Malite estate brings case to High Court

After failing to have attorney general Pamela Brown’s lawsuit dismissed, the Malite estate brought the matter before the Supreme Court and asked the court to enforce the decision of the Marianas Public Lands Authority to pay some $3.45 million as land compensation to the estate.

Malite estate Jesus C. Tudela petitioned the Supreme Court for a writ of mandamus that would reverse the ruling of the Superior Court and enforce the MPLA decision to pay the estate land compensation.

The case was filed before the High Court last Tuesday.

Lawyer Antonio Atalig, brother of former Supreme Court justice Pedro Atalig who recently passed away, represents the estate. MPLA board chair Ana Demapan-Castro is sister of Supreme Court chief justice Miguel Demapan.

In the petition, Atalig included a certification of parties who have interest in the outcome of the proceeding for the justices’ possible recusal from sitting on the case.

Atalig said the Superior Court erred in its determination favoring Brown’s standing to file the lawsuit. Superior Court judge Juan T. Lizama earlier denied the request of the estate—together with the MPLA, its board, and commissioner Edward DeLeon Guerrero—to dismiss Brown’s lawsuit that prevented the disbursement of the land compensation to the Malite heirs.

Lizama had ruled that Brown’s legitimacy as attorney general is not relevant to the suit, declaring that the Attorney General’s Office could continue to function and institute civil and criminal cases regardless of questions as to its head’s legitimacy. He had also declared that the estate and the MPLA defendants had failed to prove that Brown has been holding the attorney general post unlawfully.

“The Malite’s have suffered and waited too long to obtain their just compensation from the government. It is about time that this land compensation claim be brought to a close,” Atalig said. He said that the estate would suffer irreparable harm if the Supreme Court does not grant the mandamus petition, as the government’s land compensation continues to be depleted by other claims.

Atalig insisted that Brown has no standing to file the lawsuit at the Superior Court, laying out new arguments assailing Brown’s legitimacy. He maintained that Brown’s Nov. 17, 2003 confirmation by the Senate was invalid, saying that two senators who allegedly participated in the voting had not officially assumed their post yet.

Rota senator Paterno Hocog and Tinian senator Joseph Mendiola had yet to be sworn in when they participated in the Nov. 17, 2003 session and purportedly voted favorably to confirm Brown’s nomination as attorney general. A total of five out of nine Senate members allegedly voted in favor of the confirmation.

Atalig added that, even assuming that the two senators had been properly sworn into office when they participated in the voting, their legal capacity to do so was questionable, saying that the Constitution requires that they assume office on the second Monday of January following the November general election.

Atalig also debunked the Superior Court’s determination that the 90-day statutory deadline within which to confirm Brown following her June 16, 2003 nomination by the governor did not apply to her because she never assumed the position until she was sworn into office.

Citing a precedent ruling by the Supreme Court, Atalig said that whether Brown assumed the position in an acting capacity or not is immaterial. “When the governor makes his appointment under Article III [of the Constitution], the persons appointed take or hold their office and assumes all the powers of that office until such time that the Senate acts to reject the appointment.”

Atalig also alleged that the Superior Court erred in ignoring the mandates of several statutory provisions that mandate that the MPLA—not the AGO—shall incur public debt of up to $40 million to finance the retirement of land compensation claims and administer the settlement and disposition of the claims.

He also said that Brown usurped the power of the AGO when she decided to file the suit even though the head of the executive department allegedly wanted to settle the Malite estate’s claim.

Lizama had ruled that the AGO could proceed with the Malite lawsuit without the governor’s blessing, saying that the office has sufficient power under the Constitution and common law.

Brown’s office had sued the defendants to prevent the disbursement to the Malite estate of some $3.45 million—the amount awarded by the MPLA board for 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.