The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EMERENCIANA PETER-PALICAN, No. 10-17153
Plaintiff-Appellee, D.C. No.
v. 1:07-cv-00022
GOVERNMENT OF THE District of the
COMMONWEALTH OF THE NORTHERN Northern Mariana
MARIANA ISLANDS; BENIGNO R. Islands
FITIAL, Governor of the ORDER
Commonwealth of the Northern DEFERRING
Mariana Islands, in his official
capacity,
SUBMISSION
AND CERTIFYING
Defendants-Appellants. QUESTIONS TO
THE SUPREME
COURT OF THE
COMMONWEALTH
OF THE
NORTHERN
MARIANA
ISLANDS
Filed March 12, 2012
Before: Alfred T. Goodwin, Stephen S. Trott, and
Mary H. Murguia, Circuit Judges.
ORDER
The Commonwealth of the Northern Mariana Islands and
Governor Benigno R. Fitial (collectively, “the Common-
wealth”) appeal from the district court’s judgment in favor of
Emerenciana Peter-Palican in Peter-Palican’s suit against the
2761
2762 PETER-PALICAN v. COMMONWEALTH N. MARIANA ISLANDS
Commonwealth alleging that then-Acting Governor Timothy
Villagomez terminated her from her position as Special Assis-
tant to the Governor for Women’s Affairs in violation of Arti-
cle III, section 22 of the Commonwealth Constitution. The
United States District Court for the District of the Northern
Mariana Islands held that Article III, section 22 guarantees
that once a governor appoints a Special Assistant to the Gov-
ernor for Women’s Affairs, that Special Assistant may never
be terminated without cause — even beyond the term of the
appointing governor. Relying on the Restatement (Second) of
Torts, the district court held also that under Commonwealth
law, there exists an implied private right of action for money
damages against the Commonwealth for a violation of section
22.
We defer our consideration of this case and certify to the
Commonwealth of the Northern Mariana Islands Supreme
Court the legal questions dispositive of this appeal.
All further proceedings in this case are stayed pending
receipt of the answer to the certified questions or, if the Com-
monwealth Supreme Court decides not to accept certification,
pending that decision. The parties shall notify the clerk of this
court within seven days after the Supreme Court accepts or
rejects certification, and again within seven days if the
Supreme Court renders an opinion. The panel retains jurisdic-
tion over further proceedings.
I
QUESTIONS CERTIFIED
Because resolution of this appeal depends on Common-
wealth law and because we find no controlling precedent in
the decisions of the Commonwealth Supreme Court, we
respectfully request, pursuant to Rule 13 of the Northern Mar-
iana Islands Supreme Court Rules, that the Commonwealth
Supreme Court exercise its discretion to accept certification of
PETER-PALICAN v. COMMONWEALTH N. MARIANA ISLANDS 2763
the following legal questions, the answers to which may be
determinative of this appeal:
1. Does Article III, section 22 of the Common-
wealth Constitution, which states that “[t]he Special
Assistant may be removed only for cause,” mean
that the Special Assistant may never be removed
from that position without cause — even beyond the
term of the appointing governor — or does it mean
that the Special Assistant is protected against termi-
nation without cause only during the term of the
appointing governor?
2. If the answer to the above question is that Arti-
cle III, section 22 of the Commonwealth Constitu-
tion means the Special Assistant may never be
removed for cause even beyond the term of the
appointing governor, does Commonwealth law
imply a private right of action for monetary damages
against the Commonwealth or its officials for viola-
tion of that section?
We understand that the Commonwealth Supreme Court
may reformulate our questions.
A determination of Commonwealth law with regard to the
certified questions will resolve the issues pending before this
court. If the Supreme Court declines certification, we will
resolve the issues according to our understanding of Com-
monwealth law. To aid the Supreme Court in deciding
whether to accept certification, we provide the following
background.
II
STATEMENT OF FACTS AND PROCEEDINGS
The Commonwealth Constitution was amended in 1985
following the Second Constitutional Convention. The amend-
2764 PETER-PALICAN v. COMMONWEALTH N. MARIANA ISLANDS
ment included a provision establishing the Office of Special
Assistant to the Governor for Women’s Affairs. Article III,
section 22 of the Commonwealth Constitution provides as fol-
lows:
a) There is hereby established an Office of Special
Assistant to the Governor for Women’s Affairs. The
governor shall appoint a person, who is qualified by
virtue of education and experience, to be the special
assistant. The special assistant may be removed only
for cause.
b) It is the responsibility and duty of the special
assistant to formulate and implement a policy of
affirmative action in the government and private sec-
tor to assist women achieve social, political and eco-
nomic parity. The special assistant shall promote the
interests of women, assist agencies of government
and private organizations to plan and implement pro-
grams and services for women, monitor compliance
of laws and regulations by government agencies and
private organizations, organize community education
strategies regarding the roles of women, and recom-
mend to the governor and the legislature for consid-
eration legislation of benefit to women.
c) The special assistant may be authorized to hire
staff and shall promulgate rules and regulations in
carrying out the responsibilities and duties of the
office.
d) The governor shall include in the budget of the
executive branch the funding necessary to fully
implement the provisions of this section.
N. Mar. I. Const., art. III, § 22 (emphasis added).
In April 2002, then-Governor Juan Babauta appointed
Peter-Palican as Special Assistant. Until Peter-Palican was
PETER-PALICAN v. COMMONWEALTH N. MARIANA ISLANDS 2765
appointed, each Special Assistant had resigned at or before
the end of the term of the governor who appointed her.
During the 2005 gubernatorial race, Peter-Palican cam-
paigned for Governor Babauta’s reelection, but Babauta was
defeated by Benigno Fitial. In February 2006, Lieutenant
Governor Timothy Villagomez, as Acting Governor in Gover-
nor Fitial’s absence, informed Peter-Palican that her term as
Special Assistant had ended when the new administration
took office. The letter stated that Peter-Palican’s actions in
“continuing to occupy the office of Special Assistant for
Women’s Affairs is contrary to Commonwealth law and cus-
tom” and that Peter-Palican would need to vacate her office
by April 8, 2006. Although Peter-Palican’s internal Notice of
Personnel Action established a four-year term of employment,
Villagomez wrote that “the ministerial actions of those
responsible for completing the paperwork necessary to effec-
tuate your appointment cannot and do not change the legal
character of your appointment.”
Peter-Palican responded to the Lieutenant Governor by let-
ter, stating that her appointment was protected by Article III,
section 22 of the Commonwealth Constitution, that she could
be removed only “for cause,” and that the administration had
“not set forth any legal cause to terminate [her] appointment.”
She stated that she was “prepared to discuss . . . [an] amicable
resolution of this matter,” but there was no such resolution.
Peter-Palican vacated her office on April 15, 2006.
Peter-Palican filed this action against the Commonwealth
and Villagomez under 42 U.S.C. § 1983.1 She asserted that
1
Pursuant to § 1983,
Every person who, under color of any statute, ordinance, regula-
tion, custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by
the Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding for
redress . . . .
2766 PETER-PALICAN v. COMMONWEALTH N. MARIANA ISLANDS
she was removed without cause in violation of the Common-
wealth Constitution and, therefore, without due process as
guaranteed by the Fourteenth Amendment to the United States
Constitution. She requested monetary damages and a manda-
tory injunction reinstating her to the Special Assistant posi-
tion. She also brought claims for retaliation, breach of
contract, and detrimental reliance. Peter-Palican did not plead
an independent cause of action for violation of the Common-
wealth Constitution, nor did she request that the court imply
a private right of action into Article III, section 22.
On Peter-Palican’s motion for partial summary judgment,
the district court, Judge Alex R. Munson, held that the “for
cause” provision in Article III, section 22 protected Peter-
Palican from ever being removed without cause, even after
the governor who appointed her left office. The court rejected
the Commonwealth’s argument that the constitutional lan-
guage was ambiguous and that the correct interpretation was
that the “for cause” protection lasted only through the term of
the appointing governor. The court recognized that Peter-
Palican’s interpretation would allow a Special Assistant, who
is responsible for implementing the policies of the governor
with respect to women’s issues, to serve under a governor
who did not share her political or policy views. The district
court concluded, however, that this “unfortunate” situation
was not absurd or impracticable. The court thus held that
Peter-Palican had a property interest in continued employ-
ment protected by the Due Process Clause of the Fourteenth
Amendment.
The district court next concluded that Peter-Palican was not
removed for cause. Concluding that Villagomez “was in pos-
session of the plain language of the [Commonwealth] Consti-
tution,” the court held that he was not entitled to qualified
immunity in his individual capacity.2
2
Additionally, the court granted summary judgment to the Common-
wealth on Peter-Palican’s liberty interest due process claim, but deter-
mined that genuine issues of material fact precluded summary judgment
on the breach of contract and retaliation claims. Those claims are not
before us at this time.
PETER-PALICAN v. COMMONWEALTH N. MARIANA ISLANDS 2767
On interlocutory appeal, we reversed the district court’s
denial of summary judgment to Villagomez on the basis of
qualified immunity. We reasoned,
There is no case law interpreting the Common-
wealth of the Northern Mariana Islands’ constitu-
tional provision creating the Special Assistant for
Women’s Affairs, and no special assistant before
Emerenciana Peter-Palican asserted that the posi-
tion’s tenure extended past the term of the appoint-
ing governor. Any right Peter-Palican had to
continued employment as special assistant past that
term was therefore not clearly established. Even
assuming that Acting Governor Timothy Villagomez
took affirmative steps to terminate Peter-Palican’s
employment, . . . he is entitled to qualified immunity
in the absence of controlling authority interpreting
the provision.
Peter-Palican v. N. Mar. I., No. 08-15704, 332 Fed. Appx.
377, 378 (9th Cir. May 26, 2009) (unpublished). Thus, Peter-
Palican could not recover damages under § 1983 from the
governor in his individual capacity. Governor Fitial was later
substituted for Villagomez with respect to Peter-Palican’s
official capacity claims.
The case was assigned to district judge John C. Coug-
henour for a bench trial on Peter-Palican’s remaining claims.
Following a one-day trial, the district court relied on the law
of the case doctrine and the previous summary judgment
order in concluding that Peter-Palican had a “legitimate claim
of entitlement to her constitutionally created position and was
entitled to some sort of procedure to contest her removal.”
Therefore, the court found that Peter-Palican’s removal vio-
lated the Due Process Clause.
The district court ordered that Peter-Palican be reinstated
“to a Commonwealth government position at a salary equal to
2768 PETER-PALICAN v. COMMONWEALTH N. MARIANA ISLANDS
or greater than that she had as Special Assistant for Women’s
Affairs.” The court recognized, however, that a violation of
Peter-Palican’s right to due process could not be the basis of
a damages award under § 1983 because the Commonwealth
and its officials acting in their official capacity, when sued for
monetary relief, are not “persons” within the meaning of the
statute. DeNieva v. Reyes, 966 F.2d 480, 483 (9th Cir. 1992);
but see Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836,
839 (9th Cir. 1997) (“When sued for prospective injunctive
relief, a state official in his official capacity is considered a
‘person’ for § 1983 purposes.”).
Finding that reinstating Peter-Palican would not fully com-
pensate her for “the past wrong done to her by defendants for
violating her Commonwealth due process rights under . . . the
Commonwealth Constitution,” the court went on to conclude,
sua sponte, that “as a matter of law . . . there is an implied
cause of action against the Commonwealth government and
its officials acting in their official capacities when the Com-
monwealth Constitution is violated and there is no express
constitutional or statutory cause of action or remedy.” The
district court relied on the Restatement (Second) of Torts in
awarding Plaintiff approximately $216,000 in damages under
this implied constitutional tort theory. The court analogized
its decision to Bivens v. Six Unknown Named Agents of Fed-
eral Bureau of Narcotics, 403 U.S. 388, 397 (1971), in which
the United States Supreme Court recognized a damages rem-
edy for a private citizen injured by a federal official’s viola-
tion of the Fourth Amendment.
There were no findings of fact on Peter-Palican’s other
claims, and the district court denied the Commonwealth’s
post-judgment motion for a new trial, for amended or addi-
tional factual findings, or for an award of front pay in lieu of
reinstatement. The district court did not address the Common-
wealth’s argument that Peter-Palican had never asserted an
independent, implied right of action under Article III, section
22.
PETER-PALICAN v. COMMONWEALTH N. MARIANA ISLANDS 2769
The Commonwealth appeals the district court’s grant of
partial summary judgment to Peter-Palican, its findings and
conclusions after the bench trial, and its denial of the Com-
monwealth’s post-judgment motion.
III
EXPLANATION OF CERTIFICATION
Rule 13 of the Northern Mariana Islands Supreme Court
Rules allows a federal court to certify questions of Common-
wealth law to that court. Certification may be requested if the
certifying court believes that “[t]he question may be determi-
native in the proceedings before it” and “[t]here is no control-
ling precedent in the decisions of” the Commonwealth
Supreme Court. N. Mar. I. Sup. Ct. Rule 13(a).
“Use of certification rests in the sound discretion of this
court.” In re Complaint of McLinn, 744 F.2d 677, 681 (9th
Cir. 1984). The Commonwealth now asks for certification,
even though it did not raise the certification issue before the
district court. “[P]articularly compelling reasons must be
shown when certification is requested for the first time on
appeal by a movant who lost on the issue below.” Id. As we
explain below, because of the importance of territorial sover-
eignty in matters of territorial governance and the lack of
clear answers in Commonwealth law, we conclude that such
compelling reasons exist in this case.
A
The Absence of Controlling Precedent
There is no controlling precedent on the meaning of Article
III, section 22, as no Commonwealth court has ever inter-
preted that provision. Further, we disagree with the district
court’s conclusion that the provision is so clear that it can be
interpreted in only one way.
2770 PETER-PALICAN v. COMMONWEALTH N. MARIANA ISLANDS
Under the principles of statutory interpretation applicable
in Commonwealth law, “language must be given its plain
meaning.” N. Mar. College v. Civil Serv. Comm’n, 2007 MP
8, ¶ 9 (N. Mar. I. 2007). “The general principles which apply
to statutory construction are equally applicable in cases of
constitutional construction.” Camacho v. N. Mar. Retirement
Fund, 1 N.M.I. 131, 134 (N. Mar. I. 1990) (internal quotation
marks omitted). Commonwealth courts “apply the plain, com-
monly understood meaning of constitutional language unless
there is evidence that a contrary meaning was intended.” Id.
(internal quotation marks omitted).
However, “language must be read in the context of the
entire” provision, Town House, Inc. v. Saburo, 2003 MP 2,
¶ 11 (N. Mar. I. 2003), and “[a] court should avoid interpreta-
tions of a statutory [or constitutional] provision which would
defy common sense or lead to absurd results,” Commonwealth
Ports Auth. v. Hakubotan Saipan Enters., Inc., 2 N.M.I. 212,
224 (N. Mar. I. 1991) (internal quotation marks and alteration
omitted). If a provision is ambiguous, a court’s objective “is
to ascertain and give effect to the intent of the legislature.”
Aguon v. Marianas Pub. Land Corp., 2001 MP 4, ¶ 30 (N.
Mar. I. 2001) (per curiam). In determining the drafters’ intent,
the statute or constitutional provision “must be read as a
whole, and not as isolated words contained therein,” id., and
“[o]ne statutory [or constitutional] provision should not be
construed to make another provision inconsistent or meaning-
less,” In re Estate of Rofag, 2 N.M.I. 18, 29 (N. Mar. I. 1991).
The constitutional language at issue here appears to us to
be ambiguous because there are two reasonable interpreta-
tions of Article III, section 22. We begin with Peter-Palican’s
suggested interpretation. As counsel noted at oral argument,
the final sentence of subsection (a), upon which Peter-Palican
relies, contains only nine words: “The special assistant may
be removed only for cause.” There are no textual exceptions
to the “for cause” termination requirement, nor is there any
express limitation on the term of the Special Assistant. Unless
PETER-PALICAN v. COMMONWEALTH N. MARIANA ISLANDS 2771
“cause” includes a change in the administration, which the
Commonwealth does not argue, the “for cause” sentence
could be read to mean that the protection from termination
extends indefinitely.
In addition to the constitutional text, Peter-Palican points to
the history of the Second Constitutional Convention to sup-
port her argument that a sitting governor cannot without cause
remove a former governor’s Special Assistant. The initial
draft of the language of Article III, section 22 stated that the
Special Assistant “shall serve at the pleasure of the governor.”
Such a provision would have allowed the governor to remove
the Special Assistant at any time and for any reason. See
DeLeon Guerrero v. Dep’t of Pub. Lands, 2011 MP 3, ¶ 10
(N. Mar. I. March 31, 2011) (not yet certified for publication)
(stating that the phrase “at the pleasure of” in the context of
employment is “a synonym for ‘at-will’ ”). But the final draft,
amended after a public hearing, used the “for cause” language
instead. The record does not disclose precisely what occurred
at the public hearing, but from the textual change we assume
that the hearing likely included at least some discussion of ter-
mination protections for the Special Assistant.
At oral argument, both parties hypothesized that the Second
Constitutional Convention intended at least to some degree to
depoliticize the position, to insulate it from the political
games that might otherwise influence a governor’s decision to
replace a Special Assistant. Counsel for Peter-Palican stated
that the Special Assistant was intended to be a kind of gadfly,
whose purpose of advancing women’s rights — and her
actions in furtherance of that purpose — could trigger ani-
mosity among other government officials. Such a person
would need some sort of protection against her removal in
order for her to be nonpolitical and effective. Thus, it could
be that the Convention intended section 22 to mean that the
Special Assistant may never be removed without cause, even
by a subsequent governor.
2772 PETER-PALICAN v. COMMONWEALTH N. MARIANA ISLANDS
We do not believe this is the only rational construction of
the provision, however. The Commonwealth argues that other
language in section 22, when read in context with the “for
cause” sentence, supports such an alternate interpretation, as
does the nature of the office itself. In addition to the “for
cause” provision, section 22 also states that “[t]he governor
shall appoint a person, who is qualified by virtue of education
and experience, to be the special assistant.” (emphasis added).
For several reasons, it seems reasonable to construe the words
“the governor” to mean “each governor.”
First, just as there is no express limitation on the term of
the Special Assistant once a governor appoints her, there is
also no express limitation on any subsequent governor’s
power or responsibility to appoint a Special Assistant. With-
out any such limitation in the text or further explanation in
case law, an incoming governor might indeed have the power
to appoint a special assistant of that governor’s choice. Read-
ing the “governor shall appoint” language together with the
“for cause” language could suggest that the Special Assistant
is protected from termination without cause by the governor
who appointed her, but that such protection does not extend
past the term of that appointing governor.
Second, as the Commonwealth points out, the Special
Assistant is a cabinet-level appointee. She is charged with for-
mulating and implementing the policy of the governor with
respect to affirmative action and women’s issues, assisting
administrative agencies with implementing such programs,
recommending legislation to the governor and the legislature,
and promulgating administrative regulations regarding
women’s rights. N. Mar. I. Const., art. III, § 22. The Special
Assistant works closely with the governor and his administra-
tion, and if Peter-Palican’s interpretation is correct, a gover-
nor might be forced to confer with a Special Assistant who
does not share the governor’s preferred policies on women’s
issues. Some political appointments, in order to accomplish
their objectives, require that the appointees agree with the
PETER-PALICAN v. COMMONWEALTH N. MARIANA ISLANDS 2773
administration on policymaking and on those policies them-
selves. Cf. Branti v. Finkel, 445 U.S. 507, 515-16, 517-18
(1980) (a public employee may be terminated on the basis of
political belief without violating the First Amendment if “the
government can demonstrate an overriding interest of vital
importance,” for example, if the employee’s position requires
“that a person’s private beliefs conform to those of the hiring
authority” or involves policymaking or confidentiality (inter-
nal quotation marks and citation omitted)).
The Commonwealth notes that, in some jurisdictions, “[t]he
general rule is that a governmental body may not, in the exer-
cise of its powers, appoint an individual to a term extending
beyond the term of office of the governmental body. The term
of an appointed office . . . expires with the expiration of the
term of the appointing body.” Rawlins v. Levy Court of Kent
County, 235 A.2d 840, 841 (Del. 1967). Such a default rule
can be justified by the nature of the political branches of gov-
ernment. Each administration generally has the same powers
and duties as the next — or the former. See Zerr v. Tilton, 581
P.2d 364, 372 (Kan. 1978) (“And the test generally applied is
whether the contract at issue, extending beyond the term [of
the contracting authority], is an attempt to bind successors in
matters incident to their own administration and responsibili-
ties . . . [,] [i]n [which] case the contract is generally held
invalid.” (internal quotation marks omitted)).
Under this reasoning, just as one governor has the power to
appoint a Special Assistant, so might the next governor. This
is not to say that the Commonwealth cannot alter this general
rule, but it does give us reason to be wary of adopting Peter-
Palican’s interpretation without further guidance from the
Commonwealth Supreme Court.
Finally, the Convention’s substitution of the ultimate “for
cause” language for the initial “at the pleasure of the gover-
nor” language is not dispositive of the meaning of Article III,
section 22. Although the change in the proposed amendment
2774 PETER-PALICAN v. COMMONWEALTH N. MARIANA ISLANDS
certainly evidences an intent to ensure that the Special Assis-
tant’s appointment would not be at-will, it does not necessar-
ily follow that the Special Assistant can remain in office even
under a subsequent — and unwilling —administration. With
no evidence in the record of the substance of the public hear-
ing on the draft of the 1985 constitutional amendment, we
cannot say with certainty that the Convention intended to
grant the Special Assistant a lifetime appointment.
Our concerns engendered by the lack of controlling prece-
dent are equally applicable to the implied constitutional tort
theory utilized by the district court under the Restatement
(Second) of Torts. Article III, section 22 says nothing about
a private right of action, unlike other provisions of the Com-
monwealth Constitution that expressly address the issue. See,
e.g., N. Mar. I. Const. art. I, § 3(c) (“A person adversely
affected by an illegal search or seizure has a cause of action
against the government within limits provided by law.”); N.
Mar. I. Const. art. X, § 9 (“A taxpayer may bring an action
against the government or one of its instrumentalities in order
to enjoin the expenditure of public funds for other than public
purposes or for a breach of fiduciary duty.”).
The Commonwealth Code adopts the Restatements “in the
absence of written law or local customary law to the con-
trary.” 7 N. Mar. I. Code § 3401. The Restatement (Second)
of Torts permits, but does not require, a court to imply a right
of action for a violation of a statutory or constitutional right
where there is no express remedy provided:
When a legislative provision protects a class of
persons by proscribing or requiring certain conduct
but does not provide a civil remedy for the violation,
the court may, if it determines that the remedy is
appropriate in furtherance of the purpose of the leg-
islation and needed to assure the effectiveness of the
provision, accord to an injured member of the class
a right of action, using a suitable existing tort action
PETER-PALICAN v. COMMONWEALTH N. MARIANA ISLANDS 2775
or a new cause of action analogous to an existing tort
action.
....
[Comment a.] As used in this Section, the term “leg-
islative provision” includes . . . constitutional provi-
sions.
Restatement (Second) Torts, § 874A & cmt. a (emphasis
added). Section 874A uses the word “may”; therefore, imply-
ing a private right of action for damages for a violation of the
Commonwealth Constitution is permissive rather than manda-
tory.
The Commonwealth Supreme Court has not yet considered
whether Article III, section 22 gives rise to a private right of
action. In fact, we have found only two cases in which § 874A
of the Restatement was cited, and in both cases the court
declined to address the issue. Juan v. N. Mar. I., 2001 MP 18,
¶ 27 (N. Mar. I. 2001) (“Assuming, without deciding, that
Article I, § 3(c) [of the Commonwealth Constitution] directly
provides a private right of action, persons subjected to an ille-
gal or wrongful search or seizure[ ] have a right to institute a
civil action against the government for damages.”); Char-
fauros v. Bd. of Elections, 1998 MP 16, ¶ 42 n.8 (N. Mar. I.
1998) (“Plaintiffs asserted no cause of action in the complaint
for damages arising from the violation of Article I, § 6 [of the
Commonwealth Constitution]. We need not now, therefore,
consider whether such an action is “appropriate” or “neces-
sary” under RESTATEMENT (SECOND) OF TORTS § 874A.”).
The permissive nature of § 874A persuades us that the
Supreme Court is better equipped to resolve the question. We
have little specialized expertise in Commonwealth law and,
therefore, little way of knowing whether, faced with the situa-
tion here, a Commonwealth court would exercise its discre-
tion under § 874A to imply a private right of action. The
2776 PETER-PALICAN v. COMMONWEALTH N. MARIANA ISLANDS
important question of whether the territorial government may
be sued, particularly for money damages, pursuant to a private
right of action implied from that territory’s constitution
should not to be decided in the first instance by a federal
court.
B
The Answers to the Certified Questions Will Be
Determinative
The Supreme Court’s decision on the first certified question
— the interpretation of Article III, section 22 — will defini-
tively resolve the question of whether Peter-Palican can pur-
sue a § 1983 due process claim for violation of that provision.
The threshold requirement of a due process claim is the exis-
tence of a liberty or property interest. The Due Process Clause
prohibits the government from depriving an individual of such
an interest without following the proper procedures for doing
so. Property interests “are created and their dimensions are
defined by existing rules or understandings that stem from an
independent source such as state [or territorial] law,” Town of
Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005) (internal
quotation marks omitted), and “[p]ublic employees who may
be dismissed only for cause possess a property interest in their
continued employment,” Walls v. Cent. Contra Costa Transit
Auth., 653 F.3d 963, 968 (9th Cir. 2011) (per curiam).
Thus, if the Commonwealth Constitution granted Peter-
Palican a property interest in continued employment even
beyond the term of former Governor Babauta, her due process
rights could have been violated when the Commonwealth
allowed her no opportunity to contest the constitutionality of
her dismissal. If, however, Peter-Palican had no such property
interest, then she has no colorable due process claim. Simi-
larly, the Supreme Court’s answer to the second certified
question will conclusively determine whether Peter-Palican
PETER-PALICAN v. COMMONWEALTH N. MARIANA ISLANDS 2777
can assert an independent claim for damages under Article III,
section 22.
IV
CONCLUSION
There is no controlling precedent on the meaning of Article
III, section 22 of the Commonwealth Constitution or on the
existence of an implied private right of action for violation of
that section. The Commonwealth Supreme Court’s answers to
the certified questions will be determinative of the issues in
this appeal, and that court is in a much better position to inter-
pret its own constitution. Because the Commonwealth
Supreme Court should have the opportunity to define the
meaning of the Commonwealth’s foundational document,
“considerations of comity and federalism favor resolution of
the certified question[s] by [the Commonwealth’s] highest
court.” Orange Cnty. Dep’t of Educ. v. Cal. Dep’t of Educ.,
650 F.3d 1268, 1269 (9th Cir. 2011).
For the foregoing reasons, we respectfully request that the
Supreme Court of the Commonwealth of the Northern Mari-
ana Islands accept certification of the two questions identified
in Part I of this request.
V
ADMINISTRATIVE INFORMATION
Counsel for the parties are as follows:
For Plaintiff-Appellee Emerenciana Peter-Palican:
Douglas F. Cushnie
Proas Lane
P.O. Box 500949
2778 PETER-PALICAN v. COMMONWEALTH N. MARIANA ISLANDS
Saipan, MP 96950
(670) 234-6830
For Defendants-Appellants Commonwealth of the
Northern Mariana Islands and Governor Benigno R.
Fitial in his official capacity:
Gilbert J. Birnbrich
Office of the Attorney General
Juan A. Sablan Memorial Building,
Second Floor
Caller Box 10007, Capital Hill
Saipan, MP 96950
(670) 664-2341
Pursuant to Northern Mariana Islands Supreme Court Rule
13(b), the clerk of this court is hereby directed to forward this
request, under official seal of the United States Court of
Appeals for the Ninth Circuit, to the Commonwealth Supreme
Court. The parties shall notify the clerk of this court within
seven days of any decision by the Supreme Court to accept or
to decline certification. If the Supreme Court accepts certifi-
cation, the parties shall then notify the clerk of this court
within seven days of the issuance of that court’s opinion. Sub-
mission of this appeal is deferred pending the Commonwealth
Supreme Court’s response to this request.
SUBMISSION DEFERRED AND QUESTIONS
CERTIFIED.