Court upholds legitimacy of Brown as AG

Superior Court Presiding Judge Robert Naraja effectively upheld the legitimacy of Attorney General Pamela Brown, deferring to the Senate’s decision that declared valid her Nov. 17, 2003 confirmation under the political question doctrine.

Even if his court intervenes in determining the merits of the case, Naraja said Brown’s confirmation occurred within the 90-day statutory deadline after Gov. Juan N. Babauta nominated her to the post on June 16, 2003—and hence, valid.

Naraja issued this opinion in an order yesterday in the lawsuit filed by former Senate President Juan S. Demapan against Brown, which sought to declare the attorney general’s holding of the post as illegal.

In a July 13, 2005 order, Naraja upheld the participation of Senators Joseph M. Mendiola and Paterno S. Hocog in the Senate’s Nov. 17, 2003, Rota session, where all five present senators out of nine members voted in favor of Brown’s confirmation. Naraja also declared the validity of the actions of Mendiola and Hocog in that session.

In yesterday’s 17-page order, Naraja said that the Sept. 17, 2003 rejection of Brown’s nomination by a Senate faction composed of four members was invalid and that the faction had convened unlawfully.

Naraja deferred to the decision of the Senate, which intervened in the lawsuit that asserted that it is the final judge of its actions. The Senate had asserted that the propriety of Hocog and Mendiola’s actions in the Nov. 17 session is a non-justiciable political question, which the judiciary, a co-equal branch of government, should not interfere with.

“The court is very reluctant to assert its power now to reverse the Senate’s decision, an action which would certainly show a lack of respect for the Senate and its ability to handle its own matters,” Naraja said.

“The court would not hesitate to intervene if the court determined that the laws of the Commonwealth had been violated. Here, the court agrees with [Brown’s] reading of the statute, and finds no basis for the claim that Pam Brown’s nomination had expired. However, even if the court were to adopt [Demapan’s] argument, the Senate acted to confirm here within 90 days,” the judge declared.

Besides anchoring his grounds on the Senate faction’s Sept. 17 rejection of Brown’s nomination, Demapan also assailed the attorney general’s legitimacy by alleging that the 90-day statutory deadline within which to confirm her had already expired when she was confirmed in the Rota session. Demapan had argued that Brown’s confirmation deadline fell on Sept. 14, 2003.

Naraja said that the 90-day provision applies to all temporary appointees but not candidates appointed to serve in a permanent capacity. He noted no dispute that Brown did not serve as attorney general until after her confirmation.

Regardless of whether the provision applied to Brown although she did not assume her position in a temporary or acting capacity, Naraja said that the deadline had not lapsed when Brown was confirmed on Nov. 17. The judge said the time limit should be tolled during the periods when the Senate was in recess.

“To find otherwise would mean that while the Senate is in its 122-day constitutionally mandated recess, the ‘clock would be ticking’ on that nomination. Appointments made during this period would frequently be subject to automatic termination without any Senate action, and only a special session could save that action,” Naraja said.

The Constitution mandates that the Senate recess from regular sessions between April 1 and July 31 every year.