[12 FSM Intrm. 280]
* * * *
[12 FSM Intrm. 281]
[12 FSM Intrm. 282]
[12 FSM Intrm. 283]
* * * *
DENNIS YAMASE, Associate Justice:
This came before the FSM Supreme Court appellate division on appeal from the Kosrae State Courtís March 19, 2001 decision affirming the Kosrae Land Commissionís February 2, 2000 Determination of Ownership awarding Parcel No. 066-M-03 to Lyndon Cornelius. We affirm. Our reasoning follows.
Tepuke originally owned Lot No. 622. He had two sons, Ittu and Tara, and one daughter, Mirah. Mirah had no natural children. She adopted one of Ittuís sons, Sapal Shrew, and another son named Robert George. Tepuke gave Mirah some land which included Lot No. 622. Mirah gave Lot No. 622 to Robert George, who was shown as that lotís owner on the 1932 Japanese land map. George later conveyed his interest to Cornelius.
Appellant Livingston Anton asserts that Ittu, as Tepukeís eldest son, had the customary authority to take the land back from Mirah and did in fact exercise that authority and take the land back. Ittu bequeathed this land to Moses Anton in a 1961 will. Livingston Anton later inherited Mosesís interest.
The land registration process for Lot No. 622, designated as Parcel No. 066-M-03, started in 1991. Cornelius filed his claim relying on his chain of title from Mirah through Robert George. Anton filed his claim relying on a chain of title from Ittu through Moses Anton. The Kosrae Land Commission ruled that Robert George had owned the land and that there was insufficient evidence to show that Ittu had ever taken the land back from Mirah. It concluded that Cornelius held fee simple title. Anton then appealed to the Kosrae State Court and moved for a trial de novo there.
The court denied the motion. It instead conducted a judicial review and heard argument on the
[12 FSM Intrm. 284]
partiesí briefs and the record. On March 19, 2001, it affirmed the Land Commissionís Determination of Ownership that Cornelius owned parcel 066-M-03. Anton then appealed that decision to us.
II. Issues and Contentions Presented by Appellant
Anton contends that the Kosrae State Courtís March 19, 2001 decision affirming the Kosrae Land Commissionís issuance of a Determination of Ownership in Lyndon Corneliusís favor was erroneous as a matter of law and as a matter of fact and that his due process rights under the FSM and Kosrae Constitutions were violated. He contends that the Kosrae State Court erred 1) in not ruling that the judicially recognized will of Ittu collaterally estopped Cornelius from claiming the land; 2) by not conducting a trial de novo; and 3) by ignoring the partiesí statute of limitations arguments and the application of adverse possession.
Anton alleges that his due process rights were violated in the Kosrae State Court when the judge, who had acted as counsel in a case which referred to another land bequest in Ittuís will, did not recuse himself. He also alleges that his rights were violated in the Land Commission because various members of the Land Commission and Land Registration Team were "close relatives" of Cornelius or Corneliusís wife.
As relief, Anton asks that the bequests in Ittuís will be followed in this case and that the court nullify in other cases all certificates of title to all persons who are not heirs of legatees under Ittuís will.
A. Antonís Due Process Claims
We must first consider Antonís due process contentions, since, if he were to prevail on these, the decision(s) below would be vacated (without us considering their merits), and the matter remanded for new proceedings.
1. Kosrae Land Commission Proceedings
Anton asserts that the Land Commission decision was tainted and that he was denied due process because various members of the Land Commission and Land Registration Team were "close relatives" of either Cornelius or Corneliusís wife. This serious allegation, if true, would usually be enough to vacate the decision and remand the case to the Land Court for new proceedings with a new determination to be made by impartial adjudicators. Wito Clan v. United Church of Christ, 8 FSM Intrm. 116, 118-19 (Chk. 1997) (impartial Land Commission, not a court, should first review registration teamís findings, so when disqualified land commissioner participated in determination, case remanded for new determination by undisqualified commissioners).
Kosrae regulations define "near relatives" who are disqualified from land commission proceedings as second cousins or closer or a spouse thereof, including adoptees. Kos. Land Commín Reg. (Kos. Reg. 24-88) pt. 2.1(b) (Oct. 10, 1988). Anton, however, does not name the persons who he claims are Corneliusís or Corneliusís wifeís "close relatives" or state how they are related, or what positions they held, or how they were involved in the Land Commission decision. Without knowing the answers to these questions, we cannot find plain error and conclude that, as a matter of law, Antonís due process rights were violated and thereby vacate the determination and remand it to the Land Court for a new determination before other adjudicators.
Anton did not raise this claim in the Land Commission or later in the Kosrae State Court. He
[12 FSM Intrm. 285]
asserts that the reason for this is that the social configuration of Kosrae does not permit a Kosraean counsel with a Kosraean client to ask a Kosraean man "to step down from a hearing." Appellantís Br. at 14.
This contention has no merit. The Kosrae State Court has not been shy in vacating and remanding Land Commission decisions for due process violations, see, e.g., Ittu v. Heirs of Mongkeya, 10 FSM Intrm. 446, 448 (Kos. S. Ct. Tr. 2001); Nena v. Heirs of Melander, 10 FSM Intrm. 362, 364 (Kos. S. Ct. Tr. 2001); Kun v. Kilafwakun, 10 FSM Intrm. 214, 216 (Kos. S. Ct. Tr. 2001); Isaac v. Benjamin, 9 FSM Intrm. 258, 259-60 (Kos. S. Ct. Tr. 1999), including involvement of commissioners who should have disqualified themselves, Heirs of Henry v. Palik, 11 FSM Intrm. 419, 422 (Kos. S. Ct. Tr. 2003); Langu v. Heirs of Jonas, 10 FSM Intrm. 547, 550 (Kos. S. Ct. Tr. 2002).
We can see no reason why Kosraeís social configuration should have prevented Anton from timely raising this issue. It has not prevented others. Having failed to raise this claim earlier, Anton cannot raise it now. Hartman v. Bank of Guam, 10 FSM Intrm. 89, 95 (App. 2001) (except for plain error, issue raised for first time on appeal is waived); Alfons v. FSM, 5 FSM Intrm. 402, 404 (App. 1992) (issue not raised below cannot be introduced for the first time on appeal); Paul v. Celestine, 4 FSM Intrm. 205, 210 (App. 1990) (cannot urge new ground for relief in appellate court when party had ample opportunity to raise that ground in lower court); Loch v. FSM, 2 FSM Intrm. 234, 236 (App. 1986) (appellate process contemplates any issue brought before appellate court will first have been raised below).
2. Kosrae State Court Proceedings
Anton claims that even though the Kosrae State Court judge was not asked to, he should have disqualified himself from sitting on the appeal because he had acted as Charleyís counsel in Ittu v. Charley, 3 FSM Intrm. 188 (Kos. S. Ct. Tr. 1988), a case which also was concerned with a land bequest in Ittuís will.
The Kosrae State Code adopts by reference and applies to Kosrae State Court justices the ABA Code of Judicial Conduct provisions in effect on the State Codeís effective date.1 Kos. S.C. ß 6.1201(1). The Kosrae State Codeís effective date was October 1, 1985. Kos. Pub. L. No. 3-64, ß 10. In 1985, the applicable provision of the ABA Code of Judicial Conduct read: "(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: . . . (b) he served as a lawyer in the controversy . . . ." ABA Code
[12 FSM Intrm. 286]
of Judicial Conduct Canon 3C (1984 ed.). This is the ethical provision in effect in Kosrae today.2
We cannot see how the judgeís failure to sua sponte recuse himself because he was Charleyís counsel in Ittu v. Charley, 3 FSM Intrm. 188 (Kos. S. Ct. Tr. 1988) constitutes plain error requiring us to vacate and remand the matter to the Kosrae State Court. We note that this case is not the same controversy as Ittu. That case involved different land and different parties. Its only apparent connection with this case is Ittuís will. But Ittu v. Charley was dismissed on res judicata grounds without ever reaching any issues concerning Ittuís will. Id. at 190, 193-94.
Anton asserts that Ittuís will applies in this case and that the court denied him due process by not allowing him to be fully heard on that issue. The willís inapplicability in this case is discussed below. See infra part III.B.2.a.
B. Alleged Errors of Law and Fact
Next, we must consider whether the Kosrae State Court should have granted his motion for a trial de novo (instead of conducting a judicial review), since, if Anton prevails on this point, we would not consider his other assignments of error. He would be starting afresh with a trial de novo before that court as if nothing had previously happened there.
1. Trial De Novo
Anton contends that the lower court should have held a trial de novo instead of hearing it as an appeal. The Kosrae State Court must hear an appeal from the Land Commission "on the record unless it finds good cause exists for a trial of the matter." Kos. S.C. ß 11.614. Anton cites as good cause the Land Commissionís failure to follow the Kosrae Rules of Evidence in its proceedings and his contention that the lower court did not review the Land Commission record but only the Land Commission decision. He asserts that the lower court decision "made no reference to any review of testimony transcripts and/or review of any other vital evidence in conducting its findings íon the record.í" Appellantís Br. at 7. He also contends that the lower courtís "allowing of new briefs to be filed by the parties showed that the court was not reviewing the matter on the record [but] that it was in fact allowing new evidence in))a character of a trial or trial de novo." Id. at 6.
The Land Commissionís "failure" to follow the Kosrae Rules of Evidence did not constitute good cause for a trial de novo. Those rules do not apply in the Kosrae Land Commission. Taulung v. Jack, 11 FSM Intrm. 345, 348 (Kos. S. Ct. Tr. 2003); Kos. Land Commín Reg. (Kos. Reg. 24-88) pt. 3.2 (Oct. 10, 1988).
Antonís contention that the lower court reviewed only the Land Commission decision and not the Land Commission record, is contrary to the record before us. The lower court stated that it "carefully reviewed the Land Commission record" and then cited various evidence and testimony before the Land Commission. Memorandum of Decision at 2 (Mar. 19, 2001). The court thus did not review just the Land Commission decision. It also reviewed the record.
The lower courtís permitting the filing of new briefs once the matter was appealed to it does not constitute a form of trial. It is standard appellate procedure (as used here in judicial review of administrative decisions) to file briefs and hear oral argument on them. This permits the appellate parties to argue errors of law or other deficiencies in the proceeding below and to direct the courtís
[12 FSM Intrm. 287]
attention to those parts of the record that support their contentions. Briefs are not evidence, and a hearing on them is not a trial. There was thus no "character of a trial" or a trial de novo, and this is not a ground for us to order that one be held.
The ground for Antonís lower court trial de novo motion was that the Land Commission did not properly consider certain evidence. The Kosrae State Court may properly consider such an issue under its standard of review (see infra part III.B.2) without the need for a trial de novo, and, if the appellant should prevail, it can order a remand.
Good cause for a trial de novo is not apparent. Furthermore, the statute contemplates that judicial review of a Land Commission appeal would be the norm and that a trial de novo would be held only in the uncommon event that the Kosrae State Court had found good cause for one. That court did not. Nor have we been shown reasons that would warrant such a conclusion. The Kosrae State Court did not abuse its discretion by not holding a trial de novo.
We now turn to the appealís merits.
2. Alleged Errors in the Lower Courtís Judicial Review
The Kosrae State Court, in reviewing Land Commission appeals, uses the following standard of review) it considers whether the 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. Nena v. Heirs of Melander, 10 FSM Intrm. 362, 364 (Kos. S. Ct. Tr. 2001); Anton v. Heirs of Shrew, 10 FSM Intrm. 162, 164 (Kos. S. Ct. Tr. 2001); Nena v. Heirs of Melander, 9 FSM Intrm. 523, 524-25 (Kos. S. Ct. Tr. 2000); Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 395, 398 (Kos. S. Ct. Tr. 1988). Under this standard, that court cannot substitute its judgment for the Land Commissionís well-founded findings, but questions of law are reserved to it. Heirs of Mongkeya v. Heirs of Mackwelung, 8 FSM Intrm. 31, 35 (Kos. S. Ct. Tr. 1997). The Kosrae State Courtís standard of review of Land Commission proceedings appears proper to us, and the parties have not challenged it.
Our standard of review of the Kosrae State Courtís judicial review is whether that court abused its discretion) whether it failed to properly apply its standard of review to this case. We review issues of law de novo.
a. Ittuís Will
Anton contends that the Kosrae State Court erred in not ruling that Cornelius is collaterally estopped from asserting that Ittuís will, from which Antonís claim to the land stems, is invalid and that the lower court (and the Land Commission) erred in not following the willís bequests as the will was judicially recognized as valid in other court cases.
Anton misses the point. Even if a will is valid and judicially recognized as such, this does not automatically make every bequest in that will valid. For a bequest to be valid, the testator must, at the time of his death, actually own the property being bequeathed. A person can only transfer such title to land as he validly owns. Muritok v. William, 8 FSM Intrm. 574, 576 (Chk. S. Ct. Tr. 1998).
Corneliusís predecessor in interest, Mirah, undisputedly owned the land in question. Anton claims that his predecessor in interest, Ittu, "took the land back" from Mirah. Anton had his opportunity to, and did, present his claim to the Land Commission. The Land Commission considered Antonís argument and found insufficient evidence to conclude that Ittu actually acquired ownership of
[12 FSM Intrm. 288]
the land from Corneliusís predecessor in interest, Mirah. The lower court concluded that the Land Commission "reasonably assessed the evidence presented" and that its "findings were not clearly erroneous." Memorandum of Decision at 2 (Mar. 19, 2001). The lower court did not abuse its discretion in reaching this conclusion. Once it had been determined that Ittu did not own the land, any further consideration of his will was pointless.
b. Statute of Limitations
Anton contends that the lower court erred by failing to address his statute of limitations argument) his claim that he and his immediate predecessor in title had owned the land since 1961 when Corneliusís predecessor had lost ownership of the land and that therefore Corneliusís 1991 claim was barred by the twenty-year statute of limitations and that Anton also would prevail under the doctrine of adverse possession.
A close reading of the lower court decision reveals that, although the court never used either term, it did address the point. The lower court stated that it had "reviewed the record and f[ou]nd that there was evidence presented at the hearing which supported [Cornelius]ís claim that his father, Luther Cornelius, had been using, cultivating and taking care of th[e] parcel of land from 1932 to 1991." Memorandum of Decision at 3 (Mar. 19, 2001). The court concluded that the "Land Commission reasonably assessed the evidence presented with respect to Luther Corneliusí use, cultivation and care of parcel 066-M-03 from 1932 to 1991." Id. It held that the "Land Commissionís findings are not clearly erroneous." Id.
This addresses the adverse possession (and the statute of limitations) issue. Someone (such as Anton) claiming land by adverse possession must prove that his possession was open, notorious, hostile, continuous, and exclusive for the required statutory (twenty-year) time limit. See, e.g., Iriarte v. Etscheit, 8 FSM Intrm. 231, 239 (App. 1998). Failure to prove any one of these elements causes the whole claim to fail. The lower courtís conclusion concerning Luther Corneliusís continuous use of the land can only mean that Anton, at a minimum, failed to show that his claimed possession was "exclusive" for any twenty-year period. Antonís failure to prove that element is enough so that the lower court did not need to further discuss adverse possession. Antonís adverse possession claim had failed at that point. This contention therefore has no merit.
Since Anton cannot prevail on any of the grounds he has raised in this appeal, we therefore conclude that the Kosrae State Court decision must be affirmed.
C. Relief Requested
Although we have determined that Anton is not entitled to any relief here, we feel compelled to comment on the nature and extent of the relief he requested. Anton asked that the willís bequests be followed; all contrary state court decisions be reversed; and that he (and unnamed others) be awarded title not only to the land in this case but also to the land in all other cases where the Kosrae State Court has not followed Ittuís will. He claims the "only legal relief" we could grant would be to "nullify all certificates of title to all persons who are not heirs of legatees pursuant to the judicially recognized Will of Ittu." Appellantís Br. at 5.
This is a far-reaching request. No court could grant this relief. Anton would have us reverse long-settled, final cases not now before this court, with parties not now before us, and award others title to land for which certificates of title have been issued. Courts must attach a presumption of correctness to certificates of title. Sigrah v. Kosrae State Land Commín, 9 FSM Intrm. 89, 93 (Kos. S. Ct. Tr. 1999); Marcus v. Truk Trading Corp., 11 FSM Intrm. 152, 158 (Chk. 2002); Carlos Etscheit
[12 FSM Intrm. 289]
Soap Co. v. Gilmete , 11 FSM Intrm. 94, 101 (Pon. 2002); Etscheit v. Nahnken of Nett, 7 FSM Intrm. 390, 394 (Pon. 1996); Stephen v. Chuuk, 11 FSM Intrm. 36, 41 (Chk. S. Ct. Tr. 2002). Ironically, while complaining that his due process rights were violated, Anton would have us void certificates of title in a way that would violate every notion of due process of law. Even if Anton had prevailed on this appeal, no such relief would, or could, have been granted.
Anton has failed to show that his due process rights were violated. The Kosrae State Court did not abuse its discretion in denying his motion for a trial de novo. His contentions of error in the Kosrae State Court decision are without merit. That decision is accordingly affirmed.
* * * *
1. The statute reads: "The standards of conduct for justices consist of: (1) the provisions of the Code of Judicial Conduct of the American Bar Association in effect on the effective date of the Code, except to the extent made stricter by rule . . . ." Kos. S.C. ß 6.1201. But, even if it had not been so stated in the statute, the result would be the same. Under general rules of statutory construction, when a statute adopts a provision by reference, it adopts that provision as it was at the time of adoption and any later changes to the referred provision will have no effect on the statute unless the statute specifically so provides or strongly implies. C. Dallas Sands, Sutherland Statutory Construction ß 51.08 (rev. 4th ed. 1984). Cf. In re Failure of Justice to Resign, 7 FSM Intrm. 105, 108 (Chk. S. Ct. App. 1994) (Chk. S.L. No. 190-08, ß 25 requiring adherence to ABA Code of Judicial Conduct adopted by reference the ABA Codeís 1990 version because when the Chuuk statute was passed on September 17, 1990, the ABA had already adopted the 1990 revised version). A statutory provision adopted by reference thus cannot be altered except by further action of the adopting legislature. That is because once the legislature has adopted a provision by reference, it makes that referenced provision its own law just as if it had entirely enacted the provision itself. See In re Heath, 144 U.S. 93, 94-95, 12 S. Ct. 615, 616, 36 L. Ed. 358, 359 (1891). "No other rule would furnish any certainty as to what was the law." Id.
2. See supra note 1.