KOSRAE STATE COURT TRIAL DIVISION
Cite as Kun v. Heirs of Abraham, 13 FSM Intrm. 558 (Kos. S. Ct. Tr. 2005).

[13 FSM Intrm. 558]

BEAKER T. KUN, for Heirs of TULENSRU JERRY,

Appellant,

vs.

HEIRS OF JUSTUS ABRAHAM,

Appellees.

CIVIL ACTION NO. 60-05

MEMORANDUM OF DECISION; ORDER TO KOSRAE LAND COURT

Aliksa B. Aliksa

Associate Justice

Hearing: October 27, 2005

Decided: December 20, 2005

APPEARANCES:

For the Appellants:   Sasaki L. George, Esq.

                                       Micronesian Legal Services Corporation

                                       P.O. Box 38

                                       Tofol, Kosrae   FM   96944

For the Appellees:   Clanry Likiaksa, trial counselor

                                      P.O. Box 764

                                      Tofol, Kosrae   FM   96944

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HEADNOTES

Appellate Review ) Standard of Review ) Civil Cases

      The Kosrae State Court must review a Kosrae Land Court decision on the record, transcripts and exhibits received at the Land Court hearing. The courtís review must determine whether the Land Court decision was based upon substantial evidence or whether the decision was contrary to law, and if the court finds that the Land Court decision was based upon substantial evidence and was not contrary to law, the Land Court decision must be affirmed. Kun v. Heirs of Abraham, 13 FSM Intrm. 558, 559 (Kos. S. Ct. Tr. 2005).

Constitutional Law ) Due Process ) Notice and Hearing

      That the Kosrae Land Court went beyond the statutory requirements for notice, and provided too many notices to persons who were not entitled to personal notice by law and that this "extra" notice created a dispute, does not result in or cause a violation of the appellantís constitutional due process protections. Kun v. Heirs of Abraham, 13 FSM Intrm. 558, 560-61 (Kos. S. Ct. Tr. 2005).

[13 FSM Intrm. 559]

Civil Procedure ) Notice; Property ) Registered Land

      The notice required by state law is intended to reach all parties, claimants and provide notice to the general public on the schedule of proceedings. The statutory notice required includes notice to the public: posting of the notice in at least three conspicuous places or at least two areas of public access and further notice to the public is required by posting at the municipal building of the municipality where the property is located and through announcements on the Kosrae radio station on several occasions. Notice to parties, claimants, and public is provided by at least two separate postings of the notice in different locations, and notice by radio broadcast. These substantial requirements for notice of land proceedings reflect the Kosrae Land Courtís calculated goal to reach as many claimants, parties and members of the general public as possible. Kun v. Heirs of Abraham, 13 FSM Intrm. 558, 561 (Kos. S. Ct. Tr. 2005).

Courts

      Anyone is entitled to attend the Kosrae Land Court hearings on a parcel, whether or not they were provided personal notice for the hearing. All hearings at the Land Court are open to the public, as a basic cornerstone of the constitutional protections provided by our democratic government. Thus, even if persons had not been provided personal notice of the hearing on the parcel, and had received only public notice provided through posting or broadcast, they were still entitled to attend the hearing, and, if they were claimants they were permitted to present testimony at the hearing. Kun v. Heirs of Abraham, 13 FSM Intrm. 558, 561 (Kos. S. Ct. Tr. 2005).

Courts

      Violation of the statutory deadline to issue a Land Court decision does not affect the decisionís validity. Its late issuance only serves as grounds for the issuing justiceís removal or other discipline. Kun v. Heirs of Abraham, 13 FSM Intrm. 558, 561 (Kos. S. Ct. Tr. 2005).

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COURTíS OPINION

ALIKSA B. ALIKSA, Associate Justice:

      This matter is an appeal from the decision of the Kosrae Land Court, LC 64-03, entered on March 14, 2005, which awarded parcel 079T10 to Appellee Heirs of Justus Abraham. Appellant is the owner of adjacent parcel 079T11. Appellant claims a portion of 079T10.

      Appellant filed his brief on August 31, 2005. Appelleesí brief was filed on September 23, 2005. Appellant filed a reply brief on October 5, 2005. The hearing on briefs was held on October 27, 2005. Sasaki George, MLSC represented both Appellant. Appellees were represented by Clanry Likiaksa. After hearing arguments from the parties, I took the matter under advisement. This Memorandum of Decision sets forth my decision and reasoning.

I.  Standard of Review.

      This Court must review the Kosrae Land Court decision on the record, transcripts and exhibits received at the Land Court hearing. This Courtís review must determine whether the Land Courtís decision was based upon substantial evidence or whether the decision was contrary to law. Kos. S.C. ß 11.614(5)(d). If this Court finds that the Land Courtís decision was based upon substantial evidence and was not contrary to law, the decision of the Kosrae Land Court must be affirmed.

[13 FSM Intrm. 560]

II.  Factual Background.

      The subject land, known as Wiyu, is located in Tafunsak Municipality, Kosrae State. Parcel 079T10 lies adjacent to parcel 079T11. The Appellantís original claim was made to parcel 079T11, in the area of 20,801 square meters, more or less. The Appelleesí original claim was made to parcel 079T10, in the area of 69,241 square meters, more or less. These claims are reflected in a preliminary map for plat no. 051T00, dated 2001.

      The decision of the Kosrae Land Court essentially reduced the size of parcel 079T11 and increased the size of parcel 079T10. Parcel 079T11 was reduced in area by approximately 50%, to 10,661 square meters, more or less. The area of parcel 079T10 awarded through the decision of the Kosrae Land Court increased by gaining a portion of area initially claimed within parcel 079T11.

      A review of the Kosrae State Land Commission and Kosrae Land Court proceedings is essential to track the notices and hearings conducted for parcel 079T10. The land in Wiyu was first designated for registration on December 18, 1989. Parcel 079T10 fell within Lot 235 of the registration area. The late Justus Abraham, father of the Appellants, was noticed for the preliminary inquiry for Wiyu on February 5, 1990. On March 14, 1990, Justus Abraham filed an Application for Registration of Land Parcel, Lot 235. The Preliminary Inquiry on Wiyu was also held on March 14, 1990, where Justus Abraham testified. On April 20, 1990, Justus Abrahamís claim was determined to be well founded and subject to hearing.

      There was an unexplained delay of more than ten years between the time of the preliminary inquiry conducted by the Kosrae State Land Commission and time of the survey and hearing. During this time of delay, Justus Abraham passed away. In January 2001, the Appellants, the Heirs of Justus Abraham and adverse claimant Palikkun Wesley were provided notice of the survey of their claimed land in Wiyu. During this time, the land claimed by Appellants was designated as parcel 079T10.

      Notice of the hearing was given in November 2003 by the Kosrae Land Court to both Appellant and Appellees and to Palikkun Wesley. The hearing was held on February 11, 2004, where three parties appeared and participated in the hearing: Appellant, Appellees and Palikkun Wesley. More than a year later, the Kosrae Land Courtís decision awarding parcel 079T10, with an area of 61,503 square meters, more or less, to Appellees was entered on March 14, 2005. This appeal followed.

III.  Analysis.

      Appellant raises one legal issue in this appeal. Appellantís assignment of error in this matter is that the Kosrae Land Court violated the constitutional protection of due process by inviting the Appellees to the hearing on adjacent parcel 079T11 and thereby creating a dispute which did not previously exist. Appellant argues that during the preliminary inquiry proceedings in 1990, the Appellees did not present a claim to any portion of parcel 079T11, and therefore were not entitled to notice for the hearing on parcel 079T11.

      Appellantís alleged due process violation is based upon the Kosrae Land Courtís notice of hearing provided to the Appellees, to whom the Land Court was not allegedly required to provide personal notice pursuant to Kosrae State Code, Title 11, Chapter 6. Appellantís claimed due process violation is novel and of first impression before this Court: that the Kosrae Land Court went beyond the statutory requirements for notice, and simply stated, provided too many notices, to persons who were not entitled to personal notice by law. Appellantís claim is that this extra and non-required personal notice given by the Kosrae Land Court to Appellees, beyond that notice required by statute, and that this "extra" notice created a dispute, which then resulted in a due process violation for the Appellant.

[13 FSM Intrm. 561]

It is important to note that the Appellant has not cited any legal authority for this novel proposition. This Court, after completing an exhaustive search of Federated States of Micronesia sources of law, was similarly unable to locate any legal authority supporting the Appellantís position that personal notice provided to persons not entitled to personal notice by statute results in a due process violation.

      In analysis of the Appellantís argument, this Court begins with Kosrae State Code, Title 11, Chapter 6, which governs proceedings of the Kosrae Land Court. Kosrae State Code, Section 11.613 provides the statutory requirements for notice of a hearing. The notice required by State Law is intended to reach all parties, claimants and provide notice to the general public on the schedule of proceedings. Pursuant to Kosrae State Code, Section 11.613, the statutory notice required includes notice to the public: posting of the notice in at least three conspicuous places or at least two areas of public access. Further notice to the public is required by posting at the municipal building of the municipality where the property is located. Finally, public notice is provided through announcements on the Kosrae Radio station on several occasions. Notice to parties, claimants, and public is provided by at least two separate postings of the notice in different locations, and notice by radio broadcast. These substantial requirements for notice of land proceedings reflect the Kosrae Land Courtís calculated goal to reach as many claimants, parties and members of the general public as possible.

      Any person may attend a Kosrae Land Court hearing, which are open to the general public. Consequently, Appellees were entitled to attend to the Land Court hearings on the subject parcel, whether or not they were provided personal notice for the hearing. All hearings at the Kosrae Land Court are open to the public, as a basic cornerstone of the constitutional protections provided by our democratic government. See Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S. Ct. 819, 78 L. Ed.2d 629 (1985) (essential right of access to proceedings of the judicial branch have the underlying purpose to protect the free discussion of governmental affairs, pursuant to the constitutional protection of the freedom of expression). Thus, even if the Appellants had not been provided personal notice of the hearing on parcel, and had received only public notice provided through posting or broadcast, they were still entitled to attend the hearing on the adjacent parcel 079T11. Appellant does not argue that Appellees did not have a right to attend the hearing on parcel 079T11.

      The Kosrae Land Court Rules of Procedure govern Kosrae Land Court proceedings. Pursuant to the KLCRP, Rule 8, all claimants are permitted to present testimony at the hearing. Therefore, Appellees, even if they had only received public notice of the hearing on parcel 079T11 through posting or broadcast, and attended the public hearing, would still have been entitled to present their claim at the hearing. Appellant does not argue that Appellees did not have a right to participate in the hearing on parcel 079T11 and present their claim.

      Based upon the above analysis, the record in this matter, arguments of counsel, and applicable law, I conclude that the Kosrae Land Courtís action in providing personal notice to the Appellees for the hearing on parcel 079T11 did not result in or cause a violation of the constitutional due process protections of the Appellant.

      Appellant further argues that the issuance of the Kosrae Land Court decision did not comply with the statutory deadlines imposed by Kosrae State Code, Section 11.612(5). It is undisputed that based upon the record in this matter, the time of issuance of the subject decision exceeded the statutory deadline. However, pursuant to the language of Section 11.612(5) violation of the statutory deadline does not affect the validity of the decision: its late issuance only serves as grounds for removal or other discipline of the issuing Justice. The Appellant is free to take action to request application of Kosrae State Code, Section 11.612(5). I conclude that the late issuance of the Kosrae Land Court decision awarding ownership of parcel 079T10 does not affect the validity of the decision and that the remedy for late issuance is clearly stated in Kosrae State Code, Section 11.612(5).

[13 FSM Intrm. 562]

      After careful review of the record pertaining to Appellantís arguments, I conclude that the decision of the Kosrae Land Court entered on March 14, 2005, awarding ownership of parcel 079T10 in the area of 61,503 square meters, more or less, to the Appellees, Heirs of Justus Abraham was not contrary to law.

IV.  Conclusion and Order to Kosrae Land Court.

      The Appellant has failed to show that the Kosrae Land Court decision on parcel 079T10 was not based upon substantial evidence or was made contrary to law. Accordingly, the decision of the Kosrae Land Court, LC 64-03, entered on March 14, 2005, which awarded ownership of parcel 079T10, in the area of 61,503 square meters, more or less, to the Appellees is hereby affirmed.

      The Kosrae Land Court shall issue the Certificate of Title for parcel 079T10 to Heirs of Justus Abraham sixty days after entry of this Memorandum of Decision, or as soon thereafter as possible.

[13 FSM Intrm. 562]

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