Court rules against the dismissal of Malite case

The Superior Court yesterday denied the dismissal of the controversial Malite case, saying that the issue on Pamela Brown’s legitimacy as attorney general is not relevant to the $3.45-million land compensation claim dispute.

In a 21-page order, associate judge Juan T. Lizama ruled that the defendants in the Malite case—the Marianas Public Lands Authority, its board and commissioner Edward DeLeon Guerrero, and Malite estate administrator Jesus Tudela—failed to prove that Brown has been holding the attorney general post unlawfully.

The judge said that the Attorney General’s Office could continue to function and institute civil and criminal cases regardless of questions about its head’s legitimacy.

He said the AGO could proceed with the Malite lawsuit without the governor’s blessing, saying the office has sufficient power under the Constitution and common law. Brown’s office had sued the defendants to prevent the disbursement of some $3.45 million to the Malite estate, the amount awarded by the MPLA board on the estate’s land compensation claim.

Lizama said, though, that Brown might have assumed the post in an acting capacity before her Nov. 17, 2003 confirmation by the Senate, which, if proven, would impact on her legitimacy.

But the judge said the matter should be resolved in a separate proceeding, ruling that the legitimacy issue is irrelevant to the Malite lawsuit, which was filed by the AGO to prevent the drawdown of some $3.45 million being claimed by the Malite estate.

“The court suspects that a strong case could be made here that Ms. Brown did supervise activities at the [AGO] before her confirmation,” Lizama said.

He said that the 90-day statutory deadline within which to confirm Brown from the time she was nominated to the attorney general post by Gov. Juan N. Babauta on June 16, 2003 would apply to her if she served as temporary appointee.

The court ruled, however, that the confirmation deadline did not apply to Brown based on available evidence that she never assumed the position in an acting capacity until she was confirmed.

Lizama made this ruling despite upholding the constitutionality of the statutory deadline. The deadline, if Brown assumed the position in a temporary or acting capacity, fell on Sept. 14, 2003.

“Unfortunately for movants [defendants], a close reading of the statute does not support their position. By Its express language, the 90-day limit in the statute applies only to persons who are ‘temporarily appointed’,” the judge said.

Although the judge expressed his belief that the 90-day deadline should apply to all of the governor’s nominees requiring Senate confirmation, he said that the matter should be left for the Legislature to address by possibly amending the statute.

“This court’s duty is to say what the law is, not what it should be. In doing so, the court must give a statute its plain meaning and ‘it is assumed that the legislative purpose is expressed by the ordinary meaning of the word used’,” he said.

Court rules on 2003 Senate takeover

For the first time, the court also ruled that the September 17, 2003 rejection of the nomination by four senators was not valid because the number did not constitute a quorum pursuant to Senate rules.

Lizama said that former Senator Ricardo Atalig had not relinquished his position at that time despite his federal felony conviction. A majority number of the senators shall constitute a quorum that will allow a session to proceed.

Although there were a total of seven senators who were attending sessions at that time after the conviction of then senators Atalig and Jose Dela Cruz on federal wire fraud charges, the former did not relinquish his post until his successor was elected in November 2003. Atalig’s inclusion in the number of senators would make its total eight, excluding Dela Cruz, who had earlier tendered his resignation before the controversy.

“The Sept. 17 vote would have disposed of Ms. Brown’s nomination and…would prevent her from being renominated. Unfortunately for movants, the four senators present at the time were not sufficient to constitute a quorum and without a quorum no official action may be taken,” Lizama said.