In bad-faith, a bad argument badly made
A filing the explains some of my work out here
Hafa Adai!
Obviously, the pace of my substack posts has decreased substantially as I have been out here. This is not because it has become less interesting of a place or I have fallen out of love with it.
It is because my role out here has expanded and the initial plan was scuttled by events beyond my control. I have included a filing that I made last week that somewhat can explain why what was supposed to be a 10 week contract because a friend who asked for help has extended for so long. It has some of my most forceful legal writing, so I thought it may be interesting for you.
I have deleted out the case citations. For those familiar with reading legal briefs, they learn to elide the citations unless necessary. For others, they appear as non sequitur sentences that eliminate the flow.
There is not enough media coverage in the mainland of what is going on out here, so if you have anyone that may be interested, pass it along.
The Commonwealth of the Northern Mariana Islands, by and through its Special Prosecutor and Assistant Attorney General, James Robert Kingman, and files this Opposition to Defendant’s Motion for Probable Cause Determination.
INTRODUCTION
Gamesmanship from attorneys is a natural and normal aspect of the practice of law. A full-throated, zealous defense of one’s client is encouraged. It is even more understandable and expected when a client is a family member with aligned interests. But legal representation has a higher standard of conduct than any familial tie. Feigning ignorance of fundamental legal principals is neither ethical nor cute. Asking for the participation in such mummery from a court of record is worse. Doing it repeatedly and brazenly is worse still.
Defendant, at the prompting of the Court, in bad faith argues a bad argument badly. It is one that has been litigated and adjudicated several times in the past. It has been litigated and adjudicated in this case. It has been litigated and adjudicated in this case by these attorneys.
Once again, they attempt to argue the lack of a law’s language as the basis for their relief... It is simply the most recent in a series of increasingly silly and desperate efforts to impede the legal process.
Such petulant lawmongering is not merely insulting but sanctionable. The present motion is part of a pattern by the Defendant of asking the Courts to abase themselves into a pretense of legitimate concern over frivolous motions. Further indulgence of kayfabe appeals to high principals will only continue to delay the straightforward legal issues beyond the point of adjudication, denying the Commonwealth’s interest in the administration of justice. Given the history of this defendant’s abuse of legal process, the Court must take the opportunity to establish where it stands.
RELEVANT PROCEDURAL HISTORY
…
4 December 2021: The House Standing Committee on Judiciary & Governmental Operations of the 22nd Northern Marianas Commonwealth Legislature (“JGO”) served a subpoena ad testificandum for Defendant to appear on December 10, 2021.
10 December 2021: Defendant did not appear.
14 December 2021: JGO voted to hold Defendant in contempt.
Later, Defendant filed a complaint in the Superior Court against the JGO, asking for a declaratory ruling that the subpoena was invalid based on an alleged lack of power for the JGO’s power to issue investigatory subpoenas, separation of powers, deficiency of the subpoena for lacking a legislative purpose, and that the subpoena usurped responsibilities constitutionally delegated to other executive offices, i.e. the Office of the Public Auditor and the Office of the Attorney General. The case was assigned number 21-0333-CV. (First Amended Complaint).
8 April 2022: The Commonwealth filed an Information against Defendant charging him with inter alia, Contempt, for failure to comply with the December 4th subpoena in violation of 1 CMC § 1306(a). A penal summons to appear for the arraignment on April 18, 2022, was issued. Service was accepted by Viola Alepuyo (“Alepuyo”) on the same date. No arrest was made.
13 April 2022: Alepuyo and Anthony Aguon (“Aguon”) entered appearances in 22-0050-CR.
18 April 2022: Initial appearance[1] was held in the 14-Count Information in case 22-0050-CR.
2 May 2022: Defendant filed a Motion for Office of the Attorney General to Withdraw or be Disqualified as Prosecutor. (“Disqualification Motion I”)
16 May 2022: The Commonwealth filed an Opposition to the Defendant’s Motion to Disqualify the Office of the Attorney General.
17 May 2022: The Court in 21-0333-CV dismissed the case with prejudice. (Order Granting Motion to Dismiss with Prejudice (“Dismissal Order” at 10). It found that the investigatory subpoena plainly falls within the “legitimate legislative sphere” protected by the Speech or Debate Clause, and that the investigatory steps taken by [JGO] was acting ‘“within the sphere of legitimate legislative activity,” and the Court need not inquire into the Committee’s motives.” (Id. at 12). The Court also rejected Defendant’s argument that separation of powers made the subpoena invalid, finding that “separation of powers does not mean that a sitting executive may never be called to task by the legislature.” The Court also rejected the claim that the matter was moot, based in part on the contempt charge filed on 8 April 2022. (Id. at 17). The Court found that the issue was capable of repetition yet evading review. It fit “squarely into this exception” which was (1) is of public importance, (2) is likely to recur, and (3) is likely to become moot again prior to appellate review. (Id. at 16)
20 May 2022: Defendant filed a Reply to the Opposition to the Defendant’s Motion for Office of the Attorney General to Withdraw or be Disqualified as Prosecutor.
26 May 2022: Defendant filed its notice of appeal of the dismissal in 21-0333-CV. The appeal was assigned number 2022-SCC-0007-CIV.
31 May – 1 June 2022: The Court held an Evidentiary Hearing on Disqualification Motion I.
7 June 2022: Defendant, represented by Attorneys Alepuyo, Aguon, and two members of the firm of Torres Bros, LLC –Victorino DLG Torres (“Vic Torres”), Matthew J. Holley (“Holley”), filed a Motion for Probable Cause Hearing (PC Hearing Motion). In said motion, Defendant argued that “[e]qual protection mandates that [Defendant] have the same opportunity as other persons accused of a crime to expose the Information’s lack of probable cause.” Defendant further argued that failure to dismiss the Information without a probable cause determination “deprives [Defendant] of equal protection in violation of the United States and Commonwealth Constitutions because, unlike other criminal defendants, he is denied the opportunity to show the charges against him lack probable cause.” Initially, this argument was being argued under Rule 12.
13 June 2022: After each member of the Commonwealth Supreme Court recused themselves, a panel of pro tem Justices were appointed to hear appeal 2022-SCC-0007-CIV, including Hon. Arthur R. Barcinas.
21 June 2022: The Commonwealth filed an Opposition and noted that Defendant was not part of a suspect class and, thus could not bring an equal protection claim.
29 June 2022: Defendant filed a reply to the Commonwealth’s opposition (“Reply to PC Hearing Motion Opp”) wherein it ‘withdrew’ that it was arguing for a hearing under Rule 12. Defendant reiterated its contention that he is being treated differently than similarly situated persons without enumerating which suspect class he belonged to.
19 July 2022: Defendant filed his brief in 2022-SCC-0007-CIV, with Ross Garber appearing as one of the counsels for Defendant, with Pro Hac Vice as a designation on his brief.
23 Aug 2022: The Court ruled on Disqualification Motion I. In its order, it said that there was no conflict preventing J. Robert Glass (“Glass”) from charging and prosecuting counts I-XIII as charged in the Information, and denied the motion for those counts. The Court also partially granted the motion, saying that it:
“finds there is an impermissible exposure to privileged and confidential information that prevents Glass from prosecuting Defendant for Count XIV. Count XIV is hereby dismissed without prejudice. Order Granting in Part and Denying in Part Defendant’s Motion for Office of the Attorney General to Withdraw or be Disqualified as Prosecutor. (“Disqualification Order”).
12 Sep 2022: The Court denied PC Hearing Motion. The Court issued a ruling denying the motion for a probable cause hearing, finding that “a preliminary hearing is not a fundamental right.” (Order Denying Defendant’s Motion for Probable Cause Hearing. “PC Hearing Denial”). No Motion for Reconsideration was filed within the 10-day period required by the rules of Civil Procedure, nor within the 226 days tolerated for this Defendant when it challenged other adverse decisions.
27 October 2022: Oral Argument was held in 2022-SCC-0007-CIV and the case was taken under advisement.
6 March 2023: The Supreme Court of NMI granted application pro hac vice of the undersigned for Superior Court case No. 22-0050.
18 April 2023: The Hon. Alberto Tolentino issued an order of self-recusal.
19 April 2023: Defendant filed a petition for a declaratory relief that the special prosecutor’s contract was invalid.
21 April 2023: Defendant filed a motion for Declaratory Relief to prevent the special prosecutor from prosecuting the case.
26 April 2023: Defendant filed a Motion to Reconsider the pro hac vice admission of the undersigned.
25 April 2023: The Supreme Court ordered the appointment of Judge pro tem Arthur R. Barcinas, panel member on 2022-SCC-0007-CIV.
8 May 2023: The Commonwealth filed leave to amend the information to add the present case back into 22-0050-CR as Count XIV, as Glass was no longer representing the Commonwealth in 22-0050. No hearing was held on the Commonwealth’s motion.
17 May 2023: The Department of finance issued a final ruling declining to issue a declaratory ruling that the undersigned’s contract was invalid.
15 June 2023: Defendant filed a motion for a declaratory ruling on the denial of the department of finance to issue a final ruling.
30 June 2023: The appeal of the decision by finance to refuse to declare the undersigned’s contract was assigned to Hon. Arthur R. Barcinas.
18 July 2023: The Commonwealth withdrew its motion to refile the charge.
27 October 2023: The information in the present case was refiled and assigned the above number. A penal summons was filed for appearance on 18 December 2023.
31 October 2023: The panel of pro tem Justices dismissed 2022-SCC-0007-CIV on the grounds of mootness.
8 November 2023: After recusals of all Superior Court judges, Hon. Arthur R. Barcinas was appointed Judge pro tem for the present case.
18 December 2023: Defendant appeared and claimed, through counsel Joaquin Torres (“Jack Torres”) of Torres Bros LLC, defective service, asserting that they “did not even know why they were there” Defendant objected to the Commonwealth’s request that a copy of the filed information be printed and delivered in court. The court granted leave to apply for an amended penal summons. Service was affected the same day. The Court selected January 22, 2023, as the date for the arraignment.
Later, Jack Torres appeared with Alepuyo in Cause 22-0050-CR for a hearing on the Motion to Reconsider Disqualification.
22 Jan 2024: The parties arrived for an arraignment in the above enumerated case. Jack Torres “raised as a preliminary issue the lack of a finding of probable cause prior to the issuance of the Information violates Defendant’s constitutional rights.” The Commonwealth offered to have a probable cause hearing and said that it could be ready as early as the following day. Instead, the Court ordered briefing on the issue with a hearing to be set February 26, 2024. The Defendant was to file their brief by February 5, 2024.
5 Feb 2023: Defendant filed a Motion for Probable Cause Determination. In it, he argues that there must be a probable cause determination prior to issuance of a penal summons.
ARGUMENT
I. The Defendant did not brief the issue ordered by the Court.
The Court’s ruling of January 22, 2023, was clear that it was for the ‘preliminary issue’ of if a probable cause determination is needed before an information is filed. Since Defendant did not file a motion raising the issue before the hearing, the Commonwealth must rely on the Order of the Court to know even what issue is live. When the claim was that they needed a preliminary probable cause hearing, the Commonwealth promptly offered to provide the remedy by presenting its evidence in a preliminary hearing as soon as possible. Since that was the ask, there was no controversy at issue based on what they were asking for.
The Commonwealth expressed that it did not know what issue was being raised. The subsequent order laid out what was to be argued: that there should be a probable cause hearing before an information.
When the Defense did file its brief, it based it on the issuance of a penal summons. An information and a penal summons are not the same thing, as the Defendant made clear when it claimed defective service on the December 18th date. This has placed the Commonwealth at a disadvantage.
The motion should be denied for failure to comply with the Court’s order.
II. Whether a probable cause determination is required before criminal charges are brought has long- been settled as a matter of law.
For 30 years, the Commonwealth has had settled law on the basis for and procedure for probable cause inquiries in pending criminal matters.
A bedrock feature of Commonwealth jurisprudence is determining the scope of the rights conferred to its citizens by the United States Constitution through the Covenant. In many aspects, there is no difference to the rights afforded to its residents by the U.S. Constitution or to residents of other states and territories by their respective constitutions. But a key difference since the founding of the Commonwealth has been regarding criminal procedure.
Several aspects of criminal procedure are substantially different than their parallel aspects in other jurisdictions. There is no grand jury. Felony cases may be filed by information. There is no jury right in misdemeanor cases. When entitled to juries, it need only be one of six jurors. Other aspects of the governing documents of the Commonwealth have created greater protections than the U.S. Constitution guarantees, but each distinguishing element of criminal procedure that differ from the U.S. Constitution for due process depart from it by lowering the protections afforded under the U.S. Constitution.
This has led to several suits challenging these distinctions in federal appellate court and in the highest court of the Commonwealth. In each, they have been found valid by the reviewing court.
Just six years after the high court of the Commonwealth was established, the Supreme Court discussed the intent of the framers for due process considerations compared to the U.S. Constitution. In Babauta v. Superior Court, the Court articulated that “[w]hile the Commonwealth Constitution does not expressly guarantee a right to a preliminary examination, the right has been established in this jurisdiction by statute and rules of court.” … The ‘substantially restrained’ language adopted by the Trust Territory court came from U.S. Supreme Court, finding that it was only if a defendant is detained or their liberty substantially restrained that they were “entitled to a prompt determination as to whether or not there is probable cause that [they are] guilty of the crime with which [they are] charged.”
Even if the Commonwealth Constitution did incorporate the 5th Amendment fully into its guarantees of rights, it would not provide for a constitutional guarantee of a preliminary hearing.
The U.S. Supreme Court has clearly established that there is no constitutional right to a preliminary hearing. Even in places with full 5th Amendment incorporation of Due Process rights, a preliminary hearing is not constitutionally guaranteed. “Under the doctrine of stare decisis, we afford a presumption that previous decisions should be followed.”
Since the probable cause determination is not a fundamental right guarantee articulated by the U.S. Constitution as adopted by the Covenant, nor an articulated right of the Commonwealth Constitution, the question becomes one of statutory interpretation.
The Commonwealth procedures do not give Defendants the right to a probable cause determination before either penal summons nor information.
It was statutory, not constitutional, concerns that provided the mechanism of a preliminary examination. The framers of the Commonwealth Constitution did not intend for it “to confer a broader right than that guaranteed by the U.S. Constitution.” …(“[O]ur principal responsibility in statutory construction is not judicial speculation, but to give effect to the author’s intent.”).
NMI Rule of Criminal Procedure 5.1 and 6 CMC 6303 set out the relevant law governing preliminary examinations in the Commonwealth. Rule 5.1 reads “A defendant is entitled to a preliminary examination, unless waived, if he/she is substantially deprived of his/her liberty. 6 CMC 6303 reads in relevant part: “If the arrested person does not waive preliminary examination, the official shall head the evidence within a reasonable time.” This is the mechanism for a probable cause inquiry. “If” is an English conjunction that sets out a conditional for a subsequent proposition.[1]
In Babauta, the court clarified that “[t]he purpose of a preliminary hearing is to determine whether there is probable cause to believe that a crime has been committed and that the accused committed it.” The preliminary hearing is a determination of probable cause. … (“It has long been recognized: the critical importance of the preliminary hearing as a mechanism to weed out groundless claims and thereby avoid for both defendants and the People the imposition and expense of an unnecessary criminal trial.”
In practice, Penal Summonses are issued based on information without arrests.
Famously, penal summonses have been used in the CNMI for cases when there are not arrests. The Court in Commonwealth v. Ogumoro recounted the facts around a situation that bears some similarities to the current litigation, when articulating why the Attorney General’s powers were changed by amendment to make him independently elected:
It is important to note that the amendment came about as a result of the unprecedented actions by former Attorney General Edward T. Buckingham (“Buckingham”). Briefly, in 2012, the Office of the Public Auditor obtained a penal summons against then-Attorney General Buckingham. Buckingham failed to personally appear for his arraignment, and instead, sent the Chief of the Civil Division of the Attorney General’s Office to represent him. The public auditor petitioned the trial court to disqualify the Office of Attorney General and to appoint him as a special prosecutor. The trial court granted the petition….Around September 2012, impeachment proceedings were brought against the former Governor Benigno R. Fitial in the Commonwealth Legislature for an alleged misconduct in public office…Also on August 3, 2012, Office of the Public Auditor obtained a penal summons based on criminal information against former Attorney General Edward T. Buckingham. … In 2014, former Attorney General Buckingham was found guilty of public corruption. In 2016, Ambrosio T. Ogumoro was convicted for conspiracy to commit theft of services and misconduct in public office for his role in preventing former Attorney General Buckingham from being served with penal summon in 2012.
In all of the procedural chicanery of the Buckingham affair, no Court found the need for a probable cause determination before a penal summons is issued.
If the Court wants to rule that an arrest is necessary because that is the way to get to a required preliminary hearing for a determination of probable cause, it will certainly mean that there will be more arrests for nonviolent and white-collar crimes. The exact opposite position would almost certainly be argued if an arrest is the only way to initiate a criminal proceeding.
Defendants awaiting trial who are arrested either remain in custody or are released with conditions. In contrast, Defendant was not arrested and has no restrictions. Furthermore, while a preliminary hearing may “weed out groundless claims,” declining to give preliminary hearings to persons accused of crimes who are not arrested promotes judicial efficiency. Providing every person accused of a crime with a preliminary hearing—regardless of whether their liberty is substantially restrained—would clog court dockets.
Defendant can challenge the sufficiency of the probable cause at trial; Defendant may make a motion for acquittal or demonstrate to the fact finder that there is not sufficient probable cause to convict Defendant.
Defendant is not the first to argue for a tortured reading of the procedural rules to confer to him a benefit beyond the text of the rule and statute. Nor is it the first time in these proceedings that he has made such an argument. He cites no rationale for why, just to shield him from legal process, there should be a rule created ex nihilo, ignores the appellate decisions upholding the procedural rules, and omits that in the numerous revisions of the Rules there has not been the creation of a different process or body for a pre-filing probable cause determination. Most of the time in this litigation when he has made such assertions, they have been rejected.
The Defense did not provide this binding caselaw in its brief.
Despite there being clear rules, and binding caselaw related on this matter, the Defense did not cite or argue it.
Failing to apprise the Court of clearly binding Commonwealth legal precedence is itself a sanctionable action. (“Failure to cite to a local case that is binding authority for a legal proposition advanced by counsel may result in the imposition of sanctions on counsel.”).
III. This matter of law has already been decided in this case.
The Law of the Case doctrine precludes overturning the prior rulings by the predecessor judge without good cause shown.
Under the law of the case doctrine, “courts are generally required to follow legal decisions of the same or a higher court in the same case.”
The guiding principle behind the doctrine is one of finality. It is designed “to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing” action. The doctrine was developed to prevent the court and the parties from “repeated reargument by indefatigable diehards.”
A court may reconsider an earlier ruling when the case presents unusual circumstances such as an “intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” (“While the doctrine does not jurisdictionally bar a court from reconsidering issues previously concluded, as does the related doctrine of res judicata, the principle of law of the case directs a court not to alter a previous judicial determination unless unusual circumstances are present.”)
The above test is the same when there is a new judge on the case. (“Even if a different judge is assigned to a continuing case, it is not inappropriate for that judge to arrive at a different decision. The judge still retains the ultimate discretion in the case.”).
This matter was decided by the prior judge in this case.
Defendant argued in its PC Hearing Motion that he was being denied equal protection of the law, as he does in the present motion by not having a probable cause determination. The Court rejected this argument. In its initial ruling, the Court acknowledged that the NMI Supreme Court recognizes that the preliminary hearing is a procedural safeguard. The Court also found that the Defendant’s assertion that a preliminary hearing was a procedural safeguard that it was a fundamental right was incorrect. The Court found that persons accused of a crime via information are not a suspect class under the Due Process Clause. The Defendant failed to articulate how he was being treated differently than others initially, but raised it for the first time in his reply to the Commonwealth’s opposition that he was treated differently than other persons accused of a crime because he was denied a preliminary hearing, while other persons accused of a crime had a preliminary hearing. If there is some newly discovered way in which the Defendant is a member of a suspect class to trigger equal protection strict scrutiny, it is neither readily apparent nor readily articulated any of their many opportunities to do so.
“Suspect classifications generally include race, religion, national origin, and alienage.” As with the first time that he argued that the lack of a probable cause determination denied him the equal protection of the law, Defendant does not demonstrate that the class of persons charged by information experience disabilities, a history of unequal treatment, or political powerlessness. Defendant argued that verification that probable cause exists in his case was a disability—presumably with a straight face.
When determining if a class is suspect, courts look to whether “[t]he system of alleged discrimination and the class it defines have [any] of the traditional indicia of suspectness: [such a class] saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” Defendant was the Governor. A claim of political powerlessness to command extraordinary protection would be delightfully tonedeaf if not for its bleak implications.
The Court found that a lack of verification of probable cause does not constitute a disability, history of unequal treatment, or political powerlessness, and found that “because there is no fundamental right affected and he is not a member of a suspect class, the rational basis test applies.”
As in the prior motion, Defendant provides “no analysis as to why a procedural safeguard is a fundamental right.” It is difficult to see how if a penal summons for a felony does not entitle a defendant to a preliminary investigation probable cause hearing why a misdemeanor would.
Defendant contended the first time he argued that he was constitutionally entitled in to a preliminary hearing in proceeding that he was a member of a suspect class, and consequently, the Court should use the strict scrutiny test when determining whether an equal protection violation occurred. This would raise the rule determination if it were found to be true. Strict judicial scrutiny of a statute applies to those cases involving a law that “operates to the disadvantage of some suspect class or that impinges upon a fundamental right explicitly or implicitly protected by the Constitution.” When no suspect class is involved and no fundamental right is burdened, courts apply a rational basis test to determine the constitutionality of a legislative classification.
…
This prior ruling was filed and argued with the Contempt charge in mind.
In its litany of motions filed by the Defendant, some articulated which counts it was seeking to strike based on their argument.[1] Others, like the motion for a Probable Cause Hearing, were for all of the counts.[2] It’s first effort to get a probable cause hearing, it applied to all of the counts, including the one in this case.
Despite their assertion that the present case is unrelated to the prior case, it is.
The Commonwealth will preempt Defendant’s assertion that this is not the same case, a position they have made clear. When the Commonwealth suggested a date for the status hearing and scheduling order that it asked for after 270 days since a scheduling order was in effect, Defendant objected to the motion by claiming that this refiled charge was a “separate and unrelated case that is not relevant to 22-0050-CR.” The Defense claimed that the AG has, instead of amending the information to include the contempt case, and therefore admitted that it is a separate case. The contempt charge was attempted to be brought in under an amended information, but no hearing or order was held on the matter before it was withdrawn. Since the order of dismissal without prejudice was only for Glass, amending it would have also precluded his participation in Counts I-XIII in cause 22-0050-CR.
They also maintain that the defense team “is also comprised of [sic] different attorneys than his legal defense team in 23-0127-CR.” That objection is filed as Torres Brothers, LLC, with the signatories of two counsel who are partners to that firm, as well as counsel Alepuyo and Aguon. In 22-0050-CR, present counsel Jack Torres, a member of Torres Bros, LLC, also has recently appeared as attorney for Defendant. Rule 1.10 of the Model Rules impute the knowledge of parties associated in a firm across each other.
This is the same case. These are the same attorneys.
Refiled cases after dismissal with prejudice, charging the same conduct, are the same case. They are assigned new cause numbers as practice. Recently, in Commonwealth v. Eric Lee Nekaifes, the November 22, 2021, conduct was initially charged by information and assigned criminal case number 21-0189. It also was challenged based on preliminary procedural requirements. On December 3, 2021, that case number was dismissed without prejudice due to the lack of a physical signature on the information. When the case was refiled, the same conduct was assigned case number 21-0194-CR. In re Commonwealth, 2022 MP 5.
Even if the court does not consider this refiled case to be the same, the Court can consider parallel matters.
Throughout the litigation, the defense has freely referred to parallel actions brought by the defense in differently entitled actions in order to ask for relief from the court.
The Defendant already asked for a determination that he was permitted a preliminary hearing. He asked for it when the charges had a higher total exposure to deprivation of liberty rights – a threshold issue in due process determinations. Now that it is s, he asks for it again, calling for the judge not merely overrule a determination already by the court in this matter but an institution of an even more stringent legal standard. The judge has ruled in this case that when this charge was part of felony proceedings that the statutory preliminary inquiry procedural safeguard did not apply. Now he asks the court to find that when it is an even lower exposure to deprivation of liberty, it does.
Finding that the case with less criminal exposure requires a higher showing of probable cause would fly against the explanation in Commonwealth v. Camacho, 20 that we interpret procedural rules in pari materia with the relevant statutes and make all attempts to harmonize them. “[Q]uestions of dominance between the judiciary’s rules and the legislature’s statutes only occurs when a statute directly and irreconcilably conflicts with a rule of this court on a matter within the court's authority.”
IV. This matter has already been litigated in this case by this attorney.
This bad-faith motion is part of a pattern by the Defendant and his team.
The Commonwealth is inured to this Calvinball argumentation. The facts of this charge in particular show a fundamental disdain of any process that treats Defendant as a citizen rather than a king. But that does not mean that the Court needs to participate in such a grandiose delusion. This ‘rules for thee and not for me’ argumentation ultimately shows that every accusation is a confession.
Despite engaging an attorney as a pro hac vice attorney contracted by the defendant to cover six separate terms of inquiry and several different enumerated causes of action in criminal, civil, appellate, and legislative inquiries, the Defendant argued that the pro hac vice rules for the same matter when an attorney was contracted by the Commonwealth, pro hac vice rules needed to be strictly interpreted.1
Despite this same attorney making appearances before the pro hac vice application was filed or approved, despite there not being a record of the pro hac vice attorney taking an oath for the bar, despite a change order expanding the contract subsequent to pro hac vice admission, it was against the Commonwealth’s attorney that Defendant made accusations of unauthorized practice of law.
Despite asked for a special prosecutor to be appointed to alleviate conflicts of interest, Defendant argued once he was appointed that such an appointment was inappropriate.
Defendant also has asked for action on his criminal cases to rely and refer to its parallel actions started by him. He waited eight months after rulings to file motions to reconsider adverse rulings, and then used those pending motions to argue that there needed to be a continuance in his case.
Defendant filed an action against challenging the professional services with the Special Prosecutor in this case when the trial was scheduled for June 5, 2023. In that action, they have argued that the Attorney General’s office is a necessary party, but declined to include the other signatory of the contract as a party. In the most recent argument on that case, Defendant’s counsel argued that there needed to be scrutiny and transparency with professional services contracts for compliance with procurement rules since this was public money. This did not prevent the same counsel from objecting to the public money professional services attorney contract with their own pro hac vice defense counsel on this matter being entered as evidence.
It is time for the Court to do something about this pattern by Defendants Counsel.
Lawyers have a duty of honesty towards courts. Rule 8.4(d) provides in pertinent part that “it is professional misconduct for a lawyer to: engage in conduct that is prejudicial to the administration of justice.” The CNMI courts have not had the opportunity to define what conduct is prejudicial to the administration of justice, but other courts have found conduct prejudicial to the administration of justice is behavior that violates “an ethical duty owed to the legal system,” which “affect[s] the ability of the system to fulfill its obligation to resolve disputes impartially and maintain the public trust.”
There was no basic inquiry into this argument before it was filed. “An objective reasonableness test is used to determine whether an adequate prefiling inquiry has occurred.” A document is not well grounded in the law if it is frivolous. A filing is frivolous if it is not likely to succeed on the merits or if reasonable persons would not differ as to the likelihood of its success on the merits. No reasonable person could think that their request here is likely to succeed on its merits.
Sanctions are also appropriate if a document is filed for an improper purpose such to harass, cause unnecessary delay, or increase the costs of litigation. Even if a document is well grounded in fact and law, if the filing evidences the signer’s bad faith, it is sanctionable. The improper purpose standard is an objective one.
Defendant’s Attorneys are filing these motions with one clear purpose in mind: delaying the trial in the hope of waiting out the special prosecutor or hoping that there will be political intervention to prevent adjudication of the legal process.
The clearest ‘rules for thee and not for me’ pattern by the defense has to do with its peripatetic relationship with filing deadlines. In each of the prior proceedings, they have asked the court to strike filings for them being ‘out of time.’ This is despite them filing motions to reconsider 220 days after such final rulings while attempting to rely on rules that require such motions be filed within 10 days of the challenged decision.
The undersigned representative of the Commonwealth has made his peace with the type of behavior that Defendant’s counsel exhibits. But the duty to police such behavior is on the Judiciary and the Bar, not the prosecution. Those entities should recognize that such behavior, with impunity, undermines faith in the legal process and legitimacy of the body. Unfortunately, this pattern of impunity for the powerful of the CNMI long predates the Defendant. And the complete recusal of the entire judiciary when it comes to this Defendant means that the Court who has been – like the undersigned Special Prosecutor – called in from outside the Commonwealth to uphold principles of justice and the rule of law, must do the hard and right thing. When our brethren lack the will or capacity to do what is right and good, it only elevates the need for vigilance and diligence from those who are called.
A prominent impeachment defense attorney was engaged for the former Governor’s investigation and impeachment inquiry. I personally don’t see anything wrong with his conduct in the case, but rather some actions by his client that put him as a counterargument and potential fact witness in this litigation. I have put his relevant timeline here instead of the body of the actual motion that I filed.
18 August 2021:
Defendant signed a Contract for Legal Services for Ross Garber of the Garber Legal Group for “(1) the investigation of the House Judiciary & Government Operation Committee [JGO] into the affairs and expenditures of the Governor, and (2) the investigation of the House Committee on Gaming into the operation and governmental relations of the casino licensee as it relates to the Governor and Office of the Governor and (3) and any other legislative investigation that may arise during the term of this agreement. Such representation may include litigation in court related to items (1)-(3) and appellate work related to such litigation.”
September 2021, et seq: Garber appears virtually before House investigations.
27 January 2022:
Gilbert Birnbrich applied for the admission for Ross Garber pro hac vice specifying only Superior Court Civil Action No. 21-0333.
17 February 2022:
Defendant entered into a change order for his contract with Ross Garber to include {4} the Senate hearing on the articles of impeachment against the Governor transmitted to the Senate by the Commonwealth House of Representatives.
28 March 2022:
Ross H. Garber entered his appearance pro hac vice in 21-0333-CV.