FSM SUPREME COURT TRIAL DIVISION
Cite as In re Constitutionality of Chuuk State Law No. 14-18-23, 22 FSM R. 258 (Chk. 2019)
IN THE MATTER OF THE CONSTITUTIONALITY
OF ACT NO.14-23 AND CHUUK STATE
LAW NO. 14-18-23
_______________________
CHUUK POLITICAL STATUS COMMISSION,
AKIOSY KAREN, KICHY KANEMOTO, LEON
(TIPO) JOHN, TADASHY WAINIT, SETIRO
PAUL, MIKE ROBERT, and MARIUS AKAPITO, as
individuals and as friends of the Chuuk Political
Status Commission, and UMAN MUNICIPALITY,
SIIS MUNICIPALITY, and UDOT MUNICIPALITY,
Plaintiffs,
vs.
CHUUK LEGISLATURE,
Defendant.
CIVIL ACTION NO. 2019-1000
ORDER MEMORIALIZING DENIAL OF PRELIMINARY INJUNCTION AND GRANT OF
MOTION TO DISMISS
Larry Wentworth
Associate Justice
Hearing: May 15, and 24, 2019
Decided: May 24, 2019
Memorandum Entered: June 17, 2019
APPEARANCES:
For the Plaintiffs:
Johnny Meippen, Esq.
P.O. Box 705
Weno, Chuuk FM 96942
For the Defendant:
Eliesa Burenivalu Saunikalou Tuiloma
Legislative Counsel, Chuuk Legislature
P.O. Box 27
Weno, Chuuk FM 96942
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A case that alleges that a state law is, or contains, a bill of attainder in violation of the FSM Constitution is a claim that arises under the Constitution and over which the FSM Supreme Court may exercise jurisdiction. In re Constitutionality of Chuuk State Law No. 14-18-23, 22 FSM R. 258, 263
(Chk. 2019).
The Constitution's prohibition of bills of attainder in the Declaration of Rights applies to all legislative bodies within the FSM, not just to the FSM Congress. In re Constitutionality of Chuuk State Law No. 14-18-23, 22 FSM R. 258, 263 (Chk. 2019).
The FSM Declaration of Rights provisions, FSM Const. art. IV, apply to all governments in the FSM. In re Constitutionality of Chuuk State Law No. 14-18-23, 22 FSM R. 258, 263 n.2 (Chk. 2019).
A bill of attainder is any legislative act that applies to either named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial by substituting a legislative determination of guilt for a judicial one. In re Constitutionality of Chuuk State Law No. 14-18-23, 22 FSM R. 258, 263 (Chk. 2019).
As the constitutional prohibition of bills of attainder bars all such legislative acts, if a state law is a bill of attainder, the FSM Supreme Court has the jurisdiction to strike it (or the part of it that is a bill of attainder) down as unconstitutional and to enjoin its enforcement. In re Constitutionality of Chuuk State Law No. 14-18-23, 22 FSM R. 258, 263 (Chk. 2019).
A state governmental agency, entity, or subdivision does not have any national constitutional rights or national civil rights that it may enforce against the state (or one of its agencies) of which it is a part or which created it. Thus it cannot raise an FSM civil rights or constitutional claim against the state of which it is a part, since it has no such rights against the state that created it. This includes the constitutional right not to be subjected to a bill of attainder. In re Constitutionality of Chuuk State Law No. 14-18-23, 22 FSM R. 258, 263 (Chk. 2019).
Because the FSM Declaration of Rights is to a substantial degree patterned after provisions in the U.S. Constitution and because U.S. cases were relied upon to guide the Micronesian constitutional convention that framed it, U.S. authority may be consulted to understand its meaning. In re Constitutionality of Chuuk State Law No. 14-18-23, 22 FSM R. 258, 264 n.4 (Chk. 2019).
Generally, a party must assert her only own legal rights and interests, and cannot rest her claim to relief on the legal rights or interests of a third party. In re Constitutionality of Chuuk State Law No. 14-18-23, 22 FSM R. 258, 264 n.6 (Chk. 2019).
A legislature's suspension of a state commission's activities does not constitute either a finding of guilt or an imposition of punishment on the commission's members. In re Constitutionality of Chuuk State Law No. 14-18-23, 22 FSM R. 258, 264 (Chk. 2019).
Punishment is a prerequisite to an act's being a bill of attainder. The determination of the existence of the punishment element of a constitutionally prohibited bill of attainder is dependent for resolution upon the facts and circumstances of individual cases. In re Constitutionality of Chuuk State
Law No. 14-18-23, 22 FSM R. 258, 265 (Chk. 2019).
There are three tests to determine the existence of punishment element of a bill of attainder – the historical experience test, the functional test, and the motivational test. In re Constitutionality of Chuuk State Law No. 14-18-23, 22 FSM R. 258, 265 (Chk. 2019).
Under the historical experience test, the punishment element of a bill of attainder is met if the named individual or the easily ascertained group member is subjected to any of the penalties associated with bills of attainder or with bills of pains and penalties in England or in colonial or pre-Constitution America – namely death, imprisonment, banishment, or confiscation or forfeiture of property to the sovereign. In re Constitutionality of Chuuk State Law No. 14-18-23, 22 FSM R. 258, 265 (Chk. 2019).
The punishment element of a bill of attainder can also be met under the historical experience test by barring designated individuals or groups from participation in specified employments or vocations, a mode of punishment commonly employed against those legislatively branded as disloyal. In re Constitutionality of Chuuk State Law No. 14-18-23, 22 FSM R. 258, 265 (Chk. 2019).
The functional test for the punishment element of a bill of attainder looks beyond mere historical experience and analyzes whether the law under challenge, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes. In re Constitutionality of Chuuk State Law No. 14-18-23, 22 FSM R. 258, 265 (Chk. 2019).
A legislature has furnished a nonpunitive legislative purpose for the statute's enactment when it has relied on its responsibility to control the state's finances and expenditures and to align those expenditures with the state's available revenues. In re Constitutionality of Chuuk State Law No. 14-18-23, 22 FSM R. 258, 265 (Chk. 2019).
The third recognized test for the punishment element of a bill of attainder is strictly a motivational one: inquiring whether the legislative record evinces a legislative intent to punish. In re Constitutionality of Chuuk State Law No. 14-18-23, 22 FSM R. 258, 266 (Chk. 2019).
A statute that suspends a state commission's activities but that does not punish the commission, its members, or any particular commission member, is not a bill of attainder because it does not inflict any punishment, either of the kind normally imposed in criminal cases or any punitive civil sanctions. In re Constitutionality of Chuuk State Law No. 14-18-23, 22 FSM R. 258, 266 (Chk. 2019).
The Chuuk Legislature may amend any of its earlier statutes that created a governmental agency, in order to alter, or vary, or eliminate any of that agency's powers or duties. In re Constitutionality of Chuuk State Law No. 14-18-23, 22 FSM R. 258, 266 (Chk. 2019).
The power to amend statutes belongs exclusively to the legislature. Existing legislation is subject to amendment in any manner consistent with constitutional limitations. In re Constitutionality of Chuuk
State Law No. 14-18-23, 22 FSM R. 258, 266 (Chk. 2019).
A state agency has only such rights, powers, and duties as the state legislature sees fit to bestow upon it through a duly enacted statute. Thus the legislature may, through another duly enacted statute, alter or may revoke any of those rights, powers, and duties. In re Constitutionality of Chuuk State Law No. 14-18-23, 22 FSM R. 258, 266 (Chk. 2019).
A state legislature that has created a commission by statute can abolish that commission by statute, just as it could, by statute, abolish most any governmental agency that it has created by statute, except those agencies which the state's constitution requires it to create. In re Constitutionality of Chuuk State Law No. 14-18-23, 22 FSM R. 258, 266 & n.8 (Chk. 2019).
The power to legislate is the power to repeal. A legislature may not bind itself or a future legislature by enacting an irrepealable law. In re Constitutionality of Chuuk State Law No. 14-18-23, 22 FSM R. 258, 266 (Chk. 2019).
If a legislature has the power to abolish an agency, it certainly has the power to exercise a less drastic regulation of the agency's affairs by suspending it. In re Constitutionality of Chuuk State Law No. 14-18-23, 22 FSM R. 258, 267 (Chk. 2019).
A court cannot strike down or enjoin statutes merely because they might be unwise and some other course of action is better. In re Constitutionality of Chuuk State Law No. 14-18-23, 22 FSM R. 258, 267 (Chk. 2019).
When a state statute is not a bill of attainder and the court otherwise lacks jurisdiction, the plaintiffs' likelihood of success on the merits of their claims is zero. In re Constitutionality of Chuuk State Law No. 14-18-23, 22 FSM R. 258, 267 (Chk. 2019).
Irreparable harm is a prerequisite for temporary or for preliminary injunctive relief. In re Constitutionality of Chuuk State Law No. 14-18-23, 22 FSM R. 258, 267 (Chk. 2019).
When all of the plaintiffs' claims, other than its claim that a state statute is a bill of attainder, are claims that are outside of the court's jurisdiction, and when the statute is not a bill of attainder, the case will be dismissed for lack of subject-matter jurisdiction. In re Constitutionality of Chuuk State Law No. 14-18-23, 22 FSM R. 258, 267 (Chk. 2019).
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LARRY WENTWORTH, Associate Justice:
On May 15 and 24, 2019, the court heard the plaintiffs' Motion for Preliminary Injunction, filed
April 15, 2019; Opposition Against Motion for Preliminary Injunction, filed April 25, 2019; Defendant's Brief to Plaintiff's Motion for Injunctive Relief, filed May 17, 2019; and the Defendant's Motion for Dismissal, filed April 30, 2019. After reviewing the parties' filings, considering the documentary and testimonial evidence, and listening to counsel's presentations, the court ruled from the bench, denying the plaintiffs' preliminary injunction motion and granting the Chuuk Legislature's motion to dismiss. This order memorializes the court's ruling and further explains the court's reasoning.
A. Statutory History
Chuuk State Law No. 11-12-08, enacted in March 2012, created the Chuuk Political Status Commission. The Commission's stated purpose was to examine Chuuk's present political and economic status; to recommend the status that it determined was in the Chuukese people's best interest; to conduct political education; and to submit periodic reports to the Chuuk Legislature and a final report to both the Legislature and the Governor. Chk. S.L. No. 11-12-08, § 6. The statute further provided that, after the Commission submitted its final report, a plebiscite would be held on whether to adopt the Commission's recommended status change, unless the Commission recommended that there be no change in Chuuk's political status. Id. § 7(b).
Chuuk State Law No. 11-12-08 contemplated that the Commission's final report would be submitted within eighteen months of the Commission becoming operational. Id. § 6(i). Chuuk State Law No. 12-13-08, enacted February 20, 2014, amended1 the final report date to 25 months after the Commission became operational. Id. § 1(i) (amending Chk. S.L. No. 11-12-08, § 6(i)). It also provided that the Commission would be immediately dissolved once the Legislature accepted the Commission's final report. Id. § 2(a) (amending Chk. S.L. No. 11-12-08, § 7(a)). The Commission submitted its final report on December 15, 2014, recommending that Chuuk become independent. Chuuk State Law No. 12-14-23, enacted December 23, 2014, then amended the final report date to 29 months after the Commission became operational. Id. § 1(i) (amending Chk. S.L. No. 11-12-08, § 6(i)). It further provided that if the plebescite approved the Commission's recommendation, the Commission would remain active until that status was "established or until March 31, 2016, which ever comes first." Id. § 2(d) (amending Chk. S.L. No. 11-12-08, § 7(d)).
Chuuk State Law No. 14-17-11, enacted December 28, 2017, further amended the law by moving the plebiscite date to March 5, 2019. Id. § 1(b) (amending Chk. S.L. No. 11-12-08, § 7(b)). On December 7, 2018, Act No. 14-23 became Chuuk State Law No. 14-18-23 when the Chuuk Legislature overrode the Governor's veto. This amendment postponed the plebiscite to March 3, 2020, and provided that "the Commission shall discontinue from exercising its powers and duties until the Chuuk State Legislature deems it appropriate." Chk. S.L. No. 14-18-23, § 1(b) (amending Chk. S.L. No. 11-12-08, § 7(b)).
B. Procedural History
On January 8, 2019, the plaintiffs filed this action. They ask the court to declare Chuuk State Law No. 14-18-23 unconstitutional under the FSM Constitution as a bill of attainder that was passed to punish the Chuuk Political Status Commission and its members. They also claim that Chuuk State Law No. 14-18-23 violates the separation of powers doctrine because the Legislature is meddling in an
executive branch agency's affairs. On January 28, 2019, the Chuuk Legislature answered the plaintiff's complaint, and denied that Chuuk State Law No. 14-18-23 constituted a bill of attainder or violated the principle of separation of powers and asserted that the complaint failed to state a claim for which the court could relief and that it raised non-justiciable political questions over which the court could not exercise jurisdiction.
On April 15, 2019, the plaintiffs moved for a preliminary injunction to enjoin Chuuk State Law No. 14-18-23's enforcement. On April 30, 3019, the Chuuk Legislature moved to dismiss the action for lack of subject matter jurisdiction and because the plaintiffs' complaint fails to state a claim for which the court could grant relief. The court then set a date to hear the motions.
A. The FSM Supreme Court's Jurisdiction over Bill of Attainder Claims
The plaintiffs allege that Chuuk State Law No. 14-18-23 is, or contains, a bill of attainder in violation of the FSM Constitution. This allegation is central to the plaintiffs' claims and the relief they seek. Thus, this claim is one that arises under the Constitution and over which the court may exercise jurisdiction. FSM Const. art. XI, § 6(b). The Constitution's Declaration of Rights provides that "[a] bill of attainder . . . may not be passed." FSM Const. art. IV, § 11. This constitutional prohibition applies to all legislative bodies within the FSM, not just to the FSM Congress.2
A bill of attainder is any legislative act that applies to either named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial by substituting a legislative determination of guilt for a judicial one. Robert v. Mori, 6 FSM R. 394, 401 (App. 1994) (citing SCREP No. 23, II J. of Micro. Con. Con. 793, 801). "The constitutional prohibition of bills of attainder bars all [such] legislative acts." Id. (internal quotation omitted). Thus, if Chuuk State Law No. 14-18-23 is a bill of attainder, the FSM Supreme Court has the jurisdiction to strike it (or the part of it that is a bill of attainder) down as unconstitutional and to enjoin its enforcement.
B. The Commission's Lack of National Constitutional and Civil Rights
The plaintiff Commission complains that Chuuk State Law No. 14-18-23's suspension of its activities constitutes a bill of attainder and violates its constitutional and civil rights to be free of such legislative measures. The Commission itself has no such rights. A state governmental agency, entity, or subdivision does not have any national constitutional rights or national civil rights that it may enforce against the state (or one of its agencies) of which it is a part or which created it, and thus it cannot raise an FSM civil rights or constitutional claim against the state of which it is a part, since it has no such rights against the state that created it. Kitti Mun. Gov't v. Pohnpei Utilities Corp., 21 FSM R. 408, 409 (Pon. 2017); Onanu Municipality v. Elimo, 20 FSM R. 535, 542 (Chk. 2016); Eot Municipality v. Elimo, 20 FSM R. 482, 491 (Chk. 2016).3 This includes the constitutional right not to be subjected to a bill of attainder. United States "courts have consistently regarded the Bill of Attainder Clause of Article I [of the U.S. Constitution] and the principle of separation of powers only as protections for
individual persons and private groups, those who are peculiarly vulnerable to nonjudicial determinations of guilt." South Carolina v. Katzenbach, 383 U.S. 301, 324, 86 S. Ct. 803, 816, 15 L. Ed. 2d 769, 784 (1966) (rejecting a governmental entity's claim that it could be subjected to a bill of attainder) (citing United States v. Brown, 381 U.S. 437, 85 S. Ct. 1707, 14 L. Ed. 2d 484 (1965); Ex parte Garland, 71 U.S. (4 Wall.) 333, 18 L. Ed. 366 (1867)).4
The Commission itself therefore cannot make a valid claim that the Chuuk Legislature has passed a bill of attainder against it. It thus fails to state a claim for which the court could grant it relief.
C. Commission Members and the Necessity of a Legislative Finding of Guilt
Nevertheless, even though the Chuuk Political Status Commission's individual members are not named as plaintiffs in the complaint (or listed as plaintiffs in the case caption), the plaintiffs contend that Chuuk State Law No. 14-18-23 is a bill of attainder because it singles out the Commission's individual members for punishment. The plaintiffs direct the court's attention to that statute's provision that "[u]pon the effective date of this Act, the Commission shall discontinue from exercising its powers and duties until the Chuuk State Legislature deems it appropriate. This suspension may not include the secretarial staff." Chk. S.L. No. 14-18-23, § 1 (amending Chk. S.L. No. 11-12-08, § 7(b)). The plaintiffs assert that the Legislature's deliberate exclusion of the Commission's secretarial staff makes the Commission's individual members the easily ascertainable members of a group5 and that the suspension of their powers and duties is a punishment that is inflicted on those group members without a judicial trial. Thus, if the court were to somehow consider the Commission's individual members to be complaining plaintiffs in this case, their complaint would be that the Legislature's suspension of the Commission's operations is a finding of wrongdoing or guilt on the individual members' part and an imposition of punishment on them.
The court cannot agree. Even if the Chuuk Political Status Commission's individual members were parties to this action (although it seems they are not),6 the Commission's suspension does not constitute either a finding of their guilt or an imposition of punishment on them.
No finding of guilt or wrongdoing by the Legislature is apparent in either Chuuk State Law No. 14-18-23, or in the Legislature's debates when each house adopted the bill that became Chuuk State Law No. 14-18-23. During the hearing, plaintiffs' counsel suggested that, when persons are suspended from their duties, Chuukese people regularly presume that the suspension means that those persons have mishandled funds. Plaintiffs' counsel asserted that that is true here, and that it constitutes a
finding of guilt. It does not. But even if that was considered a finding of guilt, Chuuk State Law No. 14-18-23 does not impose any punishment.
D. Necessity of Punishment for a Bill of Attainder
"[P]unishment is a prerequisite to an act's being a bill of attainder." David B. Levendusky, Annotation, Supreme Court's Views as to What Constitutes a Bill of Attainder Prohibited by the Federal Constitution, 53 L. Ed. 2d 1273, 1282 (1978). "[T]he determination of the existence of the punishment element of a constitutionally prohibited bill of attainder is dependent for resolution upon the facts and circumstances of individual cases." Id. There are three tests to determine the existence of punishment element – the historical experience test, the functional test, and the motivational test. Id. at 1282-84. Chuuk State Law No. 14-18-23's provisions do not qualify as punishment under any of these tests.
Under the historical experience test, the punishment element of a bill of attainder is met if the named individual or the easily ascertained group member is subjected to any of the penalties associated with bills of attainder or with bills of pains and penalties in England or in colonial or pre-Constitution America – namely death, imprisonment, banishment, or confiscation or forfeiture of property to the sovereign. Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 473-74, 97 S. Ct. 2777, 2805-06, 53 L. Ed. 2d 867, 910-11 (1977). The punishment element could also be met under this test by "barring designated individuals or groups from participation in specified employments or vocations, a mode of punishment commonly employed against those legislatively branded as disloyal." Id. at 474, 97 S. Ct. at 2806, 53 L. Ed. 2d at 911. The Commission's members do not, and cannot, claim that they suffered any of these forbidden deprivations at the Chuuk Legislature's hands.
The second, or "functional," test "look[s] beyond mere historical experience" and analyzes "whether the law under challenge, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes." Id. at 475-76, 97 S. Ct. at 2806-07, 53 L. Ed 2d at 911. The plaintiffs contend that Chuuk State Law No. 14-18-23 functions to punish the Commission members by not allowing them to travel, at the state's expense, to the various municipalities and to Chuukese voters who have not yet had the benefit of the Commission's political education program.7 This is hardly a burden. The court must reject the plaintiffs' claims that the Chuuk Legislature, by enacting Chuuk State Law No. 14-18-23, punished blameworthy Commission members. The Chuuk Legislature furnished a nonpunitive legislative purpose for the statute's enactment – the Legislature's responsibility to control the state's finances and expenditures and to align those expenditures with the state's available revenues.
Furthermore, Chuuk State Law No. 14-18-23 does not prevent any Commission member from espousing the Commission's preferred political education about the Commission's future status recommendation anywhere that member might travel. The individual Commission members can go wherever they want and dispense whatever political education they like to any Chuukese voters they might meet. They just cannot expect to do so on the state's time and at the state's expense. They
may do so on their own time and at their own expense.
The "third recognized test of punishment is strictly a motivational one: inquiring whether the legislative record evinces a [legislative] intent to punish." Nixon, 433 U.S. at 478, 97 S. Ct. at 2808, 53 L. Ed. 2d at 913. The parties stipulated to the admission of Chuuk State Law No. 14-18-23's legislative history. A review of that record does not evince any punitive intent in the floor debate in either legislative house.
Thus, using all these tests, the court can only conclude that Chuuk State Law No. 14-18-23 does not punish the Commission, its members, or any particular Commission member. The court therefore concluded that Chuuk State Law No. 14-18-23 was not a bill of attainder because it does not inflict any punishment, either of the kind normally imposed in criminal cases or any punitive civil sanctions. Thus, the Chuuk Legislature did not enact a forbidden legislative measure.
E. The Chuuk Legislature's Powers to Amend or Repeal Statutes
The Chuuk Legislature may amend any of its earlier statutes that created a governmental agency, in order to alter, or vary, or eliminate any of that agency's powers or duties. See Chk. Const. art. V, § 16(b) (providing the form for amending or revising statutes). "The power to amend statutes belongs exclusively to the legislature. Existing legislation is subject to amendment in any manner consistent with constitutional limitations." 1A NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 22.02, at 175 (5th ed. 1992).
The Chuuk Legislature created the Commission. The Commission had only such rights, powers, and duties as the Legislature saw fit to bestow upon it through a duly enacted statute. Thus the Legislature may, through another duly enacted statute, alter or may revoke any of those rights, powers, and duties.
Furthermore, the Chuuk also has the power, if it so chooses, to abolish the Chuuk Political Status Commission at anytime, by repealing Chuuk State Law No. 11-12-08 (as amended) or by further amending the statute. It created the Chuuk Political Status Commission by statute. It can abolish the Chuuk Political Status Commission by statute, just as it could, by statute, abolish most any governmental agency that it has created by statute.8 "The power to legislate is the power to repeal. A legislature may not bind itself or a future legislature by enacting an irrepealable law . . . ." 1A NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 23.03, at 323 n.4 (5th ed. 1992) (citations omitted). The Legislature chose not to abolish the Chuuk Political Status Commission. It instead chose to suspend (or as the statute put it: "discontinue from exercising its powers and duties") the Commission's operation. That was wholly within the Chuuk Legislature's power. If it has the power to abolish the Commission, it certainly has the power to exercise a less drastic regulation of the Commission's affairs by suspending it.
F. Non-Justiciable Questions
The plaintiffs contend (and put on evidence that they believed would support this contention) that, under the circumstances, suspending the Commission was unwise. They contend that continuing to allow the Commission to conduct its political education program throughout Chuuk and abroad would have been the better course of action. That is not for a court to decide. The Chuuk Legislature makes that decision. The court cannot. This is a political question that is beyond the court's jurisdiction. See, e.g., Rodriguez v. Ninth Pohnpei Legislature, 21 FSM R. 276, 280-81 (Pon. 2017) (court will not enjoin impeachment proceeding in Legislature; case involves a non-justiciable political question); cf. Christian v. Urusemal, 14 FSM R. 291, 294 (App. 2006) (president's reasons for vetoing bill are a non-justiciable political issue); Aten v. National Election Comm'r (III), 6 FSM R. 143, 145 (App. 1993) (Congress is the sole judge of the elections of its members, its decision is a nonjusticiable political question not to be ruled on by the court). A court can strike down (hold unconstitutional) or enjoin the enforcement of only those statutes that the Legislature does not have the constitutional power to enact. Cf. Esechu v. Mariano, 8 FSM R. 555, 556 (Chk. S. Ct. Tr. 1998) (mere fact that a statute is alleged to be invalid will not entitle a party to have its enforcement enjoined). It cannot strike down or enjoin statutes merely because they might be unwise and some other course of action is better.
G. Ruling on the Motions
Since Chuuk State Law No. 14-18-23 is not a bill of attainder and since the court otherwise lacks jurisdiction, the plaintiffs' likelihood of success on the merits of their claims is zero. See Rodriguez, 21 FSM R. at 280. They also have not shown any irreparable harm since there was no punishment and the Legislature's enactment was within its powers. Irreparable harm is a prerequisite for temporary or for preliminary injunctive relief. Nena v. Saimon, 19 FSM R. 317, 329 (App. 2014); Luen Thai Fishing Venture, Ltd. v. Pohnpei, 18 FSM R. 563, 567 (Pon. 2013); FSM v. GMP Hawaii, Inc., 17 FSM R. 555, 593 (Pon. 2011); Ponape Transfer & Storage v. Pohnpei State Public Lands Auth., 2 FSM R. 272, 276 (Pon. 1986). The plaintiffs' motion for a preliminary injunction motion is therefore denied.
Since all of the plaintiffs' claims, other than its claim that Chuuk State Law No. 14-18-23 is a bill of attainder, are claims that are outside of the court's jurisdiction, the Chuuk Legislature's motion to dismiss is granted for lack of subject-matter jurisdiction.
Accordingly, the court denied the plaintiffs' motion for a preliminary injunction and granted the Legislature's motion to dismiss. This case is now closed.
_____________________________________Footnotes:
1 Chuuk State Law No. 11-12-10, enacted May 21, 2012, was the first amendment of Chuuk State Law No. 11-12-08. It corrected certain typographical errors in section 4.
2 The provisions in the FSM Declaration of Rights, FSM Const. art. IV, apply to all governments in the FSM. FSM Dev. Bank v. Adams, 14 FSM R. 234, 247 (App. 2006); Harper v. William, 14 FSM R. 279, 282 (Chk. 2006); Pau v. Kansou, 8 FSM R. 524, 526 (Chk. 1998).
3 The court, in making its ruling from the bench, mentioned this point only in passing, if at all, although it had intended to largely rely on it.
4 Because the FSM Declaration of Rights is to a substantial degree patterned after provisions in the U.S. Constitution and because U.S. cases were relied upon to guide the Micronesian constitutional convention that framed the FSM Declaration of Rights, U.S. authority may be consulted to understand its meaning. FSM v. Joseph, 9 FSM R. 66, 72 (Chk. 1999); Afituk v. FSM, 2 FSM R. 260, 263 (Truk 1986).
5 The court notes that the Commission's enabling statute authorized the Commission to employ legal counsel as well as secretarial staff, Chk. S.L. No. 11-12-08, § 6(e), and that the suspending statute did not exempt the Commission's legal counsel from its application. This presumably makes the Commission's legal counsel also an easily ascertainable member of the purported attainted group. Neither side touched upon this point, so the court will not analyze it further.
6 Generally, a party must assert her only own legal rights and interests, and cannot rest her claim to relief on the legal rights or interests of a third party. Ruben v. Hartman, 15 FSM R. 100, 114 (Chk. S. Ct. App. 2007); Dorval Tankship Pty, Ltd. v. Department of Finance, 8 FSM R. 111, 115 (Chk. 1997) (generally true that parties may not assert the rights of third parties or non-parties).
7 The Chuuk Legislature challenged whether any of the plaintiffs had the standing needed to bring this suit. Neither the court nor the parties focused on whether any of the plaintiffs other than the Chuuk Political Status Commission had standing. The other named plaintiffs' claims to have standing appear to rest on a claim that the alleged bill of attainder deprive them of the future perceived benefit of receiving the political education that the Commission has yet to provide them. This is an attenuated ground to assert standing. The court, in light of its conclusion that Chuuk State Law No. 14-18-23 is not a bill of attainder and that the other issues that the plaintiffs raise are nonjusticiable political questions, need not analyze this further.
8 There are certain Chuuk government agencies that the Chuuk Constitution requires the Legislature to create; for example, the Chuuk Public Service Commission, Chk. Const. art. IX, § 3, and the Chuuk Election Commission, Chk. Const. art. XII, § 4. The court does not suggest that, once the Legislature has created these agencies, the Legislature could then abolish them (although it can amend the statutes governing them). The Chuuk Political Status Commission is not an agency that the Chuuk Legislature is constitutionally required to create. The Legislature can thus abolish it at any time, if it so wishes. As is evident from the statute, the Chuuk Legislature created the Commission only as a temporary agency.
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