By Joyce McClure
FSM court steers clear of Yap's political row, denies Falan's plea for injunction
The FSM Supreme Court on Tuesday denied the injunctive relief sought by Yap’s ousted governor, Henry S. Falan, stating that impeachment is a political matter and not a judicial issue.
Falan filed the court action on Dec. 20, seeking a reversal of the Yap State Legislature’s move to boot him out of office.
Associate Justice Larry Wentworth responded to Falan’s petition six days after Jesse Salalu was sworn in as Yap’s new governor.
“Governor Falan is still pursuing this matter to the end,” said Marstella E. Jack, a Pohnpei-based attorney who is representing Falan.
“The denial of the injunction doesn’t end the case because we are challenging the constitutionality of the Yap State Removal Procedures Act,” she said. “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.”
The motion states that the Yap State Constitution “does not prescribe for the manner in which a removal proceeding is to be enforced, other than the grounds upon which the official may be removed.”
Under the Yap State Code, an official being removed from office “shall have the right to counsel, the right to present testimonial and documentary evidence and to confront witnesses.”
However, that due process was not afforded to Falan, according to Jack, during the closed-door hearing held on Oct. 15 in which Falan was called as the sole witness to explain his Sept. 16 executive order to close the attorney general’s office.
Jack wrote in the motion, “At the commencement of the hearing, (Falan) was specifically advised that he would be the only one allowed to speak. No one else was allowed to speak, not even Falan’s counsel.”
Jack alleged that the legislature’s Committee of the Whole, as the investigating committee, “violated (Falan’s) due process rights by preventing him from calling witnesses or presenting evidence at the hearing.”
According to Jack, “This seriously threatened the integrity of the results of the hearing.”
Jack also cites the FSM Constitution as “the supreme law of the land and therefore, Yap State Constitution, as a state government authorized under the FSM Constitution, shall have laws that are consistent with the provisions of the FSM Constitution.”
Jack’s first motion for a temporary restraining order or TRO was filed on Dec. 21. It was denied by the court two days later. On Dec. 27, two days before Salalu was to be sworn into office as governor by the chief justice, Jack filed an amendment to the TRO motion “to enjoin (the legislature) or anyone acting in concert with (them), from officially removing (Falan) as Governor of the State of Yap until this matter is disposed of.”
The FSM Court, she argued, has already established in previous cases that impeachment is only a preliminary step to the removal of a person from public office.
In Pohnpei, the Constitution provides that the legislature investigates and adopts a resolution while the court, through the appointment of a panel and the recruitment of a special prosecutor, prosecutes the allegations through a trial.
“None of that has occurred in this instant,” Jack said. “The legislature basically accused the Governor and then adjudged him guilty without due process.”
“There needs to be a trial on the allegations listed in the removal resolution,” said Jack. “Offenses need to be impeachable in order for an official to be found guilty. The Governor closed the AG's office as part of his executive authority to manage the executive branch. That is not misfeasance nor malfeasance. That is why we need a trial to determine whether closure of the AG's office for a temporary period is an impeachable offense.”
If the Committee of the Whole “had allowed the governor to call his witnesses or present evidence, the result of the hearing would most likely have been different,” Jack stated in the motion.
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In addition to the violation of due process, the motion cites injunctive relief as a cause for action based on “the immediate threat of irreparable harm and injury (to Falan) as a result of the actions of the (legislature).” According to the Yap State Removal Procedures Act, once an official receives notice of removal, not only can he “not exercise the powers and duties of the office,” but he is also no longer allowed to receive a salary.
The FSM Constitution states that “A person may not be deprived of life, liberty, or property without due process of law…” The governor’s employment and salary are recognized under FSM law as “properties.”
Jack cites case law in the motion supporting that the taking of employment and salary as property without due process is unconstitutional.
The court did not rule immediately on the second request for TRO, prompting Jack to file another amended motion for an expedited hearing on Dec. 29 in a further attempt to delay the swearing-in of Salalu. The filing was received by the clerk at 10:04 a.m. The swearing-in began at 10 a.m. in the governor’s conference room. The denial was issued on Jan. 4.