September 06, 2010

By Bill Jaynes
The Kaselehlie Press

Pohnpei, FSM-A preliminary motion of the Pohnpei State Legislature to put a temporary stop to the partially implemented Pohnpei School Lunch program has been denied by the Pohnpei State Supreme Court. The ruling was made pending a final hearing on the merits of the case which was held on the 18th of August. No ruling has yet been made on the substance of that hearing.

The legislature sought to put a stop to the pro-gram because they say that it has been inequitably implemented. Not all schools and not all students are receiving lunches from the Government under the School Lunch program. The Legislature named in its court complaint (108-10) 11 different ways in which they feel the executive branch, led by Governor John Ehsa, violated the law when the school lunch program was only partially implemented.

In addition to asking the court to put a stop to the Pohnpei School Lunch program the complaint asked the court to find Governor John Ehsa, Lt. Governor Churchill Edward, Director of the Department of the Treasury and Administration Thomas Pablo, and Director of the Department of Education Joseph Villazon guilty of misconduct in office and criminal conspiracy. Those matters have yet to be heard by the court.

A hearing was held on August 6 at 2:30 in the afternoon with Chief Justice Benjamin Rodriguez presiding. Huddy T. Lucas from the Office of Legislative Counsel rep-resented the legislature and State Attorney General Scott Garvey represented the defendants.

The hearing was held to consider the matter of whether or not the court should issue a Temporary Restraining Order (TRO) or a Preliminary Injunction Memorandum to close the school lunch program before the 2010 school year began.

The court gave both parties an opportunity to give oral arguments on the motion. Both parties said that their written pleadings contained their entire argument and no oral arguments were necessary. On August 11, Chief Justice Rodriguez ruled to deny the issuance of a temporary restraining order. He did so based on the rule of law which requires the judge to consider four factors: 1) the likelihood of success on the merits of the party seeking injunctive relief, 2) the possibility of irreparable injury to the moving party, 3) the balance of possible injuries or inconvenience to the parties which would flow from granting or denying the relief, and 4) and impact on the public interest. "The object of a preliminary injunction is to preserve the status quo pending the litigation on the merits."

For instance, a judge hearing a case where a plaintiff is suing a developer to keep them from destroying a historical landmark might issue an injunction prohibiting the developer from demolishing the landmark until the entire case is heard and ruled upon. If the judge allowed the developer to continue work including the tearing down of the historical landmark then there would be no way to restore the landmark if the plaintiff's interests prevailed in the matter. In the example case, money would not compensate the plaintiffs. The historical landmark would have been gone forever with no chance of restoration by money or any other means.

In complaint 108-10 the plaintiff Pohnpei State Legislature argued that "The irreparable injury to the Plaintiff is the raising of campaign issues above the Rule of Law."

Chief Justice Rodriguez said, "Campaign promises are simply statements and by themselves do not rise to the level of irreparable damage."

The ruling said that the plaintiff also argued that "an alleged violation of the Constitutional separation of powers through the executive allegedly amending the education law and allegedly appropriate(ing) monies by using funds appropriated for other purposes as irreparable damage." But the plaintiff didn't present evidence of those accusations for the court to review with their motion for a TRO.

"This court is of the belief that money damages would be sufficient to cure any damage from continuing the school lunch program," Rodriguez ruled.

On the matter of the impact on public interest Rodriguez said that the Plaintiff's motion itself states that it is in the public interest that elementary school children have lunch.

On the matter of the balance of injuries between parties, again, the Plaintiff's motion states that neither party would be injured by maintaining the status quo.

On the movant's likelihood of success on the merits of their case Rodriguez said that the fat that the legislature has not allocated any money to the school lunch program for the coming school year does not indicate that the legislature will be successful on the merits of its case.

"The Court believes that it is too early in this case and the issues too complex to make any comment on which party is likely to be successful on the merits," Rodri-guez ruled.

Chief Justice Rodriguez would not issue the TRO since three of the four standards for the issuance of a TRO were in favor of denying plaintiff Pohnpei State Legislature's motion.

"Plaintiff's Motion for a Temporary Re-straining Order or in the Alterative a Preliminary Injunction is hereby denied pending a final hearing on the merits," Rodriguez ruled. That hearing was set for August 18 and was held on in the Chief Justice's chambers.

At press time the judge had not yet entered a final ruling.