This intention would be seemingly foolhardy, ill-advised, dangerous, and overwhelmingly detrimental to retirees and their own and the Fund’s financial interests.
This is because any intervention by CRA, or efforts by the Fund/Board to enforce the $231 million judgment before the CNMI Judiciary, at present, might result in the $231 million judgment disappearing — being overruled, modified, reversed, or vacated by the CNMI Government’s appeal to the CNMI Supreme Court.
I. HERE IS WHY:
1.Right now, the $231 million CNMI Superior Court judgment is final and can not be appealed since the deadline in which to file an appeal has expired.
2. But the CNMI law designated 1 CMC §7207 “effectively limits the [CNMI’s] liability to whatever amount it appropriates each fiscal year towards settlements and judgments.” June 29 Judgment at pages 7-8.
3. The CNMI Superior Court “agrees that 1 CMC §7207 may curtail its ability to ensure the enforceability of its judgments [including the $231 million judgment].” June 29 Judgment at page 9, 1st full paragraph.
4. “[T]his issue is not before the [CNMI Superior] Court at this time…” June 29 Judgment at page 8, 1st full paragraph.
5. But meanwhile, “[t]he [U.S.] District Court for the Northern Mariana Islands recently addressed this issue and held that 1 CMC §7207 does not apply to the Federal Court. June 29 Judgment at page 8, final paragraph (citing Sept. 30, 2008 U.S. Court/NMI Order Granting Motion for Writ of Execution, and, n the alternative for an order n aid of judgment in U.S. Court Civil Action No. 05-0043).
II. HERE IS WHAT WILL HAPPEN IF CRA INTERVENES IN SUPERIOR COURT:
6. If CRA/others now intervene in the Fund proceeding and then ask the CNMI Superior Court to enforce/collect the $231 million judgment;
7. Or if even the Fund/Board themselves now ask the CNMi Superior Court to enforce/collect the $231 million judgment;
8. Then the CNMI Government will tell the CNMI Superior Court that 1 CMC §7207 applies, and THAT since no appropriations have been made this fiscal year towards settlement of the $231 million judgment, then the judgment can not and must not be paid either this year, or during any other year during which such appropriations are not made.
III. THEN WHAT WILL HAPPEN — “BOOTSTRAPPING”:
9. This CNMI Government argument will then lead to a ruling by the Superior Court which will decide if 1 CMC §7207 is lawful or not, or violates constitutional protections or not;
10. If as expected (from the comments in the June 29 Judgment at page 9, final 2 paragraphs), the Superior Court rules that 1 CMC §7207 is unlawful and violates constitutional protections;
11. Then of course the CNMI Government will appeal that ruling;
12. AND THEN the CNMI Government will file an appeal in which the CNMI will attempt to challenge before the CNMI Supreme Court not only the ruling declaring 1 CMC §7207 unlawful, BUT ALSO challenging before the CNMI Supreme Court the validity of the $231 million judgment award itself…this kind of challenge to an otherwise final judgment is called “bootstrapping.”
IV. WHAT BAD MIGHT THEN HAPPEN — GOODBYE $231 MILLION JUDGMENT:
13. Of course a lot of delay would occur, during which the Fund/others would be prevented from enforcing/collecting the $231 million judgment against the CNMI Government;
14. And the CNMI Supreme Court might then rule that the $231 million judgment should disappear — by effect of the CNMI Supreme Court then overruling, modifying, reversing, or vacating Judge Govendo’s $231 million judgment;
V. WHAT INSTEAD SHOULD BE DONE? TWO THINGS:
A. First, CRA Should Intervene In The U.S. Court Roe Proceeding
15. If CRA wants to get involved, CRA should try to intervene in the Roe case before the U.S. Court ;
16. There, it will be possible for CRA to agree with the Roe plaintiffs’ request that the U.S. Court declare 1 CMC §7207 as violating both U.S. and CNMI constitutional protections;
17. There, it will be also possible for CRA to agree with the Roe plaintiffs’ request that the U.S. Court enforce the $231 million judgment, using U.S. Court powers, laws, remedies, and resources not available in or to the CNMI Courts (and at U.S. expense instead of CNMI expense) — including enforcement by the U.S. Marshals as to any CNMi assets seized to satisfy the $231 million judgment;
18. There, it will be further possible tor the CRA to join in Roe plaintiffs’ assertion that the U.S. Court should refrain from invoking the doctrine of abstention/comity and, instead, declare unlawful 1 CMC §7207, while enforcing the $231 million judgment, as a matter of necessity given conflicts of interest described in the U.S. Court’s January 25, 2010 ruling involving the Fund/Board members and their “utmost” fiduciary duties to retirees.
19. There, it will additionally be possible for the CRA to oppose any of those avenues of relief Plaintiffs now seek but CRA might oppose, including Plaintiff’s request for imposition of a federal receivership.
19. This will prevent the “Goodbye $231 Million” possibility because whatever the U.S. Court rules will leave the CNMI Superior Court’s $231 million judgment intact and NOT APPEALABLE BY BOOTSTRAPPING to the CNMI Supreme Court.
B. Second —CRA/Others Should File
A NEW “Declaratory” Lawsuit In CNMI Superior Court:
20. If CRA/others want to get more involved (are you listening Stanley Torres, Ron Barrineau, Tina Sablan, Ron Hodges, Heinz Hofschneider, Lorenzo Ayuyu), they can and should file a NEW CNMI Superior Court proceeding —separate and distinct from the pending Fund lawsuit;
21. This new proceeding should be what is called a “declaratory judgment” lawsuit;
22. In this new “declaratory judgment” lawsuit, the plaintiffs — CRA or others — should simply assert ONE AND ONLY ONE claim as CNMI residents and/or taxpayers (e.g. via CNMI Constitution Article X Section 9)(providing for attorney fees to prevailing plaintiffs);
23. This ONE AND ONLY ONE CLAIM in the “declaratory judgment” action should request that the CNMI Judiciary declare 1 CMC §7207 unlawful and/or unconstitutional.
24. And then, even if the CNMI Government appeals a CNMI Superior Court ruling saying 1 CMC §7207 is illegal, THIS WOULD NOT LET THE $231 MILLION JUDGMENT BE BOOTSTRAPPED or disappear — or be overruled, modified, reversed, or vacated by CNMI appeal to the CNMI Supreme Court.
25. Indeed, this Second Choice is exactly what the Fund/Board lawyers should seemingly have themselves done months ago, when Judge Govendo issued his June 29 Judgment — but they have not done this…of course, they are hired through Board/Fund personnel who are appointed by the current CNMI Governor and/or beholden to the Governor and/or his supporters for their nice Fund-paid jobs at the moment.
BRUCE JORGENSEN
Roe Plaintiffs’ Counsel
