Oliver argues First Lady not government official and charges of “obstruction of governmental function” do not apply

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Published: Monday, 30 November -0001 00:00

Written by Bill Jaynes

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By Bill Jaynes

The Kaselehlie Press

January 2, 2021

Pohnpei—The attorney for Norleen Oliver filed a motion at the FSM Supreme Court to dismiss the one remaining criminal charge against her client.  The court had earlier dismissed one of the criminal charges filed against her, “Deprivation of Rights”. One misdemeanor criminal charge remains—“Obstructing Administration of Law or Other Governmental Function”, which carries a penalty of not more than one year.

The FSM Department of Justice filed the charges against Oliver after Oliver admittedly parked her vehicle on a private road on land she has custody of, allegedly blocking access to First Lady Patricia Edwin to Edwin’s family land at the end of that private road.

Oliver argues that the term “First Lady” is not an official title, but only a ceremonial one and that therefore, the First Lady is not a public official. She argues that a plain reading of the law shows that since the First Lady was not “elected, appointed, or employed” to perform a governmental function, she is not a public official.

She quotes the FSM Supreme Court in its ruling in the matter of Janet Semes Panuelo v. the FSM Government et., al in Civil Action 2019-025.  In that matter, the FSM Supreme Court held that:

“The ‘office’ of the First Lady is not a Constitutional Office. Nor is it an office created by statute. It is an office for which a writ of quo warranto will lie to determine the right to hold the office. It is a title that is, or has been customarily bestowed on or used to honor the President's wife, who is then expected to perform varied social and diplomatic functions on the President or the nation's behalf.”

Oliver claims that the court’s own previous ruling acknowledges that the office of the First Lady is not established by constitution nor statute and therefore is not a public office.  Therefore, the Court cannot rule

that any action Oliver may have taken was obstruction of a public official to carry out official duties.

In its reply to the Defendant’s motion to dismiss, the FSM Department of Justice (DOJ) cites no previous Supreme Court rulings on the matter of whether or not the position of First Lady makes her a public official.  However, it argued a different reading of the Supreme Court ruling quoted in Oliver’s motion to dismiss.  In what was probably a typographical error since DOJ represents the FSM Government as Plaintiff in the criminal matter, DOJ wrote, “The Defendant respectfully submits that if the First Lady is expected or has been to conducting diplomatic functions as diplomatic representative which are traditionally regarded as falling with the scope of consular functions then they are considered as official agent of the Government.”

DOJ also argued that FSM President David Panuelo issued a Presidential Order “to develop an office space for the First Lady to promote and advocate on important issues such as the strengthening of the FSM’s implementation of the Individuals with Disabilities Act…and other humanitarian initiatives. These are official duties assigned to the First Lady,” the DOJ claimed.

Oliver went on to argue that if the position of “First Lady” is not included in the definition of “public official” or “public servant” the FSM Supreme Court does not have jurisdiction to prosecute the matter since it is therefore not an offense under the definition of FSM law.

Oliver additionally argues that even if the Court were to find that the definition of public official “somehow covers the First Lady’s ceremonial role, there was no allegation that the First Lady was engaged in or attempting to engage in any official duty at the time of the alleged conduct on 18 September 2020.”  She argues that “there was no official duty being discharged because the First Lady was merely visiting her private land on her own time.”

DOJ argued in its response that, “The First Lady is the First Lady 24/7 or 24 hours 7 days a week or at all times. The First Lady is never just the First Lady while attending an official function but the First Lady at all times. The official function does not make the First Lady in her official capacity but the First Lady is in her official capacity at all times. The Defendant interfered with, delayed, or obstructed the First Lady in her official capacity when she intentionally blocked the road leading to the First Lady's residence in Ipwal, Sokehs.”

Oliver’s attorney argued that it is the burden of the government to show or to prove that she knew that the First Lady was attempting to carry out an official duty but that Oliver was intent to prevent her from doing so.  She claims that since it was a private road upon which she could not have reasonably believed anyone would be attempting to carry out any official duty, the question arises as to whether there is a requisite allegation of “willfulness”.  She quoted a previous ruling from 1998 in which the court held that criminal contempt requires a specific intent to consciously disregard an order of the court, and that willfulness does not exist where a defendant pursues in good faith a plausible though mistaken alternative.

DOJ argued that at the “probable cause hearing on October 3, 2020, the Defendant stated in her testimony that, after returning from town around mid-day on September 18, 2020, she was informed that the First Lady could not access the road because her vehicle…was causing an obstruction. She made no attempt to remove her vehicle until on or about 8pm the same day when she allowed the FSM National Police officers to remove her vehicle from the spot.”  DOJ argues that fact and others demonstrate “willfulness”.

The defendant’s motion to dismiss and the plaintive response to that motion are preliminary matters to the remaining criminal charge to be heard by the FSM Supreme Court.  While the Court has already ruled to dismiss the criminal charge of deprivation of rights against Oliver, it has not yet had opportunity to rule on the most recent preliminary filings.