FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2017-032

BENJAMIN RODRIGUEZ,		)						
)
Plaintiff,		)
)
vs.				)
)
NINTH POHNPEI LEGISLATURE,	)
)
Defendant.		)
___________________________________	)

	ORDER MEMORIALIZING DENIAL OF MOTION FOR PRELIMINARY INJUNCTION

	Larry Wentworth
	Associate Justice

	Hearing:  June 1-3, 2017
	Decided:  June 3, 2017
	Memorandum Entered:  June 8, 2017

APPEARANCES:

For the Plaintiff:	Marstella E. Jack, Esq. (motion)
P.O. Box 2210
Kolonia, Pohnpei FM 96941

Vincent Kallop, Esq. (motion & argued)
P.O. Box 104
Kolonia, Pohnpei FM 96941

For the Defendant:	Dana W. Smith, Esq.
Attorney General
Pohnpei Department of Justice
P.O. Box 1555
Kolonia, Pohnpei FM 96941

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	HEADNOTES

Jurisdiction  Arising Under

When the complaint alleges violation of the plaintiff’s civil rights under the FSM Constitution, the FSM Supreme Court has before it, at a bare minimum, a case that arises under the FSM Constitution and the court thus has jurisdiction under Section 6(b), with the state law matters that may be considered under the court’s pendent jurisdiction.  Rodriguez v. Ninth Pohnpei Legislature, 21 FSM R. 276, 278 (Pon. 2017).

Civil Procedure  Injunctions
A court, in exercising its discretion whether to grant a preliminary injunction, must weigh four factors:  1) the possibility of irreparable injury to the movant, 2) the likelihood of success on the merits of the party seeking injunctive relief, 3) the balance of possible injuries or inconvenience between the parties that would flow from granting or denying the relief, and 4) any impact on the public interest.  Rodriguez v. Ninth Pohnpei Legislature, 21 FSM R. 276, 279 (Pon. 2017).

Civil Procedure  Injunctions  Irreparable Harm
The threat of irreparable harm before the litigation’s conclusion is generally considered a prerequisite to preliminary injunctive relief.  Rodriguez v. Ninth Pohnpei Legislature, 21 FSM R. 276, 279 (Pon. 2017).

Public Officers and Employees  Impeachment
Bills or resolutions of impeachment are not criminal in nature, and impeachment and removal from office is not criminal punishment.  Rodriguez v. Ninth Pohnpei Legislature, 21 FSM R. 276, 279 (Pon. 2017).

Public Officers and Employees  Impeachment
While it may be true that, in two recent instances impeachment proceedings and criminal prosecutions were pursued consecutively rather than simultaneously, nothing requires that it be done that way.  Simultaneous proceedings are not only probable, but sometimes expected or likely.  Rodriguez v. Ninth Pohnpei Legislature, 21 FSM R. 276, 279 (Pon. 2017).

Constitutional Law  Case or Dispute
Even when the court generally has jurisdiction over a case’s subject matter, that case still must be justiciable in order for the court to be able to grant any relief.  Rodriguez v. Ninth Pohnpei Legislature, 21 FSM R. 276, 280 (Pon. 2017).

Constitutional Law  Case or Dispute  Political Question
When the Constitution contains a textually demonstrable commitment of an issue to a coordinate branch of government, it is a non-justiciable political question not to be decided by a court because of the constitutionally mandated separation of powers.  This is as true of the Pohnpei Constitution as it is of the FSM Constitution.  Rodriguez v. Ninth Pohnpei Legislature, 21 FSM R. 276, 280 (Pon. 2017).

Constitutional Law  Case or Dispute  Political Question; Public Officers and Employees  Impeachment
The Pohnpei Constitution clearly and demonstrably textually commits the investigation of, and the impeachment of Pohnpei state government officials, including the Pohnpei Chief Justice, to the Pohnpei Legislature.  An impeachment proceeding’s procedure, including its timing, is thus also a non-justiciable political question.  Rodriguez v. Ninth Pohnpei Legislature, 21 FSM R. 276, 280 (Pon. 2017).

Constitutional Law  Case or Dispute  Political Question; Public Officers and Employees  Impeachment
The Pohnpei Legislature’s procedures for, including the timing of, its investigation and possible impeachment of the Pohnpei Chief Justice, are non-justiciable.  Rodriguez v. Ninth Pohnpei Legislature, 21 FSM R. 276, 280 (Pon. 2017).

Civil Procedure  Injunctions; Constitutional Law  Case or Dispute  Political Question; Public Officers and Employees  Impeachment
A preliminary injunction seeking to enjoin the possible impeachment of the Pohnpei Chief Justice, will be denied when there is no possibility of success on the merits because the case involves a non-justiciable political question, and the equities all favor the Pohnpei Legislature, and the public interest will be served by permitting the Legislature’s investigation of a possible impeachment to proceed.  Rodriguez v. Ninth Pohnpei Legislature, 21 FSM R. 276, 281 (Pon. 2017).

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	COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

This case was filed on May 26, 2017.  On June 1, 2, and 3, 2017, it came before the court to hear the plaintiff’s motion for a preliminary injunction.  That motion was denied from the bench on June 3, 2017.  This written order memorializes that decision.

	I.

Before the court could turn to the plaintiff’s motion for injunctive relief, it had to first consider the defendant’s initial challenge to the court’s subject-matter jurisdiction.  The defendant, the Ninth Pohnpei Legislature, contended that plaintiff Benjamin Rodriguez failed to plead any cause of action over which the FSM Supreme Court could exercise subject-matter jurisdiction.  Rodriguez, in his complaint, asserts that the court has jurisdiction under the FSM Constitution’s article XI, section 6(b).  The Legislature contended that the court could not have subject-matter jurisdiction under Section 6(b), because there was neither any diversity of citizenship between the parties nor did Rodriguez’s claims arise under the FSM Constitution, national law, or a treaty.

Pohnpei Chief Justice Benjamin Rodriguez, in his complaint, seeks to enjoin the Pohnpei Legislature from proceeding with impeachment proceedings against him while criminal and civil cases, based on the same allegations that the Pohnpei Legislature is currently investigating, as a possible basis for a resolution impeaching him, are pending against him in the Pohnpei Supreme Court.  The Legislature responded that, since the Pohnpei Legislature’s impeachment process is based solely on state constitutional provisions and since the pending civil and criminal cases against Rodriguez are based on his alleged violations of Pohnpei state law, this case cannot be one that arises under FSM national law.

Rodriguez’s complaint, although somewhat vague on the point, alleges that, since he is a criminal defendant, the Legislature’s investigation of him for a proposed impeachment resolution while a criminal case is pending against him, violates his rights under the FSM Constitution (as well as the Pohnpei Constitution), to due process, and thus unfairly prejudiced him.  During the oral hearing, he was a bit more explicit, and included among the due process rights that were threatened, an allegation that the Legislature’s investigation would infringe on his constitutional right against self-incrimination because the Legislature, during its investigation, would call him as a witness.

The court therefore concluded that, at a bare minimum, Rodriguez alleged a case that arose under the FSM Constitution and that the court thus had jurisdiction under Section 6(b), and that the state law matters could be considered under the court’s pendent jurisdiction, see, e.g., Warren v. Pohnpei State Dep’t of Public Safety, 13 FSM R. 483, 492 (Pon. 2005).

	II.

Consequently, the court proceeded to hear Rodriguez’s preliminary injunction motion.  A court, in exercising its discretion whether to grant a preliminary injunction, must weigh four factors:  1) the possibility of irreparable injury to the movant, 2) the likelihood of success on the merits of the party seeking injunctive relief, 3) the balance of possible injuries or inconvenience between the parties that would flow from granting or denying the relief, and 4) any impact on the public interest.  Nena v. Saimon, 19 FSM R. 317, 326 (App. 2014); Mwoalen Wahu Ileile en Pohnpei v. Peterson, 20 FSM R. 546, 550 (Pon. 2016); FSM Dev. Bank v. Abello, 18 FSM R. 192, 196 (Pon. 2012); Ponape Enterprises Co. v. Bergen, 6 FSM R. 286, 288 (Pon. 1993).

After reviewing the parties’ written submissions and listening to the parties’ oral presentations, the court concluded that a preliminary injunction could not issue.  The reasons follow.

The threat of irreparable harm before the litigation’s conclusion is generally considered a prerequisite to preliminary injunctive relief.  Luen Thai Fishing Venture, Ltd. v. Pohnpei, 18 FSM R. 563, 567 (Pon. 2013).  The court, however, could not presume that the Legislature will call Chief Justice Rodriguez as a witness, or that the Legislature would not honor his constitutional right not to be forced to incriminate himself, or that it will, after its investigation, impeach him.  It may decide to do, or decline to do, any of those things.  The court concluded that Rodriguez’s prospect of irreparable harm was speculative.

Rodriguez further contended that, if he were impeached, it would violate his due process rights to have to defend himself in an impeachment trial while the civil and criminal cases are still pending against him.  Rodriguez asserted that, if both the criminal case and the impeachment proceeding occur simultaneously, he would then be subjected to essentially two criminal, or semi-criminal, prosecutions for the same thing at the same time and that this must violate his constitutional right to due process.  He argued that the Legislature must therefore be enjoined from considering whether to impeach him until the civil and criminal cases against him are over.1

In support, Rodriguez pointed to the impeachment of Pohnpei Governor John Ehsa, where Governor was impeached first and only later was a criminal prosecution against him initiated, and to U Chief Minister Welsin Helgenberger, who was impeached after the criminal case against him had resulted in an conviction, as precedents for the proposition that he should not be subjected to a criminal case and an impeachment at the same time.

Bills or resolutions of impeachment are not criminal in nature, see In re Legislative Subpoena, 7 FSM R. 261, 266 (Chk. S. Ct. Tr. 1995), and impeachment and removal from office is not criminal punishment, see Helgenberger v. U Mun. Court, 18 FSM R. 274, 280 (Pon. 2012).  And, while it may be true that, in two recent instances  Pohnpei Governor Ehsa and U Chief Minister Helgenberger  impeachment proceedings and criminal prosecutions were pursued consecutively rather than simultaneously, nothing in those cases requires that it be done that way.  The Helgenberger court, in its analysis, supports the proposition that such simultaneous proceedings are not only probable, but sometimes expected or likely.  Helgenberger, 18 FSM R. at 279-80 (impeachment and criminal prosecution are separate and non-exclusive remedies for the same misbehavior).  The Pohnpei Constitution also seems to contemplate that impeachment proceedings may occur before, during, or after a criminal prosecution.2

In the present case, the likelihood-of-success-on-the-merits factor is more important than the likelihood of irreparable harm.  That is because, due to the application of the political question doctrine, Rodriguez’s likelihood of success on the merits of his claim appears to be zero.

Even when the court generally has jurisdiction over a case’s subject matter, that case still must be justiciable in order for the court to be able to grant any relief.  See Christian v. Urusemal, 14 FSM R. 291, 294 (App. 2006); Urusemal v. Capelle, 12 FSM R. 577, 583-84 (App. 2004); In re Sproat, 2 FSM R. 1, 5, 7 (Pon. 1985).  Under the political question doctrine, when the Constitution contains a textually demonstrable commitment of an issue to a coordinate branch of government, it is a non-justiciable political question not to be decided by a court because of the constitutionally mandated separation of powers.  Pohnpei v. AHPW, Inc., 14 FSM R. 1, 16-17 (App. 2006); Aten v. National Election Comm’r (III), 6 FSM R. 143, 145 (App. 1993); Pacific Foods & Servs., Inc. v. National Oceanic Res. Mgt. Auth., 17 FSM R. 181, 186 (Pon. 2010).  This is as true of the Pohnpei Constitution as it is of the FSM Constitution.  See People of Kapingamarangi v. Pohnpei Legislature, 3 FSM R. 5, 9-10 (Pon. S. Ct. Tr. 1985).

Here, the Pohnpei Constitution clearly and demonstrably textually commits the investigation of, Pon. Const. art. 8, § 9, and the impeachment of Pohnpei state government officials, including the Pohnpei Chief Justice, Pon. Const. art. 13, § 6(2), to the Pohnpei Legislature.  An impeachment proceeding’s procedure, including its timing, is thus also a non-justiciable political question.  See, e.g., Nixon v. United States, 506 U.S. 224, 113 S. Ct. 732, 122 L. Ed. 2d 1 (1993) (impeachment trial procedure and use of committee as factfinder was a non-justiciable political question).  In his concurrence, Justice Souter opined that there might be "different and unusual circumstances that might justify a [court’s] more searching review of impeachment proceedings," such as those that involved "act[ing] in a manner seriously threatening the integrity of its results" by, for instance, determining the result by "a coin toss" or the like.  Id. at 253-54, 113 S. Ct. at 748, 122 L. Ed. 2d at 24 (Souter, J., concurring).  No such "different and unusual circumstances" have been alleged here.

The New Hampshire Supreme Court in In re Judicial Conduct Committee, 751 A.2d 514 (N.H. 2000), held that "[w]hile the judicial branch is not divested of jurisdiction over matters that may arise during a legislative impeachment investigation, the range of matters subject to judicial review is limited by the concept of justiciability."  Id. at 516.  That court ruled that, under the New Hampshire Constitution [just as it is under the Pohnpei Constitution’s separation of powers], "the impeachment of judges is demonstrably committed to the legislative branch."  Id.  It therefore concluded that, since the petitioner "ha[d] not presented the sort of ‘unusual circumstances that might justify a more searching review of [the] impeachment proceedings,’" the petitioner’s challenge to the legislative procedures used to investigate whether to impeach various judges was non-justiciable.  Id. at 516-17.

Similarly, in this case, the court must conclude that the Pohnpei Legislature’s procedures for, including the timing of, its investigation and possible impeachment of Benjamin Rodriguez, are non-justiciable.

In a somewhat similar case, when an impeached United States federal district judge sought to enjoin his impeachment trial because of the procedure that the United States Senate intended to use, the United States district court concluded:

There is no possibility of success on the merits, all equities favor the Senate, and the public interest will be served by permitting the impeachment trial of Judge Hastings to proceed as contemplated by the Senate.  Due to the political question raised, for prudential reasons, and in recognition of the Speech and Debate Clause, the Court finds the case non-justiciable and it declines to become involved in monitoring the Senate’s constitutionally-assigned proceedings.

Hastings v. United States Senate, 716 F. Supp. 38, 43 (D.D.C. 1989), aff’d, 887 F.2d 332 (D.C. Cir. 1989).

Likewise, in this case, there is no possibility of success on the merits because it involves a non-justiciable political question, the equities all favor the Pohnpei Legislature, and the public interest will be served by permitting the Legislature’s investigation of a possible impeachment to proceed.  The court will not become involved in monitoring or managing the Pohnpei Legislature’s constitutionally-assigned duties to investigate, and, if warranted, to impeach Pohnpei government officials.

	III.

Accordingly, Benjamin Rodriguez’s motion for a preliminary injunction was denied from bench.

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