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HEADNOTES

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COURT’S OPINION

MACHIME O’SONIS, Associate Justice:

I. Introduction

     A status conference in the above-captioned case was held on July 31, 2002 at 10:00 am, and continued for further hearing on August 1, 2002. Plaintiffs appeared by and through their counsel, Wesley Simina, Esq. The late Mayor Sandus Suda, deceased, was represented by his counsel, Andrea Hillyer, Esq. The chuuk state election commission was represented by its counselor of record, Kachuo Eko. While not parties to the within action, the Honorable Doctor Ansito Walter and Chuuk State were represented at the status conference by Chuuk State Attorney General Ready Johnny, Esq.

     As a result of the extraordinary efforts of all counsel, many of the issues presented in the instant election contest may have been resolved, and the parties have expressed their belief to the Court that a meaningful and complete settlement of the litigation may be forthcoming. Counsel requested a continuance of the status conference to August 13, 2002, at 10:00 am, when, counsel hope, a complete and final stipulation settling all remaining issues in the litigation will be presented to the Court for its approval.

     At the status conference, the question of the proper succession to the position of Mayor following the death of the late Mayor Sandus Suda was raised by counsel for Plaintiffs. Counsel for the late Mayor, Andrea Hillyer, also indicated that the succession needed to be clarified. The issue arose as a result of the issuance by Governor Walter of Executive Order 4-2002, which order purported to appoint Defendant joe suda, the brother of the late Mayor, as acting Mayor until this Court should act to order "a proper general election." For the reasons below stated, and with recognition and appreciation for the good faith intentions of the Governor, this Court is compelled to vacate Executive

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Order No. 4-2002 as violating the Constitution of Oneisomw Municipality, and to order that pending an election to fill the now vacant post of Mayor, the Deputy Mayor, kinatius amadus, be appointed Acting Mayor pursuant to Article 8, Section 14 of the Constitution of Oneisomw Municipality.

II. Procedural History

     In order to properly understand the sequence of events which led to the issuance of Executive Order No. 4-2002, and this order, it is necessary to briefly state the somewhat tortured history of this litigation.

     The Oneisomw municipal election was originally scheduled for July 31, 2001. Plaintiffs herein, believing they had been improperly denied the right to become candidates for various offices in that election, and believing the right to vote of the citizens of Oneisomw Municipality had been infringed, filed the complaint in Chuuk State Supreme Court Civil Action No. 132-2001, against many of the same Defendants sued herein, seeking to have the election scheduled for July 31, 2002 enjoined until alleged pre-election irregularities could be resolved. Orders enjoining the election were issued, and other injunctions were issued, without any true effect. An election took place on July 31, 2001, in which Sandus Suda was purportedly elected as Mayor, and Kinatius Amadus was purportedly elected as Deputy Mayor.

     That election was declared null and void by the Special Trial Justice appointed to the case. According to that order, nullifying the election, the position of Mayor of Oneisomw municipality was vacant, and Oneisomw Municipality was without a chief executive of its municipal government, an admittedly untenable situation. In order to ensure that the Oneisomw municipal government would continue to function, Governor Walter issued Executive Order 4-2001, designating the late Sandus Suda as Acting Mayor of Oneisomw Municipality. In doing so, Governor Walter was in effect affirming the votes cast in the July 31, 2001 election, regardless of the ultimate propriety of that election.

      In March, 2002, the Honorable Keske S. Marar, having taken over the previously filed election case, held that the order nullifying the July 31, 2001 election was in excess of the jurisdiction of the Court. [Alaphonso v. Suda,10 FSM Intrm. 553, 557 (Chk. S. Ct. Tr. 2002).] His order had the effect of creating the presumption that the election of July 31, 2001 was valid, until such time as the Chuuk State Election Commission or a court of competent jurisdiction held that the election was void as a result of election irregularities. Based on that presumption, the Honorable Sandus Suda was determined to be the properly elected Mayor until such time as the election was declared invalid. Pursuant to the same presumption, Kinatius Amadus was the validly elected Deputy Mayor until such time as the Chuuk State Election Commission or a court of competent jurisdiction declared the July 31, 2001 election invalid and ordered a new election. Justice Marar ordered certain claims in Civil Action No. 132-2001 dismissed, and retained jurisdiction over the case. [Id.] Plaintiffs filed a formal contest of the election with the Chuuk State Election Commission.

     Rather than hear and determine the contest on its merits, the Chuuk State Election Commission rendered a decision in which it held that it did not have jurisdiction over the contest. Following that decision, Plaintiffs filed this action appealing the decision of the Chuuk State Election Commission to this Court, under jurisdiction conferred on this Court by the Oneisomw election law. The parties settled Civil Action No. 132-2001 by making certain stipulations applying to future elections in Oneisomw Municipality, leaving this appeal of the decision of the Chuuk State Election Commission continuing in its current status.

As can be seen by this history, the actions of the parties and of the Court over the past year created a very confusing, and difficult situation for the people of Oneisomw Municipality, for their

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purported elected leaders, for the Chuuk State Election Commission, and for Governor Walter. One cannot fault Governor Walter for his previous actions, and this Court has no doubt that in issuing Executive Order No. 4-2001, he was acting in complete good faith and with the best interests of the people of Oneisomw Municipality and the State of Chuuk in mind.

     Nonetheless, until his death on July 4, 2002, and until a final decision in this Court on the validity of the pending challenge to the July 31, 2001 election, Sandus Suda was presumptively the Mayor of Oneisomw Municipality, and Kinatius Amadus was presumptively the Deputy Mayor of Oneisomw Municipality. The Constitution of Oneisomw Municipality provides for succession in the event of death or disability of the Mayor. That document, not Article VI, § 1, nor Article XIII, § 1 of the Chuuk State Constitution, governed succession to the position of Mayor of Oneisomw Municipality upon the unfortunate passing of Mayor Sandus Suda. Executive Order 4-2002 is void as in excess of the powers of Governor Walter, and must be vacated, so that the rules of succession contained in the Constitution of Oneisomw Municipality can be given effect.

III. The Executive Order Is in Violation of Article 8, § 14 of the Oneisomw Constitution, and Is Therefore Void

     Governor Walter finds the authority to issue Executive Order 4-2002 in the power granted him in Article VI, § 1 and Article XIII, § 1 of the Chuuk State Constitution. Executive Order 4-2002 provides:

Contrary to the understanding of the Governor, neither section provides the authority for his actions. Article VI, § 1 provides: "The executive power of the State Government is vested in the Governor. The Governor shall faithfully execute and implement this Constitution and all state laws." Article XIII, § 1 of the Chuuk State Constitution provides: "The two levels of government in the State of Chuuk are state and municipal. The Chief executive of a municipality is the Mayor."

     Clearly, neither of these constitution provisions provides authority to the Governor of Chuuk State to appoint any person to any municipal office. Absent any state law authorizing the Governor to so act, he is without power to affect municipal political offices in any manner. Article XIII, § 5 of the Chuuk State Constitution provides:

     If rules of succession to the office of Mayor of a municipality in the event of the death or disability of a mayor are to be found anywhere, they are to be found in the constitution and laws of the municipality. And in fact, the Constitution of Oneisomw Municipality specifically provides for succession in the event of the death or disability of a mayor.

     Article VIII, § 14 of the Oneisomw Constitution provides: "Ika ewe Mayor a mano, pusin tou

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seni wisan, ika nipwaktngaw an fori wisan we, ewe Deputy Mayor epwe Acting Mayor." Loosely translated into English, Article VIII, § 14 of the Oneisomw Constitution provides that "In the event of death or disability of the Mayor, the Deputy Mayor shall become Acting Mayor." Article XIII, § 14 then goes on to provide the terms upon which a special election should be held, specifically if the Mayor dies or becomes disabled more than one year before the end of his term, a special election shall be held. Since the Honorable Mayor Sandus Suda passed away with more than a year left on his term in office, a special election is mandated by the Oneisomw Constitution.

     This Court understands full well the concerns of Governor Walter which led him to issue Executive Order 4-2002. He was rightfully concerned with the potential disruption in the efficient operation of the government of Oneisomw Municipality. For his concern he is to be strongly commended. However, his concern was misplaced. The people of Oneisomw Municipality had already provided for the eventuality which unfortunately occurred on July 4, 2002. They had already provided for the orderly succession of an elected official to the office of Mayor, and had provided the terms upon which a special election would be held.

     To the extent the Governor was concerned that this Court would not act quickly enough to resolve the vacancy, he is also to be commended for his concern. However, had that concern motivated the Governor, he could have applied to this Court for instructions and guidance on the question of temporary succession. Had he done so, we would have together reviewed the Constitution of the Oneisomw Municipality, and come to the same conclusion – the Constitution provides that the elected Deputy Mayor succeeds to the position of Acting Mayor pending an election to fill the vacant office.

     To appoint an individual who had not been elected to any position, regardless of his relationship to the late Mayor Sandus Suda, was an act which directly interfered with the political rights of the people of Oneisomw. It is the duty of this Court to enforce the constitution and laws of the State of Chuuk and the 40 municipalities in the State. It is the duty of this Court to see that the constitutions of the several municipalities are protected against unwarranted interference by any state official, regardless of motivation. The act of the Governor in issuing Executive Order 4-2002 was an act in excess of his powers, and an act in contravention of the Constitution of Oneisomw Municipality. As such, it is void and must be vacated.

Now therefore, good cause appearing,

     it is hereby ordered, adjudged and decreed that Executive Order 4-2002 is void, and is due to be, and hereby is, vacated. joe suda is hereby ordered to surrender all emoluments of the office of Mayor of Oneisomw Municipality to kinatius amadus, Deputy Mayor of Oneisomw Municipality, who shall serve, pursuant to Article VIII, § 14 of the Constitution of Oneisomw Municipality, as Acting Mayor until such time as a special election may be held to fill the vacant position for the remainder of the late Mayor Sandus Suda’s term in office.

     It is further ordered that Andrea Hillyer, Esq., as counsel for the late Mayor Suda, shall file with the Court any and all documents necessary to effect the substitution of Acting Mayor kinatius amadus as proper party defendant in this action, pursuant to CSSC Civil Rule 25(d), and to certify to this Court that Acting Mayor kinatius amadus has indeed succeeded to the position of Acting Mayor of Oneisomw Municipality pursuant to the Constitution of Oneisomw Municipality and without opposition.

     The Clerk of the Court is directed to serve this order on Andrea Hillyer, Esq. by facsimile transmission as well as mail. The Clerk of the Court is further directed to notify the Office of the Attorney General by phone of the entry of this order, and to serve all other counsel by placing a copy

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of this order in the appropriate boxes in the Office of the Clerk of the Court.

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