FSM 10 Intrm. 098-099

FSM SUPREME COURT

Cite as Davis v. Kutta,

10 FSM Intrm. 98 (Chuuk 2001)

[10 FSM Intrm. 98]

JIM KUTTA, HALVERSON NIMEISA, RESAUO

MARTIN, ERADIO WILLIAM, FRANCIS RUBEN,

JOHNSON SILANDER and the STATE OF CHUUK,

CIVIL ACTION NO. 1992-1039

ORDER AND MEMORANDUM

Decided: March 8, 2001

For the Plaintiff: Stephen V. Finnen, Esq.

Law Offices of Saimon & Associates

Kolonia, Pohnpei FM 96941

For the Defendants: Ready Johnny, Esq.

Office of the Chuuk Attorney General

Weno, Chuuk FM 96942

[10 FSM Intrm. 99]

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, 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, 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, 10 FSM Intrm. 98, 99 (Chk. 2001).

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), 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, 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.