Court Asks State To Offer Opinion On Santos Case
"Our view is that there is a defect in the Impeachment Law," says Acting AG, L.M. Bacalando"

January 11, 2007

The Kaselehlie Press

KOLONIA, Pohnpei - The Order came down from State Supreme Court Chief Judge Judah Johnny in the Impeachment case of AG Edwel Santos and the 6th Pohnpei Legislature. In what appears to be a slight twist in what might be called the Impeachment Events - Articles of Impeachment against AG Edwel Santos by the 6th PSL on November 24th, followed by a Counter Claim of Unconstitutionality by the AG on November 28th, then followed by a Motion to Dismiss the AG's lawsuit by the 6th PSL on December 29th - the Court has asked the AG's office for its own opinion on the 6th PSL's Motion to Dismiss the Santos lawsuit against it.

"Because the issue here involves (the) propriety of naming State as the defendant, but not the Pohnpei Legislature, it will be fair to invite (the) State to file a brief, now in capacity of amicus curiae," concludes Justice Johnny in his Order as the Court now must decide which way to rule on the Motion to Dismiss. Amicus curiae literally means friend of the court.

The Impeachment Scenario now sits beneath a layer of legal machinations: An Impeachment Resolution, which now sits stalled as a result of the Lawsuit of Unconstitutionality, which in turn hinges upon a counter Motion to Dismiss. The Legislature's counter motion gives four grounds upon which it rests its argument that the suspended AG's lawsuit against the Articles of Impeachment against him should be dropped. The Court has already ruled in favor on one of those grounds: that the State Supreme Court is indeed the proper venue for the case. Now the Court is focusing on the third ground noted in the Motion to Dismiss, that the "Pohnpei Legislature is not the proper Defendant in this action," one that the Court claims is, "of special and utmost importance."

Why? Because, the Judiciary states, "the consequence may either be dismissal of this action, or a substantial change in the posture of cases similar (in) nature that will hereafter come before this court." In simpler terms: a huge precedent-setting factor exists here.

The twist in the case lies somewhere in the gray area of the law that is now asking an institution - in this case, the State, or AG's Office - to weigh in on a matter that involves its suspended boss. A bit befuddling not only for the fact that Santos is still technically the Attorney General, but cannot act in that capacity as he is currently suspended with pay; but also because staff at the AG's Office still consider Santos their boss.

Yet the Legislature holds a different view, and this, moreover, appears to be at the heart of the legal wrangling: that there is room for legal and linguistic interpretation of the Impeachment Act of 1992. The Legislature's position holds that it should not be named as the Defendant in the lawsuit, but that "the Office of the Attorney General would serve to defend," since one typically sues the State, not just one specific branch of government in such matters. And further, the Legislature says that this points out "the error of the Office of the Attorney General in representing an impeached official.

The lawsuit is worded like this: Edwel H. Santos, Attorney General of the State of Pohnpei - Plaintiff - vs. Pohnpei State Legislature - Defendant. Acting Attorney General, L.M. Bacalando stated that the AG's Office would be filing an Amicus Brief with the Court, offering a third-party opinion on the matter, as requested by Chief Justice Johnny. Bacalando's opinion on the matter when we asked was contrary to that of the Legislature.

"In that case, the Legislature is the proper defendant," he stated. "You look at the nature of the case, and it's essentially one that asks the Legislature from further implementing the Impeachment Act, to stop the appointment of a Special Prosecutor." And this is appropriate, Bacalando says, because "there's something wrong with the law." If for no other reason, the Acting AG states with confidence, because the Impeachment Act was passed by the Legislature, subsequently vetoed by the Executive branch, and then overridden by Legislature.

"It is the Legislative branch that has a hand on this Impeachment Act. There is no hand by the Executive Branch...(and) it is unconstitutional."

"The best position is amicus," says the Acting AG behind a pile of caseload documents on his desk, surrounded by a swath of legal texts and assorted books neatly aligned in book cases. "We will give our view regardless of one side or the other." And that view, adds Bacalando, is one that ultimately rests upon upholding the Constitution, the supreme law of the state.

As a final note, Bacalando says, "Resolutions (the Impeachment variety) do not determine innocence or guilt."