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KESKE S. MARAR, Associate Justice:
This case comes before the Court because the Office of the Attorney General of Chuuk State has apparently failed completely to advise the Governor of the import of the decisions of this Court in Olap v. Chuuk State Election Comm'n, 9 FSM Intrm. 531 (Chk. S. Ct. Tr. 2000) and Lokopwe v. Walter, 10 FSM Intrm. 303 (Chk. S. Ct. Tr. 2001). It is very disturbing that despite these two decisions, the Attorney General of Chuuk State, and the Governor of Chuuk State, continue to fail to understand that the Governor may not, under any circumstances, substitute his "policy" for the constitution and laws of this state and the decisions of this Court. For the reasons stated below, the Court finds in favor of the plaintiff, and judgment shall so issue.
I. Statement of Facts
By memorandum dated November 26, 2002, to all Department and Activity Heads, Governor Dr. Ansito Walter issued1 an Executive Order, which in substance required any Chuuk State government employee2 who desired to run for election to any public office in the next general election, whether state or national, to resign from his or her position with the government. Those who chose to run and did not voluntarily resign would be summarily terminated by the Director of Personnel, with the approval of the Director of Budget and the Governor. Both the Director of Personnel and the Director of Budget are "principal officers"3 and serve at the pleasure of the Governor.
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When this "edict" was issued, Plaintiff was the Administrator of the Chuuk State Workforce Investment Act programs, a United States federally funded position. He wished to become a candidate for the FSM Congress, but did not desire to quit his job in order to do so. By "personnel action" signed by the Personnel Officer, Director of Budget and the Governor on December 30, 2002, and with an effective date of December 4, 2002, Plaintiff was terminated from his position. The grounds stated for the termination were that "Employee decides to run for FSM Congress."
This was not the first time plaintiff had been terminated pursuant to this "policy." Plaintiff had previously chosen to run in the March, 2001 election to the FSM Congress, and using the same "policy" Governor Walter had ordered him terminated. At that time, a complaint from the FSM Secretary of Justice McIlrath led to a response from Maketo Robert, Esq., as "Legal Consultant/ Acting Attorney General," wherein Mr. Robert agreed that if national law did not require plaintiff to resign from his job in order to run for the FSM Congress, he should be reinstated. In that letter, hand-dated February 14, 2001, Mr. Robert seemed to acknowledge that plaintiff was a national government employee.
Despite the effort to terminate him, plaintiff attempted to continue in his position. Apparently not fully sure of the ground upon which it had embarked, Chuuk State has continued to pay Plaintiff his nationally funded bi-weekly salary, but in effect locked him out of his office, and refused to permit him to fulfill the requirements of his position in any manner. Defendant Stephen Lino, designated as "Acting" WIA Coordinator by Governor Walter, wrote to Plaintiff on April 3, 2003, instructing him in no uncertain terms "to distance yourself from WIA office immediately until your status is clear . . . ."
At no time was Plaintiff afforded any of the protections or procedures available to him pursuant to the Chuuk State Public Service Act. Failure to follow the procedures required in the Act for termination of government employees led to a series of letters from the Secretary of the FSM Department of Health, Education and Social Affairs to the then Director of Treasury, Nakama Sana, insisting that proper procedures be followed, and until such time as plaintiff was afforded the protections of the Act, that there be no interference by Chuuk State with plaintiff's performance of his duties.
The problem did not resolve itself, and this action was filed on August 11, 2003. Plaintiff seeks to have the "policy" of Governor Walter once again declared unconstitutional, and seeks to have his position restored to him without further interference from the Executive or Legislative branches of the Chuuk State government. Plaintiff seeks additional relief, including damages and punitive damages.
While the parties appear to have ultimately agreed that this Court has jurisdiction over this case, the Court wishes to address the initial claim of defendants that the Court lacked jurisdiction because the plaintiff had failed to exhaust his administrative remedies through the procedures provided in the Public Service Act.4
The defendants conceded, in briefing the issue of jurisdiction, that the procedures in place for the benefit of workers were ignored by the Director of Personnel and the Governor, and that the plaintiff was not afforded his due process rights to notice and an opportunity to be heard before his
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termination.5 Despite admitting that the Director of Personnel and the Governor wilfully violated their duties under the Public Service Act, defendants argued that this Court does not have jurisdiction over this case, because plaintiff had not exhausted his remedies under the Public Service Act.
While under normal circumstances exhaustion of administrative remedies is a pre-requisite to bringing an action in court challenging the constitutionality of certain personnel actions, Suldan v. FSM (I), 1 FSM Intrm. 201 (Pon. 1982), an exception to this general rule exists. Where exhaustion of administrative remedies is rendered futile, due to the bad faith, improper actions or predetermination of the administrative body itself, exhaustion of the administrative process is not required, and redress may be immediately sought in the courts. See, e.g., City Bank Farmers Trust Co. v. Schnader, 291 U.S. 24, 54 S. Ct. 259, 78 L. Ed. 628 (1933).
Here, plaintiff was terminated by the Director of Personnel, the highest government official charged with enforcement of the Public Service Act and the Public Service rules and regulations. It is not unreasonable to conclude that any effort by plaintiff to obtain relief through the administrative process, especially given this Court's prior ruling in Lokopwe v. Walter, would be a prototypical exercise in futility. It is clear to the Court that any attempt by plaintiff to obtain relief through the Public Service Act would have been futile, and that this Court has jurisdiction to hear the plaintiff's claims.
III. The Policy Is Still Unconstitutional
The Legislative effort to compel government employees to resign as a condition of running for a seat in the Chuuk State Legislature was enacted in 1996. In enacting the Election Law of 1996,6 the Legislature included section 33, which provided:
No person shall sit in the Senate or House of Representatives nor be eligible to be a candidate for election to the Senate or House of Representatives who holds an office, position or appointment anywhere whether or not it is an independent office within the Chuuk State Government, National Government, or any other government.
A year or so later, the Legislature enacted Chk. S.L. No. 4-98-41, which amended the above-quoted paragraph to read as follows:
No person shall sit in the Senate or House of Representatives who holds an office, position or appointment anywhere whether or not it is an independent office within the Chuuk State Government, National Government, or any other government. A person holding any such office must first resign therefrom before filing his candidacy for the Senate or House of Representatives. This ineligibility to be a candidate for election shall not extend to the Governor, Lt. Governor or incumbents of the Senate and House of Representatives.
Chk. S.L. No. 3-95-26, § 33, as amended, was declared unconstitutional in Olap v. Chuuk State
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Election Commission, 9 FSM Intrm. 531 (Chk. S. Ct. Tr. 2000). It was (and remains) unconstitutional because section 33 added requirements for candidacy for the Chuuk State Legislature which were not included in the candidacy requirements of the Chuuk State constitution.7 Olap, 9 FSM Intrm. at 533-34.
Following the decision in Olap, Governor Dr. Ansito Walter issued an "executive order" imposing the same requirements contained in the now discredited section 33 of Chk. S.L. No.3-95-26 on any candidate for public office, extending the policy to candidates for Governor or Lieutenant Governor in addition to the candidates for the Chuuk State Legislature.
No fewer than four (4) employees of the Chuuk state government8 sought to run for the Chuuk State Legislature in the general election of March, 2001. None of the four agreed to resign from their government employment. All were summarily terminated. Suing Governor Walter and others in his administration, the four plaintiffs in Lokopwe obtained a ruling that the "policy," or "executive order," was as unconstitutional as was the legislative effort to add qualifications for candidates to public office by statute. This Court in Lokopwe held:
It is without question that executive orders must meet constitutional standards the same as acts of legislative bodies. See 77 Am. Jur. 2d United States § 47 (1975) and 16A Am. Jur. 2d Constitutional Law §§ 818-822 (1979). Specifically, "it has been held that executive officers may not . . . prescribe the qualifications of persons seeking a place on a ballot as a candidate." 16 C.J.S. Constitutional Law § 169, at 855 & n.61 (1956) (citing State v. Circuit Court, 190 N.W. 563, 178 Wis. 468).
Lokopwe, 10 FSM Intrm. at 306.
This Court also dismissed the contention of Governor Walter that he could dismiss the plaintiffs in Lokopwe because they were exempt employees, a situation which also arises in the instant case. This Court held: "Therefore, `The dismissal of non-policy making employees from public employment solely on the ground of political affiliation is not permissible, as a subordination of First Amendment activity . . . .' 67 C.J.S. Officers § 126, at 497 (1978). See also 63A Am. Jur. 2d Public Officers and Employees § 223 (1984)." Lokopwe, 10 FSM Intrm. at 306.
Thus, it is irrelevant here, as it was in Lokopwe, that plaintiff may be an exempt employee. It is equally irrelevant whether plaintiff is considered a national government employee or a state government employee. See, e.g., Burns v. Elrod, 509 F.2d 1133 (7th Cir.1975), aff'd, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1975).
This Court is called upon in the instant case to repeat itself, and to once again attempt to make clear to this Governor, and to all of those who may hold that honored position in the future, that neither the Legislature, nor the Governor, may add qualifications for public office beyond those qualifications provided in the Chuuk state constitution. It matters not whether the employee in question is an "exempt" employee, or one covered by the Public Service Act. All employees of the government, with
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the express exception of the "principal officers and advisors" of the Governor,9 are protected in their political activities from interference by the Governor with their employment. Termination resulting from the decision of any employee of the government (other than a "principal officer" or "advisor") to run for public office violates that employee's free speech and association rights as guaranteed by Article III, § 1 of the Chuuk state constitution, as well as depriving said employee of a property interest (his right to continued employment) without due process of law in violation of Article III, § 2 of the constitution. See Suldan v. FSM (II), 1 FSM Intrm. 339, 351-52 (Pon. 1983).
In addition to complete restoration of his job, including full access to his office and control over the operations of the Chuuk State Workforce Investment Act programs, plaintiff seeks monetary damages for infliction of mental distress, and punitive damages. Plaintiff also seeks a declaration that "the Attorney General has failed his lawful duty to advice [sic] the Governor as the Chief Legal Advisor." Finally plaintiff seeks attorneys fees and costs incurred in bringing this action.
Plaintiff failed to introduce any evidence of monetary loss resulting from the actions of the defendants. While plaintiff no doubt suffered some distress as a result of the unlawful actions taken against him, he did continue, and still does continue, to receive his full salary and benefits. He may have suffered some embarrassment at his dilemma, but he failed to introduce any evidence of such extreme mental anguish and distress that he was required to seek medical assistance as a result.
A claim for negligent infliction of emotional distress cannot be sustained without evidence of actual physical illness resulting from the mental and emotional distress. See Eram v. Masaichy, 7 FSM Intrm. 223, 227 (Chk. S. Ct. Tr. 1995); Pau v. Kansou, 8 FSM Intrm. 524, 526 (Chk. 1998). Since plaintiff failed to provide evidence of actual physical illness resulting from the actions of the defendants, he cannot obtain any monetary recovery on this claim.
Plaintiff is also barred from recovering punitive damages from defendants. First, punitive damages may not be recovered from Chuuk State as a matter of law. Kaminaga v. Chuuk, 7 FSM Intrm. 272, 274 (Chk. S. Ct. Tr. 1995). Second, while exceptions exist, the general rule is that punitive damages may not be awarded absent an award of monetary damages. 22 Am. Jur. 2d Damages, § 743, at 797-98 (1988). Finally, in order to obtain an award of punitive damages against any of the government defendants, plaintiff must establish that the defendant acted with actual malice or deliberate violence. Davis v. Kutta, 7 FSM Intrm. 536, 546 (Chk. 1996). Plaintiff has not met his burden of showing that any of the individual defendants so acted.
While it may be that Governor Walter should have known of this Court's decision in Lokopwe, and that his acting contrary to the express holding of that case establishes that he acted with actual malice toward this defendant, plaintiff has not sustained his burden of demonstrating that the Governor's actions were intentional, wilful, and malicious, rather than merely negligent. Punitive damages may not be awarded for ordinary negligence. Fabian v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 63, 67 (Chk. 1997).
The continued failure of members of the executive branch to follow the prior decisions of this Court, however, is a great cause for concern. The Attorney General must ensure, somehow, that this situation does not arise in the future. Continued disobedience of the judgments and orders of this Court, or of any decision of any justice of the Chuuk State Supreme Court, may be grounds for a
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finding, in the future, that the disobedience of the Court's orders and decisions is wilful, deliberate, and intended to cause harm to the victim. Punitive damages may be recoverable in the future against any officer or employee of the government who is found to have wilfully violated the orders and judgments of this Court.
It is clear to this Court that the Office of the Attorney General has, to paraphrase the words of the complaint, failed its lawful duty to properly advise the Governor. The declaration requested by plaintiff, however, would do no good, and the Court will not entertain the request to make such a declaration.
Plaintiff is entitled, however, to a permanent injunction, against the Governor, the Director of Personnel, the Director of Budget, and any designee acting on their behalf or in their stead, permanently enjoining them from interfering in any way or manner with plaintiff's lawful exercise of all of the duties, obligations and responsibilities of his office as Director and Administrator of the Chuuk State Workforce Investment Act programs.
Now therefore, good cause appearing,
Defendants Ansito Walter, in his capacity as Governor of Chuuk State, and any successor to that office; Bernes Reslap, in his capacity as Director of Personnel, and any successor to that office; Evelyn Paul, in her capacity as Acting Director of Treasury, and any successor to that office; and each and every officer and employee of the executive branch of Chuuk State, including without limitation defendant Stephen Lino, and each of you:
You and each of you are hereby permanently enjoined from issuing any executive order, policy directive or other order of any form requiring that any employee of the State of Chuuk or the Federated States of Micronesia resign their employment as a condition of running for political office in the State of Chuuk or in the Federated States of Micronesia, under threat of contempt of court.
You and each of you are hereby permanently enjoined from terminating the employment of any Chuuk State or FSM government employee who desires to run for public office in Chuuk or in the FSM, on the grounds that any such employee must resign his position as a condition of running for public office.
You and Each of You are hereby permanently enjoined from harassing, intimidating, replacing, substituting for, usurping or interfering in any way, manner or form with plaintiff Rockhudson Tomy in the exercise of his duties and responsibilities and obligations of his position as Administrator and Director of Chuuk State WIA.
You and each of you are hereby permanently enjoined from terminating or threatening to terminate, or withholding or threatening to withhold the salary of, plaintiff Rockhudson Tomy.
This Court shall retain jurisdiction over this cause for the purpose of ensuring compliance with the terms of this injunction, and will consider finding any party who violates this injunction to have acted in contempt of this Court's orders and judgments.
The Attorney General of Chuuk State, or any individual currently acting as Attorney General of Chuuk State, shall certify to the Court, by affidavit under penalty of perjury, not later than thirty (30) days from the date of this Memorandum Decision, that he has personally discussed this decision with Governor Ansito Walter, and that said Governor Walter understands the holding of this Court, and the breadth and scope of the injunctive relief granted herein.
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Judgment shall issue accordingly.
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1. "Re-issued" would be a better description. See Lokopwe v. Walter, 10 FSM Intrm. 303 (Chk. S. Ct. Tr. 2001).
2. With the notable exception of incumbent members of the Chuuk State Legislature. See infra.
3. Chk. Const. art. VI, § 2(b).
4. Truk S.L. No. 3-43.
5. Defs.’ Brief at 3-5 (filed Sept. 16, 2003).
6. Chk. S.L. No. 3-95-26, passed by both houses of the Chuuk State Legislature on September 26, 1996, and signed (possibly with a wrong date) by then Governor Marcellino Umwech on September 27, 1997.
7. Chk. Const. art. VII, § 7(a), (b).
8. Matheus Lokopwe, Kennedy Remit, Tracy Meter and Walter Tim were all plaintiffs in Lokopwe v. Walter, 10 FSM Intrm. 303 (Chk. S. Ct. Tr. 2001). There may have been others who resigned rather than being summarily terminated.
9. Chk. Const. art. VI, § 2(b). Principal officers and advisors serve at the pleasure of the Governor.