FSM SUPREME COURT TRIAL DIVISION

Cite as Esa v. Elimo, 14 FSM Intrm. 216 (Chk. 2006)

[14 FSM Intrm. 216]

KISAUO ESA, as Mayor of Tolensom Municipal)

Government, LORENSO FARAWEY, as Assistant

Mayor of Tolensom Municipal Government,

Plaintiffs,

vs.

LT. GOVERNOR JOHNSON ELIMO and THE

STATE OF CHUUK, AMANTO MARSOLO,

MAKKASA KAREN, CHUUK STATE ELECTION

COMMISSION, and the INTERIM GOVERNMENT

OF TOLENSOM MUNICIPALITY, acting ultra vires,

Defendants.

CIVIL ACTION NO. 2005-1027

ORDER DENYING MOTIONS TO DISMISS

Dennis K. Yamase

Associate Justice

Decided: May 9, 2006

APPEARANCES:

For the Plaintiffs:   Andrea Hillyer, Esq.

                                P.O. Drawer D

                                Kolonia, Pohnpei   FM   96941

For the Defendants:   Johnny Meippen, Esq.

                                     P.O. Box 705

                                     Weno, Chuuk   FM   96942

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HEADNOTES

Civil Procedure ) Dismissal

    In reviewing a motion to dismiss for failure to state a claim, a court must assume that the facts alleged in the complaint are true and view them in a light most favorable to the plaintiff, and then dismiss the complaint only if it appears certain that no relief could be granted under any facts which could be proven in support of the complaint. Esa v. Elimo, 14 FSM Intrm. 216, 218 (Chk. 2006).

Constitutional Law ) Due Process; Public Officers and Employees

    A public officer is not denied due process of law by the abolition of his office before his term expires or by his removal or suspension according to law. Esa v. Elimo, 14 FSM Intrm. 216, 218 (Chk. 2006).

[14 FSM Intrm. 217]

Civil Procedure ) Dismissal; Jurisdiction ) Arising under National Law

    When, accepting the plaintiffs allegations as true, which the court must on a Rule 12(b)(6) motion to dismiss, the plaintiffs state a claim that their civil rights were violated by an illegal act under the color of law, their case will not be dismissed. A determination of whether a case arises under the national constitution or national law is based on the plaintiff’s statement of his case in his complaint, and, although a state court may exercise jurisdiction over such cases, a plaintiff has the constitutional right to bring such claims in the national court. Esa v. Elimo, 14 FSM Intrm. 216, 219 (Chk. 2006).

Civil Procedure ) Dismissal; Elections

    Whether the Chuuk State Supreme Court trial division lacked jurisdiction to consider the municipal election contest claims that the defendants brought there is irrelevant to a motion to dismiss a case in the FSM Supreme Court that relies on that state court decision because if that court lacked jurisdiction, it is now too late for the defendants to contest the municipal election in any other forum and the municipal election commission’s decision will stand as a basis upon which the plaintiffs’ complaint can state a claim for which relief may be granted and if that court had jurisdiction, then that court’s final (and unappealed) judgment will stand as the basis on which the plaintiffs’ complaint can state a claim for which relief can be granted. Esa v. Elimo, 14 FSM Intrm. 216, 219 (Chk. 2006).

Appellate Review ) Notice of Appeal

    A litigant in the Chuuk State Supreme Court trial division has thirty days after a judgment is entered in which to file a notice of appeal. Failing that, they have another thirty days in which to seek an enlargement of time in which to file a notice of appeal if they can show good cause or excusable neglect for the failure to file earlier. Esa v. Elimo, 14 FSM Intrm. 216, 219 (Chk. 2006).

Elections

    Assuming an allegation that the litigants were denied due process by the Chuuk State Supreme Court trial division to be true, does not assist their argument because they had a clear avenue to appeal that judgment and did not. When no attempt was made to appeal a decision that the candidates considered in error and a violation of their due process rights, the defendants were not vigilant in asserting their rights in seeking appellate review. An aggrieved candidate must be vigilant in asserting his rights to contest an election result. Esa v. Elimo, 14 FSM Intrm. 216, 219-20 (Chk. 2006).

Federalism ) Abstention and Certification

    That unsettled state law issues are involved in a case about the Lt. Governor’s proclamation concerning a municipal election is insufficient grounds to dismiss the case, especially when a significant body of state law has already developed around the Governor’s powers over municipal governments. Esa v. Elimo, 14 FSM Intrm. 216, 220 (Chk. 2006).

Jurisdiction ) Pendent

    The FSM Supreme Court may exercise pendent jurisdiction over a state law cause of action when it arises from the same nucleus of operative fact and is such that it would be expected to be tried in the same judicial proceeding as the plaintiff’s national civil rights claims. Thus, when the issue of a proclamation’s validity arises from the same nucleus of operative fact as the plaintiffs’ national civil rights claim, the court may exercise jurisdiction. Esa v. Elimo, 14 FSM Intrm. 216, 220 (Chk. 2006).

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[14 FSM Intrm. 218]

COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

    This comes before the court on the defendants’ Motion to Dismiss for Lack of Jurisdiction, filed October 4, 2005; the defendants’ Motion to Dismiss, or in the Alternative, for a De Novo Hearing, Points and Authorities, filed November 15, 2005; and on the plaintiffs’ Opposition to Motion to Dismiss and Opposition to De Novo Proceeding, filed November 22, 2005.

I.   The Motions to Dismiss

    The defendants contend that this case must be dismissed for failure to state a claim because, in their view, the Mayoralty of Tolensom (and the Assistant Mayoralty of Tolensom) are public offices and, as such, no person can expect to have any "property" rights in them within the purview of the FSM Constitution and that, if the court were to deem the political rights asserted by the plaintiffs to be entitled to constitutional protection, then the court must determine whether the plaintiffs are entitled to the political offices they claim.

    The defendants further urge that this court cannot rely on any Chuuk State Supreme Court trial division judgment concerning the September 28, 2004 Tolensom municipal election since the state court trial division had no jurisdiction over that case because, in their view, that election contest should have been heard by the Chuuk State Election Commission and then, if judicial review was sought, filed in the Chuuk State Supreme Court appellate division. The defendants contend in the alternative that, if the state court trial division did have jurisdiction, its judgment should not be given preclusive, or res judicata, effect because they were denied due process in that court.

    The defendants also assert that, since this case involves the validity of a proclamation by the Lieutenant Governor, acting as Governor, either the Chuuk State Supreme Court should be given the opportunity to decide the issue first so that it can formulate a coherent body of state law dealing with the issue or because, in their view, the Chuuk State Supreme Court has original and exclusive jurisdiction since this issue clearly arises under the Chuuk Constitution.

    In reviewing a motion to dismiss for failure to state a claim, a court must assume that the facts alleged in the complaint are true and view them in a light most favorable to the plaintiff, and then dismiss the complaint only if it appears certain that no relief could be granted under any facts which could be proven in support of the complaint. Dorval Tankship Pty, Ltd. v. Department of Finance, 8 FSM Intrm. 111, 114 (Chk. 1997); see also Moses v. M.V. Sea Chase, 10 FSM Intrm. 45, 52 (Chk. 2001); E.M. Chen & Assocs. (FSM), Inc. v. Pohnpei Port Auth., 9 FSM Intrm. 551, 556 (Pon. 2000); Pau v. Kansou, 8 FSM Intrm. 524, 526 (Chk. 1998).

II.   Failure to State a Claim

    The defendants, relying on 63A Am. Jur. 2d Public Officers and Employees § 8, at 672 (1984), contend that a public office is not property in the sense that an officer is not denied due process of law by the abolition of his office before his term expires or by his removal or suspension according to law. This is a correct statement of law.

    The defendants further contend that the plaintiffs were removed from office according to law by the Lt. Governor’s proclamation. The plaintiffs’ complaint alleges that the removal was not according to law ) that the Lt. Governor had no such lawful power to remove them ) and that therefore their civil rights to due process, as protected by the national constitution and enforceable through 11

[14 FSM Intrm. 219]

F.S.M.C. 701(3), were violated, making this a case that arises under the national constitution and national law.

    Accepting the plaintiffs allegations as true, which the court must on a Rule 12(b)(6) motion to dismiss, the plaintiffs state a claim that their civil rights were violated by an illegal act under the color of law. A determination of whether a case arises under the national constitution or national law is based on the plaintiff’s statement of his case in his complaint, Enlet v. Bruton, 10 FSM Intrm. 36, 40 (Chk. 2001); FSM Dev. Bank v. Ifraim, 10 FSM Intrm. 1, 4 (Chk. 2001), and, although a state court may exercise jurisdiction over such cases, a plaintiff has the constitutional right to bring such claims in the national court, Naoro v. Walter, 11 FSM Intrm. 619, 621 (Chk. 2003); see also Carlos Etscheit Soap Co. v. Gilmete, 11 FSM Intrm. 94, 100 (Pon. 2002); In re Estate of Hartman, 4 FSM Intrm. 386, 387 (Chk. 1989). The plaintiffs’ complaint therefore states a claim arising under national law over which this court may exercise jurisdiction.

III.   State Court’s Alleged Lack of Jurisdiction

    The defendants also contend that the state court trial division lacked jurisdiction over a Tolensom municipal election contest and therefore this court cannot rely on any Chuuk State Supreme Court trial division judgment concerning the September 28, 2004 Tolensom municipal election. For this proposition the defendants rely on Chuuk State Election Law No. 3-95-26 as interpreted by Mathew v. Silander, 8 FSM Intrm. 560, 564 (Chk. S. Ct. Tr. 1998), which held that the trial division had no jurisdiction in a municipal election contest since all provisions of Chuuk State Law No. 3-95-26 applied "to all elections in the State of Chuuk, including municipal or national election whenever applicable unless otherwise specifically provided," and that Chuuk Election Commission decisions "may be appealed to the Appellate Division of the Chuuk State Supreme Court."

    This is an odd assertion. The defendants themselves chose the Chuuk State Supreme Court as the forum in which to pursue their election contest. They were the plaintiffs in the Chuuk State Supreme Court trial division and they actively pursued their remedies there.

    Whether the Chuuk State Supreme Court trial division lacked jurisdiction to consider the Tolensom municipal election contest claims that the defendants brought there is irrelevant to this motion to dismiss. If that court lacked jurisdiction, it is now too late for the defendants to contest a September 28, 2004 municipal election in any other forum and the Tolensom Election Commission’s decision will stand as a basis upon which the plaintiffs’ complaint can state a claim for which relief may be granted. If that court had jurisdiction, then that court’s final (and unappealed) judgment will stand as the basis on which the plaintiffs’ complaint can state a claim for which relief can be granted.

IV.   State Court Due Process

    The defendants also contend that even if the state court had jurisdiction to issue the judgment it did concerning the September, 2004 Tolensom municipal election, that judgment is void because the defendants were denied due process in that the state court trial division never held a hearing on their later claims regarding two particular ballot boxes.

    Assuming that allegation to be true does not assist the defendants’ argument. If they felt they were denied due process by the Chuuk State Supreme Court trial division, they had a clear avenue to appeal that judgment, which was entered on March 10, 2005. They had thirty days after that in which to file a notice of appeal. Chk. App. R. 4(a)(1). They did not. Failing that, they had another thirty days in which to seek an enlargement of time in which to file a notice of appeal if they could show good cause or excusable neglect for the failure to file earlier. Chk. App. R. 4(a)(5). They did not take that

[14 FSM Intrm. 220]

step either. No attempt was made to appeal a decision they considered in error and a violation of their due process rights. The defendants were not vigilant in asserting their rights in seeking appellate review. An aggrieved candidate must be vigilant in asserting his rights to contest an election result. Wiliander v. Mallarme, 7 FSM Intrm. 152, 157 (App. 1995).

    Thus the alleged lack of due process in the Chuuk State Supreme Court trial division cannot be a ground upon which to grant the defendants’ motion to dismiss. Nor is there ground for a de novo review.

V.  Lieutenant Governor’s Proclamation

    The defendants assert that the Chuuk State Supreme Court must be given the opportunity to decide the issue of the Lt. Governor’s proclamation’s validity so that the state court can formulate a coherent body of state law dealing with the issue and because the Chuuk State Supreme Court has original and exclusive jurisdiction over this issue since it clearly arises under the Chuuk Constitution.

    A significant body of state law has already developed around the Governor’s powers over municipal governments. The Chuuk State Supreme Court has ruled on several occasions concerning the Governor’s proclamation or executive order powers in general or concerning municipal offices, see, e.g., In re Oneisomw Election, 11 FSM Intrm. 89, 92 (Chk. S. Ct. Tr. 2002) (Chuuk Constitution provides no authority to the Governor to appoint any person to any municipal office; with no state law authorizing the Governor to so act, he is without power to affect municipal political offices in any manner and cannot appoint an acting mayor); Udot Municipality v. Chuuk, 9 FSM Intrm. 586, 588 (Chk. S. Ct. Tr. 2000) (Governor cannot, by Executive Order, require municipalities to relinquish any control over municipal employees), or executive orders or emergency proclamations in general, In re Paul, 11 FSM Intrm. 273, 279 (Chk. S. Ct. Tr. 2002) (Governor’s declaration of emergency cannot suspend a citizen’s continued right to a writ of habeas corpus, except in named cases of war, rebellion, insurrection or invasion); Lokopwe v. Walter, 10 FSM Intrm. 303, 306 (Chk. S. Ct. Tr. 2001) (executive orders must meet constitutional standards the same as acts of legislative bodies), as has this court applying state law, Buruta v. Walter, 12 FSM Intrm. 289, 295 (Chk. 2004) (Governor’s proclamation that continues municipal officials in office indefinitely, violates the people’s rights to substantive due process). This is not a ground to dismiss the case. Furthermore, that unsettled state law issues are involved is insufficient grounds to dismiss a case. Nanpei v. Kihara, 7 FSM Intrm. 319, 322 (App. 1995); Edwards v. Pohnpei, 3 FSM Intrm. 350, 360 (Pon. 1988).

    The defendants also assert that the state court has original and exclusive jurisdiction over the issue’s of the validity of the Lt. Governor’s proclamation. The defendants concede that the plaintiffs’ civil rights claim is connected to their entitlement to hold the municipal offices they claim. The FSM Supreme Court may exercise pendent jurisdiction over a state law cause of action when it arises from the same nucleus of operative fact and is such that it would be expected to be tried in the same judicial proceeding as the plaintiff’s national civil rights claims. Herman v. Municipality of Patta, 12 FSM Intrm. 130, 136 (Chk. 2003); Estate of Mori v. Chuuk, 11 FSM Intrm. 535, 537 (Chk. 2003); Foods Pacific, Ltd. v. H.J. Heinz Co. Australia, 10 FSM Intrm. 200, 205 (Pon. 2001); FSM Dev. Bank v. Ifraim, 10 FSM Intrm. 1, 5 (Chk. 2001); Ponape Constr. Co. v. Pohnpei, 6 FSM Intrm. 114, 116 (Pon. 1993); Ponape Chamber of Commerce v. Nett, 1 FSM Intrm. 389, 396 (Pon. 1984). In this case, the issue of the proclamation’s validity arises from the same nucleus of operative fact as the plaintiffs’ claim.

    The issue of the proclamation’s validity is the subject of the plaintiff’s partial summary judgment motion, not the defendants’ motions to dismiss, so that issue will not be addressed in deciding the motions to dismiss.

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VI.   Conclusion

Accordingly, the motions to dismiss are denied.

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