THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Bernard's Retail Store and Wholesale v. Johnny,
4 FSM Intrm. 33 (App. 1989)

[4 FSM Intrm. 33]

BERNARD'S RETAIL STORE AND WHOLESALE,
Plaintiff,

vs.

OSCAR JOHNNY,
Defendant.

FSM CERT. NO. P-1988-1

RESPONSE TO CERTIFIED QUESTION

Before Edward C. King, Chief Justice
and
Richard H. Benson, Associate Justice
February 24, 1989

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HEADNOTES
Constitutional Law - Certification of Issues; Federalism - Abstention and Certification
     Article XI, section 8 of the Constitution, providing for state court certification of issues of national law, gives the FSM Supreme Court appellate division another tool to oversee the development of national law jurisprudence, but also provides the option of remand so that the state court may address issues of national law.  Bernard's Retail Store & Wholesale v. Johnny, 4 FSM Intrm. 33, 35 (App. 1989).

Constitutional Law - Certification of Issues
     Under normal circumstances, the decision as to whether to decide or remand a question certified under article XI, section 8 of the Constitution will be made only by the constitutionally appointed justices of the FSM Supreme Court, without convening a third judge and without oral argument.  Bernard's Retail Store & Wholesale v. Johnny, 4 FSM Intrm. 33, 35 (App. 1989).

Constitutional Law - Certification of Issues
     Unless definite articulable reasons to the contrary appear, questions

[4 FSM Intrm. 34]

certified under article XI, section 8 of the Constitution normally will be remanded to the State Court. Bernard's Retail Store & Wholesale v. Johnny, 4 FSM Intrm. 33, 35 (App. 1989).

Constitutional Law - Certification of Issues; Federalism - Abstention and Certification
     Where the issues certified to the FSM Supreme Court by a state court under article XI, section 8 of the FSM Constitution are narrowly framed and not capable of varying solutions, and it appears that a greater service may be provided by simply answering the questions posed by the state court, the FSM Supreme Court will not remand the certified questions to the state court.  Bernard's Retail Store & Wholesale v. Johnny, 4 FSM Intrm. 33, 35 (App. 1989).

Statutes; Usury
     Although FSM Public Law 2-33, regarding usury, did not appear in the 1982 codification of FSM statutes, it remained effective as did every other law which took effect after October 1, 1981 and it is currently in effect as codified in the 1987 supplement to the FSM Code at 34 F.S.M.C. 201-207. Bernard's Retail Store & Wholesale v. Johnny, 4 FSM Intrm. 33, 36 (App. 1989).

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PER CURIAM:
     On its own motion, the trial division of the Pohnpei Supreme Court (Johnny, J.) has certified to this Court issues concerning the effect of codification of Federated States of Micronesia statutory law pursuant to Public Law No. 2-48, upon the usury law, 34 F.S.M.C. 201 et seq.

PROCEDURAL CONSIDERATIONS
     Because this is the first certification of question to this Court under article XI, section 8 of the Constitution, a few procedural observations are in order.

     At the outset, it is to be noted that the constitutional provisions for certification are different from those for appeal.  The Constitution says that, "At least 3 justices shall hear and decide appeals."  FSM Const. art. XI, 2.  Questions are certified, on the other hand, simply to the "appellate division of the Supreme Court."  FSM Const. art. XI, 8.  The Judiciary Act of 1979 acknowledges what is in fact current reality, that is, this Court may consist of fewer than three justices.  "The Supreme Court shall consist of a Chief Justice and one other Associate Justice and such others may be prescribed by law."  4 F.S.M.C. 103 (emphasis added).

     Moreover, the procedural ramifications of certification differ considerably from those of appeals.  A primary difference is that an appeal typically occurs only after a final judgment, when proceedings before the court appealed from have run their full course.  In contrast, certification will typically occur during the proceedings before the certifying court.  Thus, there is a greater need for rapid response to a certification.

[4 FSM Intrm. 35]

     Moreover, while as a general proposition an appeal to this Court divests the court appealed from of jurisdiction over the litigation, the same result does not flow from certification.  The Constitution specifically contemplates that this Court's appellate division may decide not to resolve the certified issue but instead may remand the case for further proceedings.  FSM Const. art. XI, 8.  The mandatory word "shall" in article XI, section 8, raises some question as to the authority of a state court to decide a substantial question requiring the interpretation of the Constitution, national law or a treaty, unless there has been prior certification of the question.  Yet, there can be no doubt as to the authority of state courts to address these issues upon remand under article XI, section 8.  Cf. Bank of Guam v. Semes, 3 FSM Intrm. 370, 378 (Pon. 1988).

     There should be many instances when this Court will deem it reasonable to remand the certified issue for state court decision.  "The interest of developing a dynamic and well reasoned Micronesian body of jurisprudence is best served when all courts have the benefit of one another's opinions to consider and question."  Federated Shipping Co. v. Ponape Transfer & Storage, 4  FSM Intrm. 3, 13 (Pon. 1989).

     From the above factors we conclude that there is a need for rapid response to article XI, section 8 certifications, and that the Constitution and the Judiciary Act of 1979 provide the necessary flexibility to enable this Court to respond quickly.  We interpret article XI, section 8, as giving state courts the opportunity to be heard on many issues of national law while at the same time giving this Court's appellate division another tool, in addition to conventional appellate powers, to oversee the development of national law jurisprudence.

     We contemplate that this Court's normal procedure for article XI, section 8 certifications will be to give each party a short time to file a brief memorandum addressing only the issue of whether the certified question should be remanded to the state court.  Under normal circumstances, this decision as to whether to decide or to remand the question will be made only by the constitutionally appointed justices of this Court, without convening a third judge, and without an oral argument. Unless definite articulable reasons to the contrary appear, we anticipate that certified questions normally will be remanded to the state court.

     In this particular case, the parties failed to respond when given an opportunity to file briefs.  Under the procedure outlined above, we normally remand the certified questions to the state court for decision.  Here, however, we have already retained this case longer than contemplated by the procedure outlined in this opinion; the issues posed are narrowly framed and are not capable of varying resolutions; and it appears that a greater service may be provided in this particular case by simply answering the questions posed by the state court.

[4 FSM Intrm. 36]

QUESTIONS CERTIFIED
     The three certified questions, and the responses of this court, follow.

     1.  Which statutory provision concerning usury was in effect following adoption of the FSM Code by P.L. No. 2-48?

     The Congress recognized that the codification of FSM laws would not include all statutes in effect when the Code was distributed.  This of course is because publication and printing procedures consume a considerable period of time.  While the codification was being prepared, Congress was passing other laws.  Congress took care, however, to assure that laws enacted after the Code went to press would remain valid despite the fact that they would not appear in the Code.

     The statute passed on May 24, 1982 to codify the laws of the Federated States of Micronesia contained the following provision: "Nothing in this act affects the validity of ... laws enacted after October 1, 1981, by the Congress of the Federated States of Micronesia."  Pub. L. No. 2-48, 5, reprinted at page v, volume 1 of the FSM Code.

     Thus, the validity of public law 2-33, which repealed the prior usury statute, Congress of Micronesia public law 1-117, and which took effect on December 31, 1981, was not affected by the subsequent codification.  Pub. L. No. 2-33 (2d Cong., 2d Reg. Sess.).  Although public law 2-33 did not appear in the codification, it remained effective as did every other law which took effect after October 1, 1981.

     Accordingly, the answer to question 1 is that public law 2-33 was the usury law in effect within the Federated States of Micronesia following adoption of the FSM Code by public law 2-48.  This is now codified in the 1987 supplement at 34 F.S.M.C. 201-207.

     2.  Which statutory provision is presently in effect?

     The language set forth at 34 F.S.M.C. 201-207 (1987 Supp.) is in effect.

     3.  If another provision has come into effect, what date did such provision become effective?

     No other provision or amendment of the usury law has come into effect after enactment of public law 2-33, as codified at 34 F.S.M.C. 201-207 (1987 Supp.).

      So ordered the 24th day of February, 1989.

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