Oliver files opposition to government’s motion to dismiss her civil action in the Sokehs road paving matter

By Bill Jaynes

The Kaselehlie Press

 

November 6, 2020

Pohnpei—The attorney for Norleen Oliver today filed its opposition to defendants’ motion to dismiss in the civil action case against the FSM Government and officials regarding governmental actions against Oliver when she blocked the driveway leading to Patricia Edwin’s home.  As covered in the previous issue of The Kaselehlie Press, the government filed a motion to dismiss Oliver’s on October 19. As expected, Oliver’s opposition to that motion argued its reasons for denying that motion on every point.

All of these matters, the Defendants’ motion to dismiss and the Plaintiff’s opposition to the motion to dismiss are preliminary matters to any actual trial on the merits of the Plaintiff’s causes of action. The Court has yet to rule on either motion and the arguments contained in both the motion to dismiss and the opposition to that motion are merely the defendants’ and the plaintiff’s points of view and interpretations of case law precedent on the matter.  The court will now need to balance the arguments and make a ruling before anything further can be done to bring the matter to a conclusion.

In its opening lines, the opposition motion says that the “factual background” as stated in the Plaintiffs’ motion to dismiss is “full of inaccurate facts and therefore should be restated as factual ‘allegations’ instead of factual background…the Court is kindly requested to note the difference, and treat the Defendants’ factual background submission as factual ‘allegations’.”

It said that the government defendants’ claim that the civil action fails to state a claim upon which relief can be granted falls flat. Oliver’s attorney says that the legal standard is that a claim cannot be dismissed on that argument unless it can be said, “with a certainty, that no relief can be granted under any facts that could be proven by the plaintiff in support of its claims” which she argues cannot be said under the facts of the matter.

Oliver argues that the government defendants’ claim that by filing the civil action she is merely “forum shopping”, the practice of choosing the most favorable jurisdiction in which a claim might be heard, because

the government had already filed criminal charges against her also falls flat. Though based on the same facts and the same event, the issues to be decided in the two cases are completely different.

Also as expected, Oliver’s attorney took issue with the use of the doctrine of collateral estoppel raised in the government’s motion to dismiss.  “Plaintiff is baffled as to why the Defendants have raised this defense at this time when the criminal matter they rely on is still in its probable cause finding stage.  There is actually no ruling from the FSM Court yet as to a finding of probable cause for the two (2) offenses alleged in the criminal information in Criminal Case No. 2020-503.  How then can the Defendants use collateral estoppel as a defense at this time?” 

At the time that the opposition motion was filed, the Court had not yet ruled on whether there was sufficient cause to enter the prosecution stage of the criminal case which later held that there were not sufficient grounds to charge Oliver of the felony charge filed against her but that she must stand trial for the misdemeanor charge.

The opposition motion says that the government’s dismissal argument on the matter of due process violations was based on a misinterpretation of Oliver’s affidavit and so should be rejected. Plaintiff had testified under oath that she did park her car where she did in order to stop contractors from going onto the road on her private land to pave it without her permission but not to block access of the road going up to the one residence situated above her land.

The opposition motion argued that, “there are boundaries and jurisdictional issues with respect to enforcement of criminal laws in this country.  The FSM AG does not have sweeping and overall authority to enforce the laws of this country.” It continued to argue that the FSM Attorney General and his FSM Police Officers had overstepped that boundary in their actions against Oliver.

On the issue of “trespass” Oliver requests the court to note that, “the Defendants’ sole defense is that the Plaintiff does not own the property.” It says, “For a claim of trespass, title is not a prerequisite. A trespass action is one for violation of possession, not for challenge to title.”

The government had claimed that a survey shows an existing road covering a few parcels of land, none of which was titled to the Plaintiff but provided no documentation of that claim. Oliver claims that 99 percent of the piece of road that was previously paved while she was off island and also without her permission runs on her family’s land with only a very small portion crossing over onto Ioanis Rasa’s property.

The government defendants claimed that the National Police could not safely carry out their duty to provide “24/7” protection to the President and the First Lady. Oliver argues that when the National Police were called to the scene there was no one there except for her own car. There had been no police officer with the First Lady on that day because, Oliver claimed, “the First Lady was simply going on her way with a private matter.”

The opposition motion tells the court that Patricia Edwin is the sole landowner of the land above Oliver’s family land and that President Panuelo is not legally married to her and therefore owns no portion of that land. It is not an official residence. “There is no national law offense committed and the taking of the vehicle without a court order or a warrant is a due process violation,” it said.  Further, by the time police impounded Oliver’s vehicle she had already voluntarily moved it.

“A personal dispute between a First Lady and her neighbor does not rise to the level of national offense that warranted government intervention through law enforcement of this national magnitude,” Oliver argues.  She claims that Edwin was able to drive around Oliver’s vehicle and the only impediment was to the contractors who she said were planning to enter the property without the owner’s permission. “Under what authority does the government enter private land to modify its landscape without the landowner’s permission?” she asked.

Oliver’s attorney argued against the government’s claim that the road pavement project is a public project. She called the project itself a violation of due process. “Can the government go onto any private person’s property and install a public project without permission by the landowners?” she asked.

“The Defendants refuse to admit that the use of government funds to pave a private road is embezzlement,” Oliver claims.  “The public law appropriating the funds is for the Sokehs Road Paving Project, not Trisha Edwin’s road project. The access road in question serves two families only, the plaintiff and her family and Trisha Edwin, whose land is located up the hill.  There are no other families and it is not a public access road or a community access road.  Therefore, the funding surely was not meant for the pavement of Trisha Edwin Amor access road.” She claims that the Sokehs Road Pavement Project was intended to benefit the community of Sokehs, perhaps by continuing the pavement of the Sokehs Island circumferential road.  “The law does not allow public funds to be used for private purposes,” she argues.

The government defendants argued in their motion to dismiss that the entire civil action should be thrown out for failure to name an indispensable party, the contractor, in the lawsuit.  Oliver argued that the contract that engaged the contractor is itself illegal and should therefore be nullified. However, she argues, if the Court disagrees with that assertion, the failure to name that party could be easily rectified by a Court order requiring the Plaintiff to name the party. She says that the Court is under no obligation to dismiss the civil action for failure to name the party.

On the matter of jurisdiction, Oliver argues that since neither Patricia Edwin nor the President live on the property in question, “the government has no business treating the land as official land or home of the First family,” and therefore has no jurisdiction in the matter. “The FSM Government cannot sit in its offices in Palikir, then unilaterally decide to construct a road on private land somewhere in Pohnpei, and call it a government project and therefore claim government jurisdiction,” she argues.

On the matter of intentional infliction of emotional distress, Oliver asks the Court to allow the claim to proceed so that she can produce evidence to prove the physical manifestation of the alleged infliction of emotional distress.

Lastly she provides points and authorities that she claims back her reasons and right for filing the lawsuit against government officials both in their official and personal capacities.

Each of the two motions span more than 30 pages.  The Court will have a lot of work to do before it can make any ruling on which of the arguments it accepts.