Shrew v Sigrah [2004] FMSC 26; 13 FSM Intrm. 30 (Kos. 2004) (26 October 2004)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite case as Shrew v Sigrah, [2004] FMSC 26; 13 FSM Intrm. 30 (Kos. 2004)

SPEAKER HITEO S. SHREW on behalf of THE EIGHTH KOSRAE STATE LEGISLATURE,
Petitioner,

vs.

GOVERNOR RENSLEY A. SIGRAH,
Respondent.

__________________________________________

CIVIL ACTION NO. 2004-2003
(Kosrae State Court Civ. Act. No. 125-04)

ORDER OF DISMISSAL WITHOUT PREJUDICE AND MEMORANDUM

Martin Yinug
Associate Justice

Decided: October 26, 2004

APPEARANCES:

For the Petitioner:
Catherine M. Allen, Esq.
Legislative Counsel
Eighth Kosrae State Legislature
P.O. Box 187
Tofol, Kosrae FM 96944

For the Respondent:
Arthur N. Buck, Esq.
Acting Attorney General
Office of the Kosrae Attorney General
P.O. Box 870
Tofol, Kosrae FM 96944

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HEADNOTES

Jurisdiction - Removal
Under Section II(D) of FSM General Court Order 1992-2, the filing of a petition for removal to the FSM Supreme Court itself effects removal so long as the specified requirements are met. Shrew v. Sigrah, [2004] FMSC 26; 13 FSM Intrm. 30, 32 (Kos. 2004).

Jurisdiction - Arising under National Law
The national courts, including the trial division of the Supreme Court, have concurrent original jurisdiction in cases arising under national law. National courts are the trial division of the FSM Supreme Court and any other national courts that might be established by statute, and not state courts. Shrew v. Sigrah, [2004] FMSC 26; 13 FSM Intrm. 30, 32 (Kos. 2004).

[13 FSM Intrm.30]

Jurisdiction - Arising under National Law; Statutes - Construction
When a state law makes a specific reference to a national statute, any interpretation of that state law must simultaneously present a question of national law. The FSM Supreme Court would have subject matter jurisdiction over such a case. Shrew v. Sigrah, [2004] FMSC 26; 13 FSM Intrm. 30, 32 (Kos. 2004).

Statutes - Construction
When under the plain language of 30 F.S.M.C. 202(1), only unobligated funds are subject to the Governor’s request for distribution and while Kosrae State Law No. 8-17 does not make reference to obligated funds, it makes a specific reference to 30 F.S.M.C. 202(1), there is no conflict between the two laws, because the Kosrae statute, by reference to the national statute, incorporates the qualification for distribution contained in the national statute that only unobligated funds are subject to distribution. A statute must be given its plain meaning wherever possible, and when that plain meaning is derived by looking to the national statute specifically referred to in the state statute, the Governor has an obligation to request the distribution of only unobligated funds. Shrew v. Sigrah, [2004] FMSC 26; 13 FSM Intrm. 30, 33 (Kos. 2004).

Mandamus and Prohibition
A mandamus action is an extraordinary remedy that is to be reserved for rare and exceptional circumstances. The requirements for mandamus relief are that 1) the respondent must be a public official; 2) the action sought to be compelled must be nondiscretionary or ministerial; 3) the respondent must be under a clear duty to perform the act; 4) the respondent must have failed or refused to do the act; and 5) no other remedy must exist. Shrew v. Sigrah, [2004] FMSC 26; 13 FSM Intrm. 30, 33 (Kos. 2004).

Mandamus and Prohibition
In order to state a claim for mandamus relief, a petitioner must allege that the respondent official owes him or her a duty so plainly described as to be free from doubt. Shrew v. Sigrah, [2004] FMSC 26; 13 FSM Intrm. 30, 33 (Kos. 2004).

Mandamus and Prohibition
Presumption and belief, irrespective of who makes the assumption or holds the belief, are insufficient to support allegations entitling a petitioner to mandamus relief. Shrew v. Sigrah, [2004] FMSC 26; 13 FSM Intrm. 30, 34 (Kos. 2004).

Mandamus and Prohibition
While none of the FSM Rules of Civil Procedure appear to govern the disposition of a mandamus petition filed before the trial division, the power of the FSM Supreme Court trial division to entertain a petition for such a writ is beyond dispute. In reaching a disposition of a pending petition, the court will proceed analogously with Appellate Rule 23(b), which governs mandamus petitions before the appellate division, and provides that if the court is of the opinion that the writ clearly should not be granted, the court will deny the petition even before an answer has been filed. Shrew v. Sigrah, [2004] FMSC 26; 13 FSM Intrm. 30, 34 (Kos. 2004).

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COURT’S OPINION

MARTIN YINUG, Associate Justice:

The parties will note that an error occurred in assigning a civil action number to this case. The former, incorrect number was 2004-2002. The caption as amended now bears the correct number, which is 2004-2003.

[13 FSM Intrm.31]

This is a mandamus action in which the petitioner ("the Speaker") is seeking a writ of mandamus directed to the respondent ("the Governor") to cause the Governor to request the disbursement of funds held in the IDF (Investment Development Fund) earmarked subaccount for the state of Kosrae. The issue is one of the interplay between two statutes, one state and one national. Section 5(2) of Kosrae State Law No. 8-17 provides in pertinent part that "[t]he Governor of Kosrae shall, with particular attention to Paragraph (1) of Section 202 of Title 30 of the Code of the Federated States of Micronesia as amended by Public Law No. 12-75, immediately request distribution of the Investment Development Fund." In turn, 30 F.S.M.C. 202(1) provides that "[n]otwithstanding any provision of Public Law No. 5-122, as amended, if requested by the Governor of a State, the Federated Development Authority shall direct the FSM Development Bank to distribute to that State any funds not yet obligated remaining in its State-earmarked subaccount."

The petition was originally filed in the Kosrae State Court on August 31, 2004. A petition for removal to this court was filed on September 20, 2004. Under Section II(D) of FSM General Court Order 1992-2, the filing of the petition itself effects removal so long as the specified requirements are met. On October 6, 2004, the Governor obtained issuance of subpoenas duces tecum directed to the Federated Development Authority and the FSM Development Bank. By order of October 7, 2003, the court requested briefing from the parties on whether FSM Appellate Rule 21(b), which applies to a mandamus petition filed before the appellate division, contemplates the use of discovery procedures in a mandamus proceeding. That same order gave the Legislature an opportunity to offer its views on whether this action was properly removed to this court in accordance with FSM Supreme Court GCO 1992-2. On October 18, 2004, the parties filed their submissions on these points. In its submission, the Speaker requests that this case be remanded to state court because there is no question of national law, and thus this court lacks subject matter jurisdiction over this dispute. Also on October 18, 2004, the Speaker filed a motion to strike certain portions of the Governor’s answer to the mandamus petition on the basis that portions of the answer are irrelevant and immaterial. On October 22, 2004, the Governor filed his response to the Speaker’s request for remand and motion to strike.

a. Jurisdiction

Article XI, Section 6(b) of the FSM Constitution provides in part that "[t]he national courts, including the trial division of the Supreme Court, have concurrent original jurisdiction in cases arising under . . . national law." "National courts" as used in this section refer to the trial division of the FSM Supreme Court and any other national courts that might be established by statute, and not to the state courts. Faw v. FSM, 6 FSM Intrm. 33, 35 (Yap 1993). Because Kosrae State Law No. 8-17, as discussed further below, makes a specific reference to a national statute, any interpretation of the state law must simultaneously present a question of national law. Thus this court has subject matter jurisdiction over this case. The Speaker’s request that this case be remanded to the Kosrae State Court is accordingly denied.

b. Discovery

The Governor urges that he needs to undertake discovery for at least three reasons: first, to determine if and when State Law No. 8-17 became law as a result of the legislative override of the Governor’s veto of the bill; second, to determine the approval date of a large loan from the subaccount to Tropical Waters Kosrae Incorporated ("TWKI"); and third, whether the FDA is taking the position that the funds are committed and therefore no longer subject to 30 F.S.M.C. 202. With respect to the first point, the effective date of State Law No. 8-17, which is a matter of public record, was June 3, 2003, and no discovery is required on this point. Nor is discovery required on the question raised as a part of the Governor’s third point, which is whether the FDA has reached the legal conclusion that the funds are subject to 30 F.S.M.C. 202. This is a question of law for the court to make.

[13 FSM Intrm.32]

The second point, at least in the abstract, raises a relevant question that relates to a material issue in this action, because it bears on whether there are unobligated funds remaining in the Kosrae IDF subaccount. The first part of the third point - the extent to which the FDA deems the funds in the IDF account to be committed - is also relevant, again at least in the abstract, because it also relates to the question whether the funds are obligated. The court poses relevancy as an abstraction because the Governor in his response to the Speaker’s request for remand recites that there is approximately $2,750,000.00 in the IDF account, and that all but $30,000.00 is obligated. The determination of the status of the funds held in the subaccount is the question to which the Governor’s discovery appears to be directed, and if this status is known, then the reason for the discovery is not apparent. However, the point for present purposes is that under the plain language of 30 F.S.M.C. 202(1), only unobligated funds are subject to the Governor’s request for distribution. While State Law No. 8-17 does not make reference to obligated funds, it makes a specific reference to 30 F.S.M.C. 202(1), stating that "with particular attention to Paragraph (1) of Section 202 of Title 30 of the Code of the Federated States of Micronesia as amended by Public Law No. 12-75, [the Governor of Kosrae] shall request distribution of the Investment Development Fund." Thus there is no conflict between these two laws, because the Kosrae statute, by reference to the national statute, incorporates the qualification for distribution contained in the national statute that only unobligated funds are subject to distribution. A statute must be given its plain meaning wherever possible, Rodriguez v. Bank of the FSM, [2003] FMSC 12; 11 FSM Intrm. 367, 378 (App. 2003), and here that plain meaning is derived by looking to the national statute specifically referred to in the state statute. That reference is made in no uncertain terms, since the mandate of State Law No. 8-17 is that the Governor shall make the request for distribution "with particular attention to" the national statute. Accordingly, under Kosrae State Law No. 8-17, the Governor has an obligation to request the distribution of only unobligated funds.

A mandamus action is an extraordinary remedy that is to be reserved for "rare and exceptional" circumstances. Damarlane v. Santos, 6 FSM Intrm. 45, 46 (Pon. 1993). The requirements for mandamus relief are that (1) the respondent must be a public official; (2) the action sought to be compelled must be nondiscretionary or ministerial; (3) the respondent must be under a clear duty to perform the act; (4) the respondent must have failed or refused to do the act; and (5) no other remedy must exist. In re Failure of Justice to Resign, [1995] FMCSC 3; 7 FSM Intrm. 105, 109 (Chk. S. Ct. App. 1995). Further, in order to state a claim for mandamus relief, a petitioner must allege that the respondent official "owes him or her a duty so plainly described as to be free from doubt." Pennsylvania v. National Ass’n of Flood Insurers, 520 F.2d 11, 25 (3d Cir. 1975); Coomes v. Adkinson, 414 F. Supp. 975, 984 (N.D. Miss. 1976). Here, the allegations of the petition fall short of this standard. The petition at 7 alleges that "the Governor had an immediate, ministerial, non-discretionary duty to request distribution of the entire Investment Development Fund" (bold and italics in original). However, when State Law No. 8-17 is read together with 30 F.S.M.C. 202(1) as the Kosrae law by its terms requires, the Governor has only an obligation to request the disbursement of unobligated funds. The petition is silent on this point: it makes no allegation that such unobligated funds remain in the account, nor does it provide any current specific amounts that may remain in the account, although the allegation is made that the original value of the account was in excess of $3,000,000, and that in October of 2003 the Governor requested a $600,000 disbursement. Petition for Writ of Mandamus 12 (Sep, 2004). In order toer to "so plainly describe[] [the duty owed to the Speaker] as to be free from doubt," Flood Insurers, 520 F.2d at 25, the petition must make specific allegations in this regard, because if no unobligated funds exist, then any dispute over whether the Governor must request distribution of these funds is moot. While the Governor recites in passing, Opp’n to Motion for Remand at 2, that the amount held in the account is estimated to be approximately $2,750,000.00 and that all but $30,000.00 is unobligated, this does not cure the defects in the Speaker’s petition, which as now pled fails "to show a duty so plainly described as to be free from doubt." Id. To the contrary, on the face of the petition doubt exists. This point is borne out by the Governor’s contention that "it must be presumed that the Legislature believes the entire $2,750,000 is available for its use." Id. Presumption and belief, irrespective of who makes the assumption or holds the belief, are insufficient to support allegations entitling a petitioner to mandamus relief.

[13 FSM Intrm.33]

None of the FSM Rules of Civil Procedure appears to govern the disposition of a mandamus petition filed before the trial division. At the same time, however, the power of the trial division of this court to entertain a petition for such a writ is beyond dispute. Damarlane, 6 FSM Intrm. at 46 (citing 4 F.S.M.C. 117). In reaching a disposition of the pending matters, the court will proceed analogously with Rule 21(b) of the FSM Rules of Appellate Procedure, which governs mandamus petitions before the appellate division, and provides that if the court "is of the opinion that the writ clearly should not be granted, [the court] shall deny the petition" even before an answer has been filed. Here, an answer has been filed, and the court has had the benefit of the parties’ additional briefing. The court now determines that the petition should be denied without prejudice for the reasons stated herein. In turn, this determination renders the Governor’s request for discovery moot. The request is denied. Similarly, the Speaker’s motion to strike portions of the answer to the petition is also moot, and is denied.

For the foregoing reasons, the petition for writ of mandamus is dismissed without prejudice.

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