THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Gimnang v. Trial Division ,
6 FSM Intrm. 482 (App. 1994)

[6 FSM Intrm. 482]

BASIL LIMED GIMNANG,
Petitioner,

vs.

TRIAL DIVISION OF THE
SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA,
Respondent,

and STATE OF YAP,
Real Party in Interest.

APPEAL CASE NO. Y1-1994

ORDER

Decided:  August 31, 1994

BEFORE:
     Hon. Andon L. Amaraich, Associate Justice, FSM Supreme Court
     Hon. Martin Yinug, Associate Justice, FSM Supreme Court

APPEARANCES:
For the Petitioner:                        R. Barrie Michelsen, Esq.
                                                       Law Offices of R. Barrie Michelsen
                                                       P.O. Box 1450
                                                       Kolonia, Pohnpei FM 96941

For the Real Party in Interest:     Dawn Landwehr, Esq.
                                                       Assistant Attorney General
                                                       Office of the Yap Attorney General
                                                       P.O. Box 435
                                                       Colonia, Yap FM 96943

*    *    *    *

HEADNOTES
Federalism ) Abstention and Certification
     When a national court abstains it simply says that it is not going to decide the issue and allows the parties to file in state or local court; it does not submit or transfer anything to another court.  Gimnang v. Trial Division, 6 FSM Intrm. 482, 485 (App. 1994).

[6 FSM Intrm. 483]

Federalism ) Abstention and Certification
     Unlike abstention, when a national court certifies a state law issue it poses specific questions to the appellate division of the state court.  Gimnang v. Trial Division, 6 FSM Intrm. 482, 485 (App. 1994).

Federalism ) Abstention and Certification
     The choice of whether to abstain from a decision or to certify questions is one that lies wholly within the discretion of the trial court.  Gimnang v. Trial Division, 6 FSM Intrm. 482, 485 (App. 1994).

Mandamus
     Since a prerequisite to the issuance of a writ of mandamus is the existence of a clear duty that is being violated by the trial court, no writ will issue when the petitioner has not established that the trial court had any duty, much less a clear duty.  Gimnang v. Trial Division, 6 FSM Intrm. 482, 485 (App. 1994).

*    *    *    *

COURT'S OPINION
PER CURIAM:
     On January 10, 1994, Basil Gimnang filed a petition asking the Appellate Division to issue a writ of mandamus directing the Yap Trial Division of this Court to refer the issues of state law on which the Court has abstained directly to the Yap State Court Appellate Division.  According to the petitioner, the writ of mandamus should be issued because the FSM Supreme Court Appellate Division's decision in Gimnang v. Yap, 5 FSM Intrm. 13 (App. 1991), required submission of the issue directly to the Appellate Division.  On February 21, 1994, the Appellate Division issued an order directing the respondents to file an answer or answers to the petition.  The Court has now reviewed the submissions of the parties and, for the reasons discussed below, denies the petition for writ of mandamus.

BACKGROUND
     Gimnang filed the underlying action (Civil Action No. 1988-3000) seeking the refund of approximately $155,000 in taxes that he claimed he was unlawfully charged by Yap State.  The FSM trial division issued a declaratory judgment stating that the taxes violated the FSM Constitution, but abstained, on January 9, 1990, from deciding the issue of whether the taxpayer had a right under the FSM Constitution to a reasonable means of obtaining repayment of those taxes.  The purpose of the abstention was to allow Yap State Court an opportunity to rule on the availability of repayment of the taxes under Yap law.

     In an appeal to the FSM Appellate Division (App. No. Y1-1990), Gimnang challenged the trial court's decision to abstain from deciding the issue regarding recovery of the back taxes.  On February 21, 1991, the Appellate Division affirmed the trial court's abstention, holding that the question of whether the back taxes could be recovered raised issues under the Yap Government Liability Act, 31 Y.S.C. 104(a), and article II, section 12 of the Yap State Constitution.  The court stated that with respect to some of the taxes (those paid on or after November 25, 1986), the "Yap Liability Act does provide a means for recovery of taxes alleged to have been illegally collected, and it is not claimed that the means of redress provided by the Act are less than reasonable."  Gimnang,

[6 FSM Intrm. 484]

5 FSM Intrm. at 24.  The Appellate Division stated that the trial court could "reasonably heed" Yap's preference, stated in the Yap Liability Act, that the forum for claims against the state be the Yap State Court Trial Division.  Id. at 23 (Yap Trial Division proper forum under Liability Act); Id. at 24 (FSM trial court could reasonably heed forum preference stated in Liability Act).  The Appellate Division affirmed the trial court entirely with respect to those taxes.

     With respect to taxes unlawfully collected that were not covered by the Liability Act (those paid before November 25, 1986), the Appellate Division also affirmed the FSM trial court's abstention.  The Appellate Division stated that it was interpreting the FSM trial court's abstention on these taxes to be "partial" ) meaning that once Yap State Court determined what Yap law was regarding the recovery of those taxes, the plaintiff could still return to the FSM Trial Division for a ruling on whether Yap law violated the plaintiff's due process rights under the FSM Constitution.1  The FSM Appellate Division stated:

     [a]s to the taxes paid by Mr. Gimnang prior to the effective date of that Act, the trial court's abstention for the purposes of obtaining a Yap State court appellate division ruling as top whether recovery may be provided under Yap state law is affirmed; however, the case is remanded to the trial court for modification and clarification of the order of abstention so that Mr. Gimnang's access to a national court determination as to the scope of his rights of due process will be assured, if that becomes necessary.

Gimnang, 5 FSM Intrm. at 28.

     On April 6, 1992, after the FSM Appellate Division remanded the case, the FSM Trial Division entered an order stating that it was modifying its abstention order "to permit a decision by the Yap State Court" on the issue of whether the plaintiff may recover his pre-November 25, 1986 taxes under Yap law.  The Order does not explicitly state whether it is contemplated that the state law issues will be taken to the trial division as opposed to the appellate division of that court. The trial court does, however, state that it designated the "Yap State Court" with an awareness of both the FSM Appellate Division's reference to the "Yap State Court Appellate Division," and to the fact that the Yap Liability Act gives the Yap State Court Trial, Division original and exclusive jurisdiction over claims for recovery.

ANALYSIS
     The petitioner's main argument is that

     the trial court rejected Gimnang's interpretation of the opinion as holding that questions in this case regarding state law are to be addressed to the Appellate Division of the Yap State Court, and adhered to its original decision to refer the matter to the trial division of the State Court, in spite of contrary language of the appellate decision.

Memorandum in Support of Petition.  The petitioner's argument is based on a misunderstanding of both abstention procedure, and of what the FSM trial court has done in this case.  In the case of

[6 FSM Intrm. 485]

abstention, the FSM trial court simply says that it is not going to decide the issue and allows the parties to file in state or local court.  The national court does not submit or transfer anything to another court at either the trial or appellate level ) it simply says it will not decide the state or local law matter and leaves it to the parties to file in the appropriate court.  For example, in Ponape Transfer & Storage v. Federated Shipping Co., 4 FSM Intrm. 37, 47 (Pon. 1989), the court abstained from a case involving land use in order to allow the parties to obtain a ruling from the Pohnpei Supreme Court.  In that case, rather than "refer" the matter to the other court, the trial court "dismissed [the claim] without prejudice to any party."  Similarly, in Berman v. Pohnpei, 5 FSM Intrm. 303, 307 (Pon. 1992), the court abstained from deciding an issue regarding the validity of a business license fee charged by Kolonia, and left the plaintiff to "pursue her remedies in state and local courts as she decides."  The trial judge's action here is in keeping with the procedure followed in Ponape Transfer & Storage and Berman ) he did not refer or certify the issue to another court, but simply abstained from deciding the matter so that a ruling could be obtained from the Yap State Court.  He noted that there were certain signals about whether the plaintiff should bring the matter to the Yap State Court Trial Division, or directly to the Yap State Court Appellate Division, but he did not tell the plaintiff which to do, and did not refer or transfer anything to either division.  It was up to the plaintiff to file in Yap State Court ) at whatever level he believed the law allowed.

     The petitioner's confusion appears to stem from a failure to distinguish "abstention" from "certification."  Abstention and certification are two distinct procedures that the FSM courts can use to allow state and local courts to determine matters that are primarily questions of state or local law even when the case is filed in the FSM court.  In cases where the FSM Supreme Court trial division "certified" a state law issue, it posed specific questions directly to the appellate division of the state or local court.  See, e.g., Edwards v. Pohnpei, 3 FSM Intrm. 350, 365 (Pon. 1988); Hadley v. Kolonia Town, 3 FSM Intrm. 101, 104 (Pon. 1987).  In its April 6, 1992 order, the FSM trial court noted the plaintiff's confusion on this issue, stating that the plaintiff had made his argument within the framework of "certification," but that "the defendant sought relief and the court reviewed the state law issues presented under the doctrine of abstention."  Order at n.2.  The FSM Trail Division was acting within its discretion when it chose the abstention procedure, rather than the certification procedure, especially when one considers that the motion made to the court specifically requested abstention.  Pryor v. Moses, 4 FSM Intrm. 138, 141 (Pon. 1989) ("the choice of whether to abstain from a decision or certify questions is one that lies wholly within the discretion of [the trial court]").  The FSM Appellate Division affirmed the trial court's decision to abstain ) it did not state that the abstention should be converted into a certification.

     Given the above, it is clear that the issuance of the writ of mandamus sought by Gimnang would not be proper.  As the Appellate Division of this court stated in In re Main, 4 FSM Intrm. 255, 258 (App. 1990) a prerequisite to the issuance of a writ of mandamus is the existence of a "clear duty that is being violated" by the trial court.  Id.  The petitioner in this case has not established that the FSM trial court had any duty, much less a "clear duty," to refer the questions of state law to any particular division of the Yap State Court.

CONCLUSION
     For the reasons discussed above, it is hereby ordered that the Petition for Writ of Mandamus is denied.
*    *    *    *
 
Footnote:
 
1.  "A person may not be deprived of liberty, or property without due process of law, or be denied the equal protection of the laws."  FSM Const. art. IV, 3.