GOVERNOR Ralph DLG Torres’s attorneys have asked the Superior Court to dismiss the criminal charges against him, saying the prosecution was “selective and vindictive.”
“This prosecution is selective because the Office of the Attorney General has chosen not to prosecute similarly situated individuals,” the defense attorneys stated in their 24-page motion for dismissal.
“Since the civil statute on travel, Public Law 15-86, was enacted in September 2007, there has been no Commonwealth elected official, employee or board member ever charged civilly or criminally for violating this provision. This is important to note because the statute that Governor Torres is charged with is a civil statute. The OAG did not charge the numerous government officials, his opponent Lt. Governor Arnold Palacios, AG [Edward] Manibusan, former Attorney General J.P. San Nicolas nor the Marianas Public Land Trust board members, to name a few, who also flew on premium class travel. The OAG has chosen not to pursue any claims against a single other similarly situated government official relating to premium class travel,” stated defense lawyers Viola Alepuyo, and Matthew Holley.
They noted that the governor does not take the position that any of these government officials should have been prosecuted, but they were mentioned to show that there has been preferential treatment between Torres and other officials.
According to the defense attorneys, the information filed by the OAG itself provides evidence of selective prosecution.
The selective nature of Torres’s prosecution is particularly evident in that he is charged with “causing premium class travel,” stated the motion to dismiss.
The governor did not cause his premium class travel, his lawyers stated.
“His travel authorizations were submitted and approved by the Secretary of Finance and the Lt. Governor and purchased by the travel agent. According to the OAG’s theory, any one of the individuals who participated in ‘causing’ premium class travel is in violation of 1 CMC 7407(f). Yet Governor Torres stands alone in this prosecution while numerous individuals go uncharged.”
The “discriminatory prosecution was based on an impermissible motive,” attorneys Alepuyo and Holley stated.
“Governor Torres stands alone in this prosecution. Governor Torres’s prosecution constitutes a constitutionally intolerable selective prosecution for his run for governor in this year’s election and during the impeachment proceedings. Because of his run for governor, as the incumbent against Representative Tina Sablan and Lt. Governor Arnold Palacios, Governor Torres was singled out among numerous government officials.”
In counts one through 12, Gov. Torres is charged with “causing premium class travel,” and yet he is the only one ever charged under this section, his lawyers stated.
“As previously shown in the motion to disqualify (the OAG and AG Manibusan), and remains relevant to selective prosecution, AG Manibusan participated in allowing Governor Torres to use premium class travel only to turn around and charge him criminally,” the defense attorneys added.
They said he was in a position to avoid all this as the chief legal officer for the governor.
Instead, “AG Manibusan impermissibly targeted Governor Torres only, in an effort to improperly influence the impeachment proceedings and Governor Torres’ upcoming election,” the defense attorneys stated.
Free expression
Moreover, they said, the First Amendment to the U.S. Constitution does not allow for criminal prosecutions initiated to punish individuals for the exercise of First Amendment rights.
Alepuyo and Holley said the First Amendment, made applicable to the Commonwealth by Section 501(a) of the Covenant, includes among its protected rights that of free expression.
In response to the House Judiciary and Governmental Operations Committee investigation, Gov. Torres repeatedly exercised his First Amendment rights to publicly defend himself, his attorneys said.
“The inescapable conclusion is that Governor Torres was not charged because of any involvement in criminal conduct, but rather because of the political climate, and the OAG’s desire to punish him for exercising his rights to criticize the members of the House of Representatives pursuit of the premium class travel.”
The defense attorneys also said that the OAG departed from its policy to resolve the discrepancies such as the premium class travel without resorting to litigation.
AG Manibusan previously testified that this option was not afforded to a client although that was the policy — that policy has been determined to be in the best interest for the citizens of the Commonwealth, the attorneys said.
They added that the OAG’s prosecution of the case is inconsistent with the OAG’s travel policy.
Inconsistent
When representing its clients, the attorneys said, the OAG “should not take inconsistent positions with respect to legal issues, unless doing so is necessary for individual Assistant Attorneys General to represent their respective clients fairly and responsibly….”
The OAG states in its published travel policy that it “has become necessary that a written policy on official travel be established for the smooth processing and compliance with requirements set by the Department of Finance and the Office of the Governor.”
The OAG then adopted and published the following provisions relating to business class travel: Any travel authorizations or TA’s requested for the travelers whose destination requires a flight of five hours or more (point to point), one way, may be accommodated by the Government in flying Business Class or other comparable class.
The defense attorneys said the mere fact that the OAG has chosen to prosecute the governor for actions consistent with the OAG’s travel policy shows its animus towards Torres.
His attorneys said the OAG had reviewed the travel policy of the Office of the Governor as early as April 24, 2015.
But he [AG Manibusan] did not provide any “prompt, competent, and informed advice” that the policy that he reviewed was inconsistent with Commonwealth law, the defense lawyers stated.
The attorney general had an obligation to provide adequate advice when he was apparently aware of the inconsistencies of the travel regulation, the defense attorneys added.
“It is a vindictive act to provide legal advice that Governor Torres may prevail in the Supreme Court and turn around and prosecute him while the issue is pending in the Supreme Court. The AG knows very well that the criminal charge disrupts the pending civil action. It sends a chilling effect and directly undermines the Governor’s legal theories. The gravity of such conduct does not serve the interest of justice but to promote and advance the JGO’s position as well as the Articles of Impeachment.”
Torres’ attorneys stated that the OAG knew of the Office of the Governor’s travel policy since April, 2015, and formally adopted and published its OAG Travel Policy in 2016 allowing business class travel.
Gamesmanship
“It is equally vindictive to prosecute your client (Governor) when the AG passed regulations allowing similar conduct. The AG also seems to ignore the law when it comes to his own travels and own employees and gave preferential treatment to himself and others.
“The AG has engaged in dilatory tactics, gamesmanship and has been politically influenced in his prosecutorial powers all amounting to vindictive prosecution. Accordingly, this case must be dismissed.”
The defense attorneys also requested the court to issue an order for a discovery in the decision to charge Torres.
The Office of the AG’s criminal case against the governor alleges 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. The case also alleged one count of contempt for failure to appear in compliance with a subpoena.
The governor has pled not guilty to the charges.
Motion to disqualify
On May 31, 2022, after hearing arguments from the parties, Superior Court Judge Pro Tem Alberto Tolentino took under advisement the defense motion to compel the AG’s office to withdraw or be disqualified as prosecutor in the case against the governor.
At the evidentiary hearing, AG Manibusan testified that he had not given any advice to the governor regarding travel because he was not asked to provide one.
Torres’s legal counsel, Gil Birnbrich, testified regarding his communications with the prosecutor, Chief Solicitor J. Robert Glass Jr., before the complaint was filed.
Also testifying was Lt. Gov. Arnold Palacios who had to be hospitalized after he experienced numbness and significant discomfort in his lower back.
Palacios was later flown to a Hawaii hospital for further medical observation.
