KOSRAE STATE COURT TRIAL DIVISION
Cite as Heirs of Henry v. Palik
11 FSM Intrm. 419 (Kos. S. Ct. Tr. 2003)
 
[11 FSM Intrm. 419]
 
HEIRS OF HENRY,
Appellants,
 
vs.
 
BINGHAM PALIK and JOHN SIGRAH,
Appellees.
 
CIVIL ACTION NO. 124-00
 
MEMORANDUM OF DECISION; JUDGMENT; AMENDED ORDER OF REMAND
 
Yosiwo P. George
Chief Justice
 
Hearing: January 30, 2003
 
Decided: March 20, 2003
 
APPEARANCES:
 
For the Appellants:                      Sasaki L. George, Esq.
                                                      Micronesian Legal Services Corporation
                                                      P.O. Box 38
                                                      Lelu, Kosrae FM 96944
 
For the Appellee:                        Albert Welly
(Palik)                                          j Kosrae Legislature
                                                     P.O. Box 187
                                                     Lelu, Kosrae FM 96944
 
For the Appellee:                       Akiyusi Palsis
(Sigrah)                                       P.O. Box 224
                                                    Lelu, Kosrae FM 96944

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HEADNOTES

Civil Procedure ) Motions
     Failure to file responsive papers is considered as consent to granting a motion. Heirs of Henry v. Palik, 11 FSM Intrm. 419, 420 (Kos. S. Ct. Tr. 2003).
 
Administrative Law ) Judicial Review
     The Kosrae State Court, in reviewing the Land Commissions procedure and decision, should consider whether the Land Commission: a) has exceeded its constitutional or statutory authority, b) has conducted a fair proceeding, c) has properly resolved any legal issues, and d) has reasonably assessed the evidence presented. Heirs of Henry v. Palik, 11 FSM Intrm. 419, 421 (Kos. S. Ct. Tr. 2003).
 
[11 FSM Intrm. 420]
 
Property ) Land Commission
     The law does not require notice to potential adverse claimants in completing the preliminary inquiry. The preliminary inquirys purpose was to record all claims for a parcel, so that the claimants would be on record and would then be notified of the formal hearing. Heirs of Henry v. Palik, 11 FSM Intrm. 419, 422 (Kos. S. Ct. Tr. 2003).
 
Property ) Land Commission
     The Land Commission may withdraw a disputed claim from a registration team. If that withdrawal takes place, then the Land Commissioners must hold the hearing, hear the evidence and make an adjudication. Heirs of Henry v. Palik, 11 FSM Intrm. 419, 422 (Kos. S. Ct. Tr. 2003).
 
Constitutional Law ) Due Process; Property ) Land Commission
     When testimony presented at the first formal hearing was not heard by the full panel of adjudicators due to a Land Commissioners late disqualification and the addition of temporary adjudicators, only one person of the adjudication panel heard that testimony. This resulted in a due process violation because the testimony was not heard by the full adjudication panel when the acting replacement commissioners did not hear the testimony, yet they participated in the findings of fact, opinion and decision. The Land Commission exceeded it constitutional and statutory authority by the adjudication panels failure to hear all the evidence presented at the hearings. Heirs of Henry v. Palik, 11 FSM Intrm. 419, 422 (Kos. S. Ct. Tr. 2003).
 
Administrative Law ) Judicial Review; Property ) Land Commission
     When the Land Commission has not followed statutory requirements for the formal hearings and there was no substantial compliance with the requirements specified by law, the Kosrae State Court must set aside the Determination of Ownership as void and remanded to Kosrae Land Court for further proceedings. Heirs of Henry v. Palik, 11 FSM Intrm. 419, 423 (Kos. S. Ct. Tr. 2003).

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COURTS OPINION

YOSIWO P. GEORGE, Chief Justice:

      On February 12, 2003, Appellants filed a Motion for Order Amending the Memorandum of Decision, Judgment and Order of Remand. There was no opposition or other response filed by the Appellees. Failure of the Appellees to file responsive papers are considered as consent to granting the Motion. Pau v. Kansou, 8 FSM Intrm. 524 (Chk. 1998). Finding good cause, the Appellants Motion for Amendment is granted. The Memorandum of Decision, Judgment and Order of Remand entered by this Court on February 3, 2003 are hereby amended as follows.

     This is an appeal from a Determination of Ownership issued by the former Kosrae State Land Commission on October 24, 2000 for parcels 040-K-01 and 040-K-03. Appellants brief was filed on July 29, 2002. Appellee Bingham Palik filed his brief on September 26, 2002. Appellee John Sigrah filed his brief on November 21, 2002. Reply briefs were filed by the Appellants on October 14, 2002 and December 16, 2002. This matter came for hearing and oral argument on January 30, 2003. Sasaki George, MLSC, appeared for the Appellants. Appellee Bingham Palik was represented by Albert Welly. Akiyusi Palsis appeared for Appellee John Sigrah.

     Based upon the record in this matter, arguments made at the hearing and applicable law, I find in favor of the Appellants. This Memorandum of Decision explains the Courts decision and reasoning.

[11 FSM Intrm. 421]

I. Factual Background.

     This case is an appeal from the Determination of Ownership issued for parcel 040-K-01 on October 24, 2000 to John P Sigrah and the Heirs of Moses Henry. The Land Commission had also made its findings and opinion for adjacent parcel 040-K-03 on October 19, 2000, but did not issue a Determination of Ownership for that parcel. The Land Commission had issued the Determination of Ownership for parcel 040-K-01 pursuant to an Order of Remand entered by this Court in Civil Action No. 56-92, an appeal which also involved the same parcel of land and the same parties.

     Pursuant to the Order of Remand was entered by this Court on September 9, 1996 in Civil Action No. 56-92, and based upon the record in this matter, the following sequence of events took place. After three years of no action, the Land Commission finally held Preliminary Inquiries on parcel 040-K-01 in September 1999. There were two Preliminary Inquiries held for parcel 040-K-01. The first Preliminary Inquiry was held on September 16, 1999. The Heirs of Henry and John Sigrah were represented as claimants at this inquiry. A second Preliminary Inquiry was held on September 30, 1999, at claimant Bingham Paliks residence. The Land Commission failed to notify the Heirs of Henry of this second Preliminary Inquiry.

     The notice for formal hearing was issued to Heirs of Henry in October 1999. Here again, two formal hearings were held for parcel 040-K-01. At the first formal hearing, held on April 19, 2000, Robson Henry testified. At the second formal hearing, held on April 24, 2000, all three parties to this appeal testified. The formal hearings were heard by different Land Commission representatives. The first formal hearing was heard by Land Commissioners Johnston Jonas and Alik Albert. After participating in the first formal hearing, Commissioner Johnston then disqualified himself from the case. The second formal hearing was heard by a panel consisting of both Commissioners and Land Registration Team members: Alik Albert, Clifton Abraham, Joseph George and Johniel Langu. Joseph George and Johniel Langu were appointed as "acting" commissioner members, on a pro tem basis, to the panel for parcel 040-K-01. The Findings of Fact and Opinion were signed by Alik Albert, Commissioner; Clifton Abraham, Commissioner; Joseph George, Acting Commissioner; and Johniel Langu, Acting Commissioner.

     The Land Commission also held proceedings on parcel 040-K-03, however, the Determination of Ownership was not issued. The Land Commissions adjudication for parcel 040-K-03 was not subject to separate review by this Court since the jurisdictional requirement of the Determination of Ownership was not issued. See Kos. S.C.  11.614 (repealed). However, since the Appellants claim to parcel 040-K-01 also includes a portion of parcel 040-K-03, this Courts Order of Remand necessarily requires proceedings on both parcels.

II. Analysis.

     The provisions of former Kosrae State Code, Title 11, Chapter 6, were applicable to the Land Commission proceedings for parcel 040-K-01. Therefore, this Court applies the provisions of former Kosrae State Code, Title 11, Chapter 6 (repealed) to its review of the Land Commissions procedure and decision in this matter. All references to Kosrae State Code, Title 11, Chapter 6 are made to the provisions in effect at the relevant time.

     The Court, in reviewing the Land Commissions procedure and decision, should consider whether the Land Commission: a) has exceeded its constitutional or statutory authority, b) has conducted a fair proceeding, c) has properly resolved any legal issues, and d) has reasonably assessed the evidence presented. Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 395, 398 (Kos. S. Ct. Tr. 1988).

[11 FSM Intrm. 422]

     This Court has carefully reviewed the Land Commission record for parcel 040-K-01. The Court finds that Land Commission exceeded its statutory authority and did not conduct a fair proceeding by issuing a Determination of Ownership without compliance with statutory hearing requirements.

     The Land Commission procedure for conducting the preliminary inquiry for parcel 040-K-01 is reviewed first. Former Kosrae State Code, Title 11, Chapter 6 provides the procedures for the Land Commission. Kosrae State Code, Section 11.606 sets forth the duties of the land registration team. The land registration team was responsible to institute a preliminary inquiry for the recording of claims for the subject parcel. The law does not require notice to potential adverse claimants in completing the preliminary inquiry. The purpose of the preliminary inquiry was to record all claims for a parcel, so that the claimants would be on record and would then be notified of the formal hearing. Here, two preliminary inquiries were held: one on September 16, 1999 and another on September 30, 1999. All three parties, Heirs of Henry, Bingham Palik and John Sigrah were properly recorded as claimants to parcel 040-K-01. Although two inquiries were held involving different claimants and different locations, there was no violation of law concerning the procedure for the preliminary inquiry.

     However, procedural errors are evident in the formal hearings that were held in April 2000. Kosrae State Code, Sections 11.606 and 11.607 provide that a land registration team holds the formal hearings and makes the adjudication. Kosrae State Code, Section 11.607 allows the Land Commission to withdraw a disputed claim from a registration team. If that withdrawal takes place, then the Land Commissioners must hold the hearing, hear the evidence and make an adjudication. In this case, the record reflects that neither a registration team, nor the three member Land Commission held the formal hearings, heard the evidence and made the adjudication. A panel of four persons, consisting of two Land Commissioners and two land registration team members, who were designated as Acting Commissioners, heard the majority of the evidence, and made the findings and opinion.

     Based upon the record, it is clear that the Land Commissioners withdrew the claim for parcel 040-K-01 from the registration team. At the first formal hearing held on April 19, 2000, Commissioners Johnston and Alik heard the evidence. Then Commissioner Johnston disqualified himself from the proceeding, after having participated in the first formal hearing. At the second formal hearing held on April 24, 2000, Commissioners Alik and Clifton, and Registration Team members Joseph George and Johniel Langu, as Acting Commissioners, heard the evidence. This panel of four persons heard the evidence presented at the second formal hearing. The parties do not dispute that the procedure utilized by the Land Commission in this matter.

     The procedure used for both formal hearings did not comply with statutory requirements. The testimony of Robson Henry, presented at the first formal hearing, was not heard by the full panel of adjudicators. Due to the late disqualification of Commissioner Jonas, only one person of the adjudication panel, Commissioner Alik, heard Robsons testimony. This arrangement resulted in a violation of the due process rights of Robson Henry, because his testimony was not heard by the full adjudication panel. Commissioner Clifton, Acting Commissioners George and Langu did not hear the testimony of Robson Henry, yet they participated in the findings of fact, opinion and decision. The Land Commission exceeded it constitutional and statutory authority by failure of the adjudication panel to hear all the evidence presented at the hearings.

     At the second formal hearing, a panel of four persons heard the evidence. This panel of four persons does not comply with the requirements of Kosrae State Code, Section 11.607. Section 11.607 permits the Commission to hear the evidence and make an adjudication. The Land Commission consisted of three persons: one Senior Land Commissioner and two Associate Commissioners. In this case, two persons were appointed as Acting Commissioners to make a total panel of four persons. The Land Commission exceeded its statutory authority, by creating a panel of four Commissioners for the

[11 FSM Intrm. 423]

second formal hearing, which did not comply with statutory requirements.

     In cases where the Land Commission has not followed statutory requirements, the law is clear. See Sigrah v. Kosrae State Land Commn, 9 FSM Intrm. 89, 93 (Kos. S. Ct. Tr. 1999). Here, the Land Commission did not comply with the statutory requirements for the formal hearings. There was no substantial compliance with the requirements specified by law. The Land Commissions failure to comply with statutory requirements for the formal hearings requires this Court to set aside the Determination of Ownership for parcel 040-K-01 issued on October 24, 2000. Due to the violations of the statutory hearing requirement, and in accordance with this Courts established precedent, the Determination of Ownership for parcel 040-K-01 is now vacated and set aside as void. See Nena v. Heirs of Melander, 9 FSM Intrm. 523 (Kos. S. Ct. Tr. 2000); Sigrah, 9 FSM Intrm. at 93; Palik v. Henry, 7 FSM Intrm. 571 (Kos. S. Ct. Tr. 1996).

     The Appellants claim a portion of adjacent parcel 040-K-03, which was subject to hearings and adjudication by the Land Commission at the same time as parcel 040-K-01. The Land Commissions adjudication for parcel 040-K-03 was not subject to separate review by this Court since the jurisdictional requirement of the Determination of Ownership was not issued. However, since the Appellants claim to parcel 040-K-01 also includes a portion of parcel 040-K-03, this Courts Order of Remand necessarily requires further proceedings on both parcels, 040-K-01 and 040-K-03.

III. Judgment.

     Judgment is entered in favor of the Appellants and against the Appellees. The Determination of Ownership for parcel 040-K-01 is vacated and set aside as void.

IV. Order of Remand.

     This matter is now remanded to Kosrae Land Court for further proceedings on parcels 040-K-01 and 040-K-03. The Kosrae Land Court is required to hold hearings and issue written findings and decisions on parcels 040-K-01 and 040-K-03, consistent with the requirements of Kosrae State Code, Title 11, Chapter 6. All proceedings shall be conducted according to the following instructions:

 

1. The Land Court shall provide notice and hold hearings, as required by Kosrae State Code, Title 11, Chapter 6, the KLCRP and General Court Orders.

2. The Land Court shall hear the Appellants, Appellees and any other claimants, witnesses and other evidence which may be offered at the hearing.

3. The Land Court may consider any evidence, including testimony which was received at the prior hearings, giving appropriate evidentiary weight to those testimonies which were based upon hearsay or not subject to cross examination, and giving appropriate evidentiary weight to documentary evidence which were offered without foundation or authentication.

4. This matter shall be assigned highest priority by the Land Court, and shall be assigned for hearing and further action by the first Land Court Justice who is available to hear and adjudicate this matter.

5. The Kosrae Land Court shall complete all hearings within 120 days,and shall issue its written findings and decision within 120 days after the close of the hearings, as provided by law.