Former governor Benigno R. Fitial asked the Superior Court yesterday to dismiss the criminal charges filed against him, asserting that the public auditor had no authority to bring the charges.
Fitial, through counsel Stephen N. Nutting, argued that the Legislature had no authority to grant the public auditor the power to prosecute a criminal complaint, especially when that power was afforded to the attorney general under the CNMI Constitution.
Even if the statute were constitutional, it did not give the public auditor the authority to bring criminal charges against a former governor, and now private citizen, said Nutting in a 37-page motion to dismiss.
“The failure of the public auditor to timely bring on his complaint, especially for those charges which are based upon well-publicized facts that are now 2 to 4 years old, raises a number of questions regarding the public auditor’s motivations in attempting to prosecute these charges,” the lawyer said.
Those questions, Nutting pointed out, become even more significant when so many of the charges are based upon imaginative reading of vague and ambiguous statutes, and vague charges that Fitial’s conduct violated some unidentified and unstated CNMI law and/or regulations.
The Office of Public Auditor filed the complaint on May 1, 2014, charging Fitial with 10 criminal charges. OPA later amended the complaint to include three more charges.
The charges are related to the unauthorized release of a federal inmate, award of a sole-source American Recovery and Reinvestment Act contract, the shielding of former attorney general Edward T. Buckingham from being served with penal summons, and the execution of a power purchase agreement contract related to the Commonwealth Utilities Corp.
In Fitial’s motion to dismiss, Nutting asserted, among other things, that the Constitution does not give the public auditor any authority to prosecute a criminal complaint on behalf of the CNMI government.
Nutting said the Legislature, however, saw fit to enact legislation that purports to grant the public auditor with the authority to investigate and prosecute a criminal action in very limited circumstances.
The criminal case filed against the 68-year-old Fitial has been re-assigned to Superior Court Associate Judge David A. Wiseman.
Presiding Judge Robert C. Naraja made the decision to re-assign the case to Wiseman after Associate Judge Teresa Kim-Tenorio recused herself from presiding over the matter to avoid any appearance of partiality.
Fitial pleaded not guilty to all charges.