Esa v Elimo [2006] FMSC 39; 14 FSM Intrm. 262 (Chk. 2006) (2 June 2006)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Esa v. Elimo, [2006] FMSC 39; 14 FSM Intrm. 262 (Chk. 2006)

KISAUO ESA, as Mayor of Tolensom Municipal)
Government, LORENSO FARAWEY, as Assistant
Mayor of Tolensom Municipal Government,
Plaintiffs,

vs.

LT. GOVERNOR JOHNSON ELIMO and THE
STATE OF CHUUK, AMANTO MARSOLO,
MAKKASA KAREN, CHUUK STATE ELECTION
COMMISSION, and the INTERIM GOVERNMENT
OF TOLENSOM MUNICIPALITY, acting ultra vires,
Defendants.

CIVIL ACTION NO. 2005-1027

ORDER GRANTING PARTIAL SUMMARY JUDGMENT

Dennis K. Yamase
Associate Justice

Decided: June 2, 2006

APPEARANCES:

For the Plaintiffs:
Andrea Hillyer, Esq.
P.O. Drawer D
Kolonia, Pohnpei FM 96941

For the Defendants:
Johnny Meippen, Esq.
P.O. Box 705
Weno, Chuuk FM 96942

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HEADNOTES

Separation of Powers - Chuuk - Executive Powers
The Governor’s constitutional power to declare an emergency may be exercised only at a time of extreme emergency caused by civil disturbance, natural disaster, or immediate threat of war or insurrection and to issue appropriate decrees. This power is discretionary and whether the Governor (or the Lieutenant Governor acting as Governor) abused his discretion is determined by an "arbitrary and capricious" standard. Esa v. Elimo, [2006] FMSC 39; 14 FSM Intrm. 262, 265 (Chk. 2006).

Separation of Powers - Chuuk - Executive Powers
The court cannot conclude that the Lieutenant Governor’s declaration of an emergency was invalid in itself. It is within the Governor’s constitutional power to determine whether there is a civil disturbance

[14 FSM Intrm. 269]

creating an extreme emergency. The court cannot question that. It is his, not a court’s, power to determine. Esa v. Elimo, [2006] FMSC 39; 14 FSM Intrm. 262, 265 (Chk. 2006).

Separation of Powers - Chuuk - Executive Powers
The second aspect of the issue is the propriety of the actions which the Lieutenant Governor’s proclamation directed to be taken, or, stated another way, whether the Lieutenant Governor issued appropriate decrees. The validity of the action taken following the declaration of emergency is determined by whether it was taken in good faith and in the honest belief of its necessity. Esa v. Elimo, [2006] FMSC 39; 14 FSM Intrm. 262, 265 (Chk. 2006).

Elections
The current election statute only gives the Chuuk State Election Commission the power to conduct municipal elections, if so provided by law or municipal constitutions and also requires that all election complaints be filed with the Chuuk Election Commissioner and that all appeals from the Election Commissioner’s decision go directly to the Chuuk State Supreme Court appellate division. Esa v. Elimo, [2006] FMSC 39; 14 FSM Intrm. 262, 265 & n.1 (Chk. 2006).

Separation of Powers - Chuuk - Executive Powers
The Lieutenant Governor’s proclamation was not an appropriate decree because it could not have been taken in good faith and with the honest belief of its necessity since, having determined that an emergency existed because of civil disturbances caused by disputes "between the Party of Kisauo Esa and the Party of Amando [sic] Marsolo," the proclamation then removed Esa from office and installed Marsolo. If civil disturbances between the two parties was causing an extreme emergency, this was an arbitrary and capricious method to address the emergency and cannot be an act taken in good faith that it would prevent further civil disturbance. Esa v. Elimo, [2006] FMSC 39; 14 FSM Intrm. 262, 265-66 (Chk. 2006).

Separation of Powers - Chuuk - Executive Powers
An emergency proclamation that orders the Chuuk Division of Finance to identify and locate funds to fund an election and to obligate those funds for that purpose would have been an inappropriate decree if it involved the expenditure of unappropriated funds and was not approved by the Chuuk Legislature because the Chuuk Constitution provides that a gubernatorial emergency decree may not involve the expenditure of unappropriated public funds unless approved by the Legislature. Esa v. Elimo, [2006] FMSC 39; 14 FSM Intrm. 262, 266 (Chk. 2006).

Separation of Powers - Chuuk - Executive Powers
Within 15 days after the gubernatorial declaration of emergency, the Legislature must convene at the call of the Speaker of the House of Representatives and the President of the Senate or at the Governor’s call to consider the declaration’s revocation, amendment, or extension. Unless it expires by its own terms or is revoked or extended, a declaration of emergency is effective for 15 days. Esa v. Elimo, [2006] FMSC 39; 14 FSM Intrm. 262, 266 (Chk. 2006).

Separation of Powers - Chuuk - Executive Powers
When an emergency declaration was never extended and the Chuuk Legislature never met to consider the emergency declaration’s revocation, amendment, or extension, although the Governor (and presumably the Lieutenant Governor if he was still Acting Governor) had the power to call the Legislature into session to consider the emergency declaration and to approve the expenditure of funds, the failure to call the Legislature into session raises further doubts that the declaration was made in the honest belief of its necessity. Esa v. Elimo, [2006] FMSC 39; 14 FSM Intrm. 262, 266 (Chk. 2006).

Separation of Powers - Chuuk - Judicial Powers
A gubernatorial emergency declaration is free from judicial interference for fifteen days after it is

[14 FSM Intrm. 270]

made. Esa v. Elimo, [2006] FMSC 39; 14 FSM Intrm. 262, 266 n.3 (Chk. 2006).

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COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

This comes before the court on the plaintiffs’ Motion for Partial Summary Judgment, filed December 1, 2005, and on the Opposition to Plaintiffs’ Motion for Partial Summary Judgment, filed December 6, 2005. Pursuant to their request and by the court’s May 9, 2006 order, the defendants were given the further opportunity to further brief any issue concerning the validity of acts done after the Lt. Governor’s proclamation expired by operation of law. They have not taken it.

I. Motion for Partial Summary Judgment

The plaintiffs move for summary judgment, as a matter of law, the Lt. Governor’s proclamation removing the plaintiffs from office and installing the defendants in the offices the plaintiffs had held was invalid and that any acts taken solely under that proclamation’s authority are void and without legal basis, including any acts done after the proclamation expired, is invalid.

On September 28, 2004, Tolensom held a general municipal election for all municipal elected officers. The plaintiffs, Kisauo Esa and Lorenso Farawey, were declared winners by the Tolensom Election Commission of the offices of Mayor and Assistant Mayor, respectively. Their opponents, Amanto Marsolo and Makkasa Karen, challenged the election in court actions in the Chuuk State Supreme Court. The state court eventually confirmed Esa and Farawey as winners. Final judgment in the state court actions was entered on March 10, 2005. The plaintiffs in the state court actions did not appeal the state court judgment.

On July 29, 2005, the Lieutenant Governor, in his capacity as acting Governor, issued a proclamation that declared an extreme emergency in Tolensom municipality because of the incessant mayoral power dispute "between the Party of Kisauo Esa and the Party of Amando [sic] Marsolo" was causing civil disturbance; declared the September 28, 2004 Tolensom municipal election undemocratic; removed all officials declared elected in the September 2004 election; appointed their opponents in that election as interim municipal officials in charge of an interim municipal government; and scheduled a Tolensom municipal election, to be administered by the Chuuk State Election Commission, for September 24, 2005 to elect permanent municipal officials. The plaintiffs contend that the Lieutenant Governor had no authority to make this "emergency proclamation" because it was not taken in good faith and in honest belief of its necessity. They further contend that, even if valid, the proclamation expired fifteen days later by operation of law because the Chuuk Legislature took no action. They ask that the court rule that all acts taken solely under the proclamation’s authority be held null and void, including those taken after it had expired fifteen days later (August 13, 2005).

The defendants contend that the Lieutenant Governor was acting (in the Governor’s place) to faithfully execute the Chuuk Constitution and the state’s laws and was exercising the Governor’s power to declare an emergency to preserve the public peace on Tolensom. The proclamation, in their view, was intended to restore public peace and democratic government by installing them in office until another, more democratic election was held.

The defendants attach affidavits to their opposition that aver various irregularities took place in the September 28, 2004 Tolensom municipal election that rendered that election undemocratic and the result questionable or void. The Lieutenant Governor’s proclamation also recited his mistrust of the state court

[14 FSM Intrm. 271]

judgment on that election and cited it as a cause of the civil disturbance in Tolensom. If the aggrieved candidates (Marsolo and Karen) were dissatisfied with, or mistrustful of, the state court judgment on the September 28, 2004 Tolensom election, their only proper avenue for relief was to appeal that judgment to the Chuuk State Supreme Court appellate division. They had that opportunity and, for no apparent reason, did not take it. The later result (according to the Lieutenant Governor’s proclamation) was civil disturbance on Tolensom.

II. The Emergency Declaration

The Governor’s constitutional power to declare an emergency may be exercised only "at a time of extreme emergency caused by civil disturbance, natural disaster, or immediate threat of war or insurrection and issue appropriate decrees." Chk. Const. art. VI, &##160;12(a). This This power is discretionary and whether the Governor (or in this case, the Lieutenant Governor acting as Governor) abused his discretion is determined by an "arbitrary and capus" standard. Aizawa v. a v. Chuuk State Election Comm’r[1998] FMCSC 9; , 8 FSM Intrm. 275, 280 (Chk. S. Ct. Tr. 1998).

The court cannot conclude that the Lieutenant Governor’s declaration of an emergency was invalid in itself. It is within the Governor’s constitutional power to determine whether there is a civil disturbance creating an extreme emergency. Id. at 279-80. The court cannot question that. It is his, not a court’s, power to determine.

The second aspect of the issue is the propriety of the actions which the Lieutenant Governor directed to be taken, or, stated another way, whether the Lieutenant Governor "issue[d] appropriate decrees." Chk. Const. art. IV, § 12(a). Tlidity of the actioaction taken following the declaration of emergency is determined by whether it was taken in good faith and in the honest belief of its neces Aizawa, 8 FSM Intrm. at 280.

The defendefendants ask that this court follow the Aizawa court’s lead. Aizawa involved the same municipality - Tolensom - as this case. In Aizawa, the Governor declared an emergency and ordered a municipal election (because one had not been held and the incumbent officials had enacted an ordinance continuing themselves in office for another term) to be conducted by the Chuuk State Election Commission. Id. at 279-80. The Aizawa court concluded that this was lawful because since the municipal election took place when the previous election law, Truk District Law No. 27-1-6, was in effect and that law, by its terms, gave the State Election Commissioner overall authority over all municipal elections, regardless of municipal "charter, law, or ordinance." Aizawa, 8 FSM Intrm. at 280 (quoting Truk Dist. Law No. 27-1-6, § 5). The new (and current) election statute only gives the Chuuk State Election Commission the power to conduct municipal elections, "if so provided by law or municipal constitutions."^{[1]Aizawa v. Chuuk State Elte Election Comm’r[1998] FMCSC 5; , 8 FSM Intrm. 245, 247 (Chk. S. Ct. Tr. 1998) (quoting Chk. Pub. L. No. 3-95-26, § 8). There is no nce that that the Chuuk State Election Commission has been authorized to conduct municipal elections in Tolensom. Thus the result in Aizawa (the election ordered by the Governor and conducted by the Chuuk State Election Commission was held valid) is not necessarily the result here.}

The Lieutenant Governor’s proclamation was not an appropriate decree. It could not have been taken in good faith and with the honest belief of its necessity because, having determined that an emergency existed because of civil disturbances caused by disputes "between the Party of Kisauo Esa and the Party of Amando [sic] Marsolo," the proclamation then removed Esa from office and installed Marsolo. If civil disturbances between the two parties was causing an extreme emergency, this was an arbitrary and capricious method to address the emergency. Removing one party’s standard-bearer and installing the other

[14 FSM Intrm. 272]

party’s in office, even if for only a two-month "interim" period, cannot be an act taken in good faith that it would prevent further civil disturbance. In Buruta v. Walter, [2004] FMSC 7; 12 FSM Intrm. 289, 294 (Chk. 2004), the court held that an executive order (which had not declared an emergency) continuing municipal officials in office indefinitely until a municipal constitution was adopted and an election held, but with no incentive to do either of those things and with every incentive not to, could only be termed arbitrary and capricious. While the desire to hold a fair and clean election on Tolensom is laudable, removing someone from office and installing his opponent is not a rational response to civil strife between the two.^[2] The court must therefore conclude that the action taken following the determination of an emergency was invalid. See Aizawa, 8 FSM Intrm. at 280.

There are other concerns that may impinge on the proclamation’s validity. The proclamation orders the Chuuk Division of Finance to identify and locate funds to fund the ordered September 24, 2005 Tolensom election and to obligate those funds for that purpose. The Chuuk Constitution provides that a gubernatorial emergency "decree may not involve the expenditure of unappropriated public funds unless approved by the Legislature." Chk. Const. art. VI, ټ12(a). It i It is unclear whether the funds sought for the September 24, 2005 election were unappropriated or not. It is cleat funds were not later approved by the Chuuk Legislature. If it involved the expenditure ofre of unappropriated funds and was not approved by the Chuuk Legislature it would have been an inappropriate decree. Within 15 days after the gubernatorial declaration of emergency, the Legislature must convene at the call of the Speaker of the House of Representatives and the President of the Senate or at the Governor’s call "to consider revocation, amendment, or extension of the declaration. Unless it expires by its own terms or is revoked or extended, a declaration of emergency is effective for 15 days." Chk. Const. art. VI, §&#1(c). The The emergency declaration was never extended and the Chuuk Legislature never met to consider the emergency declaration7;s revocation, amendment, or extension, although the Governor (and presumably the Lieutenautenant Governor if he was still Acting Governor) had the power to call the Legislature into session to consider the emergency declaration and to approve the expenditure of funds. Failure to call the Legislature into session raises further doubts that the declaration was made in the honest belief of its necessity. The emergency declaration thus expired by operation of law on August 14, 2005.

Lastly, the defendants assert that partial summary judgment cannot be granted because the plaintiffs have not overcome the defendants’ asserted affirmative defense of equitable estoppel and waiver - that the plaintiffs waived their right to challenge the results of the September 24, 2005 election ordered by the Lieutenant Governor by failing to register their complaint before it was held^[3] and by failing to challenge the election results pursuant to applicable law. However, the plaintiffs’ summary judgment motion does not go that far. It only seeks an adjudication of the Lieutenant Governor’s proclamation, not an adjudication on the September 24, 2005 municipal election. As such, that affirmative defense does not apply to this motion, but will need to be addressed at some later point.

[2006] FMSC 23; [14 FSM Intrm. 273]

III. Conclusion

Accordingly, the court concludes that although the Lieutenant Governor’s declaration of an emergency was within his power when acting as Governor, the declaration was invalid because he did not issue an appropriate decree when he ordered the removal of Esa as Mayor of Tolensom and the installation of his opponent, Marsolo. As stated above, this decision does not reach the issue of the September 24, 2005 election nor does it reach subsequent events.

A telephonic status conference is hereby set for June 8, 2006, at 11:45 a.m. to determine what further proceedings should be set.

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[14 FSM Intrm. 274]

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^[1] This election statute also requires that all election complaints be filed with the Chuuk Election Commissioner and that all appeals from the Election Commissioner’s decision go directly to the Chuuk State Supreme Court appellate division. Chk. Pub. L. No. 3-95-26, §§ 120.

^[2] The installation of a non-candidate caretaker and rerunning the previous election with the same ballot would have been more lito have been in good faith.aith.

^[3] The court notes that the plaintiffs could not have sought judicial relief until at least August 14, 2005 (and since that was a Saturday, Monday, August 16, 2005 would have been the first available day) because a gubernatorial emergency declaration is free from judicial interference for fifteen days after it is made. Chk. Const. art. VI, § 12(b).