CNMI Governor’s Line Item Veto Of Casino Law ‘Unconstitutional’

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Pacific Islands Development Program, East-West Center With Support From Center for Pacific Islands Studies, University of Hawai‘i

CNMI Governor’s Line Item Veto Of Casino Law ‘Unconstitutional’ House counsel: Not an appropriations bill so governor has no authority

By Junhan B. Todiño

SAIPAN, CNMI (Marianas Variety, Feb. 3, 2016) – House legal counsel John Cool believes that the governor’s veto of some line-items in House Bill 19-95, which amends the Saipan casino law, is unconstitutional.

Gov. Ralph Torres and his legal advisers regarded the measure, which is now P.L. 19-24, an appropriation bill when he signed it into law on Dec. 4.

Cool in his legal opinion dated Dec. 28, 2015 raised the following questions: Is H.B. 19-95 an appropriation bill? Does the governor have the authority to line-item veto portions of the bill?

Cool said the measure is not an appropriation bill, and the governor does not have the authority to line-item veto portions of it.

According to Cool, the governor’s authority to line-item veto a portion of a bill is based on CNMI Constitution, Article II, Section 7 which states: "The governor may veto an item, section or part in an appropriation bill and sign the remainder of the bill provided that the governor may not veto an item, section, or part governing the manner in which an appropriation may be expanded if any appropriation is affected by the item, section or part."

Cool said H.B. 19-95 does not meet the constitutional requirement.

"The bill is not limited to the subject of appropriations. Only three lines of the 20-page bill are devoted to appropriations. The bill not being limited to the subject of appropriations cannot be an appropriation bill," he said.

"The governor’s attempt to line item veto H.B. 19-95…is beyond his constitutional authority and is void."

He said the governor attempted to both veto and approve the bill.

But the attempt to exercise a line-item veto is beyond his constitutional authority and makes the line-item vetoes and the approval of the remainder of the bill ineffective, Cool added.

The Law Revision Commission, he said, should be advised as to the deficiencies of the law in respect to the governor’s line-item veto so it can make a determination as to how to treat Public Law 19-24.

"If the Law Revision Commission treats the bill as an appropriation bill acknowledging the governor’s line-item veto, it may be necessary to reenact H.B. 19-95," Cool added.

This issue was discussed during the House session on Tuesday afternoon.

An override of the line-item veto was mentioned, but it was also noted that the deadline for an override is Thursday, Feb. 4. It may already be too late to act on it, some members said.

Vice Speaker Joseph Deleon Guerrero said the House should seek the Law Revision Commission’s opinion.

But House Minority Leader Ramon A. Tebuteb said they sent a communication to the Law Revision Commission the moment they received the governor’s transmittal letter informing the Legislature that H.B. 19-95 had been signed into law but with some of its provisions vetoed.

The vetoed items included the provision providing for a non-refundable tax credit.

In his transmittal letter, Torres said the bill’s "subparts (c) and (d), which provide the licensee with a tax credit to be applied against the CNMI’s Gross Revenue Tax on the amount of the casino regulatory fee are disapproved. As originally envisioned in the enabling statute, the cost of regulating casino gaming activities on Saipan are to be paid in full by the licensee and I am not convinced there are good reasons to grant tax relief for this expense."

Torres also disapproved the provision stating that the Commonwealth Casino Commission can revoke the license of Best Sunshine upon the approval of the Legislature.

According to the governor, "The Commonwealth Legislature does not possess the constitutional authority to require legislative approval for the revocation of the casino license. The commonwealth government is divided into three coordinate branches. The separation of powers doctrine ‘safeguard[s] the independence of each branch of the government and protects each from domination and interference by others.’ Nakasukasa v. Superior Ct., 1999 MP 25 ¶ 13. ‘Simply stated, the doctrine forbids one branch of government from exercising the powers properly belonging to another branch.’ Marine Revitalization Corp. v. Dep’t of Land & Natural Resources, 2010 MP 18 ¶ 12. The Commonwealth Constitution provides that the executive branch is responsible for the execution of the laws of the commonwealth…. Requiring legislative approval for the revocation of the casino license violates the separation of powers doctrine because the Commonwealth Legislature would be exercising a power that the Constitution has assigned to the executive branch. While the Commonwealth Legislature can prescribe general rules on the regulation of casino gambling in the commonwealth, it has absolutely no authority to require legislative approval of the revocation of the casino license."

Further, "the Commonwealth Constitution requires legislation to be presented to the governor for approval or veto. NMI Const., Art. II, § 7(a). Any attempt to allow the Legislature to overturn an agency division without the governor’s consent would violate Article II, Section 7(a) of the NMI Constitution. See INS v. Chadha, 462 U.S. 919 (1983) and Marianas Visitors Bureau v. Commonwealth, NMI Sup. Ct. Civil Action No. 94-516, Memorandum Decision and Judgment (June 23, 1994) (stating that the principles of bicameral legislative action laid down in Chadha are directly applicable to the commonwealth)."

During the session on Tuesday, Rep. Blas Jonathan Attao asked what would happen to casino employees if it is determined that Public Law 19-24 is null and void?

Rep. Anthony Sablan said the House has three options: override the vetoed provisions, file a certified question with the CNMI Supreme Court or wait for the Law Revision Commission’s opinion.

Vice Speaker Deleon Guerrero said the issue could be a candidate for a certified question.

The goal, he added, is to "simply state a message that this is not the right thing to do. My position here is not to turn a blind eye to this kind of issue. It is not the House action that needs reconsideration but the governor’s action."

But Rep. Edwin Propst echoed the sentiments of his fellow minority members who questioned the timing of raising this issue when lawmakers have so much on their plate that needs immediate attention.

Speaker Rafael Demapan said this issue should not be ignored so they should write a letter to the governor and to the Law Revision Commission to inform them of the House’s position.

The vice speaker agreed.

"Basically just to inform them of our position on this matter. We will put the governor on notice that this is our position…. We will [also] send a letter to the Law Revision Commission and it is up to them to determine whether the bill as an appropriation bill. If they consider it to be an appropriation bill then we may have to go back and reintroduce a similar bill because it will expire at the end of the fiscal year. So to make sure that it does not expire, it needs to be fixed and it can only be fixed by another piece of legislation. If it is not considered an appropriation bill then our concerns are addressed and we don’t need to reintroduce a similar bill."

Tebuteb, in a separate interview, said he wants to know what they will accomplish in seeking an opinion or informing the Law Revision Commission of the House position.

He added that the problem is the result of rushing the passage of the bill. He said this is why those in the minority asked for more time to review and discuss the bill as they already sensed some legal problems with it.

But he said the House leadership pushed for and passed it without further consideration of those issues.

The bill was also passed by the Senate, but it recalled its action after the attorney general issued a legal opinion that was highly critical of some of the measure’s provisions.

The Senate then passed the version of the bill that included amendments based on the recommendations of the AG.

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