Thursday, June 24, 2010
Wednesday, June 23, 2010
Doctrine of condonation in administrative law
The fresh case of Salumbides v. Office of the Ombudsman, GR 180917, April 23, 2010, as summarized in a recent news item released by the press center of the Supreme Court speaks of the limitation in the application of the doctrine of condonation in administrative cases of "appointive" public officers and employees.
SC: Doctrine of Condonation Does Not Extend to Appointive Officials
By Gleo Sp. Guerra
The Court declined to extend the settled doctrine of condonation to cover appointive officials who were administratively charged along with the reelected official/appointing authority with infractions allegedly committed during their preceding term.
In a 15-page decision penned by Justice Conchita Carpio Morales, the Court En Banc affirmed the decision of the Office of the Ombudsman, as affirmed by the Court of Appeals, finding petitioners Atty. Vicente E. Salumbides, Jr. and Glenda Araña, Municipal Legal Officer Administrator and Municipal Budget Officer, respectively, of Tagkawayan, Quezon, guilty of simple neglect of duty. The Court, however, modified their penalty from suspension from office from six to three months only.
First applied in the 1959 case of Pascual v. Hon. Provincial Board of Nueva Ecija, the doctrine of condonation prohibits the disciplining of elective officials for a wrongful act committed during their immediately preceding term of office on the theory that reelection to office operates as a condonation of the previous misconduct to the extent of cutting off the right to remove them therefor.
The Court ruled that the doctrine of condonation cannot to be extended to reappointed coterminous employees like petitioners as in their case, there is neither subversion of the sovereign will nor disenfranchisement of the electorate. “Moreover, the unwarranted expansion of the Pascual doctrine would set a dangerous precedent as it would, as respondents posit, provide civil servants, particularly local government, with blanket immunity from administrative liability that would spawn and breed abuse of the bureaucracy,” added the Court.
(GR No. 180917, Salumbides v. Office of the Ombudsman, April 23, 2010)
see:
http://sc.judiciary.gov.ph/publications/benchmark/2010/05/051005.php
SC: Doctrine of Condonation Does Not Extend to Appointive Officials
By Gleo Sp. Guerra
The Court declined to extend the settled doctrine of condonation to cover appointive officials who were administratively charged along with the reelected official/appointing authority with infractions allegedly committed during their preceding term.
In a 15-page decision penned by Justice Conchita Carpio Morales, the Court En Banc affirmed the decision of the Office of the Ombudsman, as affirmed by the Court of Appeals, finding petitioners Atty. Vicente E. Salumbides, Jr. and Glenda Araña, Municipal Legal Officer Administrator and Municipal Budget Officer, respectively, of Tagkawayan, Quezon, guilty of simple neglect of duty. The Court, however, modified their penalty from suspension from office from six to three months only.
First applied in the 1959 case of Pascual v. Hon. Provincial Board of Nueva Ecija, the doctrine of condonation prohibits the disciplining of elective officials for a wrongful act committed during their immediately preceding term of office on the theory that reelection to office operates as a condonation of the previous misconduct to the extent of cutting off the right to remove them therefor.
The Court ruled that the doctrine of condonation cannot to be extended to reappointed coterminous employees like petitioners as in their case, there is neither subversion of the sovereign will nor disenfranchisement of the electorate. “Moreover, the unwarranted expansion of the Pascual doctrine would set a dangerous precedent as it would, as respondents posit, provide civil servants, particularly local government, with blanket immunity from administrative liability that would spawn and breed abuse of the bureaucracy,” added the Court.
(GR No. 180917, Salumbides v. Office of the Ombudsman, April 23, 2010)
see:
http://sc.judiciary.gov.ph/publications/benchmark/2010/05/051005.php
Sunday, June 20, 2010
New chief justice speaks
Unity in judicial reform
By RENATO C. CORONA, Supreme Court Chief Justice
June 12, 2010, 8:06pm
Officers of the Philippine Constitution Association, fellow scholars of the law, distinguished guests, ladies, and gentlemen, a pleasant evening to you all. Before anything else, my sincerest gratitude to your Chairman of the Board, Minister Conrado F. Estrella, and President, Atty. Manuel M. Lazaro, for inviting me to be your guest of honor and speaker tonight, as our nation celebrates its 112th Independence Day.
One month ago, our country had its first-ever automated elections. Come June 30, we will have an entirely new administration. Perhaps, for the first time in our history, the heads of the three branches of government are or will be newly installed. This is significant because the situation presents great opportunities to heal the painful wounds our country is suffering from and thereby usher in a new golden age of unity and economic strides. As our 22nd Chief Justice Reynato S. Puno so eloquently expressed it during the Justice Sector Coordinating Council Special Session.
True, these institutions are independent and have their own functions, but it ought to be clear and cannot be denied that the justice sector must work in an environment where there is interconnectivity. For reforms in one institution entail consequences for others. Hence, the success of reforms in one institution may be diluted by the lack of reforms in another justice sector agency. In effect, an injustice perpetuated in one justice sector agency threatens the entire administration of justice in our country.
The proposition is that if we want to have successful reforms in our justice system, we must act as one, move forward together, be guided by the singular goal of giving justice to our people all in accord with the command of our Constitution.
As the new Chief Justice of the Supreme Court, allow me to speak on behalf of the judicial branch. Regrettably, the judiciary has often been denigrated as the most benign and least powerful branch of government. The celebrated Montesquieu wrote that “of the three powers above mentioned, the judiciary is next to nothing.” The perception that it is merely reactive and not proactive, remedial and not protective, admittedly finds its roots in traditional orthodoxy. Alexander Hamilton in The Federalist, No. 78, wrote:
The judiciary has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the two; and that all possible care is requisite to enable it to defend itself against their attacks.
This view, however, no longer seems accurate in the light of our fundamental law which has infused vigor, muscle and intensity into the Court’s role in the nation’s political life. Indeed, in our jurisdiction, the days of Montesquieu and Hamilton, and the traditional role of the judiciary, may have long been dead and gone. Sec. 1, Art. VIII of the 1987 Constitution established a powerful judiciary by expanding its judicial power to inquire into political questions. Section 1 has substantially reformulated the political question doctrine which had, for many years, limited the power of judicial review, as clearly defined by Mr. Justice Jose P. Laurel “with deft strokes and in bold lines” in the seminal case of Angara v. Electoral Commission.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
The late Chief Justice Roberto Concepcion, an eminent member of the Constitutional Commission of 1986, authored the expanded jurisdiction and explained its rationale:
This is actually a product of our experience during martial law the role of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the Solicitor General set up the defense of political question and got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus and other matters related to the operation and effect of martial law failed because the government set up the defense of political question.x The Committee on Judiciary feels that this was not a proper solution to the question involved. It did not merely request an encroachment upon the rights of the people, but in effect, encouraged further violations thereof during the martial law regime.
Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government, or any of its officials, has acted without jurisdiction, or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature x x x x (this) means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question.
And pursuant to this expanded power, the Supreme Court nullified the Memorandum of Agreement on Ancestral Domain or MOA-AD, ruling that the Presidential Adviser on the Peace Process committed grave abuse of discretion when he failed to carry out the consultation process as mandated by law. The Court struck down the agreement between the Government of the Republic of the Philippines Peace Panel (GRP) and the Moro Islamic Liberation Front (MILF), holding that the government negotiation panel’s failure to consult the local government units or communities constituted a departure from its mandate under Executive Order No. 3. The Court held that the “furtive process by which the MOA-AD was designed and crafted (ran) contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof.”
In Kabataan Party-List v. Comelec, the Court nullified Comelec Resolution No. 8585, insofar as it encroached on the period provided by the system of continuing voters’ registration, and extended the October 31, 2009 deadline to January 9, 2010 as prescribed by the system of continuing registration. More recent is the case Guingona Jr. v. Comelec, where the Court ordered the Comelec to disclose the complete details of its preparations for the automated elections. The Court held that the Comelec “(could) not shirk from its constitutional duty to disclose fully to the public complete details of all information relating to its preparation for the May 10, 2010 elections without violating the Constitution and relevant laws. No less than the Constitution mandated it to enforce and administer the election laws.”
In Aldaba v. Commission on Elections, the Court nullified Republic Act No. 9591, the law creating a congressional district for Malolos City, Bulacan and held that laws creating legislative districts, as well as justiciable subsidiary questions impacting on the constitutionality of the said Republic Act, such as compliance with the population requirement under Article VI of the 1987 Constitution, are within the ambit of judicial power of review. “To deny the Court the exercise of its judicial review power over RA 9591 is to contend that this Court has no power to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government, a duty mandated under Article VIII of the Constitution.”
Similarly, in Navarro v. Ermita, the Court declared as unconstitutional RA 9355, the law creating the Province of Dinagat Islands, and nullified the proclamation of the election of the officials thereof. The Court noted that the Province of Dinagat Islands, containing an approximate land area of 802.12 square kilometers, fell short of the land area requirement of 2,000 square kilometers. The Province likewise failed to comply with the population requirement of not less than 250,000 inhabitants, the census conducted by the NSO showing that the Dinagat Islands’ population was only 106,951. The Court added that, while it respected the doctrine of separation of powers, it “(could) not renege on its duty to determine whether the other branches of the government had kept themselves within the limits of the Constitution, and determine(d) whether illegality attached to the creation of the province in question.”
Most certainly, the Supreme Court is ordained to be the final interpreter of the meaning and intent of the Constitution. “We are under a Constitution, but the Constitution is what the Court says it is,” then New York Governor, and later Chief Justice of the U.S. Supreme Court, Charles Evans Hughes once said. “It is emphatically the province and duty of the judicial department to say what the law is,” wrote Chief Justice John Marshall in Marbury v. Madison. Thus, we continue to interpret the Constitution, especially the “invisible” Constitution, as referred to by Harvard Professor and renowned legal scholar Laurence H. Tribe.
Thus, in Penera v. Comelec, the Court clarified that, under the law, the word “candidate” is defined as “any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy,” and that “any person who files a certificate of candidacy within the period for filing shall only be considered a candidate at the start of the campaign period for which he filed his certificate of candidacy.” In Quinto v. Comelec, the Court upheld the constitutionality of three provisions in the election laws that deemed appointive officials to be automatically resigned upon filing their certificates of candidacy, holding that they did not violate the equal protection clause. In February of this year, the Court held that the Government Service Insurance System (GSIS) was not exempt from payment of legal fees imposed under the Rules of Court. The Court ruled that the Constitution and jurisprudence did not mean to include legal fees in the exemption from “fees, charges or duties of all kinds” because the payment of legal fees was a vital component of the rules promulgated by the Court, and it (could) not be validly annulled, changed or modified by Congress.
But as Mr. Justice Robert H. Jackson, in Brown v. Allen said of the Court, “We are not final because we are infallible, we are infallible only because we are final.”
Paragraph (5), Section 5, Article VIII, 1987 Constitution also authorizes the Supreme Court to “[p]romulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged.”
Accordingly, with its rule-making power, the Court underscored and fortified our people’s individual, civil and political rights by the promulgation of the Rule on the Writ of Amparo. Indeed, one cannot deny the potency of this Rule when, mere days after its promulgation, several persons detained by the military on suspicion that they were communist rebels, regained their liberty. This was closely followed by the promulgation of the groundbreaking Rule on the Writ of Habeas Data, which obliges state officials to permit families of victims of enforced disappearances access to official documents by invoking the formerly nebulous “right to truth.”
Just a month and a half ago, we completed the circle of human rights by focusing on our people’s rights to a healthy environment, intergenerational equity and sustainability. The newly-launched Rules of Procedure for Environmental Cases, at the crux of which are the Writ of Kalikasan and the Writ of Continuing Mandamus, are a sound testament to this.
We likewise persevered to increase the poor’s access to effective and efficient justice by promulgating the Rule on Mandatory Legal Aid Service for Practicing Lawyers, which requires all practicing lawyers to render a minimum number of hours every year of free legal aid to indigents as a pre-condition to their continued good standing. Corollarily, the Court likewise approved the Rule on the Exemption from the Payment of Legal Fees of the Clients of the National Committee on Legal Aid (NCLA) and the Legal Aid Offices of the Local Chapters of the Integrated Bar of the Philippines.
Furthermore, cognizant of the adage “[j]ustice delayed is justice denied,” the Court has gone to great lengths to decongest court dockets and expedite the resolution of cases. In 2008, for example, the Court promulgated the Rule of Procedure for Small Claims Cases to accelerate the resolution of civil cases involving the poor and the oppressed. In 2009, it promulgated the Special Rules of Court on Alternative Dispute Resolution to encourage and promote the use of ADR, specifically arbitration and mediation, as a means to de-clog the dockets of the courts.
The Court has also literally brought people to justice, and justice to the people, when it launched the Enhanced Justice on Wheels (EJOW) project. By April 2010, these mobile courtrooms have released 3,545 inmates, either because they were acquitted or they had served the maximum penalty for the crimes they were accused of. 5,606 cases have also been successfully mediated. 2,270 individuals have benefited from free legal aid, and 9,056 inmates have received medical and dental attention. Pursuant to my commitment to Chief Justice Puno to continue the EJOW, we launched the EJOW Project in Marikina last week. Before noon, 75 inmates had been released, 130 given medical and dental aid, 50 extended legal assistance, while 4 out of 4 cases considered were successfully mediated.
Indeed, the judiciary as empowered by the 1987 Constitution is certainly far from being benign. Indeed, it has become a misconception to say that it is the least powerful of all the branches of government because the judiciary can make a distinct and significant difference for the good, and in ways that directly impact on our people’s lives.
We hope to complete the construction of both the Manila and the Angeles Halls of Justice, both of which are designed as models courts. We are going to fully computerize all our courts from Bangui, Ilocos Norte, to Balut Island, Davao del Sur. Hopefully, these improvements in infrastructure and equipment will aid in creating a more efficient working environment for our court personnel. These reforms shall also be complemented by developments within the judicial system. Among the programs we intend to pay close attention to are the decentralization of functions of the Office of the Court Administrator and the strengthening of the integrity values in the Judiciary. The objective is to bring our courts closer to the people and make the judiciary more responsive and relevant to the needs of the court users.
In this light, and with all candor, I acknowledge that I have stepped into gigantic shoes. Former Chief Justice Puno, truly an intellectual aristocrat, has instituted far-reaching and significant judicial reforms whose consequences, without doubt, will resonate well into the future. However, as I pledged when I entered upon the duties of Chief Justice of the Supreme Court, I will serve with utmost fidelity to this call of public duty to serve God and country.
We shall not have a dormant judiciary in my watch. To be sure, a strong, competent, incorruptible and independent judiciary is the protector of our rights and liberties, and without doubt, the last bulwark of democracy. I shall thus continue the reforms we have begun, aim to improve the judiciary even further in every aspect possible, and strengthen the great institution of the Supreme Court. Certainly, much still remains to be done as the quest for fairness, justice and right is a never-ending pursuit. Mindful of the spectrum of public opinion, as well as the fact that I have more than eight years to serve our people, I say with all humility: let history be the inerrant judge of the Corona Court.
Thank you and a happy Independence Day to all of you. Mabuhay ang Pilipinas!
see:
http://www.mb.com.ph/articles/261770/unity-judicial-reform
By RENATO C. CORONA, Supreme Court Chief Justice
June 12, 2010, 8:06pm
Officers of the Philippine Constitution Association, fellow scholars of the law, distinguished guests, ladies, and gentlemen, a pleasant evening to you all. Before anything else, my sincerest gratitude to your Chairman of the Board, Minister Conrado F. Estrella, and President, Atty. Manuel M. Lazaro, for inviting me to be your guest of honor and speaker tonight, as our nation celebrates its 112th Independence Day.
One month ago, our country had its first-ever automated elections. Come June 30, we will have an entirely new administration. Perhaps, for the first time in our history, the heads of the three branches of government are or will be newly installed. This is significant because the situation presents great opportunities to heal the painful wounds our country is suffering from and thereby usher in a new golden age of unity and economic strides. As our 22nd Chief Justice Reynato S. Puno so eloquently expressed it during the Justice Sector Coordinating Council Special Session.
True, these institutions are independent and have their own functions, but it ought to be clear and cannot be denied that the justice sector must work in an environment where there is interconnectivity. For reforms in one institution entail consequences for others. Hence, the success of reforms in one institution may be diluted by the lack of reforms in another justice sector agency. In effect, an injustice perpetuated in one justice sector agency threatens the entire administration of justice in our country.
The proposition is that if we want to have successful reforms in our justice system, we must act as one, move forward together, be guided by the singular goal of giving justice to our people all in accord with the command of our Constitution.
As the new Chief Justice of the Supreme Court, allow me to speak on behalf of the judicial branch. Regrettably, the judiciary has often been denigrated as the most benign and least powerful branch of government. The celebrated Montesquieu wrote that “of the three powers above mentioned, the judiciary is next to nothing.” The perception that it is merely reactive and not proactive, remedial and not protective, admittedly finds its roots in traditional orthodoxy. Alexander Hamilton in The Federalist, No. 78, wrote:
The judiciary has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the two; and that all possible care is requisite to enable it to defend itself against their attacks.
This view, however, no longer seems accurate in the light of our fundamental law which has infused vigor, muscle and intensity into the Court’s role in the nation’s political life. Indeed, in our jurisdiction, the days of Montesquieu and Hamilton, and the traditional role of the judiciary, may have long been dead and gone. Sec. 1, Art. VIII of the 1987 Constitution established a powerful judiciary by expanding its judicial power to inquire into political questions. Section 1 has substantially reformulated the political question doctrine which had, for many years, limited the power of judicial review, as clearly defined by Mr. Justice Jose P. Laurel “with deft strokes and in bold lines” in the seminal case of Angara v. Electoral Commission.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
The late Chief Justice Roberto Concepcion, an eminent member of the Constitutional Commission of 1986, authored the expanded jurisdiction and explained its rationale:
This is actually a product of our experience during martial law the role of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the Solicitor General set up the defense of political question and got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus and other matters related to the operation and effect of martial law failed because the government set up the defense of political question.x The Committee on Judiciary feels that this was not a proper solution to the question involved. It did not merely request an encroachment upon the rights of the people, but in effect, encouraged further violations thereof during the martial law regime.
Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government, or any of its officials, has acted without jurisdiction, or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature x x x x (this) means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question.
And pursuant to this expanded power, the Supreme Court nullified the Memorandum of Agreement on Ancestral Domain or MOA-AD, ruling that the Presidential Adviser on the Peace Process committed grave abuse of discretion when he failed to carry out the consultation process as mandated by law. The Court struck down the agreement between the Government of the Republic of the Philippines Peace Panel (GRP) and the Moro Islamic Liberation Front (MILF), holding that the government negotiation panel’s failure to consult the local government units or communities constituted a departure from its mandate under Executive Order No. 3. The Court held that the “furtive process by which the MOA-AD was designed and crafted (ran) contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof.”
In Kabataan Party-List v. Comelec, the Court nullified Comelec Resolution No. 8585, insofar as it encroached on the period provided by the system of continuing voters’ registration, and extended the October 31, 2009 deadline to January 9, 2010 as prescribed by the system of continuing registration. More recent is the case Guingona Jr. v. Comelec, where the Court ordered the Comelec to disclose the complete details of its preparations for the automated elections. The Court held that the Comelec “(could) not shirk from its constitutional duty to disclose fully to the public complete details of all information relating to its preparation for the May 10, 2010 elections without violating the Constitution and relevant laws. No less than the Constitution mandated it to enforce and administer the election laws.”
In Aldaba v. Commission on Elections, the Court nullified Republic Act No. 9591, the law creating a congressional district for Malolos City, Bulacan and held that laws creating legislative districts, as well as justiciable subsidiary questions impacting on the constitutionality of the said Republic Act, such as compliance with the population requirement under Article VI of the 1987 Constitution, are within the ambit of judicial power of review. “To deny the Court the exercise of its judicial review power over RA 9591 is to contend that this Court has no power to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government, a duty mandated under Article VIII of the Constitution.”
Similarly, in Navarro v. Ermita, the Court declared as unconstitutional RA 9355, the law creating the Province of Dinagat Islands, and nullified the proclamation of the election of the officials thereof. The Court noted that the Province of Dinagat Islands, containing an approximate land area of 802.12 square kilometers, fell short of the land area requirement of 2,000 square kilometers. The Province likewise failed to comply with the population requirement of not less than 250,000 inhabitants, the census conducted by the NSO showing that the Dinagat Islands’ population was only 106,951. The Court added that, while it respected the doctrine of separation of powers, it “(could) not renege on its duty to determine whether the other branches of the government had kept themselves within the limits of the Constitution, and determine(d) whether illegality attached to the creation of the province in question.”
Most certainly, the Supreme Court is ordained to be the final interpreter of the meaning and intent of the Constitution. “We are under a Constitution, but the Constitution is what the Court says it is,” then New York Governor, and later Chief Justice of the U.S. Supreme Court, Charles Evans Hughes once said. “It is emphatically the province and duty of the judicial department to say what the law is,” wrote Chief Justice John Marshall in Marbury v. Madison. Thus, we continue to interpret the Constitution, especially the “invisible” Constitution, as referred to by Harvard Professor and renowned legal scholar Laurence H. Tribe.
Thus, in Penera v. Comelec, the Court clarified that, under the law, the word “candidate” is defined as “any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy,” and that “any person who files a certificate of candidacy within the period for filing shall only be considered a candidate at the start of the campaign period for which he filed his certificate of candidacy.” In Quinto v. Comelec, the Court upheld the constitutionality of three provisions in the election laws that deemed appointive officials to be automatically resigned upon filing their certificates of candidacy, holding that they did not violate the equal protection clause. In February of this year, the Court held that the Government Service Insurance System (GSIS) was not exempt from payment of legal fees imposed under the Rules of Court. The Court ruled that the Constitution and jurisprudence did not mean to include legal fees in the exemption from “fees, charges or duties of all kinds” because the payment of legal fees was a vital component of the rules promulgated by the Court, and it (could) not be validly annulled, changed or modified by Congress.
But as Mr. Justice Robert H. Jackson, in Brown v. Allen said of the Court, “We are not final because we are infallible, we are infallible only because we are final.”
Paragraph (5), Section 5, Article VIII, 1987 Constitution also authorizes the Supreme Court to “[p]romulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged.”
Accordingly, with its rule-making power, the Court underscored and fortified our people’s individual, civil and political rights by the promulgation of the Rule on the Writ of Amparo. Indeed, one cannot deny the potency of this Rule when, mere days after its promulgation, several persons detained by the military on suspicion that they were communist rebels, regained their liberty. This was closely followed by the promulgation of the groundbreaking Rule on the Writ of Habeas Data, which obliges state officials to permit families of victims of enforced disappearances access to official documents by invoking the formerly nebulous “right to truth.”
Just a month and a half ago, we completed the circle of human rights by focusing on our people’s rights to a healthy environment, intergenerational equity and sustainability. The newly-launched Rules of Procedure for Environmental Cases, at the crux of which are the Writ of Kalikasan and the Writ of Continuing Mandamus, are a sound testament to this.
We likewise persevered to increase the poor’s access to effective and efficient justice by promulgating the Rule on Mandatory Legal Aid Service for Practicing Lawyers, which requires all practicing lawyers to render a minimum number of hours every year of free legal aid to indigents as a pre-condition to their continued good standing. Corollarily, the Court likewise approved the Rule on the Exemption from the Payment of Legal Fees of the Clients of the National Committee on Legal Aid (NCLA) and the Legal Aid Offices of the Local Chapters of the Integrated Bar of the Philippines.
Furthermore, cognizant of the adage “[j]ustice delayed is justice denied,” the Court has gone to great lengths to decongest court dockets and expedite the resolution of cases. In 2008, for example, the Court promulgated the Rule of Procedure for Small Claims Cases to accelerate the resolution of civil cases involving the poor and the oppressed. In 2009, it promulgated the Special Rules of Court on Alternative Dispute Resolution to encourage and promote the use of ADR, specifically arbitration and mediation, as a means to de-clog the dockets of the courts.
The Court has also literally brought people to justice, and justice to the people, when it launched the Enhanced Justice on Wheels (EJOW) project. By April 2010, these mobile courtrooms have released 3,545 inmates, either because they were acquitted or they had served the maximum penalty for the crimes they were accused of. 5,606 cases have also been successfully mediated. 2,270 individuals have benefited from free legal aid, and 9,056 inmates have received medical and dental attention. Pursuant to my commitment to Chief Justice Puno to continue the EJOW, we launched the EJOW Project in Marikina last week. Before noon, 75 inmates had been released, 130 given medical and dental aid, 50 extended legal assistance, while 4 out of 4 cases considered were successfully mediated.
Indeed, the judiciary as empowered by the 1987 Constitution is certainly far from being benign. Indeed, it has become a misconception to say that it is the least powerful of all the branches of government because the judiciary can make a distinct and significant difference for the good, and in ways that directly impact on our people’s lives.
We hope to complete the construction of both the Manila and the Angeles Halls of Justice, both of which are designed as models courts. We are going to fully computerize all our courts from Bangui, Ilocos Norte, to Balut Island, Davao del Sur. Hopefully, these improvements in infrastructure and equipment will aid in creating a more efficient working environment for our court personnel. These reforms shall also be complemented by developments within the judicial system. Among the programs we intend to pay close attention to are the decentralization of functions of the Office of the Court Administrator and the strengthening of the integrity values in the Judiciary. The objective is to bring our courts closer to the people and make the judiciary more responsive and relevant to the needs of the court users.
In this light, and with all candor, I acknowledge that I have stepped into gigantic shoes. Former Chief Justice Puno, truly an intellectual aristocrat, has instituted far-reaching and significant judicial reforms whose consequences, without doubt, will resonate well into the future. However, as I pledged when I entered upon the duties of Chief Justice of the Supreme Court, I will serve with utmost fidelity to this call of public duty to serve God and country.
We shall not have a dormant judiciary in my watch. To be sure, a strong, competent, incorruptible and independent judiciary is the protector of our rights and liberties, and without doubt, the last bulwark of democracy. I shall thus continue the reforms we have begun, aim to improve the judiciary even further in every aspect possible, and strengthen the great institution of the Supreme Court. Certainly, much still remains to be done as the quest for fairness, justice and right is a never-ending pursuit. Mindful of the spectrum of public opinion, as well as the fact that I have more than eight years to serve our people, I say with all humility: let history be the inerrant judge of the Corona Court.
Thank you and a happy Independence Day to all of you. Mabuhay ang Pilipinas!
see:
http://www.mb.com.ph/articles/261770/unity-judicial-reform
Filipino lawyer gets Harvard award for excellence, leadership
A Filipino lawyer received an award for academic excellence and leadership from the prestigious Harvard University in the United States late last month.
Lawyer Gerard Mosquera received the 2010 Lucius N. Littauer Award for Academic Excellence and Leadership from Harvard University’s John F. Kennedy School of Government last May 25.
Lawyer Gerard Mosquera at Harvard University. Photo by Enrique Pahm.“I plan to continue to do work that will help fight corruption, promote transparency and accountability, and improve governance, either in government or as an active member of the civil society," Mosquera said after receiving the award.
The award is the highest recognition given by the Harvard Kennedy School for exemplary academic achievement, public service and leadership.
Mosquera holds a Masters degree in Public Administration and was at the top five percent of Harvard Kennedy School’s Class of 2010, with 577 students from 80 countries.
Mosquera, a native of General Santos City, made a name for himself in anti-corruption work.
Since 2005, he has served as Chief of Party of the United States Agency for International Development (USAID)'s anti-corruption program in Timor-Leste.
He also served as technical adviser for anti-corruption to the United Nations Mission of Support in East Timor.
In the Philippines, he briefly served as Director in the Office of the Ombudsman.
Mosquera placed second in the 1992 Bar Examinations, and holds a Masters of Law degree from Kings College London and graduated with honors from the Ateneo School of Law.
He once served as Integrated Bar of the Philippines chapter president for General Santos City and South Cotabato and Sarangani provinces.
He has four children with wife Myra. — LBG, GMANews.TV
see:
http://ph.news.yahoo.com/gma/20100611/tph-pinoy-anti-graft-lawyer-gets-harvard-ac8c905.html
Lawyer Gerard Mosquera received the 2010 Lucius N. Littauer Award for Academic Excellence and Leadership from Harvard University’s John F. Kennedy School of Government last May 25.
Lawyer Gerard Mosquera at Harvard University. Photo by Enrique Pahm.“I plan to continue to do work that will help fight corruption, promote transparency and accountability, and improve governance, either in government or as an active member of the civil society," Mosquera said after receiving the award.
The award is the highest recognition given by the Harvard Kennedy School for exemplary academic achievement, public service and leadership.
Mosquera holds a Masters degree in Public Administration and was at the top five percent of Harvard Kennedy School’s Class of 2010, with 577 students from 80 countries.
Mosquera, a native of General Santos City, made a name for himself in anti-corruption work.
Since 2005, he has served as Chief of Party of the United States Agency for International Development (USAID)'s anti-corruption program in Timor-Leste.
He also served as technical adviser for anti-corruption to the United Nations Mission of Support in East Timor.
In the Philippines, he briefly served as Director in the Office of the Ombudsman.
Mosquera placed second in the 1992 Bar Examinations, and holds a Masters of Law degree from Kings College London and graduated with honors from the Ateneo School of Law.
He once served as Integrated Bar of the Philippines chapter president for General Santos City and South Cotabato and Sarangani provinces.
He has four children with wife Myra. — LBG, GMANews.TV
see:
http://ph.news.yahoo.com/gma/20100611/tph-pinoy-anti-graft-lawyer-gets-harvard-ac8c905.html
Friday, June 18, 2010
Fourth amendment right limited
In the fresh American case of CITY OF ONTARIO, CALIFORNIA, et al. v. QUON et al., certiorari to the United States Court of Appeals for the Ninth Circuit, docketed as Case No. 08-1332. 2010, and decided on June 17, 2010 by the US Supreme Court, constitutional Fourth Amendment issues were raised by police officers against their public employer, the City of Ontario.
It is the latest opinion of the US Supreme Court clarifying under what circumstances the said constitutional right may be deemed validly limited or regulated by the demands of reasonableness in governance, by legitimate public interests and work-related purposes, and by the exigencies of public service.
Petitioner City of Ontario acquired alphanumeric pagers able to send and receive text messages. Its contract with its service provider, Arch Wireless, provided for a monthly limit on the number of characters each pager could send or receive, and specified that usage exceeding that number would result in an additional fee.
The City issued the pagers to respondent Quon and other officers in its police department (OPD), also a petitioner here. When Quon and others exceeded their monthly character limits for several months running, petitioner Scharf, OPD's chief, sought to determine whether the existing limit was too low, i.e., whether the officers had to pay fees for sending work-related messages or, conversely, whether the overages were for personal messages.
After Arch Wireless provided transcripts of Quon's and another employee's August and September 2002 text messages, it was discovered that many of Quon's messages were not work related, and some were sexually explicit. Scharf referred the matter to OPD's internal affairs division.
The investigating officer used Quon's work schedule to redact from his transcript any messages he sent while off duty, but the transcript showed that few of his on-duty messages related to police business. Quon was disciplined for violating OPD rules.
He and the other respondents--each of whom had exchanged text messages with Quon during August and September--filed this suit, alleging, inter alia, that petitioners violated their Fourth Amendment rights and the federal Stored Communications Act (SCA) by obtaining and reviewing the transcript of Quon's pager messages, and that Arch Wireless violated the SCA by giving the City the transcript.
The District Court denied respondents summary judgment on the constitutional claims, relying on the plurality opinion in O'Connor v. Ortega, 480 U. S. 709, to determine that Quon had a reasonable expectation of privacy in the content of his messages.
Whether the audit was nonetheless reasonable, the court concluded, turned on whether Scharf used it for the improper purpose of determining if Quon was using his pager to waste time, or for the legitimate purpose of determining the efficacy of existing character limits to ensure that officers were not paying hidden work-related costs.
After the jury concluded that Scharf's intent was legitimate, the court granted petitioners summary judgment on the ground they did not violate the Fourth Amendment.
The Ninth Circuit reversed. Although it agreed that Quon had a reasonable expectation of privacy in his text messages, the appeals court concluded that the search was not reasonable even though it was conducted on a legitimate, work-related rationale.
The opinion pointed to a host of means less intrusive than the audit that Scharf could have used. The court further concluded that Arch Wireless had violated the SCA by giving the City the transcript.
The US Supreme Court held that bBecause the search of Quon's text messages was reasonable, petitioners did not violate respondents' Fourth Amendment rights, and the Ninth Circuit erred by concluding otherwise.
The Amendment guarantees a person's privacy, dignity, and security against arbitrary and invasive governmental acts, without regard to whether the government actor is investigating crime or performing another function. Skinner v. Railway Labor Executives' Assn., 489 U. S. 602, 613-614.
It applies as well when the government acts in its capacity as an employer. Treasury Employees v. Von Raab, 489 U. S. 656, 665.
The Members of the O'Connor Court disagreed on the proper analytical framework for Fourth Amendment claims against government employers.
A four-Justice plurality concluded that the correct analysis has two steps.
First, because "some [government] offices may be so open ... that no expectation of privacy is reasonable," a court must consider "[t]he operational realities of the workplace" to determine if an employee's constitutional rights are implicated. 480 U. S., at 718.
Second, where an employee has a legitimate privacy expectation, an employer's intrusion on that expectation "for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances." Id., at 725-726.
Justice Scalia, concurring in the judgment, would have dispensed with the "operational realities" inquiry and concluded "that the offices of government employees ... are [generally] covered by Fourth Amendment protections," id., at 731, but he would also have held "that government searches to retrieve work-related materials or to investigate violations of workplace rules--searches of the sort that are regarded as reasonable and normal in the private-employer context--do not violate the ... Amendment," id., at 732. Pp. 7-9.
The Court held that even assuming that Quon had a reasonable expectation of privacy in his text messages, the search was reasonable under both O'Connor approaches, the plurality's and Justice Scalia's.
The Court ratiocinated, thus:
(1) The Court does not resolve the parties' disagreement over Quon's privacy expectation. Prudence counsels caution before the facts in this case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations of employees using employer-provided communication devices. Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. At present, it is uncertain how workplace norms, and the law's treatment of them, will evolve. Because it is therefore preferable to dispose of this case on narrower grounds, the Court assumes, arguendo, that: (1) Quon had a reasonable privacy expectation; (2) petitioners' review of the transcript constituted a Fourth Amendment search; and (3) the principles applicable to a government employer's search of an employee's physical office apply as well in the electronic sphere. Pp. 9-12.
(2) Petitioners' warrantless review of Quon's pager transcript was reasonable under the O'Connor plurality's approach because it was motivated by a legitimate work-related purpose, and because it was not excessive in scope. See 480 U. S., at 726. There were "reasonable grounds for [finding it] necessary for a noninvestigatory work-related purpose," ibid., in that Chief Scharf had ordered the audit to determine whether the City's contractual character limit was sufficient to meet the City's needs. It was also "reasonably related to the objectives of the search," ibid., because both the City and OPD had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or, on the other hand, that the City was not paying for extensive personal communications. Reviewing the transcripts was an efficient and expedient way to determine whether either of these factors caused Quon's overages. And the review was also not "excessively intrusive." Ibid. Although Quon had exceeded his monthly allotment a number of times, OPD requested transcripts for only August and September 2002 in order to obtain a large enough sample to decide the character limits' efficaciousness, and all the messages that Quon sent while off duty were redacted. And from OPD's perspective, the fact that Quon likely had only a limited privacy expectation lessened the risk that the review would intrude on highly private details of Quon's life. Similarly, because the City had a legitimate reason for the search and it was not excessively intrusive in light of that justification, the search would be "regarded as reasonable and normal in the private-employer context" and thereby satisfy the approach of Justice Scalia's concurrence, id., at 732. Conversely, the Ninth Circuit's "least intrusive" means approach was inconsistent with controlling precedents. See, e.g., Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 663. Pp. 12-16.
(c) Whether the other respondents can have a reasonable expectation of privacy in their text messages to Quon need not be resolved. They argue that because the search was unreasonable as to Quon, it was also unreasonable as to them, but they make no corollary argument that the search, if reasonable as to Quon, could nonetheless be unreasonable as to them. Given this litigating position and the Court's conclusion that the search was reasonable as to Quon, these other respondents cannot prevail. Pp. 16-17.
529 F. 3d 892, reversed and remanded.
Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Thomas, Ginsburg, Breyer, Alito, and Sotomayor, JJ., joined, and in which Scalia, J., joined except for Part III-A. Stevens, J., filed a concurring opinion. Scalia, J., filed an opinion concurring in part and concurring in the judgment.
See:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=08-1332
http://laws.findlaw.com/us/000/08-1332.html.
It is the latest opinion of the US Supreme Court clarifying under what circumstances the said constitutional right may be deemed validly limited or regulated by the demands of reasonableness in governance, by legitimate public interests and work-related purposes, and by the exigencies of public service.
Petitioner City of Ontario acquired alphanumeric pagers able to send and receive text messages. Its contract with its service provider, Arch Wireless, provided for a monthly limit on the number of characters each pager could send or receive, and specified that usage exceeding that number would result in an additional fee.
The City issued the pagers to respondent Quon and other officers in its police department (OPD), also a petitioner here. When Quon and others exceeded their monthly character limits for several months running, petitioner Scharf, OPD's chief, sought to determine whether the existing limit was too low, i.e., whether the officers had to pay fees for sending work-related messages or, conversely, whether the overages were for personal messages.
After Arch Wireless provided transcripts of Quon's and another employee's August and September 2002 text messages, it was discovered that many of Quon's messages were not work related, and some were sexually explicit. Scharf referred the matter to OPD's internal affairs division.
The investigating officer used Quon's work schedule to redact from his transcript any messages he sent while off duty, but the transcript showed that few of his on-duty messages related to police business. Quon was disciplined for violating OPD rules.
He and the other respondents--each of whom had exchanged text messages with Quon during August and September--filed this suit, alleging, inter alia, that petitioners violated their Fourth Amendment rights and the federal Stored Communications Act (SCA) by obtaining and reviewing the transcript of Quon's pager messages, and that Arch Wireless violated the SCA by giving the City the transcript.
The District Court denied respondents summary judgment on the constitutional claims, relying on the plurality opinion in O'Connor v. Ortega, 480 U. S. 709, to determine that Quon had a reasonable expectation of privacy in the content of his messages.
Whether the audit was nonetheless reasonable, the court concluded, turned on whether Scharf used it for the improper purpose of determining if Quon was using his pager to waste time, or for the legitimate purpose of determining the efficacy of existing character limits to ensure that officers were not paying hidden work-related costs.
After the jury concluded that Scharf's intent was legitimate, the court granted petitioners summary judgment on the ground they did not violate the Fourth Amendment.
The Ninth Circuit reversed. Although it agreed that Quon had a reasonable expectation of privacy in his text messages, the appeals court concluded that the search was not reasonable even though it was conducted on a legitimate, work-related rationale.
The opinion pointed to a host of means less intrusive than the audit that Scharf could have used. The court further concluded that Arch Wireless had violated the SCA by giving the City the transcript.
The US Supreme Court held that bBecause the search of Quon's text messages was reasonable, petitioners did not violate respondents' Fourth Amendment rights, and the Ninth Circuit erred by concluding otherwise.
The Amendment guarantees a person's privacy, dignity, and security against arbitrary and invasive governmental acts, without regard to whether the government actor is investigating crime or performing another function. Skinner v. Railway Labor Executives' Assn., 489 U. S. 602, 613-614.
It applies as well when the government acts in its capacity as an employer. Treasury Employees v. Von Raab, 489 U. S. 656, 665.
The Members of the O'Connor Court disagreed on the proper analytical framework for Fourth Amendment claims against government employers.
A four-Justice plurality concluded that the correct analysis has two steps.
First, because "some [government] offices may be so open ... that no expectation of privacy is reasonable," a court must consider "[t]he operational realities of the workplace" to determine if an employee's constitutional rights are implicated. 480 U. S., at 718.
Second, where an employee has a legitimate privacy expectation, an employer's intrusion on that expectation "for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances." Id., at 725-726.
Justice Scalia, concurring in the judgment, would have dispensed with the "operational realities" inquiry and concluded "that the offices of government employees ... are [generally] covered by Fourth Amendment protections," id., at 731, but he would also have held "that government searches to retrieve work-related materials or to investigate violations of workplace rules--searches of the sort that are regarded as reasonable and normal in the private-employer context--do not violate the ... Amendment," id., at 732. Pp. 7-9.
The Court held that even assuming that Quon had a reasonable expectation of privacy in his text messages, the search was reasonable under both O'Connor approaches, the plurality's and Justice Scalia's.
The Court ratiocinated, thus:
(1) The Court does not resolve the parties' disagreement over Quon's privacy expectation. Prudence counsels caution before the facts in this case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations of employees using employer-provided communication devices. Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. At present, it is uncertain how workplace norms, and the law's treatment of them, will evolve. Because it is therefore preferable to dispose of this case on narrower grounds, the Court assumes, arguendo, that: (1) Quon had a reasonable privacy expectation; (2) petitioners' review of the transcript constituted a Fourth Amendment search; and (3) the principles applicable to a government employer's search of an employee's physical office apply as well in the electronic sphere. Pp. 9-12.
(2) Petitioners' warrantless review of Quon's pager transcript was reasonable under the O'Connor plurality's approach because it was motivated by a legitimate work-related purpose, and because it was not excessive in scope. See 480 U. S., at 726. There were "reasonable grounds for [finding it] necessary for a noninvestigatory work-related purpose," ibid., in that Chief Scharf had ordered the audit to determine whether the City's contractual character limit was sufficient to meet the City's needs. It was also "reasonably related to the objectives of the search," ibid., because both the City and OPD had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or, on the other hand, that the City was not paying for extensive personal communications. Reviewing the transcripts was an efficient and expedient way to determine whether either of these factors caused Quon's overages. And the review was also not "excessively intrusive." Ibid. Although Quon had exceeded his monthly allotment a number of times, OPD requested transcripts for only August and September 2002 in order to obtain a large enough sample to decide the character limits' efficaciousness, and all the messages that Quon sent while off duty were redacted. And from OPD's perspective, the fact that Quon likely had only a limited privacy expectation lessened the risk that the review would intrude on highly private details of Quon's life. Similarly, because the City had a legitimate reason for the search and it was not excessively intrusive in light of that justification, the search would be "regarded as reasonable and normal in the private-employer context" and thereby satisfy the approach of Justice Scalia's concurrence, id., at 732. Conversely, the Ninth Circuit's "least intrusive" means approach was inconsistent with controlling precedents. See, e.g., Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 663. Pp. 12-16.
(c) Whether the other respondents can have a reasonable expectation of privacy in their text messages to Quon need not be resolved. They argue that because the search was unreasonable as to Quon, it was also unreasonable as to them, but they make no corollary argument that the search, if reasonable as to Quon, could nonetheless be unreasonable as to them. Given this litigating position and the Court's conclusion that the search was reasonable as to Quon, these other respondents cannot prevail. Pp. 16-17.
529 F. 3d 892, reversed and remanded.
Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Thomas, Ginsburg, Breyer, Alito, and Sotomayor, JJ., joined, and in which Scalia, J., joined except for Part III-A. Stevens, J., filed a concurring opinion. Scalia, J., filed an opinion concurring in part and concurring in the judgment.
See:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=08-1332
http://laws.findlaw.com/us/000/08-1332.html.
Wednesday, June 16, 2010
Registration of sex offenders
See:
http://laws.findlaw.com/us/000/09-940.html
UNITED STATES v. JUVENILE MALE
on petition for writ of certiorari to the united states court of appeals for the ninth circuit
No. 09-940 Decided June 7, 2010
Per Curiam.
In 2005, respondent was charged in the United States District Court for the District of Montana with juvenile delinquency under the Federal Juvenile Delinquency Act (FJDA), 18 U. S. C. §5031 et seq. Respondent eventually pleaded "true" to knowingly engaging in sexual acts with a person under 12 years of age, which would have been a crime under §§2241(c) and 1153(a) if committed by an adult. In June 2005, the District Court accepted respondent's plea and adjudged him delinquent. The court sentenced respondent to two years' official detention and juvenile delinquent supervision until his 21st birthday. The court also ordered respondent to spend the first six months of his juvenile supervision in a prerelease center and to abide by the center's conditions of residency.
In 2006, Congress enacted the Sex Offender Registration and Notification Act (SORNA), 120 Stat. 590, 42 U. S. C. §16901 et seq. With respect to juvenile offenders, SORNA requires individuals who have been adjudicated delinquent for certain serious sex offenses to register and to keep their registrations current in each jurisdiction where they live, work, and go to school. §§16911(8); 16913. In February 2007, the Attorney General issued an interim rule specifying that SORNA's requirements "apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of [SORNA]." 72 Fed. Reg. 8897 (codified at 28 CFR §72.3 (2009)).
In July 2007, the District Court revoked respondent's juvenile supervision, finding that respondent had failed to comply with the requirements of the prerelease program. The court sentenced respondent to an additional 6-month term of official detention, to be followed by a period of supervision until his 21st birthday. The Government, invoking SORNA's juvenile registration provisions, argued that respondent should be required to register as a sex offender, at least for the duration of his juvenile supervision. As "special conditions" of his supervision, the court ordered respondent to register as a sex offender and to keep his registration current. App. to Pet. for Cert. 39a.
The Ninth Circuit vacated the sex-offender-registration requirements of the District Court's order. 590 F. 3d 924 (2010). The Court of Appeals determined that "retroactive application of SORNA's provision covering individuals who were adjudicated juvenile delinquents because of the commission of certain sex offenses before SORNA's passage violates the Ex Post Facto Clause of the United States Constitution." Id., at 927. The court thus held that "SORNA's juvenile registration provision may not be applied retroactively to individuals adjudicated delinquent under the [FJDA]." Id., at 928.
The United States asks us to grant certiorari to review the Ninth Circuit's determination that SORNA violates the Ex Post Facto Clause as applied to individuals who were adjudicated juvenile delinquents under the FJDA prior to SORNA's enactment. Before we can address that question, however, we must resolve a threshold issue of mootness. Before the Ninth Circuit, respondent challenged only the conditions of his juvenile supervision requiring him to register as a sex offender. But on May 2, 2008, respondent's term of supervision expired, and thus he no longer is subject to those sex-offender-registration conditions. As such, this case likely is moot unless respondent can show that a decision invalidating the sex-offender-registration conditions of his juvenile supervision would be sufficiently likely to redress "collateral consequences adequate to meet Article III's injury-in-fact requirement." Spencer v. Kemna, 523 U. S. 1, 14 (1998).
Perhaps the most likely potential "collateral consequenc[e]" that might be remedied by a judgment in respondent's favor is the requirement that respondent remain registered as a sex offender under Montana law. ("By the time of the court of appeals' decision, respondent had become registered as a sex offender in Montana, where he continues to be registered today." Pet. for Cert. 29.) We thus must know whether a favorable decision in this case would make it sufficiently likely that respondent "could remove his name and identifying information from the Montana sex offender registry." Ibid. Therefore, we certify the following question to the Supreme Court of Montana, pursuant to Montana Rule of Appellate Procedure 15 (2009):
Is respondent's duty to remain registered as a sex offender under Montana law contingent upon the validity of the conditions of his now-expired federal juvenile-supervision order that required him to register as a sex offender, see Mont. Code Ann. §§46-23-502(6)(b), 41-5-1513(1)(c) (2005); State v. Villanueva, 328 Mont. 135, 138-140, 118 P. 3d 179, 181-182 (2005); see also §46-23-502(9)(b) (2009), or is the duty an independent requirement of Montana law that is unaffected by the validity or invalidity of the federal juvenile-supervision conditions, see §46-23-502(10) (2009); 2007 Mont. Laws ch. 483, §31, p. 2185?
We respectfully request that the Montana Supreme Court accept our certified question. The court's answer to this question will help determine whether this case presents a live case or controversy, and there is no controlling appellate decision, constitutional provision, or statute on point. Mont. Rule App. Proc. 15(3). We understand that the Montana Supreme Court may wish to reformulate the certified question. Rule 15(6)(a)(iii).
The Clerk of this Court is directed to transmit to the Supreme Court of Montana a copy of this opinion, the briefs filed in this Court in this case, and a list of the counsel appearing in this matter along with their names and addresses. See Rules 15(5) and (6)(a)(iv). Further proceedings in this case are reserved pending our receipt of a response from the Supreme Court of Montana.
It is so ordered.
http://laws.findlaw.com/us/000/09-940.html
UNITED STATES v. JUVENILE MALE
on petition for writ of certiorari to the united states court of appeals for the ninth circuit
No. 09-940 Decided June 7, 2010
Per Curiam.
In 2005, respondent was charged in the United States District Court for the District of Montana with juvenile delinquency under the Federal Juvenile Delinquency Act (FJDA), 18 U. S. C. §5031 et seq. Respondent eventually pleaded "true" to knowingly engaging in sexual acts with a person under 12 years of age, which would have been a crime under §§2241(c) and 1153(a) if committed by an adult. In June 2005, the District Court accepted respondent's plea and adjudged him delinquent. The court sentenced respondent to two years' official detention and juvenile delinquent supervision until his 21st birthday. The court also ordered respondent to spend the first six months of his juvenile supervision in a prerelease center and to abide by the center's conditions of residency.
In 2006, Congress enacted the Sex Offender Registration and Notification Act (SORNA), 120 Stat. 590, 42 U. S. C. §16901 et seq. With respect to juvenile offenders, SORNA requires individuals who have been adjudicated delinquent for certain serious sex offenses to register and to keep their registrations current in each jurisdiction where they live, work, and go to school. §§16911(8); 16913. In February 2007, the Attorney General issued an interim rule specifying that SORNA's requirements "apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of [SORNA]." 72 Fed. Reg. 8897 (codified at 28 CFR §72.3 (2009)).
In July 2007, the District Court revoked respondent's juvenile supervision, finding that respondent had failed to comply with the requirements of the prerelease program. The court sentenced respondent to an additional 6-month term of official detention, to be followed by a period of supervision until his 21st birthday. The Government, invoking SORNA's juvenile registration provisions, argued that respondent should be required to register as a sex offender, at least for the duration of his juvenile supervision. As "special conditions" of his supervision, the court ordered respondent to register as a sex offender and to keep his registration current. App. to Pet. for Cert. 39a.
The Ninth Circuit vacated the sex-offender-registration requirements of the District Court's order. 590 F. 3d 924 (2010). The Court of Appeals determined that "retroactive application of SORNA's provision covering individuals who were adjudicated juvenile delinquents because of the commission of certain sex offenses before SORNA's passage violates the Ex Post Facto Clause of the United States Constitution." Id., at 927. The court thus held that "SORNA's juvenile registration provision may not be applied retroactively to individuals adjudicated delinquent under the [FJDA]." Id., at 928.
The United States asks us to grant certiorari to review the Ninth Circuit's determination that SORNA violates the Ex Post Facto Clause as applied to individuals who were adjudicated juvenile delinquents under the FJDA prior to SORNA's enactment. Before we can address that question, however, we must resolve a threshold issue of mootness. Before the Ninth Circuit, respondent challenged only the conditions of his juvenile supervision requiring him to register as a sex offender. But on May 2, 2008, respondent's term of supervision expired, and thus he no longer is subject to those sex-offender-registration conditions. As such, this case likely is moot unless respondent can show that a decision invalidating the sex-offender-registration conditions of his juvenile supervision would be sufficiently likely to redress "collateral consequences adequate to meet Article III's injury-in-fact requirement." Spencer v. Kemna, 523 U. S. 1, 14 (1998).
Perhaps the most likely potential "collateral consequenc[e]" that might be remedied by a judgment in respondent's favor is the requirement that respondent remain registered as a sex offender under Montana law. ("By the time of the court of appeals' decision, respondent had become registered as a sex offender in Montana, where he continues to be registered today." Pet. for Cert. 29.) We thus must know whether a favorable decision in this case would make it sufficiently likely that respondent "could remove his name and identifying information from the Montana sex offender registry." Ibid. Therefore, we certify the following question to the Supreme Court of Montana, pursuant to Montana Rule of Appellate Procedure 15 (2009):
Is respondent's duty to remain registered as a sex offender under Montana law contingent upon the validity of the conditions of his now-expired federal juvenile-supervision order that required him to register as a sex offender, see Mont. Code Ann. §§46-23-502(6)(b), 41-5-1513(1)(c) (2005); State v. Villanueva, 328 Mont. 135, 138-140, 118 P. 3d 179, 181-182 (2005); see also §46-23-502(9)(b) (2009), or is the duty an independent requirement of Montana law that is unaffected by the validity or invalidity of the federal juvenile-supervision conditions, see §46-23-502(10) (2009); 2007 Mont. Laws ch. 483, §31, p. 2185?
We respectfully request that the Montana Supreme Court accept our certified question. The court's answer to this question will help determine whether this case presents a live case or controversy, and there is no controlling appellate decision, constitutional provision, or statute on point. Mont. Rule App. Proc. 15(3). We understand that the Montana Supreme Court may wish to reformulate the certified question. Rule 15(6)(a)(iii).
The Clerk of this Court is directed to transmit to the Supreme Court of Montana a copy of this opinion, the briefs filed in this Court in this case, and a list of the counsel appearing in this matter along with their names and addresses. See Rules 15(5) and (6)(a)(iv). Further proceedings in this case are reserved pending our receipt of a response from the Supreme Court of Montana.
It is so ordered.
Excessive force claim
In the recent case of JAMEY L. WILKINS v. OFFICER GADDY, on petition for writ of certiorari to the US Court of Appeals for the Fourth Circuit, docketed as Case No. 08-10914 and decided on February 22, 2010 (see: http://laws.findlaw.com/us/000/8-10914.html), the US Supreme Court, in a per curiam decision, held, inter alia, that in Hudson v. McMillian, 503 U. S. 1, 4 (1992), the Court held that "the use of excessive physical force against a prisoner may constitute cruel and unusual punishment [even] when the inmate does not suffer serious injury." In the instant case, the District Court dismissed a prisoner's excessive force claim based entirely on its determination that his injuries were "de minimis." Because the District Court's approach, affirmed on appeal, was at odds with Hudson's direction to decide excessive force claims “based on the nature of the force rather than the extent of the injury”, the petition for certiorari was granted, and the questioned judgment was reversed by the Court.
In March 2008, petitioner Jamey Wilkins, a North Carolina state prisoner, filed suit in the United States District Court for the Western District of North Carolina pursuant to 42 U. S. C. §1983. Wilkins' pro se complaint alleged that, on June 13, 2007, he was "maliciously and sadistically" assaulted "[w]ithout any provocation" by a corrections officer, respondent Gaddy.1 App. to Pet. for Cert. C-4. According to the complaint, Gaddy, apparently angered by Wilkins' request for a grievance form, "snatched [Wilkins] off the ground and slammed him onto the concrete floor." Ibid. Gaddy "then proceeded to punch, kick, knee and choke [Wilkins] until another officer had to physically remove him from [Wilkins]." Ibid. Wilkins further alleged that, "[a]s a result of the excessive force used by [Gaddy], [he] sustained multiple physical injuries including a bruised heel, lower back pain, increased blood pressure, as well as migraine headaches and dizziness" and "psychological trauma and mental anguish including depression, panic attacks and nightmares of the assault." Ibid.
Like Wilkins, the prisoner in Hudson filed suit under §1983 alleging that corrections officers had used excessive force in violation of the Eighth Amendment. Evidence indicated that the officers had punched Hudson in the mouth, eyes, chest, and stomach without justification, resulting in "minor bruises and swelling of his face, mouth, and lip" as well as loosened teeth and a cracked partial dental plate. 503 U. S., at 4. A Magistrate Judge entered judgment in Hudson's favor, but the Court of Appeals for the Fifth Circuit reversed, holding that an inmate must prove "a significant injury" in order to state an excessive force claim. Hudson v. McMillian, 929 F. 2d 1014, 1015 (1990) (per curiam). According to the Court of Appeals, Hudson's injuries, which had not required medical attention, were too "minor" to warrant relief. Ibid.
Reversing the Court of Appeals, the US Supreme Court rejected the notion that "significant injury" was a threshold requirement for stating an excessive force claim. The "core judicial inquiry," it was held, was not whether a certain quantum of injury was sustained, but rather "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." 503 U. S., at 7; see also Whitley v. Albers, 475 U. S. 312, 319-321 (1986). "When prison officials maliciously and sadistically use force to cause harm," the Court recognized, "contemporary standards of decency always were violated whether or not significant injury was evident. Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury." Hudson, 503 U. S., at 9; see also id., at 13-14 (Blackmun, J., concurring in judgment) ("The Court today appropriately puts to rest a seriously misguided view that pain inflicted by an excessive use of force is actionable under the Eighth Amendment only when coupled with 'significant injury,' e.g., injury that requires medical attention or leaves permanent marks").
This is not to say that the "absence of serious injury" is irrelevant to the Eighth Amendment inquiry, the Court stated. Id., at 7. "[T]he extent of injury suffered by an inmate is one factor that may suggest 'whether the use of force could plausibly have been thought necessary' in a particular situation." Ibid. (quoting Whitley, 475 U. S., at 321). The extent of injury may also provide some indication of the amount of force applied. As stated in Hudson, not "every malevolent touch by a prison guard gives rise to a federal cause of action." 503 U. S., at 9. "The Eighth Amendment's prohibition of 'cruel and unusual' punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind," the Court added. Ibid. An inmate who complains of a "push or shove" that causes no discernible injury almost certainly fails to state a valid excessive force claim. Ibid. (quoting Johnson v. Glick, 481 F. 2d 1028, 1033 (CA2 1973)).
Injury and force, however, are only imperfectly correlated, and it is the latter that ultimately counts. An inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely because he has the good fortune to escape without serious injury. Accordingly, the Court concluded in Hudson that the supposedly "minor" nature of the injuries "provide[d] no basis for dismissal of [Hudson's] §1983 claim" because "the blows directed at Hudson, which caused bruises, swelling, loosened teeth, and a cracked dental plate, are not de minimis for Eighth Amendment purposes." 503 U. S., at 10.
The allegations made by Wilkins in the instant case were quite similar to the facts in Hudson. Wilkins alleged that he was punched, kicked, kneed, choked, and body slammed "maliciously and sadistically" and "[w]ithout any provocation." Dismissing Wilkins' action sua sponte, the District Court did not hold that this purported assault, which allegedly left Wilkins with a bruised heel, back pain, and other injuries requiring medical treatment, involved de minimis force. Instead, the court concluded that Wilkins had failed to state a claim because "he simply has not alleged that he suffered anything more than de minimus [sic] injury." No. 3:08-cv-00138 (WD NC, Apr. 16, 2008), at 2.
In fine, in holding that the District Court erred in dismissing Wilkins' complaint based on the supposedly de minimis nature of his injuries, the US Supreme Court expressed no view on the underlying merits of his excessive force claim. In order to prevail, Wilkins would ultimately have to prove not only that the assault actually occurred but also that it was carried out "maliciously and sadistically" rather than as part of "a good-faith effort to maintain or restore discipline." Ibid. Moreover, even if Wilkins succeeded, the relatively modest nature of his alleged injuries would no doubt limit the damages he may recover, the Court stated.
The petition for certiorari and the motion for leave to proceed in forma pauperis were granted. The questioned judgment of the Court of Appeals was reversed, and the case was remanded for further proceedings consistent with the opinion of the Court
In March 2008, petitioner Jamey Wilkins, a North Carolina state prisoner, filed suit in the United States District Court for the Western District of North Carolina pursuant to 42 U. S. C. §1983. Wilkins' pro se complaint alleged that, on June 13, 2007, he was "maliciously and sadistically" assaulted "[w]ithout any provocation" by a corrections officer, respondent Gaddy.1 App. to Pet. for Cert. C-4. According to the complaint, Gaddy, apparently angered by Wilkins' request for a grievance form, "snatched [Wilkins] off the ground and slammed him onto the concrete floor." Ibid. Gaddy "then proceeded to punch, kick, knee and choke [Wilkins] until another officer had to physically remove him from [Wilkins]." Ibid. Wilkins further alleged that, "[a]s a result of the excessive force used by [Gaddy], [he] sustained multiple physical injuries including a bruised heel, lower back pain, increased blood pressure, as well as migraine headaches and dizziness" and "psychological trauma and mental anguish including depression, panic attacks and nightmares of the assault." Ibid.
Like Wilkins, the prisoner in Hudson filed suit under §1983 alleging that corrections officers had used excessive force in violation of the Eighth Amendment. Evidence indicated that the officers had punched Hudson in the mouth, eyes, chest, and stomach without justification, resulting in "minor bruises and swelling of his face, mouth, and lip" as well as loosened teeth and a cracked partial dental plate. 503 U. S., at 4. A Magistrate Judge entered judgment in Hudson's favor, but the Court of Appeals for the Fifth Circuit reversed, holding that an inmate must prove "a significant injury" in order to state an excessive force claim. Hudson v. McMillian, 929 F. 2d 1014, 1015 (1990) (per curiam). According to the Court of Appeals, Hudson's injuries, which had not required medical attention, were too "minor" to warrant relief. Ibid.
Reversing the Court of Appeals, the US Supreme Court rejected the notion that "significant injury" was a threshold requirement for stating an excessive force claim. The "core judicial inquiry," it was held, was not whether a certain quantum of injury was sustained, but rather "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." 503 U. S., at 7; see also Whitley v. Albers, 475 U. S. 312, 319-321 (1986). "When prison officials maliciously and sadistically use force to cause harm," the Court recognized, "contemporary standards of decency always were violated whether or not significant injury was evident. Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury." Hudson, 503 U. S., at 9; see also id., at 13-14 (Blackmun, J., concurring in judgment) ("The Court today appropriately puts to rest a seriously misguided view that pain inflicted by an excessive use of force is actionable under the Eighth Amendment only when coupled with 'significant injury,' e.g., injury that requires medical attention or leaves permanent marks").
This is not to say that the "absence of serious injury" is irrelevant to the Eighth Amendment inquiry, the Court stated. Id., at 7. "[T]he extent of injury suffered by an inmate is one factor that may suggest 'whether the use of force could plausibly have been thought necessary' in a particular situation." Ibid. (quoting Whitley, 475 U. S., at 321). The extent of injury may also provide some indication of the amount of force applied. As stated in Hudson, not "every malevolent touch by a prison guard gives rise to a federal cause of action." 503 U. S., at 9. "The Eighth Amendment's prohibition of 'cruel and unusual' punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind," the Court added. Ibid. An inmate who complains of a "push or shove" that causes no discernible injury almost certainly fails to state a valid excessive force claim. Ibid. (quoting Johnson v. Glick, 481 F. 2d 1028, 1033 (CA2 1973)).
Injury and force, however, are only imperfectly correlated, and it is the latter that ultimately counts. An inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely because he has the good fortune to escape without serious injury. Accordingly, the Court concluded in Hudson that the supposedly "minor" nature of the injuries "provide[d] no basis for dismissal of [Hudson's] §1983 claim" because "the blows directed at Hudson, which caused bruises, swelling, loosened teeth, and a cracked dental plate, are not de minimis for Eighth Amendment purposes." 503 U. S., at 10.
The allegations made by Wilkins in the instant case were quite similar to the facts in Hudson. Wilkins alleged that he was punched, kicked, kneed, choked, and body slammed "maliciously and sadistically" and "[w]ithout any provocation." Dismissing Wilkins' action sua sponte, the District Court did not hold that this purported assault, which allegedly left Wilkins with a bruised heel, back pain, and other injuries requiring medical treatment, involved de minimis force. Instead, the court concluded that Wilkins had failed to state a claim because "he simply has not alleged that he suffered anything more than de minimus [sic] injury." No. 3:08-cv-00138 (WD NC, Apr. 16, 2008), at 2.
In fine, in holding that the District Court erred in dismissing Wilkins' complaint based on the supposedly de minimis nature of his injuries, the US Supreme Court expressed no view on the underlying merits of his excessive force claim. In order to prevail, Wilkins would ultimately have to prove not only that the assault actually occurred but also that it was carried out "maliciously and sadistically" rather than as part of "a good-faith effort to maintain or restore discipline." Ibid. Moreover, even if Wilkins succeeded, the relatively modest nature of his alleged injuries would no doubt limit the damages he may recover, the Court stated.
The petition for certiorari and the motion for leave to proceed in forma pauperis were granted. The questioned judgment of the Court of Appeals was reversed, and the case was remanded for further proceedings consistent with the opinion of the Court
Discovery; evidentiary hearing.
In the recent case of MARCUS A. WELLONS v. HILTON HALL, WARDEN, on petition for writ of certiorari to the US Court of Appeals for the 11th Circuirt, docketed as Case No. 09-5731 and decided on January 19, 2010 (see: http://laws.findlaw.com/us/000/09-5731.html), the US Supreme Court, in a per curiam decision, held that from beginning to end, judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect. The disturbing facts of the case raised serious questions concerning the conduct of the trial, and the petition raised a serious question about whether the Court of Appeals carefully reviewed those facts before addressing petitioner's constitutional claims.
Petitioner Marcus Wellons was convicted in Georgia state court of rape and murder and sentenced to death. Although the trial looked typical, there were unusual events going on behind the scenes. Only after the trial did defense counsel learn that there had been unreported ex parte contacts between the jury and the judge, that jurors and a bailiff had planned a reunion, and that "either during or immediately following the penalty phase, some jury members gave the trial judge chocolate shaped as male genitalia and the bailiff chocolate shaped as female breasts," 554 F. 3d 923, 930 (CA11 2009). The judge had not reported any of this to the defense.
The State Supreme Court affirmed Wellons’ conviction and sentence. Wellons v. State, 266 Ga. 77, 88, 463 S. E. 2d 868, 880 (1995). He sought state habeas relief and moved to develop evidence. But the court held that the matter had been decided on appeal and thus was res judicata. See 554 F. 3d, at 932. He raised the issue again in his federal habeas petition, seeking discovery and an evidentiary hearing. But the District Court "concluded that Wellons' claims ... were procedurally barred, and accordingly denied his motion for an evidentiary hearing on these claims." Id., at 933.1 Before the Eleventh Circuit, Wellons "argue[d] that the district court erred in denying his motions for discovery and an evidentiary hearing to develop his judge, juror, and bailiff misconduct claims because they are not procedurally barred." Id., at 935. The court disagreed, holding that Wellons' claims were procedurally barred. Ibid.
Although Wellons appealed the denial of "his motions for discovery and an evidentiary hearing," 554 F. 3d, at 935, the Eleventh Circuit did not purport to address the merits of that issue at all.2 The court stated only that "[e]ven if we assume that Wellons's misconduct claims are not procedurally barred, they do not entitle Wellons to habeas relief." Id., at 936 (emphasis added). This opaque statement appears to address only whether petitioner was entitled to ultimate relief in the form of a new trial, not whether petitioner's allegations, combined with the facts he had learned, entitled him to the discovery and evidentiary hearing that he sought.
The Supreme Court held the standard for an order granting certiorari, vacating the judgment below, and remanding the case (GVR) remains as it always had been: A GVR is appropriate when "intervening developments ... reveal a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration, and where it appears that such a redetermination may determine the ultimate outcome" of the matter. Lawrence v. Chater, 516 U. S. 163, 167 (1996) (per curiam). As already discussed, there is, at least, a "reasonable probability," ibid., that the denial of discovery and an evidentiary hearing rested in part on the Cone error. And in light of the unusual facts of the case, a "redetermination may determine the ultimate outcome," 516 U. S., at 167; cf. Williams v. Taylor, 529 U. S. 420, 442 (2000) (holding that several "omissions as a whole disclose the need for an evidentiary hearing"); Smith v. Phillips, 455 U. S. 209, 215 (1982) ("This Court has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has an opportunity to prove actual bias").
Both dissenting opinions suggest that if there was a strong case for discovery and an evidentiary hearing, then the Court "should summarily reverse or set the case for argument." Post, at 2 (opinion of Scalia, J.); see also post, at 4-5 (opinion of Alito, J.). But as the Court had explained, "a GVR order conserves the scarce resources of this Court," "assists the court below by flagging a particular issue that it does not appear to have fully considered," and "assists this Court by procuring the benefit of the lower court's insight before we rule on the merits." Lawrence, supra, at 167.
In fine, the petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit and the motion of petitioner for leave to proceed in forma pauperis were granted. The judgment was vacated, and the case was remanded to the Eleventh Circuit for further consideration in light of Cone v. Bell, 556 U. S., at ___ (slip op., at 17-18).
Petitioner Marcus Wellons was convicted in Georgia state court of rape and murder and sentenced to death. Although the trial looked typical, there were unusual events going on behind the scenes. Only after the trial did defense counsel learn that there had been unreported ex parte contacts between the jury and the judge, that jurors and a bailiff had planned a reunion, and that "either during or immediately following the penalty phase, some jury members gave the trial judge chocolate shaped as male genitalia and the bailiff chocolate shaped as female breasts," 554 F. 3d 923, 930 (CA11 2009). The judge had not reported any of this to the defense.
The State Supreme Court affirmed Wellons’ conviction and sentence. Wellons v. State, 266 Ga. 77, 88, 463 S. E. 2d 868, 880 (1995). He sought state habeas relief and moved to develop evidence. But the court held that the matter had been decided on appeal and thus was res judicata. See 554 F. 3d, at 932. He raised the issue again in his federal habeas petition, seeking discovery and an evidentiary hearing. But the District Court "concluded that Wellons' claims ... were procedurally barred, and accordingly denied his motion for an evidentiary hearing on these claims." Id., at 933.1 Before the Eleventh Circuit, Wellons "argue[d] that the district court erred in denying his motions for discovery and an evidentiary hearing to develop his judge, juror, and bailiff misconduct claims because they are not procedurally barred." Id., at 935. The court disagreed, holding that Wellons' claims were procedurally barred. Ibid.
Although Wellons appealed the denial of "his motions for discovery and an evidentiary hearing," 554 F. 3d, at 935, the Eleventh Circuit did not purport to address the merits of that issue at all.2 The court stated only that "[e]ven if we assume that Wellons's misconduct claims are not procedurally barred, they do not entitle Wellons to habeas relief." Id., at 936 (emphasis added). This opaque statement appears to address only whether petitioner was entitled to ultimate relief in the form of a new trial, not whether petitioner's allegations, combined with the facts he had learned, entitled him to the discovery and evidentiary hearing that he sought.
The Supreme Court held the standard for an order granting certiorari, vacating the judgment below, and remanding the case (GVR) remains as it always had been: A GVR is appropriate when "intervening developments ... reveal a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration, and where it appears that such a redetermination may determine the ultimate outcome" of the matter. Lawrence v. Chater, 516 U. S. 163, 167 (1996) (per curiam). As already discussed, there is, at least, a "reasonable probability," ibid., that the denial of discovery and an evidentiary hearing rested in part on the Cone error. And in light of the unusual facts of the case, a "redetermination may determine the ultimate outcome," 516 U. S., at 167; cf. Williams v. Taylor, 529 U. S. 420, 442 (2000) (holding that several "omissions as a whole disclose the need for an evidentiary hearing"); Smith v. Phillips, 455 U. S. 209, 215 (1982) ("This Court has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has an opportunity to prove actual bias").
Both dissenting opinions suggest that if there was a strong case for discovery and an evidentiary hearing, then the Court "should summarily reverse or set the case for argument." Post, at 2 (opinion of Scalia, J.); see also post, at 4-5 (opinion of Alito, J.). But as the Court had explained, "a GVR order conserves the scarce resources of this Court," "assists the court below by flagging a particular issue that it does not appear to have fully considered," and "assists this Court by procuring the benefit of the lower court's insight before we rule on the merits." Lawrence, supra, at 167.
In fine, the petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit and the motion of petitioner for leave to proceed in forma pauperis were granted. The judgment was vacated, and the case was remanded to the Eleventh Circuit for further consideration in light of Cone v. Bell, 556 U. S., at ___ (slip op., at 17-18).
Wednesday, June 9, 2010
Roger Vinluan, IBP pres., speaks.
Rogelio Vinluan: 'It's difficult to be an honest lawyer'
Tuesday, 07 April 2009
Rogelio Vinluan, incoming president of the Integrated Bar of the Philippines, talked to Newsbreak’s Marites Dañguilan Vitug about a range of issues including the state of the law profession and legal education. Excerpts from the candid interview below:
In a past survey in the Philippines on which profession is most trusted, the lawyer is way below, with the priest and journalist topping the list. Why is this so?
That seems to be universal. Shakespeare said, “Let’s kill all the lawyers.” An old joke goes that laboratory technicians prefer lawyers to guinea pigs in their experiments.
What is it about the profession that makes it controversial or sinister?
I don’t know how to explain the bad image of lawyers. I have a book titled Dracula Was a Lawyer, a collection of jokes. That shows that we have a bad public image. An American comedian, in a commencement speech, said that in a survey, lawyers even rank lower than garbage collectors.
The nature of the profession invites enemies.
Yes, because somebody has to lose in any case.
Are we becoming a litigious society?
We don’t have yet the proliferation of personal-injury cases, class suits for product liability, etc. But I think we’re heading towards that.
Are we producing too many lawyers?
We have many lawyers, about 50,000, but we only have a few good ones. We don’t have the data, but only a few really practice. Most go into business or join the government. The IBP should start gathering data on lawyers so we’ll have an accurate picture.
What’s wrong with our law curriculum?
It’s slanted toward passing the bar. Passing the bar is the measure of the quality of the graduates. That shouldn’t be the case.
What should it be slanted toward?
Look at the Yale and Harvard curricula. They include a myriad of non-bar related courses such as, for example, homosexuality and the law. Their idea is to offer courses that their students will not get after they graduate. When you graduate, then you review on your own for the bar.
So, in the US, the law students are thought how to think?
They’re more after identifying issues. Our exams [in Yale] allowed open books. We could even bring them to our dorms. They were not after any correct answer. There’s a lot of freewheeling discussion, not graded recitations.
Should there be a reorientation then?
Yes. Lawyers should be trained how to think, not to worry about the bar.
If you were to give advice to the young, would you encourage them to take up law?
I don’t think any of the children of my former UP professor who became Chief Justice of the Supreme Court, Ramon Aquino, became lawyers. When I asked him, he said that it’s because it’s difficult to be honest. Except for the fact that he was so loyal to Marcos, he was honest to the hilt.
Why is it hard to be honest as a lawyer? Because you have to interpret the truth in many ways?
It’s because you have to live with the system. The problem is corruption. If you want to win your cases, you have to live with the system. From the time our firm, ACCRA, was founded, up to now, we’ve been having this raging debate on what to do. If you file a case for a client and it goes to a corrupt judge, what do you do? That’s a problem. We have a group of lawyers who say that we should never get involved in corrupting a judge. Another group says our clients will suffer. So as a sort of compromise, we decided we should never get involved in corrupting a judge, we should never be the ones to hand the money or offer the bribe. If a case goes to a corrupt judge, we tell the client to deal with the judge. It’s up to them—we give them the contacts—who to talk to.
Has this worked?
It’s hard when the clients beg you and say they don’t know anybody. It’s really difficult to be honest.
With the increase in women lawyers, will the profession improve? Women are said to be more honest.
I doubt it if the profession will improve because of gender. It’s really the system.
As incoming IBP president, what is the one big thing you want to do?
Improve the selection of judges. The IBP should be actively involved in the evaluation of applicants, especially to the Court of Appeals and the SC. We’re not at all active now although we have a representative in the JBC (Judicial and Bar Council). The American Bar Association has a committee that evaluates applicants and submits their evaluation to the Commission on Appointments. In our case, we should have a system. There should be a committee composed of lawyers of probity and we should submit our evaluation to the JBC and let the public know how we evaluated them.
You do have a voice in the JBC. But there appears to be no strong link to the IBP.
Yes, the IBP representative is on his own, he doesn’t even consult us. I intend to change this when I become president.
Does continuing legal education improve the state of lawyers?
Sad to say, many just attend lectures to comply, but they don’t even listen.
What’s wrong?
Based on studies in the US, those who benefit from the continuing legal education program are those who are already competent and highly motivated. In open forums, very few ask questions, and they ask questions about their cases. There should be some testing mechanism.
The IBP has been very vocal on national issues. Can lawyers be activists—like in Pakistan—since they are generally conservative?
Yes, of course. Many of our activists are lawyers.
See:
newsbreak.com.ph
call (632) 9200997
fax (632) 9203611
Tuesday, 07 April 2009
Rogelio Vinluan, incoming president of the Integrated Bar of the Philippines, talked to Newsbreak’s Marites Dañguilan Vitug about a range of issues including the state of the law profession and legal education. Excerpts from the candid interview below:
In a past survey in the Philippines on which profession is most trusted, the lawyer is way below, with the priest and journalist topping the list. Why is this so?
That seems to be universal. Shakespeare said, “Let’s kill all the lawyers.” An old joke goes that laboratory technicians prefer lawyers to guinea pigs in their experiments.
What is it about the profession that makes it controversial or sinister?
I don’t know how to explain the bad image of lawyers. I have a book titled Dracula Was a Lawyer, a collection of jokes. That shows that we have a bad public image. An American comedian, in a commencement speech, said that in a survey, lawyers even rank lower than garbage collectors.
The nature of the profession invites enemies.
Yes, because somebody has to lose in any case.
Are we becoming a litigious society?
We don’t have yet the proliferation of personal-injury cases, class suits for product liability, etc. But I think we’re heading towards that.
Are we producing too many lawyers?
We have many lawyers, about 50,000, but we only have a few good ones. We don’t have the data, but only a few really practice. Most go into business or join the government. The IBP should start gathering data on lawyers so we’ll have an accurate picture.
What’s wrong with our law curriculum?
It’s slanted toward passing the bar. Passing the bar is the measure of the quality of the graduates. That shouldn’t be the case.
What should it be slanted toward?
Look at the Yale and Harvard curricula. They include a myriad of non-bar related courses such as, for example, homosexuality and the law. Their idea is to offer courses that their students will not get after they graduate. When you graduate, then you review on your own for the bar.
So, in the US, the law students are thought how to think?
They’re more after identifying issues. Our exams [in Yale] allowed open books. We could even bring them to our dorms. They were not after any correct answer. There’s a lot of freewheeling discussion, not graded recitations.
Should there be a reorientation then?
Yes. Lawyers should be trained how to think, not to worry about the bar.
If you were to give advice to the young, would you encourage them to take up law?
I don’t think any of the children of my former UP professor who became Chief Justice of the Supreme Court, Ramon Aquino, became lawyers. When I asked him, he said that it’s because it’s difficult to be honest. Except for the fact that he was so loyal to Marcos, he was honest to the hilt.
Why is it hard to be honest as a lawyer? Because you have to interpret the truth in many ways?
It’s because you have to live with the system. The problem is corruption. If you want to win your cases, you have to live with the system. From the time our firm, ACCRA, was founded, up to now, we’ve been having this raging debate on what to do. If you file a case for a client and it goes to a corrupt judge, what do you do? That’s a problem. We have a group of lawyers who say that we should never get involved in corrupting a judge. Another group says our clients will suffer. So as a sort of compromise, we decided we should never get involved in corrupting a judge, we should never be the ones to hand the money or offer the bribe. If a case goes to a corrupt judge, we tell the client to deal with the judge. It’s up to them—we give them the contacts—who to talk to.
Has this worked?
It’s hard when the clients beg you and say they don’t know anybody. It’s really difficult to be honest.
With the increase in women lawyers, will the profession improve? Women are said to be more honest.
I doubt it if the profession will improve because of gender. It’s really the system.
As incoming IBP president, what is the one big thing you want to do?
Improve the selection of judges. The IBP should be actively involved in the evaluation of applicants, especially to the Court of Appeals and the SC. We’re not at all active now although we have a representative in the JBC (Judicial and Bar Council). The American Bar Association has a committee that evaluates applicants and submits their evaluation to the Commission on Appointments. In our case, we should have a system. There should be a committee composed of lawyers of probity and we should submit our evaluation to the JBC and let the public know how we evaluated them.
You do have a voice in the JBC. But there appears to be no strong link to the IBP.
Yes, the IBP representative is on his own, he doesn’t even consult us. I intend to change this when I become president.
Does continuing legal education improve the state of lawyers?
Sad to say, many just attend lectures to comply, but they don’t even listen.
What’s wrong?
Based on studies in the US, those who benefit from the continuing legal education program are those who are already competent and highly motivated. In open forums, very few ask questions, and they ask questions about their cases. There should be some testing mechanism.
The IBP has been very vocal on national issues. Can lawyers be activists—like in Pakistan—since they are generally conservative?
Yes, of course. Many of our activists are lawyers.
See:
newsbreak.com.ph
call (632) 9200997
fax (632) 9203611
HLURB; 2009 rules of procedure.
HLURB BOARD OF COMMISSIONERS
RESOLUTION No. 851
Series of 2009
ADOPTING THE 2009 REVISED RULES OF PROCEDURE OF THE
HOUSING AND LAND USE REGULATORY BOARD
RULE I
TITLE AND CONSTRUCTION
Section 1. Title. - These Rules shall be known as the 2009 Revised Rules of Procedure, hereinafter referred to as the "Rules", of the Housing and Land Use Regulatory Board or "Board" for brevity.
Section 2. Construction. - The Rules shall be liberally constructed in order to promote the general welfare, and to assist the parties in obtaining a just, speedy and inexpensive determination of every action, application or proceeding.
Section 3. Nature of the proceedings. - Proceedings before the Board shall be summary in nature. The provisions of the Rules of Court shall not be applicable except in a suppletory character.
RULE II
PARTIES TO A COMPLAINT
Section 1. Complaint and respondent. - In any complaint filed before the Board, the person filing the same shall be called the complaint, while the person against whom it is filed shall be called the respondent.
RULE III
PARTIES TO A DISPUTED APPLICATION
Section 1. Applicant and oppositor. - Any person, natural or juridical, or entity authorized by law, who files an application before the Board for the issuance of any license, permit or clearance, or the authority to exercise any right or privilege granted under any law, proclamation, decree or executive order administered or implemented by the Board, shall be called the applicant.
Any person, natural or juridical, or entity authorized by law opposes or claims an adverse right or interest in any application shall be called the oppositor.
RULE IV
COMMENCEMENT OF ACTION, SUMMONS AND ANSWER
Section 1. When action is deemed commenced. - An action is deemed commenced upon the filing of a verified complaint with the Regional Office of the Board, in three (3) copies and in such number of copies as there are respondents, with supporting documents and upon payment of the required filing fees.
Section 2. Parts of the complaint. -
A. The body.
The body of the complaint sets forth the full name of the real parties in interest, whether natural or juridical, showing capacity to sue and to be sued, status, mailing address, designation, the allegations of the party's claims, the reliefs prayed for, and the date of the pleading.
B. Signature, address, and representation.
Every complaint must be signed by the party or his duly authorized counsel, stating in either case his address which should not be a post office box.
A lawyer appearing for a party is presumed to be properly authorized for that purpose. In every case, he shall indicate in his pleadings and motions his Roll of Attorney's Number, current Professional Tax Receipt Number, IBP Official Receipt Number or IBP Lifetime Membership Number and MCLE Compliance or Exemption Certificate Number and their date of issue. The signature of counsel constitutes a certification by him that he has read the complaint; that to the best of his knowledge and information there is good ground to support it; and that it is not interposed for delay.
A non-lawyer who represents a party shall attach to the complaint a special power of attorney authorizing him to file the case and an affidavit duly executed by the party represented ---missing word---. stating the reason why he is physically incapable of personally prosecuting ---missing word---. In case the real party-in-interest is out of the country, these instruments must be ---missing word--- or authenticated by the consular office concerned and comply with other applicable ---missing word--- for their execution.
C. Verification.
A complaint is verified by an affidavit that the affiant has read the complaint and that the allegations there are true and correct of his personal knowledge.
A complaint based on "information and belief", or upon "knowledge, information and belief," shall be dismissed.
D. Certification Against Forum Shopping.
The complainant shall certify under oath in the complaint or other initiatory pleadings asserting a claim for ---missing word--- in a sworn certification annexed thereto and simultaneously ---missing word--- therewith: (a) that ---missing word--- not therefore commenced any action or filed any claim ---missing word---the same issues in any court, tribunal or quasi-judicial agency and, to the best of ---missing word--- knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should ---missing word---after learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the Board wherein his aforesaid complaint or initiatory pleading has been filed.
The following shall be attached to the complaint upon filing:
A. Proof of payment of fees;
B. In homeowners association cases, a certification issued by the chairman of the Election Committee in cases involving elections, or by the chairman of the Grievance Committee or any other committee constituted to resolve any matter in controversy at the association level, as the case may be, stating under oath that the parties have been invited to participate in the proceedings to settle the dispute but that no amicable settlement was reached; and
C. In the absence of an Election Committee and Grievance Committee or refused to issue the certification, an affidavit attesting to this fact shall be made and further stating that complainant has exhausted administrative remedies.
Non-compliance with any of the above requirements shall be a ground for the immediate dismissal of the complaint.
Section 3. Summons. - Upon filing of the complaint and the payment of correct filing fees and a determination that the complaint is sufficient in form and substance, the Arbiter shall forthwith issuer the corresponding summons to the respondent.
Summons, together with a copy of the complaint, shall be served by registered mail, unless the complainant desires to serve the summons through personal service after seeking written permission from the Arbiter.
Personal service shall be made to the respondent in person or by leaving a copy thereof with a competent person of suitable age and discretion, who appears or represents himself to be in charge of the respondents or his representative refuses to receive it, service of summons hall be effected by tendering or leaving a copy thereof in the address on record of the respondent. Thereafter, the server shall execute an affidavit of service and file the same with the Regional Office within three (3) days from date of service.
Section 4. Verified responsive pleading or answer. - The respondent shall file his verified responsive pleading or answer, together with the supporting documents within a non-extendible period of fifteen (15) days from receipt of the summons, furnishing complaint/s copies thereof.
All grounds for a motion to dismiss, counterclaim, or cross-claim must be pleaded or incorporated in the answer, otherwise these shall be deemed waived. A third party compliant maybe filed by respondent provided the grounds thereof are manifested in the answer. (a)
Section 5. Opposition to application for a permit, license or clearance. -
A. An opposition to an application for clearance, permit or license shall be treated as a complaint and all other provisions of these Rules on complaints shall, except as otherwise provided, apply to such oppositions.
B. An opposition to an application for locational clearance for projects of national and regional significance, if filed with the Regional Office, shall be elevated to the Board of Commissioners which shall assume original jurisdiction and resolve the opposition. All projects are presumed to be of local significance unless otherwise declared by the National Economic and Development Authority (NEDA).
C. The decision of the Board of Commissioners on oppositions to applications shall be immediately executory.
The rules pertaining to contested applications for license, permit or clearance shall apply to cases filed for the revocation thereof.
RULE V
PROHIBITED MOTIONS AND PLEADINGS
Section 1. Prohibited motions and pleadings. - The following shall be considered as prohibited motions and shall not be entertained:
A. Motion to dismiss, except for lack of jurisdiction;
B. Motion for extension of time to file answer;
C. Motion to admit answer filed beyond the reglementary period;
D. Motion for a bill of particulars;
E. Motion for reconsideration of any order or decision of the arbiter;
F. Reply except in answer to a compulsory counterclaim;
G. Fourth and subsequent party complaints; and
H. Petitions for certiorari, mandamus, prohibition or injunction from any interlocutory order of the Arbiter are also considered as prohibited pleadings.
Should one be filed, the same shall not interrupt the running of the proper prescriptive period and shall not bar the adjudication of the case. Said prohibited pleadings shall also be expunged from the records of the case.
RULE VI
DEFAULT
Section 1. Declaration of default. - If the respondent fails to answer or file a responsive pleading within fifteen (15) days from service of summons, the Arbiter, upon motion of the complainant with notice to the respondent, and with proof of such service, declare the respondent in default.
In an opposition to an application for a license, permit, or clearance filed with the Board or any of its Regional Field Offices, where the applicant falls to file his or its comment thereon within fifteen (15) days from service of notice, the case shall be deemed submitted for resolution.
Section 2. Motion to lift order of default and admit answer. - A motion to lift the order of default and admit the answer attached thereto, may be filed by the party declared in default, furnishing the opposing party with notice thereof, within five (5) days from receipt of the order of default.
The motion must be accompanied by an affidavit of merit showing fraud, accident, mistake or excusable negligence, and meritorious defense. Thereafter, the Arbiter shall resolve the motion.
Section 3. Effect of order of default. - The Arbiter, upon declaring a party in default, shall direct the complainant to file within fifteen (15) days his verified position paper and draft decision, together with supporting documents, after which the case shall be deemed submitted for resolution. The party declared in default shall be entitled to notice of subsequent proceedings but shall not be allowed to take part therein.
Where the order of default is lifted, the answer shall be admitted and the Arbiter shall order the respondent to file an answer and draft decision, together with all supporting evidence, within fifteen (15) days from the receipt of the order lifting the default. Thereafter, the case shall be deemed submitted for resolution.
Section 4. Review of judgement by default. - If a judgment by default is rendered, the party declared in default may file an appeal from the judgment in accordance with Rule XVI of these Rules. Whatever defense respondent may have against the complainant may still be raised in said appeal.
RULE VII
ELECTION CONTEST
Section 1. Cases covered. - The provisions of this Rule shall apply to election contests involving homeowners associations.
Section 2. Definition. - An election contest refers to any controversy or dispute involving title or claim to any elective office in a homeowners association, the validation of proxies, the manner and validity of elections, and the qualifications of candidates, including the proclamation of winners and assumption to the office of directors, trustees or other officers directly elected by the members of a homeowners' association where the articles of incorporation or by-law so provide.
Section 3. Filling of election contest. - In addition to the requirements in Sections 1 and 2, Rule IV, of these Rules, the complaint in an election contest must state that the case was files within ten (10) days from the date of the election. If the by-laws of the association do not provide for a procedure for resolution of the controversy, or within ten (10) days from receipt of the controversy by the association as provided in its by-laws.
Section 4. Designation of parties. - The party bringing the action shall be designated as the complainant, and the party against whom the action is brought shall be designated as the respondent.
Section 5. Duty of the Arbiter upon the filling of the complaint. - Upon finding that the complaint does not fall within the jurisdiction of the Board or the same is not sufficient in form and substance, the Arbiter, with the approval of the Regional Officer, shall dismiss the complaint within five (5) days from the date of raffle. Otherwise, the Arbiter shall issue the summons which shall be served, together with a copy of the complaint, in accordance with Section 3, Rule IV hereof.
Section 6. Answer. - Within ten (10) days from receipt of summons and a copy of the complaint, the respondent shall file his answer specifying the nature of his defense, and furnish a copy thereof upon the complainant.
Section 7. Effect of failure to answer. - If the respondent fails to file a verified responsive pleading or answer within the reglementary period, the Arbiter shall, after ten (10) days from the lapse of said period, render judgment as may be warranted by the allegations of the complaint, as well as by the affidavits, documentary and other evidence on record. In no case shall the Arbiter award a relief that is not prayed for in the complaint.
Section 8. Clarificatory conference. - At any time before the case is submitted for resolution, the Arbiter may examine election-related documents, or require submission of additional evidence to clarify factual issues pertinent to the resolution of the controversy.
Section 9. Decision. - The Arbiter, with the approval of the Regional Officer shall render a decision based on the pleadings, affidavits, documentary and other evidence on record within a period of thirty (30) days after the case is submitted for resolution.
Section 10. Appeals. - Any party aggrieved by the decision of the Regional Office may file an appeal therefrom in accordance with Rule XVI of these Rules. The decision of the Board shall be immediately executory.
RULE VIII
DERIVATIVE SUITS
Section 1. Derivative suit. - A member of a homeowners association in good standing may bring an action on behalf of the association provided that:
A. He was a member at the time the acts or transactions subject of the action occurred, and at the time the action was filed;
B. He exerted reasonable efforts, and alleges the same with particularity in the complaint, to exhaust all remedies available under the association's articles of incorporation, by-laws, laws, or rules for the purpose of obtaining the relief prayed for; and
C. A cause of action exists such as where the directors or officers of the association waste or dissipate the homeowners association funds, fraudulently dispose of homeowners association assets or perform ultra vires acts.
Section 2. Discontinuance. - A derivative action shall not be discontinued, compromised or settled without approval of the Regional Office or, when the case is on appeal, by the Board of Commissioners. During the pendency of the action, any sale, transfer, or assignment of rights or interest of the complaining member or homeowners association shall be subject to the approval of the Regional Office or the Board of Commissioners. If the Regional Office or Board of Commissioners determines that the interest of the members will be substantially affected by the discontinuance, compromise or settlement. It may direct that notice, by publication or otherwise, be given to the members whose interest will be prejudiced.
Section 3. Appeals. - Any party by the decision of the Regional Office may file an appeal therefrom in accordance with Rule XVI of these Rules.
RULE IX
INSPECTION OF THE BOOKS AND
RECORDS OF THE ASSOCIATION
Section 1. Coverage. - This shall apply to dispute involving solely the rights of members of homeowners associations to inspect association books and records and/or to be furnished with the financial statements or reports required by this Board, and, where applicable, those required under Sections 74 and 75 of the Corporation Code of the Philippines.
Section 2. Complaint. - In addition to the requirements in Section 1 and 2 of Rule IV, the complaint must also state the following:
A. The complaint is for the enforcement of complainant's right to inspect association books and records and/or to be furnished with financial statements and reports mentioned under Section 1 of this rule;
B. A demand for the inspections and photocopying of books and records and/or to be furnished with financial statements was made by the complaint upon the respondent;
C. The respondent refused to grant the demands of the complainant; and
D. The refusal of the respondent to grant the demands of the complainant is unjustified and illegal, stating the law and/or jurisprudence in support thereof.
Section 3. Duty of the Arbiter upon the filling of the complaint. - Within five (5) days from the date of raffle, the Arbiter, with the approval of the Regional Officer, shall dismiss the complaint upon finding that the case does not fall within the jurisdiction of the Board or the same is not sufficient in form and substance. Otherwise, the Arbiter shall order the issuance of summons which shall be served, together with a copy of the complaint, on the respondent.
Section 4. Answer. - The respondent shall file his answer to the complaint, serving a copy thereof upon the complainant, within ten (10) days from receipt of the summons and a copy of the complaint. In addition to the requirements in Rule III, the answer must state the following:
A. The grounds for the refusal of the respondent to grant the demands of the complainant;
B. The conditions or limitations on the exercise of the right to inspect, which should be imposed by the Arbiter, if the right to inspect is granted; and
C. The cost of inspection, including manpower and photocopying expenses, if the right to inspect and to be furnished copies of the documents is granted.
Section 5. Affidavits, documentary and other evidence. - The parties shall attach to the complaint and answer the affidavits of witnesses as well as documentary and other evidence in support thereof, if any.
Section 6. Effect of failure to answer. - If the respondent fails to file an answer within the reglementary period, the Arbiter shall render judgment as may be warranted by the allegations of the complaint, as well as the affidavits, documentary and other evidence on record within thirty (30) days from the expiration of the period to file answer. In no case shall the Arbiter award a relief not prayed for.
Section 7. Decision. - The Arbiter, with the approval of the Regional Officer, shall render a decision based on the pleadings, affidavits and documentary and other evidence attached thereto within (30) days from receipt of the last pleading. A decision ordering the respondent to allow the inspection of books and records and/or to furnish copies thereto shall also order the complainant to deposit the estimated cost of the manpower necessary to produce the books and records and the cost of copying, and state, in clear and categorical terms, the limitations and conditions to the exercise of the right allowed or enforced.
Section 8. Execution upon issuance of decisions, resolutions and orders. - All orders, resolutions and decisions under this Rule shall be immediately executory.
RULE X
MEDIATION AND AMICABLE SETTLEMENT
Section 1. Mandatory mediation. - The conduct of mediation in adversarial cases filed before the Regional Offices is mandatory. However, mediation shall still be available at any stage of the adjudication proceedings, even on appeal upon the request of both parties.
Section 2. Confidentially of mediation proceedings. - All information obtained during the mediation proceedings shall be confidential. Such confidentiality shall be governed by sections 9, 10, 11 and 12 of Republic Act No. 9285.
Section 3. Mediation conference. - Upon receipt of the answer, the arbiter shall summon the parties to a mediation conference and thereafter indorse the case to the mediation unit for assignment to a mediator.
Section 4. Role of the mediator. - Prior to the conduct of the proceedings, the mediator shall explain to the parties the objectives, nature and rules of the mediation process and, upon the parties' agreement to submit to the same, proceed to facilitate communication and negotiation in order to assist the parties in reaching a voluntary agreement regarding their dispute.
Section 5. Appearance of parties mandatory. - The appearance of parties in the mediation proceedings is mandatory. In case the parties cannot be personally present, their representative shall be clothed with the proper special power of attorney or board resolution, as the case may be, with full power to enter into a compromise agreement or settlement. Such authority shall be presented to the mediator before the commencement of the mediation proceedings.
Section 6. Effect of non-appearance in mediation conference. - When a party fails to appear personally or through a representative during the scheduled mediation conference, the party present may move for the termination of the conference and for the continuation of the proceedings before the arbiter. Otherwise, the mediator, motu proprio or upon request of the party present, shall reset the mediation conference and cause the issuance of a notice of such resetting.
Section 7. Compromise agreement; judgment upon compromise. - If a compromise is reached, the agreement shall be reduced in writing, signed by the parties and attested by the mediator who shall then return the case to the Arbiter together with the compromise agreement. Forthwith, the arbiter shall render judgment based on the compromise agreement which shall be immediately executor and not appealable. (a)
Section 8. Termination of mediation conference. - Where no compromise or settlement is reached within thirty (30) days from the date of the initial conference, the mediator shall terminate the mediation proceedings unless both parties agree to an extension which shall in no case exceed a period of fifteen (15) days. Upon termination, the mediator shall forthwith return the case to the Arbiter with a certificate attesting that Rule X, Section 1 of these Rules has been complied with.
RULE XI
CEASE AND DESIST ORDER
Section 1. Cease and Desist Order. - Upon filing of the complaint with application for a cease and desist order, the Arbiter shall, upon hearing and with the approval of the Regional Officer, transmit a copy of the records and submit a recommendation on the grant or denial of the application to the Board of Commissioners within five (5) days from the date of the last hearing.
Section 2. Grounds for the issuance of Cease and Desist Order. - The Board of Commissioners shall resolve the application for cease and desist order. No cease and desist order shall be issued unless it is established that:
A. The applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of such act or acts, either for a limited period or perpetually; or
B. The commission or continuance of such act complained during litigation, would cause grave and irreparable injury to the applicant; or
C. The adverse party is doing, threatening or is about to do, is procuring to be done, some act probably in violation of existing laws and/or regulations being implemented by this Board, or of applicant's rights respecting the subject of the action, tending to render the judgment ineffectual.
If the application for issuance of a cease and desist order is granted, the Board of Commissioners may require the applicant to file a bond to answer for whatever damages that the adverse party may sustain by reason of the order, if it should be later decided that the applicant is not entitled thereto.
Section 3. Effectivity of cease and desist order. - A cease and desist order shall be immediately executor and shall remain effective unless:
A. Lifted by the Board of Commissioner; or
B. The Regional Office renders a decision in the main case that the applicant is not entitled to injunctive relief.
Section 4. Motion for Reconsideration. - The party against whom a cease and desist order has been issued may file a motion for reconsideration within five (5) days from the receipt of the said order.
RULE XII
POWERS OF THE ARBITER AND REGIONAL OFFICER
Section 1. Powers of the Arbiter. - The Arbiter shall, under the supervision and control of the Regional Officer, have the following powers:
A. To hear and decide, subject to the approval of the Regional Officer, cases cognizable by this Board consistent with these Rules;
B. To issue subpoena ad testificandum and subpoena duces tecum;
C. To cite and/or declare any person in direct or indirect contempt in accordance with Article IV, Section 5, q), 1) and 2) of Executive Order No. 648 dated 07 February 1981 as amended by Executive Order No. 90 dated December 1986;
D. To impose fines and or other penalties for violation of these rules and related regulations, and any Order or Decision of HLURB;
E. To suspend or revoke, upon proper notice and hearing certificate of registration of the association upon any ground provided by law, rules and regulations of HLURB; and
F. To perform such other powers and functions as may be assigned by the Board.
Section 2. Powers of the Regional Officer. - The Regional Officer shall have the following powers:
A. To resolve contested applications for a license, or clearance except locational clearance applications for projects of national significance which shall be elevated to the Board of Commissioners;
B. To approve or disapprove the recommended order or decision of the Arbiter;
C. To decide cases cognizable by this Board, if he disapproves the Arbiter's recommended order or decision;
D. To reassign case as may be deemed necessary in the exigency of service; and
E. To perform such other powers as may be assigned by the Board.
Section 3. Incidental powers. - The HLURB shall have the following incidental powers:
A. To enlist the aid and support of any and all enforcement agencies of the government, civil or military; and
B. To exercise such other powers as may be implied, necessary or incidental to carry out the express powers granted to it or to achieve the objectives and purposes of the HLURB as provided for in its Charter.
RULE XIII
INHIBITION OF THE ARBITER AND/OR REGIONAL OFFICER
Section 1. Grounds for inhibition. - The Arbiter and/or Regional Officer shall inhibit himself from adjudicating a case on any of the following grounds:
A. When he, his spouse, child or relative within sixth degree of consanguinity or affinity is directly interested in the subject of the litigation;
B. When he is related to either of the parties or their counsel within the sixth degree of consanguinity or affinity; or
C. When he has participated as a counsel in the case.
Section 2. Voluntary inhibition. - Aside from the grounds mentioned above, the Arbiter and/or Regional Officer may voluntarily inhibit himself from adjudicating a case on any just and valid grounds, as set forth in Rule 137 of the Rules of Court.
Section 3. Procedure for inhibition. - The party shall file with the Regional Office a motion for inhibition stating the grounds with the evidence in support thereof. Thereafter, the Arbiter and/or Regional Officer shall rule on the motion.
Section 4. Reassignment of cases upon inhibition of Arbiter or Regional Officer. - In case the Arbiter inhibits himself from hearing or adjudicating a case, the Regional Officer shall reassign the case by raffle to another Arbiter. In the absence of other arbiters, the records of the case shall be transmitted to the Legal Services Group for assignment by raffle to an arbiter therein.
In case the Regional Officer inhibits or disqualifies himself from adjudicating a case, the records thereof shall be transmitted to the Legal Services Group for further proceedings and resolution. The decision of the Legal Services Group under this Rule is deemed the decision of the Regional Office.
RULE XIV
PROCEDURE IN REGIONAL OFFICES WITHOUT ARBITER
Section 1. Procedure in Regional Offices without Arbiter. - In case a Regional Office does not have an Arbiter, the following rules shall apply:
A. The Regional Officer or his authorized legal officer shall act as hearing officer who shall conduct the mediation conference and issue initial compulsory processes such as summons, notices and subpoenas;
B. When the case is submitted for resolution, the Regional Officer shall, with notice to the parties, transmit the records of the case to the Legal Services Group for resolution;
C. The Director of the Legal Services Group shall assign the case by raffle to an Arbiter therein for preparation of the decision. The Arbiter handling the case shall sign the decision subject to the approval of the Director of the Legal Services Group. The decision of the Legal Services Group under this Rule is deemed the decision of the Regional Office.
D. After the resolution of the case by the Legal Services Group, the records of the case shall be remanded to the Regional Office of origin for the release and service to the parties and execution of the decision.
RULE XV
POSITION PAPERS, DECISION,
AND INTERLOCUTORY ORDERS
Section 1. Position paper and draft decision. - Where the mediation is terminated and the case is returned for continuation of the adjudication proceedings, the Arbiter shall issue an order directing the parties to simultaneously file within thirty (30) days from receipt thereof their respective position papers, jointly verified by the parties and their respective counsels, attaching thereto the affidavits of their witnesses and documentary evidence, as well as their draft decisions as provided for by Executive Order No. 26.
Said position papers and draft decisions shall state clearly and distinctly the facts, the issues and applicable laws and jurisprudence on which they are based.
Section 2. Ocular inspection and/or clarificatory questions. - At any time before the case is submitted for resolution, the Arbiter may require an ocular inspection of the project or the site of the homeowners association, examination of the records of the landowner or the developer, or the corporate records of the association, or the presentation of witnesses in the presence of the parties solely for purposes of clarification or eliciting additional information on the evidence on record.
Section 3. Summary resolution. - With or without the position paper and draft decision, the Arbiter shall resolve the case on the basis of the pleadings and pertinent records of the case within thirty (30) days after the lapse of the period for filing the same.
Section 4. Decisions and orders. - All decisions and orders issued by the Arbiter shall be subject to the approval of the Regional Officer. All pending motions, including any application for issuance of a cease and desist order filed after the submission of the case for resolution, shall be resolved in the decision.
Section 5. Interlocutory orders. - All interlocutory orders shall not be appealable.
RULE XVI
APPEAL
Section 1. Appeal memorandum. - Any party aggrieved by the decision of the Regional Office on any legal ground and upon payment of the appeal fee, may appeal the same by filing with the Regional Office a verified appeal memorandum in three (3) copies within fifteen (15) days from receipt of the assailed decision.
Within ten (10) days from receipt of the appeal memorandum, the Regional Office shall elevate the records of the case to the Board of Commissioners together with the summary of proceedings.
Section 2. Contents of appeal memorandum. - The appeal memorandum shall state the date when the appellant received a copy of the decision, the grounds relied upon, the arguments in support thereof, and the relief prayed for.
In addition, the appellant shall attach to the appeal memorandum the following:
A. Affidavit of service of the appeal memorandum executed by the appellant, which substantially complies with Supreme Court Circular No. 19-91, stating in essence the date of such service and copies of the registry return receipt shall likewise be attached;
B. A verified certification executed by the appellant in accord with Supreme Court Circular No. 28-91 as amended, attesting that they have not commenced a similar, related or any other proceeding involving the same subject matter or causes of action before any other court or administrative tribunal in the Philippines; and
C. In case of money judgment, an appeal bond in the form of a cash bond or surety bond satisfactory to the Board equivalent to the amount of the award excluding interests, damages and attorney's fees. A surety bond shall be issued by a reputable bonding company duly accredited by the Supreme Court, and shall be accompanied by original or certified true copies of the following:
a. A joint declaration under oath by the appellant and the bonding company, attesting that the bond posted is genuine, and shall be in effect until final disposition of the case;
b. An indemnity agreement between the appellant and bonding company;
c. Proof of security deposit or collateral securing the bond: provided, that a check shall not be considered as an acceptable security;
d. Certificate of authority from the Insurance Commission;
e. Certificate of registration from the Securities and Exchange Commission;
f. Certificate of authority to transact surety business from the Office of the President;
g. Certificate of accreditation and authority from the Supreme Court; and
h. Notarized board resolution or secretary's certificate from the bonding company showing its authorized signatories and their specimen signatures.
A cash or surety bond shall be valid and effective from the date of deposit or posting until the case is finally decided, resolved or terminated, or the award satisfied. This condition shall be deemed incorporated in the terms and conditions of the surety bond, and shall be binding on the appellant and the bonding company.
The appellant shall furnish the appellee with a certified true copy of the said surety bond with all the above-mentioned supporting documents. The appellee shall verify the regularity and genuineness thereof and immediately report any irregularity to the Board. Upon verification by the Board that the bond is irregular or not genuine, the Board shall cause the immediate dismissal of the appeal, and censure or cite in contempt the responsible parties and their counsels, or subject them to reasonable fine or penalty.
No motion to reduce bond shall be entertained except on meritorious grounds, and only upon the posting of a bond in a reasonable amount in relation to the monetary award. The mere filing of a motion to reduce bond without complying with the requisites in the preceding paragraphs shall not stop the running of the period to perfect an appeal.
Section 3. Counter-memorandum. - Upon receipt of a copy of the appellant's memorandum and without waiting for any separate order from the Board of Commissioners, the appellee shall file a counter-memorandum in three (3) copies within a non-extendible period of fifteen (15) days from receipt of the appellant's memorandum, with proof of service to the appellant.1avvphil
Section 4. Effect of filing an appeal. - The filing of an appeal shall have the effect of automatically staying the execution of any decision or order of the Arbiter or Regional Officer, unless otherwise provided in the Rules.
Section 5. Prohibited pleadings in appeal proceedings. - Reply and rejoinder memorandum are prohibited and shall not be filed during the pendency of the appeal before the Board of Commissioners.
Section 5. Prohibited pleadings in appeal proceedings. - Reply and rejoinder memorandum are prohibited and shall not be filed during the pendency of the appeal before the Board of Commissioners.
RULE XVII
DISMISSAL OF THE APPEAL
Section 1. Dismissal of the Appeal. - The appeal shall be dismissed on any of the following grounds:
A. Filing of the appeal beyond the reglementary period;
B. Joint motion of the parties to dismiss the appeal;
C. Withdrawal of the appeal;
D. Failure to pay appeal fees;
E. Failure to post appeal bond as required in Section 2 (C) of Rule XVI;
F. Failure to furnish the other party or parties a copy of the appeal memorandum; and
G. Failure to comply with the orders of the Board and/or the requirements of these Rules.
RULE XVIII
INCIDENTAL PROCEEDINGS AND REMEDIES PENDING APPEAL
Section 1. Admissibility of new evidence on appeal. - The Board may, in the evaluation of the appeal, order reception of evidence or conduct further proceedings, or take judicial notice of other records of the Board, pursuant to Section 22 of Chapter 4, Book VII, of Executive Order No. 292, the Administrative Code of 1987.
RULE XIX
SUBMISSION AND RESOLUTION
Section 1. Submission of draft decision. - The parties shall submit their draft decision within the same fifteen (15) day-period for the filing of the appeal memorandum and counter-memorandum. With or without a draft decision, the appeal shall be submitted for resolution.
Section 2. Resolution. - The appeal shall be decided by the Board of Commissioners sitting en banc or by the division in accordance with the internal rules of the Board of Commissioners.
RULE XX
MOTION FOR RECONSIDERATION
AND APPEAL FROM BOARD DECISIONS
Section 1. Motion for reconsideration. - Within the period for filing an appeal from a decision, order or ruling of the Board of Commissioners, any aggrieved party may file a motion for reconsideration with the Board only on the following grounds:
A. Serious errors of law which would result in grave injustice if not corrected; or
B. Newly discovered evidence.
Only one (1) motion for reconsideration shall be entertained.
Motions for reconsideration shall be assigned to the division from which the decision, order or ruling originated.
The filing of a motion for reconsideration shall toll the fifteen (15)- day reglementary period for filling an appeal with the Office of the President and the pendency of the motion shall suspend the running of the said period to appeal. However, if the motion for reconsideration is denied, the movant shall have only the remainder of said period to file his appeal, which shall in no case be less than five (5) days, computed from receipt of the notice of the denial.
Section 2. Opposition. - Any opposition to the motion for reconsideration shall, without waiting for any separate order from the Board of Commissioners, be filed within a non-extendible period of five (5) days from receipt of a copy of said notion.
Section 3. Appeal. - Any party may, upon notice to the Board of Commissioners and the other party, appeal from a decision rendered by the Board of Commissioners to the Office of the President within fifteen (15) days from receipt thereof, in accordance with P.D. No. 1344 and A.O. No. 18, series of 1987.
RULE XXI
FINALITY OF JUDGMENT
Section 1. Finality of Judgment. - Decisions and orders of the regional Office and the Board of Commissioners shall deemed final and executory in accordance with the following:
A. Unless otherwise provided, a decision or resolution of the Regional Office shall become final and executor fifteen (15) days after the date of receipt thereof by the parties and no appeal has been filed within the said period;
B. In the case of decision and resolutions of the Board of Commissioners, the same shall become final and executor after fifteen (15) days after the receipt thereof by the parties and no appeal or motion for reconsideration has been filed within the said period.
RULE XXII
EXECUTION
Section 1. Execution of decisions. - Execution shall issue only upon motion of an interested party upon a final order or decision. A motion for execution shall be accompanied by an entry of judgment of certificate or order of finality issued by the Board of Commissioners, the Office of the President, the Court of Appeals or the Supreme Court, as the case may be.
Section 2. Writs of execution. - All writs of execution shall be issued by the Regional Officer and directed to the provincial or city sheriff concerned.
Section 3. Prohibited pleadings in execution proceedings. - The following shall be considered as prohibited in execution proceedings in execution proceedings and shall not be entertained:
A. Any motion that effectively questions or seeks the modification of the final judgment or decision; and
B. Pleadings in the guise of an appeal on collateral issues or questions deemed already passed upon or considered in the resolution of the case or incident.
Section 4. Resolution of incidents of execution. All incidents pertaining to the implementation of the final and executory decision shall be resolved by the Regional Office and no further appeals therefrom shall be entertained by the Regional Office or the Board of Commissioners.
RULE XXIII
LEGAL FEES
Section 1. Legal fees. - All legal fees relating to adjudicating cases shall be in accordance with the schedule of fees approved from time to time by the Board of Commissioners.
Section 2. Pauper litigants exempt from the payment of legal fees. - A pauper litigant whose gross income does not exceed six thousand pesos (P6, 000.00) a month or as may from time to time be determined by the Board of Commissioners and who does not own any real property with a fair market value as stated in the current tax declaration of more than three hundred pesos (P300, 000.00) shall be exempt from the payment of the prescribed legal fees.
The legal fees shall be a lien on any judgment rendered in the case favorably to the pauper litigant, unless the Board otherwise provides. To be entitled to the exemption herein provided, the pauper litigant shall execute an affidavit that his gross income does not exceed the income ceiling above-mentioned, and he does not own any real property with the assessed value aforementioned.
Any falsity in the affidavit of a party purporting to be a pauper litigant shall be sufficient cause to strike out the pleading of the party claiming to be pauper litigant, without prejudice to whatever criminal liability may have incurred.
Section 3. Government exemption from fees. - The Republic of the Philippines, its agencies and instrumentalities, are exempt from paying the legal fees provided herein. Local governments and government -owned or controlled corporations with or without independent charters are not exempt from paying such fees.
RULE XXIV
MISCELLANEOUS PROVISIONS
Section 1. Repealing clause. - These Rules repeal the 2004 HLURB Rules of Procedures, as amended, and all other resolution and administrative issuances or such parts thereof as are inconsistent herewith.
Section 2. Effectivity. - These rules shall take effect fifteen (15) days from publication in the Official Gazette or in a newspaper of general circulation. Proceedings of cases then pending shall be governed by these Rules, except when in the opinion of the Board their application would be impractical or would work injustice, in which event the former rules or procedure shall apply.
APPROVED this 16th day of December 2009, Pasay City.
(Sgd.) HON. NOLI L. DE CASTRO
Vice-President of the Philippines and HUDCC Chairman
(Sgd.) LINDA L. MALENAD HORNILLA
Undercecretary, DOJ (Sgd.) ROMULO Q. FABUL
Chief Executive Oficer and Commissioner
(Sgd.) AUGUSTO B. SANTOS
Deputy Director-General, NEDA (Sgd.) TERESITA A. DISIERTO
Commissioner
(Sgd.) AUSTERE A. PANADERO
Undersecretary, DILG (Sgd.) ARTURO M. DUBLADO
Commissioner
(Sgd.) JOEL I. JACOB
DPWH (Sgd.) RIA CORAZON A. GOLEZ-CABRERA
Commissioner
(Sgd.) CHARITO B. LANSANG
Board Secretary
Source: PDI April 24, 2010 The Lawphil Project - Arellano Law Foundation
RESOLUTION No. 851
Series of 2009
ADOPTING THE 2009 REVISED RULES OF PROCEDURE OF THE
HOUSING AND LAND USE REGULATORY BOARD
RULE I
TITLE AND CONSTRUCTION
Section 1. Title. - These Rules shall be known as the 2009 Revised Rules of Procedure, hereinafter referred to as the "Rules", of the Housing and Land Use Regulatory Board or "Board" for brevity.
Section 2. Construction. - The Rules shall be liberally constructed in order to promote the general welfare, and to assist the parties in obtaining a just, speedy and inexpensive determination of every action, application or proceeding.
Section 3. Nature of the proceedings. - Proceedings before the Board shall be summary in nature. The provisions of the Rules of Court shall not be applicable except in a suppletory character.
RULE II
PARTIES TO A COMPLAINT
Section 1. Complaint and respondent. - In any complaint filed before the Board, the person filing the same shall be called the complaint, while the person against whom it is filed shall be called the respondent.
RULE III
PARTIES TO A DISPUTED APPLICATION
Section 1. Applicant and oppositor. - Any person, natural or juridical, or entity authorized by law, who files an application before the Board for the issuance of any license, permit or clearance, or the authority to exercise any right or privilege granted under any law, proclamation, decree or executive order administered or implemented by the Board, shall be called the applicant.
Any person, natural or juridical, or entity authorized by law opposes or claims an adverse right or interest in any application shall be called the oppositor.
RULE IV
COMMENCEMENT OF ACTION, SUMMONS AND ANSWER
Section 1. When action is deemed commenced. - An action is deemed commenced upon the filing of a verified complaint with the Regional Office of the Board, in three (3) copies and in such number of copies as there are respondents, with supporting documents and upon payment of the required filing fees.
Section 2. Parts of the complaint. -
A. The body.
The body of the complaint sets forth the full name of the real parties in interest, whether natural or juridical, showing capacity to sue and to be sued, status, mailing address, designation, the allegations of the party's claims, the reliefs prayed for, and the date of the pleading.
B. Signature, address, and representation.
Every complaint must be signed by the party or his duly authorized counsel, stating in either case his address which should not be a post office box.
A lawyer appearing for a party is presumed to be properly authorized for that purpose. In every case, he shall indicate in his pleadings and motions his Roll of Attorney's Number, current Professional Tax Receipt Number, IBP Official Receipt Number or IBP Lifetime Membership Number and MCLE Compliance or Exemption Certificate Number and their date of issue. The signature of counsel constitutes a certification by him that he has read the complaint; that to the best of his knowledge and information there is good ground to support it; and that it is not interposed for delay.
A non-lawyer who represents a party shall attach to the complaint a special power of attorney authorizing him to file the case and an affidavit duly executed by the party represented ---missing word---. stating the reason why he is physically incapable of personally prosecuting ---missing word---. In case the real party-in-interest is out of the country, these instruments must be ---missing word--- or authenticated by the consular office concerned and comply with other applicable ---missing word--- for their execution.
C. Verification.
A complaint is verified by an affidavit that the affiant has read the complaint and that the allegations there are true and correct of his personal knowledge.
A complaint based on "information and belief", or upon "knowledge, information and belief," shall be dismissed.
D. Certification Against Forum Shopping.
The complainant shall certify under oath in the complaint or other initiatory pleadings asserting a claim for ---missing word--- in a sworn certification annexed thereto and simultaneously ---missing word--- therewith: (a) that ---missing word--- not therefore commenced any action or filed any claim ---missing word---the same issues in any court, tribunal or quasi-judicial agency and, to the best of ---missing word--- knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should ---missing word---after learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the Board wherein his aforesaid complaint or initiatory pleading has been filed.
The following shall be attached to the complaint upon filing:
A. Proof of payment of fees;
B. In homeowners association cases, a certification issued by the chairman of the Election Committee in cases involving elections, or by the chairman of the Grievance Committee or any other committee constituted to resolve any matter in controversy at the association level, as the case may be, stating under oath that the parties have been invited to participate in the proceedings to settle the dispute but that no amicable settlement was reached; and
C. In the absence of an Election Committee and Grievance Committee or refused to issue the certification, an affidavit attesting to this fact shall be made and further stating that complainant has exhausted administrative remedies.
Non-compliance with any of the above requirements shall be a ground for the immediate dismissal of the complaint.
Section 3. Summons. - Upon filing of the complaint and the payment of correct filing fees and a determination that the complaint is sufficient in form and substance, the Arbiter shall forthwith issuer the corresponding summons to the respondent.
Summons, together with a copy of the complaint, shall be served by registered mail, unless the complainant desires to serve the summons through personal service after seeking written permission from the Arbiter.
Personal service shall be made to the respondent in person or by leaving a copy thereof with a competent person of suitable age and discretion, who appears or represents himself to be in charge of the respondents or his representative refuses to receive it, service of summons hall be effected by tendering or leaving a copy thereof in the address on record of the respondent. Thereafter, the server shall execute an affidavit of service and file the same with the Regional Office within three (3) days from date of service.
Section 4. Verified responsive pleading or answer. - The respondent shall file his verified responsive pleading or answer, together with the supporting documents within a non-extendible period of fifteen (15) days from receipt of the summons, furnishing complaint/s copies thereof.
All grounds for a motion to dismiss, counterclaim, or cross-claim must be pleaded or incorporated in the answer, otherwise these shall be deemed waived. A third party compliant maybe filed by respondent provided the grounds thereof are manifested in the answer. (a)
Section 5. Opposition to application for a permit, license or clearance. -
A. An opposition to an application for clearance, permit or license shall be treated as a complaint and all other provisions of these Rules on complaints shall, except as otherwise provided, apply to such oppositions.
B. An opposition to an application for locational clearance for projects of national and regional significance, if filed with the Regional Office, shall be elevated to the Board of Commissioners which shall assume original jurisdiction and resolve the opposition. All projects are presumed to be of local significance unless otherwise declared by the National Economic and Development Authority (NEDA).
C. The decision of the Board of Commissioners on oppositions to applications shall be immediately executory.
The rules pertaining to contested applications for license, permit or clearance shall apply to cases filed for the revocation thereof.
RULE V
PROHIBITED MOTIONS AND PLEADINGS
Section 1. Prohibited motions and pleadings. - The following shall be considered as prohibited motions and shall not be entertained:
A. Motion to dismiss, except for lack of jurisdiction;
B. Motion for extension of time to file answer;
C. Motion to admit answer filed beyond the reglementary period;
D. Motion for a bill of particulars;
E. Motion for reconsideration of any order or decision of the arbiter;
F. Reply except in answer to a compulsory counterclaim;
G. Fourth and subsequent party complaints; and
H. Petitions for certiorari, mandamus, prohibition or injunction from any interlocutory order of the Arbiter are also considered as prohibited pleadings.
Should one be filed, the same shall not interrupt the running of the proper prescriptive period and shall not bar the adjudication of the case. Said prohibited pleadings shall also be expunged from the records of the case.
RULE VI
DEFAULT
Section 1. Declaration of default. - If the respondent fails to answer or file a responsive pleading within fifteen (15) days from service of summons, the Arbiter, upon motion of the complainant with notice to the respondent, and with proof of such service, declare the respondent in default.
In an opposition to an application for a license, permit, or clearance filed with the Board or any of its Regional Field Offices, where the applicant falls to file his or its comment thereon within fifteen (15) days from service of notice, the case shall be deemed submitted for resolution.
Section 2. Motion to lift order of default and admit answer. - A motion to lift the order of default and admit the answer attached thereto, may be filed by the party declared in default, furnishing the opposing party with notice thereof, within five (5) days from receipt of the order of default.
The motion must be accompanied by an affidavit of merit showing fraud, accident, mistake or excusable negligence, and meritorious defense. Thereafter, the Arbiter shall resolve the motion.
Section 3. Effect of order of default. - The Arbiter, upon declaring a party in default, shall direct the complainant to file within fifteen (15) days his verified position paper and draft decision, together with supporting documents, after which the case shall be deemed submitted for resolution. The party declared in default shall be entitled to notice of subsequent proceedings but shall not be allowed to take part therein.
Where the order of default is lifted, the answer shall be admitted and the Arbiter shall order the respondent to file an answer and draft decision, together with all supporting evidence, within fifteen (15) days from the receipt of the order lifting the default. Thereafter, the case shall be deemed submitted for resolution.
Section 4. Review of judgement by default. - If a judgment by default is rendered, the party declared in default may file an appeal from the judgment in accordance with Rule XVI of these Rules. Whatever defense respondent may have against the complainant may still be raised in said appeal.
RULE VII
ELECTION CONTEST
Section 1. Cases covered. - The provisions of this Rule shall apply to election contests involving homeowners associations.
Section 2. Definition. - An election contest refers to any controversy or dispute involving title or claim to any elective office in a homeowners association, the validation of proxies, the manner and validity of elections, and the qualifications of candidates, including the proclamation of winners and assumption to the office of directors, trustees or other officers directly elected by the members of a homeowners' association where the articles of incorporation or by-law so provide.
Section 3. Filling of election contest. - In addition to the requirements in Sections 1 and 2, Rule IV, of these Rules, the complaint in an election contest must state that the case was files within ten (10) days from the date of the election. If the by-laws of the association do not provide for a procedure for resolution of the controversy, or within ten (10) days from receipt of the controversy by the association as provided in its by-laws.
Section 4. Designation of parties. - The party bringing the action shall be designated as the complainant, and the party against whom the action is brought shall be designated as the respondent.
Section 5. Duty of the Arbiter upon the filling of the complaint. - Upon finding that the complaint does not fall within the jurisdiction of the Board or the same is not sufficient in form and substance, the Arbiter, with the approval of the Regional Officer, shall dismiss the complaint within five (5) days from the date of raffle. Otherwise, the Arbiter shall issue the summons which shall be served, together with a copy of the complaint, in accordance with Section 3, Rule IV hereof.
Section 6. Answer. - Within ten (10) days from receipt of summons and a copy of the complaint, the respondent shall file his answer specifying the nature of his defense, and furnish a copy thereof upon the complainant.
Section 7. Effect of failure to answer. - If the respondent fails to file a verified responsive pleading or answer within the reglementary period, the Arbiter shall, after ten (10) days from the lapse of said period, render judgment as may be warranted by the allegations of the complaint, as well as by the affidavits, documentary and other evidence on record. In no case shall the Arbiter award a relief that is not prayed for in the complaint.
Section 8. Clarificatory conference. - At any time before the case is submitted for resolution, the Arbiter may examine election-related documents, or require submission of additional evidence to clarify factual issues pertinent to the resolution of the controversy.
Section 9. Decision. - The Arbiter, with the approval of the Regional Officer shall render a decision based on the pleadings, affidavits, documentary and other evidence on record within a period of thirty (30) days after the case is submitted for resolution.
Section 10. Appeals. - Any party aggrieved by the decision of the Regional Office may file an appeal therefrom in accordance with Rule XVI of these Rules. The decision of the Board shall be immediately executory.
RULE VIII
DERIVATIVE SUITS
Section 1. Derivative suit. - A member of a homeowners association in good standing may bring an action on behalf of the association provided that:
A. He was a member at the time the acts or transactions subject of the action occurred, and at the time the action was filed;
B. He exerted reasonable efforts, and alleges the same with particularity in the complaint, to exhaust all remedies available under the association's articles of incorporation, by-laws, laws, or rules for the purpose of obtaining the relief prayed for; and
C. A cause of action exists such as where the directors or officers of the association waste or dissipate the homeowners association funds, fraudulently dispose of homeowners association assets or perform ultra vires acts.
Section 2. Discontinuance. - A derivative action shall not be discontinued, compromised or settled without approval of the Regional Office or, when the case is on appeal, by the Board of Commissioners. During the pendency of the action, any sale, transfer, or assignment of rights or interest of the complaining member or homeowners association shall be subject to the approval of the Regional Office or the Board of Commissioners. If the Regional Office or Board of Commissioners determines that the interest of the members will be substantially affected by the discontinuance, compromise or settlement. It may direct that notice, by publication or otherwise, be given to the members whose interest will be prejudiced.
Section 3. Appeals. - Any party by the decision of the Regional Office may file an appeal therefrom in accordance with Rule XVI of these Rules.
RULE IX
INSPECTION OF THE BOOKS AND
RECORDS OF THE ASSOCIATION
Section 1. Coverage. - This shall apply to dispute involving solely the rights of members of homeowners associations to inspect association books and records and/or to be furnished with the financial statements or reports required by this Board, and, where applicable, those required under Sections 74 and 75 of the Corporation Code of the Philippines.
Section 2. Complaint. - In addition to the requirements in Section 1 and 2 of Rule IV, the complaint must also state the following:
A. The complaint is for the enforcement of complainant's right to inspect association books and records and/or to be furnished with financial statements and reports mentioned under Section 1 of this rule;
B. A demand for the inspections and photocopying of books and records and/or to be furnished with financial statements was made by the complaint upon the respondent;
C. The respondent refused to grant the demands of the complainant; and
D. The refusal of the respondent to grant the demands of the complainant is unjustified and illegal, stating the law and/or jurisprudence in support thereof.
Section 3. Duty of the Arbiter upon the filling of the complaint. - Within five (5) days from the date of raffle, the Arbiter, with the approval of the Regional Officer, shall dismiss the complaint upon finding that the case does not fall within the jurisdiction of the Board or the same is not sufficient in form and substance. Otherwise, the Arbiter shall order the issuance of summons which shall be served, together with a copy of the complaint, on the respondent.
Section 4. Answer. - The respondent shall file his answer to the complaint, serving a copy thereof upon the complainant, within ten (10) days from receipt of the summons and a copy of the complaint. In addition to the requirements in Rule III, the answer must state the following:
A. The grounds for the refusal of the respondent to grant the demands of the complainant;
B. The conditions or limitations on the exercise of the right to inspect, which should be imposed by the Arbiter, if the right to inspect is granted; and
C. The cost of inspection, including manpower and photocopying expenses, if the right to inspect and to be furnished copies of the documents is granted.
Section 5. Affidavits, documentary and other evidence. - The parties shall attach to the complaint and answer the affidavits of witnesses as well as documentary and other evidence in support thereof, if any.
Section 6. Effect of failure to answer. - If the respondent fails to file an answer within the reglementary period, the Arbiter shall render judgment as may be warranted by the allegations of the complaint, as well as the affidavits, documentary and other evidence on record within thirty (30) days from the expiration of the period to file answer. In no case shall the Arbiter award a relief not prayed for.
Section 7. Decision. - The Arbiter, with the approval of the Regional Officer, shall render a decision based on the pleadings, affidavits and documentary and other evidence attached thereto within (30) days from receipt of the last pleading. A decision ordering the respondent to allow the inspection of books and records and/or to furnish copies thereto shall also order the complainant to deposit the estimated cost of the manpower necessary to produce the books and records and the cost of copying, and state, in clear and categorical terms, the limitations and conditions to the exercise of the right allowed or enforced.
Section 8. Execution upon issuance of decisions, resolutions and orders. - All orders, resolutions and decisions under this Rule shall be immediately executory.
RULE X
MEDIATION AND AMICABLE SETTLEMENT
Section 1. Mandatory mediation. - The conduct of mediation in adversarial cases filed before the Regional Offices is mandatory. However, mediation shall still be available at any stage of the adjudication proceedings, even on appeal upon the request of both parties.
Section 2. Confidentially of mediation proceedings. - All information obtained during the mediation proceedings shall be confidential. Such confidentiality shall be governed by sections 9, 10, 11 and 12 of Republic Act No. 9285.
Section 3. Mediation conference. - Upon receipt of the answer, the arbiter shall summon the parties to a mediation conference and thereafter indorse the case to the mediation unit for assignment to a mediator.
Section 4. Role of the mediator. - Prior to the conduct of the proceedings, the mediator shall explain to the parties the objectives, nature and rules of the mediation process and, upon the parties' agreement to submit to the same, proceed to facilitate communication and negotiation in order to assist the parties in reaching a voluntary agreement regarding their dispute.
Section 5. Appearance of parties mandatory. - The appearance of parties in the mediation proceedings is mandatory. In case the parties cannot be personally present, their representative shall be clothed with the proper special power of attorney or board resolution, as the case may be, with full power to enter into a compromise agreement or settlement. Such authority shall be presented to the mediator before the commencement of the mediation proceedings.
Section 6. Effect of non-appearance in mediation conference. - When a party fails to appear personally or through a representative during the scheduled mediation conference, the party present may move for the termination of the conference and for the continuation of the proceedings before the arbiter. Otherwise, the mediator, motu proprio or upon request of the party present, shall reset the mediation conference and cause the issuance of a notice of such resetting.
Section 7. Compromise agreement; judgment upon compromise. - If a compromise is reached, the agreement shall be reduced in writing, signed by the parties and attested by the mediator who shall then return the case to the Arbiter together with the compromise agreement. Forthwith, the arbiter shall render judgment based on the compromise agreement which shall be immediately executor and not appealable. (a)
Section 8. Termination of mediation conference. - Where no compromise or settlement is reached within thirty (30) days from the date of the initial conference, the mediator shall terminate the mediation proceedings unless both parties agree to an extension which shall in no case exceed a period of fifteen (15) days. Upon termination, the mediator shall forthwith return the case to the Arbiter with a certificate attesting that Rule X, Section 1 of these Rules has been complied with.
RULE XI
CEASE AND DESIST ORDER
Section 1. Cease and Desist Order. - Upon filing of the complaint with application for a cease and desist order, the Arbiter shall, upon hearing and with the approval of the Regional Officer, transmit a copy of the records and submit a recommendation on the grant or denial of the application to the Board of Commissioners within five (5) days from the date of the last hearing.
Section 2. Grounds for the issuance of Cease and Desist Order. - The Board of Commissioners shall resolve the application for cease and desist order. No cease and desist order shall be issued unless it is established that:
A. The applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of such act or acts, either for a limited period or perpetually; or
B. The commission or continuance of such act complained during litigation, would cause grave and irreparable injury to the applicant; or
C. The adverse party is doing, threatening or is about to do, is procuring to be done, some act probably in violation of existing laws and/or regulations being implemented by this Board, or of applicant's rights respecting the subject of the action, tending to render the judgment ineffectual.
If the application for issuance of a cease and desist order is granted, the Board of Commissioners may require the applicant to file a bond to answer for whatever damages that the adverse party may sustain by reason of the order, if it should be later decided that the applicant is not entitled thereto.
Section 3. Effectivity of cease and desist order. - A cease and desist order shall be immediately executor and shall remain effective unless:
A. Lifted by the Board of Commissioner; or
B. The Regional Office renders a decision in the main case that the applicant is not entitled to injunctive relief.
Section 4. Motion for Reconsideration. - The party against whom a cease and desist order has been issued may file a motion for reconsideration within five (5) days from the receipt of the said order.
RULE XII
POWERS OF THE ARBITER AND REGIONAL OFFICER
Section 1. Powers of the Arbiter. - The Arbiter shall, under the supervision and control of the Regional Officer, have the following powers:
A. To hear and decide, subject to the approval of the Regional Officer, cases cognizable by this Board consistent with these Rules;
B. To issue subpoena ad testificandum and subpoena duces tecum;
C. To cite and/or declare any person in direct or indirect contempt in accordance with Article IV, Section 5, q), 1) and 2) of Executive Order No. 648 dated 07 February 1981 as amended by Executive Order No. 90 dated December 1986;
D. To impose fines and or other penalties for violation of these rules and related regulations, and any Order or Decision of HLURB;
E. To suspend or revoke, upon proper notice and hearing certificate of registration of the association upon any ground provided by law, rules and regulations of HLURB; and
F. To perform such other powers and functions as may be assigned by the Board.
Section 2. Powers of the Regional Officer. - The Regional Officer shall have the following powers:
A. To resolve contested applications for a license, or clearance except locational clearance applications for projects of national significance which shall be elevated to the Board of Commissioners;
B. To approve or disapprove the recommended order or decision of the Arbiter;
C. To decide cases cognizable by this Board, if he disapproves the Arbiter's recommended order or decision;
D. To reassign case as may be deemed necessary in the exigency of service; and
E. To perform such other powers as may be assigned by the Board.
Section 3. Incidental powers. - The HLURB shall have the following incidental powers:
A. To enlist the aid and support of any and all enforcement agencies of the government, civil or military; and
B. To exercise such other powers as may be implied, necessary or incidental to carry out the express powers granted to it or to achieve the objectives and purposes of the HLURB as provided for in its Charter.
RULE XIII
INHIBITION OF THE ARBITER AND/OR REGIONAL OFFICER
Section 1. Grounds for inhibition. - The Arbiter and/or Regional Officer shall inhibit himself from adjudicating a case on any of the following grounds:
A. When he, his spouse, child or relative within sixth degree of consanguinity or affinity is directly interested in the subject of the litigation;
B. When he is related to either of the parties or their counsel within the sixth degree of consanguinity or affinity; or
C. When he has participated as a counsel in the case.
Section 2. Voluntary inhibition. - Aside from the grounds mentioned above, the Arbiter and/or Regional Officer may voluntarily inhibit himself from adjudicating a case on any just and valid grounds, as set forth in Rule 137 of the Rules of Court.
Section 3. Procedure for inhibition. - The party shall file with the Regional Office a motion for inhibition stating the grounds with the evidence in support thereof. Thereafter, the Arbiter and/or Regional Officer shall rule on the motion.
Section 4. Reassignment of cases upon inhibition of Arbiter or Regional Officer. - In case the Arbiter inhibits himself from hearing or adjudicating a case, the Regional Officer shall reassign the case by raffle to another Arbiter. In the absence of other arbiters, the records of the case shall be transmitted to the Legal Services Group for assignment by raffle to an arbiter therein.
In case the Regional Officer inhibits or disqualifies himself from adjudicating a case, the records thereof shall be transmitted to the Legal Services Group for further proceedings and resolution. The decision of the Legal Services Group under this Rule is deemed the decision of the Regional Office.
RULE XIV
PROCEDURE IN REGIONAL OFFICES WITHOUT ARBITER
Section 1. Procedure in Regional Offices without Arbiter. - In case a Regional Office does not have an Arbiter, the following rules shall apply:
A. The Regional Officer or his authorized legal officer shall act as hearing officer who shall conduct the mediation conference and issue initial compulsory processes such as summons, notices and subpoenas;
B. When the case is submitted for resolution, the Regional Officer shall, with notice to the parties, transmit the records of the case to the Legal Services Group for resolution;
C. The Director of the Legal Services Group shall assign the case by raffle to an Arbiter therein for preparation of the decision. The Arbiter handling the case shall sign the decision subject to the approval of the Director of the Legal Services Group. The decision of the Legal Services Group under this Rule is deemed the decision of the Regional Office.
D. After the resolution of the case by the Legal Services Group, the records of the case shall be remanded to the Regional Office of origin for the release and service to the parties and execution of the decision.
RULE XV
POSITION PAPERS, DECISION,
AND INTERLOCUTORY ORDERS
Section 1. Position paper and draft decision. - Where the mediation is terminated and the case is returned for continuation of the adjudication proceedings, the Arbiter shall issue an order directing the parties to simultaneously file within thirty (30) days from receipt thereof their respective position papers, jointly verified by the parties and their respective counsels, attaching thereto the affidavits of their witnesses and documentary evidence, as well as their draft decisions as provided for by Executive Order No. 26.
Said position papers and draft decisions shall state clearly and distinctly the facts, the issues and applicable laws and jurisprudence on which they are based.
Section 2. Ocular inspection and/or clarificatory questions. - At any time before the case is submitted for resolution, the Arbiter may require an ocular inspection of the project or the site of the homeowners association, examination of the records of the landowner or the developer, or the corporate records of the association, or the presentation of witnesses in the presence of the parties solely for purposes of clarification or eliciting additional information on the evidence on record.
Section 3. Summary resolution. - With or without the position paper and draft decision, the Arbiter shall resolve the case on the basis of the pleadings and pertinent records of the case within thirty (30) days after the lapse of the period for filing the same.
Section 4. Decisions and orders. - All decisions and orders issued by the Arbiter shall be subject to the approval of the Regional Officer. All pending motions, including any application for issuance of a cease and desist order filed after the submission of the case for resolution, shall be resolved in the decision.
Section 5. Interlocutory orders. - All interlocutory orders shall not be appealable.
RULE XVI
APPEAL
Section 1. Appeal memorandum. - Any party aggrieved by the decision of the Regional Office on any legal ground and upon payment of the appeal fee, may appeal the same by filing with the Regional Office a verified appeal memorandum in three (3) copies within fifteen (15) days from receipt of the assailed decision.
Within ten (10) days from receipt of the appeal memorandum, the Regional Office shall elevate the records of the case to the Board of Commissioners together with the summary of proceedings.
Section 2. Contents of appeal memorandum. - The appeal memorandum shall state the date when the appellant received a copy of the decision, the grounds relied upon, the arguments in support thereof, and the relief prayed for.
In addition, the appellant shall attach to the appeal memorandum the following:
A. Affidavit of service of the appeal memorandum executed by the appellant, which substantially complies with Supreme Court Circular No. 19-91, stating in essence the date of such service and copies of the registry return receipt shall likewise be attached;
B. A verified certification executed by the appellant in accord with Supreme Court Circular No. 28-91 as amended, attesting that they have not commenced a similar, related or any other proceeding involving the same subject matter or causes of action before any other court or administrative tribunal in the Philippines; and
C. In case of money judgment, an appeal bond in the form of a cash bond or surety bond satisfactory to the Board equivalent to the amount of the award excluding interests, damages and attorney's fees. A surety bond shall be issued by a reputable bonding company duly accredited by the Supreme Court, and shall be accompanied by original or certified true copies of the following:
a. A joint declaration under oath by the appellant and the bonding company, attesting that the bond posted is genuine, and shall be in effect until final disposition of the case;
b. An indemnity agreement between the appellant and bonding company;
c. Proof of security deposit or collateral securing the bond: provided, that a check shall not be considered as an acceptable security;
d. Certificate of authority from the Insurance Commission;
e. Certificate of registration from the Securities and Exchange Commission;
f. Certificate of authority to transact surety business from the Office of the President;
g. Certificate of accreditation and authority from the Supreme Court; and
h. Notarized board resolution or secretary's certificate from the bonding company showing its authorized signatories and their specimen signatures.
A cash or surety bond shall be valid and effective from the date of deposit or posting until the case is finally decided, resolved or terminated, or the award satisfied. This condition shall be deemed incorporated in the terms and conditions of the surety bond, and shall be binding on the appellant and the bonding company.
The appellant shall furnish the appellee with a certified true copy of the said surety bond with all the above-mentioned supporting documents. The appellee shall verify the regularity and genuineness thereof and immediately report any irregularity to the Board. Upon verification by the Board that the bond is irregular or not genuine, the Board shall cause the immediate dismissal of the appeal, and censure or cite in contempt the responsible parties and their counsels, or subject them to reasonable fine or penalty.
No motion to reduce bond shall be entertained except on meritorious grounds, and only upon the posting of a bond in a reasonable amount in relation to the monetary award. The mere filing of a motion to reduce bond without complying with the requisites in the preceding paragraphs shall not stop the running of the period to perfect an appeal.
Section 3. Counter-memorandum. - Upon receipt of a copy of the appellant's memorandum and without waiting for any separate order from the Board of Commissioners, the appellee shall file a counter-memorandum in three (3) copies within a non-extendible period of fifteen (15) days from receipt of the appellant's memorandum, with proof of service to the appellant.1avvphil
Section 4. Effect of filing an appeal. - The filing of an appeal shall have the effect of automatically staying the execution of any decision or order of the Arbiter or Regional Officer, unless otherwise provided in the Rules.
Section 5. Prohibited pleadings in appeal proceedings. - Reply and rejoinder memorandum are prohibited and shall not be filed during the pendency of the appeal before the Board of Commissioners.
Section 5. Prohibited pleadings in appeal proceedings. - Reply and rejoinder memorandum are prohibited and shall not be filed during the pendency of the appeal before the Board of Commissioners.
RULE XVII
DISMISSAL OF THE APPEAL
Section 1. Dismissal of the Appeal. - The appeal shall be dismissed on any of the following grounds:
A. Filing of the appeal beyond the reglementary period;
B. Joint motion of the parties to dismiss the appeal;
C. Withdrawal of the appeal;
D. Failure to pay appeal fees;
E. Failure to post appeal bond as required in Section 2 (C) of Rule XVI;
F. Failure to furnish the other party or parties a copy of the appeal memorandum; and
G. Failure to comply with the orders of the Board and/or the requirements of these Rules.
RULE XVIII
INCIDENTAL PROCEEDINGS AND REMEDIES PENDING APPEAL
Section 1. Admissibility of new evidence on appeal. - The Board may, in the evaluation of the appeal, order reception of evidence or conduct further proceedings, or take judicial notice of other records of the Board, pursuant to Section 22 of Chapter 4, Book VII, of Executive Order No. 292, the Administrative Code of 1987.
RULE XIX
SUBMISSION AND RESOLUTION
Section 1. Submission of draft decision. - The parties shall submit their draft decision within the same fifteen (15) day-period for the filing of the appeal memorandum and counter-memorandum. With or without a draft decision, the appeal shall be submitted for resolution.
Section 2. Resolution. - The appeal shall be decided by the Board of Commissioners sitting en banc or by the division in accordance with the internal rules of the Board of Commissioners.
RULE XX
MOTION FOR RECONSIDERATION
AND APPEAL FROM BOARD DECISIONS
Section 1. Motion for reconsideration. - Within the period for filing an appeal from a decision, order or ruling of the Board of Commissioners, any aggrieved party may file a motion for reconsideration with the Board only on the following grounds:
A. Serious errors of law which would result in grave injustice if not corrected; or
B. Newly discovered evidence.
Only one (1) motion for reconsideration shall be entertained.
Motions for reconsideration shall be assigned to the division from which the decision, order or ruling originated.
The filing of a motion for reconsideration shall toll the fifteen (15)- day reglementary period for filling an appeal with the Office of the President and the pendency of the motion shall suspend the running of the said period to appeal. However, if the motion for reconsideration is denied, the movant shall have only the remainder of said period to file his appeal, which shall in no case be less than five (5) days, computed from receipt of the notice of the denial.
Section 2. Opposition. - Any opposition to the motion for reconsideration shall, without waiting for any separate order from the Board of Commissioners, be filed within a non-extendible period of five (5) days from receipt of a copy of said notion.
Section 3. Appeal. - Any party may, upon notice to the Board of Commissioners and the other party, appeal from a decision rendered by the Board of Commissioners to the Office of the President within fifteen (15) days from receipt thereof, in accordance with P.D. No. 1344 and A.O. No. 18, series of 1987.
RULE XXI
FINALITY OF JUDGMENT
Section 1. Finality of Judgment. - Decisions and orders of the regional Office and the Board of Commissioners shall deemed final and executory in accordance with the following:
A. Unless otherwise provided, a decision or resolution of the Regional Office shall become final and executor fifteen (15) days after the date of receipt thereof by the parties and no appeal has been filed within the said period;
B. In the case of decision and resolutions of the Board of Commissioners, the same shall become final and executor after fifteen (15) days after the receipt thereof by the parties and no appeal or motion for reconsideration has been filed within the said period.
RULE XXII
EXECUTION
Section 1. Execution of decisions. - Execution shall issue only upon motion of an interested party upon a final order or decision. A motion for execution shall be accompanied by an entry of judgment of certificate or order of finality issued by the Board of Commissioners, the Office of the President, the Court of Appeals or the Supreme Court, as the case may be.
Section 2. Writs of execution. - All writs of execution shall be issued by the Regional Officer and directed to the provincial or city sheriff concerned.
Section 3. Prohibited pleadings in execution proceedings. - The following shall be considered as prohibited in execution proceedings in execution proceedings and shall not be entertained:
A. Any motion that effectively questions or seeks the modification of the final judgment or decision; and
B. Pleadings in the guise of an appeal on collateral issues or questions deemed already passed upon or considered in the resolution of the case or incident.
Section 4. Resolution of incidents of execution. All incidents pertaining to the implementation of the final and executory decision shall be resolved by the Regional Office and no further appeals therefrom shall be entertained by the Regional Office or the Board of Commissioners.
RULE XXIII
LEGAL FEES
Section 1. Legal fees. - All legal fees relating to adjudicating cases shall be in accordance with the schedule of fees approved from time to time by the Board of Commissioners.
Section 2. Pauper litigants exempt from the payment of legal fees. - A pauper litigant whose gross income does not exceed six thousand pesos (P6, 000.00) a month or as may from time to time be determined by the Board of Commissioners and who does not own any real property with a fair market value as stated in the current tax declaration of more than three hundred pesos (P300, 000.00) shall be exempt from the payment of the prescribed legal fees.
The legal fees shall be a lien on any judgment rendered in the case favorably to the pauper litigant, unless the Board otherwise provides. To be entitled to the exemption herein provided, the pauper litigant shall execute an affidavit that his gross income does not exceed the income ceiling above-mentioned, and he does not own any real property with the assessed value aforementioned.
Any falsity in the affidavit of a party purporting to be a pauper litigant shall be sufficient cause to strike out the pleading of the party claiming to be pauper litigant, without prejudice to whatever criminal liability may have incurred.
Section 3. Government exemption from fees. - The Republic of the Philippines, its agencies and instrumentalities, are exempt from paying the legal fees provided herein. Local governments and government -owned or controlled corporations with or without independent charters are not exempt from paying such fees.
RULE XXIV
MISCELLANEOUS PROVISIONS
Section 1. Repealing clause. - These Rules repeal the 2004 HLURB Rules of Procedures, as amended, and all other resolution and administrative issuances or such parts thereof as are inconsistent herewith.
Section 2. Effectivity. - These rules shall take effect fifteen (15) days from publication in the Official Gazette or in a newspaper of general circulation. Proceedings of cases then pending shall be governed by these Rules, except when in the opinion of the Board their application would be impractical or would work injustice, in which event the former rules or procedure shall apply.
APPROVED this 16th day of December 2009, Pasay City.
(Sgd.) HON. NOLI L. DE CASTRO
Vice-President of the Philippines and HUDCC Chairman
(Sgd.) LINDA L. MALENAD HORNILLA
Undercecretary, DOJ (Sgd.) ROMULO Q. FABUL
Chief Executive Oficer and Commissioner
(Sgd.) AUGUSTO B. SANTOS
Deputy Director-General, NEDA (Sgd.) TERESITA A. DISIERTO
Commissioner
(Sgd.) AUSTERE A. PANADERO
Undersecretary, DILG (Sgd.) ARTURO M. DUBLADO
Commissioner
(Sgd.) JOEL I. JACOB
DPWH (Sgd.) RIA CORAZON A. GOLEZ-CABRERA
Commissioner
(Sgd.) CHARITO B. LANSANG
Board Secretary
Source: PDI April 24, 2010 The Lawphil Project - Arellano Law Foundation
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