Fund wants to intervene in PSS suit vs Torres, Atalig

The NMI Settlement Fund asked the Superior Court yesterday to be allowed to intervene in a lawsuit filed by the Public School System and Education Commissioner Dr. Alfred Ada against Gov. Ralph DLG Torres and Finance Secretary David Atalig.

The NMI Settlement Fund’s lawyer, Nicole M. Torres-Ripple, said they have an interest in the subject of this proceeding, that it is entitled to the funds at issue, pursuant to the settlement agreement in Betty Johnson’s class action, and that PSS’ complaint will impair the Settlement Fund’s ability to protect its interests. She added that the CNMI government does not adequately represent the Settlement Fund in this proceeding.

At a status conference yesterday afternoon, NMI Settlement Fund trustee Joyce Tang, who appeared with lawyer Dean Manglona via video conference, informed the court that they just filed the motion to intervene. The parties’ counsel told the court that they have not seen Settlement Fund’s motion. This prompted Superior Court Associate Judge Joseph N. Camacho to continue the status conference to Friday at 2:30pm to allow the lawyers to read the motion.

Torres-Ripple filed an entry of appearance as counsel for the Settlement Fund in PSS and Ada’s lawsuit last Monday and filed the Fund motion to intervene yesterday. Just before she did that, Camacho noted that there is no motion to intervene or other mechanism before the court for the Settlement Fund to join the case. Tang lives in Guam, while Torres-Ripple lives in the CNMI.

In his order on Monday, Camacho said that, as a courtesy to Tang, he would allow Torres-Ripple to be present in the CNMI Supreme Court courtroom’s “well” and use Torres-Ripple’s cellphone to connect with Guam at the status conference yesterday afternoon. A courtroom’s “well” is where the parties and attorneys in a case sit during a hearing. If necessary, Camacho said, he may ask the Settlement Fund their position and posture on entering the lawsuit.

Camacho ordered the court’s clerk to coordinate with the Settlement Fund to appear telephonically at the status conference, which was set for yesterday afternoon.

Torres-Ripple on Monday requested the court to allow her and Tang to appear telephonically at the status conference. Torres-Ripple said she and Tang asked to appear by telephone due to travel restrictions and other circumstances resulting from COVID-19. Torres-Ripple also requested the court to serve her all notices and other documents in this case.

PSS and Ada are suing Torres and Atalig to guarantee for PSS an annual budget of not less than 25% of the Commonwealth’s general revenue. PSS and Ada, through counsel Tiberius Mocanu, alleged that Torres is in violation of the NMI Constitution because he is carrying out payments and collections under this fiscal year’s budget law, Public Law 21-08. PSS and Ada also alleged that Atalig is in violation of the NMI Constitution because every allotment and disbursement made pursuant to P.L. 21-08 is unconstitutional. PSS and Ada asked the court to declare P.L. 21-08 unconstitutional.

In their answer to the lawsuit, Torres and Atalig, through the Office of the Attorney General, said the governor’s actions are licensed by the state of emergency declared by Executive Order 2020-04, pursuant to the CNMI Constitution, the Homeland Security and Emergency Management Act, and the CNMI Emergency Health Powers Act of 2003.

The OAG asserted, among other things, that the budgetary modifications ordered by Torres are required by the statute and that the plaintiffs’ request would require the governor to violate the law and is thus illegal.

The OAG said PSS and Ada do not understand the CNMI Supreme Court’s ruling on how to determine between general revenue and special revenue.

Assistant attorney general John P. Lowrey earlier said that PSS and Ada are asking the Superior Court to declare five funds and associated sources of revenues as “general” rather than “special.” Those five funds include revenues collected from taxes on gross revenue set aside to make payments under a settlement agreement; revenues collected from hotel and container taxes set aside for the NMI Retirement Funds; revenue collected from e-gaming licensing fees set aside for the NMI Retirement Funds; revenues collected from e-gaming licensing fees set aside for the first, second, and third senatorial districts; and revenues collected from the jackpot tax set aside for the PSS technical education fund.