CNMI Judge Upholds Injunction Orders Against SDLLC

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Arguments for and against power deal to be made at later hearing

By Andrew O. De Guzman

SAIPAN, CNMI (Marianas Variety, Jan. 3, 2013) – Superior Court Judge David A. Wiseman yesterday placed under advisement the motion to hold Gov. Benigno R. Fitial and Saipan Development LLC (SDLLC) "consultants" in contempt for violating standing preliminary injunction orders stopping the no-bid $190 million power purchase agreement between the Commonwealth of the Northern Mariana Islands’ chief executive and the Delaware-registered company.

The show-cause order hearing for Fitial and Saipan Development LLC went forward after CNMI Associate Justice John A. Manglona denied the governor’s emergency motion for a stay order a little more than an hour before the 1:30 p.m. hearing in Superior Court.

After hearing oral arguments, Wiseman ruled that the injunction orders are still in effect, but he scheduled a Jan 17, 2012 reconsideration hearing as moved by Saipan Development through its local attorney William Fitzgerald.

Wiseman said he will not vacate the injunctions based on the issue of jurisdiction as argued by Fitzgerald, who asserted that Saipan Development was not properly served with a summons and complaint until after the injunction order was issued.

Wiseman said because he did not have "the benefit of SDLLC’s arguments," all parties will present arguments in the next hearing regarding the following: irreparable harm, likelihood of success on the merits, balance of hardships, and public interest.

Attorney Deborah Fisher, who represents defendant Commonwealth Utilities Corp. (CUC), told the court that "there’s showing of harm" as a result of the recent opinion issued by the Attorney General’s Office.

[PIR editor's note: Through Press Secretary Angel Demapan, Fitial has announced he agrees that the PPA is void and unenforceable, as per an earlier statement made by San Nicolas. Meanwhile, Representative Francisco S. Dela Cruz has moved that amongst a number of impeachment articles lodged against Fitial, the House should adopt an additional article over Fitial's failure to appoint a Department of Public Safety commissioner. Dela Cruz claims this amounts to neglect of duty, citing the "merry-go-round" of leadership between DPS Deputy Commissioner Ambrosio T. Ogumoro and his brother Police Director Aniceto T. Ogumoro, who have been working as acting commissioners for 90-day periods.]

Wiseman heard first the plaintiffs’ motion to hold the governor and Saipan Development LLC in contempt, and then Saipan Development’s motion to vacate preliminary injunction orders.

Attorney Ramon Quichocho, who represents Rep. Janet Maratita, Rep. Ray Yumul and the CNMI Senate, said there’s no violation of the governor’s first amendment rights because the meeting between Fitial and Saipan Development "consultants" with the CNMI senators "goes beyond casual conversation."

Assistant Attorney General David Lochabay, who represents Fitial and former AG Edward Buckingham, disagreed, saying: "You can’t be held in contempt of an ambiguous order," referring to the standing preliminary injunction orders.

Lochabay said the plaintiffs’ allegations were "light-years away" regarding the implementation of the power purchase agreement.

Fitzgerald said his clients were "trying to explain" the deal, but "nobody was trying to push the contract forward."

Citing case law, Fitzgerald said an "injunction against speech" is "prior restraint."

But Quichocho said the governor’s text message to Sen. Juan Manglona Ayuyu, the chairman of the Senate Committee on Public Utilities, Transportation and Communications, "reiterated major issues" about the deal.

Quichocho said Saipan Development was bent on pushing forward the deal as is made clear by its notice of force majeure to CUC, dated Dec. 11, 2012, referring to the current preliminary injunction orders that prohibited the defendants from continuing, pursuing, and/or performing the terms of the PPA.

In a statement in reaction to Attorney General Joey P. San Nicolas’s legal opinion that the governor is not liable for any cause of action regarding the PPA, Quichocho said: "Intentional blind reliance on a mistaken opinion by an attorney, as in the case here, is clearly not the type of ‘reliance’ that the AG’s opinion addresses."

He added, "If it is true that defendant Fitial merely relied on a mistaken opinion by his former attorney general, then surely, defendant Fitial must now take affirmative steps to cancel/terminate the illegal power purchase agreement and related agreements now that he is getting competent advice from Attorney General San Nicolas."

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