Judge: No TRO or injunction in PSS lawsuit

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SUPERIOR Court Associate Judge Joseph N. Camacho has set a status conference for June 23, 2020 at 2:30 p.m. in the lawsuit filed by the Public School System against the CNMI government over the PSS budget.

In his order, the judge said there is no temporary restraining order/injunction granted at this time.

Commissioner of Education Alfred Ada sued the Torres administration, alleging inaccurate allotments made to the PSS for fiscal year 2020, which PSS said is in violation of the CNMI Constitution.

Ada, through attorney Tiberius Mocanu, filed a complaint for declaratory and injunctive relief in the court and named Gov. Ralph DLG Torres and Secretary of Finance David DLG Atalig as defendants.

The lawsuit asks the court to declare P.L. 21-08, or the FY 2020 budget law, unconstitutional and to issue a preliminary and permanent injunction to stop Torres and Atalig from issuing any payments or disbursements that do not comply with the CNMI Constitution.

On April 29, PSS filed a motion for summary judgment, saying that the CNMI Supreme Court’s decision in a certified question regarding the PSS budget was “cognizant of [the] decision’s impact” and stated that it will have “significant consequences for the Commonwealth’s fiscal affairs.”

Mocanu said the high court’s opinion “applied when it was issued and fundamentally changed the face of the law in the NMI.”

More precisely, he added, “It rendered the formula used by P.L. 21-08 to calculate PSS’s share of general revenue unconstitutional.”

Mocanu said it also rendered all subsequent budget modifications and proportional cuts that relied on the original P.L. 21-08 formula unconstitutional as well.

“Paradoxically Governor Torres and Secretary Atalig acknowledge that the [high court’s] opinion changed the law, but inexplicably maintain a position that the status quo is legal,” he added.

Mocanu said Gov. Torres and Sec. Atalig not only maintain their position that the status quo is legal for this fiscal year but for next year’s budget as well.

He noted that in the governor’s budget proposal fiscal year 2021 the governor keeps all the earmarks included in PL 21-08 and continues to exclude them from the calculation of the PSS budget.

“There is a lot of rhetoric surrounding whether PSS should be given more funding, especially against the backdrop of furloughed government workers, a devastated economy, and a global pandemic that threatens our only industry and source of income,” Mocanu said.

However, he added, quoting the high court’s opinion, “until such time as the people of the Commonwealth change the law, we are left to interpret the law in accordance with the text of the CNMI Constitution and the drafters’ intent.”

The CNMI Constitution is clear, Mocanu said. “Every person in the Northern Mariana Islands has the right to a free, compulsory, and public elementary and secondary education. Moreover, in order to fund that education, PSS shall be guaranteed an annual budget of not less than 25% of the general revenues of the Commonwealth.”

The high court’s opinion is also clear, Mocanu added. “A nexus is required between a revenue’s source and its purpose in order to ensure that PSS receives its constitutionally guaranteed percentage.”

He said the earmarks in P.L. 21-08 that purport to convert general revenue into special revenue do not meet the nexus test.

The earmarks do not possess a relationship between the source and purpose of the revenue they distribute, much less a reasonable one, he added.

Consequently, the calculation of the PSS budget under P.L. 21-08 does not include general revenue to which it is constitutionally entitled under Article XV (e) of the CNMI Constitution, Mocanu said.

“As such, P.L. 21-08 and its amendments are unconstitutional and unenforceable as a matter of law,” he added.

In response to the lawsuit, the administration, through the Attorney General’s Office, stated that its actions are allowed by the declaration of a state of emergency pursuant to the CNMI Constitution, the Homeland Security and Emergency Management Act, and the CNMI Emergency Health Powers Act of 2003.

According to the AG’s office, the changes that the Torres administration made to the budget are required by law and that the plaintiff’s request would require the governor to violate the law and is thus illegal.

Moreover, the AG’s office stated, P.L. 21-08 appropriated PSS 25.3% of the “[t]otal local revenue and resources available for appropriation for Commonwealth government activities in Fiscal Year 2020” and not 16% as claimed by PSS.

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