Justices junk petition that questioned Brown’s appointment

The CNMI Supreme Court has denied a petition to direct the Superior Court to vacate its ruling against a defendant who had questioned the legality of Pamela Brown’s assumption as Attorney General during the Babauta administration.

The High Court rejected Xiao Ru Liu’s petition requiring Superior Court Associate Judge Kenneth Govendo to show cause why mandamus and or certiorari should not be issued directing Govendo to vacate his ruling that the prosecution of the defendant be allowed to go forward.

“After a careful review of the five factors for consideration of a writ of mandamus, this court finds that Liu has not met the requirements set to issue such order,” said the high tribunal’s decision penned by designated Associate Justice Robert J. Torres Jr. and concurred by designated Chief Justice F. Philip Carbullido and designated Associate Justice Frances M. Tydingco-Gatewood.

“We further decline to exercise our discretion to issue a writ of certiorari because Liu has failed to satisfactorily establish why this extraordinary remedy is appropriate,” the justices said.

Petition for mandamus seeks to compel an official or judicial action, while writ of certiorari moves to review.

Court documents show that Liu was arrested for assault and battery, disturbing the peace, resisting arrest, and trespass. An information was filed charging her with misdemeanor offenses. The matter was set for trial.

Liu, through the Public Defender’s Office, brought a motion to dismiss the information on the basis that Brown does not hold office legally in the CNMI.

Liu asserted that the CNMI Constitution requires the AG to be responsible for prosecuting violations of Commonwealth law and the Superior Court was not empowered with the authority to transfer the mandatory constitutional responsibilities of the attorney general to the Office of the AG.

The CNMI government opposed the motion to dismiss on the grounds that nearly identical motions to dismiss had been filed by the PDO in four other criminal cases. The government cited that the decision entered in one of those cases (CNMI v. Peredo) was related to the issue raised in Liu’s motion.

Relying on the reasoning adopted by the judge in the Peredo case, Govendo denied the motion to dismiss.

The Peredo decision held that the vacancy in the OAG cannot give rise to a situation where no criminal can be prosecuted.

In Liu’s case, Govendo agreed that it is the office rather than the attorney general who is responsible for prosecuting crimes.

Govendo ruled that any potential infirmities to Brown’s appointment do not impact the criminal prosecution, because the office is the prosecutor, not the person.

The judge, therefore, did not address the alleged problems with Brown’s nomination and confirmation in the Senate as attorney general.

Subsequently, however, the trial date of Liu was vacated and all proceedings stayed pending resolution of the defendant’s petition before the High Court.

In her petition, Liu argued that the lower court clearly erred as a matter of law in finding that the prosecutorial function of the attorney general is vested in the Office of the Attorney General and not necessarily the individual currently appointed and confirmed, in this case Brown.

The government filed a motion to dismiss the petition. Liu opposed.

In their order, the justices said the High Court still has jurisdiction over this case, and for this reason, the petition will not be dismissed.

Rather, the justices said, they will entertain the motion to dismiss as a platform to address whether the issuance of a writ of mandamus or certiorari is appropriate in this case.

The justices pointed out that they are not persuaded that the petitioner will be prejudiced in a manner not correctable on appeal.

“Petitioner concedes she has no right to be free from prosecution altogether. Petitioner only claims a right to be free from the ordeal of successive prosecutions,” they noted.

“This is a hollow argument because if petitioner is acquitted, she cannot be retried even if the prosecutor is later found invalid because of double jeopardy, and if she is convicted she has this issue as an appealable issue on appeal,” the justices added.

They pointed out that, although the cost and delay may indeed be burdensome to an individual litigant, such harm cannot support mandamus.

Otherwise, they said, “mandamus would no longer be an extraordinary remedy and we will have effectively abandoned (the) long standing practice of avoiding piecemeal appeals.”

They said that Govendo relied upon and adopted the reasoning in the Peredo case.

To issue such writ of certiorari, the justices said, they must be “firmly convinced that the Superior Court has erred.”

Liu has not demonstrated that the challenged order is clearly erroneous as a matter of law, they said.

“The issue in this case is not whether Brown is properly appointed as AG. The issue is whether criminal prosecutions in the CNMI are a function of the office or the person,” they said.

Petitioner has no right to be free from prosecution altogether in the event that Brown is found to be illegally appointed, they said.

The justices said the issue whether Brown is properly appointed may be or may have more relevance in another case, but not in this case.

“Because the issue is not whether Brown was properly appointed, but whether the prosecution function belongs to the office or to the person, it is also an issue that can be addressed on appeal,” they said.

The justices said they acknowledge that the trial court urged that the issues surrounding the appointment of the attorney general be brought to the attention of the CNMI Supreme Court with no delay.

“However, the case presented in its current posture is not the best vehicle to address those issues,” they said.

Critically, the justices said, the issue of the Senate approval of Brown’s appointment will depend on facts, which can only be developed in a proceeding in which evidence can be taken.