Sablan v. Tenorio

Sablan v. Tenorio, 4 N.M.I. 351 (1996) Jesus R. Sablan, Plaintiff/Appellant, v. Froilan C. Tenorio, Governor, Commonwealth of the Northern Mariana Islands, Juan S. Demapan, Paul A. Manglona, David M. Cing, Eusebio A. Hocog, Ricardo S. Atalig, Senators, and the Ninth Commonwealth Legislature, Defendants/Appellees. Appeal No. 94-034 Civil Action No. 94-0500 April 18, 1996 Argued and Subm itted July 6, 1995 Counsel for appellant: Theodore R. M itchell and Jeanne H. Rayphand, Saipan. Counsel for appellee Governor Froilan C. Tenorio: Douglas M . M uir, Assistant Attorney General, Saipan. Counsel for appellee Com m onwealth Senate: Stephen C. W oodruff, Legislative Counsel, Saipan. Counsel for appellee Senators Demapan, M anglona, Cing, Hocog and Atalig: M ichael W . Dotts (Law Offices of Robert O’Connor), Saipan. Counsel for appellee Com m onwealth House of Representatives: M aya B. Kara, Legislative Counsel, Saipan. Am icus Curiae: Howard P. W illens, pro se, Saipan. BEFORE: VILLAGOM EZ and ATALIG, Justices, and M ACK, Special Judge. VILLAGOM EZ, Justice: The appellant, Jesus R. Sablan (“Sablan”), appeals the trial court’s decision dism issing certain of his claims and entering sum m ary judgm ent for the appellees on other claims. W e have jurisdiction under 1 CM C § 3102(a). W e affirm as to those issues we have decided to review. ISSUES & STANDARDS OF REVIEW Sablan presents five issues for our review: I. W hether the appellees, Governor Froilan C. Tenorio (“G overnor”) and the Ninth Com m onwealth Legislature (“legislature”), have legislative im m unity from Sablan’s action challenging the apportionm ent 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 dism issals that it invoked Com . R. Civ. P. 12(b)(6). Legislative im munity is an affirm ative defense which provides absolute, com prehensive protection from suits challenging actions taken in the performance of official legislative functions. W here the com plaint itself establishes legislative imm unity, a § 1983 action should be dism issed 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 W e base our review on the contents of Sablan’s com plaint, construe it in the light m ost favorable to him ,3 and accept all well-pleaded facts as true.4 The dism issal 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. W hether the com position of the Senate of the Ninth Com m onwealth Legislature violates the rights, under the Fourteenth Am endm ent to the U.S. Constitution, of the residents of Saipan to equal protection of the law. The trial court granted summ ary judgm ent as to this claim . Our review is, therefore, de novo.6 III. W hether the trial court erred by making findings of fact in a summ ary judgment proceeding when those facts were disputed. This issue challenges the propriety of deciding factual matters in the context of ruling on cross-m otions for summ ary judgment and a prelim inary injunction. This is a question of law which we review de novo. IV. W hether the claim that the M ay 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 dism issal, we infer that the court invoked Com . R. Civ. P. 12(b)(6). A determ ination that the alleged Senate Rules violation constituted a nonjusticiable political question 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[; r]ather, 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).  Sablan v. Tenorio, 4 N.M.I. 351 (1996) 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. W hether the Senate violated the Comm onwealth’s Open government Act of 1992 9 (“Open Governm ent Act”) during the special session of the Senate called by the Governor and held on M ay 13, 1994. W e 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 C O VEN AN T TO E STABLISH A C O M M O N W EALTH O F THE N O RTH ERN M ARIAN A I SLAN D S IN P O LITICAL U N IO N W ITH TH E U N ITED S TATES O F A M ERICA (“Covenant”) 11 and N.M .I. Const. art. II, § 2(a), the Com m onwealth 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 tim es. Notwithstanding this disparity, each senatorial district is equally allotted three seats in the Comm onwealth Senate. I. Senate Session On January 10, 1994, at the first regular session of the Ninth Comm onwealth Legislature, Sablan was elected Senate President and the Senate adopted the official Rules of the Senate for the Ninth Com m onwealth Legislature. On M ay 11, 1994, three Senators asked Sablan 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 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) (“W hen 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 Sablan. 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. II, § 2(a). For purposes of this opinion, all further references to Saipan will be taken to include the Northern Islands. 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 Sablan did not call a special Senate session for that day, he did call a special session for M ay 13, 1994, at 1:00 p.m . to consider “[r]econsideration of the Government Reorganization Plan.” 14 The call, which was distributed to the m edia, did not list “Senate leadership organization” as an item on the agenda. Sablan 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 m ajority 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 M ay 11. On M ay 13, 1994, Sablan 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 Dem apan, Cing, M anglona, Hocog and Atalig (“N am ed Senators”), m et in special session. The session was open to the public and attended by members of the m edia. The Named Senators voted to suspend Senate Rules 1 and 9, and then elected Senator Demapan to replace Senator Sablan as Senate President. II. Court Action On M ay 16, 1994, Sablan filed a com plaint and motion for a tem porary restraining order (TRO) and prelim inary injunction. Following a hearing, the trial court denied the m otion for a TRO and set the m atter for supplem ental briefing and a hearing on Sablan’s m otion for a prelim inary injunction. Sablan subsequently filed an am ended com plaint and a second am ended com plaint for declaratory and injunctive relief. The second amended com plaint includes a claim under § 1983 16 alleging that the Governor and legislature, by failing to reapportion the Senate, violated Sablan’s right, secured by the Fourteenth Am endm ent 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, Sablan filed a motion for partial summ ary judgment and the Governor and Named Senators filed m otions to dismiss the second amended com plaint. The trial court issued an order on July 5, 1994, consolidating Sablan’s motion for a prelim inary 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 dism iss, and the Named Senators, legislature and Governor filed cross-m otions for sum m ary judgm ent. The trial court conducted a hearing on the Governor’s, Nam ed Senators’ and legislature’s motions to dismiss, and separately heard all rem aining m otions on July 13, 1994. On July 18, 1994, the trial court issued a “M emorandum Decision on M otions to Dism iss and Judgment.” The court dism issed, as a nonjusticiable political question, the claim that the Senate violated its rules, dism issed 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 Id. 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.  Sablan v. Tenorio, 4 N.M.I. 351 (1996) the § 1983 claims against the legislature and Governor on grounds of legislative im m unity, and ruled against Sablan on the merits on the Open Governm ent Act and Senate apportionm ent claims. Sablan filed a m otion for reconsideration, which the court denied. He tim ely appealed. ANALYSIS I. W hether 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 am ended com plaint, he purports to set forth a statutory claim , averring in part that the present com position of the Senate is violative of the Equal Protection Clause of the Fourteenth Am endm ent [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 Am ended Complaint at 24. Sablan requests injunctive relief and, alternatively, a judicially-form ulated plan to reapportion the Senate. The trial court granted the Governor and the legislature’s m otion to dismiss on the ground that absolute legislative im m unity shielded these defendants from actions brought under § 1983. W ith respect to the § 1983 issue, Sablan’s entire argum ent on appeal consists of the statem ent that “[n]ei- ther the Legislature nor the Governor have legislative imm unity from this reapportionm ent suit.” Appellant’s Brief at 69. In support of this conclusion, Sablan cites Dyer v. Abe,17 a federal district court case. W e find the ruling in Dyer unpersuasive in view of the U.S. Suprem e 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 exam ine Sablan’s second amended com plaint to determ ine whether he could prove any set of facts that would entitle him to relief under § 1983.19 W e affirm the dismissal of the action against the legislature, but on different grounds than those cited by the trial court.20 W e also affirm the dism issal of the § 1983 action against the Governor. W e must first consider whether the Governor and legislature are “persons” and therefore am enable to suit under § 1983.21 Only if one or both defendants are persons will we proceed to address the question of legislative im m unity. 17 138 F. Supp. 220, 232 (D. Haw. 1956), rev’d as moot, 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, Sablan, 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). A. Whether the Legislature or the Governor is a “Person” The Com m onwealth “is not a ‘person’ within the m eaning of § 1983.” 22 Thus, “[n]either the [Com m onwealth] nor its officers acting in their official capacity can be sued under § 1983.” 23 W ith respect to the Com m onwealth 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 sam e rule applies and bars only suits for monetary relief. Thus, officers still can be sued in their official capacity for injunctive relief.24 “Comm onwealth” m eans the Comm onwealth government as a whole, and governmental entities that would be considered arms of the Com m onwealth for purposes of im m unity under the Eleventh Am endm ent 25 to the U.S. Constitution.26 The Com m onwealth Legislature is one such entity.27 Sablan’s § 1983 cause of action runs in part against the legislature. Because the legislature is not a “person” within the m eaning of § 1983, the trial court did not err in dism issing the action against the legislature.28 However, the Superior Court dism issed as to both the legislature and the Governor on grounds that both parties 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)).  Sablan v. Tenorio, 4 N.M.I. 351 (1996) have legislative im m unity. 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 imm unity question. A different result obtains with respect to the Governor. The Governor is a Com m onwealth officer who has been sued in his official capacity for injunctive relief. W hen sued in that capacity, the Governor constitutes a “person” under § 1983.30 Therefore, we proceed to determ ine whether the Governor is shielded by legislative im m unity. 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. Sablan contends that this holding is erroneous. W e 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 norm ally may not claim absolute im m unity for her/his official action.31 Officials who assert that they have such im m unity “m ust show that [the] im m unity is justified for the governm ental function at issue.” 32 To determine whether a particular task is legislative, executive or judicial for purposes of extending im m unity, the function perform ed by the defendant officer, and not his or her title, is determ inative.33 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: [T]here 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) (“[I]mmunity 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).  W ith respect to officials engaged in legislative activity, the U.S. Suprem e Court explained in Consumers Union that granting absolute imm unity is justifiable to insure that the legislative function may be perform ed independently without fear of outside interference. To preserve legislative independence, . . . legislators engaged in the sphere of legitim ate legislative activity should be protected not only from the consequences of litigation’s results but also from the burden of defending them selves.34 The Court considered the specific issue of whether the Suprem e Court of Virginia was imm une from suit under § 1983 for the prom ulgation of the Virginia State Bar Code. The plaintiffs in Consumers Union, like Sablan, 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 com m on law im m unity 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 affirm ative duty that Sablan alleges that the Governor failed to perform . If the function in question is legislative, then the Governor is entitled to absolute im m unity. Sablan’s second am ended com plaint “is essentially self-defeating” 38 because it contains the elem ents of a built-in defense of legislative imm unity. Specifically, Sablan alleges that “[b]ecause the Com m onwealth Legislature has failed to reapportion the Senate, it is incum bent upon the Governor to act, pursuant to Article II, § 4(b) of the Com m onwealth Constitution.” Second Am ended Com plaint at 17-18. 39 In his fifth cause of action, brought pursuant to § 1983, Sablan asserts that he “is entitled to an injunction com pelling the . . . defendant Tenorio . . . to develop and submit to [the] court a plan which will establish nine senatorial election districts.” Id. at 24 (em phasis added). Finally, in his prayer for relief under his sixth cause of action, Sablan requests that the court “issue an affirm ative injunction com manding [the Governor] . . . to enact legislation calling a special election for the purpose of electing the m em bership of the Senate in accordance with the new redistricting and reapportionm ent plan.” Id. at 29 (em phasis added). Thus, by its plain language the second amended complaint makes clear that Sablan is not dem anding that the Governor be com pelled to act in an executive capacity. Rather, he is requesting that the Governor be required 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. W right & Arthur R. Miller, F ED ERAL P RACTICE AN D P ROCEDURE § 1357 (2d ed. 1990) (discussing situations in which a plaintiff’s 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. II, § 4(b) provides, in pertinent part, that “[i]f the legislature fails to act pursuant to section[] 4(a) [to redistrict or reapportion the House of Representatives], the governor shall promulgate a reapportionment or redistricting plan.” (Emphasis added.)  Sablan v. Tenorio, 4 N.M.I. 351 (1996) to perform a constitutionally-delegated 40 legislative function. 41 The trial court correctly held that, under these circum stances, the Governor enjoys absolute im m unity from Sablan’s suit for prospective relief under § 1983. II. W hether the Legislature and Governor were Entitled to Summary Judgment on the M erits of the Senate Apportionment Claim The trial court granted summ ary judgm ent in favor of the legislature and the Governor, holding that “the com position of the Com m onwealth Senate offends neither the Fourteenth Am endm ent to the U.S. Constitution nor Art. I, § 6 of the Com m onwealth Constitution.” 42 Sablan contends that the Superior Court erred in granting judgment against him on the m erits. The parties and am icus 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 apportionm ent violates his right to equal protection 43 under the U.S. 40 W e do not reach the question of whether N.M.I. Const. art. II, § 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 M otions 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. sovereignty by giving express recognition to the CNMI’s right of self-government, and to the fundamental provisions (Articles I, II, III 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. II, § 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. Constitution.44 W hen properly invoked, defenses such as absolute im m unity 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 som e other ground upon which the case may be disposed of.” 46 It was unnecessary, therefore, for the Superior Court to determine whether Sablan has been deprived “of any rights, privileges, or im m unities secured by the Constitution.” 47 Having determ ined that Sablan was barred from bringing a statutory action under § 1983, it would not avail this Court to search Sablan’s second amended com plaint to determ ine whether he stated an im plied cause of action directly under the U.S. Constitution. Sablan can state no such direct cause of action because, under the facts before us, federal law requires that “a litigant com plaining 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 rights 49 conferred by, for exam ple, the Fourteenth Am endm ent and other provisions of the U.S. Constitution. Section 1983 “provides a substitute rem edy which is equally effective to a direct cause of action under the Constitution.” 50 Thus, as a m atter of law, Sablan’s § 1983 cause of action subsumes any action that he might 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, Sablan 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 42 U.S.C. § 1983. 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).  Sablan v. Tenorio, 4 N.M.I. 351 (1996) purport to state directly under the Fourteenth Am endm ent.51 Finally, even if we w