Subpoena issued by JGO committee still in play, says DC attorney

THE subpoena issued by the House Committee on Judiciary and Governmental Operations against Gov. Ralph DLG. Torres is still in play even though the impeachment proceeding has commenced, according to Washington, D.C. attorney Ross Garber who appeared via remote video before Superior Court Judge Pro Tem Timothy Bellas at a hearing on Thursday.

“This is a rare issue where a legislative body issues a subpoena to a sitting chief executive,” said Garber who represents Gov. Ralph DLG Torres. “It just does not happen that legislative bodies push the separation of powers boundary like this.”

According to Garber, the U.S. Congress has never subpoenaed the testimony of a sitting President. “And the instances that it comes up in the states are rare,” he added.

To the extent immunity applies to a legislative committee, it does not apply whenever there are colorable claims of separation of power violations, he said.

The invocation of legislative immunity, does not trump other provisions of the Constitution, and it does not override separation of power issues, Garber added.

“This is an opportunity for the judiciary to evaluate the separation of power issues, which are very rare,” he said.

Torres, a Republican governor, was found by the Democrat-led House JGO committee in contempt of a legislative subpoena for refusing to appear before the panel, which was investigating his public expenditures.

Torres has sued the JGO committee, saying that the subpoena it issued was invalid and unlawful.

Also representing the governor in his lawsuit are his legal counsel Gil Birnbrich, and the Banes Horey Berman & Miller law firm.

The law firm’s attorney Richard Miller, for his part, asked the court to deny the JGO’s motion to dismiss, and convert the defendant’s motion to a summary judgment.

“Our rules don’t provide for the court to try the facts on the motion to dismiss,” he said.

Miller said by bringing outside evidence, the JGO committee wants the court to weigh the evidence now. 

“Does the court need outside evidence to decide the motion to dismiss?” he asked. The answer is “a firm no,” Miller added. 

He also said that the court “can still grant the governor an injunction against the committee even though the governor has been impeached [by the House] and [is now] facing trial in the Senate.”

“The committee could reissue the subpoena to the governor to testify for its own alleged legitimate purposes independent of the impeachment,” Miller added.

The JGO committee’s legal counsels Joseph L.G. Taijeron and Brendan Layde are asking the court to dismiss the lawsuit, asserting that the subpoena served on Torres has a valid legislative purpose.

Interesting

“It’s interesting to note, the Governor chose to resort to NMI courts after expressing certain lack of faith in the NMI judiciary bench,” said Layde referring to an alleged ex parte communication between the governor’s counsels and the local Supreme Court clerk of court.

“In any event, this acrimonious and contentious dispute between the executive and legislative branches, the executive branch now seeks to conscript the judicial branch,” Layde added.

“It is not the merits of the governor’s substantive objections to the JGO committee’s subpoena which sought to compel Governor Torres to testify on Dec. 10, 2021 in the House chamber that brought us here,” Layde said.

“Rather, what brought us here today is the propriety of the Governor suing the JGO committee for injunctive and declarative relief, notwithstanding legislative immunity conferred on the House committee by the CNMI Constitution,” he said.

Layde said unlike the federal legislature, the CNMI’s has a specific constitutionally enumerated power to compel testimony of witnesses.

“Its statutory authority, interestingly, actually predates the Commonwealth — those statutes were promulgated in the Trust Territory code…and carried over upon the creation of the CNMI,” he added.

After hearing the arguments from the parties, Judge Bellas placed the matter under advisement.

Faith in the judge

Outside the courtroom, Layde told reporters: “We agree with the court that the judiciary was placed in this position in having to arbitrate between the executive and legislative branches, and we also do not relish that the judiciary was placed in that position.”

“But,” he added, “we have faith in Judge Bellas’ acumen. It is very interesting to see how this case moves procedurally as well as what the consequences will be to the other related proceedings,” referring to the governor’s impeachment.

Also present at the hearing were the Democratic Party’s gubernatorial candidate Rep. Tina Sablan, her running mate Rep. Leila Staffler, Vice Speaker BJ Attao, Reps. Vicente Camacho, Corina Magofna, Joel Camacho, John Paul Sablan, Donald Manglona and Celina Babauta who witnessed the hearing through remote video. All voted to impeach the governor.

Unprecedented

Gil Birnbrich, the governor’s legal counsel, issued the following statement after the court hearing:

“We thank Judge Bellas for allowing our off-island counsel to participate remotely and wish to thank the court staff in making it happen. The Governor and his legal team also acknowledge the professionalism of Judge Bellas and opposing counsel at the hearing on defendant’s motion to dismiss. It was clear that Judge Bellas had thoroughly read the parties’ briefs and thoughtfully reviewed the issues.  

“The issues presented in the case are certainly unprecedented in the CNMI. Never before has an ordinary committee of a house of the legislature attempted to subpoena a sitting governor and force him to appear before them.

“We believe our arguments opposing the House Committee’s motion to dismiss are strong and look forward to moving ahead to the next phase of the case.”

Brendan Layde