THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Robert v. Chuuk State House of Representatives ,
6 FSM Intrm. 260 (Chuuk S. Ct. Tr. 1993)

[6 FSM Intrm. 260]

ROMAN ROBERT,
Plaintiff,

vs.

CHUUK STATE HOUSE OF REPRESENTATIVES,
Defendant.

CSSC CASE NO. 102-93

ORDER

Wanis R. Simina
Associate Justice
Chuuk State Supreme Court

Hearing:  November 5, 1993
Decided:  November 12, 1993

APPEARANCES:
For the Plaintiff:          Johnny Meippen, Esq.
                                     Micronesian Legal Services Corporation
                                     P.O. Box D
                                     Weno, Chuuk FM 96942

For the Defendant:     Sabino Asor
                                     Legislative Counsel
                                     Chuuk State Legislature
                                     P.O. Box 27
                                     Weno, Chuuk FM 96942

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HEADNOTES
Constitutional Law ) Chuuk ) Legislative Powers
     The Chuuk State Legislature is limited to judging only those qualifications of its elected members that are explicitly listed within the Chuuk State Constitution.  Robert v. Chuuk State House of Representatives, 6 FSM Intrm. 260, 264 (Chk. S. Ct. Tr. 1993).

Constitutional Law ) Chuuk ) Judicial Powers; Constitutional Law ) Chuuk ) Separation of Powers
     The ultimate interpretation of any provisions of the Chuuk State Constitution is within the sole authority of the Chuuk State Supreme Court, as the ultimate interpreter of the Constitution, and that includes the authority to interpret the meaning of whether a matter has been committed by

[6 FSM Intrm. 261]

the Constitution to another branch of government, or whether the action of that branch exceeds its authority.  Robert v. Chuuk State House of Representatives, 6 FSM Intrm. 260, 264 (Chk. S. Ct. Tr. 1993).

Constitutional Law ) Chuuk ) Judicial Powers; Constitutional Law ) Chuuk ) Separation of Powers
     The constitutional provision making the House the sole judge of the qualification of its members does not automatically preclude the Chuuk State Supreme Court from having jurisdiction to decide if a member-elect of the legislature has been excluded from membership on unconstitutional grounds; nor is the Court's jurisdiction over alleged unconstitutional applications of the Legislature's powers necessarily precluded by the political question doctrine. he court ultimately has the power to determine if the Legislature has exercised its powers in an unconstitutional and invalid manner.  Robert v. Chuuk State House of Representatives, 6 FSM Intrm. 260, 264-65 (Chk. S. Ct. Tr. 1993).

Constitutional Law ) Chuuk ) Judicial Powers; Jurisdiction
     The court has the subject matter jurisdiction to hear suits alleging that the legislature has exercised its power to be the sole judge of the qualifications of its members in an unconstitutional manner in violation of the constitutional prohibitions against ex post facto laws.  Robert v. Chuuk State House of Representatives, 6 FSM Intrm. 260, 265 (Chk. S. Ct. Tr. 1993).

Constitutional Law ) Chuuk ) Interpretation
     Where constitutional language is borrowed from another constitution the borrowed language will be interpreted in the light of the interpretation of the original language, but insertion of new or different language must be interpreted to intend that some sort of new or different meaning be given to that altered portion of the constitutional text.  Robert v. Chuuk State House of Representatives, 6 FSM Intrm. 260, 265 (Chk. S. Ct. Tr. 1993).

Constitutional Law ) Chuuk ) Separation of Powers
     Each house of the Chuuk State Legislature may exercise its power as the sole judge of the qualifications of its members so long as it is done in a manner that is rationally and reasonably related to the plain ordinary meaning of the text in order to comply with the state and federal requirements of due process, and not in any arbitrary or capricious manner, or in any other manner that would otherwise violate the state or national constitutions.  This power may be exercised only in regard to the qualifications that explicitly appear in the constitution itself.  Robert v. Chuuk State House of Representatives, 6 FSM Intrm. 260, 266 (Chk. S. Ct. Tr. 1993).

Constitutional Law ) Ex Post Facto Laws
     While every ex post facto law must necessarily be retrospective not every retrospective law is an ex post facto law.  An ex post facto law is one which imposes punishment for past conduct, lawful at the time it was engaged in.  Robert v. Chuuk State House of Representatives, 6 FSM Intrm. 260, 266-67 (Chk. S. Ct. Tr. 1993).
 
Constitutional Law ) Ex Post Facto Laws
     Legislation is not an ex post facto law where the source of the legislative concern can be thought to be the activity or status from which the individual is barred, even though it may bear harshly upon one affected, but the contrary is the case where the statute in question is evidently aimed at the person or class of persons disqualified.  Robert v. Chuuk State House of Representatives, 6 FSM Intrm. 260, 268-69 (Chk. S. Ct. Tr. 1993).

[6 FSM Intrm. 262]

Constitutional Law ) Ex Post Facto Laws
     A provision barring those convicted of a felony, even if pardoned, from membership in the legislature is concerned with the qualifications of legislative membership, and is not just for the purpose of punishing felons and those pardoned of a felony which would violate the constitutional ban on ex post facto laws.  Robert v. Chuuk State House of Representatives, 6 FSM Intrm. 260, 269-71 (Chk. S. Ct. Tr. 1993).

Constitutional Law ) Chuuk ) Separation of Powers
     Policy determinations by other branches of the government are always to be given wide latitude when under judicial review, and policy determinations within the constitution itself must therefore receive the widest possible latitude when under review.  Robert v. Chuuk State House of Representatives, 6 FSM Intrm. 260, 269 (Chk. S. Ct. Tr. 1993).

Constitutional Law ) Ex Post Facto Laws
     Regulations imposing civil disqualifications for past criminal conduct are not punishment barred by the constitutional ban against ex post facto laws.  Robert v. Chuuk State House of Representatives, 6 FSM Intrm. 260, 270-71 (Chk. S. Ct. Tr. 1993).

Constitutional Law ) Chuuk ) Due Process; Constitutional Law ) Ex Post Facto Laws
     Since retrospective application of a constitutional provision barring persons convicted of felonies, even if pardoned, from holding legislative office is not an invalid ex post facto law, retrospective application of then provision is also not invalid as a bill of attainder or a denial of due process.  Robert v. Chuuk State House of Representatives, 6 FSM Intrm. 260, 271-72 (Chk. S. Ct. Tr. 1993).

Constitutional Law ) Chuuk ) Legislative Powers
     No house of the legislature is bound by the decisions or determinations of a previous house.  One duly elected legislature's determination of a member-elect's constitutional qualifications or disqualification to sit is not binding as legal precedent on any subsequently and duly elected legislatures, and each newly elected legislature is free to determine the meaning of constitutional qualifications and apply it in a manner that is different from that of previous legislatures, so long as its application is in conformity with the state and national constitutions.  Robert v. Chuuk State House of Representatives, 6 FSM Intrm. 260, 272 (Chk. S. Ct. Tr. 1993).

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COURT'S OPINION
WANIS R. SIMINA, Associate Justice:

CASE BACKGROUND
     Plaintiff filed their complaint in this action on May 1, 1993 seeking declaratory judgment and injunctive relief, a writ of mandamus, and back wages for the plaintiff.  Plaintiff claimed that he was duly elected and seated as a member of the first Chuuk State Constitutional Legislature, and that the legislature at that time concluded that plaintiff met all eligibility requirements imposed by the Chuuk State Constitution.  Plaintiff further alleged that on March 2, 1993, he was duly elected by the constituents in the First Representative District to hold one of the five seats in the Chuuk State Legislature, House of Representatives, for that district.  Since the inception of the 2nd Legislature in April of 1993, plaintiff has been denied salary and participation as a member of the

[6 FSM Intrm. 263]

Chuuk State Legislature, by the Chuuk State House of Representatives, on the grounds that article V, section 7(b) of the Chuuk State Constitution disqualifies him for such membership due to his felony conviction and pardon.

     In his current motion for summary judgment filed on October 4, 1993, plaintiff asks the court to rule that article V, section 7(b) of the Chuuk State Constitution only applies prospectively, and that as a result, plaintiff's conviction and pardon, both of which occurred prior to the enactment of the Chuuk State Constitution, can not disqualify him to sit as a member of the Chuuk State Legislature.

     It is argued that any retrospective application of the provision would be unconstitutional, on the grounds that it would be an ex post facto law and/or a bill of attainder, and other grounds as well.  In this current motion, plaintiff seeks a declaratory judgment ruling that the legislature is without the power to exclude him as a member due to his felony conviction and pardon.

     The defendant has also filed a motion to dismiss this case for lack of subject matter jurisdiction, on the grounds that article V, section 7(c) of the Chuuk State Constitution deprives this court of any jurisdiction to rule on the plaintiff's case.

     A hearing was held by the court on both these motions on November 5, 1993, at which time arguments were presented by both sides.  The matter was taken under submission, and the court now rules on both of these motions.

LEGAL ANALYSIS
I.  ISSUE:  WHETHER THE COURT HAS SUBJECT MATTER JURISDICTION IN THIS CASE
     The defendant has filed a motion to dismiss this action for lack of subject matter jurisdiction.  In support of this motion, they cite article V, section 7(c) of the Chuuk State Constitution, which states that, "Each house is the sole judge of the . . . qualifications of its members."

     The United States has a very similar provision in regards to its national legislature, which states that,  "Each House shall be the Judge of the . . . Qualifications of its own Members . . . ."  U.S. Const. art. I, 5.  It is obvious that the 7(c) provision stating that the legislature is the sole judge of its member's qualifications, is strongly borrowed from article I, section 5 of the U.S. Constitution.  Therefore, in determining the current motion to dismiss, the court will first consider the United States Supreme Court's interpretation of this provision, in regard to the subject matter jurisdiction of the courts.

     In the case of Powell v. McCormack, 395 U.S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969), the issue before the court was whether article I, section 5 of the Constitution deprived the courts of any subject matter jurisdiction over a case alleging that a person was unconstitutionally being deprived membership in the legislature.  In regards to this issue, the court stated that the provision that each House shall be the judge of the elections and qualifications of its own members in article I, section 5 of the U.S. Constitution, confers not a general legislative power upon the Congress, but rather a power judicial in character upon each House.  Barry v. United States ex rel. Cunningham, 279 U.S. 597, 613, 49 S. Ct. 452, 455, 73 L. Ed. 867, 871 (1929).

     The power of each House to judge whether one claiming election as [a member] has

[6 FSM Intrm. 264]

met the requisite qualifications cannot reasonably be translated into a power granted to the Congress itself to impose substantive qualifications on the right to so hold such office.  Whatever power Congress may have to legislate, such qualifications must derive from 4, rather than 5, of Art. I.

Buckley v. Valeo, 424 U.S. 1, 133, 96 S. Ct. 612, 689, 46 L. Ed. 2d 659, 753 (1976) (citation omitted).

     Accordingly, the Chuuk State Legislature is limited to considering only those qualifications that are explicitly listed within the Chuuk State Constitution.

     Further, actions allegedly taken pursuant to article I, section 5 of the United States Constitution, which provides that each House shall be the judge of the elections and qualifications of its own members, do not automatically involve political questions which are immune from judicial review.  Deciding whether a matter has in any manner been committed by the Constitution to another branch of government, or whether the action of that branch exceeds its authority, being itself a delicate exercise in constitutional interpretation, is a responsibility of the Supreme Court as ultimate interpreter of the Constitution. Powell, 395 U.S. at 521, 89 S. Ct. at 1964, 23 L. Ed. 2d at 516-17.
 
     The ultimate interpretation of any provisions of the Chuuk State Constitution is therefore within the sole authority of the Chuuk State Supreme Court, as the ultimate interpreter of the Constitution, and that includes the authority to interpret the meaning of article V, sections 7(b) and 7(c).

     Article I, section 5 of the United States Constitution, which provides that each House shall be the judge of the elections and qualifications of its own members, is at most a textually demonstrable commitment to Congress to judge only the qualifications expressly set forth in the Constitution, but it does not give the House of Representatives absolute power to determine who is qualified to be a member because the House is without authority to exclude any person who has been duly elected by his constituents and who meets all the requirements for membership expressly prescribed in the Constitution; and there is no textually demonstrable constitutional commitment to the House of the adjudicatory power to determine a member's qualifications, so as to preclude adjudication in the courts under the political question doctrine, where the House excludes a member-elect who meets the Constitution's requirements for membership.  Powell, 395 U.S. at 548, 89 S. Ct. at 1978, 23 L. Ed. 2d at 532.

     As a result, section 7(c) does not automatically preclude the Chuuk State Supreme Court from having jurisdiction to decide if a member-elect of the legislature has been excluded from membership on unconstitutional grounds.

     A judicial determination of a duly elected Congressman's constitutional right to sit as a member of the House requires no more than an interpretation of the Constitution, and this falls within the traditional role accorded courts to interpret the law, and does not involve a lack of respect due a co-ordinate branch of government or an initial policy determination of a kind clearly for nonjudicial discretion; since our system of government requires that courts on occasion interpret the constitution in a manner at variance with the construction given the document by another branch, the alleged conflict that such an adjudication may cause cannot justify the court's avoiding their constitutional responsibility; and such an adjudication is not precluded by the political question doctrine on the ground that judicial resolution of the Congressman's right to sit would produce a

[6 FSM Intrm. 265]

potentially embarrassing confrontation between co-ordinate branches of the government.  Powell, 395 U.S. at 548-49, 89 S. Ct. at 1978, 23 L. Ed. 2d at 532.

     This Court's jurisdiction over alleged unconstitutional applications of the Legislature's 7(c) powers is not necessarily precluded by the political question doctrine.

     It is competent and proper for a court to consider whether a legislature's proceedings are in conformity with the constitution,

     "because no branch or department of the government is supreme; and it is the province and duty of the judicial department to determine in cases regularly brought before them whether the powers of any branch of the government, and even those of the legislature, have been exercised in conformity to the constitution, and if they have not, to treat their acts as null and void."

Powell, 395 U.S. at 506, 89 S. Ct. at 1956, 23 L. Ed. 2d at 508 (quoting Kilbourn v. Thompson, 103 U.S. 168, 199, 26 L. Ed. 377, 390 (1881)).

     This court ultimately has the power to determine if the Legislature has exercised its 7(c) powers in an unconstitutional and invalid manner.

     Although article I, section 5 of the United States constitution assigns to each House the power to judge the elections and qualifications of its own members, an action is one arising under the Constitution so as to give the courts jurisdiction over the subject matter, where the purpose of the action is to obtain redress for the House's allegedly unconstitutional exclusion from its membership of a duly elected member-elect.  Powell, 395 U.S. at 513-14, 89 S. Ct. at 1960, 23 L. Ed. 2d at 512.

     In conclusion, this case law indicates that this Court does have subject matter jurisdiction to entertain suits that allege an unconstitutional application of the state legislature's 7(c) powers.  In this case, the plaintiff has alleged that pursuant to these 7(c) powers, the legislature has applied 7(b) in an unconstitutional manner, specifically, in a manner that violates the state and federal constitutional prohibitions against ex post facto laws.

     However, in the U.S., the House is only said to be "the judge" of its member's qualifications, while in Chuuk, the House is said to be "the sole judge."  The impact of this difference is significant, but not absolute.  Section 7(c) of the Chuuk State Constitution obviously borrowed much of its content from article I, section 5 of the U.S. Constitution, however, the framers of the Chuuk State Constitution deliberately chose to insert the word "sole" into this provision in the state constitution.  The insertion of new or different language must be interpreted to intend that some sort of new or different meaning be given to that altered portion of the constitutional text.

     The possible range of meanings that the insertion of the word "sole" could have are these:  First, the word could be given minimal to no effect, and thereby make 7(c) interpreted in essentially the same manner as article I, section 5 of the U.S. Constitution.  That interpretation gives the courts the power to interpret the meaning of the qualifications set forth in the Constitution, and then only gives Congress the power to apply those court determined meanings.  However, this application for the Chuuk State Constitution would surely be counter-intuitive, as it would have to blatantly ignore the intentional change in language made by the framers of the Chuuk State

[6 FSM Intrm. 266]

Constitution.  This is therefore not a viable alternative.

     Second, on the other end of the spectrum, the insertion of the word "sole" could be interpreted to mean that the legislature's 7(c) powers are totally beyond all judicial review.  Such a meaning would, however, allow the legislature to operate in violation of any other provisions in the Constitution, and would confer upon the legislature the otherwise exclusive judicial power to be the ultimate interpreter of the constitutional text.  This approach would likely be contrary to over two hundred years of constitutional jurisprudence establishing the courts to be the ultimate interpreters of the constitutional text, but it would also allow the other branches of government to operate in violation of the constitution, and that result would be entirely repugnant to the entire democratic process that this constitution was meant to establish and guarantee.  This extreme alternative is therefore not a viable alternative either.

     Since both extremes enunciated above do not provide a workable interpretation of 7(c), some sort of middle ground must be adopted; one that gives due significance to the word "sole" but at the same time, preserves the integrity of the state constitution and democratic government.  The only reasonable alternative left is this:  No matter what powers 7(c) confers upon the legislature, it cannot confer the power of ultimate interpretation of the constitutional text, and it can also not confer the power to exercise its powers in 7(c) in any unconstitutional manner.  However, 7(c) must be interpreted so as to give the Chuuk State Legislature more power than has been given the U.S. Congress under article I, section 5 of the U.S. Constitution.  It is therefore the holding of this court that the effect of the word "sole" is that the courts in Chuuk still have jurisdiction to decide if the House's 7(c) powers have been exercised in an unconstitutional manner, but the House is free to apply its 7(c) powers, and interpret their meaning, in any manner that is constitutional.

     The result is that in Chuuk, the House's 7(c) powers allows it to interpret 7(b) and apply it accordingly, so long as it is done in a manner that is rationally and reasonably related to the plain ordinary meaning of the text of 7(b), in order to comply with the state and federal requirements of due process.  This means that 7(c) can not be interpreted or applied by the legislature in any arbitrary or capricious manner, or in any other manner that would otherwise violate the state or national constitutions, such as discriminating on the basis race, language, sex, etc., or applying 7(b) in violation of the ex post facto clause.  Further, the House is limited to exercising its 7(c) powers only in regard to the qualifications that explicitly appear in the constitution itself.

     The Court therefore has subject matter jurisdiction over this case, since it involves an allegation that 7(b) has been applied to the plaintiff in an unconstitutional manner.  Defendant's motion to dismiss is therefore denied.

II.  ISSUE:  WHETHER A RETROSPECTIVE APPLICATION
OF ARTICLE V, SECTION 7(b) IS AN EX POST FACTO LAW
     In this case, it is not disputed that the plaintiff has been excluded as a member as a result of a retrospective application of article V, section 7(b), since both his felony conviction and pardon occurred before the official enactment of the Chuuk State Constitution.  However, while "[e]very ex post facto law must necessarily be retrospective . . . not every retrospective law is an ex post facto law."  16A Am. Jur. 2d Constitutional Law 636 (1979).  It must therefore be determined whether this particular retrospective application is also ex post facto.

     An ex post facto law is generally defined as one which imposes punishment for past

[6 FSM Intrm. 267]

conduct, lawful at the time it was engaged in.  Garner v. Board of Public Works, 341 U.S. 716, 71 S. Ct. 909, 95 L. Ed. 1317 (1951).  Plaintiff here contends that the retrospective application of 7(b) has the affect of imposing "punishment" upon him, on the grounds that it imposes a new disqualification upon, different from those that existed at the time of his criminal act.  But, this is only partially true.  Article V, section 7(b) states that, "No person convicted of a felony is eligible to serve as a member of the legislature, even if pardoned."  Chk. Const. art. V, 7(b).  However, both at the time the plaintiff committed his felony act, and at the time he was convicted, the Truk State Charter stated in article III, section 7 that, "Felons not eligible.  A person convicted of a felony shall not be eligible to serve as a member of the legislature unless the person so convicted has received a pardon restoring his civil rights."  Truk Charter art. III, 7.  It is obvious, then, that 7(b) can not be interpreted to impose any new or different punishment on the plaintiff, based on his felony conviction.  Plaintiff's only possible argument must therefore be construed to be that a retrospective application of 7(b) imposes punishment upon convicted felons who have been pardoned.

      The court must then determine whether the retrospective application of 7(b) to pardoned felons is "punishment" for past conduct.  16A Am. Jur. 2d Constitutional Law 637, explains that,

     To ascertain whether legislation which bases a disqualification on the happening of a certain past event imposes punishment, it is necessary to discern the objects on which the enactment in question was focused; where the source of the legislative concern can be thought to be the activity or status from which the individual is barred, the disqualification is not punishment even though it may bear harshly upon one affected, but the contrary is the case where the statute in question is evidently aimed at the person or class of persons disqualified.

Id. at 590.  The court must therefore determine whether the "source of concern" of a retrospective application of 7(b) is the activity or status of being a legislative member, or whether this provision is directed at pardoned felons, as a class of persons.

     The first place to begin this inquiry is the Chuuk State Constitution.  The relevant portion of that document, section 7(b), is part of article V, which establishes the Chuuk State Legislature.  The purpose and "source of concern" of the entire article V is to establish the state legislature, prescribe its procedures and powers, and set forth the qualifications of its members. Section 7(b) lays out a specific qualification for the members of the legislature by barring from membership both felons and pardoned felons.  In determining the "source of concern" of this particular sub-section, 7(b), it is important to note that it appears among other sub-sections that set forth the qualifications of members,1 and other sections that are concerned solely with other matters regarding members of

[6 FSM Intrm. 268]

the legislature.2  From this context, it is logical to infer that the purpose of 7(b) was to set qualifications for legislative members, and not to insert a special provision in the constitution just for the purpose of punishing felons and pardoned felons.  Further, the preceding document to this Constitution, the Truk State Charter, also contained a provision barring felons from membership.  Truk State Charter, art. III, 7.  Lastly, disqualification from membership in a legislature due to felony convictions is common place in many governments.

     All these factors seem to indicate that the most reasonable interpretation of 7(b) is that its "source of concern" was the qualification of the members of the legislature, and not the punishment of a certain class of person, namely, felons or pardoned felons.  The mere fact a certain law disqualifies a certain class of persons from a given profession does not prove the law to be prohibited form of punishment upon that class of persons.  In fact, a number of laws have been upheld where felons where excluded from certain professions, based on their past criminal conduct, when the purpose of the exclusion was to serve a legitimate state purpose to regulate persons who were considered unsuitable for a given profession.  For example, in De Veau v. Braisted, 363 U.S. 144, 80 S. Ct. 1146, 4 L. Ed. 2d 1109, reh'g denied, 364 U.S. 856 (1960), the United States Supreme Court upheld a law which disqualified ex-felons from certain union offices, on the grounds that the law was a reasonable means of achieving a legitimate state aim and therefore not a bill of attainder or an ex post facto law, even when the felony was committed prior to the regulatory law. In Murrill v. State Board of Accountancy, 218 P.2d 569 (Cal. Dist. Ct. App. 1950), it was held that a state accounting board's revocation of an accounting license due to a person's criminal conviction, even though the conviction occurred before the act authorizing such disqualification, is not ex post facto since such revocation is not penal.  In In re Leifer, 63 A.D.2d 174 (N.Y. App. Div.) (cited in 16A Am. Jur. 2d Constitutional Law 637, at 166 (Supp. 1993)) this doctrine was also followed where it was held that the disbarment of an attorney due to past criminal behavior, committed before the creation of the law calling for his disbarment, was not ex post facto.

     These cases, and others,3 have established that a law which makes the right to engage in some activity in the future depend on past behavior, even behavior before passage of the law, is not invalid as a bill of attainder or an ex post facto law, if the law "is a bona fide regulation of activity which the legislature has the power to regulate and the past conduct indicates unfitness to

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participate in the activity."  Bauer v. Acheson, 106 F. Supp. 445, 450 (D.D.C. 1952).  The U.S. federal courts have explained how to apply this doctrine in Cases v. United States, 131 F.2d 916 (1st Cir. 1942), where the court of appeals held that if past conduct which is made the test of the right to engage in some activity in the future can reasonably be said to indicate unfitness to engage in the future activity, it will be assumed, in determining whether the law is bad as ex post facto, that the purpose of the law is not to impose an additional penalty or punishment for the past conduct.  Id. at 921.  The U.S. Supreme Court has affirmed this application in Flemming v. Nestor, 363 U.S. 603, 80 S. Ct. 1367, 4 L. Ed. 2d 1435 (1960), stating that where the source of legislative concern can be thought to be the activity or status from which an individual is barred, his disqualification is not punishment even though it may bear harshly upon the one affected.

     The plaintiff here has not argued that it is improper or illegitimate for the constitution to regulate felons and pardoned felons from holding public office, but rather, he has simply stated that a retrospective application of a such a regulation regarding pardoned felons is prohibited as an ex post facto law.  It is therefore evident that the only issue here is not whether the constitution can regulate the legislative membership of pardoned felons under any circumstances, but only, whether such a regulation must only be applied prospectively.  In light of the above case law, it seems clear that 7(b) is a bona fide regulation of activity which the constitution has the power to regulate, and that, in the opinions of the constitutional framers, it involves past conduct which indicates unfitness to participate in the activity regulated.  Additionally, the vast body of case law cited above indicates that civil disabilities enacted pursuant to a legitimate power of regulation which are reasonably related to a determination of unfitness for a given profession are not ex post facto, even when applied retrospectively as to conduct which occurred before the enactment of such regulation.
 
     In this case, the constitutional framers have decided that certain aspects of a person's past prove them to be categorically unsuited to serve as members of the state legislature.  Specifically, section 7(b) shows a clear intention by the framers to bar felons, even if pardoned, from being legislative members. Whether the court agrees with this particular policy determination is irrelevant. The only question is whether 7(b)'s prohibitions can reasonably be said to indicate unfitness to participate as a member of the state legislature in the future.  Policy determinations by other branches of the government are always to be given wide latitude when under judicial review, and policy determinations within the constitution itself must therefore receive the widest possible latitude when under review.  The courts could only even consider invalidating a constitutional policy determination if it were manifestly arbitrary and capricious, and therefore in violation of other provisions of the constitution itself.

     Here, felons have historically been banned from many public offices, in many governments, all over the world, and specifically, felons have been barred from holding legislative office here in Chuuk since before the enactment of the present constitution.  The mere addition in the present constitution to also bar felons, even if pardoned, can not be said to be so arbitrary and capricious so as to justify a judicial invalidation of this constitutional policy determination.  Accordingly, the court finds that 7(b) can reasonably be said to indicate unfitness for legislative office.

     Plaintiff has cited other cases which seem to lend support to the opposite position of all the above cited case law.  For example, 16A Am. Jur. 2d Constitutional Law 643 states that "[i]n several cases, the Supreme Court has acknowledged the constitutional invalidity, as an ex post facto law imposing additional punishment for a previous offense, of a statute disqualifying persons from holding public office or practicing a calling because of crimes committed prior to its enactment."  Id. at 604 n.76 (citing Ex parte Garland, 71 U.S. 333, 18 L. Ed. 366 (1867); Cummings v. Missouri, 71 U.S. 277, 18 L. Ed. 356 (1867)).  However, the same section of 16A

[6 FSM Intrm. 270]

Am. Jur. 2d also states that "[o]n the other hand, statutes disqualifying persons from office or the practice of a calling on account of otherwise punishable crimes committed prior to their enactment were held not to constitute ex post facto laws prohibited by the United States Constitution" in more recent U.S. Supreme Court decisions.  Id. 643, at 604 n.76 (citing De Veau v. Braisted, 363 U.S. 144, 80 S. Ct. 1146, 4 L. Ed. 2d 1109 (1960) (holding that a law barring felons from holding union office was not ex post facto); Hawker v. New York, 170 U.S. 189, 18 S. Ct. 573, 42 L. Ed. 1002 (1898) (holding that a law making it a misdemeanor for convicted felons to practice medicine was not ex post facto); Flemming v. Nestor, 363 U.S. 603, 80 S. Ct. 1367, 4 L. Ed. 2d 1435, reh'g denied, 364 U.S. 854 (1960) (stating that a state's decision to bar from the practice of medicine persons who had committed a felony was to be taken as evidencing an intent to exercise that regulatory power, and not a purpose to add to the punishment of ex-felons in violation of the ex post facto clause); Garner v. Board of Public Works, 341 U.S. 716, 720, 71 S. Ct. 909, 912, 95 L. Ed. 1317, 1332, reh'g denied, 342 U.S. 843 (1951), where the Court stated that, "Past conduct may well relate to present fitness; past loyalty may have a reasonable relationship to present and future trust.").  It only seems appropriate to give greater weight to the more recent and numerous U.S. Supreme Court decision cited here, which arguably have either overruled or extensively modified the very early rulings in the Cummings and Garland cases.

     Other cases have also stated that an ex post facto law is one which, in its operation, makes that criminal which was not so at the time the action was performed, or which increases the punishment, or, in short, which in relation to the offense or its consequences, alters the situation of a party to his detriment or disadvantage, see Thompson v. Utah, 170 U.S. 343, 18 S. Ct. 620, 42 L. Ed. 1061 (1898); Kring v. Missouri, 107 U.S. 221, 2 S. Ct. 443, 27 L. Ed. 506 (1883); United States v. Hall, 10 U.S. (6 Cranch) 171, 3 L. Ed. 189 (1810); United States v. Platt, 31 F. Supp. 788 (S.D. Tex. 1940), and that the ex post facto effect of a law cannot be evaded by giving a civil form to that which is essentially criminal.  Burgess v. Salmon, 97 U.S. 381, 24 L. Ed. 1104 (1878).

     However, many other cases have held that the ex post facto clause only applies to penal legislation or prosecutions, and does not apply to civil disabilities or litigation.  See United States v. Association of Citizens Councils, 187 F. Supp. 846, 848 (W.D. La. 1960), stating that the prohibition against ex post facto legislation applies only to criminal proceedings and not to civil matters; and Harisiades v. Shaughnessy, 342 U.S. 580, 72 S. Ct. 512, 96 L. Ed. 586, reh'g denied, 343 U.S. 936 (1952) holding that the ex post facto provision of the Constitution forbids penal legislation which imposes or increases criminal punishment for conduct lawful previous to its enactment, but does not apply to legislation imposing civil disabilities;  Baltimore & S.R.R. v. Nesbit, 51 U.S. (10 How.) 395, 13 L. Ed. 469 (1850) (ex post facto laws relate to penal and criminal proceedings, which impose punishment or forfeitures, and not to civil proceedings, which affect private rights retrospectively); Watson v. Wercer, 33 U.S. (8 Pet.) 88, 8 L. Ed. 876 (1834), Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L. Ed. 648 (1798); Rederiaktierbolaget v. Compania de Navegacion, 139 F. Supp. 327, 333 (D.C.Z. 1955) (the section of the constitution forbidding ex post facto laws is only applicable to criminal prosecutions).

     Section 635 of 16A Am. Jur. 2d Constitutional Law, states that "the Supreme Court of the United States at different times has enunciated somewhat variant definitions of the phrase `ex post facto laws,'" Id. at 584-85, as is clearly indicated by the apparently contradictory cases cited in this opinion.  However, the cases of Platt, Hall, Kring, and Thompson, cited directly above, were all decided prior to the cases of De Veau, Hawker, Flemming, and Garner, which seem to have overruled these earlier cases with respect to regulations that impose civil disabilities for past criminal conduct.  Also, in the 1990 decision of Collins v. Youngblood, 497 U.S. 37, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990), the U.S. Supreme Court explained that ex post facto laws are

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limited to the following four categories:

     "1st.  Every law that makes an action done before the passing of the law, and which was innocent when done, criminal.  2d.  Every law that aggravates a crime, or makes it greater than it was, when committed.  3d.  Every law that changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed.  4th.  Every law that alters the legal rules of evidence . . . ."

Id. at 42, 110 S. Ct. at 2719, 111 L. Ed. 2d at 38 (quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L. Ed. 648, 650 (1798)) (emphasis in original).  And lastly, that the ex post facto clause cannot be read to include, in addition to the four defined categories, any change which alters the situation of a party to the party's disadvantage.  Id. at 50, 110 S. Ct. at 2721, 111 L. Ed. 2d at 44.  The Collins court also specifically overruled the Kring decision, and criticized the Hall case.  Id. at 49-50, 110 S. Ct. at 2721, 111 L. Ed. 2d at 43-44.

     Collins therefore has the impact of not only overruling and/or limiting some of these earlier cases cited by the plaintiff, but it explicitly states that the ex post facto clause does not apply to laws that merely alter the situation of a party to his or her detriment, as these earlier cases may have once indicated, or as the plaintiff argues in his brief.  Collins does affirm the idea that the ex post facto clause does apply to "punishment," but there is an extensive body of case law, which was not overruled or criticized by Collins, which has established how to determine what is "punishment" for the purpose of ex post facto issues, as discussed supra.

     As a result, the ruling in Collins clearly indicates that the recent Supreme Court decisions are considered controlling on the interpretation of the ex post facto clause and that that provision of the constitution is to be applied in a manner that is consistent with the decisions upholding regulations imposing civil disqualifications for past criminal conduct.  Any other reading of Collins would have to blatantly ignore the clear language of the opinion.  Since these recent decisions indicate that 7(b)'s retrospective application is not punishment, as discussed supra, the valid case law of the U.S. Supreme Court does not support plaintiff's position.

     In summary, the Court finds that the case law supporting the plaintiff's position is substantially overwhelmed by the case law supporting the contrary position, and that a coherent application of the entire body of case law on the issue of ex post facto laws requires a ruling against the plaintiff's position.

     The court therefore holds that a retrospective application of article V, section 7(b) of the Chuuk State Constitution is not invalid as an ex post facto law.

III.  ISSUE:  WHETHER A RETROSPECTIVE APPLICATION OF 7(b)
IS A PROHIBITED BILL OF ATTAINDER
OR,
WHETHER THE DEFENDANT'S CONDUCT HAS
DENIED PLAINTIFF OF DUE PROCESS OF LAW
     Some of the above cases that are cited and relied on in this opinion to determine the ex post facto issue also speak to this issue of bills of attainder and due process.  For example, in De Veau v. Braisted, 363 U.S. 144, 80 S. Ct. 1146, 4 L. Ed. 2d 1109 (1960) where the United States Supreme Court upheld a law which disqualified ex-felons from certain union offices, the court upheld the law and determined that it was neither ex post fact or a bill of attainder, or a violation of

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due process.  Other cases have followed this standard set forth in De Veau, and held that a statute which makes the right to engage in some activity in the future depend upon past behavior, even behavior before passage of act, is not invalid as a bill of attainder or an ex post facto law if the statute is a bona fide regulation of activity which legislature has power to regulate and the past conduct indicates unfitness to participate in activity.  See Bauer v. Acheson, 106 F. Supp. 445, 450 (D.D.C. 1952).

     Further, it is explained in 16A C.J.S. Constitutional Law 453, at 163 (1956) that "[l]aws imposing civil disabilities or forfeitures as a punishment for past acts, without judicial trial, have been held to be bills of attainder, but laws which do not proceed on the idea of punishment are not, although imposing such disabilities without judicial trial."  See Garner v. Board of Public Works, 341 U.S. 716, 71 S. Ct. 909, 95 L. Ed. 1317 (1951); NLRB v. Budd Mfg., 169 F.2d 571 (6th Cir. 1948); Department of Social Welfare v. Gardiner, 210 P.2d 855 (Cal. Dist. Ct. App. 1949).  It has already been explained in the prior sections of this opinion that the retrospective application of 7(b) does not proceed on the idea of punishment, even though it imposes a civil disability. The court therefore holds that the retrospective application of 7(b) is not invalid as a bill of attainder or as a denial of due process.

     Plaintiff has also stated that the First Constitutional Legislature of Chuuk chose to seat him as a member, but that the current legislature has refused to do so due to section 7(b).  It is argued that even if the retrospective application of 7(b) is not categorically an ex post facto or bill of attainder law, or a violation of due process, that this apparent change of position by the Legislature is itself a prohibited violated of due process on the grounds that it treats the plaintiff in an arbitrary and capricious manner.

     Arbitrary and capricious decisions of the government can be a denial of due process of law.  Here, plaintiff was once seated by the first legislature of Chuuk, and is now refused to be seated by the second legislature.  Such a change in position by the same government agency could arguably be considered arbitrary and capricious, and therefore in violation of due process. However, here, these varying decisions or applications of 7(b) were not made by the same legislature, but rather, by consecutive legislative houses.  No house is bound by the decisions or determinations of a previous House4, as is easily evidenced by the fact that each newly elected legislature has the power to overturn the laws established by the prior ones.  Each newly elected legislature is therefore free to determine the meaning of 7(b) and apply it in a manner that is different from that of previous legislatures, so long as each House's application of 7(b) is in conformity with the state and national constitutions.  As previously explained, the insertion of the word "sole" into the Legislature's 7(c) powers must be interpreted to provide the widest possible deference and latitude to the state legislature's application of its 7(c) powers, with the inherent limitation that that power be exercised within the bounds of the other requirements of the state and federal constitutions.  One duly elected legislature's determination of a person's constitutional qualifications or disqualification to sit as a member is therefore not binding as legal precedent on any subsequently and duly elected legislatures.

     Accordingly, this apparent change of position by the defendant was not a violation of the plaintiff's due process rights.

[6 FSM Intrm. 273]

CONCLUSION
It is therefore the holding of this court that:

a) a retrospective application of 7(b) by the legislature is not unconstitutional on the grounds of being ex post facto.
 
b) such application is also not a bill of attainder, nor a denial of due process.

c) the fact that the plaintiff was admitted by the first legislature as a member, and is now denied membership, is also not a denial of due process.

d) Based on these legal rulings, the court finds that the plaintiff is not entitled to judgment as a matter of law.  Accordingly, plaintiff's motion for summary judgment is hereby denied.  The court would enter summary judgment on these issue in the defendant's favor at this time, but no such motion has been filed by the defendant as of yet.

e) Defendant's motion to dismiss for lack of subject matter jurisdiction, due to the legislature's 7(c) powers is without merit, and is hereby denied.
*    *    *    *
 
Footnotes:
 
1.  Section 7(a) states that:

no person is eligible to serve as a representative unless at least 25 years of age . . . on the day of the election; was born a Chuukese, has been a resident and registered voter of the Representative District . . . from which elected for at least 5 years prior to the day of election, and is a citizen of the Federated States of Micronesia.

Chk. Const. art. V, 7(a).
 
2.  See Chk. Const. art. V, 8 (establishing the member's salaries, expense allowance, increase in salaries, etc).
 
3.  See McDonough v. Goodcell, 91 P.2d 1035, 1041, 123 A.L.R. 1205, 1213 (Cal. 1939), holding that a law which prohibited persons from engaging in the bail bond business due to a determination of bad moral character, was not ex post facto, even if the determination concerned acts committed before the passage of the law.  And, where the purpose of statute is to protect public from unfit persons, it is constitutional, although it disqualifies a person, by reason of past acts, from continuing in the practice of his profession or from remaining in his business.  See also Postman v. Teamsters, 337 F.2d 609, 611 (2d Cir. 1964) (citing De Veau v. Braisted, 363 U.S. 144, 157-60, 80 S. Ct. 1146, 1153, 4 L. Ed. 2d 1109, 1119-20 (1960)) (act which disqualified persons from holding union offices due to prior convictions was not an ex post facto law); Murrill v. State Bd. of Accountancy, 218 P.2d 569, 571 (Cal. Dist. App. Ct. 1950); In re Craven, 151 So. 625, 90 A.L.R. 973, 975 (La. 1931), all holding that laws intended to protect the public are not ex post facto even though disqualifying a person, for past acts or omissions, from continuing his profession or business.
 
4.  Except to the extent required by the Constitution.