FSM SUPREME COURT TRIAL DIVISION

Cite as Esa v. Elimo, 15 FSM Intrm. 198 (Chk. 2007)

[15 FSM Intrm. 198]

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 GRANTING SUMMARY JUDGMENT, PERMANENT INJUNCTION

Dennis K. Yamase

Associate Justice

Decided:  August 8, 2007

APPEARANCES:

For the Plaintiffs:         Andrea S. 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

Separation of Powers

      Presentment to, that is transmittal to, the mayor is a prerequisite for a bill to become an ordinance, either by the mayor then signing it, or vetoing it and having his veto overridden, or by the mayor’s failure to act within the prescribed time period. Thus, no bill can become law without first being transmitted to the mayor for his possible action. Esa v. Elimo, 15 FSM Intrm. 198, 203 n.2 (Chk. 2007).

Elections

      The court will consider the constitutionality of a municipal ordinance when the one issue that has always been before the court from the case’s inception was the right of those municipal officials elected to municipal offices (mayor, assistant mayor, and Tolensom legislators) in 2004 not to be deprived or

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divested of those offices until their terms are up; when the terms of the legislators elected for two years have already expired but the terms of the four at-large four-year legislators, the mayor, and the assistant mayor have not; and when the new municipal ordinance relates directly to this issue because it purports to create a Tolensom Special Election Tribunal Commission, which can appoint a mayor or assistant mayor when there is an "executive crisis" created because the offices have been "vacant" for more than six months because the right to those offices is disputed between the candidates who ran for those offices. Esa v. Elimo, 15 FSM Intrm. 198, 203 (Chk. 2007).

Elections; Separation of Powers

     The Tolensom Constitution does not grant the Tolensom Legislature the power to create a method to "appoint" persons to the offices of mayor and assistant mayor. Those offices can be filled in only one way ) by vote of the Tolensom electorate, that is, by the people of Tolensom. The only exception to that is when the mayoral office becomes vacant with less than a year left in the mayor’s term, the assistant mayor assumes the office for the rest of the term. It was the Tolensom Constitution’s framers’ clearly expressed will that the mayor and assistant mayor be elected by the voters and not appointed by someone else. Esa v. Elimo, 15 FSM Intrm. 198, 204 (Chk. 2007).

Elections; Separation of Powers

     When the Tolensom Legislature elected in 2004 would have been the sole judge of the election of its members elected in that year and that Legislature already judged the four-year members elected, the Legislature elected in 2006 cannot be the judge of the members elected in 2004. The Legislature elected in 2006 can only be the judge of the election of the members elected in 2006. It cannot be otherwise. A later legislature cannot re-examine a four-year member’s election at its whim after the mid-term election because that would make a nullity and a mockery of the provision that four at-large seats would have four year terms, not two year terms. The framers’ intent is obvious. They wanted the four year seat holders to be held over throughout the term of the Legislature elected at the mid-term election, to provide a certain continuity. Esa v. Elimo, 15 FSM Intrm. 198, 204 (Chk. 2007).

Constitutional Law ) Chuuk

     A member of the Chuuk Legislature may hold no other public office or public or private employment with a few exceptions and membership on an election tribunal is not one of those exceptions. The Chuuk Constitution is the supreme law of Chuuk and a governmental act by a municipality that violates it is invalid to the extent of the violation. The inclusion of state legislature members on a municipal Special election tribunal commission violated the Chuuk Constitution and so that that body’s composition was improper and its acts invalid. Esa v. Elimo, 15 FSM Intrm. 198, 204 (Chk. 2007).

Statutes ) Construction

     Courts observe a strict rule of construction against a retrospective operation, and indulge in the presumption that the legislature intended statutes, or amendments thereof, enacted by it, to operate prospectively only, and not retroactively. A contrary determination will be made only when the legislature’s intention to make a statute retroactive is stated in express terms, or is clearly, explicitly, positively, unequivocally, unmistakably, and unambiguously shown. Esa v. Elimo, 15 FSM Intrm. 198, 204-05 (Chk. 2007).

Constitutional Law ) Due Process; Statutes ) Construction

     It is generally considered violative of the constitutional right to due process to apply a law retroactively that would divest someone of a vested right or property interest. Esa v. Elimo, 15 FSM Intrm. 198, 205 (Chk. 2007).

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COURT’S OPINION

DENNIS YAMASE, Associate Justice:

     Before the court for its consideration are:

     1)   the plaintiffs’ Motion for Summary Judgment and Motion to Modify Preliminary Injunction, filed December 7, 2006;

     2)  Response of Defendants Marsolo and Karen to Plaintiff’s [sic] Motion for Summary Judgment, filed December 20, 2006;

     3)  the defendants’ (other than Marsolo and Karen) Motion to Strike for Failure to Effectively Serve Motion for Summary Judgment to Defendants’ Counsel, Motion for Leave to File Opposition to Motions for Summary Judgment, Motion to Modify Preliminary Injunction, filed December 27, 2006;

     4)  the defendants’ Motion to Amend Motion to Strike, filed December 29, 2006;

     5)  the plaintiffs’ Opposition to Motion to Strike and Opposition to Motion to Modify Injunction, filed February 7, 2007;

     6)  the plaintiffs’ Supplement to Opposition to Motion to Strike and Opposition to Motion to Modify Injunction, filed March 22, 2007;

     7)  the plaintiffs’ Briefing Pursuant to Court Order, filed April 30, 2007;

     8)  Defendant Lt. Governor Johnson Elimo, the State of Chuuk, and Chuuk State Election Commission’s Brief on the Effect of Tolensom’s Ordinance, filed April 30, 2007;

     9)  [Marsolo’s and Karen’s] Verified Motion for Leave to File Brief/Motion for Enlargement of Time, filed May 7, 2007;

    10)  Marsolo and Karen’s Brief on the Effect of Tolensom Municipal Ordinance No. TMO 08-01-06, filed May 7, 2007; and

    11)  the plaintiffs’ Reply and Motion to Strike Brief, filed May 16, 2007.

     Excusable neglect having been shown, the verified motion for enlargement of time [#9], filed on May 7, 2007, by Marsolo and Karen is granted and their brief is therefore deemed filed on that date.  The plaintiffs’ motion to strike that brief is accordingly denied.  The defendants’ motion to amend [#4] their motion to strike is granted.  The defendants’ motion to strike [#3] the plaintiffs’ summary judgment motion is denied.

 I.

     This case arises from the September 28, 2004 Tolensom municipal general election.  On November 6, 2004, the Tolensom Election Commission certified the plaintiffs, Kisauo Esa and Lorenso Farawey, as the winning candidates for Mayor and Assistant Mayor of Tolensom, respectively.  Their opponents, Amanto Marsolo and Makkasa Karen, challenged the election in two court actions in the Chuuk State Supreme Court.  The state court eventually confirmed Esa and Farawey as winners.  Final judgment in the state court

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actions was entered on March 10, 2005.  No party in the state court actions appealed that state court judgment.

     On July 29, 2005, the Lieutenant Governor, acting as Governor, issued a proclamation that declared an extreme emergency in Tolensom municipality because of the incessant mayoral power dispute "between the Party of Kisauo Esa and the Party of Amando [sic] Marsolo" was causing civil disturbance and removed all officials declared elected in the September 2004 election and appointed their opponents in that election as interim municipal officials in charge of an interim municipal government and scheduled a Tolensom municipal election for September 24, 2005 to elect "permanent" municipal officials.  This lawsuit ensued, alleging that the plaintiffs’ civil rights to due process of law were being violated in that they were removed from office unlawfully.

     The court, on June 2, 2006, declared the Lt. Governor’s proclamation invalid because it was not taken in good faith and with the honest belief of its necessity.  Esa v. Elimo, 14 FSM Intrm. 262, 265-66 (Chk. 2006).  On August 23, 2006, the court issued a partial summary judgment that the 2005 election held pursuant to the Lt. Governor’s proclamation was invalid and issued a preliminary injunction enjoining the defendants and their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them who received actual notice of the order from certifying the results of the September 24, 2005 Tolensom election; from swearing in to office any person whose election may have been certified; from recognizing any persons thus elected as the Tolensom Municipal Government or a part thereof; from permitting any of them from exercising any official powers of the Tolensom Municipal Government, including appropriating, authorizing, obligating, or expending any municipal funds; and from recognizing or permitting the Tolensom Interim Municipal Government or any part thereof or person named as a member thereof from exercising any official powers of the Tolensom Municipal Government, including appropriating, authorizing, obligating, or expending any municipal funds.  The court also enjoined all parties, including the State of Chuuk, from obligating or expending any Tolensom municipal funds except those needed to conduct the September 2006 Tolensom mid-term municipal election.  No final judgment was issued.

     This was because in January 2006, defendants Marsolo and Karen had, in a newly-filed state court case, collaterally attacked the prior state court judgments and obtained a ruling from a trial judge that overturned all previous state court rulings in other cases concerning the September 2004 Tolensom election and installed Marsolo and Karen as Mayor and Assistant Mayor.  That ruling was on appeal when this court issued its preliminary injunction and so could not be said to have been final.  This court could not presume the outcome in state court.

      On December 7, 2006, the plaintiffs moved for summary judgment and a declaration that Esa is the Mayor, and Farawey is the Assistant Mayor of Tolensom and asked that the preliminary injunction be made permanent.  Both oppositions to the motion ask that the motion be denied because of the conflicting cases in state court and because, in their view, the state court decision making Marsolo the Mayor and Karen the Assistant Mayor of Tolensom is valid, although it was on appeal.  They also assert that the motion should be denied because the Tolensom Legislature, as constituted after the September 2006 mid-term election, had passed an ordinance which provided for the selection of a mayor and assistant mayor when those offices are disputed and Marsolo and Karen were then selected.

II.

     As stated above, the state court’s March 10, 2005 election contest judgment (from the September 2004 Tolensom municipal election), which declared Esa and Farawey the mayor and assistant mayor, was not appealed.  On January 4, 2006, as also stated above, a different state court judge threw out the results from two polling places in the September 2004 Tolensom election and declared Marsolo and Karen to be the winning candidates.  That decision was appealed.  The Chuuk

[15 FSM Intrm 202]

State Supreme Court appellate division has recently declared that the January 4, 2006 order to be null and void and has reversed that decision.  [Nikichiw v. Marsolo, 15 FSM Intrm. 177, 179 (Chk. S. Ct. App. 2007); Nikichiw v. Petewon, 15 FSM Intrm. 33, 38-39 (Chk. S. Ct. App. 2007).]  The state court decision that Esa and Farawey were the winning candidates therefore stands as the only valid court decision on the issue.

III.

     That leaves as the remaining issue the effect of Tolensom Municipal Ordinance No. TMO 08-01-06 and the selection, on November 22, 2006, of Marsolo and Karen as mayor and assistant mayor by a body created by that ordinance called the Tolensom Special Election Tribunal Commission, which was to consist of the four at-large members of the Tolensom Legislature, the two traditional leaders of Tolensom, and three members of the Chuuk State Legislature.  The parties briefed that issue.

     The plaintiffs contend that the Tolensom Legislature has no authority to pass such an ordinance. First, they contend that the ordinance was not duly enacted because it had never been presented to the mayor for his approval or veto.  They also note that a totally different ordinance, also designated as Municipal Ordinance No. TMO 08-01-06, was presented to Governor Simina by "Mayor" Amanto Marsolo which appropriated funds for municipal salaries and expenses, so they express doubts whether the purported TMO 08-01-06 was ever actually enacted.  Second, the "Speaker" who signed the purported ordinance and who presided over the Special Election Tribunal Commission was not elected as an at-large, four-year member to the Tolensom Legislature in 2004 as required, but was an at-large member appointed by the Lt. Governor’s invalid proclamation.  Third, the ordinance was not signed by Mayor Esa (or even by "Mayor" Marsolo).  The plaintiffs contend that TMO 08-01-06 and the Special Election Tribunal Commission are unconstitutional because they violate both the separation of powers doctrine and Tolensom Constitution article VI, concerning Tolensom elections; that violates Tolensom’s right of self-government; and that the Tolensom Constitution does not grant the Tolensom Legislature the authority to enact an ordinance creating a body such as the Special Election Tribunal Commission to appoint persons to municipal offices.  The plaintiffs assert that no authority, constitutional or otherwise, gives the state government, or state legislature members, or any special tribunal the power to appoint or remove municipal officials.

     The defendants contend that the Tolensom ordinances, and TMO 08-01-06 in particular, must be presumed to have been properly enacted and to be valid, constitutional, and reasonable. Marsolo and Karen contend that they were appointed to the posts of mayor and assistant mayor by the Tolensom Special Election Tribunal Commission and that "appointment" supersedes any other claim by them (or anyone else) to those offices.  They also contend that TMO 08-01-06 does not come into effect until there is a crisis and fills offices that are otherwise vacant or inoperable due to a crisis and thus does not conflict with the Tolensom Constitution which provides for filling offices that are vacant due to death or disability.  They assert that the ordinance became law without the mayor’s signature.  Finally, Marsolo and Karen note that the Tolensom Legislature is the sole judge of the election and qualification of its members and that therefore it could select whomsoever as Speaker and it could be challenged in court without a new complaint being filed.

     The plaintiffs respond that the purported ordinance was never validly enacted since there is no competent evidence before the court that the Tolensom Legislature’s clerk ever certified it; that the ordinance had ever been published; and that the ordinance had ever been presented to Mayor Esa (or

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anyone else claiming to be mayor) for his signature and so could not become law without being signed.

     Marsolo and Karen also contend that if the plaintiffs are challenging the validity of Tolensom Ordinance No. TMO 08-01-06 (and they are), then their counsel must instantly be disqualified from this action because that raises a conflict of interest on her part between her clients, the Tolensom Municipal Government on one hand and Esa and Farawey on the other.  This contention is rejected as without any merit.

IV.

     It appears that the ordinance may never have been properly enacted for any or all of the reasons cited by the plaintiffs, but the court cannot grant summary judgment on that ground because disputed factual issues are involved, such as whether the bill was ever transmitted to the mayor.  If the plaintiffs are correct, they would be entitled to a judgment as a matter of law.  However, since the plaintiffs are entitled to summary judgment on the grounds discussed below, the court does not need to await the resolution of the factual issues.

      Tolensom Municipal Ordinance No. TMO 08-01-06 amends the Tolensom election ordinance and has two parts.  One part deals with procedures to handle complaints of election irregularities and appeals from the Tolensom Election Commission’s decision on those irregularities.  That part is not before the court.  It does not relate to any issue before the court since it is merely prospective legislation.  The (one) issue that has always been before the court from this case’s inception is the right of those Tolensom municipal officials elected to municipal offices (mayor, assistant mayor, and Tolensom legislators) in 2004 not to be deprived or divested of those offices until their terms are up.  The terms of the legislators elected for two years have already expired.  The terms of the four at-large four-year legislators, the mayor, and the assistant mayor have not.

     The other part of TMO 08-01-06 relates directly to this issue.  It purports to create a Tolensom Special Election Tribunal Commission, which can appoint a mayor or assistant mayor when there is an "executive crisis" created because the offices have been "vacant" for more than six months because the right to those offices is disputed between the candidates who ran for those offices.

     The Tolensom Constitution does not grant the Tolensom Legislature the power to create a method to "appoint" persons to the offices of mayor and assistant mayor.  Those offices can be filled in only one way ) by vote of the Tolensom electorate, that is, by the people of Tolensom.  The only exception to that is when the mayoral office becomes vacant with less than a year left in the mayor’s term, the assistant mayor assumes the office for the rest of the term.  Tolensom Const. art. IX, § 9. It was the Tolensom Constitution’s framers’ clearly expressed will that the mayor and assistant mayor be elected by the voters and not appointed by someone else.

      The difficulty, since the Lt. Governor made his proclamation, is not that the mayor’s and

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assistant mayor’s office has been vacant.  Esa and Farawey have been in those offices the whole time.  The problem is that Marsolo and Karen also tried to occupy those offices at the same time. Their attempt(s) to do so should not create a vacancy or a crisis.

     Accordingly, the Tolensom Constitution does not grant the Tolensom Legislature the power to fill elective offices in a manner other than by election of the Tolensom voters.

      The plaintiffs also challenge the enactment of TMO 08-01-06 and the acts of the Tolensom Special Election Tribunal Commission since they were both presided over by a "speaker" who claimed to hold a four-year seat but was not one of those elected in 2004 and was one of the ones appointed to that office by the Lt. Governor in 2005.  Marsolo and Karen contend that this issue is not before the court and that since the Tolensom legislature is the sole judge of the election of its members the "Speaker’s"identity cannot be questioned.  They are mistaken.  The issue of the four at-large seats was before the court from the start of this case because the Lt. Governor’s proclamation "removed" them from office in 2005 and replaced them with their opponents.  Both the proclamation and its results were held invalid.  The Tolensom Legislature elected in 2004 would have been the sole judge of the election of its members elected in that year.  Tolensom Const. art. VIII, § 10(a). That Legislature already judged them elected.  The Legislature elected in 2006 cannot be the judge of the members elected in 2004.  The Legislature elected in 2006 can only be the judge of the election of the members elected in 2006.  It cannot be otherwise.  To allow a later legislature to re-examine a four-year member’s election at its whim after the mid-term election would make a nullity and a mockery of the Tolensom Constitution’s provision that four at-large seats would have four year terms, not two year terms.  The framers’ intent is obvious.  They wanted the four year seat holders to be held over throughout the term of the Legislature elected at the mid-term election, to provide a certain continuity.  Thus, those four year members who were declared elected in 2004 and were seated by the 2004-2006 Legislature remain, without change in the 2006-2008 Legislature and are thus not any of the persons "installed" or named by the Lt. Governor’s proclamation.  A Legislature containing those persons is improperly constituted.

       The composition of the Tolensom Special Election Tribunal Commission is unconstitutional as well.  It included three representatives from the Chuuk State Legislature, and one of those representatives nominated Marsolo for the mayor’s office.  However, the Chuuk Constitution prohibits, with a few exceptions not relevant here, a member of the Legislature from holding any other public office.  "A member of the Legislature may hold no other public office or public or private employment . . . ." Chk. Const. art. V, § 9(a).  An election tribunal is not one of those exceptions.  The Chuuk Constitution is the supreme law of Chuuk and a governmental act by a municipality that violates it is invalid to the extent of the violation.  Chk. Const. art. II, § 1.  The inclusion of state legislature members on the Tolensom Special Election Tribunal Commission violated the Chuuk Constitution and so that body’s composition was improper and its acts invalid.

      Furthermore, even if the enactment of TMO 08-01-06 or an ordinance like it were within the Tolensom’s Legislature’s power, it was not in effect when the September 2004 election was held and also had not been in effect for six months in November 2006 when it was used (so there could not have been a six-month crises at that time for the ordinance to apply) and so could not have been applied to the contest between Esa and Farawey and Marsolo and Karen.  "[C]ourts observe a strict rule of construction against a retrospective operation, and indulge in the presumption that the legislature intended statutes, or amendments thereof, enacted by it, to operate prospectively only, and not retroactively."  73 Am. Jur. 2d Statutes § 350, at 487 (1974).  A contrary determination will be made

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only when the legislature’s intention to make a "statute retroactive is stated in express terms, or is clearly, explicitly, positively, unequivocally, unmistakably, and unambiguously shown."  Id. (footnotes omitted).  It is generally considered violative of the constitutional right to due process to apply a law retroactively that would divest someone of a vested right or property interest.  Id. §§ 347-50.  Thus, even if TMO 08-01-06 is valid, and the court is not saying that it was, it could not have been implemented when it was since it would have divested Esa and Farawey of their vested rights to the offices of mayor and assistant mayor.

      The municipal government of Tolensom therefore consists of Mayor Kisauo Esa, Assistant Mayor Lorenso Farawey, elected September 2004, with certificates of election dated November 10, 2004 and in those offices since at least that date; the four at-large Tolensom legislators declared elected September 2004 (and seated as qualified by the Legislature in 2004); and the fifteen two-year legislators elected in 2006.

      Let judgment be entered accordingly and a permanent injunction issued.

PERMANENT INJUNCTION

     Now therefore it is hereby ordered that the defendants Lt. Governor Johnson Elimo and the State of Chuuk, Amanto Marsolo, Makkasa Karen, the Chuuk State Election Commission, the Interim Government of Tolensom Municipality, and their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them who receive actual notice of this order are hereby enjoined from recognizing any persons as holding the offices of Mayor and Assistant Mayor of Tolensom other than Kisauo Esa and Lorenso Farawey; from recognizing any persons as holding the offices of at-large legislators in the Tolensom Legislature other than those certified elected in the September 2004 Tolensom election; from swearing in to office any person whose election may have been certified as the Tolensom Municipal Government or a part thereof who was not elected in the September 2004 Tolensom general election or in the 2006 Tolensom mid-term election; from permitting anyone not mentioned above as a part of the Tolensom municipal government from exercising any official powers of the Tolensom Municipal Government, including appropriating, authorizing, obligating, or expending any municipal funds; and from recognizing or permitting the Tolensom Interim Municipal Government or any part thereof or any person named as a member thereof from exercising any official powers of the Tolensom Municipal Government, including appropriating, authorizing, obligating, or expending any municipal funds.

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Footnotes:

1.  Tolensom elects three members to the Chuuk House of Representatives. Chk. Const. art. V, § 3(b)(3).

2.  Presentment to, that is transmittal to, the mayor is a prerequisite for a bill to become an ordinance, either by the mayor then signing it, or vetoing it and having his veto overridden, or by the mayor’s failure to act within the prescribed time period. Tolensom Const. art. VIII, § 15(a). Thus, no bill can become law without first being transmitted to the mayor for his possible action.

3.  It would seem that a provision such as this would only encourage further election disputes with a losing candidate encouraged to continue disputing the winner’s right to office until six months has run so that he then has a chance of being appointed to office instead of elected.

4.  The speaker of the Tolensom Legislature must be elected from among the four at-large, four year legislators. Tolensom Const. art. VIII, § 10(b).

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