Brown’s fate now in the hands of Lizama

The fate of attorney general Pamela Brown is now in the hands of Superior Court associate judge Juan T. Lizama, who vowed to come out soon with a decision whether or not the official is illegally occupying her post.

“I have no choice, we have to do it [come to a decision]. …I think we do have an issue that is so important. It’s not for my own sake. I will issue a decision for the people of the Commonwealth,” said Lizama at the close of yesterday’s hearing on the case.

The Malite estate and the Marianas Public Lands Authority, its board, and commissioner Edward DeLeon Guerrero had asked the court to dismiss the lawsuit filed by Brown against them in connection with a dispute over the $3.45 million land compensation claim by the estate, on the ground that she is not occupying the attorney general post lawfully. See related story on Page 3.

After an uninterrupted hearing yesterday that lasted nearly three hours, Lizama said he would carefully look into the issue. It would be up to the judge to declare whether Brown is an illegal attorney general and dismiss the suit or vice versa, or refrain from ruling on Brown’s legitimacy, which is also the subject of a separate lawsuit filed by former Senate president Juan Demapan against the embattled attorney general.

Lizama conceded that the matter calls for a tough decision, which he vowed to render with “good conscience.”

During the hearing, Lizama rigorously questioned and rebutted assistant attorney general James Livingstone, when the government attorney defended the validity of Brown’s confirmation on Nov. 17, 2003, months after Gov. Juan N. Babauta nominated her to the post on June 16, 2003.

“No one will believe you that Brown was not acting attorney general when she was physically present at the Governor’s Office,” Lizama said. “We’re not inaka [uncivilized]…we’re not still living in the boonies.”

The judge also cautioned Livingstone not to make any misrepresentation to the court. “We don’t have a part-time Legislature.”

Livingstone contended that Brown was not temporarily appointed as attorney general and never held the post in an acting capacity even after the governor nominated her for the position.

“Even assuming [that] she was temporarily appointed on June 16, 2003, which she clearly was not, the 90 days [timeframe for her confirmation by the Senate] did not expire before the Senate confirmed her as attorney general on Nov. 17, 2003,” Livingstone said, in a supplemental document he had filed last Friday.

The defendants yesterday asked the court to strike out the pleading, but Lizama has yet to make a ruling on the request as of press time.

Citing statutory provisions, Livingstone explained that the 90-day timeframe within which to confirm Brown’s nomination did not begin right after the governor made the nomination. He said that the Senate was in recess at the time the nomination was made.

“Therefore, the appointment automatically went over to the next regular session—when the 90-day clock began. This tolling makes sense. It results in the 90-day clock running only when the Senate is in session to take up the nomination,” he said.

Livingstone said the first regular session by the Senate following Brown’s nomination was on Aug. 27, 2003. He said the 90-day clock only began at that time, saying that Brown was confirmed 82 days later.

MPLA attorney Matthew Gregory argued against this, assailing Brown’s legitimacy and asking the court to uphold the 90-day statutory deadline for confirmation. Gregory said the provision gives teeth to the constitutional requirement of a Senate confirmation of the governor’s appointments.

“If this court does not decide, who will make the decision? Who will interpret the Constitution?” he asked. “We have a serious issue that cannot be sidestepped by this court.”

“Only this court’s decision will vindicate the Constitution and CNMI statute,” Gregory said.

The defendants contend that the 90-day deadline fell on Sept. 14, 2003, when the Senate had made no action yet on Brown’s nomination. A Senate faction composed of four members explicitly rejected the nomination on Sept. 17, 2003. On Nov. 17, 2003, the other faction, composed of five members, confirmed the nomination.