Fitial, CEC ask court to dismiss Davis’ lawsuit

Gov. Benigno R. Fitial and the Commonwealth Election Commission are asking the district court to dismiss the lawsuit filed by John H. Davis Jr., who seeks to allow U.S. citizens who are not of NMI descent to vote on issues relating to Article 12.

Fitial, the election commission, CEC chair Francis M. Sablan, and CEC executive director Robert A. Guerrero, through assistant attorney general Gilbert J. Birnbrich, asserted that the court must dismiss Davis’ lawsuit for failing to plead a cognizable legal theory because Davis does not properly state a constitutional violation.

In a motion to dismiss filed in the U.S. District Court for the NMI on Friday, Birnbrich said civil actions claiming violations of federal statutory or constitutional rights under the color of state or territorial law must be pleaded under 42 U.S.C. Section 1983 because the provisions of the U.S. Constitution and federal laws that confer civil rights do not always provide a private cause of action.

Section 1983 states that “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state or territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

Section 1983, Birnbrich said is necessary because the 14th and 15th Amendments of the U.S. Constitution are not self-executing, and neither amendment creates a private cause of action on its face.

If the court allows Davis to amend his complaint to plead claims through Section 1983, the court nevertheless should dismiss the complaint as to CEC, Birnbrich said.

Section 1983, he said, requires the defendant to be a “person.” States and territories, Birnbrich said, are not “persons” for the purposes of Section 1983.

He said CEC is by its very nature an “arm of the Commonwealth,” since CEC is an integral part of the Commonwealth’s central government, more akin to a state police department than a regional school board. He said CEC is not a governmental corporation.

Birnbrich said while CEC can carry out its duties independent of the central government, its powers and duties are quite limited and what independence CEC enjoys is necessary to keep the election process free from political interference.

The court, he asserted, must accordingly dismiss the claims against CEC with prejudice because CEC is not a “person.”

Davis, a vice principal at Marianas High School, wants the court to declare that Article 18 Section 5(c) of the CNMI Constitution violates the 14th and 15th Amendments of the U.S. Constitution and is invalid, null, and void.

Article 18 Section 5(c) states that “in the case of a proposed amendment to Article 12, the word ‘voters’ shall be limited to eligible voters under Article 7 who are also persons of Northern Marianas descent as described in Article 12 Section 4, and the term ‘votes cast’ as used in subsection 5(b) shall mean the votes cast by such voters.” Article 12 limits landownership in the CNMI only to those of NMI descent. It is up for voters’ review this November election.

Davis wants the court to bar the defendants from denying him and other U.S. citizens who are not NMI descent the right to vote.