November 14, 2012

By Bill Jaynes
The Kaselehlie Press

November 8, 2012 Pohnpei, FSM-A panel of three judges from the FSM will be hearing an appeal regarding the issuance of a preliminary injunction ordered by the Supreme Court that temporarily halted all actions mandated by Governor Ehsa's Executive Order regarding Pohnpei Utilities Corporation. The 15 page "notice of appeal" plus exhibits was filed on October 26.

The Governor's executive order suspended the employment of PUC General Manager Feliciano Perman pending an investigation. It removed former Board members Francisco Mendiola, and Wilbur Walter. The injunction also temporarily halted the Memorandum of Understanding (MOU) between Energy International Global and PUC for power generation.

The issuance of the temporary injunction was covered in detail in the last issue of The Kaselehlie Press.

The arguments in the appeal are based on substantial points of law and on omissions by the trial court, including the fact that the court never heard a second motion to dismiss that Ehsa filed. The appeal says that the order for preliminary injunctions implied that the court had motions to dismiss when in fact it had only heard one. The appeal also argues that Governor Ehsa acted appropriately in the absence of a legally constituted PUC board during a time of crisis in Pohnpei. It argues that he acted when no one else could, and that he was backed by a legal mandate provided under the heading of the recently amended Pohnpei Code regarding PUC which calls for unprecedented action at a time of power crisis.

The appeal did not point to Pohnpei law to justify the actions of the Governor when he essentially assumed the function of the PUC Board of Directors but did say that he acted munder the authority of the Constitution.

The appeal argues four main points regarding the proceedings of the court that led it to issue the temporary injunction:

Under the first point, the Governor's counsel argues that the court should first have heard the motions to dismiss, not just one of them as the appeal says was done. It says that on October 8, Ehsa filed a motion to dismiss and also a motion to accelerate hearing on the motion to dismiss. It contends that it is a standard practice of the Courts to set motions to dismiss before other matters, because if such a motion is granted, there is nothing further to hear. The Court did not set hearing as moved.

The appeal says that on October 12, Ehsa received copies of court subpoenas directing witnesses of the Plaintiffs to appear at FSM Supreme Court at 10:00 a.m. on October 15. The subpoenas said that "at that time your testimony before a notary public or other officer authorized by law to administer oath will be taken."

Ehsa was off island and his counsel filed a motion for protective order on Ehsa's behalf.

The appeal contends that Ehsa's counsel showed up on October 15 for what he thought would be the taking of witness depositions. He discovered shortly before 10:00 a.m. that instead, the court was set to hear the plaintiffs' motions for preliminary injunctions.

It says that the defendant was left to guess what the court had ruled regarding his motion to dismiss and motion to accelerate to hearing since the court did not notify him of any decision regarding those motions. Plaintiffs' counsel stipulated to a hearing of Ehsa's motion to dismiss due to the fact that Pohnpei State had not been named as a defendant in the case which Pohnpei State law requires.

The Court briefly heard that motion and ruled not to dismiss as long as the plaintiffs added Pohnpei State as a defendant within a certain number of days.

The appeal contends that the way the Court proceeded on the matters before it was prejudicial against the defendant, and that such treatment constituted denial of due process-a reversible error.

On its second point the appeal argues that in denying the motion to dismiss for plaintiffs' failure to name Pohnpei State as a defendant, and then by allowing plaintiffs time to add the State as a defendant, the Court lacked personal and subject matter jurisdiction to hear the motion for injunctions. It argues that Pohnpei State law absolutely requires the State to be named in any legal action against an employee of the State in his or her official capacity.

"Appellant Governor Ehsa contends that simply adding Pohnpei State as a party defendant does not mean that Defendant Governor Ehsa and Pohnpei State have the same interest in their defense. Pohnpei State may move to defend separately from Defendant Governor Ehsa if it finds that Defendant Governor Ehsa was not acting in State interest," the appeal says.

Ehsa argues that until the complaints are amended to add Pohnpei State as a defendant, the cases were not ready for the trial court to take into judicial jurisdiction and should not have been heard on October 15.

Under point three of the appeal, Governor Ehsa argued the specific points of Pohnpei State law that say specifically that the State must be named as a defendant when a Government employee is named as a defendant in his or her official capacity. It says that the Court erred in deciding otherwise and that the Court's decision is reversible on appeal.

The appeal argues that if the court had in fact considered Ehsa's other motions, including his written motion to deny issuance of temporary restraining order and preliminary injunction, which was filed on October 1, 2012, it must have seen Exhibit Five, which was part of that motion. To be certain that the appellate court sees that exhibit Ehsa included similar documentation in his notice of appeal and labeled it Exhibit Two.

Each of the nine pages of Exhibit Two is dated August 16, 2012. The documents are copies of bill histories for nine separate PUC accounts. They appear to contradict the sworn testimony of PUC Board Member Wilbur Walter who testified that he had never had an outstanding account balance of more than three months at PUC. Though only one of the bill history reports actually lists Mr. Walter's name as the account holder, Ehsa's appeal says that the eight other accounts in Exhibit Two that list business names or locations are also in Walter's name.

The account balances of bill histories show a total of over $18,000 that was owed to PUC as of August 16, 2012, the day after the court heard testimony on the preliminary injunction. Arrears of 90 days or longer listed for each of the nine PUC accounts in Exhibit Two range between $60 and $3,600, for a total of over $11,000 of arrears as of August 16.

The appeal says that, according to its exhibit, the order of the trial court relating to Walter's utility accounts is not supported by evidence.

The exhibit re-argues that Governor Ehsa acted in regard to PUC with the authority provided to him by the Constitution under Article 9, Section 1 and Section 7.

Section 1, of Article 9 says, "The executive power of the Governor of Pohnpei is vested in the Governor who shall be elected by the qualified voters of Pohnpei." Section 7 says, "The Governor is responsible for the faithful execution of the provisions of this Constitution and of all laws of Pohnpei."

Finally, the appeal says that the Court erred when it reasoned that "… since a suit against a person in his or her official capacity is treated as a suit against the entity that employs the officer…Pohnpei is, in effect, already a party-defendant because its Governor was sued in his official capacity." The appeal claims that the Court's citation of a 2012 case in Chuuk State as precedent for its legal opinion was erroneous because Chuuk State may not have a similar law that requires the State to be named as a defendant whenever one of its officials is sued.

On the basis of reversible error and from the arguments in the appeal, Ehsa is asking the appellate court to quash the order granting preliminary injunction, and to dismiss the actions of the plaintiffs in 2012-026 and 2012-027.