KOSRAE STATE COURT TRIAL DIVISION
Cite as Mackwelung v. Robert
12 FSM Intrm. 161 (Kos. S. Ct. Tr. 2003)

[12 FSM Intrm. 161]

PENINA MACKWELUNG, on behalf
of the Kosrae Teacher Association,
Plaintiff,
 
vs.
 
HENRY E. ROBERT, and KOSRAE
STATE GOVERNMENT,
Defendants.
 
CIVIL ACTION NO. 83-03
 
ORDER GRANTING TEMPORARY RESTRAINING ORDER;
TEMPORARY RESTRAINING ORDER
 
Yosiwo P. George
Chief Justice
 
Hearing: October 9, 2003
Decided: October 9, 2003

APPEARANCES:

For the Plaintiff:                  Canney Palsis, Esq.
                                            Directing Attorney
                                            Micronesian Legal Services Corporation
                                            P.O. Box 38
                                            Lelu, Kosrae FM 96944
 
For the Defendants:          Danny Clearman, Esq.
                                           Attorney General
                                           Office of the Kosrae Attorney General
                                           P.O. Box 870
                                           Lelu, Kosrae FM 96944

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HEADNOTES

Administrative Law
     Proposed regulations, that have not been adopted, do not have the force of law. Mackwelung v. Robert, 12 FSM Intrm. 161, 162 (Kos. S. Ct. Tr. 2003).
 
Civil Procedure ) Injunctions
     The Kosrae Director of Education will be temporarily restrained from administering an FSM National Standard Test for Teachers for profiling purposes because there is no legal requirement for a teacher to take the test (although it is desirable to get as many teachers as possible to take it), when the Kosrae teachers will be irreparably harmed because of the teachers' mistaken belief and understanding that the test's completion is now required by law or regulation that successful

[12 FSM Intrm. 162]

completion of the test will result in that teacher's certification and because of the potential discipline to, and potential loss of salary by, any teacher who fails to take the exam. Mackwelung v. Robert, 12 FSM Intrm. 161, 162-63 (Kos. S. Ct. Tr. 2003).

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COURT'S OPINION

YOSIWO P. GEORGE, Chief Justice:

     Plaintiff filed a Complaint and Motion for Temporary Restraining Order on October 8, 2003. Defendant was served the pleadings also on October 8, 2003. The hearing on the Motion for Temporary Restraining Order was held on October 9, 2003. Canney Palsis, MLSC represented the Plaintiffs. Defendant was represented by Danny Clearman, AG.

     After the hearing, based upon the information provided to the Court, the arguments of counsel, the file in this matter, applicable law and in the interests of justice, I granted the Motion for Temporary Restraining Order. This memorandum states my reasoning.

     Plaintiff, who represents the Kosrae State classroom teachers, seeks a Temporary Restraining Order pursuant to KRCP Rule 65, to stop the administration of the National Teachers Standard Test on October 10, 2003. Plaintiff claims that the all classroom teachers have been ordered by the Defendant to take the Test, or face discipline and pay deduction. Plaintiff claims that the Test is not required by law or regulation and therefore the Defendant cannot require the Plaintiff.

     Kosrae State Code, Section 12.301 permits the Department of Education to require certification of a teachers by regulation. At this time, there are no Kosrae State regulations adopted by the Department of Education in effect which require certification of a teacher. National Law, at FSM Code Title 40, Section 105, establishes teacher certification requirements. Current national regulations require teacher certification, but do not require completion of any test.

     The FSM Department of Education has proposed national regulations will require teacher certification by successful passing of the "national teacher exam." The proposed regulations have not been put out for public comment yet, as they are awaiting approval by the FSM Attorney General. The proposed regulations have not been adopted and do not have the force of law.

     According to the FSM Department of Education, the "National Standard Test" is currently being administered in all FSM States for profiling purposes only. The purpose of the exam is to determine the current level of competence and teaching strength of FSM teachers. After the "profiling exam" is completed, a training schedule will be developed and the final National Standard Test will be administered in within three years. The proposed FSM Regulations states that "to continue teaching, existing teachers must pass the FSM National Standard Test for Teachers within 3 years of the effective date of these regulations."

     I conclude that there is no legal requirement for a teacher to take this National Standard Test at this time for profiling purposes. However, it is desirable to get as many teachers as possible to take the exam, so that an accurate profiling can be done in the development of the training and the final National Standard Test.

     The September 22, 2003 memorandum by the Director of Education states that all teachers must take and pass the National Standard Test given in September 2003. The memorandum implies that

[12 FSM Intrm. 163]

passing the National Standard Test is required now for certification.

     Through the September 22, 2003, the Director of Education has wilfully misinformed the teachers as to the purpose of the National Standard Test to be administered this September and October 2003. Through the September 22, 2003 memorandum, the Director of Education has wilfully misinformed the teachers that the test being administered this September and October 2003 is the examination required for teacher certification. Through the September 22, 2003 memorandum, the Director of Education has wilfully misinformed the teachers that completion of the National Teacher Exam is now is required for teacher certification, when in fact, no FSM or Kosrae State regulations have yet been adopted to implement the new teacher certification process through the exam.

     Through the actions of the Director of Education, and his threat of discipline and salary deduction, the teachers will suffer immediate and irreparable harm if the restraining order is not granted. This immediate and irreparable harm to the teachers includes the following:

1. teachers' belief and understanding that completion of the National Standard Test is required now by law or regulation.

2. teachers' belief and understanding that successful completion of the National Standard Test on October 10, 2003 will result in certification of that teacher.

3. potential discipline to any teacher who fails to take the exam on October 10, 2003, without compliance of regulation and law.

4. potential loss of salary to any teacher who fails to take the exam on October 10, 2003, without compliance of regulation and law.

     Plaintiff's Motion for Temporary Restraining Order is granted as follows:

1. The Director of Education, his officers, agents, servants, employees, attorneys, and consultants are hereby enjoined and restrained from administering the National Standard Test on October 10, 2003 and until further written order from this Court.

2. The Director of Education shall provide a copy of the proposed FSM Teacher Certification Regulations to each Elementary School Principal no later than October 22, 2003, and when such Regulations are adopted, distribute a copy of the final regulations to each classroom teacher.

3. The Director of Education shall inform all classroom teachers in writing of the true purpose of the National Teacher Exam which was scheduled for September and October 10, 2003. The teachers shall be informed that the Exam is being administered for the purpose of profiling, so that appropriate training programs and the final National Teacher Exam can be properly developed. The Director of Education shall inform all classroom teachers in writing that taking the National Standard Test for profiling at this time is voluntary, but highly encouraged. Teachers shall not be disciplined, nor their pay deducted, for their failure to take the National Teacher Exam for profiling.

4. The Director of Education shall schedule administration of the National Standard Test for profiling, after items 1 through 3 are completed, but no earlier than November 1, 2003. The Director of Education shall give written notice to the classroom teachers of the administration date of the National Standard Test. The teachers shall also be informed that the Test is being administered for the purpose of profiling, so that appropriate training programs and the final National Standard Test can be properly developed. The Director of Education shall inform all classroom teachers in writing that taking

[12 FSM Intrm. 164]

the National Teacher Exam for profiling at this time is voluntary, but highly encouraged. Teachers shall not be disciplined, nor their pay deducted, for their failure to take the National Standard Test for profiling.

     The hearing on this Temporary Restraining Order shall be continued on October 22, 2003, at 9 am, where compliance with paragraphs through 3 shall be provided to the Court.

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