Sablan v. Tenorio

4 N. Mar. I. 351, 1996 N. Mar. I. LEXIS 22

• Court: Supreme Court of The Commonwealth of The Northern Mariana Islands
• Decided: April 18, 1996
• Docket: Appeal No. 94-034; Civil Action No. 94-0500
• Status: Published

Opinions

VILLAGOMEZ, Justice:

The appellant, Jesus R. Sabían (“Sabían”), appeals the trial court’s decision dismissing certain of his claims and entering summary judgment for the appellees on other claims.

We have jurisdiction under 1 CMC § 3102(a). We affirm as to those issues we have decided to review.

ISSUES & STANDARDS OF REVIEW

Sabían presents five issues for our review:

I. Whether the appellees, Governor Frailan C. Tenorio (“Governor”) and the Ninth Commonwealth Legislature (“legislature”), have legislative immunity from Sablan’s action challenging the apportionment of the Senate under 42 U.S.C. § 1983 (“§ 1983”).

The trial court dismissed Sablan’s § 1983 actions against the Governor and the legislature without citing a specific subsection of Com. R. Civ. P. 12. However, we infer from the court’s clearly stated reason for the dismissals that it invoked Com. R. Civ. P. 12(b)(6).

Legislative immunity is an affirmative defense which provides absolute, comprehensive protection from suits challenging actions taken in the performance of official legislative functions. Where the complaint itself establishes legislative immunity, a § 1983 action should be dismissed under Com. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted.¹ A dismissal under Com. R. Civ. P. 12(b)(6) is reviewed de novo.²

We base our review on the contents of Sablan’s complaint, construe it in the light most favorable to him,³ and accept all well-pleaded facts as true.⁴ The dismissal will be deemed proper if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”⁵

II. Whether the composition of the Senate of the Ninth Commonwealth Legislature violates the rights, under the Fourteenth Amendment to the U.S. Constitution, of the residents of Saipan to equal protection of the law. The trial court granted summary judgment as to this claim. Our review is, therefore, de novo.⁶

III. Whether the trial court erred by making findings of fact in a summary judgment proceeding when those facts were disputed. This issue challenges the propriety of deciding factual matters in the context of ruling on cross-motions for summary judgment and a preliminary injunction. This is a question of law which we review de novo.

IV. Whether the claim that the May 13, 1994, election of new Senate officers violated the Senate Rules of Procedure (“Senate Rules”) is a political question. The trial court dismissed this claim and, as with the § 1983 action, the court did not cite a specific procedural rule. Nevertheless, from the reasoning underlying the dismissal, we infer that the court invoked Com. R. Civ. P. 12(b)(6).

A determination that the alleged Senate Rules violation constituted a nonjusticiable political question should have led to a dismissal for failure to state a claim under Com. R. Civ. P. 12(b)(6).⁷ Our review is de novo.⁸

V. Whether the Senate violated the Commonwealth’s Open government Act of 1992⁹ (“Open Government Act”) during the special session of the Senate called by the Governor and held on May 13, 1994. We will not review this issue because we conclude, as the parties have suggested, that the question is now moot.¹⁰

FACTUAL & PROCEDURAL BACKGROUND

Under Section 203(c) of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America (“Covenant”)¹¹ and N.M.I. Const, art. II, § 2(a), the Commonwealth is divided into three senatorial districts: Saipan,¹² Tinian, and Rota. The population of the Saipan senatorial district exceeds the population of the other two senatorial districts by more than ten times. Notwithstanding this disparity, each senatorial district is equally allotted three seats in the Commonwealth Senate.

I. Senate Session

On January 10, 1994, at the first regular session of the Ninth Commonwealth Legislature, Sabían was elected Senate President and the Senate adopted the official Rules of the Senate for the Ninth Commonwealth Legislature.

On May 11, 1994, three Senators asked Sabían in writing to call a special Senate session for that day. Four other Senators signed a request asking the Governor to call a special Senate session for, among other purposes, considering matters “relating to Senate leadership organization.”¹³ The Governor called a special Senate session for 5:00 p.m. the same day.

Although Sabían did not call a special Senate session for that day, he did call a special session for May 13, 1994, at 1:00 p.m. to consider “[r]econsideration of the Government Reorganization Plan.”¹⁴ The call, which was distributed to the media, did not list “Senate leadership organization” as an item on the agenda. Sabían asked the Governor to rescind his call for a session at 5:00 p.m., noting that the Governor’s call was not supported by a majority of the Senate, and that there should have been a longer notice period. In response, acting Governor Jesus C. Borja rescinded the call for the special Senate session at 5:00 p.m. No special Senate session took place on May 11.

On May 13, 1994, Sabían canceled the special Senate session he had called for 1:00 p.m. However, at the request of five Senators who wanted to consider matters “relating to Senate leadership organization,”¹⁵ the Governor called a special Senate session for 2:30 p.m.

At 2:45 p.m., the appellees, Senators Demapan, Cing, Manglona, Hocog and Atalig (“Named Senators”), met in special session. The session was open to the public and attended by members of the media. The Named Senators voted to suspend Senate Rules 1 and 9, and then elected Senator Demapan to replace Senator Sabían as Senate President.

II. Court Action

On May 16, 1994, Sabían filed a complaint and motion for a temporary restraining order (TRO) and preliminary injunction. Following a hearing, the trial court denied the motion for a TRO and set the matter for supplemental briefing and a hearing on Sablan’s motion for a preliminary injunction.

Sabían subsequently filed an amended complaint and a second amended complaint for declaratory and injunctive relief. The second amended complaint includes a claim under § 1983¹⁶ alleging that the Governor and legislature, by failing to reapportion the Senate, violated Sablan’s right, secured by the Fourteenth Amendment to the U.S. Constitution, to equal protection of the law. The second amended complaint does not, on its face, include a direct cause of action under the U.S. Constitution.

On June 29, 1994, Sabían filed a motion for partial summaiy judgment and the Governor and Named Senators filed motions to dismiss the second amended complaint. The trial court issued an order on July 5, 1994, consolidating Sablan’s motion for a preliminary injunction with trial on the merits under Com. R. Civ. P. 65(a).

On July 6, 1994, the House of Representatives (“House”) filed a motion to dismiss, and the Named Senators, legislature and Governor filed cross-motions for summary judgment. The trial court conducted a hearing on the Governor’s, Named Senators’ and legislature’s motions to dismiss, and separately heard all remaining motions on July 13, 1994.

On July 18, 1994, the trial court issued a “Memorandum Decision on Motions to Dismiss and Judgment.” The court dismissed, as a nonjusticiable political question, the claim that the Senate violated its rules, dismissed the § 1983 claims against the legislature and Governor on grounds of legislative immunity, and ruled against Sabían on the merits on the Open Government Act and Senate apportionment claims.

Sabían filed a motion for reconsideration, which the court denied. He timely appealed.

ANALYSIS

I. Whether the Legislature and Governor Have a Viable Legislative Immunity Defense to Sablan’s § 1983 Claim

In the fifth cause of action of Sablan’s second amended complaint, he purports to set forth a statutory claim, averring in part that

the present composition of the Senate is violative of the Equal Protection Clause of the Fourteenth Amendment [to] the Constitution of the United States . . . and ... the plaintiff is entitled to relief pursuant to the federal Civil Rights Act, 42 U.S.C. § 1983.

Second Amended Complaint at 24. Sabían requests injunctive relief and, alternatively, a judicially-formulated plan to reapportion the Senate. The trial court granted the Governor and the legislature’s motion to dismiss on the ground that absolute legislative immunity shielded these defendants from actions brought under § 1983.

With respect to the § 1983 issue, Sablan’s entire argument on appeal consists of the statement that “[n]either the Legislature nor the Governor have legislative immunity from this reapportionment suit.” Appellant’s Brief at 69. In support of this conclusion, Sabían cites Dyer v. Abe,17 a federal district court case. We find the ruling in Dyer unpersuasive in view of the U.S. Supreme Court’s later decision in Supreme Court of Virginia v. Consumers Union of the United States, Inc.,18 which we discuss below.

Nevertheless, we will examine Sablan’s second amended complaint to determine whether he could prove any set of facts that would entitle him to relief under § 1983.¹⁹ We affirm the dismissal of the action against the legislature, but on different grounds than those cited by the trial court.²⁰ We also affirm the dismissal of the § 1983 action against the Governor.

We must first consider whether the Governor and legislature are “persons” and therefore amenable to suit under § 1983.²¹ Only if one or both defendants are persons will we proceed to address the question of legislative immunity.

A. Whether the Legislature or the Governor is a "Person"

The Commonwealth “is not a ‘person’ within the meaning of § 1983.”²² Thus, “[n]either the [Commonwealth] nor its officers acting in their official capacity can be sued under § 1983.”²³ With respect to the Commonwealth itself, this rule applies and thus bars suits for injunctive and monetary relief. However, with respect to its officers, when sued in their official (not personal) capacity, the same rule applies and bars only suits for monetary relief. Thus, officers still can be sued in their official capacity for injunctive relief.²⁴

“Commonwealth” means the Commonwealth government as a whole, and governmental entities that would be considered arms of the Commonwealth for purposes of immunity under the Eleventh Amendment²⁵ to the U.S. Constitution.²⁶ The Commonwealth Legislature is one such entity.²⁷

Sabían’s § 1983 cause of action runs in part against the legislature. Because the legislature is not a “person” within the meaning of § 1983, the trial court did not err in dismissing the action against the legislature.²⁸ However, the Superior Court dismissed as to both the legislature and the Governor on grounds that both parties have legislative immunity. Reaching this issue would be proper as to the legislature if the legislature were a “person” under § 1983.²⁹ The legislature not being a “person,” the trial court need not have reached the immunity question.

A different result obtains with respect to the Governor. The Governor is a Commonwealth officer who has been sued in his official capacity for injunctive relief. When sued in that capacity, the Governor constitutes a “person” under § 1983.³⁰ Therefore, we proceed to determine whether the Governor is shielded by legislative immunity.

B. Whether Legislative Immunity Extends to the Governor

The Superior Court determined that legislative immunity provides the Governor with a viable defense to Sablan’s action. Sabían contends that this holding is erroneous. We find no error.

In the context of a § 1983 action, a state official who, as here, is sued for injunctive relief in her/his official capacity normally may not claim absolute immunity for her/his official action.³¹ Officials who assert that they have such immunity “must show that [the] immunity is justified for the governmental function at issue.”³² To determine whether a particular task is legislative, executive or judicial for purposes of extending immunity, the function performed by the defendant officer, and not his or her title, is determinative.³³

With respect to officials engaged in legislative activity, the U.S. Supreme Court explained in Consumers Union that granting absolute immunity is justifiable

to insure that the legislative function may be performed independently without fear of outside interference. To preserve legislative independence, . . . legislators engaged in the sphere of legitimate legislative activity should be protected not only from the consequences of litigation’s results but also from the burden of defending themselves.³⁴

The Court considered the specific issue of whether the Supreme Court of Virginia was immune from suit under § 1983 for the promulgation of the Virginia State Bar Code. The plaintiffs in Consumers Union, like Sabían, sought only declaratory and injunctive relief. The Court ruled that (1) the Virginia court acted in a legislative capacity when propounding the bar code,³⁵ and (2) when acting as a legislative body, the Virginia court enjoyed common law immunity for its legislative acts,³⁶ defined as “acts undertaken in a field where legislators traditionally have power to act.”³⁷

In the case at bar, we must focus not on the Governor’s title, but rather on the affirmative duty that Sabían alleges that the Governor failed to perform. If the function in question is legislative, then the Governor is entitled to absolute immunity.

Sablan’s second amended complaint “is essentially self-defeating”³⁸ because it contains the elements of a built-in defense of legislative immunity. Specifically, Sabían alleges that “[bjecause the Commonwealth Legislature has failed to reapportion the Senate, it is incumbent upon the Governor to act, pursuant to Article II, § 4(b) of the Commonwealth Constitution.” Second Amended Complaint at 17-18.³⁹ In his fifth cause of action, brought pursuant to § 1983, Sabían asserts that he “is entitled to an injunction compelling the . . . defendant Tenorio ... to develop and submit to [the] court a plan which will establish nine senatorial election districts.” Id. at 24 (emphasis added). Finally, in his prayer for relief under his sixth cause of action, Sabían requests that the court “issue an affirmative injunction commanding [the Governor] ... to enact legislation calling a special election for the purpose of electing the membership of the Senate in accordance with the new redistricting and reapportionment plan.” Id. at 29 (emphasis added).

Thus, by its plain language the second amended complaint makes clear that Sabían is not demanding that the Governor be compelled to act in an executive capacity. Rather, he is requesting that the Governor be required to perform a constitutionally-delegated⁴⁰ legislative function.⁴¹ The trial court correctly held that, under these circumstances, the Governor enjoys absolute immunity from Sablan’s suit for prospective relief under § 1983.

II. Whether the Legislature and Governor were Entitled to Summary Judgment on the Merits of the Senate Apportionment Claim

The trial court granted summary judgment in favor of the legislature and the Governor, holding that “the composition of the Commonwealth Senate offends neither the Fourteenth Amendment to the U.S. Constitution nor Art. I, § 6 of the Commonwealth Constitution.”⁴² Sabían contends that the Superior Court erred in granting judgment against him on the merits. The parties and amicus extensively discussed this issue. However, as further explained below, the procedural stance of this case made it unnecessary for the Superior Court to decide the merits of Sablan’s claim that the Senate’s apportionment violates his right to equal protection⁴³ under the U.S. Constitution.⁴⁴

When properly invoked, defenses such as absolute immunity from suit under § 1983 defeat an action at the outset.⁴⁵ A court need not proceed further; it should “not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.”⁴⁶ It was unnecessary, therefore, for the Superior Court to determine whether Sabían has been deprived “of any rights, privileges, or immunities secured by the Constitution.”⁴⁷

Having determined that Sabían was barred from bringing a statutory action under § 1983, it would not avail this Court to search Sablan’s second amended complaint to determine whether he stated an implied cause of action directly under the U.S. Constitution. Sabían can state no such direct cause of action because, under the facts before us, federal law requires that “a litigant complaining of a violation of a constitutional right . . . utilize 42 U.S.C. § 1983.”⁴⁸

Section 1983 is not a source of substantive rights, but rather provides a means of vindicating federal rights⁴⁹ conferred by, for example, the Fourteenth Amendment and other provisions of the U.S. Constitution. Section 1983 “provides a substitute remedy which is equally effective to a direct cause of action under the Constitution.”⁵⁰ Thus, as a matter of law, Sablan’s § 1983 cause of action subsumes any action that he might purport to state directly under the Fourteenth Amendment.⁵¹

Finally, even if we were to recognize the existence of an implied direct cause of action under the Fourteenth Amendment,⁵² the legislature and the Governor could invoke the same immunity defenses that led to the dismissal of the § 1983 actions.⁵³

HI. Whether Findings of Fact were Erroneously Made during Grant of Summary Judgment on Merits of Senate Apportionment Claim

Sabían contends that the trial court erred by making certain material findings of fact while granting summary judgment against him on his claim that the apportionment of the Commonwealth Senate violates the U.S. and Commonwealth Constitutions. We have stated above that the trial court should not have reached the merits of the Senate apportionment issue. Any error arising from the Superior Court’s making of findings of fact during its adjudication of the merits is, therefore, inconsequential for purposes of our review.

IV. Whether the Senate Rules Violation Claim is a Nonjusticiable Political Question

Sabían alleges that in the process of electing Senator Demapan to replace Sabían as Senate President, the Named Senators violated one of the Senate Rules. Specifically, Sabían asserts that there was a transgression of Rule 1(2),⁵⁴ which pertains to Senate officers’ terms of office.

Sabían maintains that the election of Senator Demapan must be declared null and void as a result of the alleged Senate Rules violation. The Superior Court found this to be a nonjusticiable political question and dismissed the claim. On appeal, Sabían contends that the court “has the duty to say what the law is,” Appellant’s Brief at 74, notwithstanding concerns regarding separation of powers. Prior to addressing the justiciability question and potentially the merits, we must determine whether this issue has become moot. We conclude that this matter, while technically moot, is still subject to review because it falls within an exception to the mootness doctrine. Furthermore, we hold that under the facts of this case, the trial court did not err in its ruling.

A. Mootness

The Court takes judicial notice of the fact that during the pendency of this appeal, the Ninth Commonwealth Legislature ceased to exist and Sabían was elected President of the Senate of the Tenth Commonwealth Legislature. The Court can no longer grant Sabían relief in the form of reinstatement to the Presidency of the Senate of the Ninth Commonwealth Legislature.

This Court’s duty “is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.”⁵⁵ Moreover, we have previously decided that for policy reasons Commonwealth courts lack jurisdiction to decide moot issues.⁵⁶

The mootness doctrine has exceptions, however, one of which applies where (1) the issue raised affects the public interest, (2) similar issues are likely to arise in the future, and (3) the issue will probably become moot prior to completion of review by an appellate tribunal.⁵⁷ The present case fits squarely into this exception.

The Senate of each Commonwealth Legislature adopts its own rules of procedure. Disputes among legislators as to interpretation of the rules have been litigated,⁵⁸ and may well in the future be brought to the courts for resolution. Sabían may, for example, be removed again from the Senate presidency by the same or similar means as used in the case at bar, which would likely result in the reappearance of the issue now before us. Furthermore, to the extent that this matter affects the operation of the Senate, it also affects the public interest. Finally, the relatively brief two-year life of each Senate means, in addition to the fact that controversies like the one before us may occur at any time within each two-year period, that appellate review might be made problematic due to mootness. We therefore conclude that review of this issue comes within the proper exercise of our jurisdiction.

B. Justiciability

The separation of powers concept came into being “to safeguard the independence of each branch of the government and protect it from domination and interference by the others.”⁵⁹ The separation of powers concept takes the form of the “political question” doctrine in the context of judicial review of legislative and executive decisions.

The political question doctrine — a doctrine of judicial abstention — comes into play when the controversy brought before the court (1) involves a decision made by a branch of the government coequal to the judiciary, and (2) concerns a political matter. The presence of a political question renders the controversy nonjusticiable. In other words, it immunizes the disputed legislative or executive decision from judicial scrutiny.⁶⁰

The assessment of whether a given controversy presents a political question must be made on a case-by-case basis. A number of factors may be considered in this analysis: whether there is a textually demonstrable commitment of the issue to a coordinate branch of government; whether judicially discoverable and manageable standards for assessing the dispute are lacking; whether a court could render a decision without also making an initial policy determination that clearly should be left to another branch; whether it would be possible for a court independently to resolve the case without undercutting the respect due to coordinate branches of government; whether there is an unusual need to adhere to a political decision already made; or whether an embarrassing situation might be created by various governmental departments ruling on one question.⁶¹ With respect to the present case, multiple factors weigh heavily in favor of abstention from judicial review of the Senators’ actions.

The Commonwealth Constitution empowers each house of the legislature to “choose the presiding officer from among its members, . . . and promulgate rules of procedure.”⁶² We read the term “promulgate” to include the power to interpret, suspend, waive and enforce⁶³ the rules by any constitutional means.⁶⁴ By refraining from interfering with the Senate’s constitutionally-exercised power to promulgate rules, we accord proper respect to the legislature as a separate and coequal branch of government which must be free from domination and unnecessary intrusion by the judiciary.

We also believe it is necessary to adhere to a political decision already made. Sabían was replaced by Senator Demapan, the Senate resumed its legislative duties, and it has continued to function since the leadership change. As the Alaska Supreme Court observed in a factually similar case, “[intervention by a court at this point would be apt once again to disrupt the legislative processes .... Nor is it at all clear that judicial intervention during the reorganization would have shortened it or otherwise have been of benefit.”⁶⁵

Sabían suggests that Mafiias v. Inos66 stands for the proposition that Senate Rules, once promulgated, must be enforced by the courts. Our ruling in Mafiias is not as broad as Sabían submits. Review might be merited here if Sablan’s claim presented cognizable constitutional questions, as in Mafiias. However, as the Superior Court correctly ruled, this is not the case in this dispute.

Mafiias concerned a dispute in which the Senate split into two competing factions, effectively paralyzing the legislative branch and significantly impeding the executive branch’s ability to function: “[T]he lower house of the legislature and the executive branch of the Government of the Northern Marianas could not work with the [Sjenate and the [Sjenate could not function.”⁶⁷ In determining that we should exercise jurisdiction, we implicitly recognized the constitutional dimensions of the controversy: “Absent expeditious resolution of the dilemma, the Commonwealth Government would remain crippled. No laws could be passed and the new Governor’s executive appointments could not be acted upon.”⁶⁸ The gravity of the situation in Mafiias merited judicial intervention.

In a well-reasoned analysis, the Superior Court determined that Sablan’s grievance concerning the Senators’ interpretation of and adherence to the Senate Rules was not of constitutional magnitude.⁶⁹ The court properly declined to address the merits of the issue,⁷⁰ and we will not disturb that decision.

CONCLUSION

For the reasons set forth above, we AFFIRM the decision of the Superior Court.

1 See Robinson v. Bergstrom, 579 F.2d 401, 404 (7th Cir. 1978) (holding that question whether defendant is qualifiedly or absolutely immune “is not a jurisdictional issue[; rjather, immunity is an affirmative defense which may defeat the section 1983 claim once that subject matter jurisdiction has been established”), overruled on other grounds, Polk County v. Dodson, 454 U.S. 312, 321, 102 S. Ct. 445, 451, 70 L. Ed. 2d 509. 518 (1981) (by implication); see also Larsen v. Gibson, 267 F.2d 386, 387 (9th Cir.) (per curiam) (holding that trial court had jurisdiction and properly granted summary judgment dismissing complaint on ground that state supreme court justices are immune from § 1983 suit for damages), cert, denied, 361 U.S. 848, 80 S. Ct. 106, 4 L. Ed. 2d 87 (1959). But see Partington v. Gedan, 961 F.2d 852, 860 n.8 (9th Cir.) (dictum) (suggesting, with respect to § 1983 claim, that issue of absolute immunity is jurisdictional), cert, denied, 506 U.S. _, 113 S. Ct. 600, 121 L. Ed. 2d 537 (1992).

2 Cepeda v. Hefner, 3 N.M.I. 121, 126 (1992).

3 Cf. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90, 96 (1974) (discussing federal court's assessment of complaint’s sufficiency in § 1983 actions).

4 Govendo v. Micronesian Garment Mfg., Inc., 2 N.M.I. 270. 283 (1991); see also Saffioti v. Wilson, 392 F. Supp. 1335, 1337 n.1 (S.D.N.Y. 1975) (discussing assessment of § 1983 actions under Fed. R. Civ. P. 12(b)(6)).

5 Govendo. 2 N.M.I. at 283; see also Saffioti, 392 F. Supp. at 1337 n.1.

6 King v. Board of Elections, 2 N.M.I. 398, 401 (1991).

7 Cf. Brown v. Hansen, 973 F.2d 1118, 1121 (3d Cir. 1992) (noting that effect of political question doctrine is not to deprive courts of subject matter jurisdiction, but rather to preclude court “from granting relief that would violate the separation of powers mandated by the [federal] Constitution”) (citing Powell v. McCormack, 395 U.S. 486, 516-17, 89 S. Ct. 1944, 1961-62, 23 L. Ed. 2d 491, 514 (1969)); see also United States Dept. of Commerce v. Montana, 503 U.S. 442,_, 112 S. Ct. 1415, 1425, 118 L. Ed. 2d 87, 101 (1992) ("When a court concludes that an issue presents a nonjusticiable political question, it declines to address the merits of that issue”).

8 Cepeda, 3 N.M.I. at 126.

9 PL 8-41 (enacted Jan. 21, 1994) (codified as amended at 1 CMC § 9901 et seq.).

10 The Ninth Commonwealth Legislature ceased to exist on January 8,1996. Consequently, the Court can no longer grant the relief requested by Sabían. See Govendo, 2 N.M.I. at 281. Furthermore, after the filing of this lawsuit, the legislature repealed that portion of the Open Government Act expressly making the Act applicable to the legislature. See PL 8-41. § 14, repealed by PL 9-2, § 5. Thus, unlike issue IV, infra, the present issue is not amenable to consideration by the Court as a dispute capable of repetition yet evading review. See Mitchell v. Dupnik, 75 F.3d 517, 528 (9th Cir. 1996).

11 48 U.S.C. § 1801 note, reprinted in CMC at B-101 et seq. (“Covenant”).

12 The Saipan Senatorial District includes the islands to Saipan’s north, collectively known as the Northern Islands. The Commonwealth Constitution provides for the establishment of a fourth Northern Islands senatorial district when the population of the Northern Islands exceeds one thousand persons. N.M.I. Const, art. n, § 2(a). For purposes of this opinion, all further references to Saipan will be taken to include the Northern Islands.

13 Sablan v. Tenorio, Civ. No. 94-0500 (N.M.I. Super. Ct. July 18, 1994) (Memorandum Decision on Motions to Dismiss and Judgment at 4).

14 Id.

15 Jd. at 5.

16 Section 1983 provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983.

17 138 F. Supp. 220, 232 (D. Haw. 1956), rev’dasmoot, 256 F.2d 728, 729 (9th Cir. 1958) (per curiam). This case has no progeny.

18 446 U.S. 719, 100 S. Ct. 1967, 64 L. Ed. 2d 641 (1980).

19 See Govendo, 2 N.M.I. at 283.

20 The trial court’s dismissal based on legislative immunity was not in error. However, the court did not have to reach that issue because, as we discuss below, the legislature is not a “person” under § 1983.

21 The legislature and Governor made this argument below, in their joint motion to dismiss. See [Governor and Senate’s] Notice of Motion to Dismiss, Motion to Dismiss, and Memorandum in Support of Motion to Dismiss at 3, [House of Representatives’] Notice and Motion to Dismiss at 2, Sabian, Civ. No. 94-0500 (N.M.I. Super. Ct. filed May 16, 1994). The Superior Court ruled against them, and they have not raised the argument again on appeal. However, we will consider this matter because we may affirm the trial court’s decision on any ground that is supported in the record, Partington, 961 F.2d at 860, and because this question implicates our jurisdiction. See DeNieva v. Reyes, 966 F.2d 480, 482-83 (9th Cir. 1992).

22 DeNieva, 966 F.2d at 483.

23 Id.; see also Ngiraingas v. Sanchez, 495 U.S. 182, 192, 110 S. Ct. 1737, 1743, 109 E. Ed. 2d 163, 174 (1990) (holding, in a suit for monetary relief, that neither “Guam nor its officers acting in their official capacities are ‘persons’ under § 1983”); Hafer v. Melo, 502 U.S. 21, 26, 112 S. Ct. 358, 362, 116 L. Ed. 2d 301, 310 (1991) (holding that neither a state nor its officials when sued for monetary relief in their official capacities are “persons” under § 1983); Covenant § 502(a)(2) (a given federal law may be applicable to the Commonwealth if it is applicable to Guam and generally applicable to the states, as it is applicable to the states).

24 See DeNieva, 966 F.2d at 483 & n.3 (making no distinction between prospective and monetary relief with respect to a state itself not being a “person” under § 1983, while noting that state officers are “persons” when sued in their official capacities for prospective relief, but are not persons when sued in official capacity for damages); Derechin v. State Univ. of New York, 731 F. Supp. 1160, 1164 (W.D.N.Y. 1989) (holding that state (university) is not a “person” under § 1983 in a suit for declaratory and injunctive relief).

25 It is unsettled whether the Commonwealth enjoys Eleventh Amendment immunity. The Covenant contains no express provision making the Eleventh Amendment applicable to the Commonwealth. See Covenant § 501(a) (enumerating specific provisions of the U.S. Constitution applicable within the Commonwealth); Fleming v. Department of Pub. Safety, 837 F.2d 401, 406 & n.6 (9th Cir.) (holding, in § 1983 action, that Commonwealth does not enjoy Eleventh Amendment immunity from suit), cert. denied, 488 U.S. 889, 109 S. Ct. 222, 102 L. Ed. 2d 212 (1988), overruling on other grounds recognized in DeNieva, 966 F.2d at 483. Conducting the present analysis as if the Eleventh Amendment applies is nevertheless appropriate, because § 1983 applies to the Commonwealth “as [it is] applicable to the several states.” Covenant § 502(a)(2). See DeNieva, 966 F.2d at 483.

26 See Will v. Michigan Dept. of State Police, 491 U.S. 58, 70, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45 (1989) (defining parameters of “state” which is not a “person” amenable to suit under § 1983); Hafer, 502 U.S. at 30, 112 S. Ct. at 364, 116 L. Ed. 2d at 312 (explaining that states are immune from § 1983 actions in both federal and state courts); see also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 & n.11, 104 S. Ct. 900, 908 & n.11, 79 L. Ed. 2d 67, 79 & n.11 (1984) (holding that suit in federal court is barred by Eleventh Amendment when a state is “the real, substantial party” sued, regardless of the type of relief sought).

27 See N.A.A.C.P. v. Committee on Offenses, 114 S.E. 2d 721, 728 (Va. 1960) (holding that a suit against the Virginia Legislature is a suit against the state).

28 See Derechin, 731 F. Supp. at 1164 (dismissing § 1983 actions for declaratory and injunctive relief against state university and university branch campus on ground that universities are state entities and therefore not “persons" under § 1983) (citing Will v. Michigan Dept. of State Police, 491 U.S. 58, 63-70, 109 S. Ct. 2304, 2308-11, 105 L. Ed. 2d 45, 53-57 (1989)).

29 As noted above, even though it did not have to reach this issue with respect to the legislature, the Superior Court did not err in concluding that the legislature has a viable defense in the form of absolute legislative immunity. See Consumers Union, supra. In Consumers Union, a § 1983 action for declaratory and injunctive relief, the U.S. Supreme Court opined:

[TJhere is little doubt that if the Virginia Legislature had enacted the State Bar Code and if suit had been brought against the legislature, its committees, or members for refusing to amend the Code in the wake of our cases indicating that the Code in some respects would be held invalid, the defendants in that suit could successfully have sought dismissal on the grounds of absolute legislative immunity.

Id., 446 U.S. at 733-34, 100 S. Ct. at 1975, 64 L. Ed. 2d at 654-55 (dictum) (footnote omitted); see also Daggett v. Kimmelman. 617 F. Supp. 1269, 1279 (D.N.J. 1985) (holding that legislature that enacted congressional redistricting plan would have been absolutely immune from a § 1983 suit if it had not intervened to defend the statute), aff’d, 811 F.2d 793, 795 n.2 (3d Cir. 1987).

The question whether a state legislature is a “person” within the meaning of § 1983 was neither argued nor decided in Consumers Union or Daggett. However, in Consumers Union the U.S. Supreme Court seemed to suggest that the Virginia Supreme Court might not be a “person” under § 1983. See 446 U.S. at 737 n.16, 100 S. Ct. at 1977 n.16, 64 L. Ed. 2d at 651 n.6.

30 See Will, 491 U.S. at 70 n.10, 109 S. Ct. at 2312 n.10, 105 L. Ed. 2d at 58 n.10 (dictum); see also Derechin, 731 F. Supp. at 1164 (applying Will and holding that state university administrators acting in official capacities are “persons” under § 1983 when sued for prospective injunctive relief).

31 See Hafer, 502 U.S. at 29, 112 S. Ct. at 364, 116 L. Ed. at 312.

32 Id., 502 U.S. at 29, 112 S. Ct. at 363, 116 L. Ed. 2d at 312.

33 Forrester v. White, 484 U.S. 219, 227, 108 S. Ct. 538, 544, 98 L. Ed. 2d 555, 565 (1988) (“[Ijinmunity is justified and defined by the functions it protects and serves, not by the person to whom it attaches”); Terry v. Bobb, 827 F. Supp. 366, 368-69 (E.D. Va. 1993) (citing, inter alia, Consumers Union, supra).

34 Consumers Union. 446 U.S. at 731-32, 100 S. Ct. at 1974, 64 L. Ed. 2d at 351 (internal quotation marks and citations omitted).

35 Id., 446 U.S. at 731, 100 S. Ct. at 1974, 64 L. Ed. 2d at 351.

36 Id., 446 U.S. at 734, 100 S. Ct. at 1976, 64 L. Ed. 2d at 655; see also Daggett, 617 F. Supp. at 1279 (holding that when legislature intervened in suit in order to defend statute being challenged under § 1983, it “took on a quasi-enforcement role, and gave up its immunity”).

37 Consumers Union, 446 U.S. at 733, 100 S. Ct. at 1975, 64 L. Ed. 2d at 654 (internal quotation marks and citation omitted).

38 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (2d ed. 1990) (discussing situations in which a plaintiffs own allegations demonstrate that a defense exists, entitling defendant to dismissal of the action based on plaintiff’s failure to state a claim).

39 Article II of the Commonwealth Constitution establishes the “Legislative Branch” of the government. N.M.I. Const, art. n, § 4(b) provides, in pertinent part, that “[i]f the legislature fails to act pursuant to sectionQ 4(a) [to redistrict or reapportion the House of Representatives], the governor shall promulgate a reapportionment or redistricting plan.” (Emphasis added.)

40 We do not reach the question of whether N.M.I. Const, art. n, § 4(a) (providing for reapportionment and redistricting of the House of Representatives) could be used as a basis for compelling the Governor to reapportion or redistrict the Senate, as opposed to the House of Representatives.

41 Courts have permitted § 1983 suits to proceed against governors who have performed or failed to perform executive functions, such as enforcing allegedly unconstitutional election districting laws. See, e.g., Roberts v. Babcock, 246 F. Supp. 396, 399 (D. Mont. 1965) (enjoining governor and secretary of state from “in any manner enforcing or recognizing” state statute apportioning congressional districts, and from “proclaiming, certifying or conducting any election” of members of Congress).

42 Sablan, supra (Memorandum Decision on Motions to Dismiss and Judgment at 30).

43 Due to the importance of the Covenant issue, we note that if the matter were properly before us we would affirm on the merits based not only on the Superior Court’s reasoning, but also on the following factors.

The relationship between the U.S. and the CNMI is governed solely by the Covenant, not the U.S. Constitution. United States ex rel. Richards v. De Leon Guerrero, 4 F.3d 749, 754 (9th Cir. 1993). The Covenant is not simply a statute enacted by the U.S. Congress. Sablan v. Inos, 3 N.M.I. 418, 428 (1993). It is a bilateral international agreement which required mutual consent and, after years of negotiations, established a unique and unprecedented political union between the U.S. and the people of the NMI.

Prior to the effective date of the Covenant, none of the U.S. Constitutional provisions applied in the NMI. Sovereignty resided in the people of the NMI. The NMI was not a U.S. “territory” and did not become a U.S. “territory” by uniting politically with the U.S. through the Covenant. A “territory” is subject to the plenary power of Congress pursuant to the Territorial Clause. U.S. Const, art. IV, § 3, cl. 2. Although Covenant § 101 provides that the CNMI is under U.S. sovereignty, Covenant § 105 limits U.S. sovereignly by giving express recognition to the CNMI’s right of self-government, and to the fundamental provisions (Articles I, n, in and Sections 501 and 805) of the Covenant which cannot be altered without the mutual consent of the parties.

In view of this, it would be incorrect to conclude that in approving and effectuating the Covenant’s terms, the U.S. Congress and President derived their authority from the Territorial Clause. Rather, the U.S. Government’s authority to negotiate and become a party to the Covenant may properly be said to have derived from the treaty power, U.S. Const, art. n, § 2, cl. 2, and the Necessary and Proper Clause, U.S. Const, art. I, § 8, cl. 18. It is the broad authority granted under these provisions that enables the U.S. government to enter into treaties and enact laws that, as in the case of the Covenant, it deems necessary to protect U.S. security and other national interests.

The Covenant’s negotiating history shows that absent the Covenant’s fundamental provisions, no agreement would have been possible. Commonwealth of the N. Mariana Islands v. Atalig, 723 F.2d 682. 685-86 (9th Cir.), cert. denied. 467 U.S. 1244, 104 S. Ct. 3518, 82 L. Ed. 2d 826 (1984). One such fundamental provision is Section 203, providing for composition of the Senate.

A Senate apportioned by island is one feature of the government chosen by the people of Saipan, Rota, and Tinian in the exercise of their right of self-determination. The people desired a representative republican form of government, with a bicameral legislature, akin to that of the Congress of Micronesia and the U.S. Congress.

The composition of the Senate does not transgress international norms recognizing the right of all people to vote. Section 203’s inclusion in the Covenant should, therefore, be upheld as a proper and valid exercise of the U.S. Government’s authority under the U.S. Constitution.

44 In his appellate briefs, Sabían argues only that the trial court erred in granting summary judgment as to his claim that apportionment of the Commonwealth Senate violates his rights under the federal Constitution. See Appellant’s Brief at 1, 37. The propriety of the Superior Court’s grant of summary judgment as to Sablan’s claim under the Commonwealth Constitution is not, therefore, an issue properly before us.

45 Haynesworth v. Miller, 820 F.2d 1245, 1265-66 (D.C.Cir. 1987).

46 Ashwander v. T.V.A., 297 U.S. 288, 347, 56 S. Ct. 466, 483, 80 L. Ed. 2d 688 (1936) (Brandeis, J., concurring).

⁴⁷

48 Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992) (citations omitted), cert, denied._ U.S._. 113 S. Ct. 1049, 122 L. Ed. 2d 357 (1993); Thomas v. Shipka, 818 F.2d 496. 499 (6th Cir.) (holding that, where plaintiff states a constitutional claim under § 1983, that statute provides exclusive remedy for alleged constitutional violations), reh’g in part on other grounds denied, 829 F.2d 570 (6th Cir. 1987), vacated in part on other grounds, 488 U.S. 1036, 109 S. Ct. 859, 102 L. Ed. 2d 984 (1989) (mem.), on remand in part on other grounds, 872 F.2d 772, 773 (6th Cir. 1989) (emphasizing that relevant portion of original opinion was never appealed and remains good law).

49 Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 S. Ct. 2689, 2694 n.3, 61 L. Ed. 2d 433, 442 n.3 (1979).

50 Thomas, 818 F.2d at 500 (concluding “that it is unnecessary and needlessly redundant to imply a cause of action arising directly under the Constitution where Congress has already provided a statutory remedy of equal effectiveness through which the plaintiff could have vindicated [his] constitutional rights”); see also Haynesworth, 820 F.2d at 1248 n.1 (opining that, if recognized by a court, an implied right to sue directly under the federal Constitution for civil rights violations should mirror § 1983 — the express statutory cause of action — to the fullest possible extent).

51 See Valerio v. Dahlberg, 716 F. Supp. 1031, 1036 (S.D. Ohio 1988).

52 See, e.g., Turpin v. Mailet, 591 F.2d 426, 427 (2d Cir. 1979) (en banc) (suggesting that plaintiff might have been permitted to bring a direct cause of action under the Constitution if defendant municipality were not a “person,” and therefore were not amenable to suit, under § 1983).

53 See Haynesworth. 820 F.2d at 1264 n.151 (finding it unnecessary, for the purpose of assessing immunity from suit, to distinguish between implied actions against federal officers brought directly under the Constitution from suits brought against state officers under § 1983); Hearth, Inc. v. Department of Pub. Welfare, 617 F.2d 381. 383 (5th Cir. 1980) (per curiam) (dictum); see also Thomas, 818 F.2d at 500 (noting that the same standards of immunity apply to suits brought directly under the Constitution and under § 1983 because “both provide remedies for violations of the same constitutional protections”).

54 The relevant portion of the rule provides:

The President, Vice President, Floor Leader, and Senate Legislative Secretary, shall hold office until the next Legislature is called to order, until noon on the second Monday in January following the next general election unless such tenure be terminated at an earlier date by death or resignation. . . . This rule shall not be suspended without a unanimous vote of the total membership of the Senate and shall not be amended without the unanimous vote of the total membership of the Senate.

Official Rules of the Senate, Ninth Northern Marianas Commonwealth Legislature, 1(2) (1994).

55 In re Seman, 3 N.M.I. 57, 64 (1992).

56 Govendo, 2 N.M.I. at 281.

57 Seman, 3 N.M.I. at 64-65.

58 See, e.g., Mafnas v. Inos, 1 N.M.I. 101 (1990).

59 2 Chester J. Antieau, Modern Constitutional Law § 11:13 (1969) (discussing separation of powers doctrine under the federal Constitution).

60 See id. § 11:19.

61 See Baker v. Carr, 369 U.S. 186. 217, 82 S. Ct. 691, 710, 7 L. Ed. 2d 663, 685-86 (1962).

62 N.M.I. Const, art. II, § 14(b).

63 Mafnas, 1 N.M.I. at 105 n.1.

64 Cf. Moffitt v. Willis, 459 So.2d 1018, 1021 (Fla. 1984) (interpreting similar provision of Florida Constitution).

65 Malone v. Meekins. 650 P.2d 351, 357 (Alaska 1982).

66 See supra note 58.

67 Id. at 104.

68 Id. at 105. See N.M.I. Const, art. n, §§ 1 (legislative duties vested in legislature), 7 (power of Governor to act on bills after passage by legislature), art. HI. § 14 (duty of Governor to appoint heads of executive departments with advice and consent of the Senate).

69 See Sablan, supra (Memorandum Decision on Motions to Dismiss and Judgment at 7-9) (citing, inter alia, Malone v. Meekins. 650 P.2d 351, 355-56 (Alaska 1982)).

70 See Montana, 503 U.S. at_, 112 S. Ct. at 1425, 118 L. Ed. 2d at 101-02; Brown v. Hansen, 973 F.2d 1118, 1122 (3d Cir. 1992) (“If the defendant [legislator]s’ conduct here did not violate any constitutional or statutory provision, the question whether the legislature violated its own internal rules is nonjusticiable”).