FSM SUPREME COURT TRIAL DIVISION
CIVIL ACTION NO. 2014-028

ELPINA LUHK, representative of the Estate of Bensis Neth,
Plaintiff,
vs.

SODER ANTHON, individually and in his official capacity the Speaker of the Kitti Isokohnedi, TONY SARAPIO, individually and in his official capacity as the Luhkenmoanlap of the Kitti Municipal Government, KITTI MUNICIPAL GOVERNMENT, and other council members ofthe Kitti Isokohnedi,
Defendants.
_____________________________________________

ORDER RULING ON LIABILITY FOR FEES AND COSTS

Larry Wentworth
Associate Justice

Hearing:  October 2, 2018
Decided:  October 3, 2018

APPEARANCES:

For the Plaintiff:	Salomon M. Saimon, Esq. (motion)
Directing Attorney
Danally Daniel, Esq. (hearing)
Micronesian Legal Services Corporation
P.O. Box 129
Kolonia, Pohnpei FM 96941

For the Defendants:	Marstella E. Jack, Esq.
P.O. Box 2210
Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure - Motions - Unopposed
The failure to oppose a motion is, by rule, deemed a consent to the motion, but even then, the court still needs good grounds before it can grant the motion.  Luhk v. Anthon, 22 FSM R. 69, 70 (Pon. 2018).

Civil Rights - Acts Violating; Constitutional Law - Due Process
A court’s long, unexplained delay or its failure to exercise its discretion within a reasonable time is an abuse of discretion that denies a right to procedural due process.  Luhk v. Anthon, 22 FSM R. 69, 70 (Pon. 2018).

Public Officers and Employees - Impeachment
Impeachment is only a preliminary step to the removal of a person from a public office, and for Kitti municipal offices, impeachment by the Kitti Legislature results in suspension from office and is preliminary to an impeachment trial before a different municipal tribunal, at which the impeached official is either convicted or acquitted of the charges in the articles of impeachment.  Luhk v. Anthon, 22 FSM R. 69, 71 (Pon. 2018).

Civil Rights - Remedies and Damages; Constitutional Law - Due Process
Procedural due process is a constitutional civil right covered by 11 F.S.M.C. 701.  When the right to procedural due process has been violated and there are no provable, actual damages (thus the damages are only nominal), it is a civil rights violation for which attorney’s fees and costs may be awarded.  Luhk v. Anthon, 22 FSM R. 69, 71 (Pon. 2018).

Civil Rights - Remedies and Damages
Since a plaintiff’s civil rights cause of action survives the plaintiff’s death, the original plaintiff’s estate may maintain his claim after his death.  Luhk v. Anthon, 22 FSM R. 69, 71 (Pon. 2018).

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COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

On October 2, 2018, this came before the court to hear the pending motions.  No one appeared for the defendants.  Plaintiff’s counsel, Danally Daniel, appeared and noted that the defendants had not filed an opposition to either the plaintiff’s June 14, 2018 Brief on Civil Rights or to the plaintiff’s December 7, 2017 Motion to Determine that Civil Rights Laws Are Violated and Further Allowing Request to be Filed for Attorney’s Fees and Costs.

Counsel submitted the pending motions on the papers.  The failure to oppose a motion is, by rule, deemed a consent to the motion.  FSM Civ. R. 6(d).  But even then, the court still needs good grounds before it can grant the motion.  Senda v. Mid-Pacific Constr. Co., 6 FSM R. 440, 442 (App. 1994).

The issue that the plaintiff’s motions put before the court is whether the defendants’ liability to the plaintiff is based on a civil rights cause of action because, if it is, then the plaintiff intends to submit a request for attorney’s fees and costs as authorized by 11 F.S.M.C. 701(3).

Bensis Neth’s unresolved claims are based on the Kitti Municipal Court appellate division never having considered, heard, or decided his appeal from a conviction in the Kitti Municipal Court trial division.  A court’s long, unexplained delay or its failure to exercise its discretion within a reasonable time is an abuse of discretion that denies a right to procedural due process.  Damarlane v. Damarlane, 19 FSM R. 97, 105 (App. 2013); In re Certification of Belgrove, 8 FSM R. 74, 78 (App. 1997). Such failure to exercise discretion is arbitrary and capricious, and thus an abuse of discretion.

The court’s previous order also determined that Neth’s right to procedural due process was violated.  Previously Neth asked:

the court 
to rule that he has been deprived of his constitutional right to due process because, while he was impeached by the Kitti Legislature (Isokohnedi) in 2014, he has not yet been tried [by] a Kitti Special tribunal, so that he has not yet been either convicted or acquitted of the specifications in the articles of impeachment.

Order Granting Partial Summ. J. at 1 (Pon. Aug. 9, 2017).  The court ruled that:

It is well established that impeachment is only a preliminary step to the removal of a person from a public office and it is further established that for Kitti municipal offices, impeachment by the Kitti Legislature results in suspension from office and is preliminary to an impeachment trial before a different municipal tribunal, at which the impeached official is either convicted or acquitted of the charges in the articles of impeachment.  See In re Removal of Joel, 2 Pon. Sup. Ct. R. 358 (App. 1987).

All parties acknowledged that Neth, although he has been impeached by the Kitti Legislature, he has not yet been tried on the specifications of the articles of impeachment.  The court must therefore conclude that proper grounds exist for the court to grant summary judgment that plaintiff Bensis Neth has not received the process due him - an impeachment trial.

Order Granting Partial Summ. J. at 1-2 (Pon. Aug. 9, 2017).  The plaintiff now contends that Neth’s property rights were violated in addition to his rights to procedural due process.  The reason given for this assertion is that, if Neth’s property rights were violated, then he is entitled, under 11 F.S.M.C. 701(3), to an attorney’s fees and costs award.

The court, however, does not need to decide that assertion in order for the plaintiff to obtain the relief sought.  Procedural due process is a constitutional civil right covered by 11 F.S.M.C. 701.  When the right to procedural due process has been violated and there are no provable, actual damages (thus the damages are only nominal), it is a civil rights violation for which attorney’s fees and costs may be awarded.  Robert v. Simina, 14 FSM R. 438, 444-45 (Chk. 2006).  Therefore, Neth would be entitled to an attorney’s fees and costs award.

Since the inception of this suit, the named plaintiff, Bensis Neth, has died.  His civil rights claim is made by the current plaintiff, Elpina Luhk, the court-appointed representative of his estate.  Since a plaintiff’s civil rights cause of action survives the plaintiff’s death, Herman v. Municipality of Patta, 12 FSM R. 130, 135 (Chk. 2003), Bensis Neth’s estate may maintain this claim.

Accordingly, the court will enter a judgment for nominal damages of $1 plus reasonable attorney’s fees and costs.  Now therefore it is hereby ordered that the plaintiff shall file and serve, no later than October 23, 2018, the plaintiff’s request for attorney’s fees and costs.  The defendants will have until November 6, 2018, to respond to the plaintiff’s submission.

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