Unheard No More!

News from Washington, D.C.

2009-07-14T21:33:00.007+10:00

July 13, 2009

Congressman Sablan has pushed through some major accomplishments on behalf of the CNMI in a very short time - funding for education programs, visiting CODELs, a $2 million increase in food stamp allocations, $3 million for a DEQ coral protection program, a HUD grant, an energy program recovery grant, increase in CNMI numbers to military academies, Veterans Affairs outreach health grant, solar energy project at American Memorial Park to name some.

The introduction of legislation that would open a Job Corps. Center in the CNMI should be received as extremely good news. Jobs Corp. is a program that educates and trains young adults and helps them find a career. I first learned about this program at a National Service Learning Conference and have since referred some students to it. It is a program that has significantly changed lives. Here is the press release from Congressman Sablan:

Kilili bill opens door for NMI Job Corps Center

Washington, D.C. – Congressman Gregorio Kilili Camacho Sablan has introduced legislation that would make it possible for the Job Corps to establish a training center in the Northern Mariana Islands. Sablan placed the bill in the hopper for new bills on Friday, as the House debated appropriations for military construction and veterans affairs in the coming fiscal year. 16 Members of Congress co-sponsored Kilili’s legislation, H.R. 3181.

“This is just another example of the many ways that the Northern Mariana Islands – and often the other insular areas – have been overlooked in national policy,” said Sablan. “The Workforce Investment Act doesn’t provide for Job Corps Centers in the islands. My bill fixes that mistake and should eventually bring new opportunities for our young people to learn a skill and find work here at home or anywhere they want to go.”

Job Corps is a free education and training program, specifically designed for at-risk youth 16 to 24 years old. Once accepted in the program trainees learn a career, earn a high school diploma or GED, and build the skills necessary for finding and keeping good jobs.

“There are 122 Job Corps Centers in the United States,” Sablan explained. “But right now the closest on to the Northern Marianas is in Hawaii. That’s a long way from home for a 16-year-old.

“I believe that with a Job Corps Center right here in the Northern Marianas – perhaps on Rota or Tinian – it would be much more likely that our young people would participate in this great program and would be set on a very productive life path.

“And a Job Corps Center in the Northern Marianas might also become a magnet for students from Guam and other parts of the Pacific, who would feel much more at home here than in Hawaii or in the US mainland.”

The bill has been referred to the House Committee on Education and Labor. Among the co-sponsors are the Committee Chairman, George Miller (D-CA), Dale Kildee (D-MI), Chair of the Subcommittee on Early Childhood, Elementary and Secondary Education, and Lynn Woolsey (D-CA), Chair of the Subcommittee on Workforce Protections. Sablan is a member of the Education and Labor Committee and both of these Subcommittees.

“I am very grateful for support of Mr. Miller, Mr. Kildee, and Ms. Woolsey. It gives me great hope that H.R. 3181 may move rapidly through the House. And I am also very appreciative of the other Members who gave their support to my continuing efforts to bring learning opportunities of all kinds to the people of the Northern Marianas.

Job Corps employs a holistic career development training approach. Trainees are active participants in designing their own program of study. The Job Corps experience integrates academic and vocational studies together with practice in employability skills and social competencies. Students learn both in classrooms and in practical, hands-on work situations so that they are well-prepared for stable, long-term, high-paying jobs.

“I truly believe that we have to think about the long-term well-being of the Northern Marianas – 30, 50 years down the road. Education has to be the key to a successful future for all of us. So I will keep looking for ways to use the Northern Marianas seat in Congress to create more educational opportunities for our people.”

No News

Perhaps the biggest news from Washington, D.C. is that there is still no news on the ruling expected from Judge Friedman in the anti-federalization lawsuit filed by Governor Fitial September 12, 2008. The hearing was held March 12, 2009. Two Washington, D.C.-based attorneys told me that 3 to 4 months is the norm in a case like this, explaining that the district court judges have huge caseloads. My hope is that the case will be dismissed this month.

Also, there is no news on the federal regulations for the transitional guest worker program and the foreign investment polices. Will July be the month that the regulations are released?

Cheney in the Crosshairs

2009-07-11T10:41:00.005+10:00

July 12, 2009

Surveillance Report released

There are some interesting revelations in the Unclassified Report on the President's Surveillance Program released Friday. The report was written by the Offices of Inspector Generals of the Department of Defense, Department of Justice, Central Intelligence Agency, National Security Agency, and Office of the Director of National Intelligence. The Surveillance Program that Bush claimed was critical in gathering intelligence to apprehend terrorists, was actually of little value according to the report.

The program began soon after the September 11, 2001 attacks and was initially authorized by Bush on September 26, 2001 as part of a classified directive. It reportedly gave the CIA authority to capture or kill al-Qaeda terrorists.

The surveillance program was renewed regularly, requiring the signature of the attorney general to certify it was legal.

A transcript of the Senate Judiciary Hearing held on May 15, 2007 reveals that former Deputy Attorney General James Comey stated that the DOJ refused to sign off on a renewal of the program in 2004. President Bush ordered White House Counsel Alberto Gonzales and Chief of Staff Andy Card to go speak to Attorney General John Ashcroft who was in intensive care in the hospital in March 2004. Both Ashcroft and Deputy AG Comey (who was acting AG since Ashcroft was severely sick) refused to certify the warrantless surveillance program. It was quite the drama according to the transcript.

Central Intelligence Agency Director Leon Poletta claimed that former Vice-president Dick Cheney ordered that information about the secret program be withheld from Congress. Under the National Security Act, the president is required to ensure that intelligence committees “are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity.”

From the New York Times:

In the eight years of his vice presidency, Mr. Cheney was the Bush administration’s most vehement defender of the secrecy of government activities, particularly in the intelligence arena. He went to the Supreme Court to keep secret the advisers to his task force on energy, and won.

A report released on Friday by the inspectors general of five agencies about the National Security Agency’s domestic surveillance program makes clear that Mr. Cheney’s legal adviser, David S. Addington, had to approve personally every government official who was told about the program. The report said “the exceptionally compartmented nature of the program” frustrated F.B.I. agents who were assigned to follow up on tips it had turned up.

From CNN:

The program was hugely controversial when Bush acknowledged its existence in 2005. Critics said the program violated the Foreign Intelligence Surveillance Act, a 1978 law passed to rein in the wiretapping abuses of the Watergate era.

Bush's approval allowed the National Security Agency to intercept communications between people in the United States and overseas who were suspected of having ties to terrorists without getting a court order. He and other officials said the program "prevented attacks and saved lives," as Vice President Dick Cheney put it in a May speech critical of their successors in the Obama administration.

But Friday's report found that the intelligence gathered was only a small part of counterterrorism work, and most intelligence officials interviewed for the report had trouble "citing specific instances where PSP reporting had directly contributed to counterterrorism successes."

...A 2004 review by the Justice Department triggered a dramatic confrontation in 2004 between White House and Justice officials who concluded the program would not pass legal muster. Former Deputy Attorney General James Comey, who took part in that face-off, told investigators that the program's original authorization "involved ignoring an act of Congress, and doing so without full congressional notification."

That line drew the ire of House Speaker Nancy Pelosi, who issued a statement Friday declaring that "no president should be able to operate outside the law."

"The House Judiciary and Intelligence Committees will closely examine the findings and recommendations of the classified and unclassified reports, and will conduct appropriate oversight of electronic surveillance activities," the California Democrat said.

Sen. Russ Feingold, a Wisconsin Democrat who sits on the Senate Intelligence Committee, said the report "highlights just how outrageous and damaging the illegal warrantless wiretapping program really was."

"This report leaves no doubt that the warrantless wiretapping program was blatantly illegal and an unconstitutional assertion of executive power," Feingold said. "I once again call on the Obama administration and its Justice Department to withdraw the flawed legal memoranda that justified the program and that remain in effect today."

Probe of Bush anti-terror policies sought

U.S. Attorney General Eric Holder is considering an investigation of the Bush-era torture program. The Washington Post reports:

The announcement to appoint a prosecutor who may look into whether CIA interrogators operated outside the boundaries set by George W. Bush's Justice Department could come in the next few weeks, perhaps in concert with the release of an ethics report involving Bush lawyers, said the official, who spoke on the condition of anonymity because the process is continuing.

Federal law enforcement officials are obliged to investigate possible violations of anti-torture statutes and other criminal laws. That makes it difficult for the Obama administration to ignore material gleaned from watchdog reports, the International Committee of the Red Cross and other sources, former government lawyers said.

More revelations are expected to surface in upcoming weeks. The investigation that many have called for, appears imminent.

Karl Rove Testifies

2009-07-11T05:44:00.009+10:00

July 11, 2009

Former Bush aide, Karl Rove testified before the House Judiciary Committee this week in connection with the firing of nine federal prosecutors and the alleged political prosecution of former Alabama Governor Don Seigelman.

The nine prosecutors were said to have been fired to impede investigations of corrupt Republican politicians and for improper political reasons.

When the controversy broke in 2006 then U.S. Attorney General Alberto Gonzalez stated, "U.S. attorneys are political appointees, and we all serve at the pleasure of the president. If U.S. attorneys are not executing their responsibilities in a manner that furthers the management and policy goals of departmental leadership, it is appropriate that they be replaced."

Public outcry over the firings resulted in the resignation of over 12 top Justice Department officials including former U.S. Attorney General Gonzalez.

Under the agreement between Rove and the committee, none of the participants are allowed to speak publicly until all interviews are finished and transcripts have been released. The Washington Post carried this statement from Rove's attorney, Robert D. Luskin:

"I can't confirm or deny that Karl Rove was deposed by the House Judiciary," Luskin said. "The agreement establishing these interviews contemplated that they would be confidential until they were all completed, and we intend to respect that term by not commenting in any way."

From the Washington Post:

The panel, led by Chairman John Conyers Jr. (D-Mich.), is continuing to examine why the Bush administration fired nine top federal prosecutors in 2006, setting off an outcry that prompted the resignation of more than a dozen Justice Department officials including former attorney general Alberto R. Gonzales. The Justice Department's inspector general and its Office of Professional Responsibility concluded in an investigative report last year that at least some of the firings might have been executed for improper, political reasons.

The role of Rove and senior White House advisers in the dismissals has remained cloudy because the Bush administration asserted executive privilege to prevent the turnover of executive branch e-mail messages and other documents to Congress. But with the help of Obama White House Counsel Gregory B. Craig, both sides reached a compromise that paved the way for testimony by Rove. Former Bush White House counsel Harriet Miers testified quietly before the House panel earlier this summer. Lawmakers say they will publish transcripts of the closed-door sessions when all of the interviews are complete.

An internal Bush Justice Department investigation concluded that political considerations played a part in at least four of the dismissals.

The Associated Press reports that the committee sought answers as to who created the list of federal prosecutors who would lose their jobs. Previously, President Bush refused to let Rove and former White House attorney Harriet Miers testify before the committee claiming executive privilege.

One year ago this month, Rove's attorney claimed that Rove was immune from the subpoena and would refuse to testify before the Senate Judiciary Committee.

In July 2008 Senate Judiciary Chair Senator Patrick Leahy sent a letter to Rove's attorney, Robert Luskin informing him that "the U.S. District Court for the District of Columbia issued a ruling rejecting the administration’s claims that White House advisors are immune from testifying in response to Congressional subpoenas. "

From the letter:

Please advise me by next Thursday, August 7, when Mr. Rove will comply with the Committee’s subpoena by appearing and testifying before the Committee. I attach for your reference copies of my ruling of November 29, 2007, that the White House’s executive privilege and immunity claims are not legally valid to excuse Mr. Rove from testifying and producing documents, and the Committee’s bipartisan resolution of December 13, 2007, finding Mr. Rove in criminal contempt of Congress.

Attorney Robert Ruskin is associated with Patton Boggs LLP and also represents former Rep. Tom Feeney, (See the post below.)

Guam-NMI U.S. Attorney Fred Black was also said to have been demoted in 2003 because of his investigation into Abramoff-connected cases. Listen to this NPR broadcast, which discusses the the issue.

Transparency issues in CNMI and U.S. Legislatures: Sablan, Feeney, Zachares

2009-07-10T23:00:00.016+10:00

July 10, 2009

Congratulations to Representative Tina Sablan and supporters for gathering enough signatures to get a popular initiative placed on the ballot, which calls for the Open Government Act to apply to the Legislature.

From her message:

I am very happy to announce that as of July 9, 2009 the popular initiative to apply the Open Government Act to the Legislature has been certified by the Office of the Attorney General for placement on the ballot this November election...

The successful placement of this initiative was the result of over two years of hard work on the part of dozens of volunteer citizens committed to improving transparency in the legislature. Our thanks to all who helped collect signatures and engaged in public education and dialogue about the importance of a clean and honest government that serves us all. We also thank the diligent staff of the Commonwealth Election Commission and the Office of the Attorney General for their role in advising volunteers about initiative regulations and election law, in certifying signatures, and in ensuring that the initiative is duly placed on the ballot for voters to consider.

The certifying letter from Acting Attorney General Greg Baka indicates that the initiative that will be put on the ballot for the November 2009 election will become law if two-thirds of the voters approve it.

____________________

Court Opinion Concerning Feeney Case

Meanwhile an issue dealing with transparency in the U.S. House of Representatives was brought to light.

Yesterday the United States Court of Appeals for the District of Columbia Circuit unsealed a unanimous decision regarding grand jury subpoenas and statements made before the U.S. House Ethics Committee. It overturned a ruling by U.S. District Judge Thomas Hogan of the U.S. District of Columbia Court that ruled in favor of the DOJ in May 2008.

The case concerns former Florida Rep. Tom Feeney's statements before the House Ethics Committee concerning his questionable golfing trip to Scotland with convicted felon Jack Abramoff.

From the Court Opinion (Douglas Ginsberg, Circuit Judge:):

The Ethics Committee of the United States House of Representatives opened an investigation into whether a certain congressman had violated House Rules by accepting private funding for a trip; the congressman maintained the trip was primarily for the purpose of legislative fact-finding. After the Committee had closed the matter, the Government began an investigation into certain statements the congressman made in his responses to the Committee. Grand jury subpoenas were served upon the law firm and upon the individual lawyers who represented the congressman before the Ethics Committee. The congressman moved to quash the subpoenas on the ground, among others, that they called for testimony and documents protected by Article I, Section 6, the Speech or Debate Clause, of the Constitution of the United States, which says of senators and representatives that “for any Speech or Debate in either House, they shall not be questioned in any other Place.” The district court denied the motion to quash, and the congressman sought review in this court. We hold the congressman’s statements to the Ethics Committee are protected by the Speech or Debate Clause. Accordingly, the order of the district court denying the motion to quash is reversed, and the district court is directed to enter an order consistent with this opinion.

Legal Times, the only paper to cover this story, noted that Judge Brett Kavanaugh, one of the judges on the three judge panel that issued the ruling, called for an en blanc hearing to clarify the "scope of protection accorded to statements made during the congressional ethics investigations."

The article relates that Feeney's attorneys argued in "a rare closed door hearing in January that documents and testimony provided to the House Ethics Committee cannot be used against the congressman during a grand jury investigation."

Legal Times stated that Feeney's attorneys, Robert Luskin and Patton Boggs did not comment.

From the article:

According to the D.C. Circuit opinion, lawyers for the congressman argued that the documents the government wants to review are protected by attorney-client privilege and the work product doctrine. They also said the documents are protected congressional speech under the Constitution’s Speech or Debate Clause. The D.C. Circuit rejected the government’s position that the congressman was acting in his personal capacity—and not in a legislative one—when his lawyers provided statements to the House Ethics Committee.

After a federal grand jury began its own investigation, the congressman refused to meet with prosecutors to talk about his Ethics Committee submissions, according to the appellate court opinion. Prosecutors hit lawyers and a law firm with subpoenas compelling the release of documents and testimony submitted to the Ethics Committee.

I disagree with the Court's opinion. Any statement made during a congressional investigation should be allowed in a criminal investigation. Since truth and justice should be the basis of any investigation, it seems wrong to restrict the use of statements made before any investigatory body.

Background on Feeney

Former Rep. Tom Feeney (R-FL) has been under investigation by federal officials for his involvement in the Abramoff scandal. Feeney is one of three House members who accompanied Abramoff to Scotland on trips that included rounds of golf at the legendary Royal & Ancient Golf Club at St. Andrews.

The others are: former Rep. Bob Ney, R-Ohio, who served prison time for corruption, and former House Republican leader Tom DeLay, indicted in Texas for alleged improper fundraising, is under investigation.

Feeney claimed that his trip was paid for by the National Center for Public Policy Research, the Republican think tank that served as a clearinghouse for Abramoff funds. They denied funding the trip. The NCPPR was founded by Abramoff friend, Amy Ridenour, who was one of the first Saipan junket-takers. She pushed the CNMI anti-federalization, pro-Marianas labor agenda as an email exchange between her and Abramoff indicates. Abramoff served on the Board of Directors of NCPPR until October 2004.

After Feeney was exposed, after the FBI came knocking, and after reporters started calling, Feeney decided to consult with the Ethics Committee in 2005. He then wrote a personal check for $5,643, the alleged cost of the 2003 golf trip, and gave it to the U.S. Treasury. No punishment from the Ethics Committee; he just gave some money to the U.S. government. To make matters worse, the money he contributed represented only a fraction of the actual cost of the trip, which included the cost of of a private jet.

The criminal complaint against convicted Abramoff co-conspirator Mark Zachares, former Secretary of the CNMI Department of Labor and Immigration, reads:

16. From on or about August 9, 2003, through on or about August 14, 2003, ZACHARES, Abramoff and six other individuals, including a Member of the United States House of Representatives (Representative #3), traveled to Scotland to play golf on world-famous courses. Abramoff and his clients paid nearly all expenses for the trip for all participants, including ZACHARES and Representative #3, including costs in excess of $160,000 for private jet service between Maryland and Scotland, luxury hotel accommodations in Scotland, twice-daily golf at St. Andrews and other famous courses, meals, drinks, and local transportation.

Feeney is Representative #3. Let's see - 8 people went to Scotland, and the trip cost in excess of $160,000 so that makes each share come out to how much? He needs to donate a lot more than $5,643.

The Scotland junket wasn't the only trip Feeney took from a lobbyist. Since he became a member of the U.S. Congress in 2002, Feeney took 16 trips totaling $61,449 paid for by right wing think tanks, lobbyists, and other organizations.

In February 2003, Feeney took a trip to Asia paid for by Korea -US Exchange Council formed by Ed Buckham, former chief of staff for Tom Delay. The nine day trip included stops in Taiwan, South Korea, Hong Kong and China. The Korean - US Exchange Council was registered as foreign agent with the Department of Justice and is financed by the Korean Hanwha Group chaired by Sueng Youn Kim. Julie Doolittle, wife of Rep. John Doolittle (R-CA), also under investigation by the FBI, worked for the Korea - US Exchange Council.

Feeney traveled to West Palm Beach, Florida in November 2003. The trip was also allegedly paid for by a registered lobbying firm. In February 2007, Feeney accepted a $6,539.39 trip to Hamburg and Munich Germany paid for by the International Management and Development Institute run by APCO Worldwide lobbyist, Don Bonker. They also funded a 2003 trip to Paris, France and Stuttgart, Germany.

Feeney staffer Jason Roe said,

"Any assertion that this office knew Abramoff paid for the Scotland trip is a g--d----- lie," Roe wrote in the email being sought by the FBI. The email was quoted in a newspaper article last year."

It seems staffer Roe also enjoys traveling. Since serving for Feeney, has taken 17 trips paid for by think tanks and other organizations.

The St. Petersberg Times noted that Feeney didn't just like to accept money, he also threw money around:

Feeney paid the tab at Abramoff's Washington restaurant, Signatures, at least three times, twice when the costs were more than $2,000, according to Feeney's campaign finance reports.

Here is some background on Feeney's early political years. Tom Feeney started his political career in 1990 as a member of Florida's House of Representatives. In 1994 he ran as lieutenant governor on a ticket with Jeb Bush and lost. Feeney served as Florida's House Speaker. He played a prominent role in the Florida 2000 presidential election scandal helping to ensure that Bush stole the election from Al Gore. Feeney worked hand-in-hand with Katherine Harris, and the Abramoff's Greenberg Taurig firm hired to secure votes for Bush during the Florida recount. Raw Story reported:

Four of Abramoff’s colleagues—all of whom have left Greenberg in the wake of investigations surrounding Abramoff’s activities—were foot soldiers in the Florida recount. Two of them bragged of their recount work on their official online Greenberg biographies, which have since been removed.

Shawn Vasell noted that he was a “team leader” in Broward and Duval counties in his bio; Duane Gibson was photographed in the acclaimed “Brooks Brothers riot” of Republican operatives outside the Miami-Dade County polling headquarters; Todd Boulanger boasted of being on the Broward and Duval recount team in his profile. Also on the ground was former DeLay deputy chief of staff Tony Rudy.

Perhaps the meetings during the recount days led to Feeney's introduction to his idol, Tom Delay. Feeney was reportedly a loyal Delay follower, voting with him "almost all the time", and donating $5,000 to his legal defense fund.

Feeney was allegedly involved in a voting machine fraud scheme. The scheme involved controlling the vote in West Palm Beach, Florida. Feeney also led the controversial Florida congressional redistricting plan.

In 2001 the ACLU took Feeney to task for his "voting reform legislation". In 2002, he banned a Palm Beach Post reporter from the House floor for writing unflattering stories about Feeney's aide who used her state email account to contact lobbyists and Republican Party workers concerning Feeney campaign events.

Feeney created the Conservative check card, a wallet sized card with six conservative principles that members of Congress could check before they vote. Abramoff buddy Grover Norquist said this about the check card:

“The federal budget keeps ballooning in the face of more discussions about fiscal restraint...Conservative Check Cards make it less convenient for lawmakers to toss aside fiscal sensibility when it’s time to vote or craft legislation.”

Feeney also accepted over $5,000 in campaign contributions from Abramoff and his friends Tony Rudy, Edwin Buckham, and his wife Wendy between 2003 and 2006.

In July 2006 Feeney's real estate deals were exposed. In 2003 he bought rental property with a partner and failed to report it, which was a violation of the House rules.

Thankfully, Feeney was defeated by Rep. Suzanne Kosmos (D-FL) in the last election. It is presumed he is still under investigation for his part in the Abramoff scandal. He currently registered as a lobbyist in Florida.

___________________

Update on Feeney's Golf Partner, Mark Zachares

On April 5, 2009 I wrote a post entitled, Zachares Talking. It stated that the previously scheduled hearing date for former CNMI Department of Labor and Immigration Director, Mark Zachares was continued until today, July 10, 2009 because of his cooperation with federal investigators. There will be no hearing today.

Earlier this month, the U.S. Government filed a Motion to Continue Status Conference stating that "Mr. Zachares has been cooperating with government agents and prosecutors, including in several ongoing investigations. The government anticipates that Mr. Zachares' cooperation will continue for the foreseeable future. In the view of both parties, no issues have arisen which require the Court's intervention at this time."

The motion requested a continuance for the status conference and sentencing of no less than 90 days. The Court issssued an Order granting the motion and setting the new date of the status conference for October 16, 2009.

Hopefully, Zachares' cooperation with the federal officials will lead to further indictments. He has a lot to talk about. Officials and others in Alaska (Rep. Don Young), Florida ( former Rep. Tom Feeney), Colorado (former Rep. Bob Schaffer), California (former Rep. John Doolittle), Washington, D.C. (convicted former lobbyist Kevin Ring and other lobbyists), and the CNMI (insert your favorite Zachares-Abramoff connected conspirator's name here) should have a lot to worry about.

On July 1, 2009 a Motion to Amend the Conditions and Terms of Release for Zachares was also filed. It states:

1. On April 24, 2007, Mr. Zachares pleaded guilty to a one count information
charging him with a violation of 18 U.S.C. 371.

2. On April 24, 2007, the Court entered an Order allowing Mr. Zachares to be
released on his own recognizance pending sentencing. Mr. Zachares was ordered to and did surrender his passport to a Special Agent of the F.B.I. on that same date.

3. As a result of the continued cooperation, Mr. Zachares has not been sentenced.

4. As the Court knows, it has continued the sentencing on numerous occasions. Indeed, the parties will soon again ask the Court to continue the status conference set for July 10, 2009.

5. Since April 24, 2007, Mr. Zachares has complied with all of the requests made of
him by pre-trial services and has not missed a meeting. He has two children and a wife in the area and a good job.

6. Mr. Zachares’ supervisor has asked Mr. Zachares to travel with him to Korea at
the end of July for a one week business trip. Mr. Zachares therefore requires the return of his passport in order to travel overseas.

7. The defendant submits that he is not a risk of flight and that he will return to the
United States after the business trip to rejoin his family, continue his work, and to honor his solemn obligations to the Court.

8. The United States consents to allowing Mr. Zachares to regain the possession of
his passport. Mr. Zachares will return his Passport to the FBI upon his return from the business trip.

The Court issued an Order granting the motion.

It is intersting that Zachares has a "good job" as stated in the motion. I would have thought it would be difficult to have a good job if one is indicted on felony charges. Who would hire him? Maybe Zachares will take his supervisor on a side trip to the CNMI on his way back from Korea to visit old friends.

For more on Feeney and the court decision please visit my friend at the Anti Corruption Republican blog.

Open Government Act Case: Opening briefs filed

2009-07-10T20:38:00.004+10:00

July 10, 2009

Representative Tina Sablan has filed a response to the Office of the Attorney General's opening brief in the Open Government Act Request Case, which is now in the CNMI Supreme Court.

The July 2, 2009 opening brief from the OAG is entitled, "GOVERNOR AND LT. GOVERNOR, SANTOS AND TUDELA’S ANSWERING BRIEF." This appears to be an incorrect title since Huesman is not answering anyone and who are Tudela and Santos? Was this title taken from another case?

The arguments in this opening statement are truly weak. The only thing that is clear to me from reading this is that this appeal is a stalling tactic. The main arguments posed are in questions:

Was it error for the trial court to impermissibly shift the burden of proof?
Did the trial court err in reaching its decision while ignoring the only case on point in any jurisdiction?
Did the trial court err in relying on cases that are not analogous to the case at bar?
Was it error for the court to rule that the documents are not work product or attorney-client privileged and order them released?

The brief states that defendants, Governor Fitial and Lt. Governor Inos, claimed two exemptions for refusing to disclose the documents - attorney-client privilege and the litigation exception. The litigation exemption is the issue that is being appealed.

Representative Sablan's REPLY TO APPELLANTS’ OPENING BRIEF completely tears apart the weak and even ridiculous arguments from Huesman's opening statement. Rep. Sablan states (emphasis added):

"The trial court did not improperly shift the burden of proof onto Appellants to establish that nondisclosure was clearly unnecessary to protect a vital government function. Appellants argue that once the trial court had found that the litigation exemption provided in 1 CMC § 9918(a)(8) applied to the requested records, it should have imposed on Ms. Sablan the burden of proving that nondisclosure was clearly unnecessary to protect any vital government function pursuant to 1 CMC § 9918(c). Appellants’ argument defies common sense and logic and misinterprets case law.

Ms. Sablan cannot reasonably be expected to prove that no vital government function would be compromised in disclosure when she has not even been allowed to see those records. Moreover, case law firmly establishes that the burden of proof in justifying nondisclosure rests with the party that stands to be harmed by disclosure or benefited by nondisclosure.

She continues her argument saying:

The trial court correctly recognized that Ms. Sablan would be improperly and severely disadvantaged if it were to impose on her the burden of proving that nondisclosure was clearly unnecessary to protect a vital government function. In ordering several hearings, briefings, and an in camera review of all the requested records before determining that nondisclosure of some of the records was indeed clearly unnecessary, the trial court properly applied relevant case law, 1 CMC § 9918(c), and the express mandate of the Open Government Act to impose the burden of proof on Appellants and liberally construe the law in favor of disclosure. 1 CMC § 9901.

Rep. Sablan states that "the trial court did not erroneously ignore analogous case law cited by Appellants, but that the Appellants cited case law that is simply not analogous." She cites the cases and succinctly articulates the flaws in the opposition's arguments.

Rep. Sablan contends, "The trial court correctly and properly determined that nondisclosure of the requested records was clearly unnecessary to protect any vital government function."

She argues that merely stating that the government would suffer damage by disclosing the arguments does not make it so. From the brief:

Appellants do not and cannot articulate with any degree of persuasiveness a single reason as to why or how the requested records would impair the government’s position in the 903 litigation and thereby warrant a finding that nondisclosure is clearly necessary to protect a vital government function. Moreover, Appellants do not and cannot dispute the fact that the estimated total cost of the 903 litigation, the government’s budget generally, the salaries paid to government attorneys are already public knowledge, nor do they dispute the fact that the trial court found after in camera review that no litigation strategy or cap on expenditures would be revealed in the disclosure of the requested records. ER, at 12-13. These facts render illogical Appellants’ repeated statements that the government would suffer any disadvantage in the 903 litigation if the requested records are disclosed, let alone harm to any vital government function.

The key issue that runs through all of Rep. Sablan's documents is that the intent of the law and the people's right to transparency and open government should be upheld.

The lawsuit that was filed by Governor Fitial certainly does not have public support or the support of the legislature, yet he went ahead with it anyway, and he used public funds. Aren't the Governor, the Lt. Governor and the Office of the Attorney General really thumbing their noses at the citizens of the CNMI? Why do elected officials think that they can do whatever they want in the name of their office as long as they attach the claim that it is "for the good of the people?" Isn't this what happened when former Governor Froilan Tenorio first decided to spend millions of taxpayer dollars to pay for Abramoff to block the very legislation that Fitial is continuing to fight? Isn't this what happened when former Governor Pedro Tenorio, former Acting AG Kara and then Speaker Fitial secured a contract renewal with Abramoff in a questionable scheme that also cost taxpayers millions of dollars? What makes elected or appointed government officials think that they can conceal public records, manipulate facts, and push an agenda counter to the will of the people? Ego? Arrogance? Narcissism? Power? Or is it because until Representative Sablan came along to say that the "emperor has no clothes", few have really challenged the illegality of their acts?

The Open Government Act is not difficult to understand and the intent of it is very clear. It appears that the Governor, Lt. Governor and OAG are fighting the trial court's decision because they do not want their secrets revealed before the November election.

Representative Sablan's argument here nails it:

Indeed, it is worthwhile at this juncture to consider the vital government function served by the court system in upholding the rule of law and protecting a fundamental tenet of any democratic society – that is, the right of the people to remain informed so that they may retain control over the government that serves them. Consistent with the express mandates of the Open Government Act and public policy favoring the spirit of transparency, the government’s ability to refuse to disclose public records must be carefully weighed against the public’s right to know. “The people, in delegating authority, do 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,” and moreover, “[i]t is vital in a democratic society that public business be performed in an open and public manner so that our citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy … [and] it is vital that citizens have easy access to public records in order that the society may remain free and democratic.” 1 CMC § 9901; Mell v. New Castle. In the absence of any compelling or persuasive justifications for secrecy, the government’s insistence on nondisclosure must be struck down by this court, the judgment of the trial court must be upheld, and the requested records must be released.

If I ever needed to hire an attorney I would want someone just like Representative Tina Sablan to represent me. She may not have a law degree, but everything that she has filed in the Open Government Act case from March 3, 2009 onward has been coherently stated and makes perfect sense.

Huesman, on the other hand, has put forth extremely weak arguments. Clearly, the defendants have no case and have filed the appeal only as a means to stall and delay. What arguments can you put forth when the case is over and there are none? Only ones that "defy common sense, are "illogical", and "misinterpret the law" as Rep. Sabpan pointed out.

OGA Case: Justice Delayed (again)

2009-07-09T17:08:00.007+10:00

July 9, 2009

Supreme Court Associate Justice Alexendro Castro has delayed oral argument in the Open Government Act Request case until July 22, 2009. Assistant Attorney General Huesman requested a delay through a Motion for Continuance.

Previously Huesman requested a delay in the trial court procedures. From Defendants' Response to the May 15th Order and a Motion to Appear Telephonically:

"As this Court is aware, counsel for Defendants will be off-island until June 11, 2009. Counsel understands the Court is not inclined to grant a continuance in full and would ask permission to appear telephonically. Defendants have not used any dilatory tactics in this litigation and have attempted to be as compliant as possible. Counsel apologizes for the late filing of the Motion for Continuance, but the Court issued its scheduling order while Counsel was in route on an off-island trip, as explained in the timely-filed off-island notice, and was not aware of the hearing until late in the week."

This time the delay is to accommodate his dental appointment:

"In this case there is good cause to grant a continuance of the hearing date as counsel for Appellants has a previously scheduled dental procedure for the July 8, 2009 at 9:30 a.m. Counsel for Appellants doctor is on island for a limited time. This schedule was set originally set for June of 2008, but, was delayed for reasons beyond Counsel’s control. Upon being cleared to undergo the dental procedure, Counsel for Appellants rescheduled the procedure at the beginning of June 2009. The first appointment date that was open was July 8, 2009. This procedure has been delayed by over a year, has already been canceled once. Counsel apologizes that he didn’t inform the Court sooner, but he failed to sync his blackberry and didn’t discover the conflict until after business hours on Friday. Counsel for Appellants would ask that the hearing be rescheduled to the end of the week or the beginning of next week."

It appears that, like the Office of the Attorney General, the Supreme Court has decided to ignore the provision of the Open Government Act request that demands expediency within the Court system. From the Open Government Act Request:

§ 9916. Violations: Mandamus or Injunction.

(a) Any person may commence an act either by mandamus or injunction for the purpose of stopping violations or preventing threatened violations of this chapter by members of a governing body.
(b) Accelerated Hearing: Immediate Compliance.
(1) Whenever an action is filed to enforce the provisions of this section, the court shall set an immediate hearing, giving the case priority over other pending cases.

The original intent of the Open Government Act appears to have been trampled by the Governor's Office and Finance Office and Office of the Attorney General since the original request was submitted. From the Open Government Act:

§ 9901. Legislative Declaration

The Legislature finds and declares that all public commissions, boards, councils, committees, subcommittees, departments, divisions, offices, and all other public agencies of this Commonwealth exist to aid in the conduct of the people’s business”

“The people of this Commonwealth do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do 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 insist on remaining informed so that they may retain control over the instruments they have created.

The provision requiring open meetings and open records shall be liberally construed, and the provisions providing for exceptions to the open meetings requirements and open records requirements shall be strictly construed against closed meetings and nondisclosure of records.

The Office of the Attorney General declared in their Motion to Withhold Documents:

Defendants wish to address a preliminary matter and clarify that Ms. Sablan’s request for documents is in her personal capacity, not her capacity as a legislator. If Ms. Sablan’s committee, or any proper committee of the Legislature, wishes to examine these documents, it is not only their right, but their responsibility, to do so. That this responsibility has not been exercised to date, by any committee of the Legislature, does not provide an excuse to abrogate a statute.or.

It is obvious that the OAG has been protecting the governor who has refused to disclose details of the funding and contracts related to the anti-federalization lawsuit and the OAG appears to be ignoring the intent of the Open Government Act. The Supreme Court is obviously ignoring the provision calling for expediency in hearing the case.

I am not aware of any legislative committee exercising their right to review the documents that the OAG and Governor's Office have fought to keep secret. Perhaps it is time for the legislature to request to examine all of the related documents.

Tony Babauta New DOI Assistant Secretary for Insular Areas

2009-07-08T03:06:00.007+10:00

July 6, 2009

Tony Babauta, a native son of Guam, who served as the Staff Director for the House Natural Resources Committee, has been appointed as the DOI's Assistant Secretary of Insular Areas.

The Department of Interior's Press Release:

Salazar Applauds President Obama’s Intent to Nominate
Tony Babauta as Assistant Secretary for Insular Areas

WASHINGTON, D.C.—Secretary of the Interior Ken Salazar today praised President Obama’s announcement that he intends to nominate Tony Babauta as Assistant Secretary for Insular Areas. The nomination is subject to Senate confirmation.

Babauta is now a senior advisor to the Secretary and previously served as the staff director for the Subcommittee on Insular Affairs, Oceans and Wildlife in the United States House of Representatives.

“Tony’s vast experience and his familiarity with both the people and the policies of the U.S. territories and other U.S.-affiliated island nations make him an excellent choice for the position of Assistant Secretary for Insular Areas,” Secretary Salazar said. “As a native of Guam, Tony will be the first person in this position to hail from any one of our U.S. territories. The Department looks forward to the outstanding leadership he will provide.”

In his congressional position, he advised the full Natural Resources Committee on policies affecting the U.S. territories of Guam, American Samoa, the United States Virgin Islands, Puerto Rico and the Commonwealth of the Northern Mariana Islands as well as the freely associated states of the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau.

Babauta was instrumental in advancing the renegotiated compact with the Republic of the Marshall Islands and the Federated States of Micronesia, the Guam war claims legislation, and the political advancement of Puerto Rico. He also oversaw the subcommittee’s jurisdiction and responsibilities toward the Department of the Interior. Babauta has maintained close working relationships with island leaders who include presidents, governors and ambassadors.

Babauta joined the Natural Resources Committee in 1998 as professional staff under its then-ranking Member, Rep. George Miller. His service to the committee continued under then Ranking Member and now chairman, Rep. Nick Rahall.

Brian Modeste House Committee on Natural Resources Counsel and Tony Babuata, newly appointed DOI Assistant Secretary for Insular Areas

Press Release from the House Natural Resources Committee:

Rahall and Bordallo Statement on Tony Babauta Appointment as Assistant Secretary for Insular Areas

July 6, 2009

Washington, D.C. - House Natural Resources Committee Chairman Nick J. Rahall (D-WV) and Subcommittee on Insular Affairs, Oceans and Wildlife Chairwoman Madeleine Z. Bordallo (D-GU) released the following statements today following an announcement that President Obama will nominate Tony Babauta as Assistant Secretary for Insular Areas of the Department of the Interior:

"President Obama and Secretary Salazar have made a wise choice in nominating Tony Babauta for the position of Assistant Secretary for Insular Areas. Born and raised on the island of Guam, and a long-time and dedicated government staffer, I know that Tony has the skills and cultural knowledge needed to help oversee public policy decisions for the people living in our U.S. territories and Freely Associated States," Rahall said.

Babauta previously worked on the House Natural Resources Committee as the Staff Director for the Subcommittee on Insular Affairs.

"President Obama has reestablished this position at the Assistant Secretary level for the first time since the Clinton Administration. The renewed focus on this position demonstrates that President Obama and Interior Secretary Salazar have a clear commitment to ensuring the best interests and needs of the insular areas are attended to at the highest levels of government," Rahall said.

Bordallo said, "I join our community in congratulating Tony Babauta on the White House announcement that President Barack Obama intends to nominate him as an Assistant Secretary in the Department of the Interior responsible for insular areas. President Obama and Secretary Salazar, in making this announcement, have signaled their commitment to the insular areas by elevating this position to an Assistant Secretary level. Tony has the professional knowledge and experience to be effective and we look forward to his future confirmation and his leadership on insular issues for the administration."

Congratulations and best wishes to Tony from our family!

OGA Lawsuit: Judge Castro Supporting Delays

2009-07-07T14:44:00.012+10:00

July 6, 2009

The OAG has filed OPPOSITION TO THE MOTION TO RECONSIDER asking the Supreme Court not to reconsider the stay to disclose documents in the Open Government Act case. Some statements from the 11-page document:

Rep. Sablan, like the trial court, insists on incorrectly placing the burden on Appellants while ignoring case law adverse to Rep. Sablan’s arguments.

This is a de novo appeal, however, and the trial court’s decision must be examined anew. Releasing the documents will not hamper that review but it will damage the government and have the effect of making the case moot.

Putting aside the fact that the Rep. Sablan’s motion seeks to avoid a de novo appeal, the trial court’s opinion she relies on is so deeply flawed that it cannot be allowed to stand. The opinion shifted the burden of proof and ignored case law in an effort to come out differently then the only other case on point.

Assistant AG Huesman also requested that there be a continuance because he has another appointment - this time a dental appointment. he also asked for a continuance when the case was in the trial court. In his Motion for Continuance Huesman asks that the hearing scheduled for July 8, 2009 be continued to July 10th or July 13th.

I find this extremely disturbing since under the regulations of the Open Government Act stress that priority should be given to Open Government Act cases. Are we to believe that only Huseman can argue this case? Acting Attorney General Baka is also clearly involved in this case. Apparently neither the OAG or Judge Castro observe the requirement of the law that states (emphasis added):

§ 9916. Violations: Mandamus or Injunction.
(a) Any person may commence an act either by mandamus or
injunction for the purpose of stopping violations or preventing threatened
violations of this chapter by members of a governing body.
(b) Accelerated Hearing: Immediate Compliance.
(1) Whenever an action is filed to enforce the provisions of this
section, the court shall set an immediate hearing, giving the case
priority over other pending cases.

The scheduled July 8th hearing was already a month after appeal was accepted and now this judge has issued this ORDER GRANTING MOTION TO RESCHEDULE HEARING ON MOTION FOR RECONSIDERATION OF STAY, which states:

On July 7, 2009, defendants-appellants requested that this Court continue a hearing scheduled for July 8, 2009 on plaintiff-appellee motion for reconsideration of this Court's order staying the decision of the trial court in this case. For cause shown, defendants-appellants' motion to continue the hearing is hereby GRANTED.

The hearing on plaintiff-appellee motion for reconsideration is hereby taken off calendar until further notice. SO ORDERED this 7th of JULY 2009.

Now there is not even a date for the hearing? What does immediate mean to these people? It appears that neither the OAG nor the judge want to follow the rule of the Open Government Act. Delay, delay, delay. Why is this acceptable?

A look at the timetable:

October 16, 2008 - Representative Christina Sablan sent an OGA request to Governor Fitial requesting information on the funding and contracts related to his anti-federalization lawsuit filed without approval or endorsement of the CNMI Legislature in the U.S. District Court of the District of Columbia in September 2008.
October 24, 2008 - Acting AG Gregory Baka responded with an official reply on behalf of governor refusing to disclose information.
December 11, 2008 - Rep. Sablan sent an OGA request sent OGA request to Finance Secretary Eloy Inos requesting information on the funding and contracts related to the lawsuit.
The December 19, 2008 letter from Inos stated the refusal to disclose the requested information.
March 3, 2009 Rep. Sablan filed Petition for Mandamus, Declaratory and Injunctive
Relief, and Other Relief against Fitial, Inos and Baka for disclosure of records.
Associate Judge David Wiseman sets immediate status conference for March 5, 2009.
March 20, 2009, the OAG requests a dismissal in the case
March 26, 2009 Rep. Tina Sablan filed a Response to Defendant's Motion to Dismiss.
March 27, 2009 Associate Judge Wiseman issued an Order Granting in Part Defendant's Motion to Dismiss, which dismissed Acting AG Baka as a defendant.
April 6, 2009 the Office of the Attorney General filed a Motion to Withhold Documents
April 8, 2009 Rep. Tina Sablans files a Response to Defendants' Motion to Withhold Documents.
April 15, 2009 Associate Judge Wiseman issued an "Order Releasing Portion of the Requested Documents". The judge orders that a privilege log must be created by defendants to list the documents the OGA requested and the defendant must produce all documents within 7 days of this order except 1) The Engagement Letter; 2) Billing documents and statements sent to CNMI for 903 Litigation; and 3) Payments made by CNMI to attorneys for 903 Litigation.
April 21, 2009 Rep. Tina Sablan received a letter from Assistant Attorney General Huesman stating that of the documents Associate Judge Wiseman approved for release, only the current contract of Howard Willens would be released.
April 24, 2009 Huesman files the Privilege Log.
May 13, 2009 Huesman files a continuance until the second week in June.
May 14, 2009 a Status Conference Statement and a Statement of Account was filed by Huesman.
May 15, 2009 Associate Judge David Wiseman issues an order granting a partial continuance until June 4, 2009, submission of documents for in-camera review, and order to clarify the governor's account number. In his order he states (emphasis added):

On May 13, 2009, Counsel Huesman requested a continuance in this matter until the second week of June. The Court found good cause for the motion and granted a partial continuance thereby only discussing a portion of the pending issues in this case at the hearing on May 14th. As noted at the hearing, the Open Government Act provides for an expedited litigation schedule. In view of this, the Court has exercised diligence in efforts to comply with the expedited scheduling required by the law. Thus, while an additional short continuance will be granted, Counsel’s request to postpone this matter until mid-June cannot be accommodated.

May 2009 Assistant Attorney General Brad Huesman filed Defendants' Response to the May 15th Order and a Motion to Appear Telephonically. (undated)
June 4, 2009 Associate Judge Wiseman issues a tentative ruling releasing some of the documents:billing invoice summaries, voucher payments, and government account ledgers that deal with the federalization lawsuit.
June 18, 2009 Associate Judge Wiseman issues an Order to release most of the documents in Rep. Tina Sablan's Open Government Act request saying, "revealing what the CNMI is being billed and what the CNMI is paying, in no way disadvantages the CNMI in the 903 Lawsuit. This Court is unable to articulate a single reason that would make nondisclosure necessary to protect a vital government function."
June 19, 2009 Huesman filed Defendant's Motion for a Stay Pending Appeal in the Superior Court.
June 19, 2009 Associate Judge Wiseman issued an Order Denying Defendants' Motion for Stay Pending Appeal.
June 2009 Huesman filed a Notice of Appeal (two incorrect dates on document).
June 19, 2009 Associate Supreme Court Judge Alex Castro issued an Order Granting the Stay.
June 26, 2009 Representative Tina Sablan filed a Motion to Reconsider.
July 2, 2009 Assistant Attorney General Braddock Huesman filed an Opening Brief.

For nearly 10 months Representative Sablan has fought to obtain very basic information under the Open Government Act. The intent of the law is being trampled by the failure of the Supreme Court to acknowledge and abide by the provision in the law calling for expediency in court procedures related to such requests.

Villagomez Case: No acquittal, no dismissal

2009-07-07T01:59:00.006+10:00

July 6, 2009

CNMI District Court Judge Alex R. Munson ruled that there would be no acquittal and no new trial in the CUC-Rydlyme case. Former Lt. Governor Timothy Villagomez, his sister Joaquina Santos and her husband James, the former Director of Commerce were found guilty of conspiracy to defraud and to commit offenses against the U.S., wire fraud, theft concerning a program receiving federal funds, and bribery concerning a program receiving federal funds. They will be sentenced on Tuesday, July 28, 2009.

In the ORDER DENYING DEFENDANTS’ MOTION FOR A NEW TRIAL, Judge Munson explained that "juror bias is analyzed under two theories-actual bias and implied bias." The order states that the evidence does not show either actual or implied bias.

The declaration of Herman Guerrero providing genealogical evidence was found "unconvincing" by the Court. The Court said this of the charts Guerrero created:

Defendants also submit family trees as demonstrative of these familial connections. (Mot., Exs. B-G.) However, the documents are not authenticated and there is no indication how the documents were created or why the Court should treat them as trustworthy sources of information. Further, the Court finds them unhelpful. The lineages are not labeled and are difficult to decipher. To the extent that they can be deciphered they appear to leave out siblings (each offspring along each generation has no listed siblings). The result is that the family trees do not include aunts, uncles, cousins, second cousins, or third cousins - all of the relations alleged in this motion.

The Court stated that documents were unauthenticated and the witness was not considered an "expert witness", but a lay witness.

This Court document filed by Attorney Quichocho shows that a total of $1,025.00 was paid to Herman T. Guerrero to do the genealogical surveys. The payment was made in three checks through the law office of Attorney Quichocho. Notes on the checks indicate that two checks totalling $700 were paid by Joaquina Santos and one check for $325.00 was paid by Kinai Santos .

(See this post for the defendants' motion.)

Judge Munson said, "The allegations in combination with the voir dire transcript do not support a colorable claim of juror dishonesty, even assuming that the familial connections are true."

He stated, "Further, although familial connections between jurors and witnesses are important, they are less concerning or problematic than relationships between jurors and the defendants or the attorneys. Witnesses play an essential role in any trial, but they are not generally affected by the outcome in the same way as the parties and attorneys are."

From the order:

The facts now before the Court are not analogous in type or severity. First, the evidence of the alleged relations is not convincing. Second, there is no evidence that the jurors were aware of these alleged relationships. And third, there is no evidence that the jurors intentionally misled the Court or the attorneys. Defendants urge the Court to consider that the jurors in this case must be biased even though the genealogical connections are attenuated because in Chamorro and Carolinian culture a second or third cousin is (or may be) a “close relative.” The argument is unconvincing. The Court finds no authority to support the assertion that the Court may apply a separate standard to Chamorro and Carolinian jurors as is applied to other races or ethnicities. In addition, even if it were true that the alleged relations are “close relatives” in the Chamorro and Carolinian cultures, it is also evident that the small number of Chamorros and Carolinians results in many people being genealogically related and either not knowing it or being vaguely aware of the familial connection. (See e.g., Voir Dire Transcript at 32 ...)

Judge Munson also stated that the allegations of prosecutorial misconduct were not sufficient.

In the ORDER DENYING DEFENDANTS’ RENEWED MOTION FOR JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE VERDICT the judge stated:

In sum, the evidence is sufficient for a rational trier of fact to find Defendants guilty beyond a reasonable doubt of each count in the indictment. Accordingly, Defendants’ motion is DENIED.

In Villagomez's Opposition to the government's Motion to Compel Disclosure and Request to Call Witnesses, Attorney David Lujan stated:

"The Government will fail in this and justice will prevail here -either in this Court or a higher Court!"

Will they appeal?

OGA Lawsuit: Brief Filed

2009-07-05T13:12:00.006+10:00

July 5, 2009

On July 2, 2009 Assistant Attorney General Braddock Huesman filed an Opening Brief in the CNMI Supreme Court on behalf of defendants Governor Fitial and Lt. Governor Inos. They are appealing the Trial Court's decision to release documents relating to the anti-federalization lawsuit filed by Governor Fitial in the U.S. District Court of the District of Columbia.

Last week Representative Tina Sablan filed a Motion to Reconsider in response to the Order Granting the Stay.

Huesman maintains that "the Governor and Lt. Governor claimed two exemptions under the Act, the attorney-client privilege and the litigation exception. Only the litigation exemption issue is being appealed."

The document also claims:

The trial court: (1) impermissibly shifted the burden to the Governor and Lt. Governor to prove that withholding the documents was clearly necessary to protect a vital government function; (2) ignored case law provided by Appellants that gave a concrete example of a court protecting billing records; and (3) relied on case law that was not analogous to buttress its erroneous conclusion.

The first argument doesn't appear to be strong since Ms. Sablan successfully proved that there was no harm in releasing the majority of the documents. In the Motion to Reconsider Ms. Sablan pointed out that "after a number of briefings and hearings on the case, including an in camera judicial review of all the requested records, Appellants were clearly unable to persuade the trial court that the billing summaries, voucher/payment records, memoranda and letters between the Governor, Secretary of Finance, and the Bank of Guam, journal entries reflecting fund transfers, and the Governor's Account Ledger should not be disclosed."

She also pointed out, "The trial court observed that the CNMI government's estimated litigation budget, government attorney salaries, and general budget are already matters of public knowledge, and that nothing in the records it had ordered for release indicated a maximum amount that the CNMI government would be willing to pay for litigation, nor would these records reveal strategy, litigation intention, or any information that would create a disadvantage for the CNMI in the 903 litigation."

Her motion states:

1 CMC § 9916(b)(3) provides that "[a] stay order shall not be issued unless the court determines that there is a substantial probability that opening the records for inspection will result in significant damage."

Under the Open Government Act, the determination of a substantial probability for significant harm is the only proper standard upon which court-ordered stays may be granted. Appellants not only fail to meet the OGA standard in their Motion for Stay, they completely ignore it, citing instead another standard that is improper in the context of the OGA for reason discussed further below.

The OGA standard for stays on court-ordered disclosure is necessarily a difficult one to meet, consistent with the express legislative intent of the Act. According to 1 CMC 8 9901, the intent of the Act is to ensure that the actions of the government be made openly, and that the people remain informed so that they may retain control over the instruments of government they have created. Further, 1 CMC § 9901 clearly provides that the Open Government Act must be liberally construed in favor of open records: "the provisions requiring open meetings and records shall be liberally construed, and the provisions providing for exceptions to the Act shall be strictly construed against closed meetings and nondisclosure of records." Exemptions are provided under 1 CMC § 9918(a), but even those exemptions are inapplicable to the extent that records may be released in redacted form to protect personal privacy or a vital government function, or to the extent that the Superior Court finds, after a hearing, that the nondisclosure of records in whole or in part would be clearly unnecessary to protect personal privacy or a vital government function. 1 CMC § 9918(b)-(c).

The second argument concerning the billing records is also not a strong argument since Associate Judge Wiseman ruled that specific billing records would not be released.

Additionally, Huesman claims, "The Department of Justice has already used one of Rep. Sablan’s letters in an effort to dismiss the 903 Litigation. There is no reason to think this won’t happen again."

Sure they could! They could question why an elected official, a respected CNMI representative, has to take the governor to court to get answers to simple questions like how is the lawsuit being funded.

It is not surprising that the DOJ used Representative's Sablan letter in their Motion to Dismiss. Fitial's lawsuit was not endorsed by the CNMI Legislature. This is a significant point since many consider it a personal vendetta rather than a lawsuit filed with the backing of the public and legislature.

There was also the legal question of the AG not representing the Commonwealth in the litigation as Rep. Sablan pointed out:

It is my understanding that the Attorney General is not a signatory to either the lawsuit, or to any of the contracts related to the lawsuit, and that the Attorney General has not explicitly approved of the lawsuit in writing. Please explain whether or not the lawsuit complies with Article III, Section 11 of the CNMI Constitution, which requires that the CNMI Attorney General “shall be responsible for providing legal advice to the governor and executive departments, representing the Commonwealth in all legal matters

When the lawsuit was filed on September 12, 2008 the Attorney General was Matt Gregory who was not involved in the anti-federalization lawsuit. Gregory resigned soon after the lawsuit was filed.

Only after the DOJ filed a Motion to Dismiss, which mentioned the relevant points made in Rep. Sablan's letter, did Acting Attorney General Greg Baka submit a letter to the U.S. District Court stating that Jenner and Block could represent the CNMI.

The Supreme Court has scheduled a hearing on the Motion to Reconsider the stay on disclosure for July 8, 2009 at 10am.

So much secrecy. So much protest. What are they hiding?

You betcha: Palin Resigns

2009-07-04T21:00:00.019+10:00

Governor Palin and Governor Fitial at the Governor's Conference

July 4, 2009

Sarah Palin, Governor of Alaska and John McCain's vice-presidential candidate has abruptly announced that she will resign from office at the end of this month. The question is why.

Elected officials must have a very good reason to abandon their post before the end of the term if they expect to maintain a career in politics. The news conference she gave yesterday left many scratching their heads.

Palin was one of the most undignified, unconventional candidates ever to hit the national political scene. I couldn't stand to listen to her (except when she wasn't Palin, but was Tina Fey). Unfortunately, I doubt that she will be leaving the airwaves after she leaves office.

From the New York Daily News:

Sarah Palin's bizarre bailout dooms her chances of ever being President, Republican mandarins said Friday - but she was already finished.

The Alaska governor's disastrous star turn as John McCain's running mate, followed by her lurching, controversial encore on the national scene, had already sealed her fate - except, perhaps, with the GOP's most far-right wing.

Still, the experts were unanimously stunned to hear her walk off the job with 16 months left in her term - shrinking her résumé even more and surrendering the best platform she has beyond her double-edged celebrity status.

"If you aspire to the highest office in the land, then suddenly think your lieutenant governor can do a better job - not exactly a profile in courage," one party pro told the Daily News.

Few GOP insiders were surprised Palin decided against running for reelection. The Alaska statehouse is too isolated a locale for any politician aspiring to high national office, they said.

"You need to be in the Lower 48 to be credible politically," a senior adviser to several Republican Presidents noted.

But quitting mid-term with a rambling rant is not the way to get there.

"She proved she couldn't play in the big leagues last fall and now she's proven it again," one of the party's most prominent kingmakers said. "If you can't even handle a governorship, there's no way you can handle the White House.

"She couldn't win - but now she can't even run," added the official, who once was among her most fervent boosters.

"She has an incredibly thin résumé, a serious lack of gravitas, no coherent philosophy and the people around her are amateurs," another top Republican pol argued. "She's finished."

Senator Lisa Murkowski (R-Alaska) had this to say:

“I am deeply disappointed that the Governor has decided to abandon the State and her constituents before her term has concluded.”

Some speculate that Palin is leaving office because she has a better gig waiting for her. Others are saying that she wants to get paid for her public appearances and perhaps even become the queen of hate radio, the female Rush Limbaugh (scary thought).

But I'm leaning towards those who claim that a scandal is looming. There have been rumors since last year that questioning improprieties in the building of the $12.5 million Wasilla Sports Complex and the Palin home.

Shannon Moore on Huffington Post reported that an "iceberg scandal" is looming:

Sarah Palin's speech this morning rocked Alaskans and people around the country. Palin's predictability is her unpredictability. I'm seeing Alaskan flags on cars, in front of houses, some citizens expressing their own Independence Day. Other citizens are angry and playing the blame game; the bloggers, the MSM, Alaskan legislators, her family under attack, etc.

For weeks the rumors of a criminal investigation against the governor have been brewing. They are rumors, but are swirling fresh again with Palin's resignation. I'm holding my breath for the other "Naughty Monkey" to drop. Another theory for the resignation is that the Palins would have to disclose the book deal as well as other financial details as governor.

...Rumors of an "iceberg scandal" have been circulating.

Resignation is certainly out of character for Sarah Palin. Senator Mark Begich had a meeting with Sarah Palin two days ago with no mention of her leaving office. Palin's press secretary, David Murrow had posted on his Facebook page Wednesday, "David Murrow is considering life's ironies." He was hired less than a month ago. Yesterday he wrote, "There's gonna be some fireworks this weekend!"

Palin's father, Chuck Heath, told Fox News that he thought her resignation was due to the negativity from the media. According to Heath, the governor was unable to be effective while she was constantly having to defend herself against ethics complaints and the media.

The Brad Blog reports that:

"I've now been able to get independent information from multiple sources that all of this precedes what are said to be possible federal indictments against Palin, concerning an embezzlement scandal related to the building of Palin's house and the Wasilla Sports Complex, built during her tenure as Mayor. Both structures, it is said, feature the "same windows, same wood, same products." Federal investigators have been looking into this for some time, and indictments could be imminent, according to the Alaska sources.

The BRAD BLOG has not been able to receive confirm from any federal sources on this. Our information comes from local Alaskans who follow Palin, and who have been keeping an eye on this for some time, while keeping it quiet at the request of federal investigators."

There's more on the Palin house-sports complex connection on The Daily Kos:

"Remember the massive, and horribly overpriced sports complex that Sarah Palin pushed through in Wasilla? Well, it seems that the sports complex contractors and architect have strong links and ties to Palin. Spenard Building Supplies was one, and wouldn’t you know, they also supplied the materials for the Palin’s home. Sure, a small connection, but get this–Spenard also was the supplier for Ted Stevens cabin. This one building supply company is involved with Palin, Stevens, the Wasilla sports complex, and is a financial contributor to Palin. Keep in mind that the sports complex was being constructed at the very same time as the Palin’s home.

This connection is neither fleeting, nor minor. This appears to be a pattern of concurrent events that makes it more and more likely that the Palin’s home may have been some sort of quid pro quo arrangement for the massive influx of money into the building supply company. An area that could reinforce this connection would be if the architect of the Wasilla sports complex, Blase Burkhart (also a contributor to Palin), had anything to do with the construction of the Palin’s home.

Another interesting twist to the story is that Sarah Palin was, at the time, also running for Lieutenant Governor, a position that could further reward those contributing to her campaign, and those that were involved with the Wasilla sports complex and the construction of Sarah Palin’s home. We know that Alaska has been a bastion of corrupt political activities."

The Juneau Empire reported that Alaska spent nearly $300K investigating ethics complaints against Palin.

Read more at The Village Voice and also The Odd Lies of Sarah Palin at the Atlantic.

Here's a transcript of her rambling resignation speech.

Photo of the Palin house from The Brad Blog

UPDATE:

The Los Angeles Times reports that Sarah Palin is not under investigation by the F.B.I.:

Despite rumors of a looming controversy after the Republican governor's surprise announcement Friday that she would leave office this month, some of them published in the blogosphere, the FBI's Alaska spokesman said the bureau had no investigation into Palin for her activities as governor, as mayor or in any other capacity.

"There is absolutely no truth to those rumors that we're investigating her or getting ready to indict her," Special Agent Eric Gonzalez said in a phone interview Saturday. "It's just not true." He added that there was "no wiggle room" in his comments for any kind of inquiry.

The FBI has been active in mounting corruption investigations in Alaska, some to see whether local, state and federal lawmakers illegally received favors, money or free construction work from businesses or people seeking favors.

So my guess would be that the self-anointed "pitbull" feels confined by the office and wants the freedom to be a full time, in-your-face spokesperson for the Republican Party.

Happy Fourth of July!

2009-07-03T21:57:00.005+10:00

July 3, 2009

How much do you know about the founding of the United States? Test your knowledge!

July 4th Quiz

1. Who was the head of the Continental Army?

Thomas Jefferson
Samuel Adams
George Washington
James Madison

2. Who wrote “Common Sense” published in January 1776?

Thomas Paine
Thomas Jefferson
Benjamin Franklin
Paul Revere

3. Who said, “We must all hang together, or most assuredly we will hang separately?”

Thomas Jefferson
John Hancock
Benjamin Franklin
John Jay

4. Who was the primary author of the Declaration of Independence?

James Madison
Thomas Jefferson
Benjamin Franklin
John Adams

5. Who is known for his midnight ride?

Samuel Adams
William Williams
Paul Revere
Benedict Arnold

6. What document officially ended the American Revolution?

Treaty of Paris 1783
Declaration of Independence 1776
Privateering Resolution 1776
Lee Resolution 1776

7. A committee of five was created to draft the Declaration of Independence. Who was not a committee member?

Benjamin Franklin
James Madison
Robert Sherman
James Madison

8. According to the Declaration of Independence, where does governance get its power?

From the Constitution
From the elected representatives
From the military
From the consent of the governed

9. How many delegates signed the Declaration of Independence?

10. Most of the signers actually signed the declaration on what date?

July 2, 1776
July 4, 1776
July 8, 1776
August 2, 1776

11. Who had a house at Mount Vernon, Virginia?

Thomas Jefferson
George Washington
James Madison
John Adams

12. Where is the original Declaration of Independence located today?

The Library of Congress
The Capitol Building
The National Archives
Independence Hall

13. The Liberty Bell was first rung in Philadelphia on what date?

July 4, 1776
July 8, 1776
July 2, 1776
August 2, 1776

14. Who said, "Give me liberty or give me death?

Thomas Jefferson

John Adams

Patrick Henry

Horatio Gates

How did you do?

ANSWERS

Department of Labor: Under attack for monkey games

2009-07-03T19:32:00.009+10:00

July 2, 2009

CNMI DOL policies are under attack once again, or should I say, still.

Attorney Robert Meyers was quoted in the Saipan Tribune, as saying, "Labor is playing monkey games again." He is questioning the policy that I questioned in this post, New Rules for Cheated workers to chase down their money, and in a July 1st post, Wiseman Orders DOL to Issue TWAs. The policy in question is the new one requiring cheated workers with wages unpaid by employers who have a bonding company to register at DOL.

From the Saipan Tribune:

Lawyer Robert Myers said the process the Department of Labor is trying to set up and use in order for alien workers to collect on Labor administrative awards through bonds is improper.

Myers told Saipan Tribune that the process that Labor is poised to implement is in violation of Labor laws, rules and regulations, specifically for old bond cases.

“They're playing monkey games again,” the lawyer said. Myers is counsel for the 127 alien workers who filed a class action against Labor and some of its key officials over the bonding issue.

Labor has been notifying those alien workers with administrative awards to go to Labor and register their bond claims with the Complaint Intake Section. Labor said awards in some of these cases may be covered by labor bonds.

Myers said Labor “appears to be creating a process with so much delay in the hopes that a nonresident worker will lose all hope, give up, and decide to go back home.”

Myers said the problem with this situation is that the old bonds are not covered under Public Law 15-108. Rather, the applicable bonds fall under the purview of the old law, the Nonresident Workers Act of 1983 and its accompanying Alien Labor Rules and Regulations, where collections of administrative orders and awards are much simpler and efficient.

Myers said in its publication, Labor expressly shows the bond cases are old cases.

The publication from the newspaper does reveal that Attorney Meyers is correct, these are old cases. In fact, some of the old cases may not even be on here. Attorney Meyers said there are at least two reasons that PL 15-108 can not be applied to the bonding cases:

The lawyer said those old bond cases came well before the effective date of P.L. 15-108, and the new labor law expressly states that P.L. 15-108 is to be applied prospectively (forward) rather than retroactively (backward).

He said there is also a “savings clause” in P.L. 15-108, which provides that the new law cannot affect cases, rights, interests, etc., that came from the “past” or before the new law took effect.

Therefore, he said, Labor cannot properly hold the hearings to collect the unpaid wages, liquidated damages etc. using P.L. 15-108.

It seems that the DOL is always playing catch up and making rules as they go along.

In related news it was reported that DOL is "stepping up closure notices of complaints to close cases." This practice denies the cheated workers of due process. Claiming a case is "closed" or "settled" does not mean that it is. A case is closed when the cheated workers receives the monetary award from the judgment in the administrative order.

From the Saipan Tribune:

The Department of Labor continues to publish closure notices of Labor complaints in efforts to clean up case backlogs.

Labor Deputy Secretary Cinta Kaipat told Saipan Tribune yesterday that a case closure notice informs the public and the parties that the case is over.

“If a party did not get a notice of the hearing, then they can come back and ask to have the case reopened. We do not foreclose the opportunity for a hearing on disputed matters without notice,” Kaipat said.

Last week, Labor published another notice of dismissal of 75 Labor cases. The department said each of the 75 cases has been adjudicated or dismissed by the Labor Administrative Hearing Office.

In that notice, Labor stated that any complainant who was awarded money damages and has not been paid should go to Labor's Complaint Intake Section and fill out a declaration. Complainants who have not been paid are given until July 30, 2009 to report to the Complaint Intake Section.

The DOL appears to once again be dismissing open cases . That way they can call the foreign contract workers who are waiting for their money overstayers. Next they will publish an "overstayers list", as they have in the past.

The pencil pushers at the DOL appear proud that they finished their paperwork:

Kaipat said if a business wants confirmation that a worker's case is over, they can rely on the published notice.

Kaipat said the notices they recently published are 2008 Labor cases.

“I am very pleased that we met our performance benchmark and finished all the 2008 Labor cases within six months of the end of the calendar year in which they were filed,” she said.

My advice for cheated workers who are still waiting for unpaid judgments is to get an attorney right away. If you can't find one, ask DOL Deputy Secretary Cinta Kaipat to give you the name of a pro bono attorney. In a recent DOL-issued document attacking a 2008 report that I wrote, DOL stated that:

There are protections for workers who may have claims and fear retaliation:
Pro Bono Legal Assistance:

Lawyers in private practice make their time available on a pro bono basis to represent workers before the Labor Department and the courts.

Among other things, I asked DOL for the names of the pro bono attorneys so that I can share the list with the foreign contract workers who have cases and NO money to pay an attorney. DOL has not gotten back to me with that list.

It is disheartening that for two decades the U.S. government has been aware of the dysfunctional CNMI Department of Labor system with its shady practices that deny both constitutional rights and due process and routinely allows for cheated workers to remain cheated and unscrupulous employers to walk away when they have violated labor law. It is amazing that this department has not been taken to task by the U.S. Department of Justice, the U.S. Department of Labor or the Commission on Civil Rights.

OGA Lawsuit: Hearing Scheduled

2009-07-02T20:47:00.004+10:00

July 2, 2009

From Representative Tina Sablan:

Open Government Act Lawsuit Update

On June 19, the Supreme Court granted the government's request for a stay on the Superior Court's order releasing certain records showing funding sources and expenditures for the Governor's federalization lawsuit. Had the stay not been granted, the government would have had to turn over the records within 48 hours of the Superior Court's order (that is, by June 20, 2009), as required by the Open Government Act. The OGA provides that stays on disclosure shall not be granted "unless the court determines that there is a substantial probability that opening the records for inspection will result in significant damage." In granting the stay, the Supreme Court said that it was unable to make such a determination, and ordered the government to file its opening brief on July 2 and me to file my brief by July 10. On June 26, I filed a motion asking the court to reconsider its order and lift the stay. Both the order granting the stay, and the motion to reconsider are attached in this email.

Today the Supreme Court scheduled a hearing on July 8 at 10am to take up the Motion to Reconsider.

Files and posts can be found in the Open Government Act Request Lawsuit box in the left column.

Order on Motions in Kevin Ring Case

2009-07-02T05:38:00.015+10:00

July 1, 2009

Judge Ellen Segal Huvelle ruled yesterday on 5 of Kevin Ring's motions and one government motion in the Abramoff-related case that is scheduled to go to trial in September 2009.

Last week in a 41-page Memorandum Opinion and Order, Judge Huvelle denied Kevin Ring's motion to dismiss charges in his case. Overall, I would say that the rulings on the 6 motions in her 3-page ORDER may be considered more favorable for the government. Here are the orders:

(1) Defendant's Motion to Suppress Tangible Evidence Regarding Workplace Emails: DENIED

From the defendant's MOTION TO SUPPRESS TANGIBLE EVIDENCE AND INCORPORATED MEMORANDUM OF POINTS AND AUTHORITIES AND REQUEST FOR EVIDENTIARY HEARING:

Mr. Ring subjectively believed that the content of his office email correspondence was confidential and private, and could not be reviewed by law enforcement authorities absent a warrant. This belief was based not only on the fact that law firm correspondence, even if by email, is routinely treated as private, but also because neither Preston Gates or Greenberg Traurig, to Mr. Ring’s knowledge, had any policy place during the relevant time period that would have reduced the confidentiality of these communications. Neither employer, for example, had informed Mr. Ring of any right to monitor email, which in turn reinforced Mr. Ring’s subjective belief that his office email communications were not being monitored and were not subject to search by police without a warrant. Mr. Ring submits that these office emails should be suppressed at trial because the warrantless search and seizure of his office emails violates the Fourth Amendment to the United States Constitution.

Ring said he was unaware of any policy that "Company policy to monitor or review the emails of Preston Gates or GT attorney/lobbyists during the relevant time period, and he received no actual or (as far as he knows) constructive knowledge of any such policy -- much less any policy that would permit his employer to provide."

The government responded with GOVERNMENT’S OPPOSITION TO DEFENDANT’S MOTION TO SUPPRESS EMAILS, which smacked down Ring's statement. The government produced a document signed by Ring that proves he knew the company email policies at both Preston Gates and Greenberg Traurig LLP. Ring signed this policy statement from Preston Gates:

Electronic communications utilizing the firm’s email systems are not confidential or private. The firm owns all electronic communications and reserves the right to access, monitor and disclose for any purpose all messages sent or received over or stored in its email or computer systems. We currently have no practice of monitoring or reviewing electronic information but reserve the right to do so for any reason, including (without limitation) to analyze the use of systems or compliance with policies, conduct client audits, review performance and conduct and obtain information. The firm reserves the right to disclose any electronic message to law enforcement officials, clients or other third parties.

Please also note that the firm may have to furnish copies of your emails to third parties, e.g., in response to a document production request made in a lawsuit by a third party against you.

He signed a similar policy statement at Greenberg Traurig LLP. The government attorneys said, "The government came to possess the emails in response to valid, reasonable grand jury subpoenas issued to his former employers."

From the document:

In his motion, Ring cleverly distorts the Court’s inquiry. He argues that “he had a reasonable expectation of privacy in his emails.” (Mtn. at 2 (emphasis added).) But the proper question, and the one the Court must decide, is whether Ring had a reasonable expectation of privacy in PGERM’s and GT’s hardware and networks, the places from which PGERM and GT employees obtained the emails in question.

This order was not surprising considering the evidence showing that Ring was not only aware of the company email policies, but signed documents agreeing to them. It is amazing that he even challenged this, which suggests the obvious - that the emails are very damaging to his case.
_____________________

(2) Defendant's Motion to Disqualify Counsel: DENIED

This appears to be a victory for the government since losing a member or members of the prosecution team with in-depth knowledge of the case would have resulted in a set-back for the prosecution team.

In April the Ring defense team objected to William Welch II continuing on his case since he is one of six attorneys being investigated for withholding evidence in former Senator Ted Stevens' trial. (See this previous post.)

From the Associated Press

The criminal investigation is being led by Washington attorney Henry Schuelke, who coincidentally is expected to be a witness in Ring's case. The lobbying firm that Ring worked for, Greenberg Traurig, hired Schuelke to conduct an internal investigation after Abramoff was accused of corruption. Ring is charged with two counts of obstruction of justice for lying to Schuelke as part of his investigation.

Ring's attorneys argued in court Monday that Schuelke should not be allowed to testify because he is now investigating Welch. Prosecutors responded that Welch does not have a litigative role in the case.

Huvelle said she wasn't persuaded that Schuelke should be kept off the witness stand. But she told prosecutors they should "have a wall" keeping Welch from the case. "Get his name off," Huvelle said. "Clean it up."

I also think, truth be known, he won't be the head of the division by the time this goes to trial," Huvelle said, suggesting that Attorney General Eric Holder may replace him with another public integrity chief of his choosing.

Ring's attorneys responded that taking Welch off the case now won't change their objection to Schuelke because he's been so heavily involved in the case up to this point. They said Schuelke's testimony could create the "appearance of impropriety."

From Roll Call:

Although Welch has oversight duties for all cases brought by the Public Integrity Section, the Ring trial is the only case in which he has filed a notice of appearance, indicating he is intimately involved in the proceedings

On May 29, 2009 the Ring defense team filed a MOTION TO REMEDY PROSECUTORIAL CONFLICT OF INTEREST. The motion asked the judge to remove the entire prosecution team:

Mr. Schuelke, along with another lawyer in his firm, is listed as a potential witness to events alleged in Counts IX and X of the indictment against Mr. Ring. Mr. Welch, the current Chief of the Public Integrity Section of the Department of Justice, has led the prosecution for a number of years. He was a critical decision-maker in the formulation of the charges and in what discovery, especially Brady evidence, was to be provided to Mr. Ring. He has personally appeared at many of the court hearings. His name appears on the indictment, all of the government’s pleadings and, until this issue was raised in a recent hearing, the discovery correspondence. He has been, and remains, the direct supervisor of another member of the trial team. And after the Court’s suggestion at the April 20, 2009 status hearing that he be walled off from the case, Mr. Welch was carbon copied on a communication regarding discovery issues.

The prosecutors thus find themselves in a situation where one of their witnesses is invested with the power and authority to bring criminal charges against their leader (or in Mr. Welch’s case, himself). This dynamic creates an undeniable appearance of impropriety. Moreover, it creates a serious conflict of interest that affects the prosecution team’s ability to fairly perform their constitutional duty to exercise prosecutorial discretion in a way that ensures justice free from distorting personal influence under these circumstances.

Mr. Ring submits that the most appropriate remedy would be disqualification of the prosecution team that Mr. Welch supervised and appointment of new prosecutors charged with reviewing the case, the government’s compliance with the rules and its obligations, and, if merited, dismissal of the indictment. Such a remedy would, however, likely result in a substantial postponement while Mr. Ring remains in jeopardy and reduced to utter penury.

As a result, this Court may prefer instead to remedy the conflict by precluding the use of Mr. Schuelke as a witness and instead limiting the government to the use of another lawyer, also named on the government’s witness list, whose knowledge of material events likely duplicates Mr. Schuelke’s but who is not, as far as the defense is aware, involved in the present investigation of Mr. Welch.

Such an alternative remedy would remove the incentive for the prosecution team to curry favor with one of their witnesses, while at the same time permitting the trial to go forward on its current schedule without prejudice to either of the parties.

The motion continues with a recommendation that if the judge does not dismiss the entire defense team and require the government to begin anew, then counts IX and X (obstruction of justice counts) should be dismissed or severed or the Court should be required not to call Mr. Schuelke as a witness and to call Mr. Shields as a witness. The judge did rule to partially sever counts IX and X. (See below)

GOVERNMENT’S OPPOSITION TO DEFENDANT’S MOTION TO REMEDY ALLEGED PROSECUTORIAL CONFLICT OF INTEREST claims that the Ring defense team is filing distracting motions:

The defendant has moved to disqualify the entire prosecution team (or in the alternative dismiss two counts of the Indictment or preclude a fact witness from testifying) on the basis that the fact witness has been appointed to investigate allegations against Mr. William M. Welch II, in an unrelated matter, United States v. Stevens, No. 1:08-cr-231-EGS (D.D.C.).

Mr. Welch is the Chief of the Department of Justice (“DOJ”) Criminal Division Public Integrity Section and the supervisor of one of the three trial prosecutors. These roles, albeit unusual, do not create a disqualifying conflict of interest. There is no ground for any of the various sanctions that the defendant proposes.

Nevertheless, it is apparent that the defendant will continue to use Mr. Welch’s supervision of the Public Integrity Section and the Stevens matter as an excuse for filing distracting motions. Accordingly, Mr. Welch has determined to withdraw himself from supervision over the Ring prosecution. Mr. Raymond Hulser is now Acting Chief of the Public Integrity Section for the purposes of this prosecution. The defendant’s motion, in addition to being meritless, is therefore moot.

The Government claimed that Ring's motions are a transparent attempt "that are obviously not intended to resolve any real issues relating to Mr. Schuelke, but merely to assist the defendant in his other motions challenging the indictment."
_____________________

(3) Government's Motion to Compel Reciprocal Discovery: GRANTED IN PART

The government filed the GOVERNMENT’S MOTION TO COMPEL DISCOVERY and Ring's attorneys responded with OPPOSITION TO GOVERNMENT’S MOTION TO COMPEL DISCOVERY.

From Judge Huevelle's order:

Granted in part in that the defendant shall satisfy all reciprocal discovery obligations that are the subject of the motion on or before August 11, 2009, including identifying all documents that he intends to introduce during his case-in-chief (including documents that will be used during the cross-examination of a government witness if it is a document that is not being used to impeach, but not documents that will be used for cross-examination purposes only); but DENIED in all other respects.

Among other arguments in their Opposition to Compel Discovery, Ring's attorneys claimed that Mr. Ring should not be required to identify and/or produce documents he intends to use in cross-examination of government witnesses.
___________________

(4) Defendant's Motion for 404(b) Evidence: GRANTED IN PART

The judge stated that "the government will not be permitted to introduce as 404(b) evidence the documents described in the introductory paragraph and paragraphs 10 and 11 of the government's January 30, 2009 letter to defendant, except that the government may seek to introduce, as evidence of the conspiracy, allegedly false billing statements filed by the defendant where the identity of the recipient was concealed in an effort to further the conspiracy; but DENIED in all other respects."

This order is in response to the defense document, MOTION TO EXCLUDE EVIDENCE OF UNCHARGED MISCONDUCT. In this document the Defendant requested the court to exclude evidence regarding fraudulent billing of clients, stating that it has “no probative value to charges that Mr. Ring sought to corrupt federal officials through providing things of value” and that it has “no logical relation to Mr. Ring’s motive in his interactions with federal officials.”

The response, GOVERNMENT’S OPPOSITION TO DEFENDANT’S MOTION TO EXCLUDE UNCHARGED MISCONDUCT refers to the January 30, 2009 letter:

On January 30, 2009, the Government identified acts that it considered either intrinsic to the charged counts or admissible pursuant to Rule 404(b). (Dkt. 53 Exh. 1). Broadly categorized, the acts that Defendant now seeks to exclude are allegations of other contact with public officials (Paragraphs 1-5, 7 and 9), payments to Defendant (Paragraphs 10 and 11), and fraudulent billing allegations (Introduction).

According to this statement the government will be able to present allegations of other contact with public officials, which references the defendant's involvement with a Superbowl trip in 2001 (paragraphs 1-5, 7 and 9).

However, the government will not be able to present evidence outlines in paragraphs 11-12 (emphasis added):

Defendant argues that the payments to him, described in paragraphs 10 and 11, should be excluded. The payments, however, are intrinsic to the obstruction counts charged in Counts Nine and Ten. During the interviews that are the subjects of Counts Nine and Ten, Defendant was asked about the payments in Paragraphs 10 and 11, and Defendant’s lie about the $135,000 payment is one of the lies that is the basis for the obstruction charges of Counts Nine and Ten. Defendant cannot credibly argue that these payments should be excluded.

It appears that the judge excluded the paragraphs that relate to the severed counts, Counts IX and X. (See below - judge's order 5.) Perhaps this evidence will be allowed in another trial that deals with the severed counts?

The introductory paragraph addressed fraudulent billing records. From the Government's Opposition to Defendant's Motion to Exclude Uncharged Conduct:

Billing Allegations (Introductory Paragraph January 30, 2009 letter) In addition to the items discussed supra, the Government noted in its January 30, 2009 letter that it seeks to introduce evidence pursuant to Rule 404(b) that Kevin A. Ring, and his lobbying associates frequently fraudulently billed their clients and employers. For example, Mr. Ring and others would inaccurately record the number of hours billed to a client in order to show the client or the lobbying firm that more or different work had been done than had actually been performed. In addition, Mr. Ring and others would request reimbursement from their employers for items that were not related to professional activities, but rather were personal in nature, all while knowing that some of those costs would be passed on to their clients.

The government's document revealed that Ring was a crook and schemer, defrauding clients and bribing staffers:

For example, one of the individuals named in Paragraph 2 of the January 30, 2009 letter is a Senate staffer who assisted Defendant and others on numerous occasions. After the Senate staffer assisted the co-conspirators by taking official action on or about June 24, 2002, Abramoff emailed the Defendant and another co-conspirator, Todd Boulanger, “Awesome. Totally incredible. What can we do for [Senate staffer], or can I assume he gets everything he wants.”

However, later on October 21, 2003, once the same staffer failed to perform an official action that Defendant desired, Defendant wrote to Abramoff and Boulanger “How did [Senate staffer] let this thing close. No more free drinks.” In short, how Defendant’s and his co-conspirators discussions about providing things of value to other public officials is illustrative of the corrupt agreement and Defendant’s corrupt intent, and therefore intrinsic to the charged crimes.

The document discusses how Jack Abramoff, Michael Scanlon, Robert Coughlin and others conspired with Ring. It details how the lobbyists worked to cheat the New Mexico and the Mississippi Indian Tribes.

The Government anticipates that the evidence regarding Defendant’s March 10, 2004 meeting with the New Mexico Tribe will demonstrate that Defendant was responding to concerns about Scanlon’s receipt of $2.75 million and the investigations being conducted by the Senate. The evidence will show that during this meeting Defendant did not acknowledge that he had received $135,000 from Scanlon and in fact attempted to distance himself from the financial relationships of Scanlon and Abramoff.

And then there's this:

Defendant’s lobbying successes were not the result only of the many hours of lobbying that he and other lobbyists billed to their clients, but, in part, resulted from the relationships built by Defendant and others corrupting public officials with things of value...

...While Defendant was an intelligent lobbyist who understood legislation and political strategy, he also took short cuts, some illegal, to achieve his lobbying goals. He developed contacts among public officials, some legitimate and some illegitimate, that he used to seek official action benefiting his clients.

This document also shows that the government may go after Ring's old boss, former Rep. John Doolittle (R-Abramoff) who is identified in documents as Rep. 5, and his wife Julie. Several footnotes discuss the Rep. Doolittle and his wife, Julie:

Similarly, Defendant’s knowledge of how Abramoff and Scanlon defrauded other clients, for example the Mississippi Tribe, goes in part to explain the motivation of why he took corrupt actions to achieve the client’s lobbying goals - including the jail grant from the Department of Justice. His knowledge that the client whose funds were used to make the payments to the wife of Representative #5 was also involved with Abramoff and Scanlon could have contributed to his motive to disavow any role in arranging the job for the wife of Representative #5 because further investigation into the misuse of client funds could have identified the corrupt acts Defendant took with respect to the office of Representative #5.

On or about that same day, defendant RING responded to an email from Representative 5 entitled, “What did you think of the article,” by writing, “Not good, but fair and truthful. Lots of FBI talk, too. I am tainted by knowing the truth.” Also on or about that same day, defendant RING emailed another person, “I know more than article and the truth is worse.”

It appears that the evidence noted in the paragraphs in the January 30 2009 letter that make reference to the Doolittles will be allowed.
_________________

(5) Defendant's Motion to Sever Counts: GRANTED IN PART AND DENIED IN PART

The judge ruled that Counts IX and X, (Obstruction of Justice) "with the exception of the allegations relating to the defendant's statements to counsel relating to Representative 5's wife, as prejudicial and not properly joined under Federal Rules of Criminal Procedure 8(a) and 14. The court also strikes paragraphs 27 - 29 of the indictment."

Again, Representative five is former California Rep. John Doolittle (R-Abramoff), and Julie Doolittle is his wife.

The mentioned paragraphs from the Indictment deal with the alleged deal between Ring, Abramoff and Scanlon to defraud the New Mexico tribe:

27. Defendant RING and his coconspirators used the growing success of their lobbying practice, which had been built in part by corrupt means, to retain existing clients and attract future clients. As part of their marketing efforts, defendant RING and his coconspirators persuaded the New Mexico tribe that the hiring of Scanlon to perform certain grassroots and public-relations services was critical to achieve the New Mexico tribe's lobbying goals and objectives.

28. Abramoff and Scanlon had a preexisting profit-sharing relationship. Defendant RING, Abramoff, and Scanlon agreed and understood that defendant RING would receive approximately five percent of the total revenues generated by Scanlon from the New Mexico tribe. Defendant RING, Abramoff, and Scanlon did not disclose to the New Mexico tribe any of the payments by Scanlon to defendant RING or Abramoff.

29. Abramoff used funds derived from his lobbying practice and the Scanlon payments in part to finance the scheme to defraud. This included, but was not limited to, the things of values provided to public officials as well as bonuses, payments, and other financial benefits provided to defendant RING and other coconspirators.

In the MOTION TO SEVER, Ring's attorneys asked the Court to sever Counts Nine and Ten, which are based upon the Defendant’s statements to lawyers, Hank Schuelke and William Shields, who were conducting an investigation into the lobbying practices of Jack Abramoff.

The Government opposed the motion because the counts are "properly joined and and severance would prejudice the Government and unnecessarily waste judicial resources by requiring the Government to introduce the same evidence at two separate trials." They further stated that the Defendant's right to a fair trial was not prejudiced by the joinder of Counts Nine and Ten.

The GOVERNMENT’S OPPOSITION TO DEFENDANT’S MOTION FOR SEVERANCE got into even more questionable activity of Governor Fitial's good "friends", the Doolittles:

Of specific importance, Schuelke and Shields inquired about the use of client funds to fund the job for the wife of Representative # 5. The Government anticipates that evidence at trial will show that in these interviews, Defendant falsely denied that he knew about the job for the wife of Representative # 5, and only admitted any involvement after being confronted with emails demonstrating that he had actually been the primary intermediary between Abramoff and Representative # 5. Indeed, the Government anticipates that the evidence will show that in the midst of the initial discussions about a job for the wife of Representative # 5 in 2000, Defendant reported to Abramoff that he had heard that Representative # 5 felt like a “subsidiary” of Defendant’s law and lobbying firm.

The evidence will also show that the wife of Representative # 5 was eventually paid over $96,000 for little or no work at the same time that Defendant and Abramoff were asking Representative # 5 and his staff to perform numerous official acts that benefited their clients.

Defendant’s statements during the interviews with Schuelke and Shields about his knowledge of the job for the wife of Representative # 5 are, in part, the subject of Counts Nine and Ten - obstruction of justice.

There's this:

Defendant cannot credibly claim that his obstruction related to payments for the wife of Representative # 5 are not properly joined to Counts One and Count Eight pursuant to Fed. R. Crim. 8(a). Throughout Count One, the job for the wife of Representative # 5 is explicitly discussed. See Ind. Count One, ¶¶ 70, 78, 84, 88, 90, 117, 123, 124, 125, 131 and 145. Indeed, the deposit of a $5000 check by the wife of Representative # 5 predicates the substantive honest services wire fraud charge in Count Eight. The obstructive conduct related to the wife of Representative # 5 is properly joined to the other charges as part of the same scheme or plan.

And this:

For example, the Government anticipates introducing Defendant’s admissions to Schuelke and Shields regarding a 4/29/02 event for Representative # 5's staff at Signatures Restaurant, which was owned by Abramoff. Defendant claimed $2000 worth of expenses and billed the charges to seven separate clients. Defendant acknowledged that the costs of that single event violated the ethical rules of Congress, and that the pubic officials could have been “in deep sh*t” as a result of that event.

During the interviews, Defendant also acknowledged that he was aware that the wife of Representative # 5 was actually paid from funds diverted from another tribal client of Abramoff’s.

The judge also stated in her order that the government must notify the Court on or before July 1, 2009, if it intends to proceed with those parts of Counts IX and X which have not been severed."

Today the government filed GOVERNMENT’S UNOPPOSED MOTION TO SEVER COUNTS IX AND X, which reads:

In light of the Court’s severance from the indictment of charging language concerning private honest services fraud, the government respectfully asks the Court to sever Counts IX and X in their entirety. The government will try Counts I through VIII in September. Ring, through counsel, does not oppose this motion. A proposed order is attached.

There is a pattern in the order that revolves around the severing of counts IX and X. Evidence relating to the counts was not allowed as seen in the judge's order (4) Defendant's Motion for 404(b) Evidence. Will the government charge Ring with counts IX and X in a separate indictment and conduct two trials? It does appear that the government plans to issue a separate indictment and have two trials because in the GOVERNMENT’S OPPOSITION TO DEFENDANT’S MOTION FOR SEVERANCE the government stated (emphasis added):

The Court should deny Defendant’s motion because (I) the counts are properly joined pursuant to Fed. R. Crim. P. 8(a) and severance would prejudice the Government and unnecessarily waste judicial resources by requiring the Government to introduce the same evidence at two separate trials,and (II) Defendant failed to demonstrate a strong showing of prejudice pursuant to Rule 14.

Is it to the defendant's advantage to have two trials or to the government's advantage? I would guess it gives the government an extra chance to prove its case and the advantage of knowing the defense team's strategy from what takes place in the first trial.

Additionally, the order severed the counts "with the exception of the allegations relating to the defendant's statements to counsel relating to Representative 5's wife." Throughout the order evidence related to the Doolittles stands. Still the biggest question remains when will the Doolittles be indicted?

____________________

(6) Defendant's Motion to Suppress Tangible Evidence regarding items seized from the home is GRANTED IN PART and DENIED IN PART

From the order:

The Court will not suppress any item seized pursuant to the search warrant that is responsive to the warrant as interpreted by the Court and counsel during argument (i.e., the item must be a "draft", outline, or notes of any books, memoirs, biographies, or any other compilation relating to [defendant]'s employment with Jack Abramoff' (book drafts") or it must be source material for these book drafts (but it not sufficient that the item "could be" source material)).

In the MOTION TO SUPPRESS TANGIBLE EVIDENCE AND INCORPORATED MEMORANDUM OF POINTS AND AUTHORITIES AND REQUEST FOR EVIDENTIARY HEARING, Ring requests that the Court suppress evidence that was obtained during the May 28, 2008 search of his home. This search was conducted under a warrant. Ring claims that the evidence "was so facially overboard as to violate the Fourth Amendment's particularity requirement and render any reliance on the warrant objectively unreasonable."

The attachment includes the copy of the search warrant and a list of items that were seized including 4 computers, note pads, books, emails, internet printouts, legislative documents, book draft printouts, personal notes, "notes from cong. Doolittle", email from Josephine Hearn (covered lobbying and later House Democrats for The Hill), letter from Paul Erickson (Abramoff's friend from the College Republicans.), and manuscript for book.
_______________

Additionally, the judge's order gave instructions on filing of the preliminary jury instructions and a joint jury questionnaire, file the witness and exhibits lists, set a status conference for August 13, 2009 and jury selection will begin September 8, 2009.

Please visit the Anti Corruption Republicanfor further commentary!

Wiseman Orders DOL to issue TWAs

2009-06-30T07:58:00.007+10:00

July 1, 2009

Superior Court Associate Judge David Wiseman ordered the CNMI Department of Labor to issue temporary work authorizations for the 127 foreign contract workers who are suing the CNMI DOL and officials for not enforcing their own laws.

Attorney Robert Meyers is defending the 127 foreign workers in a class action lawsuit that he filed in December 2008.

For years alien workers have routinely been cheated by employers. The DOL system is an unjust system that puts the burden of recovering unpaid judgments on the victims. The bonding and insurance companies also neglected their lawful obligation to pay the workers when the employers defaulted on the judgments.

The lawsuit was filed against Labor Secretary Gil M. San Nicolas, Labor Deputy Secretary Cinta Kaipat and Labor Director Barry Hirshbein with 20 “Does” that are surety or bonding or insurance companies that issued statutory surety labor bonds to the employers of the guest workers.

According to the Saipan Tribune:

Public Law 15-108 provides that a nonresident worker may request a court order directing the Labor Director to issue a TWA if that foreign national worker is pursuing a claim or case in the CNMI court system.

“While such a request is not well known about, it is something that every foreign national worker should ask their lawyer to request for them [if they're in the court system],” Myers told Saipan Tribune yesterday.

The TWA, he said, is essentially an “unlimited” one while the case is pending in court, even if the alien worker is not able to find a job after receiving an initial TWA.

“I don't believe the Department of Labor likes that reality but that's what the law provides. And it makes sense, given that question of how a foreign national worker is to support themselves and their loves ones,” Myers said.

A total of 127 alien workers who sued their former employers for wage and overtime violations and had been awarded damages by Labor filed the petition for judicial review in court.

In the petition, Myers asked the court to compel Labor and its officials to enforce the surety's obligations under the statutory labor bonds.

Siemer: DOL not responsible for enforcement

In January 2009 "Special Counsel for Labor", Deanne Siemer responded to the lawsuit claiming that the Superior Court did not have jurisdiction as the case failed to meet the requirements for a class action lawsuit.

Siemer said there is no commonality of status among the individual plaintiffs or the bonding companies and denied that PL 15-108 provides that DOL is responsible for issuing notice of claim to a bonding company or for collection of awards made in DOL-issued administrative orders.

DOL regulations lack enforcement, and place the responsible for collecting unpaid judgments upon the cheated workers.

From the January 14, 2009 issue of the Saipan Tribune:

Siemer denied that the Commonwealth Employment Act of 2007 provides that Labor is responsible for collection of awards made in the administrative orders that Labor issues in cases filed by alien workers against employers.

Siemer denied that the Nonresident Workers Act and its predecessors have any force and effect as they were repealed by the Commonwealth Employment Act of 2007.

She also denied that the Commonwealth Employment Act of 2007 requires Labor to issue any notice of claim to any bonding company.

Under the Commonwealth Employment Act of 2007, the special counsel said, Labor has no power to act against bonding companies.

Licensing and regulatory authority, she pointed out, is vested in the Department of Commerce.

Last year Deputy Labor Secretary Cinta Kaipat, Director Barry Hirshbein, and the "volunteer" all stated that the DOL was not responsible for enforcing the judgments.

The $6.1 million in unpaid judgments collected last year illustrates that DOL does not enforce their policies, and cheated workers have no path to justice.

In response to that collection, DOL came up with a scheme to have workers collect unpaid judgments in small claims court. The scheme even called for the cheated workers to serve their former unscrupulous employers who ripped them off.

In a May 14, 2008, Saipan Tribune article DOL "public education and outreach director" Rose Ada-Hocog said that they "just want to stress to workers that Labor is not a collection agency."

Associate Judge Inos Says DOL, not courts should enforce bonds.

In March 2009 Superior Court Associate Judge Perry Inos dismissed, for lack of jurisdiction, the consolidated small claims suit against bonding companies filed by 11 cheated Chinese workers. He ruled that the courts do not have the authority to enforce their bonds.

The CNMI Department of Labor has refused to enforce their own judgments issued under their administrative orders, and has refused to compel insurance companies to honor bonds when cheating employers fail to pay the employees. This is an interesting decision since this week the Fitial Administration will claim that their dysfunctional local labor system is "oh-so-wonderful" in the United Stated District Court in Washington, DC. Unfortunately, for far too many of he cheated and abused workers this is an outright lie.

The judge ruled that the primary reason the workers could not collect their bonds was that the DOL has not attempted to enforce the insurance companies obligations to pay the bonds. Have advocates and the guest workers not been saying this for years?

The Saipan Tribune quoted Judge Inos as saying that the workers need to compel DOL to do their job:

“Although there were administrative proceedings that preceded these actions, the plaintiffs have not filed petitions for judicial review or for mandamus to compel Labor to take action,” Inos said.

In response to the order issued by Associate Judge Inos, the DOL is now requesting that foreign contract workers with bond claims register at the DOL.

See also these posts for more information:

DOL:New Rules for cheated workers to chase down their money
Parents of U.S. citizen children sue CNMI Department of Labor
CNMI Labor News: Two Interesting Points to Ponder
Judge Inos: DOL, Not Courts Should Enforced Bonds
Class Action Suit Against DOL
CNMI Labor News
Overstayers' List Questioned
Siemer responds to Class Action Suit
Class Action Suit Filed Against DOL

It's Official: Senator Al Franken

2009-06-30T07:57:00.005+10:00

June 30, 2009

Finally, after nearly 8 long months Democrat Al Franken has been officially declared the winner in the Minnesota Senate race. Opponent Norm Coleman conceded the election after a unanimous state Supreme Court ruling favoring Al Franken.

From the Associated Press:

Franken spoke in Minneapolis on Tuesday soon after Republican Norm Coleman conceded the election. Coleman's concession came after the Minnesota Supreme Court said Franken should be certified as the winner.

Franken says he's "thrilled and honored by the faith Minnesotans have placed in me." He says he can't wait to get started, and believes he'll be sworn in next week.

Franken says he expects to sit on a few Senate committees, including Judiciary. That would put him in place to take part in Supreme Court nominee Sonia Sotomayor's confirmation hearings.

In a speech televised by CNN, Senator Franken said that he doesn't want to be thought of as the 60th Democratic Senator, but as the 2nd Senator from Minnesota.

From the New York Times:

“The Senate looks forward to welcoming Senator-elect Franken as soon as possible,” Senate Majority Leader Harry Reid, of Nevada, said in a statement.

Republicans seemed increasingly resigned to Mr. Franken joining the Senate and providing the 60th Democratic vote after the Democrat spent months in senatorial limbo. But there was no immediate comment from Senate Republican leaders in the wake of the decision.

Republicans are also well aware that two veteran Democrats, Senators Robert C. Byrd of West Virginia and Edward M. Kennedy of Massachusetts, are ailing and have regularly been absent from the Senate, making it very difficult for Democrats to assemble 60 senators on the floor.

Mr. Byrd was released from a Washington area hospital Tuesday after a stay of more than a month for a staph infection, but aides were unable to say whether he would be voting regularly when Congress resumes next week; Mr. Kennedy is undergoing treatments for brain cancer.

CNMI must pay $231 million to Retirement Fund

2009-06-30T00:19:00.006+10:00

June 29, 2009

In a 17-page judgment, Associate Superior Court Judge Kenneth Govendo ordered that the CNMI government must pay the Retirement Fund over $231 million an an employer contribution rate of 16% . He also stated that Public Law 15-15 which suspended the government's contribution to the Retirement Fund in 2006 and 2007 under the Fitial Administration was unconstitutional.

From the Marianas Variety:

Govendo ordered the Department of Finance to pay to the Retirement Fund an employer contribution rate of 16 percent beginning with the pay period ending in Aug. 14, 2009; 30 percent of the hotel occupancy taxes; and 20 percent of the alcohol container taxes “which shall start on Aug. 1, 2009 and shall continue until further order of the court.”

The administration has said that it can only pay an 11 percent rate.

Govendo said the damages were calculated by examining several factors, including audit confirmation letters confirming the amounts due to the Fund and acknowledged by Finance as valid, the actuarially determined employer contribution rate, budget acts, memorandum of agreement where both parties signed at the end of 2001 that the government would pay $500,000 on every other non-government payday Friday, but which the government failed to pay, and for employer contributions which showed that the government owed $158,106,671.78 in deficient employer contribution payments as of April 15, 2009.

The statutory penalty for untimely payments of employer contributions is another factor in the calculation, Govendo said.

The government first stopped paying its employer contributions on Aug. 14, 1999 and since then, payments have been sporadic, he added.

The Fund showed that the balance owed for these statutory penalties as of fiscal year 2008 was $37,475,945.51.

Other factors include the special annuity which provides for the government to make contributions each year, but the government became delinquent beginning 2001, and the government now owes $407,459.63.

The government also owes the Fund $15,026,333.01 in appropriations to pay for cost of living allowances, an increase in annuity benefits, premiums for the Group Health and Life Insurance; $3,366,060.74 for early retirement bonus of government employees; $780,732.60 for Trust Territory prior service receivable; and the amount due from the general fund which was $10,698 as of Sept. 30, 2002.

Further, Govendo said, the government owes the Fund $16,474,037 in lost opportunity costs.

He noted that the court encouraged both parties to pursue a settlement.

The Fund is opposed to any settlement.

Since this lawsuit was filed in 2006, several other individual lawsuits have been filed naming the CNMI government and Retirement Fund as defendants. The lawsuit filed by Attorney Bruce Jorgensen last week also requested the federal court to declare that P.L. 15-15 is unconstitutional, as Associate Judge Govendo declared in his order. (Please see this previous post, Retirement Fund Lawsuits Filed in Federal Court, for background information and to access files.)

Now that the order is issued, how the government will come up with the dollars to pay this huge amount is going to be an issue. The CNMI relies on federal funding and U.S. taxpayers, and has no significant tax base.

Attorney Alepuyo was quoted in the Variety, addressing this issue:

The court said the defendants, through its own witnesses, have testified that the government cannot afford to pay the present 11 percent contribution rate under any circumstances, and that 1,000 government jobs would be lost if the employer contribution is raised beyond 11 percent.

Attorney Viola Alepuyo represented the Retirement Fund in this case while Assistant Attorney General Anthony Welch represented the government.

Govendo set a review hearing for Nov. 2, 2009.

In an e-mail, Alepuyo said the judgment resulted in “a great day for not just retirees, but for everyone who is a recipient of the Defined Benefit Plan.”

Alepuyo said the accusations against the Fund board of not caring about whether the CNMI government goes bankrupt “are simply untrue, unsubstantiated and unjustified.”

Alepuyo’s husband, House Floor Leader Joseph N. Camacho, is the running mate of Independent gubernatorial candidate Juan T. Guerrero, a former senator who is currently the Retirement Fund board chairman.

Alepuyo said their next move will be to communicate with executive and legislative branches.

“I’m sure that with all the great minds in the CNMI, we will be able to think outside the box in order to come up with realistic solutions to make the required payments as well as maintain critical public services,” she added.

While Attorney Alepuyo is optimistic, the governor's press secretary Charles Reyes reportedly told the Saipan Tribune that "the Fitial Administration will explore its options." The governor's typical move seems to appeal, delay and stall in such cases. Should we expect an appeal? Election is around the corner. How many more people can the governor afford to alienate and anger? Reyes was quoted:

“Given CNMI's current budget challenges, which are already quite formidable considering the dwindling resources, and the Legislature's refusal to implement unpopular but necessary austerity measures in an election year, this development presents another major financial challenge for our government,” he said.

Reyes has the audacity to criticize the legislature when the governor can fund lobbyists and use government mystery funds to pay for the anti-federalization lawsuit?

Juan Guerrero, who is running against Fitial in this year's election, repeated Attorney Alepuyo saying, "We will be able to think outside the box in order to come up with realistic solutions to make the required payments as well as maintain critical public services.” He also said:

He said accusations about the board not caring whether the government goes bankrupt are untrue, unsubstantiated, and unjustified.

The chairman said that shutting down the government would do nothing but hurt the very members the board is working hard to protect.

He cited that a large number of government employees are also Defined Benefit Plan members who contribute to the Defined Benefit Plan.

“Retirees get medical attention from the Commonwealth Health Center; rely on the Department of Public Safety to provide order and safety in the community; the Public School System to teach their children and grandchildren; and all the government agencies who provide essential services to our community,” Guerrero said.

“This is the very reason the board.chose first to communicate with the government before taking the final and ultimate step of filing a lawsuit,” Guerrero said.

The Saipan Tribune listed the breakdown of the amounts owed:

- $158,106,671.78: Deficient employer contribution payments;
- $37,475,945.51: Penalty for untimely payments of employer contributions;
- $407,459.63: Special annuity payments;
- $15,026,333.01: Unremitted appropriations;
- $3,366,060.74: Early retirement bonuses;
- $780,732.60: Trust Territory prior service receivable;
- $10,698: Receivables from the general fund; and
- $16,474,037: Lost opportunity costs

Summer in Our Garden

2009-06-29T03:03:00.032+10:00

June 28, 2009

OGA: Rep. Sablan Files Motion To Reconsider

2009-06-28T10:56:00.003+10:00

June 27, 2009

Representative Tina Sablan has filed a MOTION FOR RECONSIDERATION OF SUPREME COURT ORDER STAYING RELEASE OF REQUESTED DOCUMENTS yesterday.

On June 18, 2009 Associate Judge Wiseman ruled that Governor Fitial and Lt. Governor Inos must release the majority of the documents Rep. Sablan requested under her Open Government Act request by 11:30 am on June 20, 2009. On June 19, 2009, Assistant Attorney General Brad Huesman filed a motion for a stay pending an appeal in the trial court, Judge Wiseman denied.

Huesman also filed a motion for a stay pending an appeal to the Superior Court. Instead of honoring the intent of the Open Government Act, which states that "a stay should not be granted to prevent the release of documents unless the court determines that there is a substantial probability that opening the records for inspection will result in significant damage”, Judge Alex Castro granted a stay and set the submission of motions for July.

Representative Sablan's motion states, "The instant stay clearly violates applicable and binding Commonwealth law and therefore must be lifted."

She alleges that the motion for stay fails to establish that there is a substantial probability for significant damage. From the motion:

As set forth in greater detail below, the express letter of the law simply does not allow this court the discretion to grant a stay where the government has failed to meet its prerequisite burden. Moreover, public policy favoring the spirit of transparency all but compels this court to end the secrecy and compel reasonable disclosure.

The motion clarifies the intent of the Act, which is "to ensure that the actions of the government be made openly, and that the people remain informed so that they may retain control over the instruments of government they have created."

From the complaint:

In its Order Staying Release, this court stated that “[a]t this stage of the proceedings, it is difficult, if not impossible . . . to make the determination whether opening the documents will result in significant damage . . .” and that it was unable to conduct a review of the record and the documents in question within the 48-hour timeframe required by the trial court under 1 CMC § 9916(b)(2). Order Granting Stay, at 2-3. Appellee respectfully asks this court to consider that in liberally construing the Open Government Act in favor of open records, a stay need not and should not be granted on the trial court’s order of disclosure when Appellants have clearly failed to produce any evidence before this court within the 48-hour timeframe established by law that there is a substantial probability of significant damage in disclosure.

The motion states that the defendant's motion for stay is based upon an improper standard in the context of the open government act. The most significant argument is that the grant of stay allows appellants to unjustifiably delay disclosure and conceal their actions in violation of the spirit and intent of the open government act. From the complaint:

Appellants’ Motion for Stay is little more than an obvious dilatory tactic that violates the spirit and intent of the Open Government Act. Further staying disclosure despite Appellants’ clear failure to produce within the 48-hour timeframe provided by law any evidence to support a court determination of substantial probability of significant harm would only facilitate Appellants’ efforts to continue to operate in secrecy, frustrate the trial court’s order, and obstruct the rule of law.

The Open Government Act declares that “[t]he people of the Commonwealth do not yield their sovereignty to the agencies which serve them . . . The people insist on remaining informed so that they may retain control over the instruments they have created.” 1 CMC § 9901. Accordingly, the Act requires that its provisions be construed liberally in favor of open records, and construed strictly against nondisclosure of records, and explicitly limits the court’s discretion to grant stays on orders of disclosure.

Because Appellants failed to show any evidence of substantial probability of significant damage within the timeframe provided by law, and because this court was unable to make any determination that a stay should be granted, there should be no further delays in disclosure and the documents should be released in accordance with the trial court’s order.

In reconsidering its Order Granting Stay and lifting the stay on disclosure, this court would uphold the rule of law and the express legislative intent of the Open Government Act to provide the people of the CNMI with the tools to remain informed and retain control over the government that serves them.

Retirement Fund Lawsuits Filed in Federal Court

2009-06-27T09:35:00.015+10:00

June 27, 2009

A lawsuit against the Commonwealth of the Northern Mariana Islands and the United States of America was filed yesterday in the U.S. District Court of the Northern Mariana Islands. Attorney Bruce Jorgensen filed the case on behalf of former CNMI employees who are entitled to full retirement benefits via the CNMI’s Retirement Fund.

Also named as defendants are CNMI Does 1-100 and U.S. Does 1-100 who are described as "entities and persons, whose specific actions and roles---individually and/or in concert with each other or with other persons or entities---in the circumstances giving rise to the claims alleged in this complaint, are presently unknown to Plaintiffs who, upon discerning these entities and persons through further proceedings in the action shall thereafter seek leave of court to more specifically identify these persons and entities as named defendants in this action."

Regarding the plaintiffs, the complaint states:

1. Plaintiff JANE ROE is a citizen of the United States of America (“U.S.”) who resides and is domiciled in a state of the U.S., is a former employee of the Commonwealth of the Northern Mariana Islands (“CNMI”) entitled to full retirement benefits via the CNMI’s Retirement Fund (“Fund”), and whose full name shall not be disclosed in this pleading due to her concerns relating to personal safety and fear of retaliatory misconduct and/or persecution as a consequence of her decision to exercise her rights by commencing and perpetuating this legal action.

2. Plaintiff JOHN DOE is a citizen of the United States of America (“U.S.”) who resides and is domiciled in a state of the U.S., is a former employee of the Commonwealth of the Northern Mariana Islands (“CNMI”) entitled to full retirement benefits via the CNMI’s Retirement Fund (“Fund”), and whose full name shall not be disclosed in this pleading due to his concerns relating to personal safety and fear of retaliatory misconduct and/or persecution as a consequence of her decision to exercise her rights by commencing and perpetuating this legal action.

The complaint also states:

Plaintiffs herein assert claims based on personal interests as well as claims shared in tandem with similarly situated CNMI retirees and Fund beneficiaries---in this regard, Plaintiffs here anticipate that additional CNMI retirees, including but not limited to various members of retiree/community organizations within the CNMI, might seek to participate and seek redress via this proceeding, either by way of joinder of additional plaintiff-retirees, or by conversion of this proceeding to a class action at such expeditious time as is appropriate.

The 14-page Complaint for Declaration/Injunctive Relief and for Damages claims that funds that should have been paid into the CNMI Retirement Fund were redirected for payment of CNMI-delinquent CIP contributions.

It states, "On or about June 16, 2006, there was signed into law by CNMI Governor Benigno R. Fitial, CNMI Public Law 15-15 which purported to lawfully authorize the suspension of CNMI payments owed to the Fund during a portion of the 2006 fiscal year, and during all of the 2007 calendar year."

The lawsuit alleges that the CNMI government is still substantially delinquent in payments owed by the CNMI to the Retirement Fund. It alleges that the CNMI Government and "Does" directed the CNMI-obligated funds "to entities and persons---including but not limited to hiring/funding new CNMI bureaucratic employee---rather than paying or meaningfully satisfying outstanding, long delinquent, CNMI debt to the Fund for the benefit of Fund beneficiaries including Plaintiffs."

From the complaint:

Since at least 2003, the Fund’s assets, financial standing, financial viability, long-term growth/potential, liquidity, portfolio, investment potential, long-term-outlook, and the derivative economic and related interests of CNMI retirees including Plaintiff, have markedly deteriorated, as a consequence of Defendants’ actions, inaction, and malfeasance.

On or about June 12, 2009, there was filed in this court a case titled Fennell v. Gregory et.al., civil number 09-0019, in which there was disclosed to the general public, Plaintiffs included, via public record of this court, the contention by the former Receiver for Bank of Saipan, that the CNMI, and/or current and former CNMI officials, had engaged in significant, and seemingly multiple/protracted instances, of fraud involving Fund assets of which Plaintiffs are beneficiaries, with consequences detrimental to the Fund’s assets, financial standing, financial viability, long-term growth/potential, liquidity, and Plaintiffs’ associated interests.

The last statement leads me to suspect that we can expect to see some of the defendants in the Fennell lawsuit may be identified as some of the "Doe" defendants in this suit. Could Governor Fitial and other CNMI officials also be named? (See this post, Fitial Accused of Fraud: CNMI attorneys sued, to read the complaint filed in federal court by Attorney Mark Hanson on behalf of Randall Fennell.)

The lawsuit lists eight counts:

Count I: Deprivation of Federally Protected Property Rights/Interests:

32. By effect of passing Public Law 15-15, reputedly unlawful and fraudulent Bank of Saipan dealings, failing to pay or otherwise satisfy and bring current CNMI obligations to the Fund, and related unlawful conduct, Defendant CNMI and Defendant CNMI DOES 1-100 (collectively “CNMI Defendants”), the CNMI Defendants have deprived Plaintiffs and similarly situate others of property rights and interests of substantial worth and import---including but not limited to short and long term economic benefits, fiscal prudence, and financial security---in violation of U.S. constitutional protections, for which CNMI Defendants are liable to Plaintiffs.

33. By effect of the conduct described in the preceding paragraph, CNMI Defendants have significantly harmed, both economically, and from prospector-investor-standing, the viability of the Fund and, by derivative consequence, Plaintiffs’ and similarly situate others of property rights and interests---including but not limited to economic benefits and financial security---in violation of U.S. constitutional protections, for which CNMI Defendants are liable to Plaintiffs.
The complaints states that "the CNMI Defendants have engaged in both intentional, wanton, malicious, wilful, and negligent misconduct, constituting unlawful misrepresentation, for which CNMI Defendants are liable to Plaintiffs."

Other counts include: Violation of U.S. Civil Rights, Conspiracy, Compelling U.S. Officials To Perform Duties Owed, Breach Of Fiduciary Duty/Constructive Fraud, Misrepresentation, Injunctive Relief, and Declaratory Relief-28 U.S.C. §2201/Fed.R.Civ.P. 57.

Count IV, Compelling U.S. Officials to perform duties, is related to the shifting of retirement funds to pay CIP matching funds. Unanswered letters were written to federal officials including one on Guam inquiring about the shifting of money. From the complaint:

23. These concerns further derived from general knowledge and understanding of the CNMI’s fiscal dealings and obligations respecting both the Fund and those U.S. originated funds known as “CIP” funds provided by the U.S. to the CNMI, which CIP funds were themselves the subject of a memorandum, by and between U.S. Interior officials Roger Stillwell and Nick Pula, and captioned “History of section 702 financial assistance to the CNMI”, in which it was written:
“In 1992 an implementing element of the Covenant between the Commonwealth and the United States required that the CNMI Government match, dollar for dollar, all capital improvement funds provided by the USG. That matching requirement has recently been made optional by the current agreement. Never-the-less, all U.S. Government CIP funds for the period 1992 to (circa) 2003 appear to have required the CNMI government to match U.S. taxpayer funds dollar for dollar.”(emphasis added).
24. These concerns further compelled memorialized efforts to seek from U.S. officials an inquiry, and to act and perform duties owed to all CNMI retirees---Plaintiffs included---as well as the CNMI general public and others, as to legal propriety in an effort to secure protection as to the property rights, due process, equal protection, and civil rights guaranteed Plaintiffs and similarly situated CNMI retires.

25. One of the U.S. officials from whom the performance of such duties was sought was a U.S. official, based on Guam, to whom was transmitted a September 12, 2003 letter , including the following excerpt:
“I realize there may be certain jurisdictional limitations as to the extent Federal authorities can intervene in local matters, however, is it possible your office responsibilities encompass issues related to the
possibility of diversion of CNMI retirement pension deductions from employees engaged in federally funded projects? [emphasis added]
For example, if a U. S. citizen employed by the CNMI government on a federally funded project has his or her salary, or portion there-of, provided by a federal grant and such an individual also contributes a portion of that income to the Commonwealth’s Retirement Fund -- could the U. S. government conceivably have a jurisdictional interest in such Fund proceeds and their accountability?”
26. Neither the previously-described U.S. official, nor any other U.S. official, responded to either the above-described September 12, 2003 letter, the explicit follow-up letters of February 6, 2004 and May 19, 2004, or in any known fashion resembling timely, meaningful, and comprehensive performance of duties owed by U.S. officials to the CNMI retirees/general public generally, and to Plaintiffs and to similarly situated others specifically.

27. Of related concern, was the possibility that CNMI-obligated Fund payments had been diverted, from payment of these CNMI obligations towards retiree-beneficiaries, to instead be redirected for payment of CNMI-delinquent CIP contributions.

Count VII of the complaint, Injunctive Relief states, "The CNMI Defendants have engaged in both intentional, wanton, malicious, wilful, and negligent misconduct, constituting unlawful misrepresentation, for which CNMI Defendants are liable to Plaintiffs."

From the complaint:

42. By effect of the above-described events, related facts and occurrences, and related misconduct and malfeasance, CNMI retirees via Plaintiffs here, are entitled to equitable relief in the form of affirmative and prohibitive injunctive relief, by which this court may: (i) command the CNMI FORTHWITH to pay or otherwise satisfy and bring current all CNMI obligations to the Fund; (ii) preclude the CNMI FORTHWITH from engaging in further conduct having the effect of frustrating or avoiding or delaying payment or satisfaction of this CNMI debt to the Fund; and, (iii) failing such expeditious payment or satisfaction, to command the U.S. Marshals or other Federal entities or officials to seize assets owned and/or possessed and/or controlled by the CNMI to ensure payment and satisfaction of CNMI debt to the Fund both forthwith and in full.

The complaint asks the court to declare CNMI Law 15-15 unlawful under U.S. law saying that it violates guaranteed rights and protections of the constitution and laws of the U.S. which apply to the CNMI, plaintiffs, and other CNMI retirees.

The complaint also states that the complaint may be amended in the future to include Racketeer Influenced And Corrupt Organizations (“RICO”) civil claims as to various CNMI DOE Defendants "as facts and materials presently unavailable to the CNMI retirees, Plaintiffs included, become made available through the course of this proceeding."

Mr Jorgensen summarized the intent of the lawsuit in this statement:

Succinctly put, this lawsuit was initiated at the behest of a core group of extraordinarily concerned CNMI retirees in an effort to preserve the rights of ALL CNMI retirees/Fund beneficiaries (who are welcome to join this U.S. Court action either individually, or as prospective class action litigants) to pursue claims/seek recourse in the U.S. Court separate and distinct from: (i) the protracted CNMI Superior court proceedings; and/or, (ii) reputed compromise/settlement considerations, dealings, negotiations, consultations by and between the current administration and the very Fund officials now controlling themselves the CNMI Superior Court proceedings via the counsel salaried and selected not by individual retirees or their association but, rather, by Fund officials themselves.

Persons wishing to contact or communicate with Mr. Jorgensen regarding the Fund matter generally, or the Roe/Doe v. CNMI et. al. case particularly, should use the email address explicitly created for this purpose, which email address is: retireeslawyer@yahoo.com .

_______________

Malinda Matson, a former employee of NCM who now resides in Virginia also filed a lawsuit against the CNMI government and the CNMI Retirement Fund in federal court this month through Attorney Richard Pierce. Also named as defendants are the Fund's board of trustees chair Juan T. Guerrero, Fund administrator Mark A. Aguon and Fund trustees Pedro Q. Dela Cruz, Adelina C. Roberto, Marian DLG. Tudela, Francisco P. Rosario, Bernadita C. Palacios, Sixto K. Igisomar, and Dicta C. Tenorio.

Ms. Matson's lawsuit states that she worked for 25 years as a CNMI employee. When she retired in January 2009 she applied for her retirement benefits. In April 2009 the Retirement Fund declined to process her request claiming that the CNMI Department of Finance had not "remitted to the NMI Retirement Fund approximately $144,460.06 for the employer’s contribution to the NMI Retirement Fund."

The lawsuit alleges, "At all relevant times, the NMI Retirement Fund had the fiduciary duty to invest employer and employee contributions to the Fund in a prudent manner."

From the Saipan Tribune:

Matson, through lawyer Richard W. Pierce, asked the U.S. District Court for the NMI to order the defendants to pay her damages, court costs, attorney's fees, expert fees, and interest.

Matson asked the court to issue an order declaring that the denial of her retirement benefits violates the guarantees of equal protection and due process and the right to be free from arbitrary and capricious government action, and unreasonable seizure-all protected by the U.S. Constitution.

She also asked the court to prevent the current trustees and Aguon from refusing to process her application for retirement benefits.

_______________

Additionally, Timothy Villagomez, former CNMI Senator filed a lawsuit in U.S. District Court of the Northern Marinas through attorney Ramon Quichocho. The preliminary statement reads, "This case is about the Retirement Fund’s double-standards, and how it must end!"

The complaints states that Mr. Villagomez worked as a CNMI employee for 18 years. In order to to meet the 20-year requirement of government service for a retiree to be entitled to receive an additional five years credit, Mr. Villagomez paid the fund $28,092.39, the employees share of the difference in April 2008. The CNMI government failed to pay the employer's contribution which has resulted in the withholding of retirement benefits.

From the complaint:

On July 29, 2008, and after it was clear that the Retirement Fund will not pay his
retirement benefits, Plaintiff wrote the Northern Mariana Retirement Fund and requested for the return of the $28,092.39 he paid on April 10, 2008, plus interest.

To date, Plaintiff has not received a single cent of retirement benefits despite being Certified to be eligible for retirement benefits.

The complaint alleges conspiracy to deprive plaintiff of property, deprivation of property, breach of contract, constructive fraud and negligent breach of fiduciary duty. The complaint seeks damages and "mandatory injunction ordering Defendant Northern Mariana Island Retirement Fund to: (a) immediately process the application of Plaintiff for retirement benefits; and (b) immediately release all the retirement benefits due to Plaintiff as provided for under the Retirement Fund Act.

____________________

In August 2006 the Retirement Fund filed a lawsuit in Superior Court suing Governor Fitial, former Secretary of Finance Eloy Inos and the central government for passing PL 15-15 which suspended the employer contribution to the retirement fund. The lawsuit listed these causes of action as stated in the Saipan Tribune:

* breach of the December 2001 contract, which commits the central government to pay $500,000 bi-weekly to the Fund;

* breach of contractual agreement between the CNMI government and its employees who are members of the Fund and with its annuitants;

* enactment of Public Law 15-15, suspending the employer contribution up to the end of fiscal year 2007, which is “unconstitutional because it diminishes or impairs the accrued benefits of the Fund”;

* violation of the contract clause of the CNMI Constitution, which prohibits the enactment of laws that impair the obligations of contract;

* violation of 1 CMC section 8362 by failing to remit the statutorily required employer contribution to the Fund amounting to $91.5 million as of Aug. 1, 2006;

* violation of 1 CMC 2553 for failure to remit statutorily required employer contribution;

* violation of P.L. 8-31, which requires the government since fiscal year 1994 to allot or pay the Fund 30 percent of the container excise tax and 20 percent of the hotel occupancy tax in part to fund the members' group health and life insurance program, the cost of living allowance, and for the sound actuarial support of the retirement system, now totaling $24 million;

* violation of P.L. 8-30, which requires the government to remit the money intended for the early retirement bonus of qualified members, amounting to $3.5 million;

* failure to remit payment for the special benefits for past governors and lt. governors as embodied in P.L. 8-31, amounting to $445,603;

* the need for issuance of a writ of mandamus “to compel the Department of Finance and DOF director to perform their ministerial duties or obligations of remitting payments to the Fund.”

The complaint requests that the court declare P.L. 15-15 as "unconstitutional, null and void, and unenforceable, because it allegedly violates Article 3 section 20[a] and Article 1 section 1 of the Constitution."

In November 2008 the CNMI government and Governor Fitial were found liable in the lawsuit for failing to remit the employer's portion to the fund. The Attorney General's Office waited nearly two years to answer the complaint so the judge granted the Retirement Fund's request for a default judgment. From the Saipan Tribune:

The Fund filed the lawsuit against the government, Fitial, Department of Finance, and Finance Secretary Eloy Inos in 2006 over the government's failure to remit required payments. On Oct. 3, 2006, the Fund filed a first amended complaint. On Oct. 23, 2006, the defendants filed a motion to dismiss the four causes of action in the lawsuit. The motion extended the defendants' time to file an answer by 10 days following the court's ruling on the motion. On May 6, 2008, then Superior Court Associate Judge Juan T. Lizama denied defendants' motion to dismiss.

The government at that time had until May 16, 2008, to file its answer. The AGO filed the answer on June 24, 2008.

In his order granting default judgment, Govendo said the answer obviously was filed beyond the 10-day deadline and in fact was 39 days beyond the deadline.

Govendo said that when asked to explain the delay, assistant attorney general Anthony Welch said, “I messed up. It was me.if you need to sanction someone it should be me.it was my fault.”

Govendo said he is appalled by this inexcusable lapse on the part of the Commonwealth as the government was put on notice in August 2006 that an answer was going to have to be filed.

The judge said Welch also stated both in court on Oct. 17, 2008, and in his motion to extend time to answer that he was too preoccupied with the Commonwealth Utilities Corp. and other responsibilities to address the Fund's complaint.

“The court finds this excuse unacceptable. Surely, regardless of the press of other business, the Attorney General's Office can be expected to find the resources to answer a multimillion dollar lawsuit within the time limit prescribed by law,” he said.

Govendo said that to accept this excuse from an office that appears to be permanently under the “press of other business” and to not declare a default against the Commonwealth would set a precedent that the Commonwealth is free to disregard the rules of civil procedure.

It seems to me that the judge could have contacted the OAG after the 10-day deadline passed to submit the document instead of allowing the case to stall for years.

In early June 2009 Governor Fitial offereed to settle the lawsuit out of court. His offer was rejected.

The fund's underfunded liability is now estimated to be $584 million according to an April 14, 2009 Saipan Tribune article:

The Retirement Fund warns that the CNMI pension program may be wiped out in five years or as early as three years due to the government's unpaid obligation and the impact of the global economic crisis on the NMI Retirement Fund's investment portfolio.

At a hearing June 10, 2009 it was determined that the CNMI government owes $215 million to the fund.

Ruling in Kevin Ring Case: Charges Stand

2009-06-26T22:30:00.010+10:00

June 26, 2009

U.S. District Judge Ellen Segal Huvelle denied Kevin Ring's motion to dismiss charges in his case. In a 41-page Memorandum Opinion and Order issued June 24, 2009 the judge responds to Ring's motion to dismiss the indictment, and the arguments presented at the April 9, 2009 hearing.

Kevin Ring was intimately involved with lobbyist Jack Abramoff, former Rep. John Doolittle (R-Abramoff), other lobbyists, Congressional staffers and members of Congress in the CNMI's efforts to block federalization and the minimum wage.

The opinion and order reviews the case and the ten counts that Kevin Ring was indicted for in September 2008. The analysis makes several key points:

Under Stand of Review, the judge states that an indictment need only contain a "plain, concise and definite written statement of the essential facts constituting the offense charged..." Fed. R. Crim. P. 7(c). However, "an indictment is not required to set forth all the evidence the Government plans to present." United States v Palfrey, 449 F. Supp. 2d 34. 45 (D.D.C. 2007) (citing United States v Halderman, 559 F. 2d at 123). The opinion continues to cite cases that support the order not to dismiss.
The judge discusses Count II, Payment of Illegal Gratuities, and cites the Government's Opposition document stating that because "not every single detail was included in the conspiracy's overact acts does not limit the government's proof at trial." This charge was based on Kevin Ring act of requesting help from Coughlin in getting INS approval for Abramoff's private school to have foreign students in exchange for gifts. The count stands.
The judge stated that Ring "misread both the indictment and the relevant law case" in regard to Counts III -VIII, Honest Services Wire Fraud. She states:
Courts have long recognized at least two ways in which "a public official can steal his honest services from the public employer: (1) the official can be influenced or otherwise improperly affected in the performance of his duties, or (2) the official can fail to disclose a conflict of interest, resulting in personal gain." United States v. Woodward, 149 F.3d 46, 57 (1st Cir. 1998)

The judge discusses bribery at length. She states that:

"Ring's challenges to the legal sufficiency of the indictment are based on a series of incorrect premises. As an initial matter, he makes much of the fact that he is a private citizen who owes no duty to the public and therefore cannot be prosecuted for depriving the public of the right to his honest services. (Mem. at 8-11.) Ring misreads the indictment. The government has not alleged that Ring deprived the public of his own honest services, but rather that he devised a scheme to deprive the public of its rights to "the honest services of certain public officials," and that he aided and abetted such a scheme. (Ind. at 39-40 ¶¶ 2-3 (emphasis added).) The mail and wire fraud statutes have long been used to prosecute private participants in schemes to deprive the public of an official's honest services.

In regard to Count I, Conspiracy, the judge also says that Ring's arguments fail:
Ring also contends that the conspiracy count is invalid because the government has not specified which public officials are co-conspirators, and yet certain of the alleged criminal violations :turn on proof of "official acts' and relevant duties." (Mem. at 25.) Such an argument is meritless. First the co-conspirators need not be identified in the indictment. Second, the government's bill of particulars does not identify them. Finally, as a matter of law, public officials do not need to be co-conspirators...Count I is therefore sufficient on its face.
Count IX, Obstruction of Justice Re: Communications, also stands with the judge stating that, "The government need only show that "the misleading information" was "likely to be transferred to a federal agent." United States v. Veal, 153 F.3d 1233, 1251 (11th Cir. 1998) (emphasis in original).
Count X, Obstruction of Justice Re: Official Proceedings also stands. The judge states, "The problem with Ring's argument at this stage "is that it conflates pleading with proof." From the order:
It is enough that the indictment alleges the elements of obstructing justice as set out under § 1512(c)(2): that Ring (1) corruptly (2) did or attempted to obstruct, influence, or impede an official proceeding by providing false statements to Firm B's outside counsel "to cause and in an attempt to cause" those misrepresentations to be provided to the grand jury and Indian Affairs Committee. (Ind. at 45-46 ¶ 2.)

Also filed yesterday was Ring's REPLY IN SUPPORT OF MOTION TO REMEDY PROSECUTORIAL CONFLICT OF INTEREST that Mr. Welch be removed from the prosecution team. (See the post: Ring Case: Battle over Prosecution Team, Witness.) The government stated that Ring's motions in this regard have been meritless, his attacks on Mr. Welch were a distraction, and the question was moot since Mr. Welch withdrew himself from the prosecution team.

In GOVERNMENT’S THIRD UNOPPOSED MOTION TO DISCLOSE CERTAIN GRAND JURY MATERIAL the government, with defendant Ring, requested that grand jury material be given to defendant Ring in order to help him prepare his case. Specifically, they requested copies of the grand jury subpoenas to help him organize the "Significant amount of material the government has produced to date" and copies of the grand jury transcripts "That concern the subject matter of this case".

The motion stated:

Though this disclosure of grand jury material will reveal the identities of witnesses who testified before the grand jury and the subject of their testimony, disclosure pursuant to the Court’s protective orders will strike the appropriate balance between maintaining the secrecy of grand jury matters and allowing Ring to fully prepare his defense.

The judge approved the motion. Ring's trial begins in September 2009.

See the post, Doolittles further implicated in Kevin Ring Documents for references to the CNMI in Ring's indictment. Also, visit the Anti-Corruption Republican to read posts on the Ring case and other Abramoff-connected cases.

A hearing was held today in the U.S. District Court of Washington, DC before Judge Ellen S. Huvelle. This notice states that an order on a variety of motions will be forthcoming:

Minute Entry for proceedings held before Judge Ellen S. Huvelle

Motion Hearing as to KEVIN A. RING held on 6/26/2009 re [55] MOTION to Suppress Tangible Evidence filed by KEVIN A. RING, [56] MOTION to Disqualify Counsel filed by KEVIN A. RING, [52] MOTION to Compel Reciprocal Discovery filed by USA, [53] MOTION for 404(b) Evidence filed by KEVIN A. RING, [54] MOTION to Sever Count(s) filed by KEVIN A. RING, [57] MOTION to Suppress Tangible Evidence filed by KEVIN A. RING Status Conference set for 8/13/2009 at 10:00 AM in Courtroom 14 before Judge Ellen S. Huvelle. Order Forthcoming. Bond Status of Defendant: Personal Recognizance; Court Reporter: Crystal Pilgrim Defense Attorney: Richard A. Hibey, Andrew Todd Wise, Timothy P. O'Toole; US Attorney: Michael Ferrara, Michael J. Leotta, Nathaniel B. Edmonds; (tr)

Meeting with President Obama on Immigration Reform

2009-06-26T21:14:00.002+10:00

June 26, 2009

Press Release from the Hispanic Caucus:

CHC Prepares for Next Steps on Immigration Reform

(Washington, DC) - Today, President Barack Obama hosted a bipartisan, bicameral group of Members of Congress in an effort to open the discussion on a concrete and achievable plan to pass Comprehensive Immigration Reform. The Members of the Congressional Hispanic Caucus (CHC) that took part in the meeting believe the President strongly articulated his commitment to moving immigration reform and look forward to working with Secretary Janet Napolitano and leaders in Congress to get a reform bill passed this year.

“For the first time since I’ve been a Member of Congress, I’m seeing a genuine effort to bring together the diverging views on immigration and move past the rhetoric, so that we can have an honest and open conversation with the end goal being true comprehensive immigration reform. I am excited that the President has named Secretary Janet Napolitano to be the point person of his Administration on this reform, and I believe that selection speaks volumes to the level of commitment the White House has to resolving this crisis,” said Congresswoman Nydia M. Velazquez (D-NY), the Chairwoman of CHC. “The American people want meaningful reform and, after today’s meeting, I believe that we have a group of legislators who are ready to make that happen. Complex and sensitive issues, such as immigration, require the leadership of the President and on behalf of the CHC, I want to thank him for bringing us together.”

"From a national security perspective, we need comprehensive immigration reform to bring the estimated 9 to 12 million people out of the shadows so we can focus our efforts on the select few who may pose a security risk," Congressman Silvestre Reyes, Chairman of the House Select Committee on Intelligence, said. "The President reiterated his commitment to moving forward with comprehensive immigration reform legislation and sought a commitment from both Republicans and Democrats to seek common ground on vital issue."

"President Obama understands the importance of the issue and has put the weight of the White House behind our efforts to pass comprehensive immigration reform," said Congressman Xavier Becerra, Vice Chair of the House Democratic Caucus. "I believe the American public has the will to support a comprehensive reform of our immigration laws. They are tired of the broken immigration system and want to see something done. We will continue working with the President and in a bipartisan manner to finally come forth with a bipartisan solution."

"Today, a lot of cynicism and a lot of doubt were left behind," said Congressman Luis V. Gutierrez, Chair of the CHC Immigration Task Force. "President Obama said he wants to get this done this year. The President convened a meeting, he brought together a group of lawmakers who are serious and committed to comprehensive immigration reform, and he led. He was the President of the United States, and he led today."

__________________________

Attendees at today’s meeting on immigration reform:

ADMINISTRATION OFFICIALS:
Secretary of Homeland Security Janet Napolitano
Secretary of Labor Hilda Solis
Deputy Attorney General David Ogden
Chief of Staff Rahm Emanuel

MEMBERS OF CONGRESS:
Senator Richard Durbin
Senator John Cornyn
Senator Dianne Feinstein
Senator Lindsey Graham
Senator Jon Kyl
Senator Patrick Leahy
Senator Mel Martinez
Senator John McCain
Senator Robert Menendez
Senator Chuck Schumer
Senator Jeff Sessions
Senator Arlen Specter
Representative Xavier Becerra
Representative Howard Berman
Representative Anh Cao
Representative James Clyburn
Representative John Conyers
Representative Joe Crowley
Representative Lincoln Diaz Balart
Representative Gabrielle Giffords
Representative Luis Gutierrez
Representative Sheila Jackson Lee
Representative Zoe Lofgren
Representative Adam Putnam
Representative Silvestre Reyes
Representative Loretta Sanchez
Representative Heath Shuler
Representative Lamar Smith
Representative Nydia Velazquez
Representative Anthony Weiner

THE WHITE HOUSE

Office of the Press Secretary

For Immediate Release June 25, 2009

REMARKS BY THE PRESIDENT
AFTER MEETING WITH MEMBERS OF CONGRESS
TO DISCUSS IMMIGRATION

State Dining Room

3:17 P.M. EDT

THE PRESIDENT: Hello, everybody. We have just finished what I consider to be a very productive meeting on one of the most critical issues that I think this nation faces, and that is an immigration system that is broken and needs fixing.

We have members of Congress from both chambers, from parties, who have participated in the meeting and shared a range of ideas. I think the consensus is that despite our inability to get this passed over the last several years, the American people still want to see a solution in which we are tightening up our borders, or cracking down on employers who are using illegal workers in order to drive down wages -- and oftentimes mistreat those workers. And we need a effective way to recognize and legalize the status of undocumented workers who are here.

Now, this is -- there is not by any means consensus across the table. As you can see, we've got a pretty diverse spectrum of folks here. But what I'm encouraged by is that after all the overheated rhetoric and the occasional demagoguery on all sides around this issue, we've got a responsible set of leaders sitting around the table who want to actively get something done and not put it off until a year, two years, three years, five years from now, but to start working on this thing right now.

My administration is fully behind an effort to achieve comprehensive immigration reform. I have asked my Secretary of the Department of Homeland Security, Secretary Janet Napolitano, to lead up a group that is going to be working with a leadership group from both the House and the Senate to start systematically working through these issues from the congressional leaders and those with the relevant jurisdiction. What we've heard is through a process of regular order, they would like to work through these issues both in the House and in the Senate.

In the meantime, administratively there are a couple of things that our administration has already begun to do. The FBI has cleared much of the backlog of immigration background checks that was really holding up the legal immigration process. DHS is already in the process of cracking down on unscrupulous employers, and, in collaboration with the Department of Labor, working to protect those workers from exploitation.

The Department of Homeland Security has also been making good progress in speeding up the processing of citizenship petitions, which has been far too slow for far too long -- and that, by the way, is an area of great consensus, cuts across Democratic and Republican parties, the notion that we've got to make our legal system of immigration much more efficient and effective and customer-friendly than it currently is.

Today I'm pleased to announce a new collaboration between my Chief Information Officer, my Chief Performance Officer, my Chief Technologies Officer and the U.S. Citizenship and Immigration Services Office to make the agency much more efficient, much more transparent, much more user-friendly than it has been in the past.

In the next 90 days, USCIS will launch a vastly improved Web site that will, for the first time ever, allow applicants to get updates on their status of their applications via e-mail and text message and online. And anybody who's dealt with families who are trying to deal with -- navigate the immigration system, this is going to save them huge amounts of time standing in line, waiting around, making phone calls, being put on hold. It's an example of some things that we can do administratively even as we're working through difficult issues surrounding comprehensive immigration.

And the idea is very simple here: We're going to leverage cutting-edge technology to reduce the unnecessary paperwork, backlogs, and the lack of transparency that's caused so many people so much heartache.

Now, we all know that comprehensive immigration reform is difficult. We know it's a sensitive and politically volatile issue. One of the things that was said around the table is the American people still don't have enough confidence that Congress and any administration is going to get serious about border security, and so they're concerned that any immigration reform simply will be a short-term legalization of undocumented workers with no long-term solution with respect to future flows of illegal immigration.

What's also been acknowledged is that the 12 million or so undocumented workers are here -- who are not paying taxes in the ways that we'd like them to be paying taxes, who are living in the shadows, that that is a group that we have to deal with in a practical, common-sense way. And I think the American people are ready for us to do so. But it's going to require some heavy lifting, it's going to require a victory of practicality and common sense and good policymaking over short-term politics. That's what I'm committed to doing as President.

I want to especially commend John McCain, who's with me today, because along with folks like Lindsey Graham, he has already paid a significant political cost for doing the right thing. I stand with him, I stand with Nydia Velázquez and others who have taken leadership on this issue. I am confident that if we enter into this with the notion that this is a nation of laws that have to be observed and this is a nation of immigrants, then we're going to create a stronger nation for our children and our grandchildren.

So thank you all for participating. I'm looking forward to us getting busy and getting to work. All right? Thank you.

Oh, and by the way, I hope everybody has got their Hawaiian shirts -- (laughter) -- and their mumus for our luau tonight.

King of Pop Dies

2009-06-26T09:29:00.010+10:00

June 25, 2009

Charlie's Angel, Farrah Fawcett, age 62, died today after a long and courageous battle with cancer. But news of her expected death was overshadowed by the unexpected death of 50-year-old Michael Jackson. The pop star died of cardiac arrest in a Los Angeles hospital around 3:00pm today.

Michael Jackson was both talented and tormented. The singer was an entertainer from the time he was a child, performing with his siblings in the Jackson Five. He is known for his album, "Thriller", which is still the best selling album in the world. He is also known for his Neverland Ranch, for his marriage to Lisa Presley, for being charged with molesting young boys, for his friendship with Elizabeth Taylor, and for his enormous talent.

Michael Jackson's songs spanned the generations and almost everyone knows at least one Michael Jackson song. I like Billie Jean, and this song that he co-wrote:

DOL: New rules for cheated workers to chase down their money

2009-06-26T00:13:00.009+10:00

June 25, 2009

The CNMI Department of Labor is requesting that the foreign contract workers with bond claims register at their office.

For decades DOL just blew off the claims/judgments. If a worker didn't get paid - oh well. DOL has consistently claimed that their labor cases were "settled" or "closed" when the administrative orders and judgments were issued. I consider a case "settled" or "closed" when the victim has received the monetary award that DOL determined was due to them.

The current senseless non-system has resulted in thousands of workers being cheated. For that reason we gathered as many administrative orders with unpaid judgments as we could from December 2007 to January 2008 hoping that they would be paid.

After the news came out that $6.1 million in unpaid judgments had been collected, DOL came up with an equally ridiculous idea of having the victims register in small claims court to collect their judgments from their unscrupulous employers. Cheated workers were instructed that they, themselves, must serve papers on their former employers. The plan was attacked by labor advocates and attorneys.

In March 2009 Judge Perry Inos ruled that it was DOL's responsibility to collect judgments from the bonding companies. (Have we not argued that for decades?) From the Saipan Tribune:

In a ruling issued Thursday, Associate Judge Perry B. Inos dismissed for lack of jurisdiction the consolidated small claims filed by 11 Chinese workers against bonding companies Oceania Insurance Corp. and Royal Crown Insurance Corp.

The issue stems from a Labor advice for alien workers to file small claims suits in the Superior Court to recover the awards granted them by Labor against their employers.

Citing a 2007 Superior Court decision, however, Inos said the jurisdiction to enforce bonds issued pursuant to the CNMI Nonresident Workers Act is vested solely with Labor.

“The NWA's extensive statutory and regulatory scheme regarding the enforcement of these bonds again leads this court to conclude that 'the Legislature has not intended to allow such suits,'” the judge said.

The issue came about after the employers of the 11 complainants breached their employment contracts, prompting the workers to file complaints with Labor. At the hearings, the Labor Administrative Hearing Officer awarded each worker back wages and other relief against their employers. Labor, however, did not institute separate proceedings against the defendants' insurance companies, although the defendants were each served with a notice of claim concerning the plaintiffs' awards. Presently, the insurance companies have made no payments on the labor bonds. Labor has not started any action to enforce any of its claims on the bonds.

At the advice of Labor, the workers filed complaints in the Superior Court's Small Claims Division so they will be paid by the insurance companies directly.

Finally, over three months later, DOL's response to that order is to have the cheated workers register with DOL and fill out a declaration that they did not receive the payments owed to them. From the Saipan Tribune:

Acting Labor Secretary Cinta M. Kaipat told Saipan Tribune yesterday that Labor was required to change its practices because of Superior Court associate judge Perry B. Inos' ruling relating to the bond issue.

Kaipat, however, stated that due to some reasons, many foreign workers will still be referred to the small claims court as Labor has been doing in the past.

Last March, Inos ruled that Labor has exclusive jurisdiction over alien workers attempting to collect on labor bonds and that the courts do not have the authority to enforce these bonds. Inos dismissed for lack of jurisdiction the consolidated small claims filed by 11 Chinese workers against two bonding companies.

The issue stems from a Labor advice to alien workers to file small claims in the Superior Court to recover the awards granted them by Labor against their employers.

Inos noted that the primary reason the workers are unable to recover the awards granted them by Labor is because Labor has thus far not attempted to enforce the insurance companies' obligations under the labor bonds.

Last Monday, Labor placed a one-page notice in this paper, notifying 129 alien workers who were awarded money damages by Labor but have not been paid to visit Labor's Complaint Intake Section.

In the notice, Labor asked the complainants to fill out a declaration affirming that payments have not been paid to them.

The workers were advised to bring a copy of their administrative orders and their entry permit card. The complainants are given until July 20, 2009, to report to the Complaint Intake Section.

Labor said awards in some of these cases may be covered by labor bonds.

When asked by Saipan Tribune about the notice, Kaipat said that Labor was not a party to the case in which Judge Inos issued his opinion so the department did not have a chance to explain why their policy of using the small claims court is the most effective and efficient way to get bond claims resolved.

“We also did not have a chance to appeal. Labor is hopeful that when the courts have a case in which Labor is a party and can present its view, the rule will change,” Kaipat said.

The acting Labor Secretary, however, stated that for now the department must abide by Inos' ruling.

She said two more of the same notices will be issued over the summer.

I see several flaws with this procedure.

The deadline is disturbing. Why is there a deadline on registering? Does this mean that after the July 20, 2009 date DOL will declare all other bond cases "closed" or "settled"?

Is placing a notice in the newspaper an effective way of reaching the cheated workers? What if some of them have already returned to their countries? What if they do not read the newspapers? Is this notice also posted in public places and placed on the CNMI DOL website? Are the employees not going to be individually served? Will notices be placed in the Philippines, China, Bangladesh and other countries that cheated workers returned to without what was owed to them?

Again, what kind of faulty record keeping system is there at DOL? After an administrative order and judgment is issued why doesn't DOL have a deadline (say 30 days) for the employer to pay the employee? After that time period has expired, DOL could contact the bonding company to pay the judgment. If the bonding company defaults (say after 30 days), then DOL could notify the Department of Commerce to suspend their license and refer the case to the CNMI AG for prosecution. DOL should have a record keeping system to track when the judgments are paid by the employer or bonding company. After judgments are paid, and only then, they should close the case.

To get employers to pay the judgments there should also be a penalty to the employers. Why doesn't DOL fine the employers (say $25 to $50 a day) for every day past the listed time limit that the employer fail to pay the employee?

Why doesn't DOL publish the list of employers who are barred from hiring foreign contract workers because they defaulted on judgments or otherwise violated labor law?

Another Saipan Tribune article stated that DOL Director Barry Hirshbein was not demoted, but simply temporarily assigned to be a hearing officer again. (Apparently Cinta Kaipat failed to discuss the reassignment with him.) He was returned to be a hearing officer because of the case load they expect from this new bonding case process.

Here is how Kaipat further explained the process:

Labor divided up the entire list so that their staff is not overloaded with many people trying to register at once.

Kaipat explained that a bond claim is entirely separate from a labor case.

“For that reason, a new proceeding must be started. In this new proceeding, under Judge Inos' ruling, the director of Labor brings a claim on behalf of the worker against the bonding company,” she said.

In order to do this, Kaipat explained, the Labor director needs a sworn statement from the workers that the awards have not been paid. When a worker registers the bond claims, she said, a notice is provided to the bonding company, and a hearing is held. Kaipat said the director presents the worker's sworn statement that the award has not been paid, and the bonding company presents any defenses that it has.

“The Hearing Office issues an opinion. Either side may appeal to the Labor Secretary. Once the Secretary's opinion is issued, either party may appeal to the court. Then the bond claim will be in the court, where the department thinks all bond claims should be in the first place,” she said.

Kaipat said the bonding companies are licensed by the Department of Commerce and that only the courts have the power to seize their assets and make them pay awards.

Kaipat cited three reasons why many alien workers will still be referred to small claims court: There is no bond; there is a bond but the worker's claim is covered only partially by the bond; and there is a bond, but the bond does not cover the award at all.

Instead of referring workers to small claims court to collect their payments, the laws should be revised to make employers pay within a set time period as I suggested above. The burden should fall on the violator, not the person who was violated.

Will there be a fee for a worker to apply at DOL? If so, how much?

The notice that DOL published in the paper concerning the bonding companies indicates that the listed cases before 2006.

Kaipat also made these claims:

Under the new system of handling bond claims, Kaipat said they expect fewer claims in the future.

Under PL 15-108, foreign workers must make their claims within six months of the employer conduct about which they are complaining and, in any event, within 30 days after the termination of their contract.

“This means that complaints are resolved promptly, and we don't have the problem of employers disappearing over the years that it formerly took to get a claim adjudicated. We also don't have the problem of disappearing insurance companies,” she said.

Attorney Roberts Meyers sued the DOL on behalf of 127 for failing to collect their wages from bonding companies.