Mayor, treasurer dropped from TCGCC suit in individual capacities

The Superior Court granted Wednesday Tinian Mayor Joey P. San Nicolas’ and municipal treasurer Charlene M. Lizama’s motion to dismiss them in their individual capacities from a lawsuit filed by the Tinian Casino Gaming Control Commission and some of its officials over the mayor’s refusal to pay them the salaries that TCGCC had increased in December 2014.

Associate Judge David A. Wiseman ruled that the commission’s constitutional due process right was not “clearly established” when the Mayor’s Office halted the payment of additional salaries.

“Accordingly, the Mayor’s Office is entitled to the qualified immunity defense,” said Wiseman in his eight-page order.

The Mayor’s Office, the judge pointed out, met its burden to show that the commission has not alleged a “clearly established” right on the face of its lawsuit.

“Having met this burden, the Mayor’s Office does not need to show whether their act as alleged was legally reasonable,” Wiseman said.

The judge is expected to issue a separate decision on other legal aspects of the case.

TCGCC, executive director Lucia L. Blanco-Maratita, and commission inspector Lisa-Marie B. Aguon are suing San Nicolas and Lizama for allegedly refusing to issue paychecks to them and other affected employees in the amounts certified by the commission.

Instead, the Mayor’s Office paid only the salary amount as allocated in the Budget Act.

The plaintiffs, through counsels Robert J. O’Connor and Joseph E. Horey, asked the court to compel San Nicolas and Lizama to pay them and other affected employees their full salaries.

TCGCC chair Mathew Masga, vice chair Bernadita Palacios, and commissioner Lydia Barcinas, through counsel Claire Kelleher-Smith, intervened in the lawsuit after the mayor asserted that their terms had already expired and that he would appoint three new commissioners.

The Mayor’s Office then filed a motion to dismiss.

At a hearing at the Tinian Superior Court last Sept. 1, attorneys Matthew T. Gregory and Kimberlyn K. King-Hinds appeared as counsels for San Nicolas, Lizama, and the Municipality of Tinian and Aguiguan, in their official capacities.

Assistant attorney general David Lochabay appeared as counsel for San Nicolas and Lizama in their individual capacities.

In San Nicolas’ and Lizama’s motion to dismiss, they asserted the affirmative defense of qualified immunity against the commission’s claim over violation of federal rights committed by persons acting under color of state law.

In his order, Wiseman said the Mayor’s Office carries the burden to show that the qualified immunity defense applies through a two-part inquiry.

First, Wiseman said, the pleading must not contain allegations when, taken as true, show that there was an actual violation of a constitutional right.

Second, the judge said, the right must not have been clearly established at the time of the alleged violation.

“Where the right is clearly established, then no reasonable government-official should have known that his or her acts violated the right in question,” he said.

Wiseman said for the limited purpose of ruling on the motion to dismiss for failure to state a claim, the court finds that the salary increases in question were a constitutionally-protected property interest at this time.

Therefore, he said, the Mayor’s Office did not meet its burden to clearly show that a constitutional violation did not appear on the face of the complaint.

In addressing the second step of the qualified immunity defense, Wiseman pointed out that even if the court finds that a constitutional right was violated, the qualified immunity defense still applies if the right was not “clearly established.”

Wiseman is persuaded by the Mayor’s Office’s argument that, where there are conflicting authorities and no sufficient case law to guide the correct course of action, there is no “clearly established” right.