AG: Violation continues every time an elected official receives paycheck

Attorney General Edward Manibusan has asserted that the statute of limitations has not run in his lawsuit that challenges the legislative salary increases because the violation continues every time an elected official receives a paycheck.

Manibusan, through counsel assistant attorney general Michael Witry, also argued that Finance Secretary Larrisa Larson is the proper defendant in his lawsuit because she is the one who must be restrained from paying illegal salaries, and that the statute of limitations does not prevent this case because the public sustains a new injury each time an illegal paycheck is issued.

In her motion to dismiss Manibusan’s lawsuit, Larson argues, among other things, that the “all other actions” statute of limitations of six years bars the government’s challenge to the legislative salary increases found in Public Laws 7-31 and 4-32 because they went into effect more than six years ago.

Larson does not cite any authority in support of this position, said Witry in Manibusan’s opposition to Larson’s motion to dismiss.

Citing previous court rulings, Witry said it is well-established that where an unconstitutional law causes ongoing harm, the “continues enforcement of the unconstitutional statute cannot be insulated by the statute of limitations.”

Witry said the continuing violation of doctrine provides that statute of limitations begins to run when the plaintiff is harmed by the unconstitutional statute, and resets every time a new harm occurs under that statute.

Witry said even though previous salary increases occurred more than six years ago, this lawsuit is not untimely.

He said the harm alleged by Manibusan—the payment of unconstitutional salaries—is an ongoing injury that occurs each time a payment is made.

He said in the alternative, a new unconstitutional action occurs every two years, when a new legislature takes office and begins to receive unconstitutional pay.

Witry said payments that are currently being made are based on unconstitutional prior raises.

Witry said P.L. 19-83 calculated the new salary amounts using previous unconstitutional figures.

The Legislature, he said, is currently receiving the unconstitutional pay set forth by P.L. 7-31, and if P.L. 7-31 is struck down, it will begin to receive the unconstitutional pay set forth by P.L. 4-32.

Accordingly, Witry said, Manibusan’s claims concerning this ongoing constitutional violation are not barred by the statute of limitations.

Witry said Manibusan has standing to bring this court action under the common law powers of the AG.

He said the AG as chief legal officer is “uniquely suited to challenge the legality and constitutionality of an executive or legislative action as a check on an allegedly unauthorized exercise of power.”

Witry said because the AG has the express constitutional authority to prosecute violations of Commonwealth law, and because prosecutions are not limited to criminal actions, the AG has the constitutional right to bring a civil case to enjoin the government from acting unconstitutionally.

Witry said this case is ripe for adjudication because the pay raise is inevitable and the case rests purely only legal issues.

Witry said the CNMI Treasury is currently in possession of approximately $28 million in unappropriated funds.

“This is more than enough money to fund the illegal pay increases through a supplemental appropriation, should the Legislature and Gov. Ralph DLG Torres choose to do so.

Witry said Larson is the proper defendant because she controls the expenditure of public funds.

Manibusan’s lawsuit alleges that Public Law 19-83, which provided the salary increases, is unconstitutional because the Advisory Commission that recommended such increase was not validly constituted, and that such increase recommended by the Commission for the legislature exceeded the change in an “accepted price index” since the last time the salary was adjusted.

Manibusan asked the Superior Court to issue preliminary and permanent injunctions to prevent Larson from implementing the law.

MD: Attorney General Edward Manibusan has asserted that the statute of limitations has not run in his lawsuit that challenges the legislative salary increases because the violation continues every time an elected official receives a paycheck.