FSM SUPREME COURT
TRIAL DIVISION
Cite as Wito Clan v. United Church of Christ,
8 FSM Intrm. 116 (Chk. 1997)

[8 FSM Intrm. 116]

THE WITO CLAN,
Appellant/Defendant,

vs.

UNITED CHURCH OF CHRIST, MOEN and
UNITED CHURCH BOARD FOR WORLDMINISTRIES,
Appellees/Plaintiffs.

CIVIL ACTION NO. 1989-1035
ORDER OF REMAND

Richard H. Benson
Associate Justice

Hearing:  July 2, 1997
Decided:  July 4, 1997

APPEARANCES:
For the Appellant:      Charles Greenfield, Esq.
                      Micronesian Legal Services Corporation
                      P.O. Box 129
                      Kolonia, Pohnpei FM 96941

For the Appellees:     Andrew Clayton, Esq.
                      Law Offices of Hollinrake & Saimon
                      P.O. Box 1450
                      Kolonia, Pohnpei FM 96941

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[8 FSM Intrm. 117]

HEADNOTES
Property ) Land Commission
     Chuuk land commissioners have considerable adjudicatory powers under 67 TTC 109.  Wito Clan v. United Church of Christ, 8 FSM Intrm. 116, 118 (Chk. 1997).

Constitutional Law ) Due Process; Property ) Land Commission
     State law specifically prohibits persons with an interest from being members of a land registration team, but no such statute specifically requires the disqualification of land commissioners with an interest from reviewing the registration team's determination.  This brings constitutional due process concerns into play.  Wito Clan v. United Church of Christ, 8 FSM Intrm. 116, 118 (Chk. 1997).

Constitutional Law ) Due Process; Property ) Land Commission
     Adjudicatory decisions affecting property rights are subject to the procedural due process requirements of article IV, section 3 of the Constitution.  Due process demands impartiality on the part of adjudicators, including quasi-judicial officials, such as land commissioners.  Wito Clan v. United Church of Christ, 8 FSM Intrm. 116, 118 (Chk. 1997).

Constitutional Law ) Due Process; Property ) Land Commission
     Grounds that require a person's recusal from the land registration team also require his disqualification as a land commissioner reviewing the land registration team's adjudication.  Wito Clan v. United Church of Christ, 8 FSM Intrm. 116, 118 (Chk. 1997).

Property ) Land Commission
     When the statute requires the signature of at least two land commissioners in order to constitute an action of the commission and only two commissioners signed the section 109 review, and at least one of those should have disqualified himself, the review is void.  Wito Clan v. United Church of Christ, 8 FSM Intrm. 116, 118 (Chk. 1997).

Property ) Land Commission
     Review of a land registration team's decision should, in the first instance, be done by the Land Commission, not a court.  A land commission review that is void will therefore be remanded for a new review.  Wito Clan v. United Church of Christ, 8 FSM Intrm. 116, 118 (Chk. 1997).

*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     Pursuant to section 17 of Chuuk State Law 190-08, this came before me on the Wito Clan's appeal from the Chuuk Land Commission's determination of the boundaries of the land known as Faior, title to which had already been awarded to the Wito Clan.  The Determination of Boundaries was issued October 10, 1996, after the Land Commissioners' review, pursuant to 67 TTC 109, of the Land Registration Team's determination of October 2nd.  The review was signed by Senior Land Commissioner Kisande K. Sos and Land Commissioner Kristoph Killion.

     The Wito Clan appeals on two grounds.  One is that the Land Registration Team's determination was not based on substantial evidence and that the team misunderstood prior court rulings concerning Faior.  The second ground is that the Land Commissioners' section 109 review is invalid because both of the Land Commissioners who signed it should have been disqualified for interest.  Because I remand

[8 FSM Intrm. 118]

on the second ground I do not reach the first.

     The Wito Clan contends that both reviewing Land Commissioners should be disqualified from the section 109 review.  The Clan contends that Commissioner Killion should have been disqualified because he was a member of the Church and the nephew of the Church's President.  The Clan notes that Mr. Killion was recused from the Land Registration Team that sat on this case for those very reasons.  The Clan contends that Senior Commissioner Sos should have been disqualified because he was living on a piece of land outside the area in dispute, but which, according to some witnesses extends into the area claimed by the Clan.

     The reviewing land commissioners have considerable adjudicatory powers.

Upon receipt of an adjudication from a land registration team and the record upon which it is based, the land commission shall review the record and shall:
 
    (1) If satisfied therewith, make a determination of ownership based thereon; or
 
    (2) Return the record to the land registration team with instruction concerning further hearing or other action; or
 
    (3) Itself hold further hearing and then make determination of ownership based on the record and further information obtained by the commission.

67 TTC 109.

     State law specifically prohibits persons with an interest from being members of a land registration team.  67 TTC 103(2).  It was pursuant to this statute that Mr. Killion was recused from the land registration team.  No such statute specifically requires the disqualification of land commissioners with an interest from reviewing the registration team's determination.  This brings constitutional due process concerns into play.  "Adjudicatory decisions affecting property rights are subject to the procedural due process requirements of Article IV, § 3 of the Constitution." Etpison v. Perman, 1 FSM Intrm. 405, 422-23 (Pon. 1984).  "[D]ue process demands impartiality on the part of adjudicators."  Suldan v. FSM (II), 1 FSM Intrm. 339, 362 (Pon. 1983).  This includes quasi-judicial officials, id., such as land commissioners.

     I conclude that the grounds that required Mr. Killion's recusal from the land registration team also require his disqualification from reviewing the land registration team's adjudication.  Whether Senior Land Commissioner Sos should have disqualified himself is another matter.  The Clan only offers as a disqualifying circumstance that Mr. Sos resides on land that, although outside of the area in dispute, witnesses think may extend into the disputed area.  He is not alleged to have any claim to the land in dispute or even to the land on which he resides.  The FSM Supreme Court has held that a judge's mere residence on land that is related to a dispute before the court is not enough, by itself, to require the judge's recusal.  Nahnken of Nett v. Trial Division, 6 FSM Intrm. 339, 340 (App. 1994). Whether Mr. Sos's situation is sufficiently distinguishable from the Nahnken of Nett case so as to require his recusal is an issue I do not have to resolve.  The statute requires the signature of at least two land commissioners in order to constitute an action of the commission.  67 TTC 116.  Since only two commissioners signed the section 109 review, and at least one of those should have disqualified himself, the review is void.

     Review of a land registration team's decision should, in the first instance, be done by the Land Commission, not a court.  This matter is therefore remanded to the Chuuk Land Commission so that the Land Registration Team's Determination of Boundaries of October 2, 1996, may be reviewed by the Chuuk Land Commission, pursuant to 67 TTC 109.  So that the present situation does not recur, the Chuuk Land Commission shall, before undertaking its review, inform the parties which

[8 FSM Intrm. 119]

commissioners will review the October 12, 1996 Determination of Boundaries. The parties may tehn move for recusal of any commissioner for cause if they are so advised. The Land Commission shall then proceed with its review.

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