PSS, Ada want budget law declared unconstitutional

The Public School System and its chief officer, Education Commissioner Dr. Alfred Ada, want the Superior Court to declare the budget law for this fiscal year unconstitutional.

In a motion for summary judgment last Wednesday, PSS and Ada, through counsel Tiberius D. Mocanu, argue that the earmarks set in Public Law 21-08, which establishes the Commonwealth government budget for fiscal year 2020 and appropriated $37,718,904 to PSS, which is approximately 16% of the budget, are unconstitutional and unenforceable. In particular, they argue that provisions of the law and its amendments that purport to convert general revenue into special revenue do not meet the nexus test.

PSS and Ada said the earmarks do not possess a relationship between the source and purpose of the revenue they distribute, much less a reasonable one.

Consequently, they said, P.L. 21-08’s calculation of PSS’ budget does not include general revenue to which it is constitutionally entitled under the NMI Constitution.

Mocanu said the CNMI Supreme Court in its decision in the certified question petition from Gov. Ralph DLG Torres and MaryLou S. Ada, rendered the formula used by P.L. 21-08 to calculate PSS’ share of general revenue unconstitutional.

“It also rendered all subsequent budget modifications and proportional cuts that relied on the original P.L. 21-08 formula unconstitutional as well,” Mocanu said.

Superior Court Associate Judge Joseph N. Camacho set a status conference in the case for June 23, 2020 at 2:30pm. Camacho said there is no temporary restraining order/injunction granted at this time.

Ada and PSS are suing Torres and Finance Secretary David Atalig for violation of the NMI Constitution “because he is carrying out payments and collections under P.L. 21-08.” Atalig is allegedly in violation of the NMI Constitution because every allotment and disbursement made pursuant to P.L. 21-08 is unconstitutional.

PSS and Ada asked the court to declare P.L. 21-08 as modified by Torres to be unconstitutional.

In their answer to the lawsuit, Torres and Atalig, through the Office of the Attorney General, said the governor’s actions are licensed by the state of emergency declared by Executive Order 2020-04, pursuant to the CNMI Constitution, the Homeland Security and Emergency Management Act, and the CNMI Emergency Health Powers Act of 2003.

The OAG asserted, among other things, that the budgetary changes ordered by Torres are required by the statute and that plaintiffs’ request would require the governor to violate the law and is thus illegal.

In PSS and Ada’s motion for summary judgment, Mocanu said the Supreme Court in their opinion in the Torres’s and Ada’s certified question—or Torres opinion—was cognizant of its decision’s impact and stated that it will have “significant consequences for the Commonwealth’s fiscal affairs.”

Paradoxically, Mocanu said, Torres and Atalig acknowledge that the Torres opinion changed the law but inexplicably maintain a position that the status quo is legal. The lawyer said Torres and Atalig not only maintain their position that the status quo is legal for this fiscal year but for next year’s budget as well.

He noted that in the governor’s budget proposal fiscal year 2021, Torres keeps all the earmarks included P.L. 21-08 and continues to exclude them from the calculation of PSS’s budget.

“There is a lot of rhetoric surrounding whether PSS should be given more funding, especially against the backdrop of furloughed government workers, a devastated economy, and a global pandemic that threatens our only industry and source of income,” Mocanu said.

However, the lawyer said, the Torres opinion stated, until such time as the people of the CNMI change the law, the high court justices are “left to interpret the law in accordance with the text of the NMI Constitution and the drafters’ intent.”

He said in order to fund education, PSS shall be guaranteed an annual budget of not less than 25% of the general revenues of the Commonwealth.

Mocanu said a nexus is required between a revenue’s source and its purpose in order to ensure that PSS receives its constitutionally guaranteed percentage. Mocanu said since the filing of this lawsuit, the NMI economy has continued to decline and thus in turn, the revenue projected and the annual available for appropriation has declined proportionally.

Nevertheless, the lawyer said, the inquiry in this matter is formulaic in that the Superior Court’s interpretation of the NMI Constitution and the Torres’ opinion as it relates to P.L. 21-08 will have the same application to any amount of revenue.

Mocanu pointed out that in Torres’ open letter to government retirees, surviving spouses and beneficiaries, the governor “clearly admits” that PSS is owed additional funding.