FORMER Gov. Ralph DLG Torres, through his lawyers, has requested the Superior Court to deny the Office of the Attorney General’s motion for a stay of the order disqualifying Assistant Attorney General James Kingman and the entire OAG from prosecuting Torres.
“The Prosecution’s Motion for a Stay has not set forth any basis for staying the disqualification order, vacating the October 14 hearing, or staying all future proceedings in this case. The Motion for a Stay should accordingly be denied,” said defense attorneys Victorino Torres, Matthew Holley, Viola Alepuyo, and Anthony Aguon.
Judge Pro Tempore Arthur Barcinas, citing a “conflict of interest,” disqualified the OAG from prosecuting Torres, who was charged with misconduct in public office.
Judge Barcinas also declined to appoint a new special prosecutor, saying that he “defers to the executive branch to execute its prosecutorial authorities in the case.”
The OAG has appealed the disqualifying order to the CNMI Supreme Court, saying that Judge Barcinas “invalidated” the OAG’s constitutional duty as the CNMI’s sole prosecuting authority in prosecuting the former governor.
The OAG also filed a motion for a stay of the disqualifying order.
Following the filing of the motion, Judge Barcinas ordered the parties to submit responsive briefs. He ordered the former governor to file the opposition by Sept. 30 and the OAG to submit its reply brief by Oct. 4.
Likewise, Judge Barcinas scheduled a hearing by Zoom for Oct. 7 at 10 a.m.
The defense argument
According to the defense attorneys, “Based on Olopai v. Hillblom, 3 N.M.I. 528 (1993), the Supreme Court lacks jurisdiction over the interlocutory appeal of this court’s disqualification order. Accordingly, the Commonwealth’s interlocutory appeal does not present any basis for a stay. Moreover, this Court lacks the authority to disregard Olopai, which has been the law in the Commonwealth for thirty-three (33) years. For instance, Olopai has been held to apply to an interlocutory order denying substitution of counsel.”
“Even more so,” the defense added, “denial is also proper as the Commonwealth neglects to cite Olopai or bring the binding precedence to this court’s attention, or even make any argument that this Court should ignore the binding precedence. It cannot now seek to make any argument that this Court should disregard Olopai, as it has waived any such issue by failing to raise or develop it in its moving memorandum.”
“The constitutional argument for a stay also lacks traction under Commonwealth law,” the defense attorneys stated. “Torres v. Manibusan, 2018 MP 4, holds that the Constitutional amendment to Article III, § 11 did not bestow any new constitutional power or authority on the Attorney General. Rather, the amendment merely changed the AG from an appointed office to an elected office. Moreover, the Superior Court in Commonwealth v. Buckingham addressed the constitutionally of disqualifying the entire Office of the Attorney General in a criminal case. Crim. No. 12- 0134 (NMI Super. Ct Sept. 4, 2013) (Order Denying Def.’s Mot. to Dismiss at 3). In doing so, it addressed the constitutional arguments raised in the current motion and concluded that disqualification of the OAG does not infringe on the constitutional authority extended to the AG by Article III, § 11 of the Commonwealth Constitution.”
Background
In December 2021, then-Governor Torres, a Republican, was found by a Democrat-Independent-led House Judiciary and Governmental Operations Committee in contempt of a legislative subpoena for refusing to appear before the panel, which was investigating his public expenditures.
On April 8, 2022, the Office of the Attorney General charged the former governor with 12 counts of misconduct in public office and one count of theft relating to the issuance of airline tickets for business class, first class, or other premium class travel for himself and/or Diann T. Torres, his wife. The OAG also alleged one count of contempt for failure to appear in compliance with a legislative subpoena.
The former governor denied the charges.
