Judge refuses to recuse self from Fund lawsuit

Citing the Superior Court’s present budget crisis, associate judge Kenneth Govendo has refused to remove himself from presiding over the NMI Retirement Fund’s lawsuit against the CNMI government and Gov. Benigno R. Fitial.

If he were to recuse himself, Govendo said there would be no one else in the Superior Court who could hear the Fund’s lawsuit.

“The other judges would recuse themselves for the same reasons cited here and the Judiciary lacks the ability to fund a judge pro tem,” Govendo said in a written order issued last week.

He pointed out that the rule of necessity is applicable in this situation and bars him from recusing.

The judge said the lawsuit is a complex matter and would involve a lengthy appointment.

“There are simply not adequate funds available to appoint a judge pro tem for a case of this nature,” he said.

The Fund filed the lawsuit against the government, Fitial, Finance Department, and Finance Secretary Eloy Inos in 2006 over the government’s alleged failure to remit the required employer contribution payments, now reaching over $119.6 million.

The hearing was held last Aug. 13. Attorney Viola Alepuyo appeared on behalf of the Fund. The defendants were represented by assistant attorney general Anthony Welch.

The lawyers informed the court of the existence of bias due to the subject matter of the case. They then argued their positions on the possibility of Govendo’s recusal.

In his order, Govendo said any member of the Judiciary presiding over this case runs the risk of appearing biased.

In addition, Govendo said, every judge within the Superior Court has a personal interest in this case; they each have invested into the Fund.

A CNMI statute, he said, directs any judge or justice to disqualify him- or herself in any proceeding where their impartiality might be reasonably questioned.

Therefore, Govendo said, being both a defendant and having a vested interest in the Fund, he appears obligated to remove himself from this case.

“It is clear that these issues of bias apply to every other judge in this Superior Court. All of them are part of the Judiciary and have a personal interest in the Retirement Fund,” said the judge, adding that the other judges would also have to recuse themselves pursuant to the statute.

As such, Govendo said, a recusal on his part would be followed by the recusal of every other judge and would leave the parties without a viable venue in which to adjudicate this case.

Citing a previous federal court ruling, Govendo said this common law rule of necessity, which dates back over five centuries, applies even when the source of bias is a financial interest just like in the Fund’s lawsuit.

The judge said the applicability of this common law rule of necessity to the present situation comes into play whether or not there are any other available judges who could hear this case.

He said he already concluded that all of the Superior Court judges have a personal and financial interest and that the only option would be the appointment of a judge pro tem who does not have a government retirement account and therefore would be unbiased.

Unfortunately, Govendo stressed, this option is neither practical nor possible in light of the Superior Court’s present budge crisis.