POHNPEI SUPREME COURT REPORTS
VOL. 2
[2 P. S. Ct. R 481]
JOSEPH PAULUS,
Plaintiff
v.
STATE OF POHNPEI and DAMIAN SOHL as
POHNPEI STATE DIRECTOR OF EDUCATION,
Defendants
Pohnpei Civil Action No. 47-87
Trial Division of the Pohnpei Supreme Court
September 21, 1987
Action by State Government employee, a schoolteacher, whose appointment had been summarily terminated without hearing by the defendant Director of Education pursuant to Section 14(1) of the Pohnpei State Public Service System Act of 1981 (S.L. 2L-57-81) following the employee's conviction of a felony. The plaintiff sought injunction enjoining the defendants from summarily terminating his employment and for reinstatement and also for a declaratory judgment that Section 14(1) of S.L. 2L-57-81 was unconstitutional, in violation of the Equal Protection and Due Process provisions of the Constitution of the State of Pohnpei.
The Trial Division of the Pohnpei Supreme Court EDWEL H. SANTOS, Chief Justice, held, enjoining the State of Pohnpei from enforcing Section 14(1) of S.L. 2L-5781, the State Public Service System Act of 1981, against the plaintiff, that Section 14(1) of the Ad was unconstitutional in violation of the Equal Rights and Due Process provisions of the Pohnpei Constitution in that:
(a) the statute arbitrarily discriminated all categories of felons without affording any means to screen out those felons whose convictions had no relation whatever to their government positions or their ability to perform on the job; and
(b) there was no rational relationship between the Government interest (of ensuring the high quality of public service and of ensuring that the rules of society are taught by those who have not shown an unwillingness to abide by those rules) and the means (denying all categories of felons the access to public employment) used to effect that Government interest!
1. Constitutional Law - Constitutional Guaranties - Equal Protection
No law or other government action may deny or impair the equal rights of
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all persons on account of gender, race, ancestry, national origin, religion, language, or social status. No person maybe denied the equal protection of the law. (Pohnpei Constitution, Art. 4, Section 3).
2. Courts - Judicial Notice
The Court takes judicial notice of the fact that discrimination as is experienced in the United States is different from that experienced in Pohnpei, therefore one should not expect that decisions of the Court on issues of discrimination will follow exactly the lines of reasoning drawn by United States decisions, but the Court will consider those decisions and decisions in other common law jurisdictions on similar issues for information and for what they are worth, and may apply them as appropriate to the circumstances prevailing in Pohnpei.
3. Constitutional Law - Constitutional Guaranties - Equal Protection - State Classifications
State classification under S.L. 2L-57-81, Section 14(1) of ex-felons currently under sentence is not suspect within the suspect classifications of Section 3, Article 4, of the Pohnpei Constitution, and therefore does not require the strict scrutiny test that suspect classifications require in order to be upheld by the Court.
4. Constitutional Law - Constitutional Guaranties - Fundamental Rights- Right to Work for the Government
The government policy of public service is based on merit and one can be hired or retained in the public service if he performs well on the job or maintains an acceptable status of conduct; thus working for the Government of Pohnpei is merely a privilege which can be withheld subject to the due process of law.
5. Constitutional Law -
Constitutional Guaranties - Fundamental Rights - Right to Work for the Government
The right to work for the Government is not a constitutionally protected right under the Constitution of Pohnpei which would require invoking of the strict scrutiny test.
6. Constitutional Law - Constitutional Guaranties - Fundamental Rights Right to Work for the Government
Constitutional protection does extend to employees of government (or
[2 P. S. Ct. R 483]
those applying for government employment) whose exclusion pursuant to a state statute is patently arbitrary or discriminatory.
7. Constitutional Law-Constitutional Guaranties-Fundamental Rights-Right to Work for the Government
The Government may in its discretion hire or fire employees, but that discretionary power shall not be exercised arbitrarily.
8. Constitutional Law-Constitutional Guaranties-Fundamental Rights-Right to Work for the Government
The right of a government employee not to be arbitrarily fired from such employment and the right of a person applying for government employment not to be arbitrarily excluded, are protected by the Pohnpei Constitution and will be enforced by the Court.
9. Constitutional Law - Constitutional Guaranties - Equal Protection - State Classifications - State Interest
Where defendant State admits it has a legitimate interest in assuring the high quality of the public service and in ensuring that the rules of society are taught by those who have not shown an unwillingness to abide by those rules, and on the other hand admits that it also has an interest in rehabilitating felons to assist them in their resumption of responsibilities, the State interest as perceived is a protective and moral one.
10. Constitutional Law - Legislature - Legislative Purposes
Where the purpose of legislation is to preclude from the State Public Service a person convicted of a felony and is under sentence, the validity of the morality of the legislative purpose is the province of the Legislature and the Court lacks jurisdiction to determine such validity by virtue of the separation of powers doctrine, but the means utilized to implement the purpose are the proper subject of judicial evaluation. (Pohnpei Constitution Art 10, Section 1, State Law No. 2L-160-82)
11. Constitutional Law - Statutes - Pohnpei Customs
Where statutory scheme has an across-the-board prohibition against the employment of felons in the Pohnpei Public Service, and there is no tailoring in an effort to limit the statutory prohibition to those convicted felons who otherwise lack the habits of industry, obedience, fidelity or whose apology tendered under Pohnpeian custom for the crime commit-
[2 P. S. Ct. R 484]
ted has not been mutually accepted - no consideration is given to the well-known belief in Pohnpei that "aramas koaros kin sapwungala" -the statute in question seems to run afoul of Article 5 (Tradition) of the Pohnpei Constitution which upholds, respects, and protects the customs and traditions of the traditional kingdoms of Pohnpei, and is contrary to Sections 1-13 and 9-1 of the Pohnpei Crimes Act of 1985 which recognize Pohnpeian custom in criminal proceedings.
12. Statutes - Prohibition Against the Employment of Felons In Public Service - Pohnpeian Concept of Justice
Where statutory provision has an across-the-board prohibition against the employment of felons in the Pohnpei Public Service, the statutory provision operates to double punish persons who are classed as felons and this is not in conformity with Pohnpeian concept of justice.
13. Statutes - Prohibition Against the Employment of Felons In Public Service - Effect
A statutory provision that has an across-the-board prohibition against the employment of felons in the Pohnpei Public Service puts into question the legality of the Court Probation Service program which includes placing probationers in both government and private employment as a rehabilitative measure, and defeats the Government purpose of rehabilitating persons convicted of crimes and assisting them in their resumption of responsibilities in order to help them to become good members of Pohnpeian society.
14. Statutes - Prohibition Against the Employment of Felons In Public Service
A statutory provision such as Section 14(1) of the Pohnpei Public Service System Act of 1981 (S.L. 2L-57-81) that has an across-the-board prohibition against the employment of felons in the Pohnpei Public Service is un reasonable, as its implementation leads to unfairness and arbitrariness and invites abuse of discretion on the part of management officials in the Public Service.
15. Statutes - Prohibition Against the Employment of Felons In Public Service
In the absence of a more precise relationship of the means utilized by Section 14(1) of the Pohnpei State Public Service System Act, 1981 (S.L.2L-57-81) to achieve the desired legislative purpose, this Section of the statute clearly violates the tenet of Equal Protection analysis that the
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exclusion of the plaintiff and all felons under sentence is necessary to achieve the articulated State goal [of keeping the Public Service free from felons under sentence]
16. Statutes - Validity
Section 14(1) of the Pohnpei Public Service System Act of 1981(S.L 2L57-81) is impermissibly arbitrary, and is irrationally unfair, and the means applied by the Government to accomplish the legislative purpose of protecting the integrity and fidelity of the Public Service System violates the Equal Rights provision of the Pohnpei Constitution.
17. Constitutional Law - Constitutional Guaranties - Due Process of Law
The Pohnpei Constitution provides that no person may be deprived of life, liberty, or property without due process of law, and that private property may not be taken except for a public purpose with just compensation. (Pohnpei Constitution, Article 4, Section 4)
18. Constitutional Law - Constitutional Guaranties - Due Process of Law
The concept of due process has two aspects, namely substantive due process and procedural due process.
19. Constitutional Law - Constitutional Guaranties - Due Process of Law
Substantive due process relates to the constitutional guaranty that no person shall be deprived of his life, liberty or property for arbitrary reasons.
20. Constitutional Law - Constitutional Guaranties - Due Process of Law
Denial of due process is supportable constitutionally only if the conduct from which the deprivation flows is proscribed by reasonable legislation, enacted within the scope of legislative authority and reasonably applied for a purpose consonant with the purpose for which it was enacted.
21. Constitutional Law - Constitutional Guaranties - Due Process of Law
Procedural due process relates to the
requisite characteristics of proceedings tending toward a deprivation of
life, liberty, or property and thus makes it necessary that a person whom
it is sought to deprive of such right must be given notice of this fact,
i.e. he must be given nonce of the proceedings against him, art
opportunity to defend himself before a tribunal or office having
jurisdiction of the cause, and the problem of propriety of this
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deprivation, under the circumstances presented, must be resolved in a manner consistent with essential fairness, otherwise in accordance with Pohnpeian concept of justice.
22. Constitutional Law - Constitutional Guaranties - Due Process of Law
Procedural due process of Law is reflected in the statement that "it is the rule as old as law itself that no man shall be personally hound until he has had his day in court". (16 Am Jur 2d, Constitutional Law, Section 813)
23. Constitutional Law - Constitutional Guaranties - Due Process of Law
A statutory provision such as Section 14(1) of the Pohnpei Public Service System Act, 1981 (S.L. 2L-57-81) that prohibits all convicted felons from appointment or from serving in the Pohnpei Public Service is offensive and violates the doctrine of due process enshrined in the Pohnpei Constitution and ought to be struck down.
24. Courts - Discretionary Powers
Where the remedies sought by the plaintiff are equitable in nature, the award is within the discretion of the Court.
25. Courts - Orders - Retroactive Application
The Court has power to deny retroactive operation of an overruled decision or statute declared unconstitutional, but in appropriate cases the Court may in the interest of justice make the rule prospective, since "there is much to be said in favor of such a rule for cases arising in the future".
26. Courts - Orders - Prospective Application - Rationale
For a jurisdiction that has just been permitted to chart its own destiny politically, economically and otherwise - and whose survivability depends largely on foreign assistance the adoption of a policy favoring prospective ruling and application of court decisions overruling previous decisions or declaring statutes unconstitutional is in order, insofar as the ruling does not prejudice those who might have relied on such ruling or on such statute.
Counsel for Plaintiff: John Brackett, Esq.
Office of Public Defender
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Counsel for Defendant: Thomas Tarpley, Esq., and
Randy Boyer, Esq.,
Office of Public Prosecutor
EDWEL H. SANTOS, Chief Justice
The plaintiff challenges Section 14(1) of Pohnpei State Public System Act of 1981 (S.L.2L-57-81) and prays judgment against the defendants as follows:
1. to require the defendants to show cause if any, why they should not be enjoined as hereinafter set forth during the pendency of this action;
2. for a temporary restraining order (TRO), a preliminary in junction, and permanent injunction, all enjoining the defendants, and employees acting under or in concert with them from:
a. continuing to deny the plaintiff his right to work as a State Government employee and elementary school teacher; and to
b. immediately reinstate the plaintiff to his job as elementary school teacher with back pay from the date of his termination to the date of this order.
3. for a declaratory judgment that Section 14(1) of Pohnpei State Law No. 2L-57-81 is unconstitutional in violation of the Equal Protection and Due Process provisions of the Consti-
[2 P. S. Ct. R 488]
tution of the State of Pohnpei;
4. that the Court issue a permanent injunction, permanently enjoining the defendants from summarily terminating em employees because of Section 14(1) of S.L. 2E-57-81; and for
5. damages in the amount of total lost wages, plus damages in such further sums as may be sustained and as are ascertain before final judgment, for costs of this suit.
The case was submitted for the decision on the pleadings and argument of counsel.
I. FACTS OF THE CASE ARE NOT CONTRADICTED
1. The plaintiff, age 38, is a resident of Kitti Municipality. For approximately 13 years prior to the incident which gave rise to this lawsuit the plaintiff was employed by the Pohnpei Government as an elementary school teacher at Wone, Kitti. His performance rating on the job had been satisfactory (Presentence report, PTC No. 530-85).
2. On November 7, 1985, the plaintiff and two of his teacher companions came to Kolonia on the plaintiff's Toyota pick-up on a pleasure visit. Apparently while in town they had consumed a substantial amount of alcohol beverages. They
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returned to Kitti the same day, in the evening, all under the influence of alcohol. The plaintiff was driving. Passing through Pwok Village, the plaintiff was driving at an excessive. rate of speed.
3. The truck, driven by the plaintiff, got into an accident upon approaching a bridge at Pwok. The truck left the road, flipping its back in the air and landed upside down on the other side of the bridge, thus killing one of the plaintiff's teacher-companions named Alfred Stephen, instantly.
4. The plaintiff was charged under the Pohnpei Traffic Code with (1) speeding (s.429), (2) drunk driving (s. 805), (3) careless driving (s. 801), (4) vehicular homicide (s. 804), and (5) causing death <of one> while driving under influence (s. 806). A plea agreement was negotiated on February 4, 1986, and the plaintiff here pled guilty to the charge of causing death to a person while driving under the influence of intoxicating liquor (s. 806). He was sentenced to serve a one-year imprisonment, or alternatively to serve a suspended sentence of one year on certain conditions, if the plaintiff paid $500.00 fine before April 30,1986. The plaintiff did pay the
[2 P. S. Ct. R 490]
fine, and he was placed under suspended sentence for one year, said suspended sentence being terminated on or about March 3, 1987.
5. On May 7, 1986, the following letter was sent to the plaintiff from the defendant Director of the Department of Education.
"May 7, 1986
Mr. Joseph Paulus Classroom Teacher II
Wone Elementary School
Pohnpei State 96941
Dear Mr. Paulus:
I regret to inform you that after a careful review sentence in Criminal Case No. 580-85, you are in conviction of a felony case. You are in direct violation of State Law 2L-57-81, section 14. The law states that no person may be appointed or serve in the Public Service System who is currently under sentence or other punishment has been suspended, for conviction of a felony.
As a result of these findings, I hereby officially inform you that your employment with the Pohnpei State Department of Education will be terminated effective on the date you receive this notice.
Please be informed that Adverse Action documents dated April 30, 1986, is hereby superseded in its entirety.
Thank you.
/s/ Damian G. Sohl
pe
xc:Actg. Assist. to Gov. on PL&MD
Director, Department of Legal Affairs
Date Receive: 5/8/86"
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6. The plaintiff however states the following as part of his Points and Authorities:
The plaintiff was employed by the Pohnpei State Department of Education as an elementary schoolteacher in Kitti municipality for 13 years. On November 17,1985, he was involved in a motor vehicle accident which had nothing to do with his employment. As a result of said accident he entered a plea of guilty to a violation of the Pohnpei State Motor Vehicle Code and received a fine and suspended sentence of 1 year.
On May 8, 1986, he was terminated summarily without a hearing or opportunity to be heard by defendant Damian Sohl acting in his capacity as State Director of Education.
The said letter of termination cited Pohnpei State Law No. 2L57-81, Section 14, as the cause of his termination.
Pursuant to the terms of said letter he was terminated immediately upon its receipt.
7. On May 12,1986, the plaintiff filed a motion for reduction and modification of sentence in PTC No. 530-85. This motion was denied on June 9,1986. The plaintiff thus served out his one year suspended sentence in PTC No. 530-85, took no
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other action to remedy his out-of-job problem and on March 9, 1987, the plaintiff brought this action.
8. On September 9,1986, the defendants had filled the teaching position vacated by the plaintiff as the result of the plaintiff's conviction in PTC 530-86 and the letter of summary termination cited under paragraph 5 above. The plaintiff's cause of action thus is summarized as follows:
1. State Law 2L-57-81, particularly Section 14(1) which classifies persons currently under sentence for conviction of a felony (ex-felons currently under sentence) is suspect; and violates Equal Protection provision of the Constitution of Pohnpei;
2. Right to Work for the Government, unlike other jurisdictions, is a constitutionally protected fundamental right; and
3. The plaintiff's summary termination from his Govern ment position violates due process of law.
II. CONCLUSION OF LAW
Three basic issues are presented to the Court by this lawsuit:
A. Whether Section 14(1) of Pohnpei State Law 2L-57-81,
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violates the Equal Rights (Protection) provision of the Consti tution of Pohnpei.
B Whether Right to Work for the Government of Pohnpei is a constitutionally Protected Right.
C. Whether in applying Section 14(1) and the letter of summary termination dated May 7, 1986, the defendants violated the plaintiff's rights to due process of law as guaranteed by the Constitution of Pohnpei.
A. EQUAL PROTECTION CLAIM
[1 ] Article 4, Section 3, of the Constitution of Pohnpei guarantees equal protection of the law to all persons of this State. The section reads as follows:
Section 3. Equal Rights. No law or other government action may deny or impair the equal rights of all persons on account of gender, race, ancestry, national origin, religion, language, or social status. No person may be denied the equal protection of the law.
The statute challenged by the plaintiff here provides in Section 14 as follows:
"Section 14. Disqualification from Appointment and Service. This section shall apply to all Public Service System positions, inclusive of all positions exempted by Subsections (b) through (m) [sic) of Section 9 of this act:
(1) No person may be appointed or serve in Public Service System who is currently under sentence, inclusive of the period for which imprisonment or other punishment has been
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suspended, for conviction of a felony under the laws of this State or the National Government or any other State of the Federated States of Micronesia, or of the United States or any political subdivision thereof.
(2) Conviction of a felony after completion of sentence as specified in Subsection (1) hereof shall not be a bar to employment in the Public Service unless the Director deter mines that the nature of the felony renders the candidate clearly unsuitable for the position applied for.
(3) The willful commission of or the attempt to commit any material deception or fraud in connection with any application lion or examination shall cause removal and permanent dis qualification from appointment in the Public Service, after due notice and hearing by the Director."
Under the statutory scheme at issue here, Section 14(1) denies convicted felons the opportunity to hold or to be appointed to public service positions.
[2] This is a case of first impression, and this Court takes judicial notice of the fact that discrimination as is experienced in the United States is not the same as it is experienced here in Pohnpei. Accordingly one should not expect that decisions of this Court on issues of discrimination may follow exactly the lines of reasoning drawn by United States decisions, but the Court will consider decisions of the U.S. and other common law jurisdictions on similar issues for information and for what they are worth, and the Court may apply them as appropriate to the circumstances here.
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The plaintiff urges the Court to analyze the statute under attack here using the standard (test) developed and applied in the United States, namely, the strict scrutiny (compelling state interest) test.
Equal protection analysis under United States jurisdiction is "two-tiered": under the standard most often employed (minimum scrutiny or rational basis test) a state classification will be upheld if rationally related to a legitimate state purpose; but classifications that are "suspect" or that touch on a "fundamental interest" will be subjected to strict scrutiny and struck down unless justified by a compelling state interest. See Shapiro v. Thompson, 394 U.S. 618, 655, 89 S.Ct. 1322, 22 t-.Ed.2d 600 (1969); Dorrough v. Estelee, 497 F.2d 1007 (1974)
Under the standard above-briefed I need to determine first whether the statutory classification of felons is "suspect" or whether the statutory proscription of felons from public service touches upon any "fundamental rights" enshrined in our Constitution for the purpose of invoking the strict scrutiny test.
Pohnpei Constitutional Convention Sub-Committee Report , i No. 63 lists those categories intended to be labeled "suspect" and
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they include: sex, race, ancestry, national origin, religion, language, or social status. Section 3 of Article 4 of the Constitution of Pohnpei lists the categories that are suspect as: gender, race, ancestry, national origin, religion, language, or social status.
"Any governmental action that classifies according to these constitutes suspect criterias. Because of this, the government must prove a compelling governmental interest in the classification." (Con. Con. Report No. 63)
No case law has been known to this Court where classification based on criminal record is suspect. In a U.S. Federal Court case the court said:
"A classification based on criminal record is not a suspect classification". See Hunter v. Erickson, 393 U.S. 385, 89 S. 01557 (1969). Thus such a classification does not require the rigid scrutiny that suspect classifications bring forth. Butts v. Nichols, 381 F. Supp. 573 (1974)
[3] Accordingly I hold that the classification of ex-felons currently under sentence under State Law 2L-57-81, Section 14(1), is not suspect within the suspect classifications of Section 3, Article 4 of the Constitution of Pohnpei, and therefore it does not require the strict scrutiny test that suspect classifications require.
B. RIGHT TO WORK FOR THE GOVERNMENT
I next address the question of whether right to work for the Government is a constitutionally protected fundamental right.
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The plaintiff urges this Court to adopt a policy to the effect that right to work for the Government is a fundamental right subject to the strict scrutiny test. In support of this argument, plaintiff states,
"In the State of Pohnpei, unlike the United States, more than 50% of the adult work force is employed by the government. FSM 1st National Development Plan, at 92 Mr. Joseph Paulus has spent his entire adult working life as a teacher employed by the Pohnpei State Government and as a result thereof has severely limited his marketability to any career outside of elementary school teaching.' (Plaintiff's Points and Authorities, page 2).
We find however in the Public Service System Regulations the Government Policy as set out in part under Section 1.1, to wit,
"1.1 POLICY. The Public Service system shall be career service, based on merit principles, and free of discrimination or political influence. h is designed to attract, select, and retain the best qualified persons available, with incentives for competent and loyal employees, and a means to eliminate unnecessary or inefficient employees.*
[4] Though the plaintiff's argument above has some merit, the Government policy of public service, supra, which is based on merit explicitly shows that one can get hired or retain his public service career if he performs well on the job or maintains an acceptable status of conduct. Thus working for the Government of Pohnpei is merely a privilege which can be withheld subject to the due process of law.
I found no precedent where the Court has held that right to
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public employment is a fundamental right for the purpose of invoking the strict scrutiny test. In Butts v. Nichols, supra, the Court said at page 579:
". . . although the right to seek employment is vital to all individuals as it relates to supporting themselves and their families and maintaining their self-respect and esteem, the Court can find no support in precedents at this time for a holding that the right to public employment is a fundamental right which could invoke the compelling state interest test. See also McConnell v. Anderson, 316 F. Supp. 809.
[5-8] For the reasons considered I conclude for this jurisdiction that right to work for the Government is not a constitutionally protected right under the Constitution of Pohnpei which would require invoking of the strict scrutiny test. Lest this conclusion pose any misunderstanding, the Court emphasizes here that "constitutional protection" does extend to the employees of the Government whose exclusion pursuant to a state statute is patently arbitrary or discriminatory. Wieman v. Updegraff, 344 U.S. 183, 192, 73 S.Ct. 215, 219, 97 L.Ed 216 (1952) Likewise, a person applying for government employment is also entitled to equal protection against arbitrary or discriminatory treatment by the Government. Scott v. Macy, 349 F.2d 182. Of course our Government does have discretion in hiring or firing employees, but
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that discretionary power does not carry with it the right to its arbitrary exercise. Shachtman v. Dulles, 225 F.2d 938, 941 (1955) These rights are protected by our State Constitution and will be enforced by the Court.
Having determined that the strict scrutiny test is not applicable here, I must therefore analyze the statutory prohibition against the employment of convicted felons under sentence in light of the rational basis test.
In defining the basic inquiry of the rational basis test, also referred to as the minimum scrutiny test, the United States Supreme Court has stated.
". . . the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920)
Recent United States Supreme Court cases have made it quite clear that simply discerning any legislative reason, however plausible, will not serve to satisfy the rational basis requirement. U.S. Dept of Agriculture v. Moreno, 413 U.S. 528, 92 S.Ct. 2821, 37 L.Ed. 2d 782 (1973); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251,
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30 L.Ed. 2d 225 (1971). The relevant inquiry should more properly focus upon whether the means utilized to carry out a legislative purpose substantially further that end. Butts v. Nichols , 381 F. Supp. 573, 579 (1974).
[9] Applying the foregoing principles to the case before me, my first task is to isolate the Pohnpei Government interest served by Section 14(1) of the State Public Service System Act of 1981 (2L-57-81). The defendant State admitted that Pohnpei Government has a legitimate interest in assuring the high quality of the public service and in ensuring that the rules of society are taught by those who have not shown an unwillingness to abide by those rules. On the other hand the State admits that it also has an interest to rehabilitate felons and assist them in their resumption of responsibilities. The perceived state interest involved is a protective and moral one.
[10] The Legislature sees it unfit and morally wrong for a person convicted of a felony and is under sentence to be an employee of the State Public Service System. The validity of these legislative purposes, however wise, is the province of the Pohnpei Legislature, and this Court lacks jurisdiction to determine such
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validity by virtue of the separation of powers doctrine. See People of Kapingamarangi, et al. v. Pohnpei Legislature, PCA No.188-85 (1985). However, the means utilized to implement those purposes are the proper subject of judicial evaluation. Art. 10, Sec. 1, PNi Const., S.L. 2L-160-82, Sec. 51.
Under Section 14(1), any person who has been convicted of a felony and is currently under sentence:
(a) will not be considered for appointment to any public service position if he applies for one, regardless of how qualified he she is;
(b) will be terminated if he is already hired and holds a public service position, again regardless of how well he had per formed on the job or whether the felony committed had any direct bearing on his/her job.
This sub-section contemplates no hearing, whereas Subsections 2 and 3 respectively of Section 14 require hearing prior to any determination made by the Director. As applied to the plaintiff in this action, he falls within the subclass (b). The plaintiff had served in the capacity of an elementary school teacher for over 13 years. His performance record shows satisfactory. He was terminated
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following his conviction and sentence for the traffic offense of "causing death or bodily injury while driving under the influence of intoxicating liquor" (S.L. 2L-132-83, Sec. 806). This traffic offense reads as follows:
"Any person operating or driving a motor vehicle of any kind while under the influence of intoxicating liquor, and who, by reason of such condition, does any act or neglects any duty imposed by law, which act or neglect of duty causes the death of or bodily injury to any person, shall be punished by imprisonment for less than three years or a fine of less that $3,000, or both."
The offense committed by the plaintiff which prompted his dismissal from his teaching position is not directly related to his Government employment, nor was there evidence to prove that plaintiff's performance skill would be affected by the conviction and sentence.
[11 ] It is beyond doubt however that the Pohnpei Government could logically prohibit and refuse employment in certain positions where the felony conviction and the sentence would directly reflect on the felon's qualification for the job (e.g. conviction of embezzlement and a job requiring the handling of large sums of money). The statutory scheme in question here has an across-the-board prohibition against the employment of felons in Pohnpei Public Service positions. There is no tailoring in an effort to limit the statutory
[2 P. S. Ct. R 503]
prohibition to those convicted felons who otherwise lack the habits of industry, obedience, fidelity or whose apology tendered under the Pohnpeian custom for the crime committed has not been mutually accepted. No consideration is given to the well-known belief in Pohnpei that "aramas koaros kin sapwungala". We must keep in mind that Article 5 (Tradition) of our State Constitution upholds, respects, and protects the customs and traditions of the traditional kingdoms in Pohnpei. Sections 1-13 and 9-1, respectively of the Pohnpei Crimes Act of 1985 do recognize Pohnpeian custom in criminal proceedings. Section 14(1) of the Public Service System Act in question here seems to run afoul of the constitutional and statutory recognition of our customs, supra.
[12] Additionally our State Government should be sensitive to the punitive effects across-the-board "felons bans" can have on individuals seeking to rehabilitate themselves, and according have demanded a precision of classification which would avoid the adverse effects of statutes such as the one at issue here. Section 14(1) operates in effect to double punish persons who are classed as felons. Is this in conformity with our concept of justice? I have no hesitancy in answering this query in the negative. The punitive
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effect of this statute on persons classed as "felons" does not support implementation of the Government "admitted policy" of rehabilitating persons who are convicted of crimes.
[13] Seriously, Section 14(1) puts into question the legality of the Court Probation Service program which includes placing probationers in both Government and private employment as a rehabilitative means. Finally Section 14(1) defeats the Government purpose (also admitted by the defendants) of rehabilitating persons convicted of crimes and assisting them in their resumption of responsibilities, in order to help them to become good members of our society.
[14] Section 14(1), in my opinion, is without reasonableness and is arbitrary. Its arbitrariness is greatly increased when one considers certain sampling of its implementation by the Government, to which judicial notice is given. In the instant case, the plaintiff who had been a Government employee for over 13 years had to be terminated following his conviction and sentenced of a felony. In the case of Pohnpei State v. Richard Porter, Crim. Case No. 565-84, the defendant there was found guilty of vehicular homicide and was sentenced in February 1985. During the
[2 P. S. Ct. R 505]
pendency of the defendant's sentence, the Government appointed him as a medical officer at the Pohnpei Hospital, in direct violation of the statute. Section 14(1) is not only arbitrary and unfair, it also invites abusive discretion on the part of the management officials as is exemplified above. This type of unfair treatment on the part of the government officials charged to enforce the statute under attack here must stop.
[15] Without a more precise relationship of the means utilized by Section 14(1) to achieve the desired legislative purpose, this section of the statute clearly violates the tenet of Equal Protection analysis that the exclusion of the plaintiff and all felons under sentence is "necessary to achieve the articulated state goal." Kramer v. Union Free School District, No. 15, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed. 2d 583 (1969) By enacting a blanket prohibition on all ex-felons, a clearly anomalous situation results. For example, persons convicted of any felonious crimes would be sentenced as felons, and hence would lose public service eligibility, no matter the nature of their job. In contrast, an individual convicted of a crime clearly involving dishonesty, such as a petit larceny (Section 7-5, Pohnpei Crimes Act of 1985) would not be a
[2 P. S. Ct. R 506]
felon, and hence would be eligible for a number of public service jobs wherein such criminal propensities would pose a threat to the Government.
[16] I conclude that Section 14(1) of the Pohnpei Public Service System Act of 1981 (2L-57-81) is impermissibly arbitrary, and is irrationally unfair, and the means applied by the Government to accomplish the legislative purpose of protecting the integrity and fidelity of the public service system violates the Equal Rights provision of the Pohnpei Constitution.
III. DUE PROCESS CLAIM
The plaintiff complains that his summary termination without hearing violated his procedural due process. On May 8, 1986, the plaintiff was terminated summarily without a hearing or opportunity to be heard by the defendant [Damian Sohl, acting in his capacity as State Director of Education. This fact is not disputed as the Director Damian Sohl's letter of May 7, 1986, proves it.
[17] Due process of law as we adopted in our Pohnpei Constitution reads at Article 4 Section 4:
. Due Process of Law. No person may be deprived of life, liberty, or property without due process of law. Private property may not betaken except for a public purpose with just compensation."
[2 P. S. Ct. R 507]
[18-20] The concept of due process of law has two aspects, namely substantive due process and procedural due process. Substantive due process relates to the constitutional guaranty that no person shall be deprived of his -life, liberty or property for arbitrary reasons. Such a deprivation is supportable constitutionally only if the conduct from which the deprivation flows is proscribed by reasonable legislation. The legislation shall be enacted within the scope of legislative authority and be one reasonably applied for a purpose consonant with the purpose for which it was enacted.
[21-22] Procedural due process relates to the requisite characteristics of proceedings tending toward a deprivation of life, liberty, or property and thus makes it necessary that a person whom it is sought to deprive of such a right must be given notice of this fact; in other words, he must be given notice of the proceedings against him in that regard, he must be given an opportunity to defend himself before a tribunal or office having jurisdiction of the cause; and the problem of the propriety of this deprivation, under the circumstances presented, must be resolved in a manner consistent with essential fairness, otherwise, in accordance with
[2 P. S. Ct. R 508]
Pohnpeian concept of justice. This idea of procedural due process is reflected in the statement that "it is the rule as old as law itself that no man shall be personally bound until he has had his day in court. 16 Am Jur 2d. Constitutional Law. Sec. 813.
The facts of the instant case shows that the plaintiff's substantive due process--his property right in his Government position which he had held for over 13 years--was deprived of him by virtue of Section 14(1), and at the same time he was deprived of his procedural due process when his termination was effected without a hearing.
However, it is without question that all of this happening flows from the effect of Section 14(1) which the defendant Director of Education was charged to rely upon. It should also be recognized that had the plaintiff failed to pay the fine of $500 imposed as the "alternative sentence" (Finding of Fact paragraph 4), the plaintiff here would have been incarcerated for one year and would be out of job, any way.
[23] Section 14(1) was a general law which prohibits all convicted felons from appointment or from serving in the Pohnpei Public Service System. After considering the findings and sen-
[2 P. S. Ct. R 509]
tence imposed by the Court in Pohnpei v. Joseph Paulus, PN Traffic Case No. 580-85, the defendant Director of Education saw no alternative choice of management action other than to follow the letter of the law, hence to order the termination of the plaintiff from his teaching employment. Again, if this act on the part of the defendant violates the plaintiff's due process right, it was because of Section 14(1). The effect of the statute is offensive to the due process right enshrined in our Pohnpei Constitution and ought to be struck down.
[24] In their concluding argument, the defendants urged this Court to consider the following suggestion: If the Court finds the law unconstitutional, for whatever reason, the Court could order the ruling to have prospective application only, not retroactive. This is within the discretion of the Court, for the plaintiff's requested remedies are equitable in nature.
In support of their recommendation, the defendants urged the Court to consider the specific facts of the case, to wit,
1) The plaintiff didn't commit just any felony, he committed the worst crime under State law because it involved the death of another human being;
[2 P. S. Ct. R 510]
2) The plaintiff did not serve any of the jail time imposed - it was suspended;
3) The plaintiff waited until his sentence was finished before attacking the statute. He didn't work nor did he use diligence to protect his alleged rights for over a year; and yet now he wants back pay;
4) His teaching position had been filled by another person who had not committed a felony; and
5) It is unfair to grant the plaintiff's demands even if the Court finds the statute unconstitutional.
[25] It is true that Courts under common law jurisdictions generally have power to deny retroactive operation of an overruled decision or statute declared unconstitutional. 10 ALR 3d, Overruling Decision - Application, Sec. 7, at 1393. The U.S. Supreme Court laid down a prospective principle "in a manner that will not prejudice those who might have relied on it, James v. United States, 366 U.S. 213, 221, 81 S.Ct. 1952, 6 L.Ed. 2d 246 (1961). Thus the accepted rule today is that in appropriate cases the Court may in the interest of justice make the rule prospective. Linkletter v. Walker, 381 U.S.
618, 628, 85 S.Ct 1731 (1965). And "there is
[2 P. S. Ct. R 511]
much to be said in favor of such a rule for cases arising in the future." Mosser v. Darrow, 341 U.S. 267, 276, 71 S.Ct. 680, 684 (1951) (dissenting opinion of Black, J.). A ruling which is purely prospective does not apply even to the parties before the Court. Linkletter, supra, at p. 622 of U.S.
[26] The reasons advanced by the defendants, supra, in favor of a prospective ruling, coupled with the State of economic dependency that out State, like other States of our young island nation, has on the United States deserve serious consideration. For a jurisdiction that has just been permitted to chart its own destiny politically, economically, and otherwise and whose survivability depends largely on foreign assistance the adoption of a policy favoring prospective ruling and application of court decisions overruling previous decisions or declaring statutes unconstitutional is in order, insofar as the ruling does not prejudice those who might have relied on such ruling or on such statute.
Finally the plaintiff, in addition to other remedies sought, requests damages for total lost wages and cost of this suit. I think, in view of my holding here that the ruling in this case be applied prospectively, plaintiff's request for damages should be denied.
[2 P. S. Ct. R 512]
However, a word of memorandum is in order here: It should be remembered that the plaintiff had served his suspended sentence according to law and has been discharged. He is eligible to hold public service positions.
ORDER OF JUDGMENT
It is ORDERED, ADJUDGED, and DECREED that this shall constitute the Findings of Fact, Conclusions of Law and that JUDGMENT is entered as follows:
1. Section 14, Subsection (1) of Pohnpei State Law 2L-57-81; otherwise known as the State Public Service System Act of 1981, is unconstitutional in violation of the Equal Rights and Due Process provisions of the Constitution of Pohnpei in that:
(a) the statute arbitrarily discriminates all categories of felons without afford any means to screen out those felons whose convictions have no relation whatever to their Government positions or their ability to perform on the job;
(b) there is no rational relationship between the Government interest of assuring the high quality of public service and of ensuring that the rules of society are taught by those who have not shown an unwillingness to abide by those rules and the means denying all categories of felons the access to public employment used to effect that Government interest.
2. The State of Pohnpei is enjoined from enforcing Section 14, Subsection (1) of Pohnpei State Law 2L-57-81 against
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plaintiff or against any other person similarly situated.
3. This judgment applies prospectively.
4. The plaintiff's request for damages is denied.
5. Each party shall bear his own cost.