FSM SUPREME COURT TRIAL DIVISION
Cite as Sigrah v. Moses 24 FSM R. 349 (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
ORDER DENYING MOTION FOR STAY PENDING APPEAL
Dennis L. Belcourt
Associate Justice
Decided: November 20, 2023
APPEARANCES:
For the Petitioners:
Salomon M. Saimon, Esq.
P.O. Box 911
Kolonia, Pohnpei, FM 96941
Kathleen M. Burch, Esq.
P.O. Box 1365
Koror, Palau PW 96940
For the Respondent:
Yolanda Rondon, Esq.
(Speaker)
Congress Staff Attorney
P.O. Box PS-3
Palikir, Pohnpei FM 96941
For the Respondent:
Josephine Leben James, Esq.
(Lambert)
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941
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A stay is obtained by "an appellant," and when the party seeking the stay is not an appellant because thus far the only appeal taken was by a different party, the party seeking a stay lacks standing under FSM Rule of Civil Procedure 62(d) to request a stay. Sigrah v. Moses, 24 FSM R. 349, 351 (Pon. 2023).
There are four factors to weigh before granting a stay pending appeal: 1) whether the appellant has made a strong showing that he is likely to prevail on the merits of the appeal; 2) whether the appellant has shown that without the stay he will be irreparably harmed; 3) whether issuance of the stay would substantially harm other parties interested in the proceedings; and 4) whether the public interest would be served by granting a stay. Sigrah v. Moses, 24 FSM R. 349, 351-52 (Pon. 2023).
When a party has only asserted his likelihood of prevailing on the merits of the appeal, as a basis for a stay, but has not appealed the injunctive relief order sought to be stayed, he has dimmed his chances of success. Sigrah v. Moses, 24 FSM R. 349, 352 (Pon. 2023).
When Congress determined (or accepted the Executive Director's determination that a member-elect qualified on those bases expressly found in the FSM Constitution or added by statute, and when the member-elect had been illegally excluded from seating in Congress based on qualifications not found in the Constitution or statute, the Election Director's notification of a vacancy, which set the machinery for a November 21, 2023 election in motion, was based on the unconstitutional failure to seat the member-elect. Since there was no vacancy to fill, as the member-elect was entitled to seating, the election is unlawful and is an improper administration of Title 9, and enjoining the November 21, 2023 election's conduct was authorized by statute, which allows actions against the FSM for injunctions arising out of alleged improper administration of FSM statutes. Sigrah v. Moses, 24 FSM R. 349, 352 (Pon. 2023).
An action is a violation of separation of powers when it is an improper interference with or delegation of the independent power of a branch and when the alteration prevents or substantially impairs performance by the branch of its essential role in the constitutional system. Sigrah v. Moses, 24 FSM R. 349, 352 (Pon. 2023).
While the judiciary must resolve disputes legitimately placed before it, it may not usurp legislative functions by making declarations of policy or law beyond those necessary to resolve disputes nor undertake administrative functions of the kind normally consigned to the Executive Branch when this is not necessary to carry out the judicial function. The FSM Supreme Court is limited to adjudicating cases or disputes brought before it. Sigrah v. Moses, 24 FSM R. 349, 352 (Pon. 2023).
When the FSM Supreme Court is faced with a dispute whether an election could be conducted to fill a seat for a term to which a complainant before the court claimed to be entitled, rendering a decision to enjoin that election to avoid the seat's wrongful dispossession, is not interfering with the Executive Branch's essential role in executing the laws but is a proper judicial function, and it is unlikely that the Election Director will prevail based on his contention that the court lacks jurisdiction based on a violation of the separation of powers. Sigrah v. Moses, 24 FSM R. 349, 352-53 (Pon. 2023).
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DENNIS L. BELCOURT, Associate Justice:
This matter comes before this Court by virtue of the motion to stay pending appeal of Respondent Ausen Lambert, Election Director ("Election Director"). This Court denies the motion. My reasons follow.
The Election Director does not reference the appeal that is the basis for the stay, the only appeal of record from this matter known to the undersigned is an appeal that Respondent ESMOND MOSES, in his official capacity as the SPEAKER OF THE FSM CONGRESS, THE 23RD CONGRESS OF THE FEDERATED STATES OF MICRONESIA ("Congress") filed on November 9, 2023 from this Court's Order Granting Declaratory Relief entered on November 2, 2023 ("Declaratory Relief Order").
It is not the Declaratory Relief Order [Sigrah v. Moses, 24 FSM R. 327 (Pon. 2023)] that is the Election Director's point of concern, but rather a subsequent order, this Court's November 16, 2023, order granting injunctive relief [Sigrah v. Moses, 24 FSM R. 341 (Pon. 2023)] halting the November 21, 2023 election for the four-year seat in Congress for the State of Kosrae, that is the purpose for which the Election Director seeks a stay. The Election Director is contending that this Court lacks jurisdiction to enjoin that election.
The Election Director bases its request for a stay on FSM Rule of Civil Procedure 62(d):
Stay Upon Appeal. When an appeal is taken the appellant by giving a supersedeas bond may obtain a stay subject to the exceptions contained in subdivision (a) of this rule. The bond may be given at or after the time of filing the notice of appeal or of procuring the order allowing the appeal, as the case may be. The stay is effective when the supersedeas bond is approved by the court.
A stay is obtained by "an appellant." As noted above, the Election Director is not an appellant. Thus far the only appeal has been taken by Congress. Therefore, the Election Director lacks standing under FSM Rule of Civil Procedure 62(d) to request a stay.
Generally, there are four factors to weigh before granting a stay pending appeal: 1) whether the appellant has made a strong showing that he is likely to prevail on the merits of the appeal; 2) whether the appellant has shown that without the stay he will be irreparably harmed; 3) whether issuance of the stay would substantially harm other parties interested in the proceedings; and 4) whether the public interest would be served by granting a stay.
Department of Treasury v. FSM Telecomm. Corp., 9 FSM R. 353, 355 (App. 2000).
The Election Director has only asserted the first factor, the likelihood of prevailing on the merits of the appeal, as a basis for a stay. The Election Director has not appealed the injunctive relief order, dimming his chances of success.
Were he to do so, on the basis asserted, i.e., this Court's jurisdiction—or lack thereof—this Court concludes that he would not be successful.
In its Declaratory Relief Order [Sigrah v. Moses, 24 FSM R. 327 (Pon. 2023)], this Court found the November 21, 2023 election was based on a void declaration of a vacancy, as candidate Yoslyn Sigrah had been illegally excluded from seating in Congress based on qualifications, character and fitness, neither found in the FSM Constitution nor added by statute. FSM Const. art. IX, § 9; 9 F.S.M.C. 201. Further Congress determined (or accepted the Executive Director's determination that Ms. Sigrah qualified on those bases expressly found in those provisions.
This Court found that the notification of the Election Director of a vacancy, which set the machinery for the November 21, 2023 election in motion, was based on the unconstitutional failure to seat member-elect Sigrah. Since there is no vacancy to fill, as member-elect Sigrah is entitled to seating, the carrying out of title 9 of the FSM Code for an election is unlawful and is an improper administration of title 9. I concluded that injunctive relief against the National Election Director, the National Election Commissioner for Kosrae and election board members for Kosrae to enjoin the conduct of the November 21, 2023 election was authorized by statute, 6 F.S.M.C. 702, which reads in pertinent part as follows:
Actions upon the following claims may be brought against the Federated States of Micronesia. . . .
(2) Claims for damages, injunction, or mandamus arising out of alleged improper administration of statutory laws of the Federated States of Micronesia, or any regulations issued pursuant to such statutory laws.
An action is a violation of separation of powers when it "is an improper interference with or delegation of the independent power of a branch is whether the alteration prevents or substantially impairs performance by the branch of its essential role in the constitutional system." FSM v. Udot Municipality, 12 FSM R. 29, 48 (App. 2003).
Further, while the Judiciary must resolve disputes legitimately placed before it, it may not usurp legislative functions by making declarations of policy or law beyond those necessary to resolve disputes nor undertake administrative functions of the kind normally consigned to the Executive Branch where this is not necessary to carry out the judicial function. In re Sproat, 2 FSM R. 1, 4 (Pon. 1985). Thus, this Court is limited to adjudicating cases or disputes brought before it. Id. at 7.
The proper function of this Court is thus to decide disputes. This Court, faced as here with a dispute whether an election could be conducted to fill a seat for a term to which a complainant before the Court claimed to be entitled, rendering a decision to enjoin that election to avoid the wrongful dispossession of the seat, is not interfering with the Executive Branch's essential role in executing the laws but is a proper judicial function.
I therefore find that it is unlikely that the Election Director will prevail based on his contention that this Court lacks jurisdiction based on a violation of the separation of powers.
Because the Election Director lacks standing, has not made a strong showing that he will prevail, and has not made a favorable showing of the other factors1 for granting the stay, I hereby deny the motion to stay.
_______________________________Footnotes:
1 In granting the motion for preliminary injunction, this Court found all four factors in favor of the injunction.
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