State of Pohnpei vs. Mack, John and Leopold(1987)

POHNPEI SUPREME COURT REPORTS

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STATE OF POHNPEI,

NIXON MACK & JONATHAN JOHN,

STATE OF POHNPEI,

PONCIANO LEOPOLD

Pohnpei Criminal Cases Nos. 453-86 and 499-86 (Consolidated)

Trial Division of the Pohnpei Supreme Court

The defendants against whom criminal complaints had been brought moved to quash the complaints on the grounds that they were under the age of 18 years; that by section 1-9 of the Pohnpei Crimes Act 1985 (S.L.1L-3-85) children under the age of 18 years shall be treated in juvenile delinquency proceedings, and that Title 15 of the Trust Territory Code provided the procedure under which children alleged to be delinquent should be treated. But the State contended that Title 15 of the Code was no longer in effect in Pohnpei, having been abrogated and annulled by the termination of the Trusteeship on November 3,1986; and that the reception of Trust Territory Laws as State Laws was not automatic and had to be expressly adopted or amended by the State to become State Laws and that had not been done by the State.

The Trial Division of the Pohnpei Supreme Court, JUDAH C. JOHNNY, Associate Justice, allowing the motion, held that to the extent that any of the defendants was of the age of ten years or under, the criminal complaint as against him, was quashed, and that any of the defendants who had reached ten years of age and above shall be examined for competency to stand trial as an adult, provided that the State filed a motion therefor pursuant to 15 T.T.C. as that statute would operate in conjunction with section 109 of S.L. 3L-33-84; failing such motion the criminal complaint as against such defendant shall be

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quashed. But where the complaint was quashed the State might reinstitute proceedings against the defendant concerned in juvenile delinquency proceedings. The Court further held that the 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and immediately before November 8,1984, the effective date of the Pohnpei Constitution, and which had not been amended, superseded or repealed were laws of the State of Pohnpei by Virtue of S.L. 3L-33-84 which made these Trust Territory statutes, laws of the State of Pohnpei, including Title 15 of the Trust Territory Code.

1. Laws - Trust Territory Laws - Application

2. Constitutional Law - Constitution of the Federated States of Micronesia Interpretation

3. Constitutional Law - Constitution of the Federated States of Micronesia Interpretation

4. Constitutional Law - Separation of Powers between the National Government and the States

5. Constitutional Law - Continuity of Trust Territory Statutes

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6. Constitutional Law - Continuity of Trust Territory Statutes

7. Constitutional Law - Continuity of Trust Territory Statutes.

8. Constitutional Law - Continuity of Trust Territory Statutes - Transitional, Period - Intention of Constitutional Convention

9. Constitutional Law - Continuity of Trust Territory Statutes - Transitional

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10. Constitutional Law - Continuity of Trust Territory Statutes - Transitional Period - Congress - Exercise of Constitutional Power

11. Constitutional Law - Continuity of Trust Territory Statutes - Transitional Period - Congress - Exercise of Constitutional Power

12. Statutes - Transitional Provisions

13. Statutes - Continuity of Trust Territory Statutes

14. Statutes - Trust Territory Statutes - Application

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JUDAH C. JOHNNY, Associate Justice

These cases came on regularly before me on January 14, 1987, on motion to quash. Mr. Joses Gallen, Assistant State Attorney, appeared for the State and Mr. loanis Kanichy of the State Public Defender's 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 similar motion which was earlier filed 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 ground that they are under the age of 18 years; that Section 1-9 of the Pohnpei Crimes Act of 1985 (SL No. 1 L-3-85) requires that children under the age of 18 years be treated in juvenile delinquency proceedings; that Title 15 of the Code of the Trust Territory of the Pacific Islands provides the procedure ander which children alleged to be delinquents should be treated.

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The State contends in opposition that Title 15 of the Code of the Trust Territory of the Pacific Islands is no longer in effect and therefore not enforceable as 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; that the State will have to expressly adopt or amend them in order for them to become State laws. The State views 8 F.S.M.C. 401 to mean that only those provisions of the Trust Territory Code superseded by State enactment 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"

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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 Pohnpei Legislature, when Pohnpei was then a chartered state and before it became a constitutional state. The State Legislature has not seen it fit to adopt Title 15 of the Trust Territory Code as laws of Pohnpei State, and was thus not adopted as law of Pohnpei under S.L. No. 3L-33-84. Therefore, what to be done with persons under 18 years old when they violate the law is a policy question that should be left with the domain of the Legislature. Until the question is resolved by the Legislature, cases involving infractions of criminal laws in the State of Pohnpei should proceed under existing State laws.

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 shall not constitute

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criminal conviction.

When the Pohnpei State Legislature enacted the Pohnpei Crimes Act (SL-1 L-85), it provided in Section 1-9 that children under the age of 10 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, and that 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 under which children falling under Section 1-9 should be treated. Therefore, the State continues to treat children alleged to be delinquents under 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 Ponape District Legislature passed S.L. 3L-33-84, which was approved into law on September 10, 1984. S.L..3L-3384, provides, inter alia, for referendum on the Pohnpei Draft Constitution, and transitional matters in the event of ratification and

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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 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 then undergoing 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

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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 as 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.

[1] 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 in a Federated States of Micronesia, in a free associated political status with the United States, thereby terminating the trust relationship.

The crux of dispute in this matter, is a legal question; as to whether or not Title 15 of the Code of the Trust Territory of the

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Pacific Islands continue 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 Code of the Trust Territory of the Pacific Islands continue to have effect. 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 (MCCJ Vol. II, p. 884) on Committee Proposal 33, (MCCJ Vol. ll, p. 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. That section reads.

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"The Congress may provide for a smooth and orderly transitiornto 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 the states 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 leave a void and imperfection in the 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 the new governments. The Constitution gives Congress the mandate to provide for a smooth transition into the new governments.

[ 6-7] I think that in providing for a smooth transition of matters

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affecting the states, Congress was faced with a multifaced 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 do so. Third, Congress could not by statutes, adopt Trust Territory statutes into the states, because of the separation of legislative powers clause in the Constitution.

[8-9] I agree with the apparent view of Congress, of the liberality of its powers, given under Section 5 of Article XV, with which to provide for transition to government under the Constitution. The Constitutional Convention in deliberating the matter of transition, must have recognized in the light of political uncertainties and events between the convention period and ratification and transition, that it would be more reasonable that the Constitution does not deal with specific matters of transition, but that it empower the Congress to provide for what will become the need of the governments to transition. I believe that the Convention intended that Congress exercise that power liberally to provide for smooth

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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 the states by their own enactment could not adopt, by passing 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 were reaffirmed in the states. Only Congress had the power to transition those laws to the successor 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.

[10] 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 to 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 statute supersede Trust Territory statutes within the scope of exclusive State powers reserved to the State by

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the Constitution of the Federated States of Micronesia ..8 FSMC 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, failing within:

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, Trust Territory statutes that may be superseded by State statutes insofar as they apply to the state include:

1. Title 1 of the Trust Territory Code (General Provisions) provisions on 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

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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 it 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;

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

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

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 1 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);

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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);

37. TTC S 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).

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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 Punishment);

2. Chapter 1 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 1 of Title 41 of the TTC (Educational System);

8. Title 45 of the TTC (Fish, Shell Fish 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

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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

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 PL 1-72 gave the State legislative power to supersede Trust Territory statutes, in my view, it still left an open 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, blocked in a cork to prevent a void and confusion, which we still

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seem to have, as illustrated in the cases at bar. PL 2-48 relates to the adoption of the Code of the Federated States of Micronesia. The purpose of PL 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 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.

[11] The FSM Code, established by PL 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 PL 1-172. Therefore, in respect to those Trust Territory statutes applicable to the National government, Congress said in Section 12, in part,

"Repealer. 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 FSMC 401 (PL-1-72, S1) before authorities of the trusteeship ceased to apply to them. But it did not. We salute

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the foresightedness 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 by 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 authorities prior to Trusteeship termination, and thus, consequently, 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 States laws, whether or not republished in the F.S.M. Code. They are therefore 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 suppled.)

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

[12] The Ponape State Legislature in providing for transition of 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 State of Ponape, local government ordinances, and administrative regulations in force immediately before the effective date of the Constitution of Pohnpei 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.'

[13] 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 law of the State of Ponape. When Section 3 of S.L. 3L-33-84 transitioned 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 applicability of the statutory provisions in the State of Pohnpei.

[14] I hold therefore that all Trust Territory statutes which

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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,

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

2. Any of the defendant in the above-captioned cases who has reached an age above ten years 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 motion, the criminal complaint as against such defendant shall be quashed.

3. In the event of quash, the State may reinstitute proceedings

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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