‘Gaming commission sued wrong defendant’

The Attorney General’s Office has filed two separate motions to dismiss twin lawsuits filed by the Tinian Casino Gaming Commission against Gov. Juan N. Babauta, saying it has sued the wrong defendant, its challenge is moot, and its claims are based on an incorrect interpretation of the CNMI Constitution and its laws.

“The petition should be dismissed in its entirety,” said assistant attorney general James Livingstone, who is serving as attorney for Babauta.

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

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

The commission said that, relying on the advice of their legal counsel, Elliot A. Sattler, it 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 “for breach of their fiduciary duty.”

Sattler had said that 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.

In a motion, Livingstone said that the governor is the wrong defendant because he has not taken any position on the matter. In fact, he said that the petitioner cannot point to any actions that the governor has taken with respect to the proposed initiative or how the interpretation that led to the dispute is within his responsibilities.

Besides, it is not the respondent’s responsibility to interpret the laws, as this belongs to the AGO.

In another motion, Livingstone said that the governor “has complete legislative immunity.”

“The respondent is absolutely and completely immune from suit. He was only sued because he signed Tinian Local Bill 14-1 into law. As signing a bill into law is a legislative function, legislative immunity provides him complete immunity from suit,” he said.

Moreover, he said that Tinian Local Law 14-1 is a lawful and valid law.

Livingstone said that the commission’s counsel insisted that the Casino Act of 1989 could only be changed by local initiative and that laws passed by initiative could only be modified by subsequent amendment, citing cases from Arizona and California.

However, Livingstone said that Sattler did not acknowledge that the constitutions of those states contain provisions that specifically limit the power of the legislature to amend laws enacted by initiative.

“He also didn’t point out that there was no provision in the NMI Constitution similar to those that exist in Arizona and California,” he said.

The AGO also said that the question of whether or not the initiative petition became law is no longer a live controversy.

“It is moot. The Tinian legislative delegation enacted [HB 14-1] this past spring. This law is the same as the initiative petition,” Livingstone said.

Further, he said that none of the petitioner’s challenges to Local Law 14-1 withstands scrutiny.

He said that local legislative delegations may amend local laws passed by initiative to the same extent as laws the delegation passes.

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

The amendments also sought 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 commission 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.