July 5, 2009
On July 2, 2009 Assistant Attorney General Braddock Huesman filed an Opening Brief in the CNMI Supreme Court on behalf of defendants Governor Fitial and Lt. Governor Inos. They are appealing the Trial Court's decision to release documents relating to the anti-federalization lawsuit filed by Governor Fitial in the U.S. District Court of the District of Columbia.
Last week Representative Tina Sablan filed a Motion to Reconsider in response to the Order Granting the Stay.
Huesman maintains that "the Governor and Lt. Governor claimed two exemptions under the Act, the attorney-client privilege and the litigation exception. Only the litigation exemption issue is being appealed."
The document also claims:
She also pointed out, "The trial court observed that the CNMI government's estimated litigation budget, government attorney salaries, and general budget are already matters of public knowledge, and that nothing in the records it had ordered for release indicated a maximum amount that the CNMI government would be willing to pay for litigation, nor would these records reveal strategy, litigation intention, or any information that would create a disadvantage for the CNMI in the 903 litigation."
The document also claims:
The trial court: (1) impermissibly shifted the burden to the Governor and Lt. Governor to prove that withholding the documents was clearly necessary to protect a vital government function; (2) ignored case law provided by Appellants that gave a concrete example of a court protecting billing records; and (3) relied on case law that was not analogous to buttress its erroneous conclusion.The first argument doesn't appear to be strong since Ms. Sablan successfully proved that there was no harm in releasing the majority of the documents. In the Motion to Reconsider Ms. Sablan pointed out that "after a number of briefings and hearings on the case, including an in camera judicial review of all the requested records, Appellants were clearly unable to persuade the trial court that the billing summaries, voucher/payment records, memoranda and letters between the Governor, Secretary of Finance, and the Bank of Guam, journal entries reflecting fund transfers, and the Governor's Account Ledger should not be disclosed."
She also pointed out, "The trial court observed that the CNMI government's estimated litigation budget, government attorney salaries, and general budget are already matters of public knowledge, and that nothing in the records it had ordered for release indicated a maximum amount that the CNMI government would be willing to pay for litigation, nor would these records reveal strategy, litigation intention, or any information that would create a disadvantage for the CNMI in the 903 litigation."
Her motion states:
1 CMC § 9916(b)(3) provides that "[a] stay order shall not be issued unless the court determines that there is a substantial probability that opening the records for inspection will result in significant damage."
Under the Open Government Act, the determination of a substantial probability for significant harm is the only proper standard upon which court-ordered stays may be granted. Appellants not only fail to meet the OGA standard in their Motion for Stay, they completely ignore it, citing instead another standard that is improper in the context of the OGA for reason discussed further below.
The OGA standard for stays on court-ordered disclosure is necessarily a difficult one to meet, consistent with the express legislative intent of the Act. According to 1 CMC 8 9901, the intent of the Act is to ensure that the actions of the government be made openly, and that the people remain informed so that they may retain control over the instruments of government they have created. Further, 1 CMC § 9901 clearly provides that the Open Government Act must be liberally construed in favor of open records: "the provisions requiring open meetings and records shall be liberally construed, and the provisions providing for exceptions to the Act shall be strictly construed against closed meetings and nondisclosure of records." Exemptions are provided under 1 CMC § 9918(a), but even those exemptions are inapplicable to the extent that records may be released in redacted form to protect personal privacy or a vital government function, or to the extent that the Superior Court finds, after a hearing, that the nondisclosure of records in whole or in part would be clearly unnecessary to protect personal privacy or a vital government function. 1 CMC § 9918(b)-(c).
The second argument concerning the billing records is also not a strong argument since Associate Judge Wiseman ruled that specific billing records would not be released.
Additionally, Huesman claims, "The Department of Justice has already used one of Rep. Sablan’s letters in an effort to dismiss the 903 Litigation. There is no reason to think this won’t happen again."
Sure they could! They could question why an elected official, a respected CNMI representative, has to take the governor to court to get answers to simple questions like how is the lawsuit being funded.
It is not surprising that the DOJ used Representative's Sablan letter in their Motion to Dismiss. Fitial's lawsuit was not endorsed by the CNMI Legislature. This is a significant point since many consider it a personal vendetta rather than a lawsuit filed with the backing of the public and legislature.
There was also the legal question of the AG not representing the Commonwealth in the litigation as Rep. Sablan pointed out:
It is my understanding that the Attorney General is not a signatory to either the lawsuit, or to any of the contracts related to the lawsuit, and that the Attorney General has not explicitly approved of the lawsuit in writing. Please explain whether or not the lawsuit complies with Article III, Section 11 of the CNMI Constitution, which requires that the CNMI Attorney General “shall be responsible for providing legal advice to the governor and executive departments, representing the Commonwealth in all legal mattersWhen the lawsuit was filed on September 12, 2008 the Attorney General was Matt Gregory who was not involved in the anti-federalization lawsuit. Gregory resigned soon after the lawsuit was filed.
Only after the DOJ filed a Motion to Dismiss, which mentioned the relevant points made in Rep. Sablan's letter, did Acting Attorney General Greg Baka submit a letter to the U.S. District Court stating that Jenner and Block could represent the CNMI.
The Supreme Court has scheduled a hearing on the Motion to Reconsider the stay on disclosure for July 8, 2009 at 10am.
So much secrecy. So much protest. What are they hiding?
8 comments:
Breaking news: Judge Alex Munson denies Villagomez defense motions
So much secrecy. So much protest. What are they hiding?
This is the ultimate in circular arguments.
As Heinz campaigned on in 2005, “Follow the rules.” Is it that inconceivable that an OAG sworn to uphold and protect the constitution and laws of the CNMI to the best of their abilities, so help them God, would do exactly that?
This is the very best explanation of why the OAG is putting their hearts and souls into faithful execution of the laws, including the OGA.
These are not private counsel, getting paid by the hour or on a contingent basis. They have no long-term professional interest whatsoever other than to ensure that the Rule of Law is faithfully obeyed.
By ignoring this most basic answer intuitively obvious to the most casual observer, one is left with the most absurd conspiracy theories and speculative fantasies about what the OAG is hiding.
“Follow the rules.”
Noni 8:03AM:
You said: "Is it that inconceivable that an OAG sworn to uphold and protect the constitution and laws of the CNMI to the best of their abilities, so help them God, would do exactly that?"
Let me put that same lame logic to you in another way:
Is it that inconceivable that an OAG sworn to uphold and protect the constitution and laws of the CNMI to the best of their abilities, so help them God, would not do exactly that?
I mean, what kind of statement is that? You are talking about an administration that has just seen a sitting LT get convicted of a Federal Crime (was that inconceivable, mrB? Was he also not sworn to uphold the constitution 'so help him god'?), a bill that passed the 15th legislature that has just been deemed unconstitutional (inconceivable as well, mrB?), a governor who filed and proceeded with a lawsuit against the Federal Government without the express consent of the AG until after the fact and even then there is still nothing in writing that shows the AG has given this a nod of approval (inconceivable, mrB? our constitution seems to say he should have gone through yoru office initially.) and I can go on and on.
Please don't expect us to just relinquish our ability to question and investigate the powers that be simply because they have taken oaths to uphold the "rules of law".
The intent of the OGA is based on that one principle:
“The Legislature finds and
declares that all public commissions, boards, councils, committees, subcommittees,
departments, divisions, offices, and all other public agencies of this Commonwealth exist to aid in the conduct of the people’s business”
“The people of this Commonwealth do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on
remaining informed so that they may retain control over the instruments they have created.”
mrB, it is time that you abandoned your lame circular arguments and FOLLOW THE RULE OF LAW! Even after a proper hearing as mandated by the Rule of Law (in which both sides argued their case) and a final judgement you still refuse to FOLLOW THE RULE OF LAW.
So to circle around again due to your inability to directly answer the questions, what are you hiding?
Dear anonymous commenters:
If someone comments on this site as "anonymous"
could you please address the commenter as anonymous? We have no way of knowing who actually wrote anonymous comments and if an anonymous person is called out or identified, it could be a mistake. Thanks so much.
Will do.
BTW:
mrB = MR BLOGGER
NONI A: Can I get the records of how much was billed and spent on the 903 litigation thus far?
NONI B: No.
NONI A: Why not?
NONI B: That is confidential and would put us at a disadvantage if the Feds knew.
NONI A: But you have already publicly come before the legislature and informed them that you would estimate it to cost about 50K/month and last about 6 months.
NONI B: Yes. We have. Therefor, we are not being secret.
NONI A: So, can I get the billing records and payments made up till now then?
NONI B: No, that is not information that the defense in our lawsuit can get. And if we show you that information it would put us at a disadvantage.
NONI A: What disadvantage would you be put in if you have already disclosed your estimated budget?
NONI B: See! We have already disclosed it so we are not being secretive. So why are you arguing that we are.
Should I go on?
There most recent filing in Supreme court objecting to Tina Sablan's request to lift the stay was hilarious.
NONI B: They put the burden on us to show that harm would be done if the Fed's knew what we were budgeting and spending.
NONI A: Uhmm... you revealed what you estimated you would spend (50K a year).
NONI B: So, see we are not being secretive.
OMG... I must stop.
noni 3:47
You can't get much clearer and lucid that what you have just stated. Obviously not a pompous, verbose,self-centered and obnoxious attorney.
Many thanks.
"Simplicity is beauty"
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