POHNPEI SUPREME COURT TRIAL DIVISION Cite as People of Kapingamarangi v. Pohnpei Legislature, 3 FSM Intrm. 5 (Pon. S. Ct. Tr.

1985) [3 FSM Intrm. 5]

PEOPLE OF KAPINGAMARANGI BY AND THROUGH THEIR AGENT, THE CHIEF MAGISTRATE BILIMON GEORGE et al., Petitioners, v.
[3 FSM Intrm. 6]

THE POHNPEI LEGISLATURE BY AND THROUGH ITS AGENT, THE SPEAKER SALTER ETSE, et al., Respondent.
OPINION Before Judah C. Johnny Associate Justice Pohnpei State Supreme Court February 4, 1985 APPEARANCES: For the Petitioners: James P. Hagerstrom Attorney-at-Law Kolonia, Pohnpei 96941 Michael J. Berman Attorney-at-Law Kolonia, Pohnpei * * * *

For the Respondents:

96941

COURT'S OPINION JUDAH C. JOHNNY, Associate Justice: This matter came regularly before me on December 11, 1985 in Kolonia, the State of Pohnpei, for hearing on the Respondents' motion to dismiss. Appearances were Mr. James P. Hagerstrom, Esq., for petitioners and Mr. Michael J. Berman, Esq., for respondents.

This matter commenced in this Court with the filing by the petitioners of an application for a prerogative writ of mandamus against the respondents. BACKGROUND The framers of the Pohnpei State Constitution incorporated into the State Constitution a system which requires that revenues of the State Government will be shared with the local municipal and town governments. In part, they wrote into article 11, section 3: [3 FSM Intrm. 8] Not less than thirty percent of all taxes received by the Government of Pohnpei shall be appropriated to the local governments for development projects and operations identified in local plans. The State Constitution was ratified by the people, and took effect in the State on November 8, 1984. Since its ratification, the State has, by legislative enactments, operated on two annual budgets - fiscal year 1985 and 1986 budgets. Petitioners in this matter contend that by the choice of the term "shall" as used in the revenue sharing clause, section 3, supra, the Legislature is given a nondiscretionary mandate to enact annual budget laws which will send not less than 30% of all tax revenues to the municipalities and town. Petitioners contend that while the State Legislature did provide certain funds to the local governments in the form of municipal aid funds, the proportion has been far less than the 30% guaranteed by the Constitution. The Legislature has therefore failed and has continued to fail to carry out its constitutional mandate. The petition is therefore brought to the Court to issue a prerogative writ of mandamus, which will order and command the State Legislature to enact a budget law and provide for the not less than 30% revenue sharing clause. Respondents have timely answered. In addition, respondents have moved for dismissal. This hearing is on that motion. The fundamental question before this Court presented by the motion to dismiss is whether this Court has jurisdiction to direct the state legislative body by mandamus to enact a law. Counsel have both ably argued on the doctrine of separation of powers, and checks and balances. I cannot help but sympathize with the plea of the petitioners. They believe that they are not getting the 30% revenue money guaranteed to them by the Constitution in the midst of their perpetual financial crisis. They have demanded, and the State Legislature has responded, with what they view to be lack of concern. They now turn to the Court for a judicial mandate, pleading checks and

balances - if the legislature refuses and fails to perform its duties mandated by the Constitution, then in accord with the philosophy of checks and balances, the Court may require that the legislature so act as mandated. I sympathize with their plight. The Pohnpei State Constitution was established under the authority granted by article VII of the Constitution of the Federated States of Micronesia. Section 2 of that article reads, "A state shall have a democratic constitution." It is on that premise that the members of the Pohnpei State Constitutional Convention were mandated by Pohnpei State Law No. 2L-131-82, [3 FSM Intrm. 9] "to draft a constitution for the government of the State of Ponape ... [which] ... shall make adequate provisions for the exercise of legislative, judicial and executive functions, and shall guarantee to all citizens of the State, a democratic form of government...." Id. § 9. In conformity with its mandate, the Constitutional Convention therefore established the three branches of government as enumerated in articles 8 - legislative, 9 - executive and 10 - judicial departments. To each of these great departments or branches, the framers vested powers and functions, which are distributed similar to the distribution of powers and functions in the United States Constitution. To the legislature was vested the power to legislate on all rightful subjects of legislation. In Committee Report No. 85, the framers wrote that the power to enact laws vests in the legislative branch and in the people. In no other forum is vested the power to legislate. A characteristic feature, and one of the cardinal and fundamental principles of the Pohnpei State Constitutional system, is that the governmental powers are divided among the three departments of this government, the legislative, executive, and judicial, and that each of these is separate from the others. The principle of separation of the powers of this government operates in a broad manner to confine legislative powers to the legislature, executive powers to the executive department, and those which are judicial in character to the judiciary. The legislature is to pass laws; the executive is to approve and execute them; and the judiciary is to expound and enforce them. The constitutional distribution of the powers of government was made, as mandated by the State law, supra, on the assumption by the people that several departments would be equally careful to use the powers granted for public good alone. Thus, the doctrine is that none of the several departments is subordinate, but that all are co-ordinate, independent, coequal, and potentially coextensive. The true meaning of the doctrine of separation of powers is that the whole power of one department should not be exercised by the same hands which possess the whole power of either of the other departments, and that no department ought to possess directly or indirectly an overruling influence over the others. This separation of powers of government is fundamental to the very existence of a constitutional government as is established for the State of Pohnpei. This division of governmental powers into executive, legislative, and judicial represents the most important principle of

government declaring and guaranteeing the liberties of the people, and preventing the exercise of autocratic power. it is a matter of fundamental necessity, and is essential to the maintenance of this republican form of government. The framers of the Pohnpei State Constitution, in adopting a constitution similar to that of the United States of America, regarded the checks and balances that they built into the constitution as a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the others. By the mutual checks and balances by and among the branches of this government, democracy undertakes to preserve the liberties of the people from excessive concentrations of authority. The accumulation of all powers, legislative, executive, and judicial, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, [3 FSM Intrm. 10] may justly be pronounced the very definition of tyranny. This independence of separate branches guarantees that each branch has exclusive cognizance of the matters within its jurisdiction, and is supreme within its own sphere, and none has the right to invade the sphere of operation of either of the others. In the exercise of their powers assigned to them severally, the branches shall operate harmoniously and independently of each other, and the action of any one of them in the lawful exercise of its own powers is not subject to control by either of the others. Under the system of constitutional government which has been adopted for the State of Pohnpei, among the most important functions entrusted to the judiciary are the interpretation of the constitution and, as a closely connected power, the determination of whether laws and acts of the legislature are or are not contrary to the provisions of the constitution. The judicial powers include the important function of preventing departmental encroachment, such as marking out the boundaries of each department and remedying the invasions by any department on the territory of the other. When called on to review and control the acts of an officer of a coordinate branch of the government, however, the Court should proceed with extreme caution, and the right to exercise the power should be manifestly clear. This Court should constantly be wary not to entrench upon the prerogatives of other departments of this government or to arrogate to itself any undue powers, lest it disturb the balance of power. It is under this principle that I must address the issues now before me. Before me is the application to the Court to issue a prerogative writ of mandamus. There is no question that this Court has the power to issue a prerogative writ of mandamus. The question, however, is whether this Court has power to issue such writ "directing and commanding the Legislature and the Legislators to forthwith enact legislation appropriating not less than thirty percent of all taxes received by the government of Pohnpei ... and to admonish them of

the continuing duty which the Constitution mandates to enact appropriations each year." The respondents have raised a jurisdictional question through their motion to dismiss, and I must consider that before proceeding to the merits of the case. As it is, this is an issue of first instance before this Court. In resolving the issue, I must look beyond our own prior experiences for guidance. obviously, the common law rule and precedents in the United States courts are closest to ours and I shall look to them in determining this jurisdictional issue. At common law, the writ of mandamus did not issue to Parliament. It is established in the United States that in view of the separation of the judicial and legislative departments, each being independent of the other, mandamus will not issue to compel a state legislature or its officers to exercise its legislative functions, or to control its action with respect to duties involving the exercise of discretion. Thus, a state legislature may not be compelled by mandamus to enact a law, even though the constitution expressly commands it. 52 Am. Jur. 2d Mandamus § 131. Numerous cases are cited by the respondents in support of their motion to dismiss. Only to cite [3 FSM Intrm. 11] a few, in Jones v. Freeman, 146 P.2d 564 (Okla. 1943) where petitioner brought an application for a writ of mandamus to test the validity of various legislative apportionments in the Supreme Court of Oklahoma, 1943, the court denied the application and noted that it was without power by mandamus or otherwise to require the Legislature to enact proper apportionment statutes as required by the Constitution. In State v. City of Longview, 399 P.2d. 1 (Wash. 1965), a petition by firemen for a writ of mandamus to compel the city council to levy two mills and to place revenue therefrom in the firemen's pension fund, the Supreme Court of Washington, in affirming the court below, held that mandamus would not lie to compel a legislative body to perform discretionary functions in a particular manner, absent evidence of arbitrary or capricious conduct. For further reading on the power of the judiciary in mandamus on the question of separation of powers, see Lamson v. Secretary of the Commonwealth and Gibbs v. Secretary of the Commonwealth, 168 N.E.2d 480 (Mass. 1960); City of Wakaponeta v. Helping, 19 N.E.2d 772 (Ohio 1939); City of Miami Beach v. Lincoln Invs., Inc., 214 So.2d 496 (Fla. Dist. Ct. App. 1968); Torrance v. City of Shreveport, 93 So.2d 188 (La. 1957); Mihocka v. Zeigler, 274 N.E.2d 583 (Ohio Ct. C.P. 1971); Hogan v. Holt, 151 A. 1 (R.I. 1930). Another case in point is Fergus v. Marks, 321 Ill. 510, 152 N. E. 557, 46 A.L.R. 960 (1926), which was an application by petitioner for a writ to compel respondents as members of the General Assembly to meet and apportion the state into senatorial districts in accordance with a provision of the Constitution of the State of Illinois. The court held that mandamus will not lie to compel the legislature to perform its constitutional duty to reapportion the state into

legislative districts. The following annotation at 679, supra, goes on to say that from the very nature of legislative power, its exercise in a particular case must depend upon the volition of the legislature. Responsibility to a constituency and a sense of public duty are the only incentives which can prompt legislative action, citing Saint Joseph Board of Public Schools v. Patten, 62 Mo. 444 (1876). Let no man misconstrue the principle of separation of powers in the form of the Pohnpei State Constitutional government. This separation of powers principle, as it relates to the legislative and judicial departments, does not limit the power of the Court to determine constitutionality of statutes. It is a principle of our constitutional law that the courts have inherent authority to determine whether statutes enacted by the legislature transcend the limits imposed by the constitution and to determine whether laws are or are not constitutional. It is within the special province and duty of the courts and the courts alone, to say what the law is, and to determine whether a statute or ordinance is constitutional. See 16 Am. Jur. 2d Constitutional Law § 150. However, I will not expound on this principle at this time because it is not the question raised by the motion to dismiss. Additionally, mandamus may be resorted to only for the purpose of enforcing the performance of legal duties of a public nature, which arise from an office, station, or trust and are ministerial in character.See 52 Am. Jur. 2d Mandamus § 73. The Act petitioners seek from the legislature in the instant case is not ministerial, but one of discretion, to enact a law. Therefore, based on all of the foregoing discussion, I must agree with [3 FSM Intrm. 12] the respondents that insofar as the relief sought by the petitioners is for us to direct by mandamus to the Pohnpei State Legislature to enact a budget act to include the thirty percent local government share of State revenues, I find this Court has no jurisdiction. Accordingly, the motion is granted and this matter is, and the same hereby ordered dismissed.  

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