THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as In re Legislative Subpoena,
7 FSM Intrm. 259 (Chk. S. Tr. 1995)

[7 FSM Intrm. 259]

IN RE: LEGISLATIVE SUBPOENA
SASAO H. GOULAND,
Plaintiff,

vs.

HOUSE SPECIAL INVESTIGATION COMMITTEE,
Defendant.

CA No. 182-95

OPINION
 
Soukichi Fritz
Chief Justice

Hearing and Decided:  September 1, 1995
Opinion Entered:  September 22, 1995

APPEARANCES:
For the Plaintiff:          Wesley Simina, Esq.
                                     Attorney General
                                     Office of the Chuuk Attorney General
                                     P.O. Box 189
                                     Weno, Chuuk FM 96942

For the Defendant:     Daniel Furrh, Esq.
                                     Legislative Counsel
                                     P.O. Box EX
                                     Weno, Chuuk FM 96942

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HEADNOTES
Constitutional Law ) Chuuk ) Executive Powers
     Because the Office of the Chuuk Attorney General is not a constitutional officer but rather is a principal officer of the executive and advisor to the governor and serves at his pleasure the Chuuk

[7 FSM Intrm. 260]

Attorney General cannot prosecute the governor.  That would be the constitutional responsibility of the Independent Counsel.  In re Legislative Subpoena, 7 FSM Intrm. 259,260 (Chk. S. Ct. Tr. 1995).

Constitutional Law ) Chuuk ) Executive Powers
     The governor does not have free rein to use the Attorney General's Office to litigate private matters outside the scope of his duties as governor, but until such time as he ceases to be able to act as governor pursuant to a bill of impeachment or other constitutional process he may utilize that office's services to litigate such matters as concern his acts as governor.  In re Legislative Subpoena, 7 FSM Intrm. 259, 261 (Chk. S. Ct. Tr. 1995).

*    *    *    *

COURT'S OPINION
SOUKICHI FRITZ, Chief Justice:
     Counsel for the defendants moved the court to disqualify the Attorney General from representing the plaintiff in this matter.  After a hearing on September 1, 1995, the motion was orally denied in open court.  This opinion sets forth the reasons for the denial.

     The central premise for the disqualification was based upon the Rules of Professional Responsibility primarily the one the prohibiting conflicts of interest. Additionally, the defendants claimed that the matter of the legislative subpoena was a private matter.  First the court will deal with the conflict of interest.

Conflict of Interest
     The defendants assert that since the legislature is investigating the performance of the Governor their investigation may produce evidence of criminal wrong doing. Because the Attorney General's Office is responsible for prosecuting alleged crimes in Chuuk State representing the plaintiff would create a conflict.  This argument assumes that the Attorney General is in essence the Chief Legal Officer for the State.  For this to be true, the Attorney General's Office would have to be independent of the Chief Executive and the Executive Branch of government.  This is not the case.  The Office of the Attorney General in not a constitutional officer but rather is a principal officer of the executive and advisor to the governor.  Chk. Const. art. VI, 2(b).  The fact is that the Attorney General serves at the pleasure of the governor.  As such the Attorney General can not prosecute the governor in any case as he has by the nature of his employment a confidential attorney-client relationship with the governor.

     There is in fact a constitutional provision for an independent counsel whose constitutional duty is to prosecute governmental officials that commit criminal acts while in office.  Chk. Const. art. IX, 4(a).  Unfortunately, this position has never been filled.  Until this position is filled or the Attorney General's Office is made independent of any branch of government the Attorney General remains an employee of the governor and could not prosecute his client for criminal acts.  Thus, the court must conclude that there is no potential for a conflict of interest in the Attorney General representing the Governor in this case.  But, there would in fact be a conflict of interest if the Attorney General were to undertake the prosecution of the governor for criminal activity given the nature of his employment and relationship to the Chief Executive.

[7 FSM Intrm. 261]

Nature of the Proceedings
     The second assertion is that the legislative subpoena at issue here is in reality a personal matter and thus the plaintiff should not be able to use the Attorney General in non-government related litigation.  The fact is that at this time the defendants are investigating the functioning of the executive branch of government.  In particular the investigation concerns whether or not there has been mismanagement on the part of the plaintiff or worse, misfeasance or malfeasance.  As counsel asserts the investigation could potentially uncover criminal activity.  The plaintiff is a subject of the investigation because he is in fact the governor and as such is responsible for faithful execution and implementation of all state laws.  Chk. Const. art. VI, 1.  Thus the investigation concerns the plaintiff's acts as governor in properly executing and implementing the laws.  The court believes that until such time as the plaintiff ceases to be able to act as governor pursuant to a bill of impeachment or other constitutional process he is entitled to utilize the services of his attorney to litigate such matters concerning his acts as governor.  This is not to say that the governor has free rein to use the Attorney General's Office to litigate private matters outside the scope of his duties as governor.1  But at this point and in this situation the governor has the right to use the Attorney General to test the scope of the legislative subpoena power.

     For these reasons the court denied the motion to disqualify the Attorney General's Office from the representation of the plaintiff in this matter.