` FSM 1 Intrm. 239-254
Cite as In re Iriarte (I),
1 FSM Intrm. 239 (Pon. 1982)


[1 FSM Intrm. 239]




Before the Honorable Edward C. King
Chief Justice
February 13, 1983
Ponape, Caroline Islands  96941

     For the Petitioner:    Mike Powell
                                        Public Defender
                                        State of Truk
                                        Truk, Caroline Islands 96942


                                        John Brackett
                                        Chief Public Defender
                                        Federated States of Micronesia
                                        Ponape, Caroline Islands 96941

     For the State of        None

[1 FSM Intrm. 240]

     Petitioner Salvador Iriarte has filed this petition for writ of habeas corpus contending that his confinement in the Ponape jail since February 10 for contempt of court under an order of the Trust Territory High Court is violative of his due process rights under Article IV, 3 of the Constitution of the Federated States of Micronesia.

     The Court finds that the petitioner has not been granted due process and Mr. Iriarte's release is therefore ordered.  Because the evidence does suggest that the petitioner's conduct may have constituted contempt of court, and to give the Trust Territory High Court a reasonable opportunity to provide a hearing on that question or to take other correctiveaction to remedy the procedural defects that have occurred, the release order shall become effective at 10:30 A.M. on Monday, February 14, 1983.

[1 FSM Intrm. 241]

 Factual Background
     The petitioner is a high traditional leader, the  Nahniken of Nett.  He is also speaker of the Nett Municipal council and has offices in the building occupied by Nett Municipal Judge Mikel Diana.

     Although neither of the commitment orders mentioned here specify which conduct of the petitioner was deemed contemptuous, nor to which court his alleged contempt was directed, the petitioner admits having engaged Judge Diana in controversy in the area of the courtroom at the Nett Municipal building, on or about January 28.  According to the petitioner's representations made during the February 12 court proceeding, he took the opportunity to criticize Judge Diana for his actions, which, the petitioner informed Judge
Diana, were in the petitioner's opinion both contrary to law and the traditions of Nett.  Neither the nature nor manner of the criticisms, nor the actions of Judge Diana which drewpetitioner's anger were made clear during the hearing.

     No hearing of any kind has been held concerning the propriety of the petitioner's conduct toward Judge Diana.  Nevertheless, under date of January 28, 1983 and some time after the petitioner had left the building, Judge Diana issued an order.  This order, written in Ponapean, recited that the petitioner had been found in contempt of court and directed "any policemen" to detain him at the jail immediately to begin serving a 15 day jail sentence.

[1 FSM Intrm. 242]

     Petitioner represents that upon being shown Judge Diana's order by a police officer, he voluntarily went to the jail seeking information as to the reason for issuance of the order.  According to the petitioner's unsworn testimony, he was not confined in jail at the time.  Instead, he was told by police officials that he should consult with Judge Diana to determine the reason for his order.  He then left the jail, he says, but was unable to find Judge Diana at any time since January 28.

     The petitioner left for Honolulu the next day on what he characterizes as a long-planned trip arranged by Ponape Health authorities.  He returned on or about February 9 to participate in proceedings for the opening of the Ponape Constitutional Convention.

     On February 9, the Honorable Alex Munson, Chief Justice of the Trust Territory High Court, issued another order for commitment for contempt of court against the petitioner.  This order too was issued without advance notice to the petitioner and was not preceded by any hearing.

     The February 9 order, almost identical with Judge Diana's, except that Chief Justice Munson's order was written in English while Judge Diana's was in Ponapean, recites that' the petitioner had been "adjudged in contempt of court" and was to serve "a term of 15 days in prison to be effective immediately upon apprehension."  The February 9 order was  served on the petitioner on February 10, at which time he was taken to jail to begin serving the 15 day jail term.

[1 FSM Intrm. 243]

     On February 11, counsel for petitioner filed a motion with the Trust Territory High Court seeking petitioner's release from custody pending hearing on the order of commitmentor, in the alternative, asking that the order be set aside.  On Friday, February 11, at 4:30 P.M., Trust Territory High Court Chief Justice Munson convened a hearing on this motion in chambers.  Petitioner was in jail and unable to attend but was represented by counsel.  After a hearing approximately 10 minutes in duration, during which no evidence was submitted, the motion was denied without a written opinion.

     Shortly thereafter, the petition for writ of habeas corpus was filed with this Court.  A hearing was held on Saturday, February 12, 1983 at 11 A.M.1

     Article XI, 6(b) of the Constitution of the Federated States of Micronesia requires that this Court consider the

[1 FSM Intrm. 244]

petition here for writ of habeas corpus.  Our Constitutional jurisdiction is undiminished by the fact that the courts whose actions are under consideration here were not contemplated by the Constitution of the Federated States of Micronesia.  Any power the Trust Territory High Court, the District Courts and the Community Courts may have to exercise judicial powers within the Federated States of Micronesia is to be exercised not as that of autonomous foreign states but as integral parts of the domestic governments.  See Lonno v. Trust Territory (I), 1 FSM Intrm. 53, 73 (1982).  These courts were established by the Trust Territory Government before the effective date of the Constitution.  They continue to exercise trial court functions in Ponape only on an interim basis, until the State of Ponape establishes its own courts, either under its present state charter or under any constitution which Ponape may adopt.

     The interim nature and limited purpose of their current roles within the Federated States of Micronesia does not suggest that these entities are immune to the restraints imposed upon officials authorized to act by constitutions or statutes approved by citizens of the Federated States of Micronesia or their representatives.  To the contrary, respect for constitutional self-government and provisions

[1 FSM Intrm. 245]

within the Trusteeship Agreement2 to which they trace their authority to act here, mandate that these interim entities act with great restraint, only as necessary to supplement the constitutional courts and until creation of constitutional courts here.3

     At a minimum, their exercises of governmental powers, like any other within the Federated States of Micronesia, must be carried out in a manner consistent with constitutional self-government and are subject to the safeguards erected by the Constitution for citizens of the Federated States of Micronesia.  As the tribunal vested with jurisdiction over

[1 FSM Intrm. 246]

cases arising under the Constitution and required by the Constitution to be the ultimate arbiter of constitutional rights, this Court must respond to petitioner's claim that his rights of due process are being violated by these courts operating internally within the Federated States of Micronesia on a temporary basis.

Due Process In Contempt Proceedings
     The question before this Court is not whether the petitioner has committed contempt of court.  Instead, the issue is whether the petitioner is being confined in the Ponape jail without due process.

     Any attempt by this Court to focus precisely on the conduct of the petitioner deemed to have constituted contempt is further frustrated by the fact that neither court order of commitment gives any indication of when or where the alleged contempt took place, what court was the object of the contempt, or what conduct was considered contemptuous.  The scanty information available concerning the petitioner's words and conduct alleged to have been in contempt affords no basis or occasion for this Court to form an opinion as to whether such conduct might constitutionally be deemed to be in contempt of court.

     For purposes of discussion, I assume that the incident between the petitioner and Judge Diana referred to during this Court's habeas corpus proceeding was the event leading to issuance of the two orders of commitment, but the focus must be on the court procedures employed, and not the petitioner's actual conduct.

[1 FSM Intrm. 247]

     In reviewing those procedures, I am not without sympathy for a municipal court judge who may believe he is being subjected to improper pressures in his attempts to perform his official decision making duties.

     It has been long recognized that preservation of a fair decisionmaking process, and even the maintenance of a democratic system of government, requires that courts and individual judges be protected against unnecessary external pressures.  See Wood v. Georgia, 370 U.S. 375, 383, 82 S. Ct. 1364, 1369, 8 L. Ed. 2d 569, 576 (1962) ("We start with the premise that the right of courts to conduct their business in an untrammeled way lies at the foundation of our system of government..."). See also Pennekamp v. Florida, 328 U.S. 331, 353, 66 S. Ct. 1029, 1041, 90 L. Ed. 1295, 1307 (1946) (Frankfurter, J. concurring) ("Among the `substantive evils' with which legislation may deal is the hampering of a court in a pending controversy, because the fair administration of justice is one of the chief tests of the true democracy.").

     Yet the right of citizens to express their views, including views critical of public officials, is also fundamental to the development of a healthy political system.  Therefore, courts are generally reluctant to find that expressions of opinions asserted outside of the court itself, however intemperate or misguided, constitute contempt of court. Id.  See also Wood v. Georgia, 370 U.S. 375, 82 S. Ct. 1364, 8 L. Ed. 2d 569 (1962) ; Craig v. Harney, 331 U.S. 367, 67 S. Ct. 1249, 91 L. Ed. 1546 (1947); and Bridges v.

[1 FSM Intrm. 248]

California, 314 U.S. 252, 62 S. Ct. 190, 86 L. Ed. 192 (1941).

     A judicial system, then, must have power to protect judiciary officials against powerful improper pressures which may ultimately deprive tire courts of their ability to render impartial decisions, but this reality does not detract from the absolute necessity that the protective actions themselves be carried out in accordance with the requirements of the law.  Strict judicial observance of due process is necessary to insure respect for the law.

we ... believe that the people of the Federated States of Micronesia will hold greater respect for their criminal justice system if it proceeds cautiously and respects the liberty of individual Micronesian citizens rather than responds to the tensions and passions of the moment ...

Alaphonso v. FSM, 1 FSM Intrm. 209, 222 (App. 1982).

     This need for care to assure fairness is of course especially pronounced, as in this criminal contempt proceeding, where the court itself is the accuser. In such a case the people may most legitimately question whether the court system is capable of proceeding fairly and impartially.

     Thus, interests of the judicial systems in protecting themselves against pressures are substantial.  Yet extraordinarily powerful considerations, such as the need for impartial administration of justice and the constitutional guarantee of rights for citizens of the Federated States of Micronesia, demand scrupulous judicial compliance with the law.  Solicitude for a well-meaning judge under attack may not be allowed to overcome this Court's responsibility to

[1 FSM Intrm. 249]

assure that no person is deprived of his liberty without due process.

[I]t should be understood that we are entering a new  day.  The people of the Federated States of Micronesia have drafted, adopted and ratified a constitution calling for substantial protection of their individual and human rights.  This court has been consigned the obligation to uphold those rights. We may not acquiesce in the erosion of these fundamental rights through tolerance of zealous and well-intentioned, but improper, actions of law enforcement officials. The integrity of the governmental powers entrusted to this court, to law enforcement officers, and to other governmental officials, by the people of the Federated States of Micronesia demands that we must, above all, adhere to the constitution and laws which are the sole source of our authority.

FSM v. Tipen, 1 FSM Intrm. 79, 95 (Pon. 1982).

     This Court then must apply due process standards to the actions of the courts which have issued orders of commitment against the petitioner.

     The Court has on numerous previous occasions noted that the provisions set forth in this Constitution's Declaration of Rights are based upon counterparts in the United StatesConstitution.  It is therefore appropriate to review decisions of United States courts, especially those in effect when the Constitution here was approved in the Micronesian Constitutional Convention and the ratifying plebiscite, to determine the content of the words employed in the Declaration of Rights of the Constitution of the Federated States of Micronesia. Alaphonso, 1 FSM Intrm. at 214.  See also Tipen, 1 FSM Intrm. at 83-85; Tosie v. Tosie, 1 FSM Intrm. 149, 153-55 (Kos. 1982).

[1 FSM Intrm. 250]

     Courts in the United States have stated "time and again" in criminal contempt proceedings that reasonable notice of a charge and an opportunity to be heard in defense before punishment is imposed are "basic in our system of jurisprudence."  Groppi v. Leslie, 404 U.S. 496, 502, 92 S. Ct. 582, 586, 30 L. Ed. 2d 632, 638 (1972); In re Oliver, 333 U.S. 257, 273, 68 S. Ct. 499, 507, 92 L. Ed. 682, 694 (1948).  It is normally contemplated that these rights include, "as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel."  In re Oliver, 333 U.S. at 273, 68 S. Ct. at 507-08, 92 L. Ed. at 694.

     So that courts may have the power necessary to assure that order is maintained in court proceedings courts also have a limited power to make a finding of contempt summarily, where the contemptuous conduct takes place during courtroom proceedings and is personally observed by the judge, and where the judge acts immediately.  This exception is based on a belief that a hearing is less critical to fairness since the events have occurred before the judges' own eyes and, often, a reporter's transcript is available.  Taylor v. Hayes, 418 U.S. 488, 499, 94 S. Ct. 2697, 2703, 41 L. Ed. 2d 887, 908 (1974).

     It appears possible, based upon the slight information available concerning the incident in question, that these standards could possibly have been met and that the municipal court judge could have acted at the time of the incident and found the petitioner to be in contempt of court.

[1 FSM Intrm. 251]

     However, he did not act while the petitioner was present.  Once the petitioner had left the area, there presumably was no immediate necessity to act without a normal hearing to preserve the integrity of court proceedings. "Summary punishment always, and rightly, is regarded with disfavor..." and, where conviction and punishment is delayed, "it is much more difficult to argue that action without notice or hearing of any kind is necessary to preserve order and enable [the court] to proceed with its business."  Taylor v. Hayes, 418 U.S. 488, 498, 94 S. Ct. 2697, 2703, 41 L. Ed. 2d 897, 907 (1974) (quoting from Sacher v. United States, 343 U.S. 1, 72 S. Ct. 451, 96 L. Ed. 717 (1952) and Groppi, 404 U.S. at 504, 92 S. Ct. at 587, 30 L. Ed. 2d at 639).

     I conclude that the requirements necessary to justify  the January 28 order were not met and that the issuance of that order was impermissibly violative of due process.  The January 28 order therefore is void.

     Petitioner represents, and nobody has disputed, that petitioner's actual confinement was based upon the February 9 order.  The chain of events seems to confirm petitioner's statements on this point.  He was shown the January 28 order but it seems apparent that, for some unexplained reason, Ponape State law enforcement did not honor, or take steps to enforce, that order.  After being shown the order, petitioner states that he went voluntarily to the jail and then was permitted to leave, without being confined.  Thereafter,
with the apparent approval and even financial support of

[1 FSM Intrm. 252]

Ponape officials, the petitioner travelled to Honolulu in disregard of the order.

     The February 9 order was issued upon the petitioner's return to Ponape and he was promptly confined in jail on February 10.  It seems clear that it was the High Court rather than the Community Court order that finally impelled Ponape law enforcement officials to act.

     The February 9 order plainly fails to meet the requirements of due process. The petitioner states that he was unaware that charges against him were being considered.  He was not notified that a hearing was to be held concerning possible charges; he did not attend a hearing, and there is no indication that a hearing of any kind was held.

     The February 9 order, like the January 28 order, is  quite brief.  The order merely states that Mr. Iriarte has been found guilty of contempt of court and is to be committed to jail for 15 days.  There is no indication that the order is based upon evidence presented at any kind of hearing.  The petitioner's sworn testimony in the habeas corpus hearing establishes that no hearing was held, since the petitioner was aware of none and attended no hearing.

     Based upon the above considerations, I conclude that the petitioner's commitment to jail was not preceded by the required procedures.  The orders of commitment, and his continued confinement, are violative of his rights of due process under Article IV, 3 of the Constitution of the Federated States of Micronesia.

[1 FSM Intrm. 253]

Appropriate Relief
     Petitioner contends that he has effectively exhausted his remedies before the High Court.  After the February 9 order was issued and the petitioner was confined in jail, his counsel filed a motion with the High Court seeking release pending a hearing.  Only after that petition was denied was the petition of habeas corpus filed with this Court.

     If this Court fails to act, petitioner contends his only recourse is through an appeal under Trust Territory High Court Criminal Rule 23(c).  That rule provides that contempt proceedings are "subject to review on appeal to the same extent as other cases" in the High Court.  The trial judge having denied petitioner's request for release, petitioneremphasizes that to appeal his rights now would require his counsel traveling to Saipan and that, as a practical matter, this could not be accomplished before the entire 15 day sentence had been served.

     The Constitution of the Federated States of Micronesia does not contemplate that citizens of the Federated States of Micronesia should be required to travel to Saipan or to petition anyone outside of the Federated States of Micronesia to realize rights guaranteed to them under this Constitution.

     Under these circumstances it is appropriate and necessary for this Court to act to protect citizens against the violation of rights guaranteed to them under the Constitution.

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     It seems appropriate however, for this Court to act toward the Trust Territory High Court with courtesy and deference.  Also. more than 100 people attended the habeas corpus hearing and it is plain that important interests are involved.  If a serious contempt of court has indeed occurred, this Court should not, during this delicate time of transition, unnecessarily intrude in the efforts of the High Court to vindicate itself and other judges within the Trust Territory system.

     Therefore, petitioner's release shall be delayed, until Monday, February 14, 1983 at 10:30 A.M. to afford the High Court a reasonable opportunity to provide due process and comply with constitutional requirements.  If by that time no further order of confinement has been issued in compliance with the requirements of due process, the petitioner shallbe released.

     So ordered this 13th day of February, 1983.

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

Entered this 13th day of February, 1983.

 /s/ Kionsey S. Albert
Asst. Clerk of Court


1. This Court's efforts to obtain a full understanding of the various interests and perspectives pertaining to this matter have been impeded by the failure of the office of the Ponape State Attorney to appear in Court.

     Counsel for petitioner advised the Court that both the Ponape State Attorney and the Ponape Chief Litigator were notified of the habeas corpus hearing.  They further represented that the state attorney declined to comment, saying only that counsel for petitioner should contact the chief litigator. According to counsel, the chief litigator asked them to tell the Court that the State of Ponape opposed the release of petitioner but would not appear at the proceeding.

     No reasons were given in support of that opposition or for the failure of the state attorney's office to participate.  The people of the State of Ponape were effectively without representation in this proceeding.

2. Trusteeship Agreement for the Former Japanese Mandated Islands, July 18, 1947, 61 Stat. 3301, T.I.A.S. No. 3.665, at 895, volume 2 of the Code of the Federated States of Micronesia.  Among other things the Trusteeship Agreement provides that the "administering authority" shall: "foster the development of such political institutions as are suited to the trust territory and shall promote the development of the inhabitants of the trust territory toward self-government or independence as may be appropriate to the particular circumstances of the trust territory and its peoples and the freely expressed wishes of the people concerned; and to this end shall give to the inhabitants of the trust territory a progressively increasing share in the administrative services in the territory; shall develop their participation in government;..."

3. The Secretarial Order under which constitutional government was initiated within the Federated States of Micronesia also strongly suggests that officials tracing their authority to the administering authority rather than to the constitutions here, should exercise any lingering authority they may have with restraint.  That order recites that its purpose is "to provide the maximum amount of self-government" consistent with responsibilities of the United States Secretary of the Interior. (emphasis added).  United States Department of Interior Secretarial Order 3039, April 25, 1979, at volume 2, page 950, FSM Code.