“BECAUSE the rules do not allow any exception to the oath requirement for the special prosecutor, dismissal with prejudice is the appropriate sanction,” the defense attorneys of former Gov. Ralph DLG Torres said in response to Assistant Attorney General James Robert Kingman’s opposition to their motion.
Torres is asking the Superior Court to disqualify Kingman and the Office of the Attorney General for unauthorized practice of law.
According to Torres, Kingman has practiced law in the CNMI without taking the mandatory Commonwealth oath.
In response, Kingman asked the court to deny the motion as it has “no basis in fact or law.”
Judge Pro Tempore Arthur Barcinas will hold a hearing on the motion today, Monday, Sept. 11, at 10 a.m.
On April 8, 2022, the OAG filed a criminal case against the former governor, alleging 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 case also alleged one count of contempt for failure to appear in compliance with a legislative subpoena.
The former governor has denied the charges.
Untimely
In a 10-page reply to Kingman’s opposition, Torres’ defense attorneys told the court that the prosecution’s opposition is untimely.
“The Commonwealth failed to file its opposition by September 1, 2023, as required by the NMI Rules of Practice,” the defense team said.
“The Commonwealth’s opposition was not filed within the five-day period. It was filed on Wednesday, September 6, 2023, which is three days prior to the hearing. This untimely and late filing further complicates Mr. Torres filing a reply which, according to the rules, is due two days prior to the hearing,” the defense team said.
“The Commonwealth did not contact Mr. Torres to request an extension of time to file its opposition memorandum. Likewise, the Commonwealth did not request the Court for an extension of time to file its opposition memorandum. The Commonwealth has also not requested leave of court to file a late memorandum. Thus, the Commonwealth’s opposition memorandum is untimely and should be stricken,” the defense team added.
Kingman engaged in the unauthorized practice of law, the defense team reiterated.
“The Commonwealth hired Mr. Kingman as special prosecutor on or about February 28, 2023, but Mr. Kingman never took the required oath prior to practicing law in the Commonwealth as a special prosecutor for this case. He did not take the mandated oath of office until July 13, 2023, when his status changed from special prosecutor to Assistant Attorney General. This means that Mr. Kingman was not legally authorized to act as a special prosecutor or in any capacity as a prosecutor for this case until July 13, 2023. Thus, it cannot be disputed that any and all acts undertaken by Mr. Kingman as a special prosecutor in this case constituted an unauthorized practice of law,” the defense team stated.
Loud volumes
“Indeed, in opposing the motion, it speaks loud volumes that despite all the papers filed in opposition to Mr. Torres’s motion, the Commonwealth did not submit any document, such as an affidavit or sworn declaration, showing or stating that Mr. Kingman took the required oath prior to July 13, 2023. Because the rules do not allow any exception to the oath requirement for the special prosecutor, the only issue remaining for purposes of Mr. Torres’s motion is the appropriate sanction that should be imposed by the court pursuant to its inherent powers,” the defense team added.
“It cannot be seriously disputed that the Commonwealth Judiciary is vigilant regarding the practice of law and the unauthorized practice of law because it is a serious matter,” the defense team said.
“The Commonwealth’s efforts to trivialize the special prosecutor’s unauthorized practice supports dismissal with prejudice as it demonstrates that the Commonwealth and the Office of the Attorney General ignores, dismisses, or simply does not comprehend the seriousness of the unlawful misconduct,” the defense added.
“In opposing the motion in this case, the OAG displays indignation that it and its attorneys must comply with applicable judiciary rules and Commonwealth law like everyone else. Given that this is at least the second occasion in which the OAG has allowed, aided, and abetted the unauthorized practice of law, the casual and arrogant attitude emanating from the opposition memorandum warrants imposition of dismissal with prejudice as the appropriate sanction,” the defense team stated.
Additionally, the defense team said, “The effort to trivialize the special prosecutor’s unauthorized practice of law further supports dismissal with prejudice given the basis for the charges filed in this case. The charges against Mr. Torres are premised on 1 CMC § 7407(f), which involves a civil infraction, whereas, depending upon the circumstances, the unauthorized practice of law is a misdemeanor or felony criminal offense.”
“Even more so, like 1 CMC § 7407(f), the unauthorized practice of law by an attorney hired or employed by the OAG constitutes misconduct in office by the Attorney and the individuals in the OAG who allowed or otherwise aided and abetted the unauthorized practice of law. Hence, because the Commonwealth seemingly takes the position that violation of a statute constituting a criminal offense is no big deal, and should be disregarded by this Court, then the same reasoning should apply with greater force to alleged conduct premised on a civil infraction. That justifies dismissing this case with prejudice,” the defense team stated.
“It cannot go unnoticed that the Commonwealth goes to great lengths to use its prosecutorial powers to intimidate defense counsel for the purposes of chilling the assertion of a vigorous defense by raising the specter of sanctions pursuant to Rule 11 of the NMI Rules of Civil Procedure. Despite the heavy reliance on Rule 11, the Commonwealth neglects to inform the court that Rule 11 is inapplicable to this case,” the defense team added.
“The case at bar is not a civil case or civil proceeding. It is a criminal one. Accordingly, Rule 11 of the NMI Rules of Civil Procedure does not apply in this case,” the defense team stated.
