THE Office of the Attorney General and the Department of Finance’s motion to dismiss does not articulate any valid jurisdictional defect concerning former Gov. Ralph DLG Torres’s petition, his defense team said.
As such, the OAG and DOF’s motion to dismiss Torres’s petition for a judicial review of an agency decision regarding the contract of special prosecutor James Robert Kingman is improper and should be dismissed, the defense team added.
Represented by attorneys Viola Alepuyo, Matthew Holley, Victorino Torres, and Anthony Aguon, the former governor has challenged Finance’s refusal to issue a declaratory order on the validity of an employment contract between the AG’s office and Kingman, an off-island attorney.
The former governor filed a petition in Superior 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, former Gov. Torres named the Finance Department 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.”
According to the petition, the special prosecutor’s contract does not comply with the procurement regulations.
Named as respondent, the OAG filed a motion to dismiss the former governor’s petition for judicial review, saying the petition improperly included the OAG and failed to exhaust the former governor’s administrative remedies.
In addition, the OAG stated that the case is not ripe for judicial decision and the former governor lacks standing as he is not aggrieved by the contract based on his assertion that he is being unlawfully prosecuted.
Finance also requested the Superior Court to dismiss the petition of the former governor, and to affirm the departments administrative order that it lacked authority to issue a declaratory order with regard to an existing contract.
“The petition must be dismissed for failure to state a claim upon which relief can be granted, because the DOF properly determined that it did not have authority to issue the declaratory ruling requested in the DOF 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,” Finance stated.
But according to the defense team, “The OAG does not contend or allege that any procedural irregularities occurred in the matter while it was being addressed at the Department of Finance. Therefore, the OAG is precluded from seeking to rely on any facts or evidence outside of the agency’s record in connection with its dismissal motion, and the court should disregard any such evidence that is not in the administrative record for this matter.”
“It cannot be disputed that the OAG, as a signatory to the special prosecutor contract, has a direct interest in this petition for judicial review of that special prosecutor contract. The OAG is accordingly a proper party,” the defense team added.
“Here, there is nothing in the administrative record to suggest that the DOF’s dismissal is not a final agency decision. Specifically, the administrative record does not address or mention any ratification of the special prosecutor’s contract by the DOF whatsoever, and the OAG has not introduced any evidence outside of that record in support of its contention. Hence, the argument is pure conjecture or speculation, designed solely to prevent this Court from addressing the merits of the judicial review petition. Notably, the procurement regulations require an agency or expenditure authority that signed an unauthorized contract to submit a written request for ratification before the DOF can exercise any ratification power,” the defense team stated.
The OAG did not submit such a request in the administrative proceeding, it added.
“Upon review of the DOF’s ratification procedure, the OAG’s ratification assertion here seems incredulous, and appears to be nothing more than an obstreperous contention made as an attempt to create smoke and mirrors. The court should treat it as such.”
The DOF issued an order on the former governor’s request when it refused to issue a ruling and dismissed the matter, the defense team stated.
The DOF’s dismissal is the same as a final agency decision or order in contested cases, it added.
“To this extent, in a contested agency case, a judicial review petition can be pursued by a person suffering legal wrong, or adversely affected or aggrieved by the agency action. Pursuant to its express terms, the special prosecutor’s contract was entered into for the specific purpose of prosecuting Mr. Torres. In being the target of and purpose for the special prosecutor contract, Mr. Torres also satisfies the statutory criteria of 1 CMC § 9112(b) to seek a review of the DOF decision dismissing his request relating to the validity of the special prosecutor contract.
“Furthermore, the argument on whether the Attorney General has the power and authority to appoint a special prosecutor is not germane to this Court’s jurisdiction and authority to decide on the Petition.
“And although such arguments may be relevant to the validity of the special prosecutor’s contract under NMIAC § 70-30.3-30, they concern the merits of a defense and not any jurisdictional defect that may be relevant here,” the defense team stated.
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.
As of Thursday afternoon, the local Supreme Court had not issued an order appointing an off-island judge pro tempore to preside over the civil case following the recusal of the CNMI Superior Court’s five judges.
Presiding Judge Roberto C. Naraja, Associate Judges Kenneth L. Govendo, Teresa Kim-Tenorio, Wesley Bogdan and Joseph N. Camacho recused themselves from the case, citing varied conflicts of interest.
