CHUUK STATE SUPREME COURT
TRIAL DIVISION
Cite as Olap v. Chuuk State Election Comm'n ,
9 FSM Intrm. 531 (Chuuk S. Ct. Tr. 2000)

[9 FSM Intrm. 531]

MIKE OLAP et al.,
Plaintiffs,

vs.

CHUUK STATE ELECTION COMMISSION et al.,
Defendants.

CSSC CA NO. 236-98

FINAL JUDGMENT

Jerry L. Coe
Special Trial Justice

Decided:  August 22, 2000

APPEARANCES:
For the Plaintiff:          Frank Casiano, trial counselor
                                     Micronesian Legal Services Corporation
                                     P.O. Box D
                                     Weno, Chuuk FM 96942

For the Defendant:     Joses Gallen, Esq.
                                     Assistant Attorney General
                                     Office of the Chuuk Attorney General
                                     P.O. Box 189
                                     Weno, Chuuk FM 96942

*    *    *    *

HEADNOTES
Constitutional Law ) Chuuk ) Legislative Powers; Elections
     When a constitution establishes specific eligibility requirements for a particular constitutional office, the legislature is without power to require different qualifications and when there is no direct authority in the constitution for the legislature to establish qualifications for office in excess of those imposed by the constitution, such extra qualifications are unconstitutional.  Olap v. Chuuk State Election Comm'n, 9 FSM Intrm. 531, 533 (Chk. S. Ct. Tr. 2000).

Constitutional Law ) Chuuk ) Legislative Powers; Elections
     The Chuuk Constitution does not, either expressly or by implication, give the Legislature any authority whatsoever, to add qualifications for persons seeking a legislative office beyond those in the Constitution.  Olap v. Chuuk State Election Comm'n, 9 FSM Intrm. 531, 533 (Chk. S. Ct. Tr. 2000).

Constitutional Law ) Chuuk ) Legislative Powers; Elections
     It is beyond the power of the Legislature to enact a law to prohibit government employees from

[9 FSM Intrm. 532]

becoming candidates for legislative service.  Olap v. Chuuk State Election Comm'n, 9 FSM Intrm. 531, 534 (Chk. S. Ct. Tr. 2000).

*    *    *    *

COURT'S OPINION
JERRY L. COE, Special Trial Justice:
     This case comes before the Court pursuant to a stipulation entered into by the parties in open court which said stipulation was reduced to writing in the form of a pre-trial order dated May 11, 1999.  The basic issues involve the constitutionality of 33 of Chk. S.L. No. 3-95-26, infra.  The pre-trial order specified that responses to the issues set out hereafter would be filed by the parties on a date certain, however, for good cause shown, the time for filing such documents was extended on at lease two occasions, the last being set during the month of September, 1999.

     On August 26, 1999, counsel for the Plaintiffs filed a Motion for Summary Judgment accompanied by the required supporting documents.  The record indicates that the various members of the staff of the Office of Attorney General, Counsel of Record for the Defendants, have been served with copies of all matters of record in this case.  However, the Attorney General has not filed anything in response to the Order of this Court dated May 11, 1999 or anything in opposition to the Plaintiff's Motion for Summary Judgment. This fact alone, under the provisions of CSSC Rules of Civil Procedure, would entitle Plaintiffs to the relief they request.

     The stipulation of the parties referred to above contains the following excerpt: "Counsel for each of the parties agree that the facts stated in the Complaint and Answer are sufficient for decision in the case.  It is further agreed that the disposition of the case rests solely on questions of law. . . ."

     The record in this case contains arguments and assertions of counsel for the Plaintiffs that the facts in the case raise constitutional issues relative to due process, equal protection and discrimination based on social status.

     However, in view of the conclusions reached by the Court as set out below, discussions and rulings on these issues are not necessary to the disposition of this case.  Likewise, this Court notes, without deciding, that the phrase "office, position or appointment anywhere," contained in 33, infra, is highly suspect to being overbroad to the point of being unintelligible as to who is included in the prohibition.

     The dispute arises over the enactment of Section 33 of Chuuk State Law No. 3-95-26 which states as follow:

No person shall sit in the Senate or House of Representatives who holds an office, position or appointment anywhere whether or not it is an independent office within the Chuuk State Government, National Government, or any other government.  A person holding any such office must first resign therefrom before filing for his candidacy for the Senate or House of Representatives.  This ineligibility to be a candidate for election shall not extend to the Governor, Lt. Governor or members of the Senate and the House of Representatives.

     Article V of the Chuuk State Constitution is entitled "Legislative" and Section 7(a) and 7(b) thereof state as follows:

[9 FSM Intrm. 533]

(a) No person is eligible to serve as a Representative unless at least 25 years of age, or as a Senator unless at least 35 years of age, on the day of election; was a born Chuukese, has been a resident and registered voter of the Representative District or Senatorial Region from which elected for at lease 5 years prior to the day of election, and is a citizen of the Federated States of Micronesia.

(b) No person convicted of a felony is eligible to serve as a member of the Legislature, even if pardoned.  A member of the Legislature who has been convicted of a felony shall automatically be expelled from the Legislature, but is eligible to run again if the conviction is reversed on appeal.

     It is obvious that 33, quoted above reveals an attempt by the Legislature to insert qualifications in addition to those set out in the above Constitutional provisions to which persons must comply before they can become candidates for the Chuuk State Legislature.

     This cannot be.

     The general rule of law in this regard and that which is acknowledged by the English Common Law and throughout the world of Democratic forms of Government is stated in 67 C.J.S. Officers 16 (1978), which provides in part as follows:  "Where the constitution has clearly defined the qualifications of an officer, it is not within the power of the legislature to change them or add new or additional qualifications unless the constitution confers that power."

     And in 63A Am. Jur. 2d Public Officers and Employees 37, at 693 (1984), it is said that where the constitution prescribes the regulations on the subject of qualifications for office, "the constitution operates as an implied restriction on the power of the legislature to impose additional or different qualifications."   37, supra, further provides:

The general rule is that where the constitution established specific eligibility requirements for a particular constitutional office, the constitutional criteria are exclusive.  Thus the legislature may have no power to require different qualifications for constitutional office other than those qualifications specifically set out in the Constitution.  This is especially true in regard to offices created by the constitution itself . . . .

     The following statement in 37, supra, deals the killing blow to Chk. S.L. No. 3-95-26, 33, quoted above:  "Where there was no direct authority in the Constitution for the legislature to establish qualifications for office in excess of those imposed by the Constitution, such qualifications were unconstitutional by their very terms and under equal protection, due process, and freedom of speech and assembly."

     A close reading of the entire Chuuk State Constitution gives no indication that the framers intended, either expressly or by implication to give the Legislature any authority what so ever, to add qualifications to those persons seeking a legislative office.  To the contrary, the qualifications set out in Article V, 7(a) and (b), appear extensive and if the Convention that produced the Chuuk State Constitution had intended to give the Legislature the power sought in the enactment of 33, supra, then it could have easily done so during its consideration of these sections.

     Moreover, the Government Structure and Functions Committee, in its report on qualifications of members of the Legislature, SCREP. No. 02 (Aug. 18, 1988), reported to the Constitutional Convention that the qualifications enumerated in Article V, 7(a) and (b):  "are all reasonable requirements to insure that members of the Legislature are of sufficient maturity and experience and demonstrate a high

[9 FSM Intrm. 534]

degree of familiarity with their constituency."

     It is beyond all reason to contend that requiring one to resign government employment is necessary to show "sufficient maturity and experience and demonstrate a high degree of familiarity with their constituency" in one seeking a legislative office.  To the contrary, it is well known that a substantial number of the more qualified Chuukese are employed in government service and to prohibit their becoming candidates for Legislative service, is totally inconsistent with the purpose of legislative qualifications stated in the Constitutional Convention Committee report quoted above.

     For these reasons, this Court concludes that 33 of Chuuk State Law 3-95-26 is beyond the power of the legislature to enact, is contrary to the express and implied provisions of the Chuuk State Constitution on the subject and is void, and it is so ordered.

FURTHER ORDERED that the Defendants are permanently enjoined for enforcing in any manner, the provisions of 33 of Chuuk State Law 3-95-26, and

FURTHER ORDERED that the Plaintiffs who resigned from their government employment either by force or voluntarily as a result of the application of 33 of Chuuk State Law 3-95-26, are hereby reinstated to their original positions, if they so desire, and all benefits, including, but not limited to, lost salary, annual leave, and sick leave are hereby restored to the Plaintiffs regardless of whether they resume their previous government position.
                                                                                                                                                                                                                                                                                                           
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