POHNPEI SUPREME COURT
TRIAL DIVISION
Cite as Paulus v. State of Pohnpei,
3 FSM Intrm. 208 (Pon. S. Ct. Tr. 1987)

[3 FSM Intrm. 208]

JOSEPH PAULUS,
Plaintiff,

v.

STATE OF POHNPEI, and
DAMIAN SOHL as POHNPEI STATE
DIRECTOR OF EDUCATION,
Defendants.

PCA No. 47-87

[3 FSM Intrm. 209]

Edwel H. Santos
Chief Justice
Pohnpei Supreme Court
September 21, 1987

APPEARANCES:
     For the Plaintiff:          John Brackett
                                          Public Defender
                                          Kolonia, Pohnpei 96941


     For the Defendants:     Thomas Tarpley
                                            State Attorney
                                            Kolonia, Pohnpei 96941

*        *        *        *

HEADNOTES
Precedent
     Discrimination as it is experienced in the United States is not the same as is experienced in Pohnpei.  Therefore, the decisions of this Court will consider decisions of the United States and other common law jurisdictions, but the Court will only apply them as may be appropriate in the individual circumstances. Paulus v. Pohnpei, 3 FSM Intrm. 208, 215 (Pon. S. Ct. Tr. 1987).

Constitutional law - state - equal protection
     A classification of ex-felons currently under sentence is not suspect within the suspect classifications of 3, art. 4 of the Constitution of Pohnpei.  Paulus v. Pohnpei, 3 FSM Intrm. 208, 216 (Pon. S. Ct. Tr. 1987).

Public Service Employment - state
     Working for the Pohnpei State Government, whose policy of public service is based explicitly on merit, is merely a privilege which can be withheld subject to the due process of law.  Paulus v. Pohnpei, 3 FSM Intrm. 208, 217 (Pon. S. Ct. Tr. 1987).

Public Service Employment - state;
Constitutional Law - state - equal protection
     The right to governmental employment in Pohnpei is not a fundamental right, constitutionally protected, requiring invoking a strict scrutiny test.  Paulus v. Pohnpei, 3 FSM Intrm. 208, 217 (Pon. S. Ct. Tr. 1987)

Public Service Employment - state;
Constitutional law - state - general
     The Pohnpei State Government has discretion in hiring or firing

[3 FSM Intrm. 210]

employees, but that discretion does not carry with it the right to its arbitrary exercise.  Paulus v. Pohnpei, 3 FSM Intrm. 208, 217 (Pon. S. Ct. Tr. 1987).

Statutes - state;
Constitutional law - state - legislative power
     Where the legislature has a rational basis for a statutorily non-suspect classification, the Court will not inquire into the wisdom of that statute.  Paulus v. Pohnpei, 3 FSM Intrm. 208, 218 (Pon. S. Ct. Tr. 1987).

Statutes - state
     Section 14(1) of the State Public Service System Act of 1981 (2L-57-81), prohibiting any person who has been convicted of a felony and is currently under sentence from being considered for any public employment or from continuing to hold any previously attained public service position, operates to effect double punishment on persons classified as felons, by preventing such individuals' attempts at rehabilitation, and as such this statute does not support the Pohnpei State Government's policy of rehabilitating persons who are convicted of crimes. Paulus v. Pohnpei, 3 FSM Intrm. 208, 219 (Pon. S. Ct. Tr. 1987).

Statutes;
Constitutional law - state- - equal protection
     Section 14(1) of the State Public Service System Act of 1981 (2L-57-81) is impermissibly arbitrary and irrationally unfair in its blanket prohibition of employment at any person who has been convicted of a felony and is currently under sentence; such statutory prohibition fails to tailor it impact to those convicted felons who otherwise lack the habits of industry.  Consequently, the section of the statute is violative of the Equal Rights Clause of the Pohnpei State Constitution by failing to demonstrate that the exclusion of all felons under sentence is necessary to achieve the articulated state goal.  Paulus v. Pohnpei, 3 FSM Intrm. 208, 220 (Pon. S. Ct. Tr. 1987).

Constitutional Law - state - due process
     Substantive due process relates to the constitutional guarantee that no person shall be deprived of his life, liberty or property for arbitrary reasons.  Such a deprivation is supportable constitutionally only if the conduct from which the deprivation flow is prescribed by reasonable legislation.  The legislative shall be enacted within the scope of legislative authority and be reasonably applied for a purpose consonant with the purpose for which it was enacted.  Paulus v. Pohnpei, 3 FSM Intrm. 208, 221 (Pon. S. Ct. Tr. 1987).

Constitutional Law - state - due process
     Procedural due process relates to the requisite characteristics of proceedings tending toward a deprivation of life, liberty, or property and thus makes it necessary that a person whom it is sought to deprive of such a right must be given notice of this fact.  An individual must be given an opportunity to defend himself before a tribunal or office having jurisdiction of the cause, and the problem of the propriety of this deprivation, under the

[3 FSM Intrm. 211]

circumstances presented, must be resolved in a manner consistent with essential fairness, in accordance with the Pohnpeian concept of justice.  Paulus v. Pohnpei, 3 FSM Intrm. 208, 221 (Pon. S. Ct. Tr. 1987).

Statute - state;
Constitutional Law - state - due process
     A statute providing that any person who has been convicted of a felony and is currently under sentence shall be terminated from public employment, constitutes an unconstitutional deprivation of procedural due process by allowing for the termination of an affected individual without a hearing, and thus must be struck down.  Paulus v. Pohnpei, 3 FSM Intrm. 208, 221-22 (Pon. S. Ct. Tr. 1987).

Judgments - state
     The Court may, in the interest of justice, make the application of its decision prospectively where the Court is overruling a previous decision or declaring a statute unconstitutional and the present ruling does not prejudice those who might have relied on such ruling or on such statute. Paulus v. Pohnpei, 3 FSM Intrm. 208, 222 (Pon. S. Ct. Tr. 1987).

*        *        *        *

COURT'S OPINION
EDWEL H. SANTOS, Chief Justice:
     Plaintiff challenges Section 14(1) of Pohnpei State Public Service System Act of 1981 (S.L. 2L-57-81) and prays judgment against defendants as follows:

     1.  To require defendants to show cause if any, why they should not be enjoined as hereinafter set forth during the pendency of this action;

     2.  For a temporary restraining order (TRO), a preliminary injunction, and permanent injunction, all enjoining defendants, and employees acting under Or in concert with the form:

       a.    Continuing to deny the plaintiff his right to work as a State Government employee and elementary school teacher; and to

       b.    Immediately re-instate Plaintiff to his job as elementary school teacher with back pay from the date of his termination to the date of this order.

     3.  For a declaratory judgment that Section 14(1) of Pohnpei State Law No. 2L-57-81 is unconstitutional in violation of the Equal Protection and Due Process provisions of the Constitution of the State of Pohnpei.

     4.  That the Court issue a permanent injunction, permanently enjoining defendants from summarily terminating employees because of Section 14(1) of 2L-57-81.

[3 FSM Intrm. 212]

     5.  Damages in the amount of total lost wages, plus damages in such further sums as may be sustained and as are ascertained before final judgment, for costs of this suit.  The case was submitted for decision on the pleadings and argument of counsel.

I.  THE FACTS OF THE CASE ARE NOT CONTRADICTED
     1.  Plaintiff, age 38, is a resident of Kitti Municipality.  For approximately 13 years prior to the incident which gave rise to this lawsuit plaintiff was employed by the Pohnpei Government as an elementary school teacher at Wone, Kitti.  His performance rating on the job had been satisfactory (Pre-sentence report, PTC No. 530-85).

     2.  On November 7, 1985, plaintiff and two of his teacher-companions came to Kolonia on plaintiff's Toyota pickup truck for pleasure visit.  Apparently while in town they had consumed a substantial amount of alcoholic beverages.  They returned to Kitti the same day, in the evening, all under the influence of alcohol. Plaintiff was driving.  Passing through Pwok village, plaintiff was driving at an excessive rate of speed.

     3.  The truck, driven by plaintiff, got into an accident upon approaching a bridge at Pwok.  The truck left the road, flipping its back in the air and landed upside down in the other side of the bridge, thus killing one of plaintiff's teacher-companions named Alfred Stephen, instantly.

     4.  Plaintiff was charged under Pohnpei Traffic Code with (1) speeding ( 429); (2) drunk driving ( 805); (3) careless driving ( 801); (4) vehicular homicide ( 804); and (5) causing death [of one] while driving  under the influence ( 806).  A plea agreement was negotiated on February 4, 1986 and plaintiff here pled guilty to the charge of causing death to a person while driving under the influence of intoxicating liquor, 806.  He was sentenced to serve a one-year term imprisonment, or alternatively to serve a suspended sentence of one year on certain conditions, if plaintiff paid $500.00 fine before April 30, 1986.  Plaintiff did pay the fine, and he was placed under suspended sentence for one year, said suspended sentence being terminated on or about March 3, 1987.

     5.  On May 7, 1986, the following letter was sent to plaintiff from defendant Director of the Department of Education.

"May 7, 1986

Mr. Joseph Paulus
Classroom Teacher II
Wone Elementary School
Pohnpei State 96941

Dear Mr. Paulus:

[3 FSM Intrm. 213]

I regret to inform you that after a careful review sentence in Criminal Case No. 580-85, you are in conviction of a felony case.  You are in direct violation of State Law No. 2L-57-81, section 14.  The law states that no person may be appointed or serve in the Public Service System who is currently under sentence or other punishment has been suspended, for conviction of a felony.

As a result of these findings, I hereby officially inform you that your employment with the Pohnpei State Department of Education will be terminated effective on the date you receive this notice.

Please be informed that Adverse Action documents dated April 30, 1986, is hereby superceded in its entirety.

Thank you.

/s/
Damian G. Sohl

pe
XC:     Actg. Assist. to Gov. on PL & MD Director, Department of Legal Affairs

Date Receive: 5/8/86"

     6.  Plaintiff however states the following as part of his Points and Authorities:

     Plaintiff was employed by the Pohnpei State Department of Education as an elementary school teacher in Kitti municipality for 13 years.  On November 17, he was involved in a motor vehicle accident which had nothing to do with his employment.  As a result of said accident he entered a plea of guilty to a violation of the Pohnpei State Motor Vehicle Code and received a fine and suspended sentence of 1 year.

     On May 8, 1986, he was terminated summarily without a hearing or opportunity to be heard by defendant Damian Sohl acting in his capacity as State Director of Education.

     The said letter of termination cited Pohnpei State law No. 2L-57-81, Section 14, as the cause of his termination.

     Pursuant to the terms of said letter he was terminated immediately upon its receipt.

     7.  On May 12, 1986, plaintiff filed a motion for reduction and modification of sentence in PTC No. 530-85, took no other action to remedy his out-of-job problem, and on March 9, 1987, plaintiff brought this action.

[3 FSM Intrm. 214]

     8.  On September 9, 1986, Defendants had filled the teaching position vacated by plaintiff as the result of plaintiff's conviction in PTC 530-85 and the the letter of summary termination cited under paragraph 5 above.
 
Plaintiff's cause of action thus is summarized as follows:

     1.  State Law 2L-57-81, particularly Section 14(1) which classifies persons currently under sentence for conviction of a felony (ex-felons currently under sentence) is suspect; and violate Equal Protection provision of the Constitution of Pohnpei.

     2.  Right to Work for the Government, unlike other jurisdiction, is a constitutionally protected fundamental right; and

     3.  Plaintiff's summary termination from his government position violate due process of law.

II.  CONCLUSION OF LAW
     Three basic issues are presented to the Court by this lawsuit:

     1.  Whether Section 14(1) of Pohnpei State Law 2L-57-81, violates the Equal Rights (Protection) provisions of the Constitution of Pohnpei.

     2.  Whether right to work for the government of Pohnpei is a constitutionally protected right.

     3.  Whether in applying Section 14(1) and the letter of summary termination dated May 7, 1986, Defendants violated plaintiff's rights to due process of law as guaranteed by the Constitution of Pohnpei.

A.     Equal Protection Claim
     Article 4, section 3 of the Constitution of Pohnpei guarantees equal protection of the law to all persons of this State.  The section reads as follows:

Section 3. Equal Rights.  No law or other government   action may deny or impair the equal rights of all persons  on account of gender, race, ancestry, national origin, religion, language or social status.  No person may be denied the equal protection of the law.

     The statute challenged by the plaintiff here provides at section 14 as follows:

Section 14.  Disqualification from Appointment and
Service.  This Section shall apply to all Public Service System positions, inclusive of all positions exempted by Subsections (b) through (m) sic of Section 9 of this act:

(1)  No person may be appointed or served in the Public Service System who is currently under

[3 FSM Intrm. 215]

sentence, inclusive of the period for which imprisonment or other punishment has been suspended, for conviction of a felony under the laws of this State or the National Government or any other State  of the Federated States of Micronesia, or of the United States or any political subdivision thereof.

(2)  Conviction of a felony after completion of sentence as specified in Subsection (1) hereof shall not be a bar to employment in the Public Service unless the Director determines that the nature of   the felony renders the candidate clearly unsuitable for the position applied for.

(3)  The willful commission of or the attempt to commit any material deception or fraud in connection with any application or examination shall cause removal and permanent disqualification from appointment in the Public Service, after due notice and hearing by the Director.

     Under the statutory scheme at issue here, Section 14(1) denies  convicted felons the opportunity to hold or to be appointed to public service positions.

     This is a case of first impression, and this Court takes judicial  notice of the fact that discrimination as is experienced in the United States is not the same as it is experienced here in Pohnpei.  Accordingly one should not expect that decisions of this Court on issues of discrimination to follow exactly the lines of reasoning drawn by United States decision, but the Court will consider decisions of the United States and other common law jurisdictions on similar issues for information and for what they are worth, and the Court may apply them as appropriate to the circumstances here.

     Plaintiff urges the court to analyze the statute under attack here  using the standard (test) developed and applied in the United States, namely, the strict scrutiny (compelling state interest) test.

     Equal protection analysis under United States jurisdiction is "two-tiered": under the standard most often employed (minimum scrutiny or rational basis test) a state classification will be upheld if rationally related to a legitimate state purpose; but classifications that are "suspect" or that touch on a "fundamental interest" will be subjected to strict scrutiny and struck down unless justified by a compelling state interest.  See Shapiro v. Thompson, 394 U.S. 618, 634, 89 S. Ct. 1322, 1331, 22 L. Ed. 2d 600, 615 (1969); Dorrough v. Estelee, 47 F.2d 1007 (5th Cir. 1974).

     Under the standard above-briefed I need to determine first whether the statutory classification of felons is "suspect" or whether the statutory proscription of felons from public service touches upon any "fundamental rights" enshrined in our Constitution for purpose of invoking the strict scrutiny test.

[3 FSM Intrm. 216]

     Pohnpei Constitutional Convention Sub-Committee Report No. 63 lists those categories intended to be labeled "suspect" and they include:  sex, race, ancestry, national origin, religion, language, or social status.  Section 3 of Article 4 of the Constitution of Pohnpei lists the categories that are suspect as: gender, race, ancestry, national origin, religion, language, or social status.

Any governmental action that classifies according to these constitutes suspect criterias.  Because of this, the government must provide a compelling governmental interest in the classification.

     No case law has been made known to this Court where a classification based on a criminal record is suspect.  In a United States Federal Court case, the court said:

A classification based on criminal record is not a suspect classification.  See Hunter v. Erickson, 393 U.S. 385, 89 S. Ct. 557, 21 L. Ed. 2d 616 (1969).  Thus such a classification does not require the rigid scrutiny that suspect classifications bring forth.

Butts v. Nichols, 381 F. Supp. 573, 579 (S.D. Iowa 1974) (citation omitted).

     Accordingly I hold that the classification of ex-felons currently under sentence under State Law 2L-57-81, Section 14(1), is not suspect within the suspect classifications of Section 3, Article 4 of the Constitution of Pohnpei, and therefore it does not require the strict scrutiny test that suspect classifications require.

B.     Right to Work for the Government
     I next address the question of whether right to work for the government is a constitutionally protected fundamental right.

     Plaintiff urges this Court to adopt a policy to the effect that right  to work for the government is a fundamental right subject to the strict scrutiny test.  In support of this argument, plaintiff states:

In the State of Pohnpei, unlike the United States, more  than 50% of the adult work force is employed by the government.  FSM 1st National Development Plan, at 92.    Mr. Joseph Paulus has spent his entire adult working life  as a teacher employed by the Pohnpei State Government and  as a result thereof has severely limited his marketability to any career outside of elementary school teaching.

(Plaintiff's Points and Authorities, page 2).

     We found, however, in the Public Service System Regulations the Government Policy as set out in part under Section 1.1, to wit:

[3 FSM Intrm. 217]

1.1  POLICY.  The Public Service System shall be career service, based on merit principles, and free of discrimination or political influence.  It is designed to attract, select, and retain the best qualified persons available, with incentives for competent and loyal employees, and a means to eliminate unnecessary or inefficient employees.

     Though the Plaintiffs argument above has some merit, the Government policy of public service, supra, which is based on merit explicitly shows that one can get hired or retain his public service career if he performs well on the job or maintains an acceptable status of conduct.  Thus working for the Government of Pohnpei is merely a privilege which can be withheld subject to due process of law.

     I found no precedent where the Court has held that right to public employment is a fundamental right for the purpose of invoking the strict scrutiny test.  In Butts v. Nichols, the Court said at 381 F. Supp. 579:

[A]lthough the right to seek employment is vital to all individuals as it relates to supporting themselves and  their families and maintaining their self-respect and esteem, the Court can find no support in precedents at   this time for a holding that the right to public   employment is a fundamental right which could invoke the compelling state interest test.

See also McConnell v. Anderson, 316 F. Supp. 809 (D. Minn. 1970).

     For the reasons considered, I conclude for this jurisdiction that right to work for the government is not a constitutionally protected right under the Constitution of Pohnpei which would require invoking of the strict scrutiny test.  Lest this conclusion pose any misunderstanding, the Court emphasizes here that "constitutional protection" does extend to the employees of the government whose exclusion pursuant to a state statute is patently arbitrary or discriminatory.  Wieman v. Updegraff, 344 U.S. 183, 192, 73 S. Ct. 215, 219, 97 L. Ed. 216, 222 (1952).  Likewise, a person applying for government employment is also entitled to equal protection against arbitrary or discriminatory treatment by the Government.  Scott v. Macy, 349 F.2d. 938, 941 (D.C. Cir. 1965).  Of course our Government does have discretion in hiring or firing employees, but that discretionary power does not carry with it the right to its arbitrary exercise. Shachtman v. Dulles, 225 F.2d 938, 941 (D.C. Cir. 1955).  These rights are protected by our State Constitution and will be enforced by the Court.

     Having determined that the strict scrutiny test is not applicable here, I must therefore analyze the statutory prohibition against the employment of convicted felons under sentence in light of the rational basis test.

     In defining the basic inquiry of the rational basis test, also referred to as the minimum scrutiny test, the United States Supreme Court has stated:

[3 FSM Intrm. 218]

[T]he classification must be reasonable, not arbitrary,   and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be  treated alike.

F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S. Ct. 560, 561-62, 64 L. Ed. 989, 990-91 (1920).

     Recent United States Supreme Court cases have made it quite clear that simply discerning any legislative reason, however plausible, will not serve to satisfy the rational basic requirement.  U.S. Dep't of Agriculture v. Moreno, 413 U.S. 528, 93 S. Ct. 2821, 37 L. Ed. 2d 782 (1973); Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971).  The relevant inquiry should more properly focus upon whether the means utilized to carry out a legislativepurpose substantially further that end.  Butts v. Nichols, 381 F. Supp. at 579.

     Applying the foregoing principles to the case before me, my first task   is to isolate the Pohnpei Government interest served by Section 14(1) of the State Public Service System Act of 1981 (2L-57-81).  Defendant State admitted that Pohnpei Government has a legitimate interest in assuring the high quality of the public service and in ensuring that the rules of society are taught by those who have not shown an unwillingness to abide by those rules.

     On the other hand the State admits that it also has an interest to rehabilitate felons and assist them in their resumption of responsibilities.

     The perceived state interest involved is a protective and moral one.  The Legislature sees it unfit and morally wrong for a person convicted of a felony and under sentence to be an employee of the State Public Service System.  The validity of these legislative purposes, however wise, is the province of the Pohnpei Legislature, and this Court lacks jurisdiction to determine such validity by virtue of the separation of power doctrine.  See People of Kapingamarangi v. Pohnpei Legislature, 3 FSM Intrm. 5 (Pon. S. Ct. Tr. 1985).  However, the means utilized to implement those purposes are the proper subject of judicial evaluation. Pon. Const. art. 10, 1;, S.L. No. 2L-160-82, 51.

     Under Section 14(1), any person who has been convicted of a felony and is currently under sentence:

(a)  will not be considered for appointment to any public service position if he applies for one, regardless of how qualified he/she is;

(b)  will be terminated if he is already hired and holds a public service position, again regardless of how well be  had performed on the job or whether the felony committed had any direct bearing on his/her job.

     This sub-section contemplates no bearing, whereas subsections 2 and 3 respectively of Section 14 require hearing prior to any determination is made

[3 FSM Intrm. 219]

by the Director.  As applied to plaintiff in this action, he falls within the subclass (b). Plaintiff had served in the capacity as an elementary school teacher for over 13 years.  His performance record was satisfactory.  He was terminated following his conviction and sentence for the traffic offense of "causing death or bodily injury while driving under the influence of intoxicating liquor" (S.L. 2L-132-82, 806). This traffic offense reads as follows:

Any person operating or driving a motor vehicle of any  kind while under the influence of intoxicating liquor, and who, by reason for such condition, does any act or  neglects any duty imposed by law, which act or neglect of duty causes the death of or bodily injury to any person, shall be punished by imprisonment for less than three   years or a fine of less than $3,000, or both.

The offense committed by plaintiff which prompted his dismissal from his teaching position is not directly related to his employment, nor was there evidence to suggest the plaintiff's performance skill would be affected by the conviction and sentence.

     It is beyond doubt, however, that the Pohnpei Government could  logically prohibit and refuse employment in certain positions where the felony conviction and the sentence would directly reflect on the felon's qualification for the job (e.g. conviction of embezzlement and a job requiring the handling of large sums of money).  The statutory scheme in question here has an across-the-board prohibition against the employment of felons in Pohnpei public service positions. There is no tailoring in an effort to limit the statutory prohibition to those convicted felons who otherwise lack the habits of industry, obedience, fidelity or whose apology tendered under the Pohnpeian custom for the crime committed has not been mutually accepted.  No consideration is given to the well-known belief in Pohnpei that "aramas koaros kin sapwungala."  We must keep in mind that Article 5 (Tradition) of our State Constitution upholds, respects, and protects the customs and traditions of the traditional kingdoms in Pohnpei.  Sections 1-13 and 9-1, respectively of the Pohnpei Crimes Act of 1985 do recognize Pohnpeian custom in criminal proceedings.  Section 14(1) of the Public Service System Act in question here seems to run afoul with the constitutional and statutory recognition of our customs, supra.

     Additionally our State Government should be sensitive to the punitive effects across-the-board "felons bans" can have on individuals seeking to rehabilitate themselves, and accordingly have demanded a precision of classification which would avoid the adverse effects of statutes such as the one at issue here. Section 14(1) operates in effect to double punish Persons who are classed as felons.  Is this in conformity with our concept of  justice?  I have no hesitancy in answering this query in the negative.  The punitive effect of this statute on persons classed as "felons" does not support implementation of the Government "admitted policy" of rehabilitating persons who are convicted of crimes.

     Seriously, Section 14(1) puts into question the legality of the Court

[3 FSM Intrm. 220]

Probation Service program which include placing probationers on both government and private employment as a rehabilitative means.  Finally Section 14(1) defeats the Government purpose (also admitted by the defendants of rehabilitating persons convicted of crimes and assisting them in their resumption of responsibilities, in order to help them to become good members of our society.

     Section 14(1), in my opinion, is without reasonableness and is arbitrary.  Its arbitrariness is greatly increased when one considers certain sampling of its implementation by the Government, to which judicial notice is given.  In the instant case, the plaintiff, who had been a government employee for over 13 years, had to be terminated following his conviction and sentence of a felony.  In the case of Pohnpei State v. Richard Porter, Crim. Case No. 565-84, the defendant there was found guilty of vehicular homicide and was sentenced in February 1985. During the pendency of the defendant sentence, the Government appointed him as a medical officer at the Pohnpei hospital in direct violation of the statute. Section 14(1) is not only arbitrary and unfair, it also invites abusive discretion on the part of the management officials as is exemplified above.  This type of unfair treatment on the part of government officials charged to enforce the statute under attack here must stop.

     Without a more precise relationship of the means utilized by Section 14(1) to achieve the desired legislative purpose, this section of the statute clearly violates the tenet of Equal Protection analysis that the exclusion of the plaintiff and all felons under sentence is "necessary to achieve the articulated state goal." Kramer v. Union Free School District, No. 15, 395 U.S. 621, 89 S. Ct. 1886, 23 L. Ed. 2d 583 (1969).  By enacting a blanket prohibition on all ex-felons, a clearly anomalous situation results.  For example, persons convicted of any felonious crimes would be sentenced as felons, and hence would lose public service eligibility, no matter what the nature of their job.  In contrast, an individual convicted of a crime clearly involving dishonesty, such as petit larceny (Section 7-5, Pohnpei Crimes Act of 1985) would not be a felon, and hence would be eligible for a number of public service jobs wherein such criminal propensities would pose a threat to the Government.

     I conclude that Section 14(1) of the Pohnpei Public Service System Act of 1981 (2L-57-81) is impermissibly arbitrary, and is irrationally unfair, and the means applied by the Government to accomplish the legislative purpose of protecting the integrity and fidelity of the public service system violates the Equal Rights provision of the Pohnpei Constitution.

III.  DUE PROCESS CLAIM
     Plaintiff complains that this summary termination without hearing violated his procedural due process.  On May 8, 1986, plaintiff was terminated summarily without a hearing or opportunity to be heard by defendant Damian Sohl, acting in his capacity as State Director of Education.  This fact is not disputed as Director Damian Sohl's letter of May 7, 1986 proves.

     Due Process of Law, as we adopted in our Pohnpei Constitution, reads at

[3 FSM Intrm. 221]

Article 4, Section 4:

Due Process of Law.  No person may be deprived of life, liberty, or property without due process of law.  Private property may not be taken except for a public purpose with just compensation.

     The concept of due process of law has two aspects, namely substantive due process and procedural due process.  Substantive due process relates to the constitutional guarantee that no person shall be deprived of his life, liberty or property for arbitrary reasons.  Such a deprivation is supportable constitutionally only if the conduct from which the deprivation flows is prescribed by reasonable legislation.  The legislation shall be enacted within the scope of legislative authority and be one reasonably applied for a purpose consonant with the purpose for which it was enacted.

     Procedural due process relates to the requisite characteristics of proceedings tending toward a deprivation of life, liberty, or property and thus makes it necessary that a person whom it is sought to deprive of such a right must be given notice of this fact; in other words, he must be given notice of the proceedings against him in that regard, he must be given an opportunity to defend himself before a tribunal or office having jurisdiction of the cause, and the problem of the propriety of this deprivation, under the circumstances presented, must be solved in a manner consistent with essential fairness, otherwise, in accordance with the Pohnpeian concept of justice.  This idea of procedural due process is reflected in the statement that "it is the rule as old as law itself that no one shall be personally bound until he has had his day in court."  16A Am. Jur. 2d Constitutional Law 813 (1979).

     The fact of the instant case shows that Plaintiff's substantial due process--his property right in his government position which he had held for over 13 years--was deprived of him by virtue of Section 14(1), and at the same time he was deprived of his procedural due process when his termination was effected without a hearing.

     However, it is without question that all of this happening flows from the effect of Section 14(1) which the Defendant Director of Education was charged to rely upon.  It should also be recognized that had plaintiff failed to pay the "alternative sentence" of fine that had plaintiff failed to pay the "alternative sentence" of fine of $500.00 (Finding of Fact paragraph 4), plaintiff here would have been incarcerated for one year and would be out of job any way.

     Section 14(1) was a general law which prohibits all convicted felons from appointment or from serving in the Pohnpei public service system.  After considering the findings and sentence imposed by the Court in Pohnpei v. Joseph Paulus, Pon.  Traffic Case No. 580-85, Defendant Director of Education saw no alternative choice of management action other than to follow the letter of the law, hence to order the termination of plaintiff from his teaching position. Again, if this act on the part of the Defendant violated plaintiff's due process right, it was because of Section 14(1).

[3 FSM Intrm. 222]

The effective of the statute is offensive to the due process right enshrined in our Pohnpei Constitution and ought to be struck down.

     In their concluding argument, the defendants urged this Court to consider the following suggestion:  If the Court finds the law unconstitutional, for whatever reason, the Court could order the ruling to have prospective application only, not retroactive.  This is within the discretion of the Court, for plaintiff's requested remedies are equitable in nature.

     In support of their recommendation, defendants urged the Court to consider the specific facts of the case, to wit:

     1.  Plaintiff did not commit just any felony, he committed the worst crime under state law because it involved the death of another human beings.

     2.  Plaintiff did not serve any of the jail time imposed - it was suspended.

     3.  Plaintiff waited until his sentence was finished before attacking the statute. He didn't work nor did he use diligence to protect his alleged rights for over a year; and yet now he wants back pay.

     4.  His teaching position had been filled by another person who had   not committed a felony.

     5.  It is unfair to grant plaintiff's demands even if the Court finds the statute unconstitutional.

     It is true that courts under common law jurisdictions generally have the power to deny retroactive operation of an overruled decision or statute declared unconstitutional.  Annot., 10 A.L.R.3d 1371, 1393 (1966).  The United States Supreme Court laid down a prospective principle "in a manner that will not prejudice those who might have relied on it," James v. United States, 366
U.S. 213, 221, 81 S. Ct. 1052, 1056, 6 L. Ed. 2d 246, 254 (1961).  Thus the accepted rule today is that in appropriate cases the Court may, in the interest of justice, make the rule prospective.  Linkletter v. Walker, 381 U.S. 618, 628, 85 S. Ct. 1731, 1737, 14 L. Ed. 2d 601 (1965).  And "there is much to be said in favor of such a rule for cases arising in the future." Mosser v. Darrow, 341 U.S. 267, 276, 71 S. Ct. 680, 684, 95 L. Ed. 927, 934 (1951) (Black, J., dissenting).  A ruling which is purely prospective does not apply even to the parties before the Court. Linkletter, 381 U.S. at 621-22, 85 S. Ct. at 1733, 14 L. Ed. 2d at 604.

     The reasons advanced by the defendants, supra, in favor of a  prospective ruling, coupled with the state of economic dependency that our State, like other States of our young island nation, has on the United States, deserve serious consideration.  For a jurisdiction that has just been permitted to chart its own destiny--politically, economically, and otherwise--and whose survivability depends largely on foreign assistance, the adoption of a policy favoring prospective ruling and application of court decisions overruling previous decisions or declaring statutes unconstitutional

[3 FSM Intrm. 223]

is in order, insofar as the ruling does not prejudice those who might have relied on such ruling or on such statute.

     Finally, the plaintiff, in addition to other remedies sought, requests damages for total lost wages and cost of this suit.  I think, in view of my holding here that the ruling in this case be applied prospectively, plaintiff's request for damages should be denied.  However, a word of memorandum is in order here: It should be remembered that plaintiff had served his suspended sentence according to law and has been discharged.  He is eligible to hold public service positions.

IV.  ORDER OF JUDGMENT
     IT IS ORDERED, ADJUDGED, AND DECREED that this shall constitute the Findings of Fact, Conclusions of Law and the JUDGMENT is entered as follows:

     1.  Section 14, Subsection (1) of Pohnpei State Law 2L-57-81,   otherwise known as the State Public Service System Act of 1981, is unconstitutional in violation of the Equal Rights and Due Process provisions of the Constitution of Pohnpei in that:

     a.   The statute arbitrarily discriminates all categories of felons without affording any means to screen out those felons whose convictions have no relation whatever to their government positions or their ability to perform on the job.

     b.   There is no rational relationship between the Government interest--of assuring the high quality of public service and of ensuring that the rules of society are taught by those who have not shown an unwillingness to abide by those rules--and the means--denying all categories of felons that access to public employment--used to effect that Government interest.

     2.  The State of Pohnpei is enjoined from enforcing Section 14, Subsection (1) of Pohnpei State Law 2L-57-81 against plaintiff or against any other person similarly situated.

     3.  This Judgment applies prospectively.

     4.  Plaintiff's request for damages is denied.

     5.  Each party shall bear its own cost.

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