It takes some courage to admit you were wrong, especially in the face of lots of publicity. The CEC is apparently willing to reconsider its decision on what is meant in our CNMI Constitution by the phrase "votes cast" and change its mind.
Where it said before that "votes cast" included all ballots, whether a vote was indicated for the legislative and popular initiatives or not, it has now concluded, according to Tina Sablan's report (and Lani Walker on KSPN news?), that the phrase "votes cast" means actual votes on the initiatives indicating a yes or no.
Thank you.
This preserves our CNMI Constitution.
I don't like the results of the election as to some of the initiatives, but what else is new?!
Showing posts with label Open Government Act. Show all posts
Showing posts with label Open Government Act. Show all posts
Friday, November 13, 2009
Tuesday, November 10, 2009
A Very Long Ramble on "Votes Cast" and the Initiatives
I know--this is too long and rambling, but still, this is how my mind sometimes works. So fwiw:
“Votes Cast”—a question of law, not politics.
The Commonwealth Election Commission has certified results from the election held November 7, 2009. It has included in its certification 1) a call for the run-off election between two governor/lieutenant governor teams; 2) a determination that none of the legislative initiatives to amend our CNMI Constitution passed; and 3) a determination that the popular initiative to change our statutory law did not pass.
Note that the newspapers immediately reported the need for a run-off election and initially reported that the legislative and popular initiatives all passed.
However, the CEC has certified results that none of the initiatives passed. Each of these three certifications depend in part on the CEC’s assessment of the number of “votes cast.”
You can see the raw numbers on the Saipan Tribune’s website: here
The Run-Off Election
There were 13,536 votes cast for governor/lieutenant governor candidates. These candidates run in teams, pursuant to our CNMI Constitution. It's very clear no candidate got more than 50% of the vote.
P.L. 16-43, codified at 1 CMC § 6509, became law in July 2009, to effectuate the House Legislative Initiative 15-16, S.D. It provides as follows:
This language is very clear: it speaks of votes, it describes the votes as both cast and counted, and it limits the votes to those made for “that” office (meaning the offices of governor/lieutenant governor).
What are votes? When is a vote cast? When is it counted? These are the questions that seem basic and easy to answer.
A vote is generally described as an elector’s choice in an election. It is distinguished from the “ballot” which is the means or method for making the vote known. “Ballots” can be paper with ink or pencil or punch holes or they can be mechanical or electronic signals given from voting machines—and the purpose of the “ballot” is to signify or express the “vote,” which is the choice of the voter/elector.
The United States Supreme Court discussed the difference between votes and ballots in the case of Gutierrez v. Ada, 528 U.S. 25 (2000), which arose out of an election contest in Guam. The Court took the case to resolve the different interpretation that the 9th Circuit had given to the phrase “votes cast” , reading it to include the number of ballots cast in the general election, and not just the votes in the Governor/Lieutenant Governor race; the 3rd Circuit had interpreted the phrase as it applied to the Virgin Islands elections in Todman v. Boschulte, 694 F.2d 939 (3rd Cir. 1982) as limited to votes actually cast in the race, and not to the total number of ballots.
In Gutierrez v. Ada, the U.S. Supreme Court looked at the Guam Organic Act and its language calling for a runoff between the top two gubernatorial slates if one did not get a majority of the votes cast. The U.S. Supreme Court said that:
This case was decided before we passed our CNMI Constitutional initiative and the enactment of P.L. 16-43.
It helps us understand our law, which includes not only the same phrase “votes cast” but adds the specific language “and counted for that office.” It is clear that in the CNMI, for our run-off election, our law only includes the votes cast in the governor/lieutenant governor election; that votes that are not counted –because they are over-votes or the voter is disqualified, for example—are not part of the equation in determining whether a candidate has reached the 50% mark. For those who do not select any candidate in the race, their under-vote is not added into the equation either, as not being a “vote,” or not being a “vote cast,” or not being a “vote cast and counted.” It doesn’t really matter for this law, which particular reason keeps their vote out of the exchange.
Constitutional amendment by Legislative Initiative
The Saipan Tribune election results show that
9,412 votes were counted on the House Legislative Initiative 15-3, of which 5353 were YES.
9,708 votes were counted on the House Legislative Initiative 16-11, of which 5644 were YES.
9748 votes were counted on Senate Legislative Initiative 16-11, of which 5476 were YES.
Article XVIII, section 3 of the CNMI Constitution provides the means for changing the CNMI Constitution by Legislative Initiative.
After the Legislature passes a proposed constitutional change, the people vote on it. Article XVIII, section 5.
This has been part of our CNMI Constitution since it was ratified in 1978, and the language pre-dates the U.S. Supreme Court decision of Gutierrez v. Ada.
These provisions use the term “votes cast” but do not have the added clarifying language of the P.L. 16-43, specifying that the votes must be countable and in the election in question.
So the analysis starts with what is a vote.
The CEC seems to be saying that our CNMI Constitution, using the phrase a “vote cast” in the context of the legislative initiative is synonymous with a ballot cast in any of the races, contests, issues of the election held.
The CEC cites no authority for its opinion. Although there are some old cases from other jurisdictions that have held similarly, those cases are based on the unique situations of those jurisdictions. They are old. And they were considered unpersuasive by the U.S. Supreme Court in the Gutierrez v. Ada case.
In a follow-up case in Guam, the Guam Supreme Court decided that over-votes were no more an expression of a vote cast than absent votes. Underwood v. Aguon, 2006 Guam 17, 2006 Guam LEXIS 18. This case also cites Bush v. Gore, 121 S. Ct. 525 (2000), where the U.S. Supreme Court considered what constituted a “vote” under federal election law.
The CNMI uses one ballot with all the election contests and races and issues on it. The CEC informed me prior to the election in response to a question I had posed that it is its policy to count votes on each ballot as much as possible. If a voter over-votes in one race, the CEC will not count those votes, but will read and count the remainder of the votes on the ballot in the other races. If a voter under-votes in a race, the CEC will count the under-vote and the votes in the other races/contest/issues correctly made on the ballot. If a voter does not vote at all in a race, the CEC will count the remainder of the votes in the races, contests, issues where votes are cast.
In other words, the CEC generally is counting votes, not ballots.
So a “vote” should mean a clear expression of an opinion on an issue or candidate; and to be “cast” it needs to be clear, legible, and submitted to the CEC during the election process.
It seems that legally, a ballot is not a “vote cast” but is rather just a ballot—a means for getting the vote cast and transmitting that information to the election officers.
The inclusion by the CEC of all ballots in the equation is the same as the CEC casting a “no” vote for every voter who did not indicate a choice on the ballot on the initiative.
Popular initiative to change the statutory law
9644 votes were counted on the Popular Initiative on the Open Government Act, of which 6597 were YES.
The CNMI Constitution Article IX provides a means for people to change the statutory law. Section 1 (d) reads:
This provision looks a lot like both the run-off provision and the constitutional amendment by initiative provision, except it is worded slightly differently again. This time, the “votes cast” is modified by the phrase “by persons qualified to vote in the Commonwealth.” This phrase makes it clear that votes of those disqualified are not put in the equation for determining the 2/3rd passage. But it doesn’t answer the basic question of what are “votes cast.”
The same analysis used above applies, I think.
Votes cast must be votes submitted in the election. The phrase “votes cast” also helps us understand that it doesn’t mean votes not cast, so that votes by those who choose not to vote, but may be registered voters, are not part of the equation.
But still the question is what is a vote? The cases cited above strongly suggest that a vote is not a ballot; a vote is an expression of choice on the candidates, race, contest, issue in question. Votes must be actual votes, and not ballots.
I disagree with the CEC’s determination.
But I also think that this issue is a legal issue, not a political issue and should be decided by our courts here.
“Votes Cast”—a question of law, not politics.
The Commonwealth Election Commission has certified results from the election held November 7, 2009. It has included in its certification 1) a call for the run-off election between two governor/lieutenant governor teams; 2) a determination that none of the legislative initiatives to amend our CNMI Constitution passed; and 3) a determination that the popular initiative to change our statutory law did not pass.
Note that the newspapers immediately reported the need for a run-off election and initially reported that the legislative and popular initiatives all passed.
However, the CEC has certified results that none of the initiatives passed. Each of these three certifications depend in part on the CEC’s assessment of the number of “votes cast.”
You can see the raw numbers on the Saipan Tribune’s website: here
The Run-Off Election
There were 13,536 votes cast for governor/lieutenant governor candidates. These candidates run in teams, pursuant to our CNMI Constitution. It's very clear no candidate got more than 50% of the vote.
P.L. 16-43, codified at 1 CMC § 6509, became law in July 2009, to effectuate the House Legislative Initiative 15-16, S.D. It provides as follows:
“...a runoff election for governor and lieutenant governor is required if no candidate receives a majority of the votes cast and counted for that office.”
This language is very clear: it speaks of votes, it describes the votes as both cast and counted, and it limits the votes to those made for “that” office (meaning the offices of governor/lieutenant governor).
What are votes? When is a vote cast? When is it counted? These are the questions that seem basic and easy to answer.
A vote is generally described as an elector’s choice in an election. It is distinguished from the “ballot” which is the means or method for making the vote known. “Ballots” can be paper with ink or pencil or punch holes or they can be mechanical or electronic signals given from voting machines—and the purpose of the “ballot” is to signify or express the “vote,” which is the choice of the voter/elector.
The United States Supreme Court discussed the difference between votes and ballots in the case of Gutierrez v. Ada, 528 U.S. 25 (2000), which arose out of an election contest in Guam. The Court took the case to resolve the different interpretation that the 9th Circuit had given to the phrase “votes cast” , reading it to include the number of ballots cast in the general election, and not just the votes in the Governor/Lieutenant Governor race; the 3rd Circuit had interpreted the phrase as it applied to the Virgin Islands elections in Todman v. Boschulte, 694 F.2d 939 (3rd Cir. 1982) as limited to votes actually cast in the race, and not to the total number of ballots.
In Gutierrez v. Ada, the U.S. Supreme Court looked at the Guam Organic Act and its language calling for a runoff between the top two gubernatorial slates if one did not get a majority of the votes cast. The U.S. Supreme Court said that:
“It would be equally odd to think that after repeatedly using “votes” or “vote” to mean an expression of choice for the gubernatorial slate, Congress suddenly used “votes cast in any election” to mean “ballots cast.”
This case was decided before we passed our CNMI Constitutional initiative and the enactment of P.L. 16-43.
It helps us understand our law, which includes not only the same phrase “votes cast” but adds the specific language “and counted for that office.” It is clear that in the CNMI, for our run-off election, our law only includes the votes cast in the governor/lieutenant governor election; that votes that are not counted –because they are over-votes or the voter is disqualified, for example—are not part of the equation in determining whether a candidate has reached the 50% mark. For those who do not select any candidate in the race, their under-vote is not added into the equation either, as not being a “vote,” or not being a “vote cast,” or not being a “vote cast and counted.” It doesn’t really matter for this law, which particular reason keeps their vote out of the exchange.
Constitutional amendment by Legislative Initiative
The Saipan Tribune election results show that
9,412 votes were counted on the House Legislative Initiative 15-3, of which 5353 were YES.
9,708 votes were counted on the House Legislative Initiative 16-11, of which 5644 were YES.
9748 votes were counted on Senate Legislative Initiative 16-11, of which 5476 were YES.
Article XVIII, section 3 of the CNMI Constitution provides the means for changing the CNMI Constitution by Legislative Initiative.
“The legislature by the affirmative vote of three-fourths of the members of each house present and voting may propose amendments to this Constitution. ..."
After the Legislature passes a proposed constitutional change, the people vote on it. Article XVIII, section 5.
“a) A proposed amendment to this Constitution shall be submitted to the voters for ratification at the next regular general election or at a special election established by law.
b) An amendment proposed by legislative initiative shall become effective if approved by a majority of the votes cast...”
This has been part of our CNMI Constitution since it was ratified in 1978, and the language pre-dates the U.S. Supreme Court decision of Gutierrez v. Ada.
These provisions use the term “votes cast” but do not have the added clarifying language of the P.L. 16-43, specifying that the votes must be countable and in the election in question.
So the analysis starts with what is a vote.
The CEC seems to be saying that our CNMI Constitution, using the phrase a “vote cast” in the context of the legislative initiative is synonymous with a ballot cast in any of the races, contests, issues of the election held.
The CEC cites no authority for its opinion. Although there are some old cases from other jurisdictions that have held similarly, those cases are based on the unique situations of those jurisdictions. They are old. And they were considered unpersuasive by the U.S. Supreme Court in the Gutierrez v. Ada case.
In a follow-up case in Guam, the Guam Supreme Court decided that over-votes were no more an expression of a vote cast than absent votes. Underwood v. Aguon, 2006 Guam 17, 2006 Guam LEXIS 18. This case also cites Bush v. Gore, 121 S. Ct. 525 (2000), where the U.S. Supreme Court considered what constituted a “vote” under federal election law.
“In certifying election results, the votes eligible for inclusion in the certification are the votes meeting the properly established legal requirements.”
The CNMI uses one ballot with all the election contests and races and issues on it. The CEC informed me prior to the election in response to a question I had posed that it is its policy to count votes on each ballot as much as possible. If a voter over-votes in one race, the CEC will not count those votes, but will read and count the remainder of the votes on the ballot in the other races. If a voter under-votes in a race, the CEC will count the under-vote and the votes in the other races/contest/issues correctly made on the ballot. If a voter does not vote at all in a race, the CEC will count the remainder of the votes in the races, contests, issues where votes are cast.
In other words, the CEC generally is counting votes, not ballots.
So a “vote” should mean a clear expression of an opinion on an issue or candidate; and to be “cast” it needs to be clear, legible, and submitted to the CEC during the election process.
It seems that legally, a ballot is not a “vote cast” but is rather just a ballot—a means for getting the vote cast and transmitting that information to the election officers.
The inclusion by the CEC of all ballots in the equation is the same as the CEC casting a “no” vote for every voter who did not indicate a choice on the ballot on the initiative.
Popular initiative to change the statutory law
9644 votes were counted on the Popular Initiative on the Open Government Act, of which 6597 were YES.
The CNMI Constitution Article IX provides a means for people to change the statutory law. Section 1 (d) reads:
“An initiative petition that proposes a general law for the Commonwealth shall become law if approved by two-thirds of the votes cast by persons qualified to vote in the Commonwealth.”
This provision looks a lot like both the run-off provision and the constitutional amendment by initiative provision, except it is worded slightly differently again. This time, the “votes cast” is modified by the phrase “by persons qualified to vote in the Commonwealth.” This phrase makes it clear that votes of those disqualified are not put in the equation for determining the 2/3rd passage. But it doesn’t answer the basic question of what are “votes cast.”
The same analysis used above applies, I think.
Votes cast must be votes submitted in the election. The phrase “votes cast” also helps us understand that it doesn’t mean votes not cast, so that votes by those who choose not to vote, but may be registered voters, are not part of the equation.
But still the question is what is a vote? The cases cited above strongly suggest that a vote is not a ballot; a vote is an expression of choice on the candidates, race, contest, issue in question. Votes must be actual votes, and not ballots.
I disagree with the CEC’s determination.
But I also think that this issue is a legal issue, not a political issue and should be decided by our courts here.
Thursday, November 5, 2009
Voting on Initiatives--one by one-#3.
Public Initiative to extend the Open Government Act (OGA) to apply to the Legislature. I don't have a link to the full text. If someone has that, please let me know.
This is the initiative spearheaded by Rep. Tina Sablan.
It changes the law as follows:
1. deletes the exception for the Legislature in the OGA
2. that means, the Legislature will have to prepare agendas, give notice 72hours in advance of sessions, allow public comment, and respond within 10 days to requests for public records;
3. there is an exception to the 72 hour notice requirement for emergencies, provided the reasons for calling the session emergency are stated in writing, 2/3 of the members agree it is an emergency, and there is an emergency agenda, etc. that eventually gets filed in the public record.
The pros are obvious--we get a more transparent government and greater ability to participate in our democracy.
There seem to be no cons in my opinion.
The OGA originally applied to the Legislature; there seems to be little reason it can't apply now.
The CEC brochure on the OGA initiative lists some cons that I'll address.
* The 72 hour notice would require new notice if discussion is continued over to another day. Really? I don't think so. I don't know of any legal opinion that supports this interpretation. In courts of law, when notice is required, if it's given and the matter is conintued, no new notice is generally required.
* If the Legislature mistakenly fails to give proper notice the act is null and void. Yes. This is not a con--this is good. We want all of our Legislators in on the process; we want the public to know about it. We want to stop secrecy and lies and quick deals behind closed doors that do not face public scrutiny.
* The 2/3rds rule may be hard to obtain in times of emergency. I think this could be true, but I also think that this rule is designed to prevent false "emergency" declarations--like we're seeing all the time from the executive branch. To me, this is not so much a "con" to the amendment as a reason to do some planning. I think the Legislature can and should prepare some contingency plans for dealing with emergencies, having participation by cell phone, etc.
* Requiring notice will decrease the likelihood that legislators will meet outside of committee members to discuss matters. This is pure B.S. The rule applies to official meetings--not informal discussions between legislators.
* The legislators and their assistants will have bigger workloads. Another piece of B.S. Paper or electronic notice is not significantly difficult; and the potential input from legislators who are prepared because they got notice, and from the public, means that we'll have a better chance to have good laws that won't need amending every few months.
For me, this is a really clear and very much needed amendment--This is a vote yes on the public initiative to extend the OGA to apply to the Legislature.
This is the initiative spearheaded by Rep. Tina Sablan.
It changes the law as follows:
1. deletes the exception for the Legislature in the OGA
2. that means, the Legislature will have to prepare agendas, give notice 72hours in advance of sessions, allow public comment, and respond within 10 days to requests for public records;
3. there is an exception to the 72 hour notice requirement for emergencies, provided the reasons for calling the session emergency are stated in writing, 2/3 of the members agree it is an emergency, and there is an emergency agenda, etc. that eventually gets filed in the public record.
The pros are obvious--we get a more transparent government and greater ability to participate in our democracy.
There seem to be no cons in my opinion.
The OGA originally applied to the Legislature; there seems to be little reason it can't apply now.
The CEC brochure on the OGA initiative lists some cons that I'll address.
* The 72 hour notice would require new notice if discussion is continued over to another day. Really? I don't think so. I don't know of any legal opinion that supports this interpretation. In courts of law, when notice is required, if it's given and the matter is conintued, no new notice is generally required.
* If the Legislature mistakenly fails to give proper notice the act is null and void. Yes. This is not a con--this is good. We want all of our Legislators in on the process; we want the public to know about it. We want to stop secrecy and lies and quick deals behind closed doors that do not face public scrutiny.
* The 2/3rds rule may be hard to obtain in times of emergency. I think this could be true, but I also think that this rule is designed to prevent false "emergency" declarations--like we're seeing all the time from the executive branch. To me, this is not so much a "con" to the amendment as a reason to do some planning. I think the Legislature can and should prepare some contingency plans for dealing with emergencies, having participation by cell phone, etc.
* Requiring notice will decrease the likelihood that legislators will meet outside of committee members to discuss matters. This is pure B.S. The rule applies to official meetings--not informal discussions between legislators.
* The legislators and their assistants will have bigger workloads. Another piece of B.S. Paper or electronic notice is not significantly difficult; and the potential input from legislators who are prepared because they got notice, and from the public, means that we'll have a better chance to have good laws that won't need amending every few months.
For me, this is a really clear and very much needed amendment--This is a vote yes on the public initiative to extend the OGA to apply to the Legislature.
Tuesday, May 19, 2009
Ironic?
Did any one else find this bit in yesterday's Saipan Tribune ironic?
Governor Fitial HAS been listening to Tina Sablan, after all! While he denies that the people of the CNMI have a right to know what our CNMI government is spending to fight federalization, he is insisting we have a right to know how much the US government is spending to implement it.
Hahaha!
I think we have a right to know about all of it--both the CNMI and US expenditures.
Judge Wiseman is moving cautiously, but he is moving the Open Government Act case toward final resolution.
No more delays!
The governor said the Subcommittee and the people of the Commonwealth are entitled to know exactly how much Fiscal Year 2009 funding has been spent to prepare for the implementation of federalization, how much more will be expended in the remaining months of FY 2009, and whether DHS is depending in part on funding being sought for FY 2010, “buried somewhere in the Department's request for $55.1 billion.”
Governor Fitial HAS been listening to Tina Sablan, after all! While he denies that the people of the CNMI have a right to know what our CNMI government is spending to fight federalization, he is insisting we have a right to know how much the US government is spending to implement it.
Hahaha!
I think we have a right to know about all of it--both the CNMI and US expenditures.
Judge Wiseman is moving cautiously, but he is moving the Open Government Act case toward final resolution.
No more delays!
Wednesday, March 18, 2009
341. Some Refreshing Perspectives
Senator Frica Pangelinan has a good commentary in today's papers. She discusses the incongruity of the Governor's statements (first blaming fiscal problems on the lack of a budget and now on the passage of a budget), his willingness to use deficit spending, and her view of the importance of looking to the future and embracing needed changes.
My favorite part of her opinion:
There's also another good letter in the Tribune, from Jim Rayphand (and at present no link available to it). He makes the point that age is not the yardstick for measuring who has beneficial attitudes for government service, that the young as well as the old can be wedded to a system of perks and privilege, and that other people of all ages can embrace transparency in government.
He votes for transparency and shares a bit about the recent problems of the CNMI Council on Developmental Disabilities.
And so, kudos to both Frica and Jim. Although there is much work to be done, there is also some progress, some bits of sanity and good governance cropping up in our CNMI local government terrain.
My favorite part of her opinion:
So, do we continue to desperately scramble to preserve the two-tiered system that crowds our government offices with personnel, and our private sector with guest workers? Do we keep fighting minimum wage increases? Do we continue to resist a “federalization” that can open up jobs for locals in the private sector?
I say no.
There's also another good letter in the Tribune, from Jim Rayphand (and at present no link available to it). He makes the point that age is not the yardstick for measuring who has beneficial attitudes for government service, that the young as well as the old can be wedded to a system of perks and privilege, and that other people of all ages can embrace transparency in government.
There is growing talk about the younger generation of upstarts causing the tremor that is to be a cleaner, more open government. The fact is, age has nothing to do with the movement in that direction--there are just as many, if not more, young knuckleheads as there are old ones. Since ever since, numerous people in the government have been beating their heads against the same guarded walls of territorialiasm and other hollow-blocks of self-inflated egos. The endeavor is not new, but if the younger generations are to make any significant headway in the quest for better governance, they will need to connect with and build on existing foundations from the inside out...
He votes for transparency and shares a bit about the recent problems of the CNMI Council on Developmental Disabilities.
And so, kudos to both Frica and Jim. Although there is much work to be done, there is also some progress, some bits of sanity and good governance cropping up in our CNMI local government terrain.
Tuesday, October 28, 2008
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
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!
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!
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