‘Article 12 not based on race, but political status’

Posted on Jan 24 2012

Legislative leaders asserted yesterday that Article 12 of the CNMI Constitution is based not on blood quantum nor race but political status and that the district court should dismiss the lawsuit filed by a U.S. citizen who wants to vote on any issues relating to Article 12.

In their motion to dismiss, Senate President Paul A. Manglona (Ind-Rota) and House Speaker Eliceo D. Cabrera (R-Saipan) said that John H. Davis Jr. lacks standing to bring the lawsuit.

Article 12 limits landownership in the CNMI only to those of NMI descent. It is up for voters’ review this November election. Davis wants to stop the Commonwealth Election Commission from denying U.S. citizens who are not of Northern Marianas descent the right to vote on any issue regarding Article 12 or on any other issues.

Manglona and Cabrera, through Senate and House legal counsels Antonette R. Villagomez and Joseph L.G. Taijeron Jr., argued that as CNMI legislators, they are absolutely immune from civil claims for actions taken in their official capacities, regardless of whether those claims seek monetary damages or declaratory or injunctive relief.

Davis, a vice principal at Marianas High School, had named Manglona and Cabrera among the co-defendants in his lawsuit. The other co-defendants are CEC chair Frances M. Sablan, executive director Robert A. Guerrero, and Gov. Benigno R. Fitial.

In his lawsuit, Davis, through counsel Jeanne H. Rayphand, asked the U.S. District Court for the NMI to declare that Article 18 Section 5(c) of the CNMI Constitution violates the 14th and 15th Amendments of the U.S. Constitution and is invalid, null, and void. Davis wants the court to bar the defendants from denying him and other U.S. citizens who are not NMI descent the right to vote.

Rayphand alleges that the Legislature, in enacting P.L. 17-40, established a race-based registry “for the purpose of disenfranchising U.S. citizens who are not of Chamorro or Carolinian descent.”

In Manglona’s and Cabrera’s motion to dismiss, Villagomez and Taijeron said that in 1999, the issue of whether to allow persons of NMI descent to vote on Article 12 was fairly presented to the entire electorate, regardless of race.

Villagomez and Taijeron said that Davis and all other non-NMDs were given the opportunity to voice their opinion at the open polls.

“Now, after all votes have been counted and the issue has been constitutionally, fairly, and reasonably decided, he questions the constitutionality of Article 18 (5)(c)?” the counsels asked.

Assuming that Article 18 is constitutional, the lawyers said, P.L. 17-40 must also be upheld because it simply creates the NMI registry that would allow for the administration of this constitutional provision.

“Placed within the proper factual background and context, Villagomez and Taijeron said, it is clear that Davis’s race-based allegations “are without merit.”

The counsels said as a matter of law, and as established by each and every case that has upheld Article 12 in local and federal courts, the term “NMD” is a political and not a race-based classification.

The lawyers also argue that Davis lacks Article 3 standing and his amended lawsuit fails to plead facts that, if true, could demonstrate that he has suffered any concrete injury that is traceable to Manglona and likely to be redressed by a favorable judicial decision.

Article 3 of the Constitution limits the “judicial power” of the United States to the resolution of “cases” and “controversies.”

As for the immunity issue, the two said that several cases involving claims that the enactment of a law violated the U.S. Constitution, federal courts have held that legislators who timely raise the defense of legislative immunity must be dismissed from the case.

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