Cite as Kosrae v. Nena,13 FSM Intrm. 63 (Kos. S. Ct. Tr. 2004)

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CRIMINAL CASE NO. 95-04

CRIMINAL CASE NO. 96-04

Hearing: December 1, 2004
Decided: December 9, 2004

APPEARANCES:

HEADNOTES

Separation of Powers – Kosrae – Executive Powers

If required to preserve the public peace, health, or safety, at a time of extreme emergency caused by civil disturbance, natural disaster, or immediate threat of war or insurrection, the Governor may

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declare a state of emergency and issue appropriate decrees. Although a declaration of emergency may not impair the power of the judiciary, it may impair a civil right to the extent actually required for the preservation of peace, health, or safety. Unless it expires by its own terms, is revoked or extended, a declaration of emergency is effective for thirty days. Kosrae v. Nena, 13 FSM Intrm. 63, 66 (Kos. S. Ct. Tr. 2004).

Separation of Powers – Kosrae – Legislative Powers

Within thirty days after the declaration of emergency, the Legislature must convene at the call of the Speaker or the Governor to consider revocation, amendment or extension of the declaration. Kosrae v. Nena, 13 FSM Intrm. 63, 66 (Kos. S. Ct. Tr. 2004).

Separation of Powers – Kosrae – Executive Powers

A declaration of a state of emergency requires a time of "extreme emergency" caused by civil disturbance, natural disaster or immediate threat of war or insurrection. The word "emergency" is a sudden unexpected happening or an unforeseen occurrence or condition. Kosrae v. Nena, 13 FSM Intrm. 63, 66 (Kos. S. Ct. Tr. 2004).

Separation of Powers – Kosrae – Executive Powers

A civil disturbance or civil disorder is a public disturbance involving acts of violence by a group of three or more persons, which causes an immediate danger of or results in damage or injury to the property or person of any other individual. Suicides and suicide attempts, as they have occurred in Kosrae State during 2003 and 2004, do not rise to the level of a civil disturbance or civil disorder. Kosrae v. Nena, 13 FSM Intrm. 63, 66 (Kos. S. Ct. Tr. 2004).

Separation of Powers – Kosrae – Executive Powers; Torts – Nuisance

A nuisance is an activity which arises from unreasonable or unlawful use by a person of his own property, and that disturbs another in possession of his property, or an offensive, unpleasant, or obnoxious thing or practice, especially a continuing or repeated invasion or disturbance of another's right. While it is undisputed that suicides and suicide attempts are events which disturb others, particularly family members and friends, and possibly a large number of persons in the community on a small island such as Kosrae, these events cannot be classified as public nuisances. Kosrae v. Nena, 13 FSM Intrm. 63, 66-67 (Kos. S. Ct. Tr. 2004).

Evidence

Representations of counsel at a hearing are not a substitute for competent, reliable evidence in the form of testimony or detailed affidavits. Counsel's statements constitute only argument of counsel and are not evidence. Kosrae v. Nena, 13 FSM Intrm. 63, 67 (Kos. S. Ct. Tr. 2004).

Separation of Powers – Kosrae – Executive Powers

The issuance of an Executive Decree, pursuant to Kosrae Constitution, Article V, section 13, is an extraordinary power which may be applied only in extreme emergency situations. The issuance of an Executive Decree may not be utilized as a tool to remedy a state of affairs which does not meet the definition of extreme emergency, and which may be addressed by legislation. Kosrae v. Nena, 13 FSM Intrm. 63, 67 (Kos. S. Ct. Tr. 2004).

Criminal Law and Procedure – Dismissal; Separation of Powers – Kosrae – Executive Powers

The Governor's issuance of Declaration of Temporary State of Emergency and the Executive Decree, which prohibited the issuance of drinking permits, possession and consumption of alcoholic drinks by persons under the age of 35 and revoked drinking permits which had been issued to persons under the age of 35, exceeded the authority granted to him by the Kosrae Constitution, Article V, Section 13 because there was no civil disturbance, riot, typhoon, natural disaster or immediate threat

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of war or insurrection which constituted an "extreme emergency" and the Decree was therefore unconstitutional and void. Any criminal charges which have been based upon violation of the Executive Decree must be dismissed. Kosrae v. Nena, 13 FSM Intrm. 63, 67 (Kos. S. Ct. Tr. 2004).

COURT'S OPINION

YOSIWO P. GEORGE, Chief Justice:

On November 5, 2004, Defendants filed a Motion for Declaratory Judgment and Dismissal. The State filed its Opposition to the Motion on November 15, 2004. A hearing was held on the Motion on December 1, 2004. Paliknoa Welly, State Prosecutor, appeared for the Plaintiff. Defendants were all represented by Harry Seymour, Public Defender.

Defendants were all charged with violation of the Declaration of Temporary State of Emergency and Executive Decree issued by Governor Rensley A. Sigrah on August 6, 2004. The Executive Decree declared a state of temporary emergency due to the impending risks associated with alcohol consumption by persons under the age of 35. The state of temporary emergency was based upon a series of suicides and suicide attempts within Kosrae State in 2003 and 2004, reportedly almost all of which had been committed or attempted by persons under the age of 35 and while under the influence of alcohol. The Executive Decree prohibited the issuance of a drinking permit to all persons under the age of 35, and suspended and revoked all drinking permits which had been issued to persons under the age of 35. The Executive Decree further made unlawful for any person under the age of 35 to purchase, consume or possess alcoholic drink, as well as for any person to give alcoholic drink to any person under the age of 35.

All three Defendants herein were charged with violation of the Executive Decree, and alleged to have possessed and/or consumed alcoholic drink while under the age of 35, during the period within which the Executive Decree was in effect.

Defendants request this Court to declare the Executive Decree as unconstitutional and void, and on that basis, dismiss Count One in both Criminal Case Nos. 95-04 and 96-04. Defendants argue that the Governor, in issuing the Executive Decree, exceeded the authority granted to him under the Kosrae State Constitution, Article V, Section 13. Defendants further argue that the Executive Decree violates the Defendants' constitutional rights to equal protection of the law. Plaintiff argues that the Executive Decree was issued pursuant to the Governor's constitutional authority, and that it is within the Governor's authority to determine what is an emergency. Here, Plaintiff argues that the Governor properly made the determination that a state of emergency existed at the time of issuance of the Executive Decree. Plaintiff further argues that there is no constitutional right to consume alcoholic drinks and therefore, the Governor may regulate consumption of alcohol based upon classification by age.

After hearing argument by the parties, consideration of the record and applicable law, I granted the Defendants' Motion for Declaratory Judgment and Dismissal. I concluded that the Declaration of Temporary Emergency and Executive Decree exceeded the constitutional authority granted to the Governor, and dismissed Count 1 of both Criminal Case Nos. 95-04 and 96-04. This memorandum explains my reasoning.

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I. EXECUTIVE DECREE EXCEEDS CONSTITUTIONAL AUTHORITY.

The Kosrae State Constitution, Article V, Section 13, provides emergency powers to the Governor as follows:

Section 13. If required to preserve the public peace, health, or safety, at a time of extreme emergency caused by civil disturbance, natural disaster, or immediate threat of war or insurrection, the Governor may declare a state of emergency and issue appropriate decrees.

A declaration of emergency may not impair the power of the judiciary. A declaration of emergency may impair a civil right to the extent actually required for the preservation of peace, health, or safety.

Within thirty days after the declaration of emergency, the Legislature shall convene at the call of the Speaker or the Governor to consider revocation, amendment or extension of the declaration. Unless it expires by its own terms, is revoked or extended, a declaration of emergency is effective for thirty days.

The declaration of a state of emergency requires a time of "extreme emergency" caused by civil disturbance, natural disaster or immediate threat of war or insurrection. The word "emergency" is a sudden unexpected happening or an unforeseen occurrence or condition. BLACK'S LAW DICTIONARY 522-23 (6th ed. 1990). See Declaration of a State of Emergency, issued by Governor Ansito Walter, State of Chuuk, on July 3, 2002 (addressing emergency response and recovery efforts to deaths, injuries, and extensive damage caused by Tropical Storm Chata'an).

The Declaration of Temporary State of Emergency refers to a series of suicides and suicide attempts on Kosrae during the years 2003 and 2004. The basis of the emergency, being suicides and suicide attempts, has occurred during 2003 and 2004, and was not a sudden unexpected happening or an unforeseen occurrence or condition. Indeed, the language of the Declaration states that suicides and suicide attempts have been ongoing for at least one and a half years. Therefore, the suicides and suicide attempts could not have been unexpected or unforeseen, and did not create a temporary state of emergency.

The State argues that a series of suicides and suicide attempts constitute "public nuisances" and are therefore a civil disturbance. The Defendants presented the constitutional history of Article V, Section 13 which suggests that the term "civil disturbance" included typhoons and riots. A civil disturbance or civil disorder is a public disturbance involving acts of violence by a group of three or more persons, which causes an immediate danger of or results in damage or injury to the property or person of any other individual. BLACK'S LAW DICTIONARY 245 (6th ed. 1990). The State did not present any evidence that the suicides and suicide attempts were being caused by a group of three or more persons. The State did not present any evidence that the suicides and suicide attempts resulted in damage to property of other individuals, or injury to the person of other individuals . The State provided no caselaw or other authority to support its definition of "civil disturbance" to include public nuisances, suicides and suicide attempts. I conclude that the suicides and suicide attempts, as they have occurred in Kosrae State during 2003 and 2004, do not rise to the level of a civil disturbance or civil disorder.

The State suggests that in Kosrae, suicides and suicide attempts are public nuisances as compared to large cities in the United States. A nuisance is an activity which arises from unreasonable or unlawful use by a person of his own property, and that disturbs another in possession of his property, or an offensive, unpleasant, or obnoxious thing or practice, especially a continuing or repeated

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invasion or disturbance of another's right. BLACK'S LAW DICTIONARY 1066 (6th ed. 1990). While it is undisputed that suicides and suicide attempts are events which disturb others, particularly family members and friends, and possibly a large number of persons in the community on a small island such as Kosrae, these events cannot be classified as nuisances. The State provided no caselaw or other authority to support its definition of "public nuisance" to include suicides and suicide attempts. The State provided no authority to support a finding that the suicides and suicide attempts which have occurred during 2003 and 2004 were activities which arose from the unreasonable or unlawful use by a person of his own property, and which was a continued or repeated invasion or disturbance of another's rights. I conclude that suicides and suicide attempts, as described in the Declaration, are not public nuisances.

The State further claims that Kosrae has the highest rate of suicide attempts per capita and that the Governor has determined that alcohol is a contributing factor. The State failed to provide any evidence of that claim and failed to provide any evidence that alcohol is a contributing factor to suicides and suicide attempts. The State did not provide any documentary or testimonial evidence in support of its statements. Representations of counsel at a hearing are not a substitute for competent, reliable evidence in the form of testimony or detailed affidavits. FSM v. Yue Yuan Yu No. 708, 7 FSM Intrm. 300 (Kos. 1995). Counsel's statements constitute only argument of counsel and are not evidence. In re Attorney Disciplinary Proceeding, 9 FSM Intrm. 165 (App. 1999).

There was also no further action taken by the Governor on with respect to the issue addressed by the Executive Decree. I take judicial notice that the Kosrae State Legislature opened its 4th Regular Session on August 9, 2004, and which continued throughout the month of August and into September 2004. During the 4th Regular Session, the Governor failed to request extension of the Declaration of Emergency and Executive Decree. The Governor failed to submit proposed legislation to the Kosrae State Legislature to request amendment to Kosrae State Code, Section 12.103 to raise the age of eligibility for a drinking permit to 35 years. The Kosrae State Legislature did not pass any bills which proposed to raise the age of eligibility for drinking permits during its 4th Regular Session, and has not passed any such legislation until the present time.

The issuance of an Executive Decree, pursuant to Kosrae State Constitution, Article V, Section 13, is an extraordinary power which may be applied only in extreme emergency situations. The issuance of an Executive Decree may not be utilized as a tool to remedy a state of affairs which does not meet the definition of extreme emergency, and which may be addressed by legislation.

Defendants' argument that at the time of issuance of the Executive Decree, there was no civil disturbance, riot, typhoon, natural disaster or immediate threat of war or insurrection which constituted an "extreme emergency" and therefore the Governor did not have authority to issue the Executive Decree is well supported and persuasive. The State has failed to provide evidence to support the Governor's finding of a state of extreme emergency and the consequent issuance of the Executive Decree.

Based upon all these factors, I conclude that the Governor's issuance of Declaration of Temporary State of Emergency and the Executive Decree on August 6, 2004 exceeded the authority granted to him by the Kosrae State Constitution, Article V, Section 13. The Executive Decree, which prohibited the issuance of drinking permits, possession and consumption of alcoholic drinks by persons under the age of 35, and revoked drinking permits which had been issued to persons under the age of 35 is declared unconstitutional and void. Any criminal charges which have been based upon violation of the Executive Decree must be dismissed.

Based upon this conclusion that the Executive Decree was issued in violation of the Kosrae State

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Constitution, Article V, Section 13, and is therefore void, there is no need to reach the Defendants' second argument that the Executive Decree violates the Defendants' constitutional right to equal protection of the law.

II. ORDER OF DISMISSAL.

Count I of the Information is dismissed with prejudice as to Defendant Nena A. Mongkeya in Criminal Case No. 96-04. As the Information in Criminal Case No. 96-04 consists of only Count I, the Information is also dismissed with prejudice in its entirety. Count I of the Information is dismissed with prejudice as to Defendants Palik Nena and Kiyus F. Albert in Criminal Case No. 95-04. Count II of the Information in Criminal Case No. 95-04 shall be set for trial by the Chief Clerk on the next available calendar.