Republic of the Philippines 7th Judicial Region REGIONAL TRIAL COURT Branch __ City of Tagbilaran PEDRO E. FUERTES, Petitioner, -versus-
SP Case No. _____ For: QUO WARRANTO Under Rule 66 Rules of Court
LEONILA P. MONTERO, Respondent. x-------------------------------/
PETITION FOR QUO WARRANTO PETITIONER, for and on his own behalf, unto this Honorable Court, most respectfully respectfully submits this petition and an d states, that:
PREFATORY AND N ATURE OF THIS A CTION CTION Quo warranto translates warranto translates to, “ What is your authority? authority?”” In essence, this petition for quo warranto seeks warranto seeks the ouster and exclusion of Respondent Leonila P. Montero from holding the Office of the Municipal Mayor of Panglao, Bohol, a public office to which she is not entitled in view of her dismissal from the service and her perpetual disqualification to hold public office.1 Even though a petition a petition for prohibition under prohibition under Rule 65 of the Rules of Court with prayer for temporary restraining order and injunction is pending before the Regional Trial Court, Branch 2, Tagbilaran City, wherein Montero is named as one of the Respondents, it is humbly submitted that the instant quo warranto warranto petition may proceed independently of said petition said petition for prohibition as prohibition as the nature and remedies sought in these two proceedings are distinct, 1
The Ombudsman, in a Joint Order dated 19 January 2018 in Administrative Administrative Case OMB-V-A-15-0284, found Leonila P. Montero, who was then municipal mayor of Panglao, Bohol, guilty of grave misconduct and conduct prejudicial to the best interest of the service, and ordered her dismissal from the service with all the accessory penalties, including perpetual disqualification to hold public office. 1
specifically as to (1) the parties involved, (2) grounds and causes of action, (3) applicable rules, and (4) limitations. A petition for prohibition is initiated under Section 2, Rule 65 of the Rules of Court, as follows: Section 2. Petition for prohibition. prohibition. — When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its or his jurisdiction, jurisdiction, or with grave grave abuse abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require.
On the other hand, an action for quo warranto is provided under Rule 66 of the Rules of Court, to wit: Section 1. Action 1. Action by Government against individuals. individuals. — An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of o f the Republic of the Philippines against: (a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise; (b) A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office; or (c) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority authority so to act. act. (1a) Xxx
xxx
Section 6. Parties and contents of petition against usurpation. usurpation. — When the action is against a person for usurping a public office, position or franchise, the petition shall set forth the name of the person who claim to be entitled thereto, if any, with an averment of his right to the same and that the respondent is unlawfully in possession thereof. All persons who claim to be entitled to the public office, position or franchise may be made parties, and their respective rights to such public office, position or franchise determined, in the same action. (7a)
2
In the suit for prohibition, the petitioner therein is Augustin M. Cloribel, who called upon the court to order Montero and the Sangguniang Bayan (SB) of Panglao and its Members, to desist from performing, conducting further proceedings and enacting legislation, decreeing, sanctioning or arrogating the position and functions of the Office of the Municipal Mayor of Panglao in favor of Montero, and from enforcing S.B. Resolution No. 226, Series of 2018, recognizing the re-assumption of Montero as mayor and reinstating her as official signatory of the municipality government’s bank withdrawals and all other transactions. Petitioner Cloribel is also asking the court to be granted incidental reliefs with the view of restraining Montero from re-assuming the said office. Should RTC-Branch 2 issue a writ of prohibition in said case, it would only result to forbidding or stopping Montero, the Sangguniang Bayan of Panglao and its Members from arrogating the subject public office. By and large, a writ of prohibition, if issued, is basically regarded as a “stay order” on Montero, the SB and its Members because they tried to transgress the limits or the powers vested on them. In the instant petition for quo warranto, however, herein Petitioner Pedro E. Fuertes, the lawfully-installed and officially-recognized Municipal Mayor of Panglao following Montero’s dismissal from the service and perpetual disqualification to hold public office, is demanding from Montero “by what authority” 2 is she holding the Office of the Municipal Mayor of Panglao, the public office which she purports to be occupying. A quo warranto proceeding, as in this case, determines whether Montero has the legal right to hold the public office she occupies.3 As the name suggests, quo warranto is a writ of inquiry.4 In Republic v. Sereno,5 the recent landmark case which led to the ouster of Maria Lourdes P.A. Sereno as 2
See Republic of the Philippines v. Maria Lourdes P.A. Sereno, G.R. No. 237428, May 11, 2018; citing Legal Opinions of the Attorney General - Quo Warranto - Right to Public Office by Attorney General Xavier Becerra of the State of California.
3
Id.
4
Id., citing Gerald Kogan and Robert Craig Water s, The Jurisdiction of the Florida Supreme Court by, The Record (Journal of the Appellate Practice and Advocacy Section) of the Florida Bar, Vol. VI, No. I, August 1997.
5
G.R. No. 237428, May 11, 2018. 3
Chief Justice of the Supreme Court, the high tribunal held that, “a quo warranto proceeding is the proper legal remedy to determine the right or title to the contested public office or to oust the holder from its enjoyment.” In the Sereno6 case, the Supreme Court emphasized that, “title to a public office may not be contested collaterally but only directly, by quo warranto proceedings. In the past, the Court held that title to public office cannot be assailed even through mandamus or a motion to annul or set aside order. 7 That quo warranto is the proper legal vehicle to directly attack title to public office likewise precludes the filing of a petition for prohibition for purposes of inquiring into the validity of the appointment of a public officer. Thus, in Nacionalista Party v. De Vera,8 the Court held: “[T]he writ of prohibition, even when directed against persons acting as judges or other judicial officers, cannot be treated as a substitute for quo warranto or be rightfully called upon to perform any of the functions of the writ. If there is a court, judge or officer de facto, the title to the office and the right to act cannot be questioned by prohibition. If an intruder takes possession of a judicial office, the person dispossessed cannot obtain relief through a writ of prohibition commanding the alleged intruder to cease from performing judicial acts, since in its very nature prohibition is an improper remedy by which to determine the title to an office.”9
Prohibition mainly lie against legal bodies or a person performing judicial, quasi-judicial or ministerial functions and may proceed even during the pendency of such questioned judicial, quasi-judicial or ministerial function, which is the case in the petition filed by Cloribel against Montero, the SB and its Members. But, a proceeding for quo warranto is specifically resorted to, as it is in this case, against a person for usurping a public office or position, by the person who claim to be entitled thereto.10 6
Id.
7
Topacio v. Assoc. Justice Gregory Santos Ong et al., 595 Phil. 491, 501-502 (2008) citing Pilar v. Sec. of the DPWTC, el al., 125 Phil. 766 (1967) and Gamboa, et al. v. CA, et al., 194 Phil. 624 (1981).
8
85 Phil. 126 (1949).
9
Id.
10
Id; citing Legal Opinions of the Attorney General - Quo Warranto - Right to Public Office by Attorney General Xavier Becerra of the State of California. 4
There is no blinking at the fact that the essence of this petition strikes at the very core of the fundamental precept of a public officer’s accountability to the public. The very purpose and nature of public office is grounded upon it being a public trust. No less than our Constitution gave special importance on the principle of a public office being a public trust under Section 1, Article XI of the 1987 Constitution. It is an established principle that public office is not a “property ” but is a public trust or agency, governed by the Constitution and by existing laws. There is no Torrens title to a public office and there is no such thing as a vested interest in an office, or even an absolute right to hold office.11 The basic idea of government in the Philippines, as in the United States, is that of a popular representative government, the officers being mere agents and not rulers of the people, one where no one man or set of men has a proprietary or contractual right to an office, but where every officer accepts office pursuant to the provisions of the law and holds the office as a trust for the people whom he represents.12 Therefore, a public officer who has been dismissed from the service for gross misconduct in office is also deemed disqualified from keeping the position he or she was occupying, or holding even any other position in the government. That disqualification can only be erased if the dismissal is overturned with finality by our courts of law, but until such time, the invalidity of holding on to that public office from which he or she was removed would not foreclose the right and duty of the government, the keeper of the said public office, to oust and remove the usurper. “One who claims title to a public office must prove beyond cavil that he or she is legally qualified to the said office, otherwise, he or she has no ground to stand upon his or her claim of title to the office and his or her title may reasonably be challenged. A qualification must be proved positively, clearly, and affirmatively. It cannot be proved by mere acquiescence nor by estoppel or prescription. In the
11
Justice Malcolm, in Cornejo v. Gabriel and Provincial Board of Rizal, 41 Phil. 188 (1920).
12
Id. 5
same vein, a disqualification cannot be obliterated by intentional concealment thereof. As a matter of fact, such concealment is a clear manifestation of lack of integrity, probity, and honesty. It cannot be over-emphasized that public service requires integrity. For this reason, public servants must, at all times, exhibit the highest sense of honesty. By the very nature of their duties and responsibilities, they must faithfully adhere to, and hold sacred and render inviolate the constitutional principle that a public office is a public trust.”13 Here in this case, the Department of Interior and Local Government (DILG) already decreed in a Memorandum that Respondent Leonila Montero is still ineligible to hold the position from which she was removed in view of the pendency of her very own petition for review at the Court of Appeals wherein she is appealing the decision of the Ombudsman which found her guilty of grave misconduct and conduct prejudicial to the best interest of the service, and which resulted in her dismissal from the service and perpetual disqualification to hold public office. Even the Court of Appeals (CA) issued a Notice of Resolution informing Respondent (Montero) that her case has just been submitted for resolution by the court and therefore the decision of the Ombudsman still prevails as the appeal filed by Respondent has not yet attained finality and therefore, there is no entry of judgment that Respondent could invoke as final and executory, which only shows Respondent’s ineligibility to hold the public office from which she was removed and disqualified. “ A public officer who ignores, trivializes or disrespects Constitutional and legal provisions, as well as the canons of ethical standards, forfeits his or her right to hold and continue in that office.”14 An action for quo warranto may be commenced by the Solicitor General or a public prosecutor, or by any person claiming to be entitled to the public office or position usurped or unlawfully held or exercised by another. 15 And since usurpation of a public office is treated as a public wrong and carries with it public interest, Section 1, Rule 66 provides that where the action is for the usurpation of a public office or position, it shall be commenced by a 13
Atty Alconera v. Pallanan, 725 Phil. 1, 17(2014).
14
Supra, note 2
15
Sections 2, 3 and 5, Rule 66 of the Rules of Court. 6
verified petition brought in the name of the Republic of the Philippines through the Solicitor General or a public prosecutor.16 The instance when an individual is allowed to commence an action for quo warranto in his own name is when such person is claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another.17 Jurisprudence states that for a quo warranto petition to be successful, the private person suing must show no less than a clear right to the contested office.18 In case of usurpation of a public office, when the respondent is found guilty of usurping, intruding into, or unlawfully holding or exercising a public office, position or franchise, the judgment shall include the following: (a) the respondent shall be ousted and excluded from the office; (b) the petitioner or relator, as the case may be, shall recover his costs; and (c) such further judgment determining the respective rights in and to the public office, position or franchise of all the parties to the action as justice requires. 19
The remedies available in a quo warranto judgment do not include correction or reversal of acts taken under the ostensible authority of an office or franchise. Judgment is limited to ouster or forfeiture and may not be imposed retroactively upon prior exercise of official or corporate duties.20 In the instant petition, herein Petitioner asks that the Honorable Regional Trial Court (RTC) Bohol exercise its mandated jurisdiction under Rule 66 to oust Respondent Leonila P. Montero from the office of the Municipal Mayor of Panglao, Bohol, an office which she has unlawfully reclaimed, reassumed and is illegally holding and exercising; the Honorable Court must declare Respondent excluded from said public office. Petitioner, being a duly-elected representative of the constituency of Panglao, Bohol, and the lawfully-installed Municipal Mayor of the Municipality of Panglao, Bohol, a 16
Section 2, Rule 66 of the Rules of Court.
17
Section 5, Rule 66 of the Rules of Court.
18
Ciring Feliciano v. Villasin, 578 Phil 889 (2008); also Acosta v. Flor, 5 Phil. 18 (1905).
19
Section 9, Rule 66 of the Rules of Court
20
Ensher, Alexander & Barsoom, Inc. v. Ensher (1965) 238 Cal. App. 2d 250, 255. 7
local government unit and an instrumentality of the Republic of the Philippines, is exempt from filing fees pursuant to Seciton 21, Rule 141 of the Rules of Court.
THE P ARTIES 1. Petitioner is the incumbent Municipal Mayor of the Municipality of Panglao, Bohol, an entity of the government. Petitioner commences this quo warranto proceeding under Section 5, Rule 66 of the Rules of Court as an individual with a clear right to the Office of the Municipal Mayor of Panglao, Bohol, a public office usurped and unlawfully exercised by the Respondent in this case. 2. Petitioner may be served with orders, notices, legal processes and writs from this Honorable Court at the Office of the Municipal Mayor, Municipal Hall, Panglao, Bohol. 3. Respondent Leonila P. Montero [ Respondent or Montero, hereinafter for brevity] may be served with summons, orders, notices, legal processes and writs at her residence in Barangay Tawala, Panglao, Bohol, or at her occupied office at the Ground Floor of the Municipal Hall, Panglao, Bohol.
F ACTUAL A NTECEDENTS AND STATEMENT OF THE C ASE 4. To lay the groundwork of this petition, on 14 August 2015, Augustin M. Cloribel filed a complaint at the Office of the Ombudsman for the Visayas against then incumbent mayor of Panglao, Bohol, Leonila P. Montero [ Respondent herein], for violation of Section 3(a), Section 3(e), and Section 3(g) of the Anti-Graft and Corrupt Practices Act (RA 3019); Article 244 of the Revised Penal Code for Unlawful Appointments; and Article 220 of the Revised Penal Code for Illegal Use of Public Funds - Technical Malversation; with the ancillary charges for administrative offenses of Grave Misconduct, Gross Negligence in the Performance of Official Duties and for Conduct Prejudicial to the Best Interest of the Service, for hiring four (4) defeated candidates and partymates who lost in the May 2013 Elections within the one-year prohibition under the Constitution and the Local Government Code. Said complaint was docketed as Criminal Case OMB-V-C-15-0266 and Administrative Case OMB-V-A-150284.21 5. On 21 December 2017, the Ombudsman released its Decision in OMB-V-A-15-0284, dated 24 October 2017, finding 21
See annexes, Petition for Review of Defendant (petitioner therein) Leonila P.
Montero 8
Montero guilty of Simple Misconduct and meted upon her the penalty of suspension for three (3) months without pay. 22 6. Aggrieved by said Decision, on 03 January 2018, Cloribel filed his Complainant’s Manifestation with Motion for Reconsideration asking the Ombudsman to take a second look on its finding of guilt against Montero, arguing therein that Montero should be held liable for grave misconduct instead of the lesser offense of simple misconduct , and to hold her also guilty for Conduct Prejudicial to the Best Interest of the Service and be meted the penalty of DISMISSAL.23 On the other hand, Montero also filed her own motion for reconsideration on said Decision. 7. On 10 January 2018, herein Petitioner assumed as Mayor of Panglao on an “acting capacity” while First Councilor Briccio Velasco also assumed as acting-Vice Mayor. This Honorable Court may please take judicial notice of these facts through news reports published by the Philippine Daily Inquirer24 and the Bohol Chronicle,25 as well as other news organizations; 8. On 09 February 2018, the Ombudsman modified its Decision in a Joint Order dated 19 January 2018, denying the Motion for Reconsideration of Montero, while on the other hand, granting the Complainant’s Manifestation with Motion for Reconsideration of Cloribel, thereby finding Montero guilty of Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service and was meted the penalty of dismissal from the service with all the accessory penalties;26 9. On 08 March 2018, the dismissal of Montero from the service was implemented and served on her by the DILG, who also served copies of two (2) memorandums/orders to assume office to the undersigned Petitioner as Mayor of Panglao in place of Montero, and for First Councilor Briccio Velasco as Vice Mayor of Panglao in place of herein Petitioner. On the same date, herein Petitioner, who was already serving in an “acting capacity” as Mayor while Montero was serving her 3-months suspension since 10 January 2018, immediately took his oath of office in front of Regional Trial Court – Branch 48 Presiding Judge Jorge Cabalit while Velasco also took his oath of office as Vice
22
Id.
23
Id.
24
See http://newsinfo.inquirer.net/959146/pedro-fuertes-panglao-leonila-paredes-
montero; last viewed 18 September 2018. 25
See http://www.boholchronicle.com.ph/2018/01/11/fuertes-assumes-post-as-acting-
panglao-mayor/; last viewed 18 September 2018. 26
See Annexes to petition for review 9
Mayor. This Honorable Court may take judicial notice of these facts through news reports as cited above. 27 10. Montero then filed at the Court of Appeals (Manila) a Petition for Review under Rule 43 of the Rules of Court with Prayer for the Issuance of Temporary Restraining Order and/or Preliminary Injunction assailing the Decision dated 24 October 2017 and the subsequent Joint Order dated 19 January 2018 of the Ombudsman in the subject administrative case (OMB-V-A-15-0284). 11. On 28 June 2018, the Honorable Court of Appeals’ Special 12th Division rendered a Decision on Montero’s petition for review, setting aside the above-mentioned Joint Order of the Ombudsman, and in its stead, reinstated the Ombudsman’s original Decision that held Montero liable for Simple Misconduct only. 28 12. Aggrieved by said Decision of the CA’s Special 12th Division, Cloribel timely filed a Motion for Reconsideration dated 18 July 2018, praying for a reversal of said ruling by highlighting and putting into context the filing at the Sandiganbayan of four (4) Informations for violation of Section 3(e) of R.A. 3019, and another four (4) Informations for violation of Article 244 of the Revised Penal Code, against Montero. 13. For her part, Montero also questioned said Decision and filed to the Honorable Court of Appeals an Urgent Motion for Clarification and/or Reconsideration dated 17 July 2018. 29 14. On 15 September 2018, Cloribel received a notice of a Resolution from the Honorable Court of Appeals with the information that the Urgent Motion for Clarification and/or Reconsideration filed by Montero is “SUBMITTED FOR RESOLUTION”. 15. In the same notice, the Honorable Court likewise considers the Motion for Reconsideration dated 18 July 2018 of herein Petitioner (Respondent therein) also “SUBMITTED FOR RESOLUTION”. A copy 30 16. Therefore, based on records, the petition for review filed by Montero is still pending before this Honorable Court of Appeals. 17. Despite full knowledge of the fact that her petition for review is still pending before the Honorable Court of Appeals, on 10 27
Supra, 5 and 6
28
Annex “G”
29
See, records CA-G.R. SP No. 154605
30
Id. 10
September 2018, Montero, in a clear act of disrespect towards the Honorable Court of Appeals, intruded and interrupted the proceedings of the Sangguniang Bayan (SB) of Panglao, Bohol, to deliver a speech and to read a letter which she prepared, informing the SB that she is “reporting back” to office as Mayor of Panglao, Bohol, on the same day, stating thus: “Xxx
xxx.
“With the reversal of the Ombudsman’ s Joint Order for my dismissal back to the original Decision for my three (3) months suspension, and my having fully served such suspension, the legal incapacity that prevented me from discharging the functions of my office as duly elected mayor of our municipality no longer exists. “Section 46 of the Local Government Code provides that: “SECTION 46. Temporary Vacancy in the Office of the Local Chief Executive. - (a) When the governor, city or municipal Mayor, or Punong Barangay is temporarily incapacitated to perform his duties for physical or legal reasons such as, but not limited to, leave of absence, travel abroad, and suspension from office, the vice-governor, city or municipal vice-mayor, or the highest ranking Sangguniang Barangay member shall automatically exercise the powers and perform the duties and functions of the local chief executive concerned, except the power to appoint, suspend, or dismiss employees which can only be exercised if the period of temporary incapacity exceeds thirty (30) working days. “(b) Said temporary incapacity shall terminate upon submission to the appropriate Sanggunian of a written declaration by the local chief executive concerned that he has reported back to office. In cases where the temporary incapacity is due to legal causes, the local chief executive concerned shall also submit necessary documents showing that said legal causes no longer exist. “In line with the above-quoted legal provision, I have the honor to formally inform your good office that I have reported back to work to perform the functions of the office to which I was 11
overwhelmingly elected by our constituents. I consider it a betrayal of the overwhelming trust and confidence reposed in me by the electorate should I further delay my return to office. As such, I would like to request this august body to pass a resolution acknowledging and confirming my assumption, and reinstituting me as one of the signatories of all bank and other official transactions, for intents and purposes. “Xxx
xxx.” 31
A copy of the above-quoted letter, which Montero read in open session of the SB, is appended hereto as Annex “G”. 18. Montero’s unscheduled appearance at the SB, while the municipal council was holding its regular session, was orchestrated to attain full exposure and to accomplish the objective of heralding her return to office, by sending invitations to members of the media to cover the event. In fact, Montero arrived at the Municipal Hall with a throng of mediamen in tow. Cameras were strategically positioned at the SB session hall for maximum effect. Montero set the stage for a media blitz. After speaking at the SB session, Montero readily accommodated members of the media for a press conference. Proof of which are video footages taken from media coverages of the incidents and recorded and compact discs, hereto appended as Annexes “H” and “I”. 19. Acting in accord with Montero’s request that her assumption to office be recognized and that her authority as official signatory of all transactions with the municipality’s bank account, the Sangguniang Bayan enacted Resolution No. 226, Series of 2018, entitled, “A Resolution Acknowledging and Confirming the Reassumption of Leonila Paredes Montero as Municipal Mayor of Panglao, Bohol and Reinstating Her as Official Signatory of the Checking Account for the Municipality and Other Official Transactions.” An ally-member of the SB, Councilor Dennis B. Hora, readily sponsored said resolution in line with Montero’s speech and letter. Clearly, everything was planned and coordinated, as even the draft of the resolution was prepared in advance by Councilor Hora. Copy of said SB Resolution is appended as Annex “J”. 20. In view of the reality that Montero’s act of unceremoniously reclaiming the position of the mayor is without any legal basis, as shown by the fact that the Department of Interior and 31
Emphasis supplied. 12
Local Government (DILG) issued a Memorandum dated September 14, 2018 declaring Montero as still ineligible to hold the subject position. Copy of said memorandum is appended hereto as Annex “K”. 21. Despite this, Montero forced herself into occupying one of the offices at the ground floor of the Municipal Hall where she is currently holding office. On the very first day of her alleged reassumption to office, she immediately ordered for a meeting with all department/office heads of the municipal government. A copy of a memorandum which Montero issued, dated 10 September 2018, addressed to Heads of Offices, Barangay Captains and all municipal government employees is hereto attached as Annex “L”. 22. Montero has instigated confusion and disorder in the affairs of the Municipal Government of Panglao as there are now two (2) sitting mayors in the municipality. In fact, heads of offices/departments and employees of the municipal hall are disrupted of their duties and functions, while the delivery of basic services to the public is jeopardized, including the disbursement of public funds in view of the Sangguniang Bayan’s passage of Resolution No. 226 authorizing Montero to be the official signatory of the municipality’s bank transactions. With all due respect, this Honorable Court may also take judicial notice of these facts, through published news articles which may be accessed online.32 23. The enactment of the above-mentioned Resolution No. 226 on September 10, 2018, has emboldened Respondent, as if she has been given the mantle of legitimacy to perform and discharge the functions of the office of the Municipal Mayor. 24. On the following day of her hypothesized re-assumption to office, September 11, 2018, Montero met with tourism stakeholders to supposedly implement the demolition of so-called “illegal structures” within the shorelines of Panglao. Again, Montero is discharging functions inherent and exclusive to that of the office of the mayor. 25. On the third day of her supposed re-assumption to office, Montero signed trip tickets and fuel allocations, and then directed municipal personnel that she will be the one to sign for the payrolls. On the same day, Montero again conducted a press conference with members of the local media, with two (2) of her lawyers, Atty. Johnson Hontanosas and Atty. Evaneliza Cloma-Lucero, by her side. A video recording of said press conference is in compact disc attached hereto as Annex “M”.
32
See
http://newsinfo.inquirer.net/1030527/panglao-councilors-put-dismissed-mayor-
back-into-post-without-dilg-order ; last viewed 9/11/2018. 13
26. On the morning of 17 September 2018, Monday, at the Municipal Hall grounds of Panglao, Montero turned a regular flag raising ceremony into another politically-charged, agitating event. Given the controversies and the tension spawned by the incidents of the previous days following her unlawful re-assumption to office, the situation potentially incites a standoff or even conflict, the tension among those present during said flag ceremony, especially the allies and supporters of the two (2) “mayors” was all too palpable, in the presence of municipal officials, employees, and servicemen of the municipal police and fire stations. 27. After the singing of the National Anthem and the Bohol Hymn, Montero took the microphone from the master of ceremonies and delivered yet another speech. This time, Montero repeatedly discussed the merits of her case, which was the cause of her dismissal from the service by the Honorable Ombudsman, that is pending petition for review at this Honorable Court of Appeals. In fact, aside from discussing her petition at the CA, Montero even discussed the merits of the related criminal case which was filed by the Honorable Ombudsman at the Sandiganbayan, for which she has assailed through a Petition on Certiorari with prayer for the issuance of temporary restraining order (TRO) and/or writ of injunction at the Supreme Court. Several mediamen were able to record on video events that transpired during said flag ceremony, which herein Petitioner downloaded and copied to compact discs, hereto attached as Annex “N”. 28. Montero likewise conducted interviews with the media after the flag ceremony, again discussing her pending cases at this Court of Appeals and the Supreme Court. Please refer to the attached video recording [Annex “G”], and the news reports accessible online, and the photographs hereto attached as Annex “O”. 29. Immediately after the flag ceremony, Montero went to the office which she is occupying at the ground floor of the Municipal Hall, to continue discharging and performing the authority and the functions of the Office of the Mayor of Panglao, Bohol. 30. Because of Montero’s criminal acts, assisted by the SB Members and her legal counsels, they have jeopardized the operations of the Municipal Government of Panglao. Citing as example, the everrecurring failure to pay for the salaries of all municipal government employees which should have been released on the 15th and 30th of the month of September, as the municipal treasurer and other accountable officers of the municipality are in a quandary as to who will sign the withdrawal of funds for the salaries and who will sign for the approval of the payrolls, considering Montero had issued a directive early on that she will be the one to sign the payrolls, withdrawals and all other 14
transactions involving the disbursement of municipal funds, hence, their apprehensions to be embroiled in the controversy. This was in fact manifested by herein Petitioner during an interview with the media which this Honorable Court may take judicial notice of, through the attached video recording [ Annex “P”] and the news reports published online.33 31. In fact, on the same day, 17 September 2018, the Department of Interior and Local Government (DILG) through DILG Bohol Provincial Director Johnjoan Mende, served the Memorandum to Montero, informing her that her re-assumption to office in unlawful and premature, hence she must step down. 34 32. However, early morning on the following day, Montero, in an interview with Station dyRD-AM (1161 KHZ – Tagbilaran City), Montero again discussed her pending petition for review before this Honorable Court of Appeals and blatantly said on that radio interview that she will never obey the DILG order. Again, Montero said that the Honorable Court of Appeals had already ruled in her favor, and that in view of this Honorable Court’s Decision no legal impediments exist to her re-assumption to office. Attached is an audio recording on CD from said radio interview taken from Station dyRD-Tagbilaran, marked Annex “Q”.35 33. Montero knows for a fact that her petition for review and the Decision of the Court of Appeals has not yet attained finality in view of the pendency of herein Cloribel’s Motion for Reconsideration. It is therefore very clear that while a decision has been rendered by this Honorable Court on said petition for review, there is NO ENTRY OF JUDGMENT that Montero could invoke as final and executory in her favor, and in relation to the provision of the Local Government Code which she cited (Section 46). 34. As a matter of fact, Montero, through her counsels, filed with the Honorable Court of Appeals an Urgent Motion for Clarification and/or Reconsideration of the subject Decision. In 33
See Philippine Daily Inquirer, https://newsinfo.inquirer.net/1033209/2-rival-mayorslead-panglao-town-rite last viewed 9/19/2018; PDI, https://newsinfo.inquirer.net/1033523/2-execs-claim-mayors-seat-in-bohol-town
last
viewed 9/19/2018; and The Philippine Star, https://www.philstar.com/thefreeman/region/2018/09/14/1851415/whos-mayor-panglao last viewed 9/19/2018. 34
Annex “I”; see also PDI re port, https://newsinfo.inquirer.net/1033413/dilg-fuertes-ispanglao-mayor, last viewed 9/19/2018.
35
May also be accessed online through the recorded broadcasts section of dyRD Online, http://www.dyrdam.com/recorded-broadcast , “Inyong Alagad” program, 8:00 AM to 10:00 AM, dated 18 July 2018. 15
view of the pendency of her own Urgent Motion for Clarification and/or Reconsideration, Montero is estopped from laying claim to the position and the office of the Mayor of Panglao, Bohol as she is even seeking clarification from this Honorable Court, while at the same time also asking for a reconsideration of the subject Decision. 35. By forcibly reinstating herself as Mayor of Panglao, Bohol, even with the full knowledge that she cannot yet reclaim the office and the position in view of her pending petition for review, holds her liable for usurpation of authority and official functions as well as contempt of court because the act itself evinces a lack of deference to this Honorable Court. 36. Montero’s conduct are disrespectful towards this Honorable Court of Appeals in a manner which tends to degrade the administration of justice, by pre-empting the judicial powers and authority of the Court in her re-assumption as Mayor without waiting for the final disposition of her case by the Court. Montero essentially committed acts of disobedience and a clear defiance to lawful processes. No wonder, the Ombudsman found her guilty of the offense of GRAVE MISCONDUCT and CONDUCT PREJUDICIAL TO THE BEST INTEREST OF THE SERVICE, because certainly, Montero shows a penchant and proclivity to violate established laws, rules, procedures and regulations, and would not hesitate to defy, even publicly, lawful orders such as the DILG in this case. 37. Practically, Respondent is functioning as a de facto public officer whose re-assumption to office is void ab initio. A de facto public officer is one who acts under a color of authority, unlike a mere usurper or one who has neither title nor color of right of an office: An officer de facto is to be distinguished from an officer de jure, and is one who has the reputation or appearance of being the officer he assumes to be but who, in fact, under the law, has no right or title to the office he assumes to hold. He is distinguished from a mere usurper or intruder by the fact that the former holds by some color of right or title while the latter intrudes upon the office and assumes to exercise its functions without either the legal title or color of right to such office. McQuillin, Municipal Corporations, Vol. 3, 3rd ed., pp. 376-377.) To constitute a de facto officer, there must be an office having a de facto existence, or at least one recognized by law and the claimant must be in actual possession of the office under color of title or authority. State vs. Babb, 124 W. Va. 428, 20 S.E. (2d) 683. McQuillin, Municipal Corporations, supra footnote No. 16
38. Because a de facto officer holds a colorable title of authority, his or her title cannot be collaterally or indirectly assailed. For instance, a petition for the issuance of a writ of prohibition to prevent a de facto officer from doing an act or a suit enjoining the enforcement of a judgment cannot be used to question a de facto officer’s title.36 Such title may be questioned only in a quo warranto proceeding.37 39. It bears emphasizing that herein Petitioner became the incumbent Municipal Mayor of the Municipality of Panglao, Bohol, after having assumed the said office by virtue of the rule on succession under the Local Government Code following the dismissal from the service of herein Respondent (Montero) which took effect on 08 March 2018. It is respectfully submitted to this Honorable Office to take judicial notice of these facts and the attached Memorandums/Orders from the Department of Interior and Local Government (DILG), who implemented my assumption to office on 08 March 2018 marked as Annexes “R”, and my oath of office marked as Annex “S”. 40. BEING THE PERSON WHO HAS A LAWFUL CLAIM OVER THE PUBLIC OFFICE IN QUESTION which Respondent is USURPING, including the authority and the official functions of said office, herein Petitioner is bringing this action for quo warranto against Respondent for unlawfully holding and exercising the public office that herein Petitioner is entitled to, in accordance with Section 5 of Rule 66 of the Rules of Court, which provides: Section 5. When an individual may commence such an action. -A person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another may bring an action therefor in his own name.
41. Despite a DILG Memorandum ordering Respondent to cease and desist from re-assuming the office in question, and despite demands for Respondent to vacate said office, she continues to unlawfully refuse.
GROUNDS FOR THE A LLOWANCE OF THE PETITION I.
36
Oakland Municipal Improvement league v. City of Oakland (1972 ) 23 Cal. App. 30 165, 170.
37
238 U.S. 537 (1915). 17
A PETITION FOR QUO WARRANTO IS THE APPROPRIATE REMEDY TO QUESTION THE VALIDITY OF THE RE ASSUMPTION TO OFFICE OF RESPONDENT AS MUNICIPAL MAYOR OF PANGLAO, BOHOL. II. RESPONDENT IS UNLAWFULLY HOLDING THE POSITION OF THE OFFICE OF THE MUNICIPAL MAYOR OF PANGLAO, BOHOL. III. RESPONDENT IS A DE FACTO PUBLIC OFFICER WHO CAN BE OUSTED THROUGH A QUO WARRANTO PROCEEDING.
DISCUSSION A petition for quo warranto is the appropriate remedy to question the validity of the re-assumption to office of Respondent as Municipal Mayor of Panglao, Bohol. 42. Quo warranto is the proper remedy to question the validity of Respondent’s appointment. The Latin term, which literally means “by what authority,” is now recognized as an extraordinary legal remedy whereby the State challenges a person or an entity to show by what authority he or she holds a public office or exercises the functions of said position. It is the principal remedy and an effective method to challenge a claim to public office. 38
38
Section 1 and 2, Rule 66 of the Rules of Court 18
43. Historically, in the Philippines, quo warranto was formalized into law with the passage of the Code of Civil Procedure in August 7, 1901.30 Section 197 of the Code provides: Usurpation for Office or Franchise, Etc. SECTION 197. Usurpation of an Office or Franchise. — A civil action may be brought in the name of the Government of the Philippine Islands: 1. Against a person who usurps, intrudes into, or unlawfully holds or exercises a public civil office or a franchise within the Philippine Islands, or an office in a corporation created by the authority of the Government of the Philippine Islands; 2. Against a public civil officer who does or suffers an act which, by the provisions of law, works a forfeiture of his office; 3. Against an association of persons who act as a corporation within the Philippine Islands, without being legally incorporated or without lawful authority so to act.
44. At present, the grounds for the issuance of the writ of quo warranto is laid down in Section 1 of Rule 66 of the Rules of Court, to wit: RULE 66 Quo Warranto Section 1. Action by Government against individuals. — An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against: (a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise; (b) A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office; or (c) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act. 45. The instant petition for quo warranto against Respondent should be differentiated from the proceedings in the petition for prohibition against her and the Sangguniang Bayan of Panglao, which is pending before the Honorable RTC-Branch 2. The writ of quo warranto is being sought to question the validity of her re-assumption 19
into office; on the other hand, the petition for prohibition asks the court to stop Montero from discharging the functions of the public office in question and the Sangguniang Bayan from decreeing or recognizing the re-assumption of Montero into said office. Stated differently, herein Petitioner is seeking Montero’s ouster from the office which she purports to hold because she has no lawful basis of reclaiming or holding the position. 46. Thus, Respondent’s re-assumption of the position of Municipal Mayor under the color of a Decision of the Court of Appeals which is still pending adjudication before said appellate court, is not only unlawful but also a public wrong that can only be corrected by quo warranto.39 As the Court held in Agcaoili v. Suguitan:40 “In all public matters a writ of quo warranto is a writ of right at the suit of the state, and issues as a matter of course upon demand of the proper officer and the court has no authority to withhold leave to file a petition therefor. (Citations omitted)”
47. It is clear therefore that in this case, Petitioner, as an individual who has a lawful claim or entitlement of the public office in question, which is being usurped by Respondent, is correct in instituting this proceeding for quo warranto. Respondent is unlawfully holding and exercising the office of the Municipal Mayor of Panglao, Bohol. 48. Respondent was dismissed from the service by the Ombudsman due to grave misconduct in office and for conduct prejudicial to the best interest of the service. Such dismissal barred her from holding any public office in perpetuity. Because of this ineligibility, Respondent is therefore unlawfully holding the position in question, this even despite her claims that there is a Decision of the Court of Appeals that modified the Ombudsman’s ruling, because said Decision of the appellate court is still pending adjudication and could even go farther to the Supreme Court before an entry of judgment that will put a finality of the subject case. 49. In the context of quo warranto, there is “unlawful holding” when the public officer do not meet all the legal qualifications for the office. The basis in resisting the authority of an unlawful holder has
39
See Cui vs. Cui, 60 Phil 37, G.R. No. 39773, April 9, 1934 citing Murphy vs.
Farmers' Bank (20 Pa., 415). 40
20
been explained in the book Early Modern Sovereignty and its Limits,41 as follows: The right to resist an unlawful holder of authority arose from the absence of a legal basis for that authority. Such an “invader of authority” (invasor imperii) could, under certain circumstances, be resisted.
50. Here in this case, it is very clear that Respondent has no right to hold the office of the Municipal Mayor because of her ineligibility and disqualification from said position and from holding any public office. Respondent is a de facto officer who can be ousted through a quo warranto proceeding. 51. A de facto public officer is one who acts under a color of authority, unlike a mere usurper or one who has neither title nor color of right of an office: An officer de facto is to be distinguished from an officer de jure, and is one who has the reputation or appearance of being the officer he assumes to be but who, in fact, under the law, has no right or title to the office he assumes to hold. He is distinguished from a mere usurper or intruder by the fact that the former holds by some color of right or title while the latter intrudes upon the office and assumes to exercise its functions without either the legal title or color of right to such office. McQuillin, Municipal Corporations, Vol. 3, 3rd ed., pp. 376377.)
52. Because a de facto officer holds a colorable title of authority, his or her title cannot be collaterally or indirectly assailed. For instance, a petition for the issuance of a writ of prohibition to prevent a de facto officer from doing an act or a suit enjoining the enforcement of a judgment cannot be used to question a de facto officer’s title. Such title may be questioned only in a quo warranto proceeding.42 PRAYER WHEREFORE, Petitioner PEDRO E. FUERTES, consequently prays that this Honorable Court:
41
Benjamin Straumann, 436 Theoretical Inq L 16.2 (2015).
42
94 Tayko, et al. v. Capistrano, et al., G.R. No. L-30188, October 2, 1928. 95. 21
(1) DECLARE as void the re-assumption of Respondent LEONILA P. MONTERO into the Office of the Municipal Mayor of Panglao, Bohol; and (2) OUST and EXLCLUDE Respondent LEONILA P. MONTERO from the position of Municipal Mayor of Panglao, Bohol. Petitioner also requests that the Court grant such other relief as may be just and equitable under the circumstances. City of Tagbilaran, Philippines, this 8 th day of October 2018.
PEDRO E. FUERTES Petitioner
VERIFICATION AND CERTIFICATION OF NON FORUM-SHOPPING
22
