Senate v Elimo [2012] FMCSC 7; 18 FSM Intrm. 137 (Chk. S. Ct. Tr. 2012) (5 January 2012)

CHUUK STATE SUPREME COURT TRIAL DIVISION

CSSC CIVIL CASE NO. 117-2011

HOUSE OF SENATE, Chuuk State Legislature, by and through Senate President Mark Mailo,
Plaintiff,

vs.

JOHNSON S. ELIMO, Governor of Chuuk,
Defendant.
_____________________________________________

ORDER GRANTING SUMMARY JUDGMENT AND DECLARATORY RELIEF

Camillo Noket
Chief Justice

Hearing: December 21, 2011
Decided: January 5, 2012

APPEARANCES:

For the Plaintiff: Douglas J. Juergens, Esq.

Legislative Counsel

P.O. Box 27

Weno, Chuuk FM 96942

For the Defendant: Charleston Bravo

Aaron L. Warren, Esq. (on the motions)

Assistant Attorneys General

Office of the Chuuk Attorney General

P.O. Box 1050

Weno, Chuuk FM 96942

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HEADNOTES

Constitutional Law - Chuuk - Interpretation; Separation of Powers - Chuuk - Executive Powers
The Chuuk Constitution is clear and unambiguous that when referring to the Governor's office, a Governor's "term" is a fixed four-year period. Thus, the phrase "current term" clearly means that if a governor is re-elected for a second four-year term, new nominations (or re-nominations) must be submitted to the Senate but otherwise a cabinet official may remain in office for a full four years unless the Governor earlier removes him (or he is impeached or he resigns). But when a new governor fills out the remainder of his predecessor's unexpired term, the new governor may retain the existing cabinet officials and special assistants without submitting their names for reconfirmation. Senate v. Elimo, [2012] FMCSC 7; 18 FSM Intrm. 137, 139-40 (Chk. S. Ct. Tr. 2012).

Constitutional Law - Chuuk - Interpretation
The specific meaning of the phrase "current term" or "term" as used in the Chuuk Constitution means a fixed number of years, as set by the Constitution. From the Chuuk Constitution's context, "term" when applied to the executive branch office-holders can only refer to the fixed four-year period. Senate v. Elimo, [2012] FMCSC 7; 18 FSM Intrm. 137, 140 (Chk. S. Ct. Tr. 2012).

Public Officers and Employees - Chuuk; Separation of Powers - Chuuk - Executive Powers
Since, by statute, a governor must send a nomination to the Senate within 45 days of a vacancy in an office requiring the Senate's advice and consent and since a resignation is an act or an instance of surrendering or relinquishing of an office or a formal notification of relinquishing an office or position, when cabinet officers and special assistants have submitted "courtesy resignations," those offices are vacant and new nominations (or renominations) must be submitted. The court cannot discern any difference (in result) between a "courtesy resignation" and a resignation for other reasons since a resignation is a resignation. Senate v. Elimo, [2012] FMCSC 7; 18 FSM Intrm. 137, 140 (Chk. S. Ct. Tr. 2012).

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COURT'S OPINION

CAMILLO NOKET, Chief Justice:

On December 21, 2011, this came before the court for hearing 1) Plaintiff's Motion for Summary Judgment, filed November 8, 2011; 2) Governor Elimo's Motion for Summary Judgment, filed November 18, 2011; 3) Plaintiff's Opposition to Defendant's Motion for Summary Judgment, filed December 16, 2011; and 4) the defendant's Response to Court, filed December 16, 2011. The court's decision follows.

I.

On April 14, 2009, Wesley W. Simina, having been re-elected Governor of Chuuk, took the oath of office and started his second four-year term. Governor Simina duly nominated, and the House of Senate confirmed, his choices for cabinet officials and the governor's special assistants.

On July 1, 2011, Simina was elected to fill a vacancy in Chuuk's at-large seat in the FSM Congress. Once Simina took the oath of office as a congressman, the Governor's office became vacant and Lieutenant Governor Johnson S. Elimo became Acting Governor until an election could be held since there was "more than one year of the term remaining." Chk. Const. art VI, § 11(a). pecial election was was held on August 24, 2011, Elimo ran and received the most votes for Governor. Elimo took the oath of offs Governor on September 2, 2011.

Governor Elimo evidently asked for and receiveceived "courtesy resignations" from all the cabinet members and special assistants that Governor Simina had appointed. On October 11, 2011, Governor Elimo informed most of those persons by letter, with copies to the heads of both house of the Chuuk Legislature and to the Chief Justice, that he was "unable to accept" their resignations and advised them "to continue your service to the government in the same position and capacity." Governor Elimo did accept a couple of the resignations and has since nominated others for those posts and submitted their nominations to the Senate for conformation. By an October 14, 2011 letter, Senate President Mark Mailo reminded Governor Elimo that under Chuuk State Law No. 7-03-05, section 13 the Senate expected to receive by October 17, 2011, the nominations for key cabinet members and special advisors who had been appointed by former Governor Simina. Mailo also reminded Governor Elimo that under section 16 persons could not exercise the powers of an office or receive pay for that office until confirmed by the Senate.

No further nominations were forthcoming. On October 19, 2011, the plaintiff, the Chuuk House of Senate, filed its Complaint for Declaratory judgment & Mandatory Injunction. The Senate seeks an order requiring Governor Elimo to submit cabinet nominees to the Senate for its advice and consent. The Senate asserts that since the governor who appointed the current "holdover" cabinet members and special assistants is no longer in office and since the voters in an election have chosen a new governor, this is a new administration and as such all of the cabinet members and special assistants must be submitted to it for confirmation. The Senate further relies on the state statute that requires a governor to submit nominations to the Senate for its advice and consent 45 days after the governor has taken the oath of office, or after a vacancy has occurred in a position for which the Senate's advice and consent is need, or after the creation of a new position for which the Senate's advice and consent is need, or after the Senate has rejected a previous nominee. Chk. S.L. No. 7-03-05, § 13.

Governor Elimo contends that since he is filling out the unexpired term of the governor (Simina) who appointed his cabinet and advisors, those public officers are continuing to serve during the term of the governor who appointed them even though the appointing governor no longer holds that office. Elimo distinguishes "term" from "tenure." In his view, "term" is a fixed time period during which an official may hold office while "tenure" refers to the time the official actually holds an office. In other words, in Elimo's view, Governor Simina's tenure as Governor ended when he became a congressman but Governor Simina's (unexpired) term did not; it will not end until April 2013.

II.

The applicable constitutional provision reads:

The Governor may, with the advice and consent of a majority of all the members of the Senate, appoint . . . the principal ors ce the the executive offices and departments in the State Government, and the principal advisors to the Governor. The princifficed advisors serve during the current term of the appointing Governor unless soonerooner remo removed by the Governor.

Chk. Const. art. VI, §&#16). The SThe Senate contends that "current term of the appointing Governor" means that each time a new governor takes office, that new governor must submit new nominations because, in the Senate's view, the old governor's "term" has ended. If that were so, then the current cabinet officials and special assistants would have ceased to hold office when Governor Simina left office and Elimo became acting governor. Also, if that were so, anytime a new governor filled out the unexpired term of someone elected to that office for four years, whether due to unexpected death, incapacity, or resignation, all advice-and-consent officials would immediately cease to hold office and new nominations (or renominations) would be required, just as what happens after a four-year term ends and the results of the quadrennial general election determine who will hold the governor's office for the next four years.

The Constitution, however, is clear and unambiguous. When referring to the Governor's office, a Governor's "term" is a fixed four-year period. "The Governor and Lieutenant Governor shall each serve for a 4 year term. . . . a person as served more tore than 3 years of a term to which another person was elected shall be deemed to have served the entire term for purposes of this section." Chk. Const. art. VI, § 8.[1]">[1] Neither party contends that Governor Elimo's term runs for four years from when he took the oath of office on September 2, 2011. Ene agthat his time in office ends (unless re-elected) ted) when when Governor Simina's term would have ended had he not been elected to the FSM Congress. The phrase "current term" clearly means that if a governor is re-elected for a second four-year term, new nominations (or re-nominations) must be submitted to the Senate but otherwise a cabinet official may remain in office for a full four years unless the Governor earlier removes him (or he is impeached or he resigns). Thus, when a new governor fills out the remainder of his predecessor's unexpired term, the new governor may retain the existing cabinet officials and special assistants without submitting their names for reconfirmation. Governor Elimo therefore did not have to submit the names of the cabinet members and special assistant he inherited once he was elected to fill Governor Simina's unexpired second term.

Although the Senate can cite dictionaries and thesauruses that consider "term" and "tenure" to be synonyms, the court must concentrate its analysis on the specific meaning of the phrase "current term" or "term" as used in the Chuuk Constitution, not what those words might be used to mean in other contexts. In the Chuuk Constitution, "term" means a fixed number of years, as set by the Constitution. From the Chuuk Constitution's context, "term" when applied to the executive branch office-holders can only refer to the fixed four-year period. This is in keeping with the generally understood common usage of the word.

III.

The court's analysis, however, does not end here. By statute, a governor must send a nomination to the Senate within 45 days of a vacancy in an office requiring the Senate's advice and consent. Chk. S.L. No. 7-03-05, § 13(b). Governor Simina's cabinet officials and advisors submitted their resignations from their offices. A resignation is an "act or an instance of surrendering or relinquishing of an office . . . [or a]al noatfication of n of relinquishing an office or position." Black's Law Dictionary 1424 (9th ed. 2009). The court cannot discern any difference (in result) between a "courtesy resignation" aresign for other reasoreasons. Ans. A resignation is a resignation.

A resignation by an office-holder thus leaves an office vacant. Since those cabinet offices and special assistants are vacant, new nominations (or renominations) must be submitted. Governor Elimo should do so within 45 days of this order.

IV.

Accordingly, since Governor Elimo is filling out the remainder of his predecessor's unexpired term, he could retain the existing cabinet officials and special assistants appointed by Governor Simina without submitting their names for reconfirmation, but if any of those officials submits a resignation, he or she has resigned and the office is vacant. Since the officials appointed by former Governor Simina have resigned, they need to be renominated.

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^[1] This is in harmony with other constitutional provisions applying to the Governor’s office:

If the Governor dies, resigns, suffers a major incapacity, or is removed from office with one year or less of the term remaining, the Lieutenant Governor becomes Governor. However, if any such event occurs with more than one year of the term remaining, the Lieutenant Governor becomes Acting Governor until a Governor is elected and takes office.

Chk. Const. art. VI, § 11(a)d Animilar frame of m of mind is reflected in provisions that apply to the Chuuk Legislature. "A vacancy in either house of thislathall be filled for the unexpired term by a special election, but an unexpired terd term of m of less than one year shall be filled by appointment of the Governor." Chk. Const. art. V, § 6.