Lokopwe v Walter [2001] FMCSC 1; 10 FSM Intrm. 303 (Chk. S. Ct. Tr. 2001) (21 March 2001)

CHUUK STATE SUPREME COURT
TRIAL DIVISION

Cite as Lokopwe v. Walter
[2001] FMCSC 1; 10 FSM Intrm. 303 (Chk. St. Ct. Tr. 2001)

[2001] FMCSC 1; [10 FSM Intrm. 303]

MATHEUS LOKOPWE, KENNEDY REMIT,
TRACY METER and WALTER TIM,
Plaintiffs,

vs.

ANSITO WALTER, as Governor of Chuuk State
and or anyone acting on his Stead or position of
authority or any Director or Supervisor of any
Department of the Executive, Judiciary,
Legislative or Agency, and CHUUK STATE,
Defendants.

CSSC CA No. 10-2001

FINAL JUDGMENT

Keske S. Marar
Associate Justice

[10 FSM Intrm. 304]

Hearing: February 27, 2001
Decided: March 21, 2001

APPEARANCES:

For the Plaintiff: Frank Casiano, trial counselor
Micronesian Legal Services Corporation
P.O. Box D
Weno, Chuuk FM 96942

For the Defendants: Ready Johnny, Esq.
Attorney General
Office of the Chuuk Attorney General
P.O. Box 189
Weno, Chuuk FM 96942

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HEADNOTES

Constitutional Law ; Chuuk; Public Officers and Employees ; Chuuk
The prevailing rule is that when the Constitution provides no direct authority to establish qualifications for office in excess of those imposed by the Constitution, such qualifications were unconstitutional by their very terms and under equal protection, due process, and freedom of speech and assembly. Lokopwe v. Walter, [2001] FMCSC 1; 10 FSM Intrm. 303, 306 (Chk. S. Ct. Tr. 2001).

Constitutional Law ; Chuuk ; Executive Powers
Executive orders must meet constitutional standards the same as acts of legislative bodies. Lokopwe v. Walter, [2001] FMCSC 1; 10 FSM Intrm. 303, 306 (Chk. S. Ct. Tr. 2001).

Constitutional Law ; Chuuk ; Executive Powers; Public Officers and Employees ; Chuuk
While the principal officers and advisors serve during the current term of the appointing Governor unless sooner removed by the Governor, the dismissal of non-policy making employees from public employment solely on the ground of political affiliation is not permissible. Lokopwe v. Walter, [2001] FMCSC 1; 10 FSM Intrm. 303, 306 (Chk. S. Ct. Tr. 2001).

Constitutional Law ; Chuuk ; Executive Powers; Elections; Public Officers and Employees ; Chuuk
The executive policy requiring resignation before running for a seat in the Chuuk Legislature adds a qualification prohibited by the Chuuk Constitution and is void, and therefore, the plaintiffs' forced resignation pursuant to the Governor's Executive Order or policy is unconstitutional and beyond his power. Lokopwe v. Walter, [2001] FMCSC 1; 10 FSM Intrm. 303, 306 (Chk. S. Ct. Tr. 2001).

Constitutional Law ; Freedom of Expression; Public Officers and Employees ; Chuuk
A public employer may not discharge either a tenured or a non-tenured employee for the reasonable exercise of constitutional rights such as freedom of speech. Lokopwe v. Walter,

[10 FSM Intrm. 305]

[2001] FMCSC 1; 10 FSM Intrm. 303, 306 (Chk. S. Ct. Tr. 2001).

Constitutional Law ; Chuuk ; Executive Powers
The executive power is the power to execute, or carry the laws into effect, as distinguished from the power to make the laws and the power to judge them. All executive power is granted by the constitution, and the executive branch can exercise no power not derived from it. Lokopwe v. Walter, [2001] FMCSC 1; 10 FSM Intrm. 303, 307 (Chk. S. Ct. Tr. 2001).

Constitutional Law ; Chuuk ; Executive Powers; Elections; Public Officers and Employees ; Chuuk
A governor has only a delegated power and a limited sphere of action, and the Chuuk Constitution does not give the Governor the power to add qualifications, that a person must not be a state employee, to be a candidate for a seat in the Chuuk Legislature. Lokopwe v. Walter, [2001] FMCSC 1; 10 FSM Intrm. 303, 307 (Chk. S. Ct. Tr. 2001).

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COURT'S OPINION

KESKE S. MARAR, Associate Justice:

This case comes before the Court after notice and

hearing for a status conference during which counsel for the parties stipulated the following facts on the record in open court and further stipulated that such are sufficient for forming all issues of law necessary for a final judgment and disposition of the case. The stipulations are as follows:

1. That all Plaintiffs ran for a seat in the Chuuk State Legislature in the election held on March 6, 2001.

2. That Plaintiffs Matheus Lokopwe, Kennedy Remit and Walter Tim have been terminated from their employment with the Chuuk State Government.

3. That Plaintiffs Matheus Lokopwe, Kennedy Remit and Walter Tim held positions with the Chuuk State Government under exempt status from classified personal.

4. That Plaintiffs Matheus Lokopwe, Kennedy Remit and Walter Tim were terminated against their will and none of them signed any resignation from their employment with the Chuuk State Government; that their salary has been withheld since the date of their forced termination.

5. That the action of the Chuuk State Government and its officials in terminating Plaintiffs Matheus Lokopwe, Kennedy Remit and Walter Tim was based on an Executive Order stating the policy of the Executive Branch of the Chuuk State Government and its officials that if Plaintiffs Matheus Lokopwe, Kennedy Remit and Walter chose to run for a seat in the Chuuk State Legislature, each must resign their employment with the Chuuk State Government.

6. That Plaintiffs Matheus Lokopwe, Kennedy Remit and Walter Tim were terminated from their Chuuk State employment and their salary withheld against their will and that neither their employment nor their salary has been restored.

The issue in this case is substantially the same as that before the Court in the case of Olap v. Chuuk State Election Commission, CSSC CA No. 236-98 [2000] FMCSC 7; [9 FSM Intrm. 531 (Chk. S. Ct. Tr. 2000)]. The distinction between the two cases is seen by this Court as being one of form rather than substance. In the Olap case, supra, the "resign to run" element was imposed by an act of the legislature, whereas, this requirement in the instant case resulted from an Executive Order or Policy.

[10 FSM Intrm. 306]

The prevailing rule as concluded in the Olap case, supra, is that where the constitution provides no direct authority: "to establish qualifications for office in excess of those imposed by the Constitution, such qualifications were unconstitutional by their very terms and under equal protection, due process, and freedom of speech and assembly." [9 FSM Intrm. at 533.]

In the case of Chipen v. Election Commissioner of Losap, Civ. No. 2001-1002, the FSM Supreme Court, Chuuk Trial Division, considered the validity of an ordinance that required candidates for mayor to have specified educational qualifications. The FSM Court cited the Olap case as authority in holding that: "the municipal council is without authority to add qualifications to those set out in the [Losap] constitution unless the constitution so authorizes the council." Chipen v. Election Comm'r of Losap, [2001] FMSC 72; 10 FSM Intrm. 15, 17-18 (Chk. 2001).

The issue thus turns to whether the Executive has authority to add to the qualifications for candidates for election to the legislature. It is without question that executive orders must meet constitutional standards the same as acts of legislative bodies. See 77 AM. JUR. 2D United States § 47 (1975) and 16A AM. JUR. 2D Constitutional Law §§ 818-822 (1979). Specific "ly, "it has been held that executive officers may not . .&#160escribe the qualificaifications of persons seeking a pon a t as a candidate.date. 16 C.J.S. Constitutional Law § 16 855 & nmp; n.61 (195 (1956) (citing State v. Circuirt, 190 N.W. 563, 178 W178 Wis. 468).

The only other factor which distinguishes this case from the Olap case it the above named Plaintiffntiffs were employed under the provisions for exempt status. Also, the Court is mindful of the provisions of Article VI, § 2(b)h states in part that: hat: "The principal officers and advisors serve during the current term of the appointing Governor unless sooner removed by the Governor." The Defendants make no assertion that any of the Plaintiffs are "Principal officers and advisors."

Therefore, "The dismissal of non-policy making employees from public employment solely on the ground of political affiliation is not permissible, as a subordination of First Amendment activity . . .&#1 67 . O Officersicers § 126, at 497 (1978). See also 63A AM. JUR. 2D Public Officers and Employe> ҈223 (1984).

In the case of Burns v. Elrod, [1975] USCA7 233; 509 F.2d 1133 (133 (7th C7th Cir. 1975) the plaintiffs were not prod by Civil Service or otherother laws against summary discharge, the same as the Plaintiffs in this case. In the Burns case, supra, the Plaintiffs were discharged because they were Republicans and the newly elected administration were Democrats. The Court of Appeals held that the dismissal of the plaintiffs for political reasons violated their constitutional rights of free speech, due process and equal protection. In a lengthy opinion and full discussion of the unconstitutionality of the dismissal of public employees for political reasons, the United States Supreme Court affirmed the decision of the Court of Appeals. See Burns v. Elrod, [1976] USSC 148; 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976).

All of this is of no consequence in that the executive policy requiring resignation adds a qualification prohibited by the Chuuk State Constitution and is void. Therefore, clearly, the forced resignation of the plaintiffs pursuant to the Governor's Executive Order or Policy is prohibited as unconstitutional and beyond the power of the Governor. See the Olap case for the background, reasoning and authority for the Court's conclusions in this case.

Also, 67 C.J.S. Officers § 119, at 484 (1978), it isedtated that: "the public employer may not discharge either a tenured or a non-tenured employee for the reasonable exercise of itutional rights such as First Amendment rights, and especially the right of freedom of spef speech."

This Court sees further authority for the decision reached herein in 16 AM. JUR. 2D Constitutional

[10 FSM Intrm. 307]

Law § 303, at 818-19 (1979) (footnotes omitted), which states in part as follows:

The executive power is the power to execute the laws, that is, to carry them into effect, as distinguished from the power to make the and the power to judge them them.

All executive power is granted by the constitution, and the executive branch can exercise no power not derived from the instrument.

Further, it is said in 16A AM. JUR. 2D Constitutional Law § 627, at 576 (1979), that: In a republican form of government the governor . . . has a deld poed power andr and a limited sphere of action."

Nowhere, does the Chuuk State Constitution give the Governor the power to add qualificationst a p must not be a state employee, to be a candidate date for afor a seat in the Chuuk Legislature.

Based on the foregoing analysis, the Court finds that the Plaintiffs are entitled to a permanent injunction prohibiting the Defendants from terminating them pursuant to the Executive Order or Policy which requires their resignation in the event they choose to assert their constitutional right to become a candidate for the Chuuk State Legislature, and IT IS SO ORDERED.

FURTHER ORDERED that the Defendants reinstate each of the Plaintiffs to the positions of employment they held at the time of their termination, if they so desire, and
FURTHER ORDERED that the Director of the Treasury issue checks to each Plaintiff equal to the amount of lost salary and benefits as a result of their termination, and,

FURTHER ORDERED that this Court shall retain jurisdiction of this case for the purpose of entering such further orders as may become necessary, and

FURTHER ORDERED that Counsel for the Plaintiffs shall serve a copy of this order on the Governor of Chuuk State, the Director of the Treasury and such other officers of Chuuk State as may be necessary to insure notice to all concerned.

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