FSM SUPREME COURT TRIAL DIVISION
Cite as Buruta v. Walter
12 FSM Intrm. 289 (Chk. 2004)

[12 FSM Intrm. 289]

JOHN BURUTA, for himself as the MAYOR-ELECT
OF ROMALUM MUNICIPALITY, DAVID RAYMOND,
as the ROMALUM ELECTION COMMISSIONER
and as a voter of ROMALUM MUNICIPALITY,
Plaintiffs,
 
vs.
 
ANSITO WALTER, in his capacity as Governor of
Chuuk, AMBROSE PONUN, in his capacity as
designated Mayor of ROMALUM MUNICIPALITY, and
TOM HEBWER, as Designated Election Commissioner
of ROMALUM MUNICIPALITY,
Defendants.
 
CIVIL ACTION NO. 2003-1022
 
ORDER GRANTING SUMMARY JUDGMENT IN PART
 
Dennis K. Yamase
Associate Justice
 
Hearing: October 22, 2003
Decided: January 10, 2004

APPEARANCES:

For the Plaintiffs:               Wesley Simina, Esq.
                                    P.O. Box 94
                                   Weno, Chuuk FM 96942

[12 FSM Intrm. 290]

For the Defendants:       Johnny Meippen, Esq.
                                  Assistant Attorney General
                                         Office of the Chuuk Attorney General
                                         P.O. Box 189
                                         Weno, Chuuk FM 96942

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HEADNOTES

Constitutional Law ) Chuuk ) Municipalities
     The Chuuk Constitution provides for each existing municipality to adopt a municipal constitution within three years of the Chuuk Constitutionís effective date and for the state legislature to enact enabling legislation to carry that out. Buruta v. Walter, 12 FSM Intrm. 289, 292 (Chk. 2004).
 
Constitutional Law ) Chuuk ) Municipalities
    The Chuuk Constitution provides that a municipality existing on the effective date of the Chuuk Constitution will continue to exercise its powers and functions under existing law, pending adoption of its constitution. Buruta v. Walter, 12 FSM Intrm. 289, 292 (Chk. 2004).
 
Civil Procedure ) Summary Judgment
    A court, viewing the facts presented and inferences made in the light most favorable to the nonmoving party, must deny a motion for summary judgment unless it finds there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The burden of showing a lack of triable issues of fact belongs to the moving party, and when the moving party has made out a prima facie case that there are no triable issues of fact and that it is entitled to summary judgment as a matter of law, the nonmoving party then has the burden to show by competent evidence that there is a triable material issue of fact. Buruta v. Walter, 12 FSM Intrm. 289, 293 (Chk. 2004).
 
Constitutional Law ) Chuuk ) Municipalities
     There is no provision in Chuuk law to classify a municipality under the Chuuk Constitution as a "quasi-municipality." Buruta v. Walter, 12 FSM Intrm. 289, 293 (Chk. 2004).
 
Statutes ) Construction
    The legislatureís intention as to whether a statutory provision is mandatory is determined from the language used. Generally, a provision is directory and not mandatory if it requires that certain actions be completed, but does not prescribe the result which should follow if those actions are not completed. Buruta v. Walter, 12 FSM Intrm. 289, 293 (Chk. 2004).
 
Constitutional Law ) Chuuk ) Interpretation
     A constitutional provision that requires things to be done without prescribing the result that should follow if those things are not done, is directory in character, not mandatory. Buruta v. Walter, 12 FSM Intrm. 289, 293 (Chk. 2004).
 
Constitutional Law ) Chuuk ) Municipalities
     Both the constitutional and statutory provisions providing for Chuuk municipalities to adopt their own constitutions within three years of the state constitutionís effective date are directory, not mandatory because neither prescribes what result should follow if a municipality fails to adopt a constitution within the allotted time and since the Chuuk Constitution provides that a municipality will continue to exercise its powers and functions under existing law, pending its adoption of a constitution. Buruta v. Walter, 12 FSM Intrm. 289, 294 (Chk. 2004).

[12 FSM Intrm. 291]

Constitutional Law ) Chuuk ) Municipalities; Separation of Powers ) Chuuk ) Executive Powers
     Neither the constitutional nor the statutory provision directs the Governor to implement the provisions that each municipality adopt its own constitution. The direction is aimed at the others) the municipalities and the Legislature. Buruta v. Walter, 12 FSM Intrm. 289, 294 (Chk. 2004).
 
Separation of Powers ) Chuuk ) Executive Powers
      No authority, constitutional or statutory, grants the Governor the power to appoint (or to remove) municipal officials. Executive orders must meet constitutional standards, the same as acts of legislative bodies. Buruta v. Walter, 12 FSM Intrm. 289, 294 (Chk. 2004).
 
Separation of Powers ) Chuuk ) Executive Powers
     The Chuuk Governorís constitutional power to declare an emergency is discretionary. Whether an abuse of discretion exists is determined by the arbitrary and capricious standard. The validity of an action taken following the declaration of emergency is determined by whether it was taken in good faith and in the honest belief of its necessity. Buruta v. Walter, 12 FSM Intrm. 289, 294 (Chk. 2004).
 
Separation of Powers ) Chuuk ) Executive Powers
     A Governorís proclamation that finds that it was the intentional failure of the incumbent mayor and council that caused the lack of a municipal constitution and funding for the 2003 municipal election, but which continues those officials in office indefinitely until a constitution is adopted and an election is held but with no incentive to do either of those things and with every incentive not to, can only be termed arbitrary and capricious. Since the proclamation is arbitrary and capricious and exercises powers for which the Governor has no apparent authority, it is void. Buruta v. Walter, 12 FSM Intrm. 289, 294 (Chk. 2004).
 
Constitutional Law ) Due Process; Constitutional Law ) Equal Protection; Separation of Powers ) Chuuk ) Executive Powers
     A Governorís proclamation that continues municipal officials in office indefinitely, violates the peopleís rights to substantive due process, in that they have no say in their municipal government since all of its officials are now appointed by and now hold office due to the Governor; and to equal protection of the laws, in that the municipal citizens are treated differently based on their ancestry (they and their ancestors are from Romalum) from citizens of other Chuuk municipalities in not being allowed an elected municipal government. Buruta v. Walter, 12 FSM Intrm. 289, 295 (Chk. 2004).
 
Civil Procedure ) Motions; Elections
     A new claim that constitutionally only the state election commission can conduct municipal elections in Chuuk will not be considered unless the municipal defendants are represented separately from the state when past practice in Chuuk has been that municipal officials have run municipal elections, when this new claim is only hypothetical as the state election commission, a non-party, has not asserted that it intends to and will conduct or that it has the sole authority to conduct municipal elections in the future, and when the defendant Governor and the municipal defendants are represented by the same counsel, a state employee, but may likely have differing views on the point. Even then, the court would desire a separate appearance by the state election commission before considering the issue. Buruta v. Walter, 12 FSM Intrm. 289, 295 (Chk. 2004).
 
Civil Procedure ) Summary Judgment; Elections
     When nothing in the record indicates under what tenure a person held the municipal election commissionerís office, the court cannot conclude as a matter of law that he held that position when he conducted an election on August 1, 2003 and that his purported removal from office was unlawful. Summary judgment that the August 1st election was valid will therefore denied. Buruta v. Walter, 12 FSM Intrm. 289, 295 (Chk. 2004).

[12 FSM Intrm. 292]

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COURTíS OPINION

DENNIS YAMASE, Associate Justice:

     This came before the court on October 22, 2003 for hearing on the plaintiffís motion for summary judgment. This case arises in Romalum. The essential facts are undisputed.

I.

     When the Chuuk Constitution was adopted, Romalum was an existing municipality. Chk. Const. art. XIII, ß 2. The Chuuk Constitution provides for each municipality to adopt a municipal constitution and for the state legislature to enact enabling legislation to carry that out. Chk. Const. art. XIII, ß 5. The Chuuk Constitution also provided that all existing municipalities were to adopt a constitution within three years of the Chuuk Constitutionís effective date. Chk. Const. art. XV, ß 11(d). The Chuuk Legislature enacted a law to enable the municipalities to hold constitutional conventions to draft constitutions that were to be ratified and take effect by October 1, 1992. Chk. S.L. No. 191-19, ß 2(1). That act, which became law on May 23, 1991, appropriated $18,000 for Romalum to hold a constitutional convention, Chk. S.L. No. 191-19, ß 5, and also provided that this sum was not to be disbursed for any other purpose, id. ß 6. It is unknown if these funds are still available. The Municipality of Romalum has not adopted a constitution.

     The Chuuk Constitution further provides that "[a] municipality existing on the effective date of the Chuuk Constitution shall continue to exercise its powers and functions under existing law, pending adoption of its constitution." Chk. Const. art. XIII, ß 6. Under existing Romalum municipal law, an election for mayor and municipal councilmen was to be held on June 3, 2003 (first Tuesday in June in election year, Romalum Ord. No. 4-97, ß 3). No money was appropriated to conduct this election. Romalum municipal law also provides that a municipal election may be delayed for budget or paperwork reasons for not more than 60 days. Romalum Ord. 03-99, ß 17.

    At that time, Raymond David was the Romalum Municipal Election Commissioner and had been so for at least the previous six years and had conducted previous municipal elections. When no municipal funding was provided, David, under the opinion that the election expenses could be paid for by the candidatesí nomination fees, issued on July 1, 2003 a call for the municipal general election to be held August 1, 2003. The call was made on V6AK radio and disseminated around Romalum. One nomination petition for mayor, and two for council seats, were filed. David used the $200 in fees thus collected to print ballots and prepare other election materials.

     On July 15, 2003, which was the last day to submit nomination papers, the incumbent mayor, Ambrose Ponun, announced on the radio that David was no longer Romalum Election Commissioner, but that Tom Hebwer was and that candidates should submit their petitions to him. Whether any petitions were submitted to Hebwer is unknown.

     On July 29, 2003, Governor Ansito Walter issued a proclamation declaring that because Romalum had not adopted a municipal constitution it was a "quasi-municipality"; that the Romalum municipal government failed to discharge its duty to conduct the June 3, 2003 general election "due to the intentional failure of the municipal council to appropriate fund [sic] for it;" and that, until the municipal council appropriated funds for the adoption of a municipal constitution and the holding of a municipal general election, the incumbent mayor and all other incumbent municipal officeholders including the councilmen would continue to hold their respective offices. The proclamation expressly

[12 FSM Inrtm. 293]

relied on the Governorís constitutional duty to "faithfully execute and implement this Constitution and all state laws" for the Governorís authority to issue it. Governorís Proclamation at 1 (quoting Chk. Const. art. VI, ß 1).

     David, not having seen the Governorís proclamation, conducted the election on August 1, 2003. David certified the vote totals and that the three candidates who had submitted nomination papers and been named on the ballots were winners. No other election has been held. The officials retained in office indefinitely by the Governorís proclamation have taken no steps to either adopt a municipal constitution or to hold a municipal general election.

II.

     The plaintiffs, John Buruta (the man certified as the mayor-elect in the August 1, 2003 election) and Election Commissioner David, ask that the court grant them summary judgment and rule that the July 29th Governorís Proclamation is void as violative of the plaintiffsí and the Romalum votersí constitutional rights and violative of Romalum law; that the Governorís designation of certain persons to serve as Romalum municipal officials is also void for the same reasons; and that the August 1, 2003 election and its certified results were valid and effective.

     A court must deny a motion for summary judgment unless it finds there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The court must view the facts presented and inferences made in the light most favorable to the nonmoving party. The burden of showing a lack of triable issues of fact belongs to the moving party. Adams v. Etscheit, 6 FSM Intrm. 580, 582 (App. 1994). When the moving party has made out a prima facie case that there are no triable issues of fact and that it is entitled to summary judgment as a matter of law, the nonmoving party then has the burden to show by competent evidence that there is a triable material issue of fact. Nanpei v. Kihara, 7 FSM Intrm. 319, 325 (App. 1995).

III.

     The defendants oppose summary judgment on the ground that the Governorís proclamation does not violate any constitutional rights and that the purported August 1, 2003 election was void because all elections in Chuuk should be conducted by the state election commission and not municipal officials. The Governor contends that he was merely executing and implementing the constitutional provisions directing or mandating the adoption of municipal constitutions.

     First, under the Chuuk Constitution, Romalum is a municipality. Chk. Const. art. XIII, ß 2. There is no provision in Chuuk law to classify it as a "quasi-municipality." While the Governorís proclamation calls Romalum a "quasi-municipality," Romalum was, and remains, a Chuuk municipality.

     Second, the constitutional and statutory provisions that the Governor purports to execute and implement are not mandatory but directory. The legislatureís intention as to whether a provision is mandatory is determined from the language used. In re Failure of Justice to Resign, 7 FSM Intrm. 105, 109 (Chk. S. Ct. App. 1995). Generally, a provision is directory and not mandatory if it requires that certain actions be completed, but does not prescribe the result which should follow if those actions are not completed. Jonas v. Kosrae, 10 FSM Intrm. 453, 459 (Kos. S. Ct. Tr. 2001). This is also true of constitutional provisions ) a constitutional provision that requires things to be done "without prescribing the result that shall follow if those things are not done . . . is directory in character." Panuelo v. Pohnpei, 3 FSM Intrm. 76, 81 (Pon. S. Ct. App. 1987) (construing Pohnpei Constitution article 7 as directory since it does not prescribe the result to follow if things are not done and since it contains mere matters of direction not followed by words of positive prohibition).

[12 FSM Intrm. 294]

     Both the constitutional and statutory provisions providing for the municipalities to adopt their own constitutions within three years of the state constitutionís effective date are directory, not mandatory. Neither prescribes what result should follow if a municipality fails to adopt a constitution within the allotted time.1 The Chuuk Constitution does, however, specifically provide that a municipality will "continue to exercise its powers and functions under existing law, pending adoption of its constitution." Chk. Const. art. XIII, ß 6. Furthermore, neither the constitutional nor the statutory provision directs the Governor to implement these provisions. The direction is aimed at the others ) the municipalities and the Legislature.

     The proclamation, by its own terms, cites the Governorís authority as his constitutional obligation to faithfully execute and implement the state constitution and laws. The Governor (or the Legislature or both) may certainly try to encourage or coerce Romalumís compliance with these provisions. But the Governor may only use such power as he lawfully and constitutionally has to seek Romalumís compliance. The defendants have cited no authority, constitutional or statutory, that grants the Governor the power to appoint (or to remove) municipal officials. Executive orders must meet constitutional standards, the same as acts of legislative bodies. Lokopwe v. Walter, 10 FSM Intrm. 303, 306 (Chk. S. Ct. Tr. 2001).

     The Governor does not claim to have acted under his powers to declare states of emergency and issue appropriate decrees if required to preserve public peace, health or safety at a time of extreme emergency caused by civil disturbance, natural disaster, or immediate threat of war or insurrection. But even if he had, his proclamation would still exceed his powers. The analysis if he had made such a declaration is instructive. The Chuuk Governorís constitutional power to declare an emergency is discretionary. Whether an abuse of discretion exists is determined by the "arbitrary and capricious" standard. Aizawa v. Chuuk State Election Commír, 8 FSM Intrm. 275, 280 (Chk. S. Ct. Tr. 1998). The validity of an action taken following the declaration of emergency is determined by whether it was taken in good faith and in the honest belief of its necessity. Id.

     In the present case, the Governorís proclamation is arbitrary and capricious. The Governor finds that it was the intentional failure of the incumbent mayor and council that caused Romalumís lack of a municipal constitution and funding for the 2003 municipal election. To continue those officials in office indefinitely until a constitution is adopted and an election is held but with no incentive to do either of those things and with every incentive not to, can only be termed arbitrary and capricious. Since the proclamation is arbitrary and capricious and exercises powers for which the Governor has no apparent authority, it is void. The proclamation violated Romalum peopleís rights to substantive due process, in that they have no say in their municipal government since all of its officials are now appointed by and now hold office due to the Governor; and to equal protection of the laws, in that Romalum citizens are treated differently based on their ancestry (they and their ancestors are from Romalum) from citizens of other Chuuk municipalities in not being allowed an elected municipal government.

     The defendants, relying on Chuuk Constitution article XII, further asserted that constitutionally

[12 FSM Intrm. 295]

only the state election commission can conduct elections in Chuuk. The court only notes that past practice in Chuuk has been that municipal officials have run municipal elections. This new claim advanced by the Governor is at this point only hypothetical as the state election commission, a non-party, has not asserted that it intends to and will conduct or that it has the sole authority to conduct the Romalum (and other) municipal elections in the future. Also the defendant Governor and the municipal defendants are represented by the same counsel, a state employee, but may likely have differing views on the point. The court would not consider this argument unless the municipal defendants were separately represented. Even then, the court would desire a separate appearance by the state election commission before considering the issue.

IV.

     The plaintiffs ask that the court rule the August 1st election valid and that the certified winners hold the offices they were elected to. In order to grant summary judgment on this claim, the court must conclude that David had the authority to conduct the August 1st election. David had that authority if he was still Romalum Election Commissioner when he conducted the election on August 1, 2003. Mayor Ponun announced on July 15, 2003 that David was no longer Romalum Election Commissioner, but that Hebwer was.

     There is nothing in the record to indicate under what tenure David held this office ) whether he could be terminated at the mayorís pleasure or whether he held his office for fixed term and could only be removed for extraordinary reasons through extraordinary procedures. Without such information, the court cannot conclude as a matter of law that David held the Romalum Election Commissioner position on August 1, 2003 and that his purported removal from office was unlawful. Summary judgment that the August 1st election was valid is therefore denied.

V.

     Accordingly, the plaintiffsí summary judgment motion is granted in part and denied in part. Summary judgment is granted that the Governorís July 29, 2003 proclamation and its indefinite retention of Romalum municipal officials, mayor and councilmen, in their offices, is void. Summary judgment that the August 1, 2003 election is valid is denied for the lack of an adequate factual basis.

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Footnotes:

1.   It was reasonable for the Chuuk Constitutionís framers and the statuteís drafters to have left this provision directory. No one could be certain that all 38 municipalities could each organize a convention and that the convention would be able to complete its work in the limited time available, especially since the conventions might all need to dip into the limited pool of Chuukese legal talent for assistance. Moreover, ratification of all the municipal constitutions within the projected time frame could not be presumed. The voters might reject the first draft (and even subsequent drafts) presented to them.