CHUUK STATE SUPREME COURT
TRIAL DIVISION
Cite as Chuuk State Supreme Court v. Umwech (II) ,
7 FSM Intrm. 630 (Chuuk S. Ct. Tr. 1996)

[7 FSM Intrm. 630]

CHUUK STATE SUPREME COURT and
SOUKICHI FRITZ, in his capacity as Chief Justice,
Chuuk State Supreme Court,
Plaintiffs,

vs.

MARCELLINO UMWECH, in his capacity as Governor
of Chuuk State, and FRANK CHOLYMAY, in his
capacity as Director of Treasury for Chuuk State,
Defendants.

CSSC - CIVIL NO. 113-96

ORDER

Richard H. Benson
Special Trial Division Justice

Decided:  November 13, 1996

APPEARANCES:
For the Plaintiffs:        Mark Sokkappa, Esq.
                                     P.O. Box 187
                                     Weno, Chuuk FM 96942

[7 FSM Intrm. 631]

For the Defendant:     Wesley Simina, Esq.
                                     Chuuk Attorney General
                                     P.O. Box 189
                                     Weno, Chuuk FM 96942

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HEADNOTES
Constitutional Law ) Chuuk ) Legislative Powers
     Even in the absence of a general reduction of the pay of all state employees which would allow the Chuuk Legislature to reduce the pay of judges, the legislature has authority to reduce the pay of other judiciary employees.  When there is no general reduction of salaries, a law reducing the Chuuk State Supreme Court justices' salaries is invalid.  Chuuk State Supreme Court v. Umwech (II), 7 FSM Intrm. 630, 632 (Chk. S. Ct. Tr. 1996).

Constitutional Law ) Chuuk ) Impairment of Contracts; Constitutional Law ) Chuuk ) Legislative Powers
     Reading the constitutional provision barring impairment of contracts in harmony with the provision allowing general reduction of salaries, the exclusion of contract employees does not preclude the Chuuk Legislature from enacting a general reduction of salaries.  Chuuk State Supreme Court v. Umwech (II), 7 FSM Intrm. 630, 632 (Chk. S. Ct. Tr. 1996).

Constitutional Law ) Chuuk ) Legislative Powers; Statutes ) Construction
     Because the provision permitting an automatic increase back to their former salaries by the Governor, Lieutenant Governor, and the members of the legislature, is severable, it thus may be ruled unconstitutional without affecting the validity of the rest of the statute.  Chuuk State Supreme Court v. Umwech (II), 7 FSM Intrm. 630, 632 (Chk. S. Ct. Tr. 1996).

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COURT'S OPINION
RICHARD H. BENSON, Special Trial Division Justice:
     Pursuant to notice a pretrial conference was held on November 6, 1996.  The following orders are the result of the conference.

     1.  Concerning the plaintiffs' alternative relief requested in their second prayer, ten days before trial the plaintiffs will file and serve a trial memorandum on the legality and feasibility of placing "in a separate account" the budgetary allocations of the judiciary, specifically whether such an account is permissible under the terms of the Chuuk Financial Management Act.

     One day before trial the defendants will file and serve their response.  Failure to respond will be deemed a concurrence with the plaintiffs' position on the issue.

     2.  The injunctive relief requested in the third prayer will be decided after trial.

     3.  In their fourth prayer the plaintiffs seek only a return to the judiciary of the funds for unpaid requisitions for Fiscal Years 1995 and 1996.  The defendants will provide to the plaintiffs their documentation on these requisitions pursuant to discovery; the plaintiffs will provide to the defendants

[7 FSM Intrm. 632]

a list of unpaid requisitions for the same period according to their records by November 13, 1996.

     4.  The fifth prayer for relief remains for trial to the extent of whether the plaintiffs are entitled to damages for the defendants' alleged failure to pay the plaintiffs' employees their full salaries between July 7 and August 2, 1996.  The plaintiffs make this claim on the ground that Chuuk State Law 3-95-19 is unconstitutional. This ground is based on the allegation that State Law 3-95-19 does not prescribe a general reduction of salaries and therefore the reduction of justices' salaries is unconstitutional in violation of article VII, section 10 of the Chuuk State Constitution.
 
     I conclude that if it be proved at trial that there was not a general reduction of salaries, that would make only the reduction of justices' salaries invalid.  The Chuuk State Legislature has authority to reduce the pay of other judiciary employees, and that reduction would remain valid because of the severability provision of State Law 3-95-19.

     The allegation that there has not been a general reduction is supported by four points according to the plaintiffs.

     1.  The plaintiffs contend that there is no general reduction since contract employees are exempt from State Law 3-95-19.  This is a legal issue.

     The Chuuk Constitution provides that "No . . . law impairing the obligation of contract may be enacted."  Chk. Const. art. III, 10.  This provision must be read in harmony with article VII, section 10, otherwise no general reduction would be possible. I therefore hold that the exclusion of contract employees, which is mandated by the Constitution, does not preclude the legislature from enacting a general reduction.

     2.  The plaintiffs contend that only the judiciary had a reduction of salary since some continue to work 40 hours a week - thus they are receiving less pay, while the employees of the other branches suffered a reduction of hours, not salary, since those employees all began working 32 hours a week on July 7, 1996.  This is a mixed factual and legal issue for which trial is necessary.

     3.  The plaintiffs contend that there has not been a general reduction because the members of the House and Senate, and the Governor and Lieutenant Governor have received, in order that they suffer no reduction, substitute payments or compensation in place of the 20% reduction called for by State Law 3-95-19. This is a factual issue for trial.

     4.  The plaintiffs contend that section 12 of State Law 3-95-19 seeks to evade the constitutional provision concerning pay raises and is thus unconstitutional.  The plaintiffs' contention centers on section 10 of State Law 3-95-19 which anticipates an improvement in the state's economic condition and a return to a five-day work week; section 11 of the same act which calls for a reduction of 20% of the salaries of Governor, Lieutenant Governor, Representatives, Senators, Chief Justice and Justices; section 12 which provides for a repeal of section 11 if legislation returns the state to a five day work week; and article V, section 8(c) of the Constitution which requires a referendum for the increase in the salaries of Governor, Lieutenant Governor and members of the Legislature.  This is a legal issue, and, over objection of the plaintiffs, is decided now.

     I conclude that this issue does not lead to a conclusion that 3-95-19 does not provide a general reduction.  Section 12, the provision permitting an automatic increase back to their former salaries by the Governor, Lieutenant Governor, and the members of the legislature, is severable.  Chk. S.L. 3-95-19, 9.  It thus may be ruled unconstitutional without affecting the validity of the rest of the statute.

[7 FSM Intrm. 633]

     Objections to this Order may be filed and served within five days of service. Any such objection may be responded to within five days of service of the objection. Failure to respond will be deemed a consent.  Any objection to this order not made within the five days provided is waived.