Saipan Tribune

Sunday, May 19, 2013

Saturday, October 20, 2012

Fitial's motion to dismiss lawsuit under advisement

Superior Court Associate Judge David A. Wiseman placed under advisement Thursday Gov. Benigno R. Fitial's motion to dismiss the lawsuit filed by the Senate and Reps. Janet U. Maratita (Ind-Saipan) and Ray N. Yumul (R-Saipan) over the alleged unlawful $190.8-million power purchase agreement.

Wiseman also placed under advisement Fitial's motion to strike or dismiss significant portions of the lawsuit.

Assistant attorney general David Lochabay argued for Fitial and the CNMI government. Attorney Ramon Quichocho argued for the Senate, Maratita, and Yumul.

Lochabay reiterated that most of the allegations in the complaint are legal conclusions cast in the form of factual allegations, and that for this reason the causes of action should be dismissed.

Lochabay said the plaintiffs have failed to show that there was a single actual expenditure of government funds relating to the power purchase agreement.

He said much of the language used in the complaint is clearly prejudicial and should be stricken.

Lochabay said the plaintiffs also keep repeating the language “mysterious” regarding Saipan Development LLC, a registered Delaware corporation. The use of the phrase “in secret” places the CNMI government in a derogatory light, he added.

He pointed out that it is not unusual for contract negotiations to be kept confidential in the course of doing ordinary business.

Lochabay asserted that the terms and conditions of the power purchase agreement are clearly not being kept a secret as they are contained in the plaintiffs' own exhibits that were filed in their complaint.

Quichocho, meanwhile, argued that the defendants have failed to present any legal basis or authority for the lawsuit to be dismissed. He said the complaint contains all factual allegations.

Quichocho pointed out that committing funds pursuant to the agreement is already in itself an expenditure of public funds. Since there's already an agreement signed, nobody knows how much the government had actually already spent, he added.

On the motion to strike, the lawyer said Fitial wants to strike all the words that he doesn't like. He said the defendants failed to present single authority that the use of the words are redundant and should be stricken.

Quichocho said that Saipan Development has not even complained about the language.

He said all the documents they received related to the power purchase agreement came from sources and none from the defendants.

The Senate, Maratita, and Yumul are suing Fitial, former attorney general Edward T. Buckingham, Commonwealth Utilities Corp., and Saipan Development LLC to stop the 25-year power purchase agreement that Fitial and Buckingham signed with Saipan Development.