. American Fidelity Fire Insurance Co. v. United States District COllrt for the Northern District o[Califomia, 538 F.2d 1371,1374 (9th CiL I 976). Tbe issue before us should not be whether tbe district court was in error, but whether the disqualification issue was so far afield that a writ of mandamus, rather than appeal, is a permissible method of review. In establishing the general rule that only fni al judgments are reviewable, the Unites Stated [sic] Congress contemplated that some individual convenience would be sacri ficed for the greater overall effectiveness and efficiency of the appellate process. American Fidelity, 538 F .2d at 1376; see also Roche v. Evaporated Milk Associatioll, 319 U.S. 21,26, 63S.Ct. 938,941,87 LEd. 1185 (1943). Page 7of 14 Even though we have power to grant the writ, the power is discretionary and wisdom dictates a thorough examination of all the facts to be sure the issuance is appropriate. Id.[emphasis added]. Feliciano, 5 N. M.1. '1 23. We therefore do not simply review the trial court's decision denying the various motions to dismiss for error,but rather we must decide in exercising our jurisdiction whether the trial court's resolution of the issues was so "fara field that a writ of mandamus,rather than appeal,is a pennissible method of review." Id. Moreover, even assuming arguendo that the trial cowt erred e gregiously, if there is an appeal available at law,we will generally decline to exercise our discretion to grant the writ. " I is the general rule that 'where the law allows an appeal from an order or judgment,even when the tribunal making such order or rendering such judgment exceeded its authority in so doing,a writ of review may not be granted' [citation omitted]." IvOlY v. Superior Court, 85 P.2d 894, 896 (Cal. 1939) (to be distinguished from the situation where a court acts utterly without jurisdiction; in the latter case, mandamus may be appropriate,as in State ex reI. Willacy v. Smith, 676N.E.2d 109,113(Ohio 1997))' It is virtually universal that a petition for a writ cannot be a substitute for an appeal at law. See Univ. Nat. Stockholders Protective Comm., II/c. v. Univ. Nat. Lief Ills. Co. 328 F.2d 425 (6th Cir. 1964)(extraordinarywrits will not be used as substitutes for appeal); Hartford Acc. & II/dem. Co., to Use oj5i1va v. Interstate Equip. Corp. 176 F.2d 419 (3rd CiT. 1949) (the extraordinary writs of certiorari, mandamus and prohibition may not be invoked in lieu of appeals); Pickwick� Greyhoulld Lines v. Shattuck, 61 F.2d 485( 10th Cir. 1932) (Original extraordinary writ cannot be used as substitute for appeal). 4 "Where the court patentlyand unambiguouslylack jurisdiction to act ... extraordinary relieflies to prevent the excesses ofjurisdiction." State ex rei. Willacy v. Smith, 676 N.E.2d 1 09, 1 1 3 (Ohio 1997). Page 8of 14 Accordingly,we will grant the writ here only if a balancing of the Tenorio factors weighs in favor of Tudela with particular emphasis on whether there is no avenue for appeal and whether the trial court's decision was "so far a field " that there has been an outrageous injustice which requires intercession by writ. B. THE SUPERlOR COlJ RT'SOR DER The court made several holdings in its order denying the motions to dismiss. The judge first found that the movants had failed to prove Brown was not the legitimate AG. Inmaking this decision, the trial judge evaluated section 2904 of Title I C MC, which provides that the appointment of an attorney general by the Governor of the CN M I must be con fimled by the C N M I Senate within 90 days, and that "if the appointment is not con firmed by the Senate . . . within 90 days from the date the person was temporarily appointed, the appointment shall automatically temlinate." 1C MC § 2904. Tudela and the other defendants claimed that Brown's appoinhnent as AG was rejected by the Senate, or if not re jected, her con firmation was acted upon too late. Brown disputed these claims and further argued that 1 C MC § 2904 was unconstitutional. The trial judge determined that section 2904is constitutional,a "reasonable rule [that] protects the advice and consent function while not unduly encroaching on the executive branch's appointment power." E R vol. I p. 7 (Order). Having found that section 2904 was constitutional, the trial judge then applied it to the facts surrounding Brown's appointment. Ultimately,the court concluded that even if Brown is not the lawful appointed AG,this fact "does not deprive the of fice of the power to bring prosecutions, be they criminal or civil." Id. Therefore,the AG had standing to file the complaint. Next, the court addressed the application of Public Law 13·25 and ruled there was no legislative bar to the filing of the complaint by the AG. Tudela had sought a dismissal of the Page 9of 14 action on the ground that a party to agency action must request a hearing within 15 days after the decision of the MPLA. Under section 1 1 of Public Law 13-25, failure to request a hearing renders the findings "unreviewable, administratively or judicially." The trial court noted that Tudela and the MPLA Board had not followed any of the other provisions of Public Law 13-25 so they should not be able to take advantage of sections of Public Law 13-25 that helped them. Furthermore,section 10(a) of P.L13-25 requires a hearing only when the "land owner " requests one,and in this case,the landowner who has the certifci ate of title -the Commonwealth -had not requested a hearing. Even if the Estate of Malite was deemed to be the "land owner," Tudela likewise had never asked for a hearing. Having failed to follow the procedures set forth in section 10 of P.L. 13�25, the court believed the defendants should not be entitled to rely on the protections of section I Iand denied the motion to dismiss. The trial court also rejected Tudela's argument that the delegation of power to the MPLA under the land compensation statutes prohibits the AG from bringing the action to enjoin the payment. The trial court believed that the action of the AG in bringing suit to prevent an illegal payment is not the same thing as deciding a land compensation issue. The AG sought to prohibit an allegedly illegal payment made through an invalid legal procedure -not to decide a land condemnation issue. The trial court found that attempting to stop a payment which may violate law and procedure was within the AG's powers. Tudela's next claim that the AG could not proceed with the complaint because the Governor had not approved the suit was also dismissed. The trial court reasoned that the CN M I AG is "one of the few executive branch offc i es mentioned by name in our Commonwealth Constitution," the AG has "general, independent power " to initiate civil lawsuits that uphold C N MI law, independent of the Governor's power to run the executive branch. The court also Page 10of 14 found that the AG can proceed with this type of lawsuit without the Governor's blessing and that this sort of public interest lawsuit is within the AG's common law powers. The court also noted that the MPLA has their own counsel,so there was no conflict of interest between the AG and the MPLA. The trial court further detemlined that the dismissal of Defendant Deleon Guerrero was not warranted because section I0 2(c)of P.L 1 2-33, as amended by P.L. 12-71,did not prohibit suing individual members of the MPLA Board. Moreover, the capacity in which Deleon Guerrero had been sued was not entirely clear. The court believed his status as tbe alleged Commissioner of MPLA and whether he held that office legally, made Deleon Guerrero a necessary party to the lawsuit, particularly because the suit, among other things, sought a declaration that Deleon Guerrero was holding office illegally. Finally,the trial court concluded that the Department of Finance was not an indispensable party under Com. R. Civ. P. 19. Although h t e Department of Finance is authorized to spend public funds under NMI Const.Art. Xsec. 8,the court found that they have no decision making role in the dispute with the Estate of Malite, and the Department of Finance's role is purely ministerial. C. BALANCING OF THE TENORIO FACTORS Having summarized the trial court order,we will now review whether Tudela has met his burden of proving,by way of the fv i e Tenoriofactors,that writ intercession is appropriate. Most of the Petition for Writ of Mandamus focuses on the factual issues surrounding the appointment of Brown as AG. As previously indicated, this court will not address the legality of Brown's appointment and hence her standing unless the court finds,under Feliciano,that the lower court's ruling is so outside the bounds of jurisdiction that writ intrusion is appropriate. Page II of l 4 I. Tenorio Factors One and Two: No Other Adequate Means for Relief and Non­ correctable Pre judice Tudela argues that he has no other adequate means to attain the relief sought,slc i h as a direct appeal, though he states, "there is perhaps other means of remedy but that such would require enonnOliS time and effort and greatly increase litigation costs. Defendant is of meager income and could not bear additional legal expenses." The fact that Tudela may have to bear additional litigation expenses or experience delay does not mean that Tudela has no adequate means of relief available or will be prejudiced in a way not corrrectable on appeal. The expenditure of time and money is not the type of harm that will justify writ review. " Before mandamus will lie,something more is required than the likelihood that the alternative remedies may involve inconvenient delay." State ex rei. Kelley v. Mitchell,595 S.W.2d 26 1, 268 (Mo. 1980); see also 111 re BellSolllh COIYJ., 334F.3d 941,953 ( IIth CiL 2003)(stating "the possibility that a ruling may be erroneous and may impose additional litigation expense is not suffc i ient to set aside the finality requirement imposed by Congress. ") Second,to establish that he faces damage in a way not correctable on appeal, Tudela states that the "land compensation account continues to be depleted while Defendant's legal battle in court continues." He further argues that "the Pamela Brown lawsuit is merely a dilatory tactic." As elucidated above,delay does not meet mandamus requirements. Even under Tenorio, "[i]f a rational and substantial legal argument can be made in support of the questioned ruling .. the case is not appropriate for mandamus . . . even though on normal appeal a reviewing court may find reversible error." Id.; see also Sablan v. Superior COllrt,2 N.M. . I 165, 168 ( N. Mar. . I 1991). The first two factors,therefore,do not weigh in favor of granting Petitioner the writ relief requested. Page 120f l 4 2. Tenorio Factor Three:Clearly Erroneous as a Matter of Law Tudela argues that the trial court's decision is clearly erroneous as a matter of law. Tudela's argument primarily rests on his claims that: " Brown has no standing to file the lawsuit. Plaintiff failed to exhaust administrative remedies which deprive the court of jurisdiction. Plaintiff usurped the power vested in the office of the attorney general by fli ing a complaint contrary to the wishes or directions of the Governor." The trial court addressed each of these issues in its order. If it were shown that the trial court were utterly wrong on these threshold issues,we may be able to fn i d that the trial court's action has been so far "a field " of the trial court's jurisdiction that this court should intervene. Tudela has failed to make such a showing. Without the initial showing that the trial judge was far "afei ld," and that there is absolutely no right to appeal, we see no reason for this court to intervene. ''Standing' or 'standing to sue' is,generally, 'a concept utilized to determine if a party is sufficiently affected so as to insure that a justiciable controversy is presented to the court.'" BOIja v. Rallgamar, IN.M.I. 126, 13 1 (N. Mar.I. 1990)(citation omitted). fI Brown were herself not the proper AG,there may indeed be an issue of standing,but it could be cured. Conceivably, the actions of an illegally appointed AG are sub ject to the de facIoofficer doctrine -- a doctrine which ratifei s the acts of public officers as to third parties. The defect could also be repaired by amending the lawsuit to be a taxpayer lawsuit. Ultimately,however,whether the AG is properly appointed is not ascertainable without a fully developed record,and it is clearly unascertainable based on the record in this proceeding. In addition to arguing that Brown's appointment could not possibly be legal,counsel for the MPLA contends that the trial court's discussion of the powers-and-duties of the AG is Page 13 of 14 manifestly wrong. The MPLA argues that the AG is acting ultra viresin bringing a lawsuit in the public interest, and proposes that an AG cannot sue a state agency. This is not, however, well established in law,and the trial court's analysis of this issue did not go beyond the bounds of law. The trial judge's analysis of this argument instead appears to be well grounded in reason and law, especially since there is no attorney-client relationship between the AG and the MPLA (particularly since the MPLA has their own lawyer). Thus, it cannot be presumed, as Tudela would suggest,that the Attorney General is suing its own client. Itis not this court's domain to detemline whether the trial court erred in this ruling, but only to determine whether there are good grounds to exercise writ jurisdiction. We conclude that Tudela therefore, has not demonstrated that the challenged order is clearly erroneous as a matter of law. 3. Tenorio Factor Four:Of-t repeated Error Tudela argues that the lower court's order is an oft-repeatederror or manifests a persistent disregard of the applicable niles because the "court failed to mention the significance [of the statutes governing the settlement of land compensation claims]." Petitioner's Petition p. 8-9. Petitioner further argues, "the court strictly interpreted the intent of the confinnation statute," ( I C MC § 2904). This court fails to see how this argument meets the Tenorio test that there is an oft-repeated error or manifests a disregard of applicable rules. Petitioner also fails to satisfy this factor . 4. Tenorio Factor Five: New Questions of Law Finally, Tudela claims that the lower court's order raises new and important problems, or issues of law of first impression. While Petitioner makes an arguable showing of this factor, as the appointment of Brown as AG hassome weighty implications,we have already concluded that the trial court's order was not utterly unsupported by law. The record before us also is not Page 140f l 4 conducive t o a proper examination of the validity of Brown's appointment. Accordingly,even if this factor weighs in favor of granting mandamus,at least four of the five Tenoriofactors weigh against the issuance of the writ. We therefore decline to exercise our writ jurisdiction. CONCLUSION Tudela asks that this court vacate the trial court's order denying their motion to dismiss. However,he has made no showing that the trial judge exceeded his jurisdiction so dramatically that the Supreme Court should intervene, interrupting the normal pro gress of this case. We rule that the Petitioner has not met his burden of establishing,under the Tenorioand Felicianocases, that the lower court's decision was so farafei ld from justice that writ intervention is appropriate. The Petition for a Writ of Mandamus is DENIED. lsi lsi ROBERT J. TORRES, JR. FRANCES M. TYDINGCO-GATEWOOD Designated Associate Justice Designated Associate justice sl i F. PHfLlP CARBULLIDO Designated Chief justice IN THE SUPREME COURT OF THE COMMONWEAL TH OF THE NORTHERN MARIANA ISLANDS JESUS C. TUDELA, Personally and as Administrator of the Estate Of Angel Malite, Petitioners, vs. COMMONWEALTH SUPERIOR COURT, Respondent, PAMELA BROWN, Commonwealth Attorney General and FERMIN ATALIG, Secretary of Finance, Real Parties ill Interest. SUPREME COURT ORIGINAL ACTION NO. 05-0002-0A JUDGMENT 11 I THIS CAUSEwas duly argued and submitted on November 10,2005. 112 Accordingly,the Petition for a Writ of Mandamus is DENIED. Entered this 3151day of March 2006. sl i CR S IPNI M. KA IPA T Clerk of Court