ARTICLE IV
Declaration of Rights
Case annotations: Statutory provisions which carried over from Trust Territory Code and were reproduced and referred to as "Bill of Rights" in 1 FSMC 101-114, may retain some residual vitality in the unlikely event that they furnish protection beyond those available under Constitution's Declaration of Rights. FSM v. George, 1 FSM Intrm. 449, 454-55 (Kos. 1984).
Provisions in Declaration of Rights in FSM Constitution concerning due process and right to be informed are traceable to Bill of Rights of U.S. Constitution. Engichy v. FSM, 1 FSM Intrm. 532, 541 (App. 1984).
Because Declaration of Rights is patterned after provisions of U.S. Constitution, and U.S. cases were relied on to guide the constitutional convention, U.S. authority may be consulted to understand the meaning. Afituk v. FSM, 2 FSM Intrm. 260, 263 (Truk 1986).
In adopting Declaration of Rights as part of FSM Constitution and therefore the supreme law of the land, the people of Micronesia subscribed to various principles which place upon the judiciary the obligation, among others, to assure that arrests are based upon probable cause, that determinations of guilt are arrived at fairly, and that punishments for wrongdoing are proportionate to the crime and meet prescribed standards. Tammed v. FSM, 4 FSM Intrm. 266, 281-82 (App. 1990).
When a trial court is asked to give special mitigative effect to customary punishment during its sentencing proceedings, the court must first consider whether these customary activities have become so imbued with official state action so that actions of assailants are seen as actions of the state itself; if so punishments must be tested by same standards that would be applied if state officials carried out these punishments directly. Tammed v. FSM, 4 FSM Intrm. 266, 283 (App. 1990).
Compact of Free Association's immunization provisions, which limit a plaintiff's right to sue a physician for malpractice, do not affect a fundamental right, and therefore, provisions need not be subjected to strict scrutiny, but instead should be tested under less stringent rational relationship test. Samuel v. Pryor, 5 FSM Intrm. 91, 104 (Pon. 1991).
Section 1. No law may deny or impair freedom of expression, peaceable assembly, association, or petition.
Case annotations: Right of citizens to express their views, including views critical of public officials, is fundamental to development of a healthy political system. Therefore, courts are generally reluctant to find that expression of opinions asserted outside of the court itself, however intemperate or misguided, constitute contempt of court. In re Iriarte (I), 1 FSM Intrm. 239, 247-48 (Pon. 1983).
Section 2. No law may be passed respecting an establishment of religion or impairing the free exercise of religion, except that assistance may be provided to parochial schools for non-religious purposes.
Section 3. A person may not be deprived of life, liberty, or property without due process of law, or be denied the equal protection of the laws.
Case annotation: Due
Process
Due process may well require that, in a Nat'l Public Service System employment dispute, the ultimate decision-maker reviews the record of the ad hoc committee hearing, at least insofar as either party to personnel dispute may rely upon some portion of record. Suldan v. FSM (I), 1 FSM Intrm. 201, 206 (Pon. 1982).
Words "due process of law" shall be viewed in light of history and accepted meaning of those words prior to and at the time Constitution was written. Alaphonso v. FSM, 1 FSM Intrm. 209, 216-17 (App. 1982).
Due Process Clause of Constitution requires proof beyond a reasonable doubt as a condition for criminal conviction in FSM. Alaphonso v. FSM, 1 FSM Intrm. 209, 217-23 (App. 1982).
As a matter of constitutional due process, trial court presented with alibi defense should consider evidence concerning the alibi along with all other evidence and shall not find defendant guilty if after considering all of that evidence, the judge feels there is reasonable doubt of defendant's guilt. Alaphonso v. FSM, 1 FSM Intrm. 209, 223-25 (App. 1982).
Preservation of a fair decision-making process, and even the maintenance of a democratic system of gov't, requires that courts and individual judges be protected against unnecessary external pressures. In re Iriarte (I), 1 FSM Intrm. 239, 247 (Pon. 1983).
In habeas corpus proceeding, court must apply due process standards to actions of courts which have issued orders of commitment. In re Iriarte (I), 1 FSM Intrm. 239, 249 (Pon. 1983).
FSM Constitution does not contemplate that citizens of FSM should be required to travel to Saipan or to petition anyone outside of FSM to realize rights guaranteed to them under the Constitution. In re Iriarte (I), 1 FSM Intrm. 239, 253 (Pon. 1983).
A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. FSM v. Nota, 1 FSM Intrm. 299, 304 (Truk 1983).
Gov't employment that is "property" within meaning of Due Process Clause cannot be taken without due process. To be property protected under the Constitution, there must be a claim of entitlement based upon governmental assurance of continual employment or dismissal for only specified reasons. Suldan v. FSM (II), 1 FSM Intrm. 339, 351-52 (Pon. 1983).
Fundamental
concept of procedural due process is that gov't may not be permitted to strip citizens of life, liberty or property in an unfair, arbitrary manner. Where such important individual interests are exposed to possible governmental taking or deprivation, the Constitution requires that the gov. t follow procedures calculated to assure a fair and rational decision-making process. Suldan v. FSM (II), 1 FSM Intrm. 339, 354-55 (Pon. 1983).
If, pursuant to § 156 of Nat. l Public Service System Act, the highest management official declines to accept a finding of fact of the ad hoc committee, the official will be required by statutory as well as constitutional requirements to review those portions of the record bearing on the factual issues and to submit a reasoned statement demonstrating why the ad hoc committee's factual conclusion should be rejected. Suldan v. FSM (II), 1 FSM Intrm. 339, 360-61 (Pon. 1983).
There is a presumption that a judicial or quasi-judicial official is unbiased. The burden is placed on the party asserting unconstitutional bias. The presumption of neutrality can be rebutted by a showing of conflict of interest or some other specific reason for disqualification. Where disqualification occurs, it is usually because the adjudicator has a pecuniary interest in the outcome or has been the target of personal abuse or criticism from the party before him. Suldan v. FSM (II), 1 FSM Intrm. 339, 362-63 (Pon. 1983).
The highest management officials cannot be said to be biased as a class and they cannot be disqualified, by virtue of their positions, from final decision-making as to a nat'l gov't employee's termination under § 156 of the Nat'l Public Service System Act, without individual consideration. Suldan v. FSM (II), 1 FSM Intrm. 339, 363 (Pon. 1983).
Where there is reason to believe that provisions of a public land lease may have been violated by lessee, and where another person has notified the Public Lands Authority of his claim of a right to have the land leased to him, the Public Lands Authority may not consider itself bound by lease's renewal provision but is required to consider whether it has a right to cancel the lease and, if so, whether the right should be exercised. These are decisions to be made after a rational decision-making process in compliance with procedural due process requirements of art. IV, § 3 of FSM Constitution. Etpison v. Perman, 1 FSM Intrm. 405, 421 (Pon. 1984).
A criminal statute must not be so vague and indefinite as to fail to give fair notice of what acts will be punished but right to be informed of nature of accusation does not require absolute precision or perfection of criminal statutory language. Laion v. FSM, 1 FSM Intrm. 503, 507 (App. 1984).
Right to be informed of nature of accusation requires that a statute be sufficiently explicit to prescribe offense with reasonable certainty and not be so vague that persons of common intelligence must necessarily guess at its meaning. Laion v. FSM, 1 FSM Intrm. 503, 507 (App. 1984).
Required degree of precision under the right to be informed of the nature of the accusation may be affected by considerations such as limits upon capacity for human expression and difficulties inherent in attempts to employ alternative methods of stating the concept. Laion v. FSM, 1 FSM Intrm. 503, 508 (App. 1984).
Some generality may be inescapable in proscribing conduct but standard of precision required under the right to be informed of the nature of the accusation is greater in criminal statutes than in civil statutes. Laion v. FSM, 1 FSM Intrm. 503, 508 (App. 1984).
Courts are far more inclined to set aside as unconstitutionally vague statutes or ordinances reaching into marginal areas of human conduct such as prohibitions against loitering or vagrancy aimed at conduct often thought of as offensive or undesirable, but not directly dangerous to others. Laion v. FSM, 1 FSM Intrm. 503, 509 (App. 1984).
Prohibitions against assaults with dangerous weapons fall within the more traditional realm of criminal law and therefore are entitled to greater deference by courts in determining whether they are unconstitutionally vague. Laion v. FSM, 1 FSM Intrm. 503, 509 (App. 1984).
Commonly accepted meanings arising out of prior court interpretations in jurisdictions from which statutes are borrowed may be considered in testing a claim that the statute is unconstitutionally vague. Laion v. FSM, 1 FSM Intrm. 503, 509-10 (App. 1984).
There is no suggestion in the Con Con Journal that the framers of the FSM Constitution wanted to depart from or expand upon U.S. constitutional principles concerning particularity and definitions in criminal statutes. Reliance in the Report of the Committee on Civil Liberties upon U.S. court decisions in explaining the words confirms that the intent was to adopt the American approach concerning the statutory specificity needed so as not to be unconstitutionally vague. Laion v. FSM, 1 FSM Intrm. 503, 513 (App. 1984).
In considering whether term "dangerous weapon" is so vague as to render 11 FSMC 919 unconstitutional, it is relevant that a court in the U.S. has held that term sufficiently definite to meet U.S. constitutional standards. Laion v. FSM, 1 FSM Intrm. 503, 513 (App. 1984).
Suspicion of guilt can justify the extreme action of an arrest only when based upon reasonable grounds known to the arresting officer at the time of arrest so strong that a cautious man would "believe," that is, consider it more likely than not that the accused is guilty of the offense. Ludwig v. FSM, 2 FSM Intrm. 27, 33 (App. 1985).
The gov't in any criminal case is required, as a matter of due process, to prove all elements of the offense beyond a reasonable doubt. Ludwig v. FSM 2 FSM Intrm. 27,35 (App. 1985).
A temporary seizure is itself a significant taking of property, depriving the owner of possession, an important attribute of property. Ishizawa v. Pohnpei, 2 FSM Intrm. 67,75 (Pon. 1985).
Constitution's Due Process Clause is drawn from U.S. Constitution and FSM courts may look to decisions under that Constitution for guidance in determining the meaning of this Due Process Clause. Ishizawa v. Pohnpei, 2 FSM Intrm. 67,76 (Pon. 1985).
Where a seizure is for forfeiture rather than evidentiary purposes, constitutional prohibitions against taking property without due process come into play. Ishizawa v. Pohnpei, 2 FSM Intrm. 67,76 (Pon. 1985).
Any attempt to grant statutory authority to permit seizure of a fishing vessel upon a lesser standard than probable cause would raise serious questions of compatibility with art. IV, §§ 3 and 4 of the Constitution. Such an interpretation should be avoided unless clearly mandated by statute. Ishizawa v. Pohnpei, 2 FSM
Intrm. 67
,77 (Pon. 1985).
Due process does not require that a second judge decide motions for recusal where the trial judge accepts as true all factual allegations in the affidavit of the party seeking recusal, and must rule only on matters of law in making decision to recuse or not recuse himself. Skilling v. FSM, 2 FSM Intrm. 209, 213 (App. 1986).
Procedure for recusal provided in FSM Code, whereby a party may file a motion for recusal with an affidavit, and judge must rule on the motion, stating his reasons for granting or denying the motion, before any further proceeding is taken, allows the moving party due process. Skilling v. FSM, 2 FSM Intrm. 209, 214 (App. 1986).
Actions of a police officer in stripping a prisoner to punish and humiliate him, then beating him and damaging his pickup truck, constituted violation of the prisoner's constitutional rights to be free from cruel and unusual punishment and his due process rights. Tolenoa v. Alokoa, 2 FSM Intrm. 247, 250 (Kos. 1986).
There is no deprivation of due process in a case in which the gov. t at trial elicited testimony revealing that it had custody of certain physical evidence but did not attempt to introduce it, and in which defendant made no request that it be produced. Loney v. FSM, 3 FSM Intrm. 151, 155 (App. 1987).
An expectation of being paid for work already performed is a property interest qualifying for protection under Due Process Clause of FSM Constitution. Falcam v. FSM (II), 3 FSM Intrm. 194, 200 (Pon. 1987).
An expectation of continued gov. t employment, subject only to removal by a supervisor, is a property interest qualifying for protection under Due Process Clause of FSM Constitution.Falcam v.
FSM (II), 3 FSM Intrm. 194, 200 (Pon. 1987).
Due Process Clause of art. VI, § 3 of FSM Constitution requires proof beyond a reasonable doubt as a condition for criminal convictions in the FSM. Runmar v. FSM, 3 FSM Intrm. 308, 311 (App. 1988).
Where purchasers at a judicial sale are not served by summons and complaint pursuant to FSM Civil Rule 3 but receive notice of a motion seeking confirmation of the sale and made by a creditor of the party whose property was sold, and where purchasers do not object to the motion, confirmation of sale is effective and binding on purchasers and is not violative of their rights of due process. Sets v. Island Hardware, 3 FSM Intrm. 365, 368 (Pon. 1988).
The Nat'l Public
Service System Act and FSM Public Service System Regulations establish an expectation of continued employment for nonprobationary nat. l gov. t employees by limiting the permissible grounds and specifying procedures necessary for their dismissal; this is sufficient protection of the right to continued nat. l gov. t employment to establish a property interest for nonprobationary employees which may not be taken without fair proceedings, or "due process." Semes v.
FSM, 4 FSM Intrm. 66, 73 (App. 1989).
Once it is determined that a statute establishes a property right subject to protection under Due Process Clause of FSM Constitution, constitutional principles determine what process is due as a minimum. Semes v. FSM, 4 FSM Intrm. 66, 74 (App. 1989).
In absence of statutory language to the contrary, the Nat. l Public Service System Act's mandate may be interpreted as assuming compliance with constitutional requirements, because if it purported to preclude constitutionally required procedures, it must be set aside as unconstitutional. Semes v. FSM, 4 FSM Intrm. 66, 74 (App. 1989).
In assessing the government's shorter term, preliminary deprivations of private property to determine what, if any procedures are constitutionally necessary in advance of the deprivation, the FSM Supreme Court will balance the degree of hardship to the person affected against the gov. t interests at stake. Semes v. FSM, 4 FSM Intrm. 66, 75 (App. 1989).
Under the equal protection clause of the Declaration of Rights in the FSM Constitution, indigency alone should not disadvantage an accused in our system of criminal justice.Gilmete
v. FSM, 4 FSM Intrm. 165, 169 (App. 1989).
In determining whether constitutional line of due process has been crossed, a court must look to such factors as need for application of force, relationship between need and amount of force that was used, extent of injury inflicted, and whether force was applied in a good faith effort to maintain and restore discipline or maliciously and sadistically for the very purpose of causing harm. Paul v. Celestine, 4 FSM Intrm. 205, 208-09 (App. 1990).
To be property protected under the FSM and Kosrae State Constitutions, the employment right must be based on governmental assurance of continual employment or dismissal for only specified reasons as stated in statute, regulation, formal contract or actions of a supervisory person with authority to establish terms of employment. Edwin v.
Kosrae, 4 FSM Intrm. 292, 302 (Kos. S. Ct. Tr. 1990).
Although neither the
Environmental Protection Act nor the earthmoving regulations contain any absolute requirement that a public hearing be held before an earthmoving permit may be issued, issuance by nat. l gov. t officials of a permit authorizing earthmoving by a state agency without holding a hearing and based simply upon the application filed by the state agency and the minutes prepared by state officials, is arbitrary and capricious where dredging activities have been long continued in the absence of a nat. l earthmoving permit and where the parties directly affected by those activities have for several months been vigorously opposing continuation of earthmoving activities at the dredging site. Damarlane v. Pohnpei Transp.
Auth., 5 FSM Intrm. 1, 8 (Pon. 1991).
If a judge has participated as an advocate in related litigation touching upon the same parties, and in the course of that previous activity has taken a position concerning the issue now before him as a judge, the appearance of justice, as guaranteed by Due Process Clause, requires recusal. Etscheit v. Santos, 5 FSM Intrm. 35, 43 (App. 1991).
There
are certain circumstances or relationships which, as a per se matter of due process, require almost automatic disqualification, and, if a judge has a direct, personal, substantial, pecuniary interest in the outcome of the case, recusal is constitutionally mandated. Etscheit v. Santos, 5 FSM Intrm. 35, 43 (App. 1991).
To prevent the "probability of unfairness," a former trial counselor or attorney must refrain from presiding as a trial judge over litigation involving his former client, and many of the same issues, and same interests and same land, with which the trial judge has been intimately involved as a trial counselor or attorney. Etscheit v. Santos, 5 FSM Intrm. 35, 45 (App. 1991).
Because there is a rational basis, linked to legitimate gov't purposes of increasing availability of health care services, for providing immunity from patient suits to U.S. Public Health Service physicians, the Federal Programs and Services Agreement's immunity provisions are not in violation of a plaintiff's due process rights. Samuel v. Pryor, 5 FSM Intrm. 91, 106 (Pon. 1991).
A person's constitutional right to due process of law, and his right to be free from cruel and unusual punishment is violated when an officer instead of protecting the person from attack, threw him to the ground, and beat the person in the jail. Meitou v. Uwera, 5 FSM Intrm. 139, 144 (Chk. S. Ct. Tr. 1991).
Plaintiff's due process rights were not violated where gov't did not use condemnation procedures specified in 67 TTC 451, but followed land registration procedures to obtain title and treated plaintiff fairly and in same way it treated other landowners. Palik v. Kosrae, 5 FSM Intrm. 147, 152-54 (Kos. S. Ct. Tr. 1991).
Constitutional provisions applicable to a prisoner may vary depending on his status. A pre-trial detainee has a stronger right to liberty, which right is protected by the Due Process Clause, FSM Const. art. IV, § 3. A convicted prisoner's claims upon liberty have been diminished through due process so that person must rely primarily on art. IV, § 8 which protects him from cruel and unusual punishment. Plais v. Panuelo, 5 FSM Intrm. 179, 190 (Pon. 1991).
When a panel hearing in a summary dismissal was closed to the public and the injured party and counsel were present to attend and participate in the hearing and the panel accepted and considered all testimony and evidence offered by the parties, due process was not violated. Palsis v.
Kosrae State Court, 5 FSM Intrm. 214, 217 (Kos. S. Ct. Tr. 1991).
Variance between charge of striking police car windshield with fists and evidence adduced at trial of damaging headlights with a beer can is not so misleading and prejudicial that defendant was denied a fair trial or suffered from a lack of notice as to the evidence to be offered at trial on a charge of damaging the property of another. Otto v. Kosrae, 5 FSM Intrm. 218, 222 (App. 1991).
Among the rational bases supporting the constitutionality of a state statute capping wrongful death recovery are a desire to create foreseeable limits on gov. t liability; to promote insurance; to encourage settlement of claims; and to ease the burden on courts and families of valuing losses incurred through death of family member. Tosie v.
Healy-Tibbets Builders, Inc., 5 FSM Intrm. 358, 363 (Kos. 1992).
When a landowner voluntarily signs a statement of intent for an easement for a road even though the state failed in is duty of care to inform him that he could refuse to sign, the state has not violated landowner's due process rights. Nena v. Kosrae, 5 FSM Intrm. 417, 424 (Kos. S. Ct. Tr. 1990).
When counsel is allowed such a short preparation time that counsel's effectiveness is impaired then the accused is deprived of due process and effective assistance of counsel. In re Extradition of Jano, 6 FSM Intrm. 93, 101 (App. 1993).
Something more than a state merely misinterpreting its own law, such as that the state's interpretation was arbitrary, grossly incorrect, or motivated by improper purposes, is needed to raise a legitimate due process issue. Simon v. Pohnpei, 6 FSM Intrm. 314, 316 (Pon. 1994).
Statutory ineligibility of persons convicted of Trust
Territory felonies is a valid exercise of Congress's constitutional power to
prescribe additional qualifications for election to Congress, and is not
unconstitutional as a deprivation of a liberty interest without due process of
law, or as an ex post facto law, or as a bill of attainder. Robert v. Mori, 6 FSM Intrm. 394, 401 (App. 1994).
Due Process; Notice and
Hearing
It is normally required that a hearing be held prior to seizure of a property. In extraordinary situations a seizure may take place prior to hearing, but the owner must be afforded a prompt post-seizure hearing at which the person seizing the property must at least make a showing of probable cause. Unreasonable delay in providing a post-seizure hearing may require that an otherwise valid seizure be set aside. Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 76 (Pon. 1985).
Due Process Clause prevents governmental authorities from depriving an individual of property interests, without first according an opportunity to be heard as to whether the proposed deprivation is permissible. Falcam v. FSM (II), 3 FSM Intrm. 194, 200 (Pon. 1987).
Only in extraordinary circumstances, where immediate action is essential to protect crucially important public interests, may private property be seized without a hearing. Falcam v. FSM (II), 3 FSM Intrm. 194, 200 (Pon. 1987).
Any withholding of private property, such as a gov. t employee's paycheck, without a hearing can be justified only so long as it takes the authorized payor to obtain a judicial determination as to the legality of the payment being withheld. Falcam v. FSM (II), 3 FSM Intrm. 194, 200 (Pon. 1987).
A party is not deprived of due process of law in a case in which a judgment is entered against it on a cause of action raised by the trial court, where the party had notice and an opportunity to be heard, even though the cause of action does not appear in the pleadings and no amendment of the pleadings was made. United Church of Christ v. Hamo, 3 FSM Intrm. 445, 453 (Truk 1988).
Only in extraordinary circumstances where immediate action is essential to protect crucially important public interests, may private property be seized without a prior hearing of some kind. Semes v. FSM, 4 FSM Intrm. 66, 74 (App. 1989).
Constitutional due
process requires that a nonprobationary employee of the nat. l gov. t be given some opportunity to respond to charges against him before his dismissal may be implemented; including oral or written notice of charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story. Semes v. FSM, 4 FSM Intrm. 66, 76 (App. 1989).
Implementation of
constitutional requirement that a gov. t employee be given an opportunity to respond before dismissal is consistent with statutory scheme of Nat. l Public Service System Act, therefore Act need not be set aside as contrary to due process. Semes v. FSM, 4 FSM Intrm. 66, 77 (App. 1989).
A prisoner's rights to procedural due process have been violated when he received neither notice of charges against him nor an opportunity to respond to those charges before or during confinement. Plais v. Panuelo, 5 FSM Intrm. 179, 212 (Pon. 1991).
A person for whom extradition is sought must be brought before a justice that evidence of his criminality may be heard and considered so that he may be certified as extraditable. Such a person is entitled to notice of the hearing and an opportunity to be heard and to effective assistance of counsel. In re Extradition of Jano, 6 FSM Intrm. 93, 99 (App. 1993).
Where a party attended the meeting at which the common boundary was set and thus had actual notice, and filed no adverse claim to the boundary location that would trigger the statutory right to notice, but claimed he was not aware of the adverse boundary until eight years later, and waited another four years before filing suit, the claimant's repeated failure to timely assert his rights does not demonstrate a due process violation. Setik v. Sana, 6 FSM Intrm. 549, 553 (Chk. S. Ct. App. 1994).
One who receives actual notice cannot assert a constitutional claim that the method of notice was not calculated to reach him. Setik v. Sana, 6 FSM Intrm. 549, 553 (Chk. S. Ct. App. 1994).
Where parties had no claims to the land at the time the title was determined they were not entitled to notice. Lack of notice to them does not raise a genuine issue of material fact as to validity of a Certificate of Title. Where a court proceeding determined title, lack of a record of notice in the Land Commission files does not raise a genuine issue of material fact as to the validity of the Certificate of Title because the Land Commission did not conduct the hearing on title and so would not have any record of notice. Luzama v. Pohnpei Enterprises Co., 7 FSM Intrm. 40, 49 (App. 1995).
Constructive notice
is a concept through which actual notice is imputed to a party regardless of
whether that party has actual knowledge of the imputed facts. A party has
constructive notice when from all facts and circumstances known to him at the
relevant time, he has such information as would prompt a person exercising a
reasonable care to acquire knowledge of the fact in question or to infer its
existence. Nahnken of Nett v.
Pohnpei, 7 FSM Intrm. 171, 177 n. 11 (Pon. 1995).
An owner of seized
property cannot challenge the statute it was seized under as unconstitutional
because the statute fails to provide for notice and a hearing, if procedural due
process, notice and a right to a hearing, are provided. FSM v. M.T. HL Achiever (II), 7 FSM Intrm. 256,
258 (Chk. 1995).
Due Process; Vagueness
"Dangerous device"
as defined under the Weapons Control Act is not unconstitutionally vague.
The language, properly interpreted, affords sufficient notice so that
conscientious citizens may avoid inadvertent violations, and constructs
sufficiently definite standards to prevent arbitrary law enforcement. Joker v. FSM, 2 FSM Intrm. 38, 45 (App.
1985).
Taking of Property
Gov't employment
that is "property" within meaning of Due Process Clause cannot be taken without
due process. To be property protected under Constitution, there must be
claim of entitlement based upon governmental assurance of continual employment
or dismissal for only specified reasons. Suldan v. FSM (II), 1 FSM Intrm. 339, 351-52
(Pon. 1983).
Fundamental concept
of procedural due process is that gov. t may not strip citizens of life, liberty
or property in an unfair, arbitrary manner. Where such important
individual interests are exposed to possible governmental taking or deprivation,
Constitution requires that gov. t follow procedures calculated to assure a fair
and rational decision-making process. Suldan v. FSM (II), 1 FSM Intrm. 339, 354-55
(Pon. 1983).
When a landowner
voluntarily enters into a statement of intent to grant state an easement the
state has not violated landowner's constitutional rights by "taking" his
property without just compensation, and is not liable for trespass. Nena
v. Kosrae, 5 FSM Intrm. 417, 425 (Kos. S.
Ct. Tr. 1990).
A
plaintiff's firing by a private employer does not state a cause of action for
unconstitutional deprivation of due process because no governmental entity or
official is a defendant; the defendant is not alleged to be performing an
essential governmental function; and a gov. t action is not at issue. Semwen
v. Seaward Holdings, Micronesia, 7 FSM Intrm. 111, 113 (Chk.
1995).
Constitutional guarantees of equal protection apply if the
discrimination is based on the individual's membership in one of the classes
enumerated in art. IV, § 4, or if discrimination affects a "fundamental right."
The law is then subject to a strict scrutiny review, under which it will
be upheld only if gov't can demonstrate that the classification upon which that
law is based bears a close rational relationship to some compelling governmental
interest. But if the law does not concern an enumerated class or a
fundamental right, the question becomes whether the classification is rationally
related to a legitimate governmental purpose. FSM
Social Security Admin. v. Weilbacher, 7 FSM Intrm. 137, 146 (Pon.
1995).
The
mere act of United States' funding the FSM and Pohnpei does not subject it to
liability for a taking because its involvement was insufficiently direct and
substantial to warrant such liability and because one gov. t is not liable for a
taking by officials of another gov. t for merely advocating measures that other
gov. t should take. Damarlane v. United States, 7 FSM Intrm. 167,
169-70 (Pon. 1995).
An
unconstitutional taking occurs whenever a public entity substantially deprives a
private party of the beneficial use of his property for a public purpose.
Therefore where neither the Trust Territory nor a U.S. gov't agency could
be considered a public entity in the FSM after the effective date of the Compact
they are legally incapable of committing a taking after that date. Damarlane v. United States, 7 FSM Intrm. 167, 170
(Pon. 1995).
Section 4 . Equal
protection of the laws may not be denied or impaired on account of sex, race,
ancestry, national origin, language, or social status.
Case annotation: A patient's equal protection rights were not
violated when there was no showing that the patient was treated differently from
any other patient on the basis of her sex, ancestry, nat. l origin, or social
status. Samuel
v. Pryor, 5 FSM Intrm. 91, 106 (Pon. 1991).
Congress and President respectively have power to regulate
immigration and conduct foreign affairs while Chief Justice may make rules
governing admission of attorneys. Therefore a rule of admission that
treats aliens unequally, promulgated by the Chief Justice, implicates powers
expressly delegated to other branches. Berman
v. FSM Supreme Court (I), 5 FSM Intrm. 364, 366 (Pon.
1992).
Without a rational valid basis for rule limiting the number
of times an alien may take the bar exam it will be held unconstitutional even if
it would be constitutional if the regulation were made by Congress or the
President. Berman v. FSM Supreme Court (I), 5 FSM Intrm. 364,
367 (Pon. 1992).
Constitutional guarantees of equal protection apply if the
discrimination is based on the individual's membership in one of the classes
enumerated in art. IV, § 4, or if the discrimination affects a "fundamental
right." The law is then subject to a strict scrutiny review, under which
it will be upheld only if the gov. t can demonstrate that the classification
upon which that law is based bears a close rational relationship to some
compelling governmental interest. But if the law does not concern an
enumerated class or a fundamental right, the question becomes whether the
classification is rationally related to a legitimate governmental purpose.
FSM
Social Security Admin. v. Weilbacher, 7 FSM Intrm. 137, 146 (Pon.
1995).
Section 5. The
right of the people to be secure in their persons, houses, papers, and other
possessions against unreasonable search, seizure, or invasion of privacy may not
be violated. A warrant may not issue except on probable cause, supported
by affidavit particularly describing the place to be searched and the persons or
things to be seized.
Case annotations: The Ponape State consent statute does not
authorize the search of a nonconsenting bar or restaurant customer. Pon.
Code. ch. 3, §§ 3-13. FSM v. Tipen, 1 FSM Intrm. 79,81
(Pon. 1982).
Under
Ponape State law, a bar or restaurant patron's denial of an authorized person's
request to search the person of the patron merely subjects the patron to
exclusion from the establishment. Pon. Code ch. 3, §§ 3-13. FSM v. Tipen, 1 FSM Intrm. 79, 81 (Pon.
1982).
The
art. IV, § 5 right to be secure against searches is not absolute. The
Constitution only protects against unreasonable searches. FSM v.
Tipen, 1 FSM Intrm. 79, 82 (Pon. 1982).
No
right is held more sacred, or is more carefully guarded by the common law than
the right of every individual to possession and control of his own person, free
from all restraint or interference of others, unless by clear and unquestionable
authority of law. FSM v. Tipen, 1 FSM Intrm.
79, 86 (Pon. 1982).
Constitutional protection of individual against
unreasonable searches and limitation of powers of police apply wherever an
individual may harbor a reasonable expectation of privacy. FSM v. Tipen, 1 FSM Intrm. 79, 86 (Pon.
1982).
Constitutional protection against unreasonable searches
extends to contents of closed containers within one's possession and to those
items one carries on one's person. FSM v. Tipen, 1 FSM Intrm. 79, 86 (Pon.
1982).
A
citizen is entitled to protection of the privacy which he seeks to maintain even
in a public place. FSM v. Tipen, 1 FSM Intrm.
79, 86 (Pon. 1982).
Legality of search must be tested on basis of the
information known to police officer immediately before search began. FSM v.
Tipen, 1 FSM Intrm. 79, 88 (Pon. 1982).
FSM
Supreme Court is vested, by statute, with authority to suppress or exclude,
evidence obtained by unlawful search and seizure. 12 FSMC 312. FSM v. Tipen, 1 FSM Intrm. 79, 92 (Pon.
1982).
Where
investigating officers have reason to believe that somebody on private premises
may have information pertaining to their investigation, they may enter those
private premises, without a warrant or prior judicial authorization, to make
reasonably nonintrusive efforts to determine if anybody is willing to discuss
substance of their investigations. FSM v.
Mark, 1 FSM Intrm. 284, 288 (Pon. 1983).
Police
officers who in the performance of their duty enter upon private property
without an intention to look for evidence but merely to ask preliminary
questions of occupants cannot be said to be conducting a search within the
meaning of Constitution. FSM v. Mark, 1 FSM Intrm. 284, 289 (Pon.
1983).
Mere
observation does not constitute a search. The term "search" implies
exploratory investigation or quest. FSM v.
Mark, 1 FSM Instr. 284, 289 (Pon. 1983).
Wide
ranging and unwarranted movement of police officers on private land may
constitute an unreasonable invasion of privacy, or establish that the
investigation had evolved into a search. FSM v.
Mark, 1 FSM Intrm. 284, 290 (Pon. 1983).
A
warrant is not necessary to authorize seizure when marijuana is in plain view of
a police officer who has a right to be in the position to have that view.
FSM v.
Mark, 1 FSM Intrm. 284, 294 (Pon. 1983).
It is
generally agreed that for actions to constitute a search, there must be:
1) an examination of premises or a person; 2) in a manner encroaching upon
one's reasonable expectation of privacy; 3) with an intention, or at least a
hope, to discover contraband or evidence of guilt to be used in prosecution of a
criminal action. FSM v. Mark, 1 FSM Intrm. 284, 298 (Pon.
1983).
The
starting point and primary focus of legal analysis for a claim of unreasonable
search and seizure should normally be the Constitution's Declaration of Rights,
not the statutory "Bill of Rights." FSM v.
George, 1 FSM Intrm. 449, 455 (Kos. 1984).
The
principal difference between FSM Constitution art. IV, § 5 and 1 FSMC
103 is that the Constitution, in addition to prohibiting unreasonable
searches and seizures also contains a prohibition against invasions of privacy.
FSM v.
George, 1 FSM Intrm. 449, 455 n. 1 (Kos. 1084).
The
gov. t bears the burden of proving the existence of voluntary consent.
Acquiescence in the desire of law enforcement personnel to search will not
be presumed but must be affirmatively demonstrated. FSM v.
George, 1 FSM Intrm. 449, 456 (Kos. 1984).
A
demand, even if courteously expressed, is different from a request, and a
citizen's compliance with a police officer's demand, backed by apparent
force of law, is perhaps subtly, but nonetheless significantly, different from
voluntary consent to a request. FSM v.
George, 1 FSM Intrm. 449, 458 (Kos. 1984).
On
matters relating to a warrantless search, it is for the court to decide whether
voluntary consent, as opposed to passive submission to legal authority,
occurred. The gov. t must put before the court facts, not mere conclusions
of police officers, which will permit the judge to decide whether consent was
given. FSM v.
George, 1 FSM Intrm. 449, 458 (Kos. 1984).
Unconsented and warrantless entry into defendant's house,
without any subsequent action on officer's part to impress upon the defendant
that they could be influenced by his wishes as to whether a search might be
conducted, erases any possibility of finding any aspect of search in house or
resultant seizure of evidence, to be either consented to or untainted. FSM v.
George, 1 FSM Intrm. 449, 459 (Kos. 1984).
While
existence of probable cause to believe that a crime has been committed and that
a particular person has committed it is not in itself sufficient to justify a
warrantless search, the establishment of probable cause is nevertheless critical
to any unconsented search. FSM v. George, 1 FSM Intrm. 449, 460-61 (Kos.
1984).
Constitutional prohibitions against unreasonable searches,
seizures or invasions of privacy must be applied with full vigor when a dwelling
place is the object of the search. FSM v.
George, 1 FSM Intrm. 449, 461 (Kos. 1984).
Police
officers desiring to conduct search should normally obtain search warrant.
This requirement serves to motivate officers to assess their case and to
obtain perspective from the very start. FSM v.
George, 1 FSM Intrm. 449, 461-62 (Kos. 1984).
Officers entering house by consent for purposes of search
must keep in mind eventual likelihood that they will need to establish that
consent was voluntary. FSM v. George, 1 FSM Intrm. 449, 463 (Kos.
1984).
Only
under rare circumstances would FSM Supreme Court likely find that homeowner who
neither says nor does anything to indicate affirmative consent has consented to
a warrantless search of his house. FSM v.
George, 1 FSM Intrm. 449, 463 (Pon. 1984).
A
constitutional search may be conducted without a warrant if search is incidental
to a lawful arrest. Ludwig v. FSM, 2 FSM Intrm. 27, 32 (App.
1985).
Standard announced in second sentence of FSM Const. art.
IV, § 5 for issuance of a warrant must be employed in determining reasonableness
of search or seizure. Imposition of standard of probable cause for
issuance of a warrant in FSM Const. art. IV, § 5 implies that no search or
seizure may be considered reasonable unless justified by probable cause. Ludwig
v. FSM, 2 FSM Intrm. 27, 32 (App. 1985).
Police
officer making arrest has limited right to conduct a search incident to that
arrest. This right to search is for limited purposes of preventing arrested
person from reaching concealed weapons to injure the officer or others, and from
destroying evidence. Although right to search is of limited scope, it
plainly authorizes a reasonable search of person being arrested. Ludwig
v. FSM, 2 FSM Intrm. 27, 34 (App. 1985).
Art.
IV, § 5 of FSM Constitution, based upon the fourth amendment of U.S.
Constitution, permits reasonable, statutorily authorized inspections of fishing
vessel in FSM ports, under various theories upheld under U.S. Constitution, when
vessel is reasonably suspected of having engaged in fishing activities. Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 74 (Pon.
1985).
It is
extraordinarily difficult for law enforcement authorities to police the vast
waters of FSM. Yet, effective law enforcement to prevent fishing violations is
crucial to economic interests of this new nation. Accordingly, historical
doctrines applied under U.S. Constitution which expand right to search based
upon border search, administrative inspection and exigent circumstances
theories, appear suitable for application to fishing vessels within FSM. Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 74 (Pon.
1985).
While
power to seize vessel is crucial to interests of FSM and its states, there are
also compelling factors demanding that seizures take place only where fully
justified and that procedures be established and scrupulously followed to assure
that power to seize is not abused. Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 75 (Pon.
1985).
Searches and seizures both constitute a substantial
intrusion upon privacy of an individual whose person or property is affected,
but a seizure often imposes more onerous burdens. Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 75 (Pon.
1985).
A
temporary seizure is itself a significant taking of property, depriving the
owner of possession, an important attribute of property. Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 75 (Pon.
1985).
It is
normally required that a hearing be held prior to seizure of a property.
In "extraordinary situations" a seizure may take place prior to hearing,
but the owner must be afforded a prompt post-seizure hearing at which the person
seizing the property must at least make a showing of probable cause.
Unreasonable delay in providing a post-seizure hearing may require that an
otherwise valid seizure be set aside. Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 76 (Pon.
1985).
General requirement under art. IV, § 5 of Constitution is
that before search or seizure may occur there must exist "probable cause", that
is, a reasonable ground for suspicion, sufficiently strong to warrant a cautious
person to believe that a crime has been committed and that the item to be seized
has been used in the crime. Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 76 (Pon.
1985).
Where
a seizure is for forfeiture rather than evidentiary purposes, the constitutional
prohibitions against taking property without due process come into play.
Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 76 (Pon.
1985).
Any
attempt to grant statutory authority to permit seizure of a fishing vessel upon
a lesser standard than probable cause would raise serious questions of
compatibility with art. IV, §§ 3 and 4 of Constitution. Such an
interpretation should be avoided unless clearly mandated by statute. Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 77 (Pon.
1985).
In
probable cause determinations court must regard evidence from vantage point of
law enforcement officers acting on scene but must make its own independent
determination as to whether, considering all facts at hand, a prudent and
cautious law enforcement officer, guided by reasonable training and experience,
would consider it more likely than not that a violation has occurred. Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 77 (Pon.
1985).
Where
defendants accompanied police officers, then defendants entered their homes and
obtained stolen goods and turned them over to police, the question of whether
there has been an unreasonable seizure in violation of art. IV, § 5 of
Constitution turns on whether defendants' actions were voluntary. FSM v.
Jonathan, 2 FSM Intrm. 189, 198-99 (Kos. 1986).
This
court will apply exclusionary rule on a case-by-case basis. The
exclusionary rule has been devised as a necessary device to protect right to be
free from unreasonable search and seizure. Kosrae
v. Alanso, 3 FSM Intrm. 39, 44 (Kos. S. Ct. Tr. 1985).
Under
exclusionary rule, any evidence obtained through an illegal search and seizure,
whether physical or verbal, is a fruit of the illegal search and seizure, is
tainted by illegality, and must be excluded. Kosrae
v. Alanso, 3 FSM Intrm. 39, 44 (Kos. S. Ct. Tr. 1985).
Few
rights are more important than the freedom from unreasonable governmental
intrusion into a citizen's privacy and courts must protect this right from
well-intentioned, but unauthorized, governmental action. Kosrae
v. Alanso, 3 FSM Intrm. 39, 44 (Kos. S. Ct. Tr. 1985).
To
protect right to be free from unreasonable search and seizure, this court
requires clear proof, not merely that consent was given, but also that a right
was knowingly and voluntarily waived. It is fundamental that a citizen be
aware of the right he is giving up in order for consent to be found. Kosrae
v. Alanso, 3 FSM Intrm. 39, 44 (Kos. S. Ct. Tr. 1985).
Consent, given in the face of a police request to search
without consenting person having been informed of his right to refuse consent,
and without any written evidence that consent was voluntarily and knowingly
given, renders such consent inadequate to permit a warrantless search absent
probable cause. Kosrae v. Alanso, 3 FSM Intrm. 39, 44 (Kos. S. Ct.
Tr. 1985).
Constitution does not protect a person against a
"reasonable" search and/or seizure and a search is reasonable where a search
warrant has been obtained prior to search. Kosrae
v. Paulino, 3 FSM Intrm. 273, 275 (Kos. S. Ct. Tr.
1988).
Probable cause is not proof of guilt, but shows that a
reasonable ground for suspicion, sufficiently strong to warrant a cautious man
to believe that accused is guilty of the offense, exists. Kosrae
v. Paulino, 3 FSM Intrm. 273, 276 (Kos. S. Ct. Tr.
1988).
An
officer who, while standing on a road, sees a marijuana plant in plain view on
top of a nearby house has not thereby engaged in an unlawful search. Kosrae
v. Paulino, 3 FSM Intrm. 273, 276 (Kos. S. Ct. Tr.
1988).
Even
on public premises a person may retain an expectation of privacy, but where a
person residing on public land makes no effort to preserve privacy of marijuana
plants and seedings, entry of police on premises and seizure of contraband that
is plainly visible from outside the residence is not an unconstitutional search
and seizure. FSM v. Rodriguez, 3 FSM Intrm. 368, 370 (Pon.
1988).
Protection in art. IV, § 5 of FSM Constitution against
unreasonable search and seizure is based upon comparable provision in fourth
amendment of U.S. Constitution. FSM v.
Rodriguez, 3 FSM Intrm. 385, 386 (Pon. 1988).
Although individual acting without state authorization has
constructed a sleeping hut and has planted crops on state-owned public land,
state police officers may nevertheless enter the land without a search warrant
to make reasonable inspections of it and may observe and seize illegally
possessed plants in open view and plainly visible from outside sleeping hut. FSM v.
Rodriguez, 3 FSM Intrm. 385, 386 (Pon. 1988).
When
investigators, acting without search warrant on advance information, conduct
searches in privately owned areas beyond immediate area of a dwelling house, and
seize contraband, they do not thereby violate prohibitions in art. IV, § 5 of
FSM Constitution against unreasonable search and seizure. FSM v.
Rosario, 3 FSM Intrm. 387, 388-89 (Pon. 1988).
While
constitutional provision barring invasion of privacy only protects persons from
governmental intrusion into their affairs, not from intrusions by private
persons, it does indicate a policy preference in favor of protection of privacy.
Nethon
v. Mobil Oil Micronesia, Inc., 6 FSM Intrm. 451, 455 (Chk.
1994).
Because the purpose of art. IV, § 5 of Constitution is to
protect privacy rights of individuals against unreasonable and unauthorized
searches and seizures by gov. t officials it has been interpreted to require
that an individual suspected of a crime be released from detention unless the
gov. t can establish "probable cause" to hold that individual. FSM v.
Zhong Yuan Yu No. 621, 6 FSM Intrm. 584, 588 (Pon.
1994).
Standard for determining probable cause is whether there is
evidence and information sufficiently persuasive to warrant a cautious person to
believe it is more likely than not that a violation of law has occurred and that
the accused committed that violation. The probable cause determination
must be made by deliberate, impartial, judgment of a judicial officer. FSM v.
Zhong Yuan Yu No. 621, 6 FSM Intrm. 584, 588-89 (Pon.
1994).
Often
the determination of probable cause is made by a competent judicial officer upon
issuance of an arrest warrant, but where an arrest is not made pursuant to a
warrant the arrested is entitled to a judicial determination as to whether there
is probable cause to detain accused. FSM v.
Zhong Yuan Yu No. 621, 6 FSM Intrm. 584, 589 (Pon.
1994).
A
probable cause hearing is an informal, non-adversarial proceeding in which the
formal rules of evidence and the requirement of proof beyond a reasonable doubt
do not apply. FSM v. Zhong Yuan Yu No. 621, 6 FSM Intrm. 584, 589
(Pon. 1994).
An
individual whose property has been seized pursuant to a civil forfeiture
proceeding is entitled to a post-seizure hearing in order to determine whether
there is probable cause to seize and detain that property. The probable
cause standard in a civil forfeiture case is whether there is evidence and
information sufficiently persuasive to warrant a cautious person to believe it
is more likely than not that a violation has occurred and that the property was
used in that violation. FSM v. Zhong Yuan Yu No. 621, 6 FSM Intrm. 584,
589-90 (Pon. 1994).
The
gov't has probable cause to detain a fishing vessel for illegal fishing when the
evidence and information indicate that the vessel was conducting fishing
operations within the FSM Exclusive Economic Zone, there was freshly caught fish
aboard, and the permit provided to the officers contained a name different from
actual name of vessel. FSM v. Zhong Yuan Yu No. 621, 6 FSM Intrm. 584,
590-91 (Pon. 1994).
For
purposes of art. IV, § 5 protection, a search is any governmental intrusion into
an area where a person has a reasonable expectation of privacy. Thus,
constitutional protections do not attach unless search or seizure can be
attributed to governmental conduct and defendant had a reasonable expectation of
privacy in items searched. FSM Social Security Admin. v. Weilbacher, 7 FSM Intrm.
137, 142 (Pon. 1995).
An
administrative agency may either request certain records be provided or formally
subpoena the desired information, rather than obtain a court-ordered search
warrant. In either situation, subject of inspection may decide whether to
refuse or cooperate with government's request. Only when person refuses to
permit the requested search does Constitution prohibit the administrative agency
from coercing that person to turn over records without first obtaining a valid
search warrant. FSM Social Security Admin. v. Weilbacher, 7 FSM Intrm.
137, 143 (Pon. 1995).
Where
a person refuses to cooperate with the inspection requests of the administrative
agency, the gov't will be required to demonstrate to a neutral and detached
magistrate that the requested material is reasonable to the enforcement of the
administrative agency's statutory responsibilities and that the inspection is
being conducted pursuant to a general and neutral enforcement plan in order to
obtain required search warrant. FSM
Social Security Admin. v. Weilbacher, 7 FSM Intrm. 137, 143 (Pon.
1995).
For
court to order property seized pursuant to a search warrant to be returned,
defendants' burden is to show both that there has been an illegal seizure by the
state and that they have claim of lawful possession to property. Chuuk
v. Mijares, 7 FSM Intrm. 149, 150 (Chk. S. Ct. Tr.
1995).
For a
party to have valid claim of lawful possession of alcohol seized by the state
that party must have paid possession tax on seized items. Chuuk
v. Mijares, 7 FSM Intrm. 149, 150 (Chk. S. Ct. Tr.
1995).
Where
defendant's motion is for return of seized property and he has failed to meet
his burden to show right to lawful possession, a court need not reach the issue
of the illegal seizure and suppression of evidence. Chuuk
v. Mijares, 7 FSM Intrm. 149, 151 (Chk. S. Ct. Tr.
1995).
Section 6. The
defendant in a criminal case has a right to a speedy public trial, to be
informed of the nature of the accusation, to have counsel for his defense, to be
confronted with the witnesses against him, and to compel attendance of witnesses
in his behalf.
Case annotations: Right to Counsel
Constitution secures to criminal defendant, as a minimum,
the right to receive reasonable notice of charges against defendant, right to
examine any witnesses against defendant, and right to offer testimony and be
represented by counsel. In re Iriarte (II), 1 FSM Intrm. 225, 260 (Pon.
1983).
Where
defendants had been advised of their right to counsel but there was no
indication that they desired or requested counsel, there is no basis for finding
that their right to counsel had been violated. FSM v.
Jonathan, 2 FSM Intrm. 189, 199 (Kos. 1986).
When a
defendant has expressed a wish to meet with counsel before further questioning,
questioning must cease at once. Any attempt by police officers to ignore
or override the defendant's wish, or to dissuade him from exercising his right,
violates 12 FSMC 218. FSM v. Edward, 3 FSM Intrm. 224, 235 (Pon.
1987).
For a
defendant to waive his right to silence or to counsel he must do so knowingly
and intelligently. There exists a presumption against such waivers.
Moses
v. FSM, 5 FSM Intrm. 156, 159 (App. 1991).
Although implied waivers of a defendant's rights might be
valid there is a presumption against a finding of a waiver of rights. Moses
v. FSM, 5 FSM Intrm. 156, 159-60 (App. 1991).
Where
defendant's counsel had five days to prepare for defense of accused, and was
granted a two day continuance, in the absence of any showing in the record or
representation by counsel of resulting prejudice or ineffectiveness of counsel,
trial court's refusal to grant longer continuance was not an abuse of discretion
and did not violate art. IV, § 6 of FSM Constitution. Hartman v. FSM, 5 FSM Intrm. 224, 233-34 (App.
1991).
Speedy
Trial
When
defendant has already agreed to a trial date that meets constitutional
requirement for a speedy trial, and no reason is offered why that date is no
longer constitutionally sound, later motion for speedy trial may be denied.
FSM v.
Wu Ya Si, 6 FSM Intrm. 573, 574 (Pon. 1994).
Section 7.
A person may not be compelled to give evidence that may be used
against him in a criminal case, or be twice put in jeopardy for the same
offense.
Case annotations: Courts may look to Journals of the Micronesian
Constitutional Convention for assistance in determining meaning of
constitutional language that does not provide an unmistakable answer.
Journals provide no conclusion as to whether promises of leniency by
police should be regarded as having compelled a defendant to give
statements and other evidence but shows that the art. IV, § 7 protection against
self-incrimination was based upon the fifth amendment to the U.S. Constitution.
Therefore courts within the FSM may look to U.S. decisions to assist in
determining meaning of art. IV, § 7. FSM v.
Jonathan, 2 FSM Intrm. 189, 193-94 (Kos. 1986).
Where
a police officer promised to reduce charges if defendant cooperated but there
was no other showing of police intimidation or manipulation and the defendant
had recognized that his guilt was apparent, the confession was not induced by
the promises but instead was a voluntary response to the futility of carrying
the deceit further. FSM v. Jonathan, 2 FSM Intrm. 189, 198 (Kos.
1986).
A
confession which is the product of an essentially free and unconstrained choice
by its maker may be used as evidence to establish guilt of defendant in court.
FSM v.
Jonathan, 2 FSM Intrm. 189, 194 (Kos. 1986).
Although questioning of witnesses and suspects is a
necessary tool for effective enforcement of criminal law, courts have
recognized that there is an unbroken line from physical brutality to more subtle
police use of deception, intimidation and manipulation, and that vigilance is
required. FSM v.
Jonathan, 2 FSM Intrm. 189, 195 (Kos. 1986).
In the
area of police questioning and confessions, the protection against
self-incrimination is the principal protection, designed to restrict or prevent
use of devices to subvert the will of an accused. FSM v.
Jonathan, 2 FSM Intrm. 189, 195 (Kos. 1986).
Overall circumstances and not merely the existence or
nonexistence of a promise determines whether a confession will be accepted as
voluntary or rendered inadmissible as involuntary. FSM v.
Jonathan, 2 FSM Intrm. 189, 196 (Kos. 1986).
Voluntariness of a confession may not be resolved by
reference to any single infallible touchstone, such as whether a promise was
made, but instead must be determined by reference to the totality of surrounding
circumstances. FSM v. Jonathan, 2 FSM Intrm. 189, 197 (Kos.
1986).
Police
may question persons who, while they are in police custody, fall under suspicion
for another crime, without regard to the fact that other persons in a similar
category would be released without questioning. FSM v.
Jonathan, 2 FSM Intrm. 189, 199 (Kos. 1986).
Voluntary admissions prompted by accumulation of evidence
against defendant are a legitimate goal of police investigation. FSM v.
Edward, 3 FSM Intrm. 224, 232 (Pon. 1987).
Where
admissions have been obtained in course of questioning conducted in violation of
12 FSMC 218, statutory policy calls for a presumption that subsequent admissions
were obtained as a result of the violation. FSM v.
Edward, 3 FSM Intrm. 224, 233 (Pon. 1987).
When
defendant has expressed a wish to meet with counsel before further questioning,
questioning must cease at once. Any attempt by police officers to ignore
or override defendant's wish, or to dissuade him from exercising his right,
violates 12 FSMC 218. FSM v. Edward, 3 FSM Intrm. 224, 235 (Pon.
1987).
In
determining whether defendant's statement to police is "voluntary," consistent
with due process requirements of the Constitution, courts should consider the
totality of surrounding circumstances. Courts review actual
circumstances surrounding confession and attempt to assess the psychological
impact on accused of those circumstances. FSM v.
Edward, 3 FSM Intrm. 224, 238 (Pon. 1987).
The
court will not issue a writ of certiorari to review the trial court's
suppression of defendant's confession in a case in which no assignments of error
are furnished to the court, although such decision effectively terminates the
case because gov. t cannot continue its prosecution without the confession, and
although no appeal is available to the gov. t. In re
Edward, 3 FSM Intrm. 285, 286-87 (App. 1987).
Where
no motion to suppress a confession has been made before trial and no cause has
been offered as to the failure to raise the objection, the trial court was
justified in finding that the defendant had waived any objection to the
admission of the confession. In re Juvenile, 4 FSM Intrm. 161, 163 (App.
1989).
Where
trial record shows no waiver of a minor's rights against self-incrimination,
where a remarkable discrepancy exists between police procedure for taking a
statement and written evidence offered at trial, where the only evidence
supporting the conviction other than the confession is an accomplice's
testimony, where minor is 16 years of age and had been on detention some 2 weeks
prior to his confession, and where parents of the minor were absent at the time
the confession was made, the trial court erred in admitting defendant's
confession. In re Juvenile, 4 FSM Intrm. 161, 164 (App.
1989).
Defendant's statement will be suppressed when defendant has
not been advised of all rights set forth in 12 FSMC 218 (1)-(5), even though he
was advised of right to remain silent and right to counsel and he waived those
rights. FSM v.
Sangechik, 4 FSM Intrm. 210, 211-12 (Chk. 1990).
For a
defendant to waive his right to silence or to counsel he must do so knowingly
and intelligently. There exists a presumption against such waivers.
Moses
v. FSM, 5 FSM Intrm. 156, 159 (App. 1991).
Although implied waivers of a defendant's rights might be
valid there is a presumption against a finding of a waiver of rights. Moses
v. FSM, 5 FSM Intrm. 156, 159-60 (App. 1991).
A form
which advises a suspect of his right to lawyer, and of his right to remain
silent but only asks if the suspect wants a lawyer now, is confusing and lacks a
specific waiver as to the right to remain silent. Moses
v. FSM, 5 FSM Intrm. 156, 161 (App. 1991).
A
codefendant's inculpatory statement which has been admitted into evidence may
not be used against any defendant other than the declarant without violating the
right of confrontation guarantee of FSM Constitution. Hartman v. FSM, 5 FSM Intrm. 224, 229 (App.
1991).
Although there is a danger of prejudice in cases where a
co-defendant's inculpatory statement is admitted into evidence, because court is
hesitant to limit the broad discretion afforded the trial judge by FSM Crim. R.
14, and because many problems can be eliminated by redaction of the statement,
the court will not adopt a per se rule of severance at this time. Hartman v. FSM, 5 FSM Intrm. 224, 230 (App.
1991).
For
confession of defendant to be admissible as evidence defendant must not merely
waive his right to counsel but must also specifically waive the independent
right to remain silent. Hartman v. FSM, 5 FSM Intrm. 224, 234-35 (App.
1991).
By
responding voluntarily to questions asked without coercion, after he has been
advised of his rights, a defendant waives his right to remain silent. FSM v.
Hartman (I), 5 FSM Intrm. 350, 352 (Pon. 1992).
Use of
a defendant's out of court statement as evidence against a codefendant would
violate codefendant's "right of confrontation" since declarant is not a witness
at the trial subject to cross examination. Hartman v. FSM, 6 FSM Intrm. 293, 301 (App.
1993).
If
severance is denied, defendants' out of court statements ought to be redacted to
eliminate in each references to other codefendants. Failure to do so may
result in reversal of convictions in the interests of justice. After
redaction, no prejudice will occur if statements then give no reference to any
codefendant. Redaction can normally be accomplished by the parties.
Thus court will not view statement until after redaction. Hartman v. FSM, 6 FSM Intrm. 293, 301-02 & n.12
(App. 1993).
By
statute, statements taken as a result of a violation of defendant's statutory
right to be brought before a judicial officer without unnecessary delay are
inadmissible, even if voluntary. Chuuk v. Arnish, 6 FSM Intrm. 611, 613 (Chk. S. Ct.
Tr. 1994).
Double
Jeopardy
Principal purpose of protection against double jeopardy
established by FSM Constitution, art. IV, § 7 is to prevent gov't from making
repeated attempts to convict an individual for the same alleged act. Laion
v. FSM, 1 FSM Intrm. 503, 521 (App. 1984).
Double
jeopardy clause, FSM Const. art. IV, § 7, of Declaration of Rights of FSM
Constitution was drawn from Bills of Rights of U.S. Constitution. Laion
v. FSM, 503, 522 (App. 1984).
U.S.
constitutional law at time of Micronesian Constitutional Convention furnishes
guidance as to intended scope of FSM Constitution's double jeopardy clause.
Laion
v. FSM, 1 FSM Intrm. 503, 523 (App. 1984).
Double
jeopardy clause of FSM Constitution protects against second prosecution for same
offense after acquittal, against a second prosecution for same offense after
conviction and against multiple punishments for same offense. Laion
v. FSM, 1 FSM Intrm. 503, 523 (App. 1984).
When
assault with a dangerous weapon requires use or attempted use of a dangerous
weapon, a fact not required for aggravated assault, and aggravated assault
requires an intent to cause serious bodily injury, which need not be proved for
conviction of assault with a dangerous weapon, conviction on both charges for
the same wrongful act will not violate double jeopardy clause of Constitution.
Laion
v. FSM, 1 FSM Intrm. 503, 524 (App. 1984).
Where
trial court orders concurrent sentences of two convictions of different offenses
flowing from a single wrongful act, there is not cumulative or multiple
punishments that might violate double jeopardy clause. Laion
v. FSM, 1 FSM Intrm. 503, 524 (App. 1984).
Where
same act or transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are two offenses
or only one is whether each provision requires proof of a fact which the other
does not. If test is met a dual conviction will not violate the
constitutional protection against double jeopardy. Laion
v. FSM, 1 FSM Intrm. 503, 523-25 (App. 1984).
While
Congress is not prevented by double jeopardy clause from providing that two
convictions of same import may flow from a single wrongful act, a court will not
merely assume such a congressional intention. Laion
v. FSM, 1 FSM Intrm. 503, 525 (App. 1984).
Where
two statutory provisions aimed at similar types of wrongdoing and upholding
citizen and public interests of same nature would apply to a solitary illegal
act, which caused only one injury, statutes will be construed not to authorize
cumulative convictions in absence of clear indication of legislative intent.
However, gov. t is not denied right to charge separate offenses to guard
against risk that a conviction may not be obtained on one of the offenses. Laion
v. FSM, 1 FSM Intrm. 503, 529 (App. 1984).
Protection against double jeopardy in a second trial is not
available until the person has first been tried in one trial. Jeopardy
does not attach in a criminal trial until the first witness is sworn in to
testify. FSM v.
Cheng Chia-W (I), 7 FSM Intrm. 124, 128 (Pon. 1995).
Section 8.
Excessive bail may not be required, excessive fines imposed, or cruel and
unusual punishments inflicted. The writ of habeas corpus may not be
suspended unless required for public safety in cases of rebellion or
invasion.
Case annotation: Cruel and Unusual Punishment
Actions of police officer in stripping prisoner to punish
and humiliate him, then beating him and damaging his pickup truck, constituted
violation of prisoner's constitutional rights to be free from cruel and unreal
punishments and his due process rights. Tolenoa v. Alokoa, 2 FSM Intrm. 250 (Kos.
1986).
Municipality which employs untrained persons as police
officers, then fails to train them and authorizes their use of excessive force
and summary punishment, will be held responsible for their unlawful acts,
including abuse of a prisoner arrested without being advised of charges or given
an opportunity for bail, whose handcuffs were repeatedly tightened during his 14
hour detention in such a way that he was injured and unable to work for one
month. Moses
v. Municipality of Polle, 2 FSM Intrm. 270, 271 (Truk
1986).
Municipality which employs untrained persons as police
officers, fails to train them and authorizes their use of excessive force and
summary punishment, will be held responsible for their actions in stripping a
prisoner, handcuffing his leg to a table and his arms behind his back, then
kicking and abusing him. Alaphen v. Municipality of Moen, 2 FSM Intrm. 279,
280 (Truk 1986).
Use of
force by police officers is not privileged or justified when arrestee was so
drunk and unstable to resist or defend himself and when police officer used
force because he was enraged at being insulted by arrestee. Meitou
v. Uwera, 5 FSM Intrm. 139, 144 (Chk. S. Ct. Tr. 1991).
A
person's constitutional right to due process of law, and his right to be free
from cruel and unusual punishment is violated when an officer instead of
protecting the person from attack, threw him to the ground, and beat the person
in the jail. Meitou v. Uwera, 5 FSM Intrm. 139, 144 (Chk. S. Ct.
Tr. 1991).
Constitutional provisions applicable to a prisoner may vary
depending on his status. A pre-trial detainee has a stronger right to
liberty, which right is protected by Due Process Clause, FSM
Const. art. IV, § 3. A convicted prisoner's claims upon liberty
have been diminished through due process so that person must rely primarily on
art. IV, § 8 which protects him from cruel and unusual punishment. Plais
v. Panuelo, 5 FSM Intrm. 179, 190 (Pon. 1991).
In a
case where a convicted prisoner, who is also a pre-trial detainee, asserts civil
rights claims arising out of ill-treatment after arrest, denial of access to
family is a due process claim, and physical abuse involves due process as well
as cruel and unusual punishment claims. Plais
v. Panuelo, 5 FSM Intrm. 179, 190 (Pon. 1991).
In
interpreting provision against cruel and unusual punishment in FSM Constitution,
court should consider values and realities of Micronesia, but against background
of law concerning cruel and unusual punishment and internat. l standards
concerning human rights. Plais v. Panuelo, 5 FSM Intrm. 179, 196-97 (Pon.
1991).
Confining prisoner in dangerously unsanitary conditions,
which represent a broader gov't-wide policy of deliberate indifference to
dignity and well-being of prisoners, is failure to provide civilized treatment
or punishment, in violation of prisoners' protection against cruel and unusual
punishment, and renders state liable under 11 FSMC 701(3). Plais
v. Panuelo, 5 FSM Intrm. 179, 208 (Pon. 1991).
Revocation of probation of alcohol dependent person because
he consumed alcohol or because of alcohol related offenses for which he was
convicted does not constitute cruel and unusual punishment in violation of
constitution. FSM v. Phillip, 5 FSM Intrm. 298, 300 (Kos.
1992).
Habeas
Corpus
FSM
Supreme Court has inherent constitutional power to issue all writs; this
includes the traditional common law writ of mandamus. 4 FSMC 117. Nix v.
Ehmes, 1 FSM Intrm. 114, 118 (Pon. 1982).
Art.
XI, § 6(b) of FSM Constitution requires that FSM Supreme Court consider a
petition for writ of habeas corpus alleging imprisonment of a petitioner in
violation of his rights of due process. In re
Iriarte (I), 1 FSM Intrm. 239, 243-44 (Pon. 1983).
FSM
Supreme Court's constitutional jurisdiction to consider writs of habeas corpus
is undiminished by the fact that the courts whose actions are under
consideration, the TT High Court and a Community Court, were not contemplated by
FSM Constitution. In re Iriarte (I), 1 FSM Intrm. 239, 244, 246 (Pon.
1983).
In
habeas corpus proceeding, the court must apply due process standards to actions
of courts which have issued orders of commitment. In re
Iriarte (I), 1 FSM Intrm. 239, 249 (Pon. 1983).
Judicial review of certification of extraditability,
although not appealable, is available to an accused in custody by seeking a writ
of habeas corpus. In re Extradition of Jano, 6 FSM Intrm. 23, 25
(App. 1993).
4 FSMC
117 gives both the trial division and the appellate division powers to issue all
writs not inconsistent with law or with the rules of civil procedure. FSM
Appellate Rule 22(a) requires petitions for writs of habeas corpus be first
brought in the trial division. When circumstances have been shown to
warrant, the appellate division clearly has the authority to suspend the rule.
In re
Extradition of Jano, 6 FSM Intrm. 31, 32 (App. 1993).
Scope
of habeas corpus review of extradition proceeding is 1) whether judge had
jurisdiction, 2) whether court had jurisdiction over extraditee, 3) whether
there is an extradition agreement in force, 4) whether crimes charged fall
within the terms of the agreement, and 5) whether there was sufficient evidence
to support a finding of extraditability. In re
Extradition of Jano, 6 FSM Intrm. 93, 104 (App. 1993).
Bail
The
object in determining conditions of pretrial release is to assure the presence
of defendant at trial so that justice may be done while keeping in mind the
presumption of innocence and permitting defendant the maximum amount of pretrial
freedom. FSM Supreme Court should attempt to weigh the various forces
likely to motivate a defendant to stay and face trial against those forces
likely to impel him to leave. FSM Crim. R. 46(a)(2). FSM
v. Jonas (I), 231a, 233 (Pon. 1982).
Where
highest prior bail was $1,500.00 imposition of bail in amount of $10,000.00, on
basis of dispute and unsubstantiated gov't suggestions that defendant has cash
and assets available to him, would be unwarranted. FSM
v. Jonas (I), 1 FSM Intrm. 231a, 236 (Pon. 1982).
The
bearer of title of Nahniken, by virtue of his position's deep ties to Ponapean
society, may be expected to appear and stand trail if accused of crime and to
submit to sentence if found guilty. Bail, therefore should be granted.
In re
Iriarte (II), 1 FSM Intrm. 255, 265 (Pon. 1983).
FSM
Supreme Court must approach question of whether bail is "excessive" with
recognition that defendant is presumed innocent, is to be treated with dignity,
and needs a reasonable opportunity to prepare his defense. At the same
time the judiciary must keep in mind his responsibility to the public to assure
that defendant will be made to respond to charges leveled at him. FSM v.
Etpison, 1 FSM Intrm. 370, 372 (Pon. 1983).
Once a
justice certifies an accused as extraditable, the justice must then commit the
person to the proper jail until surrendered. The extradition statute does
not give the court the authority to release a person on bail pending any
judicial review of the certification. In re
Extradition of Jano, 6 FSM Intrm. 62, 63 (App. 1993).
In
internat. l extradition case, bail can be granted only if "special
circumstances" are shown. Neither risk of flight nor availability of suitable
custodian are primary considerations. Rather the primary consideration is
ability of gov't to surrender the accused to the requesting gov't. In re
Extradition of Jano, 6 FSM Intrm. 62, 64 (App. 1993).
Excessive
Fines
Section 9. Capital
punishment is prohibited.
Section 10.
Slavery and involuntary servitude are prohibited except to punish
crime.
Section 11. A bill
of attainder or ex post facto law may not be passed.
Case annotations: Bill of Attainder
A bill
of attainder is any legislative act that applies to either named individuals or
to easily ascertainable members of a group in such a way as to inflict
punishment on them without a judicial trial by substitution of a legislative for
a judicial determination of guilt. Robert
v. Mori, 6 FSM Intrm. 394, 401 (App. 1994).
A
statute making all persons convicted of a felony in the Trust Territory courts
ineligible for election to FSM Congress does not constitute criminal punishment
and does not substitute a legislative for a judicial determination of guilt and
thus is not an unconstitutional bill of attainder. Robert
v. Mori, 6 FSM Intrm. 394, 401 (App. 1994).
The
statutory ineligibility of persons convicted of Trust Territory felonies is
valid exercise of Congress's constitutional power to prescribe additional
qualifications for election to Congress, and is not unconstitutional as a
deprivation of a liberty interest without due process of law, or as an ex post
facto law, or as a bill of attainder. Robert
v. Mori, 6 FSM Intrm. 394, 401 (App. 1994).
Ex Post Facto
Laws
Legislation is not an ex post facto law where source of
legislative concern can be thought to be the activity or status from which the
individual is barred, even though it may bear harshly upon one affected, but the
contrary is the case where statute in question is evidently aimed at person or
class of persons disqualified. Robert v. Chuuk State House of Representatives, 6 FSM
Intrm. 260, 268-69 (Chk. S. Ct. Tr. 1993).
A
provision barring those convicted of a felony, even if pardoned, from membership
in legislature is concerned with qualifications of legislative membership, and
is not just for purpose of punishing felons and those pardoned of a felony which
would violate the constitutional ban on ex post facto laws. Robert
v. Chuuk State House of Representatives, 6 FSM Intrm. 260, 269-71 (Chk.
S. Ct. Tr. 1993).
Since
retrospective application of constitutional provision barring persons convicted
of felonies, even if pardoned, from holding legislative office is not an invalid
ex post facto law, retrospective application of then provision is also not
invalid as a bill of attainder or a denial of due process. Robert
v. Chuuk State House of Representatives, 6 FSM Intrm. 260, 271-72 (Chk.
S. Ct. Tr. 1993).
The
concept of ex post facto laws is limited to legislation which does any of the
following: 1) makes criminal and punishable an act innocent when done; 2)
aggravates a crime, or makes it greater than it was when committed; 3) increases
punishment for a crime and applies the increase to crimes committed before
enactment of the laws; or 4) alters legal rules of evidence so that testimony
insufficient to convict for the offense when committed would be sufficient as to
that particular offense and accused person. The ban on ex post facto law
applies to criminal acts only. This means retroactive noncriminal laws may
be valid. Robert
v. Mori, 6 FSM Intrm. 394, 400 (App. 1994).
The
mark of an ex post facto law is imposition of punishment for past acts.
The question is whether legislative aim was to punish that individual for
past activity, or whether restriction of the individual comes about as a
relevant incident to a regulation of a present situation, such as the proper
qualifications for a profession. Robert
v. Mori, 6 FSM Intrm. 394, 401 (App. 1994).
Since
legislative aim of a statute making ineligible for election to Congress those
persons convicted of a felony in a Trust Territory court was not to punish
persons for their past conduct it is a regulation of a present situation
concerned solely with the proper qualifications for members of Congress.
As such it is a reasonable means for achieving a legitimate governmental
purpose. It is therefore not unconstitutional as an ex post facto law.
Robert
v. Mori, 6 FSM Intrm. 394, 401 (App. 1994).
Statutory ineligibility of persons convicted of Trust
Territory felonies is a valid exercise of Congress's constitutional power to
prescribe additional qualifications for election to Congress, and is not
unconstitutional as a deprivation of a liberty interest without due process of
law, or as an ex post facto law, or as a bill of attainder. Robert
v. Mori, 6 FSM Intrm. 394, 401 (App. 1994).
Section 12. A
citizen of the Federated States of Micronesia may travel and migrate within the
Federated States.
Section 13.
Imprisonment for debt is prohibited.
