Rep. Janet Maratita's (IR-Saipan) language “to the best of my ability” in her affidavit has prompted Superior Court associate judge David A. Wiseman to vacate his order to show cause against Gov. Benigno R. Fitial and co-defendants in the lawsuit over the alleged illegal $190.8-million power purchase agreement deal.
In an order issued on Wednesday, Wiseman noted that the Maratita affidavit reads in relevant part, “I declare under penalty of perjury that the foregoing statements are true and correct to the best of my ability.”
The judge said the qualifier “to the best of my ability,” in the signatory line, is inconsistent with the statute and undermines the veracity of the statements therein.
“It is therefore improper for the court to rely on it,” said Wiseman, concluding that without the affidavit there is no factual basis for issuance of an order to show cause.
The judge cited a previous Superior Court decision, striking an affidavit containing “to the best of my knowledge,” language.
Wiseman said in that ruling, the court reasoned that the statute required an “unequivocal declaration.”
On Aug. 31, 2012, Wiseman granted the request of Maratita and co-plaintiffs the Senate and then representative and now Sen. Ray Anthony Yumul (IR-Saipan) to issue a preliminary injunction, which enjoined Fitial and co-defendants from “continuing, pursuing, and/or performing on the power purchase agreement.”
On Dec. 3, 2012, Maratita and co-plaintiffs filed a motion for an order to show cause why defendants should not be held in contempt for violating the preliminary injunction.
Plaintiffs' motion was accompanied by Maratita's declaration.
The plaintiffs, through counsel Ramon Quichocho, alleged that it as on Dec. 3, 2012-two weeks after the injunction order from court-when the Delaware-based Saipan Development LLC officials arrived on Saipan and met with Fitial to discuss the power purchase agreement and other projects.
On Dec. 6, 2012, Wiseman issued an order to show cause. Fitial filed an objection to the issuance of the order to show cause based on the timeframe set for motions.
On Dec. 12, 2012, Wiseman issued an order providing Fitial and co-defendants with an opportunity to file any opposition to the motion for an order to show cause on or before Dec. 17, 2012.
The defendants subsequently filed an opposition to the motion. Plaintiffs also filed their reply.
At the order to show cause hearing last Jan. 2, Wiseman clarified his intent to treat the proceeding as a hearing on the motion for an order to show cause, rather than a contempt hearing.
Fitial and co-defendants Commonwealth Utilities Corp. and Attorney General Joey P. San Nicolas contested the factual basis of the issuance of the order to show cause. They argued that the Maratita affidavit fails to properly allege that it is “true and correct,” in violation of 7 CMC § 3305.
Wiseman agreed with the defendants.
Early this week, Maratita and co-plaintiffs amended their lawsuit against Fitial, former attorney general Edward T. Buckingham, CUC, and Saipan Development LLC.
Plaintiffs' counsel Quichocho said they want a court-ordered permanent injunction to stop the agreement.