AGO: Accept Babauta, Lemons’ affidavits

The Attorney General’s Office asserted that the Superior Court should accept the sworn declarations of Gov. Juan N. Babauta and deputy attorney general Clyde Lemons Jr., which claim that Pamela Brown never assumed the attorney general post in an acting capacity until she was sworn into office.

The AGO submitted the declarations of Babauta and Lemons in the controversial Malite case, as the defendants in the case seek dismissal of the lawsuit on the ground that an allegedly unlawful attorney general filed it.

Babauta and Lemons’ declarations effectively support the argument that the 90-day deadline within which Brown should be confirmed from the time she was nominated to the AG post on June 16, 2003 had not expired when a Senate faction confirmed her on Nov. 17, 2003.

The defendants—Marianas Public Lands Authority, its board, and commissioner Edward DeLeon Guerrero, and Malite estate administrator Jesus Tudela—contend that the deadline fell on Sept. 14, 2003, when the Senate had yet to act on Brown’s nomination. On Sept. 17, 2003, another Senate faction explicitly rejected Brown’s nomination.

In a recent pleading submitted to the court, assistant attorney general Jeanne Rayphand said the defendants’ opposition to the AGO’s submission of the governor and Lemons’ declarations lacks any merit. She debunked the defense position that the declarations are barred by the doctrine of judicial estoppel.

The doctrine prevents a party that has taken one position in litigating a particular set of facts from later reversing its position when it is to its advantage to do so.

The governor had earlier asked the court to quash the subpoena on him because of alleged lack of first-hand knowledge, in connection with Brown’s request for preliminary injunction to prevent the drawdown of some $3.45 million in land compensation claim by the estate. The court denied the governor’s request to quash the subpoena.

“The defendants’ judicial estoppel argument fails because, first, the plaintiff’s argument to exclude the testimony of Juan N. Babauta relative to the preliminary injunction motion was not adopted by the Superior Court; and second, the facts recited in the latest affidavit of [Babauta] relate to a completely different matter,” Rayphand said.

She said Babauta’s declaration relate to the defendants’ request to dismiss the lawsuit on the ground that Brown has no capacity to sue them because she is not the lawful attorney general.

“The challenge to Pam Brown’s authority as attorney general, which is the subject matter of the governor’s declaration, has nothing to do with the merits of this case. It is simply a dilatory tactic being used by the defendants to distract the court and avoid a decision on the merits in this matter,” Rayphand said.

Defense lawyers have insisted that judicial estoppel applies to bar the declaration of Babauta, saying that when the court subpoenaed governor earlier, his attorneys wanted the subpoena quashed on the ground that the witness lacked relevant knowledge on the Malite transactions.

Rayphand also asserted the admissibility of Lemons’ declaration, which stated that he managed the AGO after then attorney general Ramona Manglona vacated the position until Brown took over the position in December 2003. Lemons admitted that he interacted with Brown when he was acting attorney general, but said that the latter remained as the governor’s legal counsel.