Tinian commission sues Babauta, others

The Tinian Casino Gaming Control Commission has filed a civil lawsuit assailing the validity of a local law that would allow major changes to the Revised Casino Act, asserting that the changes had already been adopted through an earlier popular initiative.

The commission filed separate petitions asking the court to declare Tinian Local Law 14-1 as invalid and that the results of the Nov. 1, 2003 popular initiative caused the adoption of changes to the Casino Act. Tinian Local Law 14-1 was signed into law by Gov. Juan N. Babauta last May 24.

Both the local law and the popular initiative would allow the awarding of a casino license to hotels with 100 rooms instead of the minimum requirement of 300 rooms.

The amendments also seek to reduce the casino license application fee from $200,000 to not less than $5,000, as well as permit and regulate credit wagers in the casino, among others.

In one of the petitions, the TCGCC named as respondents Babauta and members of the Tinian Legislative Delegation—Senate President Joaquin G. Adriano, senators Joseph M. Mendiola and Henry H. San Nicolas, and House Rep. Norman S. Palacios—who were responsible for the passage of the local law.

The commission, represented by its executive director Esther Hofschneider-Barr, named the governor as respondent in a separate petition that seeks judicial declaration upholding the adoption of the Casino Act amendments through the popular initiative.

“The commission, relying on the advice of their legal counsel, is reluctant to take any action pursuant to Tinian Local Law No. 14-1 since it could result in civil litigation or criminal prosecution of the commission members and impose upon them personal or individual liability for breach of their fiduciary duty,” the first petition stated.

Through its chief legal counsel Elliott A. Sattler, the commission said the Casino Act could only be amended by “an act of equal dignity,” specifically through a popular initiative, and not through the passage of a local law.

“[The] local law adopted by the Legislative Delegation…is not an act or law of ‘equal dignity’ to the Revised Casino Act, but…an ‘inferior act’ to the…Act, which was adopted pursuant to the constitutional authority of…Article XXI [local initiative],” Sattler said.

“The language which would have permitted the creation and regulation of gambling in a single senatorial district by the enactment of a local law by the Legislative Delegation was deleted from Amendment 42 before it was adopted as Article XXI of the NMI Constitution,” he added.

Sattler asked the court for a speedy resolution of the legal question brought before it.

In the other petition, Sattler contended that the CNMI Commonwealth Election Commission and the Attorney General’s Office erred in ruling that the proposed amendments to the Casino Act did not muster the required votes in the 2003 referendum for the popular initiative.

According to Sattler, although there were 1,108 registered voters on Tinian at that time, 668 out of 825 affirmative votes were more than two-thirds of the actual votes cast to muster the constitutional requirement.

The AGO and the CEC earlier disagreed, holding that the total number of registered voters—the 1,108—should be considered in determining whether or not the two-thirds requirement was met, whether or not they actively participated in the polls.

The relevant constitutional provision states: “An initiative petition that proposes a local law shall become law if approved by two-thirds of the persons from the senatorial district who are qualified to vote.”

Sattler wants the court to clarify the meaning of the provision, saying it is confusing. He asked the court to declare the executive department’s opinion as incorrect.

“[The] phrase ‘who are qualified to vote’…requires that, in order to pass and be approved, a proposed local initiative must receive two-thirds of the votes of all voters who are registered to vote and who actually appear at the polls and participate in the electoral process by voting either for or against the proposed local initiative,” the TCGCC’s lawyer said.

If this interpretation is followed, Sattler said the affirmative votes would reach 81 percent of the total votes cast in the referendum. Affirmative votes reached 668, while negative votes only tallied 157.

“[Babauta’s] interpretation of [the constitutional provision] creates ‘phantom voters’ and dilutes and diminishes the value of the votes actually cast in the election,” Sattler said.

He asked the court to expedite the proceedings since it would have a significant impact on the island’s people and economy.