Hunter: OGA applicable to lawmakers

Hunter

Hunter, through counsel Jennifer Dockter, asserted that while it is true that the CNMI Constitution grants the Legislature authority to promulgate its rules of procedure, this right is not absolute.

Dockter said Gov. Eloy S. Inos, the Commonwealth Lottery Commission, the CNMI government, and other co-defendants in Hunter’s lawsuit do not actually identify which provisions they believe offend the Constitution, but presumably seek to strike down a statute that makes the OGA applicable to the Legislature.

Dockter defended the constitutionality of OGA in Hunter’s opposition to Inos and co-defendants’ motion to dismiss Hunter’s lawsuit.

Hunter is suing the government, Inos, the Lottery Commission, Senate President Ralph DLG. Torres (R-Saipan), House Speaker Joseph P. Deleon Guerrero (IR-Saipan), and Reps. Rafael S. Demapan (Cov-Saipan) and Felicidad T. Ogumoro (Cov-Saipan), for allegedly violating OGA in the passing of casino law.

In defendants Inos, Lottery Commission, and the CNMI government’s motion to dismiss, assistant attorney general Reena Patel asserted, among other things, that the popular initiative making the CNMI Open Government Act applicable to the Legislature is unconstitutional.

Patel asserted that OGA does not apply to the Legislature because voter initiatives are subject to constitutional scrutiny.

House Speaker Deleon Guerrero, and Reps. Demapan and Ogumoro joined the government’s motion to dismiss, arguing that the House is protected by legislative immunity.

Senate President Torres, filed a motion to dismiss, arguing that OGA does not apply to the Senate based on a lack of subject matter jurisdiction and because the OGA’s legislative provisions are unconstitutional because they are superseded by Senate Rules, and that he is protected by legislative immunity.

In Hunter’s opposition to dismiss filed in court on Monday, Dockter said the defendants presumably believe that all of the requirements of the OGA are unconstitutional as applied to the Legislature because the Legislature has the authority to promulgate its own rules of procedure.

Dockter pointed out that none of the defendants direct the Superior Court to the more relevant portion of the same section in the constitution, which demands that legislative and committee meetings be open to the public.

Dockter said statutes are presumed valid absent a clear constitutional violation and defendants have not met their burden.

She said the OGA Legislative Provisions do not conflict with the legislature’s right to create (and subsequently suspend every time they are in session) their own procedural rules.

The lawyer said despite defendants’ failure to meet their burden and mischaracterization of the issue, the OGA Legislative Provisions are harmonious with the constitutional mandate for public meetings and enforce an equally important democratic principle that is clearly engrained in the Commonwealth’s constitution.

Dockter said the OGA Legislative Provisions and the constitution’s public meeting requirement are not in conflict and must be interpreted harmoniously.

She said the same “people” who drafted the constitution, drafted the OGA, and drafted the 2009 initiative demanding the transparency of the legislature.

“To conclude that the OGA Legislative Provisions conflict with the ‘intent’ of the framers of the constitution call for public meetings is nonsensical,” she said.

Dockter said if the Legislature complies with the OGA Legislative Provisions, they will necessarily be complying with the Constitution’s public meeting mandate.

“As such, the laws are harmonious and the OGA Legislative Provisions must stand,” she pointed out.

On representation issue of the Office of the Attorney General in this case, Dockter said the Attorney General does not have constitutional authority to defend violations of law: The AG is supposed to defend the law and prosecute violations thereof.

In this case, Dockter said the AG is not representing the legislators who are charged with violations of CNMI law.

She said instead, the AG has come forward and gratuitously sought to strike down a CNMI law on behalf of the other defendants.

“The AG, as the chief legal officer of the Commonwealth should share in the interest of plaintiff in ensuring that the law was complied with but instead, the AG is quick to dismiss the validity of the law and defend a violation thereof,” she said.

“The reality is this: The Casino Law, and its disreputable inception is the poster child for the awesome necessity of the OGA,” she said.

Dockter said the OGA Legislative Provisions were demanded by the people who now turn to the court for its enforcement.

“The fact that the governor, the attorney general, and elected members of congress wish to dismantle the law when it became inconvenient and hide behind inapplicable legislative immunity does nothing more than strengthen plaintiff’s call for justice,” she said.