Lizama declines to force Govendo’s recusal

Superior Court judge Juan T. Lizama refrained from compelling fellow judge Kenneth Govendo to recuse himself from handling the lawsuit filed by former Marianas Public Lands Authority commissioner Henry Hofschneider against the MPLA and its chair, Ana Demapan-Castro.

Lizama said it is up to Govendo to decide whether or not he would recuse himself from the case, after the MPLA accused the latter of bias against it.

Lizama said his court did not find any legal basis for Govendo to recuse himself from the case.

“However, the court does find that the letters do show potential bias against the board and in favor of the plaintiff [Hofschneider]. If Judge Govendo feels that this is a bias he does not in fact possess, or one that he can disregard, then he may certainly continue to preside over the case,” Lizama said.

“If, however, he possesses a bias he cannot disregard, then this court hopes and trusts that Judge Govendo will follow the command of Commonwealth law and of the canons of ethics that govern those on the bench and voluntarily recuse himself,” he added.

MPLA attorney Matthew Gregory had asked the court to disqualify Govendo, accusing the later of bias against the agency.

Gregory said he discovered at least four letters by Govendo to a newspaper sometime in 2002. He said the letters showed the judge’s bias against the MPLA and against boards of public corporations that terminate employment of workers and executive directors. Gregory said that Govendo had represented his son in a 1992 lawsuit against MPLA’s predecessor agency.

Govendo had not been appointed Superior Court judge yet at the time he wrote the letters and during the filing of the 1992 lawsuit. He only became a Superior Court’s bench in June 2003.

Hofschneider’s attorney, Sean Frink, said the move to disqualify Govendo was suspicious due to its timing, when the judge had about a week to hear the former commissioner’s request for summary judgment on his claims.

Lizama junked Frink’s argument to deny the MPLA’s recusal request based on procedural defects and timeliness of filing. However, he said that Govendo’s purported bias against the MPLA was not impermissible as it pertained to generalized policy views.

Besides representing his son in a lawsuit against MPLA’s predecessor, Govendo condemned the MPLA in a published letter in 2002 for failing to use public lands for public purposes, for cheaply leasing out public land to hotels and golf courses and for putting the proceeds in a non-insured bank.

“Taken together, these acts do seem to suggest a certain bias against MPLA that might well extend to its board of directors,” Lizama said. “However, our reasonable observer, who is aware of both the facts and the law to apply to those facts, would much more likely conclude that it is evidence merely of permissible ‘generalized policy views’…and not of impermissible ‘deeply-rooted’ animus.”

Lizama made a similar finding on Govendo’s other published letters, one of which allegedly tackled the termination of employees at the Northern Marianas College. In that letter, he cautioned those who are in positions to terminate jobs to have a “thought process…so as to make the trauma and transition as painless as possible for the employee.”

Another letter purportedly written by Govendo before he became judge focused on the issue of employment termination of executive directors. “Even if policy permits otherwise, a smart lawyer would argue strongly that you don’t terminate high profile executive directors without reasons, and those reasons should be made public.”

“All judges take the bench with certain biases, opinions and tendencies. A judge is expected to disregard these in the performance of his or her duty,” Lizama said.

Hofschneider’s lawsuit against Demapan-Castro and the MPLA board seeks monetary compensation and punitive damages of at least $1.75 million.

Hofschneider is asking the court to declare Demapan-Castro’s actions, which suspended and eventually terminated him from the MPLA’s top executive post, as illegal and thus, null and void.

Hofschneider impleaded the MPLA board as co-defendant in the Superior Court action, saying it has allowed Demapan-Castro to continue using MPLA funds in her personal vendetta against him in the form of legal defense fees and costs, despite the alleged illegality of the MPLA chair’s actions.