“WHEN the prosecution cannot prove an essential element of an offense as a matter of law, then the charges regarding the offense must be dismissed,” said the attorneys of Gov. Ralph DLG Torres in their motion to dismiss the criminal complaint filed by the Office of the Attorney General against him.
The governor has been charged 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 first lady Diann T. Torres. He was also accused of one count of contempt for failure to appear in compliance with a subpoena.
The governor has denied the charges.
His attorneys — Victorino Torres, Matthew Holley, Viola Alepuyo, and Anthony Aguon — also filed a motion to have the AG’s office withdraw or be disqualified as prosecutor in the case.
They said the “AG is prosecuting [the] governor for an alleged violation in which the AG provided legal advice.”
The governor’s lawyers said the prosecution represented to the court that it is prosecuting Gov. Torres in his personal capacity and not his official capacity.
“This representation triggers judicial estoppel, which is sometimes called the ‘doctrine against the assertion of inconsistent positions,’” the governor’s lawyers said.
They cited the CNMI statute pertaining to misconduct in office, which reads: “every person who, being a public official, does any illegal act under the color of office, or willfully neglects to perform the duties of his or her office as provided by law….”
His lawyers said the charges in this case are anchored on Gov. Torres as governor, committing an illegal act under the color of office.
“The Commonwealth’s representation that it is prosecuting Governor Torres in his personal capacity, rather than his official one, estops the prosecution from proving essential elements of the misconduct in office statute,” they added.
“In misconduct in office cases, the requirement that the illegal act relates to the duties of the public office is meant to ensure that alleged wrongful acts did not occur while the governmental official was not acting in his private capacity as opposed to his capacity as a public officer.
“Thus, in criminal prosecutions for misconduct in public office, it is an essential element of the offense that the accused was a public official and acted in his or her official capacity.
“The same reasoning requires dismissal of the contempt charge, count 14, as the subpoena relevant to that charge was issued to Governor Torres in his official capacity. Thus, if Governor Torres is not being prosecuted for an act committed in his official capacity, then the prosecution cannot prove an essential element of the contempt charge,” his lawyers added.
They said 1 CMC § 7407(f) does not apply to an elected official.
The statute only prohibits a government “employee” who causes premium airline ticket to be issued, and it does not define “government employee” as it relates to this statute, the governor’s lawyers said.
The statute does state that the government “shall not purchase or furnish for or reimburse any employee, contractor, board members or other person required to travel on behalf of the Government,” the governor’s lawyers said.
They noted that the Department of Finance travel regulation defines “covered employees” as “employees, through government contract, that are eligible for overtime pay and other benefits.”
According to the governor’s lawyers, the finance department’s travel regulation “clearly excludes the Governor and Lt. Governor as their salaries are established by Commonwealth Law and are not eligible for overtime pay.”
Superior Court Judge Pro Tem Alberto E. Tolentino said the jury trial will start on July 5, 2022.
