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Adm. Matter OCA IPI No. 05-1673-MTJ.
JULIET A. YEE vs. JUDGE EDGEMELO C. ROSALES, MTCC, BRANCH 8, CEBU CITY AND CLERK OF COURT EVELYN G. BACALLA, MTCC, BRANCH 8, CEBU CITY
Third Division
Sirs/Mesdames:
Quoted hereunder, for your information, is a resolution of this Court dated APR. 5, 2006
Adm. Matter OCA IPI No. 05-1673-MTJ (Juliet A. Yee vs. Judge Edgemelo C. Rosales, MTCC, Branch 8, Cebu City and Clerk of Court Evelyn G. Bacalla, MTCC, Branch 8, Cebu City)
This concerns the Report dated 14 November 2005 on the administrative matter submitted to the Office of the Court Administrator (OCA).
In a Verified Complaint [1] cralaw dated 21 January 2005, Juliet A. Yee charged Judge Edgemelo C. Rosales of the Municipal Trial Court in Cities (MTCC), Branch 8, Cebu City, with Gross Ignorance of the Law and Incompetence, and Clerk of Court Evelyn G. Bacalla of the same court with Gross Dereliction of Duty, relative to Criminal Cases No. 123817-R to No. 123829-R for violations of B.P. Blg. 22, entitled "People of the Philippines vs. Juliet A. Yee."
The complaint stemmed from the alleged erroneous service of notices, orders, and subpoenas upon Atty. Arlyn A. Pelaez, counsel for accused who is the herein complainant. It was alleged that despite her counsel's Entry of Appearance [2] cralaw which indicated the latter's office addres, personally filed with the Clerk of Court who duly received the same, the notices, orders, and subpoenas from the court were sent to the Zamboanga City Police Station with a letter request [3] cralaw that the latter serve the processes to her counsel. This allegedly resulted in the failure of her counsel to receive copies of five (5) court orders, including the one which directed the return of her cash bond. Hence, complainant charges that respondent judge is remiss in the supervision of his staff and respondent clerk of court in performing her duties. Respondent judge is also charged with gross ignorance of the law for the orders he issued (1) terminating the preliminary conference for failure of complainant and her counsel to appear despite due notice; (2) allowing reception of testimonial evidence of the private complainant in the criminal case despite herein complainant's and her counsel's absence; and (3) forfeiting complainant's right to cross-examine the prosecution witness.
Respondents were required to comment on the complaint. In his Comment
[4]
cralaw
dated
As to the charge of gross ignorance of the law, respondent judge explained that the termination of the preliminary conference due to the inexcusable absence of a party to a case is not prohibited by the Rules on Summary Procedure, which is applicable to the criminal case, and is even impliedly sanctioned to avoid delay in the disposition of the case.
Respondent clerk of court likewise denied the charge of
dereliction of duty in her Comment
[7]
cralaw
dated
In its Report [8] cralaw dated 14 November 2005, the OCA finds the complaint to be bereft of merit and recommends its dismissal. It was clear to the OCA that the notices and court processes were addressed to counsel for complainant at her address in Zamboanga City, but instead of being sent directly to her, were coursed through the Zamboanga City Police Station, with a request that they be served upon the parties concerned. The OCA observes that such mode of service is sanctioned by the Rules of Court, particularly Section 6, Rule 21 thereof, which allows personal or substituted service of subpoena, and Section 3, Rule 14, that allows service of summons by, among others, any suitable person authorized by the court issuing the summons. Counsel for complainant had received previous orders and court processes via service by the PNP of Zamboanga City. By accepting the notices and court processes served in this manner, complainant had consented and cannot now question the same.
As to the charge of gross ignorance of the law, the OCA also finds that respondent judge cannot be held accountable for every erroneous order or decision they issued where a judicial remedy is available, such as a motion for reconsideration, an appeal, or a petition for certiorari. Disciplinary proceedings are not complementary or supplementary of, nor a substitute for, these judicial remedies. To hold otherwise would be to render the judicial office untenable for no one called to try the facts or interpret the law in the process of administering justice can be infallible in his judgment. It is only where the error is tainted with bad faith, fraud, malice, or dishonesty that administrative sanctions may be imposed against the erring judge. [9] cralaw According to the OCA, no such elements were positively shown in this case.
The complaint should be dismissed. We adopt the findings and conclusions of the OCA with regard to the charge of gross ignorance of the law against respondent judge. With respect to the charges of incomepetence and dereliction of duty against respondent judge and the clerk of court, the same should also be dismissed, but we do not wholly agree with the OCA's observations that the manner of service by respondents is sanctioned by the Rules of Court.
Under the Rules, summons should be served by the sheriff, his deputy or other proper court officer, or for justifiable reasons, by any suitable person authorized by the court issuing the summons [10] cralaw and service of pleadings, motions, notices, orders and other papers are made either personally or by mail. [11] cralaw In the service of summons or subpoenas, only service by those persons enumerated under the Rules is valid. The enumeration is exclusive. [12] cralaw In instances where the defendant is residing in another province, the Court as a matter of practice, deputizes the sheriff of the court nearer to the place of residence of the defendant for expediency. The expenses incurred therefore, shall be reimbursed by the Supreme Court upon presentation of the required documents. [13] cralaw
The Rules do not allow the service of court processes by persons who are not members of the judiciary or properly deputized by the courts. A non-judicial person has no place in the judicial service. [14] cralaw The service and implementation of court processes by persons not so authorized is not recognized by the Rules and may make the judicial officers responsible for such unauthorized service liable. In Office of the Court Administrator v. Judge Veneracion , [15] cralaw Judge Veneracion was found guilty of grave misconduct and suspended from office for three (3) months without pay while his co-respondent, the Branch Clerk of Court, was found guilty of simple misconduct and fined for allowing the assignment of a non-judicial employee to the staff of the RTC.
The practice adopted by the MTCC Branch 8 of serving notices, orders, and subpoenas through a letter request addressed to the PNP Station Commander is not supported by the Rules or by any administrative circulars or issuances of this court. Such practice is clearly irregular. However, such deviation from the norm is not enough to merit the imposition of stiff penalties upon respondents in view of the complainant and her counsel's tacit approval of the manner of service of previous court orders, notices, and subpoenas upon them. In receiving the court processes served upon them by the PNP of Zamboanga City and subsequently participating in the trial, complainant and counsel are deemed to have waived their right to question any irregularities in the process. This is not to disregard our ruling in Veneracion , [16] cralaw but said case is different from the one at bar. In said case, Judge Veneracion assigned his Deputy Sheriff IV to the Office of the Clerk of Court in order that Rogelio Tria, an employee of the Economic Intelligence and Investigation Bureau (EIIB) of the Department of Finance, could be designated to perform the functions of "Acting Deputy Sheriff IV" considering the position vacant. It was also found that Judge Veneracion had made repeated requests for the detail of Tria to his court and even sought the help of the Executive Secretary and a retired Supreme Court Justice after the head of the EIIB denied his request for detail. Judge Veneracion's actions showed disregard of the rule in designation of acting sheriffs and constituted usurpation of the appointing authority of this Court amounting to grave misconduct in office. His Branch Clerk of Court was likewise liable for misconduct in office for following the unlawful orders of Judge Veneracion regarding Tria's assignment as Acting Deputy Sheriff IV without the authority of the Court. The element of clear intent to violate the law or flagrant disregard of established rule, manifest in Veneracion , is absent in this case.
However, we cannot turn a blind eye to the irregularity in the service of court processes by the MTCC Branch 8, especially since it is claimed that such has been the practice of Cebu City courts for many years now. We call the attention of respondents judge and clerk of court, and all the other judges and employees of the courts of Cebu City, to the pertinent Rules on proper service and to Administrative Circular No. 12 dated 1 October 1985 of this Court. The filing of this case would have been prevented if the prescribed modes of service had been followed.
WHEREFORE, the complaint against Judge Edgemelo C. Rosales and Clerk of Court Evelyn G. Bacalla of the Municipal Trial Court in Cities, Branch 8, Cebu City, is DISMISSED. Judge Rosales and Clerk of Court Bacalla are ENJOINED to cease the practice of serving court processes and notices via letter request to the PNP Station Commanders and ORDERED to adhere to the modes of service prescribed in the Rules of Court and Adminsitrative Circular No. 12.
Very truly yours,
(Sgd.) LUCITA ABJELINA-SORIANO
Clerk of Court
Endnotes:
[1] cralaw Rollo , pp. 2-7.
[2] cralaw Id. at 8-9. Attached to the Entry of Appearance is a business card indicating Atty. Arlyn A. Pelaez's address at the 2nd Floor Maisha Loveday Bldg., 280 San Jose Road, Zamboanga City.
[3] cralaw Copies of the letter request are attached to the complaint as Annexes "C", "D", "E" and "F", rollo , pp. 11, 14, 16 and 18. The letter request appears to be a standard form in the MTCC Branch 8, addressed to the Station Commander of the PNP and signed by the Branch Clerk of Court, to be filled in with the necessary details. The body reads:
Kindly effect immediate service of the enclosed ________ issued in Crim./Civil Cases Nos. _________ upon the person/s named therein who is/are said to be residing thereat.
Early return of the original __________ duly accomplished will be appreciated.
Please state in your endorsement letter whether the addressee received personally or through an agent. If received by an agent, state the name and relationship of the agent to the addressee.
[4] cralaw Rollo , pp. 41-56.
[5] cralaw "Sec. 6. Service.-Service of subpoena shall be made in the same manner as personal or substituted service of summons. x x x"
[6] cralaw "Sec. 3. By whom served.-The summons may be served by the sheriff, his deputy, or other proper court officer, or for justifiable reasons by any suitable person authorized by the court issuing the summons."
[7] cralaw Rollo , pp. 64-68.
[8] cralaw Id. at 69-71.
[9] cralaw Citing Mendoza v. Afable , A.M. No. MTJ-02-1402, December 4, 2002, 393 SCRA 390.
[10] cralaw RULES OF COURT, Rule 14, Sec. 13, supra note 6.
[11] cralaw RULES OF COURT, Rule 13, Sec. 5.
[12] cralaw Bello v. Ubo, 202 Phil. 415, 422 (1982).
[13] cralaw Per SC Administrative Circular No. 12, Guidelines and Procedure in the Service and Execution of Court Writs and Processes in the Reorganized Courts addressed to all judges and clerks of court of the Regional Trial Courts, Metropolitan Trial Courts and Municipal Trial Courts in Cities, 1 October 1985. The pertinent portions thereof state:
5. No sheriff or deputy sheriff shall execute a court writ outside his territorial jurisdiction without first notifying in writing, and seeking the assistance of, the sheriff of the place where the execution shall take place;
x x x
7. The judge may be allowed to designate or deputize any person to serve court processes and writs in remote areas in the absence of the regular sheriff thereat;
x x x
[14] cralaw Office of the Court Administrator v. Judge Veneracion , 389 Phil. 483, 494 (2000).
[15] cralaw 389 Phil. 483 (2000).
[16] cralaw Supra note 14.
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