In the matter of the decision(1986)

POHNPEI SUPREME COURT REPORTS

VOL. 2

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IN THE MATTER OF THE DECISION

OF THE PUBLIC LANDS AUTHORITY

Re: Lot Nos. 009-A-28 and 009-A-39 (PAMI)

Kohpwa Lele,

Petitioner

Board of Trustees,

Respondents

And

IN THE MATTER OF THE DECISION OF THE PUBLIC LANDS AUTHORITY

Re: Tract No. 71050-A (Cold Storage)

Edgar Edwards,

Petitioner

Board of Trustees,

Respondents

Pohnpei Civil Actions Nos. 114-85 and 116-85

Trial Division of the Pohnpei Supreme Court

August 18, 1986

Consolidated cases. Petitioners sought a review of and the invalidation of the Pohnpei State Public Lands Board of Trustees' decision granting certain government lease lots as illegal in view of alleged bribery and coercion of some members of the Board prior to their meeting at which applicants for the lease were considered.

The Trial Division of the Pohnpei Supreme Court, JUDAH C. JOHNNY, Associate Justice, found that the allegations were hearsay and dismissing the petitions, held (1) that

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a decision of the Board was reviewable by the Court, and (2) that the alleged bribing of individual members of the Board, if true, rendered the affected members unqualified to vote as their votes could have controlled the decision of the Board, and any decision of the Board made under the circumstances would be suspect.

1. Public Lands Authority - Board of Trustees - Improper Acts By Members.

Where the Public Lands Authority Board of Trustees are to decide the candidates for a government tease and individual members have a conflict on account of bribes given to them, the affected members should not vote, as their votes could control the decision of the Board, and any decision of the Board made under the circumstances would be suspect.

2. Courts - Jurisdiction

The Court may determine questions relating to its jurisdiction.

3. Courts - Review of Agency Action - Jurisdiction

The Court has authority to review all actions of an agency of the Government (SL.2L-160-82, Sec.51).

4. Judicial review - Agency Action - Who May Request Review

A person suffering legal wrong because of agency action or adversely affected or aggrieved by agency action is entitled to judicial review (S.L.2L160-82. Sec.52).

5. Judicial Review - Agency Action - Acts Reviewable

Agency action otherwise made reviewable by statute and any final agency action for which there is no adequate remedy in a court are subject to judicial review. (S.L. 2L-160-82, Sec. 53)

6. Judicial Review - Agency Action - Scope of Review

In a review of agency action "the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of any agency action. The reviewing court shall hold unlawful and set aside agency action, findings and conclusions found to be:

(a) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

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(b) contrary to constitutional right, power, privilege or

(d) without observance of procedure required by law." (S.L. 2L-160-82 Sec.55).

Editorial Note: The scope of review enumerated in Headnote 5 Is not exhaustive. See Section 55 supra.

7. Courts - Jurisdiction - Public Lands Board of Trustees - Actions

The Court has power to review actions of the Public Lands Board Trustees.

8. Courts - Powers

Where individual members of the Public Lands Board of Trustees have conffid on account of bribes given to them, and they vote on the selection of candidates for the lease of public land the Court has authority under Section 55 of the Judicial Act (S.L. 2L-160-82) to hold the derision of the Board null and void.

9. Evidence - Hearsay Evidence

Where evidence adduced by party consists of nothing more than hearsay evidence, the evidence is inadmissible, and the Court cannot hold void a decision of the Public Lands Board of Trustees on the basis of such evidence and render criminal sanctions against individual members of the Board alleged to be guilty of improper acts relating to the leasing of public lands.

10. Pohnpeian Jurisprudence - Relief

The Pohnpei judicial process is a fact finding, law-guided process, and no relief may be granted by it based on rumors or speculations.

Counsel for Petitioners: Dr: Burton Jano

Counsel for Respondents: Mr.Sungiwo Hadley

Pohnpei Public Lands Authority: Legal Advisor Pohnpei Public Lands Authority

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JUDAH C. JOHNNY, Associate Justice,

Petitioners seek invalidation of the Pohnpei State Public Lands Authority Board of Trustees' decision granting certain government lease lots as being illegal and subject to criminal sanctions. The petitions are denied for the reasons discussed below.

BACKGROUND

The Public Lands Authority is an independent Pohnpei State Agency, created by State Law D.L. No. 4L-69-76, with purposes to receive, hold, and dispose of public lands in the State of Pohnpei. Its duties included inter alia, to sell, lease, exchange, use, dedicate for public purposes, or make other disposition of such public lands pursuant to District (State) law. (Section 2) The Authority is governed by a Board of Trustees, consisting of nine members. A decision of the Board is made by majority vote of its total membership. (Section 2, D.L. No. 4L-93-77, amending Section 5 of D.L. No. 4L-69-76). A member is required to disclose his conflict of interest in any subject of deliberation by the Board and is therefore prevented from participating on behalf of the Board or Authority in any votes or transactions of the Board or Authority relative to such subject. (Section 1, S.L. No. 2L-104-81, amending Section 23,

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D. L. No. 4L-69-76).

The evidence shows that in a meeting of the Board of Trustees held on January 11, 1985, among the things the Board approved was to advertise to the general public the availability of commercial lease parcels identified as Lot Nos. 009-A-28 and 009-A-29, which are located in Kolonia, commonly known as PAMI, and Lot No. T-710-50-A, situated in Neff at Taketik Island, commonly known as the Cold Storage Plant. PAMI's then lease had expired on November 20, 1979. There had been no lease on the Plant.

On January 14, 1985, the Board advertised PAMI for lease, making a public announcement to that effect for forty-five (45) days. On January 21,1985, it advertised the Cold Storage Plant to the general public for lease, making the advertisement also to last for forty-five (45) days.

Eight persons and companies applied for the PAMI lease in addition to Bernard Helgenberger. Three persons and companies applied for the Cold Storage Plant in addition to Isamu Nakasone. All applications were referred to a screening committee consisting of members of the Board. In its review of the applications, the

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Board also invited the expertise of the Department of Conservation and Resources Surveillance to provide the Board an economic analysis of each of the applications. The C&RS Department in response to the invitation, recommended granting of Lots 009-A-28 and 009-A-29 to a Bernard Weilbacher, and Lot T-710-50-A to an Edgar Edward.

The screening committee screened the applications and recommended three applicants as being the best among the nine candidates for Lots 009-A-28 and 009-A-29, one of whom to be selected by the Board of Trustees. Recommended were Kohpwa LeIe, Ambros Senda and Bernard Helgenberger.

The screening committee recommended Edgar Edward and isamo Nakasone as best candidates for Tract No. 710-50-A.

The Board of Trustees in a meeting it held on May 31, 1985, selected and granted Lots 009-A-28 and 009-A-29 (PAMI) to Bernard Helgenberger, and Tract 710-50-A (Cold Storage) to isamo Nakasone. It is from that selection by the Board of Trustees that these petitions are brought.

The petitioners jointly seek a review of the Board's decision, claiming that various members of the Board who attended and

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voted in the selection of candidates for PAMI and the Cold Storage were coerced and accepted bribes prior to the meeting. Evidence brought by the petitioners tended to show that the awardees of the lots, who are brothers, made parties and Pohnpeian sakau at various places and at different times to some members of the Board immediately before the meeting: at the T.V. Stations; at Pali Ais, Heinrich Iriarte's (PLA President's) house; at Nan Kihd; and at Kepinle. These, the petitioners alleged have been made by and on behalf of the brothers Helgenberger and Nakasone for various members of the Board of Trustees, purposely to bribe them into granting the leases to them. Therefore, their petitions are filed asking the Court to review those actions and hold them void. The petitioners went on to ask the court to render criminal sanctions against the affected members of the Board.

[1-2] The defendant Public Lands Authority moved for exclusion as party defendant, asserting that if there were any improper act of its members it would be the individual act of the members and not that of the Board of Trustees as a body. The Court denied that, holding on the contrary that if it is proved that the petitioners' allegations were true, the affected members should not

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have voted as members; that their votes could have controlled the decision of the Board, and any decision of the Board made under the circumstance would therefore be suspect. The respondents also moved for dismissal on the basis of lack of jurisdiction. The Court also denied the motion,. holding it has jurisdiction.

[3-6j The power of this Court to exercise jurisdiction on causes similar to that presented by the petitioners is explicitly stated in the Pohnpei State Judicial Act S. L. No. 2L-160-82. Sections 51 to 56 govern the power and procedure of review. In granting the power, Section n 51, provides:

"The State Court hall have the authority to review all actions of an agency of the Government of this State in accordance with this Act or the provisions of any other statute or regulation that provides for a broader scope of judicial review."

As to who may request a review, Section 52 provides:

"a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action ...is entitled to judicial review..

As to what acts are reviewable, Section 53 provides:

"Agency aeon otherwise made reviewable by statute and any final agency action for which there is no other adequate remedy in a court are subject to judicial review."

Section 55 provides for the scope of review, and in pertinent

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part provides:

"...the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of any a agency action. The reviewing court shall:

(2) hold unlawful and set aside agency action, findings and conclusions found to be:

(a) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(b) contrary to constitutional right, power, privilege, o(r) immunity;

(d) without observance of procedure required by law;"

Petitioners argued that since the various members would have had conflict on account of the bribes given to them, they should not have voted on the selection; having voted notwithstanding, their votes must be held null and void.

[7-8] It is clear from reading of the statutes that this Court has power to review actions of the Public Lands Board of Trustees, and this is what is done here in this case. This Court also has under Section 55 of the Judicial Act the authority to hold the Board of Trustees' decision of May 31,1985, null and void. That power must be exercised if the Court finds the Board guilty of acts constituting those sanctioned.

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[9-10] The greatest problem that the petitioners have toward relief is that all the evidence they produced consisted of nothing more than hearsay evidence. This Court had ruled all evidence adduced as hearsay and therefore inadmissible. Therefore, while this Court has power to review and porto hold void the decisions of the Public Lands Board of Trustees, it finds no basis in these cases upon which it may hold null and void such decision and render criminal sanctions against its guilty members. Our judicial process is a fact-finding, law guided process. No relief may be granted by it based upon rumors or speculations.

Accordingly, it is ORDERED, petitioners have no relief, and civil cases Numbers 114-85 and 116-85 are hereby dismissed. Parties will bear their own costs.