Happy Holidays

Happy holidays to all!

Wishing you peace and joy in the coming year.

Photo by Amy E. Fraser

Merry Christmas to the Poor Judgment Debtor

Thank you to the Honorable John A. Manglona, Honorable Alexandro C. Castro, and Honorable Jose S. Dela Cruz. They've just released a decision in PFC vs. Muna , 2008 MP 21, recognizing the due process rights of indigent judgment debtors.

You can read a bit more about it at DAY IN COURT.

The Covenant's Promise of Self-Government

Fitial challenges application of US immigration laws here in the CNMI because he says it infringes our right to local self-government.

What does that right include?

Covenant sections 101, 102, 103, 104 and 105 set out the basic architecture of the relationship between the CNMI and the U.S. governments. The structure is essentially a "federal" system, where power is shared between a central authority and a regional authority.

Federalism is never an easy system. There are always tensions.

The central authority in our federal system is the US government, which has "sovereignty." The CNMI agreed that it would be UNDER the US's sovereignty by Covenant section 101. This means that the US government has the ultimate power to govern.

No other power granted or guaranteed by the Covenant can trump or supersede the sovereignty of the US. The only limits on the US's sovereign power over the CNMI are those expressly stated in the Covenant.

The CNMI was guaranteed the right to local self-government. Covenant section 103. Fitial tries to argue that this guarantee is a limit on the US's sovereign power. However, the legislative comments state that local self-government is not inconsistent with US sovereignty, suggesting that it is not meant to be construed as an express limit on the US's power.

The Marianas Political Status Commission (MPSC) comments on the Covenant that are part of its legislative history help explain what that guarantee of local self-government means.

The Commonwealth of the Northern Mariana Islands will be self-governing. This means that the people will determine their own form of government and the manner in which they will govern themselves with respect to local affairs....Article II provides for a commonwealth constitution which will spell out the manner in which the people will govern themselves.

(emphasis added)

The MPSC comment continues with this comment:

The United States will have sovereignty, that is, ultimate political authority, with respect to the Northern Mariana Islands. ... United States sovereignty is not inconsistent with the exercise of the right of local self-government by the people of the Northern Marianas. ...Moreover, the states and the Commonwealth of Puerto Rico, and to a great extent even the territories, have very substantial powers of local self-government. The people within these areas determine local policies without undue interference, notwithstanding the ultimate political authority of the central government. The same will be true of the Commonwealth of the Northern Marianas.

(emphasis added)

The CNMI has struggled with the meaning of its local self-government powers. It has tried to expand them beyond this stated scope by saying the guarantee relates to an exclusive, substantive area of governance. It has tried to argue that the Covenant grants the CNMI more power than the powers given to states and other territories. It has made these arguments in past cases like the case challenging the US audit of CNMI tax returns, and it makes it again in the present litigation challenging the application of US immigration here.

The 9th Circuit Court of Appeals has held that the CNMI's interpretation is wrong. The court held that the guarantee of self-government relates to the FORM and MANNER of local government, not to the content of legislation. We can decide whether to have a uni-cameral or bi-cameral legislature. We can set the terms for our elected leaders to whatever number of years we like. We can hold legislative sessions on different islands. We can designate our seat of government. We can decide how many legislators we want. We can decide whether to have municipal government agencies. We have great control over the FORM and MANNER of our government.

But according to the 9th Circuit Court of Appeals, we do not have an exclusive zone of legislative power. The guarantee does not set substantive boundaries for local control. In fact, the Court held that the US Congress may pass legislation affecting the internal affairs of the CNMI. United States ex rel. Richards v. De Leon Guerrero, 4 F.3d 749, 755 (9th Cir. 1993).

The 9th Circuit's interpretation tallies with the comments that the MPSC made when the Covenant was drafted. The MPSC explained that the US Congress legislates for the territories (including the Commonwealth of Puerto Rico) under the US Constitution Article IV, Section 3, Clause 2, and that this power is broader than the authority to legislate as to states. The Covenant section 105, provides similarly broad power to the US Congress to pass laws for the CNMI, but provides a small concession to make sure those laws are meant to be applied here.

From the point of view of the United States, the existence of the power under Article IV, Section 3, Clause 2 is a fundamental part of a close and permanent relationship with any political entity which is not a state of the union.

...since the power of the Congress with respect to a commonwealth, such as the Commonwealth of the Northern Marianas, is ...broader than Congress' power with respect to a state, special precautions have been taken in Section 105. Article IV, Section 3, Clause 2 will continue to be the mechanism through which the Congress will legislate with respect to the Northern Marianas. But Section 105 provides that laws which Congress could not also make applicable to a state cannot be made applicable to the Northern Marianas, unless the Northern Marianas is specifically named in the legislation. This assures that Congress will exercise its special authority under Article IV, Section 3, Clause 2 purposefully, after taking into account the particular circumstances existing in the Northern Marianas.

The Covenant is clear on the ultimate authority of the US Congress to enact laws that affect the CNMI, including laws that impact our internal, local affairs. The US Congress cannot take away our local self-government, meaning it cannot deny us the power to set the form and manner of our local government. But it can pass laws that impact local aspects of our lives. It just needs to make sure it does so deliberately, and names the CNMI in legislation that is not applicable to all the states.

It's also clear that Fitial has ignored the 9th Circuit's decision and the MPSC comments on what the Covenant's guarantee of local self-government means. He continues to argue for an expansive view of the guarantee of local self-government. He has NO legal support for his argument. Nothing in the legislative history supports his view. Comments in the legislative history directly contradict it. There are no cases that support his view.

And as to the current legal challenge, the Covenant section 503 expressly authorizes the U.S. Congress to extend application of US immigration to the CNMI. The MPSC comment notes that the US Congress can act to

make them [immigration and naturalization laws] applicable either as they are applicable in other areas under the American flag, or in some special way which takes into account the particular conditions in existence at that time in the Northern Marianas.

In my opinion, Fitial is so far afield in what he argues is within the ambit of local self-government as to be laughable. He is so far afield in arguing against extension of US immigration laws to the CNMI as to be a joke. Of course, the hilarity comes with a high price as he uses our very limited CNMI public funds to pay expensive attorneys to push his untenable views.

Federalization-Motions Pending

Governor Fitial's lawsuit challenging the U.S. law that federalizes CNMI's immigration faces a critical point on January 15, 2009 (U.S. time), when Judge Friedman hears two opposing motions.

Governor Fitial has filed a motion for a preliminary injunction. He hopes to get a ruling that, at least temporarily, stops application of the law to the CNMI.

The U.S. defendants have filed a motion to dismiss the case. They hope for a ruling that disposes of the case completely and thus clears the way for application of the law to proceed.


A Brief Recap:

In April 2008, the U.S. Congress passed S. 2739, which President Bush signed into law as P.L. 110-229 in May 2008. It extends U.S. immigration to the CNMI, beginning in June 2009. In September 2008, Governor Fitial filed a lawsuit in federal court in Washington, D.C. against US defendants (Homeland Security and Labor officials), challenging the law.

Fitial's challenge focuses on two essential claims: that the law allegedly violates the CNMI's right to self-government guaranteed by the Covenant; and that the law was unconstitutionally enacted without the CNMI's participation in the legislative process. Fitial claims that the law will wreak havoc on the CNMI economy, devastating it.


For more on the complaint and claims made, see my previous blog posts at:
Fitial vs. federalization: a neutral summary at Day In Court
Fitial vs. federalization: 1st installment at Saipanwriter
Fitial vs. federalization: 2nd installment at Saipanwriter.


Fitial's Motion:

For Fitial to succeed on the preliminary injunction motion, he has to meet the federal law standard:

To obtain a preliminary injunction, the plaintiffs must prove: (1) a likelihood of success on the merits; (2) irreparable harm; (3) that less harm will result to the defendant if the preliminary injunction issues than to the plaintiffs if the preliminary injunction does not issue; and (4) that the public interest, if any, weighs in favor of plaintiffs. See Pappan Enterprises, Inc. v. Hardees's Food Systems, Inc., 143 F.3d 800, 803 (3d Cir. 1998)).

Injunctive relief is considered an extraordinary measure and is not lightly granted. Fitial will need to make a strong showing in order to prevail.

He faces high hurdles on all prongs of the test.

1) likelihood of success on the merits: The chance for success on the merits is frought with difficulties.

On his claim for violation of the Covenant, Fitial faces the contradiction of the Covenant itselt. Fitial uses as the basis for his claim the Covenant's guarantee of a right to the CNMI's "self-government," but the Covenant also expressly permits the U.S. Congress to extend U.S. immigration to the CNMI. Clearly, the framers of the Covenant did not view federal immigration control as defeating local self-government.

On his claim for violation of the U.S. Constitution: The Covenant provides for participation in the U.S. political process through a Resident Representative and through 902 negotiations. It did not provide for direct participation in the Legislative process. The U.N. found that the Covenant was sufficient and that the CNMI, by ratifying it at a plebiscite by an overwhelming majority, effectively engaged in its self-determination. Although there is no doubt that participation in legislative processes is a fundamental aspect of democracy, Fitial will have to show that the U.S. Constitution requires participation to be through an elected Legislator and that the U.S. Constitution prohibits participation of the kind defined in the Covenant. In other words, Fitial will have to show that 200 years of U.S. territorial policy violates the U.S. Constitution.

2) irreparable harm: In order to get a preliminary injunction to stop application of P.L. 110-229, Fitial must show that he faces irreparable harm that would be caused by the law if he doesn't get the injunction. There is no clarity of harm to him. He asserts a right to claim harm to all of the CNMI because he is the Governor. He relies on speculative reports that discount their own reliabiity for predictive assessments. Much of the harm he is concerned about seems tied to other economic factors, as well.

3) balance of hardship tips in favor of movant: Fitial claims certain hardship and economic doom from application of the law, in particular difficulty in attracting foreign investment and a manpower shortage. On the other side of the balance, the law was designed to address other hardships, including labor abuses and the disincentive of local manpower. Delay in implementing the law adds to these hardships. The law also includes some measures to provide for a temporary continuation of the current use of alien labor and a gradual phasing out of reliance on it, cushioning some of the hardship Fitial complains of. Additionally, granting the preliminary injunction will add to the uncertainty here and would likely worsen the climate for foreign investment, not remedy it.

4) public interest: This is the most politically divisive issue because it requires an impartial assessment of the CNMI's policies. Many in the CNMI are sensitive to criticism and refuse to acknowledge any failure or responsibility on our part.

My view of the public interest: The CNMI has built its economy on foregin workers by keeping their wages low and their availability high. The CNMI has also denied foreign workers any entry into permanent status, keeping them in a permanent state of powerlessness. These CNMI policies have made for a private sector with low wages, few workers' rights, and poor working conditions. This third-world economy private sector has not attracted local workers, who prefer government jobs or opportunities in Guam, Hawaii and the mainland. While the CNMI has had some short-term economic benefit from its policies, it has done so at a high moral cost. It also ruined its international image, creating a vision of the CNMI as a place of sweatshops, sex trade, and human trafficking. Fitial argues that a return to this style of economy is in the public interest. I disagree.

I think it unlikely that Fitial will prevail on his motion for preliminary injunction. However, loss on the preliminary injunction would not necessarily be an end to the case.


The Federal Motion:

The U.S. Defendants seek to dismiss the case on four grounds: 1) jurisdiction: case or controversy. The injuries alleged are not concrete and particularized, but instead speculative and hypothetical; 2) jurisdiction: The case is not ripe for review; 3) jurisdiction: Fitial lacks standing; and 4) failure to state a claim: The law is expressly authorized by the Covenant.

1) Case or controversy--the CNMI's standing: In order to bring a case to court, a party must have suffered an "injury in fact." There must be a legally cognizable interest that is violated. And the violation of that interest must be the cause of the alleged injury.

The federal defendants complain that the CNMI's case is based on speculation, not fact; that the injury to the economy stems as much or more from other considerations like the CNMI's own bad policies and world economic forces and personal investor decisions than from the prospect of US immigration; that the CNMI has no legally cognizable interest in handling its own immigration; and that granting relief as requested in the complaint is no guarantee of a remedy for the injuries alleged.

This last point is especially clear when applied to the second cause of action in Fitial's lawsuit: The remedy of delaying application of P.L. 110-229 would have NO effect whatever on the claimed constitutional violation--the CNMI's lack of participation in the legislative process. In fact, P.L. 110-229 is the law that amplifies the CNMI's role by giving us a delegate to Congress.

It's also clear that the remedy sought will not address the declining economy that is due to the pull-out of the garment industry and the migration of local workers to the mainland.

2) Ripeness: This is a jurisprudence consideration that prevents courts from premature adjudication, from deciding abstract disagreements, or weighing in on differences on policy. The CNMI has the ability to work with the federal agencies to craft the regulations that implement the law, and thereby avoid some or all of the fears they express in the lawsuit. Where the injury alleged may never occur, the case is not deemed ripe for review.

3) Fitial's standing: This is different than the CNMI's standing addressed in #1 above. Fitial brings the action as governor. He claims no other basis than his concern as the chief executive of the CNMI. The federal defendants call this a "parens patriae" case, meaning the Governor is acting as a father-figure raising the concerns of his constituents. However, the federal defendants say that the U.S. government acts as the parens patriae on matters about the relationship of citizens to the federal government, and the state government does not have the right to do so.

Fitial must have a "procedural" interest in order to bring the action, a statutory or legal duty apart from his general role as Governor, that gives him a concrete and particularized injury in his own right. Fitial apparently has none, and in fact, as pointed out in our local newspapers by Representative Tina Sablan, the duty to represent the CNMI in legal matters rests with the Attorney General.

I suspect that the CNMI Acting AG will step in, and thereby address this procedural defect.

4) Failure to state a claim: This is perhaps the most basic aspect of the federal government's motion. The Covenant authorizes the U.S. Legislature to extend federal immigration to the CNMI. The U.S. Legislature has done so.

The federal defendants argue that the self-government protections of the Covenant relate to "institutional" guarantees, not substantive. That the protection is for us to elect our own local leaders and have our own local government free from federal intrusion, not to have control over certain spheres of influence. They cite a CNMI-9th Circuit case that expressly interpreted the Covenant in this manner.

The federal defendants also point out the obvious--that federal immigration laws are not labor laws. But even if they were, the Covenant permits application of federal labor laws, too.



If the federal Court grants the U.S. Defendants' motion to dismiss, the case will be over at the trial level. It is possible that Fitial would appeal, but it seems unlikely he would get the immediate relief he so desperately wants.



Conclusion:
My personal analysis leads me to think that the U.S. Defendants must prevail on both motions. However, it's never safe to predict a judge's conclusions. From a quick review of Judge Friedman's more prominent decisions, it appears that he is conscientious and dedicated to the law. We can only wait and see how he views these issues.

Mid Term Grades

Ah, yes.

Joey Camacho has put up a poll where we can grade the performance of our elected Legislators.

I give Joey kudos for his website and his willingness to do this. I don't much like anything else he's doing in the Legislature, but the mere fact that he's willing to act as an excellent source for information and feedback means he got a better grade in my book than most.

The only A I gave was to Tina.

I gave a B, a C, a couple of Ds, and mostly Fs.

I wish there were some way to distinguish between the Fs! Some are just meant to say you're a total failure. But others are meant to say you should be impeached if you don't resign and I am so very ashamed to have you in our CNMI Legislature that I get sick just thinking about it. But alas--all you can do is mark your grade.

:-)

Books=Great Gifts

Enjoying the Holidays by Giving

There are two special events you can thoroughly enjoy this holiday season and know that, by doing so, you are also giving to worthy causes.

1. Friends of the Arts presents it play, IT'S BEGINNING TO LOOK A LOT LIKE CHRISTMAS, a stage version of "Miracle on 34th Street" at the Multi-Purpose Center on December 12, 13, and 14. The Sunday matinee show is a benefit for Guma Esperanza. There's no ticket price for Sunday: You donate dry goods or cash for your entry fee.

Or you can come to one of the other shows (Friday and Saturday evenings at 7 PM or Saturday matinee at 3 PM), pay your ticket price ($12 for adults, $10 for FOA adult members , $5 for students) and give a donation for Guma Esperanza, if you want, in advance.

2. The Pacific Winds Concert Band, together with award-winning SSHS Manta Band, will give a holiday concert conducted by Will DeWitt at PIC on Dec. 22, at 7:00 PM. A portion of the proceeds will be directly donated to the family of Efren Ballesteros, the MHS security guard who was recently murdered. (Ticket prices have not yet been announced.)

It's the season for giving and these two opportunities are here. Hope you'll join me.

It's Official!

I am a winner.

I managed to crank out 50,000 words on another novel this November 2008.

The Show Must Go On--but with a slight delay...

Last night a security guard at MHS was apparently murdered. This means (in addition to all the sad and horrible things) that rehearsals scheduled at the MHS cafeteria (as well as all classes) must be cancelled because the campus is now a crime scene.

So THE SECRET GARDEN opening on Thursday, November 20, 2008 has been cancelled.

The show will go on as scheduled for Friday November 21 and Saturday November 22. Both shows are at Charley's Club, PIC. Tickets and other information about THE SECRET GARDEN, a musical, can be found in the post before this one, and in posts at the competitions blog.



My condolences to the families and friends of the security guard. Also to those families and friends of the three who died over the weekend in the auto crash.

The Secret Garden

The Secret Garden--a musical



Thursday November 20
Friday November 21
Saturday November 22
7 PM

Children & Students: $5
Adults: $7.50

Dessert available for $5

PIC Charley's Cabaret

Military Needs Trump Marine Life

This just in from FindLaw:

ENVIRONMENTAL LAW, MILITARY LAW, REMEDIES
Winter v. Natural Res. Defense Council, Inc., No. 07-1239 (U.S. Supreme Court)

In an action brought by environmental groups claiming that the Navy's use of a particular type of sonar during training exercises in the waters off southern California causes serious injuries to marine mammals, a preliminary injunction against the Navy is vacated to the extent requested where: 1) although the Court does not discount plaintiffs' ecological, scientific, and recreational interests in marine mammals, such interests are plainly outweighed by the Navy's need to conduct realistic training exercises to ensure that it is able to neutralize the threat posed by enemy submarines; and 2) consequently, the district court abused its discretion in imposing the restrictions at issue on the Navy.

National Novel Writing Month in Saipan

Um, make that 3 years...

But in November, we set aside all previously written prose (and poetry, and song lyrics, and scripts, etc.) and start anew.

I am not alone in Saipan hammering away on a new novel this November 2008. I'm not sure how the students at SSHS and MHS are doing (few have updated their word counts). I'm quite sure that the 4th graders at Kagman Elementary School have not set 50,000 word goals (although their personal goals are heroic for each of them!). I know that there are teachers with meager word counts to their names as they lead their students into the fray.

And then there are a few of us fools seriously aiming at the 50,000 word goal this month.

Like Snoopy, pondering the great novel yet to be written...

Joe Race, Tom Uhl, and me.

I've written over 14,000 words, which sounds impressive, until you consider that means I have about 36,000 words to go...

The good news: our region, Asia: Micronesia is AHEAD of 32 other regions in word count! That's raw word count (not per person). And to me, that is amazing!

Ahead of us is Week 2: Week 2 is the most hellish week of NaNoWriMo as shown in this illustration from Hannah K of the Netherlands.

And some of us are still grappling with our inner editors. For those who don't know what that's like, here's a Peanuts comic that gets the point across: Lucy is an outer-- inner editor.

Thanks to Charles M. Schultz, for Snoopy and his inspiration.

Now back to writing.

International Comment

There is a lot of international comment on the US election and Barack Obama's candidacy and win.

Here's one take from Malaysia.

Obama's Acceptance Speech

John McCain's Concession Speech

293. CNMI Election Returns

We're waiting on the absentee ballots. 9289 ballots cast and counted here. Election results from Vote CNMI show

Kilili the clear leader with 2279 votes,
followed by Pete A with 1919 and
John Gonzales at 1740.

In September, I had these same three at the top of my list.

Lil Hammerhead will be happy with Kilili's win (assuming, knock on wood, that the absentee ballots don't change the outcome). I hope he does us proud in Washington, D.C. and wish him congratulations and best wishes.

Face forward, the past behind us...

The other contenders:

Juan Lizama at 1611,
Luis Crisostimo at 879,
David Cing at 270
Felipe Atalig at 233
Chong Won at 219, and
John Davis in the cellar at 139.

I'd rather have seen John Davis beat out everyone from Luis Crisostimo on down, but that's my personal preference. I'm not sure if you're going to lose an election if it matters how close you came.

292. No posts...

NaNoWriMo has officially started and I am too busy to post here. All my writing is going into my novel. :-)

291. Yay-Phillies

Um, yeah. Yay! Phillies. Good win.

290. Sorting through the Legal-Speak

I read the article in today's Tribune where Greg Baka responds to Tina Sablan's Open Government Act request. I can't help but comment! I'm thinking out loud here, so please feel free to point out where I've gone astray.

Greg seems to give 2 basic reasons not to disclose how the CNMI government is funding the lawsuit against the US challenging federalization of our immigration. The Open Government Act doesn't apply because the information is "litigation related" and there are no other "non-litigation related documents."

The Open Government Act--OGA
The people of the CNMI did not yield their sovereignty to the Governor or government which serves them. The people, in delegating authority, did not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people must remain informed so that they may retain control over the government they've created.

We have an "open government act" which provides us access to information in our government. It is to be construed in favor of access; any and all exceptions are to be construed narrowly or strictly.

We have a right to know how the government spends our public funds. We have given the government a narrow exception that provides for non-disclosure of documents necessary to allow it to prosecute and defend legal cases. But this exception is subject to interpretation. Is it so broad that we have given up the right to know how public funds are spent in litigation? Or is it a narrower exception?

The litigation exception to the OGA
Greg seems to argue that the "litigation" exception for disclosure under the OGA is co-extensive with the attorney-client privilege.

The attorney-client privilege is a privilege between client and attorney and is invoked by the client. Attorneys, of course, must keep their client's confidences. So one question to begin with here is "who is the client?" The CNMI is the plaintiff--that means our government is the client. To me that means the people are all part of that client base. (Think government "of the people, by the people, for the people.") The OGA seems to recognize that the people, who hold sovereignty, must be kept in the loop of information.

EDIT: I've now learned that it is clear law that

the identity of a client, the fee agreement and payments of fees are NOT protected by the attorney client privilege or the work product doctrine.

There's a whole string of cases in the federal courts on the issue and all going in the same direction--not protected. In the 9th circuit, a case to look at is In re Michaelson, 511 F. 2d 882, 888 (9th Cir. 1975). So Greg gains nothing by arguing that attorney-client privilege protects this information. IT DOESN'T.

Even if the privilege generally did, however, protect such information, I don't think that there is necessarily a co-extensive protection from the OGA, which requires limited, strictly-construed protection to litigation-related matters in order to keep secrets from the public.

The federal courts rulings that fee arrangements are "peripheral" and not litigation-related, not work product, all seem to undermine Greg's supposed analysis. I wonder what he cites as authority for his position. (The newspapers don't say and don't carry his full letter.)

It seems reasonable to me that the people should be allowed in on the secret of who represents them and how that firm is being paid. An attorney would not be able to keep this information secret from his client. And the government shouldn't be allowed to keep this information secret from the people who are, ultimately, the client.

The protection of litigation materials from discovery by the adverse party should be narrowly construed to mean only those materials necessary in the prosecution or defense, the untimely disclosure of which could affect the outcome. The Marianas Variety article mentions a report Howard Willens gave in a cabinet meeting on the progress of the lawsuit; to me, this clearly falls within the exception. In contrast, though, the OGA requires that employment and salary matters are within the clear ambit of public information. I don't think you can cloak this information under the "litigation" label and then claim that it's protected from disclosure.

And in this particular instance, it doesn't seem as if we're talking about some great secret that, in the hands of the opposition, would give them an unfair advantage in the litigation. We're talking about public funds and how they're used. It isn't likely going to help the Federal Government in the lawsuit to know how much money we're spending on it--unless the Governor is illegally using federal dollars for the project (in which case, the Feds could find out anyway by an audit of their own). There's no suggestion that he is using federal funds, so why not disclose the truth?

And this is where I can't figure things out. Why doesn't our Governor want to tell us where the money is coming from? Has he started thinking that the public funds are his alone and that he's not constrained by the CNMI Constitution and his public duty? Has he no obligation to report to the people?

And that's a very scary thought. Tina Sablan is right to be using the OGA, whose very purpose is to keep the citizenry informed so we can make sure our government is operating the way we want it to.

If the money is coming from elsewhere, not public funds, then we, the people are possibly NOT the client. And the lawsuit should not be filed in the name of the CNMI. At the very least, we need to know about this, if this is happening. The professional rules of conduct prohibit an attorney from being directed or regulated in his/her professional judgment by anyone other than the client. If the law firm representing the CNMI is being paid by someone other than the CNMI, we need to know so we can make sure that someone else isn't the one directing the litigation.

No documents that aren't litigation-related?
Greg says there are no documents that aren't "litigation-related." That no re-programing of funds is involved. That the money is coming from the Governor's discretionary fund. That's what we want to know more about. How does the Governor have half-a-million dollars in discretionary funds? Why can't those funds be used for more pressing needs? That's why we need to be informed.

Greg has construed the "litigation-related" term so broadly that everything about the lawsuit is said to fall within its bounds. He also insists that it is perfectly normal to use outside counsel for CNMI-government lawsuits, despite the CNMI Constitution's clear prescriptive statement that all legal actions by the CNMI must be filed by the CNMI Office of Attorney General (OAG). This is in apparent answer to the underlying question, the reason we want the information-why are we spending money on an outside firm and why isn't the CNMI AG handling this case?

As to the use of "outside counsel," the OAG does work through all of its assistant AGs and the AG himself cannot personally review every piece of litigation before it is filed. That makes sense. But it doesn't necessarily follow that you can constitutionally delegate the responsibility of the AG to represent the CNMI outside of the AG office to private counsel, or to do so without a written delegation.

The reason the AG delegates within the office is because of the workload. I also see the necessity of being able to have different counsel when there are "conflicts of interest" but theoretically, if you (the AG's office) represent only one client-the CNMI government-then you shouldn't have any conflicts. (Conflicts arise when you represent more than one client.) That leaves "lack of specialized experience" or "resource constraints" as justifications for needing outside counsel. The latter-resource constraints-is a bogus suggestion. If you have hundred of thousands of dollars to hire private counsel, you are not constrained by limited resources.

So that leaves delegating to outside counsel because of lack of specialized experience. But the CNMI Constitution doesn't give a loophole to the requirement for the AG to represent the CNMI in all litigation for this reason. And the OAG could just as easily hire an attorney in-house who does have the experience. So again, none of these reasons for why the CNMI executive is saying they can hire private, outside counsel and NOT have the AG's Office sign on the complaint and do the work are persuasive or logical.

And saying that the Governor does not have to create documents to disclose is just ludicrous. There are documents: Do you really expect us to believe that you've hired a law firm and are paying thousands of dollars (hundreds of thousands of dollars) and have no written agreement? Of course there is a writing /contract. Even the model rules of professional conduct strongly urge attorneys to put their fee-agreements in writing. The issue is simply whether these documents are "litigation related" and exempt under the OPA or not.



The CNMI Government, including Governor Benigno R. Fitial, should not be allowed to hide information from the public, deciding what we need to know and what we don't, when it comes to where public money is coming from, how it's being spent, and how matters and actions being done in the public's name are being paid.

So all in all, I'm not impressed by Greg Baka's obfuscation with Legal Speak. Who is paying for this litigation and where are the funds coming from? If we're using public funds, we have a right to know. Tell us.


And Saipan Tribune--use a photo of Greg Baka-not Alan Barak!

289. We Need a Little Humor In Our Lives.

Adults: $12 (FOA members $10)
Students: $5



October 24, 25, & 26
Friday & Saturday: 7 PM
Sunday: 3PM








We all need a little more humor in our lives, especially given the hysterical tone of recent events about the proposed Marine Monument and the Delegate race and the federalization lawsuit and the DEA strip search of inaugural-flight passengers and the ...

So take a break from reality. Yes, there's High School Musical 3 at the movie theatre, but you can watch that later. This weekend at the American Memorial Park auditorium, Friends of the Arts are presenting THE GOOD DOCTOR, a play written by Neil Simon.

Neil Simon is a famous 20th century playwright of such favorites as Barefoot in the Park and The Odd Couple. He's not only won over the public, he's received notable awards, including the Pulitzer Prize (1991).

THE GOOD DOCTOR is Neil Simon's humorous take on a series of short stories by Anton Chekhov. What's not to love?

288. WOW! Community Involvement.

I loved the public meeting last night on the Marianas Trench Marine National Monument proposal. I loved that so many people showed up. (I estimated about 300; Angelo reports 360). I loved that both "sides" were adequately represented; I think orange shirts definitely outnumbered nay-sayers (about 2 to 1), and would also note that some supporters of the monument proposal were not in orange.

I loved that the community that came was fairly diverse--lots of Chamorros, Carolinians and mainland Americans, and some Chinese, Filippino, and other community members. I loved that the age demographics included everyone from manhoben to manamko.

Yesterday was a hot, humid day (to answer Mike Tripp), so it was fortunate that the Hibiscus Hall at Fiesta resort was sufficiently air-conditioned. The initial presentation by high-ranking U.S. government officials was marred by the Fiesta Resort's ridiculous sound system that kept piping in karaoke from somewhere else. I was sitting toward the back and had difficulty hearing all that was said, and had difficulty reading the screen where the print size of the text displayed was just a bit small for my poor vision.

What I did hear echoed what I'd already learned: the proposal is a work-in-progress; the U.S. feels that the central and western Pacific have not gotten sufficient attention and need greater focus; the coral structures in the waters of the Marianas and especially at the northernmost islands are amazingly healthy and valuable for study; the bio-diversity of our waters is rich and worth protecting; the geological features are unique in the world; the U.S. is looking for input and suggestions and would welcome the CNMI's involvement.

We then broke up into groups of approximately 10 to 12 people. Although the federal officials said they would circulate around the room, they never got to our group. Other groups attracted lots more attention as those without chairs moved around to join in the discussions. In our group, we went around to each person and kept writing comments on a flip-chart, everyone having a chance to say what they wanted until no one had any more comments to add. Although most of our group were in favor of the monument, we did have dissent. All comments got written on the flip chart, without debate, without hard-feelings.

What I found most interesting in the group I was in is that at times I agreed with the "dissent"--e.g. the President has a lot of power and can do what he wants without CNMI's input and that seems unfair. At another point, the "dissent" seemed to agree with the proponents--e.g. that we need federal assistance/money to protect the northern waters and accomplish our CNMI Constitution's promise.

We also had an interesting group in that some had been to the islands--one a research scientist, another for pleasure and sport--but most had not. The discussions were fairly free-flowing, with people in groups circulating to other groups, some people leaving early, others arriving late.

Our flip-chart sheets were turned in to the federal officials and we closed up our discussion about 7:15 PM. I spent the next 15 minutes chatting with Lyle Laverty, Assistant Secretary for Fish, Wildlife and Parks at the U.S. Department of Interior. He was impressed at how engaged our youth are in environmental issues and said he wished they could engage with kids in New York City and other places who seemed disconnected from environmental awareness.

I also "fraternized with the enemy" meaning I chatted with people wearing buttons that had the red circle/bar "No" sign over the words Monument. Some are people I know and like. I had the feeling we wouldn't convince each other of anything, except that it was nice to see each other again.

I think this meeting was one of the most successful community involvement meetings I've ever been to. Unlike the federalization march and meetings, where an overwhelming "for" group dominated and the "anti" group was pretty-much not invited, and unlike the debate on the Saipan casino initiative, where the whole point was to "debate," this meeting had the express purpose of letting everyone have a voice and have a say and have everyone listen, too.

It was uplifting. It could help us find common ground.

Thanks to the U.S. federal officials who initiated this wonderful forum. Thanks to the CNMI officials who helped make it happen. Thanks to all members of the community who came out and shared their views.

Just a great WOW!

(Now someone loan me some photos to add to this blog post. I was too busy to take any.)

287. First ever YWP NaNoWriMos on Saipan!

I am very happy that this year there is a group of students who will attempt the insane and manic task of writing a novel in 30 days! This November 15 SSHS students tackle the blank page, the morass of ideas free-floating in their brains, the technology and ergonomic hurdles, and challenge themselves to WRITE 50,000 words. They're happy now.

Just wait until December 1, when the month-long journey is over. I predict they'll be even happier!

It's not too late to join. Students at SSHS can contact teacher Jonathan Cabrera. Anyone interested can contact me.

On Poverty

October 15, 2008 is Blog Action day, committed to the discussion of poverty.

Where to begin? Causes? Resultant problem? Solutions?

These are just my random thoughts.

I've been a poverty lawyer for more than 30 years. I help low income (and no income) clients get access to justice by having me, a free lawyer, represent them in court. I only handle civil cases, and I work for a private non-profit agency that is one of hundreds of such organizations funded in part by the U.S. government's Legal Services Corporation.

Lawyers are not the first line of defense for poor people. They need food, shelter, clothing, medical care. The children also need free, public, appropriate education. These are critical needs.

But lawyers can help poor people use what little they have to get their basic needs met; can advocate for them to get benefits from programs that may help; and can try to protect them from being cheated out of the basic fairness of being heard when they are involved (or need to be involved) in some litigation.

As with all goods and services needed by the poor, there aren't enough poverty lawyers to do the job. And so we get put into the horrible position of deciding what is a "priority" and whose case isn't important enough for our limited resources.


Some have no sympathy for the poor. They view poverty as a result of laziness or stupidity or personal fault (criminal conduct, bad health habits). There is no doubt that there are lazy and stupid, the criminal and those who don't take care of themselves, among the poor. But these same attributes can be found among the middle class and the rich. These individual traits do NOT explain poverty.

The successful do not want to believe that the system that has allowed them to progress is somehow unfair. There is a resentment by people of means toward the indigent because, if the system is wrong, then their success isn't as meaningful; and a change in the system could also change their own personal fates.

Poverty exists throughout the world, and has existed throughout the centuries. In hindsight, we can easily see that the feudal system kept the masses in poverty and illiteracy --as a system. But we are blinded to the faults of our current economic system.

Our current capitalist system is definitely an improvement over feudalism. We have a larger middle class and some protections for the poor. But there is a staggering discrepancy between those at the top of the economic ladder and those at the bottom, and there is no real way to eliminate the bottom rungs. If those at the bottom manage to move up, someone in the middle will be moving down.

I don't have answers. I don't know what are solutions. (I'm not embracing socialism here because I'm not all that knowledgeable about the ins and outs of such an option.)

I only know that we must keep trying. We must recognize that poverty is with us, not because individuals are weak or bad, but because our system needs improving.

285. Words on the Brink

Another bit of news--Words disappearing from dictionary.

Read about it here. Some of these words are roborant, imho!

I voted in the poll to save words, but some of the polling booths are already closing. If you want to save any of these words, better hurry over and vote.

I voted for words I thought would not have large followings, because I'd like to save all of the words, if that makes sense.

My choices:
Exuviate--to shed (a skin or similar outer covering)
Muliebrity--the condition of being a woman (because we know it's a condition!)
Olid--foul smelling (the only word on the list I actually knew).

Close seconds-the ones I would have voted for if I hadn't been trying to save them all:
Embrangle--to confuse or entangle
Fubsy--short and stout, squat
Skirr--a whirring or grating sound, as of the wings of birds in flight

And words for this year's NaNoWriMo effort:
Malison--a curse
Niddering--cowardly
Villipend--to treat or regard with contempt

I like them all, really!

284. Ah--The Glory!!!

I have now officially been named as the Municipal Liason for the region Micronesia by the gurus at NaNoWriMo! They are so happy to have such an exotic and remote corner of the world on their ML map, they've mentioned this specifically on their website front page breaking news. Ah, the glory! The Honor! The power of having a title!

If you want any information about NaNoWriMo (as in National Novel Writing Month), feel free to contact me.

I'll be taking the program into Saipan Southern High School, thanks to sophomore Engligh teacher, Jonathan Cabrera. I'm not sure how many students will be signing up, but I believe some hapless students in the 5th period English classes may be tagged for the honor. :-)

I'll also be figuring out when we have our KICK-OFF party, so if you have any suggestions of date and place, let your voice be heard.

283. Find Oreo--FOUND!!!

Angelo Villagomez is looking for his dog, Oreo, who was last seen around Garapan Tuesday, 10/7 about 6 PM. He's still missing. If you find him, collect him (he's a people-friendly animal) and notify Angelo.

282. Those Stinking Rules

According to today's news, (and we had hints of this earlier thanks to Tina Sablan), CUC failed to comply with federal EPA permitting requirements.

Why?

They were in a hurry? They thought the US laws didn't apply to them (and don't confuse us with the concept of federalism!)? The money was burning a hole in their pockets?

Now our Governor "fears that the lack of permits or permitting process would postpone or eliminate" uninterrupted service.

Let's see...Joe Taotao doesn't comply with CUC regs in hooking up power to his house because he needs power now, his family will suffer without it, and doing it the right way would postpone his service. What would happen? I'm pretty sure CUC would disconnect him before you could say Governor Benigno R. Fitial.

Remember, this is the same Governor who was so terribly concerned about our schools complying with water quality PERMITTING from DEQ that he shut the schools down for not having permits-despite the real meaning of the water quality tests, the fact that schools had already addressed the issues, and the failure of DEQ, beyond PSS's control, to return and do follow up testing. It was so extraordinarily important that the PERMITTING requirements be complied with that he interrupted school for our children.

But now he's going to argue that the US is somehow wrong for suggesting the CNMI should comply with US permitting requirements for environmental quality? That making us comply would interrupt our power, so we should get a pass until we "eventually work" it out?

"We don't want to be stuck until all the "i's are dotted and all the 't's crossed..."
Charles Reyes, press secretary for the Governor's office

We don't want the rules applied to us the way we applied them to PSS?


Our government spends 1.5 million dollars without first checking to see if the "solution" is legal? And then tries to dance around the fact?

Brilliant.

281. E-mail Problems

If you're trying to e-mail and I don't respond, it's because I can't access my personal e-mail. Sorry. (Try me at work, or leave a comment here.)

280.. Interesting historical note

So I'm researching for my Nanowrimo novel. And found this--on October 7, 1902, Guam was rocked by more than 180 earthquake shocks! Reported in New Zealand news.

[My code isn't working so I'm having trouble linking.]

It's from the Wanganui Herald, Volume XXXVI, Issue 10768, 8 October 1902, Page 3 (try this and put in Guam earthquake for your search term).


Not relevant for the time period I'm hoping to write about, but a bit interesting.

279. Tech Problems at NaNoWriMo-Waah!

We knew this might happen.

The tech gurus at the Office of Letters and Light (OLL) closed down the Nanowrimo site about September 21, with a promise to re-open on October 1.

Then they did a little shifty sleight of hand and re-opened early. Cheers!

But they warned us that, come October 1, when the hordes of writers from around the world came thundering back, the site might crash.

And lo--the site is down. The message says the site is currently overloaded.

But it's worse than that. While Nanowrimo was officially locked down, some of us were hanging around the forums at Script Frenzy (that other OLL project). And now it, too, has crashed. Leaving all of us nanowrimo fans homeless, without even a place to go to discuss what's happening, and in limbo as to our calls of distress.

Not to mention all the unanswered forum questions. It's like sitting in the dark (figuratively speaking).

278. Banner for my next novel

Okay. So I didn't make this. But I like it.

277. Monday Blues

I strongly encourage you all to visit Shazam's blog and read the two posts from Sunday, 9/28.

Enough said.

276. The NaNoWriMo Mantel

Okay. I've taken the plunge and applied to be the NaNoWriMo Municipal Liason for Saipan (or the CNMI, or Micronesia--however they decide to designate the region). If you are interested in writing your novel this November, feel free to contact me. I'll schedule some write-ins and other events.

National Novel Writing Month started in 1999, the inspiration of Chris Baty, with encouragement from his friends. That first year, there were 21 participants and 6 winners. From that humble beginning, NaNoWriMo has grown to a vast, international undertaking enjoyed by thousands! In 2007, 101,510 participated (I think that means signed up). A record 15,333 writers crossed the finish line, cranking out 50,000 words or more in the 30 days of November.

This year, NaNoWriMo holds it big tenth anniversary write-in. Now is a great time to join. Any later, is much too late! If you make it into NaNoWriMo during the first 10 years, you'll get special bragging rights that others will envy!

I've participated in NaNoWriMo 3 times so far, in 2005, 2006, and 2007. I crossed the 50,000 word winner's line each year. Finishing the novel has proven harder. In 2005, I just wrote notes on the last few chapters and finished the writing in January. In 2006, I managed a full novel, with beginning, middle, and end. In 2007, I got lost in the plot and made the wordcount, but I still haven't written the ending.

Still, it's satisfying to enjoy the wild, intense writing spree of November; to get a first draft on paper that can be edited later; and to share with others all over the world the joys and triumphs, the frustrations and fears of writing your own novel.

So, just head over to the NaNoWriMo site and sign up. Join me as a friend in your profile (if you like). And watch for postings here and in hard-copy notices around Saipan for further information.

BTW, there are kids in elementary school who participate in NaNoWriMo! School classrooms can sign up at the Young Writer's Program and get a free teacher's kit. There are also novelling workbooks on line at the YWP site, which I suggest adults use as well! They are helpful.

275. Oh phooey.

I spent my birthday on mundane things like sleeping and chatting with friends and taking down laundry and scolding my daughter for not doing her homework. I didn't get ANY work done on research or planning for November (National Novel Writing Month). And that's what I really wanted to do. Waaah!

Guess I'll go eat some cake.

274. Most Ludicrous Argument

Lil has a cute caption contest at Must Be The Humidity. Ken has a funny spam posted at SOSaipan. Ed still has Harry's fairy tale as his top billed story (too funny). It seems to be time to enjoy a moment of light-hearted silliness.

So, I'll just say that this comment in today's paper made me laugh.

"We're a Christian community and we don't need this kind of negative thing." Ray Tebuteb on the ground-breaking suggestion first made by Pew Charitable Trust for a marine monument here.

God forbid that some outsider (like Jesus himself) should come here and propose anything! How un-Christian!

273. The Concept Behind The Proposal

Jim Davies, in today's Tribune, writes that he has yet to see "Pew supporters offer any substantial proof to the concept behind the project."

1. We're not "Pew supporters." We're Friends of the Monument, supporters of marine conservation, people who want to preserve and protect our natural world.

2. The concept behind the project has been written about extensively--it's marine conservation. Some people have obviously missed all of the information that has been circulated about the benefits of marine conservation throughout the CNMI--not just recently, but for years. We have a lot of information, both from scientific studies and from our own experiences with the ocean.

3. The Marianas Trench Marine Monument project is essentially a project to have the U.S. Exclusive Economic Zone (EEZ) waters around Uracas, Maug, and Asuncion declared a Monument, making them a federally protected marine sanctuary. The CNMI Constitution has already made the islands themselves a CNMI land sanctuary. The proposal, if adopted, would extend the same type of protection the CNMI has given to the islands into the waters, and provide for both CNMI enforcement and federal enforcement and funding.

Photo from Loling Manahane's blog.

Here's a very brief synopsis of the "concept behind the project":

The world's oceans are in rapid decline. (Read the transcript of Dr. David Suzuki from the movie Empty Ocean, Empty Nets, available at habitat media online.)

It's likely to get worse: 77% of our oceans fisheries have already been fully exploited, overfished, or exhausted, based on information from the United Nations Food and Agriculture Organization; and estimates by an international team of university research scientists over a 4 year period conclude that by 2048, 90% of all (edible)marine life will be gone. (Reported in Science journal, and by many popular media like USA Today.)

Overfishing is the main reason that our marine ecosystems are depleted.

The vast majority of scientific consensus is that the main agent of change in the oceans as far as fish populations is concerned is fishing.

Dr. Carl Safina, National Audobon Society's Living Oceans Program

(Read about the problems, history, and potential solutions by the noted fisheries expert Dr. Daniel Pauly and others at the independent resource, overfishing.org.)

Overfishing continues to deplete our oceans, despite the regulations and enforcement by WESPAC and other U.S. federal (and other nation's) agencies.

Regulations at present are still too weak, faulty in their premises, and poorly enforced because of politics, underfunding of science, and other problems. (Read the film transcript of Dr. Vaughan Anthony from the New England Fisheries Management Council on how politicians get in the way of science and frustrate fisheries management; how regulations in the past weren't enforced; how our current regulations still don't create inefficiencies and tie-the-hands of fishermen enough.)

We need our marine life, and it's not inexhaustible.

There is an end to a resource. There's no unlimited supply of fish. You keep nibbling away at it, eventually you're going to get 'em all, or almost all of them. So you've got to be very careful.

Edwin Fuglvog, commercial fisherman, Alaska

Fixing the regulatory system will help, but it is not enough alone. (This is the concept of not-putting-all-your-eggs-in-one-basket that Mike Tripp has written about.)

One of the few proven methods of species recovery is the creation of no-take ocean reserves (sanctuaries, monuments). (Read the film transcript of Callum Roberts, the Harvard University Marine Conservation professor.)

The proposal is to create a no-take marine reserve around our three northernmost islands, and still allow fishing around all of the other islands--meeting our commitment to the Micronesian Challenge, and doing our part to help ourselves, our future generations, and the world.

The Marianas Trench is a beautiful, almost pristine, and unique eco-system that is worth protecting. Designating the waters around Uracas, Maug, and Asuncion as a National Marine Monument will make it a protected marine conservation area under NOAA sanctuaries program.

And voila! Because there already is a tremendous amount of scientific evidence that protected marine areas help conserve, preserve, and restore marine eco-systems, we can expect that our Marianas Trench Monument would have the same ecological, environmental effect.

That's the "meat" of the proposal and the "substantial proof" of the concept behind it.

All other potential benefits--global recognition that will act as free advertising for our tourism industry, federal funds coming in here for a Visitor's Center that could enhance the tourist experience, scientific research that will add to our knowledge of our unique Marianas Trench, spillover education benefits from scientists present in the CNMI, etc.--are gravy. They appear to be logical and likely consequences of designation of a Monument here.

But in essence, saving our ocean life by creating a marine sanctuary that is a well-documented means of preserving and restoring healthy eco-systems--that is the proven concept behind the proposal.

272. Thinking about the News

Today's Tribune has the headline announcing Matt Gregory's resignation from the post of Attorney General. There have been occasional cries of discontent over Matt's handling of the post. There have been occasional rumors that Matt was being canned by the Governor. But mostly, there's just been Matt being very quiet in the job.

And I was surprised by the news of his resignation. The Governor has another 18 months in office. There doesn't seem to be any pressing reason to change Attorney General.

I read the news story looking for clues about the story behind the headlines. Matt's basic reason is a desire to return to private practice. Not every lawyer likes public service; and private practice is generally more lucrative. So this reason seems to cover the decision to resign completely.

But wait--in addition to this, Matt's statement announcing his resignation apparently mentions three specific topics:

1. the AG Office's commitment to fighting corruption (and their close working relationship with the feds in the case against Lieutenant Governor Tim Villagomez).

2. the AG's success in winning a lawsuit against the IRS and bringing in a "major monetary award" of $33 million.

3. the likely increase in tourism soon with an increase in flights, and the relatively small negative effect of federalization.

I find it interesting that Matt chooses these three particular items to highlight in his resignation statement. To me, it hints at stress and disagreements with the Governor.

The first --anti corruption--could almost be a white-wash. This government isn't any better at stopping corruption than any other has been; and in fact it seems wedded to the same corrupt practices of perks and nepotism that we've seen before. But Matt's quote on the bravery of his staff, who fight corruption "at severe career risk" suggests something else. It suggests a reality that the AG's office really is committed to enforcing the law and faces some pressure against doing their jobs.

The second tells us exactly what we've been asking--how much money is the Governor hiding from the CNMI Legislature in his budget projections? It seems that the Governor is funding the federalization lawsuit with public funds, and that he's not put those funds in any budget projection, but has them squirreled away, having received them as awards from litigation. Appropriations, however, are a congressional job, not an executive privilege. This money needs to be reported to the Legislature and subject to Congressional appropriation. Matt's mention of these funds is ammunition for the Legislature to use in getting control over all CNMI public funds.

The third is the most telling of all.

"While federalization has the capacity to damage the economy of the Commonwealth, we have increasing tourism numbers and you'll soon find out there is going to be a significant increase in flights. I believe we may see 19 additional flights in the next few months. So it's a couple steps forwad and one step back. Federalization is a negative but there are positives developing in parallel."

In other words, the doom and gloom disaster that Howard Willens has predicted isn't exactly an accurate portrayal of our likely future, from Matt's POV. And just the fact that Matt would suggest that federalization isn't the evil bogeyman that will send us into a tailspin from which we can't recover makes me think his resignation ties in to disagreements and stresses with the current Admininstration.

Of course, I could be wrong.


Now, I'm wondering who will be the new / next AG?
My predictions: AAG Greg Baka, AAG Tom Gorman, or Howard Willens.

271. Latest 9th Circuit Case

The latest 9th Circuit case, Chicanos Por La Causa, Inc. vs. Napolitano is very interesting in light of our CNMI Governor's lawsuit against the U.S.

In the CPLC case, the Arizona Legislature passed a licensing law that revokes licenses of businesses that hire illegal aliens. The law requires that Arizona employers verify employment on-line using the federal website system.

The 9th Circuit said that federal immigration law pre-empts state law as to sanctions for recruiting and hiring illegal aliens, pursuant to 8 U.S.C. sec. 1324a(h)(2), except that states retain rights over licensing and similar matters.

In this case, the 9th Circuit held that the state law that requires revoking the license of a business for employing illegal aliens is within the state's rights, and not pre-empted. It held that the state could require employers, for its state licensing, to use the federal employee-status verification system. It cautioned that its holding was limited to the facial challenge, and indicated that when the law is actually implemented, it could be subject to challenges as applied.

I find this interesting because one of the claims raised in the lawsuit by Governor Fitial is that P.L. 110-229 pre-empts our local "labor" laws. Federal immigration laws directly impose limits on recruitment and hiring of foreign workers. Clearly, under federal immigration law, federal immigration measures are permitted to pre-empt even states' laws (in some instances and to some degree), except for local concerns like business licensing.

The Fitial administration, in its complaint, likened States' rights under the U.S. Constitution (Articles 1 and 10) to our local self-government over internal affairs under the Covenant, but that doesn't seem to bolster the claim that application of federal immigration laws here violates those self-government rights.

This case is a 9th circuit decision; and the Administration's suit against federalization is filed in the Washington, D.C. district court, part of the 2nd Circuit, I think. So this case isn't binding precedent, but it's still informative of how the federal courts view the relationship of U.S. immigration law to state's rights and laws.

In my opinion, it doesn't seem to lend any support to the Fitial lawsuit challenging federalization of our immigration here.

270. I Believe

269. CNMI vs. U.S. Case 1:08-cv-01572, 2nd installment

Today's newspaper headlines from the Tribune and the Variety suggests that the CNMI may suffer negatively in its relationship with the U.S. because of filing the lawsuit. The Governor's public relations aide, Charles Reyes, tries to spin this concern as "discrimination" by the U.S. Nice try, but there's no suggestion anywhere that the U.S. plans to retaliate against the CNMI simply because it filed suit.

The Variety clearly exposes this concern as specifically related to drafting the regulations to implement the law. How can the CNMI administration cooperate in designing these regulations when it is challenging the underlying legislation? There is no doubt that the lawsuit will affect the CNMI-U.S. relationship as it concerns implementing P.L. 110-229.


More thoughts on the lawsuit:

The complaint is premised on several assumptions, mentioned in my previous post. It is also based on intentional disregard of certain facts and legal points.

1. No mention of U.S. sovereignty. The complaint speaks of the "terms of affiliation" between the CNMI and the U.S. as expressed in the Covenant.(Complaint paragraph 1.) The complaint repeatedly references the Covenant provision for the CNMI's right to self-government of local matters found in Section 102, and mentions this is the "core" of the Agreement. There is no corresponding concession or mention that the Covenant, at Section 101-perhaps even more fundamentally, clearly recognizes that the CNMI is not only in political union with the U.S., but also is "under the sovereignty of the United States of America."

2. No mention of the massive support for federalization from the foreign worker community. The complaint speaks of the impact of federalization on the foreign workers in the CNMI, characterizes those effects as solely negative, and paints itself as the champion of distressed foreign workers here. No where is there any mention of the massive support for federalization among the foreign workers here.

More ironically, some of the negative aspects of federalization that the CNMI complains of are the result of the legislation having been stripped of benefits for the alien workers at the insistence of the CNMI administration! Specifically, the complaint laments the effect on long-term workers, but argued to Congress against grandfathering these workers in with permanent residence.

3. Guam is hardly mentioned. In trying to portray the CNMI as isolated and remote, the complaint mentions the mainland and Hawaii, but ignores how close we are to Guam. (Complaint paragraphs 1, 14) It offers no explanation of why Guam can have a decent economy with U.S. control of immigration and the CNMI can't.


Besides omissions, there are some distortions presented in the Complaint. One could argue that the entire complaint-- where it calls our foreign labor workforce "stable" and predicts the doom & gloom for the CNMI future as if it were a certainty--is itself a distortion! But here are some other specific ones:

4. The Complaint makes a claim that the U.S. has violated Covenant section 105, but glosses over Sec. 105's opening text. That section starts as follows:

The United States may enact legislation in accordance with its constitutional processes which will be applicable to the Northern Mariana Islands, but if such legislation cannot also be made applicable to the several States the Northern Mariana Islands must be specifically named therein...

The only limitation on this broad power is the right of local self-government. And so the complaint tries to force the CNMI's desire for unlimited access to foreign workers into this exception.

Section 105, and the rest of the Covenant, grant as broad legislative power to the U.S. Congress with regard to the CNMI as it has with the rest of the States and Territories. Nothing in the Covenant suggests that the limitation of "local self-government" means something different here than it does in the rest of the U.S.

The Covenant expressly extended federal laws that were in existence at the time that applied to Guam to the CNMI (as they applied to the States) (Covenant sec. 502), with very limited exceptions. The Covenant expressly permits the U.S. to legislate for U.S. control of immigration (Covenant sec. 503(a)), and to extend minimum wage laws here (Covenant sec. 503 (c)).


5. Our lack of voting rights is claimed as a violation of the U.S. Constitution. The claim is that the political process by which P.L. 110-229 was enacted was defective and violated the U.S. Constitution, Article.

This is by far the most interesting claim. It has emotional appeal. It resonates with our history lessons--no taxation without representation. And I imagine that every U.S. citizen here would support the push to give us voting rights in federal elections (especially the Presidential election).

Note this claim is not saying that the political processes of the Covenant (Section 902 talks) failed to occur or were not available. It is challenging the basic fact that the CNMI had no voting representative in the U.S. Congress.

The problems, as I see it, with this argument are two-fold: 1) This argument would mean that all U.S. laws enacted for the CNMI are defective (including budget appropriations and other help we are relying on). And 2) the Covenant itself expressly designed our relationship with the U.S. to exclude our representation in Congress! It gave us only a "Resident Representative." And it gave us a mechanism for negotiation and dialogue with the federal government through our CNMI government. (Covenant sec. 902.)

Attacking the political process by which P.L. 110-229 was enacted and applied to the CNMI is an attack on the basic, fundamental cornerstone of the COVENANT. If this were to succeed, it would likely wipe out the whole Covenant, or at least cripple it so severely we'd be back at the beginning of our negotiation process.

I doubt that any court in the U.S. would buy this argument.
It is especially ironic that this argument is raised in the very legislation that finally gives us a voice (however faint)-a voting representative/delegate to Congress.

6. Although the complaint says that it is aimed at the defective political process by which P.L. 110-229 was enacted, most of the verbiage is aimed at showing how wrong Congress was in its decision to extend immigration here. But in one of the court cases cited in the complaint, the court has this to say:

...nothing...authorizes courts to second-guess the substantive basis for congressional legislation.

This is the heart of the matter. Our administration has leveled an attack on legislation it doesn't like, arguing how very wrong it is, how very bad it will be for the CNMI, how the U.S. Congress had miscalculated. But Courts simply don't get to change or stop legislation because they think Congressmen were uninformed.

(Too bad--we could challenge so much of what our CNMI Legislature does if this were the case!)

7. My favorite ridiculous claim in the complaint is that no other community in the U.S. is subject to the same level of federal restriction.

The very essence of P.L. 110-229 is to apply U.S. immigration law to the CNMI. The basics of this law apply to all of the U.S. The restrictions imposed here will, in fact, be more sensitive to our community and special needs, giving us benefits other U.S. communities do not have. These include the continuance of CNMI-Only permits for some foreign workers, so that we are allowed to have contract workers in job categories who wouldn't be allowed to work those same jobs in the U.S.


Summarizing: The CNMI's economy does not operate in a vacuum. It is tied to the U.S. economy, as well as being influenced by world events. When we suffer economically, we look to the U.S. for help, so even our "local" economic conditions have a greater effect beyond our borders.

Immigration and foreign labor are not "local" matters.

We've agreed to the CNMI in political union and "under the sovereignty" of the U.S. and have expressly acknowledged the power of the U.S. Congress to pass legislation that applies to the CNMI.

Nothing in P.L. 110-229, or in the way it was enacted, intrudes on our very limited right of "local self-government" over internal affairs.




A Last Comparison:

An Excerpt from "Slavery in the Light of Social Ethics," by Chancelor Harper, printed in Cotton is King, and Pro-Slavry Arguments: Comprising the Writings of Hammond, Harper, Christy, Stringfellow, Hodge, Bledsoe, and Cartwright, on This Important Subject, E.N. Elliott, ed. (Augusta, GA: Pritchard, Abbott & Loomis, 1860):

... But let us suppose it [emancipation] to be brought about in any manner, and then inquire what would be the effects.

The first and most obvious effect, would be to put an end to the cultivation of our great Southern staple. And this would be equally the result, if we suppose the emancipated negroes to be in no way distinguished from the free labourers of other countries...Even if it were possible to procure laborers at all, what planter would venture to carry on his operations under such circumstances? I need hardly say that these staples cannot be produced to any extent where the proprietor of the soil cultivates it with his own hands. He can do little more than produce the necessary food for himself and his family.

And what would be the effect of putting an end to the cultivation of these staples, and thus annihilating, at a blow, two-thirds or three-fourths of our foreign commerce? Can any sane mind contemplate such a result without terror? ...

COMPLAINT paragraphs 7 and 71 (portions):
"Finally, if left unchecked, P.L. 110-229's forced removal of two-thirds of CNMI's existing employment base and its projected devastation of the local economy by 50% or more would violate constitutional rights of due process and equal protection of CNMI's people, employers, and property owners.

P.L. 110-229 will strike a devastating, and perhaps fatal, blow upon the Commonwealth's economy by prohibiting the CNMI from ensuring an adequate supply of labor for local residents and businesses."

An end to slavery...Thanks to P.L. 110-229.

268. CNMI vs. U.S. 1:08-cv-01572. Ruminations--installment 1.

Thanks to Wendy's link directly to the Complaint for Declaratory and Injunctive Relief, I've been reading up on the CNMI's lawsuit against the U.S. The case seeks to stop implementation of P.L. 110-229 in the CNMI.

I've put up a brief, fairly neutral assessment of the lawsuit at the MLSC's DAY IN COURT blog. The analysis here at my personal blog,Saipan Writer, is more opinionated!

The case is assigned to Judge Paul L. Friedman, who, interestingly enough, has had a small part in the Abramoff litigation.

The complaint is signed by David W. DeBruin of Jenner & Block, with William M. Hohengarten and Sharmila Sohoni, also of Jenner & Block listed as additional counsel.
Howard P. Willens is listed as "Special Legal Counsel to the Governor."

I've been trying to understand both the factual and legal claims, as well as the "vision" that the Fitial Administration has for economic recovery of the CNMI, which is ostensibly the motivation behind this lawsuit.





SOME BASIC ASSUMPTIONS
There are some basic assumptions that act as the underpinnings for the factual and legal claims. These are not typically stated overtly, but are embedded in the rhetoric of the complaint. In my opinion, none of these assumptions are true.

1. The CNMI cannot be self-sufficient. It must exploit the availability of cheap, foreign workers in order to maintain its economy. In fact, in the CNMI "labor" means foreign labor.

The complaint does not identify new and viable future economic development for the CNMI. It claims that federalization will harm any chance at recovery, but the complaint simply looks to the past to describe those economic prospects.

The complaint mentions both the tourism sector and the garment industry. It first complains at paragraph 32 of economic limitations imposed by the Trust Territory government; and then touts the CNMI past under its new control as a model of good economic management and development. At paragraph 41, speaking of the past, the complaint says "The Commonwealth also began systematic efforts to encourage foreign investment in the visitor industry and to bring tourists to the islands in substantial numbers...These efforts were successful." It then describes some of the setbacks from the Asian economic crisis, the SARS outbreak, the terrorist attack of 9/11, and even the pull-out of the garment industry after rule changes by the WTO.

Then it makes this startling statement:

"The Commonwealth's economy can be resuscitated only through a renewed influx of foreign investment and the presence of a stable workforce able to support construction and new economic development."

When it speaks of labor, it means only foreign labor. It complains at paragraph 70 that the federalization of immigration will "pre-empt" CNMI labor laws. Inherent in this statement is the assumption that we have no labor laws that apply to the local work force, that all our labor laws relate to foreign workers, because the federalization of immigration does not change anything as to local workers.

According to the administration, we must turn back the hands of time. We must be allowed to do again what we did before. This is the program Governor Fitial suggests as the road to economic recovery.

This approach ignores that the past policies resulted in only short-term benefits that made some (like the Governor) rich, but did not provide sustained economic growth for the CNMI, and led to our current predicament.


2. The CNMI has a right to depend on foreign workers for its economy.

The complaint makes the following unequivocal statement: "The Commonwealth cannot grow its workforce by attracting American labor." Implicit throughout the complaint is the insistent whine that the CNMI MUST HAVE foreign workers in order to have an economy. It is reminiscent of the argument of white plantation owners in the South who insisted they needed slavery in order to have an agricultural economy, and thus argued that slavery should be allowed.

Could we have a prosperous economy from our own sweat? Hidden in the text of the complaint is the information that the local population/U.S. citizen base has doubled since the Covenant went into effect. One obvious option that the Commonwealth could use to grow its workforce would be encouraging a business climate that keeps its local workers happy so they don't migrate to the U.S.

Furthermore, we live in a mobile world; if the CNMI truly becomes part of the American economic community, then there is no reason to believe that American labor will not be attracted to employment opportunities.

As it is now, though, the underlying assumption of the complaint shows the current administration wants to keep the third-world status of our economy, keep us depending on cheap foreign labor, easily exploited and without civil rights.

In addition to the subtle, unstated bigotry in the rhetoric of the CNMI's right to have cheap foreign labor to ensure its own wealth, there is an express element of racism in the complaint. At paragraph 48, it reads: "American workers also may be deterred from moving to the Commonwealth by the Commonwealth's unique culture, its ethnic and demographic makeup, and the higher cost of living. To an ordinary American worker, moving to the Commonwealth will feel more like moving to a foreign country than moving from one part of the mainland to another."

First of all, it suggests that "American workers" are not Chamorros and Carolinians. U.S. citizenship makes one an American, but the repeated phrasing in the complaint about American workers seems to refer only to U.S. citizens coming from the mainland U.S. It ignores the American status of those living here. It ignores the great diversity that exists among Americans from Guam, Hawaii, Alaska and the contiguous 48 states.


3. The use of foreign workers in the CNMI is not an immigration matter but a labor matter; the entry and departure of foreign workers into the CNMI and use of them for labor is a "local" matter only.

There is a repeated refrain in the complaint that our Covenant guarantees our right to local self government over internal matters, and that regulating our use of foreign workers falls within the ambit of this protection. At paragraph 61, the complaint alleges that, by regulating the admission of foreign workers to the CNMI for employment, the law "preempts local labor laws."

"No other community in the United States is subject to such massive federal intrusion into matters of local concern."

It seems obviously wrong to say that contracting for services of citizens of foreign countries is a "local" activity. It definitely involves international communication and commerce. It involves working with foreign governments. It effects the American image in foreign ports.

And it seems obviously wrong to say that no other community in the U.S. is subject to such "federal intrusion" when in fact EVERY community in the U.S. is subject to the same U.S. immigration control!


4. The CNMI has already addressed abuses of foreign workers that caused the U.S. Congress' concern with immigration, and there are no longer any problems.

The complaint says at Paragraph 2 that "To address issues that had existed in the past, local CNMI labor laws currently provide extensive protections for these foreign workers while they are employed in the Commonwealth."

There are two parts to this assumption. One that the CNMI has better protections for foreign workers in place now and so Congress made a mistake in its reasons for federalizing immigration now.

And two, that our wonderful our new law provides primary preference in employment for citizens and permanent residents, and this will address the issue of building a better local base for the economy. (Paragraph 54.)

Neither of these tally with reality.

The CNMI has always had some form of protection on the books for non-resident workers. The CNMI law has always had a preference for local hires. It fails to mention that there is nothing to suggest that the CNMI will be any better at enforcing the protections or preference now than before. And it ignores the real problem--that the assumption that we MUST have foreign workers to have an economy will always undermine development of our own talent pool.

5. The U.S. taking away the CNMI's cheap foreign labor market fundamentally violates the Covenant relationship between the CNMI and the U.S.

We are addicted to cheap foreign labor. The U.S. federal government is taking away our drug. This changes our relationship to the U.S. It requires us to grow up and act responsibly--on our own, with an economy built on our community resources.

We want our drug.

Did the Covenant build in a right for the CNMI to be addicted to cheap foreign labor? Are we entitled to have slaves?

The complaint calls the U.S.'s federalization of immigration "paternalistic" and claims that there was no call for the U.S. to intervene. But shortly after that it alleges that the U.S. must help the CNMI with its economy under the terms of the Covenant.

The Covenant says that the U.S. will help the CNMI join the American economy:

"the Government of the United States will assist the Government of the Northern Mariana Islands in its efforts to achieve a progressively higher standard of living for its people as part of the American economic community and to develop the economic resources needed to meet the financial responsibilities of local self-government."

The complaint alleges that this section 701 of the Covenant means that we are entitled to our drug-cheap foreign labor, and the U.S. has to help us get it and keep access to it.

But I read this very differently. To me this says the CNMI will become part of the U.S. American economic community--and that means following the same kinds of rules and recognizing the same kinds of rights that workers must have.

To me, the development of economic resources means OUR OWN economic resources, not exploitation of the teeming hordes of impoverished Asia. And local self-government means governing ourselves about matters that are ONLY local concern--not involving interstate or global commerce, or other matters of larger scope.

In the next installment, I'll ruminate on some other aspects of the complaint--obvious omissions, more contradictions, and the legal claims.