FSM SUPREME
COURT
APPELLATE
DIVISION
Cite as Weno
v. Stinnett,
9 FSM Intrm. 200 (App.
1999) WENO
MUNICIPALITY,
Appellant, vs. CHRISTINA STINNETT
d/b/a TRUK STOP, TRUK
CONTINENTAL HOTEL,
INC., a corporation,
KACHUTOSY PAULUS, and
RAYMOND SETIK
d/b/a CHRISTOPHER
INN,
Appellees. APPEAL CASE NO.
C2-1997
CIVIL ACTION NO.
1992-1036 WENO
MUNICIPALITY,
Appellant, vs. CHUUK CHAMBER OF
COMMERCE, GERHARD ATEN
d/b/a ATEN'S AND
ASSOCIATES; JASON POLL;
KRISTOFF KILLION d/b/a
ISLAND MOTEL; JULITA MORI
AISEK d/b/a KURASA
STORE; BANK OF GUAM; BLACK
MICRO CORPORATION;
RAYMOND SETIK d/b/a
CHRISTOPHER STORE; MEO
IRONS d/b/a HAPPY
LANDING; KIOMASA
KAMINANGA d/b/a KIOMASA'S
ENTERPRISES; PANDINUS
SUZUKI d/b/a MIDCO; LARRY
BRUTON d/b/a MITA AND
BRUTON ENTERPRISES; ANNA
W. MIJARES d/b/a ASA
ENTERPRISES; RESTITUTO P.
LOMONGO d/b/a M &
L ENTERPRISES; BERNIE
RONQUILLO d/b/a
BERNIE'S STORE; TAKA MORI and
CINDY MORI d/b/a SLICK
MICKS; SUSUMU AIZAWA
d/b/a SUSUMU
ENTERPRISES; TADASHI WAINIT d/b/a
TADASHI & SONS,
LTD.; FEDERATED STATES OF
MICRONESIA
TELECOMMUNICATIONS CORPORATION;
TRUK CONTINENTAL
HOTEL, INC.; TRUK TRADING CO.;
TRUK TRANSPORTATION
COMPANY, INC.; CHRISTINA
STINNETT d/b/a TRUK
TRAVEL UNLIMITED; and
KACHUTOSY PAULUS d/b/a
V & B STORE,
Appellees. APPEAL CASE NO.
C3-1997
CIVIL ACTION NO.
1992-1038 OPINION Submitted: October 2, 1998
Decided: August 23, 1999 BEFORE:
Hon. Andon Amaraich, Chief
Justice, FSM Supreme Court
Hon. Martin Yinug, Associate
Justice, FSM Supreme Court
Hon. Judah Johnny, Temporary
Justice, FSM Supreme Court* *Chief Justice, Pohnpei Supreme Court, Kolonia,
Pohnpei APPEARANCES:
For the
Appellant: Andrea
S. Hillyer, Esq.
(in both
appeals) P.O.
Drawer D
Kolonia,
Pohnpei FM 96941 For the
Appellees: Fredrick
L. Ramp, Esq.
Stinnett in C2-1997
& P.O.
Box 1480
all appellees in
C3-1997) Kolonia,
Pohnpei FM 96941 For the Appellees:
Andrew Clayton, Esq.
(Paulus & Truk Continental
Law Offices of
Saimon & Associates
Hotel in C2-1997, who join
P.O. Box
1450
in appellee Stinnett's brief)
Kolonia, Pohnpei FM
96941 *
* *
* HEADNOTES
Civil Procedure
) Summary
Judgment
Summary
judgment under FSM Civil Procedure Rule 56 is
appropriate when, viewing the facts in the light most favorable to the
party against whom judgment is sought, there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of
law. Weno v. Stinnett, 9 FSM Intrm. 200,
206 (App. 1999). Appeal and Certiorari
) Standard of
Review
Motions
the trial court decided as a matter of law are issues of law and are
reviewed de novo. Weno v. Stinnett, 9
FSM Intrm. 200, 206 (App. 1999). Constitutional Law
) Chuuk )
Interpretation
When
the meaning of a constitutional provision is forthright, a court will
apply its analysis to the constitutional provision's language as it
appears on its face. Weno v. Stinnett, 9
FSM Intrm. 200, 207 (App. 1999). Constitutional Law
) Chuuk )
Interpretation; Taxation )
Constitutionality
The
language, "and may delegate certain taxing powers to the municipal
governments by statute," contemplates that municipal governments are
invested with the power to tax only insofar as they receive that power
from the state government. Without express delegation to a
municipality of the authority to tax, the municipality lacked this power.
Weno v. Stinnett, 9 FSM Intrm. 200, 207
(App. 1999). Constitutional Law
) Chuuk; Taxation ) Constitutionality
The
Chuuk Constitution provides for the creation of the state taxing power and
its delegation, as the state government may
elect, to the municipal governments. Article XIII,
section 1 of the Chuuk Constitution provides that the two levels of
government are state and municipal. As between these two levels of
government the one holding the right to delegate is superior. Weno v. Stinnett, 9 FSM Intrm. 200, 207 (App.
1999). Constitutional Law
) Chuuk; Taxation ) Constitutionality
Because
the express provision for delegation of the taxing authority is
inconsistent with the notion that municipalities already had this power,
in the absence of specific legislative action authorizing a municipality
to impose taxes, the municipality does not have the authority to impose
business license fees. Weno v. Stinnett,
9 FSM Intrm. 200, 207 (App. 1999). Constitutional Law
) Chuuk )
Interpretation; Taxation )
Constitutionality
When
the Chuuk Constitution says the state "may delegate certain taxing powers
to the municipal governments by statute," it is plain that "certain" in
this context means nothing more, and nothing less, than that the state
government may delegate such of its taxing powers as it sees fit ) the point is that the
option is the state government's. Weno v.
Stinnett, 9 FSM Intrm. 200, 207 (App. 1999). Constitutional Law
) Chuuk )
Interpretation
When a
section of the Chuuk Constitution is clear on its face, consideration of
this provision's legislative history is inappropriate. Weno v. Stinnett, 9 FSM Intrm. 200, 208 (App.
1999). Constitutional Law
) Chuuk )
Interpretation
A
committee report that refers to language that is not in the Constitution
and that accompanied a committee proposal that was killed by the
Constitutional Convention cannot be relied upon to discover the real
intent of the framers. At best it can only be used to show what was
not their intent. Weno v. Stinnett, 9
FSM Intrm. 200, 208 (App. 1999). Constitutional Law
) Chuuk )
Interpretation; Taxation )
Constitutionality
The
only conclusion to be fairly drawn from the deletion of a sentence giving
the municipal governments the exclusive power to levy head taxes and
business license fees from the proposal as adopted is that the Chuuk
Constitution's framers did not intend that the municipal governments
should have the power to levy head taxes and business license fees.
Weno v. Stinnett, 9 FSM Intrm. 200, 208
(App. 1999). Federalism ) Abstention and
Certification
Certification as practiced in the FSM is a judicially
devised procedure that is entirely discretionary with the court. Weno v. Stinnett, 9 FSM Intrm. 200, 209 (App.
1999). Federalism ) Abstention and
Certification
Just as
the trial court could exercise its discretion to certify the questions on
its own motion, it could properly exercise that discretion to grant
plaintiffs' unopposed motion to withdraw the certification after nearly a
year had elapsed without any indication from the Chuuk state court
appellate division that it would hear the question. Weno v. Stinnett, 9 FSM Intrm. 200, 209 (App.
1999). Appeal and Certiorari
) Standard of
Review
The
trial court abuses its discretion when its decision is clearly
unreasonable, arbitrary, or fanciful. Weno
v. Stinnett, 9 FSM Intrm. 200, 209 (App. 1999). Federalism ) Abstention and
Certification
Events
transpiring in other litigation before the Chuuk State Supreme Court trial
division did not have the capacity, by their mere
occurrence, to create reversible error in a different case before a
different court. The FSM trial court was not obliged to be aware of
and draw inferences from those events, which did not constitute
controlling precedent, in order to discern the Chuuk State Supreme Court
appellate division's mind with respect to the certification question.
When Chuuk State Supreme Court appellate division did not speak to
the certification issue, the FSM Supreme Court trial division properly
exercised its discretion to withdraw the certification. Weno v. Stinnett, 9 FSM Intrm. 200, 209-10 (App.
1999). Appeal and Certiorari
) Standard of
Review; Federalism ) Abstention and
Certification
The
standard of review for a decision not to abstain is that of abuse of
discretion. Weno v. Stinnett, 9 FSM
Intrm. 200, 210 (App. 1999). Federalism ) Abstention and
Certification
An
abstention request that comes after trial, and after the case had been
pending for approximately five years, is untimely. Weno v. Stinnett, 9 FSM Intrm. 200, 210 (App.
1999). Federalism ) Abstention and
Certification
Abstention requires the initiation of a new lawsuit in a
state court. Weno v. Stinnett, 9 FSM
Intrm. 200, 210-11 (App. 1999). Taxation ) Recovery of
Taxes
For a
plaintiff to recover payments made under an unconstitutional tax statute,
he must demonstrate that he made those payments under both duress and
notice of protest. Weno v. Stinnett, 9
FSM Intrm. 200, 211 (App. 1999). Taxation )
Constitutionality; Taxation ) Recovery of
Taxes
Because
a man who denies the legality of a tax should have a clear and certain
remedy, justice may require that he should be at liberty to pay promptly
and bring suit on his side. Weno v.
Stinnett, 9 FSM Intrm. 200, 212 (App. 1999). Taxation )
Constitutionality; Taxation ) Recovery of
Taxes
The
filing of a suit to contest the legality of a tax, which the trial court
found to be the plaintiffs' only remedy, obviates the need for
demonstrating duress and notice of protest, as required by the common law,
for payments made after suit is instigated. The filing of suit is
protest of the most emphatic sort, and allowing a claim for recovery for
payments made thereafter without regard to duress recognizes the "implied
duress" under which contested taxes are paid. Weno v. Stinnett, 9 FSM Intrm. 200, 212 (App.
1999). Taxation )
Constitutionality; Taxation ) Recovery of
Taxes
Duress
and protest need not be shown to state a claim for recovery of tax
payments extracted under an unconstitutional enactment when the plaintiffs
seek refund of payments made after instigation of suit in a court having
jurisdiction over the parties, and when such a lawsuit is the plaintiff's
only remedy. Weno v. Stinnett, 9 FSM
Intrm. 200, 212 (App. 1999). Constitutional Law
) Due Process;
Constitutional Law ) Interpretation
Since
the Due Process Clause in the
Declaration of Rights of the FSM Constitution is based on the Due
Process Clause of the U.S. Constitution's Fourteenth Amendment, the FSM
Supreme Court may properly consider U.S. cases in construing due process
under the FSM Constitution. Weno v.
Stinnett, 9 FSM Intrm. 200, 213 (App. 1999). Taxation )
Constitutionality; Taxation ) Recovery of
Taxes
The
taxing authority, if it opts not to provide predeprivation process, must
by way of post deprivation process provide a clear and certain remedy for
any erroneous or unlawful tax collection to ensure that the opportunity to
contest the tax is a meaningful one. A clear and certain remedy is
one designed to render the opportunity to challenge a tax meaningful by
preventing any permanent unlawful deprivation of property. Weno v. Stinnett, 9 FSM Intrm. 200, 213 (App.
1999). Taxation )
Constitutionality
When
deciding the question of retroactivity of a decision declaring a tax
unconstitutional, a court considers three factors: 1) whether a
decision enunciates a new and unanticipated principle; 2) whether
retroactive application to this case would promote implementation of the
rule at issue, taking into consideration the rule's history; and 3) the
equities of the case as they are associated with retroactive application.
Weno v. Stinnett, 9 FSM Intrm. 200, 214
(App. 1999). Taxation )
Constitutionality; Taxation ) Recovery of
Taxes
Because
the Chuuk Constitution is clear that only the state government has the
power to tax, it cannot be said that such a resolution could not be
predicted. Weno v. Stinnett, 9 FSM
Intrm. 200, 214 (App. 1999). Taxation )
Constitutionality; Taxation ) Recovery of
Taxes
To
permit taxes to be retained that were extracted under an unconstitutional
statute would have the effect of prolonging the viability of an ordinance
that runs afoul of the Chuuk Constitution, at the expense of establishing
the correct rule. The better course is to permit recovery of the
taxes. Weno v. Stinnett, 9 FSM Intrm. 200, 214
(App. 1999). Taxation )
Constitutionality; Taxation ) Recovery of
Taxes
When
litigation over the constitutionality of a municipality's taxes was
pending for five years, the municipality was put on notice early on that
the taxes collected under the ordinances were subject to a claim for
refund, and nothing prevented the municipality from planning for this
eventuality. Having failed to do so, it cannot now claim hardship.
Weno v. Stinnett, 9 FSM Intrm. 200, 214
(App. 1999). *
* *
* COURT'S OPINION
MARTIN YINUG, Associate
Justice: Introduction and Procedural History
These two
cases raise the same central issue, whether Weno Municipal Ordinances
011-88, 04-03-92, and 01-01-93 violate article
VIII, section 7 of the Chuuk Constitution. Weno v. Stinnett et al., App. Case No. C2-1997,
("Stinnett") raises the constitutionality of
ordinance 01-01-93, while Weno v. Chuuk Chamber of
Commerce et al., App. Case No. C3-1997 ("Chuuk
Chamber") challenges all three. Municipal Ordinance 001-88 was
in effect as of October 1, 1988, when the Chuuk Constitution went into
effect; ordinances 04-03-92 and 01-01-93 were its successors. These
ordinances impose business license fees. It was undisputed that
these fees are taxes, and the trial court found that they violated the
Chuuk Constitution. In addition, in the case below in Chuuk Chamber, plaintiffs sought and obtained a
judgment for a refund of the taxes which they had paid after the filing of
suit. For the
reasons set out below, we affirm the trial court's decisions in both cases
in their entirety. Acting pursuant to FSM Appellate
Rule 3(b), which provides in pertinent part that "appeals may be
consolidated by order of the FSM
Supreme Court appellate division upon its own motion," we consolidate
these cases for purposes of rendering our opinion. We first offer
the relevant procedural history. Plaintiffs in
both cases filed summary judgment motions on the constitutionality
question. The trial court deferred ruling on the motions, and on
August 25, 1994, in both cases and on its own motion after soliciting the
comments of the parties, certified the constitutionality issue to the
Appellate Division of the Chuuk State Supreme Court. In Chuuk Chamber, the trial court also certified the
refund issue. The Chuuk Appellate Division had not acted on the certified
questions as of August 14, 1995, and on the plaintiffs' unopposed motions
in both cases to vacate the certification, the trial court did so by
separate orders entered in both cases on September 22,
1995. The trial
court then ruled on the summary judgment motions on the constitutionality
issue, and by a single order entered in both lawsuits on August 30, 1996,
found that the ordinances violated article
VIII, section 7 of the Chuuk Constitution.1
This order terminated the case below in Stinnett, since plaintiffs in that case had
sought only declaratory and injunctive relief to enjoin the collection of
the tax.2 Judgment
permanently enjoining enforcement of Municipal Ordinance 01-01-93 was
subsequently entered in that case on June 20, 1997. The case below
in Chuuk Chamber proceeded to trial on March 5
and 6, 1997, because in addition to requesting declaratory and injunctive
relief, plaintiffs had also sought a refund of the taxes which they had
paid under the ordinances. On July 4, 1997, the court entered its
findings of fact and conclusions of law in which it found in favor of
plaintiffs, awarding refunds ranging in amount from $1,500 (to plaintiff
Kristoph Killion) to $29,350 (to plaintiff Black Micro Corporation), for a
total of $208,754.00. On the same day, Weno filed a motion to
vacate, alter, or amend judgment in the case below in Stinnett; also on the same day in the case below
in Chuuk Chamber, which by that time had
proceeded to trial, Weno filed a motion to modify the order granting
summary judgment. These motions were made in a single pleading and
addressed the constitutionality issue, which was the basis for the trial
court's August 30, 1996, order granting plaintiffs' motions for summary
judgment. These motions were denied by a single order entered on
August 5, 1997, in both cases. Stinnett v. Weno, 8 FSM Intrm.
142 (Chk. 1997). Also on August 5, 1997, judgment was entered in
the case below in Chuuk Chamber. Appeals in
both cases followed. Issues
Stinnett raises two issues on appeal; Chuuk Chamber raises those two same issues (the
text discussing them in all of the briefs is identical), plus three more.
The main issue is the first one as it appears in both briefs:
whether the trial court erred in granting the plaintiff's motion for
summary judgment when it found the ordinances violative of the Chuuk
Constitution. Also made part of this first issue in both cases is the question
whether the trial court erred when it denied Weno's request for the trial
court to reverse itself on the grant of summary judgment to plaintiffs in
both cases on the constitutionality question.3
Both motions were brought in a single pleading, and as discussed infra under issue one, section B, the basis for
them was what was alleged to be newly discovered evidence in the form of a
Subcommittee Report from the 1988 Chuuk (then Truk) Constitutional
Convention, and a Committee Proposal based thereon. As to the
remaining issues, we recite appellant's formulation. The second
issue, identical in both cases, is as follows: Issue two: Whether the trial court erred in
withdrawing its request for certification of question of law to the
Appellate Division of the Chuuk State Supreme Court.
The additional three issues raised only
in Chuuk Chamber are: Issue three: Whether the trial court erred in
refusing to consider appellant's request for abstention on the
refund/reimbursement issue. Issue four: Whether the trial court erred in
denying appellant's motion for summary judgment on the reimbursement
issue. Issue five: Whether the trial court erred in
applying McKesson to require appellant to
refund fees paid after the initiation of the litigation. We address each question in
turn. Discussion
Issue one
A. Summary Judgment on the Constitutionality
Issue
Summary
judgment under Rule 56 of the FSM Rules of Civil
Procedure is appropriate where, viewing the facts in the light most
favorable to the party against whom judgment is sought, there is no
genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Nanpei v. Kihara, 7 FSM Intrm.
319, 323 (App. 1995); Etscheit v. Adams, 6 FSM Intrm
365, 373 (Pon. 1994). The trial court decided the motions as a
matter of law. We review issues of law de novo. Nanpei, 7
FSM Intrm. at 323-24. By its August
30, 1996, order, and upon the plaintiffs' summary judgment motions in both
cases, the trial court found that all three of the challenged ordinances,
Weno Municipal Ordinance 011-88, 04-03-92, and 01-01-93, violated article
VIII, section 7 of the Chuuk Constitution. The uncontested fact
below was that those ordinances impose a tax in the form of a business
license fee. Article
VIII, section 7, of the Chuuk Constitution states: "The State
Government has the power to tax, and may delegate certain taxing powers to
the municipal governments by statute. All taxes levied by the State
Government shall be prescribed by statute." The meaning of
this provision is forthright, and we apply our analysis to the language of
this constitutional provision as it appears on its face. The state
government of Chuuk has the power to levy taxes. The language, "and
may delegate certain taxing powers to the municipal governments by
statute," contemplates that municipal governments are invested with the
power to tax only insofar as they receive that power from the state
government. The state government did not delegate the power to Weno
in this case. Without express delegation to Weno of the authority to
tax, Weno lacked this power. We find article
VIII, section 7, subject to no other interpretation. Weno, however,
urges that the provision does not speak with so certain a voice. Weno
points out that the provisions does not say that state government has the
"exclusive" power to tax, and therefore concludes that the power to tax
also lies with the municipalities ab initio.
Matters are further complicated, according to Weno, because the
provision provides that the state government may delegate "certain" taxing
powers. Weno contends that the use of "certain" creates an
ambiguity, because it leaves open the question which powers the state
government may delegate. We do not
derive significance from the fact that the word "exclusive" does not
qualify "power to tax." The axiomatic language of the organic
provision provides, in one sentence, for the creation of the state taxing
power and its delegation, as the state government may elect, to the
municipal governments. Article XIII,
section 1 of the Chuuk Constitution provides that "[t]he two levels of
government in the State of Chuuk are state and municipal." We agree
with the trial court that as between these two levels of government, "the
one holding the right to delegate is superior." Stinnett v.
Weno, 7 FSM Intrm. 560, 562 (Chk. 1996). Express provision
for delegation of the taxing authority is inconsistent with the notion
that Weno already had this power. In the absence of specific
legislative action authorizing Weno to impose the taxes at issue, Weno did
not have the authority to impose the business license
fees. Nor do we
conclude, as Weno would have it, that the use of the word "certain" to
describe the taxing powers delegable by the Chuuk state government
suggests an ambiguity. The provision provides that Chuuk "may
delegate certain taxing powers to the
municipal governments by statute." Chk. Const. art.
VIII, § 7 (emphasis added). It is plain that "certain" in this
context means nothing more, and nothing less, than that the state
government may delegate such of its taxing powers as it sees fit ) the point is that the
option is the state government's. We find no ambiguity in this
regard. For these
reasons, the trial court was correct when it granted summary judgment in
favor of plaintiffs on the issue of the constitutionality of Weno's
authority to impose the business license fees, and we
affirm. B. Motion to Vacate or Alter or
Amend Judgment in the Case below in Stinnett; the Motion to Modify Order
Granting Summary Judgment in the Case below in Chuuk Chamber
As previously
noted, the basis for both of these motions was the same. At page 4
of the combined motion filed in both cases on July 4, 1997, Weno stated
that "the defendant has discovered important evidence/legal authority not
previously before this court," and sought to bring before the
court an affidavit of Hernak Paul, who
according to his affidavit was the chief clerk of the Second Chuuk State
Constitutional Convention. No journal was maintained of that
convention. However, Mr. Paul was able to locate a copy of Standing
Committee Report No. 36 (SCREP. No. 36). Weno urged in its motion
that it was clear from the report that "the intent was to centralize the
taxing power with the State government, but also to allow the
municipalities to retain the right to impose business license fees and
head taxes." Motion to Modify Order Granting Summary Judgment at
5. The trial
court denied the motion, holding that because article VIII, section 7 of
the Chuuk Constitution did not admit of ambiguity, there was no need to
consider SCREP. No. 36. Further, the trial court found that the
material which the defendant sought to bring before the court did not
qualify as newly discovered evidence, since there was no evidence
presented as to the alleged prior unavailability of the committee report.
However, the trial court went on to review the materials presented,
and concluded that their content in fact supported the grant of the motion
for summary judgment, and was not a basis for vacating the order granting
summary judgment. We do not
rehearse here the well-reasoned opinion of the trial court on these points
raising mixed questions of law and fact, and reported at 8 FSM Intrm. at
146-47, except to emphasize the following. First, we have held today
that article VIII, section 7 of the Chuuk Constitution is clear on its
face. Consideration of the legislative history of this provision is
therefore inappropriate. Nena v. Kosrae
(III), 6 FSM Intrm. 564, 568 (App. 1994); Robert v. Mori, 6 FSM Intrm. 394, 397 (App.
1994). Second, this suit was filed on September 1, 1992, and Weno's
motion alleging the existence of newly discovered evidence was filed
nearly five years later on July 4, 1997. The new materials which
Weno sought to bring before the court bear a date of October of 1988, and
nothing below suggested that anything had prevented Weno's access to these
materials during the course of the litigation. These facts amply support
the trial court's finding that these materials did not constitute newly
discovered evidence. Third, and
last, with respect to SCREP. No. 36, we note as follows. SCREP. No.
36 contains this comment: "Municipalities currently have the power
to raise revenues through head taxes and business license fees." The
proposal issuing from the committee was consistent with this comment, and
was in the following form: "The State Government shall have the
power to tax, and may delegate such powers to the Municipal Governments by
law. The Municipal Governments shall have the exclusive power to
levy head head [sic] taxes and business license fees. All State taxes
shall be prescribed by statute." However, the second sentence was
stricken in its entirety, and pointedly we think, by handwritten slash
marks from the final proposal as adopted. As the court in Luzama v. Ponape Enterprises Co., 7 FSM Intrm.
40, 47 (App. 1995) observed: A committee report that refers to language that is
not in the Constitution and that accompanied a committee proposal that was
killed by the Constitutional Convention cannot be relied upon to discover
the real intent of the framers. At best it can only be used to show
what was not their intent. Similarly, the only conclusion to be
fairly drawn from the deletion of the sentence, "The Municipal Governments
shall have the exclusive power to levy head head [sic] taxes and business
license fees," in the proposal as adopted is that the framers did not
intend that the municipal governments should have the power to levy head
taxes and business license fees. For these
reasons, the trial court was correct when it denied Weno's motion to
vacate or alter or amend judgment in Stinnett,
and the motion to modify order granting summary judgment in Chuuk Chamber. We affirm on this
point. Issue two: Whether
the trial court erred in withdrawing its request for certification of
question of law to the Appellate Division of the Chuuk State Supreme
Court. On August 25,
1994, the trial court, on its own motion but after consultation with the
parties, certified the question of the constitutionality of the ordinances
at issue to the Appellate Division of the Chuuk State Supreme Court.
The stated basis for the certification was that this was a question
"more properly settled by the courts of Chuuk State rather than by this
Court." As of August 14, 1995, the Appellate Division of Chuuk State
Supreme Court had taken no action, and on that date, plaintiffs filed
their Motion to Vacate Certification of Questions. On September 22,
1995, the trial court entered an order vacating the certification, noting
that the motion was unopposed, and citing the fact that the Chuuk
Appellate Division had neither noticed the parties of its consent to hear
the question nor noticed the parties of any scheduled proceedings.
The trial court concluded that the Appellate Division of the Chuuk
State Supreme Court had declined to entertain the certified
questions. There was no
error in the trial court's withdrawal of the certification.
Certification as practiced in the FSM is a judicially devised
procedure that is entirely discretionary with the court. Panuelo v.
Pohnpei (III), 2 FSM Intrm. 244, 246 (Pon. 1986); Pryor v.
Moses, 4 FSM Intrm. 138, 141 (Pon. 1989) ("the choice of whether
to . . . certify questions is one that lies wholly within the discretion
of the Court"). Nothing required the certification in the first instance.
It was the court itself that initiated the discussions about
possible certification in the first place when it issued a notice on June
28, 1994, inviting the comments of the parties on the certification issue.
Just as the trial court could exercise its discretion to certify the
questions on its own motion, it could properly exercise that discretion to
grant plaintiffs' unopposed motion to withdraw the certification after
nearly a year had elapsed without any indication from the Chuuk State
Appellate Division that it would hear the question. The trial court
abuses its discretion where its decision is "clearly unreasonable,
arbitrary, or fanciful." Jano v. King, 5 FSM Intrm.
326, 330 (App. 1992) (citing Heat &
Control, Inc. v. Hestor, Inc., 785 F.2d 1017, 1022 (Fed. Cir. 1986)).
The facts before us do not demonstrate abuse of judicial discretion,
and we find that there was none. Weno, however,
urges that the withdrawal of the certification was error by making
inferences from events occurring in another case. At relevant times,
Wainit v. Weno, Civil Action No. 122-93, was
pending before the Chuuk State Supreme Court Trial Division. In the
Wainit case, plaintiff had challenged the
constitutionality of one of the same Weno municipal ordinances at issue
here, 01-01-93. On April 17, 1995, while the certification in the
instant cases was pending before the Appellate Division, the Chuuk State
Supreme Court Trial Division found that Weno Municipal Ordinance 01-01-93
was constitutional, and that Weno could properly impose the licensing
fees.4 Plaintiff in Wainit had then appealed that decision to the
Chuuk Appellate Division, and the appeal was pending at the time the
certification was withdrawn. That appeal was subsequently dismissed
for lack of prosecution by a single justice of the Chuuk State Appellate
Division. 5 The thrust of
all of this, according to Weno, is that "[a]rguably, the Appellate
Division of the State Court could have consciously
delayed in answering the certified questions while the same issues were
currently pending before its trial division, pending that outcome."
Appellant's Initial Brief in Stinnett at
23; Appellant's Initial Brief in Chuuk Chamber
at 19. Weno also urges that "the trial Court abused its discretion
in withdrawing the request for certification, even with the unopposed
motion to withdraw filed by Appellees, since the motion filed by Appellees
omitted to inform the court that the Chuuk Court [i.e., the Chuuk trial
division] had already ruled on the key issue certified." Appellant's
Initial Brief in Stinnett at 23; Appellant's
Initial Brief in Chuuk Chamber at
19. We are not
persuaded that events transpiring in other litigation before the trial
division of the Chuuk State Supreme Court had the capacity, by their mere
occurrence, to create reversible error in the instant case, a different
case before a different court. The trial court was not obliged to be
aware of and draw inferences from those events, which did not constitute
controlling precedent, in order to discern the mind of the Appellate
Division of the Chuuk State Supreme Court with respect to the
certification question at bar. The Chuuk Appellate Division was
fully capable of speaking to the certification issue in this case.
When it did not, the trial court properly exercised its discretion
to withdraw the certification. Accordingly,
no error resulted when the trial court withdrew the certification of
questions to the Appellate Division of the Chuuk State Supreme Court.
We affirm on this issue. Issue three:
Whether the trial court erred in refusing to consider appellant's
request for abstention on the refund/reimbursement issue. Weno contends
that the trial court erred when it denied its request for abstention.
Trial took place on March 5 and 6, 1997, on the remaining issue,
that of refund. On June 9, 1997, the court issued a notice inviting
the parties' comments on the limited question of whether the parties were
entitled to refund for taxes paid after institution of suit. In
response, Weno filed its Memorandum by Defendant on June 24, 1997.
In that memorandum, Weno asserted that "it is appropriate for this
Court to now abstain on the issue of the refund in order to permit the
State of Chuuk Supreme Court Appellate Division to resolve this issue and
to exercise jurisdiction over this part of the case." Memorandum of
Defendant at 6 (June 24, 1997). 6 The trial
court concluded that the motion for abstention came too late. The
standard of review for a decision not to abstain is that of abuse of
discretion.Nanpei, 7 FSM Intrm. at
322. We agree that
the request for abstention, coming as it did after trial on the issue as
to which abstention was sought, was untimely. To render the two day
trial in this matter redundant by granting abstention would have resulted
in a pointless expenditure of the finite judicial and legal resources
necessary for a trial to take place. It also would have prolonged
unnecessarily the resolution of this matter. In Gimnang v. Trial Division, 6 FSM Intrm 482, 485
(App. 1994), we emphasized the distinction between certification and
abstention:
In the case of 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. The abstention request came after
trial, and after the case had been pending for approximately five years.
Abstention would have required initiation of a new lawsuit in the
state court, and the consequent delay would have prolonged the resolution
of the parties' dispute. These factors militated against granting
the request for abstention. For these
reasons, we find that the trial court did not abuse its discretion in
denying the request for abstention. We affirm on this
issue. Issue four: Whether
the trial court erred in denying appellant's motion for summary judgment
on the reimbursement issue. On February 7,
1997, Weno filed its Motion for Partial Summary Judgment on Reimbursement
Issue. Weno urged in that motion, and correctly so as a general
proposition, that payments made under an unconstitutional statute cannot
be recovered back unless those payments are made involuntarily and under
protest.Innocenti v.
Wainit, 2 FSM Intrm. 173, 187 (App. 1986). Weno contended
that it was entitled to summary judgment, because the contested payments
were not made under any form of duress. At the request of the
parties, the court held an evidentiary hearing on the defendant's motion
for summary judgment on March 5, 1997, just prior to the commencement of
trial on that same day. The court denied the motion from the bench
without stating the specific basis for the denial. Since the
trial court did not give its reasoning for its oral denial of the motion,
we review this denial in light of the court's subsequent ruling after
trial on the reimbursement issue, which the trial court decided on a
legal, not factual, basis. We conclude that the trial court was correct on
the law, and that it therefore correctly denied the motion. We
review this legal point de novo. Nanpei, 7 FSM Intrm. at
323-24. In its
findings of fact and conclusions of law, the trial court drew a
distinction between the taxes paid by the plaintiffs before the inception
of the lawsuit, and those paid afterwards. The only contested
payment made before suit was filed was one made by the Brutons on July 17,
1989. As to that payment, the trial court denied recovery because it
was made before the effective date (October 1, 1989) of the Chuuk
Constitution under which the payments were challenged, and that portion of
the trial court's ruling is not at issue on appeal. As to the
payments made after the filing of suit, while acknowledging itself bound
by our precedent in Innocenti v. Wainit, 2 FSM
Intrm. 173 (App. 1986), the trial court found that the filing of suit
served the same purpose as duress and protest. The court concluded
that "[t]he rule, lacking support in reason, itself falls. This is
because `the rule ceases with the reason on which it is founded.' Hunt v. Rousmanier's Adm'rs, 21 U.S. (8 Wheat.)
174, 205, 5 L. Ed. 589, 597 (1823) (Marshall, C. J.)." Stinnett v.
Weno, 8 FSM Intrm. 122, 126 (Chk. 1997). In Innocenti, 2 FSM Intrm.
173, 187 (App. 1986), we adopted the common law rule that in order for
a plaintiff to recover payments made under an unconstitutional tax
statute, he must demonstrate that he made those payments under both duress
and notice of protest. Id. In Innocenti, there was no
question that the taxpayers had paid the tax under duress, since they had
to pay the tax in order to get their goods released from the dock.
Id. The trial division of the Yap
State Court adopted Innocenti as controlling
precedent in a case involving the same facts on the question of duress.
In Gimnang v.
Yap, 7 FSM Intrm. 606 (Yap S. Ct. Tr. 1996), under a statute
similar to the one challenged in Innocenti,
plaintiff likewise could not take delivery of his goods until he paid the
tax. Hence, duress was a settled point in both Innocenti and Gimnang. In considering
the issue of duress in the present case, we look to Atchison, Topeka, & Santa Fe Railway Co. v.
O'Connor, 233 U.S. 280, 285-86, 32 S. Ct. 216, 217, 56 L. Ed. 436, 438
(1912) (Holmes, J.), a seminal case in that it establishes the notion of a
"clear and certain remedy" for a taxpayer from whom an illegal tax has
been extracted. This remains the benchmark in the United States by which
post deprivation due process (i.e., the right to contest a tax after
payment) is measured. See McKesson Corp. v. Division of Alcoholic Beverages
& Tobacco, 496 U.S. 18, 39, 110 S. Ct. 2238, 2251, 110 L. Ed. 2d
17, 37 (1990), discussed infra under issue
five. O'Connor, like the two cases at
bar, was "an action to recover taxes paid under duress and protest, the
plaintiff contending that the law under which the tax was levied is
unconstitutional." 233 U.S. at 285, 32 S. Ct. at 217, 56 L. Ed. at
438. After noting that "it is reasonable that a man who denies the
legality of a tax should have a clear and certain remedy," id., Justice Holmes went on to observe
that courts sometimes, perhaps, have been a little too
slow to recognize the implied duress under which payment [of contested
taxes] is made. But even if the state is driven to an action, if, at
the same time, the citizen is put at a serious disadvantage in the
assertion of legal, in this case his constitutional, rights, by defense in
the suit, justice may require that he should be at liberty to avoid those
disadvantages by paying promptly and bringing suit on his side. He
is entitled to assert his supposed right on reasonably equal terms.
See Ex parte Young, 209 U.S. 123, 146, 52 L. ed. 714, 723, 13 L.R.A.
(N.S.) 932, 28 Sup. Ct. Rep. 441, 14 A. & E.Ann. Cas.
764. Id. at 286,
32 S. Ct. at 217, 56 L. Ed. at 438. We find these
words persuasive. We agree with the trial court that the filing of
such a suit, which the trial court found to be the plaintiffs' only remedy
in both cases below, obviates the need for demonstrating duress and notice
of protest as required by the common law, for payments made after suit is
instigated. The filing of suit is protest of the most emphatic sort,
and allowing a claim for recovery for payments made thereafter without
regard to duress recognizes the "implied duress" under which taxes are
paid. A taxpayer no longer faces the predicament of waiving a claim
for recovery in the event that the degree of any alleged pressure he felt
to make the payments turns out to be insufficient to make his payments
involuntary within the context of the duress requirement of the common law
rule, thus avoiding entirely an inquiry as to the degree of objective
pressure versus subjective pressure that the taxpayer may have felt.
In Justice Holmes' words, it ensures that the taxpayer "is entitled
to assert his supposed right on reasonably equal terms," id., and that the dispute will proceed to
resolution within the ordered confines of the lawsuit. Specifically,
it avoids an inquiry into the effect of the police visits to certain of
the taxpayers in these cases, where the stated purpose of the visits was
to remind the taxpayers to pay. During the pendency of suit, the
taxpayer may make his payments as they come due, with the knowledge that
his right to state a claim for refund has been preserved. Accordingly,
we hold that duress and protest need not be shown to state a claim for
recovery of tax payments extracted under an unconstitutional enactment
where the plaintiffs seek refund of payments made after instigation of
suit in a court having jurisdiction over the parties, and where such a
lawsuit is the plaintiff's only remedy. We affirm the trial court's
denial of Weno's motion for summary judgment on the reimbursement
issue. In leaving
this point, we offer a caveat. Our holding today on the duress and
notice of protest question is separate from the issue of retroactivity.
It is a self-evident proposition that any judgment for a refund is
retroactive, because a refund by definition is the return of money already
paid. On the facts of the case below in Chuuk Chamber, we determine that duress and
notice of protest are not necessary elements of a claim for refund.
However, a resolution in favor of a plaintiff on the retroactivity
issue, where it is duly raised, remains a predicate to a
refund. Issue five: Whether
the trial court erred in applying McKesson to
require appellant to refund fees paid after the initiation of the
litigation. In the case
below in Chuuk Chamber, the complaint was
filed on September 9, 1992. The court granted summary judgment
finding the ordinances to be unconstitutional under the Chuuk Constitution
on August 30; final judgment for refund was entered on August 5, 1997.
Weno contends that the trial court erred when it found that the
taxes paid during the pendency of the lawsuit should be refunded
retroactively to the time of the filing of the lawsuit. In analyzing
the retroactivity question, the trial court looked to the test that we
have previously adopted in Innocenti v. Wainit, 2 FSM
Intrm. 173, 185-86 (App. 1986). As a preface to its discussion
the trial court, citing McKesson Corp. v. Division
of Alcoholic Beverages & Tobacco, 496 U.S. 18, 110 S. Ct. 2238,
110 L. Ed. 2d 17 (1990), observed that Weno's position that it not pay any
refund had due process implications. McKesson involved a challenge to a Florida liquor
tax that gave favorable treatment to beverages manufactured from Florida
agricultural crops, the challenge resting in part on the Due Process
Clause of the Fourteenth Amendment of the U.S. Constitution. 496
U.S. at 22-23, 36, 110 S. Ct. at 2242-43, 2250, 110 L. Ed. 2d 27, 35-36.
Since the Due Process Clause found in the Declaration of Rights of
the FSM Constitution is based on the Due Process Clause of the U.S.
Constitution's Fourteenth Amendment, we have held that we may properly
consider cases such as McKesson in construing
due process under the FSM Constitution.Ludwig v. FSM 2 FSM Intrm.
27, 35 (App. 1985); Ishizawa v. Pohnpei, 2
FSM Intrm. 67, 76 (Pon. 1985). The United
States Supreme Court in McKesson noted that it
was "well established that a State need not provide predeprivation process
[i.e., process before payment] for the exaction of taxes." 496 U.S.
at 37, 110 S. Ct. at 2250, 110 L. Ed. 2d at 36. This is because
"[a]llowing taxpayers to litigate their tax liabilities prior to payment
might threaten a government's financial security, both by creating
unpredictable interim revenue shortfalls against which the State cannot
easily prepare, and by making the ultimate collection of validly imposed
taxes more difficult." Id.
However, the taxing authority, if it opts not to provide
predeprivation process, must by way of post deprivation process provide a
"`clear and certain remedy,' O'Connor, 223
U.S., at 285, 56 L.Ed. 436, 32 S.Ct. 216, for any erroneous or unlawful
tax collection to ensure that the opportunity to contest the tax is a
meaningful one." McKesson, 496 U.S. at
39, 110 S. Ct. at 2251, 110 L. Ed. at 37. A "clear and certain
remedy" is one "designed to render the opportunity [to challenge a tax]
meaningful by preventing any permanent unlawful deprivation of property."
McKesson, 496 U.S. at 40, 110 S. Ct. at
2252, 110 L. Ed. 2d at 38. Weno did not
provide any such post deprivation process. However, Weno would
distinguish McKesson on the basis that the
taxpayers in this case, unlike those in McKesson, had a predeprivation remedy, thus
obviating the necessity for any kind of post deprivation due process.
According to appellant, "[t]he fees were due every year, in an
annual payment, due in July. Prior to payment in July of any given
year, any appellee had the ability to challenge the legality or
constitutionality of the ordinance imposing the fee." Appellant's
Initial Brief at 38. If this is saying that the business owners in
this case should have paid their fees on any given July 15th, the due date
of the tax, and then instituted suit on July 16th in expectation of
resolving the constitutionality of the upcoming tax before the following
July 15th, then we find this argument unpersuasive. Under this
paradigm, the taxpayer would still be left without a remedy for the taxes
until the commencement of the selected one year window period, which would
have to be contested on a post deprivation, not predeprivation, basis.
Additionally, this litigation has been pending since 1992, so it
seems unlikely that the taxpayers had the realistic option of resolving
the constitutionality of the challenged tax within the one year period
posited by Weno. We conclude that Weno provided for no
predeprivation process for challenging the constitutionality of the
ordinance. Since Weno
provided neither pre- nor post deprivation process, not for consideration
is whether that remedy was sufficiently adequate such that we need not
address the refund question.7
We turn then to whether the Chuuk
Chamber plaintiffs were entitled to recover their payments, and
conclude that they were. This court has
previously considered the question of retroactivity of a decision
declaring a tax unconstitutional. In deciding this question, the
court in Innocenti v.
Wainit, 2 FSM Intrm. 173, 185-86 (App. 1986) (citing Chevron Oil Co. v. Huson, 404 U.S. at 106, 92 S.
Ct. at 355, 30 L. Ed. 2d 296 (1971)), considered three factors: 1)
whether a decision enunciates a new and unanticipated principle; 2)
whether retroactive application to this case would promote implementation
of the rule at issue, taking into consideration the rule's history; and 3)
the equities of the case as they are associated with retroactive
application. As to the
first factor, the essential point of our decision today is
straightforward. We conclude that on its face, article
VIII, section 3 of the Chuuk Constitution is clear that only the state
government has the power to tax. The language of this provision has
remained static from the time the Chuuk Constitution was adopted. Our
interpretation of this language does not overrule any past precedent, and
it cannot be said that our resolution of this issue could not have been
predicted. To the contrary, our holding today is based on what we
consider to be a self-evident reading of article
VIII, section 7 of the Chuuk Constitution. For these reasons,
the first factor favors a finding of retroactive
application. With respect
to the second factor, the facts of Innocenti
are helpful. In that case, the issue was similar ) whether a state could
impose an import tax in the face of a provision in the FSM Constitution
that the FSM had the exclusive power to impose such taxes. We held
that Chuuk did not have the power to impose the tax, and held that the
decision should be applied retroactively to permit plaintiffs to recover
the tax. In considering the second Innocenti factor, we observed that to "permit
collection of taxes accrued up to the date of the trial court's decision
would prolong the period of overlapping taxation and administrative
duplication, contrary to the purposes of the constitutional rule placing
the power to base taxes on imports exclusively with the national
government." 2 FSM Intrm. at 185-86.
Similarly, to permit Weno to retain the taxes which it extracted
under an unconstitutional statute would have the effect of prolonging the
viability of an ordinance that runs afoul of the Chuuk Constitution, at
the expense of establishing the correct rule. The better course is
to apply our holding retroactively to permit recovery of the
taxes. The third
consideration is the equities of this matter. Weno cites the
hardship it will face in its fiscal administration should it be required
to refund the taxes. However, that argument misses the point, since the
position in which Weno finds itself is of its own creation. A
reading of the plain language of the Chuuk Constitution leads to the
conclusion that Weno had imposed, and had collected, an unconstitutional
tax. This litigation has been pending for five years, and the vast
bulk of the judgment amount is for taxes paid during this period.
Weno was therefore put on notice early on that the taxes collected
under the ordinances were subject to a claim for refund, and nothing
prevented Weno from planning for this eventuality. Having failed to
do so, Weno cannot now claim hardship. For these
reasons, we affirm the trial court's finding that its decision regarding
the unconstitutionality of article
VIII, section 3 of the Chuuk Constitution should be applied
retroactively to permit recovery of the disputed taxes. Conclusion
Based on the
foregoing, we affirm the decisions of the trial court in both Weno v. Stinnett et al., Appeal Case No. C2-1997,
and Weno v. Chuuk Chamber of Commerce et al.,
Appeal Case No. C3-1997, in their entirety.
Footnotes:
1. The trial court in Stinnett had previously entered partial summary
judgment on July 8, 1993, in favor of Kachutosy Paulus and Raymond Setik
enjoining operation of ordinance 01-01-93, apparently after an agreement
among the parties that the ordinance did not apply to insurance agents.
The trial court also granted partial summary judgment enjoining
operation of 01-01-93 in favor of one of the d/b/a's of Christina
Stinnett, Truk Travel Unlimited, on January 14, 1994, on the basis that
such application was restrictive of interstate commerce. Stinnett v. Weno, 6 FSM Intrm. 312
(Chk. 1994). These rulings have not been
appealed. 2. An
interlocutory appeal was taken from this ruling in both cases on October
10, 1996, and later dismissed by consent of the parties on January 15,
1998. 3. In the
case below in Stinnett, Weno asked the trial
court to revisit its grant of summary judgment by its July 4, 1997, motion
to vacate, alter, or amend judgment brought under Rule 59(a) and (e) and
in the alternative under Rule 60(b)(2) of the FSM Rules of Civil
Procedure. Judgment was entered on the case below in Stinnett on June 20, 1997. The trial court
noted that Rule 59(a) did not apply, and that it properly considered the
motion under either Rule 59(e) or 60(b). The trial court further
noted that given the interlocutory appeal then pending, it had the power
to deny, but not grant the motion. Stinnett v.
Weno, 8 FSM Intrm. 142, 15 . As to
the case below in Chuuk Chamber, the trial
court noted that the motion to modify the order granting summary judgment
was brought properly under Rule 54(b), but that similarly, because of the
pendency of the appeal, it had only the power to deny the motion. Stinnett,
8 FSM Intrm. at 145. 4. That
decision is reported as Wainit v.
Weno, 7 FSM Intrm. 121 (Chk. S. Ct. Tr. 1995). 5. The
dismissal was then appealed to this court as Wainit v. Weno, Appeal Case
No. C2-1996. On May 28, 1999, we remanded the matter to the full
appellate panel of the Chuuk State Supreme Court Appellate Division
pursuant to Rule 27(c) of the Chuuk
Appellate Rules of Procedure on the basis that the order of the single
justice dismissing the case was not a final, and therefore appealable,
decision within the meaning of article VII,
section 5(b) of the Chuuk Constitution and sections 37, 38(1), and 39 of
the Chuuk State Judiciary Act of 1990. Wainit v. Weno, 9 FSM
Intrm. 160 (App. 1999). 6. We
note that although entitled "Memorandum by Defendant," this pleading also
presents the motion for certification. As a matter of practice, we
believe it the better course that all motions made under Rule 7 of the FSM Rules of Civil
Procedure should be clearly denominated as such.
7. For
example, the court in McKesson noted that
Florida had a range of measures it might implement to satisfy due process
short of refunding the taxes, including "assess[ment] and collect[tion of]
back taxes from petitioner's competitors who benefited from the rate
reduction during the contested tax period, calibrating the retroactive
assessment to create in hindsight a nondiscriminatory scheme." See
the discussion in this regard at 496 U.S. at 39-41, 110 S. Ct. at 2251-52,
110 L. Ed. 2d at 37-39. |
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