OAG: Open Govt Act not applicable to the Legislature

The popular initiative making the Open Government Act applicable to the Legislature is unconstitutional, according to the Office of the Attorney General.

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

Each legislature has the constitutional power to adopt their own rules and regulations for procedure and therefore the OGA is invalid as it conflicts with the Constitution, said Patel as counsel for the CNMI government, CNMI Lottery Commission, and Gov. Eloy S. Inos.

Patel asked the Superior Court to dismiss all counts in the complaint filed by Glen D. Hunter against the defendants.

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

Hunter’s lawyer, Jennifer Dockter, said it seems as though Inos and the other defendants are choosing to argue that the law does not apply to them.

Dockter said that voters were very clear when they passed the popular initiative in 2009: they demanded that the OGA apply to the Legislature.

“Voters demanded transparency. So we are disappointed that the defendants are trying to undo the will of the people,” Dockter said.

Patel argued that issues relating to the Legislature’s procedural rules are not justiciable unless there is a constitutional violation in respect to the separation of powers.

Patel cited that the CNMI Constitution and many other state constitutions give legislatures discretion to adopt their own rules and procedures.

“As such, statutes, or in this case popular initiatives that limit such power are unconstitutional,” she said.

Patel said any initiatives that are in conflict with the Constitution are invalid.

She said the popular initiative conflicts with the Legislature’s constitutional power, as it provides for rules of the Legislature’s procedure.

“For example, the Open Government Act imposes a 72-hour meeting notice, but it would be within the Legislature’s constitutional power to impose a lesser meeting notice,” Patel said.

The OGA, she pointed out, can only be made applicable to the Legislature by either constitutional amendment or adoption by each chamber of the Legislature.

Hunter’s complaint, Patel said, does not allege that there was a constitutional amendment or that each house of the 18th Legislature adopted the OGA as part of its constitutional right to promulgate its rules of procedure.

Therefore, she said, Hunter has not met his burden to allege sufficient facts to show that the OGA applies to the Legislature.

Patel said even if each house of the 18th Legislature adopted the OGA as its rules, whether the Legislature followed its rules would not be justiciable unless the issue was strictly tied to a constitutional violation.

Inos and the Lottery Commission, she said, should be dismissed from all counts as Hunter does not state a claim against them.

In essence, Patel said, the complaint is based on the Legislature’s failure to properly give notice of their general meetings.

However, Patel said, Hunter does not allege facts that show that either Inos or the Lottery Commission is responsible for ensuring that proper notice is given for legislative sessions.

Neither Inos nor the Lottery Commission are governing bodies of the Legislature, House, or Senate, Patel said.

Although Hunter alleges that Inos signed both bills even though they were not properly noticed, he does not state that Inos’ signature violated the OGA or any other law, Patel added.

Hunter’s lawsuit asked the court to issue a judgment declaring that the OGA rendered the casino law null and void.

Hunter wants the court to issue an injunction preventing Inos, the Lottery Commission, and the CNMI government from taking any more acts in furtherance or support of the alleged illegal casino law.