FSM SUPREME COURT
TRIAL DIVISION (Pon.)
Cite as Hadley v. Kolonia Town Municipality,
3 FSM Intrm. 101 (Pon. 1987)

[3 FSM Intrm. 101]

RICKSON HADLEY, JOHN SPROAT,
CATALINO DAMARLANE, INDIVIDUALLY
AND ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED,
Plaintiffs,

v.

KOLONIA TOWN MUNICIPALITY,
Defendant.

CIVIL ACTION NO. 1986-118
ORDER CERTIFYINGISSUE FOR SUBMISSION
TO POHNPEI STATESUPREME COURT
APPELLATE DIVISION

OPINION
 
Before Edward C. King
Chief Justice
FSM Supreme Court
February 5, 1987

APPEARANCES:
               For the Plaintiffs:         Michael Berman
                                                     Attorney-at-Law
                                                     Law Office of Michael Berman
                                                     Kolonia, Pohnpei 96941          

[3 FSM Intrm. 102]

               For the defendants:    James Hagerstrom
                                                     Attorney-at-Law
                                                     Kolonia, Pohnpei 96941

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HEADNOTES
Federalism
     Although national law requires the FSM Supreme Court to protect persons against violations of civil rights, strong considerations of federalism and local self-government suggest that local institutions should be given an opportunity to address local issues, even civil rights issues, especially when this can be done without placing the rights of the parties in serious jeopardy and when the local decision may obviate the need for a constitutional ruling by the national court. Hadley v. Kolonia Town, 3 FSM Intrm. 101, 103 (Pon. 1987).

Constitutional Law - National State Powers
     The factors to be considered in the decision about whether the FSM Supreme Court should certify an issue to the state supreme court include: possible harm to the party seeking relief; the likelihood of significant delay; and the objections raised by the opposing party.  Hadley v. Kolonia Town, 3 FSM Intrm. 101, 103 (Pon. 1987).

Constitutional Law - National/State Powers
     Certification of appropriate issues to the Pohnpei State Supreme Court appellate division by the FSM Supreme Court is consistent with the interaction between state and national courts, as contemplated by the FSM Const. art. XI, 7, 8, 10, and as interpreted in earlier case law. Hadley v. Kolonia Town, 3 FSM Intrm. 101, 103-04 (Pon. 1987).

Constitutional Law - National/State Powers
     In an earlier case, the FSM Supreme Court has explained that in the interests of judicial harmony and out of respect for state sovereignty, it is an appropriate exercise of the FSM Supreme Court's inherent powers to devise a procedure for tendering state constitutional issues to the state courts, so long as the state court approves.  Hadley v. Kolonia Town, 3 FSM Intrm. 101, 104 (Pon. 1987).

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COURT'S OPINION
EDWARD C. KING, Chief Justice:
     This litigation has been instituted by three Pohnpeian residents against the government of Kolonia, the town in which they live.  They challenge the constitutionality of the Kolonia Town ordinance concerning drinking permits.  In essence their claim is that the ordinance is unduly vague and therefore violative of the due process clause of the Constitution of the Federated States of Micronesia.
 
[3 FSM Intrm. 103]

     The civil rights provisions of the National Criminal Code specifically authorize a civil action seeking protection against claimed violations of civil rights.  11 F.S.M.C. 701.  Thus the claims asserted by plaintiffs here arise under national law as well as under the Constitution of the Federated States of Micronesia and therefore fall within the jurisdiction of this Court.  FSM Const. art. XI, 6(b).

     At the same time, this is essentially a local dispute.  The plaintiffs are all residents of Kolonia Town.  The ordinance to which they object was enacted by their own municipality and is enforced by the local police.

     While national law requires this Court to protect persons against violations of civil rights, strong considerations of federalism and local self-government suggest that local institutions should be given an opportunity to address local issues, even civil rights issues, especially when this can be done without placing the rights of the parties in serious jeopardy and when the local decision may obviate the need for a constitutional ruling by the national court.

     The plaintiffs concede that they have not raised the civil rights issues they assert here with any local or state tribunal.  They point to no harm which would befall them if they are required in the first instance to seek relief from a more local tribunal.  There is no reason to believe they will encounter significant delay in attempting to obtain a decision from the Pohnpei State Supreme Court appellate division.  This Court perceives no reason why the Pohnpei State Supreme Court could not address the alleged vagueness of the ordinance under the Pohnpei Constitution as fully as could this Court under the FSM Constitution. The defendant has no objection to certification of issues here to the Pohnpei State Supreme Court.

     It seems quite possible that the state court decision could render unnecessary a national constitutional decision in this case.  This Court has previously recognized the desirability of avoiding unnecessary national constitutional decisions.  Ponape Chamber of Commerce v. Nett, 1 FSM Intrm. 389, 402 (Pon. 1984); Suldan v. FSM, 1 FSM Intrm. 201, 205 (Pon. 1982); Truk v. Hartman, 1 FSM Intrm. 174, 180-81 (Truk 1982).

     Under these circumstances, it appears appropriate to impose an exhaustion of remedies requirement on the parties, by certifying an issue to be tendered by them to the Pohnpei State Supreme Court appellate division before action by this Court.

[C]ertification 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

[3 FSM Intrm. 104]

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.

Panuelo v. Pohnpei (III), 2 FSM Intrm. 244, 246 (Pon. 1986).

     For these reasons, the following issue is certified, to be presented jointly by the parties to the Pohnpei State Supreme Court Appellate Division with a request that the court consider and rule upon the issue:

Is the Kolonia Town Ordinance relating to drinking permits unreasonably vague and therefore violative of the due process clause of the Pohnpei State Constitution?

     This Court will consider itself bound by the decision of the Pohnpei State Supreme Court appellate division in response to the above question.

Timing
     The parties are given 10 days from the date of entry of this order to submit the petition authorized here to the Pohnpei Supreme Court Appellate Division.  They shall report their progress to this Court within 75 days.

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