Babauta, Atalig want subpoenas quashed

Gov. Juan N. Babauta and Finance Secretary Fermin M. Atalig asked the Superior Court yesterday to quash the subpoenas that compel them to appear and testify in court today and produce documents in connection with the $3.45-million land compensation claim by the Malite estate and the lawsuit filed by attorney general Pamela Brown to prevent its release.

In separate documents submitted to the court, Babauta and Atalig anchored their arguments on almost identical grounds, citing, among others, that compelling them to testify as court witnesses would unduly interfere with their official duties and responsibilities.

Atalig said the subpoena issued him was “purely motivated to unduly burden, harass, vex and embarrass him.”

Babauta’s legal counsel, Steven Newman, also said the defendants in the lawsuit have not established the existence of extraordinary circumstances or compelling reasons to justify the use of subpoena on his client.

Newman said the governor received a copy of the subpoena on Tuesday. The subpoena commands him to appear at the courtroom of Superior Court judge Juan T. Lizama at 9am today.

Attorneys for defendants Marianas Public Lands Authority, its acting commissioner Edward DeLeon Guerrero, and its board of directors, caused the issuance of the subpoena last Monday.

Citing numerous precedent rulings, Newman said the use of subpoenas against high government officials should be controlled due to public policy considerations. He said this is applicable in the case of Babauta, on whose office is vested the executive power of the Commonwealth.

“Defendants must also establish that the testimony and documents sought from [Babauta] in his official capacity…are not available from another witness,” stated Newman, who alleged that MPLA, its board and acting commissioner have failed to do this.

Babauta also assailed the subpoena on the ground that it fails to afford him reasonable time for compliance, a procedural requirement in court proceedings. He also said the subpoena would require him to disclose privileged matters protected by attorney-client relationship.

In a sworn declaration, Babauta admitted that he met the MPLA and its officials, and defendants Commonwealth Development Authority and Malite estate administrator Jesus Tudela on Nov. 29, before the attorney general filed the lawsuit. He said the CDA board of directors and MPLA attorney Alan Lane “did not directly respond to my question” when he asked if they would advise their clients to release the money being claimed by the Malite estate.

“Attorney Pedro M. Atalig did not hear the foregoing discussion due to the aforementioned fact that he had abruptly left without comment during the first part of the meeting,” Babauta said.

This contradicts the claim by Atalig, attorney for the estate, that the attorney general went on to file the lawsuit despite Babauta’s instruction to release the land compensation claim.

Meanwhile, the Finance secretary cited numerous legal grounds identical to the arguments raised by the governor in asking the court to quash the subpoena.

Additionally, his lawyers, assistant attorneys general James Stump and Kenneth Barden, said any testimony by the Finance secretary regarding the purposes of the Land Compensation Act, its applicability to the case, and the time of taking of the land and its valuation would be inadmissible as evidence.

“Under the circumstances of this case, given the relevance of testimony and inadmissibility of opinions, the subpoena issued to the Secretary of Finance is purely motivated to unduly burden, harass, vex, and embarrass him,” said Stump and Barden.

Similar subpoenas were issued against attorney general Brown, assistant attorneys general Benjamin Sachs and Daniel L. Furrh, CDA board chair Sixto K. Igisomar and executive director Maria Lourdes S. Ada. Disregarding a subpoena may result in being cited for contempt of court.

The attorney general had initiated the lawsuit to prevent the drawdown of $3.45 million from the government’s land compensation fund, on the allegation that the Malite estate’s land compensation claim is “spurious.”

She had also asked the court for a preliminary injunction to prevent the release of the claim, citing a “strong appearance of ethical impropriety and conflicts of interest” in its approval.

The Trust Territory court awarded some $3,682 to the Malite estate in 1978 for the condemnation of a parcel of land that now forms part of Saipan’s Marianas High School. The Malites insist they did not get the money.