SUPERIOR Court Judge Pro Tem Alberto Tolentino has denied in part Gov. Ralph DLG Torres’ motion to disqualify the Office of the Attorney General from the criminal case it filed against the governor.
The judge also granted in part the governor’s motion to disqualify the OAG “as the Court finds there is an impermissible exposure to privileged and confidential information that prevents [Chief Solicitor J. Robert] Glass [Jr.] from prosecuting Defendant for Count XIV,” which is contempt for failure to comply with a legislative subpoena.
The judge said Count XIV is dismissed without prejudice, which means it can be refiled.
Background
On April 8, 2022, the OAG brought against Torres the following charges:
– Counts I-XII, Misconduct in Public Office, for 12 instances of causing premium airline tickets to be issued in violation of 1 CMC § 7404(f).
– Count XIII, Theft, for an aggregate amount over $20,000 in violation of 6 CMC § 1601(a) on the basis of causing premium class airline tickets to be issued.
– Count XIV, Contempt, for failure to comply with a subpoena in violation of 1 CMC § 1306(a).
On May 2, 2022, the governor’s defense team filed a motion for the OAG to withdraw or be disqualified as prosecutor.
At the evidentiary hearing on the motion, the witnesses were Lt. Gov. Arnold I. Palacios, Attorney General Edward Manibusan, and the governor’s legal counsel, Gil Birnbirch.
Privileged information
In his 20-page ruling dated Aug. 23, 2022, Judge Tolentino said evidence indicates that the prosecutor, Glass of the OAG, was exposed to “privileged information regarding non-appearance to a legislative subpoena as charged in Count XIV — Contempt.”
Manibusan testified that the OAG represents the executive branch in litigation and is responsible for offering legal advice after receiving an official Legal Services Request or LSR, the judge said.
He added, “Birnbrich testified to exchanging emails regarding Glass’s personal review of the Legislative Subpoena [Legal Services Request or] LSR.”
Hence, the “Court finds Glass is disqualified from prosecuting Defendant for Contempt based upon exposure to confidential information in the Legislative Subpoena LSR.”
As for the governor’s argument that the court should refer the case to be prosecuted by the Office of the Public Auditor or appoint a special prosecutor, the court said it lacks statutory authority to refer the case to be prosecuted by OPA.
The court likewise noted “the additional difficulties associated with the Public Auditor as a position appointed by the governor and the current/upcoming vacancy of the position of Public Auditor.”
The court said it has the authority to appoint a special prosecutor “in limited circumstances, [but] that ability is typically reserved for the rare circumstances in which the OAG will not uphold the law, the OAG abuses their discretion, or the OAG generally fails in their constitutional duties.”
But because the court finds that Glass can prosecute Counts I-XIII, and is fulfilling the OAG’s constitutional duty by doing so, and there are remaining options for the prosecution of Count XIV, the court said it declines to appoint a special prosecutor at this time.
“BY ORDER OF THE COURT,” the judge said, “Defendant’s Motion to Disqualify the OAG is hereby DENIED IN PART as there is no conflict preventing Chief Solicitor J. Robert Glass from charging and prosecuting Defendant for Counts I-XIII as charged in the Information.”
However, the judge added, “Defendant’s Motion to Disqualify the OAG is hereby GRANTED IN PART as the Court finds there is an impermissible exposure to privileged and confidential information that prevents Glass from prosecuting Defendant for Count XIV. Count XIV is hereby DISMISSED without prejudice.”
