Cite as Hadley v.  Kolonia Town Government ,
3 FSM Intrm. 267 (Pon. S. Ct. Tr. 1987)

[3 FSM Intrm. 267]





(From FSM Civ. 1986-118)

Decided:  December 18, 1987
     Edwel Santos, Chief Justice, Pohnpei Supreme Court
     Carl Kohler, Associate Justice, Pohnpei Supreme Court
     Yoster Carl, Associate Justice, Pohnpei Supreme Court

     For the Appellants:       Daniel J. Berman
                                             P.O. Box 1491
                                             Pohnpei, FSM 96941
     For the Defendants:      Joseph S. Phillip
                                             Public Defender
                                             Pohnpei, FSM 96941

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Constitutional Law - Due Process - vagueness
     Whether statutory language is so unreasonably vague as to violate the due process clause of the Pohnpei State Constitution is a question of degree, and when the law in question is a municipal ordinance greater leeway should be given to the municipality in recognition of the members' lack of prior training or experience in law or statutory drafting.  Hadley v. Kolonia Town, 3 FSM Intrm. 267, 269-70 (Pon. S. Ct. Tr. 1987).

[3 FSM Intrm. 268]

Constitutional Law - Due Process - vagueness
     A statute does not violate the Pohnpei constitutional safeguards of due process if the provisions of the statute are reasonably clear and give fair notice of what acts or omission are prescribed.  Hadley v. Kolonia Town, 3 FSM Intrm. 267, 269 (Pon. S. Ct. Tr. 1987).

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     This matter comes before us pursuant to an order of the Trial Division of the Supreme Court of the Federated States of Micronesia, certifying to this court the issue, to wit,

Is the Kolonia Town ordinance relating to drinking permits unreasonably vague and therefore violative of the due process clause of the Pohnpei State Constitution?

for determination under provisions of the Pohnpei State Constitution.

     We hold that the Kolonia Town ordinance relating to drinking permit is not unreasonably vague as to violate the due process clause of the Pohnpei State Constitution.

     The following is a brief discussion of our view:

     On October 28, 1985, the Kolonia Town Council passed an act which required a drinking permit, and purported to prohibit the consumption of alcoholic beverages within Kolonia Town without a drinking permit.  The act became law without approval of the Mayor pursuant to the Kolonia Town Constitution and took effect on January 1, 1986.  It became Kolonia Town Ordinance KTC-001-85. KTC 001-85 was subsequently amended by Kolonia Town Ordinance KTC-05-86, effective July 18, 1986. (Disapproved by the Mayor on June 18, repassed by override of Council on July 18, 1986).
     The Kolonia Town Government has enforced provisions of these ordinances, resulting in instances of criminal penalties for violators.

     The plaintiffs, three Pohnpei residents, all of Kolonia, who claim to represent a class of persons similarly situated, challenge the constitutionality of KTC-001-85, as amended, in the Supreme court of the Federated States of Micronesia.  The essence of their claim is that the ordinance is unduly vague and, therefore, violative of the due process clause of the Constitution of the Federated States of Micronesia.

[3 FSM Intrm. 269]

     Because the matter is a local dispute, and perceiving no reason why the Pohnpei Supreme court could not address the alleged vagueness of the ordinance under the Pohnpei State Constitution" the FSM Supreme Court ordered the question presented jointly by the parties to the Appellate Division of the Pohnpei State Supreme Court.  Therefore the question before us.

     The subject of due process is found in Article 4, Section 4 of the Pohnpei Constitution.  In deliberating upon the question, we are guided by the expressed intent of the Pohnpei State Constitutional Convention in adopting the Article.  We find the Convention declared that,

a criminal statute must not be so vague and indefinite as to fail to give fair notice of what acts or omissions will be punished....

SCREP 59, Pohnpei State Constitutional Convention.

     We observe in this intent that the Convention did not intend that any vagueness and indefiniteness shall constitute denial of due process.  It is obvious to us that the Convention set forth a degree of vagueness or indefiniteness in a criminal statute which may fall short of due process.  The framers declared that the statute must not be "so" vague and indefinite.  The choice of the term "so" connotes that there must be a degree of vagueness in the test of what constitutes denial of due process.

     We hold that the employment of the term expresses the intent of the framers of the Constitution that the vagueness must be of a very high degree.  A simple vagueness cannot overturn a statute on due process grounds.  We note further that "fair" notice is all that is required.  Even if a statute is vague, if its provisions are held reasonably clear to give fair notice of what acts or omissions are proscribed, the statute must stand the test of due process.

     The appellants went at length in stressing what they allege to be the failure of the Kolonia Town ordinances in complying with statutory construction likened in the complex societies of the United States.  Their arguments are clear and well taken.  However, we approach the question before us from the standpoint wherein we take carefully into our consideration the facts, conditions, and surrounding circumstances of the jurisdiction whose statute is challenged.  We feel this approach corresponds with the judicial mandate found under Section 11, Article XI, et. seq. of the Constitution of the Federated States of Micronesia as well as is mandated under Section 11, Article 10 of the Constitution of Pohnpei.

     The town of Kolonia, the seat of the State of Pohnpei, is composed of residents who come from diverse ethnic groups, including people originally from Pingelap, Mokil, Sapwuahfik, Nukuoro, Kapingamarangi, Truk, Kosrae, Palau

[3 FSM Intrm. 270]

and Pohnpei Island proper.  Inherent in this cross-cultural community is a diversity of views, habits, life style, and sophistication.  Kolonia is governed by a town government which derives its powers from a constitution which was ratified and took affect three months before the challenged ordinances.

     We are cognizant that the town council, at the enactment of the challenged ordinances, was composed of officers most of whom had had no prior experience or training in law or statutory drafting.  Thus, while it may be expected that statutes Enacted by the State and National governments should possess the characteristics of those discussed by the appellants, we adopt hare the view that constitutional requirements pertaining to the form in which statutes must be written do not usually apply to ordinances.  People v. Norton, 288 P. 33 (Cal. App. Dep't Super. Ct. 1930).  The form in which municipal ordinances must be presented is usually prescribed by the municipal charter or constitution.  We hold that, like other municipal councils, the Kolonia Town Council is less formal than legislatures and, consequently, less strict compliance with rules of legislative drafting and construction employed in more sophisticated law making bodies will be considered sufficient to sustain its ordinances.  We find this view to be true even in the sophisticated jurisdic-tions in the United States.  For instance, see Shaw v. Baker, 298 P.2d 250 (Kan. 1956); Ralston Purina Co. v. Acrey, 142 S.E.2d 66 (Ga. 1965), where the court held that the omission of an enacting clause does not invalidate an ordinance; and Commonwealth v. Mellon, 69 York 167 (Pa. 1855), where the court held that the title was not required, but where one is present, it must not be misleading.

     Where the Charter or Constitution is silent on the question of form, we follow the rule that an ordinance is valid if it, indicates the intent of the local legislative agency.  Lisbon v. Clark, 18 N.H. 234 (1946); that ordinance like statutes, are generally presumed to be valid.  Tower Realty, Inc. v. City of East Detroit, 196 F.2d 710 (6th Cir. 1950); National Foundation v. City of Fort Worth, 415 F.2d 41 (5th Cir. 1969); Larsen v. City of Colorado Springs, 142 F. Supp. 871. (D. Colo. 1956).

     With the foregoing in our view, we now examine the ordinances to determine if they should fall as the appellants contend.  We note at the outset that, immediately before the ratification of its Constitution, Kolonia Town was governed by a charter which was promulgated by the High Commissioner of the Trust Territory of the Pacific Islands on May 17, 1965.  The 1965 Charter was a substitute of another charter which was effected for the Town on March 30, 1956. Article II of the Charter established the Town Council and gave it certain legislative power.

     Article V of the 1965 Charter provides for the procedure in the enactment of ordinances.  Although section 15 of article V provides for enactment of laws, it does not require a form in which laws of the town are to be presented.  The only requirement evident in the section states that "no law shall be enacted except by ordinance."  We may therefore assume that the Town council had been quite liberal in their presentations of town ordinances.

[3 FSM Intrm. 271]

     The Constitution of the town of Kolonia was ratified in 1985 and took affect in September of that year.  It was but a month thereafter that the Town Council, in its first regular session, enacted KTC-001-85.  This was assigned CB-002-85 when it became an act of the council.  In that KTC-001-85 was enacted under the town Constitution, its form is to be expected to comply with the requirement of the Constitution.  In our examination of the Kolonia Town Constitution, we note that article V provides for the legislative branch of the constitutional government. Section 15 of the article provides for enactment of town laws, reading (in Pohnpei language),

Sohte kosonned kak kokouda likin ordinance.  Oralap me pahn mi ni mongen ordnance pahn kosoia: "Eh kosondi sangehr pwihn an kou kosonned."

Essentially in English, the section may be translated as,

No law may be enacted except by ordinance.  The title of each ordinance shall be: "Be it ordained by the Kolonia Town Council."

     We find no other provision in the Constitution which requires a specific form in which ordinances enacted under it shall be presented.

     Guided by our expressed view, we find that the following provisions of the ordinances substantially presented reasonable certainty of what the Town Council intended to enact into law for the government of the Town with respect to the use and handling of alcoholic beverages.

     A.     With respect to KTC-001-85.

          1.    "A bill for an act"

     Here, we hold that the instrument is intended to be a law.

          2.     "A law requiring a permit allowing an individual to purchase, consume, sell, carry, hold in possession, alcoholic beverages in Kolonia Town."

     This provision is found in the title of KTC-001-85.  It tells us with reasonable certainty that the instrument establishes a law which requires that a person must have a permit in order to be allowed to purchase, consume, sell, carry or hold in possession alcoholic beverages in presenting what the ordinance intends to regulate.

     3.     Section 1. "A permit allowing a person to purchase and/or consume alcoholic beverages within the jurisdiction of Kolonia Town."

Section 1 repeats and reaffirms what has been stated in the title of the ordinance.

[3 FSM Intrm. 272]

     4.   section 1, subsections a through g.
     Having reasonably set out the law in its heading and in Section 1, sub-sections a through g prescribe specific provisions of the ordinance.  They tell us that permits are only available to persons 21 years and above; that the permit is sold at $10.00; that the permit is valid for one year; that with its use, one is allowed to purchase from take out liquor stores and bars; that it allows the possession and consumption of alcoholic beverages in Kolonia Town; that it disallows the purchase or giving of alcoholic beverages to one under 21 years of age; and that such permits are issued at the Kolonia Town Office.  These together specify to us in reasonable certainty that there is a law in Kolonia Town, established by KTC-001-85, which requires one to obtain a permit in order to use or handle, alcoholic beverages in its jurisdiction.

     B.     With respect to KTC-05-86.
     KTC-05-86 is construed as an amendment of KTC-001-85.  It does a few improvements to KTC-001-85.  It clarifies KTC-001-85 by defining certain terms; it redefines the exemption clause of KTC-001-85; it creates a temporary permit provision, and clarifies the penalty provision for offenders.

     Taken together, it is our opinion that these ordinances adequately provide for what the Town Council intended to regulate in the use and handling of alcoholic beverages within Kolonia Town.  We fail to agree with the appellants that the provisions of these ordinances are "so" vague or "unreasonably" vague that they fail to give "fair notice" of what acts or omissions the Town Council intended to punish.  It will be unethical for us to demand Municipal courts to conform to the standard of the more sophisticated nations because to do so will erode the FSM judicial mandate.  We hold, therefore, that, they stand the test of the Pohnpei constitutional intent.  They cannot, be allowed to fall, even though they do not possess all the ingredients of statutes as the appellants contend.  If we are to accept the argument of the appellant respecting the rules of the legislative drafting or construction employed by the more advanced and more sophisticated law making bodies, we will be imposing a rather costly "standard" upon our local government councils which will be quite difficult to attain at the early stages of their political development.

     We feel the approach taken here satisfied the process of smooth and orderly growth and development of a political and legal system of an island state.

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