[11 FSM Intrm. 258]

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HEADNOTES

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COURT’S OPINION

MARTIN YINUG, Specially Designated Justice:

     The petitioner Rensley A. Sigrah, Governor of the state of Kosrae ("the Governor"), filed on July 8, 2002, his petition for writ of mandamus in which he requests that this court issue a writ compelling the Speaker of the Seventh Kosrae State Legislature ("the Speaker," "the Legislature") to attend meetings of the Kosrae State Public Service System Oversight Board ("the Board") in accordance with the duties prescribed under Title 18 of the Kosrae State Code. The Legislature has counterclaimed for a declaratory judgment that the Board’s composition, as discussed further below, violates the separation of powers doctrine.

     The petition for writ of mandamus is denied. Judgment is granted in part, and denied in part, on the Legislature’s counterclaim for declaratory judgment. The court finds that so long as the delegation of power is otherwise proper, inclusion of the Governor on the Board is permissible. However, the inclusion of the Speaker and Chief Justice violates the separation of powers doctrine as an improper delegation of legislative power. A judgment consistent with these findings issues herewith.Memorandum

     The statutorily prescribed function of the Board, which is composed of the Governor, Speaker, and Chief Justice of the Kosrae State Court ("Chief Justice"), is to "create and control policy and promulgate rules and regulations for the State Public Service System by unanimous consent." Kos. S.C. § 18.202. As part of its July 29, 2002 response to the petition, the Legislature counterclaimed for a declaratory judgment pursuant to Rule 57 of the Kosrae Rules of Civil Procedure. The Legislature seeks a finding that the composition of the Board violates the separation of powers doctrine under the Kosrae Constitution. The court also reads the Legislature’s argument to say that the makeup of the Board is an impermissible delegation of legislative power. The alleged constitutional infirmity in the Board’s composition is the stated reason why the Speaker did not attend the Board’s last meeting. The pleadings present a narrowly focused question of law that this court may now decide: whether the Board’s three-member composition of the Governor, Speaker, and Chief Justice is per se a violation of the separation of powers doctrine and whether as such it is an improper delegation of legislative power. This court has jurisdiction over this matter pursuant to Kos. S.C. § 6.101(a), which provides that "[t]he court has the power to issue: (a) writs and other process."

     The separation of powers doctrine fortifies the constitutional makeup of government by requiring that each government branch exercise its assigned powers independently of the other two branches.

[11 FSM Intrm. 261]

Mackenzie v. Tuuth , 5 FSM Intrm. 78, 84 (Pon. 1991). While the naked right to legislate may not be delegated, the power to enforce legislation and to enlarge on standards defined in a statute can be delegated if the statute contains reasonable guidance and reasonable definition of the standards to be employed and the matter that is to be regulated. United States v. Best, 476 F. Supp. 34, 38 (D. Colo. 1979). In order for the delegation of legislative authority to pass constitutional muster, there must be a delineation of policy, a designation of the agency to implement it, and a statement of the outer boundaries of the authority delegated. American Power Co. v. Securities & Exch. Comm’n, 329 U.S. 90, 105, 67 S. Ct. 133, 142, 91 L. Ed. 103, 116 (1946); Best, 476 F. Supp. at 38; United States v. Pastor, 419 F. Supp. 1318, 1335 (S.D.N.Y. 1976). If the legislative body has given to administrative officials the power to bring about the result legislated, rather then the power to legislate the result, then there is no unconstitutional delegation of legislative power. United States v. Pray, 452 F. Supp. 788, 797 (M.D. Pa. 1978). A proper delegation of legislative power may be made to an official within the executive branch. Pastor, 419 F. Supp. at 1336. In Pastor the court observed that "[s]ince the essential evil of excessive delegation is that Congress thereby abdicates its legislative responsibility to a member of the Executive branch, the identity of that official and the nature of his duties appear irrelevant to resolution of the delegation question." Id. The Pastor court approved a delegation to the United States Attorney General to add new drugs to the lists of controlled substances which the United States Congress had initially enumerated. Id. at 1335-40.

     In the case at bar, the Board is "a three-member board consisting of each Branch Head [i.e., the Governor, Speaker, and Chief Justice], or their designee, that will create and control policy and promulgate rules and regulations for the Public Service System." Kos. S.C. § 18.102(3). The Legislature asserts that the inclusion of each of these three state officials on the Board runs afoul of the Kosrae Constitution. The court considers each contention.

     As noted, the Legislature may make a delegation of power to specified officials, or administrative agencies within the executive branch. Pastor, 419 F. Supp. at 1336. This necessarily includes the Governor, and such a delegation is appropriate because a proper, limited delegation of power confers on the delegatee the power to bring about the result that has already been legislated. Thus a delegation of power that passes constitutional muster confers specified powers on the executive to execute and enforce the law. This is the executive branch’s acknowledged role, and the Governor’s inclusion on the Board confers on him specific powers to facilitate what is already the province of the Governor to do, i.e., to execute and enforce state laws. Viewed in this light, the inclusion of the governor as a member of the Board does not, per se, give rise to a constitutional infirmity. This finding is subject to the caveat that the court does not determine whether other aspects of the statute in question pass constitutional muster as a proper delegation. The question now before the court is the precise one of the Board’s composition.

     The same conclusion does not follow from the inclusion of the other two branch heads as members of the board. The court in State ex rel. Wallace v. Bone, 286 S.E.2d 79, 88 (N.C. 1982), which is cited by the Legislature, spoke to the precise question now before this court: "The legislature cannot constitutionally create a special instrumentality of government to implement specific legislation and then retain some control over the process of implementation by appointing legislators to the governing body of the instrumentality." Similarly, in Udot Municipality v. FSM, 9 FSM Intrm. 418, 420 (Chk. 2000), the court held that the FSM Congress could not pass an appropriations bill under which an FSM senator determined what projects, for which the appropriation was made, would be approved. The court found that this practice violated the separation of powers doctrine because Congress was "executing and implementing" a law which the Congress had enacted. Id. In the case at bar, the Legislature may not by legislative act create the Board to implement the Kosrae Public Service System, but at the same time retain a degree of control over the Board by appointing the Speaker as one of its members. Delegation of legislative authority may not proceed by half measures. To do so is to violate

 [11 FSM Intrm. 262]

the separation of powers doctrine.

     It also follows that the Chief Justice may not serve on the Board. It is clear that the state court is given rule making authority. The express language of Article VI, Section 7 of the Kosrae Constitution provides that "[t]he State Court shall make and promulgate rules governing practice and procedure in civil and criminal cases in all courts." However, it seems self-evident that this rule making power operates in the limited sphere of the court’s inherent authority to determine an orderly process for the disposition of cases that come before it for adjudication. This is a different question from the Chief Justice’s ability to participate in establishing rules for the Kosrae Public Service System.

     The Chief Justice, in his role as a sitting judge of the Kosrae State Court, might well be called upon to adjudicate employment disputes in which public service rules and regulations play a dispositive role. In that event, the Chief Justice would be placed in the untenable position of interpreting rules which he helped to create. A collision of these two roles, that of rule maker and rule interpreter, is a prospect that the separation of powers doctrine does not contemplate. It is no answer to say that the Chief Justice could recuse himself in any case in which the rules that he had a hand in promulgating were litigated and assign the case to another judge. The rules would still bear a judicial imprimatur. Thus, inclusion of the Chief Justice on the Board violates the doctrine of separation of powers.

      In summary, the inclusion of the Chief Justice of the Kosrae State Court and the Speaker of the Kosrae Legislature on the Kosrae Public Service System Oversight Board constitutes an impermissible delegation of legislative authority in violation of the separation of powers doctrine. Inclusion of the Governor on the Board does not per se contravene that same principle. This court’s finding is limited specifically to the foregoing, and this court does not reach the question whether any other aspect or aspects of the challenged legislation meet, or conversely violate, the requirements for a valid delegation of legislative power that is consistent with the separation of powers doctrine.

     A judgment consistent with this memorandum and order issues herewith.

     The court finds that the Legislature’s Motion to Disqualify Judges is rendered moot, because I am hearing this case as a specially designated justice.

     Also, in light of the preliminary injunction issued in Civil Action No. 68-02 on August 22, 2002 [Seventh Kosrae State Legislature v. Sigrah, 11 FSM Intrm. 110 (Kos. S. Ct. Tr. 2002)], the Governor’s Motion to Disqualify Counsel and to Strike is denied.

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