Davis v Kutta [2001] FMSC 61; 10 FSM Intrm. 98 (Chk. 2001) (8 March 2001)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Davis v Kutta, [2001] FMSC 61; 10 FSM Intrm. 98 (Chk. 2001)

MENRY DAVIS
Plaintiff,

vs.

JIM KUTTA, HALVERSON NIMEISA, RESAUO MARTIN,
ERADIO WILLIAM, FRANCIS RUBEN, JOHNSON SILANDER
and the STATE OF CHUUK,
Defendants.

CIVIL ACTION NO. 1992-1039

ORDER AND MEMORANDUM

Martin Yinug
Associate Justice

Decided: March 8, 2001

APPEARANCES:

For the Plaintiff:
Stephen V. Finnen, Esq.
Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941

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

* * * *

HEADNOTES

Separation of Powers
While FSM Supreme Court may determine the constitutionality under the FSM Constitution of a specific legislative act, there is no authority where a court has either ordered a legislative body to perform a specified legislative function, or held such a body in contempt for not performing that function. Davis v. Kutta, [2001] FMSC 61; 10 FSM Intrm. 98, 99 (Chk. 2001).

Constitutional Law - Case or Dispute; Separation of Powers
One of the rationales for limiting a court's power to deciding the cases before it is to prevent the court from intruding into areas committed to the executive or legislative branches. Davis v. Kutta, [2001] FMSC 61; 10 FSM Intrm. 98, 99 (Chk. 2001).

Civil Rights; Separation of Powers
A court has the power to issue an order to a state official to perform a purely ministerial act - the issuance of a check - in order to cause the state to conform its conduct to the requirements of both the FSM Constitution and the national statute at issue, 11 F.S.M.C. 701. Davis v. Kutta, [2001] FMSC 61; 10 FSM Intrm. 98, 99 (Chk. 2001).

* * * *

COURT'S OPINION

MARTIN G. YINUG, Associate Justice:

The court has received the Motion for an Order to Show Cause, Re: Contempt, filed by plaintiff Menry Davis ("Davis") on February 12, 2001; Davis' Report to the Court, dated February 16, 2001; the Response and Opposition to Plaintiff's Motion for an Order Show Cause, Re: Contempt, filed by State of Chuuk ("Chuuk"), on February 13, 2001; and Davis' Renewed Motion for an Order to Show Cause, Re: Contempt. In both her motion and renewed motion, Davis asks that the court issue an order to show cause not only as to Tiser Lippwe, Chuuk's Director of the Department of Treasury, but as to the governor and members of the Chuuk legislature as well.

While it is plain that this court may determine the constitutionality under the FSM Constitution of a specific legislative act, Suldan v. FSM (II), [1983] FMSC 14; 1 FSM Intrm. 339, 348 (Pon. 1983), Davis does not cite to any authority where a court has either ordered a legislative body to perform a specified legislative function, or held such a body in contempt for not performing that function. One of the rationales for limiting a court's power to deciding the cases before it is to prevent the court from intruding into areas committed to the executive or legislative branches. In re Sproat, 2 FSM Intrm. 1, 7 (Pon. 1985). On the facts of the case now before this court, the court has the power to issue an order to a state official to perform a purely ministerial act - the issuance of a check - in order to cause Chuuk to conform its conduct to the requirements of both the FSM Constitution and the national statute at issue, 11 F.S.M.C. 701. Gates v. Collier, [1980] USCA5 1009; 616 F.2d 1268, 1271 (5th Cir. 1980). Such an order is calculated to result in the complete discharge of the plaintiff's judgment. Pending a resolution of the plaintiff's order to show cause as to Tiser Lippwe, the court need go no further at this time. Davis' motion for order to show cause as to the governor and members of the Chuuk legislature is therefore denied.

The order to show cause as to Tiser Lippwe issues herewith