Cite as Chuuk v. Ernist Family,12 FSM Intrm. 154 (Chk. S. Ct. Tr. 2003)

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CSSC-CA-NOS. 159-2002 and 33-2003, CONSOLIDATED

Hearing: July 9, 2003
Decided: July 9, 2003
Memorandum Entered: October 7, 2003

APPEARANCES:

HEADNOTES

Attorney, Trial Counselor and Client – Admission to Practice

A person seeking to appear pro hac vice in a case, but who is not licensed to practice law, nor admitted as a trial counselor in Chuuk or in any other jurisdiction is therefore moving to permit "third-party lay representation" in the case. Chuuk v. Ernist Family, 12 FSM Intrm. 154, 156 (Chk. S. Ct. Tr. 2003).

Attorney, Trial Counselor and Client – Admission to Practice

The Chuuk State Supreme Court follows the general rule that in order to obtain permission to appear for a particular case (pro hac vice), in a jurisdiction where the applicant is not admitted to

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practice, the applicant must be properly admitted to practice law in another jurisdiction. The only exceptions to this rule are when a party represents him or he self, pro se, or where a husband or wife appears on behalf of either or both when one or the other are parties to a lawsuit, pursuant to the custom that a spouse may represent the other spouse in matters involving either or both of them. Chuuk v. Ernist Family, 12 FSM Intrm. 154, 156-57 (Chk. S. Ct. Tr. 2003).

Attorney, Trial Counselor and Client – Admission to Practice

While it might perhaps be better if the rule that admission pro hac vice requires admission in another jurisdiction could be relaxed or waived in some cases, the potential injury to the client, should the applicant fail to discharge his duties as an attorney properly, clearly outweigh the benefits of permitting him to act as an attorney without having the requisite credentials. For these reasons a motion for admission pro hac vice will be denied. Chuuk v. Ernist Family, 12 FSM Intrm. 154, 157 (Chk. S. Ct. Tr. 2003).

Property; Transition of Authority

When the Chuuk Legislature has made no effort to repeal, supersede or amend the Trust Territory Code regarding land tenure in Chuuk, pursuant to Article XV, § 9 of the Chuuk Constitution, the Trust Territory Code provisions still apply to land disputes. Chuuk v. Ernist Family, 12 FSM Intrm. 154, 158 n.3 (Chk. S. Ct. Tr. 2003).

Property – Land Commission

If the land registration team deems that consideration of a disputed claim will seriously interfere with accomplishment of the purpose of land registration, it may refer the claim to the Land Commission without the team's making any decision thereon and if a Land Commission deems that a team is spending an undesirable amount of time on a particular disputed claim, it may withdraw that claim from the team's consideration. In either of these situations, the Land Commission may then proceed itself to hear the parties and witnesses and make a determination on the claim or it may refer the claim to Chuuk State Supreme Court trial division for adjudication without any determination by the Commission. Chuuk v. Ernist Family, 12 FSM Intrm. 154, 158 (Chk. S. Ct. Tr. 2003).

Jurisdiction; Property – Land Commission

While ordinarily the court does not have jurisdiction over claims arising in land registration areas subject to the Land Commission's jurisdiction, an exception is that whenever the Land Commission, in its discretion, makes either of the determinations set forth in 67 TTC 108(1) or (2), it may refer the claim to the Chuuk State Supreme Court trial division for adjudication without itself making any determination. The statute thus expressly confers jurisdiction on the court upon a matter's referral from the Land Commission whenever cause appears pursuant to 67 TTC 108(1) or (2). The "special cause" is established by the statute, and the trial division clearly has jurisdiction if the circumstances meet the statute's requirements. Chuuk v. Ernist Family, 12 FSM Intrm. 154, 159 (Chk. S. Ct. Tr. 2003).

Property – Land Commission

In order for the Land Commission to exercise its discretion pursuant to statute and send a dispute to the trial division, either the land registration team must conclude that the dispute is interfering with the purpose of the law, and send the dispute to the Land Commission, or the Land Commission must determine that the land registration team is spending too much time on a particular dispute, and take control over the dispute from the land registration team. Chuuk v. Ernist Family, 12 FSM Intrm. 154, 159 (Chk. S. Ct. Tr. 2003).

Statutes – Construction

When the statute does not provide for an alternative, the court may not read into a statute words which do not exist therein. Chuuk v. Ernist Family, 12 FSM Intrm. 154, 160 (Chk. S. Ct. Tr. 2003).

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Property – Land Commission

The Land Commission's decision to refer a dispute to the court was not arbitrary and capricious when the land registration team failed to resolve the dispute over the twenty-eight years since the first claim to the land was presented and when the Land Commission's request for transfer recited the problems in resolving the dispute and the lack of sufficient Land Commissioners (due to disqualification) to render a decision. Chuuk v. Ernist Family, 12 FSM Intrm. 154, 160 (Chk. S. Ct. Tr. 2003).

Administrative Law – Judicial Review; Property – Land Commission

In an appeal from a Land Commission determination of ownership, the reviewing court will apply the clearly erroneous standard of review. If the agency decision is a considered judgment, arrived at on the basis of a full record and careful reflection, the court is more likely to rely on the agency's knowledge and judgment and to restrict the scope of review. Chuuk v. Ernist Family, 12 FSM Intrm. 154, 160 (Chk. S. Ct. Tr. 2003).

COURT'S OPINION

CHARLES L. LIGHT, Special Trial Justice:

I. Introduction

Two motions came regularly for hearing in this matter on July 9, 2003. The first was a motion by the late trial counselor Kachuo Eko¹ seeking permission for his legal assistant, Person Hellen, to appear pro hac vice and to actively represent a client of Mr. Eko in this case. The second motion was brought by Defendant Gloria Nachuo seeking a dismissal of this action and a remand to the Chuuk State Land Commission for further proceedings.

Mr. Person appeared in support of the motion to appear pro hac vice. Defendant Nachuo appeared by and through her counselor of record, Mike Marco of the FSM Public Defender's office, and was present in court. All other parties appeared through their attorneys and counselors of record, or on their own behalf pro se. After substantial argument on the motions, the Court denied both motions at the time of the hearing. This memorandum and order sets forth the Court's reasoning.

II. The Motion to Appear Pro Hac Vice

On July 9, 2003, trial counselor Kachuo Eko, perhaps aware of his worsening physical condition, filed a motion with the Court seeking permission for his legal assistant, Person Hellen, to appear in this case on behalf of Mr. Eko's client. Mr. Eko passed away within days of the filing of the motion. At the hearing, Mr. Hellen, appearing on the motion, acknowledged that he is not licensed to practice law, nor admitted as a trial counselor, in Chuuk State or in any other jurisdiction. The motion therefore sought to permit "third-party lay representation" in this case.

This Court follows the general rule in United States federal courts that in order to obtain permission to appear for a particular case (pro hac vice), in a jurisdiction where the applicant is not admitted to practice, the applicant must be properly admitted to practice law in another jurisdiction. See, e.g., Herrera-Venegas v. Sanchez-Rivera, 681 F.2d 41, 42 (1st Cir. 1982) ("federal courts have

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consistently rejected attempts at third-party lay representation"). This general rule is followed by the FSM Supreme Court. FSM Adm. R. IV.

The only exceptions to this rule known to the Court are where a party represents him or her self, pro se, or where a husband or wife appears on behalf of either or both where one or the other are parties to a lawsuit, pursuant to the custom that a spouse may represent the other spouse in matters involving either or both of them. O'Sonis v. Truk, 3 FSM Intrm. 516, 518 (Truk S. Ct. Tr. 1988).

In this case, with multiple parties, some already unrepresented, and others now unrepresented as a result of this ruling, it would be better, perhaps, if the rule – that admission pro hac vice requires admission in another jurisdiction – could be relaxed, or waived. And the Court has no doubt that Mr. Hellen, having assisted Trial Counselor Eko for many years, might be able to do a commendable job in representing Mr. Eko's former client. However, the potential injury to Mr. Eko's client, should Mr. Hellen fail to discharge his duties as an attorney properly, clearly outweigh in the mind of this Court the benefits of permitting him to act as an attorney without having the requisite credentials. For these reasons the motion for admission pro hac vice was denied.

III. The Motion to Dismiss and Remand to Land Commission

Defendant Gloria Nachuo moved for dismissal of the instant action and remand to the Chuuk State Land Commission, citing as authority Barker v. Paul, 6 FSM Intrm. 473, 1 CSR 1 (Chk. S. Ct. App. 1994).² Barker holds that absent a showing of "special cause," the trial division of the Chuuk State Supreme Court lacks jurisdiction over the subject matter of a land dispute involving land in a Land Commission registration area.

Defendant argued that since the land known as Angonei lies within a registration area, and indeed since the matter was before the Land Commission prior to its transfer to this Court on application of the Land Commission, under the authority of Barker the Court lacks jurisdiction over this cause, and must remand the case to the Land Commission. A brief history of the proceedings involving Angonei is necessary to demonstrate why the Court finds that transfer of the dispute over Angonei to the Trial Division was proper and jurisdiction over the cause exists.

A. History of the Proceeding before the Land Commission.

Angonei lies on the southern fork of the eastern portion of Tonoas (in earlier years known as Dublon) Island in the Chuuk Lagoon. In November, 1974, the Truk District Land Commission designated that southern portion of the easterly end of Tonoas as Registration Area No. 9. According to the Land Commission records the first claim against any portion of Angonei was filed with the Land Commission on November 26, 1974.

In the years following, numerous other claimants filed claims to all or a portion of Angonei. According to the records of the Land Commission, more than a half dozen claims were filed against Angonei, by individuals, clans, and lineages within clans. According to the caption of this action, at least seventeen parties claim an interest in the subject land.

In late 2001 or early 2002, Governor Ansito Walter announced publicly that it was the intention

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of his administration to acquire Angonei, and to use the site for a new baseball facility, to be constructed in time for the July, 2004 Micronesia Games. It was this announcement, and the urging of the Governor that the Land Commission complete its determinations of ownership of the parcel to be acquired by Chuuk State, that led to the Land Commission formally requesting that the Chuuk State Supreme Court Trial Division assume jurisdiction over this cause, and settle the disputes between the parties regarding ownership of Angonei.

The Land Commission, in its initial proceedings, and in its request for transfer of the Angonei dispute to this Court, tried to strictly follow the procedures outlined in 67 TTC §§ 101-120, inclusive.³ In 1974, it designated and surveyed the registration area, 67 TTC §§ 104 and 106, designated registration teams for the registration area, 67 TTC 103(1), and proceeded to accept claims within the registration area. The Court has no doubt that given its limited financial resources, the Land Commission did the best it could.

Unfortunately, the Land Commission was unable, over the 28 years it attempted to determine ownership to Angonei, to complete its work. The call of Governor Walter to expedite the process led to the Land Commission utilizing the procedures available to it under 67 TTC 108 to transfer this dispute to the Trial Division of this Court. 67 TTC 108 provides, in pertinent part:

Each registration team shall endeavor to adjudicate the claims as to as much land within the area for which it is responsible as is practicable within a year after that area has been designated. It shall endeavor to avoid becoming involved in such lengthy consideration of disputed claims as will seriously interfere with such adjudication.

(1) If the land registration team deems that consideration of a disputed claim will seriously interfere with accomplishment of the purpose of this Chapter, it may refer the claim to the Land Commission for that district without the team's making any decision thereon.

(2) Similarly, if a Land Commission deems that one of its teams is spending an undesirable amount of time on a particular disputed claim, it may withdraw that claim from consideration by the team.

(3) In either of the situations set forth in Subsection (1) and (2) of this Section . . . the Commission may then proceed itself to hear the parties and witnesses and make a determination on the claim . . . or the Commission may refer the claim to the Trial Division of the [Chuuk State Supreme Court] for adjudication without any determination by the Commission.

Id. (emphasis added).

In its request for transfer, pursuant to 67 TTC 108(3), supra, the Land Commission stated that it was "impossible" for it to determine ownership due to the complicated nature of the case, the time involved in considering of the case, the number of parties involved, the failure of parties to appear for hearings, and conflicts of interest between the parties and the Land Commissioners, including the senior Land Commissioner, which would leave the Land Commission without enough qualified Land

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Commissioners to render a proper determination of ownership.

While the motion was brought on the ground that the Court, under Barker v. Paul, 6 FSM Intrm. 473, 1 CSR 1 (Chk. S. Ct. App. 1994), lacked jurisdiction over the cause, the argument at the hearing focused principally on the assertion that the Land Commission abused its discretion in referring the matter to the Trial Division. The Court will address both issues in turn.

B. The Trial Division has Jurisdiction.

C. The Referral was Proper.

Once the jurisdictional issue is dispensed with, the question presented is whether the Land Commission had properly exercised its discretion in referring the Angonei dispute to the Trial Division of the Chuuk State Supreme Court. The Court concludes that the exercise of discretion was proper under the circumstances.

One of two sets of fact must exist in order for the Land Commission to exercise its discretion pursuant to 67 TTC 108(3) and send a dispute to the Trial Division. Either the land registration team must conclude that the dispute is interfering with the purpose of the law, and send the dispute to the Land Commission, or the Land Commission must determine that the land registration team is spending too much time on a particular dispute, and take control over the dispute from the land registration team. Under either circumstance, once the Land Commission takes control of the dispute from the land registration team, it may hear the dispute itself, or it may refer the matter to the Trial Division if it so chooses.

Thus, if the land registration team determines that resolving a disputed claim will "seriously interfere with the accomplishment of the purpose of this Chapter" it may refer the claim to the Land Commission. 67 TTC 108(1). Likewise, if the Land Commission deems that the land registration team "is spending an undesirable amount of time on a particular disputed claim, it may withdraw that claim from consideration by the team." 67 TTC 108(2).

The facts presented clearly indicate that the failure to resolve the dispute over the twenty-eight years since the first claim to Angonei was presented meet the conditions of both subsections of § 108 cited. Clearly the land registration team could have reasonably concluded that the dispute over Angonei was seriously interfering with their duties. Likewise, the Land Commission could reasonably have concluded that the Land Registration team was "spending an undesirable amount of time" on the Angonei claim.

Defendant Nachuo argued that the Land Commission should have hired another land registration

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team to handle the matter, or alternatively should have hired more Land Commissioners to eliminate the conflict which existed. Anyone with any knowledge of the current fiscal crisis in Chuuk State, and of the limited budget of the Land Commission, would recognize the futility of such an argument. Furthermore, the statute does not provide for such an alternative, and the Court may not read into a statute words which do not exist therein. See 73 Am. Jur. 2d Statutes § 197, at 394-95 (1974); In re Slot Machines, 3 FSM Intrm. 498, 500-01 (Truk .S. Ct. Tr. 1988).

Defendant also argued that the decision of the Land Commission was not supported by the facts, and was arbitrary and capricious. The Court, after examination of the circumstances surrounding the referral to this Court, cannot agree. It is clear that the land registration team was unable, for whatever reason, to resolve the Angonei ownership dispute despite having twenty-eight years in which to do so. The Court must also accept the statements of the Land Commission in its request for transfer regarding the problems in resolving the dispute, and the lack of sufficient Land Commissioners (due to disqualification) to render a decision.

Viewing this motion as analogous to an appeal of a Land Commission determination supports this conclusion. In an appeal from a Land Commission determination of ownership, the reviewing court will apply the "clearly erroneous" standard of review. O'Sonis v. Sana, 9 FSM Intrm. 501, 503 (Chk. S. Ct. Tr. 2000). If the agency decision is a considered judgment, arrived at on the basis of a full record and careful reflection, the court is more likely to rely on the agency's knowledge and judgment and to restrict the scope of review. Id. Defendant Nachuo failed to introduce any evidence that the decision of the Land Commission to refer the Angonei dispute to the Trial Division was based upon false facts or premises,⁴ or in any way arbitrary or capricious. The request of the Land Commission that the Trial Division take jurisdiction over this dispute is clearly authorized by statute, and the Court finds that the necessary conditions were met for the Land Commission to exercise its discretion and refer the matter to this Court.

IV. Conclusion

The motion to permit Person Hellen to appear pro hac vice, required that Mr. Hellen be admitted to practice in some jurisdiction. Absent evidence that Mr. Hellen was so admitted to practice, the motion to appear for a particular case was due to be, and was denied.

The motion to dismiss and remand this matter to the Land Commission, while more problematic, also failed to offer sufficient grounds for dismissal and remand. This Court has jurisdiction, assuming the statutory requirements are satisfied. The standard of review being that the decision of the Land Commission to refer the dispute to this Court was "clearly erroneous," and the Court finding no clear error, the motion to remand was due to be, and was, denied.

¹ The motion brought by Mr. Eko was filed just days before his untimely passing. As will be shown, a ruling on the motion did not require the attendance or participation of Mr. Eko.

² In defendant's motion, Barker is cited at 1 CSR 1 (1994). However, the case is reported in the FSM Interim Reporter. The Court uses the Interim Reporter citation for the assistance of counsel seeking to locate the opinion.

³ The Chuuk State Legislature has made no effort to repeal, supersede or amend the Trust Territory Code regarding land tenure in Chuuk State. Therefore, pursuant to Article XV, § 9 of the Chuuk State Constitution, the provisions of the Trust Territory Code apply to this dispute.

⁴ Defendant argued that the Land Commission made false statements in its request for transfer regarding the inability of the Land Commission to get all parties to attend hearings, pointing out without contradiction that many hearings were held where all of the parties attended. Even assuming Defendant is correct in this regard, the Court finds that the totality of circumstances supports the conclusion of the Land Commission that it was unable to resolve this dispute given its lack of resources and time.