TCGCC counsel: Judge’s decision is a clear victory for the commission
The Tinian Casino Gaming Control Commission filed a lawsuit against the mayor, the municipal treasurer and the Municipality of Tinian alleging that several local laws passed by the Tinian Legislative Delegation were unconstitutional and void because the Gaming Act, a popular initiative passed by a two-thirds vote of the electorate, could not be amended by local legislation passed only by three Tinian senators and one Tinian representative.
The lawsuit also alleged that the mayor and treasurer, in refusing to pay raises given by the commission to its employees, without ever having a hearing and complying with due process, violated their constitutional rights to their property interest in those salaries.
The Gaming Commission sued the mayor and the treasurer in their official and individual capacities.
In a victory for the Gaming Commission, Judge David Wiseman found that “…[H]alting increased salary payments was a constitutional violation…The court finds that the salary increases in question were a constitutionally protected property interest…”
The judge’s decision said, in part, that “The Casino Gaming Control Act …provides that the commission may appoint it members and set its members’ salaries…(“Persons appointed under this section shall be appointed on such terms and conditions as to remuneration and otherwise are not subject to the Commonwealth Civil Service System…”)”
“The whole point of this portion of our lawsuit was that it was the commission which had the power to set its employees’ salaries, not the local Tinian Legislative Delegation, so the mayor should have paid those salaries and not insisted on paying salaries listed in a local Budget Act. This decision supports that position,” said TCGCC legal counsel Bob O’Connor.
“This decision is a clear victory for the commission, ” he added.
While Wiseman’s decision granted qualified immunity to the mayor and treasurer, dismissing them from the lawsuit in their individual capacities, the mayor and the treasurer were retained in the action as defendants in their official capacities. The Municipality of Tinian was not dismissed from the lawsuit either.
“The judge apparently thought that the mayor and the treasurer should remain in this lawsuit only in their official capacities, and that is fine with the commission. The commission put them into the action in their individual capacities so that they might ultimately, at the conclusion of the case, have some personal responsibility for the commission’s attorney fees. The commission thought they should have to think twice in the future about violating the constitutional rights of the commission employees and think twice about their continuing interference in commission affairs. They remain in the lawsuit in their official capacities and will remain officially responsible for the outcome of this case, and that is enough for us,” said O’Connor.
Wiseman has not yet ruled on the other pending motions concerning the constitutionality of the local laws passed by the Tinian Delegation purporting to amend the Gaming Control Act.
“O’Connor told Variety on Thursday that Judge Wiseman’s decision is “a clear victory for the commission.” A clear victory? How can he say this is a “clear victory” when the Court ruled in favor of the Mayor’s office granting their own motion to dismiss? Yes, the Court did find that halting increased salary payments was a constitutional violation; HOWEVER, the Court also found that “the Commission’s right to receive a higher salary was not a “clearly established” right.”
According to Judge Wiseman, “even if the Court finds that a constitutional right was violated, the qualified immunity defense still applies if the right was not “clearly established.” To this extent, the Mayor’s Office argued that the complaint alleges two irreconcilable sets of laws as to the Commission’s ability to set its members’ salaries: the Casino Act and Tinian Local Ordinance 18-3. The former allows compensation for the Commission’s members up to $75,000, but subject to approval by the Tinian & Aguiguan Legislative Delegation. The latter prevents the Commission from setting its members’ salaries or increasing the salaries of any of its own employees. The Mayor’s office argued that where there are conflicting authorities and no sufficient case law to guide the correct course of action there is no “clearly established” right. According to Judge Wiseman, the Court was persuaded by this argument.
The Court also found that the Mayor’s Office met its burden to show that the qualified defense should apply because there was no “clearly established” right on the face of the Commission’s complaint. The Court also found that the Commission’s opposition arguments are unpersuasive because (1) they used “decisions of a district court are not binding on this Court” and (2) they used “consent decrees [that] do not carry sufficient precedential effect to show a “clearly established” right.” In addition, the Court found that the cases that the Commission cited were not persuasive as to whether the due process right was “clearly established”. Therefore, Judge Wiseman found “the Commission’s constitutional due process right was not “clearly established” when the Mayor’s Office halted the payment of additional salaries.”
This is why the Court found that the Mayor’s Office is entitled to the qualified immunity defense. “The Mayor’s Office met its burden to show that the Commission has not alleged a “clearly established” right on the face of its complaint.”
How the loser of the great debate say that he scored a “clear victory” is completely beyond my understanding.
Poor employees. Shame on the gaming commission. They should give their employees what is due them.