Damarlane v Pohnpei Legislature [2007] FMSC 58; 15 FSM Intrm. 301 (App. 2007) (1 October 2007)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. P5-2000

KADALINO DAMARLANE,
Appellant,

vs.

POHNPEI LEGISLATURE,
Appellee

OPINION

Argued: April 20, 2007
Decided: October 1, 2007

BEFORE:
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court
Hon. Ready E. Johnny, Associate Justice, FSM Supreme Court

APPEARANCES:

For the Appellant:
Mary Berman, Esq.
P.O. Box 163
Kolonia, Pohnpei FM 96941

For the Appellee:
Salomon Saimon, Esq.
Pohnpei Department of Justice
P.O. Box 1555
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Appellate Review  Decisions Reviewable
When the case clearly raises issues concerning the FSM Constitution since the appellant claimed a violation of the FSM Constitution, which he not only asserted early on in the case, but which the Pohnpei Supreme Court appellate division also considered in rendering its opinion, the FSM Supreme Court thus not only has jurisdiction over the case, but its consideration of the state court's determination that the appellant's letter is not protected speech under the FSM Constitution is also ripe for review since FSM Constitution Article XI, Section 7 provides that the FSM Supreme Court appellate division has jurisdiction to hear appeals from cases heard in state and local courts if they require interpretation of the FSM Constitution. Damarlane v. Pohnpei Legislature, [2007] FMSC 58; 15 FSM Intrm. 301, 307 (App. 2007).

Constitutional Law; Federalism
A litigant may assert a claim in state or local court based upon a right provided under both a state and FSM Constitutions, and if a state constitution grants fewer rights than the FSM Constitution, a litigant may rely upon and assert his rights under the FSM Constitution. Damarlane v. Pohnpei Legislature, [2007] FMSC 58; 15 FSM Intrm. 301, 307 (App. 2007).

Appellate Renew  Decisions Reviewable; Constitutional Law; Federalism
Although a state court's determination of a litigant's rights under that state's constitution may be final and not subject to review by the FSM Supreme Court, a state court's determination of a litigant's rights guaranteed under the FSM Constitution is subject to de novo review by the FSM Supreme Court since a state constitution cannot deprive the FSM Supreme Court of its jurisdiction granted under the FSM Constitution because the FSM Constitution is the supreme law of the land. Damarlane v. Pohnpei Legislature, [2007] FMSC 58; 15 FSM Intrm. 301, 307 (App. 2007).

Appellate Renew  Decisions Reviewable; Constitutional Law  Supremacy Clause; Federalism
Any conflict between the Pohnpei Constitution provision that no appeal of any matter relating to the Pohnpei Constitution, Pohnpei law, customs or traditions may be made to any court except the Pohnpei Supreme Court and the FSM Supreme Court's jurisdiction to hear cases under the FSM Constitution is resolved under the FSM Constitution's supremacy clause, which provides that any act of a government that conflicts with the FSM Constitution is invalid, to the extent of the conflict. Damarlane v. Pohnpei Legislature, [2007] FMSC 58; 15 FSM Intrm. 301, 307 (App. 2007).

Appellate Review  Briefs, Record and Oral Argument; Appellate Review  Dismissal
Although briefs must be bound in volumes having pages not exceeding 8½ by 11 inches and type matter not exceeding 6½ by 9½ inches, with double spacing between each line of text and the cover of the appellant's brief must be blue; that of the appellee, red; that of an intervenor or amicus curie, green; and that of any reply brief gray, and except by court permission, the parties' principal briefs must not exceed 50 pages, and the reply briefs not exceed 25 pages, when the appellant's briefs were not all bound in blue because blue paper was unavailable on-island; when, even though that brief used spacing of one and one half, instead of double spacing, it was possible that if the brief had contained the proper double spacing of typed matter it might have resulted in the same amount of text being presented within the 50 page limit; and when the appellee did not raise the issue concerning the color of the coversheet to the appellant's brief before it submitted its own brief, the appellee's request to strike the appellant's brief will be denied. Damarlane v. Pohnpei Legislature, [2007] FMSC 58; 15 FSM Intrm. 301, 308 (App. 2007).

Appellate Review  Dismissal
Although an appeal's dismissal for failure to comply with procedural rules is not favored, Appellate Procedure Rule 3(a) does authorize dismissal in the exercise of sound discretion. That discretion, however, should be sparingly used unless the party who suffers it has had an opportunity to cure the defect and failed to do so. Moreover, before dismissing an appeal, the court should consider and weigh such factors as whether the defaulting party's action is willful or merely inadvertent, whether a lesser sanction can bring about compliance and the degree of prejudice the opposing party has suffered because of the defect. Damarlane v. Pohnpei Legislature, [2007] FMSC 58; 15 FSM Intrm. 301, 308 (App. 2007).

Appellate Review  Briefs, Record and Oral Argument
The court will not look favorably upon anyone who attempts to manipulate type face in an effort to circumvent the intent of the Appellate Procedure Rules, which is to place a reasonable limitation on submissions to the court which, in turn, prevent the court from wasting time and resources. In such cases, the court may decide not to strike a brief when there is no evidence of any intentional disregard for the rules, and when the other party has not been prejudiced. Damarlane v. Pohnpei Legislature, [2007] FMSC 58; 15 FSM Intrm. 301, 308 (App. 2007).

Appellate Review  Standard of Review  Civil Cases
When the facts are not in dispute and questions of law alone are present, the appellate court reviews these questions de novo. Damarlane v. Pohnpei Legislature, [2007] FMSC 58; 15 FSM Intrm. 301, 312 (App. 2007).

Constitutional Law  Freedom of Expression
The right of citizens to express their views, including views critical of public officials, is fundamental to development of a healthy political system. Damarlane v. Pohnpei Legislature, [2007] FMSC 58; 15 FSM Intrm. 301, 312 (App. 2007).

Constitutional Law  Freedom of Expression
When a legislature employee aired his opinion about a number of issues concerning the Speaker in a letter that was submitted directly to the Speaker, with copies to the Governor and the Pohnpei Supreme Court Chief Justice, it did not constitute an employee grievance. When the employee's assertion that he was notifying the Speaker of his intention to seek redress over his missing raise was false because an earlier letter previously notified the Speaker about the initiation of such legal proceedings; and when the employee appears to have sent the letter in pursuit of matters of a purely personal interest and the letter's overall tone was one of a personal grievance about his pay raise and his canceled travel plans to events in Guam and Florida, which other Legislature employees had attended, the overriding factor is the context in which the statements were made: in pursuit of matters of the employee's personal importance and not as protected free speech. Damarlane v. Pohnpei Legislature, [2007] FMSC 58; 15 FSM Intrm. 301, 312-13 (App. 2007).

Constitutional Law  Freedom of Expression
In evaluating a government employee's speech, the issue is not whether the speaker's statements were true or false, but instead whether the speech is made in the context of a public citizen making statements about issues of public importance, or as an employee making statements about matters of personal interest. Thus, courts must begin by considering whether the expressions in question were made by the speaker as a public citizen. Damarlane v. Pohnpei Legislature, [2007] FMSC 58; 15 FSM Intrm. 301, 313 (App. 2007).

Constitutional Law  Freedom of Expression
A state employee's speech that concerns genuine public issues would be protected, but his speech that relates to items of personal importance to the employee would not necessarily be protected. Damarlane v. Pohnpei Legislature, [2007] FMSC 58; 15 FSM Intrm. 301, 314 (App. 2007).

Constitutional Law  Equal Protection
The Equal Protection Clause protects a person against discrimination based on account of sex, race, ancestry, national origin, language or social status, but a person's position in government employment does not constitute "social status." The term "social status" refers to a person's rank or place in society, not to his position in government. In traditional Micronesian societies, social status could include a person's place or rank within his or her lineage, what caste he or she is part of, whether and what traditional title the person might hold, or whether the person has chiefly (social) status. Damarlane v. Pohnpei Legislature, [2007] FMSC 58; 15 FSM Intrm. 301, 314-15 (App. 2007).

* * * *

COURT'S OPINION

MARTIN G. YINUG, Associate Justice:

I. Introduction

This appeal arises from the termination of the Appellant-Damarlane's employment at the Pohnpei State Legislature ("Legislature"). The Appellant ("Damarlane") maintains that he was terminated for writing a letter that was critical of the then Speaker of the Legislature. Damarlane's letter, dated November 13, 1986, and addressed to the Speaker of the Legislature Ambros Senda, stated as follows:

This is to let you know how frustrated and pissed off I'm with your administration.

At the outset, you have introduced certain resolution which will hurt the Legislature employees so bad that they will end up starving to dead [sic] or going to jail. I do not understand your motives so far but don't dwell on them because we are two completely different people, you are rich and I'm poor (emphasis in original).

Because of your poor management there is a law suit [sic] in process against the Legislature. You and Tom's refusal to comply with the intention of the law to me is unethical and unfounded. To think that you and Tom can break the law is beyond my imagination. You guys complaint [sic] about not having enough money and boy imagine how much tax payers money your administration has expended just in traveling, let us not mention people that your administration questionably contracted their unwanted, expensive and unprofessional services.

When your administration came into power you adopted a platform to conserve public funds. But what a laugh! As soon as you became Speaker, you completely return [sic] to your businessman image. Such attitude can not [sic] work in the government sector. Also, there is nothing which is listed in the rules of order that specifically says that you can travel to perform duties inherently assigned to the jurisdictions of the Committee. But since you are a businessman you have jumped for each opportunity to travel on the expense of the people for your own interests. Let me tell you that you are taking advantage of public funds.

Lastly, let me ask you if you have any personal problem against me. You've been sitting on my step increase for almost three months now. Second, you signed every T.A. going to Orlando, Florida except mine. Lastly, you cancel my trip as a staff to Guam for no known reasons. Personally speaking I think as a Pohnpeian you and I should resolve this matter as grown-ups before it gets out of control.

Hope to hear from you soon.

/s/ Kadalino Damarlane

cc: Governor, Pohnpei

Chief Justice, Pohnpei Supreme Court

Because Damarlane was a government employee, he maintains that the termination of his employment based upon his dissemination of this letter violated his right to free speech under both the FSM and Pohnpei Constitutions. Upon review, however, the Pohnpei Supreme Court trial division rejected Damarlane's claim. In entering its judgment, the trial court found that Damarlane's letter was not protected speech under the Pohnpei Constitution and, that in any event, there were several other valid bases supporting the Legislature's termination of Damarlane's employment.

In turn, the Pohnpei Supreme Court appellate division affirmed the lower court's decision. In its opinion, the appellate division found that Damarlane's letter criticizing the Speaker was not protected speech under either the Pohnpei Constitution or the FSM Constitution. In addition, the appellate court found that the other bases cited by the Legislature in support of the termination of Damarlane's employment were sufficient, even in the absence of the letter in question.

We affirm the Pohnpei Supreme Court appellate division opinion that Damarlane's letter is not protected speech under the FSM Constitution and, as such, the termination of Damarlane's employment was not unlawful. Our reasons are set forth below.

II. Background

This is not the first occasion that this case has come before us. Previously, in Damarlane v. Pohnpei Legislature, [1997] FMSC 32; 8 FSM Intrm. 23 (App. 1997), we vacated a Pohnpei Supreme Court appellate division opinion which dismissed Damarlane's appeal of the trial court judgment described above. Our basis for doing so rested in the failure of the then Chief Justice of the Pohnpei Supreme Court to disqualify himself from the appellate panel based upon his personal bias against Damarlane's counsel.

We remanded the case to the Pohnpei Supreme Court appellate division and instructed that it be reheard with a reconstituted appellate panel. We further explained that "the Pohnpei Supreme Court Appellate Division may rule upon the FSM Constitutional issue, Gimnang v. Yap, 5 FSM Intrm. 13, 18 (App. 1981) (state court competent to rule on FSM Constitution), but should do so last, Jonah v. FSM, [1992] FMSC 8; 5 FSM Intrm. 308, 313 (App. 1992) (unnecessary adjudication of the FSM Constitution to be avoided)." We also suggested that "[i]n ruling on the constitutional issue the Pohnpei Supreme Court Appellate Division may want to consider Mt. Healthy City Bd. of Educ. v. Doyle, [1977] USSC 5; 429 U.S. 274, 287[1977] USSC 5; , 97 S. Ct. 568, 576[1977] USSC 5; , 50 L. Ed. 2d 471, 484 (1977) (if preponderance of the evidence shows employee would have been terminated even in the absence of the protected free speech conduct, then employee's termination should be upheld)." Damarlane, 8 FSM Intrm. at 28.

The United States Supreme Court's decision in Doyle provides guidance about how courts in the United States address claims from government employees who purportedly suffered adverse action in response to statements that they made, or actions they took, which might be considered constitutionally protected activity. There, the United States Supreme Court explained that once an employee meets his burden of showing that his actions are both constitutionally protected and a motivating factor in his employer's decision to take adverse action, the burden shifts to the employer to show  through a "preponderance of the evidence"  that it would have taken the same action in the absence of the protected action.

In Doyle, the employee, an un-tenured teacher, challenged the decision of his school board employer not to renew his contract as a public school teacher. Upon review, however, the Court found that while the employee had been openly critical of his employer in various public forums  an action that was protected by the Constitution  there was more than sufficient evidence in the record of other action by the employee  none of which was protected  that would have resulted in the employer taking the same action in the absence of the protected action. For example, the employee in Doyle engaged in arguments with his colleagues  to the point that one colleague slapped him  as well as other workers in the school cafeteria over the amount of food he was served. The record showed that he also made obscene gestures towards students. Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. at 281-82, 97 S. Ct. at 573, 50 L. Ed. 2d at 480.

It would thus appear that our suggested manner of handling this case on remand would have been for the Pohnpei Supreme Court appellate division to assume that Damarlane's actions were both constitutionally protected and a motivating factor that led to the termination of his employment. From there, the Pohnpei court would have then only needed to consider if the Legislature had, through a preponderance of the evidence, shown that it would have terminated employment in the absence of the protected action. Such an analysis would have avoided any adjudication of the constitutional issue arising from Damarlane's November 13, 1986 letter at issue here. Suldan v. FSM (II), [1983] FMSC 14; 1 FSM Intrm. 339, 357 (App. 1983) (courts should avoid unnecessary constitutional adjudication).

Despite the instructions provided by this Court on remand, the Pohnpei Supreme Court appellate division nonetheless considered the constitutional issue arising from Damarlane's letter. In doing so, the Pohnpei Supreme Court appellate division, citing to Doyle, found that Damarlane's letter of November 13, 1986, was not protected speech under either the FSM or Pohnpei Constitutions. As such, the court not only determined that the Legislature's termination of Damarlane based upon the letter he authored was proper, but went on to further conclude that there was sufficient evidence of other action taken by Damarlane that, even in the absence of the letter in question, affirmed the Legislature's termination of his employment.

Damarlane's issues on appeal include a challenge to the lower court's findings that the letter he authored was not protected speech, along with a challenge to the lower court's finding that there was sufficient evidence of other activity to support the termination of his employment. For its part, the Legislature argues that the lower court's findings be affirmed in all regards.

Because the Pohnpei Supreme Court appellate division did consider the constitutional issue raised by Damarlane's November 13, 1986 letter, we too must review that lower court's opinion on appeal. However, in order to do so, we must first address two preemptive challenges raised by the Legislature which, if meritorious, would preclude our review over this constitutional issue.

III. Preemptive Challenges

A. Jurisdiction

Previously, in Damarlane v. Pohnpei Legislature, [1997] FMSC 32; 8 FSM Intrm. 23 (App. 1997), we heard and rejected the Legislature's contention that this Court lacked jurisdiction to hear this appeal based upon a provision in the Pohnpei Constitution, which provides that "no appeal of any matter relating to the Constitution, Pohnpei law, customs or traditions may be made to any other court, except the Pohnpei Supreme Court." Pon. Const. art. 10, § 4(5). In our opinion, we explained that because the appeal raised issues under the FSM Constitution, this Court had jurisdiction under the FSM Constitution to hear such an appeal, including an appeal from the highest state court of Pohnpei.

However, and just as it previously argued, the Legislature in the instant appeal again argues that this Court lacks jurisdiction over this appeal based upon the language in Article 10, Section 4(5) of the Pohnpei Constitution. In support of this contention, the Legislature argues that since the issue of judicial bias is no longer present in the case, thereby extinguishing any due process concerns under the FSM Constitution, this Court lacks jurisdiction to hear an appeal from the Pohnpei Supreme Court appellate division. The Legislature, again relying upon the language found at Article 10, Section 4(5) of the Pohnpei State Constitution, argues that the final appellate forum for all of Damarlane's claims is the Pohnpei Supreme Court appellate division.

According to the Legislature, although Damarlane has asserted a violation of the FSM Constitution, this Court should look beyond the mere allegation of a violation of the constitution. The Legislature maintains that the allegation of a violation of the constitution is merely an "illusion." The Legislature argues that upon closer examination it is clear that this appeal only concerns matters under the Pohnpei Constitution, as well as Pohnpei custom and tradition.

This case, however, clearly raises issues concerning the FSM Constitution. We need look no further than Damarlane's claimed violation of the FSM Constitution, which he not only asserted early on in this case, but which the Pohnpei Supreme Court appellate division considered in rendering its opinion in this case. Thus, not only do we have jurisdiction over this case, but our consideration of the state court's determination that Damarlane's letter is not protected speech under the FSM Constitution is ripe for review. Indeed, Article XI, Section 7 of the FSM Constitution provides that we have jurisdiction to hear appeals from cases heard in state and local courts if they require interpretation of the FSM Constitution.

The FSM Constitution provides that this Court's jurisdiction extends to appeals from state and local courts if the case requires interpretation of the FSM Constitution, national law or treaty. FSM Const. art. XI, § 7. A litigant may assert a claim in state or local court based upon a right provided under both a state and FSM Constitutions. If a state constitution grants fewer rights than the FSM Constitution, a litigant may, as Damarlane did in the case at hand, rely upon and assert his rights under the FSM Constitution. Although a state court's determination of a litigant's rights under that state's constitution may be final and not subject to review by this Court, a state court's determination of a litigant's rights guaranteed under the FSM Constitution is subject to de novo review by this Court. The FSM Constitution is also the supreme law of the land. FSM Const. art. II, § 1. Because this case involves interpretation of the FSM Constitution's freedom of expression, this Court has jurisdiction over this case. A state constitution cannot deprive the FSM Supreme Court of its jurisdiction granted under the FSM Constitution. Gimnang v. Yap, 5 FSM Intrm. 13, 23 (App. 1981).

However, and as we previously explained in Damarlane v. Pohnpei Legislature, [1997] FMSC 32; 8 FSM Intrm. 23, 26-27 (App. 1997), we do not believe that the provision in the Pohnpei Constitution at issue here stands for the position espoused by the Legislature. Moreover, to the extent that it did, any conflict between that provision of the Pohnpei Constitution and this Court's jurisdiction to hear cases under the FSM Constitution would be resolved under the supremacy clause of the FSM Constitution, which provides that any act of a government that conflicts with the FSM Constitution is invalid, to the extent of the conflict. FSM Const. art. II, § 1.

Accordingly, the Legislature's claim that this Court lacks jurisdiction to hear this case is simply untenable, as is the Legislature's claim that all appeals in Pohnpei end with the Pohnpei Supreme Court's appellate division. However, because we do not accept the Legislature's interpretation of Article 10, Section 4(5) of the Pohnpei Constitution, we find that there is no conflict between that provision of the Pohnpei Constitution and the FSM Constitution.

B. Failure to Comply with Rules Governing Briefs

The Legislature also seeks to have Damarlane's brief stricken from the record based upon his failure to include a blue cover sheet with his brief, as required by FSM App. R. 32(a). A review of the various briefs that Damarlane filed with this Court show that the cover sheet for some briefs is blue, while others are beige.

According to Damarlane, at the time his brief was filed there was not enough blue-colored paper in Pohnpei to provide blue-colored cover sheets for all the copies of the briefs that he was required to file. Damarlane states that some of the briefs filed with the Court contained blue cover sheets, while others, including the copy served on the Legislature, did not.

FSM App. R. 32 states that briefs shall be bound in volumes having pages not exceeding 8½ by 11 inches and type matter not exceeding 6½ by 9½ inches, with double spacing between each line of text. The cover of Damarlane's brief shall be blue; that of the Legislature, red; that of an intervenor or amicus curie, green; that of any reply brief gray. Except by permission of the court, the parties' principal briefs shall not exceed 50 pages, and the reply briefs shall not exceed 25 pages. FSM App. R. 28(g).

The Court takes note that there is an additional defect in Damarlane's brief: it includes type matter which is not double spaced. Instead, it includes type matter that is spaced at the rate of one and one half. In addition, the Court notes that the covers of some of the copies of the Reply brief filed by Damarlane are not gray; instead, they appear to be beige or light yellow.

By using spacing of one and one half, instead of double spacing, Damarlane has been able to include more text on each page of his brief than he would have otherwise been permitted under the Court's Rules of Appellate Procedure. On the other hand, Damarlane's brief, even at using spacing of one and one half, is only 38 pages in length. This resulted in 12 pages less than the 50 page limit imposed by the Rules of Appellate Procedure. Thus, it is possible that a brief which contained the proper double spacing of typed matter might have resulted in the same amount of text being presented within the 50 page limit.

Although the dismissal of an appeal for failure to comply with procedural rules is not favored, Rule 3(a) of the Court's Rules of Appellate Procedure does authorize dismissal in the exercise of sound discretion. That discretion, however, should be sparingly used unless the party who suffers it has had an opportunity to cure the defect and failed to do so. Moreover, before dismissing an appeal . . . the Courtld consider and and weigh such factors as whether the defaulting party's action is willful or merely inadvertent, whether a lesser sanction can bring about comce an degree of prejudice the opposing party has suffesuffered bred because of the defect. Wainit v. Weno, [2002] FMCSC 21; 10 FSM Intrm. 601, 608 (Chk. S. Ct. App. 2002) (ellipsis in original) (quoting Horner Equip. Int'l. Inc. v. Seascape Pool Ctr., Inc., [1989] USCA3 1024; 884 F.2d 89, 93 (3d Cir. 1989)).

Previously, we have stated that the court will not look favorably upon anyone who attempts to manipulate type face in an effort to circumvent the intent of the Rules of Appellate Procedure, which is to place a reasonable limitation on submissions to the court which, in turn, prevent the court from wasting time and resources. In such cases, the court may decide not to strike a brief when there is no evidence of any intentional disregard for the rules, and when the other party has not been prejudiced. Panuelo v. Amayo, [2002] FMSC 37; 11 FSM Intrm. 205, 208 (App. 2002).

In the matter at hand, under the circumstances, including the fact that the Legislature did not raise the issue concerning the color of the coversheet to Damarlane's brief prior to the submission of its own brief, the Court will deny the Legislature's request to strike Damarlane's brief.

IV. Constitutional Issue

A. Termination of Employment

The record on appeal shows that Damarlane began his employment with the Pohnpei Legislature on August 12, 1985, as a legislative aide. After completing a one year probationary period, Damarlane became a permanent employee.

Thereafter, however, on January 23, 1987, the Speaker of the Legislature abruptly terminated Damarlane's employment. In his notice, the Speaker cited four reasons for Damarlane's termination. First, the Speaker stated that he received a November 13, 1986 letter from Damarlane which was "disrespectful." The pertinent parts of the letter are quoted above. The Speaker further noted that Damarlane's sharing of the letter with the Governor and Chief Justice of the Pohnpei Supreme Court evidenced his disloyalty.

Second, the Speaker cited Damarlane's failure to adhere to the Legislature's dress code. According to the Speaker, Damarlane failed to adhere to the dress code on at least two occasions. The Speaker maintained that this action constituted insubordination, which was an offense that called for immediate removal from office.

Third, the Speaker maintained that Damarlane helped himself to the hind quarter of a pig at the Legislature's 1986 Christmas party, and that he did so before the party had even started. The Speaker asserted that this action was so disrespectful that it warranted immediate removal from office.

Fourth, the Speaker maintained that Damarlane used Legislature stationery to espouse his own personal opinions on several occasions. According to the Speaker, the tone of Damarlane's letters was "most unprofessional." The Speaker asserts that such action warrants removal from office.

B. Administrative Appeal

Following a hearing, a Legislative committee comprised of various members of the Legislature, issued a decision on February 25, 1987, affirming the termination of Damarlane's employment on all four of the bases cited by the Speaker in his January 23, 1987 letter to Damarlane.

C. Appeal to Pohnpei Supreme Court

1. Trial Division

Damarlane next appealed to the Pohnpei Supreme Court's trial division, arguing that the various bases for his termination, cited by the Speaker and affirmed by the Legislative committee that heard his appeal, were a pretext. According to Damarlane, the actual reason for his termination was that he had actively pursued securing a pay raise, including consulting an attorney and advising the Speaker that he would be filing suit to secure such a raise. Damarlane's Complaint also asserts that he was denied due process of law by the Legislative committee that heard his appeal, as "additional charges were introduced" which Damarlane maintains he had no notice of and, as such, no opportunity to provide a meaningful response. This claim, however, was apparently abandoned at trial and is not present in this appeal.

Following trial, the Pohnpei Supreme Court's trial division issued a final judgment denying Damarlane's claims. In doing so, the court found that each of the four charges cited by the Legislature as the bases for Damarlane's termination were alone legally sufficient to support the termination of Damarlane's employment. The court noted that the Legislature had issued a Manual of Administration which provided for procedures for disciplining employees, including termination of employment for various offenses such as insubordination and misappropriation of government property. The trial court also noted that under the Legislature's Manual of Administration, insubordination included intentional disrespect or the use of insulting or abusive language to a superior.

With regard to Damarlane's November 13, 1986 letter to the Speaker, the trial court found that the letter constituted intentional disrespect for a superior as well as the use of abusive language to a superior, both of which are punishable by termination. The court rejected Damarlane's assertion that his letter was protected free speech, at least under the Pohnpei Constitution. The Pohnpei Constitution provides that no government action may deny or impair the right of every person to speak, write, and publish freely on any subject and the right to receive information on all subjects. The Constitution further provides that a person may be held responsible for untruthful statements injuring other persons without privilege, and for statements creating a clear and immediate danger of unlawful conduct or substantial injury to the public. Pon. Const. art. 4, § 1. The trial court found that Damarlane's November 13, 1986 letter contained false statements that were recklessly made with the intent to provoke the Speaker. The court determined that such a letter was not protected speech under the Pohnpei State Constitution and, as such, the Legislature acted properly in terminating Damarlane based upon his issuance of the letter in question. The trial court, however, made no finding with respect to Damarlane's claim that the Legislature's action violated the FSM Constitution although Damarlane specifically raised that issue.

2. Appellate Division

In the second Pohnpei Supreme Court appellate division decision now before us for review, that court concluded that Damarlane's November 13, 1986 letter was not protected speech under either the Pohnpei Constitution or the FSM Constitution and dismissed Damarlane's appeal. That court, citing to the United States Supreme Court cases of Connick v. Myers, [1983] USSC 69; 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983), and Pickering v. Board of Educ., [1968] USSC 125; 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968), explained that while public employees do not relinquish their first amendment rights by virtue of being employed, an employer has an interest in regulating the speech of its employees in order to promote the efficiency of the public service that it performs, necessarily through its employees.

In Pickering, a teacher was fired when his letter criticizing the school board that employed him was published in a newspaper. The school board rejected his contention that his letter was protected by the United States Constitution's First Amendment guarantee of free speech. After the state's highest court affirmed his termination, the United States Supreme Court reversed, holding that protected statements could not serve as a basis for a government employee's termination. The court explained that even if the statements in question were erroneous, they were the subject of a public debate over school funding. In addition, although the teacher's statements were critical of his employer, the statements in no way reflected on the teacher's job performance. As such, the teacher's dismissal, based upon his issuance of the letter in question, violated the First Amendment.

Similarly, in Connick, a government attorney was fired after she circulated a questionnaire within the office that called into question her employer's policy of transferring attorneys to other divisions; there were no issues over her job performance. The questionnaire also inquired whether there should be a grievance process, if other attorneys had faith in certain supervisors and if other attorneys felt pressured into supporting certain political candidates who were supported by the office management. The questionnaire was circulated after the attorney received notice that she would be transferred, an action that she had protested. The basis for the employee's termination in Connick was her refusal to accept a transfer and her circulation of the questionnaire, both of which were deemed to be insubordination.

Although the lower courts in Connick found that the employee's circulation of the questionnaire was protected free speech, as it concerned matters of public importance, the United States Supreme Court reversed, holding that while the questionnaire included one issue of public concern, overall the questionnaire related to matters that were only of personal interest to the employee. The Court determined that under these circumstances, the employee's actions were not protected and that her termination for insubordination, arising from her distribution of the questionnaire, was proper.

In dismissing Damarlane's appeal the Pohnpei Supreme Court appellate division, quoting Connick, explained:

We hold only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of a personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior. . . . Our respoliibiis t ensurensure that citizens are not deprived of fundamental rights by virtue of working for the government; this does not require a grant of immunity fployeevanct afforded by the First Amendment to thto those wose who doho do not work for the state.

Damarlane v. Pohnpei Legislature, PSC App. No. 4-91 at 10 (Sept. 7, 2000) (quoting Connick at 461 U.S. 147, 103 S. Ct. at 1690, 75 L. Ed. 2d at 72).

The Pohnpei Supreme Court appellate division then analyzed the November 13, 1986 letter that Damarlane sent to the Speaker, copies of which Damarlane provided to the Governor and Chief Justice of the Pohnpei Supreme Court. That court, citing to Mt. Healthy City Bd. of Educ. v. Doyle, [1977] USSC 5; 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977), explained that the burden rested with Damarlane to demonstrate that his conduct is both constitutionally protected and a substantial or motivating factor in his employer's decision to take adverse action against him. As the lower court explained, if the employee has met this burden, then the burden shifts to the employer to demonstrate that it would have taken the same action in the absence of the protected conduct. Damarlane v. Pohnpei Legislature, PSC App. No. 4-91 at 11.

According to the lower court, while the trial court found all of Damarlane's statements to be false and reckless, Damarlane's "statements about poor management, bad resolutions, excessive travel, and 'taking advantage of public funds' are opinions that he and any other citizen are entitled to." Id. at 12. Thus, to some degree, Damarlane's November 13, 1986 letter contained elements of protected speech. The lower court, however, found that Damarlane's letter also contained items of a distinctly personal interest and as such, the letter "treads a very fine line between a personal grievance and matters of public concern." Id. For example, Damarlane criticized the Speaker for his use of public funds, but also for personnel decisions that personally affected Damarlane. In addition, the letter asked the Speaker if he had any personal problem with Damarlane. The court further noted that Damarlane had conceded in his brief that the primary reason for sending the letter was to obtain a pay raise without lengthy litigation, a matter which would be personal to Damarlane. According to the court, this point was also made clear when Damarlane appeared before the Legislative committee that heard his first appeal; Damarlane purportedly admitted that he was angry and frustrated when he sent the letter and that he did so in order to coerce the Speaker into giving him a raise. Id. at 15.

In the end, the Pohnpei Supreme Court appellate division found that Damarlane "wrote the letter in pursuit of a personal employment grievance and only tangentially to publicize an alleged wrong" of any public significance. Id. As such, "neither the Pohnpei Constitution nor the FSM Constitution protects" Damarlane's letter. Id. at 16. Accordingly, since Damarlane's conduct was not constitutionally protected speech, the Legislature's decision to terminate Damarlane was affirmed by the court. The court also affirmed that substantial evidence existed to support the trial court findings of insubordination, intentional disrespect, and misappropriation of government property. Id. at 16. The court further concluded that under the circumstances, including the number of offenses Damarlane had committed, the severity of the offenses, and the suggested penalties for the offenses set forth in the Legislature's Manual of Administration, termination of Damarlane's employment was not an abuse of discretion on the part of the Legislature. Id. at 17.

D. Appeal to the FSM Supreme Court

On appeal, issues of law are reviewed de novo. George v. Nena, [2004] FMSC 9; 12 FSM Intrm. 310, 313 (App. 2004); Tulensru v. Wakuk, [2001] FMSC 48; 10 FSM Intrm. 128, 132 (App. 2001); Department of Treasury v. FSM Telecomm. Corp., [2000] FMSC 14; 9 FSM Intrm. 460, 464 (App. 2000). When the facts are not in dispute and questions of law alone are present, the appellate court reviews these questions de novo. Sigrah v. Kosrae, [2004] FMSC 10; 12 FSM Intrm. 320, 324 (App. 2004). Accordingly, the Pohnpei Supreme Court appellate division's determination that Damarlane's November 13, 1986 letter was not protected free speech under the FSM Constitution is subject to our de novo review determination.

Although we have recognized that the right of citizens to express their views, including views critical of public officials, is fundamental to development of a healthy political system, In re Iriarte (I)[1983] FMSC 1; , 1 FSM Intrm. 239 (Pon. 1983), a review of published decisions in the FSM shows that this issue has not previously been addressed by this Court. Thus, the resolution of this issue at hand is a matter of first impression for this Court.

Pertinent cases from the United States, including the Pickering, Doyle and Connick, all of which concern free speech claims raised by government employees, have not been overruled. Indeed, the most recent case of Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006), shows that the United States Supreme Court continues to rely upon its earlier decisions in both Pickering and Connick.

In Garcetti, the United States Supreme Court vacated a lower court decision that precluded an assistant district attorney from being disciplined for a memorandum he wrote in connection with the performance of his job. The memorandum was critical of an affidavit that was obtained from a police officer and used during the prosecution of a case. The employee recommended that the case be dismissed based upon government misconduct.

Citing to Connick, the United States Supreme Court held that while "'a State cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression,'" the First Amendment would not preclude a government employee from being disciplined for speech made pursuant to the employee's official duties. Garcetti, 547 U.S. at 413, 126 S. Ct. at 1955, 164 L. Ed 2d at 693. The United States Supreme Court explained that under Pickering and the cases decided in its wake, the inquiry began by determining if the employee spoke out as a citizen on a matter of public concern. If not, then the employee has no free speech claim. On the other hand, if the employee was speaking out as a citizen, then the court is required to determine if the government entity had an adequate justification for treating the employee differently from any other member of the general public. Because the assistant district attorney in Garcetti wrote the memorandum in question in the course of performing his work duties, he was not acting as a public citizen and the First Amendment would not shield him from discipline.

In the matter at hand, Damarlane has attempted to compare his own situation to that in Pickering while contrasting it to that in Connick, which Damarlane maintains the Pohnpei Supreme Court appellate division misunderstood and misapplied. For example, Damarlane maintains that he believed that his letter constituted a legitimate employee grievance which the Legislature failed to consider, much less process under its Manual of Administration. He also contends that it was an unofficial notification to the Speaker that if Damarlane's statutorily-mandated pay raise was not forthcoming a lawsuit would be filed.

Filing a legitimate grievance, however, was never an issue in either Pickering or Connick. Moreover, not only does this appear to be the first occasion in which Damarlane has argued that his November 13, 1986 letter was a "grievance," but it does not appear to qualify as such under Legislature's Manual of Administration. Indeed, that Manual explains that grievances are limited to contesting discretionary actions taken by the Legislature's management, and are initiated by submitting a grievance statement to the Legislative Clerk. In the matter at hand, Damarlane aired his opinion about a number of issues concerning the Speaker in a letter that was submitted directly to the Speaker, with copies to the Governor and the Pohnpei Supreme Court Chief Justice. Thus, the November 13, 1986 letter at issue here does not appear to constitute a grievance.

In addition, Damarlane's assertion that he was notifying the Speaker of his intention to seek redress over his missing raise appears false. Indeed, the trial court record includes an earlier letter, dated October 10, 1986, that previously notified the Speaker about the initiation of such legal proceedings. As such, it does not appear that Damarlane was acting as a public citizen when he submitted the November 13, letter to the Speaker that is at issue in this case. Instead, he appears to have sent the letter in pursuit of matters of a purely personal interest; the overall tone of the letter was one of a personal grievance about his pay raise and his canceled travel plans to events in Guam and Florida, which other employees in the Legislature attended.

Damarlane also notes that there is no evidence showing that any of the statements he made in his November 13, 1986 letter were false, or that the statements resulted in immediate danger or unlawful conduct. Indeed, Damarlane maintains that at least one of the assertions he made in his letter was correct, as he was ultimately victorious in securing a salary increase as a result of his participation in a lawsuit filed against the Pohnpei Legislature.

The Pohnpei Supreme Court's trial court, however, specifically concluded that the various statements in Damarlane's letter were made with reckless disregard for the truth, as he apparently wrote the letter in anger, with the intention of provoking the Speaker. This was also part of the finding made by the Pohnpei Supreme Court appellate division. In addition, when Damarlane issued his November 13, 1986 letter, no lawsuit concerning a salary increase had been filed, much less decided. Thus, the November 13, 1986 letter's assertions were, at best, only unfounded opinions.

More significantly, however, in evaluating a government employee's speech, the issue is not whether the speaker's statements were true or false, but instead whether the speech is made in the context of a public citizen making statements about issues of public importance, or as an employee making statements about matters of personal interest. As the Garcetti court noted: "Connick instructs courts to begin by considering whether the expressions in question were made by the speaker 'as a public citizen.'" Garcetti, 547 U.S. at 415-16, 126 S. Ct. at 1956, 164 L. Ed 2d at 694. Thus, even if the statements made by Damarlane in his November 13, 1986 letter are true, the overriding factor is the context in which the statements were made: in pursuit of matters of personal importance to Damarlane and not as protected free speech.

Damarlane also argues that it was incorrect for the Pohnpei Supreme Court appellate division to conclude that Damarlane had damaged his working relationship with his superiors as a result of his November 13, 1986 letter. According to Damarlane, neither the Speaker nor the Legislative committee who heard Damarlane's appeal cited to any breakdown in his working relationship with other employees at the Legislature as a fact leading to termination. Damarlane argues that there was no evidence before the court for it to make such an erroneous conclusion.

A review of the trial court record, however, shows that the trial court found that Damarlane's various actions had contributed significantly to a breakdown of his working relationship with his superiors at the Legislature. Thus, the record does contain evidence of this issue, which, under Pickering and Connick, supports a finding that termination may have been proper and should not be disturbed on appeal.

Nonetheless, citing to Pickering, Damarlane notes that if there was a problem in the workplace, then the problem would have been limited only to himself and the Speaker. Damarlane explains that the situation in Pickering involved an employee who made comments about the school district that employed him  comments which did not impact upon his immediate place of employment, or his relationship with his immediate supervisors. By all accounts, the employee in Pickering had no day-to-day working relationship with the school district or its management.

Damarlane, noting his position as a legislative aide, under the Legislative Counsel's immediate supervision, and in a building separate from that occupied by the Speaker, argues that like the employee in Pickering he has no immediate working relationship with the Speaker and, as such, his letter had no real impact on his ability to perform his job, nor did it have any disruption in his workplace environment.

The situation in Pickering, however, differs from that at issue here as the employee's statements in Pickering were issued publicly, about issues of public interest: how funding for certain activities within the school district would be allocated. In the case at hand, Damarlane's statements were issued directly to a superior, and the statements concerned that superior's performance at work, where both Damarlane and the superior worked. Moreover, the trial court specifically found that Damarlane did have a day-to-day working relationship with the Speaker and that relationship suffered as a result of Damarlane's various actions. The appellate division, in turn, in evaluating whether Damarlane's action was protected affirmed this finding.

Lastly, Damarlane argues that unlike the situation in Connick, he did not distribute his letter throughout the office, but instead submitted it directly to the Speaker. According to Damarlane, because his letter was not circulated office wide, it did not serve to undermine the Speaker's authority within the Legislature, or otherwise contribute to instability in the workplace. Thus, to Damarlane, unlike the turmoil that the employee in Connick created, which led to her termination, his letter created no significant problems.

Damarlane appears to misplace the rationale of Connick, which strives to separate an employee's speech that concerns genuine public issues, which would be protected, from speech that relates to items of personal importance to the employee, which would not necessarily be protected. The Connick court sought to separate these types of speech in order to determine if an employee's termination arose from exercising a protected right, or from some other activity that impacted negatively upon the workplace, and ultimately the employee's ability to perform his job. Determining how the speech was aired and who heard it would not necessarily dictate the outcome of the analysis. Moreover, and in contrast to Damarlane's assertions about the limited distribution of his letter, Damarlane, like the employee in Connick, aired his views about items of personal importance to more than his superior: he shared his November 13, 1986 letter with the Governor and Pohnpei Supreme Court Chief Justice.

Damarlane also raises one other FSM Constitutional claim  that he was denied equal protection of the law, first by the Legislature when it terminated his employment and second by the Pohnpei Supreme Court appellate division when it affirmed the trial court's finding that Damarlane's dismissal was not improper. The Equal Protection Clause, however, protects a person against discrimination based on "on account of sex, race, ancestry, national origin, language or social status." FSM Const. art. IV, § 4. In his opening brief, Damarlane does not contend that his termination was based on sex, race, ancestry, national origin, language, or social status. Instead, Damarlane contends that he was treated differently for no rational reason. In his reply brief, Damarlane asserts that he was denied equal protection of the laws based on his social status since the Legislature decided to terminate him because he took food before the food was distributed to those with higher titles. Presumably, at a legislative function, those with "higher titles" are the Speaker and the Legislature's members, while a recently hired legislative aide, and other staff members, would have "lower titles."

A person's position in government employment does not constitute "social status." The term "social status" refers to a person's rank or place in society, not to his position in government. "In traditional Micronesian societies, [social status] could include a person's place or rank within his or her lineage, what caste he or she is part of, whether and what traditional title the person might hold, or whether the person has chiefly (social) status." FSM v. Fritz, [2007] FMSC 10; 14 FSM Intrm. 548, 553 (Chk. 2007). See also Norman Meller, Constitutionalism in Micronesia, 274 (Institute for Polynesian Studies 1985) (special constitutional assurance that traditional leaders would not be disenfranchised dropped as unnecessary in light of prohibition of discrimination on the basis of ancestral or social status).

V. Conclusion

Under these circumstances, we conclude that Damarlane's letter of November 13, 1986 is not protected speech under the FSM Constitution. As such, the termination of Damarlane's employment at the Legislature based upon this letter was proper, and wholly within the Legislature's discretion. This conclusion eliminates the need to consider the sufficiency of the other bases asserted by the Legislature for Damarlane's termination.

Accordingly, the Opinion of the Pohnpei Supreme Court appellate division, dismissing Damarlane's appeal, is hereby affirmed.