FSM SUPREME COURT
TRIAL DIVISION (Pon. 1988)
Cite as Edwards v. State of Pohnpei,
3 FSM Intrm.350 (Pon. 1988)

[3 FSM Intrm. 350]

MENISTER EDWARD, JASON EDWARD,
JACQUILEEN EDWARD, JAYTRICK
EDWARD, and JESSICA EDWARD,
Plaintiffs,
 
v.

STATE OF POHNPEI and
REINERIO BARRO, M.D.,
Defendants.

CIV.  ACTION NO. 1987-018

 OPINION
 
Before Edward C. King
Chief Justice
April 28, 1988

[3 FSM Intrm. 351]

APPEARANCES:
          For the Plaintiffs:        Michael J. Berman
                                               Daniel Berman
                                               Ezra, O'Connor, Moon & Tam
                                               P.O. Box 1491
                                               Pohnpei, FSM 96941

                                               Alan B. Burdick
                                               222 Merchant St., 2nd Floor
                                               Honolulu, Hawaii 96813


                                               Wilfred R. Mann
                                               2010 Fourteenth Street
                                               Boulder, Colorado 80302

          For the Defendant:     Randy Boyer
                                               Pohnpei State Attorney
                                               State Attorney's Office
                                               Pohnpei, FSM 96941

*        *        *        *

HEADNOTES
Constitutional law;
Certification of Issues;
Jurisdiction
     The FSM Supreme Court trial division is required to decide all national law issues presented to it.  Certification to state court is only proper for state or local law issues.  Edwards v. Pohnpei, 3 FSM Intrm. 350, 354 (Pon. 1988).

Statutes;
Certification of Issues
     Determination as to whether a statute is a state or national law must be made on a statute-by-statute or a section-by-section basis.  Edwards v. Pohnpei, 3 FSM Intrm. 350, 355 (Pon. 1988).

Statutes;
Constitutional Law - National/State Power
     The fact that Congress included a particular law in the FSM Code does not indicate conclusively whether the law is to be applied by this Court as part of national law, for some parts of the Code were intended to apply only to the Trust Territory High Court in its transitional role until state courts were established.  Edwards v. Pohnpei, 3 FSM Intrm. 350, 356 (Pon. 1988).

[3 FSM Intrm. 352]

Constitutional Law - National/State Power
     If a power is not enumerated in the Constitution, the likelihood is that the framers intended it to be a state power, for the only unexpressed powers which may be exercised by the national government are powers of "such an indisputably national character as to be beyond the power of a state to control."  FSM Const. art. VIII, 1.  Edwards v. Pohnpei, 3 FSM Intrm. 350, 357 (Pon. 1988).

Constitutional Law - National/State Power;
Torts
     Primary lawmaking powers for the field of torts lie with the states, not with the national government, but the national government may have an implied power to regulate tort law as part of the exercise of other general powers.  Edwards v. Pohnpei, 3 FSM Intrm. 350, 359 (Pon. 1988).

Constitutional Law;
Statutes
     A cardinal principle of statutory interpretation is to avoidinterpretations which might bring into question the constitutionality of the statute.  Edwards v. Pohnpei, 3 FSM Intrm. 350, 359 (Pon. 1988).

Constitutional Law - National/State Power;
Torts
     Wrongful death statutes, including the $100,000 ceiling on wrongful death claims, are part of the law of the states and are not national law statute.  Edwards v. Pohnpei, 3 FSM Intrm. 350, 360 (Pon. 1988).

Jurisdiction; Federalism
     As a general rule the FSM Supreme Court trial division is obliged to exercise its jurisdiction and may not abstain simply because unsettled issues of state law are presented.  Edwards v. Pohnpei, 3 FSM Intrm. 350, 360 (Pon. 1988).

Federalism
     FSM Supreme Court decision applying state law in a case before it is final; but if in a subsequent case a state court decides the same issue differently, the state decision in that subsequent case is controlling precedent and the national courts should apply the state court rule in future cases.  Edwards v. Pohnpei, 3 FSM Intrm. 350, 360 (Pon. 1988).

Federalism;
Civil Procedure
     The FSM Constitution, art. XI, 8, as well as general principles of federalism and considerations of judicial harmony, give the FSM Supreme Court power to certify state law issues to state courts.  Edwards v. Pohnpei, 3 FSM Intrm. 350, 361 (Pon. 1988).

Constitutional Law;
Civil Procedure
     No clause in the FSM Constitution is equivalent to the eleventh

[3 FSM Intrm. 353]

amendment of the United States Constitution, which generally bars citizens from using United States federal courts to seek monetary damages against states.  Edwards v. Pohnpei, 3 FSM Intrm. 350, 361 (Pon. 1988).

Certification of Issues;
Federalism
     Considerations of federalism and state sovereignty create a presumption in litigation when a state is defendant in an action for money damages that a request by the state defendant for certification to state court of unresolved and significant issues of state law will be granted. Edwards v. Pohnpei, 3 FSM Intrm. 350, 362 (Pon. 1988).

Constitutional Law;
Civil Procedure;
Certification of Issues
     While the FSM Supreme Court may certify legal issues in a case before it to the highest state court, questions which require application of law to facts may not be certified.  Edwards v. Pohnpei, 3 FSM Intrm. 350, 363 (Pon. 1988).

Constitutional Law;
Civil Procedure;
Certification of Issues
     Certification of issues to other courts typically causes delay and increases the cost of litigation and therefore should be employed only for unsettled legal issues.  Edwards v. Pohnpei, 3 FSM Intrm. 350, 363 (Pon. 1988).

Constitutional Law;
Torts
     Courts lack authority to establish sovereign immunity to general tort claims through judicial action.  Edwards v. Pohnpei, 3 FSM Intrm. 350, 363 (Pon. 1988).

*        *        *        *

COURT'S OPINION
EDWARD C. KING, Chief Justice:
     With this decision the Court establishes and applies for the first time standards to determine whether state law issues related to litigation within the jurisdiction of this Court should be certified to a state court for resolution, when the request for certification is opposed.

I.  Background
     This is a wrongful death action.  Plaintiffs, the surviving spouse and children of the decedent, Jessee Edward, assert that negligence of the state of Pohnpei and the named physician caused Mr. Edward's death.  This Court has

[3 FSM Intrm. 354]

jurisdiction because of the diversity of citizenship of the parties.

     On March 25, 1988, plaintiffs moved for partial summary judgment seeking interpretations of language contained in 6 F.S.M.C. 503(1), and a declaration that the $100,000 limitation prescribed there for wrongful death actions is invalid.

     In response, the defendants on April 6 filed the motion under consideration here, asking this Court to certify various state law issues to the appellate division of the Pohnpei State Supreme Court for rulings.

     The eleven questions identified by the defendants fit into three categories.  Six questions pertain to tort liability, specifically wrongful death claims and the validity and interpretation of the $100,000 wrongful death ceiling of 6 F.S.M.C. 503(1). Three of the questions relate to sovereign immunity.  The last category consists of two questions, asking whether the $100,000 ceiling for wrongful death actions is violative of the equal protection or due process provisions of the Pohnpei Constitution.

     Plaintiffs' opposition to the motion is based principally upon assertions that certification will cause delay and disrupt this Court's "continuity" of decisionmaking.  For the reasons stated in this opinion, five of the six issues concerning wrongful death claims under 6 F.S.M.C. 503 will be certified; the other issues will not.

II.  Legal Analysis
A.     State or National Law
     This Court is required to decide all national law issues presented to it. Certification to state courts is only proper for state or local law issues.  The threshold question is whether the tendered issues, all concerning liability for death caused by tortious wrongdoing, involve state law, rather than national law.

     1.     The Code - Pointedly, the defendants refer to the $100,000 ceiling for wrongful death claims in the Trust Territory Code, at 6 TTC 203.  Plaintiffs cite the identical provisions as they appear at 6 F.S.M.C. 503.1

[3 FSM Intrm. 355]

     This dualism reflects a distinctive feature of the statutory law in the Federated States of Micronesia today.  When the FSM Constitution went into effect on May 10, 1979, all Trust Territory statutes except those inconsistent with the Constitution became laws of governments within the Federated States of Micronesia by virtue of the transition clause.2  In re Otokichy, 1 FSM Intrm. 183, 187 (App. 1982).  Statutes which related to matters that now fall within the legislative powers of the national government became national law.  Lonno v. Trust Territory, 1 FSM Intrm. 53, 72 (Kos. 1982).  The other Trust Territory statutes which remained in effect presumably became law of each of the states at the same time.3

     Obviously, laws enacted in Trust Territory days were not designed with an eye toward distinctions between state and national powers.4  Determinations as to whether a statute is a state or national law must be made on a statute-by-statute, or a section-by-section, basis.

     An effort to sort out state from national laws was undertaken on behalf of the national government through the codification of national law, authorized by an appropriation of the First Congress of the Federated States of Micronesia.  The first FSM Code was published in 1982.  The introduction, at page i of volume one, identifies the code as the "first codification of the laws having national application in the Federated States of Micronesia."  The introduction also notes that the committee removed from the code "legislation that is exclusively within the jurisdiction of the States of the Federated States of Micronesia under the Constitution."  Id.

     Congress adopted the FSM Code in specific legislation.  See Pub. L. No. 2-48, reprinted at volume one, page v of the code.  Section 1 of that legislation says that it "is intended to effect a codification of the general and permanent National laws of the Federated States of Micronesia."  Inclusion of the wrongful death provisions in the FSM Code suggests that Congress may have viewed these provisions as national law.

     That conclusion is by no means inescapable however.  When the code was

[3 FSM Intrm. 356]

adopted, most states had not yet established their own Court systems.  Pending establishment of a state court within a particular state, the Trust Territory High Court remained active within that state, handling cases outside the jurisdiction of the FSM Supreme Court.  See In re Nahnsen, 1 FSM Intrm. 97, 110 (Pon. 1982); In re Iriarte (II), 1 FSM Intrm. 255, 269 (Pon. 1983).

     The introduction to the code, at page i, notes that "legislation over which the Trust Territory High Court may retain jurisdictional authority in the interim pending the establishment of State courts" is included within the code.  This Court has specifically recognized that some parts of the code apply only in cases presided over by the Trust Territory High Court pursuant to that transitional role.  In re Raitoun, 1 FSM Intrm. 561, 564 (App. 1984); Rauzi v. FSM, 2 FSM Intrm. 8, 14 (Pon. 1985).

     Only laws enacted by the FSM Congress or the Interim Congress and the Federated States of Micronesia were "readopted and reenacted as positive law" when the code was published.  Pub. L. No. 2-48, 3; see also FSM v. George, 2 FSM Intrm. 88, 91 (Kos. 1985).  The wrongful death provisions were not among those laws.5

     Thus, the code does not indicate conclusively whether the wrongful death provisions are included as an instruction to this Court to apply them as part of the body of national law, or merely because Congress recognized that the Trust Territory High Court would be required to refer to those provisions in exercising its transitional jurisdiction pending establishment of the state courts.

     We therefore go beyond the code, to the Constitution itself, to determine whether the wrongful death provisions constitute state or national law.

     2.   The Constitution - The Constitution says nothing directly about power to enact laws concerning tort liability.  That is itself a strong indication that the framers intended basic lawmaking power in tort law to lie with the states.

[3 FSM Intrm. 357]

     Article VIII, section 2 of the Constitution states that:  "A power not expressly delegated to the national government or prohibited to the states is a state power."  Thus, if a power is not mentioned in the Constitution, the likelihood is that the framers intended it to be a state power.  The only unexpressed powers which may be exercised by the national government are powers of "such an indisputably national character as to be beyond the power of a state to control." FSM Const. art. VIII, 1.  There appears no basis for considering lawmaking concerning torts in general, or wrongful death actions in particular, as "beyond the power of the state to control."

     Constitutional history strengthens this inference that liability for torts is primarily a matter of state law.  Committee proposal 21, submitted by the Committee on Governmental Functions, was the principal constitutional convention proposal upon which the constitutional provisions concerning division of powers between national and state governments are based.  That report pointed out that "the bulk of the power and legislative authority of government resides in\the states."  The law of torts is specifically identified as falling within the "basic lawmaking power" of the states.  SCREP No. 33, 2 J. of Micro. Con. Con. 813, 814.

     There is yet another factor pointing toward the same conclusion.  This Court has previously recognized that the framers of the Constitution of the Federated States of Micronesia borrowed numerous concepts from the United States Constitution.  Lonno v. Trust Territory (I), 1 FSM Intrm. 53, 69-70 (Kos. 1982).

     This is true concerning allocation of power between state and national governments.  Both Constitutions enumerate the powers that may be exercised by the national government and say generally that unmentioned powers are to be vested in the states.6  The powers expressly granted to the two national governments by these Constitutions also are parallel.  Both Constitutions place in their respective national governments power to impose taxes;7 to provide for the national defense;8 to ratify treaties;9 to regulate immigration and citizenship,10 currency,11 foreign commerce,12 and

[3 FSM Intrm. 358]

navigation;13 to provide for a postal system,14 and for patents and copyrights;15 and to regulate bankruptcy and insolvency.16

     In addition to those powers expressly granted to the United States federal government in that Constitution, the Constitution of the Federated States of Micronesia confirms that the national government here is intended to have certain additional powers which in practice have been exercised through the years by the United States government pursuant to the general welfare17 or interstate commerce18 clauses of the United States Constitution.  Thus, the national government is given the power to promote education and health and to establish systems of social security and welfare.19  Finally, the Constitution of the Federated States of Micronesia places in the national government certain powers, including the power to establish usury limits on major loans,20 and the power to define major crimes and prescribe penalties,21 which are not granted to the United States federal government.

     Although there are significant differences between the two Constitutions as to allocation of state and national powers, there is "substantial similarity of approach," and the "pattern of provisions" is similar.  See Suldan v. FSM (II), 1 FSM Intrm. 339, 345, 348 (Pon. 1983).

     Therefore, to determine where lawmaking powers concerning torts lie, we may look for guidance to decisions of United States courts construing the

[3 FSM Intrm. 359]

United States Constitution.  Suldan (II); Alaphonso v. FSM, 1 FSM Intrm. 209 (App. 1982); Afituk v. FSM, 2 FSM Intrm. 260, 263 (Truk 1986).

     Under United States law, enactment of legislation concerning torts is within the mission of state legislatures, not the national congress.  "Congress has no power to declare substantive rules of common law applicable in a State whether they be local in their nature or `general,' be they commercial law or a part of the law of torts."  Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 822, 82 L. Ed. 1188, 1194 (1938).

     Thus, the Constitution of the Federated States of Micronesia, read against the background of constitutional history here and practice established under comparable provisions of the United States Constitution, leaves no doubt that primary lawmaking powers for the field of torts lie with the states, not with the national government.

     3.  Statutory interpretation - This is not to say, of course, that the national government has no power whatever to legislate concerning the law of torts.  The report of the constitutional convention's Committee on Government Functions specifically recognized that the government must necessarily have certain "implied" or "incidental" powers in order to carry out those powers expressly granted to it.  SCREP No. 33, supra, at 815.  The national government therefore may have an implied power to regulate tort law as part of the exercise of other general powers, for example, the powers relating to interstate commerce, shipping, or promotion of health and education.

     However, there is no indication within the wrongful death provisions, 6 F.S.M.C. 501-03, that they are in any way based upon, limited by, or linked to, the exercise of any power delegated to the national government.  If the Court were to conclude that the wrongful death provisions are included within the FSM Code as national law, serious problems of constitutionality would be presented.  A cardinal principle of statutory interpretation is to avoid interpretations which might bring into question the constitutionality of the statute.  In re Otokichy, 1 FSM Intrm. 183, 190 (App. 1982); Truk v. Hartman, 1 FSM Intrm. 174, 181 (Truk 1982); Tosie v. Tosie, 1 FSM Intrm. 149, 157 (Kos. 1982).

     This Court therefore concludes that the wrongful death provisions, including the $100,000 statutory ceiling on wrongful death claims, are part of the law of Pohnpei and the other states.  They are not national law.

B.     Jurisdiction
     1.  General - Under the Constitution, "allocation of judicial authority is made on the basis of jurisdiction, generally without regard to whether state, or national, `powers' will be at issue."  In re Nahnsen, 1 FSM Intrm. 97, 108 (Pon. 1982). Thus, the FSM Supreme Court must often exercise

[3 FSM Intrm. 360]

jurisdiction over disputes where state or local issues are involved, and frequently will be required to resolve such issues.  Ponape Chamber of Commerce v. Nett Municipal Gov't, 1 FSM Intrm. 389 (Pon. 1984).  As a   general proposition this Court is obliged to exercise its jurisdiction and may not abstain from deciding simply on the basis that unsettled issues of state law are presented.  Panuelo v. Pohnpei (I), 2 FSM Intrm. 150, 155-56 (Pon. 1986).22

     The principles explained above are parallel to the guidelines employed in United States courts facing similar issues.23  This is appropriate because

[3 FSM Intrm. 361]

the pertinent provisions of the two Constitutions are similar.

     2.  Certification - However, while our Constitution is in great part based upon the United States Constitution, there are significant differences.  Tammow v. FSM, 2 FSM Intrm. 53, 57 (App. 1985).  "Where this is so, the difference presumably represents a conscious effort by the framers to select a road other than that paved by the United States Constitution."  FSM Dev. Bank v. Estate of Nanpei, 2 FSM Intrm. 217, 219 n.1 (Pon. 1986).

     One difference is the provision in the FSM Constitution calling for state court certification of national law issues to the FSM Supreme Court appellate division for decision.  FSM Const. art. XI, 8.  Based upon that provision, and more general principles of federalism, including an obligation to promote judicial harmony, this Court has found an inherent power of its own to certify state law issues to state courts.  Panuelo v. Pohnpei (II), 2 FSM Intrm 244, 246 (Pon. 1986); Hadley v. Kolonia Town, 3 FSM Intrm. 101 (Pon. 1987). See also Dabchur v. Yap, 3 FSM Intrm. 203 (Yap. S. Ct. App. 1987).

          a.     The standard - In contrast to those previous cases in which certification occurred, the plaintiffs in this case vigorously oppose defendants' request for certification.  Presumably, where there is such opposition, this Court normally should look to the tests traditionally employed by federal courts in the United States to determine whether they should abstain in favor of state courts.

     However, the approach should be different when a state is a defendant in a monetary damages case.  This is because of another major difference between the FSM Constitution and that of the United States.  There is here no clause comparable to the eleventh amendment of the United States Constitution, which generally bars citizens from using United States federal courts to seek monetary damages against the states.

This dramatic distinction strongly suggests that, while the framers of the Constitution did not consider it necessary to prevent all lawsuits against the states for monetary damages from coming here, this Court should be highly sensitive to the stresses which couldbe placed upon the good will of the states by subjecting them to such suits.  Thus, this Court may need to develop an especially liberal policy for abstention in suits against a state for monetary relief.  As a beginning step in that direction, I submit that 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 judicially harmony, and respect for state sovereignty, would be substantially outweighed by delay, harm or injustice.

[3 FSM Intrm. 362]

Panuelo (I), 2 FSM Intrm. at 156.

     Thus, where a state is a defendant in a case in which monetary damages are sought, there are powerful considerations of federalism and state sovereignty to which this Court should be sensitive.  If the state requests certification to the state court of unresolved and significant issues of state law which must be decided in the case, presumptively the request should be granted.

     The burden of rebutting the presumption then will be on the party opposing certification.  That burden may be satisfied by establishing that the disadvantages which would flow from certification would "substantially outweigh" the advantages.  Panuelo (I), 2 FSM Intrm. at 156.

       b.     The standards applied
          (1)  Significant issues - The issues tendered here are of  profound importance to the developing jurisprudence of Pohnpei, for their resolution will form the foundation upon which the tort law of Pohnpei, especially the law concerning wrongful death claims, will be built.  These are the kinds of issues for which certification is appropriate if the other requirements are met.

          (2)  Issues of law - Where there is diversity of citizenship, parties are constitutionally entitled to invoke the jurisdiction of this Court.  FSM Const. art. XI, 6(b).  That entitlement is in no way abridged when this Court certifies a legal issue to the highest state court.  As
already noted, supra, note 22, in addressing a state law issue, this Court must
attempt to discern and apply the rule which would be applied by the highest state court.  Thus, a litigant can hardly complain when this Court asks the highest state court to tell us directly what the state law is.

     On the other hand, if litigants have any right to demand that this Court, exercise its jurisdiction under article XI, section 6 of the Constitution, surely they may justly insist that we make the necessary factual determinations, and apply the law to the facts.  Plaintiffs here have opposed certification itself.  They certainly have not agreed to a transfer of the entire case.  Accordingly, questions which require application of law to facts may not be certified.

     One of the questions tendered is "Whether the $100,000.00 limitation in 6 TTC 203 applies to the facts of this case."  This question is not certified for it would require factual determinations as to what the facts are, and how they relate to the law.  This is not a sufficiently "clean" question of law and may not be certified.

          (3)  Unsettled law - Certification is a rather cumbersome procedure which will typically cause delay and increase the cost of litigation.  The procedure should be employed only for unsettled legal issues,

[3 FSM Intrm. 363]

those for which there plainly is no adequate guidance by way of constitutional or statutory provision, or court decision.

     Application of that standard furnishes another reason why the issue referred to above may not be certified.  A conclusion already reached in this opinion is that the $100,000 limitation is a part of state law.  There is no exception in the statute, no reason to doubt its application in this case, and no indication that the law on this point is unsettled.

     Similar considerations apply to the requests concerning sovereign immunity. Some two years ago, the State of Pohnpei filed a motion asking this Court to declare that the state is immune by virtue of its sovereignty from tort claims against it.  In response to that motion, the Court recognized the sovereignty of the state but held that, in absence of any constitutional or statutory provision establishing immunity from tort claims, courts themselves lack authority to establish sovereign immunity to general. tort claims through judicial action. Panuelo v. Pohnpei (I), 2 FSM Intrm. 150 (Pon. 1986).

     Although Panuelo (I) represents this Court's view as to what the Pohnpei State Supreme Court appellate division would have decided after careful consideration of the sovereign immunity issue, Pohnpei officials, including the state courts, remain free to establish a different rule in the future.

     However, there is no current indication that Pohnpei law concerning sovereign immunity is unsettled.  Two years have elapsed since the Panuelo (I) decision. That opinion was surely brought to the attention of the Pohnpei State Legislature. Absence of any new legislation on the point since then suggests that the decision was not starkly at odds with the Pohnpeian concept of justice.  The Court notes also that there have been no contrary rulings by the Pohnpei State Supreme Court.

     Thus, the tendered questions concerning sovereign immunity will not be certified.

               (4)  Issue in controversy - Certification may be used to obtain state court decisions only for issues as to which there is an actual case or controversy.  It is not a device to circumvent constitutional standing requirements or to obtain advisory opinions on academic issues.

     This Court, then, may not certify an issue just because it is interesting, or even because the Court believes jurisprudence would be improved if the issue were resolved. only issues squarely raised in  litigation before this Court may be certified.

     The questions tendered by the defendants concerning constitutionality of the $100,000 limitation on wrongful death claims do not meet this  requirement. Those questions relate to due process and equal protection provisions of the Pohnpei Constitution.  Plaintiffs contend only that the

[3 FSM Intrm. 364]

$100,000 ceiling violates due process and equal protection guarantees under the FSM Constitution.  Defendants' questions are not raised by plaintiffs, and are not at issue in this litigation.  They may not be certified because they are not before the Court.

          c.  Qualifying issues - After deletion of the questions referred to above, the remaining questions appear to meet the prima facie standards for certification. Unless it can be shown that countervailing considerations such as delay, harm or injustice substantially outweigh the benefits of certification, these questions should be certified:

1.     Whether the $100,000.00 limit contained in 6TTC should be adjusted to compensate for inflation.

2.     Whether the recovery limit should be appliedto each plaintiff's claim rather than the aggregate limit.

3.     Whether the pecuniary injury recovery shouldbe construed to include recovery for loss of consortium,   society, training, nurture, education and guidance.
 
4.     Whether the recoverable damages suffered by minor plaintiffs should be limited to their age of minority.

5.     Whether Plaintiffs should be entitled torecover for their mental pain and suffering.

          d.  Disadvantages - The primary disadvantage pointed to by the plaintiffs here is delay.  Almost inevitably some delay will be occasioned in any case by certification or abstention.  This case is no exception.  The litigation was begun more than a year ago, on April 21, 1987, and is currently scheduled to go to trial on May 31.  Almost certainly then, if issues are certified to the Pohnpei State Supreme Court, the trial date will have to be set back.

     On the other hand, the matter of delay should not be overstated.  There is no indication that the defendants are intentionally using the certification request as a ploy to delay the litigation.  In fact, plaintiffs themselves have sought pretrial determination of many of these issues through their motion for partial summary judgment.  Resolution of that motion might have required postponement of the trial in any event.

     Moreover, some court must decide these issues in order to resolve this litigation.  The issues are difficult and important.  Nobody could be expected to decide them overnight.  There is no guarantee that this Court could resolve them more rapidly than can the Pohnpei State Supreme Court, which has responded cooperatively and diligently to previous certifications of issues.

[3 FSM Intrm. 365]

     Finally, there has been no showing that any delay inherent in certification would cause substantial or irreparable harm to the plaintiffs.  Plaintiffs allude generally to loss of support and income which will flow from delay, but no specifics have been provided and there has been no showing that the damage would be of such magnitude as to overcome the benefits of certification.

     The other objection raised by plaintiffs is that certification would break the continuity of the litigation and confuse matters.  This factor, even when coupled with possible delay and added cost, is not sufficient to outweigh the benefit of certifying the five identified issues.

Conclusion
     The five identified issues will be certified.  This Court will consider itself bound by the decision of the Pohnpei State Supreme court appellate division in response to the questions.

 

Footnotes:

1. The language in both 6 TTC 203(1) and 6 F.S.M.C. 503(1) is as follows:  "(1) The trial court may award such damages, not exceeding the sum of $100,000, as it may think proportioned to the pecuniary injury resulting from such death, to the persons, respectively, for whose benefit the action was brought; provided, however, that where the decedent was a child, and where the plaintiff in the suit brought under this chapter is the parent of such child, or one who stands in the place of a parent pursuant to customary law, such damages shall include his mental pain and suffering for the loss of such child, without regard to provable pecuniary damages."

2. The Constitution's transition clause says, in pertinent part:  "A statute of the Trust Territory continues in effect except to the extent it is inconsistent with this Constitution, or is amended or repealed."  FSM Const. art. XV, 1.

3. For a different analysis, reaching essentially the same result, see Pohnpei v. Mack, 3 FSM Intrm. 45 (Pon. S. Ct. Tr. 1987).

4. Some Trust Territory statutes were so tailored for Trust Territory government structures that they were rendered outmoded, effectively repealed, by implementation of the Constitution.  See, e.g., Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 73 n.5 (Pon. 1985) (discussing 18 F.S.M.C. 311-35).

5. The original Trust Territory wrongful death statute, issued by a Trust Territory administrative official, appeared at section 25 of the Trust Territory Code (1952 ed.).  That statute set a recovery limit of $10,000, employing the same language regarding "pecuniary injuries" as is in the current statute.  2 TTC 25(c) (1952 ed.).  The 1966 edition of the Trust Territory Code included the same statute, unamended.  In 1967, the Congress of Micronesia raised the recovery limit to $100,000.  Pub. L. No. 3-4, (1st Cong. Micro., 3d Reg. Sess. 1967).  See annotation to 6 TTC 203(1) (1970 ed.). The statute was again amended in 1972, by Pub. L. No. 4C-36, (4th Cong. Micro., 2d Reg. Sess. 1972), when the Congress of Micronesia added the provision related to recovery for the death of a child.  See annotation to 6 TTC 203(1) (1975 Supp).  There have been no further amendments to the statute.

6. Compare FSM Const. art. VIII, 1 and 2, with U.S. Const. amend. X.

7. FSM Const. art. IX, 2(d) and (e); U.S. Const. art. I, 8.

8. FSM Const. art. IX, 2(a); U.S. Const. art. I, 8.

9. FSM Const. art. IX, 2(b); U.S. Const. art. II, 2.

10. FSM Const. art. IX, 2(c); U.S. Const. art. I, 8 and 9.

11. FSM Const. art. IX, 2(f); U.S. Const. art. I, 8.

12. FSM Const. art. IX, 2(g); U.S. Const. art. I, 8.
 
13. FSM Const. art. IX, 2(h); U.S. Const. art. I, 8.

14. FSM Const. art. IX, 2(j); U.S. Const. art. 1, 8.

15. FSM Const. art. IX, 2(g); U.S. Const. art. I, 8.

16. FSM Const. art. IX, 2(g); U.S. Const. art. I, 8.

17. U.S. Const. art. I, 8, cl. 1; Helvering v. Davis, 301 U.S. 619, 645, 57 S. Ct. 904, 910, 81 L. Ed. 1307, 1317 (1937) ("When money is spent to promote the general welfare, the concept of welfare or the opposite is shaped by Congress, not the states.").

18. U.S. Const. art. I, 8, cl. 3; NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 36-37, 57 S. Ct. 615, 624, 81 L. Ed. 893, 911 (1937):  "The fundamental principle is that the power to regulate commerce is the power to enact `all appropriate legislation' for its `protection or advancement'; to adopt measures `to promote its growth and insure its safety'; `to foster, protect, control and restrain.'"  (citations omitted)

19. FSM Const. art. IX, 3(c) and (d).

20. FSM Const. art. IX, 2(i).

21.  FSM Const. art. IX, 2(p).

22.  Counsel for the state contends, and a review of the cases confirms, that the Court has often decided matters of tort law without stating explicitly that state rather than national law controls.  See, e.g., Ray v. Electrical Contracting Corp., 2 FSM Intrm. 21 (App. 1985); Luda v. Maeda Road Constr. Co., 2 FSM Intrm. 107 (Pon. 1985).

     There, of course, has been acknowledgement that state law controls in the resolution of contract and tort issues.  Semens v. Continental Air Lines, Inc., 2 FSM Intrm. 131, 137 (Pon. 1985); see also In re Nahnsen.  Yet there is a dearth of state law guidance.  The Court often has found it necessary to decide state law issues without assistance of prior state court decisions.

     A statement of what the Court perceives itself to be doing in such cases may be helpful to the development of our jurisprudence.  When this Court, in the exercise of its jurisdiction, decides a matter of state law, the Court should recognize the predominance of the state role in this area.  Our goal should be to apply the law the same way the highest state court would.  See Erie R.R. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); C. Wright, Law of Federal Courts 58 (4th ed. 1983).

     In a particular case decided by this Court applying state law, this Court's decision is final.  The doctrine of res judicata applies.  However, in a subsequent case the highest state court could decide the state law issue differently.  If that occurs, the state court decision is controlling and this Court should apply the state court rule in future cases.
 
23. See, e.g., Meredith v. City of Winter Haven, 320 U.S. 228, 234, 64 S. Ct. 7, 11, 88 L. Ed. 9, 13 (1943)("the difficulties of ascertaining what the state courts may hereafter determine the state law to be do not in themselves afford a sufficient ground for a federal court to decline to exercise its jurisdiction to decide a case which is properly brought to it for decision."); McNeese v. Board of Educ., 373 U.S. 668, 673 n.5, 83 S. Ct. 1433, 1436 n.5, 10 L. Ed. 2d 622, 626 n.5 (1963) ("where...federal jurisdiction ... entails a responsibility to adjudicate the claim on the basis of state law, viz., diversity of citizenship....difficulties and perplexities of state law are no reason for referral of the problem to the state court.... "); Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 816, 96 S. Ct. 1236, 1245, 47 L. Ed. 2d 483, 497 (1976)("the mere potential for conflict in the results of adjudications, does not, without more, warrant staying exercise of federal jurisdiction").