Doone v Simina [2009] FMCSC 12; 16 FSM Intrm. 487 (Chk. S. Ct. Tr. 2009) (12 June 2009)

CHUUK STATE SUPREME COURT TRIAL DIVISION

CSSC-CA. NO. 99-2008

GILLIAN DOONE,
Plaintiff,

vs.

WESLEY SIMINA, in his official capacity as Governor of Chuuk, and the CHUUK STATE LEGISLATURE,
Defendants.

_____________________________________

ORDER GRANTING PARTIAL SUMMARY JUDGMENT

Camillo Noket
Chief Justice

Decided: June 12, 2009

APPEARANCES:

For the Plaintiff: Gideon K. Doone
P.O. Box 882
Weno, Chuuk FM 96942

For the Defendant: Joses R. Gallen
(Simina) Attorney General
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

For the Defendant: Jack Fritz
(Legislature) Legislative Counsel
j Chuuk Legislature
P.O. Box 27
Weno, Chuuk FM 96942

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HEADNOTES

Public Officers and Employees  Chuuk
The Chuuk Constitution only requires that legislation changing the transitional salaries take effect after the general election. Doone v. Simina, [2009] FMCSC 12; 16 FSM Intrm. 487, 489 n.1 (Chk. S. Ct. Tr. 2009).

Civil Procedure  Consolidation
A request to consolidate cases should be made by written motion stating with particularity the grounds for relief and the relief or order sought. Failure to do so is considered a waiver of the motion. Doone v. Simina, [2009] FMCSC 12; 16 FSM Intrm. 487, 489 (Chk. S. Ct. Tr. 2009).

Public Officers and Employees  Chuuk
The Constitution set the transitional salaries of the Governor ($25,000) and Lieutenant Governor ($22,000). The transitional salaries were to remain in effect until after the first general election in March of 1990. Then, new salaries could be statutorily prescribed. Under the new Constitution, salaries of the presiding members of the Legislature, Governor and Lieutenant Governor could only be increased by voter referendum and only by an amount not to exceed $2,000.00 for each officer. Doone v. Simina, [2009] FMCSC 12; 16 FSM Intrm. 487, 490 (Chk. S. Ct. Tr. 2009).

Civil Procedure  Summary Judgment
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law, such as when the issues involve only statutory and constitutional construction. Issues of statutory and constitutional construction and interpretation are not issues of material fact but matters of law. Doone v. Simina, [2009] FMCSC 12; 16 FSM Intrm. 487, 490 (Chk. S. Ct. Tr. 2009).

Public Officers and Employees  Chuuk
Constitutional, statutory, and regulatory provisions determine a public officer's right to a given salary. A public officer may only collect and retain such compensation as authorized by law. Doone v. Simina, [2009] FMCSC 12; 16 FSM Intrm. 487, 490 (Chk. S. Ct. Tr. 2009).

Public Officers and Employees  Chuuk; Statutes  Construction
Statutes setting salaries of public officials, like any other statutes, are presumed constitutional, and it is the court's duty to determine whether statutes conform to the Constitution, and if they do not, they will be treated as null and void. Doone v. Simina, [2009] FMCSC 12; 16 FSM Intrm. 487, 490 (Chk. S. Ct. Tr. 2009).

Public Officers and Employees  Chuuk
The Chuuk Legislature was constitutionally authorized to initially set post-transitional salaries without a voter referendum. Doone v. Simina, [2009] FMCSC 12; 16 FSM Intrm. 487, 491 (Chk. S. Ct. Tr. 2009).

Public Officers and Employees  Chuuk
The salaries of the governor and lieutenant governor were set by Chuuk Constitution article XV, section 10 during the transition period, and those salaries were only effective, according to that provision, until prescribed by statute. Doone v. Simina, [2009] FMCSC 12; 16 FSM Intrm. 487, 491 (Chk. S. Ct. Tr. 2009).

Public Officers and Employees  Chuuk
As with the salaries of legislative member salaries, the salaries of the governor and lieutenant governor were only subject to the referendum provision once they had been initially set from the transitional salaries and since Chk. S.L. No. 6-91 was the first law under the new government to set the salaries of the governor and lieutenant governor, Chk. S.L. No. 6-91 validly set the salaries of the governor and lieutenant governor. Doone v. Simina, [2009] FMCSC 12; 16 FSM Intrm. 487, 491 (Chk. S. Ct. Tr. 2009).

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COURT'S OPINION

CAMILLO NOKET, Chief Justice:

I. INTRODUCTION

By this private attorney general action, plaintiff Gillian Doone challenges, among other things, the legality of the Governor and Legislators' salaries, arguing that the salaries were unconstitutionally increased. The parties filed cross motions for summary judgment on the issue. The court grants partial summary judgment to the defendants. The remaining issues will be scheduled for trial by further order of the court.

II. MOTIONS FOR SUMMARY JUDGMENT

Chuuk State Law No. 6-91, passed into law on June 2, 1990, set the governor's annual salary at $36,000 and the Lieutenant Governor's at $33,000. In his complaint, plaintiff asserts that Chk. S.L. No. 6-91 violates article V, section 8(c) of the Constitution, which requires any increases in the Governor and Lieutenant Governor salaries to be approved by voter referendum.[1] Since the salaries and entitlements of legislative members cannot exceed seventy five percent of the governor's salary and entitlements, Chk. Const. art. V, § 8(a), all subst legislationation, which was passed in reliance on the salary provisions set by Chk. S.L. No. 6-91, and which includes the firsget act and subsequent statutes setting defendants' entitlements, are unconstitutional.

.

Defendants contend that the initial setting of the governor and lieutenant governor salaries was not subject to the Constitution's voter referendum provision. They conclude that Chk. S.L. No. 6-91 and subsequent statutes setting defendants' salary and benefits are constitutional.

In the introduction to his motion for summary judgment Doone also asks the court to consolidate civil action 38-08 with this action. Summary Judgment Mot. at 1. Doone filed civil action 38-08 in his official capacity as director of the Department of Administrative Services. On August 14, 2008, Doone's successor voluntarily dismissed the case pursuant to Civil Rule 41(a)(1). This action was instituted on September 17, 2008. The court need not address the propriety, at this stage of the litigation, of consolidating this case with civil action 38-08. The reason is that if the court is to consider the request, that request should have been made by written motion stating with particularity the grounds for relief and the relief or order sought. Chk. Civ. R. 7(b)(1). Failure to do so, especially when it is not clear whether Doone was actually seeking consolidation or merely asking the court to consider the arguments made in the earlier case, the court considers to be a waiver of the motion. See Enlet v. Truk, [1988] FMSC 5; 3 FSM Intrm. 459, 462 (Truk 1988); Island Cable TV v. Gilmete, [1999] FMSC 16; 9 FSM Intrm. 264, 266 (Pon. 1999). The motion is therefore denied. There was nothing to prevent Doone from incorporating into his filings in this case any causes of action and arguments from the earlier case.

III. BACKGROUND

The Constitution set the transitional salaries of the Governor ($25,000) and Lieutenant Governor ($22,000). Chk. Const. art. XV, § 10. Transitional ies were tere to remain in effect until after the first general election in March of 1990. Id. Then, new salaries could btutorily prescribed. Id.; see also id. art. V, § 8(a). Under the nehe new Constitution, salaries of the presiding members of the Legislature, Governor and Lieutenant Governor could only be increased by voter referendum and only by an amoot to exceed $2,000.00 for each officer. Chk. Const. art. Vrt. V, § 8(c).

As ped bded by the transitional provisions of the Constitution, on March 6, 1990, the first general election was held under the new government, and, on May 7, 1990,terms of the First Legislature began. Chk. Const. art. XV, XV, § 4. On June 2, 1990, Chk. NoL. No. 6-91 became law.[2] In it, the governor's annual salary was set at $36,000 and the Lieutenant Governor's at $33,000.

On October 1, 1990, the Budget Act of 1991, Chk. S.L. S.L. No. 190-10, became law. In it, the First Legislature set the salaries of the members of the Legislature. The annual salaries of the Speaker of the House and the President of the Senate were set at $24,000 and those of other members at $21,600. Chk. S.L. No. 190-10 also appropriated salaries for the governor and lieutenant governor in accordance with the amounts prescribed by Chk. S.L. No. 6-91.

IV. ANALYSIS

Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The issues here involve statutory and constitutional construction. Issues of statutory and constitutional construction and interpretation are not issues of material fact but matters of law. Sauder v. Chuuk State Legislature, [1995] FMCSC 20; 7 FSM Intrm. 358, 360, 363 (Chk. S. Ct. Tr. 1995). The specific issue for the court to address is whether defendants' salaries were passed into law in violation of the referendum provision of the Constitution.

Constitutional, statutory, and regulatory provisions determine a public officer's right to a given salary. Edwin v. Kosrae, [1990] FMKSC 3; 4 FSM Intrm. 292, 298 (Kos. S. Ct. Tr. 1990). A public officer may only collect and retain such compensation as authorized by law. Sohl v. FSM, [1990] FMSC 5; 4 FSM Intrm. 186, 192 (Pon. 1990). Statutes setting salaries of public officials, like any other statutes, are presumed constitutional. Wainit v. Weno, [1995] FMCSC 5; 7 FSM Intrm. 121 (Chk. S. Ct. Tr. 1995). It is the duty of the court, however, to determine whether statutes conform to the Constitution, and if they do not, they will be treated as null and void. Sauder v. Chuuk State Legislature, [1995] FMCSC 20; 7 FSM Intrm. 358, 361 (Chk. S. Ct. Tr. 1995).

The basis for plaintiff's argument that all of defendants' current salary and entitlements are illegal is that Chk. S.L. No. 6-91 is void because it was passed in violation of the referendum provision of the Constitution. The court in its December 27, 1995 decision in Sauder v. Chuuk State Legislature, [1995] FMCSC 20; 7 FSM Intrm 358 (Chk. S. Ct. Tr. 1995) addressed the referendum requirement. The issues in Sauder pertained to the constitutionality of legislative member entitlements that were appropriated in yearly budgets without any independent statute specifying how those entitlements were to be used. The court held that without such independent legislation, there was no guarantee that the appropriated allowances weren't merely salary disguised as entitlements to avoid the referendum requirement.[3]

In its examination of what salaries and entitlements legislative members could receive in the absence of a voter referendum, the Sauder court noted that there was no specific statute independent of the budget acts that set the annual salaries of legislative members. Sauder, 7 FSM Intrm. at 361. The court concluded that the first budget act under the new Constitution, Chk. S.L. No. 190-10, set the salaries of legislative members. Id. Taking the first budget act under the new government as having set the legislators' salaries, Sauder held that once the salaries had been set under the new government, no increase would be effective unless approved by voter referendum pursuant to article V, section 8(c) of the Constitution. Id. In other words, in the Sauder court's interpretation, the Legislature was constitutionally authorized to initially set post-transitional salaries without a voter referendum.

Although the Sauder court only addressed the setting of the legislative member salaries, the court finds no reason to depart from Sauder's analysis in addressing the legality of the governor and lieutenant governor salaries. The governor and lieutenant governor salaries were set by article XV, section 10 during the transition period. Those salaries, however, were only effective, according to that provision, "until prescribed by statute."

The ruling in Sauder may have caused some confusion on this issue. The Sauder court found that the first legislation after the transitional period, Chk. S.L. No. 190-10, set legislative member salaries, which were calculated based on the first legislation after the transitional period, Chk. S.L. No. 6-91, setting the governor's salary at $36,000. Only after that first legislation did the legislative member salaries become subject to the referendum provision. Yet, the Sauder court incongruously noted that 6-91 set the governor's salary without a voter referendum. Sauder, 7 FSM Intrm. at 362 n.7. The court opined that the increase appeared to violate the referendum provision without explaining why the first legislation setting the governor's salary would be subject to referendum while that setting the Legislature's was not. Id.

The court now holds that, as with the salaries of legislative member salaries addressed in Sauder, the governor and lieutenant governor salaries were only subject to the referendum provision once they had been initially set from the transitional salaries. Since Chk. S.L. No. 6-91 was the first law under the new government to set the governor and lieutenant governor salaries, the court concludes that Chk. S.L. No. 6-91 validly set the salaries of the governor and lieutenant governor.

V. CONCLUSION

Summary judgment is therefore granted to defendants.

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^[1]In his motion for summary judgment, plaintiff asserts that Chk. S.L. No. 6-91 was never procedurally enacted by the First Legislature and, therefore, was void ab initio. Since in his complaint plaintiff only asserted as a basis for his first cause of action that Chk. S.L. No. 6-91 violated the referendum provision, the court will confine its analysis to the grounds there asserted. The court notes, however, that even though the passage of Chk. S.L. No. 6-91 preceded the seating of the First Legislature (the bill passed the Third Charter Legislature on May 3, 1990 and the First Legislature was seated on May 7, 1990), the Constitution imposes no requirement that changes in salary are void if they were passed before the seating of the First Legislature. It only requires that legislation changing the transitional salaries take effect after the general election. Chk. Const. art. XV, § 1.
^[2]The bill passed the Third Legislature of the Trust Territory Charter government on May 3, 1990, four before the terms of First Legislature began. When the governor did not sign or veto Chk. Shk. S.L. No. 6-91 within thirty days of submission to him it became effective by operation of law. See Chk. Const. art. V § 14 (if the governor takes no action and does not return a bill within such period [30 days if bill is presented when less than 10 days remain before adjournsine die and 10 days to consider a bill presented when 10 or more days remain beforeefore adjournment sine die], it becomes law).
^[3]Since it was not raised, the court does not address whether the statutes passed after Sauder setting entitlements are statutorily specific enough to comply with the requirements for constitutionality set forth in Sauder.