Defeated mayoral bet liable to pay Aldan attorney’s fees

Defeated Northern Islands mayoral candidate Vicente Cruz Santos Jr., who filed an election contest, was found liable to pay attorney’s fees and costs to Francisco Jerome K. Aldan, who won last year’s election as NI mayor.

In his order on Tuesday, Superior Court Associate Judge Kenneth L. Govendo said that, although he dismissed Cruz’s complaint because it was improperly filed, he did so through the court’s inherent jurisdiction to determine its own jurisdiction.

As such, Govendo said, the court’s ability to decide attorney’s fees is incidental to his judgment dismissing Cruz’s complaint for lack of jurisdiction.

“Therefore, this court finds that awarding attorney’s fees to Aldan is proper in this case,” the judge said.

The amount of attorney’s fees and costs will be determined at a separate hearing on Oct. 20, 2015.

Aldan, of the Republican Party, won over independent Santos with a margin of 33 votes, 94-61, during the Nov. 4, 2014, general elections.

Santos, through counsel Janet H. King, sued Aldan and the Commonwealth Election Commission, alleging that Aldan was not a resident of the Northern Islands and that there were 40 illegal votes.

After hearing Aldan’s and CEC’s separate motions to dismiss the case in December, Govendo dismissing Santos’ lawsuit for lack of jurisdiction.

To allow post-election challenges to voter eligibility would open the door to non-stop battles over validly conducted elections and would only frustrate the election process, according to Govendo in a written order last December.

The judge said the Legislature has provided guidelines for the process of challenging voter eligibility.

“These challenges are allowed up to election day and not afterwards,” said the judge.

In May 2015, Govendo heard Aldan’s petition for judgment and for costs and attorney’s fees. Santos was present and was represented by King.

Attorneys Judy Torres Aldan and Viola Alepuyo represented Aldan. Attorney Jack Torres appeared and argued on behalf of attorneys Aldan and Alepuyo.

Aldan requested that the court also issue a judgment confirming the election results under the Commonwealth Code in order to allow recovery of those fees. He argued that the court has the discretion to award him attorney’s fees.

In his opposition, Cruz argued that the Commonwealth Code does not allow Aldan to recover attorney’s fees because his complaint was dismissed for lack of jurisdiction while the Code is limited to dismissals “for insufficient evidence or for want of prosecution,” or when “the election is confirmed by the court.”

Following the hearing, Govendo requested the parties to submit supplemental briefs on the issue of whether the court may award attorney’s fees if an election contest was dismissed for lack of jurisdiction.

In his order on Tuesday, Govendo said the case is a prime example of what the Legislature intended to prevent.

Govendo said if he rejects Aldan’s petition for attorney’s fees, the court is essentially rewarding Cruz’s actions, as well as opening the door to any contestor who feels invincible that they too may avoid the implications of filing an improper election contest suit.

“The court is not prepared to take this chance,” he said.

Despite his decision, Govendo said he understands there are still improvements that need to be done to the Election Code.

Govendo said the numerous cases that make their rounds to the court’s doorstep every election season is a cause for concern.

Oftentimes, he noted, the Judiciary is called in to step into the shoes of the legislators.

“This is not our role. Our decision today reflects that conflict and we must stop ourselves short as to not overstep the separation of powers our Constitution delineates,” he said.

Govendo said it is his hope and expectation that his decision will prompt the Legislature to revisit and reassess the Election Code.

He said the federal circuits are split on the issue of awarding attorney’s fees when a complaint is dismissed for lack of jurisdiction.

Govendo agreed with Aldan’s argument that the Legislature intended to specifically discourage unwarranted and lengthy election contention lawsuits.

He said the Legislature created the “Voter Challenge” process to “save the Commonwealth both time and money by ensuring that lengthy court processes are unnecessary.”