By Moneth G. Deposa
Variety News Staff

THE counsel for Rep. Stanley T. Torres and Jack A. Angelo yesterday appealed the decision of the Commonwealth Utilities Corp. hearing officer asserting that the higher power rates had been legally implemented by the administration.
Attorney Wesley M. Bogdan filed the appeal with CUC because, he said, “there is no way of knowing when the newly appointed (Public Utilities Commission) will be lawfully seated and prepared to perform the duties, such as hearing appeals of billing disputes, they were created to hear….”
He said CUC’s complaining customers “certainly cannot just assume that the CNMI Superior Court will readily hear this appeal on the hearing officer’s recommendation or a verbal stipulation of the parties.”
CUC hearing officer Linn Asper has said that the complainants have “the right to request judicial review.”
According to Bogdan, their appeal can also be considered a motion for reconsideration.
The complainants are disputing the legality of Gov. Benigno R. Fitial’s decision to implement the new CUC electric rates in July 2006 which they said was an abuse of his constitutional and statutory emergency powers.
In his ruling, Asper said the Legislature “has affirmatively enacted interim provisions of law that will maintain the current CUC electric rate structure as adopted in the July 2006 CUC regulations, until such time as it is changed by CUC or superceded by PUC rate-making. Given the extensive affirmative involvement of the CNMI Legislature in the CUC electric rate-making process, the constitutional objections to Executive Order 2006-04 no longer apply…. As a result, customers are not entitled to summary adjudication on the dispositive issue of law that they raised in their motion….”
Bogdan disagrees. “At issue in this appeal,” he said, “is the concept of following the written rule of law and not making-it-up as you go along.”
He said Asper’s reasoning, “reads something (like): ‘OK, what the governor did was clearly wrong, but after it happened, and after the billing disputes had been filed, what the Legislature did was reach back and cure that past constitutional violation and also retroactively kill the legal grounds, basis and foundation of the billing disputes.”
Bogdan said Asper’s decision “clearly failed to recognize that at the moment the complaining customers initiated their billing disputes, they were entitled to have those disputes fairly resolved based on the law in place at the time and upon the facts that had occurred at that point.”
Asper, Bogdan added, “completely ignored” the following:
• The effective dates of the laws CUC claims validated its new rate schedule came after the fate the billing disputes at issue were initiated;
• The public laws reveal no intent to be applied retroactively;
• Even if the Legislature intended to apply the laws retroactively, newly enacted statutes containing substantive changes to law can only be applied prospectively.
CUC, Bogdan said, “simply ignores and sweeps under the carpet blatant violations of law this administration initiated when it gutted CUC’s enabling statute and…empowered CUC…to implement an illegal rate for the electricity they sell…. CUC’s attempt to wash its hands of its wrongdoings by relying on the…Legislature’s subsequent affirmation of the executive branch’s illegal actions cannot disguise the fact that the Legislature is prohibited by the Constitution from enacting ex-post facto laws and neither P.L. 15-35 nor 15-40 contain explicit approval of the rate CUC now charges…nor is there any indication that these so-called ‘curative’…laws were intended to be applied retroactively.”
Bogdan said the Legislature cannot “ratify the unconstitutional acts” of the executive branch and/or CUC and the denial of the customers’ complaint “must be reversed.”
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