Dion G. Neth vs. Idelphonse Pangelinan

This action is brought by the Honorable Dion G. Neth, in his capacity as Lieutenant Governor of the State of Pohnpei, against the Honorable Idelphonse Pangelinan, in his capacity as the Governor for the State of Pohnpei. For clarity and consistency in this discussion, the plaintiff is hereinafter referred to as . Lt. Governor Neth. , and the defendant is hereinafter referred to as "Governor Pangelinan".

The complaint in this action seeks this Court to declare the powers of the Lieutenant Governor when functioning as Acting Governor pursuant to Article 9, Section 6(2) of the Pohnpei State Constitution, and the Power of the Governor to rescind nominations made by the Lieutenant Governor as Acting Governor.

On or about December 7 to 20, 1997, Governor Pangelinan was absent from the State of Pohnpei. During the absence of Governor Pangelinan, Lt. Governor Neth, as Acting Governor, made and transmitted to the Pohnpei State Legislature, certain nominations that were subject to legislative advice and consent. On or about December 22, 1997, after returning to Pohnpei, Governor Pangelinan wrote a letter to the Speaker of the Pohnpei Legislature and requested that all nominations made by Acting Governor Neth during the absence of Governor Pangelinan be disregarded because they were made against the expressed wishes and instructions of Governor Pangelinan, and were therefore unconstitutional.

On or about March 30 and 31, 1998, while Governor Pangelinan was again, absent from the State, Lt. Governor Neth, as Acting Governor, nominated three individuals and transmitted to the Pohnpei State Legislature for legislative advice and consent. These individuals included Edwel H. Santos for the position of Associate Justice of the Pohnpei

State Supreme Court, Joseph Phillip for Director of Justice Department, and Welsin Helgenberger as a member of the Board of Directors of Economic Development Authority. On or about April 17, 1998, Governor Pangelinan, after his return to Pohnpei, wrote to the Speaker of the Pohnpei State Legislature purporting to rescind the nominations made by Acting Governor Neth, except for the nomination of Edwel H. Santos. These actions led to the filing of the complaint by Lieutenant Governor Neth which commenced this action.

Defendant Governor Pangelinan filed his responsive pleadings on August 27, 1998. While Governor Pangelinan admitted the allegation of facts in the complaint, by way of affirmative defense, he denied subject matter jurisdiction of this Court. By way of affirmative defense, Governor Pangelinan also pled the doctrines of laches, estoppel and waiver. A preliminary hearing was held in this matter on September 28, 1998. In that hearing, Governor Pangelinan withdrew his challenge of jurisdiction.

Lt. Governor Neth's Motion for Summary Judgment was filed on October 8, 1998, together with an Opposition to the Motion for Judgment on the Pleadings. Governor Pangelinan filed his Answer in Brief in Response to the Plaintiff's Motion for Summary Judgment on October 15, 1998. These motions were consolidated, treated as motion for summary judgment pursuant to Rule 12(c) and Rule 51 of the Pohnpei Rules of Civil Procedure, and argued on October 16, 1998. At argument, the Court permitted Governor Pangelinan to take lead, being first to file a motion. For purposes of this discussion, the order is reversed.

Lt. Governor Neth argues that Article 9, Section 6(2) of the Constitution of Pohnpei authorizes the Lieutenant Governor as Acting Governor to exercise full authority vested in the Governor by the Constitution and laws of Pohnpei. Lt. Governor Neth contends that the language of Article 9 Section 6(2), providing that the Lieutenant Governor shall be Acting Governor when the Governor is absent from Pohnpei or is incapacitated is clear and unambiguous deserving no judicial interpretation.

Constitution carries clear meaning, "the state of being away" or "during the time one is away." He argues therefore that it is a cardinal rule of constitutional interpretation that the ordinary and natural meaning of words are used and if such result in a reasonable and clear interpretation, that will give effect to the provision and not result in ambiguity, then one needs not go further, citing 16 Am Jur 2d. Constitutional Law, Sec. 84 et seq., 110 and 111.

Lt. Governor Neth further contends that "acting" as defined in Webster's II New Riverside University Dictionary means "[t]emporarily assuming the authority, duties or functions of another." He urges therefore that it is clear that the framers of the Constitution did not intend that only when the Governor is away for certain distance, duration and purpose, that the Acting Governor may perform the duties of the Governor along with the attending powers and privileges. He argues that the Constitution does not provide for any discretion as to the authority of the Lieutenant Governor, but that the provision does not say that the Governor may delegate his authority to the Lieutenant Governor.

In opposing the analysis of Governor Pangelinan that "absence" may mean "effective absence," Lt. Governor Neth contends that if "absence" means "effective absence" as argued, to adopt that meaning would have the result that every time the Governor leaves Pohnpei, the court would have to determine if that absence is "effective absence" or not, because Article 9, Section 6(2) does not allow the Legislature to provide for the determination of what is "absent from Pohnpei". He argues that to adopt the meaning, the Lieutenant Governor, as Acting Governor, would have no discretion in exercising the authority of Acting Governor.

Lt. Governor Neth argues that because of the mandatory language in Article 9, Section 6(2) of the Constitution, it is not even necessary for the Governor to announce his physical departure from Pohnpei, before the Lieutenant Governor becomes Acting Governor; that as soon as the Governor is outside of Pohnpei, the Lieutenant Governor becomes Governor, indicating the fullness of the constitutional authority of the Acting Governor or the

Lt. Governor Neth thus concludes with the contention that the Lieutenant Governor as Acting Governor has the authority to exercise full authority of the Governor under the Constitution and the laws of Pohnpei, including making appointments or nominations that the Governor is authorized to make which include appointments which Lt. Governor Neth made as Acting Governor and were rescinded by Governor Pangelinan.

Legislature disregard nominations by the Lieutenant Governor as Acting Governor and purporting to rescind the nominations by the Acting Governor which are being considered by the Legislature are in contravention of Article 9, Section 6(2) of the Pohnpei Constitution and is unconstitutional and therefore null and void." See pages 4-5 of the Complaint, relief item "b". The letters of Governor Pangelinan to the Speaker of the Legislature withdrew or rescinded the nominations made by Lt. Governor Neth as Acting Governor. It is the withdrawal or rescission of nomination that Lt. Governor Neth asks this Court to find ineffective. Yet, in his opposition to Governor Pangelinan's Motion for Judgment on the Pleadings, which is combined with his Motion for Summary Judgment, he argues that " [T]he very broad issue of whether or not the Governor may withdraw the nominations is not before the court." That based on his arguments in item "a" of his Motion for Summary Judgment, "this Court need not go further because the Lieutenant Governor as Acting Governor has authority [to] make those appointments and the Governor cannot rescind or the Legislature may not disregard such appointments on the ground that the Lieutenant Governor does not have the authority to make them." But whether the Lieutenant Governor, as Acting Governor under mandate of

Article 9, Section 6(2)has full power of the Governor to make nominations has no effect on the issue of whether the Governor has the power to withdraw nominations made by the Acting Governor, or for that matter, to withdraw his own nominations. This question has been placed before this Court, and is ripe for declaration.

Lt. Governor Neth argues that the Pohnpei Constitution gives the authority of the Governor to the Acting Governor, so that to say that the Governor may withdraw the nominations because the Acting Governor does not have the authority to make those nominations or appointments, is tantamount to saying that the Governor may withdraw or rescind his own nominations because he does not have the authority to make them. He analyses that appointments or nominations are not acts of an individual, but acts of the office or official acts. When the Acting Governor has made nominations, they are and must be considered or construed to be the act of the Governor, or the office of the Governor, so that to say that the Governor may rescind those nominations made by the Lieutenant Governor as Acting Governor would render Article 9, Section 6(2) of the Pohnpei Constitution illusory and ineffective, a circumstance not intended by the framers.

Lt. Governor Neth goes further to reason that if it is appropriate for this Court to decide the broader issue respecting the power of the Governor to withdraw or rescind nominations of the Lieutenant Governor as Acting Governor, the Court is required to consider "other factors" in deciding the issue. The other factor Lt. Governor Neth brings before this Court is the judicial guidance clause of Article 5, Section 1 of the Pohnpei Constitution.

Lt. Governor Neth contends that the constitutional mandate, "This Constitution upholds, respects and protects the customs and traditions of the traditional kingdoms of Pohnpei," Article 5, Section 1, and "The Government of Pohnpei shall respect and protect customs and traditions of Pohnpei," Article 10, Section 11, set out the Judicial policy of this Court which is that "[t]he decisions of all courts and adjudicatory bodies shall be consistent with this Constitution and the concept of justice of the people of Pohnpei." He urges that this Court must therefore consider the relevant customs and traditions of Pohbnpei in determining the issues whether or not the Governor may withdraw, rescind or revoke the nominations made by the Acting Governor for any or no cause at all, except on the

ground that the Acting Governor does not have the authority to make appointments. In this line of argument, Lt. Governor Neth urges this Court to recognize the accepted practice and therefore custom in Pohnpei that a person is expected to keep his words or not make a decision and then rescind it, following the Pohnpeian adage, "Sohte ohl kin kangala a mwus." Under this given custom, Lt. Governor Neth urges the Court to agree that an appointment made by the Acting Governor is an appointment by the Governor or the office of the Governor. Thus, to make an appointment and then rescind it is not in accord with this Pohnpeian custom.

Lt. Governor Neth also invites this Court to consider the accepted common practice that when a leader is making an imporltant decision that will affect people's lives, it should have been fully considered before it is made. That when such decision has been made, it should not be taken light of and then rescinded, urging this Court to follow the rationale adopted by this Court in Sercy v. Francisco Joseph et al, PCA No. 156-95. (Unpublished)

Lt. Governor Neth argues that the cases are distinguishable. That in that case, Governor Brown had also submitted his appointment upon withdrawal of the appointment by the Acting Governor, and that confirmation in that case was not to be a legislative act, but that of a commission. He argues that that case was not decided in Pohnpei and did not consider the customs and social and geographical configurations of Pohnpei. He emphasizes that that case is no authority and is not binding.

In sum, Lt. Governor Neth argues that if the Governor is allowed to withdraw nominations which were made on full authority of the Governor by the Acting Governor, the Lieutenant Governor as Acting Governor, exercising full authority of the Governor will be able to withdraw nominations or appointments of the Governor once the Governor is absent from Pohnpei.

On point of laches and estoppel, Lt. Governor Neth argues that even though the nominations have been disposed of, there is likelihood of repetition of the issues as attested to by the fact that the issues have raised their heads twice with the same parties and the duration has been too short for judicial review rendering the issues not moot and this Court has jurisdiction and may grant relief.

Governor Pangelinan premises his argument on the contention that when the Governor is temporarily absent from Pohnpei he remains Governor of Pohnpei. He argues that the directive given under Article 9, Section 2 of the Pohnpei Constitution generally limits what can be done by Lt. Governor Neth when Governor Pangelinan is absent from Pohnpei. On this point, Governor Pangelinan argues that the Constitution makes it clear that the office of Lieutenant Governor is largely a ceremonial post unless and until the Governor is absent from the State or becomes incapacitated. He maintains that Article 9, Section 2 grants express powers to the Governor to delegate specific functions to the Lieutenant Governor which, thereafter, must be followed when the Governor is off-island. He urges that Lt. Governor Neth's complaint is based wholly upon Article 9, Section 6(2) of the Pohnpei Constitution which provides that "The Lieutenant Governor shall serve as the Acting Governor when the Governor is absent from Pohnpei or is incapacitated."

He agrees that the absence of the Governor from the State results in the Lieutenant Governor becoming Acting Governor. Governor Pangelinan argues however, that the terms "Acting" and "absent from Pohnpei" as used in the Constitution are ambiguous. He maintains that it is unclear whether the framers of the Pohnpei Constitution intended, by using the word "acting," to connote that something less than all of the gubernatorial powers would devolve upon the Lieutenant Governor. Footnote 3, Motion for Judgment on the Pleadings. But he does not see it necessary that the Court decide the issues presently before the Court, except that an instruction from the Court as to the extent of the Governor's authority to delegate specific and limited duties to the Lieutenant Governor would be useful for purposes of this action.

Governor Pangelinan explains that the phrase "absent from the state" has been given two distinct interpretations by courts in the United States. Some courts interpret "absence" to be the mere lack of physical presence, while others look to whether there is an "effective" absence, meaning that the circumstances render the Governor unable to perform his official duties. Citing 38 Am Jur 2d., Governor, Sec. 13. See footnote 4, Motion for Judgment on

the Pleadings. Governor Pangelinan urges that the latter meaning, "effective absence," is the more progressive view, since there are many situations where a governor may not be physically present in the State but is able to perform all of his duties by means of modern telecommunications. He reasons that such more progressive view takes into account that one hundred or more years ago, when most constitutions of states within the United States were drafted, being absent from the state disabled the governor from performing his duties because a governor could not communicate hisdirectives effectively from long distance. Such is not the case today with modern telecommunications, fascimile machines, and the Internet. He concludes therefore that analogous to experiences in the United States, even if at the time that the Pohnpei Constitution was drafted, those means of communication were not in place, the fact that they are in use nowadays, the intent of the constitution may be varied to conform to present-day capabilities. Clearly stated, Governor Pangelinan contends that even though the framers of the Pohnpei Constitution intended that "absent from Pohnpei" meant "physical absence from Pohnpei", with the improved means of communication, this Court may adopt a varied meaning of "absent from Pohnpei" to mean "effective

absence from Pohnpei". He maintains that even when the Governor is off-island, he is able to conduct the business of State while abroad and still remains in all respects the Governor of Pohnpei. In this way, he is simply not required to delegate the duties of Governor to the Lieutenant Governor. Thus, when the Governor is off-island, "e)xcept in the most extraordinary circumstances where such action would result in manifest danger to the public welfare, the lieutenant governor should commuinicate with the absent governor before assuming his powers and duties, and he should publicly announce, and openly display an intention to assumd such powers and duties." Citing 81A C.J.S., States Sec. 89. He contends that the purpose of requiring a Lieutenant Governor to communicate with the Governor about any extraordinary act planned by the Lieutenant is to allow the Governor to return to State if he deems necessary. He claims that Lt. Governor Neth never did this, but has in each case chosen to make appointments without even telephoning Governor Pangelinan. For this reason, Governor Pangelinan urges that our constitution is a flexible document that should be broadly and liberally construed in such a manner to meet new or changed conditions as they arise without departing from the basic principles contained in the

Governor Pangelinan argues that assuming arguendo that Lieutenant. Governor Neth has the power to make appointments when Governor Pangelinan is off-island, Governor Pangelinan, upon return, may withdraw or rescind those nominations of the Lt. Governor. He argues that contrary to Lt. Governor Neth's assertions, it is apparent in American jurisdictions that "where the nomination must be confirmed before the officer can take office or exercise any of its functions, the power of removal is not involved and nominations may be changed at the will of the executive until title to the office is vested.."

Governor Pangelinan cites what he contends to be a similar case in California, in Petition of Commission on Governorship of California, 603 P 2d 1357 (Cal. 1979) in which Governor Brown of California was absent from the State and, during his absence, the Lieutenant Governor appointed an appellate judge. Upon his return, the Governor

withdrew the judicial nomination prior to the nominee being confirmed by the Commission on Judicial Appointments. The California Lieutenant Governor, as with Neth in this case, urged that the governor was powerless to withdraw the nomination. To the contrary, the California Supreme Court held that a nomination by the Lieutenant Governor, as Acting Governor, "does not complete the appointive process or confer even an interim right in the nominee to assume office." The case held further that, "where the nomination must be confirmed before the officer can take the office or exercise any of its functions, the power of removal is not involved and nominations may be changed at the will of the executive..." Id. In that case the court held that the returning Governor could withdraw the nominee from consideration. Governor Pangelinan contends that on return to Pohnpei, none of the Luetenant. Governor's nominations had been confirmed, so that all were subject to being revoked by the Governor. Similarly, Governor Pangelinan's withdrawal of the nominations was within his executive power under the Pohnpei Constitution.

Summary ,Judgment, in which Lt. Governor Neth alleged the existence of Pohnpei custom, arguing that pursuant to the Rules of Evidence adopted by this Court, a witness may only testify to matters of which he has personal knowledge. Rule of Evidence 602. He argues that Lt. Governor Neth gave an affidavit of important matters of Pohnpeian culture but has offered no evidence of any special knowledge, skill, experience, training, or education in the area. Governor Pangelinan argues that in order to provide evidence of a cultural norm or practice, particularly where, as in the case at bar, Neth argues that the cultoral norm should be interposed on the judiciary, evidence of true expertise is required, as well as evidence of the course of the custom and its application to traditional and contemporary society.

asked not to determine the constitutional provisions for they are not issues properly before this Court to construe. In his motion in opposition to Motion for Judgment on the Pleadings and Motion for Summary Judgment, Lt. Governor Neth states at page 12, "The very broad issue of whether or not the Governor may withdraw the nominations is not before the court. Based on the discussion under (a) above, this court need not go further because the Lieutenant Governor as Acting Governor, has the authority [to] make those appointments and the Governor cannot rescind or the Legislature may not disregard such appointments on the ground that the Lieutenant Govenor does not have the authority to make them." On the other hand, Governor Pangelinan argues that, "Since the only issue raised in Neth's Complaint is whether Pangelinan has the authority to withdraw Neth's nominations, it is unnecessary to discuss the entire scope of Neth's powers when Pangelinan is offisland."

The fact is, the questions involving the extent of the powers of the Lieutenant Governor as Acting Governor when the Governor is absent from Pohnpei or is incapacitated, including the power to make appointments or nominations to positions requiring advice and consent of the Pohnpei

Legislature, as well as the power of the Govrnor to withdraw or rescind such nominations, provided under Article 9, Section 6(2) of the Pohnpei State Constitution are laid before this Court for declaration. Neither question may be avoided, because, as stated earlier, the power of the Lieutenant Governor functioning as Acting Governor under Article 9, Section 6(2) of the Pohnpei Constitution has no effect upon the power of the Governor to withdraw or rescind such nominations. They are properly before this Court for declaration.

At the outset, it is important to note that in constructing provisions of the office of the Governor in the Pohnpei State Constitution, the framers stated that it is crucially necessary that the functions of the Governor be carried on unceasingly in order to consistently run the affairs of the state. So they stated, "Pwukoa en apwapalih kosonned oh kolokol meleilei udahn pahn kin mihmi rehn Kepina nan awa (24) riesekpahieu nan rahn ehu oh rahn (7) isuh nan wihk kan koaros erein eh mwehi en Kepina eh pahn imwisekla." Which is to say that functions in the enforcement of laws and the maintenance of peace and tranquility repose in the Governor twenty four (24) hours a day and seven (7) days every week until the expiration of

the term of the Governor. Standing Committee Report No. 81, Pohnpei State Constitutional Convention. It is on this premise that the framers saw fit to assure continuity of services in the office of the Governor, even when the Governor shall be absent from Pohnpei or is incapacitated. It is on this premise that the executive powers of the Government of Pohnpei was written into the Constitution.

The powers of the Governor and the Lieutenant Governor of the Government of the State of Pohnpei trace back to the Pohnpei State Constitution. These are the executive powers of the Pohnpei State Government as enshrined in Article 9 of the Pohnpei State Constitution. These powers are specifically delineated to the Governor and to the Lieutenant Governor. As regards the powers of the Governor, Article 9, Section 1 reads,

It is in these words of Article 9, Section 6(2) that we must search to find the answers to the questions before us. This Court has carefully and thoroughly searched the meaning of these words which the framers of the the Pohnpei State Constitution elected to employ in this section, and as we are asked by the parties to adopt. In doing this, we are mindful that the Pohnpei State Constitution was drafted and submitted to the people for ratification in its Pohnpeian

language. This Court is mindful that there is an English version of the Pohnpei State Constitution. This Court is also mindful that it has previously held that in searching for the true meaning of the provisions of the Constitution, the two versions must be read together. Pohngei State v. Hawk, 2 P.S.Ct.R 164, 178 Thus, the Pohnpeian version Art. 9, Section 6(2) of the Constitution reads,

"Keriau en Kepina pahn kin weliandi Kepina ni ahnsou me Kepina sohte mie Pohnpei de ni ahnsou me Kepina sohla kak wig ah pwukoah doadoahk. Pwihn en Kou Kosonned pahn koasoanehdi, sang ni kosonned, wiepeh kan me pahn kasalehda ma aramas emen sohlahr kak wia ah pwukoah doadoahk."

A great part of argument focus on the meaning of the term "absent" from Pohnpei, as intended by the framers of the Constitution. As discussed ante, Lt. Governor Neth urges this Court to hold that "absent from Pohnpei" means "physically absent from Pohnpei . That once the Governor

leaves Pohnpei, without regard to length of absence or ability to perform, he is "absent" from Pohnpei. Governor Pangelinan however, urges the Court to hold a more liberal view, that a temporary departure from Pohnpei does not render the Governor "absent" and unable to fulfill his duties. This is to say that if the "absence" takes it entirely out of the range of possibility for the Governor to exercise any control over the affairs of state, known as "effective absence", then the Governor is deemed "absent from Pohnpei," and the Lieutenant Governor becomes ActingGovernor.

In examining the versions of the Constitution, this Court concludes that it cannot agree with the urgings of Governor Pangelinan. The term "absent" is in the Pohnpeian version of the Constitution, "sohte mie Pohnpei." "Sohte mie" means not physically present. This leaves no doubt that the framers did not intend that "absent" would be premised on inability of the Governor to perform his duties. We hold therefore that the term "absent from Pohnpei" means "physically absent from Pohnpei." The meaning of the word is clear and needs no construction.

limits to whatever is delegated by the Governor or as may be prescribed by statute. But the section pertains the Lieutenant Governor. The section does not pertain the Lieutenant Governor when he becomes Acting Governor. It is Section 6(2) of Article 9 that grants power of the Governor to the Lieutenant Governor, functioning as Acting Governor. Article 9, Section 6(2) is clear. Article 9, Section 6(2) does not enlarge or limit the power of the Acting Governor. But it devolves all powers of the Governor upon the Lieutenant Governor as Acting Governor, when the Governor is absent from Pohnpei, or is incapacitated. Under a constitutional provision providing that the Lieutenant Governor shall act as Governor during the absence from State of the Governor, the Lieutenant Governor has authority to exercise all gubernatorial powers. of appointment while the Governor is physically absent from state. Petition of Commission on Governorship of California, 603 P 2d 1357.

2. As to the power of the Governor to rescind nominations made by the Lieutenant Governor as Acting Governor pursuant to Article 9 Section 6(2) of the Pohnpei State Constitution. It may rightly be assumed that certain acts of the Lieutenant Governor, functioning as Acting Governor will not be completed before the Governor returns

ipso facto to the State. When that happens, the Governor assumes all powers which constitutionaly reside in him. The question is thus, whether the Governor has power to withdraw or rescind nominations made by the Acting Governor. Governor Pangelinan argues that on the basis that Article 9, Section 10 of the Constitution providing that the chief officers of the executive departments and other executive agencies shall serve at the pleasure of the Governor, that such officers may be removed by the Governor, the Governor has power to withdraw or rescind nominations. In the view of this Court, Section 10 gives the Governor the power to "remove" officers. Section 10 does not however give the Governor power to "withdraw" or "rescind" nominations. "Removal" from office and "rescinding" nomination are distinguishable. Removal from office contemplates that the person to be 16 removed has been vested with right to office. Petition of Commission on Governorship, Id. Removal from office takes place after title to the office has become vested in the appointee. Layne v. Haves, 141W Va 289, 90 SE2d 270. This Court find it reasonable, and therefore adopts the holding in the Petition of Commission of Governorship, Id. that even though the submission of names for confirmation by the Legislature completes the gubernatorial action necessary for

an appointment, it does not complete the appointive process or confer even an interim right in the appointee or nominee to assume office. Under these circumstances, the Governor, fully charged with the executive functions of the State, may withdraw appointments of the Acting Governor, and for that matter, his own nominations. Id. That power rests with the Governor until the Legislature confirms the nomination. Once confirmed, the power to withdraw or rescind ceases, because right to office inures in the appointee. At that point, the appointee may lose office only by removal, a procedure provided elsewhere in the Constitution. See Article13, Section 6, Pohnpei State Constitution.

Lt. Governor Neth argues, and supports with affidavit that, "Sohte ohl kin kangala ah mwus" is a custom of the people of Pohnpei. The argument and affidavit fail to prove the existence of such custom in Pohnpei. It is common knowledge that in the traditional holdings of title (mwar), the chiefs are possessed with the power to confer and to take away traditional titles from their subjects. Such custom is not "kangala mwus" on the part of the traditional chiefs, but is established practice and custom.

1. Article 9, Section 6(2) of the Pohnpei State Constitution gives to the Lieutenant Governor of the Government of the State of Pohnpei, as Acting Governor, unlimited authority to exercise full powers of the Governor, including the power to make appointments or nominations, when the Governor is absent from Pohnpei.