KOSRAE STATE COURT TRIAL DIVISION
Cite as Seventh Kosrae State Legislature v. Sigrah 11
FSM Intrm. 110 ( Kos. S. Ct. Tr. 2002)
 
[11 FSM Intrm. 110]
 
THE SEVENTH KOSRAE STATE LEGISLATURE,
Petitioner,
 
vs.
 
RENSLEY SIGRAH, GOVERNOR OF THE STATE
OF KOSRAE,
Respondent.
 
CIVIL ACTION NO. 68-02
 
ORDER GRANTING PETITION FOR PRELIMINARY INJUNCTION;
PRELIMINARY INJUNCTION
 
Yosiwo P. George
Chief Justice
 
Hearing: August 22, 2002
 
Decided: August 23, 2002
 
[11 FSM Intrm. 111]
 
APPEARANCES:
 
For the Petitioner:                            Paul Vignos, Esq.
                                                           Rhonda Byers, Esq.
                                                           Legislative Counsel
                                                           Kosrae Legislature
                                                           P.O. Box 187
                                                           Tofol, Kosrae FM 96944
 
For the Respondent:                       Ronald Bickett, Esq. (filings)
                                                          Kosrae Attorney General
                                                          Danny Clearman, Esq. (argued)
                                                          Assistant Attorney General
                                                          Office of the Kosrae Attorney General
                                                          P.O. Box 870
                                                          Tofol, Kosrae FM 96944

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HEADNOTES

Civil Procedure) Injunctions
     The object of a preliminary injunction is to preserve the status quo pending the litigation on the merits. Seventh Kosrae State Legislature v. Sigrah, 11 FSM Intrm. 110, 113 (Kos. S. Ct. Tr. 2002).
 
Civil Procedure ) Injunctions
     The long established standard for issuance of a preliminary injunction is that the court must consider four criteria in determining whether to grant a preliminary injunction: 1) the likelihood of success on the merits of the party seeking injunctive relief; 2) the possibility of irreparable injury; 3) the balance of possible injuries or inconveniences to the parties which would result from granting or denying relief; and 4) impact on the public interest. Seventh Kosrae State Legislature v. Sigrah, 11 FSM Intrm. 110, 113 (Kos. S. Ct. Tr. 2002).
 
Civil Procedure ) Injunctions
      The issuance of a preliminary injunction is largely a matter of the facts of each situation and thus a matter for the trial judges discretion. Seventh Kosrae State Legislature v. Sigrah, 11 FSM Intrm. 110, 113 (Kos. S. Ct. Tr. 2002).
 
Civil Procedure) Injunctions
     Injunctive relief will be granted when three of the four, or four of the four, factors to be considered favor the granting of the preliminary injunction. Seventh Kosrae State Legislature v. Sigrah, 11 FSM Intrm. 110, 113, 115 (Kos. S. Ct. Tr. 2002).
 
Civil Procedure ) Injunctions 
     As to the likelihood of success on the merits, a court may grant a preliminary injunction so long as the movants position raises serious, nonfrivolous issues. Seventh Kosrae State Legislature v. Sigrah, 11 FSM Intrm. 110, 113 (Kos. S. Ct. Tr. 2002).
 
Civil Procedure) Injunctions
      For the court to issue a preliminary injunction, the party seeking protection must be faced with the threat of irreparable harm before the conclusion of the litigation unless it is granted. There must
 
[11 FSM Intrm. 112]
 
be a clear showing that immediate and irreparable injury or loss or damages would otherwise occur, and there must be no adequate alternative remedy. Seventh Kosrae State Legislature v. Sigrah, 11 FSM Intrm. 110, 113-14 (Kos. S. Ct. Tr. 2002).
 
Civil Procedure) Injunctions
     When the Legislative Counsels continued services to the Legislature will not interfere with the executives duties to faithfully execute the laws, and no fiscal issues are involved because their salaries are already appropriated, the balance of possible injuries favors issuance of the preliminary injunction, as does the strong public interest in the continued functioning of the Legislative branch with legal counsel, particularly during their session. Seventh Kosrae State Legislature v. Sigrah, 11 FSM Intrm. 110, 114-15 (Kos. S. Ct. Tr. 2002).

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COURTS OPINION

YOSIWO P. GEORGE, Chief Justice:

     Petitioner filed a Petition for Preliminary Injunction on August 13, 2002. Petitioner filed a Motion for Expedited Hearing on August 15, 2002. Respondent filed a Memorandum in Opposition to the Plaintiffs Motion for Expedited Hearing on August 15, 2002. The Petitioners Motion for Expedited Hearing was granted. The Petition for Preliminary Injunction was heard on August 22, 2002 at 10 am. Petitioner was represented by Legislative Counsels Paul Vignos and Rhonda Byers. Several members of the Petitioner Kosrae State Legislature were present at the hearing, as well the Director of Administration and Finance, and other employees of the Respondent.

     As a preliminary matter, a Motion for Leave to Appear was heard first. Mr. Danny Clearman, the new Assistant Attorney General, had filed a Motion for Leave to Appear in this matter. Mr. Clearmans Motion satisfies the requirements of GCO 2001-5, Rule Three, and was therefore granted. Mr. Clearman is granted leave to appear in this matter, on behalf of the Respondent. Mr. Clearman is reminded of the requirements to practice law in the State of Kosrae and encourages his prompt compliance with the requirements of GCO 2001-5.

     The Court expresses its disappointment at the failure of the Attorney General, Ronald Bickett, to appear for the hearing this morning. Mr. Bickett has signed the pleadings and other documents filed in this matter as the Attorney of Record for the Respondent. Accordingly, the Court expected Mr. Bickett to appear at the hearing on behalf of the Respondent.

     The Petition for Preliminary Injunction was heard next. After hearing from the parties, consideration of the facts, the record in the matter, applicable law, and in the interests of justice, the Petition for Preliminary Injunction was granted. The reasons for the issuance of the Preliminary Injunction are set forth as follows.

I. Background.

      The Governor of the State of Kosrae purportedly terminated Legislative Counsels Paul Vignos and Rhonda Byers on August 6, 2002 for their failure to comply with State Law 7-214, which required state attorneys to become admitted to practice before the FSM Supreme Court within one year of hiring. Following this action by the Governor, the Petitioner filed a Complaint for a declaratory ruling that the Governors termination of legislative counsels was unconstitutional as it violates the separation of powers. Petitioner has also filed a Petition for Preliminary Injunction requesting a Court Order to

[11 FSM Intrm. 113]

prohibit Respondents interference with contractual payments to Legislative Counsels, Legislative Counsels immigration status and performance of their duties at the Legislature.

II. Analysis.

      The object of a preliminary injunction is to preserve the status quo pending the litigation on the merits. Ponape Enterprises Co. V. Bergen, 6 FSM Intrm. 286 (Pon. 1993). KRCP Rule 65 governs the issuance of a preliminary injunction and sets out the procedural requirements.

       The standard for issuance of a preliminary injunction has been long established by the FSM Supreme Court and the Kosrae State Court. The Court must consider four criteria in determining whether to grant a preliminary injunction:

1. the likelihood of success on the merits of the party seeking injunctive relief;

2. the possibility of irreparable injury;

3. the balance of possible injuries or inconveniences to the parties which would result from granting or denying relief; and

4. impact on the public interest.

See Wakuk v. Kosrae Island Credit Union, 7 FSM Intrm. 195 (Kos. S. Ct. Tr. 1995); Palik v. Henry, 9 FSM Intrm. 309 (Kos. S. Ct. Tr. 2000).

      The issuance of a preliminary injunction is largely a matter of the facts of each situation and thus a matter for the discretion of the trial judge. Onopwi v. Aizawa, 6 FSM Intrm. 537 (Chk. S. Ct. App. 1994). Injunctive relief will be granted when three of the four factors to be considered favor the granting of the preliminary injunction. Carlos Etscheit Soap Co. v. Epina, 9 FSM Intrm. 155 (Pon. 1997). In this matter, all four of the factors favor the Petitioners.

A. Likelihood of success on the merits of the Petitioners.

      The first factor in consideration of an application for preliminary injunction is the Petitioners likelihood of success on the merits of the case. As to the likelihood of success on the merits, a court may grant a preliminary injunction so long as the movants position raises serious, nonfrivolous issues. Palik v. Henry, 9 FSM Intrm. 309 (Kos. S. Ct. Tr. 2000); Ponape Enterprises Co. v. Bergen, 6 FSM Intrm. 286 (Pon. 1993). Here, the Petitioners position raises serious, nonfrivolous issues:

     ) Whether the Respondents action in termination of the Legislative Counsels is unconstitutional as applied under the Separation of Powers Doctrine?

     ) Whether the Respondents action in termination of the Legislative Counsels is unconstitutional as it interferes with the functioning of the Legislature, a co-equal branch of the government?

     Respondent argues that the Petitioner will likely not prevail on the merits of this action. Respondents argument does not address the application of this first factor pursuant to precedent established by this Court. Petitioner has clearly raised serious, nonfrivolous issues in their Complaint. This factor weighs in favor of the Petitioner.

B. The Possibility of Irreparable Harm.

      The second factor in consideration of an application for preliminary injunction is the likelihood of irreparable harm to the Petitioner without the injunction. The party seeking protection must be faced

[11 FSM Intrm. 114]

with the threat of irreparable harm before the conclusion of the litigation unless the preliminary injunction is granted. Carlos Etscheit Soap Co. v. Epina, 8 FSM Intrm. 155 (Pon. 1997). There must be a clear showing that immediate and irreparable injury or loss or damages would otherwise occur. There must be no adequate alternative remedy. Kony v. Mori, 6 FSM Intrm. 28 (Chk. 1993). Here, the Petitioner is faced with irreparable harm before the conclusion of the litigation. The litigation will inevitably require at least a few months to complete, as the Respondent has already requested his first enlargement of time to answer the complaint.

     Petitioner is faced with irreparable harm in several ways. Failure by the Respondent to pay salary to Legislative Counsels will result in extreme financial hardship of the Legislative Counsels. Legislative Counsels face potential deportation or other immigration actions by the FSM National Government. The Petitioner will suffer extreme hardship from the loss of Legislative Counsels services to the Legislature during Session, which is ongoing until at least September 14, 2002. Petitioner will suffer extreme hardship from the loss of Legislative Counsels services to the Legislature for other legislative duties and matters.

      Respondent argues that trial counselors employed at the Legislature could provide substitute legal services to the Legislature. Respondent further argues that the Respondent has offered to "loan" an attorney to the Petitioner for the remainder of session. Respondents "loan" of an attorney from the Attorney Generals Office would be in violation of the Model Rules of Professional Conduct, even assuming that the Legislature would even consider such an offer. Respondent arguments are without merit and must be rejected.

      The potential harm inflicted upon the Legislative Counsels and the potential loss of the Legislative Counsels services to the Legislature is irreparable. There is no adequate alternative available. This second factor weighs in favor of the Petitioner.

C. The Balance of Possible Injuries to the Parties from Granting the Preliminary Injunction.

      This third factor requires the Court to balance the possible injuries to the parties from granting or denying the preliminary injunction. Discussion of the second factor above shows that the possible injury to the Petitioner without the preliminary injunction is great and irreparable. The possible injury to the Respondent from granting of the preliminary injunction is minimal.

      The Legislative Counsels continued services to the Legislature will not interfere with the Respondents duties to faithfully execute the laws. The Legislative Counsels continued services to the Legislature will not result in any fiscal issues, as the salaries and other benefits due to the Legislative Counsels have already been appropriated by law. The Legislative Counsels continued services to the Legislature may actually benefit the Respondent, since the Legislature may not be willing to consider certain legislation or matters without advice of legal counsel.

      Respondent argues that there is public policy in favor of prompt enforcement of the laws. The Court recognizes that while this public policy may be true, however, the record in this matter suggests that there was not prompt enforcement of the law in this matter. The possible injury to the Petitioner from not granting the preliminary injunction outweighs the possible injury to the Respondent from granting of the preliminary injunction.

      The third factor weighs in favor of the Petitioners.

[11 FSM Intrm. 115]

D. The Impact of the Public Interest.

      The fourth and last factor is consideration of the public interest in granting or denying of the preliminary injunction. The public has a strong interest in the continued functioning of the Legislative branch with legal counsel, particularly during their session.

      Respondent again argues that it would be willing to "loan" an attorney to the Legislature. This argument is again rejected for the same reasons set forth above.

      Accordingly, the fourth factor also weighs in favor of the Petitioners.

      Injunctive relief will be granted when three of the four factors to be considered favor the granting of the preliminary injunction. Carlos Etscheit Soap Co. v. Epina, 9 FSM Intrm. 155 (Pon. 1997). Here, all four of the factors favor the Petitioners. Therefore, the Petition for Preliminary Injunction is granted as follows

PRELIMINARY INJUNCTION

ORDERED, ADJUDGED AND DECREED

The Respondent, its officers, agents, attorneys and employees are hereby prohibited from taking any action that will interfere with the contractual relationship between Legislative Counsels Paul Vignos and Rhonda Byers and the Legislature, including, but not limited to:

1. stopping contractual payments to the Legislative Counsels, including but not limited to salary, housing, utility, etc. The salary due on August 22, 2002 shall be paid to the Legislative Counsels no later than 5 pm on August 22, 2002.

2. interfering with Legislative Counsels immigration status, and

3. interfering in any way with the Legislative Counsels ability to perform their duties for the Legislature.

This Preliminary Injunction shall remain in effect until this matter is resolved on the merits, or otherwise disposed of by written Court Order.

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