THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Panuelo v. Pohnpei State,
2 FSM Intrm. 244 (Pon. 1986)

[2 FSM Intrm. 244]

YASUO PANUELO AND BRIGIDAPANUELO
Plaintiffs,

vs.

STATE OF POHNPEI AND THE
FEDERATED STATES OF MICRONESIA
Defendants.

CIVIL NO. 1985-027

ORDER AUTHORIZING SUBMISSION
   OF QUESTIONS TO POHNPEI
SUPREME COURT APPELLATE
DIVISION

OPINION
 
Before Edward C. King
Chief Justice
October 6, 1986

[2 FSM Intrm. 245]

APPEARANCES:
     For the Plaintiffs:              R. Barrie Michelsen
                                                Attorney-at-Law
                                                Ramp & Michelsen
                                                P.O. Box 1480
                                                Pohnpei, FSM 96941

     For the Defendant:          Thomas M. Tarpley
     (State of Pohnpei)           Special Counsel
                                               State Attorney's Office
                                               Pohnpei, FSM 96941

     For the Defendant:          Jack Warndof
     (Federated States          Chief of Litigation
     of Micronesia)                 Office of the Attorney General
                                               Pohnpei, FSM 96941

*        *        *        *

HEADNOTE
Federalism; Courts
     Where litigation in which a state of the Federated States of Micronesia is a defendant involves an issue concerning the meaning of a provision of the state Constitution, and the parties in that litigation request that the issue of the meaning of the provision be certified to the supreme court of the state, it is an appropriate exercise of the inherent powers of the FSM Supreme Court to devise a procedure for tendering the issue to the state supreme court, so long as the state court approves.  Panuelo v. Pohnpei (III), 2 FSM Intrm. 244, 246 (Pon. 1986).

*      *       *       *

COURT'S OPINION
EDWARD C. KING, Chief Justice:
     The parties have requested that this Court certify to the Pohnpei State Supreme Court legal issues concerning the meaning and. enforceability of the health care provisions of Article 7, Section 4 of the Pohnpei Constitution.

     In denying the State of Pohnpei's earlier motion for dismissal on grounds of sovereign immunity, this Court noted that a state within the Federated States of Micronesia may be sued for monetary damages in the national court, but saw a:

[2 FSM Intrm. 246]

need to develop an especially liberal policy for abstention in suits against the state for monetary relief .... [A] reasoned request by a state that we abstain from deciding a particular issue should be granted unless the opposing  party establishes that the benefits of abstention in terms of federalism and judicial harmony and respect for state sovereignty, would be substantially outweighed by delay, harm or injustice.

Panuelo v. Pohnpei (I), 2 FSM Intrm. 150, 156 (Pon. 1986).

     The motion for certification here was initiated by the individual plaintiffs but the State has now joined in the motion.

     There is no statutory provision or court rule authorizing certification to state courts of issues in cases before this Court.  However certification is in accord with the spirit, if not required by the letter, of the Constitution and statutes of the Federated States of Micronesia.  The Constitution contemplates interaction between state and national courts.  Article XI, section 7 provides that appeals may be taken to this Court from state courts if the state constitution permits.  Article XI, section 10 calls for national "financial support" and "other assistance" for state judicial systems.  The Judiciary Act of 1979 also mandates that this Court cooperate with state courts.  4 F.S.M.C. 115.

     Finally, article XI, section 8 of the Constitution establishes a procedure whereby state courts are to certify constitutional and other national law issues to this Court's appellate division.  In the interests of judicial harmony and out of respect for state sovereignty, I consider it an appropriate exercise of this Court's inherent powers to devise a similar procedure for tendering state constitutional issues to the state courts under the circumstances existing here, so long as the state court approves. The Pohnpei Chief Justice has informally approved submission of the constitutional issues here to the Pohnpei State Supreme Court appellate division.

     For all of these reasons the motions requesting certification of issues to the Pohnpei State Supreme Court are granted.

Questions Certified
     The parties shall submit to the Pohnpei State Supreme Court appellate division sufficient portions of the pleadings in this case to acquaint the court with the factual background and the allegations of the parties.  The questions which the parties may submit to that court's appellate division are as follows:

     1.  Are the provisions of article 7, section 4 of the Pohnpei Constitution:

a.  Self-executing, creating substantive rights enforceable by individuals in a court of law?          

[2 FSM Intrm. 247]

b.  General policy directives to the Pohnpei Government which do not vest individuals with legal rights that they may assert in courts?

     2.  What factors should be considered in determining the constitutionality of a particular decision by government officials to refuse to provide financial assistance for an operation necessary to give the patient any possibility of avoiding what otherwise would be certain death?

     If the Pohnpei State Supreme Court appellate division certifies that option 1.b. above correctly characterizes these constitutional provisions, there will be no need for an answer to question 2.

     This Court will consider itself bound by the decisions of the Pohnpei State Supreme Court appellate division in response to the above questions.  If the Pohnpei Supreme Court appellate division believes other questions should be decided in order to provide for this Court an adequate understanding of the import and possible application of article 7, section 4 of the Pohnpei Constitution, it should feel free to address those questions as well.

Timing

     It seems proper to take steps to assure that no party may exploit this procedure to cause unnecessary delay or expense.  Therefore the time within which a petition may be filed with the state court should be specified and the parties should be required to report their progress to this Court from time to time.  The parties are given ten days from the date of entry of the order to submit petitions to the Pohnpei Supreme Court appellate division.  They shall report their progress to this Court within 75 days.
                                                                                                                                                                                                                                                                                                           
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