James Robert Kingman
JUDGE Pro Tem Arthur Barcinas denied the Department of Finance’s motion to dismiss the petition of former Gov. Ralph DLG Torres, who is seeking a judicial review of the department’s decision regarding the contract of special prosecutor James Robert Kingman.
Torres is challenging Finance’s refusal to issue a declaratory order on the validity of an employment contract between the Office of the Attorney General and Kingman, an off-island attorney.
Torres, through his defense team, filed a petition in court requesting a judicial review of a May 17, 2023 final administrative order by the secretary of Finance, who stated that the department had no authority to issue a ruling and declare that the special prosecutor’s contract executed by the Office of the AG in connection with Commonwealth v Torres, Criminal Action No. 22-0050 was invalid.
In his judicial review petition filed on June 15, 2023, Torres named Finance and the AG’s office as respondents.
The nine-page petition asked the court to vacate or set aside the final agency decision, saying that “it is arbitrary, capricious, an abuse of discretion and/or contrary to law.”
The special prosecutor’s contract does not comply with the procurement regulations, the petition added.
Finance, represented by Assistant Attorney General Dustin Rollins, asked the court to dismiss the petition and affirm Finance’s administrative order, which stated that it lacked authority to issue a declaratory order regarding an existing contract.
According to Rollins, the petition must be dismissed for failure to state a claim upon which relief can be granted. He said the DOF properly determined that it did not have authority to issue the declaratory ruling requested in the petition.
“The declaratory rulings procedure under the Commonwealth Administrative Procedure Act is used to determine how a statutory provision, rule, or order of an agency applies to the particular facts or case raised by the petitioner,” he said.
He added, “If agencies were required to issue declaratory rulings for determinations already made, theoretically, any person, whether an interested party or not, would be entitled to request a ruling with respect to every contract ever entered into by the Commonwealth or any agency decision ever rendered. That, without question, would be an absurd result.”
Judge Barcinas, in a seven-page order on June 26, denied Finance’s motion to dismiss.
The judge said the NMI Rules of Procedure for Administrative Appeals’ express language states that these rules govern in the event of any conflict with the NMI Rules of Civil Procedure.
He said the NMI Rules of Procedure for Administrative Appeals concerning motions to dismiss expressly state that they may be filed “for failure to exhaust administrative remedies or any other alleged jurisdictional defect.”
Judge Barcinas finds that “the circumstances support a sensible inference that any causes for dismissal beyond jurisdictional defect were intentionally excluded.”
“The Court finds this to indicate that, when bringing a petition for judicial review of an agency decision, only motions to dismiss brought pursuant to a jurisdictional defect are proper. DOF’s motion, brought for failure to state a claim upon which relief can be granted, does not fall within that category, and is therefore improperly brought,” the judge added.
Kingman was initially hired by the AG’s office as a special prosecutor in its misconduct-in-office case against the former governor pertaining to first-class travel.
On June 20, 2023, Gov. Arnold I. Palacios informed the Legislature that he had certified and approved Kingman’s employment as an assistant attorney general with an annual salary of $85,000.
Five days later, the AG’s office announced that Kingman would head a task force to investigate and prosecute government corruption, white collar, and financial crimes.
