FSM 2 Intrm. 244-247

THE SUPREME COURT OF THE

FEDERATED STATES OF MICRONESIA

Cite as Panuelo v. Pohnpei State,

2 FSM Intrm. 244 (Pon. 1986)

[2 FSM Intrm. 244]

YASUO PANUELO AND BRIGIDAPANUELO

Plaintiffs,

vs.

STATE OF POHNPEI AND THE

FEDERATED STATES OF MICRONESIA

Defendants.

CIVIL NO. 1985-027

ORDER AUTHORIZING SUBMISSION

OF QUESTIONS TO POHNPEI

SUPREME COURT APPELLATE

DIVISION

OPINION

Before Edward C. King

Chief Justice

October 6, 1986

[2 FSM Intrm. 245]

APPEARANCES:

For the Plaintiffs: R. Barrie Michelsen

Attorney-at-Law

Ramp & Michelsen

P.O. Box 1480

Pohnpei, FSM 96941

For the Defendant: Thomas M. Tarpley

(State of Pohnpei) Special Counsel

State Attorney's Office

Pohnpei, FSM 96941

For the Defendant: Jack Warndof

(Federated States Chief of Litigation

of Micronesia) Office of the Attorney General

Pohnpei, FSM 96941

* * * *

HEADNOTE

Federalism; Courts

Where litigation in which a state of the Federated States of Micronesia is a defendant involves an issue concerning the meaning of a provision of the state Constitution, and the parties in that litigation request that the issue of the meaning of the provision be certified to the supreme court of the state, it is an appropriate exercise of the inherent powers of the FSM Supreme Court to devise a procedure for tendering the issue to the state supreme court, so long as the state court approves. Panuelo v. Pohnpei (III), 2 FSM Intrm. 244, 246 (Pon. 1986).

* * * *

COURT'S OPINION

EDWARD C. KING, Chief Justice:

The parties have requested that this Court certify to the Pohnpei State Supreme Court legal issues concerning the meaning and. enforceability of the health care provisions of Article 7, Section 4 of the Pohnpei Constitution.

In denying the State of Pohnpei's earlier motion for dismissal on grounds of sovereign immunity, this Court noted that a state within the Federated States of Micronesia may be sued for monetary damages in the national court, but saw a:

[2 FSM Intrm. 246]

need to develop an especially liberal policy for abstention in suits against the state for monetary relief .... [A] reasoned request by a state that we abstain from deciding a particular issue should be granted unless the opposing party establishes that the benefits of abstention in terms of federalism and judicial harmony and respect for state sovereignty, would be substantially outweighed by delay, harm or injustice.

Panuelo v. Pohnpei (I), 2 FSM Intrm. 150, 156 (Pon. 1986).

The motion for certification here was initiated by the individual plaintiffs but the State has now joined in the motion.

There is no statutory provision or court rule authorizing certification to state courts of issues in cases before this Court. However certification is in accord with the spirit, if not required by the letter, of the Constitution and statutes of the Federated States of Micronesia. The Constitution contemplates interaction between state and national courts. Article XI, section 7 provides that appeals may be taken to this Court from state courts if the state constitution permits. Article XI, section 10 calls for national "financial support" and "other assistance" for state judicial systems. The Judiciary Act of 1979 also mandates that this Court cooperate with state courts. 4 F.S.M.C. 115.

Finally, article XI, section 8 of the Constitution establishes a procedure whereby state courts are to certify constitutional and other national law issues to this Court's appellate division. In the interests of judicial harmony and out of respect for state sovereignty, I consider it an appropriate exercise of this Court's inherent powers to devise a similar procedure for tendering state constitutional issues to the state courts under the circumstances existing here, so long as the state court approves. The Pohnpei Chief Justice has informally approved submission of the constitutional issues here to the Pohnpei State Supreme Court appellate division.

For all of these reasons the motions requesting certification of issues to the Pohnpei State Supreme Court are granted.

Questions Certified

The parties shall submit to the Pohnpei State Supreme Court appellate division sufficient portions of the pleadings in this case to acquaint the court with the factual background and the allegations of the parties. The questions which the parties may submit to that court's appellate division are as follows:

1. Are the provisions of article 7, section 4 of the Pohnpei Constitution:

a. Self-executing, creating substantive rights enforceable by individuals in a court of law?

[2 FSM Intrm. 247]

b. General policy directives to the Pohnpei Government which do not vest individuals with legal rights that they may assert in courts?

2. What factors should be considered in determining the constitutionality of a particular decision by government officials to refuse to provide financial assistance for an operation necessary to give the patient any possibility of avoiding what otherwise would be certain death?

If the Pohnpei State Supreme Court appellate division certifies that option 1.b. above correctly characterizes these constitutional provisions, there will be no need for an answer to question 2.

This Court will consider itself bound by the decisions of the Pohnpei State Supreme Court appellate division in response to the above questions. If the Pohnpei Supreme Court appellate division believes other questions should be decided in order to provide for this Court an adequate understanding of the import and possible application of article 7, section 4 of the Pohnpei Constitution, it should feel free to address those questions as well.

Timing

It seems proper to take steps to assure that no party may exploit this procedure to cause unnecessary delay or expense. Therefore the time within which a petition may be filed with the state court should be specified and the parties should be required to report their progress to this Court from time to time. The parties are given ten days from the date of entry of the order to submit petitions to the Pohnpei Supreme Court appellate division. They shall report their progress to this Court within 75 days.


	THE SUPREME COURT OF THE FEDERATED STATES OF MICRONESIA Cite as Panuelo v. Pohnpei State, 2 FSM Intrm. 244 (Pon. 1986) [2 FSM Intrm. 244] YASUO PANUELO AND BRIGIDAPANUELO Plaintiffs, vs. STATE OF POHNPEI AND THE FEDERATED STATES OF MICRONESIA Defendants. CIVIL NO. 1985-027 ORDER AUTHORIZING SUBMISSION OF QUESTIONS TO POHNPEI SUPREME COURT APPELLATE DIVISION OPINION Before Edward C. King Chief Justice October 6, 1986 [2 FSM Intrm. 245] APPEARANCES: For the Plaintiffs: R. Barrie Michelsen Attorney-at-Law Ramp & Michelsen P.O. Box 1480 Pohnpei, FSM 96941 For the Defendant: Thomas M. Tarpley (State of Pohnpei) Special Counsel State Attorney's Office Pohnpei, FSM 96941 For the Defendant: Jack Warndof (Federated States Chief of Litigation of Micronesia) Office of the Attorney General Pohnpei, FSM 96941 * * * * HEADNOTE Federalism; Courts Where litigation in which a state of the Federated States of Micronesia is a defendant involves an issue concerning the meaning of a provision of the state Constitution, and the parties in that litigation request that the issue of the meaning of the provision be certified to the supreme court of the state, it is an appropriate exercise of the inherent powers of the FSM Supreme Court to devise a procedure for tendering the issue to the state supreme court, so long as the state court approves. Panuelo v. Pohnpei (III), 2 FSM Intrm. 244, 246 (Pon. 1986). * * * * COURT'S OPINION EDWARD C. KING, Chief Justice: The parties have requested that this Court certify to the Pohnpei State Supreme Court legal issues concerning the meaning and. enforceability of the health care provisions of Article 7, Section 4 of the Pohnpei Constitution. In denying the State of Pohnpei's earlier motion for dismissal on grounds of sovereign immunity, this Court noted that a state within the Federated States of Micronesia may be sued for monetary damages in the national court, but saw a: [2 FSM Intrm. 246] need to develop an especially liberal policy for abstention in suits against the state for monetary relief .... [A] reasoned request by a state that we abstain from deciding a particular issue should be granted unless the opposing party establishes that the benefits of abstention in terms of federalism and judicial harmony and respect for state sovereignty, would be substantially outweighed by delay, harm or injustice. Panuelo v. Pohnpei (I), 2 FSM Intrm. 150, 156 (Pon. 1986). The motion for certification here was initiated by the individual plaintiffs but the State has now joined in the motion. There is no statutory provision or court rule authorizing certification to state courts of issues in cases before this Court. However certification is in accord with the spirit, if not required by the letter, of the Constitution and statutes of the Federated States of Micronesia. The Constitution contemplates interaction between state and national courts. Article XI, section 7 provides that appeals may be taken to this Court from state courts if the state constitution permits. Article XI, section 10 calls for national "financial support" and "other assistance" for state judicial systems. The Judiciary Act of 1979 also mandates that this Court cooperate with state courts. 4 F.S.M.C. 115. Finally, article XI, section 8 of the Constitution establishes a procedure whereby state courts are to certify constitutional and other national law issues to this Court's appellate division. In the interests of judicial harmony and out of respect for state sovereignty, I consider it an appropriate exercise of this Court's inherent powers to devise a similar procedure for tendering state constitutional issues to the state courts under the circumstances existing here, so long as the state court approves. The Pohnpei Chief Justice has informally approved submission of the constitutional issues here to the Pohnpei State Supreme Court appellate division. For all of these reasons the motions requesting certification of issues to the Pohnpei State Supreme Court are granted. Questions Certified The parties shall submit to the Pohnpei State Supreme Court appellate division sufficient portions of the pleadings in this case to acquaint the court with the factual background and the allegations of the parties. The questions which the parties may submit to that court's appellate division are as follows: 1. Are the provisions of article 7, section 4 of the Pohnpei Constitution: a. Self-executing, creating substantive rights enforceable by individuals in a court of law? [2 FSM Intrm. 247] b. General policy directives to the Pohnpei Government which do not vest individuals with legal rights that they may assert in courts? 2. What factors should be considered in determining the constitutionality of a particular decision by government officials to refuse to provide financial assistance for an operation necessary to give the patient any possibility of avoiding what otherwise would be certain death? If the Pohnpei State Supreme Court appellate division certifies that option 1.b. above correctly characterizes these constitutional provisions, there will be no need for an answer to question 2. This Court will consider itself bound by the decisions of the Pohnpei State Supreme Court appellate division in response to the above questions. If the Pohnpei Supreme Court appellate division believes other questions should be decided in order to provide for this Court an adequate understanding of the import and possible application of article 7, section 4 of the Pohnpei Constitution, it should feel free to address those questions as well. Timing It seems proper to take steps to assure that no party may exploit this procedure to cause unnecessary delay or expense. Therefore the time within which a petition may be filed with the state court should be specified and the parties should be required to report their progress to this Court from time to time. The parties are given ten days from the date of entry of the order to submit petitions to the Pohnpei Supreme Court appellate division. They shall report their progress to this Court within 75 days.