THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as FSM v. Jano, 6 FSM Intrm. 9 (Pohnpei 1993)

[6 FSM Intrm. 9]

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

MARTIN JANO,
Defendant.

CRIMINAL ACTION NO. 1991-500

ORDER OF DISMISSAL

Richard H. Benson
Associate Justice

Hearing and Ruling:  March 24, 1992
Opinion Entered:  February 2, 1993

APPEARANCES:
For the Plaintiff:          Douglas Juergens, Esq.
                                     Chief of Litigation
                                     Office of the FSM Attorney General
                                     P.O. Box PS-105
                                     Palikir, Pohnpei  FM  96941

For the Defendant:     Marvin Hamilton, Esq.
                                     Office of the Public Defender
                                     P.O. Box 425
                                     Colonia, Yap  FM  96943
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HEADNOTES
Constitutional Law; Statutes ) Repeal
     A statute is repealed by implication by a constitutional provision when the legislature, under the new constitutional provision, no longer has the present right to enact statutes substantially similar to the statute in question.  FSM v. Jano, 6 FSM Intrm. 9, 11 (Pon. 1993).

Criminal Law and Procedure; Jurisdiction ) National Law
     Where the crimes charged are no longer those expressly delegated to Congress to define, or are not indisputedly of a national character the FSM Supreme Court has no subject matter jurisdiction.  FSM v. Jano, 6 FSM Intrm. 9, 11 (Pon. 1993).

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[6 FSM Intrm. 10]

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     This matter came before me on March 24, 1992 on the motion of the defendant entitled Motion to Dismiss Individual Counts of the Information filed October 30, 1991.

     At the conclusion of oral argument the motion was granted dismissing all counts and a statement of reasons for the dismissal was given.  The purpose of this order is to enter that oral order and to summarize the reasons.

     The information filed October 14, 1991 contains the following accusations.  I have added the maximum punishment for each.

     I.  Attempted Receipt of Stolen Property on or about January 18, 1991 in violation of 11 F.S.M.C. 201 and 937 for which the maximum punishment was five years.

     II.  Attempted Theft by Failure to Make Required Disposition of Funds on or about January 18, 1991 in violation of 11 F.S.M.C. 201 and 939 for which the punishment was five years.

     III.  Conspiracy to commit the crimes set out in Counts I and II on or about January 18, 1991 in violation of 11 F.S.M.C. 203 for which the punishment was 2 years (assuming, but not deciding, that one may be convicted of conspiring to do an attempt; a conspiracy to commit the underlying crimes had a punishment of five years).

     IV.  Receipt of Stolen Property on or about October 7, 1991 in violation of 11 F.S.M.C. 937 which had a punishment of ten years.

     V.  Theft by Failure to Make required Disposition of Funds on or bout October 7, 1991 in violation of 11 F.S.M.C. 939 which had a punishment of ten years.

     VI.  Conspiracy committed on or about October 7, 1991 in violation of 11 F.S.M.C. 203 which had a punishment of five years.

Constitutional and Statutory Background
     The FSM Constitution empowered Congress "to define major crimes and prescribe penalties . . . ."  FSM Const. art. IX, 2(p).  Pursuant to this authority Congress enacted the national criminal code, Public Law No. 1-134, codified in Title 11 of the FSM Code.  Section 902 defined major crimes as those punishable by imprisonment for three years or more and those involving theft of $1,000 or more, as well as any attempt to commit such theft.

     Effective December 11, 1988, Public Law No. 5-40 (5th Cong., 2nd Sess. 1987) generally reduced the jurisdiction of the court to crimes punishable by imprisonment for ten years or more.

     On July 2, 1991 the Constitutional Convention Proposal which amended section 2(p) of article IX was ratified.  This amended the power of Congress relating to crimes to read, "to define national crimes and prescribe penalties . . . ."

[6 FSM Intrm. 11]

Reasoning
     Counts I, II and III were dismissed because, effective December 11, 1988 they no longer alleged major crimes, that is, the crimes were punishable by imprisonment for less than ten years.

     Counts IV and V  were dismissed because the offenses were committed after the termination of Congress's power to define major crimes.  The amendment of the constitution deprived Congress of the power to define major crimes and repealed by implication the major crimes provisions of Title 11.  "The final test in determining whether a statute is repealed by implication by a constitutional provision is:  Has the legislature, under the new constitutional provision, the present right to enact statutes substantially like the statutes in question?"  16 Am. Jur. 2d Constitutional Law 68, at 388-89 (1979).  See also 1A C. Dallas Sands, Sutherland Statutory Construction 23.20 (4th rev. ed. 1985).

     These counts were also dismissed because of article VIII, section 1 of the Constitution which states, "A power expressly delegated to the national government, or a power of such indisputably national character as to be beyond the power of the state to control, is a national power."

     The crimes are no longer those that were expressly delegated to Congress to define, nor are they of an indisputably national character.

     If there were any ambiguity in this issue (the effect of the constitutional amendment on the major crimes statutes) and recourse were therefore had to the history of the amendment, the result would be the same.  The history reflects a clear intention to remove the major crimes jurisdiction from the national government.

     Count VI was dismissed because it was punishable by a term of imprisonment of less than ten years, and because it alleges a crime committed after the effective date of the constitutional amendment.

     The court had no subject matter jurisdiction and the six counts of the information were therefore dismissed.

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