Ousted governor challenges impeachment; attorney assails flaws in Yap Constitution
By Joyce McClure
Former Yap Gov. Henry Falan has sued the 10th Yap State Legislature, challenging the body’s decision to remove him from office last year.
Falan’s attorney, Marstella E. Jack, filed the civil lawsuit with the FSM Supreme Court Yap Division on Monday.
Falan is seeking general and punitive damages in an amount to be determined at trial, including court costs, attorney’s fees and other relief to be decided by the court.
A copy of the complaint was hand-delivered to the 10th Yap State Legislature on Monday.
The complaint focuses on the legislature’s allegations of “misfeasance or malfeasance” against Falan, which resulted in an 8-2 vote in favor of impeachment. Falan was removed from office in December 2021.
The complaint states: “The Constitution does not prescribe for the manner in which a removal proceeding is to be enforced, other than the grounds upon which an official may be removed.”
However, the Yap State Code provides a section listing the requirements for removal.
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Under the Yap State Removal Procedures Act, an official facing removal from office has “the right to counsel, the right to present testimonial and documentary evidence and to confront witnesses.”
However, at the impeachment hearing on Dec. 16, Falan was specifically informed that he would be the “only one allowed to speak.” No one else would be allowed to speak, not even Falan’s legal counsel.
According to the complaint, the legislature’s gag order on Falan, “not only violated the plaintiff’s due process requirements afforded him through the Yap State Removal Procedures Act, but it also violated his due process rights protected under the FSM Constitution.”
“This seriously threatened the integrity of the results of the hearing,” Jack wrote. “Every witness at a hearing of an investigating committee may be accompanied by counsel of his own choosing, who may advise the witness as to his rights, subject to reasonable limitations which the committee may prescribe to prevent obstruction of or interference with the orderly conduct of the hearing.”
The Yap State Removal Procedures Act states upon issuance of a notice of removal, the official “shall not exercise the powers and duties of office and shall not receive a salary.”
“This essentially means that the official is removed without a trial to determine whether or not the plaintiff as governor is guilty of the allegations of misfeasance and malfeasance,” Jack wrote.
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Falan’s employment “as former governor of Yap and the salary were properties recognized under FSM law,” Jack argued, citing a landmark case in which the court held that government employment “is property within the meaning of Due Process Clause” that “cannot be taken without due process.”
“The Yap State Constitution,” Jack further noted, “as a state government organized under the FSM Constitution, shall have language that is consistent with the provisions of the FSM Constitution.”
“The Yap State Constitution also fails to provide for any due process procedures and is therefore unlawful and should be struck down as null and void,” she states in the civil suit.
The impeachment stemmed from Falan’s move to temporarily close the office of the attorney general in September due to the legislature’s refusal to approve the then-governor’s supplemental budget request that included the salaries of the two attorneys in that office.
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Despite the Finance Committee’s acknowledgment that the money was available, the attorneys were not paid for nearly two months due to the impasse. Falan said the legislature’s inaction exposed the state to possible human trafficking charges since the attorneys were foreign nationals.
The legislature held two votes, first in October and another in December.
The first vote on Oct. 19 to approve impeachment failed to garner the required 75 percent to impeach Falan with seven in favor and three opposed.
During the second proceedings on Dec. 16, Sen. Joseph B. Tiuchemal changed his vote, allowing the legislature to meet the required number that eventually resulted in Falan’s impeachment.
On Dec. 20, Jack filed a petition with the FSM Supreme Court seeking a reversal of the attempt to impeach Falan, but Associate Justice Larry Wentworth denied injunctive relief.
“The denial of the injunction doesn’t end the case because we are challenging the constitutionality of the Yap State Removal Procedures Act,” Jack said at the time. “The court may not be able to prevent an impeachment from occurring, but that doesn’t address the issue of the due process violation pertaining to the law upon which Falan was removed.”
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