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FSMC, TITLE 4.  JUDICIARY OF THE FSM

 
 
Chapter 2:  Jurisdiction

201.     Appellate jurisdiction.
202.     Territorial jurisdiction.
203.     Jurisdiction over persons - Civil.
204.     Service of process outside the territorial jurisdiction of the Supreme
                Court.
205.     Judicial acts outside of territorial jurisdiction.
206.     Initial organization of Supreme Court.
207.     Requisites of certification.
208.     Severability.

     201.  Appellate jurisdiction.

     (1)     The jurisdiction of the Appellate Division of the Supreme Court is as provided in the Constitution.

     (2)     The Appellate Division of the Supreme Court may review other cases appealed to it from a State court if the appeal is permitted by State constitution or District charter.

Source:  PL 1-31 25.

Cross-reference:  For constitutional provisions on jurisdiction, see FSM Const., art. XI, 6, 7, and 8.

Case annotations :  There is no statutory limitation on the FSM Supreme Court's jurisdiction; the Judiciary Act of 1979 plainly contemplates that this court will exercise all of the jurisdiction available to it under the Constitution.  4 FSMC 201_08.  In re Nahnsen, 1 FSM Intrm. 97, 106 (Pon. 1982).

202.  Territorial jurisdiction.
     The jurisdiction of the Supreme Court shall extend to the whole of the Federated States of Micronesia as defined in article I, section 1 of the Constitution.

Source:  PL 1-31 26.

Cross-reference:  For constitutional provisions on jurisdiction, see FSM Const., art. XI, 6, 7, and 8.

Case annotations :  The burden is always upon the one who seeks the exercise of the power of the court in her behalf to establish that the court does have jurisdiction. Neimes v. Maeda Constr. Co., 1 FSM Intrm. 47, 47 (Truk 1981).

Probate matter are statutory and involve proceedings in rem, that is, jurisdiction based on court control of specific property.  In re Nahnsen, 1 FSM Intrm. 97, 103 (Pon. 1982).

There is no statutory limitation on the FSM Supreme Court's jurisdiction; the Judiciary Act of 1979 plainly contemplates that this court will exercise all of the jurisdiction available to it under the Constitution.  4 FSMC 201-08.  In re Nahnsen, 1 FSM Intrm. 97, 106 (Pon. 1982).

The FSM Supreme Court is empowered to exercise authority in probate matters where there is an independent basis for jurisdiction under the Constitution.   In re Nahnsen, 1 FSM Intrm. 97, 104 (Pon. 1982).

The allocation of judicial authority is made on the basis of jurisdiction, generally without regard to whether state or national powers are at issue.  In re Nahnsen, 1 FSM Intrm. 97, 108 (Pon. 1982).

The Constitution contemplates that decisions affecting the people of the FSM will be decided by courts appointed by the constitutional governments of the FSM.  This in turn requires an expansive reading of the FSM Supreme Court's jurisdictional mandate while we await establishment of functioning state courts.  In re Nahnsen, 1 FSM Intrm. 97, 111 (Pon.1982).

The FSM Supreme Court may look to decisions under the United States Constitution for guidance in determining the scope of jurisdiction since the jurisdictional language of the FSM Constitution is similar to that of the United States.  Etpison v. Perman, 1 FSM Intrm. 405, 414 (Pon. 1984).

The standard method of obtaining a determination from the FSM Supreme Court as to its jurisdiction over specific parties or issues is to file a civil or criminal action with the trial division of the FSM Supreme Court.   Koike v. Ponape Rock Products Co., 1 FSM Intrm. 496, 500 (Pon. 1984).

The jurisdictional language in the FSM Constitution is patterned upon the United States Constitution.  In re Sproat, 2 FSM Intrm. 1, 4 n.2 (Pon. 1985).

A case must be one appropriate for judicial determination, that is, a justiciable controversy, as distinguished from a difference or dispute of a hypothetical or abstract character, or one that is "academic or moot".  The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests.   In re Sproat, 2 FSM Intrm. 1, 5 (Pon. 1985).

As a general rule the FSM Supreme Court trial division is obliged to exercise its jurisdiction and may not abstain simply because unsettled issues of state law are presented.  Edwards v. Pohnpei, 3 FSM Intrm. 350, 360 (Pon. 1988).

Because the FSM Constitution states that the judicial power "is vested" in the Supreme Court, and the trial division "has jurisdiction" over certain cases "unlike the jurisdictional provisions of the United States Constitution, which are not self-executing" determinations as to the jurisdiction of the FSM courts are based on Constitutional interpretation rather than statutory construction, and therefore it cannot be assumed that United States court holdings will yield the correct result under FSM jurisdictional provisions.  FSM Dev. Bank v. Estate of Nanpei, 2 FSM Intrm. 217, 219 n.1 (Pon. 1986).

State courts do not normally look to the national Constitution as a source of jurisdictional authority, but instead typically rely upon state constitutions and state law for their authorization to act, so in considering whether a state court may exercise jurisdiction in a case the proper question is not whether the national Constitution authorizes, but whether it bars state courts jurisdiction.  Bank of Guam v. Semes, 3 FSM Intrm. 370, 377 (Pon. 1988).

Art. XI, 6(c) of the Constitution places authority to prescribe jurisdiction only in the national Congress, and not in state legislatures.  Bank of Guam v. Semes, 3 FSM Intrm. 370, 379 (Pon. 1988).

Failure to mention national courts in section 25 of the Pohnpei State Real Property Mortgage Act should not be read as an attempt to deprive litigants of access to the FSM  Supreme Court's trial division.   Bank of Guam v. Semes, 3 FSM Intrm. 370, 380 (Pon. 1988).

FSM Supreme Court's trial division does not lose jurisdiction over a case merely because land issues are involved, but if such issues are presented, certification procedures may be employed to avoid encroachment upon state decision making prerogatives.  Bank of Guam v. Semes, 3 FSM Intrm. 370, 381 (Pon. 1988).

The Constitution's jurisdictional provisions are self-executing.  U Corp. v. Salik, 3 FSM Intrm. 389, 394 (Pon. 1988).

In a case in which the High Court of the Trust Territory of the Pacific Islands did not transfer the case to the FSM Supreme Court or to the Truk State Court because it failed to act in conformity with the purpose of Secretarial Order No. 3039 which was to provide maximum permissible self government to the newly self-governing entities, and because the High Court's determination that the case was in active trial and therefore need not be transferred was incorrect, the High Court is not deprived of jurisdiction where the presently objecting party failed to make any objection before the High Court and where the judgment by the High Court is being collaterally attacked.  United Church of Christ v. Hamo, 3 FSM Intrm. 445, 451-52 (Truk 1988).

The determination of jurisdiction itself normally qualifies for protection under the common law principle of res judicata, requiring a second court to presume that the court which issued the judgment did properly exercise its own jurisdiction, but plain usurpation of power by a court which wrongfully extends its jurisdiction beyond the scope of its authority, is outside of the doctrine and does not qualify for res  judicata protection.  United Church of Christ v. Hamo, 4 FSM Intrm. 95, 107-08 (App. 1989).

Although final judgment in a case has been entered by the Trust Territory High Court, because any effort by a party to have the High Court consider its own jurisdiction would have been futile, it is procedurally fair to later afford the party an opportunity to question that jurisdiction.  United Church of Christ v. Hamo, 4 FSM Intrm. 95, 118-19 (App. 1989).

The decision as to jurisdiction is one to be made by the court, and counsel may not by agreement, confer upon a court jurisdiction that it does not have by law.  Federal Business Dev. Bank v. S.S. Thorfinn, 4 FSM Intrm. 367, 369 (App. 1990).

Where the TT High Court's exercise of jurisdiction was a manifest abuse of authority, allowing the judgment of the High Court to stand would undermine the decision-making guidelines and policies reflected in the judicial guidance clauses of the national and state constitutions and would thwart the efforts of the framers of the Constitution to reallocate court jurisdiction within the FSM by giving local decision-makers control over disputes concerning ownership of land.  United Church of Christ v. Hamo, 4 FSM Intrm. 95, 119 (App. 1989).

Issuance of a search warrant is indisputedly within the FSM Supreme Court's jurisdiction.  Jano v. King, 5 FSM Intrm. 388, 392 (Pon. 1992).
 
A maritime contract cannot be converted into a non-maritime one by stipulation of the parties so as to divest the court of its admiralty jurisdiction.  Maruwa Shokai (Guam), Inc. v. Pyung Hwa 31, 6 FSM Intrm. 1, 4 (Pon. 1993).

The term "concurrent" in art. XI, 6(c) of the FSM Constitution has the same meaning as in 6(b); i.e., that jurisdiction is concurrent as between the FSM Supreme Court and any other national courts that may be established by statute.  It would be illogical and contrary to norms of constitutional interpretation to assume a different meaning for "concurrent" in 6(c) than in 6(b), since it is quite clear that the two sections are to be read together.  Faw v. FSM, 6 FSM Intrm. 33, 35 (Yap 1993).

The framers of the Constitution made clear that the term "exclusive" in art. XI, 6(a) of the FSM Constitution means that for the types of cases listed in that section, the trial division of the FSM Supreme Court is the only court of jurisdiction.  Faw v. FSM, 6 FSM Intrm. 33, 35 (Yap 1993).

A state law cannot divest the FSM Supreme Court of exclusive jurisdiction in cases arising under art. XI, 6(a) of the FSM Constitution.  Faw v. FSM, 6 FSM Intrm. 33, 36-37 (Yap 1993).

Under the FSM Constitution the FSM Supreme Court may hear cases on appeal from the highest state court in which a decision may be had if that state's constitution permits it.  The Chuuk State Constitution permits such  appeals, which, in civil cases, Chuuk statute provides be made by certiorari.  Gustaf v. Mori, 6 FSM Intrm. 284, 285 (App. 1993).

Because a decision of a single justice in the appellate division of the Chuuk State Supreme Court may be reviewed by an appellate panel of the same court it is not a final decision of the highest state court in which a decision may be had, which it must be in order for the FSM Supreme Court to hear it on appeal.  Gustaf v. Mori, 6 FSM Intrm. 284, 285 (App. 1993).

Although, ordinarily, an issue must be raised at the trial level for it to be preserved for appeal, whether a court has subject matter jurisdiction is an issue that may be raised at any time.  Hartman v. FSM, 6 FSM Intrm. 293, 296 (App. 1993).

The FSM Supreme Court will not interfere in a pending state court proceeding where no authority has been cited to allow it to do so, where the case has not been removed from state court, where it has not been shown that the national government is a party to the state court proceeding thereby putting the case within the FSM Supreme Court's exclusive jurisdiction, and where it has not been shown that the movants are parties to the state court proceeding and thus have standing to seek national court intervention.  Pohnpei v. Kailis, 6 FSM Intrm. 460, 463 (Pon. 1994).

203.  Jurisdiction over persons - Civil.
     The Supreme Court may exercise personal jurisdiction in civil cases only over persons residing or found in the Federated States of Micronesia or who have been duly summoned and voluntarily appear, except as provided in section 204 of this chapter.

Source:  PL 1-31 27.

Cross-reference:  For constitutional provisions on jurisdiction, see FSM Const., art. XI, 6, 7, and 8.  For statutory provisions on Judicial Procedures, see title 6 of this code.

Case annotations:  In deciding who may litigate in the FSM Supreme Court, the goal is to develop principles consistent with the language of the Constitution and calculated to meet the needs of the people and institutions within the FSM.  Aisek v. FSM Foreign Investment Board, 2 FSM Intrm. 95, 100 (Pon. 1985).

There is no statutory limitation on the FSM Supreme Court's jurisdiction; the Judiciary Act of 1979 plainly contemplates that this court will exercise all of the jurisdiction available to it under the Constitution.  4 FSMC 201-08.  In re Nahnsen, 1 FSM Intrm. 97, 106 (Pon. 1982).

Personal

Under the Compact of Free Association and the Federal Programs and Services Agreement, civilian employees of the United States government have immunity from civil and criminal process for wrongful acts and omissions done within the scope and in performance of official duty, unless expressly waived by the U.S. government. Samuel v. Pryor, 5 FSM Intrm. 91, 95 (Pon. 1991).

A United States federal employee does not waive immunity from civil liability under the Compact of Free Association and the Federal Programs and Services Agreement when the civilian employee initiated litigation in the FSM Supreme Court in a separate lawsuit with different claims against different parties and where the affirmative misconduct is within the scope and in the performance of the official duty.  Samuel v. Pryor, 5 FSM Intrm. 91, 97 (Pon. 1991).

The purpose of the rules addressing process and service of process in civil cases is to assure that a defendant receives sufficient notice of all causes of action that are filed against him and thus has a fair and adequate opportunity to defend.  Where a plaintiff fails to properly serve a defendant, the court does not have jurisdiction over that defendant, and the case may not proceed, but will be dismissed without prejudice. Berman v. Santos , 6 FSM Intrm. 532, 534 (Pon. 1994).

Removal

A party named as a defendant in state court litigation which falls within the scope of art. XI, 6(b) of the Constitution may invoke national court jurisdiction through a petition for removal and is not required to file a complaint.  U Corp. v. Salik, 3 FSM Intrm. 389, 394 (Pon. 1988).

Prolonged delay in seeking removal, as well as affirmative steps, such as filing a complaint in the state court, or filing a motion aimed at obtaining a substantive state court ruling, should normally be regarded as signaling acquiescence of a party to state court jurisdiction.  U Corp. v. Salik, 3 FSM Intrm. 389, 394 (Pon. 1988).

Jurisdiction based upon diversity of citizenship between the parties is concurrent in the Supreme Court and the national courts, and therefore a party to state court litigation where diversity exists has a constitutional right to invoke the jurisdiction of the national court.  In re Estate of Hartman, 4 FSM Intrm. 386, 387 (Chk. 1989).

If national court jurisdiction exists the national court should promptly grant the petition to remove.  Thereafter the national court can entertain a motion to abstain or to certify specific issues to the state court.  Proceedings in the national court do not have to stop while a certified issue is presented to a state court.  Etscheit v. Adams, 5 FSM Intrm. 243, 246 (Pon. 1991).
 
Where, for six and a half years after the national court had come into existence the noncitizen petitioners made no attempt to invoke the national court's jurisdiction, the noncitizen petitioners affirmatively indicated their willingness to have the case resolved in court proceedings, first in the Trust Territory High Court and later in Pohnpei state court, and thus have waived their right to diversity  jurisdiction in the national courts. Etscheit v. Adams, 5 FSM Intrm. 243, 247-48 (Pon. 1991).

The fact that a "tactical stipulation," made in 1988 to eliminate all noncitizens as parities to the litigation and thus place the litigation within the sole jurisdiction of the state court, may have been violated in 1991, does not retroactively change the effect of the stipulation for purposes of jurisdiction.   Etscheit v. Adams, 5 FSM Intrm. 243, 248 (Pon. 1991).

A motion for removal will be denied where, in an action in eminent domain under Truk State law the only defense available are those relating to the taking, and the counterclaims asserted as a basis for national court jurisdiction do not fall within a defense to the taking.  Chuuk v. Land Known as Mononong, 5 FSM Intrm. 272, 273 (Chk. 1992).

Removal to the Supreme Court pursuant to art. XI 6(b) of the Constitution cannot be ordered if there is no diversity of citizenship among the parties to the case pending in the state court.  Etscheit v. Adams, 5 FSM Intrm. 339, 341 (App. 1992).

Where a party petitions for removal after denial of its motion to dismiss brought in state court and the motion to dismiss was filed in lieu of answering the compliant and was not argued by the parties, such action will be considered a defense to suit on procedural grounds rather than a consent to state court adjudication of the merits such that waiver of the right to remove may not be implied.  Mendiola v. Berman (I), 6 FSM Intrm. 427, 428 (Pon. 1994).

If the FSM national court takes jurisdiction in a removal case all prior state court orders would remain in effect and record of all prior proceedings in the state court may be required to be brought before the court.  Pohnpei v. M/V Zhong Yuan Yu #606, 6 FSM Intrm. 464, 466 (Pon. 1994).

      204.  Service of process outside the territorial jurisdiction of the Supreme Court.

     (1)     Any person, corporation, or legal entity, whether or not a citizen or resident of the Federated States of Micronesia, who in person or through an agent does any of the acts enumerated in this section, thereby submits himself or its personal representative to the personal jurisdiction of the Supreme Court of the Federated States of Micronesia as to any cause of action arising from:

     (a)     The transaction of any business within the Federated States of Micronesia;
 
     (b)     The operation of a motor vehicle within the Federated States of Micronesia;

     (c)     The operation of a vessel or craft within the territorial waters or airspace of the Federated States of Micronesia;

     (d)     The exploitation of economic resources within the exclusive economic zone of the Federated States of Micronesia;

     (e)     The commission of a tortious act within the Federated States of Micronesia;

     (f)     Contracting to insure any person, property, or risk located within the Federated States of Micronesia at the time of contracting;

     (g)     The ownership, use, or possession of any real estate within the Federated States of Micronesia;

     (h)     Entering into an express or implied contract, by mail or otherwise, with a resident of the Federated States of Micronesia to be performed in whole or in part by either party in the Federated States of Micronesia;

     (i)     Acting within the Federated States of Micronesia as director, manager, trustee, or other officer of any corporation organized under the laws of or having a place of business within the Federated States of Micronesia, or as executor or administrator of any estate within the Federated States of Micronesia;
 
     (j)     Causing injury to persons or property within the Federated States of Micronesia arising out of an act or omission outside of the Federated States of Micronesia by the defendant, provided in addition, that at the time of the injury either:

      (i)     The defendant was engaged in the solicitation or sales activities within the Federated States of Micronesia; or

      (ii)     Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within the Federated States of Micronesia; and

     (k)     Living in the marital relationship within the Federated States of Micronesia notwithstanding subsequent departure from the Federated States of Micronesia, as to all  obligations arising for alimony, child support or property rights under orders issued by the Supreme Court in an action for divorce or annulment between the two parties to the marital relationship, if the other party to the marital relationship continues to reside in the Federated States of Micronesia.

     (2)     Service of process may be made upon any person subject to the jurisdiction of the Supreme Court under this section by personally serving the summons upon the defendant outside the Federated States of Micronesia. Such service has the same force and effect as though service had been personally made within the Federated States of Micronesia.

     (3)     Service of summons shall be made under this section in like manner as service within the Federated States of Micronesia by any officer or person authorized to make service of summons in the State or jurisdiction where the defendant is served.  An affidavit of the server shall be filed with the court issuing said summons stating the time, manner, and place of service.  The court may consider the affidavit or any other competent proofs in determining whether service has been properly made.  No default shall be entered until the expiration of at least 30 days after service.  A default judgment rendered on service made under this section may be set aside only on a showing which would be timely and sufficient to set aside a default judgment entered upon personal service within the Federated States of Micronesia.

     (4)     Nothing contained in this section limits or affects the right to serve any process in any other manner now or hereafter provided by law.

Source:  PL 1-31 28; PL 5-12 1; PL 5-125 1.

      205.  Judicial acts outside of territorial jurisdiction.
     Any action taken by the Supreme Court or a Justice thereof or by a State court or a judge thereof outside the territorial jurisdiction of the court shall be as valid and effective as if taken within the territorial jurisdiction of the court.

Source:  PL 1-31 29.

Cross-reference:  For constitutional provisions on jurisdiction, see FSM Const., art. XI, 6, 7, and 8.  For statutory provisions on Judicial Procedures, see title 6 of this code.

      206.  Initial organization of Supreme Court.
     The Supreme Court is deemed organized when:

     (1)     at least one Justice has taken office; and

     (2)     the Chief Justice of the Trust Territory High Court, upon written request by the Chief Justice of the Supreme Court of the Federated States of Micronesia, certifies that subsection (1) of this section has been complied with and that the Supreme Court is prepared to hear matters.

Source:  PL 1-31 30.

Cross-reference:  For additional case annotations regarding the transition from the Trust Territory High Court to the FSM Supreme Court see annotations included in title 5 (Judiciary of the Trust Territory of the Pacific Islands) of this code.

      207.  Requisites of certification.
     Certification by the Chief Justice of the Trust Territory High Court shall be made in English and transmitted to the Chief Justice of the Supreme Court of the Federated States of Micronesia.  The Chief Justice of the Trust Territory High Court may also transmit copies of his certification to the President and the Congress and to the State or District courts.

Source:  PL 1-31 31.

Case annotations:  To the extent that Secretarial Order 3039 can be read as permitting the Trust Territory High Court to continue, after the FSM Supreme Court had begun functioning, to control cases assigned by the FSM Constitution to the FSM Supreme Court, that exercise by Congress of the transitional power under the Constitution could run counter to other specific provisions of the Constitution, especially the judiciary article, and to fundamental principles of the separation of powers; any extension by the TT High Court of the powers assigned to it under Secretarial Order 3039 would violate those same constitutional provisions and principles.  United Church of Christ v. Hamo, 4 FSM Intrm. 95, 106 (App. 1989).

Actions of the TT High Court taken after establishment of functioning constitutional courts in the FSM, and without a good faith determination after a full and fair hearing as to whether the "active trial" exception permitted retention of the cases, were null and void, even though the parties failed to object, because the High Court was without jurisdiction to act and its conduct constituted usurpation of power.  United Church of Christ v. Hamo, 4 FSM Intrm. 95, 122 (App. 1989).

For additional case annotations regarding the transition from the Trust Territory High Court to the FSM Supreme Court, see annotations included in title 5 of this code.

      208.  Severability.
     If any provision of this chapter, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.

Source:  PL 1-31 32.

Editor's note:  A typographical error was made in the 1982 edition of the Code.  After the words . . . "provision or application, and to this" the word "and" was changed to "end" to correct this typographical error.