Pai’s bid to dismiss AG’s lawsuit denied

Superior Court associate judge Kenneth L. Govendo has denied Public Auditor Michael Pai’s motion to dismiss the lawsuit filed against him by Attorney General Edward T. Buckingham and Finance Secretary Larrisa Larson.

Govendo ruled that since both parties in the lawsuit are needed to petition the CNMI Supreme Court to certify a legal question, and the Superior Court has original jurisdiction of the case, he will hear the matter pending the high court’s review.

Article 4, Section 2 of the CNMI Constitution states that “whenever a dispute arises between or among Commonwealth officials who are elected by the people or appointed by the governor regarding the exercise of their powers or responsibilities.the parties to the dispute may certify to the Supreme Court the legal question raised, setting forth the stipulated facts upon which the dispute arises.”

Govendo said that Buckingham and Larson have stated in court that they do not wish to certify any legal question to the Supreme Court.

Govendo pointed out that one of the requirements of Article 4, Section 2 is for both parties to petition the Supreme Court to certify their legal question.

“Since plaintiffs do not intend to certify any legal question, the mandatory constitutional prerequisites will not be satisfied and the Supreme Court will decline to hear the matter,” Govendo pointed out.

He also determined that the complaint against Pai has sufficiently alleged facts to support claims for invalid and unenforceable contracts.

“Therefore the motion to dismiss for failure to state a claim is denied,” he said.

Buckingham and Larson sued Pai in June 2011 for hiring two lawyers that they said “threaten[s] an imminent waste of public funds.”

According to court records, the Office of the Attorney General received on Jan. 4, 2011, a contract for legal services to be provided by attorney Brian McMahon for OPA. The justification was that this contract would provide for a second lawyer within OPA. McMahon was understood to be the OPA’s second lawyer as Nancy Gottfried was its first lawyer.

Buckingham approved the contract on Jan. 7, 2011.

The OAG then learned that OPA had hired a third lawyer-Joseph Pryzuski-in November 2010.

The OAG provided OPA with detailed descriptions of contract errors and omissions, and provided it an opportunity to explain, comment, and correct the errors.

According to the OAG, OPA asserted a unilateral claim of power, that its contracts need not be reviewed by the OAG and need not be approved by the governor.

In their lawsuit, Buckingham and Larson argue that the contracts for McMahon and Pryzuski are invalid and unenforceable.

They contend that McMahon’s contract is invalid as Pai did not provide sufficient justification for it. They also allege that justification for McMahon’s contract contains false statements that OPA was hiring a second attorney when in fact Pryzuski has already been hired.

They asserted that Pryzuski’s contract was not received nor reviewed by the OAG or the Office of the Governor; therefore, the contract was invalid because it was not processed according to the standards of the CNMI Excepted Service Personnel Regulations.

They wanted the court to declare that the contracts for McMahon and Pryzuski are invalid and unenforceable because OPA failed to comply with the requirements of the CNMI Procurement Regulations and the CNMI Excepted Service Personnel Regulations.

Pai, through counsel Sean Frink, filed the motion asking the court to dismiss the complaint for lack of jurisdiction over the subject matter.

In denying Pai’s motion, Govendo said the statute states that the Superior Court has original jurisdiction over all civil actions.

“This is a civil action. Therefore, defendant will not succeed in dismissing the complaint for lack of jurisdiction over the subject matter,” Govendo said.