THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Hawk v. Pohnpei,
4 FSM Intrm. 85 (App. 1989)

[4 FSM Intrm. 85]

GEORGE HAWK,
Appellant,

vs.

STATE OF POHNPEI,
Appellee.

FSM APPEAL NO. P2-1989
[affirming Hawk v. Pohnpei,
Pon. St. Sup. Ct. App. No.
10-86; 2 Pon. S. Ct. R. 562 (1988)]

Argued:  June 2, 1989
Decided:  June 28, 1989

Before:
                        Hon. Edward C. King, Chief Justice, FSM Supreme Court
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. C. Guy Powles, Temporary Associate Justice, FSM Supreme Court*

*Former Judge, Western Samoa, on this Court by special designation for this case.

APPEARANCES:
For the Appellant:    R. Barrie Michelsen
                                   Attorney at Law
                                   Ramp and Michelsen
                                   Pohnpei, FM  96941

[4 FSM Intrm. 86]

For the Appellee:     Randy Boyer
                                   State Attorney
                                   Pohnpei State
                                   Pohnpei, FM  96941

*    *    *    *

HEADNOTES

Federalism - National/State Powers; Jurisdiction - Diversity
     No jurisdiction is conferred on state courts by article XI, section 6(b) of the FSM Constitution, but neither does the diversity jurisdiction of section 6(b) preclude state courts from acting under state law, unless or until a party to the litigation invokes national court jurisdiction.  Hawk v. Pohnpei, 4 FSM Intrm. 85, 89 (App. 1989).

Criminal Law and Procedure
     The function of the criminal law is to declare what conduct a society considers to be unacceptable and worthy of sanctions at the instigation of government on the society's behalf; the criminal law is thus the principal vehicle for the expression of the people's standards of right and wrong.  Hawk v. Pohnpei, 4 FSM Intrm. 85, 91 (App. 1989).

Criminal Law and Procedure; Federalism - National/State Powers
     In the course of the formation of the FSM, the allocation of responsibilities between states and nation was such that the impact of the national courts in criminal matters was to be in the area of major crimes and as the ultimate arbiter of human rights issues.  Hawk v. Pohnpei, 4 FSM Intrm. 85, 93 (App. 1989).

Criminal Law and Procedure; Jurisdiction - Diversity
     It is consistent with the broad plan of the framers of the FSM Constitution that the Constitution would not require that diversity jurisdiction be available in criminal proceedings. Hawk v. Pohnpei, 4 FSM Intrm. 85, 94 (App. 1989).

Jurisdiction - Diversity
     Although the purpose of diversity jurisdiction is to provide parties who are not citizens of the state where a matter arises with a national forum for which the federation of states is responsible, the need to safeguard the legitimate rights of a non-citizen in a state forum must be balanced against the understandable concern of the society of that state to control standards of behavior in accordance with its own set of values.  Hawk v. Pohnpei, 4 FSM Intrm. 85, 94 (App. 1989).

Criminal Law and Procedure; Jurisdiction - Diversity
     The diversity jurisdiction provisions of article XI, section 6(b) of the FSM Constitution do not apply to criminal proceedings.  Hawk v. Pohnpei, 4 FSM Intrm. 85, 94 (App. 1989).

*    *    *    *
[4 FSM Intrm. 87]
 
COURT'S OPINION
C. GUY POWLES, Temporary Associate Justice:
     This is an appeal from the Pohnpei Supreme Court appellate division.  This case comes to us under article XI, section 7 of the Constitution, as one requiring the interpretation of the FSM Constitution.

     The appellate division of the Pohnpei State Supreme Court had affirmed the decision of that court's trial division that it possessed jurisdiction to try the appellant, George Hawk, for the offense of statutory rape in violation of the Pohnpei Crimes Act of 1985.  Hawk v. Pohnpei, 3 FSM Intrm. 543, 2 Pon. S. Ct. R. 562 (Pon. S. Ct. App. 1988), aff'g 3 FSM Intrm. 17, 2 Pon. S. Ct. R. 164 (Pon. S. Ct. Tr. 1986).  Mr. Hawk's objection to the jurisdiction of the State Court lies in the wording of article XI, section 6(b) of the FSM Constitution.  He says that, because he is a citizen of Truk, he has the constitutional right to invoke the "diversity" jurisdiction of the Supreme Court of the FSM.  According to him, when the State of Pohnpei prosecuted him for the offense, it created a "dispute between a state and a citizen of another state" thereby conferring jurisdiction of the national court in terms of article XI, section 6(b).

     The facts are not in dispute.  Hawk admits that on May 6, 1986, in Pohnpei near Kolonia, he had sexual intercourse with a thirteen-year-old girl.  His defense of reasonable belief that she was at least fifteen was rejected by the trial court and he was convicted and sentenced on June 18, 1986.

     In an amended motion for reduction of sentenced filed on August 27, 1986, Hawk mentioned for the first time that he was "from Truk" and it was not until new counsel filed documents on November 25, 1987, that Hawk's citizenship was alleged to be relevant.

     We note that, despite absence of proof, the State of Pohnpei does not contest in this Court Hawk's claim to Truk citizenship.  The appellate division of the Supreme Court of Pohnpei proceeded on the assumption that the claim was well founded and this Court will do likewise.

     The State of Pohnpei does contend, however, that the appellant has waived any right to rely on such citizenship because of his delay in raising it as a jurisdictional issue.  As will be shown, this Court's view of jurisdictional issue relieves us of the necessity to rule on the State's waiver argument.

     We should also record at the outset that, in this case, there is no specific allegation of failure on the part of the State to accord the appellant a fair trial.

     This case requires us to consider what is meant by the so-called "diversity" jurisdiction and whether such jurisdiction is applicable in criminal cases in the Federated States of Micronesia.

[4 FSM Intrm. 88]

     We conclude that it is not applicable, and dismiss the appeal.  We agree with the appellate division of the Pohnpei State Supreme Court that the jurisdiction of the trial division should be affirmed, but our reasoning differs from that of the State appellate division.

I.  Diversity Jurisdiction
     As a federal system of government, the Federated States of Micronesia has followed the United States in making special provision for matters arising between parties who are not of the same jurisdiction.

     As the name implies, diversity jurisdiction is concerned with a diversity of parties - where the parties are of, or from, different states.  The parties may be citizens or they may be governments.  The diversity concept may apply to citizens or states of the federation, or to foreign citizens or governments involved within the federation.

     Where there exist such diversity of parties, the concept may be employed to enable a party to have the matter dealt with in a federal or national jurisdiction rather than in the jurisdiction of the state in which the matter arose.  The origin of the concept lies in the apprehension of such a party that a fair hearing may not be obtained the courts  of the state in relation to which the party is an 'outsider.'

     Whether diversity jurisdiction should be conferred on a federal or a national court, how it should be done and in what circumstances, depends on the overall constitutional plan adopted by the framers of the federal charter.  We begin by looking at the diversity provisions of the FSM Constitution.
 
     There are two types of diversity provision in article XI, section 6 of the Constitution.1  In disputes between states themselves or in which the national government is a party (except where an interest in land is at issue), the trial division of the national Supreme Court has original and exclusive jurisdiction. FSM Const. art. XI, 6(a).  Secondly, in disputes -

[4 FSM Intrm. 89]

     a.  between a state and a citizen of another state,

     b.  between citizens of different states, or

     c.  between a state or a citizen thereof, and foreign state, citizen or subject,

     - the national courts, including the trial division of the FSM Supreme Court, have concurrent original jurisdiction.  FSM Const. art. XI, 6(b).

     This second type of provision establishes the constitutional right to originate proceedings in any national court.  This jurisdiction is concurrent as between national courts.  No jurisdiction is conferred on state courts by article XI, section 6(b) but neither does the diversity jurisdiction of section 6(b) preclude state courts from acting under state law, unless or until a party to the litigation invokes national court jurisdiction.

     We note that the appellate division of the Pohnpei State Supreme Court was of the opinion in this case that the concurrent jurisdiction referred to in article XI, section 6(b) embraced state courts.  For the reasons given here, and later in this judgment, we do not agree.  The reasoning of the trial division of this court on this point in Bank of Guam v. Semes, 3 FSM Intrm. 370 (Pon. 1988) and U Corp. v. Salik, 3 FSM Intrm. 389 (Pon. 1988) is approved.

II.  Does the Diversity Jurisdiction Clause Apply to Criminal Cases?
     The appellant contends that he has a constitutional right to have the state of Pohnpei's criminal proceedings removed into the FSM Supreme Court in its diversity jurisdiction by virtue of article XI, section 6(b).  The argument has some attraction but, in the final analysis, must be rejected.  Having regard to the purpose and history of the diversity jurisdiction clause in the Federated States of Micronesia and the United States, we are satisfied that, in the FSM, it does not apply to criminal cases.

     In interpreting that part of the wording of the clause which, the appellant argues, applies to criminal cases - "disputes between a state and a citizen of another state" - the court begins by looking to see whether the words themselves have a plain meaning.  FSM v. Tipen, 1 FSM Intrm. 79, 82 (Pon. 1982).  For the purpose of the present inquiry, the word "dispute" is ambiguous.  This can be demonstrated by pursuing two lines of argument, each of some persuasive force, which produce opposite results.

     One view, urged by the appellant, is that "dispute" is a "catch-all" term wide enough to encompass all proceedings of a contentious nature.  All court proceedings, whether civil or criminal, involve a dispute of one sort or another. There is no justification, on this view, for limiting the meaning to non-criminal matters.

     The opposing interpretation relies on two possible approaches.  Of theses, the first looks more closely at the nature of criminal proceedings.  The circumstances giving rise to an alleged offense need not have involved a

[4 FSM Intrm. 90]

dispute.  Then, a criminal prosecution brought by the government against an alleged offender does not necessarily constitute a dispute between government and citizen.  Indeed, a high proportion of prosecutions are not disputed.  Where the citizen has transgressed and admits it, the processes of the law take their course, often without opposition from the offender who would not describe his relationship with the government as a dispute.

     By contrast, civil actions are founded in dispute and are not issued unless the parties have failed to agree.  A dispute involves conflict and opposing contentions - which are not inherent in criminal proceedings.  At the point when choice of jurisdiction is being made by a prosecuting authority, it cannot always be said, in common parlance, that a dispute exists.

     The definition of "dispute" in Black's Law Dictionary reflects the notion of assertion and counter-assertion.

     "[A] conflict or controversy; a conflict of claims or rights; ;an assertion of a right, claim or demand on the  one side, met by contrary claims or allegations on the other; the subject of litigation; the matter for which a suit is brought and upon which issue is joined, and in relation to which jurors are called and witnesses are examined.

Black's Law Dictionary 425 (5th ed. 1979) (emphasis added).

     An alternative approach, which would also limit the meaning of "dispute," draws assistance from the language of the surrounding provisions of article XI. Sections 6, 7 and 8 employ "disputes" and "cases."  Wherever "cases" appears in section 7 and 8, it is clear from the context that the term includes criminal proceedings. "Disputes" it not used in these sections.  In section 6, where both terms appear, "disputes between states" [ 6(a)] and "disputes between citizens" [ 6(b)] clearly do not envisage criminal proceedings.  The use of "cases" in section 6 is not decisive.  Considering sections 6, 7 and 8 together, however, it can be said that, having regard to the language pattern and stylistic approach evident throughout those sections, on would have expected the framers of section 6(b) of the Constitution to have spoken of "cases" between states and citizens if they had intended to include criminal proceedings.

     We emphasize that the above exercise in interpretation fails to produce a conclusion, or even a strongly persuasive argument, as to the meaning of "dispute" for present purposes.  Accordingly, we are satisfied that, within the four corners of article XI, the term is sufficiently ambiguous for us to look elsewhere for guidance.

     We first turn to the deliberations of the FSM Constitutional Convention. Alaphonso v. FSM, 1 FSM Intrm. 209, 214-16 (App. 1982).  Lonno v.

[4 FSM Intrm. 91]

Trust Territory, 1 FSM Intrm. 53, 69 (Kos. 1982).  This Court can find no intention on the part of the Convention to apply the diversity wording of article XI, section 6(b) to criminal proceedings.  Indeed, the concept of a diversity jurisdiction was not discussed on the floor of the Convention.  The Committee on Governmental Functions spoke of the national-state concurrent jurisdiction in national law and diversity cases.  Comm. Proposal 30, SCREP. No. 49, 11 J. of Micro. Con. Con. 879.  In recommending concurrent jurisdiction, it observed that some could be best handled by the state courts and some by the national courts.  Then, when the Convention came to consider section 6(b), it adopted an amendment removing reference to the concurrent jurisdiction of national and state courts.  Discussion of the issue by members did not distinguish between the various elements of section 6(b) such as national law and diversity cases.  I J. of Micro. Con. Con. 492-3.

     If there is a noteworthy feature of the history of the diversity provisions of the FSM Constitution, it is the absence of any allusion to its possible application to criminal laws.

     We next turn to compare the corresponding provision of the United States Constitution, article III, section 2(1).  This reveals that, while the wording is otherwise similar, "cases" and "controversies" are referred to instead of "cases" and "disputes."  The appellant urges that the departure from "controversies" to "disputes" when the FSM Constitution came into being was significant.  It is difficult to understand in what direction the departure was intended and we conclude that no significance may be attached to the choice of a different term.

     Not surprisingly, there is no agreement amongst United States authorities as to the importance to be attached in that jurisdiction to the use of the words "cases" and "controversies."

     One view, which tends to support the "catch-all" line of argument referred to above, suggests that the use of both terms in the one section "will be found to have been mere matter of style, and to have no relation to any limitation or extension of the class of questions to be adjudicated."  King v. McLean Asylum of Massachusetts General Hospital, 64 F. 331, 336 (1894).

     The significance of the United States diversity jurisdiction provision lies in the fact that, unlike its FSM counterpart, article III, section 2 of the US Constitution requires statutory implementation.  The legislative history indicates that all enactments have applied diversity jurisdiction to civil cases only.  13B C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure 3602 (1984).

     In other words, the United States diversity jurisdiction has not been applied to criminal proceedings in two hundred years and the constitutionality of attempting to do so has never been tested.

[4 FSM Intrm. 92]

III.  The Function of the Criminal Law
     The court is assisted by an examination of the broader policy considerations.

     "The Constitution is subject to the same general rules of the construction as are other laws, due regard being had to the broader objects and scope of the constitution as a charger of popular government."  16 Am. Jur. 2d Constitutional Law 90 (1979).

     It is useful to look briefly at the place of criminal law in society generally, and in the federal structure of the FSM.

     In contrast to the civil law, the function of the criminal law is to declare what conduct a society considers to be unacceptable and worthy of sanctions at the instigation of government on the society's behalf.  The criminal law is thus the principal vehicle for the expression of the people's standards of right and wrong.

     In earlier times, traditional societies usually made no distinction between criminal and civil law in the sense that those terms are now used.  today, the primary means by which Micronesian societies maintain social control are embodied in the criminal law of each of the states of the Federated States of Micronesia, together with the national criminal law.  Of course, the content of the law, from earlier customary law rules to modern legislative codes, has changed dramatically over the past two hundred years.  Nevertheless, it is to the criminal law of today that members of society look for assistance in maintaining social values. For example, we note that the chapter of the Pohnpei statute under which the present appellant was charged with statutory rape is entitled "OFFENSE RELATING TO THE SENSE OF DECENCY AND MORALS OF SOCIETY". Chapter 8, Pohnpei Crimes Act of 1985.

     Two consequences flow from this view of the function of criminal law.  The first is that a society applies its laws to citizen and non-citizen alike.  Having determined what conduct shall be considered criminal, the society requires its government to apply the law to all conduct which occurs, or the results of which are felt, within its territorial limits.  Different standard of conduct are seldom tolerated on the part of non-citizens and foreigners.

     It also follows that a self-governing society is jealous of its authority to determine its own standards of right and wrong and to impose sanctions to everyone who falls below the prescribed standards of behavior.  Responsibility rests on society's duly elected legislature to reflect the electorate's values and needs.

     The courts which interpret and apply the criminal law dispense criminal justice on behalf of the society in which they possess jurisdiction.  A self-governing society may well expect that, so long as adequate safeguards are in place to protect the interests of the non-citizens against discriminatory and other unfair practices, the courts of the society should

[4 FSM Intrm. 93]

have jurisdiction over non-citizen as well as citizen in the application of the same law to all.

IV.  Criminal Law and Jurisdiction in the FSM
     In the course of the formation of the FSM, the allocation of responsibilities between states and nation in the relation to the content of the criminal law and the jurisdiction of the courts received much attention (although not with regard to the diversity question, as such).  The balancing of interests - state and nation, citizen and government - resulted in three significant policy determinations.

     First, major crimes were to be defined by national Congress and penalties prescribed, having due regard for local custom and tradition.  FSM Const. art. IX, 2(p).  All other crimes were left to be defined by each state legislature in response to the standards set by its society.  Id. art. VIII, 2.

     Secondly, the allocation of jurisdiction between national and state courts as to criminal matters was to follow the same pattern.  Id. art. XI, 6, 7 and 8.

     Thirdly, the declaration fundamental rights for the protection of individuals throughout the FSM was established as a constitutional guarantee enforceable on the application of the individual concerned.  Id. art. IV.

     In short, the impact of the national courts in criminal matters was to be in the area of major crimes and as the ultimate arbiter of human rights issues.

     This Court is aware that, as a result of steps taken by the national government, the responsibilities of the state courts have since increased.  National Congress has amended the major crime law to reduce the national jurisdiction (Pub. L. 5-40, 5th Cong., 1987) to the point where the bulk of criminal law and process vests with the states.  Also, this Court has, wherever appropriate, sought to apply policies such as the certification of issues to state courts and abstention in favor of state courts.  In re Nahnsen, 1 FSM Intrm. 97 (Pon. 1982); Truk v. Hartman, 1 FSM Intrm. 174 (Truk 1982); Hadley v. Kolonia Town Municipality, 3 FSM Intrm. 101 (Pon. 1987); and  Ponape Transfer & Storage v. Federated Shipping, 4 FSM Intrm. 37 (Pon. 1989).

V.  Conclusion
     As we indicated at the outset, the questions to be answered here depend on whether a broad constitutional plan can be said to have been adopted by the framers of the FSM Constitution.  We believe that a pattern can be discerned which indicates that the FSM was to take a different, but not opposite, direction from the United States in relation to diversity jurisdiction.  The FSM provisions are self-executing.  The FSM chose to adopt a method of

[4 FSM Intrm. 94]

allocating jurisdiction between courts on the basis of severity of penalty of crime.  It was consistent with this plan that the Constitution would not require that the diversity jurisdiction be available in criminal proceedings.

     The purpose of a diversity jurisdiction is to provide parties who are not citizens of the state where a matter arises with a national forum for which the federation of states is responsible, such as the Supreme Court of the FSM.  However, the need to safeguard the legitimate rights of a non-citizen in a state forum must be balanced against the understandable concern of society of that state to control standards of behavior in accordance with its own set of values.  Finally, it should not be forgotten that the guarantee of the equal protection of the laws, as a cornerstone of the FSM's system of justice, is available to all in every court.

     Having regard to the wording of the Constitution and the policy considerations and determinations outlined above, this Court concludes that the diversity jurisdiction provisions of article XI, section 6(b) do not apply to criminal proceedings.  The national courts have no jurisdiction on the grounds alleged in this case.

     The appeal is dismissed.

     So ordered the 28th day of June, 1989.

*    *    *    *
 
Footnote:
 
1.  Article XI, section 6 of the FSM Constitution provides as follows:
 
       (a)  The trial division of the Supreme Court has original and exclusive jurisdiction in cases affecting officials of foreign governments, disputes between states, admiralty or maritime cases, and in cases in which the national government is a party except where an interest in land is at issue.
       (b)  The national courts, including the trial division of the Supreme Court, have concurrent original jurisdiction in cases arising under this Constitution; national law or treaties; and in disputes between a state and a citizen of another state, between citizens of different states, and between a state or a citizen thereof, and a foreign state, citizen, or subject.
                  (c)  When jurisdiction is concurrent, the proper court may be prescribed by statute.
                                                                                                                                                                                                                                                                                                           
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