Cite as Anton v. Cornelius,12 FSM Intrm. 280 (App. 2003)

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APPEAL CASE NO. K1-2001

Argued: July 8, 2003
Decided: December 30, 2003

BEFORE:

Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court

APPEARANCES:

HEADNOTES

Appellate Review ; Constitutional Law – Due Process

An appellate court will first consider an appellant's due process contentions, when, if the appellant were to prevail on these, the decision below would be vacated (without the appellate court considering its merits), and the matter remanded for new proceedings. Anton v. Cornelius, 12 FSM Intrm. 280, 284 (App. 2003).

Constitutional Law – Due Process; Property – Land Commission

An assertion that a Land Commission decision was tainted and a party denied due process because various members of the Land Commission and Land Registration Team were close relatives of the appellee or the appellee's wife is a serious allegation that, if true, would usually be enough to vacate

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the decision and remand the case to the Land Court for new proceedings with a new determination to be made by impartial adjudicators. Anton v. Cornelius, 12 FSM Intrm. 280, 284 (App. 2003).

Appellate Review – Standard of Review; Constitutional Law – Due Process

When the appellant does not name the persons who he claims were the appellee's or the appellee's wife's "close relatives" or state how they are related, or what positions they held, or how they were involved in the Land Commission decision, the appellate court, without knowing the answers to these questions, cannot find plain error and conclude that, as a matter of law, the appellant's due process rights were violated and thereby vacate the determination and remand it for a new determination before other adjudicators. When the appellant did not raise this claim in the Land Commission or later in the Kosrae State Court, having failed to raise it earlier, the appellant cannot raise it now. Anton v. Cornelius, 12 FSM Intrm. 280, 284-85 (App. 2003).

Constitutional Law – Kosrae – Due Process; Property – Land Commission

Since the Kosrae State Court has not been shy in vacating and remanding Land Commission decisions for due process violations, including involvement of commissioners who should have disqualified themselves, Kosrae's social configuration should not prevent an appellant from timely raising the issue of disqualification of persons in the Land Commission proceedings. Anton v. Cornelius, 12 FSM Intrm. 280, 285 (App. 2003).

Statutes – Construction

Under general rules of statutory construction, when a statute adopts a provision by reference, it adopts that provision as it was at the time of adoption and any later changes to the referred provision will have no effect on the statute unless the statute specifically so provides or strongly implies. A statutory provision adopted by reference thus cannot be altered except by further action of the adopting legislature. That is because once the legislature has adopted a provision by reference, it makes that referenced provision its own law just as if it had entirely enacted the provision itself. No other rule would furnish any certainty as to what is the law. Anton v. Cornelius, 12 FSM Intrm. 280, 285 n.1 (App. 2003).

Courts – Judges

The ABA Code of Judicial Conduct (1984 ed.) is the judicial ethics provision in effect in Kosrae today. Anton v. Cornelius, 12 FSM Intrm. 280, 285-86 (App. 2003).

Courts – Recusal

A Kosrae State Court judge's failure to disqualify himself, even though he was not asked to, does not constitute plain error requiring the appellate court to vacate and remand the matter to the Kosrae State Court when the case was not the same controversy as the case in which the judge had earlier acted as counsel because that case involved different land and different parties and its only apparent connection with this case was a will, but that will is inapplicable in this case and the prior case was dismissed on res judicata grounds without ever reaching any issues concerning the will. Anton v. Cornelius, 12 FSM Intrm. 280, 286 (App. 2003).

Appellate Review – Standard of Review

On an appeal from the Kosrae State Court, before considering the appeal's other merits, the appellate court must consider whether the Kosrae State Court should have granted the appellant's motion for a trial de novo (instead of conducting a judicial review), since, if he prevails on this point, the appellate court would not consider his other assignments of error. He would be starting afresh with a trial de novo before the Kosrae State Court as if nothing had previously happened there. Anton v. Cornelius, 12 FSM Intrm. 280, 286 (App. 2003).

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Administrative Law – Judicial Review; Property – Land Commission

The Kosrae State Court must hear an appeal from the Land Commission on the record unless it finds good cause exists for a trial of the matter. The Land Commission's failure to follow the Kosrae Rules of Evidence does not constitute good cause for a trial de novo because those rules do not apply in the Land Commission. Anton v. Cornelius, 12 FSM Intrm. 280, 286 (App. 2003).

Administrative Law – Judicial Review

It is standard appellate procedure (as used in judicial review of administrative decisions) to file briefs and hear oral argument on them. This permits the appellate parties to argue errors of law or other deficiencies in the proceeding below and to direct the court's attention to those parts of the record that support their contentions. Briefs are not evidence, and a hearing on them is not a trial. Anton v. Cornelius, 12 FSM Intrm. 280, 286-87 (App. 2003).

Administrative Law – Judicial Review; Property – Land Commission

That the Land Commission did not properly consider certain evidence, is an issue the Kosrae State Court may properly consider under its standard of review without the need for a trial de novo, and, if the appellant should prevail, it can order a remand. Anton v. Cornelius, 12 FSM Intrm. 280, 287 (App. 2003).

Administrative Law – Judicial Review; Property – Land Commission

The statute contemplates that judicial review of a Land Commission appeal would be the norm and that a trial de novo would be held only in the uncommon event that the Kosrae State Court had found good cause for one. When that court did not, and when there has been no showing that would warrant a conclusion of good cause, the Kosrae State Court has not abused its discretion by not holding a trial de novo. Anton v. Cornelius, 12 FSM Intrm. 280, 287 (App. 2003).

Administrative Law – Judicial Review; Property – Land Commission

The Kosrae State Court, in reviewing Land Commission appeals, properly uses the following standard of review – it considers whether the Commission: a) has exceeded its constitutional or statutory authority, b) has conducted a fair proceeding, c) has properly resolved any legal issues, and d) has reasonably assessed the evidence presented. Under this standard, that court cannot substitute its judgment for the Land Commission's well-founded findings, but questions of law are reserved to it. Anton v. Cornelius, 12 FSM Intrm. 280, 287 (App. 2003).

Appellate Review – Standard of Review

The FSM Supreme Court's standard of review of a Kosrae State Court's judicial review of a Land Commission decision is whether the Kosrae State Court abused its discretion ) whether it failed to properly apply its standard of review to the case. Issues of law are reviewed de novo. Anton v. Cornelius, 12 FSM Intrm. 280, 287 (App. 2003).

Domestic Relations – Probate

Even if a will is valid and judicially recognized as such, this does not automatically make every bequest in that will valid. For a bequest to be valid, the testator must, at the time of his death, actually own the property being bequeathed. A person can only transfer such title to land as he validly owns. Anton v. Cornelius, 12 FSM Intrm. 280, 287 (App. 2003).

Domestic Relations – Probate

When the Kosrae State Court did not abuse its discretion in concluding that the Land Commission's findings that the testator had not actually acquired ownership of the land were not clearly erroneous, any further consideration of the will was pointless once it has been determined that the testator did not own the land mentioned in the will. Anton v. Cornelius, 12 FSM Intrm. 280, 288 (App.

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2003).

Property – Adverse Possession

Since someone claiming land by adverse possession must prove that his possession was open, notorious, hostile, continuous, and exclusive for the required statutory (twenty-year) time limit, failure to prove any one of these elements causes the whole claim to fail. A court's conclusion concerning another's continuous use of the land can only mean that the claimant, at a minimum, failed to show that his claimed possession was "exclusive" for any twenty-year period. His failure to prove that element is enough so that the lower court did not need to further discuss adverse possession because his adverse possession claim had failed at that point. Anton v. Cornelius, 12 FSM Intrm. 280, 288 (App. 2003).

Constitutional Law – Due Process; Property – Registered Land

No court could grant as relief a far-reaching request to nullify all certificates of title to all persons who are not heirs of legatees pursuant to a will when such a request would reverse long-settled, final cases not now before the court, with parties not now before the court, and award others title to land for which certificates of title have already been issued because that would have the court void certificates of title in a manner that would violate every notion of due process of law. Anton v. Cornelius, 12 FSM Intrm. 280, 288-89 (App. 2003).

COURT'S OPINION

DENNIS YAMASE, Associate Justice:

This came before the FSM Supreme Court appellate division on appeal from the Kosrae State Court's March 19, 2001 decision affirming the Kosrae Land Commission's February 2, 2000 Determination of Ownership awarding Parcel No. 066-M-03 to Lyndon Cornelius. We affirm. Our reasoning follows.

I. Background

Tepuke originally owned Lot No. 622. He had two sons, Ittu and Tara, and one daughter, Mirah. Mirah had no natural children. She adopted one of Ittu's sons, Sapal Shrew, and another son named Robert George. Tepuke gave Mirah some land which included Lot No. 622. Mirah gave Lot No. 622 to Robert George, who was shown as that lot's owner on the 1932 Japanese land map. George later conveyed his interest to Cornelius.

Appellant Livingston Anton asserts that Ittu, as Tepuke's eldest son, had the customary authority to take the land back from Mirah and did in fact exercise that authority and take the land back. Ittu bequeathed this land to Moses Anton in a 1961 will. Livingston Anton later inherited Moses's interest.

The land registration process for Lot No. 622, designated as Parcel No. 066-M-03, started in 1991. Cornelius filed his claim relying on his chain of title from Mirah through Robert George. Anton filed his claim relying on a chain of title from Ittu through Moses Anton. The Kosrae Land Commission ruled that Robert George had owned the land and that there was insufficient evidence to show that Ittu had ever taken the land back from Mirah. It concluded that Cornelius held fee simple title. Anton then appealed to the Kosrae State Court and moved for a trial de novo there.

The court denied the motion. It instead conducted a judicial review and heard argument on the

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parties' briefs and the record. On March 19, 2001, it affirmed the Land Commission's Determination of Ownership that Cornelius owned parcel 066-M-03. Anton then appealed that decision to us.

II. Issues and Contentions Presented by Appellant

Anton contends that the Kosrae State Court's March 19, 2001 decision affirming the Kosrae Land Commission's issuance of a Determination of Ownership in Lyndon Cornelius's favor was erroneous as a matter of law and as a matter of fact and that his due process rights under the FSM and Kosrae Constitutions were violated. He contends that the Kosrae State Court erred 1) in not ruling that the judicially recognized will of Ittu collaterally estopped Cornelius from claiming the land; 2) by not conducting a trial de novo; and 3) by ignoring the parties' statute of limitations arguments and the application of adverse possession.

Anton alleges that his due process rights were violated in the Kosrae State Court when the judge, who had acted as counsel in a case which referred to another land bequest in Ittu's will, did not recuse himself. He also alleges that his rights were violated in the Land Commission because various members of the Land Commission and Land Registration Team were "close relatives" of Cornelius or Cornelius's wife.

As relief, Anton asks that the bequests in Ittu's will be followed in this case and that the court nullify in other cases all certificates of title to all persons who are not heirs of legatees under Ittu's will.

III. Analysis

A. Anton's Due Process Claims

We must first consider Anton's due process contentions, since, if he were to prevail on these, the decision(s) below would be vacated (without us considering their merits), and the matter remanded for new proceedings.

1. Kosrae Land Commission Proceedings

Anton asserts that the Land Commission decision was tainted and that he was denied due process because various members of the Land Commission and Land Registration Team were "close relatives" of either Cornelius or Cornelius's wife. This serious allegation, if true, would usually be enough to vacate the decision and remand the case to the Land Court for new proceedings with a new determination to be made by impartial adjudicators. Wito Clan v. United Church of Christ, 8 FSM Intrm. 116, 118-19 (Chk. 1997) (impartial Land Commission, not a court, should first review registration team's findings, so when disqualified land commissioner participated in determination, case remanded for new determination by undisqualified commissioners).

Kosrae regulations define "near relatives" who are disqualified from land commission proceedings as second cousins or closer or a spouse thereof, including adoptees. Kos. Land Comm'n Reg. (Kos. Reg. 24-88) pt. 2.1(b) (Oct. 10, 1988). Anton, however, does not name the persons who he claims are Cornelius's or Cornelius's wife's "close relatives" or state how they are related, or what positions they held, or how they were involved in the Land Commission decision. Without knowing the answers to these questions, we cannot find plain error and conclude that, as a matter of law, Anton's due process rights were violated and thereby vacate the determination and remand it to the Land Court for a new determination before other adjudicators.

Anton did not raise this claim in the Land Commission or later in the Kosrae State Court. He

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asserts that the reason for this is that the social configuration of Kosrae does not permit a Kosraean counsel with a Kosraean client to ask a Kosraean man "to step down from a hearing." Appellant's Br. at 14.

This contention has no merit. The Kosrae State Court has not been shy in vacating and remanding Land Commission decisions for due process violations, see, e.g., Ittu v. Heirs of Mongkeya, 10 FSM Intrm. 446, 448 (Kos. S. Ct. Tr. 2001); Nena v. Heirs of Melander, 10 FSM Intrm. 362, 364 (Kos. S. Ct. Tr. 2001); Kun v. Kilafwakun, 10 FSM Intrm. 214, 216 (Kos. S. Ct. Tr. 2001); Isaac v. Benjamin, 9 FSM Intrm. 258, 259-60 (Kos. S. Ct. Tr. 1999), including involvement of commissioners who should have disqualified themselves, Heirs of Henry v. Palik, 11 FSM Intrm. 419, 422 (Kos. S. Ct. Tr. 2003); Langu v. Heirs of Jonas, 10 FSM Intrm. 547, 550 (Kos. S. Ct. Tr. 2002).

We can see no reason why Kosrae's social configuration should have prevented Anton from timely raising this issue. It has not prevented others. Having failed to raise this claim earlier, Anton cannot raise it now. Hartman v. Bank of Guam, 10 FSM Intrm. 89, 95 (App. 2001) (except for plain error, issue raised for first time on appeal is waived); Alfons v. FSM, 5 FSM Intrm. 402, 404 (App. 1992) (issue not raised below cannot be introduced for the first time on appeal); Paul v. Celestine, 4 FSM Intrm. 205, 210 (App. 1990) (cannot urge new ground for relief in appellate court when party had ample opportunity to raise that ground in lower court); Loch v. FSM, 2 FSM Intrm. 234, 236 (App. 1986) (appellate process contemplates any issue brought before appellate court will first have been raised below).

2. Kosrae State Court Proceedings

Anton claims that even though the Kosrae State Court judge was not asked to, he should have disqualified himself from sitting on the appeal because he had acted as Charley's counsel in Ittu v. Charley, 3 FSM Intrm. 188 (Kos. S. Ct. Tr. 1988), a case which also was concerned with a land bequest in Ittu's will.

The Kosrae State Code adopts by reference and applies to Kosrae State Court justices the ABA Code of Judicial Conduct provisions in effect on the State Code's effective date.¹ Kos. S.C. § 6.1201(1). The Kosrae State Code's effective date was October 1, 1985. Kos. Pub. L. No. 3-64, § 10. In 1985, the applicable provision of the ABA Code of Judicial Conduct read: "(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: . . . (b) he served as a lawyer in the controversy . . . ." ABA Code

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of Judicial Conduct Canon 3C (1984 ed.). This is the ethical provision in effect in Kosrae today.²

We cannot see how the judge's failure to sua sponte recuse himself because he was Charley's counsel in Ittu v. Charley, 3 FSM Intrm. 188 (Kos. S. Ct. Tr. 1988) constitutes plain error requiring us to vacate and remand the matter to the Kosrae State Court. We note that this case is not the same controversy as Ittu. That case involved different land and different parties. Its only apparent connection with this case is Ittu's will. But Ittu v. Charley was dismissed on res judicata grounds without ever reaching any issues concerning Ittu's will. Id. at 190, 193-94.

Anton asserts that Ittu's will applies in this case and that the court denied him due process by not allowing him to be fully heard on that issue. The will's inapplicability in this case is discussed below. See infra part III.B.2.a.

B. Alleged Errors of Law and Fact

Next, we must consider whether the Kosrae State Court should have granted his motion for a trial de novo (instead of conducting a judicial review), since, if Anton prevails on this point, we would not consider his other assignments of error. He would be starting afresh with a trial de novo before that court as if nothing had previously happened there.

1. Trial De Novo

Anton contends that the lower court should have held a trial de novo instead of hearing it as an appeal. The Kosrae State Court must hear an appeal from the Land Commission "on the record unless it finds good cause exists for a trial of the matter." Kos. S.C. § 11.614. Anton cites as good cause the Land Commission's failure to follow the Kosrae Rules of Evidence in its proceedings and his contention that the lower court did not review the Land Commission record but only the Land Commission decision. He asserts that the lower court decision "made no reference to any review of testimony transcripts and/or review of any other vital evidence in conducting its findings 'on the record.'" Appellant's Br. at 7. He also contends that the lower court's "allowing of new briefs to be filed by the parties showed that the court was not reviewing the matter on the record [but] that it was in fact allowing new evidence in ))a character of a trial or trial de novo." Id. at 6.

The Land Commission's "failure" to follow the Kosrae Rules of Evidence did not constitute good cause for a trial de novo. Those rules do not apply in the Kosrae Land Commission. Taulung v. Jack, 11 FSM Intrm. 345, 348 (Kos. S. Ct. Tr. 2003); Kos. Land Comm'n Reg. (Kos. Reg. 24-88) pt. 3.2 (Oct. 10, 1988).

Anton's contention that the lower court reviewed only the Land Commission decision and not the Land Commission record, is contrary to the record before us. The lower court stated that it "carefully reviewed the Land Commission record" and then cited various evidence and testimony before the Land Commission. Memorandum of Decision at 2 (Mar. 19, 2001). The court thus did not review just the Land Commission decision. It also reviewed the record.

The lower court's permitting the filing of new briefs once the matter was appealed to it does not constitute a form of trial. It is standard appellate procedure (as used here in judicial review of administrative decisions) to file briefs and hear oral argument on them. This permits the appellate parties to argue errors of law or other deficiencies in the proceeding below and to direct the court's

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attention to those parts of the record that support their contentions. Briefs are not evidence, and a hearing on them is not a trial. There was thus no "character of a trial" or a trial de novo, and this is not a ground for us to order that one be held.

The ground for Anton's lower court trial de novo motion was that the Land Commission did not properly consider certain evidence. The Kosrae State Court may properly consider such an issue under its standard of review (see infra part III.B.2) without the need for a trial de novo, and, if the appellant should prevail, it can order a remand.

Good cause for a trial de novo is not apparent. Furthermore, the statute contemplates that judicial review of a Land Commission appeal would be the norm and that a trial de novo would be held only in the uncommon event that the Kosrae State Court had found good cause for one. That court did not. Nor have we been shown reasons that would warrant such a conclusion. The Kosrae State Court did not abuse its discretion by not holding a trial de novo.

We now turn to the appeal's merits.

2. Alleged Errors in the Lower Court's Judicial Review

The Kosrae State Court, in reviewing Land Commission appeals, uses the following standard of review ) it considers whether the Commission: a) has exceeded its constitutional or statutory authority, b) has conducted a fair proceeding, c) has properly resolved any legal issues, and d) has reasonably assessed the evidence presented. Nena v. Heirs of Melander, 10 FSM Intrm. 362, 364 (Kos. S. Ct. Tr. 2001); Anton v. Heirs of Shrew, 10 FSM Intrm. 162, 164 (Kos. S. Ct. Tr. 2001); Nena v. Heirs of Melander, 9 FSM Intrm. 523, 524-25 (Kos. S. Ct. Tr. 2000); Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 395, 398 (Kos. S. Ct. Tr. 1988). Under this standard, that court cannot substitute its judgment for the Land Commission's well-founded findings, but questions of law are reserved to it. Heirs of Mongkeya v. Heirs of Mackwelung, 8 FSM Intrm. 31, 35 (Kos. S. Ct. Tr. 1997). The Kosrae State Court's standard of review of Land Commission proceedings appears proper to us, and the parties have not challenged it.

Our standard of review of the Kosrae State Court's judicial review is whether that court abused its discretion – whether it failed to properly apply its standard of review to this case. We review issues of law de novo.

a. Ittu's Will

Anton contends that the Kosrae State Court erred in not ruling that Cornelius is collaterally estopped from asserting that Ittu's will, from which Anton's claim to the land stems, is invalid and that the lower court (and the Land Commission) erred in not following the will's bequests as the will was judicially recognized as valid in other court cases.

Anton misses the point. Even if a will is valid and judicially recognized as such, this does not automatically make every bequest in that will valid. For a bequest to be valid, the testator must, at the time of his death, actually own the property being bequeathed. A person can only transfer such title to land as he validly owns. Muritok v. William, 8 FSM Intrm. 574, 576 (Chk. S. Ct. Tr. 1998).

Cornelius's predecessor in interest, Mirah, undisputedly owned the land in question. Anton claims that his predecessor in interest, Ittu, "took the land back" from Mirah. Anton had his opportunity to, and did, present his claim to the Land Commission. The Land Commission considered Anton's argument and found insufficient evidence to conclude that Ittu actually acquired ownership of

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the land from Cornelius's predecessor in interest, Mirah. The lower court concluded that the Land Commission "reasonably assessed the evidence presented" and that its "findings were not clearly erroneous." Memorandum of Decision at 2 (Mar. 19, 2001). The lower court did not abuse its discretion in reaching this conclusion. Once it had been determined that Ittu did not own the land, any further consideration of his will was pointless.

b. Statute of Limitations

Anton contends that the lower court erred by failing to address his statute of limitations argument – his claim that he and his immediate predecessor in title had owned the land since 1961 when Cornelius's predecessor had lost ownership of the land and that therefore Cornelius's 1991 claim was barred by the twenty-year statute of limitations and that Anton also would prevail under the doctrine of adverse possession.

A close reading of the lower court decision reveals that, although the court never used either term, it did address the point. The lower court stated that it had "reviewed the record and f[ou]nd that there was evidence presented at the hearing which supported [Cornelius]'s claim that his father, Luther Cornelius, had been using, cultivating and taking care of th[e] parcel of land from 1932 to 1991." Memorandum of Decision at 3 (Mar. 19, 2001). The court concluded that the "Land Commission reasonably assessed the evidence presented with respect to Luther Cornelius' use, cultivation and care of parcel 066-M-03 from 1932 to 1991." Id. It held that the "Land Commission's findings are not clearly erroneous." Id.

This addresses the adverse possession (and the statute of limitations) issue. Someone (such as Anton) claiming land by adverse possession must prove that his possession was open, notorious, hostile, continuous, and exclusive for the required statutory (twenty-year) time limit. See, e.g., Iriarte v. Etscheit, 8 FSM Intrm. 231, 239 (App. 1998). Failure to prove any one of these elements causes the whole claim to fail. The lower court's conclusion concerning Luther Cornelius's continuous use of the land can only mean that Anton, at a minimum, failed to show that his claimed possession was "exclusive" for any twenty-year period. Anton's failure to prove that element is enough so that the lower court did not need to further discuss adverse possession. Anton's adverse possession claim had failed at that point. This contention therefore has no merit.

Since Anton cannot prevail on any of the grounds he has raised in this appeal, we therefore conclude that the Kosrae State Court decision must be affirmed.

C. Relief Requested

Although we have determined that Anton is not entitled to any relief here, we feel compelled to comment on the nature and extent of the relief he requested. Anton asked that the will's bequests be followed; all contrary state court decisions be reversed; and that he (and unnamed others) be awarded title not only to the land in this case but also to the land in all other cases where the Kosrae State Court has not followed Ittu's will. He claims the "only legal relief" we could grant would be to "nullify all certificates of title to all persons who are not heirs of legatees pursuant to the judicially recognized Will of Ittu." Appellant's Br. at 5.

This is a far-reaching request. No court could grant this relief. Anton would have us reverse long-settled, final cases not now before this court, with parties not now before us, and award others title to land for which certificates of title have been issued. Courts must attach a presumption of correctness to certificates of title. Sigrah v. Kosrae State Land Comm'n, 9 FSM Intrm. 89, 93 (Kos. S. Ct. Tr. 1999); Marcus v. Truk Trading Corp., 11 FSM Intrm. 152, 158 (Chk. 2002); Carlos Etscheit

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Soap Co. v. Gilmete , 11 FSM Intrm. 94, 101 (Pon. 2002); Etscheit v. Nahnken of Nett, 7 FSM Intrm. 390, 394 (Pon. 1996); Stephen v. Chuuk, 11 FSM Intrm. 36, 41 (Chk. S. Ct. Tr. 2002). Ironically, while complaining that his due process rights were violated, Anton would have us void certificates of title in a way that would violate every notion of due process of law. Even if Anton had prevailed on this appeal, no such relief would, or could, have been granted.

IV. Conclusion

Anton has failed to show that his due process rights were violated. The Kosrae State Court did not abuse its discretion in denying his motion for a trial de novo. His contentions of error in the Kosrae State Court decision are without merit. That decision is accordingly affirmed.

¹ The statute reads: "The standards of conduct for justices consist of: (1) the provisions of the Code of Judicial Conduct of the American Bar Association in effect on the effective date of the Code, except to the extent made stricter by rule . . . ." Kos. S.C. § 6.1201. But, even if it had not been so stated in the statute, the result would be the same. Under general rules of statutory construction, when a statute adopts a provision by reference, it adopts that provision as it was at the time of adoption and any later changes to the referred provision will have no effect on the statute unless the statute specifically so provides or strongly implies. C. Dallas Sands, Sutherland Statutory Construction § 51.08 (rev. 4th ed. 1984). Cf. In re Failure of Justice to Resign, 7 FSM Intrm. 105, 108 (Chk. S. Ct. App. 1994) (Chk. S.L. No. 190-08, § 25 requiring adherence to ABA Code of Judicial Conduct adopted by reference the ABA Code's 1990 version because when the Chuuk statute was passed on September 17, 1990, the ABA had already adopted the 1990 revised version). A statutory provision adopted by reference thus cannot be altered except by further action of the adopting legislature. That is because once the legislature has adopted a provision by reference, it makes that referenced provision its own law just as if it had entirely enacted the provision itself. See In re Heath, 144 U.S. 93, 94-95, 12 S. Ct. 615, 616, 36 L. Ed. 358, 359 (1891). "No other rule would furnish any certainty as to what was the law." Id.

² See supra note 1