FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite case as Udot Municipality v Federated States of Micronesia, 9 FSM Intrm 418 (Chk. 2000)

UDOT MUNICIPALITY,
Plaintiff,

vs.

FEDERATED STATES OF MICRONESIA,
DEPARTMENT OF FINANCE AND ADMINISTRATION
FOR THE FEDERATED STATES OF MICRONESIA,
MAYOR LIWIS OS in his capacity as MAYOR OF
POLLE MUNICIPALITY, TOLENSOM AUTHORITY,
JAMES FRITZ, in his capacity as EXECUTIVE
DIRECTOR OF CHUUK STATE COMMITTEE ON
IMPROVEMENT PROJECTS,
Defendants.

_________________________________________________

CIVIL CASE NO. 2000-1018

PRELIMINARY INJUNCTION AND MEMORANDUM OF DECISION

Richard H. Benson
Associate Justice

Argued: June 21, 2000
Decided: June 23, 2000
Memorandum Entered: June 27, 2000

APPEARANCES:

For the Plaintiff:
Stephen V. Finnen, Esq. (brief)
Salomon Saimon, Esq. (argued)
Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941

For the Defendants (Os & Fritz):
Wesley Simina, Esq.
P.O. Box 94
Weno, Chuuk FM 96942

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HEADNOTES

Constitutional Law - Legislative Powers
The Constitution gives Congress the authority to appropriate public funds. Udot Municipality v. FSM, 9 FSM Intrm. 418, 420 (Chk. 2000).

Constitutional Law - Executive Powers
Under our Constitution the Executive Branch is expressly delegated the power to faithfully execute and implement all national laws. Udot Municipality v. FSM, 9 FSM Intrm. 418, 420 (Chk. 2000).

Separation of Powers
When a Senator tells a public agency what projects are approved and the agency then carries out his decisions, it is Congress, not the executive, that is executing and implementing the public law. Udot Municipality v. FSM, 9 FSM Intrm. 418, 420 (Chk. 2000).

Constitutional Law - Executive Powers; Separation of Powers
Specific powers are given to each branch of the government. When Congress is executing and implementing a national law, a power expressly delegated to the executive branch, it abridges the executive's power to execute and implement national laws. Udot Municipality v. FSM, 9 FSM Intrm. 418, 420 (Chk. 2000).

Civil Procedure - Injunctions
Four factors are considered to determine if an injunction is proper: the relative harm to the defendant and to the plaintiff, the likelihood of success on the merits, the public interest and (often stated first) the threat of irreparable harm to the plaintiff. Udot Municipality v. FSM, 9 FSM Intrm. 418, 420 (Chk. 2000).

Civil Procedure - Injunctions
A preliminary injunction will issue when it is difficult to say that the defendants are harmed by requiring them to withhold action on the unconstitutional application of a public law, when it appears likely that the plaintiff will succeed on the merits at trial, when the public has a great interest that the national government adhere to divisions of political power set forth in the Constitution, and when the plaintiff has shown irreparable harm. Udot Municipality v. FSM, 9 FSM Intrm. 418, 420 (Chk. 2000).

Civil Procedure - Injunctions
Irreparable harm for the purpose of issuing an injunction may be found when, although there is no immediate or certain loss to the plaintiff if a preliminary injunction is denied, if an injunction is not issued all the remaining funds may be obligated without any limitation. So the irreparable harm is that the plaintiff does not have the opportunity of possibly obtaining any of the unobligated funds. Thus, when the other three factors clearly tend towards the issuance of the injunction and to deny the preliminary injunction would be to tell the plaintiff that it must apply and get any appropriations that it can by following unconstitutional steps, the preliminary injunction will issue. Udot Municipality v. FSM, 9 FSM Intrm. 418, 420 (Chk. 2000).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

The Motion for Preliminary Injunction, filed May 26, 2000, was heard on June 21, 2000. The motion was granted and reasons given from the bench on June 23, 2000. This Memorandum of Decision memorializes that June 23, 2000 Order.

The motion spoke to three public laws: Public Law No. 10-69, as amended by Public Law 11-29, and Public Law No. 11-27. Public Laws No. 10-69 and 11-29 clearly appropriate funds to the two municipalities named, Polle and Tolensom. There is no showing otherwise. So, the motion is denied as to Public Laws Nos. 10-69 and 11-29. The phrasing is quite different in the third, Public Law No. 11-27, which appropriates $650,000 to Election District No. 4, Faichuk, comprising eight municipalities.

In early 2000, the plaintiff learned of Public Law No. 11-27. On April 27, 2000, the Mayor of Udot wrote to the Executive Director of the Chuuk State Committee on Improvement Projects asking for an accounting of funds already spent and for forms in order to seek disbursement. On May 3rd, he received a response. The Executive Director said that he had no obligation to give an accounting and told him to ask Congress or the FSM Secretary of Finance and Administration for an accounting because he is required to report to those instrumentalities. As far as asking for disbursement, the Executive Director said to ask the Senator representing Election District No. 4. The Executive Director testified that that Senator tells him what projects are approved. He testified that is the system and that is the procedure - you apply to the Senator representing Election District No. 4 and then I carry out his decisions.

I find that this is in violation of the Constitution. The Constitution gives Congress the authority, as far as this particular matter is concerned, to appropriate public funds. FSM Const. art. IX, § 3(a). There is no question that 11-27 appropriates public funds. It is helpful to think of there being a separation, the appropriation and the manner of obligating funds. Under our Constitution the Executive Branch is expressly delegated the power "to faithfully execute and implement . . . all national laws." FSM Const. art. X, § 2(a). Public Law No. 11-27 is a national law. I find that Congress, not the executive, is executing and implementing Public Law No. 11-27. Other than the senator's involvement in choosing and approving projects, the Commission is also suspect. Public Law 10-109, section 801 (to be codified at 55 F.S.M.C. 801), states in part "A majority of the mayors of the district, after consulting with the member of Congress of the Federated States of Micronesia representing that district, shall select a person from within the district to represent the district on the CSCIP." Thus the mayors must consult the member of the very body from which they receive the appropriation. This circumstance is further evidence that Congress is executing and implementing this national law, a power expressly delegated to the executive branch. For that reason, I find that Public Law No. 11-27, as applied, violates the FSM Constitution. Specific powers are given to each branch of the government. Public Law No. 11-27 abridges the executive's power to execute and implement national laws. Because of that conclusion, it is proper that a preliminary injunction issue if the requirements for an injunction are also met.

Four factors are considered to determine if an injunction is proper: the relative harm to the defendant and to the plaintiff, the likelihood of success on the merits, the public interest and (often stated first) the threat of irreparable harm to the plaintiff. It is difficult to say that the defendants are harmed by requiring them to withhold action on the unconstitutional application of a public law. It presently appears likely to me that the plaintiff will succeed on the merits at trial. The third factor is the public interest. The public has a great interest that the National Government adhere to divisions of political power set forth in the Constitution.

The problem in this case is whether irreparable harm is threatened. There is no immediate or certain loss to the plaintiff if a preliminary injunction is denied. However, if an injunction is not issued, the Executive Director is free, at least during the pendency of this action, to obligate all the remaining funds without any limitation. So the harm, although not certain, is that Udot does not have the opportunity during that period of possibly obtaining any of the unobligated balance of the $650,000.00. That is the irreparable harm. The other three factors clearly tend towards the issuance of the injunction. To deny the preliminary injunction would be to tell the plaintiff that it must apply and get any appropriations that it can following these unconstitutional steps.

The preliminary injunction will therefore issue.

I read the Response to the Motion from the Federated States of Micronesia and the Department of Finance and Administration in this way: that if I find that an injunction is appropriate, they suggest certain terms. The plaintiff finds those terms acceptable. I agree.

It is therefore ordered that the FSM and the Department of Finance and Administration, during the pendency of this action, are enjoined from disbursing any unobligated funds appropriated for Chuuk Election District No. 4 remaining under Public Law No. 11-27.

It is further ordered that the Executive Director of the Chuuk State Commission on Improvement Projects and the Chuuk State Commission on Improvements Projects itself, during the pendency of this case, are enjoined from approving any further obligations against funds appropriated by Congress under Public Law 11-27 for Chuuk Election District 4.

No security will be required. Any security would be to cover costs and damages to the Executive Director if it were found that he had been wrongfully enjoined. I cannot see how there would be any. The appropriation does not lapse for over a year. The case will surely be decided before then.