THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Jonas v. FSM,
1 FSM Intrm. 322 (App. 1983)

APPELLATE DIVISION

[1 FSM Intrm. 322]

BILLY JONAS, FRED AHM,
AND SONGKO BRIDGE,
Petitioners,

vs.

TRIAL DIVISION OF THE
FSM SUPREME COURT,
Respondent.

APPEAL CASE NO. P1-1983

OPINION

Before:
Hon. Dorothy W. Nelson, Judge, United States Court of  Appeals for the Ninth Circuit;*
Hon. Samuel P. King, Judge, United States District Court, District of Hawaii;*
Hon. Richard E. Benson, Associate Justice, FSM Supreme Court.

APPEARANCES:
     For Billy Jonas:               John Rechucher
                                               Public Defender
                                               Koror, Republic of Palau 96940

     For Fred Ahm:                Phillip A. Okney
                                              Chief Public Defender
                                              P.O. Box 88
                                              Majuro, Marshall Islands 96960

     For Songko Bridge:       Maketo Robert
                                              Public Defender
                                              State of Ponape
                                              Ponape, Caroline Islands 96941

     For the Federated
     States of Micronesia:     Carl Ullman
                                               Assistant Litigator
                                               Federated States of Micronesia
                                               Ponape, Caroline Islands 96941

* Designated Justice sitting pursuant to 4 F.S.M.C. 104.

[1 FSM Intrm. 323]

     Per Curiam:
     The issue presented by this petition for a writ of prohibition is whether or not this court is bound by a decision of the Appellate Division of the High Court of the Trust Territory of the Pacific Islands reversing a decision of this court, that involves only the construction of the Constitution of the Federated States of Micronesia and a law enacted by the Congress of the FSM.  The resolution of this issue depends upon the authority of Secretary of the Interior Order No. 3039.

     This court concludes that the High Court decision is binding on this Court.

     On August 13, 1982, this court held in FSM v. Trial Division of the Supreme Court of the FSM (Kiki Otokichy, and others, real parties in interest), 1 FSM Intrm. 183

[1 FSM Intrm. 324]

(App. 1982), hereinafter Otokichy, that the Supreme Court had jurisdiction to try offenses arising under Title 11 of the Trust Territory Code committed prior to the effective date of the National Criminal Code (July 12, 1981).  The case involved allegations of several felonies occurring on May 4, 1981, appearing in an information filed May 28, 1981.  The reasoning of the decision was based entirely on the language of the National Criminal Code and the Constitution of the Federated States of Micronesia.

     The Appellate Division of the High Court issued its writ of certiorari to review Otokichy on November 26, 1982. Oral argument was held on February 2, 1983.  A written opinion was dated March 11, 1983.  The High Court reached a conclusion contrary to this Court, based on its differing interpretation of the Constitution and the National Criminal Code.  The Court held that Jurisdiction over crimes defined in Title 11 of the Trust Territory Code committed prior to July 21, 1981 in a State of the FSM where a functioning state Court has not been established, is in the High Court's Trial Division.

     The case before this court, FSM v. Jonas et al., was commenced by the filing of an amended information on December 28,1. 1982.  Offenses that occurred both before andafter July 12, 1981 are alleged.  In the 59 count information, 45 counts accuse the defendants of offenses committed prior

[1 FSM Intrm. 325]

to July 12, 1981, and 14 counts accuse the defendants of offenses committed after July 12, 1981.  At the pre-trial hearing held February 28, 1983 (while Otokichy was under advisement by the High Court), the petitioners herein moved for a dismissal on the ground of lack of jurisdiction of this Court over offenses occurring before July 12, 1981.  The motion was denied, and the trial began on March 3, 1983.  Coinciding with the resting of the government's case on March 15, 1983, the parties received copies of the High Court's opinion in Otokichy.  The petitioners' renewed motions for dismissal were denied.

     On March 17, 1983, this petition for a writ of prohibition was filed.  It is supported and opposed by written memoranda, and by oral arguments presented May 24, 1983.  The petitioners contend that Otokichy compels the granting of the relief they seek.

     The authority of the High Court for reviewing the decision of the Appellate Division of the Supreme Court is found in Section 5(b) of the Secretary of the Interior Order No. 3039, which reads,

Appellate Functions.  As the functions of the Community Courts, the District Courts, and the Trial Division of the High Court have been phased out and transferred to the local courts pursuant to the provisions of Section 5a of this Order, the Appellate Division of the High Court shall retain jurisdiction by writ of certiorari to entertain appeals from the courts of last resort of the respective jurisdictions of the Federated States of Micronesia, the Marshall Islands and Palau.

[1 FSM Intrm. 326]

We now trace the source of authority of the Secretary of the Interior.  The Federated States of Micronesia embraces a portion of the Trust Territory of the Pacific Islands.  The Trust Territory has been administered by the United States since 1947 under a Trusteeship Agreement adopted by the United States and the United Nations.  This Agreement was approved on July 18, 1947 by a Joint Resolution of the Congress of the United States. (61 Stat. 397).

The Congress granted authority to the President to administer the Trust.  (48 U.S.C. 1681 - 1687.)  Since 1962 the Secretary of the Interior has administered the Trust Territory under the authority of the President of the United States. (Executive Order No. 11021).  Section 1 of Executive Order No. 11021 reads in part, "The responsibility for the administration of civil government in all of the trust territory," and all executive, legislative, and judicial authority necessary for that administration, are hereby vested in the Secretary of the Interior."  It was pursuant to this authority that Secretarial Order No. 3039 was issued, covering, among other things, the certiorari power quoted above.

     This Court concludes that the High Court did have the legitimate authority to issue the writ of certiorari in

[1 FSM Intrm. 327]
 
Otokichy.  We consider the issuance unwise,1 nonetheless we are bound to recognize the High Court's power to issue the writ.

[1 FSM Intrm. 328]

     Once that power of review is recognized as legitimate, this court cannot disregard an opinion resulting from such review.  Secretarial Order 3039, 5(b) states, "The ruling

[1 FSM Intrm. 329]

of the High Court of the Trust Territory of the Pacific Islands upon all appeals shall be final, binding, and enforceable in accordance with their terms."

[1 FSM Intrm. 330]

For the reasons stated the petition was granted and the writ of prohibition was issued on May 24, 1983.


Dated:   August 16, 1983                                                      /s/ Dorothy W. Nelson
                                                                                           DOROTHY W. NELSON
Designated Justice

Dated:   August 15, 1983                                                          /s/ Samuel P. King 
                                                                                                       SAMUEL P. KING
Designated Justice

Dated:   August 11, 1983                                                     /s/ Richard H. Benson
                                                                                              RICHARD H. BENSON
Associate Justice

Footnotes:

1.  We are aware that Secretarial Order 3039 contains no limitation upon the High Court in the exercise of the conferred power.  But we deem it unfortunate that the Court reviewed a case which only involved the interpretation of the Constitution and one of the public laws of the Federated States of Micronesia.

     To have reversed this Court in such a case runs contrary to the legal tradition familiar to the High Court.  The framers of the Constitution of the Federated States of Micronesia drew upon the Constitution of the United States and it may be presumed that phrases so borrowed were intended to have the same meaning given to them by the Supreme Court of the United States.   Lonno v. Trust Territory,1 FSM Intrm. 53 , 69-70 (Kos. 1982).  A comparison of terms in the two Constitutions reveals the applicability of Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803).

United States

          This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land ...U.S. Const. art. VI, (2)

          The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress ...U.S. Const. art. III, 1

Federated States of Micronesia

     This Constitution is the expression of the sovereignty of the people and is the supreme law of the Federated States of Micronesia...FSM Const. art. II, 1

     The judicial power of the national government is vested in a Supreme Court and inferior courts established by statute FSM Const. art. XI, 1

(emphasis added)

     Following the reasoning of Marbury v. Madison, the High Court should have left final interpretation of the Constitution and National law of the Federated States of Micronesia to the Supreme Court.

     Every available document militated against the issuance of a writ of certiorari in Otokichy:

1.  Article 6(1), Trusteeship Agreement for the Former Japanese Mandated Islands,

In discharging its obligations under Article 76(b) of the Charter, the administering authority shall:

1.  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 people and the freely expressed wishes of the peoples 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; and give due recognition to the customs of the inhabitants in providing a system of law for the territory; and shall take other appropriate measures toward these ends;

2.     Section 1, Secretarial Order No. 3039, Recognition of Governmental Entities under Locally-Ratified Constitutions of the Trust Territory of the Pacific Islands,

1.     Purposes The purpose of this Order is to provide the maximum permissible amount of self-government, consistent with the responsibilities of the Secretary under Executive Order 11021, for the Federated States of Micronesia, the Marshall Islands, and Palau, pursuant to their respective constitutions as and when framed, adopted, and ratified, pending termination of the 1947 Trusteeship Agreement under which the United States of America undertook to act as Administering Authority for the Trust Territory of the Pacific Islands.

     3. Special Joint Rule No.1 issued by the Chief Justices of the High Court and of the Supreme Court,
          ... It is the intent of this jointly adopted rule that both Courts shall cooperate to assure that the Supreme Court of the Federated States of Micronesia immediately shall exercise the full scope of its jurisdiction under the Constitution and laws of the Federated States of Micronesia, and that the Supreme Court shall determine the scope of its own jurisdiction.

     4. Rule 6, Rules for Writ of Certiorari is not a matter of right, but of sound judicial discretion, and will be granted only where there are special and important reasons therefore.
          A review on writ of certiorari is not a matter of right, but of sound judicial discretion, and will be granted only where there are special and important reasons therefore.

     We consider the writ of certiorari improvidently granted unless a decision of this court affects the ability of the Secretary of the Interior to fulfill his responsibilities under Executive Order 11021. Such a ground did not exist in Otokichy.