FSM SUPREME COURT
TRIAL DIVISION
Cite as FSM v. Phillip ,
5 FSM Intrm. 303 (Kos. 1992)

[5 FSM Intrm. 303]

MARY KATHLEEN BERMAN, Esq.
Plaintiff,

v.

POHNPEI STATE and the POHNPEI
STATE FOREIGN INVESTMENT
BOARD, ITS OFFICERS and
AGENTS, THE KOLONIA TOWN
GOVERNMENT, and the FSM COURT,
Defendants.

FSM CIV. 1991-053

OPINION
 
Honorable Richard H. Benson
Associate Justice
FSM Supreme Court
April 20, 1992

APPEARANCES:
For the Plaintiff:                Pro Se
(Mary Berman)

For Defendant:                 Daniel J. Berman, Esq.
(Kolonia Town)                 Attorney at Law
                                           Kolonia, Pohnpei  FM 96941

For Defendant:                 Matthew Phelan, Esq.
(Foreign Investment)        Pohnpei State Attorney's Office
 and Pohnpei State          Kolonia, Pohnpei  FM 96941

For Defendant:                 Daniel Hall, Esq.
(FSM Supreme Court)     FSM Attorney General's Office
                                           Palikir, Pohnpei  FM 96941

[5 FSM Intrm. 304]
 
HEADNOTES
Separation of Powers
     The Constitution mandates that the Chief Justice by rule may govern the admission to practice of attorneys, but a rule which differentiates between FSM citizens and non-citizens inherently relates to the regulation of immigration and foreign relations which are powers expressly delegated to the other two branches of government.  Berman v. Pohnpei, 5 FSM Intrm. 303, 305 (Pon. 1992).

Federalism - National/State Power; Foreign Investment Laws
     The scheme of national, constitutionally-authorized foreign investment legislation is so pervasive there is no room for the state to supplement it.  Non-FSM citizen attorneys and their private practice of law are expressly subjected to the national legislative scheme.  Insofar as attorneys who are engaged in the private practice of law and whose business activities are within the scope of the national FIA, the state FIA is invalid.  Berman v. Pohnpei, 5 FSM Intrm. 303, 306 (Pon. 1992).

Federalism - Abstention and Certification
     It is appropriate for the state court to rule upon the non-constitutional grounds and upon the alleged violation of the Pohnpei Constitution.  The plaintiff may raise at a later time the allegation that the ordinance violates the FSM Constitution if that is still necessary after disposition by the state court.  Berman v. Pohnpei, 5 FSM Intrm. 303, 306-07 (Pon. 1992).

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COURT'S OPINION
RICHARD H. BENSON, Associate Justice:

I. Introduction
     In this matter, plaintiff filed a first amended complaint and contends:

     1) that the FSM Supreme Court Rules for Admission to Practice, which limit to three the number of times a non-citizen can take the FSM written examination within a five year period, violate the FSM Constitution;

     2) that certain acts of the Pohnpei Foreign Investment Board (hereinafter "state FIB") are improper and that the Pohnpei Foreign Investment Permit Act of 1986 (hereinafter "state FIA") is pre-empted by the Foreign Investment Act of the Federated States of Micronesia.  32 F.S.M.C. 201-229 (hereinafter "national FIA") and

     3) that the Kolonia Town ordinance establishing a business license fee is invalid because it violates the FSM Constitution

[5 FSM Intrm. 305]

and the Pohnpei State Constitution, and was enacted without public hearing or notice.

     The defendants responded as follows: (1) Pohnpei State, the State FIB and Kolonia Town Government filed answers; (2) Pohnpei State, the state FIB and FSM Supreme Court filed motions to dismiss; and (3) Kolonia Town Government filed a motion for summary judgment.

     The plaintiff filed a motion for declaratory judgment at the same time she filed her first amended complaint.

     All motions were argued in open court on January 27, 1992.  The matters were then submitted for decision.  The decisions on each follow.

II. Legal Analysis
A.  FSM Supreme Court motion to dismiss.
     The motion is brought pursuant to FSM Civ. R. 12(b)(6) and alleges a failure to state a claim upon which relief can be granted.  For purposes of the motion, the allegations of the first amended complaint are assumed to be true.  As to the defendant FSM Supreme Court, plaintiff alleges that she is a U.S. citizen, married to an FSM citizen, and is a resident of Pohnpei.  She also alleges that having taken and failed three times one of the three parts of the FSM bar examination, she is, according to the FSM Rules for Admission, ineligible to take the examination again within a five year period.  FSM citizens are exempt from this five year rule.  The plaintiff alleges that she is otherwise eligible to take the examination.

     The issue is whether the complaint states a cause of action against the defendant.  The defendant FSM Supreme Court points to provisions of the FSM Constitution in which non-citizens do not enjoy the same rights as citizens, and speculates on reasons that could have prompted the five year rule.

     I have considered all arguments carefully and conclude that the first amended complaint does set forth a cause of action against the FSM Supreme Court.  I deny the motion to dismiss based on the following reasons (which are not ranked in order of importance):

     1.  The record does not contain any justification for the rule.

     2.  The constitutional mandate of the Chief Justice is to serve as the chief administrator of the national judicial system.  By rule the Chief Justice may govern the admission to practice of attorneys.  FSM Const. art. XI, 9.  At issue is a rule which inherently relates to the regulation of immigration and foreign relations.  These are powers expressly delegated by the Constitution to the two other branches of our national government.  The motion to dismiss fails to justify the defendant court's incursion into these areas.
 
[5 FSM Intrm. 306]

     3.  Under 50 F.S.M.C. 103(10) the plaintiff is entitled to reside in the FSM.

     4.  Each part of the national government should avoid taking any step which might unnecessarily reduce the availability of legal services.  FSM Const. art. XIII, 1; Carlos v. FSM, 4 FSM Intrm. 17, 30, (App. 1989).

B.  Motion to dismiss filed by Pohnpei State and the Pohnpei  FIB.
    Again the allegations of the complaint are considered as true for purposes of this motion.  It appears that the national government issued the plaintiff a foreign investment permit to do business in Chuuk, Pohnpei and Kosrae.  The national FIA was enacted pursuant to congressional power to regulate foreign and interstate commerce.  FSM Const. art. IX, 2(g); SCREP No. 1-301, J. of 1st Cong., 4th Reg. Sess. 305 (1980).

    This scheme of national, constitutionally-authorized  legislation is so pervasive in the area of foreign investment that there is no room for the state to supplement it.  Non-FSM citizen attorneys and their private engagement in the practice of law are expressly subjected to the national legislative scheme.  Public Law 5-134 amended the national FIA to state specifically that the practice of law was included in businesses engaged in by non-citizens requiring a foreign investment permit.  32 F.S.M.C. 203; Michelsen v. FSM, 5 FSM Intrm. 249, 253 (App. 1991).

    I conclude that the national law has preempted this area for those attorneys whose commercial activities fall within the scope of the FIA, as does the plaintiff's in this instance.  The other grounds asserted in support of the motion to dismiss - sovereign immunity, failure to exhaust administrative remedies, and standing - are therefore not ruled upon.  The motion to dismiss is denied on the ground that insofar as attorneys who are engaged in the private practice of law and whose business activities are within the scope of the national FIA, the state FIA is invalid.

C.  Defendant Kolonia Town's motion for summary judgment.
    This defendant asserts that the plaintiff lacks standing in that she is not practicing law, has no office, and that Kolonia has made no attempt to collect the business license fee, and that the fee is valid.  The plaintiff in her complaint alleges that the ordinance was enacted without public hearing or notice and violates both the Pohnpei and the FSM Constitutions.

    In its reply to the plaintiff's opposition the defendant suggests an alternate basis for relief by requesting that this court invoke the doctrine of abstention.

    In the present state of the pleadings, abstention is clearly warranted.  It is appropriate for the state court to rule upon the non-constitutional grounds because the determination of the validity of the enactment process is

[5 FSM Intrm. 307]

a state and local matter.  In addition the alleged Pohnpei Constitution violation is a matter to be decided by the Pohnpei courts.

    The court will abstain from deciding this cause of action against the Kolonia Town Government.  The plaintiff may raise at a later time however, the allegation that the ordinance violates the FSM Constitution if that is still necessary after disposition by the state court.  Gimnang v. Yap, 5 FSM Intrm. 13, 28 (App. 1991) (permitting the plaintiff to return to the Supreme Court to assert his due process claim under the FSM Constitution to the return of taxes unconstitutionally assessed and paid).  The plaintiff for the present may pursue her remedies in the state and local courts as she decides.  Kolonia Town is requested to submit a proposed order of abstention approved as to form by the plaintiff.

D.  Plaintiff's motion for declaratory judgment.
    Although the plaintiff's motion is filed as a motion for declaratory judgment, it was treated in oral argument as a motion for summary judgment.  I am therefore guided by the requirements of FSM Civ. R. 56.

    The plaintiff's first cause of action seeks relief against Pohnpei State and the State FIB.  Because of the preemption of the state FIA as already discussed above, judgment is granted for the plaintiff on that ground alone.  The plaintiff is requested to submit to me a proposed judgment approved as to form by the state's attorney.

    I note here that the record before me reflects that the state FIB has treated the plaintiff with fairness and consideration.  For example, the state FIB informed her that she could request an extension of the six month grace period within which time to take and pass the FSM written examination, and that she could submit proof of her compliance with the state FIB's condition.

    The plaintiff's second cause of action seeks relief from Kolonia Town Government.  Since I am abstaining on this matter, the plaintiff's motion is denied, with leave to renew as permitted by the foregoing order of abstention.

    The plaintiff's third cause of action is against the FSM Supreme Court.  Her motion for a summary judgment is denied because there is no factual basis before me supporting the allegations of her complaint.

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