FSM SUPREME COURT
APPELLATE DIVISION
Cite as In re Sanction of Woodruff,
10 FSM Intrm. 79 (App. 2001)

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IN THE MATTER OF THE SANCTION OF
ATTORNEY JAMES P. WOODRUFF,
Appellant.

APPEAL CASE NO. P2-2000

OPINION

Argued:  September 8, 2000
Decided:  February 28, 2001

BEFORE:
     Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
     Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
     Hon. Wanis R. Simina, Temporary Justice, FSM Supreme Court*

*Associate Justice, Chuuk State Supreme Court, Weno, Chuuk

APPEARANCE:
     For the Appellant:     James P. Woodruff, Esq.
                                         P.O. Box 145
                                         Kolonia, Pohnpei FM 96941

*    *    *    *

HEADNOTES
Attorney, Trial Counselor and Client ) Attorney Discipline and Sanctions; Civil Procedure ) Sanctions; Constitutional Law )Due Process)Notice and Hearing; Contempt
     An attorney is entitled to appropriate notice and an opportunity to be heard before any sanction is imposed on him, whether that sanction is imposed on him under the civil procedure rules, the criminal contempt statute, or some other court power.  In re Sanction of Woodruff, 10 FSM Intrm. 79, 84 (App. 2001).

Attorney, Trial Counselor and Client ) Attorney Discipline and Sanctions; Civil Procedure ) Sanctions; Contempt
     In addition to its statutory contempt power, the FSM Supreme Court does retain inherent powers to sanction attorneys.  In re Sanction of Woodruff, 10 FSM Intrm. 79, 85 (App. 2001).

Civil Procedure ) Sanctions; Constitutional Law ) Due Process
     A court must exercise its inherent powers with caution, restraint, and discretion and must comply with the mandates of due process.  In re Sanction of Woodruff, 10 FSM Intrm. 79, 85 (App. 2001).

Civil Procedure ) Sanctions
     A finding of bad-faith conduct is necessary before a court can use its inherent powers to sanction. In re Sanction of Woodruff, 10 FSM Intrm. 79, 85-86 (App. 2001).

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Appeal and Certiorari ) Standard of Review; Civil Procedure ) Discovery; Civil Procedure ) Sanctions
     The standard of review of a court's imposition of sanctions under its inherent powers is for abuse of discretion.  This accords with the abuse of discretion standards for review of Rule 11 attorney sanctions and for review of discovery sanctions.  In re Sanction of Woodruff, 10 FSM Intrm. 79, 86 (App. 2001).

Attorney, Trial Counselor and Client ) Attorney Discipline and Sanctions; Civil Procedure ) Sanctions
     Sanctions imposed personally on an attorney must be based on that attorney's personal actions or omissions, not on the court's frustration, no matter how justified, with previous counsel's actions or omissions, or with a recalcitrant client's actions or omissions that are beyond an attorney's control or influence.  In re Sanction of Woodruff, 10 FSM Intrm. 79, 87 (App. 2001).

Attorney, Trial Counselor and Client ) Attorney Discipline and Sanctions; Civil Procedure ) Sanctions
     No proper personal sanction against an attorney should include any consideration of the amount of time and work the court spent on earlier motions when the attorney was not responsible for or personally involved with the case at the time the court's work was done.  In re Sanction of Woodruff, 10 FSM Intrm. 79, 87 (App. 2001).

Constitutional Law ) Due Process
     No one should ever be penalized or sanctioned by a court for successfully insisting upon those constitutional rights which are his due.  In re Sanction of Woodruff, 10 FSM Intrm. 79, 87 (App. 2001).

Civil Procedure ) Sanctions; Evidence ) Burden of Proof
     The proper standard of proof for inherent power sanctions is clear and convincing evidence standard rather than the lower standard of preponderance of the evidence standard.  This heightened standard of proof is particularly appropriate because most inherent power sanctions are fundamentally punitive and because an inherent power sanction requires a finding of bad faith, and a bad faith finding requires heightened certainty.  In re Sanction of Woodruff, 10 FSM Intrm. 79, 88 (App. 2001).

Civil Procedure ) Sanctions; Evidence ) Burden of Proof
     For those inherent power sanctions that are fundamentally penal ) and default judgments, as well as contempt orders, awards of attorneys' fees and the imposition of fines ) the trial court must find clear and convincing evidence of the predicate misconduct.  In re Sanction of Woodruff, 10 FSM Intrm. 79, 88 (App. 2001).

Attorney, Trial Counselor and Client ) Attorney Discipline and Sanctions; Civil Procedure ) Sanctions; Evidence ) Burden of Proof
     The clear and convincing evidence standard of an inherent powers sanction is also consistent with the standard of proof needed to discipline an attorney.  It would be inequitable if a court could avoid the heightened standard of a disciplinary proceeding by instead resorting to its inherent powers to sanction an attorney.  In re Sanction of Woodruff, 10 FSM Intrm. 79, 88 (App. 2001).

Civil Procedure ) Sanctions
     The trial court abused its discretion by its failure to make a specific finding of bad faith, its apparent use of an improper standard of proof, and because the short time span for which the attorney was personally responsible for the case therefore, as a matter of law, he could not be personally sanctioned using the court's inherent powers.  In re Sanction of Woodruff, 10 FSM Intrm. 79, 88 (App. 2001).

Civil Procedure ) Sanctions
     The standard for the imposition of sanctions using the court's inherent powers is extremely high.

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The court must find that the very temple of justice has been defiled by the sanctioned party's conduct.In re Sanction of Woodruff, 10 FSM Intrm. 79, 88 (App. 2001).

Constitutional Law ) Due Process ) Notice and Hearing
     A court hears before it condemns, and that while a court that has announced a decision without notice and an opportunity to be heard can always be asked to recall its decision and listen to argument this opportunity, as every lawyer knows, is a poor substitute for the right to be heard before the decision is announced.  In re Sanction of Woodruff, 10 FSM Intrm. 79, 89 (App. 2001).

*    *    *    *

COURT'S OPINION
 
RICHARD H. BENSON, Associate Justice:
     This appeal arises from the trial court's personal sanction of an attorney for discovery abuse.  The trial court based its sanction on the court's inherent power and not on a civil procedure rule governing sanctions for discovery misconduct, or upon the court's statutory contempt power found in 4 F.S.M.C. 119.  We conclude that the trial court may use its inherent powers to sanction but that it abused its discretion when it sanctioned attorney James P. Woodruff personally.  We reverse. Our reasoning follows.

I.  Background
     The case in which this sanction arose was removed to the FSM Supreme Court on October 20, 1994.  It involved a suit by the State of Pohnpei and its Environmental Protection Agency against a vessel that had run aground, its Captain and its owner, and a foreign fisheries association.  The defendants' answer, filed July 19, 1996, contained a counterclaim and a third-party complaint against the Sapwuafik Municipal Government.  On July 9, 1997, Sapwuafik filed and served on the state plaintiffs nineteen pages of interrogatories and requests for production.  No response was filed.

     On September 4, 1997, Sapwuafik filed a Motion for Discovery Sanctions, which the state opposed.  On September 26, 1997, the trial court denied the motion and ordered the state to respond to the discovery requests within thirty days.  On October 27, 1997, the state filed a response, signed by its Assistant Attorney General, Kathleen A. Rittner, objecting to virtually all of the discovery requested and moving for a protective order.  Attorney Woodruff arrived on Pohnpei to begin employment as a Pohnpei assistant state attorney general sometime in October 1997.  He states that this case was not assigned to him at that time.  He does not appear in the record then.

     On October 28, 1997, Sapwuafik filed a Renewed Motion for Sanctions.  As with the first discovery sanction motion, Sapwuafik's second motion sought as sanction under Civil Procedure Rule 37(b) that certain facts regarding reef ownership be deemed admitted for the purpose of that case.  On November 6, 1997, Sapwuafik filed its opposition to the state's protective order motion and moved to dismiss the third party complaint against it.  The state did not respond to the renewed motion. On April 8, 1998, the trial court denied the state's motion for a protective order, granted Sapwuafik's motion for sanctions, and awarded Sapwuafik its reasonable expenses in preparing the two sanctions motions, but did not designate certain facts as admitted.Pohnpei v. M/V Miyo Maru No. 11, 8 FSM Intrm. 281, 287-91 (Pon. 1998).  The state was ordered to respond to Sapwuafik's discovery request in 30 days.  Id. at 296. Sapwuafik never submitted its expense claim for court approval. The state still did not respond to Sapwuafik's discovery requests.

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     On July 14, 1998, the defendants' counsel filed a Motion to Withdraw as Counsel of Record.  Because the state counsel, who was assigned to the case, had been transferred, along with the case, to the Governor's office, and because he was unable to contact that assigned counsel, attorney Woodruff made his first appearance in the case at the August 25, 1998 scheduled hearing on the withdrawal motion.  Woodruff acknowledged that the state still had not responded to Sapwuafik's discovery request. The trial court sua sponte raised the issue of whether two of the defendants' counsel should be sanctioned in relation to their prior representation and their attempted withdrawal.  The trial court denied the withdrawal motion, properly gave the two attorneys notice that it was considering personal sanctions against them, and properly gave them an opportunity to be heard.  Pohnpei v. M/V Miyo Maru No. 11, Order, Civ No. 1994-136 (Pon. Sept. 22, 1998).  Defendants' counsel responses were, per court order, filed under seal.  In January, 1999, the attorney assigned the case left the state's employ.

     On January 29, 1999, Sapwuafik filed its Third Motion for Discovery Sanctions.  It sought the same sanction against the state ) that certain facts be deemed admitted for purposes of trying the case.  On February 11, 1999, the state filed its response, the first filing in the record signed by Woodruff.  The response gave various reasons why it had been difficult to comply, but admitted that the state had no valid excuse for not having complied, urged that the state not be punished for its attorneys' neglect, and stated that he had consulted Sapwuafik's attorney about developing a discovery schedule to expedite the case.  On February 18, 1999, Woodruff, the only FSM admitted attorney still employed by the state, attended an in-chambers, not-on-the-record status conference with other counsel and the trial judge.  On March 24, 1999, the trial court issued an order imposing $500 sanctions for willful disobedience of a court order and discovery abuse on attorney Woodruff personally.  No sanctions were imposed on the state.  The order also resolved the court's two earlier sua sponte sanction motions by admonishing one counsel and by exonerating the other of alleged rule violations.  The court ordered that Woodruff file the discovery responses within twenty days or Sapwuafik may be granted the sanctions it requested and disciplinary proceedings initiated.

     On April 5, 1999, Woodruff moved to vacate his sanction on the ground that it was an imposition of criminal contempt and that he had not been afforded any due process ) he had not been given notice that the court was contemplating sanctioning him personally and that he had not been given any opportunity to be heard on the matter.  Woodruff filed the state's discovery responses on April 12, 1999.

     On May 14, 1999, the trial court issued an order "clarifying" its March 24th order.Pohnpei v. M/V Miyo Maru No. 11, 9 FSM Intrm. 150 (Pon. 1999).  It asserted that its imposition of sanctions on Woodruff was not criminal contempt or punitive in nature, and that the sanctions were not issued pursuant to Civil Procedure Rule 37, but were civil in nature and imposed pursuant to the court's "inherent powers to compel submission to its lawful mandates."  Id. at 152.  The court also asserted that Woodruff's due process rights had not been violated, but nevertheless vacated the sanction order because the court had not "specifically advised" Woodruff that it was considering sanctioning him and that the court had not "specifically given notice of a hearing" on the court's motion to sanction him.  Id. at 153.  The court stated that a separate order would be issued requiring Woodruff to show cause why he should not sanctioned personally.Id.

     On December 21, 1999, the court issued a notice of hearing on its motion to sanction Woodruff personally.  At the hearing held on January 6, 2000, the trial judge questioned Woodruff concerning his behavior in the case and asked Woodruff if "up to now, have you or the State done anything to provide the information that was asked for, and you failed to provide?"  Transcript at 12.  Woodruff replied that the responses had been provided the previous April.  Sapwuafik's attorney noted that there had been a problem in the Pohnpei office with "all the different attorneys that the case had been passed

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to," but "that things got better after Mr. Woodruff was there overall, instead of worse."Id. at 14-15.  Sapwuafik's attorney also noted that he had not been in a hurry to get answers and that Woodruff happened to be in charge when he made the third sanctions motion and that Woodruff was left "holding the bag for the failure of many other attorneys to respond to those interrogatories."  Id. at 16.  Sapwuafik's attorney stated that he just wanted the interrogatory answers determined in his favor, which he "thought was an appropriate sanction," and that he did not even collect the expense money because it was the answers he wanted.  Id. at 17.  The defendants' attorney suggested that when a state agency was recalcitrant a more effective sanction would be to dismiss the state's case which would immediately bring the situation to the Governor's attention.  Id. at 17-18.  No action was taken at the hearing.

     On January 26, 2000, the court issued an order that again sanctioned Woodruff personally using the court's inherent powers and not the contempt statute or any civil procedure rule, and again fined Woodruff $500.  Pohnpei v. M/V Miyo Maru No. 11, 9 FSM Intrm. 316, 329-32 (Pon. 2000) (relying on Resolution Trust Corp. v. Dabney, 73 F.3d 262 (10th Cir. 1995)).  The trial court found that the matter "reveal[ed] a pattern of continuous, flagrant and willful violation of the letter and spirit of the discovery rules by Pohnpei and a knowing intentional disregard of this Court's order by Mr. Woodruff."M/V Miyo Maru No. 11, 9 FSM Intrm. at 327.  The trial court stated that "Mr. Woodruff ha[d] not shown substantial justification for the wrongful behavior he perpetrated against" Sapwuafik and the court, and found that "Mr. Woodruff should be sanctioned in his individual capacity for willfully violating a valid court order, for causing the needless consumption of substantial amounts of the Court's time and resources and for otherwise engaging in conduct abusive of the judicial process."  Id.  Woodruff then timely appealed.

II.  Pending Motion
     On August 30, 2000, Woodruff filed a Motion for Order Correcting Record.  He seeks an order that the Reporter entry showing that attorney Woodruff appeared for the state at the December 2, 1997 hearing on the second sanctions motion decided by the trial court and reported at 8 FSM Intrm. 281 be corrected to show that it was attorney Kathleen Rittner who appeared for the state and who signed all filings related to that motion, not attorney Woodruff.  There is ample evidence in the record showing that this is correct.  We therefore order that page 281 of Volume 8 of the Reporter be corrected to show that attorney Kathleen A. Rittner as appearing for the state, not attorney Woodruff.

III.  Issues Raised by Appellant
     Woodruff raised four issues:  (1) whether the trial court's monetary sanctions order is based on criminal contempt, requiring the constitutional safeguards mandated in criminal contempt cases; (2) whether he was entitled, under the due process clause, to a pre-decisional hearing, mandating that the result of any "make-up" hearing be reversed; (3) whether, in the event we recognize a court's inherent power to impose attorney sanctions, the trial court abused that power through, among other things, its failure to exercise appropriate discretion, ascertain relevant facts before sanction, and make findings necessary to utilize such inherent power; and (4) whether the trial court's failure to even consider sanctions against other government attorneys the trial court believed culpable in the same ongoing discovery matter, while imposing sanctions solely against him, violates his due process and equal protection rights.

     Because, taking the appellant's third assigned error first, we conclude that the trial court may use its inherent powers to sanction but that it abused its discretion when it sanctioned attorney James P. Woodruff personally, and because we reverse the sanction, it is unnecessary to rule on the other issues the appellant raised.

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IV.  Discussion
     The initial, March 24, 1999, sanction imposed on Woodruff was plainly a violation of his due process rights.  Woodruff was entitled to appropriate notice and an opportunity to be heard before any sanction was imposed on him, whether that sanction was imposed on him under the civil procedure rules, the criminal contempt 1  statute, or some other court power.  The trial court attempted to correct its oversight when it properly vacated that sanction in May, 1999.  (We can only characterize it an oversight when the trial judge was so careful to issue notice and allow ample opportunity to be heard when he was considering imposing personal sanctions on two other attorneys in the same case.)

A.  Courts' Inherent Power to Impose Attorney Sanctions
     We take the trial court at its word that it imposed sanctions on Woodruff, not by way of any procedural rule or criminal contempt 2  powers, but through its inherent powers. Therefore we first address Woodruff's third issue ) whether to recognize a court's inherent power to impose attorney sanctions, and if recognized, whether the trial court abused its discretion in using that power.

      1.  Authority Relied Upon by the Trial Court
     The trial court relied on Resolution Trust Corp. v. Dabney, 73 F.3d 262 (10th Cir. 1995) for authority that courts have inherent powers to sanction and that a discovery dispute sanction may be measured by the time it spent on the discovery dispute. The Dabney court relied upon Chambers v. Nasco, Inc., 501 U.S. 32, 50, 111 S. Ct. 2123, 2135-36, 115 L. Ed. 2d 27, 46-48 (1991) as its authority for recognition that courts have inherent power to sanction conduct abusive of the judicial process and for rejection of arguments that statutory sanctioning powers displaced this inherent power.

     The issue before the Chambers court was whether a statutory provision and the various sanctioning provisions in the Federal Rules of Civil Procedure reflected a legislative intent to displace the courts' inherent power or whether, at least in the case before it, those provisions prevented resort to a court's inherent power.  The court's opinion recounted a history of the principle that certain implied powers are incidental to all courts because of the nature of the institution.  Chambers, 501 U.S. at 43-46, 111 S. Ct. at 2132-33, 115 L. Ed. 2d at 44-46.  The majority (Chambers was a 5-4 decision) court held that a court could resort to its inherent powers to sanction "where the conduct at issue is not covered by one of the other sanctioning provisions," but that "a federal court [was not] forbidden to sanction bad-faith conduct by means of the inherent power simply because that conduct could also be sanctioned under the statute or rules."  Id. at 50, 111 S. Ct. at 2135-36, 115 L. Ed. 2d at 48.

A court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees.  Furthermore, where there is bad faith conduct in the course of litigation that could adequately be sanctioned under the rules, the court should

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ordinarily rely on the rules rather than the inherent power.  But if in the informed discretion of the court, neither the statute nor the rules are up to the task, the court may safely rely on its inherent power.

Id. at 50, 111 S. Ct. at 2136, 115 L. Ed. 2d at 48 (citation omitted).  The court recognized that "[b]ecause of their very potency, inherent powers must be exercised with restraint and discretion.  A primary aspect of that discretion is the ability to fashion an appropriate sanction for conduct which abuses the judicial process."  Id. at 44-45, 111 S. Ct. at 2132, 115 L. Ed. 2d at 45 (citing Roadway Express, Inc. v. Piper, 447 U.S. 752, 764, 100 S. Ct. 2455, 2463, 65 L. Ed. 2d 488, 500 (1980)). The majority concluded that although the trial court could have used Rule 11 to sanction Chambers, who was the defendant in an action for specific performance of a breached contract, "for filing `false and frivolous pleadings' and that some of the other conduct might have been reached through other rules," much of Chamber's bad-faith conduct "was beyond the reach of the rules" because "his entire course of conduct throughout the lawsuit evidenced bad faith and an attempt to perpetrate a fraud on the court, and the conduct sanctionable under the rules was intertwined within conduct only the inherent power could address."  Chambers, 501 U.S. at 50-51, 111 S. Ct. at 2136, 115 L. Ed. 2d at 49 (citation omitted).  The court concluded that the trial court's reliance on inherent power was proper and did not thwart the purposes of the other sanctioning mechanisms found in the rules.  Id. at 51, 111 S. Ct. at 2136, 115 L. Ed. 2d at 49.

     The dissenters, however, believed that a "court must use the prescribed means [statutes and rules] unless for some reason they are inadequate,"  id. at 60, 111 S. Ct. at 2141, 115 L. Ed. 2d at 55 (Scalia, J., dissenting), or that it was error to permit "the exercise of inherent sanctioning powers without prior recourse to controlling rules and statutes" and that "the proper exercise of inherent powers require[d] exhaustion of express sanctioning provisions" first, id. at 61, 111 S. Ct. at 2141, 115 L. Ed. 2d at 55 (Kennedy, J., dissenting).

     2.  FSM Supreme Court's Inherent Power to Sanction
     We conclude that, in addition to its statutory contempt power, the FSM Supreme Court does retain inherent powers.  Congress, in effect, has recognized this principle as well. 3  We further conclude that in an appropriate case the FSM Supreme Court's inherent powers may be used to sanction attorneys.  But we do not decide today whether use of those powers is limited to only those situations not adequately covered by the contempt statute or the court's procedural rules, or whether the court may exercise its inherent powers in place of such statutory or rule-based authority.

     We agree with the Chambers court reasoning that a court must exercise its inherent powers with caution, restraint, and discretion and must comply with the mandates of due process.  Although one of Chambers's attorneys was disbarred and another suspended, Chambers was essentially a fee-shifting case where the sanction was measured by the opponent's litigation expense and payable to his opponent.  In Dabney the sanction was measured by the expense to the court and payable to the court, as is Woodruff's sanction.  But we do not think that merely changing the measure and to whom the sanction is paid would eliminate the requirement that bad-faith conduct be present before the court may use its inherent powers to sanction.Chambers required bad faith and its decision was binding on the Dabney court, whose opinion the trial court relied on to sanction Woodruff.  We therefore hold that a

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finding of bad-faith conduct is necessary before a court can use its inherent powers to sanction.  Roadway Express, Inc. v. Piper, 447 U.S. 752, 767, 100 S. Ct. 2455, 2465, 65 L. Ed. 2d 488, 502 (1980) ("the trial court did not make a specific finding as to whether counsel's conduct constituted or was tantamount to bad faith, a finding that would have to precede any sanction under the court's inherent powers"); Goldin v. Bartholow, 166 F.3d 710, 722 (5th Cir. 1999) ("The imposition of sanctions using inherent powers must be accompanied by a specific finding of bad faith.").

     Having concluded that the FSM Supreme Court has the inherent power to sanction attorneys (and parties) for conduct abusive of the judicial process, and having taken the trial court at its word that it used this inherent power to sanction Woodruff, we may summarily dispense with Woodruff's first assigned issue alleging that his sanction was based on criminal contempt.  Our next step is thus to analyze whether the trial court used this inherent sanctioning power properly.

B.  Woodruff's Sanction
     1.  Standard of Review
     Our standard of review of a court's imposition of sanctions under its inherent powers is for abuse of discretion.  Chambers, 501 U.S. at 55, 111 S. Ct. at 2138, 115 L. Ed. 2d at 52.  This accords with our abuse of discretion standards for review of Rule 11 attorney sanctions, In re Sanction of Michelsen, 8 FSM Intrm. 108, 110 (App. 1997); Damarlane v. United States, 8 FSM Intrm. 45, 58 (App. 1997); In re Sanction of Berman, 7 FSM Intrm. 654, 656 (App. 1996); Berman v. Kolonia Town, 6 FSM Intrm. 433, 436 (App. 1994), and for review of discovery sanctions, Nakamura v. Bank of Guam (II), 6 FSM Intrm. 345, 349 (App. 1994); Bernardo v. FSM, 4 FSM Intrm. 310, 313 (App. 1990); Engichy v. FSM, 1 FSM Intrm. 532, 558 (App. 1984).

     2.  Woodruff's Contentions
     Woodruff contends that the trial court abused its discretion in exercising inherent powers to sanction by failing to exercise the appropriate discretion, to ascertain the relevant facts, and to make the necessary findings before sanctioning him.  He contends that the trial court did not make the necessary finding of bad faith, and that the evidence was not considered under the "clear and convincing evidence" standard, which, he contends, is the proper standard for a sanction.

     3.  Trial Court's Findings
     The trial court made no specific finding that Woodruff's actions or omissions constituted or were tantamount to bad faith, which is required when a court uses its inherent powers to sanction.  Nor can we, upon review of the whole record, 4 discern findings that constitute or are tantamount to bad faith on Woodruff's part.  The trial court thus abused its discretion and must be reversed.

     The trial court found that "[i]f Mr. Woodruff would have prepared the interrogatory responses as soon as the case was assigned to him, the second 50 plus hours [of time spent by court] would not have been wasted."  M/V Miyo Maru No. 11, 9 FSM Intrm. at 327.  Presumably, Woodruff was sanctioned for not preparing the responses after he was assigned the case some time in January, 1999 after the case was returned from the Governor's office to the Attorney General's office and before

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either March 24, 1999, the date he was first sanctioned, or before the February 18th chambers conference.  Before then, the case was assigned to an attorney in the Governor's office, and not to an attorney in the Attorney General's office where Woodruff could exercise supervision.

     When sanctioning Woodruff, the trial court also expressed its frustration at the futility of its earlier sanction orders.  It stated, "It was not until SMG's third motion, after which the Court had to confront the futility brought on by its tolerance, that resort was made to issuing personal monetary sanctions against Mr. Woodruff."  Id. at 331 (emphasis in original).  The flaw in this reasoning is, as the case's chronology shows, that Woodruff was not responsible for any actions or omissions in regard to Sapwuafik's first two sanction motions.  While the fact that this was the third sanction motion the trial court had faced over the same discovery issue could well have been grounds for a monetary fine or other sanction, such as a dismissal nisi, against the state, it cannot serve as any basis for personal sanctions against Woodruff, who had no involvement with the first two motions.  His first appearance in the case was not until well after the deadline for complying with the second sanction order had passed.

     Sanctions imposed personally on an attorney must be based on that attorney's personal actions or omissions, not on the court's frustration, no matter how justified, with previous counsel's actions or omissions, or with a recalcitrant client's 5  actions or omissions that are beyond an attorney's control or influence.  Even the calculation of the amount of a personal sanction must be limited to the attorney's personal acts and omissions.

     The trial court based its measure of Woodruff's sanction on the amount of time and work it had spent in connection with Sapwuafik's sanctions motions.  M/V Miyo Maru No. 11, 9 FSM Intrm. at 327.  Without ruling on the propriety of measuring a sanction in this manner, we note that no proper personal sanction against Woodruff should include any consideration of the amount of time and work the court spent on Sapwuafik's first two sanctions motions because Woodruff was not responsible for or personally involved with the case at the time the court's work was done on them.

     Nor should the amount of court time and work spent on Woodruff's successful motion and the court's subsequent order to vacate its initial personal sanction against Woodruff have been considered when calculating sanctions, as seems likely to have occurred because the trial court further recited the time it spent on that motion and order.  Id. at 327.  No one should ever be penalized or sanctioned by a court for successfully insisting upon those constitutional rights which are his due.

     4.  Proper Standard of Proof
     Woodruff contends that the proper standard of proof for sanctions is clear and convincing evidence 6  standard rather than the lower standard of preponderance of the evidence standard.  He further contends that the trial court did not use this standard when it considered the evidence against him.

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     We agree that clear and convincing evidence is the proper standard of proof.  This "heightened standard of proof is particularly appropriate because most inherent power sanctions . . . are fundamentally punitive."  Shepherd v. American Broad. Cos., 62 F.3d 1469, 1476 (D.C. Cir. 1995).  It is also appropriate because an inherent power sanction requires a finding of bad faith, and a bad faith finding requires heightened certainty.  Id. at 1477.  "[F]or those inherent power sanctions that are fundamentally penal)dismissals and default judgments, as well as contempt orders, awards of attorneys' fees and the imposition of fines)the [trial] court must find clear and convincing evidence of the predicate misconduct."  Id. at 1478.  It is also consistent with the standard of proof needed to discipline an attorney.  FSM Dis. R. 5(e).  It would be inequitable if a court could avoid the heightened standard of a disciplinary proceeding by instead resorting to its inherent powers to sanction an attorney.

     The trial court appears not to have used this standard when it imposed its $500 fine on Woodruff.  The trial court thus abused its discretion when it sanctioned Woodruff without weighing the evidence under the clear and convincing standard.

     5.  Ruling
     The trial court abused its discretion by not making a specific finding of bad faith and by not using the proper standard of proof.  We therefore conclude that Woodruff's sanction must be reversed.  Our decision, however, should not be construed as approval, or acceptance, of the state's, or particularly, its succession of attorneys' behavior in response to Sapwuafik's continued discovery request.  The trial court's failure to make a specific finding of bad faith, its apparent use of an improper standard of proof, and the short time span for which Woodruff was personally responsible for the case, leads us to conclude that, based on the record, Woodruff's personal conduct was not in bad faith and therefore, as a matter of law, he could not be personally sanctioned using the court's inherent powers.  Goldin, 166 F.3d at 723 (inherent powers sanction reversed because no bad faith specifically found and "record d[id] not support the required high level of culpability"); Resolution Trust Corp. v. Bright, 6 F.3d 336, 342 (5th Cir. 1993) (inherent powers sanction reversed because record could not support trial court's conclusion that attorneys' conduct was in bad faith).  "[T]he standard for the imposition of sanctions using the court's inherent powers is extremely high.  The court must find that the `very temple of justice has been defiled' by the sanctioned party's conduct."  Goldin, 166 F.3d at 722-23.  We conclude that Woodruff's conduct during the time he was personally responsible for the case did not defile the very temple of justice.

C.  Failure to Consider Sanctioning Other Government Attorneys
     Woodruff contends that the trial court's failure to even consider sanctions against other state government attorneys the trial court believed culpable in the same ongoing discovery matter, while imposing sanctions solely against him, violated his due process and equal protection rights.  He further contends that because the trial court gave notice, pre-decisional hearings, and confidentiality of the hearing process to two other attorneys in the same case when it was sua sponte considering sanctioning them, his equal protection rights to be treated similarly when similarly situated were violated.  Because we have already reversed Woodruff's sanction, we do not need to consider this issue.

D.  Lack of Pre-Decisional Hearing
     Finally, Woodruff contends that because he was entitled under the due process clause, to a pre-decisional hearing, and did not receive one before the March 24, 1999 sanction, that this mandates that the result of the January 6, 2000 "make-up" hearing be reversed.  We have already reversed the resulting trial court sanction on abuse of discretion grounds.  While we can understand the concern

[10 FSM Intrm. 89]

over the efficacy of a hearing before the same trial judge who has vacated a decision he rendered without notice and an opportunity to be heard, we have never considered whether this would render any subsequent noticed hearing void.  We note that a court "hears before it condemns," and that while a court that has announced a decision without notice and an opportunity to be heard can always be asked "to recall its decision and listen to argument . . . this opportunity, as every lawyer knows, is a poor substitute for the right to be heard before the decision is announced."  Moore v. California Mineral Prods. Corp., 252 P.2d 1005, 1007 (Cal. Dist. Ct. App. 1953).  But we do not reach this question in resolving this appeal.

V.  Conclusion
     Accordingly, we reverse the imposition of personal sanctions on attorney Woodruff. The trial court shall cause such to show on its record.  The appellant is to bear his own costs.


Footnotes:
 
1.  The initial $500 sanction could not have been a civil contempt sanction because it was not remedial in nature.  See 4 F.S.M.C. 119(2)(a).  It might have been remedial if, for instance, it had ordered Woodruff to pay the $500 if the discovery requests were not complied with by a certain date. Even then Woodruff would have been entitled to notice and an opportunity to be heard before being held in civil contempt.  (Back to opinion)

2.  A December 21, 1999 notice that the trial court intended to proceed on its sua sponte motion to sanction Woodruff would seem to be too late to start a criminal contempt proceeding, anyway.  The statute of limitations for criminal contempt is three months.  4 F.S.M.C. 119(2)(b).  (Back to opinion)

3.  "The Supreme Court and each division thereof shall have power to issue writs and other process, make rules and orders, and do all acts, not inconsistent with law or with the rules of procedure and evidence established by the Chief Justice, as may be necessary for the due administration of justice . . . ."  4 F.S.M.C. 117.  (Back to opinion)

4.  The only part of the trial court record not before us is those portions under seal that related to the sua sponte sanction motions against the two defendants' counsel, and which do not affect the sanction before us.  (Back to opinion)

5.  We can appreciate the added difficulty presented a lawyer who is an employee of a recalcitrant party.  Unlike an attorney in private practice faced with an uncooperative client, he does not have the luxury of withdrawing, or the leverage of threatening to withdraw, from representing that recalcitrant client, unless he is willing to face the prospect of sudden unemployment.  (Back to opinion)

6.  See In re Attorney Disciplinary Proceeding, 9 FSM Intrm. 165, 173-74 (App. 1999) for a discussion of the three levels of burdens of proof and a description of the clear and convincing evidence standard.  (Back to opinion)
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