WIPAR OBET v. KSA SATE AND EX. SERVC APPEAL BAORD

This motion for a Writ of Prohibition came before this Court for a hearing on September 14, 1988. Delson Ehmes of Micronesian Legal Services represented the plaintiff and the moving party, Wipar Obet (Obet). Richard Kaminski represented the Executive Services Appeals Board (Board) and the State of Kosrae. This Court verbally denied the Writ of Prohibition and this opinion is written to explain that holding.

On November 10, 1987, Obet filed an appeal with the Board, contesting the Director of Public Works' decision to terminate him. The Board did not hold hearings on the matter and, on March 17, 1988, the Board informed the interested parties that the case was being continued indefinetely.

On August 9, 1988, the Board informed all parties that it was ready to proceed and on August 29, 1988, Fred Sigrah, the Director of Personnel and Employment Services notified the Board that the hearings in Obet's case were scheduled for September 14, 1988.

On September 13, 1988, Obet filed this motion for Writ of Prohibition, asking the Court to prevent the Board from proceeding with the hearings.

The purpose of a Writ of Prohibition is to prevent an inferior court from acting without jurisdiction or to prevent the inferior court from acting in excess of its powers. In order for the court to issue this writ, the following factors must be present: 1) that some court, officer or person is about to exercise judicial or quasi-judicial powers; 2) that the exercise of such power is unauthorized by law; and 3) that it will result in injury for which there is no other adequate remedy. Every one of these elements is essential, and if the moving party fails to establish one of the them, the writ will be denied. 63A Am Jur 2d Prohibition §§5, 6

Both parties and the Court agree that the Board would be acting in a quasi-judicial manner if it proceeds with the scheduled hearings.

The precise issue is whether the Board has the jurisdiction to hear this case even though it did not schedule hearings in Obet's case until approximately eight months after the notice of appeal was filed. KC 5.421(1) provides that: "[t]he Board hears an appeal within fifteen days of the Director's receipt of a notice of appeal unless the employee requests a delay." If the fifteen day requirement is jurisdictional, meaning the Board loses its jurisdiction after fifteen days, then the Board does not have the authority to proceed.

For the following reasons, the Court finds that the legislature did not intend for the Board to lose its jurisdiction if it fails to hold hearings within fifteen days.

First, the language is directory. If a statute merely requires that certain things be done, without prescribing the result that shall follow if these things are not done, then the language is directory in character and not enforceable by the courts. Panuelo v Pohnpei 3 FSM Intrm 76, 81, (Pon. S. Ct. App 1987) In this case, KC 5.421(1) provides that the Board hears appeals within fifteen (15) days, but it does not specify any punishment if the hearings are not conducted within that time. The directory nature of the language of KC 5.421(1) leads me to conclude that the legislature wanted these hearings to be held

within fifteen (15) days, but that the legislature did not intend for the Board to lose its jurisdiction if that provision was not met.

Second, the fifteen (15) day requirement indicates the legislature's interest in having appeals resolved quickly. As a practical matter, if the Board fails to hold hearings and loses its jurisdiction after fifteen days, the employees must come to court in order to resolve the merits of the disciplinary action. Bringing a civil case is a formal and time consuming process; it is doubtful that the court could resolve the matter as quickly as the Board. For this reason, retaining jurisdiction in the Board is consistent with the legislature's interest.

Third, the Board's creation indicates that legislature's interest in providing executive service employees with an alternative forum to the court for resolving employment complaints. The Board would not be a viable forum if it could easily lose its jurisdiction.

For all of these reasons, the Court finds that the fifteen (15) day requirement is not jurisdictional and that the Board has the lawful authority to hear Obet's appeal.

Finally, the moving party must prove that the inferior court's action, if allowed to proceed, will result in an injury for which there is no remedy. The opportunity to appeal the inferior court's decision is generally considered an adequate

remedy that will defeat the issuance of a Writ. However, when the appellate court has discretion to refuse the appeal or when the appellate process is so burdensome that it is not a realistic remedy, than a Writ may be issued.

In this case, Obet will only be injured if the Board affirms his termination and the question is whether he can realistically appeal that decision. I find that he can appeal effectively because the State Court does not have the right to refuse to hear the appeal (KC 5.421(2); Kosrae Constitution art. VI, S 6) and because the appeal process is not unduly dilatory or burdensome. In fact, when comparing our civil rules and our appellate rules, it is likely that issues could be resolved faster on appeal than they could if the court heard the case on the merits. For these reasons, I find that an appeal is an adequate remedy.

In order for the court to grant the Writ of Prohibition, Obet must show that the Board is acting in a quasi-judicial manner, that the Board does not have jurisdiction and that a Writ of Prohibition is the only remedy. Since I have found that the Board has jurisdiction and that Obet has another remedy available to him, I denied his motion.


	KOSRAE STATE COURT FEDERATED STATES OF MICRONESIA EASTERN CAROLINE ISLANDS 96944 Cite as Obet vs. Kosrae State and Executive Service Appeal Board, (Kosrae, 1988) [page 01] WIPAR OBET, Plaintiff, vs. KOSRAE STATE and EXECUTIVE SERVICE APPEAL BOARD, Defendant Civil Action No. 34-88 This motion for a Writ of Prohibition came before this Court for a hearing on September 14, 1988. Delson Ehmes of Micronesian Legal Services represented the plaintiff and the moving party, Wipar Obet (Obet). Richard Kaminski represented the Executive Services Appeals Board (Board) and the State of Kosrae. This Court verbally denied the Writ of Prohibition and this opinion is written to explain that holding. FACTS On November 10, 1987, Obet filed an appeal with the Board, contesting the Director of Public Works' decision to terminate him. The Board did not hold hearings on the matter and, on March 17, 1988, the Board informed the interested parties that the case was being continued indefinetely. [page 02] On August 9, 1988, the Board informed all parties that it was ready to proceed and on August 29, 1988, Fred Sigrah, the Director of Personnel and Employment Services notified the Board that the hearings in Obet's case were scheduled for September 14, 1988. On September 13, 1988, Obet filed this motion for Writ of Prohibition, asking the Court to prevent the Board from proceeding with the hearings. ISSUE Is a Writ of Prohibition appropriate? ANALYSIS The purpose of a Writ of Prohibition is to prevent an inferior court from acting without jurisdiction or to prevent the inferior court from acting in excess of its powers. In order for the court to issue this writ, the following factors must be present: 1) that some court, officer or person is about to exercise judicial or quasi-judicial powers; 2) that the exercise of such power is unauthorized by law; and 3) that it will result in injury for which there is no other adequate remedy. Every one of these elements is essential, and if the moving party fails to establish one of the them, the writ will be denied. 63A Am Jur 2d Prohibition §§5, 6 1. Judicial or Quasi Judicial Powers Both parties and the Court agree that the Board would be acting in a quasi-judicial manner if it proceeds with the scheduled hearings. [page 03] 2. Authorization by Law The precise issue is whether the Board has the jurisdiction to hear this case even though it did not schedule hearings in Obet's case until approximately eight months after the notice of appeal was filed. KC 5.421(1) provides that: "[t]he Board hears an appeal within fifteen days of the Director's receipt of a notice of appeal unless the employee requests a delay." If the fifteen day requirement is jurisdictional, meaning the Board loses its jurisdiction after fifteen days, then the Board does not have the authority to proceed. For the following reasons, the Court finds that the legislature did not intend for the Board to lose its jurisdiction if it fails to hold hearings within fifteen days. First, the language is directory. If a statute merely requires that certain things be done, without prescribing the result that shall follow if these things are not done, then the language is directory in character and not enforceable by the courts. Panuelo v Pohnpei 3 FSM Intrm 76, 81, (Pon. S. Ct. App 1987) In this case, KC 5.421(1) provides that the Board hears appeals within fifteen (15) days, but it does not specify any punishment if the hearings are not conducted within that time. The directory nature of the language of KC 5.421(1) leads me to conclude that the legislature wanted these hearings to be held [page 04] within fifteen (15) days, but that the legislature did not intend for the Board to lose its jurisdiction if that provision was not met. Second, the fifteen (15) day requirement indicates the legislature's interest in having appeals resolved quickly. As a practical matter, if the Board fails to hold hearings and loses its jurisdiction after fifteen days, the employees must come to court in order to resolve the merits of the disciplinary action. Bringing a civil case is a formal and time consuming process; it is doubtful that the court could resolve the matter as quickly as the Board. For this reason, retaining jurisdiction in the Board is consistent with the legislature's interest. Third, the Board's creation indicates that legislature's interest in providing executive service employees with an alternative forum to the court for resolving employment complaints. The Board would not be a viable forum if it could easily lose its jurisdiction. For all of these reasons, the Court finds that the fifteen (15) day requirement is not jurisdictional and that the Board has the lawful authority to hear Obet's appeal. Other Adequate Remedy Finally, the moving party must prove that the inferior court's action, if allowed to proceed, will result in an injury for which there is no remedy. The opportunity to appeal the inferior court's decision is generally considered an adequate [page 05] remedy that will defeat the issuance of a Writ. However, when the appellate court has discretion to refuse the appeal or when the appellate process is so burdensome that it is not a realistic remedy, than a Writ may be issued. In this case, Obet will only be injured if the Board affirms his termination and the question is whether he can realistically appeal that decision. I find that he can appeal effectively because the State Court does not have the right to refuse to hear the appeal (KC 5.421(2); Kosrae Constitution art. VI, S 6) and because the appeal process is not unduly dilatory or burdensome. In fact, when comparing our civil rules and our appellate rules, it is likely that issues could be resolved faster on appeal than they could if the court heard the case on the merits. For these reasons, I find that an appeal is an adequate remedy. CONCLUSION In order for the court to grant the Writ of Prohibition, Obet must show that the Board is acting in a quasi-judicial manner, that the Board does not have jurisdiction and that a Writ of Prohibition is the only remedy. Since I have found that the Board has jurisdiction and that Obet has another remedy available to him, I denied his motion. [page 06] So ORDERED, ADJUDGED AND DECREED, this 27th day of September, 1988. /s/ Harry H. Skilling Chief Justice Kosrae State Court Entered this 27th day of September, 1988. /s/ Clerk of Court, Kosrae