*    *    *    *

HEADNOTES

*    *    *    *

COURT'S OPINION

MARTIN G. YINUG, Chief Justice:

This comes before the court on the defendants' Motion for Summary Judgment, filed December 10, 2010; the plaintiff's Opposition to Defendants' Summary Judgment Motion, filed December 21, 2010; and, in response to the court's May 17, 2011 order, the Brief of Defendants, filed May 31, 2011; and the plaintiff's Brief, filed June 16, 2011. The motion is granted. The reasons follow.

I. BACKGROUND

The plaintiff, Welsin Helgenberger, was the elected Chief Minister of U Municipality. While in office, Helgenberger was charged in the Pohnpei Supreme Court (PKD No. 161-08) with the crimes of cheating and forgery in regard to certain U municipal checks. As the result of a plea agreement, Helgenberger was convicted of four counts of forgery. He was sentenced to one year in jail on each count, to be served concurrently, but suspended if Helgenberger complied with certain conditions.

The U Municipal Council then impeached Helgenberger. The U Chief Justice, following the U Constitution, appointed a special U Impeachment Panel. It consisted of the Pohnpei Supreme Court Chief Justice and the Chief Justices of Kolonia Town and Sokehs. The U Impeachment Panel convened in the Kolonia Town Court. It scheduled a status conference for February 25, 2009, at which Helgenberger's attorney, Joey Sapelalut appeared but Helgenberger did not. An U Impeachment Panel judge then signed and issued an arrest warrant, addressed to the Chief of U Police, for Helgenberger to be detained and brought before the U Impeachment Panel to show cause why he should not be held in contempt for his failure to appear at the status conference.

The Kolonia Town Police, acting under the authority of a joint law enforcement agreement between U and Kolonia Town, arrested Helgenberger and held him in the Kolonia Town jail overnight. The next day, Helgenberger was brought before the U Impeachment Panel, which, not finding Helgenberger's excuse sufficient, then convicted him of contempt of court and fined him $50. The impeachment proceedings went forward.

[18 FSM R. 279]

On June 26, 2009, attorney Marstella Jack filed a notice of appearance, purporting to replace attorney Sapelalut. The U Impeachment Panel denied the substitution. Sapelalut represented Helgenberger at that day's sentencing hearing. Helgenberger was removed from office. He appealed to the U Municipal Appellate Court and to the Pohnpei Supreme Court.

On October 28, 2009, Helgenberger filed his Complaint against U Municipal Court and U Municipal Government, seeking damages for the defendants' alleged 1) violations of his due process rights; 2) denial of his right to counsel; and 3) for subjecting him to double jeopardy. The defendants' answer, filed November 19, 2009, included a counterclaim alleging that Helgenberger's suit was a frivolous action and seeking an award for attorney's fees and costs. Helgenberger did not respond to the defendants' counterclaim.

The defendants now move for summary judgment on all of Helgenberger's claims.

II. ANALYSIS

The court, viewing the facts and inferences in a light most favorable to the party opposing the motion, must grant summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. E.g., Ladore v. Panuel, 17 FSM Intrm. 271, 273 (Pon. 2010); Berman v. Pohnpei Legislature, 16 FSM Intrm. 492, 494 (Pon. 2009); William v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 584, 586 (Pon. 2002); Bank of the FSM v. Hebel, 10 FSM Intrm. 279, 282 (Pon. 2001).

A. Double Jeopardy

Helgenberger claims that he has a civil cause of action against the defendants because the impeachment trial subjected him to double jeopardy and a second punishment (his removal from office) in violation of the FSM Constitution. The court will not decide whether a civil plaintiff may recover monetary damages for a double jeopardy violation but will, only for the purpose of deciding the defendants' summary judgment motion, assume that a plaintiff may.

The FSM Constitution's double jeopardy clause protects against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense. Laion v. FSM, 1 FSM Intrm. 503, 523 (App. 1984); see also Kinere v. Kosrae, 14 FSM Intrm. 375, 383 (App. 2006). Whether civil liability can be based on an alleged double jeopardy violation is an issue that is left to another day. The usual remedy for a successful double jeopardy claim is an order barring or dismissing the second prosecution or barring the imposition of the multiple punishment.

But when an official has been impeached, "a trial on criminal charges is not foreclosed by the principle of double jeopardy." United States v. Isaacs, 493 F.2d 1124, 1142 (7th Cir.)¹ (official may be tried and punished without being first impeached), cert. denied, 417 U.S. 976 (1974). Under ancient English practice, "impeachment was a criminal proceeding to which 'jeopardy of life or limb' attached," United States v. Hastings, 691 F.2d 706, 710 n.8, 65 A.L.R. Fed. 810, 816 n.8, reh'g denied, 689 F.2d 192 (11th Cir 1982), cert. denied, 459 U.S. 1203 (1983); that is, "anciently criminal

[18 FSM R. 280]

punishment could be imposed in the impeachment proceeding" but now a "conviction on impeachment . . . affects only the right to hold office" and does not include criminal punishment or other public remedy, In re Mattera, 168 A.2d 38, 42 (N.J. 1961). Thus, under United States practice and the practice in the FSM that has been inherited from the U.S., the "extraordinary remedy by impeachment does not prevent an indictment and conviction thereunder, and does not extend beyond a removal from office and a disqualification to hold office." State ex rel. Attorney General v. Hasty, 63 So. 559, 561 (Ala. 1913).

"[T]he remedy of impeachment has the single role" of affecting only the right to hold office "and [i]s not intended to bar or delay another remedy for a public wrong." In re Mattera, 168 A.2d at 42. The other remedy is often a criminal prosecution. This is because "[t]he remedy of impeachment is not exclusive of any other public remedy for the same misbehavior, and if the cause for which the officer is punished is a public offense, he may also be indicted, tried, and punished." 63A AM. JUR. 2D Public Officers and Employees § 212, at 821-22 (rev. ed. 1984). Accordingly, "[a] single act of misconduct may offend the public interest in a number of areas and call for the appropriate remedy for each hurt. Thus it may require removal from office. It may also require criminal prosecution." In re Mattera, 168 A.2d at 42.

The court therefore concludes that impeachment and removal from office is not criminal punishment under the FSM Constitution's Double Jeopardy Clause. A government official's misconduct does not present a government with an irrevocable choice to either criminally prosecute the official or to impeach and try to remove that official from office. If the offending official has not resigned from office first, the government may do, and is usually expected to do, both. The alternative is both unpalatable and absurd. It would either leave a convicted criminal holding a public office of trust for which he is unfit. Or it would leave an impeached official immune from criminal prosecution and punishment that all other offenders would be subject to. Neither is a desirable outcome nor required by the FSM Constitution's protection against double jeopardy.

Helgenberger cannot claim he was subjected to double jeopardy because he was convicted of public offenses and then impeached and removed from office for those same offenses. Nor could he have claimed double jeopardy if he had first been impeached and removed from office and then prosecuted for the same public offenses. This is because the Pohnpei Supreme Court criminal case determined whether Helgenberger would be subjected to criminal punishment while the U impeachment trial and conviction only affected whether he could hold the office of U Chief Minister. There was no double jeopardy. Since, even if civil liability can be imposed for a double jeopardy violation, Helgenberger's protection against double jeopardy was not violated, the defendants are entitled, as a matter of law, to summary judgment on the double jeopardy claim.

B. Right to Substitution of Counsel

Helgenberger also contends that he has a cause of action because the U Impeachment Panel did not allow attorney Jack to appear on his behalf. The court will assume, without deciding, that Helgenberger had a right to effective assistance of counsel during the impeachment proceeding similar to the constitutional right to counsel of a person accused of a crime.² But even then, a person's right

[18 FSM R. 281]

to obtain new counsel of choice is not absolute.

In a criminal case, a court is not constitutionally required to allow defense counsel to withdraw or to be replaced at a strategic moment in the proceedings. In FSM v. Jano, 9 FSM Intrm. 470a, 470b (Pon. 2000), the court ruled that it could not allow defense counsel to withdraw so that the defendant could seek new counsel for the rest of the trial when the trial was well into the defendant's case-in-chief and when that new counsel was not present during trial and had not heard either the prosecution's witnesses' testimony or that of the defense witnesses who had already testified. Here, Helgenberger also wanted to switch trial counsel before the trial's end. The U Impeachment Panel had the discretion to deny the substitution of a new counsel who had not been present for trial. Since, even if Helgenberger had a constitutional right to counsel during his impeachment trial, that right was not violated, the defendants are entitled, as a matter of law, to summary judgment on this claim.

C. Other Alleged Due Process Violations

Helgenberger bases his claim of other due process violations on his arrest for his failure to appear on February 25, 2009, and his conviction the next day for contempt of court. Helgenberger contends that both of these related events violated his right to due process.

Courts generally have the power, in proper circumstances, to hold a party, or an attorney, or a witness summoned to appear before it in contempt of court for acts committed in the court's presence or for failure to appear when ordered to. "The power to punish for contempt of court may be regarded as an essential element of judicial authority. It existed at common law . . . ." 17 AM. JUR. 2D Contempt § 41, at 399 (rev. ed 1990). Only the court whose order was violated can punish a person for contempt – one court does not have the power to punish someone for the contempt of another court's order. Id. at 400; cf. Onopwi v. Aizawa, 6 FSM Intrm. 537, 539 (Chk. S. Ct. App. 1994) (appellate court could not hold a party in contempt for violating a trial court's orders because his actions were not a violation of an appellate court's order or done in the appellate court's presence). Helgenberger does not contend that the U Impeachment Panel, as a special panel of the U Municipal Court, did not have the power or authority to hold persons in contempt under proper circumstances.

If a person has been given adequate notice that he or she is ordered or required to appear before a court at a certain date and time and fails to do so, that court may, usually upon request, issue a bench warrant³ to compel that person to appear by authorizing the police to arrest that person and bring him or her before the court. See, e.g., Chuuk v. Defang, 9 FSM Intrm. 43, 45 (Chk. S. Ct. Tr. 1999) (a bench warrant will issue if a defendant fails to appear in response to a summons). The court does not need to first issue a second order for that person to appear and to explain his or her absence (show cause) and then if that order to appear is not obeyed, issue a third order to appear and explain the second absence, and then a fourth and so on without end. The court may issue a bench warrant requiring the absent person's arrest and that he or she be brought before the court forthwith or at least within a reasonable time. See 62 Pon. C. § 2-117 (arrestees to be brought within a reasonable time⁴

[18 FSM R. 282]

before a court competent to try them for the offense charged).

Helgenberger was arrested on the U Impeachment Panel's bench warrant and brought within 24 hours⁵ before the only court competent to try him for the contempt charge, the U Impeachment Panel, where he was heard and then convicted of contempt. That was the process of law due him. If his contempt conviction was unsafe, that is, if he should have been acquitted because there was no earlier order requiring his appearance on February 25, 2009, or if he was not allowed to present a defense, or if he had some valid defense that should have resulted in an acquittal on the contempt charge, see, e.g., In re Contempt of Skilling, 8 FSM Intrm. 419, 425-26 (App. 1998) (discussing elements and defenses to contempt for non-appearance), his remedy would have been an immediate appeal⁶ of the contempt conviction as a final collateral order, cf. FSM v. Kansou, 13 FSM Intrm. 344, 349 (Chk. 2005) (party challenging an interlocutory court order may refuse to comply with it and thus subject himself to a contempt proceeding and then appeal the contempt finding, if there is one); Zhang Xiaohui v. FSM, 15 FSM Intrm. 162, 166-68 (App. 2007) (immediate appeals from collateral orders permitted when they have a final and irreparable effect on the rights of the parties or of non-parties); FSM Dev. Bank v. Adams, 12 FSM Intrm. 456, 461 (App. 2004) (same).

The arresting officers, the Kolonia Town Police, were, through a joint law enforcement agreement, acting as agents of the U Municipal Government. The Kolonia Town police complied with the Pohnpei statute and brought the arrestee, Helgenberger, before the court issuing the arrest warrant within a reasonable time. It is undisputed that when they arrested him the Kolonia Town police had a facially valid warrant for his arrest.

Police officers (and in this case, the U Municipal Government as the police officers' principal and superior) have a qualified official immunity from civil liability when they arrest someone for whom they have a facially-valid arrest warrant. See, e.g., Burke v. Town of Walpole, 405 F.3d 66, 87 (1st Cir. 2005); Porterfield v. Lott, 156 F.3d 563, 568 (4th Cir. 1998) (public official cannot be charged with false arrest when he arrests defendant pursuant to facially valid warrant); Salmon v. Schwarz, 948 F.2d 1131, 1140 (10th Cir. 1991) (arresting agents who relied on facially valid warrant protected by qualified immunity although agent who prepared deficient affidavit to obtain warrant was not); Hamill v. Wright, 870 F.2d 1032, 1036 (5th Cir. 1989) (deputy sheriffs had qualified immunity from damages for official actions taken in good faith – arrest on a facially valid warrant); Arnsberg v. United States, 757 F.2d 971, 979-81 (9th Cir. 1984) (privilege and qualified immunity for arresting officers when warrant facially valid even though it contained a discrepancy); Cea v. Ulster County, 309 F. Supp. 2d 321, 330 (N.D.N.Y. 2004) (arresting officers entitled to qualified immunity because they acted in good faith relying on facially valid warrant); Van Cleave v. City of Marysville, 185 F. Supp. 2d 1212, 1215-16 (D. Kan. 2002) (sheriff entitled to qualified immunity for executing facially valid arrest warrant when he had no reason to believe execution of warrant improper); cf. Marsolo v. Esa, 18 FSM Intrm. 59, 64 (Chk. 2011) (government officials performing official duties generally shielded from civil damages).

[18 FSM R. 283]

The defendants are therefore also entitled to summary judgment as a matter of law on Helgenberger's other allegations of due process violation.

D. Defendant U Municipal Court

Helgenberger named the U Municipal Court as a defendant as he considered the U Impeachment Panel to be a specially-constituted panel of the U Municipal Court and he alleges that the U Impeachment Panel violated his constitutional rights. The defendants agree. They are correct that the U Impeachment Panel is to be considered part of the U Municipal Court.

Judges are "generally granted absolute immunity from civil liability for acts done in the exercise of a judicial function . . . ." Jano v. King, 5 FSM Intrm. 388, 391 (Pon. 1992). Few common law doctrines were more solidly established than a judge's immunity for damages for acts committed within his judicial jurisdiction. Damarlane v. Pohnpei Supreme Court Appellate Division, 10 FSM Intrm. 116, 121 (Pon. 2001).

A judge loses the cloak of judicial immunity in only two events: "First, a judge is not immune from non-judicial actions, i.e. actions not taken in the judge's judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction."

Jano, 5 FSM Intrm. at 391 (quoting Mireless v. Waco, 502 U.S. 9, 11-12, 112 S. Ct. 286, 288, 116 L. Ed. 2d 9, 14 (1991) (citations omitted)). The first question is whether the acts were judicial. "'[T]he factors determining whether an act by a judge is a "judicial" one relate to the nature of act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.'" Bank of Guam v. O'Sonis, 9 FSM Intrm. 106, 112 (Chk. 1999) (quoting Stump v. Sparkman, 435 U.S. 349, 362, 98 S. Ct. 1099, 1107, 55 L. Ed. 2d 331, 342 (1978) (relied on by the Jano court)).

Helgenberger dealt with the U Impeachment Panel judges only in their official, judicial capacities. All the acts that he seeks compensation for are acts or functions normally performed by a judge. The issuance of a bench warrant; the contempt finding; and, under U's constitutional setup, the impeachment trial, his conviction, the denial of the substitution of counsel, and his removal from office were all judicial acts, taken in a judicial capacity.

The second question in deciding whether immunity exists is whether the judge acted in "complete absence of all jurisdiction." Helgenberger does not contend, and the court can see no ground to contend, that the U Impeachment Panel acted in the complete absence of all jurisdiction. It acted within the jurisdiction conferred on it by the U Municipal Constitution. Even if the court were to read Helgenberger's allegations as a claim that the U Impeachment Panel exceeded its jurisdiction, the U Impeachment Panel (and thus the U Municipal Court) or its judges would not be civilly liable. This is because judges cannot be held civilly liable for their judicial acts, even when those acts were in excess of their jurisdiction, or are alleged to have been done maliciously or corruptly, Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351, 20 L. Ed. 646, 651 (1872), and judges are also absolutely immune from civil liability even when their exercise of authority was flawed by the commission of grave procedural errors, Stump v. Sparkman, 435 U.S. 349, 359, 98 S. Ct. 1099, 1106, 55 L. Ed. 2d 331, 341 (1978) (relied on by the Jano court).

The judges of the U Impeachment Panel (and thus the U Municipal Court as their employer) are therefore absolutely immune from civil liability for their judicial acts even if those acts were done maliciously or corruptly or in excess of their jurisdiction or if they committed grave procedural errors

[18 FSM R. 284]

in the exercise of their authority. O'Sonis, 9 FSM Intrm. at 112. Thus, even if summary judgment were not already granted against Helgenberger on all of his claims, the court would still have to dismiss all of his claims against the U Municipal Court because of its judges' absolute immunity from civil liability for their judicial acts.

III. CONCLUSION

Accordingly, the defendants are granted summary judgment on all of plaintiff Welsin Helgenberger's claims. Also, the U Municipal Court would be granted summary judgment and dismissed as a defendant even if summary judgment were not otherwise granted.

There being no just cause for delay, the clerk is hereby expressly directed to enter final judgment against Helgenberger on all his claims, FSM Civ. R. 54(b), and IT IS FURTHER ORDERED that the defendants shall have 30 days within which to take further steps to prosecute their counterclaim or their counterclaim will be subject to dismissal under Civil Procedure Rule 41(b).

Footnotes:

¹ Since the FSM constitutional protection against double jeopardy is patterned after a U.S. Bill of Rights provision, U.S. authority may be consulted to understand its meaning and scope. Kosrae v. Benjamin, 17 FSM Intrm. 1, 4 n.2 (App. 2010).

² The usual remedy for the denial of the right to counsel is to vacate the conviction and remand for a new trial. Nena v. Kosrae, 14 FSM Intrm. 73, 81 (App. 2006). In this case, the conviction resulted only in Helgenberger's removal from office, and he does not (and probably could not) seek reinstatement as a remedy. Without deciding, the court will assume for the purposes of this motion that civil liability could be imposed for the denial of the right to counsel.

³ A bench warrant is a process issued by the court itself, or from the bench, for the attachment or arrest of a person such as a non-appearing defendant. Chuuk v. Defang, 9 FSM Intrm. 43, 44 (Chk. S. Ct. Tr. 1999).

⁴ In other FSM jurisdictions, a "reasonable time" has statutorily been considered a time not to exceed 24 hours. See, e.g., FSM v. Andrew, 17 FSM Intrm. 213, 215 (Pon. 2010); FSM v. Suzuki, 17 FSM Intrm. 70, 73 (Chk. 2010); FSM v. Sam, 15 FSM Intrm. 491, 493 (Chk. 2008); FSM v. Menisio, 14 FSM Intrm. 316, 319 (Chk. 2006); Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 483, 491 (Pon. 2005); In re {page 282}Paul, 11 FSM Intrm. 273, 280 (Chk. S. Ct. Tr. 2002); Chuuk v. Arnish, 6 FSM Intrm. 611, 613 (Chk. S. Ct. Tr. 1994).

⁵ Pohnpei law also provides that an arrestee cannot be released while intoxicated. 62 Pon. C. § 5-101. Since the parties dispute whether Helgenberger was too intoxicated to appear in court when the Kolonia Town police arrested him, the court will not consider this statute or Helgenberger's alleged inebriation in deciding the summary judgment motion.

⁶ While an impeachment conviction may not be appealable, a contempt conviction certainly is.