KOSRAE STATE COURT TRIAL DIVISION
Cite as Heirs of Wakap v. Heirs of Obet, 13 FSM Intrm. 418 (Kos. S. Ct. Tr. 2005).

[13 FSM Intrm. 418]

HEIRS OF JESSE WAKAP,

Appellants,

vs.

HEIRS OF PALIKKUN OBET,

Appellees.

CIVIL ACTION NO. 64-03

MEMORANDUM OF DECISION; JUDGMENT; ORDER OF REMAND

Yosiwo P. George

Chief Justice

Hearing: July 14, 2005

Decided: September 19, 2005

APPEARANCES:

For the Appellants:   Albert T. Welly

                                       Kosrae State Legislature

                                       P.O. Box 187

                                       Tofol, Kosrae   FM   96944

For the Appellees:   Snyder H. Simon

                                      P.O. Box 1017

                                      Tofol, Kosrae   FM   96944

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HEADNOTES

Administrative Law ) Judicial Review

     The Kosrae State Court, in reviewing Land Commission appeals, 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. Under this standard, the court cannot substitute its judgment for the Land Commissionís well-founded findings, but questions of law are reserved to it. Heirs of Wakap v. Heirs of Obet, 13 FSM Intrm. 418, 419-20 (Kos. S. Ct. Tr. 2005).

[13 FSM Intrm. 419]

Administrative Law ) Judicial Review

     Whether the Land Commission properly considered certain evidence is an issue that the Kosrae State Court may properly consider under its standard of review, and if the appellant should prevail, it can order a remand. Heirs of Wakap v. Heirs of Obet, 13 FSM Intrm. 418, 420 (Kos. S. Ct. Tr. 2005).

Property ) Land Commission

     When a partial transcriptís inclusion in the record for a parcel infers the Land Commissionís reliance upon that transcript in making its Determination of Ownership for that parcel and when the partial transcript contains evidence that was not properly before the Land Commission because the appellants were not provided statutory notice of that hearing, and were not provided an opportunity to participate in the hearing and cross-examine a witness on his testimony regarding the parcel, the Land Commission did not conduct a fair proceeding because it did not comply with statutory notice requirements and because it considered evidence not properly before the Commission. Heirs of Wakap v. Heirs of Obet, 13 FSM Intrm. 418, 420 (Kos. S. Ct. Tr. 2005).

Constitutional Law ) Due Process ) Notice and Hearing

     It is a violation of due process for the Land Commission to hold a hearing and adjudicate ownership of a parcel of land without giving notice to a party with a demonstrated interest in that land. Heirs of Wakap v. Heirs of Obet, 13 FSM Intrm. 418, 420 (Kos. S. Ct. Tr. 2005).

Administrative Law ) Judicial Review; Constitutional Law ) Due Process ) Notice and Hearing

     When the Land Commission has not followed statutory notice 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 remand to Kosrae Land Court for further proceedings. Heirs of Wakap v. Heirs of Obet, 13 FSM Intrm. 418, 420 (Kos. S. Ct. Tr. 2005).

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COURTíS OPINION

YOSIWO P. GEORGE, Chief Justice:

      The hearing on briefs was held on July 14, 2005. Albert Welly appeared for the Plaintiffs. Snyder Simon appeared for the Appellees. After hearing from the parties, I took the matter under advisement. This Memorandum of Decision and Order sets forth my findings and reasoning.

     Appellants appeal the Determination of Ownership entered by the Kosrae State Land Commission on parcel no. 048-U-06, land called Tenouf, on October 7, 1996. The Determination of Ownership was served upon the Appellants on April 7, 2003. Appellants present several arguments on appeal and claim both procedural and evidentiary errors by the Kosrae State Land Commission. After hearing the arguments presented by the parties, consideration of the Land Commission record and applicable law, I conclude that the Land Commission proceedings violated statutory requirements and the due process rights of the Appellants, and therefore the Determination of Ownership for parcel no. 048-U-06 must be set aside.

I.  Memorandum of Decision.

     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

[13 FSM Intrm. 420]

assessed the evidence presented. Under this standard, this Court cannot substitute its judgment for the Land Commissionís well-founded findings, but questions of law are reserved to it. Anton v. Cornelius, 12 FSM Intrm. 280, 287 (App. 2003). Whether the Land Commission did or did not properly consider certain evidence is an issue that the Kosrae State Court may properly consider under its standard of review, and if the appellant should prevail, it can order a remand. Id.

     I have carefully reviewed the Land Commission record of the proceedings held for the subject parcel, which took place in 1995. The applicable procedural requirements for Land Commission proceedings are set forth in former Kosrae State Code, Title 11, Chapter 6 (repealed).

     On June 9, 1994, the preliminary inquiry was held for parcel 048-U-06. A formal hearing was held on April 11, 1995. Appellants received notice of and participated in the formal hearing held on April 11, 1995. The Land Commission record further contains a partial transcript from another formal hearing held on April 17, 1995. This transcript recites the testimony presented by Elanzo P. Obet, one the Appellees and heir of Palikkun Obet.

     Appellants argued that they did not receive notice of the formal hearing held on April 17, 1995, and did not have an opportunity to appear and participate in that hearing. Detailed investigation of the partial transcript dated April 17, 1995 reveals that the formal hearing held on April 17, 1995 was not held for parcel 048-U-06. The record indicates that the April 17, 1995 hearing was held for a different parcel, 048-U-02, for land called Yotlap. The record does not contain any notice to the Appellants for the April 17, 1995 formal hearing.

      It appears that the partial transcript for the April 17, 1995 hearing was made part of the record for parcel 048-U-06 because of the witnessí reference to parcel 048-U-06. However, there is no record of notice to the Appellants for the April 17, 1995 hearing, and no record of the Appellantís opportunity to cross-examine Elanja P. Obet on his testimony at the April 17, 1995 hearing relating to parcel 048-U-06.

      The inclusion of the partial transcript for the April 17, 1995 hearing in the record for parcel 048-U-06 infers the reliance of the Land Commission upon that transcript in making its Determination of Ownership for parcel 048-U-06. The partial transcript of Elanjo P. Obetís testimony at the April 17, 1995 hearing contains evidence that was not properly before the Land Commission, because the Appellants were not provided statutory notice of the April 17, 1995 hearing, and were not provided an opportunity to participate in the hearing and cross-examine witness Elanja P. Obet on his testimony regarding parcel 048-U-06. Based upon these facts, the Land Commission did not conduct a fair proceeding because it did not comply with statutory notice requirements and because it considered evidence not properly before the Commission. Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 395 (Kos. S. Ct. Tr. 1988). See former Kos. S.C. ß 11.609(1) (requiring notice upon claimants).

     It is a violation of due process for the Land Commission to hold a hearing and adjudicate ownership of a parcel of land without giving notice to a party with a demonstrated interest in that land. George v. Nena, 12 FSM Intrm. 310, 316 (App. 2004). Here, the Appellants were not given notice of the April 17, 1995 hearing, at which Appelleesí witness provided testimony regarding parcel 048-U-06, which was then made part of the record of the Land Commissionís proceedings and its determination of ownership.

      When the Land Commission has not followed statutory notice 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).

[13 FSM Intrm. 421]

Accordingly the Determination of Ownership entered for parcel 048-U-06 must be set aside as void.

II.  Judgment.

     The Determination of Ownership for parcel 048-U-06 issued on October 7, 1996, is vacated and set aside as void. The matter is remanded to the Kosrae Land Court for further proceedings.

III.  Order of Remand to Kosrae Land Court.

     This matter is now remanded to Kosrae Land Court for further proceedings on parcel 028-U-06. Kosrae Land Court shall hold hearings and issue written findings and a decision on parcel 028-U-06, consistent with the statutory and procedural requirements. The Kosrae Land Court shall issue the decision on parcel 028-U-06, to reflect the ownership of the subject parcel. 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 their witnesses.

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.

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