FSM SUPREME COURT TRIAL DIVISION
Cite as Sigrah v. Moses 24 FSM R. 316 (Pon. 2023)
YOSLYN G. SIGRAH, JASON F. SIGRAH, MARUKO
T. SIGRAH and FIONA AULIVIA HEIN,
Petitioners,
vs.
ESMOND MOSES, in his official capacity as the
Speaker of the FSM Congress, THE TWENTY-THIRD
CONGRESS OF THE FEDERATED STATES OF
MICRONESIA, and AUSEN LAMBERT, Election
Director,
Respondents.
CIVIL ACTION NO. 2023-018
AMENDED1 ORDER DENYING MOTION TO DISMISS
Dennis L. Belcourt
Associate Justice
Hearing: October 23, 2023
Decided: October 26, 2023
Amended: October 31, 2023
APPEARANCES:
For the Petitioners:
Kathleen M. Burch, Esq.
P.O. Box 1365
Koror, Palau PW 96940
For the Respondents:
T. Lam Dang, Esq.
(Speaker & Congress)
Legislative Counsel
Yolanda C. Rondon, Esq.
Congress Staff Attorney
P.O. Box PS-3
Palikir, Pohnpei FM 96941
For the Respondent:
Leonito Bacalando, Jr., Esq.
Josephine Leben James, Esq.
Assistant Attorneys General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941
* * * *
A suit against the Speaker in his official capacity, means that Congress itself is being sued. Sigrah v. Moses, 24 FSM R. 316, 319 n.2 (Pon. 2023).
Service of process upon a national government officer may be had by serving the FSM national government and by delivering a copy of the summons and the complaint to the officer. It suffices when a copy of the summons and complaint is delivered to the Attorney General and to the named officer personally or by leaving copies thereof at their dwelling house or usual place of abode or of business with some person of suitable age and discretion then residing or employed therein. Sigrah v. Moses, 24 FSM R. 316, 322 (Pon. 2023).
When the summons and complaint were delivered both to the Attorney General (i.e., Department of Justice) and to Speaker, by leaving copies with persons of suitable age and discretion, the motion to dismiss the Speaker for insufficiency of service of process on him will be denied. Sigrah v. Moses, 24 FSM R. 316, 322 (Pon. 2023).
A matter is justiciable, when, because, as alleged in the petition, the FSM Congress relied on a qualification – the member-elect's character – which was not set forth either in the Constitution or a statute as a qualification for Congress, to deny her a seat in the FSM Congress. The political question doctrine therefore does not apply. Sigrah v. Moses, 24 FSM R. 316, 322 (Pon. 2023).
The more appropriate exercise is to examine FSM constitutional language as the guide to determine whether a U.S. Supreme Court decision has application to the FSM Constitution. Sigrah v. Moses, 24 FSM R. 316, 323 (Pon. 2023).
The political question doctrine was introduced into the FSM because of constitutional provisions the FSM had "borrowed" from the U.S., making that doctrine relevant to the FSM. Sigrah v. Moses, 24 FSM R. 316, 323 n.4 (Pon. 2023).
While the FSM Constitution establishes baseline qualifications for its members, it also allows the FSM Congress to prescribe additional qualifications for members. This the FSM Congress has done in 9 F.S.M.C. 201. Sigrah v. Moses, 24 FSM R. 316, 323-24 (Pon. 2023).
The drafters of the FSM Constitution intended that "prescribe" be shorthand for "by statute." Sigrah v. Moses, 24 FSM R. 316, 324 (Pon. 2023).
The enactment of a statute is a legislative act and must be by bill, passed on two readings, one by a vote of ten members and the second by two-thirds vote of the state delegations, and subject to Presidential veto. Sigrah v. Moses, 24 FSM R. 316, 324 (Pon. 2023).
The word "sole" in article IX, section 17(a) does not modify the legislative function in section 9 of deciding on additional qualifications for members of Congress, and thus it does not operate as a grant to Congress of untrammeled authority to establish additional qualifications. The authority to add qualifications is legislative, as set forth in section 9, and cannot be exercised other than by passing a bill. Sigrah v. Moses, 24 FSM R. 316, 324 (Pon. 2023).
When Congress has not enacted legislation prescribing character as a qualification and when its decision to refuse to swear in a member-elect appears to have been ad hoc, judicial review of the member-elect's alleged exclusion based on character issues, is not barred by the political question doctrine. Sigrah v. Moses, 24 FSM R. 316, 324 (Pon. 2023).
"Qualifications" of Congress members as referred to in Article IX, section 9 should have the same meaning as that same term in section 17(a). "Qualification" in section 9 addresses qualifications enumerated therein and the addition by statute of qualifications, while section 17(a) addresses adjudication of the qualifications so enumerated or added. An interpretation of 17(a) that limits Congress's adjudication of qualifications to those specific qualifications set forth in the Constitution or statute does not rob section 17(a) of meaning – Congress retains primacy in adjudging those qualifications – it is the final decision-maker – but cannot add more except by statute. Sigrah v. Moses, 24 FSM R. 316, 325 (Pon. 2023).
Since the FSM Constitution's plain text commits solely to Congress's consideration only those member qualifications that are enumerated therein or enacted by statute, and since the petition alleges, and respondents concede, that Congress refused to seat a member-elect on a basis not among those enumerated in either the FSM Constitution or statute, the FSM Supreme Court is not barred by the political question doctrine from reviewing that decision. Sigrah v. Moses, 24 FSM R. 316, 325 (Pon. 2023).
A court evaluates a Rule 12(b)(6) motion to dismiss only on whether a plaintiff's claim has been adequately stated in the complaint, and does not resolve the facts or merits of the case. A court's review is limited to the complaint's contents and the court must assume the facts alleged therein are true and view them in the light most favorable to the plaintiff. Dismissal can only be granted if it appears to a certainty that no relief could be granted under any facts which could be proven in support of the complaint. Sigrah v. Moses, 24 FSM R. 316, 326 (Pon. 2023)
In addition to a statement of a jurisdictional basis, a pleading's minimum requirement is that there be a short and plain statement of the claim showing that the pleader is entitled to relief, and a demand for judgment for the relief the pleader seeks. Sigrah v. Moses, 24 FSM R. 316, 326 (Pon. 2023).
The rules of pleading are informal and flexible, and a pleading need only set forth a short and plain statement of the wrong alleged based on the facts asserted. Even if a legal theory is advanced, it does not have to be the correct one and a claimant does not have to set out in detail the facts on which the claim for relief is based, but must provide a statement sufficient to put the opposing party on notice of the claim. Sigrah v. Moses, 24 FSM R. 316, 326 (Pon. 2023).
That a petition contains erroneous or incomplete citations does not render the petition subject to dismissal. Sigrah v. Moses, 24 FSM R. 316, 326 (Pon. 2023).
If the complaint shows that the plaintiff is entitled to any relief which the court can grant, regardless of whether it asks for the proper relief, the complaint is sufficient. Sigrah v. Moses, 24 FSM R. 316, 326 (Pon. 2023).
Since, whether or not further relief is or could be sought, the court may declare the rights and other legal relations of any interested party seeking such declaration, the petition withstands the motion to dismiss when it seeks relief in the form of declaratory and injunctive relief and, at a minimum, sets forth a basis for declaratory judgment, and when it seeks a declaration as to whether Congress violated the petitioners' rights in refusing to seat a member-elect, which is relief that would be available if the facts in the petition are found true. Sigrah v. Moses, 24 FSM R. 316, 326 (Pon. 2023).
* * * *
DENNIS L. BELCOURT, Associate Justice:
Petitioners ask this Court to grant relief to them for the action of the FSM Congress ("Congress" or "Respondents"), in its sole authority to judge the qualifications of its members, in refusing to seat to Petitioner Yoslyn G. Sigrah, based on alleged character or conduct that does not relate to the qualifications of office set forth in the FSM Constitution and statutes.
Whether this Court may do so is before this Court on the motion of Esmond B. Moses, in his official capacity as Speaker and the 23rd Congress of the FSM,2 to dismiss based on the political question doctrine, failure to state a claim, and failure to properly serve the summons and petition.
As I conclude that the FSM Congress's authority as sole judge of its members' qualifications only extends to qualifications enumerated in the Constitution or statute, this Court's authority to review and grant relief is not barred by the political question doctrine. I find that the other grounds—insufficiency of service and failure to state a claim for relief—do not warrant dismissal. I therefore deny the motion to dismiss.
The verified petition ("the Petition") initiating this proceeding was filed on October 2, 2023. It alleges in pertinent part as follows
1. That Petitioner Yoslyn G. Sigrah ("member-elect Sigrah") petitioned the National Election Office to run for the 4-year congressional seat for Kosrae State in the special election to be held July 4, 2023, Compl. ¶ 7;
2. That she was found eligible to run for Congress by the FSM National Election "Commission" having satisfied the Constitutional and statutory requirements of age, residency, citizenship, lack of a judgment of mental incompetency, and lack of a felony conviction, Compl. ¶ 8;
3. Member-elect Sigrah was one of nine candidates on the ballot in Kosrae, Compl. ¶ 9;
4. That Co-Petitioners J. Sigrah, M. Sigrah, and F. Hein cast their votes in the July 4, 2023 special election for member-elect Sigrah, Compl. ¶ 10;
5. That member-elect Sigrah was certified on July 10, 2023 to have won the plurality of votes, which outcome was not challenged, appealed or voided by a court, Compl. ¶ 11;
6. That the results were recertified in August and September 2023, Compl. ¶ 12;
7. That a credentials committee was appointed at a special session of Congress convened on July 10, 2023, Compl. ¶ 13;
8. That the credentials committee submitted a report to Congress on September 28, 2023, attached to the Petition as Exhibit A. Compl. ¶ 19. The report,
a. Concerned Senator-elect Fabian Nimea, from the State of Chuuk and Senator-elect Yoslyn Sigrah from the State of Kosrae, Ex. A, at 2;
b. Stated that the July 10, 2023 certification of the Election Director reported Yoslyn Sigrah as the winning candidate for the Kosrae and Fabian Nimea as the winning candidate for the Chuuk at-large seat, although ballots from five (5) polling locations in Chuuk had not been counted, Ex. A, at 2;
c. Referred to litigation concerning Constitutional amendments on the ballot and concerning the Chuuk at-large race, Ex. A, at 2-4;
d. Noted that the Office of National Election certified both members-elect met the eligibility requirements under Art. IX, § 9, Ex. A, at 5;
e. Found no felony convictions or pardons thereof, but noted character and fitness concerns with respect to Ms. Sigrah, namely a March 2021 misdemeanor offense for malicious mischief, a Pohnpei Supreme Court subpoena issued against her on January 13, 2016 involving an alleged assault for biting a police officer, a suspension of her from the practice of law by the FSM Supreme Court, for which she had not yet been reinstated, a Kosrae State suspension from the practice of law, later vacated on appeal; and an admonishment in an FSM Supreme Court order for a false statement made to the court regarding a certificate of service and other court submissions, Ex. A, at 6-9;
f. Delving into her the details of the basis for her FSM Supreme Court suspension, noted that she had willfully violated a Court order, mishandled third party funds, and created a conflict of interest between her clients, Ex. A, at 7;
g. Concluded that her conduct or allegations thereof "drew into question her capacity to abide by the oath of office and responsibilities as a member of Congress," finding that "Yoslyn Sigrah is not qualified to be seated as a member of the Twenty-third Congress," Ex. A, at 9;
h. Does not "recommend the credentials of member-elect Yoslyn Sigrah be accepted and recommends the member-elect not be permitted to take the oath of office," Ex. A, at 9.
9. That the credential committee's report was adopted on a voice vote on ayes and noes, i.e., not by roll call or raising of the hands, Compl. ¶ 24.
10. That on the next session day, September 29, 2023, Speaker Moses declared a vacancy, Compl. ¶ 25;
11. That member-elect Sigrah met the Constitutional and statutory requirements, Compl. ¶¶ 31 and 33;
12. That Congress did not prescribe by statute that character is a qualification for eligibility for election, Compl. ¶¶ 31 and 33;
13. That declaratory relief be granted, as controversies exist as to whether a Special Election must be done, and whether "the powers under Article IX, 17(a) are absolute" or "must still be in conformity with Article IX, Section 9 and 9 F.S.M.C. [section] 201," Compl. ¶ 35;
14. That "[t]he Congress as a body must correct its unfounded decision by accepting the" choice of the People of Kosrae, Compl. ¶ 36;
15. That "Respondents Moses and Lambert must be temporarily enjoined from conducting any Special Election . . . "until the determination by the judiciary of the legal issues in this declaratory matter," Compl. ¶ 37;
16. That co-petitioners Jason Sigrah, Maruko Sigrah, and Fiona Hein cast their votes in the election for Ms. Sigrah, and Congress "deliberately and without following the law . . . refused to seat Kosrae's choice of representative, denying those petitioners their rights under the law," Compl. ¶¶ 39-41.
The Petition prays for declaratory judgment that Congress violated the Constitution and statute when it exceeded its powers by deciding not to seat Ms. Sigrah; "declaratory judgment that the constitutional and statutory rights of the Respondents are [sic] registered voters in Kosrae were violated . . . thereby entitling them to damages"; that Ms. Sigrah be seated, and for injunctive relief against "carrying on the effect of not seating" Ms. Sigrah; damages, and attorney fees.
Concurrently with the Petition, petitioners filed an Application for a Temporary Restraining Order and Motion for Preliminary Injunction. The relief requested is stopping the Speaker from declaring a vacancy, stopping Congress from funding any special election and stopping the Election Director from conducting a special election until the merits are decided.
On October 9, 2023, Respondents filed a Motion to Dismiss with Prejudice the Petition for Declaratory Relief and Injunctive Relief, based on FSM Rule of Civil Procedure 12(b)(1), lack of subject matter jurisdiction, on the political question doctrine (nonjusticiability), and that for the Court to order Ms. Sigrah to be seated would be a violation of the doctrine of separation of powers. Respondents further contend that the Petition fails to state a claim for relief and is subject to dismissal under FSM Rule of Civil Procedure 12(b)(6), and, finally, that service on Congress's receptionist was noncompliant, because she was not authorized to accept service, and therefore the complaint should be dismissed for insufficiency of service under FSM Rule of Civil Procedure 12(b)(5).
Also on October 9, 2023, Respondents filed an opposition to Petitioners' Application for a Temporary Restraining Order, while Respondent Election Director, Ausen Lambert, represented by the FSM Department of Justice, filed an opposition to the Application for a Temporary Restraining Order and the Motion for Preliminary Injunction.
On the same date, the Court held a pretrial hearing orally setting deadlines for filings, and, on October 10, 2023, issued a written order setting a schedule for the parties to file oppositions and replies to motions, including the motion to dismiss; this written order was followed by an October 13, 2023 order setting a hearing date for October 23, 2023 on the motion to dismiss and motion for summary judgment.
Approximately an hour later on October 13, 2023, Petitioners filed an amended petition, an opposition to Speaker's Motion to Dismiss, and a reply to the oppositions for temporary restraining order.3 The amended Petition adds a third cause of action, alleging violations of constitutional rights, i.e., due process, equal protection, right to vote, freedom of expression, and of Article IX, Section 701(a) of the FSM Constitution [sic].
On October 23, 2023, this Court heard argument on Respondents' motion to dismiss. Arguing for Respondents was Yolanda C. Rondon, Staff Attorney, and arguing for Petitioners was Kathleen M. Burch.
Respondents' motion to dismiss asserts three bases for dismissing the Petition, which I will address in the following order: (1) sufficiency of service, FSM Civ. R. 12(b)(5), (2) nonjusticiability under the political question doctrine, FSM Civ. R. 12(b)(1), and (3) failure to state a claim, FSM Civ. R. 12(b)(6).
Sufficiency of Service
Respondents claim that service on Speaker Moses is insufficient, as the summons and petition were left with a receptionist with Congress. They do not cite to any law or rule supporting this claim. Rather, they cite Puchonong v. Chuuk, 14 FSM R. 67, 69 (Chk. 2006), which only supports the proposition that failure to include a summons with the complaint in a civil action means that service is insufficient and the complaint may be dismissed or service quashed. Id. At hearing, Respondents tenaciously adhered to the contention that the Speaker could not be served through a receptionist.
Service upon an officer may be had "by serving the National Government of the Federated States of Micronesia and by delivering a copy of the summons and the complaint" to the officer. FSM Civ. Rule 4(b)(5). Fuji Enterprises v. Jacob, 20 FSM R. 121, 127 (Pon. 2015). It suffices when a copy of the summons and complaint are delivered to the Attorney General and the named officer personally or by leaving copies thereof at their dwelling house or usual place of abode or of business with some person of suitable age and discretion then residing or employed therein. See FSM Civ. R. 4(d)(1).
Returns of Service on file in this matter show that the summons and complaint was delivered both to the Attorney General (i.e., Department of Justice) and Speaker Moses, by leaving copies with persons of suitable age and discretion. Accordingly, Respondents' motion to dismiss made under FSM Rule of Civil Procedure 12(b)(5) is denied.
Nonjusticiability/Political Question Doctrine
Respondents contend that this Court should dismiss the Petition under the political question doctrine on the grounds that there is no case or dispute as required under Article XI, section 6(a) of the FSM Constitution as the Constitution commits the determination of who will be seated solely to Congress and does not leave any part of that to the judicial branch. In other words, according to this contention, it would be a violation of separation of powers for this Court to rule on whether Congress should have seated member-elect Sigrah.
I determine that this Court that this matter is justiciable, because, as alleged by the Petition, the FSM Congress relied on a qualification–Member–elect Sigrah's character–which was not set forth either in the Constitution or a statute as a qualification for Congress, in denying her a seat in the FSM Congress. The political question doctrine therefore does not apply.
As noted, Respondents rely on the political question doctrine to contend that this Court lacks jurisdiction. That doctrine became part of FSM jurisprudence in Aten v. National Election Comm'r (III), 6 FSM R. 143 (App. 1993) ("Aten"). In Aten, the Appellate Division of this Court granted Chuuk Congressional District Four candidate ordered a revote, but the FSM Congress went ahead and seated candidate Aten's opponent unconditionally. Citing section 17(a) of Article IX of the Constitution, which states that Congress is the "sole judge of the elections . . . of its members," the Aten Court then declared the matter nonjusticiable and dismissed the appeal, Id. at 145-46, stating that "there is a textually demonstrable commitment of the issue to a coordinate branch of government. Congress is the 'sole judge of the elections of its members.'" Id. at 145 (citations omitted). It is a separation of powers issue, left solely to Congress. Id.
Petitioners point to Powell v. McCormack, 395 U.S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969) ("Powell"). Notably, Aten had relied on Powell, a United States election decision, when it imported the political question doctrine. Aten, 6 FSM R. at 145. Thus, it would be appropriate for this Court to look to Powell in determining the contours and limits of the political question doctrine for the Federated States of Micronesia. I find that Powell is on point and supports Petitioner's position.
In Powell, the U.S. Supreme Court examined the U.S. House of Representatives' decision excluding member-elect Powell based on a qualification not set forth in the U.S. Constitution. Id. at 549-50, 89 S. Ct. at 1978-79, 23 L. Ed. 2d at 532-33. Unlike Aten, the Powell court was not asked to question the House of Representative's sole authority to judge member-elect Powell's age, citizenship or residency, as those standing qualifications were found not at issue. Id. at 492, 89 S. Ct. at 1947, 23 L. Ed. 2d at 500. Rather, the Powell Court found that the political question doctrine only applied as a bar to judicial review of determinations of qualifications set forth in the Constitution. Id. at 548-49, 89 S. Ct. at 1978, 23 L. Ed. 2d at 532. To rephrase, the political question doctrine does not insulate from judicial review the exclusion of a member-elect if the House for qualifications not set forth in the U.S. Constitution.
Respondents argue that following Powell would be a violation of the judicial guidance clause. This contention does not survive analysis. In Aten, this Court adopted foreign decisional authority in the form of the political question doctrine. Powell's ultimate holding limits application of that decisional authority. Were this Court to reject Powell outright, solely because it is U.S. caselaw, it would be giving the decisional authority a broader effect than the U.S. gives that authority. The more appropriate exercise is to examine FSM constitutional language as the guide to determine whether the Powell has application to the FSM Constitution.4
FSM law is different from U.S. law in that while the FSM Constitution establishes baseline qualifications for its members in its Constitution, Article IX, section 9,5 it allows the FSM Congress to "prescribe additional qualifications" for members. This the FSM Congress has done in 9 F.S.M.C. 201. Thus, there are two sources of qualifications for members of the FSM Congress.
In this matter, member-elect Sigrah pins her challenge on the allegation that the FSM Congress refused to seat her on a basis—character—not set forth in either the Constitution or in statute.
Contrary to the Respondents' contention, the process under the FSM Constitution for creating additional qualifications is not unfettered: additional qualifications must be "prescribed," which means they must be set forth in statute. In fact, it was the intention of the drafters of the FSM Constitution that "prescribe" be shorthand for "by statute").6 The enactment of a statute is a legislative act and must be by bill, passed on two readings, one by a vote of ten members and the second by two-thirds vote of the state delegations, and subject to Presidential veto. FSM Const. art. IX, § 20; Congress v. Pacific Food & Servs., Inc., 17 FSM R. 542, 547 (App. 2011) (fishing access agreements approval by Congress requires either treaty or a bill).
Another difference between the U.S. and FSM Constitution pointed to by Respondents is that the U.S. Constitution refers to each house as the "Judge of the Qualifications of its members." U.S. Const. art. I, § 5. On the other hand, the FSM Constitution, Article IX, section 17(a), makes the FSM Congress the "sole judge of the . . . qualifications of its members" (emphasis added). The word "sole" in section 17(a) does not modify the legislative function in section 9 of deciding on additional qualifications for members of Congress, and thus it does not operate as a grant to the FSM Congress of untrammeled authority to establish additional qualifications. The authority to add qualifications is legislative, as set forth in section 9, and cannot be exercised other than by passing a bill.
Thus, while FSM law is different from U.S. law, the differences for purposes of this case are not significant. There is no contention herein that the FSM Congress has enacted legislation prescribing character as a qualification. The decision to refuse to swear in member-elect Sigrah appears from the Petition to have been ad hoc. Therefore, judicial review of member-elect Sigrah's alleged exclusion based on character issues, just as was exclusion of member–elect Powell, is not barred by the political question doctrine.
Respondents' view is that holding that Congress lacked authority to consider qualifications not enumerated in either the Constitution or statute would render Article IX, section 17(a) hollow. In order to avoid this, the meaning Respondents would attribute to the grant in Article IX section 9 to Congress of authority to prescribe additional qualifications is that these qualifications concern "eligibility to run for election," and that Article IX section 9 does not cede ultimate authority to determine whether to seat on whatever qualifications Congress sees fit, even if not enumerated in the Constitution or statute. An example given at hearing by Congress Respondent was if a pedophile who had not been convicted of a felony were elected.
Respondents' effort to distinguish section 9 and 17(a) is not persuasive, as it attaches a limited meaning to the word "qualification" in section 9 and a more expansive meaning to section 17(a). "Qualifications" as referred to in Article IX, section 9 should have the same meaning as that same term in section 17(a). See Faw v. FSM, 6 FSM R. 33, 35 (Yap 1993) ("It would be illogical and contrary to norms of constitutional interpretation to assume a different meaning"). There is simply no textual basis for "qualifications" carrying the meaning "eligibility to run for office" in section 9 and another meaning e.g., "eligibility to take office," in section 17(a).7 On the contrary, Respondents' interpretation would lead to the odd result that a person without knowledge of the English language would not be "ineligible to run for office" but could be denied a seat based on his or her lack of knowledge of English.
A difference between the sections themselves that does not contort the meaning of "qualification" is as follows: section 9 addresses qualifications enumerated therein and the addition by statute of qualifications, while 17(a) addresses adjudication of the qualifications so enumerated or added. An interpretation of 17(a) that limits Congress's adjudication of qualifications to those specific qualifications set forth in the Constitution or statute does not rob section 17(a) of meaning—Congress retains primacy in adjudging those qualifications—it is the final decision-maker—but cannot add more except by statute.8 Thus, Congress's determination whether a member-elect is compliant with the requirement that he or she "not be under a judgment of mental incompetency or insanity" is final.
In summary, the plain text of the FSM Constitution (with one clarifying reference to the ConCon Journal discussion on "prescribed") commits solely to Congress's consideration only qualifications that are enumerated therein or enacted by statute. The Petition alleges and Respondents concede9 that the FSM Congress refused to seat Ms. Sigrah on a basis not among those enumerated in either the FSM Constitution or statute. Therefore, this Court is not barred by the political question doctrine from reviewing that decision.
Respondents' motion to dismiss based on the political question doctrine, FSM Rule of Civil Procedure 12(b)(1), is denied.
Failure to State a Claim
Respondents argue for dismissal of the Petition or various components thereof, based on FSM Rule of Civil Procedure 12(b)(6), failure to state a claim. That provision states that the following defense "may at the option of the pleader be made by motion: . . . (6) failure to state a claim upon which relief can be granted."
A court evaluates a Rule 12(b)(6) motion to dismiss only on whether a plaintiff's claim has been adequately stated in the complaint, and does not resolve the facts or merits of the case. A court's review is limited to the complaint's contents and the court must assume the facts alleged therein are true and view them in the light most favorable to the plaintiff. Dismissal can only be granted if it appears to a certainty that no relief could be granted under any facts which could be proven in support of the complaint. Ambros & Co. v. Board of Trustees, 11 FSM R. 17, 24 (Pon. 2002) (emphasis added).
Petitioners initially alleged only two claims for relief: declaratory relief and violation of rights to choose Congress members under various not well–identified provisions of the Constitution and statutes. Petitioners also sought preliminary injunctive relief (or restraining order) to prevent a second election from being held, as well as a permanent injunction of that second election, among other things. In their amended petition, Petitioners allege violations of due process rights, equal protection of the law, right to vote, as well as statutory rights.
It would seem that the Third Cause of Action is for the most part duplicative of the Second, although it is slightly more explanatory.
In analyzing pleadings for sufficiency, a minimum requirement in addition to a statement of a jurisdictional basis, is that there be "a short and plain statement of the claim showing that the pleader is entitled to relief, and . . . a demand for judgment for the relief the pleader seeks." FSM Civ. R. 8(a). This Court has stated that "[o]ur rules of pleading are informal and flexible, and a pleading need only set forth a short and plain statement of the wrong alleged based on the facts asserted. Even if a legal theory is advanced, it does not have to be the correct one and a claimant does not have to set out in detail the facts on which the claim for relief is based, but must provide a statement sufficient to put the opposing party on notice of the claim. Adams v. Island Homes Constr., Inc., 11 FSM R. 445, 449 (Pon. 2003).
Using the foregoing test, I find that the Petition, as originally pled and as amended, states the facts upon which she claims a right to relief with sufficient specificity to put Respondents on notice of the claim. Member–elect Sigrah and her co–petitioners claim their rights under the FSM Constitution and statutes were violated by Congress's refusal to seat her, which refusal to seat was wrongful because it was on a basis not set forth in the Constitution or statute. The fact that the Petition contains erroneous or incomplete citations (e.g., to "Article XI, Section 701(a)) of the Constitution") does not render the Petition subject to dismissal.
Moreover, "[i]f the complaint shows that the plaintiff is entitled to any relief which the court can grant, regardless of whether it asks for the proper relief, the complaint is sufficient." Semwen v. Seaward Holdings, Micronesia, 7 FSM R. 111, 114 (Chk. 1995) (citation omitted).
The Petition seeks relief in the form of declaratory and injunctive relief, and, apparently, damages. At a minimum, it sets forth a basis for declaratory judgment pursuant to 6 F.S.M.C. 1501, which provides for such relief "[i]n a case of actual controversy," the court10 "may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought."
The Petition seeks a declaration as to whether Congress violated Petitioners' rights in refusing to seat member-elect Sigrah, which is relief that would be available if the facts in the Petition are found true. On the facts alleged, damages would also be available, on a civil rights claim. 11 F.S.M.C. 701(3).11 Thus, as some relief may be had on the facts alleged, the Petition withstands the motion to dismiss.
The motion to dismiss is denied because (1) service was sufficient, (2) review and relief of the Petitioners, as alleged in the petition, are not barred by the political question doctrine, and (3) the Petition sufficiently alleges facts supporting a claim upon which relief may be granted.12
_______________________________Footnotes:
1 Amending Order Denying Motion to Dismiss, entered October 26, 2023.
2 The suit against the Speaker is in his official capacity, which means that Congress itself is being sued. See, e.g., Herman v. Bisalen, 16 FSM R. 293, 295-96 (Chk. 2009) (a suit against an officer in his or her official capacity is treated as a claim against the entity that employs that officer). Given this, the naming of both Speaker Moses and the 23rd Congress (if the numbered Congress is in fact a separate entity) is redundant.
3 Pursuant to this Court's order dated October 10, 2023, these pleadings were due by 3 pm on October 13, 2023. They were filed later that afternoon, with a motion to enlarge time, which is hereby granted.
4 Respondents contend that Powell is inapplicable because it is grounded in the history of the U.S. Constitution. That contention ignores that Aten, which introduced the political question doctrine to the FSM and which is the basis for Respondents' motion, did so because of constitutional provisions the FSM had "borrowed" from the U.S., making that doctrine relevant to the FSM. Aten (III), 6 FSM R. at 145. Moreover, there do not appear to be any FSM sources that would support a different result from application of Powell herein.
5 A person is ineligible to be a member of Congress unless he is at least 30 years of age on the day of election and has been a citizen of the Federated States of Micronesia for at least 15 years, and a resident of the state from which he is elected for at least 5 years. A person convicted of a felony by a state or national government court is ineligible to be a member of Congress. The Congress may modify this provision or prescribe additional qualifications; knowledge of the English language may not be a qualification.
A person is ineligible to be a member of Congress unless he is at least 30 years of age on the day of election and has been a citizen of the Federated States of Micronesia for at least 15 years, and a resident of the state from which he is elected for at least 5 years. A person convicted of a felony by a state or national government court is ineligible to be a member of Congress. The Congress may modify this provision or prescribe additional qualifications; knowledge of the English language may not be a qualification.
FSM Const. art. IX, § 9 (emphasis added).
6 As stated in the Journal of the 1975 Convention,
There are many instances throughout the Constitution where Congress is authorized to "provide by law" for various things. In some instances it seemed clear to your Committee that the intention was that Congress should enact a statute. In other instances a broader grant of power was intended and Congress could delegate the power to an administrative agency created by it, or assign the power to the executive branch. To distinguish these two, your Committee used the phrase "prescribe by statute" where a statute was intended and the phrase "provide by law" when a broader power was intended. In some instances your Committee used a shorthand method, using "prescribe" to indicate that a statute was intended, and "provide" for the broader grant.
SCREP No. 67, II J. of Micro. Con. Con. 891, 892. SCREP No. 67, from the Committee on Style and Arrangement, was a report on the final version of the draft Constitution. It was accepted by the Convention on November 8, 1975, and the draft Constitution was then approved. I J. of Micro. Con. Con. 557.
7 This Court interprets Congress's authority under Article IX, section 9 to prescribe additional qualifications to mean that, but for that provision, Congress would be limited to the Constitutionally enumerated qualifications, as it is in other constitutions. See Robert v. Chuuk State House of Representatives, 6 FSM R. 260, 264 (Chk. S. Ct. Tr. 1993) ("[t]he Chuuk State Legislature is limited to considering only those qualifications that are explicitly listed within the Chuuk State Constitution") and Chipen v. Election Comm'r of Losap 10 FSM R. 15, 18 (2001) (ordinance adding educational requirements for mayor and assistant mayor violates equal protection as guaranteed by FSM Constitution).
8 Likewise, the Credential Committee, while not a Constitutional organ, would also have a role as sole judge in Congress's determination of eligibility to take office.
9 Counsel for Congress admitted at hearing that member–elect Sigrah met all of the qualifications enumerated in the Constitution and statute–age, residency, citizenship, lack of felony convictions, and not under a judgment of mental incompetency. As noted, Counsel considers those qualifications "eligibility requirements" for running for office, not qualifications to be seated.
10 While 6 F.S.M.C. 1501 is a Trust Territory Code carryover, it retains its validity and has been applied by the FSM Supreme Court. Pohnpei Chamber of Commerce v Nett Mun. Gov't, 1 FSM R. 389, 399-400 (Pon. 1984).
11 There may also be a right to injunctive relief to what, as alleged, would be the ministerial act of seating member-elect Sigrah. See Davis v. Kutta, 10 FSM R. 98, 99 (Chk. 2001). In the context of the motion to dismiss, this Court need not decide on whether it will issue an injunction, as it finds some relief available.
12 Respondent argues that this Court must ignore the amended Petition, which added the third cause of action, citing Sipos v. Crabtree, 13 FSM R. 355, 367 (Pon. 2005). In that case, the plaintiff asked at oral argument on a motion to dismiss that if the court was going to grant the motion, he be given leave to amend. The Court, noting that the plaintiff did not need to obtain leave to amend, because the motion to dismiss was not a responsive pleading, noted that plaintiff did not amend as a matter of right for over a year, stating "[h]e chose not to do so. The court will therefore not grant him leave to do now what he has had the opportunity to do for over a year." Id. Sipos does not stand for the proposition Respondents would have it say, that setting a motion to dismiss for oral argument forecloses the Petitioner's leave to amend as of right.
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