Fennell insists High Court should establish his status

Former Bank of Saipan receiver Randall T. Fennell said a full panel or three justices should first determine his request to establish his status in connection with the High Court’s proceedings on the bank’s spending cap issue.

Fennell, through counsel Rexford C Kosack, said he cannot be required by the CNMI Supreme Court to file a disqualification motion “while his status is in limbo.”

Thus, Fennell said, there will be no need for him to submit pleadings that an amicus curiae may move for disqualification of a panel member.

An amicus curiae is a brief filed in court by any entity who is not a party to the case.

The former BoS receiver has underscored the need to determine his status in the proceedings after CNMI Supreme Court Associate Justice Alexandro Castro issued on Dec. 19, 2005 an order regarding possible disqualification of appellate panel members.

In that order, Castro asked Fennell and his counsel, who are not parties to the appellate proceedings, to file a pleading justifying their legal capacities to join in the case and seek recusal of a justice.

In response to Castro’s order, Kosack first clarified that their answer is not a motion, but a response to Castro’s request.

Kosack said Fennell does not argue that amicus curiae may ask for the recusal of a panel member, thus there would be no need to explain that issue.

He said his client, however, believes he should be accorded appellee status.

On Dec. 7, 2005, Castro denied Fennell’s motion to accord him the status of appellee, but allowed him to file an amicus curiae.

The lawyer said that on Dec. 16, 2005, Fennell filed a motion to seek review of Castro’s ruling by the full panel.

“This matter is pending. Until Fennell’s motion is ruled upon, it is not possible for Fennell to seek the disqualification of any justice or judge pro tempore,” he noted.

In addition, Kosack said, Fennell is unable to disqualify any panel member without knowing who has been assigned to the panel.

Fennell also asked earlier for the identities of each panel member and explained that under the “single affidavit rule,” he must file only one affidavit for disqualification, which must include all persons on the panel whom he contends have conflicts.

To date, Kosack said, the identities of panel members have not been announced.

Court records show that in Oct. 2005, Superior Court Associate Judge Juan T. Lizama issued an order, stating that BoS is not implementing reasonable cost controls in connection with the bank’s board of directors’ lawsuit against Fennell.

Lizama ordered that the bank and its board, officers, agents, employees and attorneys, shall not expend any additional corporate funds in support of the board’s lawsuit against Fennell.

The Bank of Saipan Inc. appealed the spending cap order.

Fennell and his former counsel filed motions with the High Court to either confirm or declare their status as appellee, intervenor, or allow them to file an amicus curiae.

On Dec. 7, Castro denied Fennell and his counsel’s request to declare them as parties in the appeal. He also denied their request to be heard in oral arguments.

Castro, however, granted Fennell and his counsel’s motion to participate in the appeal as non-litigants.

The justice ruled that, although Fennell and his counsel have business before the receivership case pending in the Superior Court, “that business is only tangentially concerned with preserving the assets of the bank.”

Fennell then requested the Supreme Court to review Castro’s order that denied their motion to declare them as parties in the appeal.

Attorney David Axelrod and the law firm of Schwabe, Williamson & Wyatt, counsel for Fennell, asked the High Court to have Castro’s order be reviewed “by a full panel” or by three justices.

In April 2002, the Commerce secretary shut down BoS, concluding that the bank was insufficiently liquid to continue to meet depositors’ demands.

BoS was put into receivership and Fennell was appointed receiver. He served as receiver from April 30, 2002, until his discharge on Sept. 27, 2002.