ARTICLE IV
Declaration of Rights

Case annotations:   Statutory provisions which carried over from Trust Territory Code and were reproduced and referred to as "Bill of Rights" in 1 FSMC 101-114, may retain some residual vitality in the unlikely event that they furnish protection beyond those available under Constitution's Declaration of Rights.  FSM v. George, 1 FSM Intrm. 449, 454-55 (Kos. 1984).

Provisions in Declaration of Rights in FSM Constitution concerning due process and right to be informed are traceable to Bill of Rights of U.S. Constitution.  Engichy v. FSM, 1 FSM Intrm. 532, 541 (App. 1984).

Because Declaration of Rights is patterned after provisions of U.S. Constitution, and U.S. cases were relied on to guide the constitutional convention, U.S. authority may be consulted to understand the meaning.  Afituk v. FSM, 2 FSM Intrm. 260, 263 (Truk 1986).

In adopting Declaration of Rights as part of FSM Constitution and therefore the supreme law of the land, the people of Micronesia subscribed to various principles which place upon the judiciary the obligation, among others, to assure that arrests are based upon probable cause, that determinations of guilt are arrived at fairly, and that punishments for wrongdoing are proportionate to the crime and meet prescribed standards.  Tammed v. FSM, 4 FSM Intrm. 266, 281-82 (App. 1990).

When a trial court is asked to give special mitigative effect to customary punishment during its sentencing proceedings, the court must first consider whether these customary activities have become so imbued with official state action so that actions of assailants are seen as actions of the state itself; if so punishments must be tested by same standards that would be applied if state officials carried out these punishments directly.  Tammed v. FSM, 4 FSM Intrm. 266, 283 (App. 1990).

Compact of Free Association's immunization provisions, which limit a plaintiff's right to sue a physician for malpractice, do not affect a fundamental right, and therefore, provisions need not be subjected to strict scrutiny, but instead should be tested under less stringent rational relationship test.  Samuel v. Pryor, 5 FSM Intrm. 91, 104 (Pon. 1991).

There is no fundamental interest in unbounded wrongful death recovery requiring strict scrutiny of state law imposing a recovery cap.  Tosie v. Healy-Tibbets Builders, Inc., 5 FSM Intrm. 358, 362 (Kos. 1992).

      Section 1.  No law may deny or impair freedom of expression, peaceable assembly, association, or petition.

Case annotations:  Right of citizens to express their views, including views critical of public officials, is fundamental to development of a healthy political system.  Therefore, courts are generally reluctant to find that expression of opinions asserted outside of the court itself, however intemperate or misguided, constitute contempt of court.  In re Iriarte (I), 1 FSM Intrm. 239, 247-48 (Pon. 1983).

     Section 2.  No law may be passed respecting an establishment of religion or impairing the free exercise of religion, except that assistance may be provided to parochial schools for non-religious purposes.

      Section 3.  A person may not be deprived of life, liberty, or property without due process of law, or be denied the equal protection of the laws.

Case annotation:     Due Process

Due process may well require that, in a Nat'l Public Service System employment dispute, the ultimate decision-maker reviews the record of the ad hoc committee hearing, at least insofar as either party to personnel dispute may rely upon some portion of record.  Suldan v. FSM (I), 1 FSM Intrm. 201, 206 (Pon. 1982).

Words "due process of law" shall be viewed in light of history and accepted meaning of those words prior to and at the time Constitution was written.  Alaphonso v. FSM, 1 FSM Intrm. 209, 216-17 (App. 1982).

Due Process Clause of Constitution requires proof beyond a reasonable doubt as a condition for criminal conviction in FSM.  Alaphonso v. FSM, 1 FSM Intrm. 209, 217-23 (App. 1982).

As a matter of constitutional due process, trial court presented with alibi defense should consider evidence concerning the alibi along with all other evidence and shall not find defendant guilty if after considering all of that evidence, the judge feels there is reasonable doubt of defendant's guilt.  Alaphonso v. FSM, 1 FSM Intrm. 209, 223-25 (App. 1982).

Art. XI, 6(b) of FSM Constitution requires that FSM Supreme Court consider a petition for writ of habeas corpus alleging imprisonment of a petitioner in violation of his rights of due process.  In re Iriarte (I), 1 FSM Intrm. 239, 243-44 (Pon. 1983).

Preservation of a fair decision-making process, and even the maintenance of a democratic system of gov't, requires that courts and individual judges be protected against unnecessary external pressures.  In re Iriarte (I), 1 FSM Intrm. 239, 247 (Pon. 1983).

Strict judicial observance of due process is necessary to insure respect for the law.  In re Iriarte (I), 1 FSM Intrm. 239, 248 (Pon. 1983).

In habeas corpus proceeding, court must apply due process standards to actions of courts which have issued orders of commitment.  In re Iriarte (I), 1 FSM Intrm. 239, 249 (Pon. 1983).

FSM Constitution does not contemplate that citizens of FSM should be required to travel to Saipan or to petition anyone outside of FSM to realize rights guaranteed to them under the Constitution.  In re Iriarte (I), 1 FSM Intrm. 239, 253 (Pon. 1983).

Defendant of a criminal contempt charge is entitled to those procedural rights normally accorded other criminal defendants.  In re Iriarte (II), 1 FSM Intrm, 255, 260 (Pon. 1983).

FSM Supreme Court is entitled and required to assure that TT High Court, exercising governmental powers within FSM, does not violate constitutional rights of its citizens.  In re Iriarte (II), 1 FSM Intrm. 255, 268 (Pon. 1983).

A nahniken, just as any ordinary citizen, is entitled to bail and due process.  In re Iriarte (II), 1 FSM Intrm. 255, 272 (Pon. 1983).

A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.  FSM v. Nota, 1 FSM Intrm. 299, 304 (Truk 1983).

Gov't employment that is "property" within meaning of Due Process Clause cannot be taken without due process.  To be property protected under the Constitution, there must be a claim of entitlement based upon governmental assurance of continual employment or dismissal for only specified reasons.  Suldan v. FSM (II), 1 FSM Intrm. 339, 351-52 (Pon. 1983).

Fundamental concept of procedural due process is that gov't may not be permitted to strip citizens of life, liberty or property in an unfair, arbitrary manner.  Where such important individual interests are exposed to possible governmental taking or deprivation, the Constitution requires that the gov. t follow procedures calculated to assure a fair and rational decision-making process.  Suldan v. FSM (II), 1 FSM Intrm. 339, 354-55 (Pon. 1983).

If, pursuant to 156 of Nat. l Public Service System Act, the highest management official declines to accept a finding of fact of the ad hoc committee, the official will be required by statutory as well as constitutional requirements to review those portions of the record bearing on the factual issues and to submit a reasoned statement demonstrating why the ad hoc committee's factual conclusion should be rejected.  Suldan v. FSM (II), 1 FSM Intrm. 339, 360-61 (Pon. 1983).

Due process demands impartiality on part of adjudicators.  Suldan v. FSM (II), 1 FSM Intrm. 339, 362 (Pon. 1983).

There is a presumption that a judicial or quasi-judicial official is unbiased.  The burden is placed on the party asserting unconstitutional bias.  The presumption of neutrality can be rebutted by a showing of conflict of interest or some other specific reason for disqualification. Where disqualification occurs, it is usually because the adjudicator has a pecuniary interest in the outcome or has been the target of personal abuse or criticism from the party before him.  Suldan v. FSM (II), 1 FSM Intrm. 339, 362-63 (Pon. 1983).

The highest management officials cannot be said to be biased as a class and they cannot be disqualified, by virtue of their positions, from final decision-making as to a nat'l gov't employee's termination under 156 of the Nat'l Public Service System Act, without individual consideration.  Suldan v. FSM (II), 1 FSM Intrm. 339, 363 (Pon. 1983).

Where there is reason to believe that provisions of a public land lease may have been violated by lessee, and where another person has notified the Public Lands Authority of his claim of a right to have the land leased to him, the Public Lands Authority may not consider itself bound by lease's renewal provision but is required to consider whether it has a right to cancel the lease and, if so, whether the right should be exercised.  These are decisions to be made after a rational decision-making process in compliance with procedural due process requirements of art. IV, 3 of  FSM Constitution.  Etpison v. Perman, 1 FSM Intrm. 405, 421 (Pon. 1984).

Adjudicatory decisions of governmental bodies affecting property rights are subject to procedural due process requirements of art. IV, 3 of Constitution.  Etpison v. Perman, 1 FSM Intrm. 405, 422 (Pon. 1984).

A criminal statute must not be so vague and indefinite as to fail to give fair notice of what acts will be punished but right to be informed of nature of accusation does not require absolute precision or perfection of criminal statutory language.  Laion v. FSM, 1 FSM Intrm. 503, 507 (App. 1984).

Right to be informed of nature of accusation requires that a statute be sufficiently explicit to prescribe offense with reasonable certainty and not be so vague that persons of common intelligence must necessarily guess at its meaning.  Laion v. FSM, 1 FSM Intrm. 503, 507 (App. 1984).

Required degree of precision under the right to be informed of the nature of the accusation may be affected by considerations such as limits upon  capacity for human expression and difficulties inherent in attempts to employ alternative methods of stating the concept.  Laion v. FSM, 1 FSM Intrm. 503, 508 (App. 1984).

Some generality may be inescapable in proscribing conduct but standard of precision required under the right to be informed of the nature of the accusation is greater in criminal statutes than in civil statutes.  Laion v. FSM, 1 FSM Intrm. 503, 508 (App. 1984).

Courts are far more inclined to set aside as unconstitutionally vague statutes or ordinances reaching into marginal areas of human conduct such as prohibitions against loitering or vagrancy aimed at conduct often thought of as offensive or undesirable, but not directly dangerous to others.  Laion v. FSM, 1 FSM Intrm. 503, 509 (App. 1984).

Prohibitions against assaults with dangerous weapons fall within the more traditional realm of criminal law and therefore are entitled to greater deference by courts in determining whether they are unconstitutionally vague.  Laion v. FSM, 1 FSM Intrm. 503, 509 (App. 1984).

Commonly accepted meanings arising out of prior court interpretations in  jurisdictions from which statutes are borrowed may be considered in testing a claim that the statute is unconstitutionally vague.  Laion v. FSM, 1 FSM Intrm. 503, 509-10 (App. 1984).

There is no suggestion in the Con Con Journal that the framers of the FSM Constitution wanted to depart from or expand upon U.S. constitutional principles concerning particularity and definitions in criminal statutes.  Reliance in the Report of the Committee on Civil Liberties upon U.S. court decisions in explaining the words confirms that the intent was to adopt the American approach concerning the statutory specificity needed so as not to be unconstitutionally vague.  Laion v. FSM, 1 FSM Intrm. 503, 513 (App. 1984).

In considering whether  term "dangerous weapon" is so vague as to render 11 FSMC 919 unconstitutional, it is relevant that a court in the U.S. has held that term sufficiently definite to meet U.S. constitutional standards.  Laion v. FSM, 1 FSM Intrm. 503, 513 (App. 1984).

Suspicion of guilt can justify the extreme action of an arrest only when based upon reasonable grounds known to the arresting officer at the time of arrest so strong that a cautious man would "believe," that is, consider it more likely than not that the accused is guilty of the offense.  Ludwig v. FSM, 2 FSM Intrm. 27, 33 (App. 1985).

Due Process Clause, art. IV, 3 of FSM Constitution , is based upon Due Process Clause of U.S. Constitution and courts can look to interpretations under U.S. Constitution for guidance.Ludwig v. FSM, 2 FSM Intrm. 27,35 (App. 1985).

The gov't in any criminal case is required, as a matter of due process, to prove all elements of the offense beyond a reasonable doubt.  Ludwig v. FSM 2 FSM Intrm. 27,35 (App. 1985).

A temporary seizure is itself a significant taking of property, depriving the owner of possession, an important attribute of property.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67,75 (Pon. 1985).

Constitution's Due Process Clause is drawn from U.S. Constitution and FSM courts may look to decisions under that Constitution for guidance in determining the meaning of this Due Process Clause.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67,76 (Pon. 1985).

Where a seizure is for forfeiture rather than evidentiary purposes, constitutional prohibitions against taking property without due process  come into play.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67,76 (Pon. 1985).

Any attempt to grant statutory authority to permit seizure of a fishing vessel upon a lesser standard than probable cause would raise serious questions of compatibility with art. IV, 3 and 4 of the Constitution.  Such an interpretation should be avoided unless clearly mandated by statute.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67 ,77 (Pon. 1985).

Due process does not require that a second judge decide motions for recusal where the trial judge accepts as true all factual allegations in the affidavit of the party seeking recusal, and must rule only on matters of law in making decision to recuse or not recuse himself.  Skilling v. FSM, 2 FSM Intrm. 209, 213 (App. 1986).

Procedure for recusal provided in FSM Code, whereby a party may file a motion for recusal with an affidavit, and judge must rule on the motion, stating his reasons for granting or denying the motion, before any further proceeding is taken, allows the moving party due process.  Skilling v. FSM, 2 FSM Intrm. 209, 214 (App. 1986).

Actions of a police officer in stripping a prisoner to punish and humiliate him, then beating him and damaging his pickup truck, constituted violation of the prisoner's constitutional rights to be free from cruel and unusual punishment and his due process rights.  Tolenoa v. Alokoa, 2 FSM Intrm. 247, 250 (Kos. 1986).

A claim that decision-makers in a land adjudication were biased raises serious statutory and constitutional due process issues and is entitled to careful consideration.  Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 92, 99 (Kos. S. Ct. Tr. 1987).

There is no deprivation of due process in a case in which the gov. t at trial elicited testimony revealing that it had custody of certain physical evidence but did not attempt to introduce it, and in which defendant made no request that it be produced.  Loney v. FSM, 3 FSM Intrm. 151, 155 (App. 1987).

An expectation of being paid for work already performed is a property interest qualifying for protection under Due Process Clause of FSM Constitution.  Falcam v. FSM (II), 3 FSM Intrm. 194, 200 (Pon. 1987).

An expectation of continued gov. t employment, subject only to removal by a supervisor, is a property interest qualifying for protection under Due Process Clause of FSM Constitution.Falcam v. FSM (II), 3 FSM Intrm. 194, 200 (Pon. 1987).

Due Process Clause of art. VI, 3 of FSM Constitution requires proof beyond a reasonable doubt as a condition for criminal convictions in the FSM.  Runmar v. FSM, 3 FSM Intrm. 308, 311 (App. 1988).

Where purchasers at a judicial sale are not served by summons and complaint pursuant to FSM Civil Rule 3 but receive notice of a motion seeking confirmation of the sale and made by a creditor of the party whose property was sold, and where purchasers do not object to the motion, confirmation of sale is effective and binding on purchasers and is not violative of their rights of due process.  Sets v. Island Hardware, 3 FSM Intrm. 365, 368 (Pon. 1988).

The Nat'l Public Service System Act and FSM Public Service System Regulations establish an expectation of continued employment for nonprobationary nat. l gov. t employees by limiting the permissible grounds and specifying procedures necessary for their dismissal; this is sufficient protection of the right to continued nat. l gov. t employment to establish a property interest for nonprobationary employees which may not be taken without fair proceedings, or "due process."  Semes v. FSM, 4 FSM Intrm. 66, 73 (App. 1989).

Once it is determined that a statute establishes a property right subject to protection under Due Process Clause of FSM Constitution, constitutional principles determine what process is due as a minimum.  Semes v. FSM, 4 FSM Intrm. 66, 74 (App. 1989).

In absence of statutory language to the contrary, the Nat. l Public Service System Act's mandate may be interpreted as assuming compliance with constitutional requirements, because if it purported to preclude constitutionally required procedures, it must be set aside as unconstitutional.  Semes v. FSM, 4 FSM Intrm. 66, 74 (App. 1989).

In assessing the government's shorter term, preliminary deprivations of private property to determine what, if any procedures are constitutionally necessary in advance of the deprivation, the FSM Supreme Court will balance the degree of hardship to the person affected against the gov. t interests at stake.  Semes v. FSM, 4 FSM Intrm. 66, 75 (App. 1989).

Under the equal protection clause of the Declaration of Rights in the FSM Constitution, indigency alone should not disadvantage an accused in our system of criminal justice.Gilmete v. FSM, 4 FSM Intrm. 165, 169 (App. 1989).

Due Process Clause of FSM Constitution's Declaration of Rights is based on Due Process Clause of U.S. Constitution.  Paul v. Celestine, 4 FSM Intrm. 205, 208 (App. 1990).

In determining whether constitutional line of due process has been crossed, a court must look to such factors as need for application of force, relationship between need and amount of force that was used, extent of  injury inflicted, and whether force was applied in a good faith effort to maintain and restore discipline or maliciously and sadistically for the very purpose of causing harm.  Paul v. Celestine, 4 FSM Intrm. 205, 208-09 (App. 1990).

To be property protected under the FSM and Kosrae State Constitutions, the employment right must be based on governmental assurance of continual employment or dismissal for only specified reasons as stated in statute, regulation, formal contract or actions of a supervisory person with authority to establish terms of employment.  Edwin v. Kosrae, 4 FSM Intrm. 292, 302 (Kos. S. Ct. Tr. 1990).

Although neither the Environmental Protection Act nor the earthmoving regulations contain any absolute requirement that a public hearing be held before an earthmoving permit may be issued, issuance by nat. l gov. t officials of a permit authorizing earthmoving by a state agency without holding a hearing and based simply upon the application filed by the state agency and the minutes prepared by state officials, is arbitrary and capricious where dredging activities have been long continued in the absence of a nat. l earthmoving permit and where the parties directly affected by those activities have for several months been vigorously opposing continuation of earthmoving activities at the dredging site.  Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 1, 8 (Pon. 1991).

If a judge has participated as an advocate in related litigation touching upon the same parties, and in the course of that previous activity has taken a position concerning the issue now before him as a judge, the appearance of justice, as guaranteed by Due Process Clause, requires recusal.  Etscheit v. Santos, 5 FSM Intrm. 35, 43 (App. 1991).

There are certain circumstances or relationships which, as a per se matter of due process, require almost automatic disqualification, and, if a judge has a direct, personal, substantial, pecuniary interest in the outcome of the case, recusal is constitutionally mandated.  Etscheit v. Santos, 5 FSM Intrm. 35, 43 (App. 1991).

To prevent the "probability of unfairness," a former trial counselor or attorney must refrain from presiding as a trial judge over litigation involving his former client, and many of the same issues, and same interests and same land, with which the trial judge has been intimately involved as a trial counselor or attorney.  Etscheit v. Santos, 5 FSM Intrm. 35, 45 (App. 1991).

Because there is a rational basis, linked to legitimate gov't purposes of increasing availability of health care services, for providing immunity from patient suits to U.S. Public Health Service physicians, the Federal Programs and Services Agreement's immunity provisions are not in violation of a plaintiff's due process rights.  Samuel v. Pryor, 5 FSM Intrm. 91, 106 (Pon. 1991).

A person's constitutional right to due process of law, and his right to be free from cruel and unusual punishment is violated when an officer instead of protecting the person from attack, threw him to the ground, and beat the person in the jail.  Meitou v. Uwera, 5 FSM Intrm. 139, 144 (Chk. S. Ct. Tr. 1991).

Plaintiff's due process rights were not violated where gov't did not use condemnation procedures specified in 67 TTC 451, but followed land registration procedures to obtain title and treated plaintiff fairly and in same way it treated other landowners.  Palik v. Kosrae, 5 FSM Intrm. 147, 152-54 (Kos. S. Ct. Tr. 1991).

Constitutional provisions applicable to a prisoner may vary depending on his status.  A pre-trial detainee has a stronger right to liberty, which right is protected by the Due Process Clause, FSM Const. art. IV, 3.  A convicted prisoner's claims upon liberty have been diminished through due process so that person must rely primarily on art. IV, 8 which protects him from cruel and unusual punishment.  Plais v. Panuelo, 5 FSM Intrm. 179, 190 (Pon. 1991).

When a panel hearing in a summary dismissal was closed to the public and the injured party and counsel were present to attend and participate in the hearing and the panel accepted and considered all testimony and evidence offered by the parties, due process was not violated.  Palsis v. Kosrae State Court, 5 FSM Intrm. 214, 217 (Kos. S. Ct. Tr. 1991).

Variance between charge of striking police car windshield with fists and evidence adduced at trial of damaging headlights with a beer can is not so misleading and prejudicial that defendant was denied a fair trial or suffered from a lack of notice as to the evidence to be offered at trial on a charge of damaging the property of another.  Otto v. Kosrae, 5 FSM Intrm. 218, 222 (App. 1991).

The actions of a private corporation partly owned by a gov. t should not be considered "state action" for purposes of due process analysis.  Alik v. Kosrae Hotel Corp., 5 FSM Intrm. 294, 298 (Kos. 1992).

Under FSM law there is no property right to particular levels of tort compensation triggering due process protections.  Tosie v. Healy-Tibbets Builders, Inc., 5 FSM Intrm. 358, 362-63 (Kos. 1992).

Among the rational bases supporting the constitutionality of a state statute capping wrongful death recovery are a desire to create foreseeable limits on gov. t liability; to promote insurance; to encourage settlement of claims; and to ease the burden on courts and families of valuing losses incurred through death of family member.  Tosie v. Healy-Tibbets Builders, Inc., 5 FSM Intrm. 358, 363 (Kos. 1992).

Aliens are persons protected by the due process and equal protection clause of the Constitution.  Berman v. FSM Supreme Court (I), 5 FSM Intrm. 364, 366 (Pon. 1992).

Employment opportunity is a liberty interest protected by due process.  Berman v. FSM Supreme Court (I), 5 FSM Intrm. 364, 366 (Pon. 1992).

When a landowner voluntarily signs a statement of intent for an easement for a road even though the state failed in is duty of care to inform him that he could refuse to sign, the state has not violated landowner's due process rights.  Nena v. Kosrae, 5 FSM Intrm. 417, 424 (Kos. S. Ct. Tr. 1990).

When counsel is allowed such a short preparation time that counsel's effectiveness is impaired then the accused is deprived of due process and effective assistance of counsel.  In re Extradition of Jano, 6 FSM Intrm. 93, 101 (App. 1993).

Something more than a state merely misinterpreting its own law, such as that the state's interpretation was arbitrary, grossly incorrect, or motivated by improper purposes, is needed to raise a legitimate due process issue.  Simon v. Pohnpei, 6 FSM Intrm. 314, 316 (Pon. 1994).

Statutory ineligibility of persons convicted of Trust Territory felonies is a valid exercise of Congress's constitutional power to prescribe additional qualifications for election to Congress, and is not unconstitutional as a deprivation of a liberty interest without due process of law, or as an ex post facto law, or as a bill of attainder.  Robert v. Mori, 6 FSM Intrm. 394, 401 (App. 1994).

Due Process; Notice and Hearing

It is normally required that a hearing be held prior to seizure of a property.  In extraordinary situations a seizure may take place prior to hearing, but the owner must be afforded a prompt post-seizure hearing at which the person seizing the property must at least make a showing of probable cause.  Unreasonable delay in providing a post-seizure hearing may require that an otherwise valid seizure be set aside.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 76 (Pon. 1985).

Due Process Clause prevents governmental authorities from depriving an individual of property interests, without first according an opportunity to be heard as to whether the proposed deprivation is permissible.  Falcam v. FSM (II), 3 FSM Intrm. 194, 200 (Pon. 1987).

Only in extraordinary circumstances, where immediate action is essential to protect crucially important public interests, may private property be seized without a hearing.  Falcam v. FSM (II), 3 FSM Intrm. 194, 200 (Pon. 1987).

Any withholding of private property, such as a gov. t employee's paycheck, without a hearing can be justified only so long as it takes the authorized payor to obtain a judicial determination as to the legality of the payment being withheld.  Falcam v. FSM (II), 3 FSM Intrm. 194, 200 (Pon. 1987).

A party is not deprived of due process of law in a case in which a judgment is entered against it on a cause of action raised by the trial court, where the party had notice and an opportunity to be heard, even though the cause of action does not appear in the pleadings and no amendment of the pleadings was made.  United Church of Christ v. Hamo, 3 FSM Intrm. 445, 453 (Truk 1988).

Only in extraordinary circumstances where immediate action is essential to protect crucially important public interests, may private property be seized without a prior hearing of some kind.  Semes v. FSM, 4 FSM Intrm. 66, 74 (App. 1989).

Constitutional due process requires that a nonprobationary employee of the nat. l gov. t be given some opportunity to respond to charges against him before his dismissal may be implemented; including oral or written notice of charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story.  Semes v. FSM, 4 FSM Intrm. 66, 76 (App. 1989).

Implementation of constitutional requirement that a gov. t employee be given an opportunity to respond before dismissal is consistent with statutory scheme of Nat. l Public Service System Act, therefore Act need not be set aside as contrary to due process.  Semes v. FSM, 4 FSM Intrm. 66, 77 (App. 1989).

A prisoner's rights to procedural due process have been violated when he received neither notice of charges against him nor an opportunity to respond to those charges before or during confinement.  Plais v. Panuelo, 5 FSM Intrm. 179, 212 (Pon. 1991).

A person for whom extradition is sought must be brought before a justice that evidence of his criminality may be heard and considered so that he may be certified as extraditable.  Such a person is entitled to notice of the hearing and an opportunity to be heard and to effective assistance of counsel.  In re Extradition of Jano, 6 FSM Intrm. 93, 99 (App. 1993).

Where a party attended the meeting at which the common boundary was set and thus had actual notice, and filed no adverse claim to the boundary location that would trigger the statutory right to notice, but claimed he was not aware of the adverse boundary until eight years later, and waited another four years before filing suit, the claimant's repeated failure to timely assert his rights does not demonstrate a due process violation.  Setik v. Sana, 6 FSM Intrm. 549, 553 (Chk. S. Ct. App. 1994).

One who receives actual notice cannot assert a constitutional claim that the method of notice was not calculated to reach him.  Setik v. Sana, 6 FSM Intrm. 549, 553 (Chk. S. Ct. App. 1994).

Where parties had no claims to the land at the time the title was determined they were not entitled to notice.  Lack of notice to them does not raise a genuine issue of material fact as to validity of a Certificate of Title.  Where a court proceeding determined title, lack of a record of notice in the Land Commission files does not raise a genuine issue of material fact as to the validity of the Certificate of Title because the Land Commission did not conduct the hearing on title and so would not have any record of notice.  Luzama v. Pohnpei Enterprises Co., 7 FSM Intrm. 40, 49 (App. 1995).

Constructive notice is a concept through which actual notice is imputed to a party regardless of whether that party has actual knowledge of the imputed facts.  A party has constructive notice when from all facts and circumstances known to him at the relevant time, he has such information as would prompt a person exercising a reasonable care to acquire knowledge of the fact in question or to infer its existence.  Nahnken of Nett v. Pohnpei, 7 FSM Intrm. 171, 177 n. 11 (Pon. 1995).

Where a vessel has been arrested pursuant to a warrant a post-seizure hearing is required by the constitutional guarantee of due process.  FSM v. M.T. HL Achiever (II), 7 FSM Intrm. 256, 257 (Chk. 1995).

An owner of seized property cannot challenge the statute it was seized under as unconstitutional because the statute fails to provide for notice and a hearing, if procedural due process, notice and a right to a hearing, are provided.  FSM v. M.T. HL Achiever (II), 7 FSM Intrm. 256, 258 (Chk. 1995).

Due Process; Vagueness

"Dangerous device" as defined under the Weapons Control Act is not unconstitutionally vague.  The language, properly interpreted, affords sufficient notice so that conscientious citizens may avoid inadvertent violations, and constructs sufficiently definite standards to prevent arbitrary law enforcement.  Joker v. FSM, 2 FSM Intrm. 38, 45 (App. 1985).

Taking of Property

Gov't employment that is "property" within meaning of Due Process Clause cannot be taken without due process.  To be property protected under Constitution, there must be claim of entitlement based upon governmental assurance of continual employment or dismissal for only specified reasons.  Suldan v. FSM (II), 1 FSM Intrm. 339, 351-52 (Pon. 1983).

Fundamental concept of procedural due process is that gov. t may not strip citizens of life, liberty or property in an unfair, arbitrary manner.  Where such important individual interests are exposed to possible governmental taking or deprivation, Constitution requires that gov. t follow procedures calculated to assure a fair and rational decision-making process.  Suldan v. FSM (II), 1 FSM Intrm. 339, 354-55 (Pon. 1983).

When a landowner voluntarily enters into a statement of intent to grant state an easement the state has not violated landowner's constitutional rights by "taking" his property without just compensation, and is not liable for trespass.  Nena v. Kosrae, 5 FSM Intrm. 417, 425 (Kos. S. Ct. Tr. 1990).

Constitutional guarantee of due process only protects persons from governments, and those acting under them, established or recognized by the Constitution.  Semwen v. Seaward Holdings, Micronesia, 7 FSM Intrm. 111, 113 (Chk. 1995).

A plaintiff's firing by a private employer does not state a cause of action for unconstitutional deprivation of due process because no governmental entity or official is a defendant; the defendant is not alleged to be performing an essential governmental function; and a gov. t action is not at issue.  Semwen v. Seaward Holdings, Micronesia, 7 FSM Intrm. 111, 113 (Chk. 1995).

Constitutional guarantees of equal protection apply if the discrimination is based on the individual's membership in one of the classes enumerated in art. IV, 4, or if discrimination affects a "fundamental right."  The law is then subject to a strict scrutiny review, under which it will be upheld only if gov't can demonstrate that the classification upon which that law is based bears a close rational relationship to some compelling governmental interest.  But if the law does not concern an enumerated class or a fundamental right, the question becomes whether the classification is rationally related to a legitimate governmental purpose.  FSM Social Security Admin. v. Weilbacher, 7 FSM Intrm. 137, 146 (Pon. 1995).

The mere act of United States' funding the FSM and Pohnpei does not subject it to liability for a taking because its involvement was insufficiently direct and substantial to warrant such liability and because one gov. t is not liable for a taking by officials of another gov. t for merely advocating measures that other gov. t should take.  Damarlane v. United States, 7 FSM Intrm. 167, 169-70 (Pon. 1995).

An unconstitutional taking occurs whenever a public entity substantially deprives a private party of the beneficial use of his property for a public purpose.  Therefore where neither the Trust Territory nor a U.S. gov't agency could be considered a public entity in the FSM after the effective date of the Compact they are legally incapable of committing a taking after that date.  Damarlane v. United States, 7 FSM Intrm. 167, 170 (Pon. 1995).

      Section 4 .  Equal protection of the laws may not be denied or impaired on account of sex, race, ancestry, national origin, language, or social status.

Case annotation:  A patient's equal protection rights were not violated when there was no showing that the patient was treated differently from any other patient on the basis of her sex, ancestry, nat. l origin, or social status.  Samuel v. Pryor, 5 FSM Intrm. 91, 106 (Pon. 1991).

Families of wrongful death victims do not constitute a suspect class for purposes of equal protection analysis.  Tosie v. Healy-Tibbets Builders, Inc., 5 FSM Intrm. 358, 362 (Kos. 1992).

Aliens are persons protected by due process and equal protection clauses of Constitution. Berman v. FSM Supreme Court (I), 5 FSM Intrm. 364, 366 (Pon. 1992).

Congress and President respectively have power to regulate immigration and conduct foreign affairs while Chief Justice may make rules governing admission of attorneys.  Therefore a rule of admission that treats aliens unequally, promulgated by the Chief Justice, implicates powers expressly delegated to other branches.  Berman v. FSM Supreme Court (I), 5 FSM Intrm. 364, 366 (Pon. 1992).

Without a rational valid basis for rule limiting the number of times an alien may take the bar exam it will be held unconstitutional even if it would be constitutional if the regulation were made by Congress or the President.  Berman v. FSM Supreme Court (I), 5 FSM Intrm. 364, 367 (Pon. 1992).

Constitutional guarantees of equal protection apply if the discrimination is based on the individual's membership in one of the classes enumerated in art. IV, 4, or if the discrimination affects a "fundamental right."  The law is then subject to a strict scrutiny review, under which it will be upheld only if the gov. t can demonstrate that the classification upon which that law is based bears a close rational relationship to some compelling governmental interest.  But if the law does not concern an enumerated class or a fundamental right, the question becomes whether the classification is rationally related to a legitimate governmental purpose.  FSM Social Security Admin. v. Weilbacher, 7 FSM Intrm. 137, 146 (Pon. 1995).

The equal protection analysis and standards that apply to a discriminatory law also apply to a neutral and non-discriminatory law when it is being applied in a discriminatory fashion.  FSM Social Security Admin. v. Weilbacher, 7 FSM Intrm. 137, 146 (Pon. 1995).

      Section 5.  The right of the people to be secure in their persons, houses, papers, and other possessions against unreasonable search, seizure, or invasion of privacy may not be violated.  A warrant may not issue except on probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized.

Case annotations:  The Ponape State consent statute does not authorize the search of a nonconsenting bar or restaurant customer.  Pon. Code. ch. 3, 3-13.  FSM v. Tipen, 1 FSM Intrm. 79,81 (Pon. 1982).

Under Ponape State law, a bar or restaurant patron's denial of an authorized person's request to search the person of the patron merely subjects the patron to exclusion from the establishment.  Pon. Code ch. 3, 3-13.  FSM v. Tipen, 1 FSM Intrm. 79, 81 (Pon. 1982).

The art. IV, 5 right to be secure against searches is not absolute.  The Constitution only protects against unreasonable searches.  FSM v. Tipen, 1 FSM Intrm. 79, 82 (Pon. 1982).

No right is held more sacred, or is more carefully guarded by the common law than the right of every individual to possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.  FSM v. Tipen, 1 FSM Intrm. 79, 86 (Pon. 1982).

Constitutional protection of  individual against unreasonable searches and limitation of powers of police apply wherever an individual may harbor a reasonable expectation of privacy. FSM v. Tipen, 1 FSM Intrm. 79, 86 (Pon. 1982).

Constitutional protection against unreasonable searches extends to contents of closed containers within one's possession and to those items one carries on one's person.  FSM v. Tipen, 1 FSM Intrm. 79, 86 (Pon. 1982).

A citizen is entitled to protection of the privacy which he seeks to maintain even in a public place.  FSM v. Tipen, 1 FSM Intrm. 79, 86 (Pon. 1982).

Burden is on gov. t to justify a search without a warrant.  FSM v. Tipen, 1 FSM Intrm. 79, 87 (Pon. 1982).

Legality of search must be tested on basis of the information known to police officer immediately before search began.  FSM v. Tipen, 1 FSM Intrm. 79, 88 (Pon. 1982).

FSM Supreme Court is vested, by statute, with authority to suppress or exclude, evidence obtained by unlawful search and seizure.  12 FSMC 312.  FSM v. Tipen, 1 FSM Intrm. 79, 92 (Pon. 1982).

Where investigating officers have reason to believe that somebody on private premises may have information pertaining to their investigation, they may enter those private premises, without a warrant or prior judicial authorization, to make reasonably nonintrusive efforts to determine if anybody is willing to discuss substance of their investigations.  FSM v. Mark, 1 FSM Intrm. 284, 288 (Pon. 1983).

Police officers who in the performance of their duty enter upon private property without an intention to look for evidence but merely to ask preliminary questions of occupants cannot be said to be conducting a search within the meaning of Constitution.  FSM v. Mark, 1 FSM Intrm. 284, 289 (Pon. 1983).

Mere observation does not constitute a search.  The term "search" implies exploratory investigation or quest.  FSM v. Mark, 1 FSM Instr. 284, 289 (Pon. 1983).

Wide ranging and unwarranted movement of police officers on private land may constitute an unreasonable invasion of privacy, or establish that the investigation had evolved into a search. FSM v. Mark, 1 FSM Intrm. 284, 290 (Pon. 1983).

A warrant is not necessary to authorize seizure when marijuana is in plain view of a police officer who has a right to be in the position to have that view.  FSM v. Mark, 1 FSM Intrm. 284, 294 (Pon. 1983).

It is generally agreed that for actions to constitute a search, there must be:  1) an examination of premises or a person; 2) in a manner encroaching upon one's reasonable expectation of privacy; 3) with an intention, or at least a hope, to discover contraband or evidence of guilt to be used in prosecution of a criminal action.  FSM v. Mark, 1 FSM Intrm. 284, 298 (Pon. 1983).

The starting point and primary focus of legal analysis for a claim of unreasonable search and seizure should normally be the Constitution's Declaration of Rights, not the statutory "Bill of Rights."  FSM v. George, 1 FSM Intrm. 449, 455 (Kos. 1984).

The principal difference between FSM Constitution art. IV, 5 and 1 FSMC 103 is that the Constitution, in addition to prohibiting unreasonable searches and seizures also contains a prohibition against invasions of privacy.  FSM v. George, 1 FSM Intrm. 449, 455 n. 1 (Kos. 1084).

The gov. t bears the burden of proving the existence of voluntary consent.  Acquiescence in the desire of law enforcement personnel to search will not be presumed but must be affirmatively demonstrated.  FSM v. George, 1 FSM Intrm. 449, 456 (Kos. 1984).

A demand, even if courteously expressed, is different from a request, and a citizen's compliance with a police officer's demand,  backed by apparent force of law, is perhaps subtly, but nonetheless significantly, different from voluntary consent to a request.  FSM v. George, 1 FSM Intrm. 449, 458 (Kos. 1984).

On matters relating to a warrantless search, it is for the court to decide whether voluntary consent, as opposed to passive submission to legal authority, occurred.  The gov. t must put before the court facts, not mere conclusions of police officers, which will permit the judge to decide whether consent was given.  FSM v. George, 1 FSM Intrm. 449, 458 (Kos. 1984).

Unconsented and warrantless entry into defendant's house, without any subsequent action on officer's part to impress upon the defendant that they could be influenced by his wishes as to whether a search might be conducted, erases any possibility of finding any aspect of search in house or resultant seizure of evidence, to be either consented to or untainted. FSM v. George, 1 FSM Intrm. 449, 459 (Kos. 1984).

While existence of probable cause to believe that a crime has been committed and that a particular person has committed it is not in itself sufficient to justify a warrantless search, the establishment of probable cause is nevertheless critical to any unconsented search.  FSM v. George, 1 FSM Intrm. 449, 460-61 (Kos. 1984).

Without probable cause, no search warrant may be obtained and no unconsented search may be conducted.  FSM v. George, 1 FSM Intrm. 449, 461 (Kos. 1984).

Constitutional prohibitions against unreasonable searches, seizures or invasions of privacy must be applied with full vigor when a dwelling place is the object of the search.  FSM v. George, 1 FSM Intrm. 449, 461 (Kos. 1984).

Police officers desiring to conduct search should normally obtain search warrant.  This requirement serves to motivate officers to assess their case and to obtain perspective from the very start.  FSM v. George, 1 FSM Intrm. 449, 461-62 (Kos. 1984).

Officers entering house by consent for purposes of search must keep in mind eventual likelihood that they will need to establish that consent was voluntary.  FSM v. George, 1 FSM Intrm. 449, 463 (Kos. 1984).

Only under rare circumstances would FSM Supreme Court likely find that homeowner who neither says nor does anything to indicate affirmative consent has consented to a warrantless search of his house.  FSM v. George, 1 FSM Intrm. 449, 463 (Pon. 1984).

A constitutional search may be conducted without a warrant if search is incidental to a lawful arrest.  Ludwig v. FSM, 2 FSM Intrm. 27, 32 (App. 1985).

Standard announced in second sentence of FSM Const. art. IV, 5 for issuance of a warrant must be employed in determining reasonableness of search or seizure.  Imposition of standard of probable cause for issuance of a warrant in FSM Const. art. IV, 5 implies that no search or seizure may be considered reasonable unless justified by probable cause. Ludwig v. FSM, 2 FSM Intrm. 27, 32 (App. 1985).

Police officer making arrest has limited right to conduct a search incident to that arrest. This right to search is for limited purposes of preventing arrested person from reaching concealed weapons to injure the officer or others, and from destroying evidence.  Although right to search is of limited scope, it plainly authorizes a reasonable search of person being arrested. Ludwig v. FSM, 2 FSM Intrm. 27, 34 (App. 1985).

Art. IV, 5 of FSM Constitution, based upon the fourth amendment of  U.S. Constitution, permits reasonable, statutorily authorized inspections of fishing vessel in FSM ports, under various theories upheld under U.S. Constitution, when vessel is reasonably suspected of having engaged in fishing activities.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 74 (Pon. 1985).

It is extraordinarily difficult for law enforcement authorities to police the vast waters of FSM. Yet, effective law enforcement to prevent fishing violations is crucial to economic interests of this new nation.  Accordingly, historical doctrines applied under U.S. Constitution which expand right to search based upon border search, administrative inspection and exigent circumstances theories, appear suitable for application to fishing vessels within FSM. Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 74 (Pon. 1985).

While power to seize vessel is crucial to interests of FSM and its states, there are also compelling factors demanding that seizures take place only where fully justified and that procedures be established and scrupulously followed to assure that power to seize is not abused.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 75 (Pon. 1985).

Searches and seizures both constitute a substantial intrusion upon privacy of an individual whose person or property is affected, but a seizure often imposes more onerous burdens. Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 75 (Pon. 1985).

A temporary seizure is itself a significant taking of property, depriving the owner of possession, an important attribute of property.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 75 (Pon. 1985).

It is normally required that a hearing be held prior to seizure of a property.  In "extraordinary situations" a seizure may take place prior to hearing, but the owner must be afforded a prompt post-seizure hearing at which the person seizing the property must at least make a showing of probable cause.  Unreasonable delay in providing a post-seizure hearing may require that an otherwise valid seizure be set aside.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 76 (Pon. 1985).

General requirement under art. IV, 5 of Constitution is that before search or seizure may occur there must exist "probable cause", that is, a reasonable ground for suspicion, sufficiently strong to warrant a cautious person to believe that a crime has been committed and that the item to be seized has been used in the crime.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 76 (Pon. 1985).

Where a seizure is for forfeiture rather than evidentiary purposes, the constitutional prohibitions against taking property without due process come into play.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 76 (Pon. 1985).

Any attempt to grant statutory authority to permit seizure of a fishing vessel upon a lesser standard than probable cause would raise serious questions of compatibility with art. IV, 3 and 4 of Constitution.  Such an interpretation should be avoided unless clearly mandated by statute.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 77 (Pon. 1985).

In probable cause determinations court must regard evidence from vantage point of law enforcement officers acting on scene but must make its own independent determination as to whether, considering all facts at hand, a prudent and cautious law enforcement officer, guided by reasonable training and experience, would consider it more likely than not that a violation has occurred.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 77 (Pon. 1985).

Where defendants accompanied police officers, then defendants entered their homes and obtained stolen goods and turned them over to police, the question of whether there has been an unreasonable seizure in violation of art. IV, 5 of Constitution turns on whether defendants' actions were voluntary.  FSM v. Jonathan, 2 FSM Intrm. 189, 198-99 (Kos. 1986).

This court will apply exclusionary rule on a case-by-case basis.  The exclusionary rule has been devised as a necessary device to protect right to be free from unreasonable search and seizure.  Kosrae v. Alanso, 3 FSM Intrm. 39, 44 (Kos. S. Ct. Tr. 1985).

Under exclusionary rule, any evidence obtained through an illegal search and seizure, whether physical or verbal, is a fruit of the illegal search and seizure, is tainted by illegality, and must be excluded.  Kosrae v. Alanso, 3 FSM Intrm. 39, 44 (Kos. S. Ct. Tr. 1985).

Few rights are more important than the freedom from unreasonable governmental intrusion into a citizen's privacy and courts must protect this right from well-intentioned, but unauthorized, governmental action.  Kosrae v. Alanso, 3 FSM Intrm. 39, 44 (Kos. S. Ct. Tr. 1985).

To protect right to be free from unreasonable search and seizure, this court requires clear proof, not merely that consent was given, but also that a right was knowingly and voluntarily waived.  It is fundamental that a citizen be aware of the right he is giving up in order for consent to be found.  Kosrae v. Alanso, 3 FSM Intrm. 39, 44 (Kos. S. Ct. Tr. 1985).

Consent, given in the face of a police request to search without consenting person having been informed of his right to refuse consent, and without any written evidence that consent was voluntarily and knowingly given, renders such consent inadequate to permit a warrantless search absent probable cause.  Kosrae v. Alanso, 3 FSM Intrm. 39, 44 (Kos. S. Ct. Tr. 1985).

Constitution does not protect a person against a "reasonable" search and/or seizure and a search is reasonable where a search warrant has been obtained prior to search.  Kosrae v. Paulino, 3 FSM Intrm. 273, 275 (Kos. S. Ct. Tr. 1988).

Probable cause is not proof of guilt, but shows that a reasonable ground for suspicion, sufficiently strong to warrant a cautious man to believe that  accused is guilty of the offense, exists.  Kosrae v. Paulino, 3 FSM Intrm. 273, 276 (Kos. S. Ct. Tr. 1988).

An officer who, while standing on a road, sees a marijuana plant in plain view on top of a nearby house has not thereby engaged in an unlawful search.  Kosrae v. Paulino, 3 FSM Intrm. 273, 276 (Kos. S. Ct. Tr. 1988).

Even on public premises a person may retain an expectation of privacy, but where a person residing on public land makes no effort to preserve privacy of marijuana plants and seedings, entry of police on premises and seizure of contraband that is plainly visible from outside the residence is not an unconstitutional search and seizure.  FSM v. Rodriguez, 3 FSM Intrm. 368, 370 (Pon. 1988).

Protection in art. IV, 5 of FSM Constitution against unreasonable search and seizure is based upon comparable provision in fourth amendment of U.S. Constitution.  FSM v. Rodriguez, 3 FSM Intrm. 385, 386 (Pon. 1988).

Although individual acting without state authorization has constructed a sleeping hut and has planted crops on state-owned public land, state police officers may nevertheless enter the land without a search warrant to make reasonable inspections of it and may observe and seize illegally possessed plants in open view and plainly visible from outside sleeping hut. FSM v. Rodriguez, 3 FSM Intrm. 385, 386 (Pon. 1988).

When investigators, acting without search warrant on advance information, conduct searches in privately owned areas beyond immediate area of a dwelling house, and seize contraband, they do not thereby violate prohibitions in art. IV, 5 of FSM Constitution against unreasonable search and seizure.  FSM v. Rosario, 3 FSM Intrm. 387, 388-89 (Pon. 1988).

Issuance of a search warrant is indisputedly within FSM Supreme Court's jurisdiction.  Jano v. King, 5 FSM Intrm. 388, 392 (Pon. 1992).

While constitutional provision barring invasion of privacy only protects persons from governmental intrusion into their affairs, not from intrusions by private persons, it does indicate a policy preference in favor of protection of privacy.  Nethon v. Mobil Oil Micronesia, Inc., 6 FSM Intrm. 451, 455 (Chk. 1994).

Standard for engaging in search of private property is less exacting than standard required for seizing such property.  FSM v. Zhong Yuan Yu No. 621, 6 FSM Intrm. 584, 588 n.4 (Pon. 1994).

Because the purpose of art. IV, 5 of Constitution is to protect privacy rights of individuals against unreasonable and unauthorized searches and seizures by gov. t officials it has been interpreted to require that an individual suspected of a crime be released from detention unless the gov. t can establish "probable cause" to hold that individual.  FSM v. Zhong Yuan Yu No. 621, 6 FSM Intrm. 584, 588 (Pon. 1994).

Standard for determining probable cause is whether there is evidence and information sufficiently persuasive to warrant a cautious person to believe it is more likely than not that a violation of law has occurred and that the accused committed that violation.  The probable cause determination must be made by deliberate, impartial, judgment of a judicial officer. FSM v. Zhong Yuan Yu No. 621, 6 FSM Intrm. 584, 588-89 (Pon. 1994).

Often the determination of probable cause is made by a competent judicial officer upon issuance of an arrest warrant, but where an arrest is not made pursuant to a warrant the arrested is entitled to a judicial determination as to whether there is probable cause to detain accused.  FSM v. Zhong Yuan Yu No. 621, 6 FSM Intrm. 584, 589 (Pon. 1994).

A probable cause hearing is an informal, non-adversarial proceeding in which the formal rules of evidence and the requirement of proof beyond a reasonable doubt do not apply.  FSM v. Zhong Yuan Yu No. 621, 6 FSM Intrm. 584, 589 (Pon. 1994).

An individual whose property has been seized pursuant to a civil forfeiture proceeding is entitled to a post-seizure hearing in order to determine whether there is probable cause to seize and detain that property.  The probable cause standard in a civil forfeiture case is whether there is evidence and information sufficiently persuasive to warrant a cautious person to believe it is more likely than not that a violation has occurred and that the property was used in that violation.  FSM v. Zhong Yuan Yu No. 621, 6 FSM Intrm. 584, 589-90 (Pon. 1994).

The gov't has probable cause to detain a fishing vessel for illegal fishing when the evidence and information indicate that the vessel was conducting fishing operations within the FSM Exclusive Economic Zone, there was freshly caught fish aboard, and the permit provided to the officers contained a name different from actual name of vessel. FSM v. Zhong Yuan Yu No. 621, 6 FSM Intrm. 584, 590-91 (Pon. 1994).

For purposes of art. IV, 5 protection, a search is any governmental intrusion into an area where a person has a reasonable expectation of privacy.  Thus, constitutional protections do not attach unless search or seizure can be attributed to governmental conduct and defendant had a reasonable expectation of privacy in items searched.  FSM Social Security Admin. v. Weilbacher, 7 FSM Intrm. 137, 142 (Pon. 1995).

Administrative searches designed to aid in collection of taxes rightly owing to gov't must be conducted according to same requirements laid down for other searches and seizures.  FSM Social Security Admin. v. Weilbacher, 7 FSM Intrm. 137, 142 (Pon. 1995).

In an administrative agency inspection, as in any other governmental search and seizure, a warrant is unnecessary where gov't obtains voluntary consent of party to be searched.  FSM Social Security Admin. v. Weilbacher, 7 FSM Intrm. 137, 143 (Pon. 1995).

An administrative agency may either request certain records be provided or formally subpoena the desired information, rather than obtain a court-ordered search warrant.  In either situation, subject of inspection may decide whether to refuse or cooperate with government's request.  Only when person refuses to permit the requested search does Constitution prohibit the administrative agency from coercing that person to turn over records without first obtaining a valid search warrant.  FSM Social Security Admin. v. Weilbacher, 7 FSM Intrm. 137, 143 (Pon. 1995).

Where a person refuses to cooperate with the inspection requests of the administrative agency, the gov't will be required to demonstrate to a neutral and detached magistrate that the requested material is reasonable to the enforcement of the administrative agency's statutory responsibilities and that the inspection is being conducted pursuant to a general and neutral enforcement plan in order to obtain required search warrant.  FSM Social Security Admin. v. Weilbacher, 7 FSM Intrm. 137, 143 (Pon. 1995).

For court to order property seized pursuant to a search warrant to be returned, defendants' burden is to show both that there has been an illegal seizure by the state and that they have claim of lawful possession to property.  Chuuk v. Mijares, 7 FSM Intrm. 149, 150 (Chk. S. Ct. Tr. 1995).

A party who denies ownership of seized items has no standing to ask for return of the property.  Chuuk v. Mijares, 7 FSM Intrm. 149, 150 (Chk. S. Ct. Tr. 1995).

For a party to have valid claim of lawful possession of alcohol seized by the state that party must have paid possession tax on seized items.  Chuuk v. Mijares, 7 FSM Intrm. 149, 150 (Chk. S. Ct. Tr. 1995).

Where defendant's motion is for return of seized property and he has failed to meet his burden to show right to lawful possession, a court need not reach the issue of the illegal seizure and suppression of evidence.  Chuuk v. Mijares, 7 FSM Intrm. 149, 151 (Chk. S. Ct. Tr. 1995).

     Section 6.  The defendant in a criminal case has a right to a speedy public trial, to be informed of the nature of the accusation, to have counsel for his defense, to be confronted with the witnesses against him, and to compel attendance of witnesses in his behalf.

Case annotations:     Right to Counsel

Constitution secures to criminal defendant, as a minimum, the right to receive reasonable notice of charges against defendant, right to examine any witnesses against defendant, and right to offer testimony and be represented by counsel.  In re Iriarte (II), 1 FSM Intrm. 225, 260 (Pon. 1983).

Where defendants had been advised of their right to counsel but there was no indication that they desired or requested counsel, there is no basis for finding that their right to counsel had been violated.  FSM v. Jonathan, 2 FSM Intrm. 189, 199 (Kos. 1986).

When a defendant has expressed a wish to meet with counsel before further questioning, questioning must cease at once.  Any attempt by police officers to ignore or override the defendant's wish, or to dissuade him from exercising his right, violates 12 FSMC 218.  FSM v. Edward, 3 FSM Intrm. 224, 235 (Pon. 1987).

For a defendant to waive his right to silence or to counsel he must do so knowingly and intelligently.  There exists a presumption against such waivers.  Moses v. FSM, 5 FSM Intrm. 156, 159 (App. 1991).

Although implied waivers of a defendant's rights might be valid there is a presumption against a finding of a waiver of rights.  Moses v. FSM, 5 FSM Intrm. 156, 159-60 (App. 1991).

Where defendant's counsel had five days to prepare for defense of accused, and was granted a two day continuance, in the absence of any showing in the record or representation by counsel of resulting prejudice or ineffectiveness of counsel, trial court's refusal to grant longer continuance was not an abuse of discretion and did not violate art. IV, 6 of FSM Constitution.  Hartman v. FSM, 5 FSM Intrm. 224, 233-34 (App. 1991).

Speedy Trial

When defendant has already agreed to a trial date that meets constitutional requirement for a speedy trial, and no reason is offered why that date is no longer constitutionally sound, later motion for speedy trial may be denied.  FSM v. Wu Ya Si, 6 FSM Intrm. 573, 574 (Pon. 1994).

     Section 7.  A person may not be compelled to give evidence that may be used against him in a criminal case, or be twice put in jeopardy for the same offense.

Case annotations:  Courts may look to Journals of the Micronesian Constitutional Convention for assistance in determining meaning of constitutional language that does not provide an unmistakable answer.  Journals provide no conclusion as to whether promises of leniency by  police should be regarded as having compelled a defendant to give statements and other evidence but shows that the art. IV, 7 protection against self-incrimination was based upon the fifth amendment to the U.S. Constitution.  Therefore courts within the FSM may look to U.S. decisions to assist in determining meaning of art. IV, 7.  FSM v. Jonathan, 2 FSM Intrm. 189, 193-94 (Kos. 1986).

Where a police officer promised to reduce charges if defendant cooperated but there was no other showing of police intimidation or manipulation and the defendant had recognized that his guilt was apparent, the confession was not induced by the promises but instead was a voluntary response to the futility of carrying the deceit further.  FSM v. Jonathan, 2 FSM Intrm. 189, 198 (Kos. 1986).

A confession which is the product of an essentially free and unconstrained choice by its maker may be used as evidence to establish guilt of defendant in court.  FSM v. Jonathan, 2 FSM Intrm. 189, 194 (Kos. 1986).

Although questioning of witnesses and suspects is a necessary tool for  effective enforcement of criminal law, courts have recognized that there is an unbroken line from physical brutality to more subtle police use of deception, intimidation and manipulation, and that vigilance is required.  FSM v. Jonathan, 2 FSM Intrm. 189, 195 (Kos. 1986).

In the area of police questioning and confessions, the protection against self-incrimination is the principal protection, designed to restrict or prevent use of devices to subvert the will of an accused.  FSM v. Jonathan, 2 FSM Intrm. 189, 195 (Kos. 1986).

Overall circumstances and not merely the existence or nonexistence of a promise determines whether a confession will be accepted as voluntary or rendered inadmissible as involuntary.  FSM v. Jonathan, 2 FSM Intrm. 189, 196 (Kos. 1986).

Voluntariness of a confession may not be resolved by reference to any single infallible touchstone, such as whether a promise was made, but instead must be determined by reference to the totality of surrounding circumstances.  FSM v. Jonathan, 2 FSM Intrm. 189, 197 (Kos. 1986).

Police may question persons who, while they are in police custody, fall under suspicion for another crime, without regard to the fact that other persons in a similar category would be released without questioning.  FSM v. Jonathan, 2 FSM Intrm. 189, 199 (Kos. 1986).

Voluntary admissions prompted by accumulation of evidence against defendant are a legitimate goal of police investigation.  FSM v. Edward, 3 FSM Intrm. 224, 232 (Pon. 1987).

Where admissions have been obtained in course of questioning conducted in violation of 12 FSMC 218, statutory policy calls for a presumption that subsequent admissions were obtained as a result of the violation.  FSM v. Edward, 3 FSM Intrm. 224, 233 (Pon. 1987).

When defendant has expressed a wish to meet with counsel before further questioning, questioning must cease at once.  Any attempt by police officers to ignore or override defendant's wish, or to dissuade him from exercising his right, violates 12 FSMC 218.  FSM v. Edward, 3 FSM Intrm. 224, 235 (Pon. 1987).

A statement of defendant may be used as evidence against him only if statement was made voluntarily.  FSM v. Edward, 3 FSM Intrm. 224, 236 (Pon. 1987).

In determining whether defendant's statement to police is "voluntary," consistent with due process requirements of the Constitution, courts should consider the totality of surrounding circumstances.  Courts review  actual circumstances surrounding confession and attempt to assess the psychological impact on accused of those circumstances.  FSM v. Edward, 3 FSM Intrm. 224, 238 (Pon. 1987).

The court will not issue a writ of certiorari to review the trial court's suppression of defendant's confession in a case in which no assignments of error are furnished to the court, although such decision effectively terminates the case because gov. t cannot continue its prosecution without the confession, and although no appeal is available to the gov. t.  In re Edward, 3 FSM Intrm. 285, 286-87 (App. 1987).

Where no motion to suppress a confession has been made before trial and no cause has been offered as to the failure to raise the objection, the trial court was justified in finding that the defendant had waived any objection to the admission of the confession.  In re Juvenile, 4 FSM Intrm. 161, 163 (App. 1989).

Where trial record shows no waiver of a minor's rights against self-incrimination, where a remarkable discrepancy exists between police procedure for taking a statement and written evidence offered at trial, where the only evidence supporting the conviction other than the confession is an accomplice's testimony, where minor is 16 years of age and had been on detention some 2 weeks prior to his confession, and where parents of the minor were absent at the time the confession was made, the trial court erred in admitting defendant's confession.  In re Juvenile, 4 FSM Intrm. 161, 164 (App. 1989).

Defendant's statement will be suppressed when defendant has not been advised of all rights set forth in 12 FSMC 218 (1)-(5), even though he was advised of right to remain silent and right to counsel and he waived those rights.  FSM v. Sangechik, 4 FSM Intrm. 210, 211-12 (Chk. 1990).

For a defendant to waive his right to silence or to counsel he must do so knowingly and intelligently.  There exists a presumption against such waivers.  Moses v. FSM, 5 FSM Intrm. 156, 159 (App. 1991).

Although implied waivers of a defendant's rights might be valid there is a presumption against a finding of a waiver of rights.  Moses v. FSM, 5 FSM Intrm. 156, 159-60 (App. 1991).

A form which advises a suspect of his right to lawyer, and of his right to remain silent but only asks if the suspect wants a lawyer now, is confusing and lacks a specific waiver as to the right to remain silent.  Moses v. FSM, 5 FSM Intrm. 156, 161 (App. 1991).

A codefendant's inculpatory statement which has been admitted into evidence may not be used against any defendant other than the declarant without violating the right of confrontation guarantee of FSM Constitution.  Hartman v. FSM, 5 FSM Intrm. 224, 229 (App. 1991).

Although there is a danger of prejudice in cases where a co-defendant's inculpatory statement is admitted into evidence, because court is hesitant to limit the broad discretion afforded the trial judge by FSM Crim. R. 14, and because many problems can be eliminated by redaction of the statement, the court will not adopt a per se rule of severance at this time. Hartman v. FSM, 5 FSM Intrm. 224, 230 (App. 1991).

For confession of defendant to be admissible as evidence defendant must not merely waive his right to counsel but must also specifically waive the independent right to remain silent. Hartman v. FSM, 5 FSM Intrm. 224, 234-35 (App. 1991).

By responding voluntarily to questions asked without coercion, after he has been advised of his rights, a defendant waives his right to remain silent.  FSM v. Hartman (I), 5 FSM Intrm. 350, 352 (Pon. 1992).

Use of a defendant's out of court statement as evidence against a codefendant would violate codefendant's "right of confrontation" since declarant is not a witness at the trial subject to cross examination.  Hartman v. FSM, 6 FSM Intrm. 293, 301 (App. 1993).

If severance is denied, defendants' out of court statements ought to be redacted to eliminate in each references to other codefendants.  Failure to do so may result in reversal of convictions in the interests of justice.  After redaction, no prejudice will occur if statements then give no reference to any codefendant.  Redaction can normally be accomplished by the parties.  Thus court will not view statement until after redaction.  Hartman v. FSM, 6 FSM Intrm. 293, 301-02 & n.12 (App. 1993).

By statute, statements taken as a result of a violation of defendant's statutory right to be brought before a judicial officer without unnecessary delay are inadmissible, even if voluntary. Chuuk v. Arnish, 6 FSM Intrm. 611, 613 (Chk. S. Ct. Tr. 1994).

Double Jeopardy

Principal purpose of protection against double jeopardy established by FSM Constitution, art. IV, 7 is to prevent gov't from making repeated attempts to convict an individual for the same alleged act.  Laion v. FSM, 1 FSM Intrm. 503, 521 (App. 1984).

Double jeopardy clause, FSM Const. art. IV, 7, of Declaration of Rights of FSM Constitution was drawn from Bills of Rights of U.S. Constitution.  Laion v. FSM, 503, 522 (App. 1984).

U.S. constitutional law at time of Micronesian Constitutional Convention furnishes guidance as to intended scope of FSM Constitution's double jeopardy clause.  Laion v. FSM, 1 FSM Intrm. 503, 523 (App. 1984).

Double jeopardy clause of FSM Constitution protects against second prosecution for same offense after acquittal, against a second prosecution for same offense after conviction and against multiple punishments for same offense.  Laion v. FSM, 1 FSM Intrm. 503, 523 (App. 1984).

When assault with a dangerous weapon requires use or attempted use of a dangerous weapon, a fact not required for aggravated assault, and aggravated assault requires an intent to cause serious bodily injury, which need not be proved for conviction of assault with a dangerous weapon, conviction on both charges for the same wrongful act will not violate double jeopardy clause of Constitution.  Laion v. FSM, 1 FSM Intrm. 503, 524 (App. 1984).

Where trial court orders concurrent sentences of two convictions of different offenses flowing from a single wrongful act, there is not cumulative or multiple punishments that might violate double jeopardy clause.  Laion v. FSM, 1 FSM Intrm. 503, 524 (App. 1984).

Where same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.  If test is met a dual conviction will not violate the constitutional protection against double jeopardy.  Laion v. FSM, 1 FSM Intrm. 503, 523-25 (App. 1984).

While Congress is not prevented by double jeopardy clause from providing that two convictions of same import may flow from a single wrongful act, a court will not merely assume such a congressional intention.  Laion v. FSM, 1 FSM Intrm. 503, 525 (App. 1984).

Where two statutory provisions aimed at similar types of wrongdoing and upholding citizen and public interests of same nature would apply to a solitary illegal act, which caused only one injury, statutes will be construed not to authorize cumulative convictions in absence of clear indication of legislative intent.  However, gov. t is not denied right to charge separate offenses to guard against risk that a conviction may not be obtained on one of the offenses. Laion v. FSM, 1 FSM Intrm. 503, 529 (App. 1984).

Protection against double jeopardy in a second trial is not available until the person has first been tried in one trial.  Jeopardy does not attach in a criminal trial until the first witness is sworn in to testify.  FSM v. Cheng Chia-W (I), 7 FSM Intrm. 124, 128 (Pon. 1995).

     Section 8.  Excessive bail may not be required, excessive fines imposed, or cruel and unusual punishments inflicted.  The writ of habeas corpus may not be suspended unless required for public safety in cases of rebellion or invasion.

Case annotation:     Cruel and Unusual Punishment

Actions of police officer in stripping prisoner to punish and humiliate him, then beating him and damaging his pickup truck, constituted violation of prisoner's constitutional rights to be free from cruel and unreal punishments and his due process rights.  Tolenoa v. Alokoa, 2 FSM Intrm. 250 (Kos. 1986).

Municipality which employs untrained persons as police officers, then fails to train them and authorizes their use of excessive force and summary punishment, will be held responsible for their unlawful acts, including abuse of a prisoner arrested without being advised of charges or given an opportunity for bail, whose handcuffs were repeatedly tightened during his 14 hour detention in such a way that he was injured and unable to work for one month.  Moses v. Municipality of Polle, 2 FSM Intrm. 270, 271 (Truk 1986).

Municipality which employs untrained persons as police officers, fails to train them and authorizes their use of excessive force and summary punishment, will be held responsible for their actions in stripping a prisoner, handcuffing his leg to a table and his arms behind his back, then kicking and abusing him.  Alaphen v. Municipality of Moen, 2 FSM Intrm. 279, 280 (Truk 1986).

Where a person has not been tried, convicted and sentenced, no question of cruel and unusual punishment arises.  Paul v. Celestine, 4 FSM Intrm. 205, 208 (App. 1990).

Use of force by police officers is not privileged or justified when arrestee was so drunk and unstable to resist or defend himself and when police officer used force because he was enraged at being insulted by arrestee.  Meitou v. Uwera, 5 FSM Intrm. 139, 144 (Chk. S. Ct. Tr. 1991).

A person's constitutional right to due process of law, and his right to be free from cruel and unusual punishment is violated when an officer instead of protecting the person from attack, threw him to the ground, and beat the person in the jail.  Meitou v. Uwera, 5 FSM Intrm. 139, 144 (Chk. S. Ct. Tr. 1991).

Constitutional provisions applicable to a prisoner may vary depending on his status.  A pre-trial detainee has a stronger right to liberty, which right is protected by Due Process Clause, FSM Const. art. IV, 3.  A convicted prisoner's claims upon liberty have been diminished through due process so that person must rely primarily on art. IV, 8 which protects him from cruel and unusual punishment.  Plais v. Panuelo, 5 FSM Intrm. 179, 190 (Pon. 1991).

In a case where a convicted prisoner, who is also a pre-trial detainee, asserts civil rights claims arising out of ill-treatment after arrest, denial of access to family is a due process claim, and physical abuse involves due process as well as cruel and unusual punishment claims.  Plais v. Panuelo, 5 FSM Intrm. 179, 190 (Pon. 1991).

In interpreting provision against cruel and unusual punishment in FSM Constitution, court should consider values and realities of Micronesia, but against background of law concerning cruel and unusual punishment and internat. l standards concerning human rights.  Plais v. Panuelo, 5 FSM Intrm. 179, 196-97 (Pon. 1991).

Deliberate indifference to an inmate's medical needs can amount to cruel and unusual punishment.  Plais v. Panuelo, 5 FSM Intrm. 179, 199-200 (Pon. 1991).

Confining prisoner in dangerously unsanitary conditions, which represent a broader gov't-wide policy of deliberate indifference to dignity and well-being of prisoners, is failure to provide civilized treatment or punishment, in violation of prisoners' protection against cruel and unusual punishment, and renders state liable under 11 FSMC 701(3).  Plais v. Panuelo, 5 FSM Intrm. 179, 208 (Pon. 1991).

Revocation of probation of alcohol dependent person because he consumed alcohol or because of alcohol related offenses for which he was convicted does not constitute cruel and unusual punishment in violation of constitution.  FSM v. Phillip, 5 FSM Intrm. 298, 300 (Kos. 1992).

Habeas Corpus

FSM Supreme Court has inherent constitutional power to issue all writs; this includes the traditional common law writ of mandamus.  4 FSMC 117.  Nix v. Ehmes, 1 FSM Intrm. 114, 118 (Pon. 1982).

Art. XI, 6(b) of FSM Constitution requires that FSM Supreme Court consider a petition for writ of habeas corpus alleging imprisonment of a petitioner in violation of his rights of due process.  In re Iriarte (I), 1 FSM Intrm. 239, 243-44 (Pon. 1983).

FSM Supreme Court's constitutional jurisdiction to consider writs of habeas corpus is undiminished by the fact that the courts whose actions are under consideration, the TT High Court and a Community Court, were not contemplated by FSM Constitution.  In re Iriarte (I), 1 FSM Intrm. 239, 244, 246 (Pon. 1983).

In habeas corpus proceeding, the court must apply due process standards to actions of courts which have issued orders of commitment.  In re Iriarte (I), 1 FSM Intrm. 239, 249 (Pon. 1983).

Judicial review of certification of extraditability, although not appealable, is available to an accused in custody by seeking a writ of habeas corpus.  In re Extradition of Jano, 6 FSM Intrm. 23, 25 (App. 1993).

4 FSMC 117 gives both the trial division and the appellate division powers to issue all writs not inconsistent with law or with the rules of civil procedure.  FSM Appellate Rule 22(a) requires petitions for writs of habeas corpus be first brought in the trial division.  When circumstances have been shown to warrant, the appellate division clearly has the authority to suspend the rule.  In re Extradition of Jano, 6 FSM Intrm. 31, 32 (App. 1993).

Judicial review of an extradition hearing is by petition for a writ of habeas corpus.  In re Extradition of Jano, 6 FSM Intrm. 93, 97 (App. 1993).

Scope of habeas corpus review of extradition proceeding is 1) whether judge had jurisdiction, 2) whether court had jurisdiction over extraditee, 3) whether there is an extradition agreement in force, 4) whether crimes charged fall within the terms of the agreement, and 5) whether there was sufficient evidence to support a finding of extraditability.  In re Extradition of Jano, 6 FSM Intrm. 93, 104 (App. 1993).

Bail

The object in determining conditions of pretrial release is to assure the presence of defendant at trial so that justice may be done while keeping in mind the presumption of innocence and permitting defendant the maximum amount of pretrial freedom.  FSM Supreme Court should attempt to weigh the various forces likely to motivate a defendant to stay and face trial against those forces likely to impel him to leave.  FSM Crim. R. 46(a)(2).  FSM v. Jonas (I), 231a, 233 (Pon. 1982).

Where highest prior bail was $1,500.00 imposition of bail in amount of $10,000.00, on basis of dispute and unsubstantiated gov't suggestions that defendant has cash and assets available to him, would be unwarranted.  FSM v. Jonas (I), 1 FSM Intrm. 231a, 236 (Pon. 1982).

Relief from improperly set or denied bail must be speedy to be effective.  In re Iriarte (II), 1 FSM Intrm. 255, 265 (Pon. 1983).

The bearer of title of Nahniken, by virtue of his position's deep ties to Ponapean society, may be expected to appear and stand trail if accused of crime and to submit to sentence if found guilty.  Bail, therefore should be granted.  In re Iriarte (II), 1 FSM Intrm. 255, 265 (Pon. 1983).

A nahniken, just as any ordinary citizen, is entitled to bail and due process.  In re Iriarte (II), 1 FSM Intrm. 255, 272 (Pon. 1983).

FSM Supreme Court must approach question of whether bail is "excessive" with recognition that defendant is presumed innocent, is to be treated with dignity, and needs a reasonable opportunity to prepare his defense.  At the same time the judiciary must keep in mind his responsibility to the public to assure that defendant will be made to respond to charges leveled at him.  FSM v. Etpison, 1 FSM Intrm. 370, 372 (Pon. 1983).

Once a justice certifies an accused as extraditable, the justice must then commit the person to the proper jail until surrendered.  The extradition statute does not give the court the authority to release a person on bail pending any judicial review of the certification.  In re Extradition of Jano, 6 FSM Intrm. 62, 63 (App. 1993).

In internat. l extradition case, bail can be granted only if "special circumstances" are shown. Neither risk of flight nor availability of suitable custodian are primary considerations.  Rather the primary consideration is ability of gov't to surrender the accused to the requesting gov't. In re Extradition of Jano, 6 FSM Intrm. 62, 64 (App. 1993).

Excessive Fines

It is premature to challenge a statute as unconstitutional for imposing excessive fines until a fine has been imposed.  FSM v. Cheng Chia-W (I), 7 FSM Intrm. 124, 126 (Pon. 1995).

      Section 9.  Capital punishment is prohibited.

     Section 10.  Slavery and involuntary servitude are prohibited except to punish crime.

     Section 11.  A bill of attainder or ex post facto law may not be passed.

Case annotations:     Bill of Attainder

A bill of attainder is any legislative act that applies to either named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial by substitution of a legislative for a judicial determination of guilt.  Robert v. Mori, 6 FSM Intrm. 394, 401 (App. 1994).

A statute making all persons convicted of a felony in the Trust Territory courts ineligible for election to FSM Congress does not constitute criminal punishment and does not substitute a legislative for a judicial determination of guilt and thus is not an unconstitutional bill of attainder.  Robert v. Mori, 6 FSM Intrm. 394, 401 (App. 1994).

The statutory ineligibility of persons convicted of Trust Territory felonies is valid exercise of Congress's constitutional power to prescribe additional qualifications for election to Congress, and is not unconstitutional as a deprivation of a liberty interest without due process of law, or as an ex post facto law, or as a bill of attainder.  Robert v. Mori, 6 FSM Intrm. 394, 401 (App. 1994).

Ex Post Facto Laws

While every ex post facto law must necessarily be retrospective not every retrospective law is an ex post facto law.  An ex post facto law is one which imposes punishment for past conduct, lawful at time it was engaged in.  Robert v. Chuuk State House of Representatives, 6 FSM Intrm. 260, 266-67 (Chk. S. Ct. Tr. 1993).

Legislation is not an ex post facto law where source of legislative concern can be thought to be the activity or status from which the individual is barred, even though it may bear harshly upon one affected, but the contrary is the case where statute in question is evidently aimed at person or class of persons disqualified.  Robert v. Chuuk State House of Representatives, 6 FSM Intrm. 260, 268-69 (Chk. S. Ct. Tr. 1993).

A provision barring those convicted of a felony, even if pardoned, from membership in legislature is concerned with qualifications of legislative membership, and is not just for purpose of punishing felons and those pardoned of a felony which would violate the constitutional ban on ex post facto laws.  Robert v. Chuuk State House of Representatives, 6 FSM Intrm. 260, 269-71 (Chk. S. Ct. Tr. 1993).

Regulations imposing civil disqualifications for past criminal conduct are not punishment barred by constitutional ban against ex post facto laws.  Robert v. Chuuk State House of Representatives, 6 FSM Intrm. 260, 270-71 (Chk. S. Ct. Tr. 1993).

Since retrospective application of constitutional provision barring persons convicted of felonies, even if pardoned, from holding legislative office is not an invalid ex post facto law, retrospective application of then provision is also not invalid as a bill of attainder or a denial of due process.  Robert v. Chuuk State House of Representatives, 6 FSM Intrm. 260, 271-72 (Chk. S. Ct. Tr. 1993).

The concept of ex post facto laws is limited to legislation which does any of the following:  1) makes criminal and punishable an act innocent when done; 2) aggravates a crime, or makes it greater than it was when committed; 3) increases punishment for a crime and applies the increase to crimes committed before enactment of the laws; or 4) alters legal rules of evidence so that testimony insufficient to convict for the offense when committed would be sufficient as to that particular offense and accused person.  The ban on ex post facto law applies to criminal acts only.  This means retroactive noncriminal laws may be valid.  Robert v. Mori, 6 FSM Intrm. 394, 400 (App. 1994).

The mark of an ex post facto law is imposition of punishment for past acts.  The question is whether legislative aim was to punish that individual for past activity, or whether restriction of the individual comes about as a relevant incident to a regulation of a present situation, such as the proper qualifications for a profession.  Robert v. Mori, 6 FSM Intrm. 394, 401 (App. 1994).

Since legislative aim of a statute making ineligible for election to Congress those persons convicted of a felony in a Trust Territory court was not to punish persons for their past conduct it is a regulation of a present situation concerned solely with the proper qualifications for members of Congress.  As such it is a reasonable means for achieving a legitimate governmental purpose.  It is therefore not unconstitutional as an ex post facto law.  Robert v. Mori, 6 FSM Intrm. 394, 401 (App. 1994).

Statutory ineligibility of persons convicted of Trust Territory felonies is a valid exercise of Congress's constitutional power to prescribe additional qualifications for election to Congress, and is not unconstitutional as a deprivation of a liberty interest without due process of law, or as an ex post facto law, or as a bill of attainder.  Robert v. Mori, 6 FSM Intrm. 394, 401 (App. 1994).

     Section 12.  A citizen of the Federated States of Micronesia may travel and migrate within the Federated States.

     Section 13.  Imprisonment for debt is prohibited.