THE House Committee on Judiciary and Governmental Operations has asked the Superior Court to dismiss the lawsuit of Governor Ralph DLG Torres for failing to state a claim for which relief may be granted.
The Republican governor was found by the Democrat-led committee in contempt of a legislative subpoena for refusing to appear before the panel which was investigating his public expenditures.
Represented by his legal counsel Gil Birnbrich and the Banes Horey Berman & Miller law firm, the governor has asked Superior Court to find the subpoena invalid and unlawful.
In response to the governor’s amended complaint for declaratory and injunctive relief of Torres, the JGO committee represented by House legal counsels Joseph L.G. Taijeron Jr. and Brendan Layde said, “The complaint in this lawsuit does not state a claim upon which relief could be granted and should therefore be dismissed under Rule 12(b)(6).”
Moreover, they said, it fails to join the attorney general of the Commonwealth as a required party “and he must be joined under Rule 19. If he cannot be so joined, the suit should be dismissed under Rule 12(b)(7).”
According to the House legal counsels, the governor’s complaint “consists in large measure of conclusory or speculative inferences rather than concrete factual allegations.”
They added, “Given the allegations in the instant complaint, there is no legal theory that could sustain recovery, whatever evidence might be proffered to substantiate them at trial. The complaint lacks sufficient factual accompaniment. It also makes specific factual allegations that are provably untrue, for instance, that the investigation was not referred to the JGO by the full House, or that no legislation related to the investigation was pending at the time the subpoena was issued.”
House JGO Chairwoman Celina Babauta had sent plaintiffs an enumerated list of legislation related to the investigation three days before this lawsuit was filed, the House legal counsels said.
They said the governor’s complaint would also warrant dismissal even under the “no set of facts” standard, for the following reasons:
1) The JGO committee has absolute immunity against suit for actions undertaken pursuant to official legislative functions under the Speech or Debate Clause of the NMI Constitution. The action should therefore be dismissed.
2) The subpoena was issued pursuant to a valid legislative purpose and therefore constitutes legitimate legislative activity for purposes of Speech or Debate Clause immunity.
The House legal counsels said the “Office of the Governor could easily have sued Attorney General Edward Manibusan as a named defendant for declaratory and injunctive relief. (Whether a court would actually grant a civil plaintiff the relief of enjoining a criminal prosecution on the facts at bar is a different matter.) But it did not do so. If the Attorney General can be joined, he must be. If he cannot be joined, the action must be dismissed.”
No one is above the law, not even the governor of the Commonwealth, the House legal counsel added.
In his complaint, Torres said the governor “is not and cannot be lawfully held in contempt of the committee, the House of Representatives or the Legislature for failing to comply with” a legislative subpoena.
According to the governor’s complaint, “It violates the principle of separation of powers for one branch to ‘command’ another branch to take any action whatsoever.”
“In particular,” the complaint added, “it violates the Constitution and the Covenant for a committee of one of the Legislative Branch to command the live testimony of the Governor, particularly at a time and place for the length of its choosing, and especially on subjects that would implicate information protected by executive privilege. Such an action interferes with the function of the Executive Branch.”
On Dec. 16, 2021, CNMI Supreme Court Chief Justice Alexandro C. Castro appointed former Judge Timothy H. Bellas to be the judge pro tempore in the lawsuit after Superior Court Presiding Judge Roberto C. Naraja, Associate Judges Wesley Bogdan, Kenneth Govendo, Teresa Kim-Tenorio and Joseph N. Camacho recused themselves from the case.
Citing the “highly partisan atmosphere” of their client’s civil complaint, Torres’ attorneys recently requested the Superior Court to appoint a judge from outside the CNMI “who has no ties or allegiances, real or perceived,” to Commonwealth politicians.
