SIXTEEN private attorneys have joined Public Defender Douglas W. Hartig in opposing House Bill 23-22, which proposes to give the Office of the Attorney General subpoena power.
The lawyers are Robert T. Torres, Anthony H. Aguon, Viola Alepuyo, Joaquin DLG Torres, Victorino DLG Torres, Michael N. Evangelista, Janet H. King, Oliver M. Manglona, Charity R. Hodson, Steve P. Pixley, David G. Banes, Keith Chambers, Matthew Holley, Richard Miller, Colin Thompson and Vincent Seman.
In a letter to Senate President Edith Deleon Guerrero and the chair of the Senate Committee on Judiciary, Government and Law, Celina R. Babauta, and Robert T. Torres, with the other lawyers joining and concurring, are requesting the Senate to reject H.B. 23-22, “for the dangerous and ill-conceived legislation that it is.”
Authored by the chair of the House Committee on Judiciary and Governmental Operations, Rep. Marissa Flores, the bill is supported by Attorney General Edward Manibusan.
He said the bill would allow his office “to act quickly in responding to complaints regarding all criminal matters but especially those involving misconduct by public officials.”
For its part, the Office of the Public Auditor said that while it “unequivocally supports efforts to encourage and enhance the investigation and prosecution of crimes involving public corruption, our office believes other measures might be more effective to achieving that end….”
OPA believes that “the largest current barriers to combating public corruption are the lack of suitable criminal provisions and the lack of a designated prosecutor within the OAG to focus on public corruption.”
Substitute bill
Babauta on Monday said that the lawyers’ joint letter is now with her committee for deliberation. She said their comments, along with the comments of other attorneys on H.B. 23-22, “will be taken under advisement.”
She said she has a substitute bill that addresses the concerns of all, including those of the public defender and other attorneys.
She said the substitute bill has a provision that provides a defendant the right to discovery of the information collected by a subpoena, which must be reasonable and related to a criminal investigation. A defendant can also oppose a subpoena if the investigation is “overreaching,” she added.
Abuse of power
In their joint letter, the private attorneys said, “We do not defend ‘criminals.’ We defend our citizens and our constitutional rights.” They are submitting their joint comments to the Legislature “[to] defend every Commonwealth citizen’s right against an unfettered police state at every turn, and protect those rights against abuses of power by government, including law enforcement.”
According to the attorneys, H.B. 23-22 is a legislative attempt to infringe into the people’s constitutional right of privacy and right against unlawful search and seizure.
The bill is “nothing short of an overreach” by the executive branch through the Office of the Attorney General’s Investigative Division to enlarge its power to compel the citizens and companies to produce documents without any oversight by the judiciary branch much less a CNMI grand jury.”
“Who do we trust? We trust the Constitution. The Judicial Branch serves to check against constitutional violations by Executive Branch law enforcement, by reviewing search warrants to ensure compliance with probable cause requirements for any search or seizure. The system is not perfect, but it is subject to a check-and balance process for the courts to check against abuses by the executive branch. This check includes the OAG, and it works,” the lawyers said.
Furthermore, “if the officers of the AGID are already law-enforcement officers like those of the Department of Public Safety, the Division of Customs and the Office of the Public Auditor, then we entrust those agencies to investigation and OAG to prosecution.
Robert T. Torres, said as a former attorney general, he initiated legislation for the then-Attorney General’s Investigative Unit and the Office of the Public Auditor to have law enforcement power. That was proper, he said.
“What I did not seek was to authorize AGIU officers to issue subpoenas as proposed by H.B. 23-22. Why? I believe that our Commonwealth is based on the protection of our citizens’ fundamental rights enshrined in the Fourth Amendment and I would rather respect such rights at all times, rather than leave it to the unchecked whims of men and officers of the same office who initiate prosecution. That is too much power confirmed in one office when those same AGID officers answer to one elected official in the attorney general,” he said.
H.B. 23-22 “is an example of ignorant fidelity to the executive branch and the attorney general and it cannot stand,” he added.
Grand jury
He noted that the Legislature has an absolute authority “to establish [a] grand jury of our citizens who may decide to approve criminal charges from investigations by law enforcement and reviewed by the attorney general.”
“We do not hear that call from the Attorney General to protect our citizens through our Grand Jury process,” he added.
“If the attorney general asserts that granting the AGID subpoena power is checked by the review of the Clerk of Court, we respectfully disagree. This is not the case. Has the House of Representatives not observed that the Clerk of Court of the Superior Court is not a judicial officer like a Superior Court judge?”
Robert T. Torres asked, “What compelling interest has the House JGO Committee articulated and what compelling interest has the Attorney General proffered? None. What they say is that the Attorney General wants subpoena power for his office’s investigators, without any showing of the highest level of justification for state action. Has the attorney general asked our citizens whether they agree to give him and his AGID such unbridled authority through H.B. 23-22?”
He said that he and other signatories are pointing out that NMI Rules of Civil Procedure Rule 27 already provide subpoena authority to any party that applies to a court and shows the need for the documents sought.
“Did the members of the House conduct any research, gather any data or conduct any hearings on their legislation with H.B. 23-22? … [Is] it a competent exercise in policymaking for the legislative branch to engage in perfunctory approval of legislation advanced by the attorney general?” he asked.
The lawyers describe the bill as “get tough” legislation that would “run roughshod over constitutional rights.”
“And what of a citizen’s rights when subjected to a subpoena to produce documents, records, or information from their computers, homes or property? The attorney general says the person has a right to an attorney and can go to court to seek and obtain a protective order. That is the remedy for a constitutional right?
“It is upside down and backward: the attorney general is elected by the people because it is he who is charged with protecting every citizen’s rights…. And what of citizens who cannot afford attorneys? Can the public defender, given its limited funding in the face of sufficient funding of the AGID (as stated by the Attorney General) appear in court to challenge such subpoenas? Has the Legislature provided the funds for its citizens to challenge the AGID subpoenas and hire attorneys for that purpose? At what price our Commonwealth’s Constitutional protections?”
Problems not solutions
The bill, the lawyers said, will raise concerns and produce problems, not solutions.
“By the way, where has it been shown that DPS and OPA investigators cannot investigate law enforcement abuses (you have DPS Internal Affairs) or corruption? With every challenge (and you can be sure there will be many) to an AGID subpoena, there is the specter of overreach and constitutional violations. Maybe a special prosecutor should be appointed, but this will be expensive.”
The lawyers added, “We do not and cannot yield our personal rights to one…agency….”
The lawyers said in submitting their comments “what continues to be most disappointing is the absence of discourse with the Legislature on legislation that affects our citizens’ rights.”
Court of public opinion
The attorneys said that they submitted the joint letter because of the “apparent effort, not by the attorney general, but by the House JGO Chair to use the court of public opinion and misinform our citizens as to H.B. 23-22.”
They said they have appeared at the House JGO Committee sessions “and have only been allowed public comments, only to have the attorney general come in and criticize and attack our comments to the Committee. Then the committee chairwoman muses out loud that the attorney general and the public defender should have a ‘debate’ on proposed law enforcement legislation.”
“It is bizarre,” the attorneys said, “because the legislative process requires competent and well-researched legislation where the members engage in debate and solicit testimony.”
They said the senators “would do well to ask whether H.B. 23-22 is a product of engaged discussion and process or is it a product of special interest agenda legislation advanced by one office in the executive branch?”
“To be clear, we defenders represent citizens, your constituents and our Constitution. Shouldn’t that merit more effort in the Legislature to ensure protection rather than turning deaf ears because the jaundiced eyes of some members of the JGO Committee see us, members of the CNMI Bar who engage in defending our citizens, as ones who coddle and protect criminals?” the lawyers asked.
They said they work to protect the citizens whom the Legislature is supposed to represent and protect.
They noted that the only time legislators seem to appreciate that is when they or a family member experience the criminal justice system with an arrest — “that is when the view, as they say, changes.”
“And that is the fundamental divergence of views we have with H.B. 23-22. That is exactly the reason why the Senate should reject H.B. 23-22 because it is against the best interests of our citizens and is an affront to their constitutional rights,” the attorneys said.
