U.S. District Court for the NMI designated judge Frances Tydingco-Gatewood has ruled that the public interest will be gravely harmed if Gov. Benigno R. Fitial is allowed to enforce his executive order that delcares a state of emergency for the NMI Retirement Fund.
“The implications may be potentially devastating for the Commonwealth. It is in the public interest to [stop the] enforcement of Executive Order 2012-06,” said Tydingco-Gatewood in a written temporary restraining order issued Monday.
The TRO prohibits Fitial from enforcing the executive order.
The judge said that Fitial and the CNMI government have failed to even try to show an “emergency” to defend the executive order.
Furthermore, Tydingco-Gatewood said, the defendants have also failed to show that Fitial's and the Legislature's intentional violation of the law by failing to pay the required revenues into the Fund is a “disaster.”
The two unnamed plaintiffs are therefore likely to prevail on their claims that the executive order is not justified by the governor's emergency powers, she said.
The judge noted that the executive order also purports to abolish the Fund's board of trustees. She ruled, however, that Fitial cannot abolish the Fund under his “reorganization” powers.
Tydingco-Gatewood pointed out that Article 3, Section 21 of the NMI Constitution provides that the “members of such a board or commission shall be independent and may be removed only on grounds of gross neglect or dereliction of duty, breach of fiduciary duty, conviction of a felony, or mental or physical incapacity.”
Citing precedent, the judge said that Fitial's reorganization power cannot be exercised in violation of the constitutional limits in Section 21 for removal of sitting board members without good cause, nor can it be used to vest their powers in the governor who is not “independent.”
Tydingco-Gatewood said the executive order appears to exceed Fitial's authority, and plaintiffs are likely to prevail in their request to enjoin it.
On the irreparable harm issue, judge emphasized that a judgment against the CNMI government issued by the federal court can be collected on regardless of the Legislature because the court is not a co-equal branch of the CNMI government.
The judge determined that the implementation of the executive order will likely constitute an irreparable loss given the Fund's current status.
Tydingco-Gatewood said there is little doubt that the unnamed plaintiffs and the class will suffer grave harm if a TRO is not granted.
“Allowing the governor to dismiss the trustees, dissolve the Fund, and suspend all laws governing retiree benefits will severely harm plaintiffs and the class,” she said.
The only harm the defendants will suffer if the executive order is stopped from taking effect is their pre-existing and fundamental obligation to obey the law, she added.
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