FSM SUPREME COURT
APPELLATE DIVISION
Cite as Damarlane v. Pohnpei Transportation Authority ,
5 FSM Intrm. 322 (App. 1992)

[5 FSM Intrm. 322]

DAMARLANE et al.,
Appellants,

v.

POHNPEI TRANSPORTATIONAUTHORITY,
Appellee.

FSM APP. NO. P3-1991

OPINION
 
Argued:  March 23, 1992
Decided:  June 12, 1992

Before:
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Martin Yinug, Associate Justice, FSM Supreme Court
Hon. Andon L. Amaraich, Associate Justice, FSM Supreme Court

APPEARANCES:
For the Appellants:     Mary K. Berman
                                      P.O. Box 163
                                      Kolonia, Pohnpei  FM 96941

For the Appellee:        Joses R. Gallen
                                      Pohnpei State Attorney
                                      Attorney General's Office
                                      Kolonia, Pohnpei  FM 96941

*    *    *    *
[5 FSM Intrm. 323]

HEADNOTES
Appeal and Certiorari; Federalism - National/State Power
     Although the FSM Supreme Court has the constitutional power to use its discretion to review a case from a state trial court, generally, proper respect for the state court requires that state appeal rights be exhausted before the FSM Supreme Court would grant appellate review especially when important state interests are involved.  Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 322, 324 (App. 1992).

Appeal and Certiorari
     Where it is unclear as to what rights a state trial court found the appellants had and the FSM court is unequipped to define those rights, and when the FSM appellate panel remains unsatisfied that the due process issue was raised below, although not determinative these are additional factors militating against FSM Supreme Court, Appellate Division review of a state trial court decision.  Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 322, 325 (App. 1992).

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     The appellants have appealed to this court from an adverse decision of the trial division of the Pohnpei State Supreme Court.  The issue to be decided on this appeal is whether this court will entertain the appeal from the state trial court. We hold in the exercise of our discretion that we will not.

Facts
     This action was commenced in the trial division of the Pohnpei State Supreme Court.  The plaintiff (appellee here), Pohnpei Transportation Authority, sought a declaration concerning the ownership of submerged land, and that certain dikes and berms built, and coral stockpiled in front of the defendants' land were the property of the plaintiff.

     The trial court entered a declaratory judgment, which, as pertinent to this appeal, declared that the dredged materials belong to Pohnpei Transportation Authority.  In reaching this result the court recognized that the adjoining landowners have certain rights in the areas below the high water mark, but found that custom decreed that since Pohnpei Transportation Authority had expended the effort necessary to stockpile and accumulate the coral, the ownership was in Pohnpei Transportation Authority.

     The defendants contend on appeal that the court's use of custom deprived them of their property (the dredged coral) without due process of law in violation of FSM Const. art. IV, 3.

[5 FSM Intrm. 324]

Reasoning
     The principal reason that we will not entertain this appeal is based upon the Constitution and upon he requirements of an orderly judicial process.  there are two additional reasons: (1) the declaratory judgment is not clear as to the rights owned by the defendants; and (2) we are not satisfied that the trial court was presented with the due process issue.

I.
     The constitutional provision pertinent to this case provides that "[t]he appellate division of the Supreme Court may review...cases heard in state or local courts if they require interpretation of the Constitution...."  FSM Const. art. XI, 7.  The use of the word "may" connotes choice or discretion.  If there were doubt as to this usage (see Black's Law Dictionary 883 (5th ed. 1979); Webster's Ninth New Collegiate Dictionary (1986)), it is settled by the history of section 7, which states, "The term `may review' is used by your committee to indicate that the Supreme Court has complete discretion as to whether to accept a case on review."  SCREP No. 49, 11 J. of Micro. Con. Con. 879.1

     The defendants also rely on FSM App. R. 4(a)(1)(A) which stated (at the time this appeal was taken), "In civil cases appeals are permitted...from final decisions of cases heard in state or local courts if they require interpretation of the Constitution..."  The rule of course cannot add to what the Constitution provides.  That is, it cannot be read to require review.  The rule can be read as consistent with the Constitution, so the phrase "appeals are permitted" means permissive or discretionary review.

     Sometime there may be a case from a state trial court in which review would be granted.  However this is not such a case.  First, proper respect for the state court requires that state appeal rights be exhausted before this court would grant review.  Second, this case involves important state  interests.  In re Nahnsen, 1 FSM Intrm. 97, 107-08 (Pon. 1982).  The state should have the right to decide these matters before this court would grant review.  In this regard we note that the Pohnpei Constitution (art. 4, 4)

[5 FSM Intrm. 325]

has a due process clause similar to that of the FSM Constitution and that national constitutional issues may be entertained by the state courts.  In re Nahnsen, 1 FSM Intrm. at 108 (Pon. 1982).  Although the final decision of an FSM constitutional provision is made in this court, it is desirable that the state court have the opportunity to consider it.  Bernard's Retail Store & Wholesale v. Johnny, 4 FSM Intrm. 33, 35 (App. 1989).

     We find no reason before us that would justify a consideration of this appeal at this time.  If in the future the defendants do not prevail on this issue in the appellate division of the Pohnpei State Supreme Court, they may assert those constitutional rights before us.
 
II.
     The defendants contend that they were deprived of their rights without due process.  However it is unclear to us what rights the court below found that the defendants had.  Page 45 of the declaratory judgment, as pertinent to the issue before us, states,

The Pohnpei Transportation Authority has ownership right over certain berms, dykes and coral (earth) dredged up and stockpiled by it and lying in the waterfront of the defendant's property.  The PTA's ownership is subject to the superior rights of the Board of Trustees of the Public Land Trust, including the inherent property interest of the defendants as recognized by law and custom.

     To review the defendant's contention on appeal it would be necessary for us first to define the right they have.  We are not equipped to do that.

III.
     The defendants contend before us that the due process issue was presented in the court below.  We have reviewed the record, including the parts to which the defendants directed our attention, but remain unsatisfied that the issue was presented.  Loney v. FSM, 3 FSM Intrm. 151, 154 (App. 1987).

     As stated above in Part I, we decline to review this matter based on the absence of compelling reasons for us to do so, and in the presence of factors justifying our refusal.  Parts II and III are not determinative, but are additional factors militating against the grant of review.

     For the reasons stated the appeal is dismissed.

*    *    *    *

Footnotes:

1.  SCREP No. 49, is entitled, "A Proposal Relating to the Judiciary."  It is based on Committee Proposal No. 30 of the Committee on Function.  The delegates accepted SCREP No. 49 on October 25, 1975.  I J. of Micro. Con. Con. 413.
 
     Committee Proposal No. 30 passed the first reading on the same date.  Id. at 413.  Prior to the second reading, attorneys for the committees on Style and Function completed Joint Amendment 10.  This amendment did not change the portion of Committee Proposal No. 30 addressing appeals from state and local courts on national issues.  It discussed appeals of other issues, and made such appeals available if the state constitution permits.  The delegates did not consider further the meaning of the phrase "may review" disposed of in SCREP No. 49.  Thus SCREP No. 49 remains as part of the history of Section 7 insofar as the provision before us is concerned.