THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as FSM v.Otokichy, 1 FSM Intrm. 183 (App. 1982)

APPELLATE DIVISION

[1 FSM Intrm. 183]

FEDERATED STATES OF MICRONESIA,
Petitioner,

vs.

TRIAL DIVISION OF THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA,

NEKEO OTOKICHY AND ALL OTHER DEFENDANTS IN 13-81
AND 16-81, REAL PARTIES IN INTEREST,
Respondents.

APPEAL CASE NO. T2-1982

OPINION

     Before Edward C. King, Chief Justice, FSM Supreme Court; and Federated States of Micronesia Supreme Court designated Justices Soukichi Fritz (Presiding Judge, Truk District Court), and Janet H. Weeks (Judge, Superior Court of Guam).

August 13, 1982
 
APPEARANCES:
For the Federated States     R. Barrie Michelsen
of Micronesia                         Chief Litigator
                                                 Office of the Attorney General
                                                 Ponape, Caroline Islands 96941

For the State of Truk             Jeanne H. Rayphand
                                                Acting Attorney General
                                                State of Truk
                                                Truk, Caroline Islands 96942

For defendant Nekeo           John Tarkong
  Otokichy                               Attorney-At-Law
                                                P.O. Box 728
                                                Koror, Republic of Palau 96940

For other defendants           John Brackett
                                               Chief Public Defender
                                               Office of the Public Defender
                                               Ponape, Caroline Islands 96941

[1 FSM Intrm. 184]

EDWARD C. KING, Chief Justice,
     The Government of the Federated States of Micronesia seeks writ of prohibition to prevent transfer, from the Trial Division of the Supreme Court of the Federated States of Micronesia to the Trust Territory High Court, of Criminal Action Nos.13-81 and 16-81.  The issue is whether the Supreme Court has jurisdiction over criminal cases under Title 11 of the Trust Territory Code for wrongdoing alleged to have occurred before July 12, 1981, the effective date of the National Criminal Code, Public Law 1-134. (1st Cong., 2nd Sess.).

[1 FSM Intrm. 185]

     The writ will issue.  Sections of Title 11 covering matters within the jurisdiction of Congress owe their continuing vitality to Section 102 of the National Criminal Code.  Criminal prosecutions under those sections are now cases arising under national law and fall within the constitutional jurisdiction of this Court.  FSM Const. art.  XI, 6(b).

Factual and Procedural Background
     Criminal Action Nos. 13-81 and 16-81 arose out of the alleged torture of three Trukese males by numerous defendants on Onei Island, Truk on or about May 4, 1981.

     An Information was filed by the State of Truk with the Trust Territory High Court on May 28, 1981 in Case No. 13-81.1 Each of nine defendants was charged with attempted murder under 11 T.T.C. 4(2), aggravated assault under 11 T.T.C. 202, and conspiracy to commit murder and aggravated assault. 11 T.T.C. 401.2  

     On October 26, 1981, the State of Truk filed identical charges, allegedly arising out of the same torture incident, against three more defendants.  These charges were alsofiled with the Trust Territory High Court and were designated Case No. 16-81.

[1 FSM Intrm. 186]

Subsequently, on December 4, 1981, the Federated States of Micronesia filed motions asserting jurisdiction of the Federated States of Micronesia Supreme Court over the cases.  Trust Territory High Court Justice Mamoru Nakamura granted the motions on December 10, 1981 ordering that the file be transferred to the Supreme Court until. further order of the Trial Division.

     At the same time a third Trust Territory High Court  case, State of Truk v. Michael Otokichy, No. 18-81, was also transferred by Justice Nakamura to this Court's Trial Division for a decision on the question of jurisdiction.  That case also involved several serious charges, including murder.  The Trial Division on March 11 held that the Supreme Court had no jurisdiction in Case No. 18-81, because the crimes were alleged to have occurred on March 7, 1981, before the National Criminal Code became effective.  [Truk v. Otokichy, 1 FSM Intrm. 127 (Truk 1981).]

     Case No. 18-81 was immediately transferred to the High Court.  The action was then dismissed before the High Court and is not now before us.  The case is relevant here however for the Trial Division subsequently adopted the reasoning of No. 18-81 in finding a lack of jurisdiction to proceed with Nos. 13-81 and 16-81, the decisions under consideration here.

     In essence the Trial Division held that, because the  acts alleged in these cases occurred before the effective date of the National Criminal Code, the Code should be disregarded not only for purposes of determine substantive rights of the defendants, but also in considering whether

[1 FSM Intrm. 187]

prosecutions of those earlier Title 11 offenses now proceed under national law. However, in response to motions of the National Government, the Trial Division deferred retransfer of the cases to permit Appellate Division review of the decision.

Statutory and Constitutional Background
     Prior to the effective date of the National Criminal Code, most criminal law provisions in effect in the Federated States of Micronesia were in Title 11 of the Trust Territory Code.  Those were originally enacted as law of the Trust Territory of the Pacific Islands but, upon inception of constitutional self-government by the people of the Federated States of Micronesia, they became law of governments within the Federated States of Micronesia.  This was by virtue of the Constitution's transition provisions.  FSM Const. art. XV, 1.

     On January 7, 1981 President Tosiwo Nakayama signed into law the National Criminal Code, Public Law 1-134, with an effective date of July 12, 1981 specified at Section 3. Although the Code contains provisions concerning various types of crimes, including crimes against national property, violations of obligations of governmental office, and others, the Code is also an exercise by Congress of its power under ArticleIX, 2(p) to define and provide penalties for major crimes.3

[1 FSM Intrm. 188]

Sections 901 and 902 of the Code say:

Section 901.  Jurisdiction of National Government Over Major Crimes.  The National Government of the Federated States of Micronesia has exclusive jurisdiction over all major crimes, ag defined in Section 902 of this Chapter, pursuant to Article IX, Section 2(p) of the Constitution of the Federated States of Micronesia.

          Section 902.  Major Crimes Defined.

(1)     "Major crimes" are defined as follows:

(a)     all crimes which are punishable by imprisonment for a period of 3 years or more; and

(b)     all crimes resulting in loss or theft or property or services in the value of $1,000 or more, as well as any attempt to commit such crimes.

Pub. L. No. 1-134; 11 F.S.M.C. 901, 902.  See also Section 104(8).

Analysis
     The Trial Division of the Supreme Court has jurisdiction over prosecutions brought under the National Criminal Code.  This is so because Article XI, 6(b) of the Constitution places jurisdiction over cases arising under national law in the Trial Division.

     The question here is whether the Supreme Court of the Federated States of Micronesia has jurisdiction over prosecution of violations of Title 11 sections covering matters within the jurisdiction of the National Government, for offenses committed before the effective date of the National Criminal Code.

     Sections 2 and 102 of the National Criminal Code relate to former Title 11 and continuing prosecutions thereunder.  Section 2 repeals Title 11 to the extent of Congressional power to do so.

[1 FSM Intrm. 189]

Section 2.  Trust Territory Laws Repealed.   Title 11 of the Trust Territory Code is hereby repealed to the full extent of National Govern-
ment jurisdiction in all matters covered by the provisions of law contained therein.

Pub. L. 1-134, 2 [11 F.S.M.C. 109].  Section 102(1) confirms that the repeal of Title 11 does not become effective until the Code's effective date.

Section 102(1).  Except as provided in Sub-section (2) of this Section, this Code does not apply to offenses committed before its effective date.***

     The words we have emphasized confirm that Congress intended that 102(2), unlike other sections in the Code, is to "apply to offenses committed before [the Code's] effective date."  This is necessarily so because that subsection in turn specifically authorizes prosecutions for earlier Title 11 crimes, assuring against the inadvertent creation of a gap during which criminal violations could be carried out with impunity.

Section 102(2).  Prosecutions for offenses committed before the effective date are governed by the prior law, which is continued in effect for that purpose, as if the Code were not in force.

     We find that after July 12, 1981, the prosecutions of the earlier Title 11 offenses alleged in Case Nos. 13-81 and 16-81 would have been barred except for their specific authorization, as a matter of national law, in Section 102 of the National Criminal Code.  This result would have been dictated by the Section 2 repeal clause but also could have occurred if the universal common law rule of abatement of prosecutions under repealed statutes had been applied by the

[1 FSM Intrm. 190]

Courts.4   In Section 102 then, Congress acted affirmatively to authorize those prosecutions.  These preserved Title 11 prosecutions are now maintainable by virtue of national law, that is, the Section 102 savings clause.  They therefore fall within this Court's jurisdiction under Article XI, 6(b) of the Constitution.5

     There is no indication that, in enacting Section 102, Congress was attempting to authorize initiation or continuation of criminal prosecutions which would fall outside ofthe jurisdiction of this Court.  Any action by Congress, in adopting a national law, to authorize court proceedings which would not fall within the jurisdiction of national courts, would raise serious questions of possible violation of Article XI, 6(b) of the Constitution.  Courts should, where possible, avoid selecting interpretations of a statutewhich may bring into doubt the constitutionality of that statute.6

[1 FSM Intrm. 191]

     In addition to our findings that the normal implication of Congressional action in authorizing the Title 11 prosecution would be that this Court shall exercise jurisdiction over those cases, and that Congress has evinced no contrary intent, we note that the provisions of Section 102 seem aimed at substantive, not procedural, goals.

     All provisions of Section 102 are fully explicable in terms of fulfilling the Congressional intent to preserve the opportunity for prosecution of Title 11 offenses committed before July 12, 1981.  To carry out this important purpose Congress navigated carefully through the submerged rocks and reefs of constitutional and common law waters.  It appears that the voyagers reached safe shores.

     As already noted, Section 102(1) seeks to assure that liability for Title 11 offenses before July 12, 1981 is not affected either by the common law presumption of repeal or by Section 2's otherwise sweeping repeal of Title 11.

     Congress also "froze" the substantive rights of defendants so that guilt or innocence would be determined under the law in effect at the time the alleged crime was committed.  This was done in Section 102 by stating that for prior offenses, the prior law was "continued in effect...as if the Code were not in force."  If Congress had failed to clarify that offenses committed before the effective date of the National

[1 FSM Intrm. 192]

Criminal Code were to be governed by the prior law, confusion could have been created.  Congress undoubtedly was also concerned with the even more serious possibility that if the substantive rights of a defendant were somehow altered when the National Criminal Code became effective on July 12,1981, this could violate the ex post facto clause of Article IV, 11 of the Constitution.  See, e.g., Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 94 S. Ct. 2532, 41 L. Ed. 2d 383 (1974).7
 
     We hold then that the purposes of Congress in enacting Section 102 were: (1) to permit prosecutions to proceed for earlier Title 11 violations even after Title 11 was repealed; (2) to clarify the substantive law to be applied for those cases; and (3) to avoid violation of the ex post facto clause in permitting those prosecutions.

     These are all substantive purposes.  We discern no Congressional purpose in Section 102 to affect the procedures

[1 FSM Intrm. 193]

to be followed in those cases or to confirm or designate the forum in which the cases were to be tried.  Presumably Congress inserted no specific jurisdictional provision for Section 102 cases, just as there is no jurisdictional provision in any other part of the National Criminal Code, because Congress recognized that this Court would have jurisdiction over all such cases by virtue of Article XI, 6(b) of the Constitution.

     Finally, we note that this result is not altered for Case No. 13-81 merely because an Information in that case was filed with the High Court on May 28, 1981, after this Court was established but before the Court's July 12, 1981 effective date, when it actually began hearing cases.8

     The change of forum for Title 11 cases from the Trust Territory High Court to this Court is a procedural matter having no effect on substantive rights of the defendants. It should be given immediate effect, even for Title 11 cases pending before July 12, 1981.9
 
[1 FSM Intrm. 194]
 
Conclusion
     In adopting the National Criminal Code, Congress asserted control over every section of Title 11 within the range of Congressional power.  As of July 12, 1981, Title 11 was repealed "to the full extent of National Government jurisdiction" over the matters covered there.

     Without more, all prosecutions under Title 11 would have been prevented or abated.  Section 102 of the Code is a savings clause, the antidote to the Section 2 repealer.  Section 102 is authorization by national law of initiation or continuation of prosecutions of Title 11 offenses committed before July 12, 1981.  Thus, Case Nos. 13-81 and 16-81 are now Section 102 prosecutions and fall within the jurisdiction of the Trial Division of this Court.

     Accordingly the writ of prohibition requested by petitioner will issue.  The Trial Division is instructed to retain jurisdiction and to proceed in the cases in whatever manner the Trial Division Justice deems appropriate.

[1 FSM Intrm. 195]

     So ordered this 13th day of August, 1982.

 /s/  Edward C. King
EDWARD C. KING
Chief Justice
Supreme Court of the Federated States of Micronesia


/s/Soukichi Fritz            
SOUKICHI FRITZ
Presiding Judge
Truk District Court
(As Designated Justice of the Supreme Court
of the Federated States of Micronesia)


      /s/Janet H. Weeks            
JANET H. WEEKS
Judge, Superior Court of Guam
(As Designated Justice of the Supreme Court
of the Federated States of Micronesia)


[1 FSM Intrm. 195]

Footnotes:

1.Although Case No. 13-81 was filed in May, 1981, and warrants for arrest were issued then by the High Court, the warrants were not served at that time.  No arrests were made in the case until October, 1981.

2.Attempted murder is punishable by 30 months to 30 years of imprisonment. 11 T.T.C. 4(2).  Aggravated assault with a dangerous weapon, under 11 T.T.C. 202, is punishable by imprisonment of "not more than ten years." Under 11 T.T.C. 401, conspiracy is punishable by imprisonment of not more than five years or a fine of not more than $2,000, or both.

3.Article IX, 2 of the Constitution of the Federated States of Micronesia sets forth the powers "expressly delegated to Congress."  Among these, at Subsection 2(p), is the power "to define major crimes and prescribe penalties having due regard for local custom and tradition."

4.At common law, repeal of a criminal statute abated all prosecutions which had not reached final disposition in the highest court authorized to review them.  See Bradley v.United States, 410 U.S. 605, 607, 93 S. Ct. 1151, 1154, 35 L. Ed. 2d 528, 531-32 (1973); Bell v. Maryland, 378 U.S. 226, 230, 84 S. Ct. 1814, 1817, 12 L. Ed. 822, 826 (1964); United States v. Chambers, 291 U.S. 217, 222-23, 54 S. Ct. 434, 435, 78 L. Ed. 763, 765 (1934).

5.Article XI, 6(b) of the Constitution provides, in pertinent part:  "(b) The national courts, including the trial division of the Supreme Court, have concurrent original jurisdiction in cases arising under this Constitution, national law or treaties ...."

6.The United States Supreme Court has declared this a "cardinal principle" of statutory construction.  See Johnson v. Robison, 415 U.S. 361, 366-67, 94 S. Ct. 1160, 1165, 39 L. Ed. 2d 389, 398 (1974), United States v. Thirty-seven Photographs, 402 U.S. 363, 369, 91 S. Ct. 1400, 1404, 28 L. Ed. 2d 822, 830 (1971); Crowell v. Benson, 285 U.S. 22, 62, 52 S. Ct. 285, 296-97, 76 L. Ed. 598 (1932).

     This Court will presume in favor of validity of actions of Congress and, in so doing, will adhere to the principle that where alternative constructions of a statute are possible, one of which would be of doubtful constitutionality, the construction which does not raise constitutional issues is preferred.

7.Although decisions of United States courts are not binding here, we note that in developing the Declaration of Rights now in the Constitution of the Federated States of Micronesia, the framers drew heavily on the Bill of Rights in the United States Constitution.  Moreover, the Constitutional Convention's Committee on Civil Rights, which drafted and proposed the Declaration of Rights, in its explanatory report cited almost exclusively decisions of the United States Supreme Court and other United States courts interpreting similar provisions of the United States Constitution.  II J. of Micro. Con. Con.

     This suggests that, in determining the meaning of the ex post facto clause or other provisions in the Constitution's Declaration of Rights, we should carefully consider United States Supreme Court interpretations of comparable language in the United States Constitution.

8.The Supreme Court of the Federated States of Micronesia was certified as a "functioning court pursuant to the terms of the...Federated States of Micronesia Constitution" by Trust Territory High Court Chief Justice Harold Burnett onMay 5, 1981.  That certification was in compliance with requirements of the Judicial Act of the Federated States of Micronesia, Public Law No. 1-31.

9.This is the first appeal decided by this Court and of course there exists no case law precedent within this Court  for the proposition that procedural changes should be given immediate effect even in cases pending before adoption of the new procedures.  However this is by no means a novel concept.  The proposition is well established, for example, in the courts of the United States.  See Hallowell v. Commons, 239 U.S. 506, 36 S. Ct. 202, 60 L. Ed. 409 (1916); United States v. Vanella, 619  F.2d 384 (5th Cir. 1980); United States v. Blue Sea Line, 553 F.2d 445 (5th Cir. 1977); Turner v. United States, 410 F.2d 837 (5th Cir. 1969); Bowles v. Strickland, 151 F.2d 419 (5th Cir. 1945); League To Save Lake Tahoe, Inc. v. Trounday, 598 F.2d 1164, 1172-73 (9th Cir. 1979); United States v. Mechem, 509 F.2d 1193 (10th Cir. 1975).  See also Bradley v. School Bd. of City of Richmond, 416 U.S. 696, 711-16, 94 S. Ct. 2006, 2016-18, 40 L. Ed. 2d 476, 488-91 (1974).