THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Tarpely and Santos,
2 FSM Intrm. 221 (Pon. 1986)

[2 FSM Intrm. 221]

IN THE MATTERS OF
THOMAS TARPLEY
 
and

DICKSON SANTOS
Respondents.

CASE NOS. 1986-512/511

OPINION

Before Edward C. King
Chief Justice
July 24, 1986
APPEARANCES:
     For the Respondent:     Thomas Tarpley, pro se
     (Thomas Tarpley)          Attorney at Law
                                              Pohnpei State Attorney's Office
                                              Kolonia, Pohnpei 96941

     For the Respondent:     Mark L. Mausert
     (Dickson Santos)          Public Defender
                                             State of Pohnpei
                                             Kolonia, Pohnpei 96941

*        *        *        *

[2 FSM Intrm. 222]

HEADNOTES
Contempt
     Voluntary acts or omissions by a person, done with knowledge of facts sufficient to warn the person that such acts or omission could create a substantial risk of court delay, may constitute intentional obstruction of the administration of justice.  In re Tarpley, 2 FSM Intrm. 221, 224 (Pon. 1986).

Contempt
     When counsel receives notice of a hearing, yet intentionally departs without making adequate efforts to reschedule the hearing or to assure that someone will appear on behalf of the client, he knowingly creates a substantial risk of obstruction of justice.  In re Tarpley, 2 FSM Intrm. 221, 224-25 (Pon. 1986).

*        *       *        *

COURT'S OPINION
EDWARD C. KING, Chief Justice:
     These contempt proceedings arise out of failure of anybody from the Pohnpei State Attorney's office to appear at a court hearing scheduled in a juvenile case for 2 P.M. on May 21, 1986.

     Thomas Tarpley, the state attorney normally responsible for representing the state in juvenile and criminal proceedings before this Court, did not appear, nor did the remaining person in charge of the office, Dickson Santos.  Orders were issued to both requiring them to appear and show cause why they should not be held in contempt of court.

     After hearing their explanations, I found that neither respondent took wilful steps intended to reflect disrespect for the Court.  Yet, both acted intentionally in such a way as to create a substantial risk that their conduct would obstruct the administration of justice within the meaning of 4 F.S.M.C. 119(1)(a).  Both knew of the schedule and were aware of their responsibility to assure appearance at the hearing, yet both decided not to attend and neither took adequate steps to reschedule the hearing or to arrange for it to be covered.

     Accordingly I held both in contempt of court.  Dickson Santos was fined $10 and Thomas Tarpley $25.  This memorandum opinion is written to set out my reasoning and to confirm my ruling.

I.  Finding of Facts
     By order dated May 15, 1986, the juvenile case was scheduled to be heard on May 21.  Tarpley was served with notice on May 15.

     Tarpley had looked forward to attending a class reunion and then vacationing in the United States. originally, he had intended to fly from Pohnpei on May 22.

[2 FSM Intrm. 223]

     However, tropical storm Lola hit Pohnpei during the weekend of May 18 and began moving westward.  On May 20 the word on Pohnpei was that tropical storm Lola had turned into a typhoon and was moving toward Guam.  Tarpley became concerned that there would be no plane flying from Guam on May 22.  He decided on May 20 to take the flight that evening.  Unfortunately, events prevented him from making this decision until late afternoon on May 20, just a few hours before the plane was to depart.

     By then he had no opportunity to tell Dickson Santos or Herold Henry, the two trial counselors working in that office, of his decision to leave.  Instead he left them notes.  His note to Santos asked Santos to handle a criminal case scheduled for 9 a.m. on May 21, for entry of a guilty plea.  Neither note mentioned the juvenile case.

     Tarpley asked Michael Berman, an attorney under subcontract to handle certain legal matters for the state, to appear at a third hearing as Tarpley's substitute.  He delivered the file for that case to Berman.  Tarpley says he briefly mentioned the juvenile case, but Berman had no such recollection.  Tarpley had intended to deliver the file to Berman, but it was misfiled in the office and he could not find it. He took no steps to assure that the file would be located the next morning.  I conclude that, in his haste, Mr. Tarpley simply failed to make adequate provision for the juvenile case.

     Santos, however, who was aware that he was in charge of the office in Tarpley's absence, could and should have saved the day.  On the morning of May 21 he learned that the juvenile hearing was set for that afternoon.  He discussed the hearing with Dais Lorrin, administrative officer for the Pohnpei State Department of Justice.  Lorrin told Santos he "might" contact Berman about the hearing but he and Santos reached no definite conclusion.  Later that morning Santos met with Berman but nothing was said about the juvenile hearing.

     Nevertheless, at approximately 11 A.M. that morning, Santos decided to leave the office in order to spend the rest of the day fishing.  He told the Office's other trial counselor, Herold Henry, of his plan but said nothing of the upcoming juvenile proceeding.

     When 2 P.M. rolled around, the juvenile, his mother and his counsel were present but nobody from the State Attorney's office appeared.  After awhile, court staff went to the State Attorney's Office but found only a secretary who had no knowledge of the hearing.  A broader search finally turned up Herold Henry, but he too was without knowledge as to whether arrangements had been made for anybody to appear at the hearing on behalf of the State.  Eventually, at about 2:30 P.M., the "hearing" was adjourned.

II.  Legal Analysis
     The statute concerning contempt provides, "Any Justice of the Supreme Court shall have the power to punish contempt of court.  Contempt of court is:  "(a) any intentional obstruction of the administration of justice...."  4 F.S.M.C. 119(1)(a).

[2 FSM Intrm. 224]

     We have previously had occasion to consider whether voluntary acts or omissions by a person, done with knowledge of facts sufficient to warn the person that such an act could create a substantial risk of court delay, may constitute "intentional obstruction."

     In In re Robert (II), 1 FSM Intrm. 18 (Pon. 1981), respondent had failed to appear at the time scheduled for an arraignment.  Earlier that same morning he had been ordered by the Trust Territory High Court to travel to a distant part of Pohnpei but had assumed he could return in time for the hearing before this Court. He explained that he had not realized that the location was so distant, that so much construction was underway, or that the person lived so far up a hill.  The Court, however, focused on his earlier decisions which had made him vulnerable to such vicissitudes.

     [The section] specifies that, for contempt of court to occur, there must be an intentional obstruction of the administration of justice.  After hearing Mr. Robert's explanation, I do not believe that he intentionally malingered or dallied along the way in order to arrive late for the hearing and thereby to obstruct justice.  Once he had placed himself in the position of going to Madolenimw without making prior arrangements, any tardiness on his  part was purely unintentional.

     This does not mean however that no intentional
misconduct was involved, even though of omission rather than commission.  When leaving for a lengthy trip to Madolenimw less than three hours before the Court was to go into session, knowing that he would have to find somebody who might or might not be at a given location, Mr. Robert surely recognized the possibility that he might be  returning later than 1:30 p.m. Before departing, he had to decide whether to take steps to alert his own office to  make other arrangements for the hearing if necessary, whether to advise this Court and opposing counsel, and whether to seek a later hearing.  His decision not to take any of these precautions was an intentional one which he knew carried with it a substantial risk that he would be late for the hearing, with all of the various parties and officers of the Court forced to await his arrival.  Timely presence at scheduled Court proceedings is a fundamental duty of an attorney.  This intentional failure to take precautionary steps, and the consequent waste of the time  of the Court and officers of the Court, constituted an "intentional obstruction of the administration of justice" within the meaning of 4 F.S.M.C. 119(1)(a) and is contempt of court.

1 FSM Intrm. at 19-20.

     The circumstances here are similar.  Tarpley made an affirmative

[2 FSM Intrm. 225]

decision to go on the earlier plane  even though he knew he would be hurried and unable to talk to Santos before departure.  By leaving without finding the file or making arrangements to have it delivered to Berman later, without clearly transferring responsibility for the case to Berman, and without even mentioning it to anybody else in his office, he knowingly created a substantial risk that nobody would appear for the state.

     Similarly, Santos knew of the hearing but still went fishing without assuring that somebody would appear.  By doing this without even mentioning the case to Berman or Henry, he too knowingly created a substantial risk of nonappearance.

III.  Conclusion
     The departures of the respondents without making arrangements to assure an appearance at the May 21 juvenile proceeding reflected great concern about the reunion and fishing and too little about professional obligations.1  By failing to take those relatively simple steps mentioned in this opinion, they created a substantial risk of obstruction of justice which, unfortunately for all concerned, did occur.  It is for these reasons that I have found them in contempt of court, imposing a fine of $25.00 on Tarpley and $10.00 on Santos.
 

Footnote:

      1. The conduct of respondents in this instance was quite atypical.  Tarpley appears often before this Court, and has always conducted himself in a highly responsible and professional manner.  In his less frequent appearances, Santos has also been respectful and punctual.
                                                                                                                                                                                                                                                                                                           
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