FSM SUPREME COURT
TRIAL DIVISION
Cite as Damarlane vs. The Government of the United States,
5 FSM Intrm. 62 (Pon. 1991)

[5 FSM Intrm. 62]

IGNACIA DAMARLANE et al.
Plaintiffs,

vs.

THE GOVERNMENT OF UNITED
STATES OF AMERICA on its own
behalf and standing in the place of the
Trust Territory of the Pacific Islands,
THE GOVERNMENT OF POHNPEI STATE
and POHNPEI TRANSPORTATION AUTHORITY,
THE FEDERATED STATES OF MICRONESIA,
and JOHN DOES 1-21,
Defendants.

FSM Civ. No. 1990-075

MEMORANDUM OF DECISION

Before Edward C. King,
Chief Justice
April 23, 1991

APPEARANCES:
For the Plaintiffs:         Mary Berman, Pro Se
                                      Kolonia, Pohnpei FM 96941

For Defendant:            Daniel J. Berman
(U.S.A.)                        Rush, Moore, Craven, Sutton,
                                      Morry and Beh
                                      Kolonia, Pohnpei  FM 96941

For Defendants:          Joses R. Gallen
(PTA and Pohnpei)     State Attorney
                                      Pohnpei State
                                      Kolonia, Pohnpei  FM 96941

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[5 FSM Intrm. 63]

HEADNOTES
Statutes; Contempt
     While the Judiciary Act says relatively little about the appropriate distinctions between civil and criminal contempt proceedings, the statute does reveal a general expectation of Congress that the legal system here shall adhere generally to the same kinds of distinctions between civil and criminal contempt proceedings that have been established in other common law systems. Damarlane v. Pohnpei Transp. Auth., FSM Intrm. 62, 65 (Pon. 1991).

Contempt-Criminal
     A contempt motion brought not to obtain leverage to force compliance with a existing court order, but instead to attempt to punish the party for a previous violation is criminal in nature.  Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 62, 66 (Pon. 1991)

Constitutional Law-Judicial Powers; Contempt-Criminal
     Although judiciaries are vested with power to require or authorize initiation of criminal contempt proceedings, and may appoint private counsel to prosecute those proceedings, judiciaries typically attempt to appoint for that purpose government attorneys who are already responsible for public prosecutions. Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 62, 66 (Pon. 1991)

Attorney, Trial Counselor, and Client; Contempt
     Counsel for a party in a civil action may not be appointed to prosecute the opposing party for criminal contempt for violating an order in that action because the primary focus of the private attorney is likely to be not on the public interest, but instead upon obtaining for his or her client the benefits of the court's order. Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 62, 67 (Pon. 1991)
 
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COURT'S OPINION
EDWARD C. KING, Chief Justice:
     This memorandum of decision is written to explain further the reasoning of the Court in dismissing plaintiffs' motion for contempt in the hearing held in this case on April 23.

I.
     The case has been filed as a challenge to the dredging activities previously being conducted immediately offshore of the land on which various of the plaintiffs live at Mesenpal, Awak, U Municipality, Pohnpei.

     The Court originally, on October 18, 1990, granted plaintiffs' motion for preliminary injunction on the grounds that no national permit had been issued authorizing the dredging operations.  Subsequently, on February 5, 1991, the Secretary of Human Resources issued an earthmoving permit authorizing Pohnpei

[5 FSM Intrm. 64]

Transportation Authority to conduct earthmoving activities at the Mesenpal site but only for the purpose of removing the piles of processed coral, gravel or other materials which were already then stockpiled atop the berm.  On February 8, the Court modified its injunction to permit Pohnpei Transportation Authority to act in accordance with the earthmoving permit.

     Both the national earthmoving permit and this Court's order made clear that only the piles atop the berm, and not any part of the berm itself, could be removed pursuant to the authorizations granted.  In open court at the February 8, 1991 hearing, which was attended by Commissioner Oliver Joseph of the Pohnpei Transportation Authority, this Court emphasized the limitation of the authorizations, stressing that no part of the berm itself could be removed.

     Subsequently, however, plaintiffs filed documents with this Court indicating that Pohnpei Transportation Authority had gone beyond the authorizations granted and had removed extensive materials from the berm itself.  In response to a motion of the plaintiffs to show cause, a telephone hearing was held on March 18.  The judge participated by telephone from Yap while all of the parties and witnesses were convened at the court building in Pohnpei.  Based upon the evidence and arguments of counsel during that hearing, the Court concluded that the actions of Pohnpei Transportation Authority were in excess of the authorizations that had been granted, that by its actions Pohnpei Transportation Authority had demonstrated that it could not be expected to conform carefully to instructions issued by the Court or by the Department of Human Resources, and that it was therefore necessary to enjoin all further activities at the dredging site.  The Court therefore on March 15, 1991 did issue an injunction enjoining Pohnpei Transportation Authority from earthmoving activities of any kind at the Mesenpal site.
 
     In addition, during the March 15 telephone hearing, the Court stated that it found it "extremely hard . . . to imagine" how the actions of PTA which had prompted the March 15 injunction could have been "anything other than willful and intentional deviation" from the earlier order.  The Court further stated that the "question of contempt" would be considered upon return to Pohnpei.

     It was in apparent response to this latter remark that the plaintiffs on March 20 filed a motion asking the Court to hold PTA in contempt.  Faced with this concrete action by plaintiffs, the Court has reflected carefully upon the procedures to be followed and, for the reasons stated in this opinion, has concluded that the plaintiffs' motion for contempt must be denied.

II.
     The Judiciary Act of 1979 distinguishes between civil and criminal contempt.  The statutory reference to civil contempt speaks of imprisonment of a defendant "until such time as he complies with the order or pays an amount necessary to compensate the injured party."  4 F.S.M.C. 119(2)(a).  The provision for criminal contempt speaks of "punishment", specifically referring to the possibility of a "fine", or "imprisonment", and specifies rights of the defendant which must be observed in criminal contempt proceedings.  4 F.S.M.C. 119(2)(b).

[5 FSM Intrm. 65]

     As a first step then, we are required to determine whether the contempt charges which the plaintiffs seek to bring in this instance are in the nature of civil or criminal contempt.  While the Judiciary Act says relatively little about the appropriate distinctions between civil and criminal contempt proceedings, the statute does reveal a general expectation of Congress that the legal system here shall adhere generally to the same kinds of distinctions between civil and criminal contempt proceedings that have been established in other common law systems.1

     In general, it may be said that a contempt of court for which punishment is inflicted for the primary purpose of vindicating public authority is denominated criminal. Those in which the ultimate object of the punishment is the enforcement of the rights and remedies of a litigant are civil contempt.  The relief granted in civil contempt proceedings, therefore, is compensatory or coercive. This often takes the form of a fine in the amount of the damage sustained by plaintiff and an award of costs and attorney's fees.  Since any incarceration ordered in a civil contempt proceeding is intended to force defendant into doing what he was ordered to do, he can secure his discharge by so acting.  Thus, in a famous phrase, he carries the "keys to his prison."  The commitment is viewed as coercive only.  Punishment for criminal contempt on the other hand is unconditional, since it penalizes yesterday's defiance rather than seeking to coerce  tomorrow's compliance.  It cannot be ended or shortened by any act by defendant.  When a fine is imposed on someone who has been adjudged guilty of contempt, partly as compensation to the complainant and partly as punishment, the criminal feature of the order is dominant and fixes its character for purposes of appellate review.

11 C. Wright and A. Miller, Federal Practice and Procedure 2960 (1973).

[5 FSM Intrm. 66]

Applying these standards, the Court has concluded that plaintiffs' motion is in the nature of an attempt to have the defendants held guilty of criminal, as distinguished from civil, contempt.

     This is so principally because the motion is not an attempt by the plaintiffs to obtain leverage to force PTA to comply with an existing court order, but instead is an attempt to punish PTA for a previous violation of an injunction which has now been modified.  The criminal nature of the proceeding being sought by plaintiffs is also apparent from the request for relief set out in the plaintiffs' motion.  Plaintiffs ask that "the authorities responsible for this contempt, including the PTA Commissioner, be arrested and punished."  Moreover, in  plaintiffs' memorandum of law on penalties filed on April 17, 1991, plaintiffs speak of "penalties," and request a fine pursuant to 25 F.S.M.C. 308, a statutory provision which requires conviction of a misdemeanor as a condition to assessment of the fine.

III.
     The fact that the proceedings sought by plaintiffs are criminal rather than civil in nature leads to the conclusion that the contempt action may not be prosecuted by plaintiffs or by their counsel.

     Although judiciaries are vested with power to require or authorize initiation of criminal contempt proceedings, and may appoint private counsel to prosecute those proceedings, judiciaries typically attempt to appoint for that purpose government attorneys who are already generally responsible for public prosecutions.  Young v. United States ex rel. Vuitton et Fils, S.A., 481 U.S. 787, 800, 107 S. Ct. 2124, 2134, 95 L. Ed. 2d 740, 754 (1987).

     This is not simply a matter of tradition.  Rather, the preference of a public prosecutor is based upon recognition that

[A government attorney] "is the representative not of an ordinary party to a controversy but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.  As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape nor innocence suffer."

Young v. United States ex rel. Vuitton, 481 U.S. at 803, 107 S. Ct. at 2135, 95 L. Ed. 2d at 755-56 quoting Burger v. United States, 295 U.S. 78, 288, 55 S. Ct. 629, 633, 79 L. Ed. 1314 (1935).

In the same vein, the comment to FSM MRPC Rule 3.8 says, "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate."

[5 FSM Intrm. 67]

     It is important to remember that criminal contempt proceedings arising out of civil litigation "are between the public and the defendant, and are not a part of the original cause."  Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 445, 31 S. Ct. 492, 499, 55 L. Ed. 797 (1911).  The primary focus of a private attorney already representing a party in civil litigation, but who is in addition authorized to prosecute for criminal contempt an alleged violation of the court's order, is likely to be not upon the public interest, but instead upon obtaining for his or her client the benefits of the court's order.  Such an appointment creates a potential that private interests will influence discharge of the public duty of prosecution and has therefore been categorically prohibited in the United States federal court system.  Young, 481 U.S. at 814, 107 S. Ct. at 2141.  For the same reasons, this Court has concluded that counsel for the plaintiffs may not be appointed to prosecute defendants for criminal contempt for violating a court order in this case.

IV.
     The Pohnpei state attorney and the office of the attorney general of the Federated States of Micronesia are both unavailable for appointment because of conflicts arising out of their active involvement in the civil litigation which has led to this contempt charge.

     The Court has not yet determined whether the charges here are such as to warrant appointment of a private attorney to prosecute and the commitment of resources that such a prosecution would entail.
 
V.
     Plaintiffs' motion for contempt has therefore been dismissed.  The Court has taken under advisement the question of whether separate criminal contempt proceedings are to be initiated.

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Footnote:
 
1. It has been noted elsewhere that the FSM National Judiciary Act, 4 F.S.M.C. 122, and indeed the judiciary acts of all states of the Federated States of Micronesia, incorporate by reference the Code of Judicial Conduct adopted by the American Bar Association.  Etscheit v. Santos, 5 FSM Intrm. 35 (App. 1991).  While the inference is not a compelling one, this adoption of standards employed in the United States to regulate the conduct of judicial officials in the Federated States of Micronesia suggests a general assumption that judicial officials, presiding over contempt proceedings referred to in the same statute and reflecting the same kinds of distinctions that exist under the laws of the United States, shall look to United States principles and decisions for guidance.