KOSRAE STATE COURT TRIAL DIVISION
Cite as Kosrae v. Sigrah
11 FSM Intrm. 26 ( Kos. S. Ct. Tr. 2002)

[11 FSM Intrm. 26]

STATE OF KOSRAE,
Plaintiff,
 
vs.
 
STEVEN J. SIGRAH,
Defendant.
 
TRAFFIC CASE 212-01
 
ORDER DENYING MOTIONS
 
Aliksa B. Aliksa
Associate Justice
 
Hearing: June 13, 2002
 
Decided: June 17, 2002
 
APPEARANCES:
 
For the Plaintiff:                         Paul J. Simonett, Esq.
                                                    Assistant Attorney General
                                                    Office of the Kosrae Attorney General
                                                    P.O. Box 870
                                                    Tofol, Kosrae FM 96944
 
For the Defendant:                    Paul Vignos, Esq.
                                                    Legislative Counsel
                                                    Kosrae Legislature
                                                    P.O. Box 187
                                                    Tofol, Kosrae FM 96944

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HEADNOTES
 
Attorney, Trial Counselor and Client ) Disqualification of Counsel
     There is no conflict of interest for Legislative Counsel to represent a Senator challenging a law passed by the Legislature when is not a challenge of the Legislature as an institution because it is the Executive that is charged with the duty of defending challenged laws, not the Legislature, and there is no conflict of interest for Legislative Counsel to represent a Senator asserting legislative privilege when the Senator and the Legislature have similar interests with respect to interpretation of the privilege provided by the Kosrae Constitution. Kosrae v. Sigrah, 11 FSM Intrm. 26, 28 (Kos. S. Ct. Tr. 2002).
 
Attorney, Trial Counselor and Client ) Disqualification of Counsel
     Rule 1.7 permits the attorney to continue representation even where the representation is adverse to two or more clients, so long as each client consents after consultation. Kosrae v. Sigrah, 11 FSM Intrm. 26, 28 (Kos. S. Ct. Tr. 2002).

[11 FSM Intrm. 27]

Criminal Law and Procedure ) Right to Counsel
     A defendant in a criminal case has a right to have counsel for his defense. This constitutional right to counsel affords a criminal defendant the right to choose his own counsel, provided that the choice of counsel does not interfere with just resolution of the case. Kosrae v. Sigrah, 11 FSM Intrm. 26, 29 (Kos. S. Ct. Tr. 2002).
 
Constitutional Law ) Kosrae ) Interpretation
     The framework for analysis of constitutional provisions has been clearly established by the FSM Supreme Court. The court must first look to the actual words of the Constitution. When the constitutional language is inconclusive or does not provide an unmistakable answer, the court may look to the journal of the Constitutional Convention for assistance in determining the meaning of the constitutional words. Kosrae v. Sigrah, 11 FSM Intrm. 26, 29 (Kos. S. Ct. Tr. 2002).
 
Constitutional Law ) Interpretation
     Where the framers of the FSM Constitution borrowed phrases from the United States Constitution for guidance, it may be presumed that those phrases were intended to have the same meaning given to them by the United States Supreme Court. Where the FSM Constitutions language has been borrowed from the United States Constitution, the court may look to leading United States cases for guidance in interpreting that language, especially where the meaning is not self-evident from the words themselves. Kosrae v. Sigrah, 11 FSM Intrm. 26, 30 (Kos. S. Ct. Tr. 2002).
 
Constitutional Law ) Kosrae ) Interpretation; Evidence
     The testimony of one Constitutional Convention delegate as to the meaning of a constitutional provision would reflect his personal opinions and beliefs on the interpretation of the subject constitutional provision, and not the opinions of the entire twenty-two member Convention, and will therefore not be admitted. Kosrae v. Sigrah, 11 FSM Intrm. 26, 30 (Kos. S. Ct. Tr. 2002).
 
Custom and Tradition ) Kosrae; Evidence
     The court is required to receive satisfactory evidence that custom or tradition applies to a case, before utilizing it. Kosrae v. Sigrah, 11 FSM Intrm. 26, 30 (Kos. S. Ct. Tr. 2002).

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COURTS OPINION

ALIKSA B. ALIKSA, Associate Justice:

     Plaintiff filed a Motion to Remove Defense Counsel on April 10, 2002. Defendant filed a Response to the Motion on April 22, 2002. Defendant filed a Motion in Limine to Admit Legislative History Through the Testimony of Live Witnesses on May 20, 2002. On May 23, 2002, Plaintiff filed an Opposition to the Defendants Motion. A hearing was held on these two motions on June 13, 2002. Paul J. Simonett, Assistant Attorney General, appeared for the State. Defendant was represented by Paul Vignos, Legislative Counsel.

     Based upon the information provided to the court, the motions and responses, argument of counsel, the record in this matter, applicable law and in the interests of justice, I denied the Plaintiffs Motion to Remove Defense Counsel. I also denied the Defendants Motion in Limine to Admit Legislative History Through Testimony of Live Witnesses. This Order explains the reasoning of the Court.

[11 FSM Intrm. 28]

I. Plaintiffs Motion to Remove Defense Counsel.

     Plaintiffs Motion to Remove Defense Counsel is based upon its argument that Defendants counsel has a conflict of interest with his client, the Kosrae State Legislature, which cannot be waived under the Model Rules of Professional Conduct. Defendant, in his Motion to Suppress Evidence, has claimed that Kosrae State Code, Section 13.702, is unconstitutional on its face. Plaintiff argues that the Defense Counsels argument is direct conflict of interest between his full-time client, the Kosrae State Legislature, and Defense Counsels client in this case, Senator Steven Sigrah.

     Plaintiff contends that Defense Counsels position is directly adverse to the interests of the Kosrae State Legislature, because Defendant has challenged the constitutionality of a law passed by his client. Plaintiff argues that even permission given by the Speaker for Defense Counsel to represent a Senator in this matter is inadequate, and that Defense Counsels representation of Senator Sigrah in this matter is incompatible with his duties as Legislative Counsel, because his arguments attacks the Kosrae State Legislature as an institution.

     Defense Counsel, in its response argues that the Defendant has a right to chosen counsel, under the Kosrae State Constitution and that his representation of Senator Sigrah does not violate the Model Rules of Professional Conduct. Defendant argues that he is challenging the constitutionality of a law, and not the Kosrae State Legislature as an institution. Defendant argues that when a law is challenged as unconstitutional, it is the Executive branch, through the Office of the Attorney General, that defends the law as constitutional. It is not the Legislative Counsel who defends the law. Defendant argues that under the Kosrae State Constitution and under the doctrine of separation of powers, the Legislature does not have the power to defend laws which are challenged.

     Defense Counsel also argues that his representation of Senator Sigrah is appropriate in this case. Since the case involves the legislative privilege provided by the Kosrae State Constitution, the Senator and the Legislature have similar interests. Also, Defense Counsels representation of Senator Sigrah involves a clarification of fundamental rights, that these interests are not adverse to the Legislature and therefore, there is no conflict of interest. Finally, Defense Counsel argues that his client, the Kosrae State Legislature, has granted consent for his representation of Senator Sigrah in this matter.

     Defendants argument is persuasive. Defendants challenge of a law passed by the Kosrae State Legislature is not a challenge of the Kosrae State Legislature as an institution. As Defendant points out, it is the Executive Branch that is charged with the duty of defending laws which as challenged, and not the Legislative Branch. I also find that the Senator and the Legislature have similar interests with respect to interpretation of the legislative privilege provided by the Kosrae State Constitution. These interests are not adverse to the Legislature and therefore, there is no conflict of interest in Defense Counsels representation of Senator Sigrah in this matter.

     The Model Rules of Professional Conduct, Rule 1.7 governs conflicts of interest of an attorney. Rule 1.7 permits the attorney to continue representation even where the representation is adverse to two or more clients, so long as each client consents after consultation. Here, the consultation was completed and each client has consented to Defense Counsels representation of Senator Sigrah in this matter. Both Speaker Shrew and Senator Sigrah have consented to Defense Counsels initial appearance in this matter. Both Speaker Shrew and Senator Sigrah have also consented to Defense Counsels continued representation in this matter. Therefore, even assuming that there was a conflict of interest, that conflict could be waived by consent of each client. Here, any conflict of interest between Kosrae State Legislature and Senator Sigrah has been properly waived by both clients, by the Kosrae State Legislature, through its branch head, Speaker Shrew, and by Senator Sigrah.

[11 FSM Intrm. 29]

     The Kosrae State Constitution, Article II, Section 1(e) provides that a defendant in a criminal case has a right to have counsel for his defense. This constitutional right to counsel affords a criminal defendant the right to choose his own counsel, provided that the choice of counsel does not interfere with just resolution of the case. See 1 Legal Malpractice  12.3 (3d ed. 1989). Here, the Defendant has chosen Defense Counsel to represent him in this criminal matter. The Plaintiff has not shown how this representation by Defense Counsel would prejudice his client. Therefore, the Kosrae State Constitution protects Senator Sigrahs right to choice of counsel, that choice of counsel being Defense Counsel Vignos. This Court will protect the Defendants constitutional right to choice of counsel in this matter.

Based upon these grounds, Plaintiffs Motion to Remove Defense Counsel is denied.

II. Defendants Motion in Limine to Admit Legislative History Through the Testimony of Live Witnesses.

     Defendant requests an order to allow witnesses who were delegates at the 1983 Kosrae Constitutional Convention ("ConCon") to testify at the suppression hearing, to help define provision of "legislative privilege from arrest." Defendant argues that the legislative history on the subject provision, one Committee Report, is an inadequate summary of the significance and meaning of the provision. Defendant argues that there are members of the ConCon available to testify and that the Court should allow the opportunity of these members to testify. Alternatively, Defendant argues that the Court should allow defense witnesses to testify on custom and tradition as it relates to privilege and arrest. Defendant argues that the Court should allow these witnesses to testify to assist the Court in its interpretation of the subject provision.

     Plaintiff opposes the Defendants Motion. Plaintiff argues that any testimony by one ConCon delegate will only reflect that delegates opinion or interpretation of the subject provision. The opinion of one delegate cannot be used to determine intent of the Convention as a whole. Plaintiff relies upon the United States Supreme Court case of United States v. Trans-Missouri Freight Assn, 166 U.S. 290, 17 S. Ct. 540, 41 L. Ed. 1007 (1897), in which the Court determined that no evidentiary weight should be given to debates of individual legislators to determine intent of a statute. In that case, the court recognized that those congressmen who did not speak in the debates may have disagreed with those who did speak. And even among those who congressmen who did speak, they may have different opinions from each other.

     Plaintiff argues that the Defendants proposed witness could only testify to his own belief or understanding. There were twenty-two delegates to the 1983 ConCon) each delegate having their own personal views of the language in the Constitution. Allowing one member to testify would simply open the door to allowing other members to testify as to their own individual opinions. Plaintiff argues that no witness testimony be allowed on the subject provision and that the Court should interpret the subject provision based upon the factual evidence, case law, and legal argument. Plaintiff finally argues that there is no showing that custom and tradition even applies to this case and this is simply an alternative way for the Defendant to get his testimony into evidence. Plaintiff requests that the Court deny the Defendants Motion in Limine.

     The framework for analysis of constitutional provisions has been clearly established by the FSM Supreme Court. The Court must first look to the actual words of the Constitution. Pohnpei v. KSVI No. 3, 10 FSM Intrm. 53, 62 (Pon. 2001). Where the constitutional language is inconclusive or does not provide an unmistakable answer, the court may look to the journal of the Constitutional Convention for assistance in determining the meaning of the constitutional words. Robert v. Mori, 6 FSM Intrm. 394 (App. 1994) (reference to the committee reports).

[11 FSM Intrm. 30]

     Where the framers of the FSM Constitution borrowed phrases from the United States Constitution for guidance, it may be presumed that those phrases were intended to have the same meaning given to them by the Supreme Court of the United States. Tammow v. FSM, 2 FSM Intrm. 53 (App. 1985). Where the language of the FSM Constitution has been borrowed from the United States Constitution, the Court may look to leading United States cases for guidance in interpreting that language, especially where the meaning is not self-evident from the words themselves. Paul v. Celestine, 4 FSM Intrm. 205 (App. 1990).

     This Court was unable to find any cases in which a Constitutional Convention delegate was permitted to testify at a court proceeding regarding the interpretation or intent of a constitutional provision, or to establish constitutional history. In cases where constitutional history was reviewed, the courts have looked to the Committee reports on those provisions. There is no precedent to support the acceptance of testimony of a ConCon delegate into evidence to establish intent of the framers of a constitutional provision.

     In the case of Chuuk v. Secretary of Finance, 8 FSM Intrm. 353 (Pon. 1998), counsel for the Plaintiffs, in oral argument, made an argument regarding the intent of the framers of the FSM Constitution. The counsel argued that the reason the framers did not include a "fishery resource sharing provision" in the FSM Constitution was because it was not supported by the United States. This argument was based upon the counsels previous conversations with persons involved with the drafting of the FSM Constitution. The FSM Supreme Court rejected this argument, stating that the "evidence is hearsay, and the Court has been directed to no competent evidence in the record, or in the Journal of the Constitutional Convention, to support the counsels assertion." 8 FSM Intrm. at 386 n. 27. The Courts reference to the "Journal of the Constitutional Convention" suggests that document as the appropriate historical reference for constitutional provisions.

     Plaintiffs opposition to this Motion in Limine is persuasive. I conclude that the testimony of one ConCon delegate would reflect his personal opinions and beliefs on the interpretation of the subject constitutional provision, and not the opinions of the entire twenty-two member ConCon delegation. Testimony of one ConCon delegate would be similar to the debate of a single congressman, which was rejected in United States v. Trans-Missouri Freight Assn. Based upon the reasoning above, Defendants Motion in Limine to Admit Legislative Testimony Through Live Witnesses must be denied.

     The Court does not rule upon Defendants request to allow testimony on custom and tradition. Kosrae State Code, Section 6.303 requires the Court to receive satisfactory evidence of tradition, before utilizing the tradition in reaching a decision. Nelson v. Kosrae, 8 FSM Intrm 397 (App. 1998). Therefore, the Court is required to receive satisfactory evidence that tradition applies to this case, before utilizing it.

III. Further Proceedings.

     Defendants Motion to Suppress Evidence is set for hearing on July 11, 2002 at 9 a.m.

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