FORMER Gov. Ralph Anthony Deleon Guerrero Torres, through his defense team, has asked the Superior Court for an order declaring that the contract and hiring of a special prosecutor by Attorney General Edward Manibusan is invalid and unlawful.
In their motion for declaratory relief, the defense stated that Torres is not challenging the court’s jurisdiction with the motion. “Rather, Mr. Torres is challenging the prosecution of this case by an unlawful prosecutor,” the defense said.
The Office of the Attorney General has 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 AG’s office also alleged one count of contempt for failure to appear in compliance with a legislative subpoena.
The former governor has denied the charges.
Torres’s attorneys — Viola Alepuyo, Victorino DLG Torres, Matthew Holley and Anthony Aguon — argued that the attorney general and his office lack the authority to appoint and hire a special prosecutor for this case.
“Commonwealth law clearly allows the judiciary to appoint a special prosecutor,” the defense motion stated. “Commonwealth law also sets out when the Office of the Attorney General has authority to appoint a special prosecutor, namely when dealing with violations of 1 CMC § 7701. However, there is no Commonwealth law that allows the attorney general to appoint and procure a special prosecutor for this case,” the defense motion added.
1 CMC § 7701 in part states that no CNMI official may authorize payment outside of what his office budget has been authorized by the Legislature.
According to the defense, the special prosecutor’s hiring does not come within the scope of 1 CMC § 2145(a).
Under 1 CMC § 2145(a), the attorney general possesses the power and authority to hire persons as assistant attorneys general pursuant to 1 CMC § 2154(a).
Section 2154 authorizes the attorney general to employ staff, including one or more assistant attorneys general, as required to assist in performing the duties of the AG, subject to “budgetary appropriation.”
Here, the attorney general has not employed an assistant attorney general or a special assistant attorney general, but rather has hired a special prosecutor as an independent contractor.
“The special prosecutor, therefore, does not come within the scope of Section 2154,” the defense stated. “Even assuming arguendo that the ‘special prosecutor’ is construed to be a staff or an assistant attorney general under Section 2154, the special prosecutor’s employment is also unlawful and/or invalid as there is no showing that it comes within the OAG’s budgetary appropriation.”
“In response to an Open Government Act request, the attorney general unequivocally states that there are not any policies or procedures which govern its procurement of a special prosecutor. This response essentially means that 1 CMC § 2154 is inapplicable to the matter, and that the OAG’s budgetary appropriation is not a limitation or constraint on retaining a special prosecutor for this case,” the defense stated.
According to the defense, since the AG does not view the special prosecutor as being subject to 1 CMC § 2154, the issue becomes what source or authority does the AG have to procure a special prosecutor for this case.
The defense noted that the Commonwealth Code authorizes the AG to appoint a special prosecutor in only one specific circumstance:
“If the Office of the Attorney General receives reports of an alleged violation of 1 CMC § 7701 by either the governor, lieutenant governor, the attorney general, or an employee in their respective offices, and the evidence is sufficient to form a reasonable suspicion that a violation of 1 CMC § 7701 has occurred, then the attorney general shall appoint an independent special prosecutor, who is not presently an assistant attorney general, to investigate and prosecute a violation of 1 CMC § 7701 consistent with the interests of justice.”
But this case does not involve a prosecution under 1 CMC § 7701, the defense stated.
“Furthermore, 1 CMC § 7703 demonstrates that, if the CNMI Legislature wanted the attorney general to have the authority to appoint a special prosecutor, it would expressly grant the AG that power through statute. The absence of express authority therefore means that the AG’s power to appoint or procure a special prosecutor is limited to cases involving a violation of 1 CMC § 7701,” the defense added.
“Assuming arguendo that Section 7703 can somehow be construed as vesting the attorney general with authority to unilaterally procure and appoint a special prosecutor for this case, Section 7703 also clearly mandates the appointment of an ‘independent special prosecutor.’ That is not the case here, stated the motion,” the defense stated.
“The special prosecutor is not independent. According to the special prosecutor’s pro hac vice application, the local office with which the special prosecutor associates is the Office of the Attorney General. Moreover, the special prosecutor’s contract expressly and unambiguously mandates that the special prosecutor shall take direction in handling the case from Attorney General Edward Manibusan. Therefore, the special prosecutor is not independent, which is a violation of 1 CMC § 7703 and accordingly an invalid appointment.”
According to the defense, the CNMI Legislature has authorized the AG to appoint a special prosecutor in only one specific category of criminal prosecution.
“This criminal case does not fall under that category. If the CNMI Legislature intended the AG to possess the power to appoint a special prosecutor in any particular case that the AG desires, then it would not have limited the exercise of such power to only one specifically enumerated prosecution. Based on the above, it is clear that the AG lacks the power and authority under Commonwealth law to appoint a special prosecutor for this criminal case that does not involve 1 CMC § 7701,” the defense stated.
Chief Solicitor J. Robert Glass Jr. and special prosecutor James Robert Kingman of Texas represent the government in the case against the former governor whose jury trial will start on June 5, 2023.
