Fitial EO found constitutional

The Superior Court has ruled that Gov. Benigno R. Fitial’s executive order that led to the revision of the electric rate structure in the CNMI was constitutional.

Associate Judge David A. Wiseman reversed the Commonwealth Utilities Corp.’s administrative hearing officer Linn Asper’s decision that determined Fitial’s Executive Order 2006-4 was unconstitutional as it violated the doctrine of separation of powers.

Wiseman, however, affirmed on separate grounds Asper’s ruling that upheld the electric rates, which established CUC’s billings of complainants Rep. Stanley Torres and Jack A. Angello.

The judge said that because he has ruled that the changes to statutory law made through E.O. 2006-4 were constitutionally valid, he would not proceed to answer the hypothetical question of whether subsequent acts of legislation effectively cured any apparent constitutional defect in that E.O.

Here, Wiseman noted, Fitial transmitted E.O. 2006-4 to the Legislature for modification or disapproval as required by the plain language of Article III. That article enumerates the powers of the executive branch.

The judge said that the Legislature, however, took no action to modify or disapprove the changes to the CUC enabling statute that resulted from the governor’s issuance of E.O. 2006-4 within the 60-day period provided in Article III.

“Consequently, the Legislature chose not to exercise its own check on the executive branch’s law-making power under Article III, and this court finds no compelling reason to impose further scrutiny on the lawful operation of these branches,” Wiseman said.

Court records show that Torres and Angelo had asked CUC to declare that the enacted electricity rate schedule null and void and reverse the denial of their billing dispute.

In February 2007, CUC administrative hearing officer Asper denied and dismissed petitioners’ billing disputes.

Asper ruled that Fitial’s E.O. 2006-4 that led to the revision of the electric rate structure was constitutionally defective when issued, but that legislative action has cured it of its defects.

Given the extensive affirmative involvement of the Legislature in the CUC electric rate-making process, the constitutional objections to Fitial’s E.O. no longer apply, said Asper in his order.

Torres and Angello, through counsel Wesley Bogdan, appealed CUC’s denial of their billing dispute to the Superior Court.

Bogdan said the court must also reject Asper’s suggestion that the Legislature “cured” the unconstitutional manner by which the new rate schedule came into existence.

“The Commonwealth’s newly enacted electric rate schedule is illegal, the Legislature did not cure this fact and it is this court’s duty to call it like it is,” said Bogdan in the petitioners’ reply brief.

In his order issued Thursday, Wiseman concluded that CUC is an instrumentality of the Commonwealth, which is subject to reorganization power of the governor under Article 3.

Wiseman said the executive branch has broad powers to change the laws governing executive agencies, offices, and instrumentalities though executive orders, pursuant to Article 3.

The judge noted that Asper in his decision insisted that the plain language of Article III failed to provide a basis upon which the governor could so invasively reorganize CUC and its electrical rate-making authority.

True, Wiseman said, Article III power allows the governor to “make changes in the allocations of offices, agencies and instrumentalities.”

But Wiseman said Asper’s interpretation of Article III limits the executive reorganization power to changing the names of offices, agencies and instrumentalities and shifting them among the major executive departments.

“Instead, the plain language of Article III endows the Governor with broader powers,” he said.

Specifically, the judge pointed out, he finds that the plain language of Article III allows the governor to make changes to the organization of offices, agencies and instrumentalities “in their functions and duties that are necessary for efficient administration.”