FSM 3 Intrm. 045-056

POHNPEI SUPREME COURT TRIAL DIVISION

Cite as Pohnpei v. Mack & John, Pohnpei v. Leopold,

3 FSM Intrm. 45 (Pon. S. Ct. Tr. 1987)

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STATE OF POHNPEI,

NIXON MACK & JOHNATHAN JOHN,

STATE OF POHNPEI,

PONCIANO LEOPOLD,

Before Judah C. Johnny

Pohnpei State Supreme Court

For the Plaintiff: Joses Gallen

(Pohnpei State) Assistant State Attorney

State Attorney's Office

For the Defendants: Ioanis Kanichy

(Mack & John & Leopold) Public Defender's Office

Kolonia, Pohnpei 96941

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Constitutional Law - National/State Powers

Congress, under Section 5 of Article XV, had the power to provide for the transition from government under the Trusteeship to government under the Constitution of the Federated States of Micronesia. Pohnpei v. Mack, 3 FSM Intrm. 45, 49 (Pon. S. Ct. Tr. 1987).

Constitutional Law - Legislative Powers

Congress enacted P.L. No. 1-72 and confirmed the legislative power of state governments to supersede Trust Territory statutes within the scope of their exclusive powers. Pohnpei v. Mack, 3 FSM Intrm. 45, 54 (Pon. S. Ct. Tr. 1987).

Constitutional Law - National/State Powers

Trust Territory statutes applicable to the states became part of the states' laws, regardless of whether they were published in the FSM Code. Such holdover Trust Territory laws become laws of the states until superseded. Pohnpei v. Mack, 3 FSM Intrm. 45, 55 (Pon. S. Ct. Tr. 1987).

Constitutional Law - National/State Powers

All Trust Territory statutes that were applicable to the State of Pohnpei prior to P.L. 2-48 and immediately before November 8, 1984, the effective date of the Pohnpei State Constitution, and which have not been amended, superseded, or repealed, are laws of the State of Pohnpei. Section 3 of S.L. 3L-33-84 made those Trust Territory statutes into laws of the State of Pohnpei, and that includes Title 15 of the Trust Territory Code. Pohnpei v. Mack, 3 FSM Intrm. 45, 55 (Pon. S. Ct. Tr. 1987).

JUDAH C. JOHNNY, Associate Justice:

These cases came before me on January 14, 1987, on a motion to quash. Mr. Joses Gallen, Assistant State Attorney appeared for the State and Mr.

Ioanis Kanichy of the State Public Defender Is Office appeared on behalf of the defendants. Counsel had previously orally argued the subject in PKD 499-86 on January 8, 1987. I deferred ruling pending argument in PKD 453-86, since oral argument had been set on a similar motion which was filed earlier, on December 5, 1986. Counsel filed written briefs on the subject, and here, waived oral argument. Consequently, the motion will be reviewed based on oral argument in PKD 499-86, and on the record in PKD 453-86.

The defendants in the above-captioned criminal cases move to quash the criminal complaints brought against them by the State, on the grounds that they are under the age of 18 years; that Section 1-9 of Pohnpei Crimes Act Of 1985 (S.L. No. 1L-3-85) requires that children under the age of 18 years old be treated in juvenile delinquency proceedings; and that Title 15 of the Code of the Trust Territory of the Pacific Islands provides the procedure under which children alleged to be delinquents should be treated.

The State contends in opposition that Title 15 of the Code of the Trust

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Territory of the Pacific Islands is no longer in effect and therefore is not enforceable as the law of Pohnpei. In support of its position, the State contends that on November 3, 1986, it was proclaimed that the administration of the Trust Territory of the Pacific Islands terminated. Termination of the Trusteeship annuls and abrogates all Trust Territory laws not adopted by the Pohnpei State Legislature. The State maintains that receipt of Trust Territory laws as state laws is not automatic and that the State will have to adopt or amend them expressly in order for them to become state laws. The State understands 8 F.S.M.C. 401 to mean that only those provisions of the Trust Territory Code superseded by state enactments become state law, citing for example, S.L. No. 2L-57-81, which superseded Title 61 of the Trust Territory Code. All those laws not superseded by state statutes remained Trust Territory laws, and died when the Trust Territory jurisdiction died in Pohnpei State. Title 15, the State contends, was not adopted by State statute, and therefore, ceased to apply to the State of Pohnpei on November 3 1986. Therefore, the language of Section 3 of S.L. No. 3L-33-84, "All laws of the government of the State of Pohnpei" does not include Title 15 of the Trust Territory Code, insofar as it never became state law. The State argues that the intent of Section 3 of S.L. No. 3L-33-84 was to bring into force only those statutes enacted by the Pohnpei State legislature when Pohnpei was then a chartered state and before it became a constitutional state. The State Legislature has not seen fit to adopt Title 15 of the Trust Territory Code as laws of Pohnpei State, and thus was not adopted as a law of Pohnpei under S.L. No. 3L-33-84. Therefore, whatever is to be done with persons under 18 years old when they violate the law is a policy question that should be left within the domain of the legislature. Until the question is resolved by the legislature, cases involving infractions by juveniles of criminal laws in the State of Pohnpei should proceed under existing State law.

Proceedings in juvenile delinquency cases in the State of Pohnpei have heretofore been held in accordance with Title 15 of the Trust Territory Code. Title 15 of the Code, among other things, defines delinquent child, sets forth a flexible procedure to be used in the treatment of a child alleged to be delinquent, and requires that an adjudication of a child as delinquent riot constitute a criminal conviction.

When the Pohnpei State legislature enacted the Pohnpei Crimes Act (SL-1L-85), it provided in Section 1-9 that children under the age of ten are conclusively presumed to be incapable of committing any crimes; that persons between the ages of ten and fourteen are presumed incapable of committing any crime, in which case the presumption is rebuttable; but the section shall not, however, prevent proceedings against and the disciplining of any person under eighteen years of age as a delinquent child. The law did not provide for a procedure according to which children falling under Section 1-9 should be treated. Therefore, the State continues to treat children alleged to be delinquents according to the procedure established by Title 15 of the Code of the Trust Territory of the Pacific Islands.

The Pohnpei State Constitutional Convention completed the draft constitution for the State on March 5, 1984, and on September 4, 1984, the

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Ponape District Legislature passed S.L. 3L-33-84, which was approved into law on September 10, 1984. S.L. 3L-33-84 provides, inter alia, for a referendum on the Pohnpei Draft Constitution, and transitional matters in the event of ratification and implementation. The draft constitution was ratified and took effect on November 8, 1984.

The establishment of the Pohnpei State Constitution is an integral part of the political development of the islands of Micronesia, formerly known as the Trust Territory of the Pacific Islands and administered by the United States of America under a Trusteeship Agreement with the United Nations. Specifically, it is a political endeavor, undertaken pursuant to the Constitution which was ratified and implemented by four of the Trust Territory districts, including Truk, Pohnpei, Yap and Kosrae, forming the Federated States of Micronesia. This process is part of the political negotiations between the governments of the United States of America and the Federated States of Micronesia to establish a political relationship which, once approved, will terminate the trust relationship or Trust Territory status between those islands and the United States of America.

The Compact of Free Association, offspring of the political negotiations between the Federated States of Micronesia and the United States of America, was approved and became effective on November 3, 1986. Effective that date, the Trusteeship Agreement for the Pacific Islands ceased to apply with respect to the Federated States of Micronesia. Effective that date, the Compact of Free Association went into full force between the Governments of the Federated States of Micronesia and the United States of America. Effective that date, the authority of the Government of the Trust Territory of the Pacific Islands ceased to apply to the Federated States of Micronesia.

It is obvious that during the Trusteeship era, laws of the Government of the Trust Territory of the Pacific Islands applied to those islands of Micronesia comprising the territory, including, of course, the districts of Truk, Ponape (Pohnpei), Yap, and Kosrae. 1 TTC 101(3).

Changes have taken place in the Trust Territory districts, and as enumerated here, the districts of Truk, Ponape, Yap and Kosrae emerged as the Federated States of Micronesia, in a free associated political status with the United States, thereby terminating the Trust relationship.

The crux of the dispute in this matter is a legal question as to whether or not Title 15 of the Code of the Trust Territory of the Pacific Islands continues to apply in Pohnpei State after the Compact of Free Association took effect on November 3, 1986, terminating the Trusteeship. Conversely for that matter, the question extends to all provisions of the Code of the Trust Territory of the Pacific Islands which applied to Pohnpei during the trusteeship period. Putting it bluntly, the question is, do the provisions of the Code of the Trust Territory of the Pacific Islands continue to have effect in Pohnpei after November 3, 1986?

To answer that question, we must consult the laws that were

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implemented, providing for the changes in the legal status of the islands in the Federated States of Micronesia, but more particularly, the State of Pohnpei.

We begin from the Constitution of the Federated States of Micronesia because it is on that foundation that all legal and political changes have been heretofore effected. In order to initiate a transitional process to create the Government of the Federated States of Micronesia from the Government of the Trust Territory of the Pacific Islands, the Constitution of the Federated States of Micronesia provided an article of transition. SCREP No. 28, II J. of Micro. Con. Con. 808, on Committee Proposal No. 16 (II J. of Micro. Con. Con. 909), which became Section 1 of Article XV of the Constitution of the Federated States of Micronesia, states that a statute of the Trust Territory consistent with the Constitution shall continue in effect until amended or repealed by the National Legislature (the Congress of the Federated States of Micronesia). That section reads in pertinent part:

A statute of the Trust Territory continues in effect except to the extent it is inconsistent with this Constitution, or is amended or repealed.

That section did not empower state legislatures to amend or repeal Trust Territory statutes. The reservation of powers to the state governments could not include the power to amend or repeal a Trust Territory statute because of Section 1 of Article XV of the Constitution. However, Standing Committee Report No. 56 of the Convention (II J. of Micro. Con. Con. 884) on Committee Proposal 33, (II J. of Micro. Con. Con. 937), which became Section 5 of Article XV of the Constitution, authorized the Congress of the Federated States of Micronesia to provide for a smooth and orderly transition to government under the Constitution. The section reads:

The Congress may provide for a smooth and orderly transition to government under this Constitution.

This section empowers the Congress to enact transition statutes not within the scope of legislative powers granted to the national government to accomplish this purpose. As stated, Section 1 of Article XV did not empower the state legislatures to amend or repeal Trust Territory statutes. Yet, there are Trust Territory statutes that are applicable both exclusively to thestates and concurrently with the national government. Those that apply exclusively to the states may not be amended or repealed by Congress because of the separation of powers in Articles VIII and IX of the Constitution. To leave the situation unattended would be to create or to leave a void and imperfect state of matters in the States. It is obvious here that the Constitution of the Federated States of Micronesia saw the need to provide for continuity of laws in the Federated States of Micronesia and its states. Such laws were those Trust Territory laws contained in its Code, then applicable to

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the new governments. The Constitution gives Congress the mandate to provide for a smooth transition into the new governments.

I think that in providing for a smooth transition of matters affecting the states, Congress was faced with a multi-faceted problem. First, Section 1 of Article XV of the Constitution only provided for continuation of statutes of the Trust Territory in the government of the Federated States of Micronesia. There is no continuity provision of Trust Territory statutes in the states. Second, the states could not adopt Trust Territory statutes because the Constitution did not empower them to de so. Third, Congress could not by statute adopt Trust Territory statutes for the states because of tile separation of legislative powers clause in the Constitution.

I agree with the apparent view of Congress of the liberality of its powers given under Section 5 of Article XV, to provide for the transition under the Constitution. The Constitutional Convention, in deliberating over the matter of transition, must have recognized in the light of political uncertainties and events between the convention period and ratification andtransition, that it would be more reasonable that the Constitution not deal with specific matters of transition, but that it empower the Congress to provide for what will become needed by the governments during the transition. I believe that the Convention intended that Congress exercise that power liberally to provide for a smooth transition, not only to the new federal government, but also to the new state governments, since it was clear then that certain Trust Territory statutes were applicable exclusively to the states, which states by their own enactment could not adopt, bypassing Congress. I think that the power was properly exercised by Congress when it enacted P.L. No. 2-48 and said in Section 8 that Trust Territory authority (meaning laws, too) applicable to state jurisdiction was reaffirmed in the states. Only Congress had the power to adopt those laws for the successive governments. It follows, in my view, that adoption of Trust Territory statutes to the states traces back to Section 8 of P.L. No. 2-48.

In completing the intent of Section 5 of Article XV, and Section 8 of P.L. 2-48, in that the states would then be empowered to adopt the Trust Territory statutes already confirmed, Congress enacted P.L. No. 1-72 and confirmed the legislative power of state governments to supersede Trust Territory statutes within the scope of their exclusive state powers. Thus, Congress said in Section 1 of P.L. 1-72:

Supersession of Trust Territory Statutes. Chartered State governments may by State statute supersede Trust Territory statutes within the scope of exclusive State powers reserved to the States by the Constitution of the Federated States of Micronesia. 8 F.S.M.C. 401.

Congress Standing Committee Report No. 1-123 on Congress Bill No. 1-136, which became P.L. 1-72, classified Trust Territory statutes in three categories, falling within:

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1. the scope of the exclusive legislative power of the state government;

2. the scope of National and State governments' legislative powers; and

3. the scope of the exclusive power of the National government.

Under the classification, a Trust Territory statute that may be superseded by a State statute insofar as it applies to the state includes:

1. Title 1 of the Trust Territory Code (General Provisions); provisions on the districts and customs;

2. Chapter 3 of Title 3 of the TTC (Administration and Regulation);

3. Title 4 of the TTC (Municipalities, Towns and Legal Governments);

4. Chapter 1 of Title 5 of the TTC (General Provisions) as it applies to the state courts;

5. Chapter 3 of Title 5 of the TTC (High Court) as it applies to state courts;

6. Chapter 5 of Title 5 of the TTC (District Court) as it applies to state courts;

7. Chapter 7 of Title 5 of the TTC (Community Court) as it applies to state courts;

8. Chapter 9 of Title 5 of the TTC (judges, Officers and Employees) as it applies to state courts;

9. Chapter 11 of Title 5 of the TTC (Concurrent Jurisdiction) as 4-L applies to state courts;

10. Title 6 of the TTC (Civil Procedure) as it applies to state courts;

11. Title 7 of the TTC (Evidence) as it applies to state courts;

12. Title 8 of the TTC (Enforcement of Judgment) as it applies to state courts;

13. Title 9 of the TTC (Special Proceedings) as it applies to state courts;

14. Title 10 of the TTC (Eminent Domain);

15. Title 12 of the TTC (Criminal Procedure) as it applies to state courts,

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16. Title 13 of the TTC (Probate Law and Procedure);

17. Title 15 of the TTC (juveniles) as it applies to state courts;

18. Title 17 of the TTC (Administrative law) insofar as it applies to State Agencies;

19. Chapter 1 of Title 23 of the TTC (Micronesia Coconut Processing Authority);

20. Chapter I of Title 31 of the TTC (Land Surveyors);

21. Chapter 2 of Title 31 of the TTC (Notaries Public) insofar as it applies to state agencies;

22. Chapter 1 of Title 39 of the TTC (Domestic Relations - General Provisions) ;

23. Chapter 3 of Title 39 of the TTC (Marriage);

24. Chapter 5 of Title 39 of the TTC (Annulment and Divorce);

25. Chapter 7 of Title 39 of the TTC (Adoption);

26. Title 43 of the TTC (Elections) insofar as it applies to state and local elections;

27. Title 51 of the TTC (Land Planning Act);

28. Title 57 of the TTC (Property Rights and Incidents);

29. Title 61 of the TTC (Public Employment);

30. Chapter 11 of Title 63 of the TTC (Fire Control);

31. Title 67 of the TTC (Public lands and Resources);

32. Title 69 of the TTC (Public Officer and Agencies);

33. Title 83 of the TTC (Vehicles);

34. Public Law No. 7-53, as amended (Real Property Security Instruments Act of 1977);

35. Public Law No. 6-65, as amended (Trust Territory Salary Act of 1975);

36. Public Law No. 7-131 (Mandatory Reporting of Physical Abuse of Children);

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37. TTC § 3(8) (Business License Fee for Public Utilities); and

38. Public Law No. 6-25 (Distribution of Mail to Outer Islands Not Served by U.S. Postal System).

Trust Territory statutes which fall within the legislative powers of the national and state governments include:

1. Title 11 of the Trust Territory Code (Crimes and Punishments);,

2. Chapter I of Title 33 of the TTC (Foreign Investors and Business Permit Act);

3. Chapter 9 of Title 33 of the TTC (Unfair Business Practices);

4. Chapter 11 of Title 33 of the TTC (Consumer Protection Act);

5. Title 35 of the TTC (Communications);

6. Title 37 of the TTC (Corporations, Partnerships and Associations);

7. Chapter I of Title 41 of the TTC (Educational System);

8. Title 45 of the TTC (Fish, Shellfish and Game);

9. Chapter 1 of Title 46 of the TTC (Community Housing Act);

10. Title 63 of the TTC (Public Health, Safety and Welfare) except Chapter 11 (Fire Control);

11. Title 73 of the TTC (Social Security);

12. Public Law No. 7-35 (Relating to Trust Territory Airports);

13. Public Law No. 7-29, as amended (College of Micronesia);

14. Public Law No. 7-55, as amended (Special Education Act);

15. Public Law No. 7-107 (Use of Government Owned and Operated Broadcasting Facilities);

16. Public Law 7-111, as amended (State Entities To Promote and Support Commercial Utilization of Marine Resources);

17. Public Law No. 7-33 (Health Care Certificate of Need Act);

18. Public Law No. 7-38 (Disaster Relief Act);

19. Public Law No. 6-135 (TTPI and PMA Agreement for Air Transportation Network); and

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20. Public: Law No. IC-5 (Justice Improvement Commission).

While the law was enacted in late 1979, it was made effective retroactive to May 5, 1979, the effective date of the Constitution of the Federated States of Micronesia.

While P.L. 1-72 gave the State legislative power to supersede Trust Territory statutes, in my view, it still left open a danger that if the termination of the trusteeship came about before a state supersedes a Trust Territory statute, especially those providing for functions and procedures, a void would be created, resulting in chaos. It was on August 2, 1982 that Congress, by Public Law 2-48, put in a cork to prevent a void and confusion, which we still seem to have, as illustrated by the cases at bar. P.L. 2-48 relates to the adoption of the Code of the Federated States of Micronesia. The purpose of P.L. 2-48 was to effectuate the publication of laws of National application into one code. At that time, the National laws were in disarray. Some laws were found in Congress session laws, and others in the Trust Territory Code. That, so far has been the codification of National laws since the establishment of the Federated States of Micronesia Constitutional government on May 10, 1979.

The FSM Code, established by P.L. 2-48, carefully included or reprinted only those Trust Territory laws having National application, and omitted those laws which were clearly state matters. The object of doing this was to supersede those provisions of the Trust Territory Code, classified as applicable to the National Government under P.L. 1-72. Therefore, with respect to those Trust Territory statutes applicable to the National government, Congress said in Section 12, in part,

Repealer. The Trust Territory Code to the extent it is not republished herein . . . is hereby repealed in its entirety.

Congress could have left in chaos the states which did not take timely advantage of 8 F.S.M.C. 401 (P.L. 1-72, § 1) before authorities of the trusteeship ceased to apply to them. But it did not. We salute the farsightedness of Congress. In adopting the Code of the Federated States of Micronesia, Congress in Section 8 of P.L. 2-48 said:

State law reaffirmed. The authority of the States of the Federated States of Micronesia with regard to those provisions of the Trust Territory Code within the jurisdiction of the State is unaffected and hereby reaffirmed. (Emphasis supplied).

We have said, supra, that Congress in P.L. 1-72 empowered the State to supersede Trust Territory statutes with State statutes. It seems obvious that Congress anticipated that a State may not have superseded portions of the Trust Territory Code which are vitally essential to its functions and authori

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-ties prior to Trusteeship termination, and thus, in Section 8 of P.L. 2-48, reaffirmed all applicable provisions of the Trust Territory Code in the States. In doing so, I therefore hold that Trust Territory statutes applicable to the States became part of the States' laws, whether or not republished in the FSM Code. They are holdover Trust Territory laws which become laws of the States until superseded. Therefore, in Section 12 of P.L. 2-48, Congress, in repealing provisions of the Trust Territory Code, said

Repealer. The Trust Territory Code to the extent it is not republished herein or reaffirmed as within the jurisdiction of the States by section 8 of this act is hereby repealed in its entirety. (Emphasis supplied).

Therefore, all provisions of the Trust Territory Code not republished in the FSM Code, and not reaffirmed in the States by authority of Section 8, were repealed on August 2, 1982.

The Ponape State Legislature, in providing for transition laws from the Chartered Ponape State to the Constitutional State Government said in Section 3 of S.L. No. 3L-33-84:

Continuation of laws, ordinances, and regulations. All laws of the government of the Stateof Ponape, local government ordinances, and administrative regulations in force immediately before the effective date of the Constitution ofPohnpei shall, to the extent they are consistent with the Constitution, continue in force until they expire by their own limitations or are amended, superseded or repealed.

Section 8 of P.L. 2-48 reaffirmed applicable provisions of the Trust Territory Code to the Chartered Ponape State. Title 15 of the Trust Territory Code was one such provision which remained a law of the State of Ponape. When Section 3 of S.L. 3L-33-84 transferred laws of Ponape State to the Constitutional Pohnpei State, Title 15 continued to be a part of the laws of the Pohnpei State government. Even though for convenience, reference to these laws will continue to follow the Trust Territory nomenclature that does not signify inapplicability of the statutory provisions to the State of Pohnpei.

I hold, therefore, that all Trust Territory statutes which' were applicable to the State of Pohnpei prior to P.L. 2-48, and immediately before November 8, 1984, the effective date of the Pohnpei State Constitution, and which have not been amended, superseded or repealed heretofore, are laws of the State of Pohnpei. Section 3 of S.L. 3L-33-84 made those Trust Territory statutes laws of the State of Pohnpei, including Title 15 of the Trust Territory Code.

Accordingly, it is ORDERED,

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1. To the extent that any of the defendants in the above-captioned cases is of the age of ten years old or under, the respective criminal complaint against them is hereby quashed.

2. Any defendant in the above-captioned cases who has reached the age above ten years old shall be examined for competency to stand trial as an adult, provided that the State files a motion therefor pursuant to 15 TTC as it will operate in conjunction with Section 1-9 of S.L. 3L-33-84, within 15 days of this Order. In the absence of such a motion, the criminal complaint against such defendant shall be quashed.

3. In the event of quash, the State may reinstitute proceedings against the defendant concerned in juvenile delinquency proceedings.

DICTUM: While we have here thus held for practical reasons, we recognize the need to adopt the Trust Territory hold-over statutes by appropriate authorities into, our State nomenclature. JCJ