CHUUK STATE SUPREME COURT
TRIAL DIVISION
Cite as Chipen v. Reynold,
9 FSM Intrm. 148 (Chuuk S. Ct. Tr. 1999)

[9 FSM Intrm. 148]

TWINIS CHIPEN, in his capacity as candidate for
Mayor of Losap and as a legal resident of Losap,
Plaintiff,

vs.

TAKASY REYNOLD, in his official capacity as
Mayor of Losap Municipality, et al.,
Defendants.

CSSC CIVIL ACTION NO. 17-99

JUDGMENT

Soukichi Fritz
Chief Justice

Decided:  May 12, 1999

APPEARANCES:
For the Plaintiff:            Wesley Simina, Esq.
                                       P.O. Box 94
                                       Weno, Chuuk FM 96942

[9 FSM Intrm. 149]

For the Defendants:     Tony Rosokow, trial counselor
                                        Office of the Chuuk Attorney General
                                        P.O. Box 189
                                        Weno, Chuuk FM 96942

*    *    *    *

HEADNOTES
Civil Procedure; Evidence ) Burden of Proof
     A plaintiff must prove the allegations of the complaint by a preponderance of admissible evidence in order to prevail.  Chipen v. Reynold, 9 FSM Intrm. 148, 149 (Chk. S. Ct. Tr. 1999).

Separation of Powers ) Chuuk
     Courts will not attempt to interfere with or control the exercise of discretionary powers, in the absence of any controlling provisions in the law conferring the power.  The fact that the exercise of a power may be abused is not a sufficient reason for denying its existence.  Thus, it is a firmly established rule that the judiciary will not interfere with executive officers in the performance of duties which are discretionary in their nature or involve the exercise of judgment.  Chipen v. Reynold, 9 FSM Intrm. 148, 150 (Chk. S. Ct. Tr. 1999).

*    *    *    *

COURT'S OPINION
SOUKICHI FRITZ, Chief Justice:
     This case comes before the Court for Judgment after trial on the merits.  The Complaint asks for injunctive and declaratory relief based on allegations that the Losap Municipal Officials expended public funds pursuant to ordinances enacted during a 3 month period prior to the November 26, 1998 Municipal election in violation of Article X, 7 of the Losap Municipal Constitution.

     This section prohibits the enactment of ordinances for the expenditure of Municipal funds during a period of 3 months prior to a Municipal election except for "emergency needs" or pursuant to an "emergency ordinance."  The Complaint alleges that no such "emergency" existed on or about November 13, 1998 the date upon which Ordinance No. 18-98 was enacted and which provided for the expenditure of public funds.

     It appears that few issues of law or fact have been raised by the record or testimony in the case.  There remains only a question of fact as to whether an "emergency" existed without which Ordinance No. 18-98 becomes null and void.

     It must be noted here, that essentially all of the testimony offered by Plaintiff in support of the allegations of the complaint was based on hearsay and very little, if any direct testimony was presented in support of the Plaintiff's case, i.e., that no "emergency" existed.  For this reason, the Court must conclude that the Plaintiff has not met the burden of proof required to entitle him to the relief he seeks.

     It is basic law that the Plaintiff must prove the allegations of the complaint by a preponderance of admissible evidence in order to prevail.  The Plaintiff has failed in this regard.

     More important, the Losap Constitution appears to leave the determination of an "emergency"

[9 FSM Intrm. 150]

to the discretion of the Municipal officials.  In such cases, the rule is as stated in 63A Am. Jur. 2d Public Officers and Employees 309 (1984) (footnotes omitted) as follows:

The courts will not attempt to interfere with or control the exercise of . . . discretionary powers, in the absence of any controlling provisions in the law conferring the power.  The fact that the exercise of a power may be abused is not a sufficient reason for denying its existence.  Thus, it is a firmly established rule . . . that the judiciary will not interfere with executive officers in the performance of duties which are discretionary in their nature or involve the exercise of judgment.

     Therefore, the Defendants are entitled to judgment on all issues of fact and law in this case, and it is so ordered, adjudged and decreed.
                                                                                                                                                                                                                                                                                                           
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