Court denies casino commission’s motion to submit additional reply

Bogdan & Yumul

The CNMI Superior Court has denied the Commonwealth Casino Commission’s recent motion to allow it to file an additional response in the petition for judicial review filed by Imperial Pacific International (CNMI) LLC.
According to an ordered issued by Superior Court Associate Judge Wesley Bogdan, the court denies the casino commission’s motion to file a “surreply”—or additional reply—in response to a statement made by former IPI CEO Ray Yumul that was included in IPI’s reply brief in support of a judicial review.
The statement at issue is a comment made Yumul at an ordinary casino commission meeting; “COVID-19 has dealt the CNMI its worst financial crisis in over a decade. International travel is closed. Most of our large hotels are now closed. All the indicators of a shattered tourism industry [are] clearly seen all around…and IPI is not immune to that economic hardship facing the CNMI. The IPI had to close its doors to comply with the Honorable Ralph Deleon Guerrero’s [Torres] executive order [which] stretched well into 2020. And at that point, IPI’s revenue fell to zero.”
The judge said the court’s resources are better spent going through all the records and exhibits contained in IPI’s petition.
“This court declines to resolve the intricacies of the argument of whether petitioner [IPI] improperly raised a new issue in its reply brief, or, instead simply responded to arguments raised by [the] casino commission in its opposition. The court’s resources are better spent continuing its review of voluminous record contained in this petition for judicial review,” he said.
The court said Yumul’s statement and the issues raised by casino commission do not rise to the level necessary to exercise its discretion to allow a surreply in this matter. Instead, the court will take judicial notice of the statement at issue.
“Further, given the fact that currently under consideration is IPI’s petition for judicial review, which contains hundreds of pages of briefings and excerpts of the designated record and other exhibits [that] contain the transcript of the Feb. 14, 2021, casino commission hearing in which this statement—and others related to COVID-19 were made—this court shall take judicial notice the existence of Yumul’s statement. However, this court declines to take notice of the accuracy of the factual assertions contained within the statement at issue,” he said.
The casino commission filed its motion on Jan. 6, 2022 in response to what it contends is a new argument made by IPI. The Casino Commission argues that the statement was improper evidence that should not be used to determine whether IPI carried its burden of establishing the elements of the affirmative defense of force majeure.
However, IPI argued that the court should deny the motion as an improper effort by the casino commission to get the ‘last word’ in this case involving the suspension of IPI’s exclusive casino license.