FSM 2 Intrm. 001-008

It is thought that the judicial power to declare the law will more likely be exercised in enlightened fashion if it is employed only where the Court is exposed to the differing points of view of adversaries. Thus judicial decision-making power is typically exercised by a court which has heard competing contentions of adversaries having sufficient interests in the outcome to thoroughly consider, research and argue the points at issue. Even then, a court's declarations of law should be limited to rulings necessary to resolve the dispute before it. In re Sproat, 2 FSM Intrm. 1, 41 (Pon. 1985).

While the Judiciary must resolve disputes legitimately placed before it, it may not usurp legislative functions by making declarations of policy or law beyond those necessary to resolve disputes nor undertake administrative functions of the kind normally consigned to the Executive Branch where this is not necessary to carry out the judicial function. In re Sproat, 2 FSM Intrm. 1, 4 (Pon. 1985).

A case must be one "appropriate for judicial determination", that is, a "justiciable controversy," as distinguished from a "difference or dispute of a hypothetical or abstract character," or one that is "academic or moot." The controversy must be "definite and concrete, touching the legal relations of parties having adverse legal interests." In re Sproat, 2 FSM Intrm. 1, 5 (Pon. 1985).

Citizenship may affect, among other legal interests, rights to own land, to engage in business or be employed, and even to reside within the Federated States of Micronesia. In re Sproat, 2 FSM Intrm. 1, 6 (Pon. 1985).

Article III , Sections 1 and 2, of the FSM Constitution are self-executing and do not contemplate, or imply the need for, court action to confirm citizenship where no challenge exists.In re Sproat, 2 FSM Intrm. 1,

The Citizenship and Naturalization Act places primary responsibility for administrative implementation upon the President, and contemplates that the Executive Branch, not the Judiciary, normally will determine and certify citizenship. In re Sproat, 2 FSM Intrm. 1, 7 (Pon. 1985).

Where there exists an actual controversy involving a concrete threat to citizenship rights and interests, the FSM Supreme Court could be constitutionally required to determine whether a person is or is not a citizen. In re Sproat, 2 FSM Intrm. 1, 7 (Pon. 1985).

Courts in the United States have ruled on citizenship status where that status determines the propriety of official adminstrative action and administrative remedies have been exhausted. In re Sproat, 2 FSM Intrm. 1, 7 (Pon. 1985).

Until 7 F.S.M.C. 204 goes into effect, it may be appropriate to take a liberal view in determining when a court ruling on citizenship status may be required to prevent injustice or to permit an individual to proceed with his own business or personal affairs. In re Sproat, 2 FSM Intrm. 1, 8 (Pon. 1985).

The petitioners in these cases request declarations that they are citizens of the Federated States of Micronesia. I conclude there is no case or dispute here and that the Court is without jurisdiction to consider these requests.

Each petitioner claims FSM citizenship under Article III, Section 2 of the Constitution as "[a] person born of parents one or both of whom are citizens of the Federated States of Micronesia." 1 Neither petition names a defendant or opponent to the claims of citizenship. No party has appeared to

It is thought that the judicial power to declare the law will more likely be exercised in an enlightened fashion if it is employed only where the court is exposed to the differing points of view of adversaries. Thus judicial decision-making power is typically exercised by a court which has heard the competing contentions of adversaries having sufficient interests in the outcome to thoroughly consider, research and argue the points at issue. Even then, a court's declaration of law should be limited to those rulings necessary to resolve the dispute before it.

Jurisdictional limitations upon the judicial power also reflect the specialized and limited role of judiciaries within government. While the Judiciary must resolve disputes legitimately placed before it, it may not usurp legislative functions by making declarations of policy or law beyond those necessary to resolve disputes nor undertake administrative functions of the kind normally consigned to the Executive Branch where this is not necessary to carry out the judicial function. 2

In the Federated States of Micronesia these principles are embodied in the jurisdictional provisions of the Constitution. The Constitution does not authorize this Court to declare the law anytime a Justice feels moved to do so. Nor may the Court respond to every request for a legal ruling directed to it by citizens. Instead, Article XI, Section 6 of the Constitution grants jurisdiction, and the power to exercise judicial powers, only in five specific kinds of "disputes"3 and five types of "cases." 4

However, the petitioners' claims are based upon the Constitution's provisions concerning citizenship. To a lesser degree, the petitions may also raise issues under the Citizenship and Naturalization Act, 7 F.S.M.C. 201 et. seq. Thus, the claims here "arise under" the Constitution or national law. If the petitions present "cases," then there exists jurisdiction here.

This Court has previously considered the meaning of the word "cases" as it appears in Article XI, Section 6 of the Constitution. In Ponape Chamber of Commerce v. Nett Municipal Government, 1 FSM Intrm. 389, 401 (Pon. 1984), after reviewing decisions discussing similar jurisdictional provisions in the United States Constitution, we said:

A case must be one "appropriate for judicial determination," that is, a "justiciable controversy, as distinguished from a "difference or dispute of a hypothetical or abstract character," or one that is "academic or moot." The controversy must be "definite and concrete, touching the legal relations of parties having adverse legal interests."

Here, there are no parties having adverse legal interests. Indeed, there are no named parties other than the petitioners. The Court gave notice of each petition to the national government. The government has cooperated by responding and conducting its own investigation, then notifying the Court that the government considers both claims of citizenship justified.

Further, the status of the petitioners is presented as an hypothetical, abstract or academic issue rather than one currently appropriate for justiciable determination. Citizenship may affect, among other legal interests, rights to own land,5 to engage in business or be employed,6 and even to reside within the Federated States of Micronesia. 7 Petitioner Sproat's counsel has represented that Mr. Sproat is "uncertain" as to his rights in these areas. Mr. Cruz's petition alleges that he "faces a substantial risk that he may be prevented from exercising his rights. Mr. Cruz does not identify the source of that risk and neither petitioner has pointed to any concrete challenge or threat to the intended or attempted exercise by him of rights related to citizenship.

In Grauert v. Dulles, 133 F. Supp. 836 (D.D.C. 1955), plaintiffs sought a declaratory judgment that they were United States citizens. That court found no jurisdiction to decide the claim, saying, at 838-39:

[A]n issue may usually be deemed justiciable if a coercive cause of action has already accrued to one of the parties with regard to that issue, or if it is relatively certain that coercive litigation will eventually ensue between the same parties if a declaration is refused.

In the case at bar plaintiffs may be harmed if they do certain things. Not only is damage to them contingent, but there is no recital of intent to do the acts bringing them within the area of harm. Hypothetical damage is not enough. Courts do not adjudge except when definite rights appear on one side and definite prejudicial interferences upon the other.

As already noted, another reason that the judicial power is limited to cases or disputes is to prevent the Judiciary from intruding into areas committed to other branches of government. This second line of inquiry also

There is in the Constitution explicit reference to the necessity of court action to obtain citizenship under some sections. FSM Const. art. III, §§ 4 and 5. Under these provisions, the Court has jurisdiction without regard to the Article XI, Section 6 case or dispute limitations. As Petitioner Sproat notes, we have granted numerous applications under Article III, Section 5. Article III, Sections 1 and 2, on the other hand, appear self-executing and do not contemplate, or imply the need for, court action to confirm citizenship where no challenge exists.

I note also that the Citizenship and Naturalization Act places primary responsibility for administrative implementation upon the President. See 7 F.S.M.C. §§ 203, 204 and 207. That statute's only reference to court action is in the provision for cancellation of naturalization under 7 F.S.M.C. 205(2). The statute, then, contemplates that the Executive Branch, not the Judiciary, normally will determine and certify citizenship.

The codifiers' note indicates that 7 F.S.M.C. 204 is not to take effect while the Trusteeship Agreement remains in effect. 8 This does not though furnish grounds for ignoring that Congress has already spoken concerning the proper branch to act. The Constitution and the statute spell out respective roles for the Court and for the President. The Court's primary mission does not include the administrative tasks of confirming citizenship or naturalization of citizens. Given the constitutional and statutory arrangement, in addition to the apparent absence of a justiciable controversy, I conclude that the Court does not have jurisdiction and may not grant the relief requested by the petitioners.

There are of course circumstances where it would be absurd, unjust and unlawful for the Court to refuse to determine whether a person is a citizen of the Federated States of Micronesia. Where there exists an actual controversy involving a concrete threat to the types of rights and interests alluded to by Petitioner Cruz in his affidavit and by Petitioner Sproat in oral argument, this Court could be constitutionally required to determine whether a person is or is not a citizen.

For example, courts in the United States have ruled on citizenship status where that status determines the propriety of official administrative action and administrative remedies have been exhausted. Rusk v. Cort, 369 U.S. 367, 82 S. Ct. 787, 7 L. Ed. 2d. 809 (1962); McGrath v. Kristensen, 340 U.S. 162, 71 S. Ct. 224, 95 L. Ed. 173 (1950); Perkins v. E1g, 307 U.S. 325, 59

Moreover, until 7 F.S.M.C. 204 goes into effect, it may be appropriate to take a liberal view in determining when a court ruling on citizenship status may be required to prevent injustice or to permit an individual to proceed with his own business or personal affairs. These petitions have brought no such necessity to the attention of the Court however.

The petitions for citizenship here are not presented in an adversarial context. In essence they do not ask this Court to resolve a legal dispute but instead to certify the existing status of the petitioners. Such certification is a kind of administrative function normally consigned to the Executive Branch. The pertinent constitutional and statutory provisions also contemplate limited court involvement, and administrative implementation of the Citizenship and Naturalization Act by the Executive Branch.

These petitions do not present a "case" within the meaning of Article XI, Section 6 of the Constitution. They are therefore dismissed as outside the jurisdiction of this Court. This dismissal is without prejudice to the right of petitioners to renew their petitions under the circumstances outlined as appropriate in this opinion.

[Tlhe judicial power of federal courts is constitutionally restricted to "cases" and "controversies." As is so often the situation in constitutional adjudication, those two words have an iceberg quality, containing beneath their surface simplicity submerged complexities which go to the very heart of our constitutional form of government. Embodied in the words "cases" and "controversies" are two complementary but somewhat different limitations. In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the case-and-controversy doctrine. (Back to opinion )

3. "Disputes": (1) between states; (2) involving admiralty or maritime claims; (3) between a state and a citizen of another state; (4) between citizens of different states; and (5) between a state or a citizen thereof, and a foreign state, citizen, or subject. (Back to opinion )

4. "Cases": (1) affecting officials of a foreign government; (2) in which the national government is a party; (3) arising under the Constitution; (4) arising under national law; (5) arising under treaties. (Back to opinion )

8. Trusteeship Agreement for the Former Japanese Mandated Islands, July 18, 1947, United Nations-United States, 61 Stat. 3301, T.I.A.S. No. 1665, 8 U.N.T.S. 189, reprinted in II F.S.M.C. at 895-99 (1982). (Back to opinion )