U.S. District Court for the NMI designated judge Frances M. Tydingco-Gatewood has allowed the CNMI government to file an additional reply on the motion by the NMI Retirement Fund requesting a show-cause and contempt order against the government.
In her order issued Jan. 9, Tydingco-Gatewood granted the request of the government to file a “sur-reply,” using as basis the new arguments raised by the Fund when it responded to the government's opposition to the motion for a show-cause order.
Sur-reply is an additional reply to a motion filed after the motion has already been fully briefed.
In a nine-page sur-reply filed Wednesday by the government through Attorney General Joey Patrick San Nicolas, it said that trustee ad litem Joseph C. Razzano raised several arguments that he did not raise in his initial motion.
San Nicolas said the six new arguments include: 1) that the appointment order was a clear and unambiguous order that prohibited the government from nominating and considering trustees; 2) the government cannot rely on advice of counsel or a belief that an order was invalid as a defense to contempt; 3) the trustee ad litem, by definition, is for the duration of litigation; 4) assistant attorneys general Reena Patel and Gilbert Birnbrich should be made to show cause why they should not be held in contempt for not responding to a letter from Fund counsel; 5) the government's conduct is contrary to the U.S. Constitution; and 6) no material facts are in dispute, making summary contempt proceedings appropriate.
According to San Nicolas, these new arguments are not supported by law and are merely an attempt by Razzano to mislead the court by misconstruing the government's arguments.
“First, the order appointing the trustee ad litem did not clearly and unambiguously prohibit the Commonwealth from nominating and confirming trustees to the board. As such, the Commonwealth did not violate the appointment order by engaging in the statutory appointment process,” said San Nicolas, adding that even if the trustees were confirmed, the trustees would not be able to assume their rightful positions until the court formally decides to relieve the ad litem of his duties.
San Nicolas said the government also does not intend to rely on either the advice of counsel or belief that the court order was invalid as a defense to contempt because it has not violated a clear and definite court order-an element required for both civil and criminal contempt. The trustee ad litem, he added, also fails to provide any legal support for his assertion that his appointment does not necessarily last for the duration of the case.
San Nicolas also argued that Patel and Birnbrich did not violate a court order for failing to respond to the Fund counsel's letter since they did not receive the letter. These attorneys earlier claimed that the Fund letter went to their spam emails.
San Nicolas also argued that the Fund's motion for summary contempt proceedings is not appropriate in this case because summary contempt, he said, is reserved for exceptional circumstances such as acts threatening a judge or disrupting a hearing or obstructing court proceedings, which are not in existence in the case.
“The court undoubtedly has the power to punish parties for contempt, and the Commonwealth fully respects this power and the court's orders. The Commonwealth submits, however, that this is not an occasion for the court to exercise its power to punish contempt because the Commonwealth has not violated the court's order,” added San Nicolas.