Bid to dismiss Hunter’s OGA lawsuit denied

Superior Court Associate Judge David A. Wiseman dismissed the Lottery Commission yesterday as a party in the Open Government Act lawsuit filed by private citizen Glen Hunter over the passage of the casino law.

In the same ruling, Wiseman denied a motion to dismiss the CNMI government and Gov. Eloy S. Inos from Hunter’s lawsuit.

Wiseman ruled that retaining the Lottery Commission as a party in the case would serve no purpose, as it has not violated the OGA provisions itself.

While dismissing the Lottery Commission as an improper party due to its lack of involvement or control over the Legislature, Wiseman said he cannot in good conscience dismiss Inos under these circumstances, as the governor involved himself in the process by signing the bills into law.

In the same decision, Wiseman denied the CNMI government’s motion to dismiss Hunter’s claims. The judge also denied the CNMI Legislative Bureau’s motion to dismiss the claims against House Speaker Joseph P. Deleon Guerrero and Reps. Rafael S. Demapan and Felicidad T. Ogumoro.

Wiseman also denied Senate President Ralph Torres’ motion to dismiss the claims against him.

Wiseman ordered the parties in the lawsuit to be present at a case management conference on Nov. 6, 2014, at 1:30pm.

Hunter is suing the CNMI government, Inos, the Lottery Commission, Torres, Deleon Guerrero, Demapan, and Ogumoro.

Hunter, through counsel Jennifer Dockter, has asked the court to rule that the OGA applies to the Legislature, and that the lawmakers in the lawsuit are before the court for violating their public notice provisions.

The defendants urged the dismissal of the case against them, claiming that the OGA is unconstitutional as it applies to the Legislature, that the alleged violations are not justiciable, and that legislators are protected by immunity.

At the hearing, Senate legal counsels Jose A. Bermudes and Antonette R. Villagomez represented Torres. House counsels John Cool and Joseph Taijeron served as counsels for Deleon Guerrero, Demapan and Ogomuro.

Assistant attorney general Reena Patel appeared on behalf of the CNMI, the Lottery Commission, and Inos in his official capacity.

Wiseman heard the motions last July 2 and placed the matters under advisement.

The case arises from the passage of two bills—HB 18-179 (casino bill) and HB 18-182 (amendment to the casino bill)—by the Legislature, where the required public notices were issued less than 72 hours before the sessions when the bills were passed, or the agenda in the public notice failed to include both bills as topics for discussion.

In his order yesterday, Wiseman ruled that Hunter’s claims are justiciable because the Legislature’s authority to craft its own procedural rules is not absolute, and its actions may be examined under the lens of the CNMI Constitution and applicable statutes.

In dismissing the Lottery Commission from the lawsuit, Wiseman said an injunction or declaratory judgment against the commission would be redundant and unnecessary in the event that the court does hold the legislators to the standards the OGA imposes upon them, since the laws enabling and requiring their operation may be rendered null and void.

In denying the motions to dismiss the claims against the lawmakers, Wiseman said the legislators are not entitled to legislative immunity as they have not met their burden of demonstrating that their actions to pass both bills constituted protected legislative activity.

“Justice, and more importantly, the CNMI’s own people, have called for transparency, accountability, and public participation in the policy making process, especially in circumstances such as these where the future of the CNMI and its economy are at stake,” Wiseman said.

The judge said the court will not shy away from that charge, as the people have entrusted it with the power of judicial review of the actions of its elected officials, and will hold the Commonwealth’s politicians to the high standards enumerated by the OGA provisions.

“Public participation in policy making is one of the most important aspects of a functioning democracy, and the strictures placed around such legislative activity will not be taken lightly by this court in this instance or any other,” Wiseman added.