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    Monday, July 24, 2017-12:56:27A.M.

     

     

     

     

     

AG opposes motion to dismiss lawsuit against Finance

THE Office of the Attorney General says its common-law powers enable the AG to file suit to prevent violations of commonwealth law — even if those violations are committed by the commonwealth government itself.

This was the AG’s response to the Department of Finance secretary who asked the Superior Court to dismiss the lawsuit against her office filed by the AG over the implementation of the legislative pay hikes for public officials.

AG Edward Manibusan in his official capacity, filed a declaratory judgment against the salary increases for the members of the Legislature, the governor and the lt. governor on behalf of the people of the CNMI, and he named Finance Secretary Larissa Larson in her official capacity as a defendant.

It was Assistant Attorney General Michael Witry who filed an opposition to the Finance secretary’s motion to dismiss.

Witry said the harm caused by the unconstitutional pay increase is concrete enough to adjudicate because the pay raise will definitely go into effect.

He said the question of the constitutionality of Public Law 19-83 is ripe for adjudication.

“The current controversy is concrete and not based on hypothetical future events that may not occur, while the funds to implement the law have not yet been appropriated, the pay increases are inevitable,” Witry added.

He said the Finance secretary has not presented sufficient justification for waiting to determine the constitutionality of the statute until salary payments are actually made to members of the Legislature and to the governor and lt. governor.

In fact, Witry added, “waiting until after payments are made would present additional complications and hardship — the court would be faced with determining how to retrieve the illegal payments after the funds had already been paid.”

Witry said these concerns weigh in favor of immediate resolution of the issues before the court.

He said the AG’s position is that the statute is facially unconstitutional, foreclosing any need to postpone the lawsuit until the statute is applied

Witry said the Finance secretary is the proper defendant because she controls the expenditure of the funds, and that is why she was sued in her official capacity.

“The secretary of Finance is precisely the party who must be enjoined from issuing salaries to elected officials that are higher than the salaries allowed by the commonwealth Constitution because there is a direct causal connection between her constitutional responsibility to control public funds and the payment of elected official salaries out of public funds.”

Wintry said the statute of limitations has not run out because the violation continues every time an elected official receives a paycheck.

Even though previous salary increases occurred more than six years ago, Witry said this action is not untimely.

The payment of unconstitutional salaries is an ongoing injury that occurs each time a payment is made — payments that are currently being made based on unconstitutional prior raises, Witry said.

He said Public Law 19-83 calculated the new salary amounts using previous unconstitutional figures. The Legislature, he added, is currently receiving the unconstitutional pay set forth by Public Law 7-31, and if P.L. 7-31 is struck down, it will begin to receive the unconstitutional pay set forth by P.L. 4-32.

Finance Secretary Larrisa Larson, through her attorneys Matthew Gregory and Kimberlyn K King-Hinds, filed the motion to dismiss and motion to disqualify in Superior Court on March 6, 2017.

Gregory said the AG’s complaint should be dismissed because it is barred by the statute of limitations.

The Finance secretary also seeks the disqualification of the AG.

“There is no law constitutional, statutory or ethical authority allowing the AG to represent a client one day, give him legal advice with regard to pending legislation, then sue the same client the next day on a purported cause of action arising out of the identical controversy,” said Gregory, a former AG.

As the chief legal officer of the CNMI Government, he said the AG is constitutionally mandated to advise and represent the secretary of Finance, in her official capacity on many matters pertaining to the department.

As part of that duty, he added, it is the AG’s obligations to advise her against the implementation of laws which he deems unconstitutional, not sue to enjoin her from implementing a law which he has yet to advise her of.