Judge disagrees with TCGCC on commissioners’ terms

Superior Court Associate Judge David A. Wiseman has disagreed with the Tinian Casino Gaming Control Commission’s position that a commissioner’s term runs from the date of his or her confirmation, as opposed to staggered fix-date terms.

Wiseman ruled that the plain language of Section 5 of the Casino Act provides for a formal staggering system—that each of the commissioner’s term should run from the date of appointment of the first set of commissioners.

In opposing the Tinian commission’s argument, the Tinian government had argued that each of the commissioner’s term should run from March 30, 1990, the date of appointment for the first set of commissioners, under a formal staggering scheme.

Whether the disputed commissioners are lawful incumbent members of the commission, Wiseman said that TCGCC failed to meet its burden under Rule 56 of the Commonwealth Rules of Civil Procedure to prove the matter.

Citing that TCGCC did not argue the requisite elements for a permanent injunction, Wiseman denied TCGCC’s request for an injunction that would prevent Tinian Mayor Joey San Nicolas from taking any action if the court were to rule in TCGCC’s favor.

The commission, executive director Lucia L. Blanco-Maratita, and commission inspector Lisa-Marie B. Aguon are suing San Nicolas and Tinian municipal treasurer Charlene M. Lizama over the mayor’s refusal to pay them the salaries the TCGCC had increased in December 2014.

San Nicolas paid them only the amount as allocated in the Budget Act.

Commission chair Mathew Masga, vice chair Bernadita Palacios, and commissioner Lydia Barcinas intervened in the lawsuit after the mayor asserted that their terms had already expired and that he would appoint three new commissioners.

Wiseman heard several motions in this case last Sept. 1.

In his findings, Wiseman said each of the first five Tinian commissioners were confirmed and began serving their terms on March 30, 1990.

At the time San Nicolas’ election as Tinian mayor in November 2014, there were four commissioners—Ignacio K. Quichocho, Palacios, Masga, and Barcinas—and one vacant seat on the TCGCC.

Palacios was confirmed to serve on the commission on Dec. 10, 2009, while Masga was confirmed on Oct. 10, 2012, and Barcinas on Oct. 20, 2012.

San Nicolas appointed Patrick San Nicolas to the commission on Feb. 18, 2015, and was confirmed to serve on March 25, 2015.

The mayor appointed Heather H. Barr on May 7, 2015, and was confirmed to serve on May 18, 2015.

On June 24, 2015, Jose Kiyoshi delivered a letter from San Nicolas, dated June 23, 2015, to TCGCC chair Masga concerning the terms of the commissioners, and declaring three additional vacancies on the commission.

On June 24, 2015, Masga also received a letter from Tinian treasurer Lizama notifying him that compensation for him (Masga), Barcinas, and Palacios would be discontinued on June 24, 2015.

Lizama also informed Masga that the commission’s purchase requisitions or expenditures could only be authorized by Patrick San Nicolas and Barr.

On June 19, 2015, Masga, Barcinas, and Palacios sent a letter to San Nicolas, acknowledging receipt of the mayor’s June 23 letter, and requesting a public hearing.

On July 6, 2015, the mayor responded to TCGCC, expressing his position that Masga, Barcinas, and Palacios were not entitled to a hearing.

In its motion, TCGCC argues that, because Section 5 of the Casino Act states that the commissioners “shall serve,” the plain meaning construction of the Act precludes a construction under which a commissioner’s term runs from March 30, 1990, the date of the initial appointment of TCGCC’s first five members—or a formal staggering system.

The Tinian government, on the other hand, argues that Section 5 of the Casino Act’s language is ambiguous as to whether a commissioner’s term are calculated based on the date of confirmation or whether the terms are predetermined by the original confirmations.

In his ruling last week, Wiseman said that Section 5 of the Casino Act is unambiguous as to when the commissioner’s term begins—but as to whether such term begins when the commissioner assumes office, the court is not persuaded by TCGCC’s arguments in support of its interpretation.

Wiseman said the court cannot grant at this time TCGCC’s request that the court issue a declaratory judgment whether each of the disputed commissioners are lawful members of the commission.

Wiseman said the court denies summary judgment on this issue because a material fact—the line of succession for each commissioner starting with the commissioner’s first appointments in March 30, 1990—remains to be resolved at trial.

Last month, Wiseman ruled that Article 21 of the CNMI Constitution does not bar the Tinian and Agrihan Legislative Delegation from amending the Revised Tinian Casino Gaming Control Act. Wiseman cited Article 21 that states, “Gambling is prohibited in the Northern Mariana Islands except as provided by Commonwealth law or established through initiative in the Commonwealth or in any senatorial district.”