Gov. Benigno R. Fitial's attorney general nominee, Joey Patrick San Nicolas, worked as assistant attorney general for the Guam Attorney General's Office from February 2011 to January 2012, raising concerns that he may be disqualified if the Senate finds that he does not meet the constitutional requirement of residing in the CNMI at least three years “immediately preceding” his confirmation.
Press secretary Angel Demapan said yesterday that the Fitial administration's position is that San Nicolas “meets the requirement.”
However, the Fitial administration has already asked a legal review on the matter.
“Mr. San Nicolas never claimed residency in any other jurisdiction. Even during the time he worked in Guam, Mr. San Nicolas continued to be an active registered and participating voter in the CNMI,” Demapan told Saipan Tribune.
San Nicolas himself said he worked at the Guam AG's Office from February 2011 to January 2012.
“Although I worked in Guam, I maintained a residence in the CNMI, never changed voting district,” he said.
The determination now rests with the Senate Committee on Executive Appointments and Government Investigations, which is reviewing San Nicolas' nomination as the highest law enforcement officer in the CNMI.
The governor announced his appointment of San Nicolas to serve as acting AG on Tuesday afternoon and advised him to “follow the law,” over two months since the controversial departure from the CNMI of former attorney general Edward T. Buckingham.
Sen. Frank Cruz (R-Tinian), chairman of the EAGI Committee, said the Senate legal counsel is now looking into the governor's appointment of San Nicolas, including his residency and whether it meets the constitutional requirement.
San Nicolas' appointment requires the advice and consent of the Senate.
Article III Section 11 of the CNMI Constitution reads in part, “The attorney general shall be a resident and a domiciliary of the Commonwealth of the Northern Mariana Islands for at least three years immediately preceding the date on which the attorney general is confirmed.”
Review, public hearing
The Senate's EAGI Committee oversees the review of the nominee's qualification and makes recommendation to the full Senate whether to confirm or reject him.
Cruz's panel, however, has yet to schedule a public hearing on San Nicolas' nomination pending the submission to the Senate of a copy of his statement of financial interest filed with the Office of the Public Auditor, resume, police clearance and evidence of compliance with the mandatory drug screening.
Cruz said that, although he personally knows that San Nicolas has the capability and knowledge to become the next CNMI attorney general, the EAGI Committee has to make sure his appointment meets the requirements of laws and the Constitution.
“This guy, for me, is qualified to be an AG but like I said, if there's something that we find that violates the Constitution or any law, then that's something that we have to inform the governor,” Cruz told Saipan Tribune.
The concern about San Nicolas' residency is made more pronounced in the wake of the Commonwealth Election Commission's decision yesterday to disqualify Democratic Party candidate Jesse Torres over a residency issue.
But Demapan said “as opposed to candidate Torres, when he registered to vote in Guam, he essentially relinquished his residency status in here to claim residency in Guam.”
“To further affirm its position, the administration has requested a legal review of this matter. I will make the findings and review available once it is completed,” Demapan said.
The CNMI has never had a permanent attorney general since Buckingham left the island and resigned for the second time in early August.
Fitial named Viola Alepuyo as acting attorney general, until an AG nominee's name is submitted to the Senate for confirmation.
The governor said he asked San Nicolas to become the next AG within days after Buckingham decided not to come back to the CNMI for good.
San Nicolas is currently staff attorney at the Commonwealth Ports Authority. He also worked at the Public Defender's Office.
'Attorney general's statement'
At 8:06pm last night, the CNMI Office of the Attorney General issued a statement further explaining the Fitial administration's position on San Nicolas' residency.
“The Office of the Attorney General has advised the governor that after a review of Mr. San Nicolas' employment with the Guam Attorney Generals' Office, he does qualify to be appointed Attorney General,” the OAG's two-page statement said.
The OAG also cited Article III Section 11 of the NMI Constitution on the residency requirement.
The OAG said “CNMI statutes and case law provide guidance how a person is to determine one's residency and/or domiciliary. See 1 CMC §§ 6202, 6203, and 6204.”
It said “a person's domicile means a place where a person intends to '.return and from which he has no present plans to depart.' It does not mean it is a temporary or special home. Rajapaksha v. Jaweera, 5 N.M.I. 87 (1997). A person's residence is defined as '.that place in which the persons habitation is fixed, and to which, whenever the person is absent, the person has the intention to return.' 1 CMC § 6204(a).”
The OAG statement said San Nicolas “considers Tinian his home; that is where he was raised; the place he always returns to after absences due to education or employment. Mr. San Nicolas and his family lived in the mainland when he was in college. When he graduated, they all moved back home to Tinian.”
In February 2011, San Nicolas accepted a position at the Guam Attorney General's Office.
His family joined him in Guam but when he returned to the CNMI to be the in-house counsel for the Commonwealth Ports Authority in January 2012, San Nicolas' family was already back on Tinian, the place where he intends to always return to, his residence, his domiciliary, the OAG said.
The OAG said there has been a comparison made with San Nicolas' residency matter with that of a recently disqualified political candidate.
It said the most obvious difference between the two is that the disqualified candidate registered to vote in Guam in 2010, “thereby relinquishing his residency in the CNMI. See 1 CMC § 6204(g) (A person loses his residence in this Commonwealth if the person registers to vote in another state or area under the United States or other jurisdiction).”
“Mr. San Nicolas has always maintained his residency and domiciliary in the CNMI and has never registered to vote anywhere other than the CNMI, or specifically, Tinian. Let us all congratulate Mr. San Nicolas on his recent appointment and join the people of Tinian as they rejoice in celebrating the great accomplishments of one of their sons. The people of Tinian have earned the right to be proud of Mr. San Nicolas, who, upon Senate confirmation, will be highest law enforcement officer for the entire Commonwealth of the Northern Mariana Islands,” the OAG added.