Wednesday, December 24, 2008

Happy Holidays

Happy holidays to all!

Wishing you peace and joy in the coming year.

Photo by Amy E. Fraser

Friday, December 19, 2008

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.

Thursday, December 18, 2008

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.

Wednesday, December 17, 2008

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.

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.

Friday, December 12, 2008

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.


Thursday, December 4, 2008

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.