Fund’s ‘inability’ to act now is nonsense

A recent news article (Pacific Times, June 2, 2006) quoted CNMI Retirement Fund board chair Joseph Reyes as stating: “There is nothing that we can do even if our retirees are opposed to the [Legislature’s pending writeoff/CUC bailout law] plans.”

Any notion intimating the board to be presently “unable to act” in the requisite exercise of its legal and fiduciary duties to protect the Fund, the retirees’ well-being, and their mutually-shared-assets, is sheer nonsense.

Unwillingness to act? Maybe. Inability to act? No way. And the board must know this. As the former CNMI justices, judges, and lawyers should. And the Fund’s current legal counsel probably does. Or maybe they’re just waiting until their own retirement interests become vested before proactive, aggressive, protective measures are implemented.

The administration has failed to pay its monthly debt to the Fund. Yet these debts are owed not only to retirees in the CNMI, but also to those retirees outside of the CNMI, thereby possessing so-called “diversity of citizenship” in legal/jurisdictional terminology. All of whom, by effect of those debts and the obligations owed them by the Fund, possess property rights. And property rights are protected. Not only by CNMI laws and the CNMI Constitution but also by U.S. laws and the U.S. Constitution, giving rise to so-called “federal questions” in legal/jurisdictional terminology.

Meaning in turn that redress may apparently be sought not only via a CNMI Judiciary (which itself, being a reputed debtor to the Fund for the construction of the Susupe judicial complex, faces prospective/actual conflicts of interest) but with the U.S. District Court for the Northern Mariana Islands on Saipan—a court unconstrained and unconcerned with Fund-owed-construction debts, retired-judges’ retirement packages, and the like. With the participation of U.S. government enforcement assistance (e.g. U.S. Justice Department, U.S. Marshals, etc.) in the event of noncompliance by the administration.

There, a party may seek from the U.S. court both legal relief and—where no adequate remedy exists at law given the circumstances—equitable remedies including multiple avenues of injunctive relief, with only two requirements needed to obtain an injunction: (1) imminent risk of irreparable harm; and, (2) substantial likelihood of success on the merits.

And so the Fund head honchos, if they want to, might easily and swiftly go into the U.S. court on behalf of the Fund, the retirees, or both and there seek an injunction by which the U.S. court commands full and immediate payment of all past-owed debts (or a portion of those debts with a repayment schedule imposed, subject to U.S. enforcement) from the CNMI government.

And the kicker: the Fund simultaneously might secure as part of this injunction a command by which the U.S. Court orders that the status quo be maintained until such time as either all arrears are paid in full, or an alternative repayment plan may be presented to and approved by the federal court, or upon such further conditions the U.S. court deems necessary and appropriate under the circumstances.

This temporary injunction, quite simply, may then be converted to a preliminary injunction, leaving the CNMI Legislature to pass all laws it wants, but with none of these laws affecting the Fund or the retirees or the property (assets/debts), being then protected by the U.S. government in accordance with the court’s mandate that the status quo be maintained.

But then again, I’m not licensed to practice before the CNMI Judiciary, have never been a CNMI judge, am not a CNMI retiree, and have never been asked to comment. Maybe one of those recently-retired judges, in fact, will view this letter as constituting “unauthorized practice of law” in the CNMI (despite my longstanding admission to practice before the U.S. Court on Saipan) and once again refer my writings to the CNMI’s Office of the Attorney General for prosecution (or to the CNMI Bar, of which I’m not a member, for persecution).

Yeah, that’s the ticket!

Bruce L. Jorgensen
via e-mail