CHUUK STATE SUPREME COURT TRIAL DIVISION
Cite as Kupenes v. Ungeni
12 FSM Intrm. 252 (Chk. S. Ct. Tr. 2003)

[12 FSM Intrm. 252]

KALY KUPENES,
Plaintiff,
 
vs.
 
NIPWECH UNGENI et al.,
Defendants.
 
CSSC-CA-NO. 31-1986
 
MEMORANDUM AND ORDER
 
DENYING RECUSAL OF SPECIAL TRIAL JUSTICE
 
Charles L. Light
Special Trial Justice
 
Hearing: December 15, 2003
Decided: December 15, 2003
Memorandum Entered: December 16, 2003

APPEARANCES:

For the Plaintiff:                 Wesley Simina. Esq.
                                           P.O. Box 94
                                           Weno, Chuuk FM 96942
 
For the Defendants:         Ben Enlet
(Nienes, Opanges Clan)  P.O. Box 1650
                                           Weno, Chuuk FM 96942
 
For the Defendant:           Anter Chipen
(Teresita John)                 Weno, Chuuk FM 96942
 
For the Defendants:         Julio Akapito
(Martina Stephen)             P.O. Box 303
                                           Weno, Chuuk FM 96942
 
For the Defendants:         Gideon Doone
(Nipwich Ungeni)              Weno, Chuuk FM 96942
 
For the Defendant:          Johnny Meippen, Esq.
(Chuuk)                            Assistant Attorney General
                                         Office of the Chuuk Attorney General
                                         P.O. Box 189
                                         Weno, Chuuk FM 96942

* * * *

[12 FSM Intrm. 253]

HEADNOTES

Courts ) Judges
      No one is eligible to serve as the Chuuk Chief Justice or as an associate justice unless at least 35 years of age, was a born Chuukese, has been a resident of the State of Chuuk for at least 25 years, is an FSM citizen, and has never been convicted of a felony. Other qualifications may be prescribed by statute. Kupenes v. Ungeni, 12 FSM Intrm. 252, 256 n.1 (Chk. S. Ct. Tr. 2003).
 
Courts ) Judges
     By general court order, when the other justices are disqualified or have been recused or there is a special need to have a special justice from outside the court to hear a case to avoid the appearance of impropriety, the Chuuk Chief Justice may appoint special justices (who meet the same requirements for the appointment of an appellate division temporary justice) and assign cases to him. Kupenes v. Ungeni, 12 FSM Intrm. 252, 256 n.2 (Chk. S. Ct. Tr. 2003).
 
Courts
     The Chuuk Chief Justice must promulgate rules of evidence and rules governing the administration of all state courts, the regulation of the judicial profession, and practice and procedure in civil and criminal matters. Kupenes v. Ungeni, 12 FSM Intrm. 252, 257 n.3 (Chk. S. Ct. Tr. 2003).
 
Appellate Review ) Decisions Reviewable
     When the court is of the opinion that its order involves a controlling question of law, and that an immediate appeal from its order will materially advance the ultimate termination of the litigation, as well as other cases, the court may permit a party to seek permission to appeal pursuant to Chuuk Appellate Rule 5(a). Kupenes v. Ungeni, 12 FSM Intrm. 252, 257 (Chk. S. Ct. Tr. 2003).
 
Courts ) Recusal
     A motion for disqualification of a Chuuk State Supreme Court justice must be supported by affidavits establishing a factual basis for the motion, and there must be a hearing where the moving party has the burden of proving the basis for the motion. Allegations that provide the basis for a motion to recuse must be proven by admissible and competent evidence. Kupenes v. Ungeni, 12 FSM Intrm. 252, 259 (Chk. S. Ct. Tr. 2003).
 
Courts ) Judges
     The Chuuk State Supreme Court prefers to adopt the majority rule in the United States that a temporary judge cannot be a judge de facto, because a temporary judge merely serves for a particular case, whereas a judge de facto makes claim to a judicial office under color of authority. This majority rule, in defining a judge de facto, requires that a judge de facto have all of the qualifications to hold the office which he claims under color of authority, a requirement which cannot, as a matter of definition, apply to temporary judges, who have no claim to the office of judge de jure, but rather occupy it on a temporary basis, case by case. Kupenes v. Ungeni, 12 FSM Intrm. 252, 260 (Chk. S. Ct. Tr. 2003).
 
Courts ) Judges
     A judge de facto occupies the position under "color of authority," which has been defined in this context as follows: "A de facto officer is one who is in possession of an office, and discharging its duties, under color of authority. By color of authority is meant authority derived from an election or appointment, however irregular or informal, so that the incumbent be not a mere volunteer. Kupenes v. Ungeni, 12 FSM Intrm. 252, 260 (Chk. S. Ct. Tr. 2003).
 
Courts ) Judges
     The Chuuk State Supreme Court adopts the U.S. majority rule that an special trial justice

[12 FSM Intrm. 254]

appointed pursuant to Chuuk GCO 2-94 is a temporary judge, a judge pro hac vice de jure, and that if the promulgation of GCO 2-94 is unconstitutional, then all acts of the special trial justice in the cases to which he has been assigned, are void and a nullity. Kupenes v. Ungeni, 12 FSM Intrm. 252, 261 (Chk. S. Ct. Tr. 2003).
 
Courts ) Judges
     The Chief Justice of the Chuuk State Supreme Court is the administrative head of the state judicial system, and he may appoint and prescribe duties of other officers and employees of the state judicial system. He is also obligated to promulgate rules governing the administration of all state courts, the regulation of the judicial profession, and practice and procedure in civil matters. Kupenes v. Ungeni, 12 FSM Intrm. 252, 261 (Chk. S. Ct. Tr. 2003).
 
Courts; Courts ) Judges
     When acting in his rule making capacity, the Chief Justice acts in a legislative capacity. Rules of court, properly promulgated, and not exceeding the limitation of the rule-making authority, have the force of law. Kupenes v. Ungeni, 12 FSM Intrm. 252, 261 (Chk. S. Ct. Tr. 2003).
 
Constitutional Law ) Chuuk ) Interpretation
     In interpreting constitutional provisions, courts must seek to ensure that the purposes sought to be accomplished by the constitution are not defeated by the interpretation of any particular provision. No court is authorized to so construe any clause of a constitution as to defeat its obvious ends when another construction will enforce and protect it. A constitution must be interpreted so as to carry out the general purposes of the government, and not defeat them. Kupenes v. Ungeni, 12 FSM Intrm. 252, 262 (Chk. S. Ct. Tr. 2003).
 
Constitutional Law ) Chuuk ) Interpretation
     A constitution is to be liberally construed, not only according to its letter, but also according to its true spirit, to carry into effect the principles of government which it embodies and the general purpose of its enactment. Kupenes v. Ungeni, 12 FSM Intrm. 252, 262 (Chk. S. Ct. Tr. 2003).
 
Constitutional Law ) Chuuk ) Interpretation
     The principle of practicality provides that when two interpretations of constitutional language are available and one is productive of invalidity and chaos, while the other saves validity and avoids chaos, the latter interpretation will be adopted. Kupenes v. Ungeni, 12 FSM Intrm. 252, 262 (Chk. S. Ct. Tr. 2003).
 
Constitutional Law ) Chuuk ) Interpretation
     When a particular interpretation of a constitutional provision has been in effect for a long period without objection, any practice adopted through such an interpretation may create acceptance of the practice by acquiescence. A long-continued understanding and application of a provision amounts to a practical construction of it. Such a construction, acquiesced in for many years, is frequently resorted to by the courts because it is entitled to great weight and will not be disregarded unless it clearly appears that it is erroneous. The general rule is that the exercise of powers and general acquiescence therein for a long period of years, especially if commencing with the government’s organization, may be treated as fixing the construction of the Constitution and as amounting to a contemporary and practical exposition of it. Kupenes v. Ungeni, 12 FSM Intrm. 252, 262 (Chk. S. Ct. Tr. 2003).
 
Constitutional Law ) Chuuk; Separation of Powers ) Chuuk ) Judicial Powers
     In determining the extent of the powers of the judiciary under a state constitution, the rule is that the state constitution confers on the judicial department all the authority necessary to exercise powers as a co-ordinate department of the government. Kupenes v. Ungeni, 12 FSM Intrm. 252, 262 (Chk.

[12 FSM Intrm. 255]

 
S. Ct. Tr. 2003).
 
Constitutional Law ) Chuuk; Separation of Powers ) Chuuk ) Judicial Powers
     With regard to grants of legislative and judicial power by state constitutions, and especially regarding the principle barring implied limitations on such powers, the whole of such legislative and judicial power reposing in the sovereignty is granted to those bodies, except as it may be restricted in the same instrument. Thus the state courts have and should maintain vigorously all the inherent and implied powers necessary to function properly and effectively as a separate department in the scheme of government. Kupenes v. Ungeni, 12 FSM Intrm. 252, 262-63 (Chk. S. Ct. Tr. 2003).
 
Courts ) Judges
     Chuuk GCO 2-94 authorizing the appointment of special trial justices is a constitutional exercise of the Chief Justice’s rule-making authority since there are no express constitutional limitations on that authority other than that permitting the Legislature to amend rules promulgated by the Chief Justice. Kupenes v. Ungeni, 12 FSM Intrm. 252, 263 & n.10 (Chk. S. Ct. Tr. 2003).
 
Constitutional Law ) Chuuk ) Interpretation; Separation of Powers ) Chuuk ) Judicial Powers
     Since the constitution must be interpreted in such a way as to carry out is purposes and since the purpose of the unified judiciary must be to ensure that fair and impartial justice be provided to every citizen of Chuuk, in a case where all sitting justices are disqualified, unavailable, or have recused themselves, fair and impartial justice will be unavailable unless the Chief Justice has some method available to ensure a fair and impartial hearing. Kupenes v. Ungeni, 12 FSM Intrm. 252, 263 (Chk. S. Ct. Tr. 2003).
 
Constitutional Law ) Chuuk ) Interpretation; Separation of Powers ) Chuuk ) Judicial Powers
     Since the constitution must be liberally, not restrictively, construed, any attempt to place limitations on the Chief Justice's power, where no words of limitation appear, would require a restrictive interpretation of the constitution, and would violate the rules of interpretation as applied to judiciaries. Kupenes v. Ungeni, 12 FSM Intrm. 252, 263 (Chk. S. Ct. Tr. 2003).
 
Constitutional Law ) Chuuk ) Interpretation; Separation of Powers ) Chuuk ) Judicial Powers
     Interpreting the Chief Justice's rule-making authority and his authority to "appoint and prescribe duties of other officers and employees, as prohibiting the appointment of a special trial justice unless the appointee meets the Article VII, § 9 qualifications of associate justices, would invite invalidity and chaos. Instead, the principle of acquiescence controls. Kupenes v. Ungeni, 12 FSM Intrm. 252, 263-64 (Chk. S. Ct. Tr. 2003).
 
Courts ) Judges
     In order to qualify as a temporary justice on a Chuuk State Supreme Court appellate division panel, the temporary justice must be either 1) a justice of the FSM Supreme Court, 2) a judge of a court of another FSM state, or 3) a qualified attorney in the State of Chuuk. Judges of other courts and qualified attorneys, are sufficiently competent in the law to sit as members of a Chuuk State Supreme Court appellate panel, regardless of their nationality or citizenship. Kupenes v. Ungeni, 12 FSM Intrm. 252, 264 (Chk. S. Ct. Tr. 2003).
 
Constitutional Law ) Chuuk ) Interpretation; Courts ) Judges
     The Chuuk Constitution provides no guidance, positively or negatively, regarding whether special trial justices are permissible, and if so, what their minimum qualifications must be. Absent any words of limitation in the constitution, the Chief Justice has and should maintain vigorously all the inherent and implied powers necessary to permit the judiciary to function properly and effectively as a separate department in the scheme of government. These inherent and implied powers include the power to

[12 FSM Intrm. 256]

 
adopt general court orders for the appointment of special trial justices and to establish minimum qualifications for those special justices which equal the qualifications for temporary appellate justices under the constitution. Kupenes v. Ungeni, 12 FSM Intrm. 252, 265 (Chk. S. Ct. Tr. 2003).
 
Courts ) Judges
     In appointing a special trial justice, the Chuuk Chief Justice is not appointing a temporary associate justice. A special trial justice, does not make any claim to the office of associate justice. Kupenes v. Ungeni, 12 FSM Intrm. 252, 265 (Chk. S. Ct. Tr. 2003).

* * * *

COURT'S OPINION

CHARLES L. LIGHT, Special Trial Justice:

     Plaintiff, through his attorney of record, Wesley Simina, Esq., requests that the Court disqualify itself from this case, on the ground that the Court does not have subject matter jurisdiction. The specific ground is that the Special Trial Justice (STJ) assigned to this case is not constitutionally qualified to be an Associate Justice of the Chuuk State Supreme Court.1 The STJ agrees that he does not meet the qualifications set forth in Article VII, § 9 of the Chuuk State Constitution.

     The STJ was appointed pursuant to the provisions of General Court Order (GCO) No. 2-94,2

[12 FSM Intrm. 257]

promulgated by the Chief Justice pursuant to his rule-making power as established in Article VII, § 13 of the Chuuk State Constitution.3 Thus, in challenging the jurisdiction of the STJ, plaintiff directly challenges the constitutional authority of the Chief Justice to promulgate a GCO permitting persons otherwise not constitutionally qualified as Associate Justices to sit as STJs under the limited circumstances set forth in GCO 2-94.

     For the reasons stated below, I find that there are no constitutional limitations on the rule making authority of the Chief Justice, and that the promulgation of GCO No. 2-94 was a valid exercise of his rule making authority. For these reasons, the motion to recuse is denied. The Court is of the opinion that this order denying the motion to recuse involves a controlling question of law, and that an immediate appeal from this order will materially advance the ultimate termination of this litigation, as well as all other cases to which this Court is assigned. Therefore the Court will stay all further proceedings in this case for a period of fourteen days, in order to permit the plaintiff to seek permission to appeal pursuant to Chuuk Appellate Rule 5(a).

I. Procedural History

     This action, filed in 1986, seeks to determine ownership to certain fill lands and tidelands on the southeast side of Tonoas (Dublon) Island in Chuuk State. The lands include a dock, built on landfill during the Japanese time, known as Ichimantong Dock. The case was originally assigned to then Associate Justice Petewon,4 who tried the case to conclusion in October, 1993, seven years after it was filed, and took the case under submission. Without deciding the case, Associate Justice Petewon left the bench in 1995 and was elected to the FSM Congress.

     Following the departure of Associate Justice Petewon, the case was briefly assigned to the late Associate Justice Wanis R. Simina. Associate Justice Simina was compelled to recuse himself from the case, however, because he had at one time been counsel to one of the parties and had actively participated in the case.

     Plaintiff, originally represented by Maketo Robert, Esq., apparently retained the services of Mr. Simina in 2001, after Mr. Robert was employed by the Office of the Attorney General. On July 27, 2001, plaintiff requested assignment of a new trial Justice. Due to the disqualification and/or recusal of the regular Justices of the Court, the Chief Justice appointed the court attorney, Jerry L. Coe, Esq., as a Special Trial Justice, pursuant to GCO No. 2-94.

     On July 30, 2001, STJ Coe dismissed the action for failure to prosecute, with the proviso that any party could move to vacate the dismissal. On August 27, 2001, plaintiff so moved. Mr. Simina did not object to the appointment of Mr. Coe, who also failed to meet the constitutional requirements

[12 FSM Intrm. 258]

to be an Associate Justice of the Chuuk State Supreme Court.5 The motion to vacate the dismissal was granted by STJ Coe without objection from plaintiff regarding his jurisdiction or authority.

     Unfortunately, shortly after reopening the case, STJ Coe was compelled for medical reasons to leave Chuuk. Thus the case was once again without a Trial Justice.

     On January 23, 2002 plaintiff again moved for reassignment of the case. Mr. Simina requested that the case be reassigned "to another justice or temporary special justice, as the case may be." Plaintiff did not object to the assignment of an STJ pursuant to GCO No. 2-94. In fact, he invited it.

     On April 15, 2002, Charles Light began his employment as court attorney to the Chuuk State Supreme Court, having been hired after the departure of Jerry L. Coe. On May 15, 2002, Plaintiff again moved for the assignment of a new Justice. In this motion, Mr. Simina stated:

PLEASE TAKE NOTICE that the plaintiff above-named, by and through his counsel, hereby requests the re-assignment of the case to another justice or temporary special justice, as the case may be. The case was last assigned to temporary special justice Jerry L. Coe, who had left Chuuk since then. The case is very old and it is just that a new judge be assigned to it. After learning that the new attorney for the Court, Charles Light, has arrived and is working, it is requested that he be assigned the case, as a temporary special justice. The last request made to this Court was in January, 2002. A prompt re-assignment is thus requested.

(emphasis added).

     From the date of his appointment in June, 2002, STJ Light conducted hearings, ordered the preparation of a transcript of the 1993 trial, and reviewed the transcript to determine whether he could decide any issues in the case without ordering a new trial. No objection was made by any party to the jurisdiction of the STJ at any time during this process.

     Following a review of the transcript, the STJ determined that he could decide one issue, the claim of Chuuk State to Ichimantong Dock and the fill land, as it was a pure issue of law based upon agreed facts. A briefing schedule issued, and argument was set for November 4, 2003. Many attorneys and trial counselors (Mr. Simina included) failed to appear at the hearing, and the Court, wishing to afford all parties the opportunity to argue the issue, continued oral argument to November 20, 2003.

     On November 19, 2003, less than 24 hours prior to scheduled oral argument, Plaintiff, through his counsel Mr. Simina, moved for recusal of the STJ. Plaintiff argued on November 20, 2003 that the Court could not conduct further proceedings until it ruled on the motion to recuse. Agreeing with the plaintiff, see Skilling v. FSM, 2 FSM Intrm. 209, 214 (App.1986), the Court ordered further briefing, and set oral argument on the motion December 11, 2003. Due to power outages, the oral argument was finally heard on December 15, 2003.

     On December 10, 2003, the Office of the Attorney General filed a motion for enlargement of time in which to file a brief in support of the motion. The brief from the Attorney General was to have been filed not later than December 3, 2003. On December 15, 2003, plaintiff purported to file a

[12 FSM Intrm. 259]

supplemental brief in support of the motion to recuse. The Court is unable to determine whether plaintiff filed a motion for enlargement of time in which to file a supplemental brief. Any supplemental pleadings were to have been filed by the plaintiff not later than December 8, 2003.

     During oral argument, the plaintiff sought to have the Court consider the supplemental pleading as having been filed. Due to the late filing, the Court denied plaintiff's oral motion for enlargement of time (and if a written motion had been filed, it was also denied). The Court also denied the motion for enlargement of time to file a brief made by Chuuk State. The motions were denied due to prejudice to the other parties, the lack of any justification for failure to comply with the Court's briefing schedule, and in the case of plaintiff's motion, due to the fact that the plaintiff sought to include in the record certain documents which should have accompanied the original motion. At the same time, the Court granted plaintiff's motion for enlargement of time in which to file a supplemental brief on the substantive issues which were to have been argued originally on November 20, 2003.

     Following oral argument, the Court orally denied the motion to recuse from the bench. This Order sets forth the Court's reasoning for the denial of the motion.

II. Preliminary Issues

A. Burden of moving party.

     A motion for disqualification of a justice must be supported by affidavits establishing a factual basis for the motion, and there must be a hearing where the moving party has the burden of proving the basis for the motion. See In re Disqualification of Justice, 7 FSM Intrm. 278, 279 (Chk. S. Ct. Tr. 1995). Allegations that provide the basis for a motion to recuse must be proven by admissible and competent evidence. Id.

     Here, the plaintiff must establish that the Chuuk State constitution bars the Chief Justice from appointing special trial justices who do not meet the Article VII, § 9 qualifications of Associate Justices, even where all other Justices are disqualified or have otherwise recused themselves in order to avoid the appearance of impropriety. It is not enough to simply allege that the STJ does not meet the qualifications to be an Associate Justice. Plaintiff has the burden of showing that the Chief Justice did not have the constitutional authority to promulgate the GCO which led to the appointment of the STJ.

B. De Facto Judge or Special Trial Justice?

     Preliminarily the Court must address an issue raised by the Plaintiff in his motion. Plaintiff suggests that the Court may be a de facto judge, whose prior rulings will not be affected even if he is disqualified by granting the motion to recuse. Plaintiff relies on dicta in Alaphanso v. Suda, 10 FSM Intrm. 553, 556 (Chk. S. Ct. Tr. 2002). Additional support for the argument that the STJ is a de facto judge may be found in Hartman v. FSM, 6 FSM Intrm. 293, 298-99 (App. 1993).6

     Whether there is a legal distinction between a de facto judge and a temporary justice7 is

[12 FSM Intrm. 260]

significant. If the STJ is a temporary justice, rather than a de facto judge, and if the Chief Justice did not have the constitutional authority to promulgate GCO 2-94, then the STJ's prior acts are void and a nullity. National Bank of Wash. v. McCrillis, 130 P.2d 901, 908, 144 A.L.R. 1197, 1204 (Wash. 1942) (citing Clements v. Fort Worth & D.S.P. Ry., 7 S.W.2d 895, 898 (Tex. Civ. App. 1928). If GCO 2-94 is unconstitutional, and if all STJs appointed pursuant to its authority are not de facto judges, then every act and/or decision rendered by any STJ appointed pursuant to GCO 2-94 who did not meet the Article VII, § 9 qualifications may be void as well.

     There is a split of authority in the United States regarding whether the legal term of art "judge de facto" includes within its definition those judges appointed to hear a particular case, commonly known as temporary or pro tem judges. The FSM Supreme Court Appellate Division adopted the minority view in the U.S., holding that a judge appointed for a particular case, regardless of the constitutionality of his appointment, is a de facto judge, whose acts are valid against all but the state. It adopted this view due to the particular circumstances of the FSM judicial system. Hartman, 6 FSM Intrm. at 299. It rejected the majority view as being "highly technical." Id.

     The FSM Supreme Court is not bound by the decisions of the Trust Territory High Court, but may adopt its reasoning where appropriate. Etscheit v. Nahnken of Nett, 7 FSM Intrm. 390, 396 (Pon. 1996). Similarly, this Court is not bound by the decisions of the FSM Supreme Court Appellate Division.

     This Court prefers to adopt the majority rule in place in the United States regarding whether temporary justices can be considered judges de facto. Under that view, a temporary judge cannot be a judge de facto, because the temporary judge merely serves for a particular case, whereas a judge de facto makes claim to a judicial office under color of authority.

The position of a judge pro tem is entirely different from that of one claiming to be a superior court judge by election or appointment. The temporary character of the authority of a judge pro tem and the fact that only the parties litigant are concerned with his right to act, in our opinion destroys the basis for the normal rules concerning de facto judges. The parties, when they appear before a special judge, are not appearing before one who has had the general reputation in the community of being a judge, for the reason that the only case he may try is the one then before him. . . . A judge pro tem does not and could not make claim to the office of superior court judge. . . .

. . . "There can be no de facto judge pro hac vice. One chosen for that purpose must be either judge pro hac vice de jure, or he has no rights, powers, or authority whatsoever."

National Bank of Wash. v. McCrillis, 130 P.2d 901, 909, 144 A.L.R. 1197, 1205-06 (Wash. 1942) (citation omitted).

     Thus, the majority rule, in defining a judge de facto, requires that a judge de facto have all of the qualifications to hold the office which he claims under color of authority, a requirement which cannot, as a matter of definition, apply to temporary judges, who have no claim to the office of judge de jure, but rather occupy it on a temporary basis, case by case.

     Another citation in McCrillis clarifies the rule. A judge de facto occupies the position under "color of authority," which has been defined in this context as follows: "A de facto officer is one who is in possession of an office, and discharging its duties, under color of authority. By color of authority is meant authority derived from an election or appointment, however irregular or informal, so that the incumbent be not a mere volunteer." McCrillis, 130 P.2d at 908, 144 A.L.R. at 1205 (citation omitted).

[12 FSM Intrm. 261]

     Clearly, GCO 2-94 does not attempt to create Associate Justices of the Chuuk State Supreme Court. Nor does the appointment of an STJ under GCO 2-94 confer on the appointee the rights, duties and obligations of an Associate Justice of the Chuuk State Supreme Court, including the right to hold the office of Associate Justice permanently "during good behavior."8

     It appears to this Court that the minority rule evolved in order to avoid the consequences of determining, in a particular case, that a temporary judge was improperly appointed, making his or her rulings void as a matter of law. By making all temporary judges de facto judges, the parties, who stand to gain or lose the most from the appointment of someone unqualified to act competently, have no means of protecting their interests. It seems to this Court that the parties should retain, wherever possible, the right to challenge one temporarily appointed to hear their particular case, on the grounds that the appointment was constitutionally or legally improper. Since only the sovereign may challenge the acts of a judge de facto, under the minority rule parties to litigation would have no recourse to challenge the appointment of a temporary judge.9

     Thus, while acknowledging the strong reasons, in terms of the social and geographical configuration of Micronesia, supporting the adoption by the FSM Supreme Court of the minority rule affording all temporary judges de facto status, this Court declines to follow the decision in Hartman v. FSM, 6 FSM Intrm. 293 (App. 1993). This Court adopts the majority rule, and finds that an STJ appointed pursuant to GCO 2-94 is a temporary judge, a judge pro hac vice de jure. If the promulgation of GCO 2-94 is unconstitutional, then all acts of this Court, in this case and others to which he has been assigned as STJ, are void and a nullity. And so must be all acts of any previously appointed STJ who did not meet the qualifications of Article VII, § 9 of the Chuuk state constitution.

III. The General Court Order Is Constitutional

A. Rule-making authority of the Chief Justice.

     The Chief Justice of the Chuuk State Supreme Court "is the administrative head of the state judicial system." Chk. Const. art. VII, § 11. He "may appoint and prescribe duties of other officers and employees of the state judicial system." Id.

     In his capacity as Chief Justice, he is obligated to "promulgate . . . rules governing the administration of all state courts, the regulation of the judicial profession, and practice and procedure in civil . . . matters." Chk. Const. art. VII, § 13.

     When acting in his rule making capacity, the Chief Justice acts in a legislative capacity. Berman v. FSM Supreme Court (II), 5 FSM Intrm. 371, 374 (Pon. 1992). Rules of court, properly promulgated, and not exceeding the limitation of the rule-making authority, have the force of law. Kosrae v. M/V Voea Lomipeau, 9 FSM Intrm. 366, 371 (Kos. 2000).

     Thus, the question is whether there are any express constitutional limitations on the rule making authority of the Chief Justice, whether the limitations be on his power to create – by rule or general court order – special trial justices at all, or on his power to appoint to such positions individuals who do not meet the qualifications of associate justices of the Supreme Court. In deciding these related questions, the Court is guided by certain fundamental rules of constitutional interpretation.

[12 FSM Intrm. 262]

B. Applicable rules of interpretation.

     In interpreting constitutional provisions, courts must seek to ensure that the purposes sought to be accomplished by the constitution are not defeated by the interpretation of any particular provision.

     The rule is well established that no court is authorized to so construe any clause of a constitution as to defeat its obvious ends where another construction . . . will enforce and protect it . . . . Thus, it is said that a constitution must be interpreted so as to carry out the general purposes of the government, and not defeat them.

16 Am. Jur. 2d Constitutional Law § 93, at 422 (1979).

     It is equally well settled that constitutions are to be liberally construed: "[A] constitution is to be liberally construed, not only according to its letter, but also according to its true spirit, to carry into effect the principles of government which it embodies and the general purpose of its enactment." Id. § 97, at 430 (footnotes omitted).

     The principle of practicality provides that "where two interpretations of language are available and one is productive of invalidity and chaos, while the other saves validity and avoids chaos, the latter interpretation will be adopted." Id. § 99, at 434.

     Additionally, where a particular interpretation of a constitutional provision has been in effect for a long period without objection, any practice adopted through such an interpretation may create acceptance of the practice by acquiescence.

     It is a settled rule of constitutional construction that a long-continued understanding and application of a provision amounts to a practical construction of it. Such a construction, acquiesced in for many years, is frequently resorted to by the courts because it is entitled to great weight and will not be disregarded unless it clearly appears that it is erroneous.

. . . The general rule is that the exercise of powers and general acquiescence therein for a long period of years, especially if commencing with the organization of the government, may be treated as fixing the construction of the Constitution and as amounting to a contemporary and practical exposition of it . . . .

Id. § 124, at 481-82 (footnotes omitted).

C. Specific rules applying to judiciaries.

     In determining the extent of the powers of the judiciary under a state constitution, "The rule is now well settled that under the various state governments, the constitution confers on the judicial department all the authority necessary to exercise powers as a co-ordinate department of the government." Id. § 306, at 823 (1979) (emphasis added).

     It has been held, with regard to grants of legislative and judicial power by state constitutions, and especially regarding the principle barring implied limitations on such powers, that "the whole of such [legislative and judicial] power reposing in the sovereignty is granted to those bodies, except as it may be restricted in the same instrument." Washington-Detroit Theatre Co. v. Moore, 229 N.W. 618, 620, 68 A.L.R. 105, 108 (Mich. 1930) (emphasis added). Also, the courts of a state "are set up by the Constitution without special limitations; hence they have and should maintain vigorously all the inherent

[12 FSM Intrm. 263]

and implied powers necessary to function properly and effectively as a separate department in the scheme of government." Kirtowsky v. Superior Court of Sonoma County, 300 P.2d 163, 169 (Cal. Dist. Ct. App. 1956) (quoting Brydonjack v. State Bar of California, 281 P. 1018, 1020, 66 A.L.R. 1507, 1509 (Cal. 1929)).

D. There are no limitations on the rule-making authority.

     Applying the foregoing rules of interpretation, it is clear that GCO 2-94 is a constitutional exercise of the rule-making authority of the Chief Justice.10 There are no express constitutional limitations on that authority. There are no words of limitation in Article VII, §§ 11 and 13, other than those permitting the Legislature to amend rules promulgated by the Chief Justice.

     Plaintiff and Chuuk State argued that the restrictions on who may be an associate justice of the Chuuk State Supreme Court, contained in Article VII, § 9, must be applied to STJs as well. This argument fails, because in appointing an STJ, the Chief Justice is not appointing a "temporary associate justice." An STJ, does not make any claim to the office of associate justice. An STJ is not a judge de facto, who must meet the qualifications for the office he claims to occupy.

     The constitution must be interpreted in such a way as to carry out is purposes. The purpose of the unified judiciary must be to ensure that fair and impartial justice be provided to every citizen of Chuuk State. In a case where all sitting justices are disqualified, unavailable, or have recused themselves, fair and impartial justice will be unavailable unless the Chief Justice has some method available to ensure a fair and impartial hearing.

     The constitution must be liberally, not restrictively, construed. Any attempt to place limitations on the power of the Chief Justice, where no words of limitation appear, would require a restrictive interpretation of the constitution, and would violate the rules of interpretation as applied to judiciaries. See supra section III(C).

     Clearly, interpreting the rule-making authority, as well as the authority contained in Article VII, § 11 to "appoint and prescribe duties of other officers and employees," as prohibiting the appointment of an STJ unless the appointee meets the Article VII, § 9 qualifications of associate justices, would invite "invalidity and chaos." Requiring any STJ to meet the Article VII, § 9 qualifications would not only require that an STJ be 35 years of age, Chuukese, and resident in Chuuk for 25 years, it would also require that an STJ be a graduate of an accredited law school and admitted to the bar, or have at least 20 years experience in the practice of law.11 The pool of potential candidates who would qualify is very small.12 Under this restrictive interpretation, it is not unforeseeable that no proper candidate

[12 FSM Intrm. 264]

could be found. The alternative would be either to apply the "rule of necessity," requiring a disqualified judge to hear the case, or to dismiss the case due to the lack of a qualified justice. The Court takes judicial notice of the fact that the Chief Justice is personally aware of the "rule of necessity," and concludes that the Chief Justice has chosen the alternative of GCO 2-94 to the appearance of impropriety which would occur if an associate justice were required to hear a case in which he has been disqualified.

     Most importantly, it appears that the "principle of acquiescence"13 controls here. GCO 2-94 was promulgated in 1994, and by its express terms was promulgated pursuant to the rule-making authority of the Chief Justice contained in Article VII, § 13. Numerous cases have been decided by STJs who do not meet the qualifications set forth in Article VII, § 9. On no prior occasion has any party to any case heard by an STJ raised any formal objection to the jurisdiction of the STJ, or to the authority of the Chief Justice to promulgate GCO 2-94. For more than nine (9) years the Chuuk State Supreme Court has functioned well and fairly with GCO 2-94 in place and utilized. The Court finds that there has been complete acceptance of the GCO, and acquiescence in the power of the Chief Justice to promulgate it pursuant to his rule-making power. Indeed, Plaintiff here specifically availed himself of the provisions of GCO 2-94 in having this STJ appointed. Plaintiff should not be permitted to request that the Chief Justice appoint an STJ who clearly does not meet the qualifications set forth in Article VII, § 9, while on the other hand reserving to himself the right to challenge the appointment at a later time on constitutional grounds. The Court finds that both the plaintiff and Chuuk State have acquiesced in the appointment of this STJ, and have acknowledged by such acquiescence the constitutional authority of the Chief Justice to make such appointments.

E. Why not STJs qualified as appellate panel justices?

     Both the plaintiff and Chuuk State appear to contend that even if the Chief Justice has the power to create STJs pursuant to his rule-making power, he still does not have the power to appoint individuals who clearly qualify as appellate panel justices pursuant to the constitution.

     In order to qualify as a temporary justice on an appellate division panel, the temporary justice must be either (1) a justice of the FSM Supreme Court, (2) a judge of a court of another FSM state, or (3) a qualified attorney in the state of Chuuk.14 It is not disputed that judges of other courts, and qualified attorneys, are sufficiently competent in the law to sit as members of a Chuuk State Supreme Court appellate panel, regardless of their nationality or citizenship. What is it then that would disqualify anyone who qualifies to decide appellate cases from hearing trial division cases as an STJ?

     Plaintiff offers no competent and admissible evidence that would answer this question, merely arguing that trial division justices, even temporary ones, must be Chuukese. The Court finds this argument disingenuous. It implies that persons clearly qualified as appellate justices are somehow by virtue of their nationality disqualified from deciding cases at the trial level.

     The constitution is silent on the issue of special trial judges. It provides no guidance, positively

[12 FSM Intrm. 265]

or negatively, regarding whether special trial justices are permissible, and if so, what their minimum qualifications must be. Why should this Court accept the opinion of plaintiff that only Chuukese can be special trial justices, if the constitution provides no guidance either way, and if the constitution permits, and indeed virtually requires, that non-Chuukese be members of an appellate panel?

     Absent any words of limitation in the constitution, the Chief Justice has "and should maintain vigorously all the inherent and implied powers necessary" to permit the judiciary to function properly and effectively as a separate department in the scheme of government. See section III (C) above. In this Court's opinion, these "inherent and implied powers" include the power to adopt general court orders for the appointment of special trial justices, and to establish minimum qualifications for those special justices which equal the qualifications for temporary appellate justices under the constitution. This Court is certain that the Chief Justice has not and will not appoint any individual as an STJ who is not qualified in terms of training and experience to provide fair and impartial justice to the Chuukese people. That is his mandate as Chief Justice, and nothing this Court can find in the constitution limits in any way his ability to provide for the fair and impartial administration of justice for his people.

IV. Conclusion

     The Chief Justice of the Chuuk State Supreme Court is empowered to take all necessary and proper steps to ensure that the people of Chuuk State receive, from the trial and appellate divisions of the Chuuk State Supreme Court, fair and impartial justice. Confronted with repeated disqualifications and/or recusals of all associate justices, the Chief Justice in 1994 promulgated a general court order, pursuant to the rule-making authority contained in Article VII, § 13, creating special trial justices to hear cases. Between its promulgation in 1994 until November of 2003, GCO 2-94 worked as intended, enabling cases to be heard and decided, when all associate justices were disqualified. Between 1994 and November, 2003, every trial counselor and attorney, and the Office of the Attorney General of Chuuk State, accepted the validity of GCO 2-94, acquiesced in its use, and in this particular case, encouraged the use of GCO 2-94 to obtain the appointment of not one, but two STJs who did not meet the qualifications to be associate justices.

     Given the rules of interpretation of constitutions generally, and of the judicial provisions of constitutions in particular, and most importantly given the applicability of the principle of acquiescence in this case, it is clear that the power of the Chief Justice to ensure fair and impartial justice to all who seek the assistance of the Chuuk State judiciary includes the power to assign non-Chuukese STJs to cases where all associate justices are disqualified, unavailable, or have recused themselves in order to avoid the appearance of impropriety.

Now therefore, good cause appearing, it is hereby ordered as follows:

     1. The motion of Chuuk State for enlargement of time in which to file a brief in support of the motion to recuse is denied for the reasons stated on the record;

     2. The motion of plaintiff for enlargement of time in which to file a supplemental brief in support of the motion to recuse is denied for the reasons stated on the record;

     3. The motion to recuse is denied;

     4. Plaintiff's motion for enlargement of time in which to file a brief on the substantive issue of the claims of Chuuk State to Ichimantong Dock and the abutting fill land is granted, and the brief is deemed filed;

[12 FSM Intrm. 266]

     5. All further proceedings in this case are stayed for a period of fourteen (14) days from the date of this order, in order to permit any party disagreeing with this Memorandum and Order time in which to seek permission of the appellate division to appeal this Order pursuant to Chuuk Appellate Rule 5(a).

* * * *

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Footnotes:

1. Chk. Const. art. VII, § 9 provides:

No person is eligible to serve as the Chief Justice or as an associate justice unless at least 35 years of age, was a born Chuukese, has been a resident of the State of Chuuk for at least 25 years, is a citizen of the Federated States of Micronesia, and has never been convicted of a felony. Other qualifications may be prescribed by statute.

Id. (emphasis added).

2. The appointment also refers to GCO 3-94, which provides procedures for the assignment of cases. These procedures apply to all justices, and are not directly relevant to the issue of the constitutionality of GCO 2-94.

GCO 2-94 provides:

There are procedures and requirements for the appointment of Temporary Justices for the Appellate Division and for the Trial Division in cases when a Justice of this Court has been declared temporarily disabled. But neither the Chuuk State Constitution nor the Judiciary Act make any provision for the appointment of a Special Justice to hear an individual case in the Trial Division when the majority of Justices of this Court have been disqualified or recused themselves from hearing the matter.

Therefore, pursuant to Article VII, § 13 of the Chuuk State Constitution the Court hereby makes the following General Court Order concerning the appointment of a Special Justice.

In those situations that the majority of the Justices of this Court have either been disqualified or have recused themselves or there is a special need to have a Special Justice from outside the Court to hear a case to avoid the appearance of impropriety, the Chief Justice or an Associate Justice authorized to act on behalf of the Chief Justice may assign such a case to a Special Justice for the purpose of hearing that case only. Any individual appointed as a Special Justice must meet the same requirement set forth for the appointment of a Temporary Justice of the Appellate Division. Further the appointment of a Special Justice shall be for the purpose and duration of hearing only the individual case designated in the appointment, although the same individual may be appointed to a different case if the need arises.

This Order shall remain in effect until the legislature enacts statutory procedures and requirements that control the situation covered by this Order.

3. Chk. Const. art. VII, § 13 provides in part: "The Chief Justice shall promulgate rules of evidence, and rules governing the administration of all state courts, the regulation of the judicial profession, and practice and procedure in civil and criminal matters."

4. Associate Justice Petewon was recently reappointed to the Chuuk State Supreme Court after having been defeated in his most recent bid for re-election to the FSM Congress.

5. In his motion to vacate the default, plaintiff states that the case was assigned to Mr. Coe "because the parties, specifically the plaintiff, were pushing for a new judge."

6. In this case, the FSM Supreme Court Appellate Division held that if someone constitutionally ineligible for appointment is appointed a judge, the appointee is a de facto judge. It further held that the acts of a de facto judge are "valid against all except the sovereign." Hartman, 6 FSM Intrm. at 299.

7. As used here, "temporary justice" includes those categories of judges known as judges pro tem or, as here, special trial justices.

8. Chk. Const. art. VII, § 7.

9. Unless, as here, the state is a party, and seeks to challenge the de facto judge.

10 . While normally the authority to appoint special justices relies upon legislative enactment, both Am. Jur. 2d and Corpus Juris Secundum refer to situations under which special justices are appointed pursuant to court rule. See 46 Am. Jur. 2d Judges § 248, at 331 (rev. ed. 1994); 48A C.J.S. Judges § 169, at 880 (1981)..

11. Chuuk Judiciary Act, Chk. S.L. No. 190-08, § 13, creating additional qualifications beyond those contained in Article VII, § 9 of the Chuuk state constitution.

12. The best information available to the Court is that there are not more than eight (8) Chuukese who meet all of the necessary qualifications. Sabino Asor, Jack Fritz, Maketo Robert and Wesley Simina are graduates of U.S. accredited law schools. Ready Johnny is believed to be a graduate of Papua New Guinea School of Law. Midasy Aisek, Johnny Meippen and Camillo Noket have, according to the best available information, practiced law for more than 20 years. There may be a few others who would meet all qualifications. Both Sabino Asor and Jack Fritz, as members of the FSM Congress, are barred by the FSM Constitution from serving as justices. FSM Const. art. IX, § 13.

13. 16 Am. Jur. 2d Constitutional Law § 124, at 481-82 (1979).

14. Chk. Const. art. VII, § 5(b). This has been interpreted as including retired justices of the FSM Supreme Court. "Qualified attorney" has consistently been interpreted by the Chief Justice as precluding trial counselors who are not members of the FSM bar from being members of an appellate panel.