Appellate Division




App. No. 2-93

Counsel for Plaintiff:           Douglas Parkinson, Esq.
                                             Law Offices of R. Barrie Michelsen
                                             Kolonia, Pohnpei, FM 96941
Counsel for Defendant:     Kevin Shea, Esq.
                                             Assistant Attorney General
                                             Office of the Attorney General
                                             State of Pohnpei, FM 96941

CORAM:         Edwel H. Santos - Chief Justice
Carl Kohler - Associate Justice
                        Yoster Carl - Associate Justice
Judah C. Johnny - Associate Justice



     This case of first impression has undertones of aconstitutional struggle between the Legislature and the Executive, two co-equal branches of our Pohnpei State Government. The case was filed in the Trial Division of this Court but by reason of its tremendous importance, involving as it does the interpretation of the Pohnpei Constitution, and in conformity with our practice to hear cases of such magnitude in the Appellate Division, it warm referred to and was heard by the full bench of four justices of the Appellate Court.


     On September 16, 1992, the Pohnpei Legislature enacted the 1993 Pohnpei Comprehensive Budget Act, L.B. 94-92, Title IV, Section 4-2(6) of which proposed toappropriate $115,000.00 for the Legislators 'Official Expense Allowance. But on or about September 21, 1992, the Governor disapproved the expense allowance by line item veto. However, on October 1, 1992, the Legislature, seeking to override the Governor's veto, voted on a motion to override but failed to achieve their objective. Subsequently, on October 5, 1992, after passing a motior to reconsider the motion to override the Governor's veto, the Legislature successfully overrode the veto of the expense allowance. Upon refusal of the Governor to recognize the override of his veto, the Legislature filed a complaint with the Court seeking a declaratory judgment  that the Legislature's override of the Governor's veto of the expense allowance was valid and effective.

     In his answer, the Governor states that when the Legislature failed to override his veto on October 1,1992, they exercised their right to attempt to override the veto and thereafter the veto was not challengeable further vote. On his part, therefore, the Governor seeks a declaratory judgment that the Legislature's override attempt failed on October 1, 1992, and that further attempts to override the veto were unconstitutional andillegal.

     Before addressing the subject matter of controversy  between the parties we like to reiterate that this Court has the power to enter a declaratory judgment if the circumstances so warrant, and this case is appropriate for the exercise of the Court's power. We accordingly invoke the power.

     In a case of actual controversy within the jurisdiction, any court of this State upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. Further necessary- or proper relief based on a declaratory judgment or decree may be grantee, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment. Pohnpei Judiciary Act of 1982 (S.L.No. 2L-160-82, Sec 22), see also Weital et al v. Annes Leben (in hiscapacity as Speaker of Pohnpei Legislature) (PCA No. 71-87), State of Pohnpei et al v. Kadalino Damarlane. et al.   (PCA No. 25-91)

      We heard counsel argument in this case on Monday, February 8, 1993. The argument, mainly semantic, turned on the interpretation of Article 8, Section 12(4) andSection 14(1) of the Pohnpei Constitution. Article 8, 11 Section 12(4), which deals with the Legislature's  original consideration of and voting on bills (prior to a veto) reads as follows:

"To become law, a bill shall pass two readings on separate days. The first reading may be on the day of the introduction. Passage on second reading shall require the affirmative vote on roll call of a majority of the members of the Legislature, without regard to vacancies."

And Article 8, Section 14(1) reads:

               "After the Legislature has received a message of disapproval, the bill, item, or itemsdisapproved shall become law on a single reading
                upon the affirmative vote of two-thirdsof the members of the Legislature, without  regard to vacancies."

The focus of the semantics was whether "reading" and "voting" as used in the two sections are interchangeable in arriving at the true meaning of section 14 (1)*.Counsel furnished the Court carefully considered points and authorities and the thrust of the argument was the validity of the October 5, 1992, Legislature override of the Governor's veto in view of the failure to override the veto on October 1, 1992. We for our part left no stone unturned in our search for an answer to the question for determination. However, inasmuch as we would have liked to address the issues surfacing in argument and render our opinion on the question for determination, any effort on our part to do so would be an exercise in futility since it transpired in argument, that the Legislature has enacted S.L. No. 3L-24-92, Section 3 of which--amends Title IV of S.L. No. 3L-12-92, the Comprehensive Budget Act for Fiscal Year 1993 by the reincorporation of the said Legislators' Official Expense Allowance of $115,000.00, also disapproved by the Governor but was overridden by the Legislature on January  25, 1993. In our opinion this subsequent act in the legislative process renders nugatory any declaration by this Court relating to the controversy arising from the Legislature's override of the Governor's disapproval of that item of appropriation in S.L. No.3L-12-92. The propriety of the Legislature's override was a subject of argument to be settled by judicial decision. But although the case presented an existing controversy subject to judicial determination, the subsequent legislative act has caused the controversy to lose its essential character. W-a therefore consider the question before us moot. See Wilson v Los Angeles County Civil Service Commission, 246 P2d 688. A moot case or question may however, be considered by the court if it is one of great public importance, as where it involves a determination of public rights or interests under conditions which may be repeated at any time. People v. Collins, 218 P2d 87. Without a doubt, the matter before  us is a matter of great public importance as it relates  to the checks and balances inherent in our constitutional government. However, by judicial prudence and caution, we do not consider this is the opportune time to consider the question in controversy.

     Accordingly, we declare that the question before us is moot and warrants no declaratory judgment. About this we say no more.

So Ordered this 17th day of February, 1993.

Edwel H. Santos                                                                      
Chief Justice     
Carl Kohler 
Associate Justice  
Yoster Carl     
Associate Justice                                                                    
Judah C. Johnny
Associate Justice
Entered: February 17, 1993
Acting Clerk, Appellate Division

*In his argument to differentiate the word "reading" from the word "vote" as they appear in Section 12(4), counsel for the Legislature argued that "The Legislature cannot take a 'vote' until two separate 'readings' have been done." (Plaintiff's Opening Brief, p.5). "Two separate readings are required before an initial vote to insure . . . careful consideration." (Plaintiff's Reply Brief, p. 5). While the construction assigned by counsel deserves special attention, the Court judicially noticed that the practice and usage in the Legislature calls for a voice vote following first reading and a roll call vote following the second reading. Rule Ioh, paragraphs 2 and 6 respectively of the Legislature Rules of Procedure adopted during its Seventeenth Special Session, 1991. Reading the same Section 12 (4) in the Pohnpeian version of the Constitution we note the use of the term "kamanamanla ni wadawad riau" [approved in two readings]. The use of the term"kamanamanla" in the Pohnpeian version implies that a 'vote is to be taken to signify whether the first reading and the second reading are approved or passed by the Legislature.

As a caveat counsel are urged that in construing our Constitution consideration be given to the Pohnpeian and English language versions in order to arrive at a viable construction appropriate to the question before the Court.