FSM SUPREME COURT TRIAL DIVISION

Cite as Robert v. Simina, 14 FSM Intrm. 257 (Chk. 2006)

[14 FSN Intrm. 257]

PECKY ROBERT, SETIKAN ATEN, ANN MOSES,

WALTER TIM, and SAMARI SUDA,

Plaintiffs,

vs.

WESLEY SIMINA, in his official capacity as

Governor of Chuuk, AUGUSTIN TAKASHY, in his

official capacity as Acting Chief Division of

Personnel, WILIPINAT BISALEN, in his capacity as

Acting Director of Department of Administrative

Services, and STATE OF CHUUK,

Defendants.

CIVIL ACTION NO. 2005-1010

ORDER GRANTING PARTIAL SUMMARY JUDGMENT

Dennis K. Yamase

Associate Justice

Decided: May 31, 2006

APPEARANCES:

For the Plaintiffs:   Camillo Noket, Esq.

                                Directing Attorney

                                Micronesian Legal Services Corporation

                                P.O. Box D

                                Weno, Chuuk   FM   96942

[14 FSM Intrm. 258]

For the Defendants:   Joses Gallen, Esq.

                                     Acting Attorney General

                                     Office of the Chuuk Attorney General

                                     P.O. Box 189

                                     Weno, Chuuk   FM   96942

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HEADNOTES

Civil Procedure ) Motions

    A filing, although styled a response, was actually a motion when it asked the court for an order to strike since any application to the court for an order is a motion. Robert v. Simina, 14 FSM Intrm. 257, 259 (Chk. 2006).

Civil Procedure ) Motions

    Because failure to timely respond to a motion is deemed a consent to that motion, a motion to strike may be granted when the defendants had ten days to respond to it and did not. Robert v. Simina, 14 FSM Intrm. 257, 259 (Chk. 2006).

Civil Procedure ) Summary Judgment

    Summary judgment cannot be granted unless there is no genuine issue present as to any material fact and the movants are entitled to judgment as a matter of law. Robert v. Simina, 14 FSM Intrm. 257, 259 (Chk. 2006).

Public Officers and Employees ) Chuuk

    Under the Reorganization Act, gubernatorial nomination and senatorial advice and consent is required for principal officers or directors, deputy directors, principal advisors, and other officials in positions requiring such advice and consent as prescribed by statute. Chiefs (division heads) are not designated as officials subject to senatorial advice and consent, although the Legislature could easily have included all (or some) of them, if it so desired. Robert v. Simina, 14 FSM Intrm. 257, 260 (Chk. 2006).

Public Officers and Employees ) Chuuk

    Considering the provisions making chiefs out of former department or office heads division heads against the entire reorganization act’s background to arrive at an interpretation consistent with the act’s other provisions and with its general design, the court can only conclude that the Legislature’s intent when it reorganized the executive branch was that none of the positions designated as chiefs were principal officers or were subject to senatorial advice and consent. Robert v. Simina, 14 FSM Intrm. 257, 260 (Chk. 2006).

Statutes ) Construction

    The court’s obligation is to construe the statute to implement the legislature’s intent and the best evidence of its intent is the words used (or not used) in the statute. Robert v. Simina, 14 FSM Intrm. 257, 260 (Chk. 2006).

Public Officers and Employees ) Chuuk

    The Chuuk personnel regulations permit the hiring of person through non-competitive examinations when the positions require rare or special qualifications which did not permit competition. Robert v. Simina, 14 FSM Intrm. 257, 261 (Chk. 2006).

[14 FSM Intrm. 259]

Civil Procedure ) Summary Judgment; Public Officers and Employees ) Chuuk

    When the affidavit of the former Chief of the Division of the Personnel was conclusory and potentially self-serving affidavit since his employment situation and termination is the same as the plaintiffs’ and when it averred that the plaintiffs were hired in their public service system positions as chiefs without the usual competitive examination because they were the only persons qualified for their jobs and that their positions required rare or special qualifications which did not permit competition and when there is no evidence presented that a non-competitive examination of any of the plaintiffs was ever held, the affidavit is thus insufficient to show that there is no genuine issue of material fact that, after the reorganization statute had abolished their former positions that the plaintiffs were lawfully hired to fill the new public service positions. Robert v. Simina, 14 FSM Intrm. 257, 261 (Chk. 2006).

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COURT’S OPINION

DENNIS YAMASE, Associate Justice:

     On April 17, 2006, the plaintiffs filed and served their Motion for Summary Judgment with supporting affidavits. On May 2, 2006, the defendants filed and served their Opposition to Motion for Summary Judgment. On May 8, 2006, the plaintiffs filed and served their Response to Defendants’ Opposition to Plaintiffs’ Motion for Summary Judgment. The plaintiffs’ response asks the court to strike the defendants’ opposition because it was untimely filed (fifteen days after the summary judgment motion’s service) and no motion to enlarge time had been included.

     Although styled a response, this filing was actually a motion since it asked the court for an order to strike. An application to the court for an order is a motion. FSM Civ. R. 7(b)(1); cf. See McIlrath v. Amaraich, 11 FSM Intrm. 502, 505 & n.3 (App. 2003) ("A thing is what it is regardless of what someone chooses to call it."). As such, the defendants had ten days to respond to it. FSM Civ. R. 6(d). They did not. Failure to timely respond to a motion is deemed a consent to that motion. Id.; Enlet v. Bruton, 12 FSM Intrm. 187, 190 (Chk. 2003). The motion to strike is therefore granted. Mailo v. Bae Fa Fishing Co., 7 FSM Intrm. 83, 84 (Chk. 1995) (when no reason is given for late filing and an enlargement of time is not sought, responsive papers may be stricken from the record as untimely).

I.

     The plaintiffs move for summary judgment 1) that the state government executive branch positions from which they were discharged (as chiefs of various department divisions) are classified public service positions; 2) that they lawfully held these positions; 3) and that they were unlawfully discharged from these positions. Summary judgment cannot be granted unless there is no genuine issue present as to any material fact and the movants are entitled to judgment as a matter of law. Taulung v. Kosrae, 8 FSM Intrm. 270, 272 (App. 1998).

II.

     On October 23, 2003, Chuuk State Law No. 7-03-05 went into effect. It reorganized the state government executive branch. Before this reorganization, there were fourteen executive departments (called either a department or an office) in the state government. Afterward, there were only eight. Former departments, which had been headed by Directors, became divisions within departments, headed by Chiefs. Relevant to this case, the Office of Budget (Director Pecky Robert); the Department of Planning and Statistics (Director Samari Suda); Department of Treasury (Deputy Director Ann Moses); and the Department of Commerce and Industry (Director Walter Tim) all became divisions within the

[14 FSM Intrm. 260]

newly-created Department of Administrative Services; and the Department of Public Works (Assistant Chief Setikan Aten) became the Division of Public Works within the Department of Public Works and Transportation. Before reorganization,

the plaintiffs in this consolidated case held positions (as listed above) that required gubernatorial appointment and the Chuuk Senate’s advice and consent. After reorganization, they became chiefs of their respective divisions.

     After the installation of the current administration, each plaintiff was terminated from his or her respective position. The then Acting Chuuk Attorney General issued an opinion, dated April 28, 2005, that the positions that the plaintiffs had held had remained advice and consent positions whose occupants served at the Governor’s pleasure because, despite the executive branch reorganization, those positions remained principal officers of government.

     The plaintiffs contend that, as a matter of law, that their positions as chiefs were not principal officers of government but were classified public service positions. The Acting Attorney General’s opinion had concluded that positions other than department heads could be considered principal officers which would be subject to the advice and consent requirement.

     Before reorganization, the plaintiffs held positions as heads, or deputy heads of executive branch, cabinet-level departments or offices. They were principal officers subject to gubernatorial nomination and the Chuuk Senate’s advice and consent. Chk. S.L. No. 190-07,  § 17. After reorganization, the plaintiffs, rehired as heads of divisions, held offices that were designated by the reorganization statute, as chiefs. Chk. S.L. No. 7-03-05, § 10(a). The reorganization statute provided that gubernatorial nomination and senatorial advice and consent was required for "principal officer [sic] or director, deputy directors, principal advisors, and other officials in positions requiring such advice and consent . . . as prescribed by statute . . . ." Id. § 13. This statute, by its terms, does not designate chiefs as officials subject to senatorial advice and consent. It equates the term "director" (Department or Office head) with "principal officer." Id. Chiefs (division heads) are not included, although the Legislature could easily have included all (or some) of them, if it so desired.

     It is undisputed that other division chiefs that existed before the executive branch reorganization were not subject to senatorial advice and consent, either before or after reorganization. Considering the provisions making chiefs out of former department or office heads division heads against the entire reorganization act’s background to arrive at an interpretation consistent with the act’s other provisions and with its general design, Michelsen v. FSM, 3 FSM Intrm. 416, 422 (Pon. 1988), the court can only conclude that the Legislature’s intent when it reorganized the executive branch was that none of the positions designated as chiefs were principal officers or were subject to senatorial advice and consent. The court’s obligation is to construe the statute to implement the legislature’s intent and the best evidence of its intent is the words used (or not used) in the statute. Rodriguez v. Bank of the FSM, 11 FSM Intrm. 367, 379 (App. 2003); FSM Social Sec. Admin. v. Kingtex (FSM) Inc., 8 FSM Intrm. 129, 131 (App. 1997); Senda v. Creditors of Mid-Pacific Constr. Co., 7 FSM Intrm. 664, 670 (App. 1996). The plaintiffs are therefore entitled to judgment as a matter of law on their first contention ) that the positions they held had become public service positions and that whoever held one of these positions was not a principal officer whose position was subject to senatorial advice and consent.

III.

     The plaintiffs also seek summary judgment that, once their advice and consent positions had been abolished by the reorganization statute, they were lawfully hired to fill the new public service positions. In support of this proposition, the plaintiffs offer the affidavit, of Bernes Raslap, who was the Chief of the Division of the Personnel before he was terminated at the same time as the plaintiffs. Raslap, like the plaintiffs, held a cabinet-level, advice-and-consent position before the executive branch

[14 FSM Intrm. 261]

reorganization (Director of the Office of Personnel) and then, after reorganization, became a chief of a division within a larger department (Department of Administrative Services) and thus a public service system employee.

     His conclusory (and potentially self-serving affidavit since his employment situation and termination is the same as the plaintiffs’) affidavit avers that the plaintiffs were hired in their public service system positions as chiefs without the usual competitive examination because they were the only persons qualified for their jobs and that their positions required rare or special qualifications which did not permit competition.

     The personnel regulations permit the hiring of person through non-competitive examinations when the positions require rare or special qualifications which did not permit competition, Truk State Pub. Serv. Sys. Reg. subpt. III.A.3.a., but Raslap’s conclusory statement that the plaintiffs’ former positions were such positions and that the plaintiffs were such persons is insufficient to establish those averments as undisputed material facts. Furthermore, there is no evidence presented that a non-competitive examination of any of the plaintiffs was ever held. Raslap’s affidavit is thus insufficient to show that there is no genuine issue of material fact that, after the reorganization statute had abolished their former positions that the plaintiffs were lawfully hired to fill the new public service positions.

     Since summary judgment must be denied for the plaintiffs’ second contention, the court cannot reach the plaintiffs’ third contention that they were fired without the proper notice and opportunity to be heard. These two contentions are left for trial on the merits.

IV.

     Accordingly, the plaintiffs are granted partial summary judgment that, as a matter of law, Chk. S.L. No. 7-03-05, chiefs of divisions within the Chuuk state government executive branch are public service positions and are not subject to gubernatorial nomination and senatorial advice and consent. Genuine material fact issues exist concerning whether the plaintiffs were hired for those public service positions in a lawful manner and whether they received the requisite notice and opportunity to be heard when terminated from those positions. Trial on the remaining issues is set to start 9:30 a.m., Wednesday, July 19, 2006.

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