THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Berman v. Santos,
7 FSM Intrm. 231 (Pon. 1995)

[7 FSM Intrm. 231]

MARY BERMAN,
Plaintiff,

vs.

EDWEL SANTOS, Individually and in his Official
Capacity as Chief Justice of the Pohnpei Supreme
Court, and the POHNPEI STATE GOVERNMENT,
Defendants.

CIVIL ACTION NO. 1994-129

ORDER AND MEMORANDUM OF DECISION

Andon L. Amaraich
Chief Justice

Hearing:  December 6, 1994
Decided:  September 18, 1995

APPEARANCES:
For the Plaintiff:          Mary Berman, Esq. (pro se)
                                     P.O. Box 163
                                     Kolonia, Pohnpei FM 96941

For the Defendant:     Richard L. Counts, Esq.
                                     Assistant Attorney General
                                     Office of the Pohnpei Attorney General
                                     P.O. Box 1555
                                     Kolonia, Pohnpei FM 96941

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HEADNOTES
Civil Procedure ) Summary Judgment
     A motion to dismiss pursuant to Rule 12(b)(6) may be transformed into a motion for summary judgment if matters outside the pleadings are presented to and not excluded by the court.  The burden is on the movant.  A court, in reviewing a motion for summary judgment, must view the facts and any inferences deduced therefrom in the light most favorable to the party opposing the summary judgment, and before summary judgment will be granted it must be clear what the truth is, and any doubt as to the existence of a genuine issue of material fact will be resolved against the movant.  Berman v. Santos, 7 FSM Intrm. 231, 235 (Pon. 1995).

Attorney, Trial Counselor and Client ) Admission to Practice
     The FSM Supreme Court's Chief Justice's constitutional powers to make rules governing the attorney discipline and admission to practice is limited to the national courts.  He is not authorized to

[7 FSM Intrm. 232]

govern admission to practice in state courts.  Berman v. Santos, 7 FSM Intrm. 231, 236 (Pon. 1995).

Constitutional Law ) Professional Services Clause
     Article XIII, section 1 is a general provision that recognizes the right of the people to education, health care, and legal services.  It does not act as an exclusive duty to ensure the availability of attorney services in the FSM, and it does not prohibit a state from administering its own bar.  Berman v. Santos, 7 FSM Intrm. 231, 237 (Pon. 1995).

Attorney, Trial Counselor and Client ) Admission to Practice
     The FSM Supreme Court and the state courts may each admit and discipline attorneys to appear before their respective courts.  Berman v. Santos, 7 FSM Intrm. 231, 237-38 (Pon. 1995).

Attorney, Trial Counselor and Client ) Admission to Practice; Courts ) Judges; Torts ) Immunity
     A chief justice's actions in reviewing an attorney's application for admission is a judicial function that is entitled to absolute immunity from suit for damages.  Berman v. Santos, 7 FSM Intrm. 231, 240 (Pon. 1995).

Civil Procedure ) Sanctions
     An argument, although plainly incorrect, may be insufficiently frivolous as to warrant sanctions under FSM Civil Rule 11.  Berman v. Santos, 7 FSM Intrm. 231, 241 (Pon. 1995).

Attorney, Trial Counselor and Client ) Attorney Discipline and Sanctions; Jurisdiction ) Removal
     An attorney disciplinary proceeding in state court for violations of state disciplinary rules may not be removed to the FSM Supreme Court.  Berman v. Santos, 7 FSM Intrm. 231, 241 (Pon. 1995).
 
*    *    *    *

COURT'S OPINION
ANDON L. AMARAICH, Chief Justice:

INTRODUCTION
     This case concerns plaintiff's long and thus far unsuccessful attempt to gain admission to the Pohnpei State Bar.  On June 28, 1994, plaintiff filed a complaint against defendant Chief Justice Santos, in his individual and official capacities, alleging that the Chief Justice was preventing her from sitting for the Pohnpei State Bar Exam and that he would not admit her to the Pohnpei State Bar.  That complaint was dismissed without prejudice on September 27, 1994, Berman v. Santos, 6 FSM Intrm. 532 (Pon. 1994), and on September 30, 1994, plaintiff refiled her complaint, thus giving rise to this action.  In her second complaint, plaintiff essentially restates the claims contained in the earlier complaint and adds the Pohnpei State Government as a party defendant.  On October 18, 1994, defendants filed a motion to dismiss the complaint.  In addition to the motion to dismiss, the parties filed other motions, all of which were the subject of a hearing conducted on December 6, 1994.1Although multiple motions have been filed in this case by both sides, these motions raise only a limited

[7 FSM Intrm. 233]

number of issues.  First, plaintiff argues that Pohnpei State is prohibited from administering its own Bar or bar exam because the FSM Constitution grants exclusive jurisdiction over the admission of attorneys to practice to the Chief Justice of the FSM Supreme Court.  In effect, plaintiff claims that her admission to the FSM Bar entitles her to practice in all of the courts throughout the FSM, state as well as national.  In other words, plaintiff claims that Pohnpei State has no authority to govern the admissions of the attorneys who wish to practice in the Pohnpei State courts. Based on this argument, plaintiff also asks this Court to enjoin Chief Justice Santos from denying her right to practice in the Pohnpei state courts pending the resolution of this suit.

     Defendants, through one motion to dismiss and two motions for summary judgment, argue that the FSM Constitution actually presumes that the national and state court systems are separate and independent, and that each system is free to administer and establish its own bar.  Assuming that Pohnpei State is permitted to administer its own bar, defendants assert that plaintiff is not entitled to automatic admission based upon her successful passage of the FSM Bar and that she cannot be considered for admission because she has not yet met all of the admission criteria.  Specifically, defendants claim that plaintiff's bar application is being held up because she has not yet paid the twenty-five dollar application fee that is required under the Rules of Admission for Attorneys and Trial Counselors to Practice in the Pohnpei Supreme Court (hereinafter, "Pon. Adm. R.) section 6 (Apr. 1, 1985). Defendant Chief Justice Santos also claims that plaintiff cannot pursue her claims for damages against him because he is immune from suit in cases that involve his official judicial actions.  Defendants also seek sanctions against plaintiff based on their claim that some of her motions are frivolous and unsupported by law.  The Court now proceeds to an examination of the issues raised by the parties.

FACTS2
     In September of 1989, plaintiff, by virtue of her employment with the Pohnpei State Government, was admitted to the Pohnpei State Bar on a provisional basis. According to the Pohnpei Rules of Admission, any attorney employed by the state government is entitled to provisional admission to the Pohnpei State Bar for the duration of their tenure as government attorneys.  Pon. Adm. R. 6.  The benefit of a provisional admission is that it entitles an attorney to practice in the state court without meeting some of the requirements for attorneys who are not employed by Pohnpei State, including the payment of a twenty-five dollar bar application fee.  A state government attorney's provisional admission to the Pohnpei State Bar terminates automatically upon that attorney's separation from his or her governmental post.

     In this case, plaintiff initially was employed by the Pohnpei State Department of Land.  That employment concluded in October 1990, however, at which time plaintiff left her position with the Pohnpei State Government and therefore lost her provisional admission status.  According to plaintiff, she has, on at least two occasions, requested information about being admitted to the Pohnpei State bar from the Pohnpei State Courts and from defendant Chief Justice, but that she has never received a direct response to her inquiries.  There was evidence on file, however, indicating that, on July 3, 1991, Defendant Chief Justice formally notified plaintiff that she was no longer entitled to provisional admission to the state bar, and that she was now required to meet the requirements for full admission to the Pohnpei State Bar.  The letter went on to inform plaintiff that she had not completed her

[7 FSM Intrm. 234]

application for admission and then proceeded to list the requirements for full admission to the Pohnpei State Bar.  The letter concluded by "encourag[ing]" plaintiff to comply with the state's rules of admission.

     The record in this case provides additional insight into defendant Chief Justice's position regarding the status of plaintiff's application for admission.  Initially, defendants readily admit that plaintiff is no longer required to take or pass the Pohnpei State bar exam because she has satisfied this requirement for admission to the Pohnpei State Bar by successfully passing the FSM Bar exam. Defs.' Response to Pl.'s Opp'n to Defs.' Motion to Dismiss and Motion for Summary Judgment at 3 (Nov. 7, 1994).  Defendants nevertheless assert that plaintiff still cannot be admitted, or even considered for admission, to the state bar because she has not satisfied the additional admissions requirement that she pay a twenty-five dollar application fee to the Court.  Pon. Adm. R. 6(f).  Plaintiff claims that she has no recollection as to whether or not she ever paid the fee.3

     In addition to the information above, the record indicates that the Chief Justice discussed plaintiff's status to practice in the Pohnpei State Courts on at least one other occasion.  In an Order of the Pohnpei Supreme Court dated January 26, 1994 and signed by the defendant Chief Justice, the Chief Justice stated as follows:

[Plaintiff] is not a licensed practitioner before the Pohnpei Supreme Court and for that reason, along with other reasons, counsel is not authorized to represent any other plaintiff other than plaintiff Kadalino Damarlane [plaintiff's husband] in this action.  Although [plaintiff] in person has expressed a belief that since "counsel has recently passed the FSM Bar Exam, she thought she could practice on a reciprocal basis in Pohnpei," such belief receives no support inasmuch as the case of In the Matter Regarding the Admission of James McCaffrey and Ronald Moroni, FSM CA No. 1993-006 of February 19, 1993, held that ". . . there is no reciprocity of admission between the FSM and Pohnpei bars."

     Finally, plaintiff claims that defendant Chief Justice is holding up her application for reasons relating to her attempts to disqualify another state court justice from presiding over another case in which plaintiff was involved.  Walter v. Damarlane, PCA No. 86-92, Order (Mar. 4, 1993).  In Walter, the Chief Justice found that plaintiff had made contemptuous remarks about another state court justice.  In light of that finding, the Chief Justice "encouraged and urged [the plaintiff] to take appropriate measure to apologize" to that justice, and "ORDERED that the [plaintiff] take appropriate action to move that the [contemptuous] statement be stricken from the Record of the case."  Plaintiff claims that this encounter is the reason that the Chief Justice is holding up her admission to the state bar.  As additional evidence of this fact, plaintiff notes that the Chief Justice recently filed a disciplinary action against her, alleging that she violated the state ethical rules by providing legal advice without a license.

[7 FSM Intrm. 235]

STANDARD OF REVIEW
     According to FSM Civil Rule 12, a motion to dismiss pursuant to Rule 12(b)(6) may be transformed into a motion for summary judgment if "matters outside the pleadings are presented to and not excluded by the court."  The standard for granting a motion for summary judgment is whether "the pleadings, depositions, answers to interrogatories, and admissions on file, taken together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."  FSM Civ. R. 56(c).  See also Bank of Guam v. Island Hardware, Inc., 2 FSM Intrm. 281, 284 (Pon. 1986).  Moreover, the burden is on the movant, and the Court, in reviewing a motion for summary judgment, must view the facts, and any inferences deduced therefrom, in the light most favorable to the party opposing the summary judgment.  Id.  Of course, before summary judgment will be granted it must be clear what the truth is, Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 82 S. Ct. 486, 7 L. Ed. 2d 458 (1962), and any doubt as to the existence of a genuine issue of material fact will be resolved against the movant.  Adickes v. S.H. Kress & Co., 321 U.S. 620, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970).

DISCUSSION
I.  Plaintiff's Motion for Summary Judgment
     The threshold issue in plaintiff's motion concerns whether the FSM Constitution prohibits the Pohnpei State Court from establishing and administering its own state bar.  First, plaintiff cites article XI, section 9(e) of the FSM Constitution which states that the Chief Justice of the FSM Supreme Court "may . . . govern the admission to practice and discipline of attorneys."  Second, plaintiff relies on article XIII, section 1 of the FSM Constitution which requires that the federal government ensure that the people of the FSM have sufficient access to "legal services."  Plaintiff notes that there are no corresponding provisions in the Pohnpei State Constitution.  Based on these provisions of the national constitution, plaintiff also argues that the power to admit attorneys to practice in the FSM is a "national power" ) that is, a power of such an indisputable national character as to be beyond the power of a state to control.  FSM Const. art. XIII, 1.  Third, plaintiff claims that the FSM Bar requirements for admitting and regulating attorneys to practice in the national courts are so pervasive that they preempt the state courts from creating their own state bars.  See Berman v. Pohnpei, 5 FSM Intrm. 303, 306 (Pon. 1992) (discussing the "preemption doctrine" and finding that the national government's effort to legislate in a particular area may be so pervasive as to prevent any state from legislating in that area).  Plaintiff bases her preemption argument on the fact that the "Pohnpei State Court Rules on Admission and Ethical Rules are substantially the same as the National Court Rules," in that both have adopted the ABA Model Rules of Professional Conduct, and on the fact that the FSM Bar exam includes topics of state law.

     Defendants strongly disagree with plaintiff's arguments.  Defendants argue that the provisions of the FSM Constitution relied upon by plaintiff refer only to the national court, and that they have no affect on the state court's ability to establish and administer its own state bar.  In fact, defendants' claim that the national constitution, by speaking only in terms of the national chief justice's authority over the "administration of the national judiciary," FSM Const. art. XI, 9, actually presumes that the state has the authority to create its own bar.  Defendants next argue that preemption is inappropriate here because the FSM Bar and the Pohnpei State Bar serve separate and unique functions.  Finally, defendants note that "[i]t is the universal practice in the United States for authority over the licensing and regulation of the general practice of law to be exercised exclusively by the state governments." Defs.' Response to Pl.'s Opp'n to Defs.' Motion to Dismiss at 9 (citing 7 Am. Jur. 2d Attorneys at Law 2 (1980) (Nov. 7, 1994) ("The practice of law is so intimately connected with the exercise of judicial power in the administration of justice that the right to define and regulate the practice naturally and

[7 FSM Intrm. 236]

logically belongs to the judicial department of the state government.").

     After giving careful consideration to both parties' arguments, the Court concludes that plaintiff's argument is not supported by the provisions of the FSM Constitution.

A.  Administrative Authority Under Article XI
     Subsection 9(e) of Article XI of the FSM Constitution states that the Chief Justice of the national court "may govern the admission to practice . . . of attorneys."  The plain language of that section makes clear that this authorization applies only to attorneys practicing in the national courts of the FSM.  In its entirety, section 9 states as follows:

The Chief Justice [of the FSM Supreme Court] is the chief administrator of the national judicial system and may appoint an administrative officer who is exempt from civil service.  The Chief Justice shall make and publish and may amend rules governing national courts, and by rule may:

(a)  divide the inferior national courts and the trial division of the Supreme Court into geographical or functional divisions;

(b)  assign judges among the divisions of a court and give special assignments to retired Supreme Court justices and judges of state and other courts;

(c)  establish rules of procedure and evidence;

(d)  govern the transfer of cases between state and national courts;

(e) govern the admission to practice and discipline of attorneys and the retirement of judges; and

(f)  otherwise provide for the administration of the national judiciary.  Judicial rules may be amended by statute.

FSM Const. art. XI, 9 (emphasis added).

     Thus section 9 explicitly states that the national Chief Justice's powers are limited to "provid[ing] for the administration of the national judiciary" pursuant to his role as "chief administrator of the national judicial system," and to "mak[ing] and publish[ing] and . . . amend[ing] rules governing national courts."  This section does not authorize the national chief justice to govern the admission and discipline of attorneys who practice in the state courts.  See also Carlos v. FSM, 4 FSM Intrm. 17, 27 (interpreting article XI, section 9 to only permit the national chief justice to control the admission of attorneys to practice before the national courts), reh'g denied, 4 FSM Intrm. 32 (App. 1989).
 
     Plaintiff's interpretation of section 9 also fails as a practical matter.  First, the national chief justice is not in a position to govern the admission of attorneys to practice in the state courts.  The national chief justice does not preside over the state courts on a daily basis, and therefore is less capable than the state court judges of monitoring the performance of the attorneys practicing in the state courts.  Second, other portions of section 9 that emphasize the fact that that section only refers to the national chief justice's powers with respect to the national judiciary.  In addition to the admission of attorneys to practice, section 9 also permits the national chief justice to "establish rules of evidence and procedure," and to "govern . . . the retirement of judges."  While it makes sense that the national

[7 FSM Intrm. 237]

Chief Justice would be responsible for establishing the rules that govern the procedure of the court over which he presides, it is contrary to common sense to interpret section 9 as permitting the national chief justice to control the procedural and evidentiary rules of courts in which he does not preside.

     In sum, plaintiff's interpretation of section 9 is overbroad and contrary to the plain language of that provision.4 Section 9 only refers to the Chief Justice's powers to administer to the national courts, and does not permit the Chief Justice to govern the admission and discipline of attorneys who wish to practice in the state courts.

B.  Access to Legal Services under Article XIII
     The Court also is similarly unpersuaded by plaintiff's argument based on Article XIII, section 1, which authorizes the national government to provide "legal services" for the people of the FSM.  Article XIII, section 1 is a "general provision" that "recognizes the right of the people to education, health care, and legal services." That provision does not, as plaintiff suggests, impose upon the national government "an exclusive duty to ensure the availability of attorney services in the FSM."  Pl.'s Opp'n to Motion to Dismiss at 7 (Oct. 28, 1994).  Moreover, although this provision also states that the national government "shall take every step reasonable and necessary to provide these services," and even if this provision could be interpreted as requiring that the national government assure that there are a sufficient number of competent attorneys in the FSM, nothing in this provision supports plaintiff's claim that the state is prohibited from administering its own bar or from monitoring the qualifications of the lawyers who wish to practice in the state courts.  Article XIII, section 1 of the FSM Constitution therefore does not advance plaintiff's argument.

C.  Preemption
     Plaintiff's argument that the national court's admissions process is so pervasive as to preempt state court involvement also fails.  Essentially, plaintiff's argument is that since both the FSM Court and the Pohnpei Supreme Court have adopted the ABA Model Rules of Professional Conduct, the state rules are repetitive of the national rules and thus should be preempted.  The mere fact that the state courts apply the same code of professional responsibility as the national courts does not mean that the national system is pervasive or preemptive.

     In fact, far from being repetitive or redundant, the FSM Bar and the Pohnpei State Bar serve separate and very distinct functions.  The national bar governs the practice of attorneys in the national

[7 FSM Intrm. 238]

courts, while the state bar governs attorneys in the state courts.  Because the judges in the two systems do not overlap, except in rare circumstances, the state court judges are the only judges capable of monitoring on a daily basis, the skills, performance and professional responsibility of the lawyers practicing in the state courts.

     Moreover, the mere fact that the two bars have both adopted the same code of professional responsibility does not signify that they apply or interpret that code in an identical fashion.  First, either bar is free at all times to adopt a new code or to amend the present code in order to fit the unique or changing circumstances confronting its courts.  Second, the admission of attorneys involves more than merely administering a code of professional conduct.  The state admissions process has an independent ethical evaluation, as well as its own bar exam.5 Because, the Pohnpei State Bar serves many functions that are different and distinct from the those handled by the FSM Bar, the Court concludes that the Pohnpei State Bar is not preempted by the existence of the FSM Bar.

     FSM legal precedent also supports the Court's conclusions regarding the constitutional provisions cited by plaintiff.  In In re McCaffrey, 6 FSM Intrm. 20, 22 (Pon.), aff'd, 6 FSM Intrm. 279 (App. 1993), the Court determined that "there is no reciprocity of admission between the FSM and Pohnpei bars."  In its ruling, the Court, as well as the Appellate Division, implicitly recognized the constitutionality of the Pohnpei State Bar, for obviously the Court could not have considered the question of reciprocity if one of the bars was not permitted to exist.

     Accordingly, this Court rejects plaintiff's claim that the FSM Constitution prevents Pohnpei State from establishing a bar program to monitor the attorneys who wish to practice before the Pohnpei state courts.  Having found that the state admissions process is a legitimate function of the state courts, the Court now must consider whether the state's admissions procedure has violated plaintiff's national constitutional rights.

D.  Plaintiff's Application to the Pohnpei State Bar
     Plaintiff contends that the defendants' refusal to consider her application for admission to the Pohnpei State Bar has violated her "civil rights," as well as her rights to "due process" and "equal protection."  As a result of these violations, plaintiff seeks both injunctive and monetary relief.

     Having determined that the State may establish and administer its own state bar, the issue becomes whether plaintiff has fulfilled the requirements necessary to be considered for admission to the state bar.  According to section 9 of the Pohnpei Rules of Admission:

[a]n attorney . . . who is interested to be admitted to the bar of the Pohnpei Supreme Court may submit an application in the form of a letter or resume to the Pohnpei Supreme Court in Kolonia, Pohnpei. . . .  The application must include information required under Section 5 or 6 as the case may be.

Upon receipt of your application, an examination date will be set for you to appear in person before a justice of the Pohnpei Supreme Court for an oral or other incidental

[7 FSM Intrm. 239]

examinations as may be necessary.

Section 6 of the Pohnpei Rules of Admission, entitled "Admission of New Attorneys and New Trial Counselors, lists the requirements that must be satisfied in order to gain admission to the Pohnpei State Bar.  An applicant must:

a.  [g]raduate[] from an accredited law school; or be a person of demonstrated legal ability as defined in these rules;

b.  . . . not [have been] convicted of a felony or a crime involving moral turpitude, is not currently be[] charged with violation of professional responsibilities, nor ha[ve] . . . been found guilty of violation of professional ethics or responsibilities; and

c.  take and pass the State Bar Examination; (Until the State devised its own bar examination, the FSM Supreme Court is being designated as the required bar examination to satisfy this requirement); and

. . .

f.  pay[] an admission fee in the amount of $25.00 for attorneys . . .

     As stated above, a genuine issue of material facts exists as to whether plaintiff has paid the twenty-five dollar application fee required under section 6(f).  Moreover, neither party has supplied any evidence that would enable the Court to resolve this issue.  As a result, the Court cannot yet determine whether the defendants failed to consider plaintiff's application.  Consequently, because plaintiff claims that defendants violated her rights by refusing to admit her to the state bar, the Court cannot determine whether the defendants have violated plaintiff's rights until it determines whether plaintiff actually had an application pending before the state court.  Because this disputed issue of fact remains, summary judgment is inappropriate at this time.

II.  Defendants' Motion for Partial Summary Judgment6
     Defendants' motion for summary judgment contains two separate arguments. First, defendants argue that plaintiff's admission to the FSM bar does not automatically entitle her to reciprocal admission to the Pohnpei State Bar, and that the case of McCaffrey v. FSM Supreme Court, 6 FSM Intrm. 279 (App. 1993) definitively established that no right of reciprocity exists between the FSM and Pohnpei State bars.  Second, defendants argue that plaintiff cannot maintain her suit for damages against defendant Chief Justice because he is absolutely immune from suits that challenge acts undertaken in his official capacity as a judge.

     Although defendants are correct that neither the Pohnpei State Bar nor the FSM Bar recognize the other for purposes of reciprocal admission, the Court finds that it is unnecessary to consider this issue because plaintiff, during oral argument, made clear that she is not seeking reciprocal admission

[7 FSM Intrm. 240]

to the Pohnpei State Bar.  While plaintiff's pleadings have not been clear about the exact nature of her claims, it became clear at oral argument that plaintiff's actual theory is not that she is entitled to reciprocal admission to the Pohnpei State Bar as a result of her successful admission into the FSM Bar, but rather, that the FSM Constitution prohibits Pohnpei State from establishing and administering its own state bar.  As a result, she does not seek admission to the Pohnpei State Bar because she argues that her admission to the FSM Bar entitles her to practice in every court and every jurisdiction located within the FSM.  Accordingly, defendants' motion for partial summary judgment based on plaintiff's claim of reciprocity is denied.

     Defendants' second ground for summary judgment concerns defendant Chief Justice's claim that he is immune from suit for monetary damages based on acts done in the exercise of a judicial function.  Although plaintiff admits that FSM law recognizes and applies the doctrine of absolute judicial immunity, she nonetheless argues that it does not apply to the facts of this case.  Specifically, plaintiff argues that the admission of attorneys to practice does not involve a judicial function for which defendant Chief Justice may claim immunity.  Rather, plaintiff insists that she is entitled to damages based on defendant Chief Justice's malicious attempts to deprive her of her civil rights.
 
     Although both parties cite numerous United States cases in support of their position, it is unnecessary to consider those cases because there is FSM law directly on point.  See Etscheit v. Santos, 5 FSM Intrm. 35, 38 (App. 1991) (instructing the FSM Supreme Court to "first look to sources of law and circumstances [within the Federated States of Micronesia] rather than begin with a review of cases decided by other courts" (alteration in original)).  In Jano v. King, 5 FSM Intrm. 388 (Pon. 1992), the Court held that a judge or justice is absolutely immune from liability where the challenged conduct was a judicial act.  The Jano Court defined a judicial function as an act that is within the judge's jurisdiction and that is "normally performed by a judge."  Id. at 391.  Moreover, the Jano Court stated that absolute judicial immunity, where appropriate, protects a judge regardless of the nature of his conduct.  Id. ("`A judicial officer cannot be called to account in a civil action for his determination and acts in his judicial capacity and within his jurisdiction, however erroneous.'") (quoting 46 Am. Jur. 2d Judges 72, at 141-42 (1969)).  In Carlos v. FSM, 4 FSM Intrm. 17, 27 n.4 (App. 1989) (citation omitted), the Appellate Division of the FSM Supreme Court determined that "control over attorney admissions and disciplinary matters is a judicial function, an inherent power of the courts."  Accordingly, the law of this Court is that judges are absolutely immune from liability for the performance of judicial functions, and that the administration of attorney admissions is a judicial function.  Accordingly, the defendant Chief Justice's actions in reviewing plaintiff's admissions application is a judicial function that is entitled to absolute immunity from suit for damages.7 As such, even if plaintiff ultimately prevails in her suit, she is not entitled to recover monetary damages in this case.

III.  Defendants' Motion for Sanctions
      Although the above discussion resolves the major issues in this case, there are other outstanding motions that must be resolved at this time.  First, the Court has considered defendants' motion for sanctions, in which they claim that plaintiff's argument seeking reciprocal admission to the state bar based on her admission to the FSM Bar is frivolous.  Defendants base their claim on an

[7 FSM Intrm. 241]

opinion of the FSM Supreme Court, McCaffrey v. FSM Supreme Court, 6 FSM Intrm. 279 (App. 1993), in which that Court ruled that it would not admit an attorney to the FSM Bar on the basis of that attorney's successful passage of the Pohnpei state bar. Id. at 282.  Defendants argue that this case conclusively resolved that reciprocity is not a proper basis for admission to the Pohnpei State Bar, and conclude that plaintiff should be fined for violating FSM Civil Rule 11.

     For the reasons stated above, the Court cannot agree with defendants' claim for sanction.  Although it did not become clear until oral argument, plaintiff's claim is not that she is entitled to reciprocal admission to the Pohnpei State Bar.  Rather, she argues that the FSM Constitution does not permit Pohnpei State to maintain its own bar program, and that her admission to the FSM Bar entitles her to practice in all courts within the FSM.  This argument, although plainly incorrect, is not sufficiently frivolous as to warrant sanctions under FSM Civil Rule 11.

IV.  Plaintiff's Motion for Preliminary Injunction
     Plaintiff's motion for injunction, seeking to "prevent the Pohnpei State Supreme Court Chief Justice . . . from interfering with [her] practice as an attorney before the State Supreme Court," is also based on plaintiff's view that the FSM Constitution prohibits Pohnpei State from governing the admission of attorneys to practice in the Pohnpei State Courts.  This Court already has determined that Pohnpei State does have the jurisdiction and authority to administer to the attorneys who wish to practice in the state courts, and to discipline those attorneys where necessary.  This authority necessarily requires that the state court judges be permitted to monitor the attorneys who practice before them.  This monitoring function is especially important where the attorney is not yet admitted to the bar in question.  Thus, the Court finds that plaintiff is not entitled to her requested injunctive relief and that motion is denied.

V.  Plaintiff's Verified Petition for Removal
     In this motion, plaintiff seeks to remove the disciplinary action filed against her by the defendant Chief Justice from the Pohnpei State Court to the FSM Supreme Court trial division.  The action at issue concerns plaintiff's alleged violation of the state code of professional responsibility.  Plaintiff's Petition for Removal argues that the issues of professional responsibility violation are under the exclusive authority of the national courts because the FSM Constitution prohibits Pohnpei State from establishing and administering its own bar.  Although this motion was not filed in time to be addressed at the hearing conducted on December 6, 1994, the issues and arguments that it raises are identical to those contained in plaintiff's other motions. The Court, in this Order, already has rejected the basis for plaintiff's removal petition, by finding that Pohnpei State does have jurisdiction over the admission and discipline of the attorneys who practice in the Pohnpei State Courts.  Moreover, because the disciplinary action is brought pursuant to possible violations of the requirements of the Pohnpei State Bar, this Court finds that the state court is the more appropriate forum for this matter.  Accordingly, plaintiff's motion for removal of the disciplinary action against her is denied.

Conclusion
     In conclusion, although the Court has determined that the Pohnpei State Court may administer its own state bar, the question whether plaintiff has submitted a complete application for admission to that bar is a disputed issue of material fact that prevents the Court from dismissing the case as defendants request. Accordingly, it is hereby ordered that plaintiff's motion for summary judgment, based on her claim that Pohnpei State does not have jurisdiction to administer its own state bar is denied.  It is further ordered that defendants' motion for summary judgment is granted in part and denied in part.  Although the Court agrees that defendant Chief Justice is immune from suit for

[7 FSM Intrm. 242]

damages based on his alleged violations of plaintiff's civil and constitutional rights, and that the claims against him in his individual capacity must be dismissed entirely. However, the Court cannot determine whether plaintiff's civil and constitutional rights were violated until it can determine whether plaintiff has submitted a complete application for admission to the Pohnpei State Bar.  Because this issue is both material and disputed, summary judgment is not appropriate at this time.  It is further ordered that plaintiff's motion for preliminary injunction and petition for removal are both denied.  Finally, it is further ordered that defendants' motion for sanctions is denied.

*    *    *    *
 
Footnotes:
 
1.  Plaintiff did file one motion that was received too late to be considered at the December 6 hearing.  In that motion, entitled "Verified Petition for Removal," plaintiff asks the Court to assume jurisdiction of a disciplinary complaint filed against her in the state court.  Although this motion was received on the eve of the hearing, the Court nonetheless will rule on this motion since it involves issues that are identical to the issues raised in the other motions filed in this case.

2.  Both plaintiff and defendants have filed motions for summary judgment. Accordingly, it would be appropriate to consider the facts most favorable to the plaintiff when considering the defendants' motions, and to consider them in the light most favorable to defendants when considering plaintiff's summary judgment motion.  See generally Bank of Guam v. Island Hardware, Inc., 2 FSM Intrm. 281 , 284 (Pon. 1986).

3.  Defendants actually claim that the plaintiff did at one time pay the twenty-five dollar application fee, but that she later requested and received the return of that fee. As evidence that the fee was returned, defendants point to a letter dated February 19, 1990, in which the Chief Justice informed plaintiff that "[f]ollowing our telephone conversation yesterday I am returning herewith your check for $25.00."  As pointed out by plaintiff, however, the letter does not state the reason that plaintiff sent the check to the Pohnpei State Court.  That is, whether the check originally was intended as a bar application fee or for some other reason.  Moreover, the date of that letter indicates that it was written while plaintiff was still admitted to practice on a provisional basis and therefore was not required to pay the application fee.  Based on these facts, and viewing them, as this Court must, in the light most favorable to the plaintiff, the Court concludes that for purposes of defendants' summary judgment motion that plaintiff never requested the return of her bar application fee, and that the payment that was returned could not have been intended for that purpose.

4.  In addition, and of great concern to the Court, is the fact that the interpretation of the FSM Constitution that plaintiff advocates today runs completely contrary to her earlier stated position in which she argued that section 9 only refers to the chief justice's power over the national judiciary.  In a letter to Chief Justice Santos dated February 23, 1994, plaintiff wrote as follows:

Consulting the FSM Constitution, Art. XI , Sec. 9, I see that Judge Amaraich, as "the chief administrator of the national judicial system", has power to make rules governing the national courts.  If he were able to govern admissions to the state courts by rule or by case decision, it appears that he would be exercising powers not granted to the Chief Justice under the Constitution.

     This is not the first time that plaintiff has filed arguments in this Court for which it appears that she does not have a good faith belief in the merits.  This had better be the last time that the Court is left to question the good faith of plaintiff's filings.

5.  Plaintiff argues that the state bar exam is unnecessary because the national bar exam covers state topics.  This argument is unpersuasive.  While the national bar exam may address certain issues of state law, the state and the national bar exams place emphasis on different topics.  For example, the national bar exam tests only the FSM Rules of Civil Procedure and Criminal Procedure , while state bar exams lay emphasis on state court rules of procedure.

6.  Although defendants in this case have filed three separate motions, a "Motion to Dismiss Plaintiff's Complaint," a "Motion for Partial Summary Judgment," and a "Motion for Summary Judgment," all three contain similar or identical arguments. Based upon this fact, as well as Rule 12(b)(6) of the FSM Rules of Civil Procedure , which directs that a motion to dismiss may be transformed into a motion for summary judgment if "matters outside the pleadings are presented to and not excluded by the court," the Court will view these three motions as a single motion for summary judgment.

7.  The Court's finding that all of the acts complained of by plaintiff are judicial functions that were performed in the course of defendant Chief Justice's official capacities as a state court judge necessarily means that none of the counts contained in plaintiff's complaint can be leveled against defendant Chief Justice Santos in his individual capacity.  Accordingly, the complaint against defendant Chief Justice in his individual capacity is hereby dismissed.
 
                                                                                                                                                                                                                                                                                                           
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