KOSRAE STATE COURT TRIAL DIVISION
Cite as Langu v. Heirs of Jonas
10 FSM Intrm. 547 ( Kos. S. Ct. Tr. 2002)
 
[10 FSM Intrm. 547] 
 
HEIRS OF TULENSA LANGU,
Appellants,
 
vs.
 
HEIRS OF SHREW JONAS,
Appellees.
 
CIVIL ACTION NO. 2-01
 
MEMORANDUM OF DECISION; ORDER OF REMAND
 
Yosiwo P. George
Chief Justice
 
Hearing: March 6, 2002
 
Decided: March 11, 2002
 
APPEARANCES:
 
For the Appellants:                       Sasaki L. George, Esq.
                                                       Micronesian Legal Services Corporation
                                                       P.O. Box 38
                                                       Lelu, Kosrae FM 96944
 
For the Appellees:                      Clanry S. Likiaksa, trial counselor
                                                      P.O. Box 764
                                                      Lelu, Kosrae FM 96944
 
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[10 FSM Intrm. 548]
 
HEADNOTES

Administrative Law ; Constitutional Law ) Kosrae ) Due Process; Property ) Land Commission
     When the Senior Land Commissioner failed to disqualify himself after the parcel was recorded for adjudication, took part in the hearing and consideration of the parcel by appointing the two pro-tempore members of the registration team, and failed to disqualify himself from the matter until after the two Associate Land Commissioners had concurred on the findings and decision, awarding ownership of the parcel to his family, his actions violated Kosrae State Code, Section 11.602 and the due process protection provided by the Kosrae Constitution. Langu v. Heirs of Jonas, 10 FSM Intrm. 547, 549 (Kos. S. Ct. Tr. 2002).
 
Constitutional Law ) Due Process; Property ) Land Commission
     Due process demands impartiality on the part of adjudicators, such as land commissioners. Langu v. Heirs of Jonas, 10 FSM Intrm. 547, 549 (Kos. S. Ct. Tr. 2002).
 
Property ) Land Commission
     It is a land commissioner's duty to disqualify himself when necessary, as soon as the commissioner is aware of the grounds for his disqualification. Langu v. Heirs of Jonas, 10 FSM Intrm. 547, 549-50 (Kos. S. Ct. Tr. 2002).
 
Property ) Land Commission
     When there has been a violation of law or a denial of due process, a determination of ownership must be vacated and the matter remanded for further proceedings. Land Commission judgments are void when the Land Commission has failed to follow the requirements of the law. Langu v. Heirs of Jonas, 10 FSM Intrm. 547, 550 (Kos. S. Ct. Tr. 2002).

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COURT'S OPINION

YOSIWO P. GEORGE, Chief Justice:

     This matter is an appeal from Determinations of Ownership issued by the former Kosrae State Land Commission to the Heirs of Shrew Jonas in September 2000 and July 2001, for parcel 067-M-04, land known as Saolung. This is the second appeal from the decision of the Land Commission on this parcel. The previous appeal was disposed of in Civil Action No. 48-94.

     Appellants' Brief was filed on October 10, 2001. Appellees' Brief was filed on January 2, 2002, A reply brief was filed by the Appellants on January 28, 2002. The hearing on the briefs was held on March 6, 2002. Sasaki L. George, MLSC, appeared for the Appellants. Appellees were represented by Clanry S. Likiaksa.

I. Discussion.

     Appellants raise a number of procedural and substantive issues on appeal. The actions complained of took place during the existence of the Kosrae State Land Commission. The Land Commission was terminated and replaced by the Kosrae Land Court, effective January 14, 2002. Consequently, while the Land Commission's actions form the basis for this appeal, any remand or further action will necessarily be taken by the Kosrae Land Court, pursuant to Kosrae State Code, Title 11, Chapter 6.

[10 FSM Intrm. 549]

     Although the Appellants have raised several issues on appeal, only one issue must be addressed in decision of this matter. Appellants claim that former Senior Land Commissioner Johnston Jonas failed to disqualify himself from acting in this matter, and his actions are a violation of Kosrae State Law, the Land Commission regulations and the Kosrae State Constitution. The failure of the former Senior Land Commissioner to disqualify himself in this matter serves as grounds for vacating the determination of ownership for parcel 067-M-04. Former Senior Commissioner is an interested party in this matter, being one of the Heirs of Jonas, the Appellees.

     The Court has carefully reviewed the record in this matter and sets out pertinent facts as follows, as reflected by the record in this matter. On September 11, 2000, former Senior Land Commissioner made two pro-tempore appointments to the Malem Registration Team, the Team which was responsible for holding the hearings, preparing the findings and adjudication for parcel 067-M-04. The Finding of Facts, prepared by the Malem Registration Team, was signed by four members on August 15, 2000, nearly a month before the pro-tempore appointment was made and filed. The Malem Registration Team recommended award of the parcel to the Appellees, Heirs of Shrew Jonas, family of the former Senior Land Commissioner. On August 29, 2000, the first Associate Land Commissioner concurred on the Team Findings and Opinion. This concurrence also took place before the pro-tempore appointments were made and filed by the former Senior Land Commissioner. The second former Associate Land Commissioner concurred on the Team Findings and Opinion on September 12, 2000. Following the concurrence of both Associate Land Commissioners, which awarded the parcel to his family, the former Senior Land Commissioner then finally disqualified himself on September 12, 2000. This disqualification was made after all proceedings were completed on the parcel.

     The former Senior Land Commissioner participated in this matter by appointing two pro-tempore members of the Malem Registration Team. The former Senior Land Commissioner appointed members of the registration team who were to hear and adjudicate his family claims on the subject parcel. The former Senior Land Commissioner also waited until the remaining two Associate Commissioners had concurred on the decision in this matter, to his family's benefit, prior to disqualifying himself as an interested person. Based upon the record in this matter, there is substantial evidence that the former Senior Land Commissioner's actions in participating in this matter in which he was disqualified, was a violation of the Kosrae State Constitution, Kosrae State law and the Land Commission's regulations.

     The Land Commission Regulations, Regulation 24, sets forth the procedure for disqualification of a Commissioner or team member, based upon being a "near relative." Pursuant to the Regulation 24, there is a certain procedure established for the filling of vacancies on the registration team and on the Commission. The record shows no evidence of compliance with Regulation 24 concerning disqualification of the former Senior Land Commissioner and his pro-tempore appointments. Kosrae State Code, Section 11.602 provides: "After a team has recorded a parcel for adjudication a member or Commissioner who has an interest in the claim, or is a near relative of a person having an interest, disqualifies himself from taking part in hearings or other consideration regarding the parcel." The actions of former Senior Land Commissioner violated Section 11.602. He failed to disqualify himself after the parcel was recorded for adjudication. He took part in the hearing and consideration of the parcel by appointing the two pro-tempore members of the Malem Registration Team. More importantly, the former Senior Land Commissioner failed to disqualify himself from the matter until after the two Associate Land Commissioners had concurred on the findings and decision, awarding ownership of the parcel to his family, the Heirs of Jonas.

     These actions by the former Senior Land Commissioner are a violation of Kosrae State Code, Section 11.602 and a violation of the due process protection provided by Kosrae State Constitution. Due process demands impartiality on the part of adjudicators, such as land commissioners. Wito Clan v. United Church of Christ, 8 FSM Intrm. 116 (Chk. 1997). It is the duty of the land commissioner to

 [10 FSM Intrm. 550]

disqualify himself where necessary, as soon as the commissioner is aware of the grounds for his disqualification. See 46 Am. Jur. 2d Judges  195 (rev. ed. 1994) (emphasis added). Here, the former Senior Land Commissioner was aware of the grounds for his disqualification as a member of the Heirs of Jonas at the time of the registration of the parcel. Yet, he did not disqualify himself at that time, as required by Kosrae State Code, Section 11.602. This failure of former Senior Land Commissioner Jonas violated the due process of the Appellants to have impartiality on part of the Land Commission, in all stages of the proceedings.

     Based upon the record in this matter, there is substantial evidence that the former Senior Land Commissioner's actions in participating in this matter in which he was disqualified, was a violation of the Kosrae State Constitution, Kosrae State Law and the Land Commission's regulations. In accordance with FSM Supreme Court and Kosrae State Court cases, where there has been a violation of law or a denial of due process, the Determination of Ownership must be vacated and the matter remanded for further proceedings. Palik v. Henry, 7 FSM Intrm. 571 (Kos. S. Ct. Tr. 1996). Judgments of the Land Commission are void when the Land Commission has failed to follow the requirements of the law. Sigrah v. Kosrae State Land Comm'n, 9 FSM Intrm. 89, 93 (Kos. S. Ct. Tr. 1999); Langu v. Heirs of Jonas, Civil Action No. 48-94 (Memorandum of Decision) (Kos. S. Ct. Tr. June 20, 2000). Therefore, the Determination of Ownership for parcel 067-M-04 is hereby vacated, and determined to be null and void.

II. Order of Remand.

     This matter remanded to the Kosrae Land Court, who shall again hold hearings and issue the Determination of Ownership for parcel 067-M-04, consistent with the requirements of Title 11, Chapter 6, with the following instructions:

1. The Land Court shall hear all claimants, witnesses and other evidence as may be offered at the hearing.

2. The Land Court shall not consider any evidence presented at any prior hearings.

3. The Land Court shall provide notice and hold hearings, as required by Kosrae State Code, Title 11, Chapter 6, and this Court's General Court Orders.

4. This matter shall be assigned highest priority by the Land Court, and shall be assigned for hearing and further action by the first Land Court Justice who is available to hear and adjudicate this matter.

5. The Land Court shall complete the hearings and all other actions as soon as possible.

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