Pohnpei Supreme Court .
 Trial Division

In the Matter of the Proceedings to Remove The Honorable Ioanis M. Sahm
From the Office of Kolonia Town Mayor,  
Mayor Ioanis M. Sahm,

 Semenster Ehpel, in His  Capacity as Special
 Election Commissioner,
 Speaker Pelsin Susaia,
and  Kolonia Town Council,
PCA NO. 193-97


     At the end of pre-trial conference held in this matter on September 8, 1997, the Respondents moved for dismissal on ground of lack of jurisdiction. For purposes of clarity in this discussion, the supporting arguments are specifically quoted here as set forth by the Respondents:

      "1. The Nature of the Office of Mayor or a Constitutional Office and Judicial Authority on Political Question. It is at, least instructive that the nature of the office of Mayor or for that matter public offices which have no superior office to control except for the law, to be set out here.

Public Offices are created for the purpose of effecting the end for which government has been instituted, which is the common good, and not for the profit, honor or private interest of any one person, family, be conceived of as a responsibility and not a right.

63A Am Jur 2d, Public Officers and Employees Sec. 2 It is considered necessary in its consideration of its jurisdiction in this matter that the court-at the outset considers the general law on the Judicial Authority of determination of political questions.

The courts will not rule upon questions which are exclusively or predominantly political in nature rather than judicial. Such questions are within the domain of the  executive or legislative branches of the government. The nonjusticiability of a  political question is primarily a function  of the separation of powers.

     See 16 Am Jur 2d, Constitutional Law Sec. 312

     "2. Court of Equity Generally are Without Jurisdiction to Restrain or Relieve Against Proceedings for the Removal of Public Officer. In many jurisdictionSincluding those of the United States, although the distinction between courts of law and equity are not as important today as previously, when a court is asked to exercise its equity jurisdiction, if there is an adequate legal remedy prescribed then the court cannot entertain jurisdiction. See White v. _Barry, 171 US 366. 18 S Ct 917, 43 L Ed 199, White v. Butler, 171 U.S. 379, 18 S Ct 949, 43 L Ed 204. This holding was adopted by the Chuuk State Supreme Court, Appellate Division in Election Commissioner v. Petewon, 6 FSM Intrm 491, 500(Chk. S.Ct. App. 1994), where it held that:

Courts of equity are without jurisdiction to enforce purely political rights. Matters  concerning the conduct of elections are usually left to the political branches and  the courts generally have no jurisdiction until after the elctions are held.
"This Court made an identical holding but without distinguishing the court's legal and equity jurisdiction in the case of Daniel v. Moses, 3 FSM Intrm. 1,4(Pon.S.Ct. Tr. 1985) where it held that "[t] he right to contest an election cannot be exercised until the election has been completed." obviously  going further by subscribing to the holding in the Liberal Party of Palau v. Election Commissioner of Palau, 3 TTR 293,295(1967) which authority the court cited in its opinion that:
Election contests are essentially a rersponsibility of legislative or political branch of the government under the American theory of separation of powers and are generally beyond the control of the judicial power, except to the extent that the responsibility therefore has  beeen expressly given the judiciary by legislation.

     "This court then went on to grant a motion to dismiss for lack of jurisdiction which in effect denied the motion of the petitioner for a temporary restraining order to hold off a scheduled election like in the matter at bar.
     "3. Removal Like election of Elected Officials in General and of Mavor Ioanis M. Sahm in Particular is a Political Question to be Decided by the Political Arms of Government and Like Elections, are Beyond the Control of the Judicial Power. The petitioner in the case at bar has invoked the equity jurisdiction of this court by asking for temporary restraining order, preliminary injunction and permanent injunction. Following this court's line of reasoning in Daniel 3  v. Moses (supra), since the Removal of Mayor Ioanis M. Sahm is a political issue, and since the removal provision of the Kolonia Town Constitution under Article V, Section 22 is process like  an election rather than an event, the Court is without  jurisdiction until after the removal process is completed. It  has been argued by the Petitioner that since the Pohnpei State Constitution is the supreme law of Pohnpei and since this Court has jurisdiction over all cases, and since the Pohnpei Judiciary Act of 1995 authorizes that this court may issue  declaratory judgments, this court therefore has jurisdiction. But a political issue is a political issue or question whatever the level of government is involved. Without legislative authority for this court to consider political issues, especially those which have been handed over to the people to decide by exercising their right to vote, this court lacks jurisdiction to restrain or enjoin the removal process, Daniel v. Moses (supra). Other jurisdictions have held that removal or recall .of elected officials like their election is a political issue not subject to the court's jurisdiction.

The power granted electors to remove public officers is political in nature and not the exercise of a judicial function. Hence the recall statutes do not contemplate a judicial inquiry into the truth of specific charges of misconduct, but are designed to afford relief from popular dissatisfaction with the official conduct of an officer.

63A  Am Jur 2d, Public Officers and Employees,187. There is no constitutional impediment for the Kolonia Town to provide for removal, of officers in its constitution. Indeed, the Pohnpei Constitution by Article 14, provides for the local governments to adopt their constitutions and to exercise all authority not prohibited under the Pohnpei Constitution. This Court recognizes the authority of the local governments when it held in the case of, In re: Removal of Leon Joel (Luhkenmoanlap) 2 P.S.Ct.R:.358.369 (App. 1992) that:

A municipal constitution is to be interpreted  and given effect to it as the paramount law, although applicable provisions of the State Constitution, are dominant authority in interpretation and enforcement of municipal constitutional provisions which may be affected by the state organic provisions.

     "In this way, the court must not, and cannot assmume jurisdiction of political and therefore nonjusticiable issues just because it has jurisdiction of all cases. It has also been held in the United States that

The removal of public officers is controlled almost entirely by constitutional or legislative provisions. Legislative power in this respect is in its nature political and has reference exclusively to the polity of government, which would be inherently defective if no remedy of a summary nature could be exercised to remove from office a person who after his election, had become unfit or incompetent to perform his official duties. Consequently, the causes, charges, notice, investigation and manner of determination and removal in proceedings relating to public office are matters wholly in the discretion of legislature.

See 63A Am Jur 2d, Public Officers and Employees, Sec. 220. Since the "causes, charges, notice, investigation and manner of determination and removal are [a political-issue] wholly in the discretion of the legislature. , the court lacks authority or jurisdiction to inquire into them. See People of Kaninaamaranai v. Pohnpei Legislature, 3 FSM Intrm.5, (Pon. S.Ct. Tr. 1985)"

     The Respondents conclude in maintaining that based on the foregoing arguments, the inescapable or inevitable conclusion is that the removal of Mayor Ioanis M. Sahm is a political question wholly in the discretion in the political arm of the government or Kolonia Town Council and the people in the exercise of their right to vote and the judiciary either of Kolonia or Pohnpei State which is a unitary judiciary is without jurisdiction to inquire into the removal or the causes, charges, notice, investigation and manner of determination and removal which the petitioner is asking the court to do. They accordingly urge that the Temporary Restraining Order be revoked or terminated because the court lacks jurisdiction to issue it, and the petition for declaratory judgment to declare the Resolution void or invalid be dismissed since the adoption of the Resolution is wholly within the discretion of the Kolonia Town Council.

The Respondents are confronted with obstacles which they have failed to hurdle in their argument. First, they have failed to state how and why the act now sought by the Petitioner for this Court to perform falls within tile exclusive power and furictlom of the political arms of the Kolonia Town Government or the people of Kolonia Town as being political question. Second,  they fail to recognize the superior organic authority under which the Kolonia Town Constitution was adopted. Third, they fail to recognize that even where a question is political, there are instances where the judicial arm of the government may interfere.

     While the Respondents separate their points of argument into three categories, together, they may be summed up in one simple point: that the power to create public office (in this case, Mayor of Kolonia Town), define its nature, and determine the manner of its removal, is a political question reserved to the executive and legislative branches of the government (Kolonia Town Government), and not within the jurisdiction of this Court.

     We agree that the power to determine kinds of offices which are to be created in a polity, to define their nature, to prescribe their powers and responsibilities, to set their terms, to set their compensation, and to determine the manner of their removal is a power reserved to the political arms of a government, and is removed from judicial intervention, as being a political question. Some offices may be created by constitution. 63A Am Jur 2d, Public Officers and Employees, Sec. 27. Some may be the creation of statute enacted by the legislature. 63A Am Jur 2d, Public Officers and Employees, Sec. 28. The power to create an office generally includes the power to modify or abolish it. 63A Am Jur 2d, Public Officers and Employees, Sec. 31. But the power to determine constitutionality and legality of the exercise of powers granted the political arms of a government is reserved to thejudicial arm of that government. This is especially true where those political powers are granted by a superior organic act.

     In the instant case, the office of Mayor of Kolonia Town Government is created by the Kolonia Town Constitution. A short discussion of the developments of the constitutional governments of the State Government of Pohnpei, and local governments therein will aid our understanding of how those government functions ought to be dileneated and exercised.

     In ratifying the Constitution of the Federated States of Micronesia, the people ordained that,

"The three levels of government in the Federated States of Micronesia are national, state, and local . . . " Art. VII, Sec. 1, FSM Constitution.

"A state shall have a democratic constitution."Art VII, Section 2, FSM Constitution.
Under these clauses, the people of Pohnpei constituted and ratified their Constitution in 1984, which they deemed to be democratic.

     When the people of Pohnpei ratified the Pohnpei State Constitution, they implanted in that organic act a mandate that,  

"The local goverments comprising the Pohnpei Government on the effective date of this Constitution are Kapingamarangi, Kitti, Kolonia Town, Madolenihmw, Mwokil, Net, Ngetik, Nukuoro, Pingelap, Sokehs, and Uh." Art. 14, Sec. 1, Pohnpei State Constitution

"Each local government may establish its own constitution. Such constitutions shall not be inconsistent with this Constitution or Pohnpei law in effect on the effective date of this Constitution . . .." Art. 14, Sec. 2, Pohnpei State Constitution.

Under these mandates, the people of Kolonia Town constituted and ratified their Constitution. They ordained that there will be three branches of their government, the legislative, executive, and judicial branches. Art. V, VI, and VII, Kolonia Town Constitution. The people of Kolonia Town mandated that '1  "[T]he executive authority of the government be vested in a Mayor." Art. Vi, Sec. 1, Kolonia Town Constitution. The people mandated that "[T]he Mayor may be removed from office for neglect office or serious misconduct as a public official.. Art. VI, Sect. 9, Kolonia Town Constitution. The people also provided that "[u]pon adoption of a resolution of removal of the mayor, a notice of removal shall be forthwith served by the presiding officer of the Council upon the presiding judge of the Kolonia Town court who shall call a special removal election . . .." Art. V, Sect. 22, Kolonia Town Constitution.

     It is under these authorities that on August 4, 1997, the Kolonia Town Council introduced, and adopted Resolution 4C.R. No. 46-97, calling for the removal of the Petitioner as Mayor of Kolonia Town. The Resolution was forthwith served upon theChief Justice of the Kolonia Town Court, who on August 6, 1997,called for a referendum election to be held on September 3, 1997.

     The Petitioner seeks a determination by this Court under these clauses. The crux of what the Petitioner seeks this Court to do, is to determine and declare whether or not the manner of removal of Mayor of Kolonia Town, set forth in Article VI, Section 9, and Article V, Section 22 of the Kolon Town Constitution, denies right to due process which is guaranteed by the Pohnpei State Constitution, and therefore unconstitutional. We agree with the Petitioner that the function which is now being sought for this Court to take isclearly not a political function. This Court_is asked by the petition to determine whether the manner prescribed to remove the Mayor under Articles VI, Section 9, and V, Section 22 are consistent with the mandate enrshrined in Article 14, Section 3 , and not a denial of right to due process guaranteed under Article 4, Section 4 of the Pohnpei Constitution.

     It is clear that while the people of Kolonia Town possess the power to adopt a constitutional government, that power is one which is granted by.Article VI, Section 9, and Article V, Section 22 of the Pohnpei State Constitution. These Articles prescribe the limit within which the people of Kolonia Town may establish their government. The authority granted to each local government to "establish its own constitution . . . " which "shall not be inconsistent with this Constitution or Pohnpei law . . .." (Art. 14, Sec. 1, Pohnpei StateConstitution), and that the local government "exercise all authority not prohibited under this Constitution and Pohnpei law," (Art. 14, Sec. 3, Pohnpei Constitution), contemplatesthat such local constitution in the exercise of its authority does not deny right to due process as guaranteed by Article 4, Section 4 of the Pohnpei State Constitution. This is what the Petitioner seeks from this Court to determine if it had breached. This is a judicial function and is properly reserved to the courts.
      The Respondents also contend that the process of removal of the Kolonia Town Mayor, like an election contest, is not within the power of this court to interfere, until an election is completed. Even if that is so, the process which is here in issue has been put to vote by the Kolonia Town Council. It is that process, exercised under Article VI, Section 9, and .Article V, Section 22, that is questioned. To determine constitutionality of those exercised powers is not a political act, but is the power constitutionally reserved to the courts.

     The Respondents argue that "when a court is asked to exercise its equity jurisdiction, if there is an adequate legal remedy prescribed then the court cannot entertain jurisdiction." Clearly, the remedy here sought can only be attained through judicial interpretation and construction a function reserved only to the judicial arm of a government. In the instant case, it will not be proper to seek remedy through the Kolonia Town Court, inasmuch as it played a role in the process which is in question. The only remaining forum capable of determination is this Court.

     The motion to dismiss must fall.

     In consideration of the foregoings, it is hereby Ordered that the Motion to Dismiss be, and it is hereby denied. Further hearing is set for October 27, 1998 at 4:00 p.m..
Dated: October 13, 1998

JUDAH C. J  Chief Justice

While in dictum, it is nevertheless noteworthy that judicial notice is taken that the Kolonia Town Government through its Election Commissioner, a party-respondent in this action, is taking measures to hold a general election of a Mayor on October 14, 1998, as generally being announced over the Pohnpei Government Broadcast Station V6AH. It should be noted that the removal process effected under Articles V and VI of the Kolonia Town Constitution, which is now in issue, is not yet completed. To the extent that that process is incomplete, that the Petitioner has not died, or resigned as Mayor, and that the term may not have expired, no vacancy presently exists in the office of the Mayor of Kolonia Town Government. There is an incumbent.

uct><TargetProduct MinMsiVersion="200"><TargetProductCode Validate="true">{91510415-6000-11D3-8CFE-0150048383C9}</TargetProductCode><TargetVersion Validate="true" ComparisonType="Equal" ComparisonFilter="MajorMinorUpdate">11.0.4301.6360</TargetVersion><TargetLanguage Validate="false">1045</TargetLanguage><UpdatedLanguages>1045</UpdatedLanguages><UpgradeCode Validate="false">{00530000-6000-11D3-8CFE-1050048383C9}</UpgradeCode></TargetProduct><TargetProduct MinMsiVersion="200"><TargetProductCode Validate="true">{91510416-6000-11D3-8CFE-0150048383C9}</TargetProductCode><TargetVersion Validate="true" ComparisonType="Equal" ComparisonFilter="MajorMinorUpdate">11.0.4301.6360</TargetVersion><TargetLanguage Validate="false">1046</TargetLanguage><UpdatedLanguages>1046</UpdatedLanguages><UpgradeCode Validate="false">{00530000-6000-11D3-8CFE-1050048383C9}</UpgradeCode></TargetProduct><TargetProduct MinMsiVersion="200"><TargetProductCode Validate="true">{91510816-6000-11D3-8CFE-0150048383C9}</TargetProductCode><TargetVersion Validate="true" ComparisonType="Equal" ComparisonFilter="MajorMinorUpdate">11.0.4301.6360</TargetVersion><TargetLanguage Validate="false">2070</TargetLanguage><UpdatedLanguages>2070</UpdatedLanguages><UpgradeCode Validate="false">{00530000-6000-11D3-8CFE-1050048383C9}</UpgradeCode></TargetProduct><TargetProduct MinMsiVersion="200"><TargetProductCode Validate="true">{9151041D-6000-11D3-8CFE-0150048383C9}</TargetProductCode><TargetVersion Validate="true" ComparisonType="Equal" ComparisonFilter="MajorMinorUpdate">11.0.4301.6360</TargetVersion><TargetLanguage Validate="false">1053</TargetLanguage><UpdatedLanguages>1053</UpdatedLanguages><UpgradeCode Validate="false">{00530000-6000-11D3-8CFE-1050048383C9}</UpgradeCode></TargetProduct><TargetProduct MinMsiVer