Gov. Benigno R. Fitial's failure to abide by the CNMI Constitution to ensure that the NMI Retirement Fund has a quorum further illustrates the need for the federal court's intervention, according to the lawyers for two unnamed retirees.
Attorneys Bruce Jorgensen, Stephen C. Woodruff, and Robert M. Hatch, counsels for the unnamed retirees, asserted that the Fund board's lack of quorum is Fitial's fault.
The CNMI Constitution mandates that within 90 days of a vacancy on the Fund board, the governor must appoint a replacement, said the lawyers.
The law that created the Fund provides that the Fund's board must have seven trustees. The same statute provides that four members shall constitute a quorum, allowing the board to conduct official business.
In violation of the CNMI Constitution, the lawyers said, Fitial has refused to re-appoint trustees or nominate anyone to fill three current vacancies knowing that he renders the Fund unable to act.
“The Fund's lack of quorum is an intentional act of the governor's own doing in violation of the CNMI Constitution,” the lawyers said.
Without a quorum, the Fund also cannot authorize Fund board counsel Braddock Huesman to act as the Fund's lawyer, so his response should be stricken.
The lawyers said Huesman's response shows the need for federal court action, and the “ridiculous state” of the CNMI under Fitial's direction.
The unnamed retirees asked the court to grant their three emergency motions: motion to lift stay, motion for a temporary restraining order and preliminary injunction, and motion for leave to file a second amended complaint.
According to Huesman, the lack of quorum is preventing the Fund board from taking a position on the two unnamed retirees' motions to prevent the enforcement of Fitial's executive order declaring a state of emergency for the Fund.
Huesman, counsel for Fund board of trustees Pedro Q. Dela Cruz, Sixto K. Igisomar, and Adelina C. Roberto, said the board currently lacks a quorum and is therefore unable to take any action in defense of its right in this lawsuit.
U.S. District Court for the NMI designated judge Frances Tydingco-Gatewood last week ordered the parties in the lawsuit filed by two unnamed retirees to present arguments whether the case can move forward, given that the Fund's board lacks quorum.
Jorgensen and co-counsels Hatch, Margery S. Bronster, and Woodruff asserted that their motion for TRO and preliminary injunction seeks to prevent Fitial from “illegally seizing the Fund and assuming dictatorial control over it.”
Last June 7, Fitial issued Executive Order 2012-06 that suspends the power of the Fund's board and administrator and transfers this executive power to Finance Secretary Larrisa Larson.