‘AG should have signed off on federalization suit’

An attorney for the Senate has maintained that the governor’s “federalization” lawsuit against the U.S. government should not have been filed without the CNMI Attorney General’s written authorization.

Senate legal counsel Michael Ernest, in an opinion for Sen. Maria Frica Pangelinan, said the AG “must authorize the filing of any lawsuit brought on behalf of the CNMI, or any of its agencies.”

The legal opinion was issued amid questions whether it was legal for the Fitial administration to sue the federal government on behalf of the Commonwealth using a private law firm and without explicit approval by the local AG.

Ernest said he based his opinion on the CNMI Constitution, as he was unaware of any federal provision relevant to the issue.

First, he cited the constitutional provision on the Attorney General, which states that the AG “shall be responsible for providing legal advice to the governor and executive departments, [and] representing the Commonwealth in all legal matters….”

“[A] plain reading of the CNMI Constitution would seem to require the AG, and nobody else, to represent the CNMI in the federalization or any other lawsuit,” Ernest said.

But he added that the Analysis of the Constitution, considered by CNMI courts as “highly persuasive as an interpretive tool,” indicates that the drafters of the Constitution did not intend such a narrow reading of the provision.

Ernest went on to cite the Analysis, which states that while the AG, executive departments, and the governor may engage counsel from outside the CNMI government, the Constitution prohibits engaging outside counsel to represent the government “in any legal matter without a grant of authority from the attorney general.”

He also pointed to another sentence in the Analysis, which says that an executive department may prosecute a criminal or civil action “only with the consent and through the representation of the attorney general.”

Combining both sentences in the Analysis, Ernest said, “an argument could be made that outside counsel may represent the CNMI in litigation, but there must be a ‘grant of authority’ from the attorney general for the representation, and the Attorney General must maintain some sort of representation in the suit.”

He added, “Of course, a court could focus solely on the second…sentence and reach a different conclusion. I read the two paragraphs together, and conclude that the outside firm can represent the CNMI in the litigation, but it must be with the explicit authority granted from the AG and the AG must maintain some minimal control over the litigation.

“I am unsure if that ‘grant of authority’ has occurred. Perhaps this issue could be cleared up with further investigation.”

Acting Attorney General Gregory Baka, in a letter sent earlier to Rep. Tina Sablan, maintained that it is common practice for the AG’s office to refer cases to private law firms for reasons such as conflicts, lack of specialized experience, or resource constraints. He added that this delegation is in full compliance with the Constitution and is not legally required to be in writing.

“Hundreds of pleadings are filed annually by the OAG without the AG’s personal review or signature,” Baka said. “Yet as the deputy attorney general, I did personally review and comment upon various drafts of the complaint in our Section 903 litigation.”

Section 903 of the U.S.-CNMI Covenant allows either party to bring to court any dispute arising under the Covenant.

The U.S.-based law firm, Jenner & Block, and attorney Howard Willens, special legal counsel to Governor Fitial, are representing the CNMI government in its lawsuit over the labor provisions of the CNMI immigration federalization law.