FSM SUPREME COURT APPELLATE DIVISION
Cite as Moses v. Sigrah, 24 FSM R. 413 (App. 2024)
ESMOND MOSES, in his official capacity as the
Speaker of the FSM Congress, and THE TWENTY-
THIRD CONGRESS OF THE FEDERATED STATES
OF MICRONESIA,
Appellants,
AUSEN LAMBERT, National Election Director,
Appellant,
vs.
YOSLYN G. SIGRAH, JASON F. SIGRAH, MARUKO
T. SIGRAH, and FIONA AULIVIA HEIN,
Appellees.
APPEAL CASE NO. P6-2023
(Civil Action No. 2023-018)
APPEAL CASE NO. P8-2023
(Civil Action No. 2023-018)
OPINION
Argued: February 14, 2024
Submitted: February 26, 2024
Decided: March 15, 2024
BEFORE:
Hon. Larry Wentworth, Associate Justice, FSM Supreme Court
Hon. Cyprian Manmaw, Specially Assigned Justice, FSM Supreme Court*
Hon. Jayson Robert, Specially Assigned Justice, FSM Supreme Court**
*Chief Justice, State Court of Yap, Colonia, Yap
**Chief Justice, Chuuk State Supreme Court, Weno, Chuuk
APPEARANCES:
For the Appellants:
Daniel J. Rescue, Jr., Esq.
(Moses & Congress)
Ramp & Mida Law Firm
P.O. Box 790
Weno, Chuuk FM 96942
For the Appellant:
Josephine Leben James, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941
For the Appellees:
Salomon M. Saimon, Esq. (brief)
P.O. Box 911
Kolonia, Pohnpei, FM 96941
Kathleen M. Burch, Esq. (brief and argued)
P.O. Box 1365
Koror, Palau PW 96940
* * * *
A party may renew its motion when the previous denial of that motion was by a single justice because a single justice's action may be reviewed by the court. Moses v. Sigrah, 24 FSM R. 413, 420 (App. 2024).
When a motion to dismiss is based on the court's purported lack of jurisdiction to hear the appeal, the court will hear the motion because subject matter jurisdiction can be raised at anytime and, once raised, must be considered. Moses v. Sigrah, 24 FSM R. 413, 420 (App. 2024).
Rule 4(a)(2) makes many premature notices of appeal effective once a final judgment is entered because it provides that, except as provided in subsection (a)(4), a notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order must be treated as filed after such entry and on the day thereof. Moses v. Sigrah, 24 FSM R. 413, 420 (App. 2024).
Rule 4(a)(2) applies to Rule 54(b) judgments because a premature notice of appeal ripens upon the entry of a proper Rule 54(b) certification. Moses v. Sigrah, 24 FSM R. 413, 420 (App. 2024).
While the court must first look to FSM sources of law rather than start with a review of other courts' cases, when the court has not previously construed the interplay of FSM Civil Procedure Rule 54(b) and FSM Appellate Rule 4(a)(2), procedural rules which are identical or similar to their U.S. counterparts, it may look to U.S. sources for guidance in interpreting those rules. Moses v. Sigrah, 24 FSM R. 413, 420 n.2 (App. 2024).
A premature notice of appeal matures upon the entry of the Rule 54(b) certification. Moses v. Sigrah, 24 FSM R. 413, 420 (App. 2024).
If the November 2, 2023 declaratory judgment was not immediately appealable under 6 F.S.M.C. 1501 so that the November 9, 2023 notice of appeal was not effective when it was filed, that notice of appeal matured or ripened on November 28, 2023, when the Rule 54(b) certification of the declaratory judgment was entered, because a premature notice of appeal is treated as filed after such entry and on the day thereof. Moses v. Sigrah, 24 FSM R. 413, 421 (App. 2024).
The appellate division has jurisdiction to hear timely appeals from interlocutory orders of the FSM Supreme Court trial division granting injunctions. Moses v. Sigrah, 24 FSM R. 413, 421 (App. 2024).
As a general rule, in an interlocutory appeal of an injunction, the appellate court concerns itself only with the order from which the appeal was taken, and reviews other issues only if they are inextricably bound up with the injunction. When the injunction being appealed is inextricably bound up with an earlier declaratory judgment, the declaratory judgment is obviously also part of the appeal and thus subject to review. Moses v. Sigrah, 24 FSM R. 413, 421 (App. 2024).
Although the separation-of-powers doctrine enshrined in the Constitution, bars the FSM Supreme Court from legislating, the court has the ultimate responsibility in interpreting the law and in deciding what the law is. Moses v. Sigrah, 24 FSM R. 413, 421 (App. 2024).
The Constitution unmistakably places upon the judicial branch the ultimate responsibility for interpretation of the Constitution. It is the special province and duty of the courts, and the courts alone, to say what the law is. Moses v. Sigrah, 24 FSM R. 413, 421-22 (App. 2024).
The Constitution specifically provides that an act of the government in conflict with this Constitution is invalid to the extent of conflict. The FSM Supreme Court therefore has the power, when there is a proper case or dispute before it, to declare an act of government invalid to the extent that it is in conflict with the Constitution. Moses v. Sigrah, 24 FSM R. 413, 422 (App. 2024).
When it was alleged that Congress improperly relied on a qualification for Congress not set forth in or authorized by the Constitution, the FSM Supreme Court trial division has jurisdiction to determine whether that "qualification" was a "qualification" that Congress was the sole judge of, and thus, whether it could exercise jurisdiction over the matter. Moses v. Sigrah, 24 FSM R. 413, 422 (App. 2024).
The FSM Supreme Court always has jurisdiction to determine whether it has jurisdiction. Moses v. Sigrah, 24 FSM R. 413, 422 (App. 2024).
The Constitution provides that Congress shall be the sole judge of the elections and qualifications of its members, may discipline a member, and, by vote, may suspend or expel a member. Moses v. Sigrah, 24 FSM R. 413, 422 (App. 2024).
The political question doctrine provides that when the Constitution has a textually demonstrable commitment of an issue to a coordinate branch of government, it is a nonjusticiable political question not to be decided by the court because of the separation of powers provided for in the Constitution. Moses v. Sigrah, 24 FSM R. 413, 422 (App. 2024).
Once Congress has declared a candidate elected and has seated that candidate unconditionally, the court has no further role (or jurisdiction) in the election process. Moses v. Sigrah, 24 FSM R. 413, 422 (App. 2024).
When Congress is acting as the sole judge of the qualifications of its members, the qualifications of which Congress is the sole judge are those qualifications referred to in the Constitution's Article IX, Section 9. Moses v. Sigrah, 24 FSM R. 413, 423 (App. 2024).
When the Constitution uses the term "Congress may . . . prescribe" it means that Congress must enact a statute to exercise that power. Moses v. Sigrah, 24 FSM R. 413, 423 (App. 2024).
The constitutional and statutory qualifications for a person to be a Congress member are 1) being 30 years old by Election Day; 2) being a Resident of the State from which he or she is seeking election on Election Day and for at least five years prior to that date; 3) being an FSM citizen on Election Day and for at least 15 years prior to that date; 4) not being under a judgment of mental incompetency or insanity; and 5) not having been convicted of a felony by an FSM state or national court or a Trust Territory court. The only added qualifications prescribed by statute are that the member not be under a judgment of mental incompetency or insanity and that the member not have been convicted of a felony by a court of the predecessor government of the Trust Territory of the Pacific Islands. Moses v. Sigrah, 24 FSM R. 413, 423-24 (App. 2024).
As a norm of constitutional, or statutory, construction, a reference such as "this provision" refers to the immediate antecedent. Referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent. The last antecedent is the last word, phrase, or clause that can be made an antecedent without impairing the meaning of the sentence. Moses v. Sigrah, 24 FSM R. 413, 424 & n.7 (App. 2024).
The constitutional qualification for Congress membership that Congress may modify by statute is the provision making a convicted felon ineligible to become a member of Congress. Moses v. Sigrah, 24 FSM R. 413, 425 (App. 2024).
Congress does not have the constitutional authority to modify the qualifications for Congress membership except that it may, by statute, modify the felony conviction disqualification or add further qualifications other than knowledge of English. It may not add new qualifications, such as fitness and character, when judging the qualifications of certified winning candidates unless those new qualifications are enacted into law (prescribed) by statute before the candidate's election. Moses v. Sigrah, 24 FSM R. 413, 425 (App. 2024).
Congress, when exercising its power as the sole judge of the election and qualifications of its members, is limited to those qualifications expressed in the Constitution, FSM Const. art. IX, § 9, and added by statute, 9 F.S.M.C. 201, and may not add new qualifications or modify the felony disqualification without first enacting a statute. Moses v. Sigrah, 24 FSM R. 413, 425 (App. 2024).
When Congress, acting as the sole judge, found that a candidate had been elected to Congress and that she had the qualifications to be a Congress member that were expressed in the Constitution and that were added by statute, Congress could not, when ascertaining the candidate's character and fitness, find her unqualified to be a Congress member because character and fitness is not a constitutional or an added statutory qualification to be a Congress member. Moses v. Sigrah, 24 FSM R. 413, 425 (App. 2024).
When Congress considered the constitutional and the statutory qualifications that it is authorized to judge and found that the winning candidate met those qualifications, that Congressional adjudication cannot be questioned in court. Since the winning candidate was thus a member-elect who Congress had adjudged elected and qualified, the Speaker's declaration that theat congressional seat was vacant was unconstitutional. Moses v. Sigrah, 24 FSM R. 413, 425 (App. 2024).
When the appellate court's de novo review of the trial court's declaratory judgment revealed no errors of law, the declaratory judgment will be affirmed. Moses v. Sigrah, 24 FSM R. 413, 425 (App. 2024).
The issue of whether a trial court erred in issuing an injunction is reviewed using an abuse of discretion standard. Moses v. Sigrah, 24 FSM R. 413, 426 (App. 2024).
The traditional four factors a trial court must weigh when deciding whether to grant a preliminary injunction are: 1) the possibility of irreparable injury to the movant, 2) the likelihood of success on the merits of the party seeking injunctive relief, 3) the balance of possible injuries or inconvenience between the parties that would flow from granting or denying the relief, and 4) any impact on the public interest. The object of a preliminary injunction is to preserve the status quo pending the litigation on the merits. Moses v. Sigrah, 24 FSM R. 413, 426 (App. 2024).
When the trial court had already granted the plaintiff a declaratory judgment, the trial court could only reason that her likelihood of success in the trial court litigation was near certain. Moses v. Sigrah, 24 FSM R. 413, 426 (App. 2024).
Since the FSM has waived its sovereign immunity for claims for injunction arising out of alleged improper administration of FSM statutory laws and when the Speaker's declaration that the Kosrae four-year seat was vacant may not have been the improper administration of an FSM statute, but the enjoined special election was being conducted under the FSM election statutes, which were being improperly administered because their administration for the November 21, 2023 special election was a result of an unconstitutional act, the court had jurisdiction and the plaintiff's alleged injury was redressible. Moses v. Sigrah, 24 FSM R. 413, 426 (App. 2024).
* * * *
LARRY WENTWORTH, Associate Justice:
These two appeals, consolidated for oral argument and decision, both arise from a trial court declaratory judgment holding that Congress member-elect Yoslyn G. Sigrah should be administered the oath of office, and from a later injunction based on that decision. Because of these appeals' expedited nature and the trial court transcript's tardy completion, we allowed certain supplemental submissions, to be filed by February 26, 2024, after which we deemed the matter submitted to us for decision. We now affirm the trial court. Our reasons follow.
Yoslyn G. Sigrah was a candidate in the July 4, 2023 special election to fill the vacant four-year seat representing Kosrae in the Twenty-Third FSM Congress.1 She received a plurality of the votes cast, and the National Election Director certified her as the winning candidate. None of the eight other candidates contested that certification.
On September 28, 2023, the Congress Credentials Committee submitted a report, recommending that Sigrah not be seated because, although she met the constitutional and statutory qualifications to be a Congress member, she was, in the Committee's view, not qualified to be a member because of past misconduct while practicing law. Congress, relying on the constitutional provision that it was "the sole judge of the elections and qualifications of its members," FSM Const. art. IX, § 17(a), adopted the report and did not seat Sigrah. The Speaker then declared the seat vacant. A new special election was scheduled for November 21, 2023.
On October 2, 2023, Sigrah and three other Kosrae voters filed in the trial division a Petition for Declaratory Relief and Injunctive Relief against Congress Speaker Esmond Moses, the Twenty-Third FSM Congress, and National Election Director Ausen Lambert. The petitioners sought a declaratory judgment that Sigrah met all the constitutional and statutory qualifications and should be seated and, as needed, an order enjoining the scheduled November 21, 2023 special election. On October 13, 2023, they amended their petition to add a claim for violation of constitutional rights.
Speaker Moses and the Twenty-Third Congress moved to dismiss the petition based on the political question doctrine, the failure to state a claim, and improper or insufficient service of process. The trial court denied that motion on October 26, 2023, and on October 31, 2023, issued its Amended Order Denying Motion to Dismiss. Sigrah v. Moses, 24 FSM R. 316, 319 & n.2 (Pon. 2023).
After hearing, the trial court, on November 2, 2023, issued its Order Granting Declaratory Relief. Sigrah v. Moses, 24 FSM R. 327 (Pon. 2023). The trial court concluded that the Constitution's plain text committed to Congress's consideration only those qualifications "enumerated in the FSM Constitution or prescribed by statute," id. at 334, and that since Sigrah, as the Credentials Committee's report acknowledged, met all of those qualifications, all that remained was for Sigrah to be administered the oath of office, id. at 334-36. No judgment was entered. Sigrah was not administered the oath.
On November 9, 2023, Speaker Moses and the Twenty-Third FSM Congress appealed the November 2, 2023 decision. Their appeal was docketed as Appeal Case No. P6-2023. The Sigrahs moved to dismiss that appeal because it was not from a final decision, order, or judgment. A single appellate justice denied that motion. Moses v. Sigrah, 24 FSM R. 353 (App. 2023).
On November 14, 2023, Speaker Moses and the Twenty-Third Congress filed a petition (docketed as Appeal Case No. P7-2023) for a writ of prohibition, in which they sought to prohibit the trial court judge from enjoining the November 21, 2023 special election because, in their view, the trial court lacked the jurisdiction to rule on whether Sigrah should be seated and thus could not enjoin the special election.
On November 16, 2023, the trial court granted a preliminary injunction barring the National Election Director (and others) from conducting the November 21, 2023 special election, and, on November 17, 2023, amended that order. Sigrah v. Moses, 24 FSM R. 341 (Pon. 2023). The November 21, 2023 special election was not held. On November 24, 2023, the National Election Director, Ausen Lambert, appealed that decision. His appeal was docketed as Appeal Case No. P8-2023.
On November 28, 2023, the trial court entered its Order Directing Entry of Judgment Pursuant to FSM Rule of Civil Procedure 54(b), which, finding no just cause for delay, directed the clerk to enter a Rule 54(b) judgment on all the claims determined by the November 2, 2023 Order Granting Declaratory Relief. The clerk then entered a Judgment Pursuant to FSM Rule of Civil Procedure 54(b).
Appeal Cases No. P6-2023 and No. P8-2023 were consolidated for oral argument and decision. We then dismissed the petition for a writ of prohibition because it was moot as November 21, 2023 had passed without the election being held and because the petitioners had an adequate remedy at law since "[a]ny resolution of the consolidated appeals must directly address the jurisdictional issue they seek to resolve with their petition for a writ of prohibition." Moses v. Belcourt, 24 FSM R. 386, 391 (App. 2024).
The Twenty-Third Congress and its Speaker contend that the trial court erred:
1) because it lacked jurisdiction under the political question doctrine to even consider the issues raised in Sigrah's petition, and
2) because it lacked jurisdiction to fashion a remedy for Sigrah once it had issued its declaratory judgment.
The National Election Director Ausen Lambert contends that the trial court erred:
1) when it interpreted the Constitution's Article IX, Section 17(a);
2) when it interpreted the Constitution's Article IX, Section 9;
3) when it held unconstitutional the Speaker's declaration of a vacancy;
4) when it halted the November 21, 2023 special election;
5) by encroaching on the powers of the legislative and executive branches; and
6) when it issued the injunction.
The appellees cast the issues on appeal as:
1) whether the Constitution grants the Supreme Court the power to interpret and enforce the Constitution;
2) whether the Constitution's Article IX, Section 9 limits Congress's power to create qualifications to be a Congress member;
3) whether Congress's power to judge the qualifications of its members is limited to those explicitly listed in Constitution's Article IX, Section 9 and those enacted by statute; and
4) whether the Constitution's Article II, Section 1 was self-executing when it made invalid all acts of government, including those of Congress and the Executive, that are in conflict with the Constitution to the extent of the conflict.
We summarize the issues before us as:
1) whether the trial court had jurisdiction to consider if Congress could use the grounds it did to refuse to seat Yoslyn Sigrah as unqualified;
2) whether Congress could properly use the grounds it did to refuse to seat Yoslyn Sigrah as unqualified; and
3) if Congress could not, whether the trial court could halt the November 21, 2023 special election.
A. Over Appeal Case No. P6-2023
At the start of February 14, 2024 oral argument, the appellees renewed their motion to dismiss Appeal Case No. P6-2023 (the appeal by Speaker Moses and the Twenty-Third Congress) since the previous denial of that motion was by a single justice and "the action of a single justice may be reviewed by the court." FSM App. R. 27(c). Because the motion to dismiss was based on the court's purported lack of jurisdiction to hear the P6-2023 appeal and because subject matter jurisdiction can be raised at anytime and, once raised, must be considered, Ehsa v. FSM Dev. Bank, 23 FSM R. 514, 518 (App. 2022), we heard the parties' argument. We, however, reserved our decision, took the motion under advisement, granted the P6-2023 appellants leave to file a written opposition, and then heard argument on the appeals' merits. We now deny the motion to dismiss.
1. Parties' Contentions
The appellees contend that Appeal Case No. P6-2023 must be dismissed because the November 2, 2023 decision was, despite what 6 F.S.M.C. 1501 seems to say, not an appealable order since the trial court had not yet adjudicated their claims for injunctive relief and for damages, and therefore the P6-2023 notice of appeal was premature. The appellees argue that since 6 F.S.M.C. 1501 was drawn from a United States statute, and since, under FSM case law, when an FSM statute is drawn from another jurisdiction's statute, the FSM statute is deemed to be interpreted the same way, the November 2, 2023 declaratory judgment should not be appealable because the U.S. statute has been interpreted to mean that a declaratory judgment is not appealable when other claims and relief have not yet been adjudicated. The appellees further contend that, because the P6-2023 appellants did not file a new notice of appeal or an amended notice of appeal after the trial court's November 28, 2024 Rule 54(b) judgment, it is now too late for Congress and its Speaker to appeal the November 2, 2023 declaratory judgment.
The P6-2023 appellants contend that the renewed motion to dismiss should be denied because it was included in the appellees' response brief 61 days after it was initially denied, and not renewed by a written motion, and therefore should be estopped; and because the trial court's Rule 54(b) judgment made the November 2, 2023 declaratory judgment immediately appealable, if it had not already been, and that this was the obvious intent of the trial court's Rule 54(b) certification.
2. Ripening of Premature Notices of Appeal
FSM Appellate Procedure Rule 4(a)(2) makes many premature notices of appeal effective once a final judgment is entered. The rule provides that "[e]xcept as provided in (a)(4) of this Rule 4, a notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after such entry and on the day thereof." FSM App. R. 4(a)(2). The subsection 4(a)(4) provisions are not applicable to this case.
Appellate Rule 4(a)(2) applies to Rule 54(b) judgments. "[A] premature notice of appeal ripens upon the entry of a proper Rule 54(b) certification . . . ." Good v. Ohio Edison Co., 104 F.3d 93, 95 (6th Cir. 1997) (citing consistent cases from the majority of the other U.S. appellate circuits).2 Put another way, "the premature notice of appeal matures upon the entry of the Rule 54(b) certification." Kelley v. Michaels, 59 F.3d 1055, 1057 (10th Cir. 1995) (notice of appeal, filed 32 days after non-final order and 31 days before Rule 54(b) certification of that order, gave the appellate court jurisdiction without a further notice of appeal).
For example, in Brown v. Mississippi Valley State University, 311 F.3d 328, 332 (5th Cir. 2002), the appellate court had, at the appellant's request, remanded the case so that the premature appellant could obtain a trial court Rule 54(b) certification, which he then did. The Brown court held that, under Rule 4(a)(2), when, once the premature appellant had obtained "the appropriate Rule 54(b) certification on remand, at which point [the] initial notice of appeal matured," which meant that the appellant's "first notice of appeal was [now] timely, and the filing of a second notice was unnecessary." Brown, 311 F.3d at 332 (citations omitted). The result was similar in United States v. Hardage, 982 F.2d 1491 (10th Cir. 1993). In Hardage, the appellants filed a premature notice of appeal from an interlocutory order, and the appellate court gave them 30 days to obtain a Rule 54(b) certification or a final judgment or the appeal would be dismissed. It took the appellants over five months to obtain a Rule 54(b) certification but, since the appellate court had not dismissed the appeal before the Rule 54(b) certification was obtained, the appellate court ruled that no second notice of appeal was required because it had jurisdiction under Appellate Rule 4(a)(2), as of the date of the Rule 54(b) certification. id. at 1494-95 (citing Lewis v. B.F. Goodrich Co., 850 F.2d 641 (10th Cir. 1988) (en banc)).
Thus, even if the November 2, 2023 declaratory judgment was not immediately appealable under 6 F.S.M.C. 1501 so that the November 9, 2023 notice of appeal was not effective when it was filed, an issue which we do not now decide,3 that notice of appeal matured or ripened on November 28, 2023, when the Rule 54(b) certification of the declaratory judgment was entered, because a premature notice of appeal is "treated as filed after such entry and on the day thereof." FSM App. R. 4(a)(2). That being so, no new or second notice of appeal was needed for us to have jurisdiction over Appeal Case No. P6-2023. Brown, 311 F.3d at 332. The motion to dismiss that appeal is therefore denied. We consider Appeal Case No. P6-2023 on its merits.
B. Over Appeal Case No. P8-2023
National Election Director Ausen Lambert appealed the November 17, 2023 trial court decision enjoining the scheduled November 21, 2023 special election (Appeal Case No. P8-2023). We have jurisdiction to hear timely appeals "from interlocutory orders of the Federated States of Micronesia Supreme Court trial division granting . . . injunctions . . . ." FSM App. R. 4(a)(1)(B). We therefore have subject-matter jurisdiction to hear Appeal Case No. P8-2023.
As a general rule, in an interlocutory appeal of an injunction, we concern ourselves only with the order from which the appeal was taken, and review other issues only if they are inextricably bound up with the injunction. Iriarte v. Etscheit, 8 FSM R. 231, 235 (App. 1998). Since the order from which Lambert appeals is inextricably bound up with the November 2, 2023 declaratory judgment, the declaratory judgment is obviously also part of the P8-2023 appeal and thus subject to our review.
A. Justiciability
Although "[t]he separation-of-powers doctrine enshrined in the Constitution, bars the FSM Supreme Court from legislating[, t]he court has the ultimate responsibility in interpreting the law and in deciding what the law is." Dison v. Bank of Hawaii, 19 FSM R. 157, 161 (App. 2013) (footnote omitted) (citation omitted). "The Constitution unmistakably places upon the judicial branch the ultimate responsibility for interpretation of the Constitution . . . . It is the special province and duty of the courts, and the courts alone, to say what the law is . . . ." Pacific Foods & Servs., Inc. v. National Oceanic Res. Mgt. Auth., 17 FSM R. 181, 187 (Pon. 2010) (citation omitted), aff'd sub nom., Congress v. Pacific Food & Servs., Inc., 17 FSM R. 542, 548 (App. 2011).
The Constitution specifically provides that "[a]n act of the Government in conflict with this Constitution is invalid to the extent of conflict." FSM Const. art. II, § 1. The FSM Supreme Court therefore has the power, when there is a proper case or dispute before it, to declare an act of government invalid to the extent that it is in conflict with the Constitution. Thus, when it was alleged that Congress improperly relied on a qualification for Congress not set forth in or authorized by the Constitution, the trial court had jurisdiction to determine whether that "qualification" was a "qualification" that Congress was the sole judge of, and thus, whether it could exercise jurisdiction over the matter. The FSM Supreme Court always has jurisdiction to determine whether it has jurisdiction. Damarlane v. Pohnpei, 9 FSM R. 114, 119 n.4 (App. 1999).
B. Political Question Doctrine
The appellants contend that the trial court did not have a proper case or dispute before it because the Constitution provides that "Congress shall be the sole judge of the elections and qualifications of its members, may discipline a member, and, by vote, may suspend or expel a member," FSM Const. art. IX, § 17(a), so only Congress could decide if Sigrah was qualified to be a member.
The trial court relied on Powell v. McCormack, 395 U.S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969), in which the U.S. Supreme Court construed a similar clause in the U.S. Constitution, for the proposition that when Congress acts as the judge of its members election and qualifications, it is limited to judging only those qualifications set forth in the Constitution, or, as applied to the FSM Congress, those qualifications set forth in the FSM Constitution or prescribed by statute as authorized by the FSM Constitution.
The appellants rely on Aten v. National Election Commissioner (III), 6 FSM R. 143 (App. 1993) and the FSM cases that follow it, for the proposition that the trial court was barred by the political question doctrine from even considering whether Sigrah was qualified to be seated in Congress. The political question doctrine provides that "[w]hen the Constitution has a textually demonstrable commitment of an issue to a coordinate branch of government, it is a nonjusticiable political question not to be decided by the court because of the separation of powers provided for in the Constitution." Christian v. Urusemal, 14 FSM R. 291, 294 (App. 2006) (citing Aten (III), 6 FSM R. at 145)).
The appellants argue that we should rely on Aten (III), rather than Powell, since Aten (III) is an FSM case. Aten (III), and its progeny, were, however, all election cases, and stood for the proposition that once Congress had declared a candidate elected and seated that candidate unconditionally, the court has no further role (or jurisdiction) in the election process. None of those cases dealt with the qualifications of a candidate or a member-elect. They are not applicable.4
The only reported case in the FSM that analyzed a qualification clause, rather than an election clause, was Robert v. Chuuk State House of Representatives, 6 FSM R. 260 (Chk. S. Ct. Tr. 1993), in which the Chuuk State Supreme Court analyzed a similar "sole judge of the elections and qualifications of its members" clause in the Chuuk Constitution, Chk. Const. art. V, § 7(c). The Robert court, also relying on Powell v. McCormack, held that, when judging the election and qualifications of its members, the Chuuk Legislature was "limited to considering only those qualifications that are explicitly listed within the Chuuk State Constitution." Robert, 6 FSM R. at 264.
In Faw v. FSM, 6 FSM R. 33, 35 (Yap 1993), the court ruled that "[i]t would be illogical and contrary to norms of constitutional interpretation to assume a different meaning for "concurrent" in section 6(c) than in section 6(b), since it is quite clear that the two sections are to be read together." Similarly, in this case, it would be illogical and contrary to the norms of constitutional interpretation for the word "qualification" to have a different meaning in section 17(a) from the meaning in section 9, especially when it is obvious that the two sections must be read together.
We agree with both the trial court and the Robert state court that the Powell v. McCormack analysis accurately and properly reflects the meaning of the "sole judge of the . . . qualifications of its members" clause in Section 17(a).5 We therefore hold that the qualifications of which Congress is the sole judge are those qualifications referred to in the Constitution's Article IX, Section 9.
C. Qualifications of Members
1. Constitutional Qualifications
Section 9 sets out the qualifications for a Congress member. It provides that:
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. Section 9 permits Congress to prescribe additional qualifications besides those listed.
2. Statutory Qualifications
Congress can prescribe added qualifications by enacting a statute because, when the Constitution uses the term "Congress may . . . prescribe" it means that Congress must enact a statute to exercise that power. SCREP No. 67, II J. of Micro. Con. Con. 891, 892. The statutory qualifications for a Congress member are:
To be eligible for election as a Member of the Congress of the Federated States of Micronesia, a person shall:
(1) have attained the age of 30 years by Election Day;
(2) be a Resident of the State from which he or she is seeking election on Election Day and for at least five years prior to that date;
(3) be a citizen of the Federated States of Micronesia on Election Day and for at least 15 years prior to that date;
(4) not be under a judgment of mental incompetency or insanity; and
(5) not have been convicted of a felony by a State or National Court of the Federated States of Micronesia or its predecessor Government of the Trust Territory of the Pacific Islands.
9 F.S.M.C. 201. Thus, the only added qualifications prescribed by statute are that the member "not be under a judgment of mental incompetency or insanity," 9 F.S.M.C. 201(4), and that the member not have been convicted of a felony by a court of the predecessor government of the Trust Territory of the Pacific Islands,6 9 F.S.M.C. 201(5).
The Congress Credentials Committee, in its report adopted by Congress, acknowledged that Sigrah satisfied both the constitutional and statutory qualifications to be a Congress member.
3. "Modify this Provision" Clause
Lambert contends that phrase "Congress may modify this provision" means that Congress has the authority to change the qualifications for a Congress member at anytime and in any way, not just by statute. In other words, Lambert contends that Congress can add (and presumably subtract) a character and fitness requirement (or any other requirement other than the one specifically imposed by Section 9) every time it judges a new member's qualifications. We do not agree.
As a norm of constitutional, or statutory, construction, a reference such as "this provision" refers to the immediate antecedent, 2A NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 47.33, at 270 (5th ed. 1992),7 which in this case is the provision making a person convicted of a felony ineligible to be a Congress member. We explained this thoroughly in Robert v. Mori, 6 FSM R. 394 (App. 1994), thus:
The Constitutional Convention committee report states that the constitutional language "prohibits any person convicted of a felony by any court in Micronesia from election or appointment to the Congress, but allows room for the Congress by law to change this absolute prohibition." SCREP No. 36, II J. of Micro. Con. Con. 823, 845. The committee stated that the reason even pardoned persons were included in this absolute prohibition was because "[t]he Committee was wary of the executive pardon power, feeling that it might be abused by the executive branch for political purposes." id. It is thus clear that the framers chose this language because they intended to bar from membership in Congress even those receiving pardons.
The phrase "Congress may modify this provision" was included in section 9 of article IX because "the Committee felt that it should be left to the Congress itself to define circumstances under which a convicted felon might be eligible to become a member of Congress." id. The intent was "to make convicted felons ineligible for the time being, but to allow flexibility for Congress by law to provide future exceptions to such ineligibility." id. Congress thus has the power to modify "this absolute prohibition" by statute.
Robert, 6 FSM R. at 397-98 (footnote omitted). The Constitutional Convention was wary of the executive power to pardon congressional candidates because it knew the Trust Territory High Commissioner had pardoned a person, who had been convicted of a felony in a Trust Territory court, after he was elected to the Congress of Micronesia but before that body could judge his qualifications and so "[r]ather than giving to the executive the power to waive the [felony] limitation . . . it would now be left to the Congress by statute to determine whether constitutional disqualification may be modified or additional qualifications added." NORMAN MELLER, CONSTITUTIONALISM IN MICRONESIA 195-96 (1985).
4. Congress's Sole Power to Judge
Congress therefore does not have the constitutional authority to modify the qualifications for Congress membership except that it may, by statute, modify the felony conviction disqualification or add further qualifications other than knowledge of English. It may not add new qualifications, such as fitness and character, when judging the qualifications of certified winning candidates unless those new qualifications are enacted into law (prescribed) by statute before the candidate's election. Thus, Congress, when exercising its power as the sole judge of the election and qualifications of its members, is limited to those qualifications expressed in the Constitution, FSM Const. art. IX, § 9, and added by statute, 9 F.S.M.C. 201, and may not add new qualifications or modify the felony disqualification without first enacting a statute.
Congress, acting as the sole judge, found that Sigrah had been elected to Congress from Kosrae and that she had the qualifications to be a Congress member that were expressed in the Constitution and that were added by statute,8 but that, when ascertaining Sigrah's character and fitness, based on a detailed list of incidents of misconduct, found her unqualified to be a Congress member. Credentials Comm. Rep. at 6-9 (Sept. 28, 2023). Since character and fitness is not a constitutional or an added statutory qualification to be a Congress member, Congress cannot use this criteria when judging whether a Congress member-elect, such as Sigrah, is qualified.9
5. Declaratory Judgment Affirmed
When it considered the constitutional and the statutory qualifications that it is authorized to judge, Congress found that Sigrah met those qualifications. That Congressional adjudication cannot be questioned in court. Sigrah was thus a member-elect who Congress had adjudged elected and qualified. Accordingly, the Speaker's declaration that the four-year seat representing Kosrae was vacant was unconstitutional. Our de novo review of the trial court's declaratory judgment having revealed no errors of law, we therefore affirm the November 2, 2023 declaratory judgment.
D. Injunctive Relief
Lambert10 contends that the trial court erred in issuing a preliminary injunction barring the holding of the November 21, 2023 Kosrae special election. Broadly stated, Lambert claims this was error for two reasons. The first is that Congress's decision that Sigrah was unqualified was proper and unquestionable. We have just rejected that ground. The second is that the trial court, under the traditional four-factor analysis, should not have issued the injunction because an analysis of the factors would not favor its issuance. We review the issue of whether a trial court erred in issuing an injunction using an abuse of discretion standard. FSM v. Udot Municipality, 12 FSM R. 29, 52 (App. 2003).
The traditional four factors a trial court must weigh when deciding whether to grant a preliminary injunction are: 1) the possibility of irreparable injury to the movant, 2) the likelihood of success on the merits of the party seeking injunctive relief, 3) the balance of possible injuries or inconvenience between the parties that would flow from granting or denying the relief, and 4) any impact on the public interest, and the object of a preliminary injunction is to preserve the status quo pending the litigation on the merits. In re Gross Revenue Tax, 22 FSM R. 124, 127-28 (Pon. 2018).
We cannot say that the trial court misanalyzed those factors. Having already granted Sigrah a declaratory judgment, the trial court could only reason that Sigrah's likelihood of success in the trial court litigation was near certain. The November 17, 2023 preliminary injunction certainly maintained the status quo while the merits were litigated. The status quo was that Sigrah was the member-elect for the vacant four-year Kosrae seat. Sigrah was definitely faced with the possibility of irreparable injury because the November 21, 2023 special election, which had different number of candidates than the July 4, 2023 special election had, could result in a different certified winning candidate for the Kosrae seat. It is certainly not in the public interest to have two competing certified winning candidates for the same Congress seat. Lambert asserts that the National Election Office had, itself, suffered irreparable harm because it had expended funds in preparation of the November 21, 2023 special election that was enjoined. We note that the balance of injuries would have still favored Sigrah because not all of those expenditures would have been irretrievably lost if we had reversed the preliminary injunction; for instance, the preprinted ballots could be used.
Lambert also contends that the trial court did not have the authority to issue an injunction because 6 F.S.M.C. 702(2) waives the FSM"s sovereign immunity for "[c]laims for . . . injunction . . . arising out of alleged improper administration of statutory laws of the Federated States of Micronesia" and the Speaker's declaration that the Kosrae four-year seat was vacant did not have anything to do with any FSM statute. We must reject this contention. While the Speaker's declaration may not have been the improper administration of an FSM statute, the enjoined special election was being conducted under the FSM election statutes, which were being improperly administered because their administration for the November 21, 2023 special election was a result of an unconstitutional act. And, in this manner, Sigrah's injury is redressible.
Based on the foregoing, the trial court did not abuse its discretion when it granted the preliminary injunction. We therefore affirm its issuance.
Accordingly, we hereby affirm the trial court's November 2, 2023 declaratory judgment and its November 17, 2023 amended order granting injunctive relief. The trial court may take such further action as is consistent with our opinion.
_______________________________Footnotes:
1 Because it is a four-year seat, whoever was elected and seated would also automatically be a member of the Twenty-Fourth FSM Congress.
2 While we must first look to FSM sources of law rather than start with a review of other courts' cases, FSM Const. art. XI, § 11, when we have not previously construed FSM procedural rules which are identical or similar to a U.S. counterpart, we may look to U.S. sources for guidance in interpreting the rule. In re Sanction of Sigrah, 19 FSM R. 396, 398 n.1 (App. 2014) (civil and appellate rules). We have not previously considered the interplay of Civil Procedure Rule 54(b) and Appellate Procedure Rule 4(a)(2). Those rules are nearly identical to their U.S. counterparts.
3 We do not need to decide whether the single justice's denial of the appellees' motion to dismiss, Moses v. Sigrah, 24 FSM R. 353 (App. 2023), was sound because, like other final judgments, the Rule 54(b) judgment made the premature notice of appeal effective even though the trial court has adjudicated fewer than all claims.
4 The appellants also rely on Panuelo v. FSM, 22 FSM R. 498, 511 & n.6 (Pon. 2020) for the proposition that the court lacks jurisdiction because this is a political question. However, that case ruled that the court could not order, or have ordered, Congress to discipline a member because that was a political question. This is not a case about Congress imposing, or not imposing, discipline on a member. This is a case about Congress judging the qualifications of a member-elect. Panuelo is not applicable.
5 We also agree with the trial court that although there is a difference in wording – the FSM Constitution says "sole judge" while the similar U.S. Constitution merely says "judge" – "the differences for the purpose of this case are not significant." Sigrah v. Moses, 24 FSM R. 316, 324 (Pon. 2023).
6 This second added qualification – not have been convicted of a felony by a Trust Territory court – was the issue before us in Robert v. Mori, 6 FSM R. 394 (App. 1994), when we upheld the exclusion from the ballot of a candidate who had been convicted of a felony in a Trust Territory court and later pardoned by the Trust Territory High Commissioner.
7 "Referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent. The last antecedent is 'the last word, phrase, or clause that can be made an antecedent without impairing the meaning of the sentence.'" 2A NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 47.33, at 270 (5th ed. 1992) (footnote omitted) (quoting In re Kurtzman's Estate, 396 P.2d 786, (Wash. 1964)) See also FSM v. Nifon, 14 FSM R. 309, 313 (Chk. 2006) (words and phrases that modify other words or phrases are positioned as closely as possible to the word or phrase they modify because referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent).
8 The Credentials Committee Report, adopted by Congress, recited that "[t]he Office of National Election requested a mental competency check for each candidate from the FSM Department of Health, whom certified the mental competency of all candidates," Credential Comm. Rep. at 5 (Sept. 28, 2023), and that "[a]ll State Police Chiefs certified that both members-elect [the election and qualifications of a new member-elect for the vacant Chuuk four-year seat was considered in the same report] do not have any felony convictions," id. at 6, which necessarily includes Trust Territory convictions.
9 Our ruling today neither affects nor addresses Congress's power to discipline or to expel its members.
10 The P6-2023 appellants also made some contentions and arguments regarding the injunction's issuance, but, since they did not appeal the order granting injunctive relief, we will not address them.
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