Criminal charges vs Fitial dismissed

Superior Court Associate Judge David A. Wiseman dismissed yesterday the criminal charges against former governor Benigno R. Fitial, saying the Office of the Public Auditor has no authority to file the charges.

Wiseman ruled that OPA lacks the authority to initiate criminal action against Fitial, now a private citizen, and that the attorney general retains prosecutorial authority over such an action when the defendant is not currently in office.

Wiseman dismissed the case without prejudice, meaning the case can be re-filed in the future.

If the AG find it necessary to file criminal charges against the former governor, it is free to do so as it retained exclusive prosecutorial even after Fitial resigned from office, Wiseman said.

Fitial, through counsel Stephen J. Nutting, moved to dismiss the charges.

Nutting argued that the Legislature had no authority to grant to the Public Auditor the power to prosecute a criminal complaint, especially when that power is afforded to the Attorney General under the CNMI Constitution.

Nutting asserted that even if the statute were constitutional, it did not give the Public Auditor the authority to bring criminal charges against a former governor, and now private citizen.

Nutting said only if the AG refuses to prosecute will it become necessary for the OPA to prosecute.

In the government’s opposition to the motion, OPA legal counsel George L. Hasselback argued that Fitial’s interpretation of the statute is incorrect and that it would result in absurdities.

Hasselback said not only does this interpretation disregard the basic sentence structure of the statue, but such an interpretation would also result in absurd applications that would waste time, money and resources of the government, as to render the entire statute useless.

Hasselback said OPA has been corresponding with the AG over the years about OPA’s investigation in Fitial’s case.

In granting the motion, Wiseman ruled that the AG retains the sole authority to prosecute Fitial once he resigned from office.

Wiseman cited a CNMI Supreme Court ruling that states that “in order to minimize the pernicious effect that might arise from requiring the Office of the Attorney General to prosecute its own members, the AG, or the governor, the Commonwealth Constitution established system of checks and balances, which included the creation of the OPA to serve as a sentinel against government malfeasance.”

Wiseman said it could not realistically expect the AG to prosecute himself for a criminal offense, considering the AG could simply order his subordinates to dismiss the charges or cease the investigation.

By the same logic, Wiseman said, a governor could simply remove the AG from office should he attempt to bring criminal charges against him.

In a footnote of his ruling, the judge noted that he recognizes that, as a practical matter, with the CNMI’s first elected attorney general to be sworn in in a matter of months, this would no longer be possible.

Wiseman said once the governor resigns from office and becomes a private citizen, those “pernicious effects” are effectively excised, as he no longer officially controls or has the power to remove the AG from his post.

“Put in another way, after a former governor or AG leaves office, the danger for manipulation is removed—at least in an official capacity, as he would have the same status as any other private citizen—and the OPA is no longer necessary as a neutral party with equal authority to investigate alleged criminal activity and prosecute the former governor or AG,” he said.

Wiseman said he need not address Fitial’s remaining grounds for dismissal—no reasonable grounds for instituting action, vagueness of criminal statutes, and insufficient information—because he has already ruled in his favor of his primary argument: the authority of the OPA to prosecute a governor who has resigned from office.

Wiseman said any prosecution would not be initiated if the OAG find no probable cause to institute a criminal action against Fitial, despite a recommendation from OPA to prosecute him.

On May 1, 2014, OPA filed a complaint charging Fitial with 10 various criminal charges. OPA later amended the information to include three more charges.

The charges are related to the unauthorized release of a federal inmate, award of a sole-source American Recovery and Reinvestment Act contract, shielding of former attorney general Edward T. Buckingham from being served with penal summons, and the execution of a power purchase agreement contract related to the Commonwealth Utilities Corp.

Fitial, 68, pleaded not guilty to all charges.