This matter was initiated by a petition for declaratory and injunctive relief. On December 12, 2022, an evidentiary hearing was held in this matter. Attorney Salomon Saimon, Esq. appeared on behalf of the Petitioner, Erick Paul. FSM Assistant Attorney General Quintina Letawerpiy, Esq. appeared on behalf of Respondent, Ausen Lambert, Election Director, Government of the Federated States of Micronesia.¹ Real Party in Interest, Esmond B. Moses ("Mr. Moses"), appeared pro se. The evidentiary hearing concerned Petitioner's motion for preliminary injunction, which Petitioner requested to be consolidated with a trial on the merits pursuant to FSM Rule of Civil Procedure 65(a)(2).² Said request is granted.

I. INTRODUCTION

After some discussion on issues that may be necessary for briefing, the Court heard testimony from Mr. Moses, Acting Chief of Immigration and Passport Services Mr. Apiner Hadley, and Assistant Director of the FSM National Election Office Ms. Esmeralda Panuelo. On December 16, 2022, Petitioner, Respondent, and the Real Party in Interest submitted written briefs.³ Based upon their testimony, the exhibits and evidence admitted and briefing by the parties, including supplemental briefs filed on December 19 and 20, 2022,⁴ the Court denies Petitioner's requested relief. The following are my findings and conclusions:

II. ISSUES

The issue before this Court is whether Mr. Moses, a candidate for the FSM Congress, Election District No. 3, is an FSM citizen, or whether he lost his FSM citizenship (i.e., was expatriated) by failing to register his intent to retain such citizenship and to renounce his U.S. Citizenship before his 21st birthday. FSM Const. art. III, § 3. Petitioner contends Mr. Moses failed to do so and is therefore not an FSM citizen. He seeks from this Court a permanent injunction prohibiting the Election Director from placing Mr. Moses's name on the ballot.

III. PARTIES' CONTENTIONS

A. Petitioner

Petitioner contends that the requirements of Article III, section 3 are self-executing, that Mr. Moses failed to comply with the requirements of Article III, section 3 to retain FSM citizenship, that his registration of intent was not properly done, as it was not done in writing and it was made to the Attorney General, whose authority Petitioner disputes, and that Mr. Moses failed to renounce directly to the US in conformity with US law, specifically 8 U.S.C. § 1481(a)(5). The rationale for asserting that requirement is that renunciation would not be effective if not done according to the requirements of US law, and surely the framers of the FSM Constitution would have intended that renunciation be carried out in an effective manner.

B. Respondent's Contentions

Respondent contends that since the FSM process as of 1995 was not explicit in the Constitution or statute, it may be up to the Court to define.

C. Real Party in Interests' Contentions

Mr. Moses contends that the registration of intent and renunciation must be done according to FSM law. Mr. Moses and Petitioner concur that the Journal of the Micronesian Constitutional Convention of 1975 does not shed much light on those requirements. Further there is nothing in law or regulation prescribing the form or manner of registration and renunciation or to whom renunciation is to be made. He points to the dictionary definition of renunciation as evidence of its plain meaning. He contends that he properly registered his intent with the Attorney General, who was designated by Executive Order No. 1 as the person who is responsible for "enforcing all immigration laws and regulations."

Further, as to the effectiveness of renunciation made to an FSM official, Mr. Moses points to 8 U.S.C. § 1481(a)(2), which provides for a loss of U.S. citizenship for "(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years."

Mr. Moses further contends as an alternative reason why he cannot be expatriated that the requirements under Article III, section 3 only apply to persons who are citizens under Article III, section 2 (citizen as a result of parentage); Mr. Moses contends that he is a citizen by virtue of Article III, section 1 (citizen of the Trust Territory).

IV. FACTS

Mr. Moses has been certified by the FSM Election Office as one of the candidates for Pohnpei Election District No. 3 in the upcoming March 2023 General Election. Mr. Moses was born in Guam on April 22, 1974 to Resio Samuel Moses, a Pohnpeian, and Susan Rice Moses, an American residing in Pohnpei. Pet.'s Ex. 1.

As a student, at the age of 20, Mr. Moses traveled to Pohnpei for the purpose of registering his intent to remain an FSM citizen and to renounce his U.S. citizenship, and, upon advice from his father, Resio Moses—Secretary of External Affairs at that time—he visited the FSM Attorney General's Office in Palikir to do so. His father advised him of the constitutional provision requiring such. According to his testimony at hearing, Mr. Moses registered his intent to remain an FSM citizen and made an oral renunciation to an FSM official. He did that when, at age 20, he met with then Attorney General Camillo Noket.

Mr. Moses did not make a renunciation to the United States Department of State and did not know such was required under US law. See Pet.'s Ex. 4.

Attorney General Camillo Noket administered an oath to him, which was done orally⁵ only; in the oath, by the words spoken, he registered his intent to remain an FSM citizen and renounced any other citizenship of a foreign country.⁶

On January 6, 1995, a week or more after the oath, Mr. Moses was issued a Certificate of Citizenship signed by former Attorney General Camillo Noket confirming that he, "Esmond Burdette Moses (D.O.B. April 22, 1974) of the State of Pohnpei is a citizen of the Federated States of Micronesia, with all of the rights and privileges pertaining thereto, in accordance with Section 2 of Article III of the Constitution of the Federated States of Micronesia." Pet.'s Ex. 3.

Since receiving the Certificate of Citizenship, Mr. Moses has used it in running for office, first as a candidate for the 2000 or 2001 Constitutional Convention. On the same day that he received his Certificate of Citizenship, Mr. Moses went to the immigration office, cancelled his existing, valid passport, applied for a new passport, and was issued one the same day. He did this to prove his intent. Mr. Moses previously traveled on a US passport, but the last time he did so was in elementary school.⁷

Mr. Moses has renewed his FSM passport the following times since his 21st birthday: July 19, 1996 (diplomatic), November 12, 1999 (ten-year passport (regular), January 7, 2010 (regular), March 13, 2015 (regular), September 28, 2015 (diplomatic); February 17, 2016 (diplomatic); and September 3, 2018 (regular). See Pet.'s Exs. 2 and 5.

On the issue of confirming Mr. Moses's citizenship, the Election Director's office relied on Mr. Moses's Certificate of Citizenship, the fact that he has been a Congress member and a registered voter, and has held an FSM passport.

V. LEGAL AUTHORITY

Article III, section 2 of the FSM Constitution states that "[a] person born of parents one or both of whom are citizens of the Federated States of Micronesia is a citizen and national of the Federated States by birth."

Article III, section 3 states that "[a] citizen of the Federated States of Micronesia who is recognized as a citizen of another nation shall, within 3 years of his 18th birthday, or within 3 years of the effective date of this Constitution, whichever is later, register his intent to remain a citizen of the Federated States and renounce his citizenship of another nation. If he fails to comply with this Section, he becomes a national of the Federated States of Micronesia."

Article III, section 3 has been previously found by the trial division of this court to be self-executing, in that it can be given effect without the aid of legislation and there is nothing to indicate that legislation is intended to make it operative. Hartmann v. Department of Justice, 21 FSM R. 468, 476-77 (Chk. 2018) (court rejects challenge Article III, section 3 failed to give Hartmann and others similarly situated "notice and opportunity to be heard before losing their citizenship.")

Hartmann states further that "Article III, section 3 of the FSM Constitution prescribes a clear rule which is capable of enforcement without the need for legislation. It clearly provides that a citizen of the FSM who is also a citizen of another nation shall, within three years of his eighteenth birthday, shall (1) register his intent to remain a citizen of the Federated States of Micronesia and (2) renounce his citizenship of another nation. Under the plain language of the Constitution, failure to comply with the above requirements means that person automatically, by operation of constitutional law, becomes a national of the Federated States of Micronesia." Id. at 476.

7 F.S.M.C. 202(2) states in pertinent part that "the following are citizens of the Federated States of Micronesia: . . . (b) a person born, at any time, of parents one or both of whom are citizens of the Federated States of Micronesia."

7 F.S.M.C. 203, as amended by Public Law No. 19-91, states that

[a] citizen of the Federated States of Micronesia who is recognized as a citizen of another nation, shall, within three years of his eighteenth birthday, or within three years of the effective date of the Constitution, whichever is later, register his intent to remain a citizen of the Federated States of Micronesia with the President or his designee in a manner and form prescribed by law or regulation and renounce his citizenship of another nation. If he fails to comply with this section, he comes a national of the Federated States of Micronesia. A citizen who holds an FSM passport that has been renewed twice in a row is entitled to a rebuttable presumption that he has renounced the citizenship of another nation and that he is solely an FSM citizen.

(amendment in italics).

Section 1 of FSM Public Law No. 19-91 states the purpose of the amendment to be as follows:

The Congress recognizes and supports the prohibition on dual citizenship in the FSM. Nevertheless the Congress finds that it is often burdensome for citizens to show evidence that they have relinquished the foreign citizenship. This becomes acute in the case of FSM passport renewal where at each renewal the citizen is once again asked to present evidence of renunciation of foreign citizenship. This bill will create a rebuttable presumption that citizens whose FSM passport has been renewed twice shall be considered to have relinquished the foreign citizenship and are solely FSM citizens. The presumption is subject to rebuttal by the Government.⁸

FSM Evidence Rule 301 provides that

[i]n all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.

Subsection (2) of 7 F.S.M.C. 206 provides that "[w]henever the loss of Federated States of Micronesian citizenship is put in issue in any action or proceeding, the person or party claiming that such loss occurred must establish such claim by a preponderance of the evidence."

There have been no regulations governing either the registration of intent to remain a citizen or the denunciation of other citizenships under Article III, Section 3 of the FSM Constitution.

Public Law No. 15-28, enacted in 2008, allows naturalization as a citizen of the Federated States of Micronesia but, among other things, makes it a condition therefor that the applicant submit "positive and verifiable documentary evidence of said renunciations, and taken an oath of allegiance in a manner and form prescribed by law or regulation."

VI. LEGAL ANALYSIS

A. Applicability of Article III, section 3

Mr. Moses' contends that because his FSM citizenship was based on his Trust Territory citizenship (Article III, section 1), he was exempt from the Article III, section 3 provision against dual citizenship. I need not address the contention that persons who were conferred citizenship under Article III, section 1 are exempt from the dual citizenship prohibition in Article III, section 3, as there is insufficient evidence on the record that Mr. Moses was a Trust Territory citizen.

Mr. Moses was born in 1974, during the Trust Territory period in Guam, and only one of his two parents was a Trust Territory citizen. The applicable law on Trust Territory citizenship, 53 TTC 1(2) (1970),⁹ only conferred citizenship on a child born outside the Trust Territory both of whose parents were Trust Territory citizens. Mr. Moses was thus not, according to the record, born a Trust Territory citizen.

Rather, based on the record, the source of Mr. Moses's FSM citizenship is Public Law No. 1-75, codified at 7 F.S.M.C. 202(2)(b). That law provides that "FSM citizens" includes persons "born, at any time, of parents one or both of whom are citizens of the Federated States of Micronesia" (italics added). Public Law No. 1-75 tracks the language of Article III, section 2, with the important addition of the phrase "at any time." The inclusion of that language reflects an intent of Congress to retroactively apply Article III, section 2 to persons born of a parent who subsequently became an FSM citizen by operation of Article III, section 1, pursuant to its authority under Article III, section 6 ("[t]his Article may be applied retroactively."). Mr. Moses is thus an FSM citizen by virtue of his father's citizenship, pursuant to Article III, section 2.

This Court therefore rejects Mr. Moses' argument that he is exempt from Article III, section 3.

B. Mr. Moses' Compliance with Requirements for Retention of FSM Citizenship

It is undisputed that Mr. Moses did not sign a form or submit a written oath registering his intent to remain an FSM citizen or renouncing to the U.S. Department of State his U.S. Citizenship. Were it a requirement of the law as of 1995 that Mr. Moses do those things, his failure to do so would have resulted in his expatriation, i.e., loss of citizenship, on his 21st birthday, and would thus disqualify him from being on the ballot for the March 7, 2023 election for member of Congress from Election District No. 3.

This Court notes, however, that in 1994-95, when Mr. Moses sought to maintain his citizenship, neither the Constitution, law nor regulations dictated that compliance with the Article III, section 3 provisions on registration of intent to remain FSM citizens and renunciation of other citizenships be set forth in a written form by the person seeking to remain a citizen. In other words, the law did not foreclose the 20 year-old Mr. Moses preserving his FSM citizenship by orally expressing his intent, to an FSM official, to remain an FSM citizen, which he did, resulting in his being issued the Certificate of Citizenship signed by then Attorney General Noket. Nor did the Constitution, law, or regulations specify to whom a renunciation must be made, i.e., whether it could only be made to the other country, as contended by Petitioner, or was sufficient if made to the FSM, as contended by Mr. Moses.¹⁰

As noted above, this Court has found that Article III, section 3 of the FSM Constitution sets forth self-executing requirements for those having dual citizenship who wish to remain FSM citizens on reaching age 21. As such, no interpretive statutes or regulations are required as a condition for the enforcement of those requirements. Hartmann, 21 FSM R. at 476.

The first question that must be answered is whether the Attorney General was the proper authority in 1994-95 to receive Mr. Moses's registration of intent to remain an FSM citizen. Under 7 F.S.M.C. 203, a person registering his intent is required to do so to the President or his designee. Petitioner questions whether the Attorney General was designated. Mr. Moses cites to Executive Order No. 1. Both the 1992 and 1998 versions of Executive Order No. 1 made the Office of the Attorney General (now the Department of Justice) responsible for serving as legal counsel and representative of the Executive Branch.

Legal matters would include representing the President with respect to persons seeking to comply with Article III, section 3. Moreover, there is a presumption of regularity of official actions, which includes a presumption that an official acts within his delegated authority. City of Raleigh v. Riley, 308 S.E.2d 464, 473 (N.C. Ct. App. 1983). "'It is, as a general rule, presumed that a public official properly and regularly discharges his duties, or performs acts required by law, in accordance with the law and the authority conferred on him, and that he will not do any act contrary to his official duty or omit to do anything which such duty may require.' 31 C.J.S. Evidence § 146, at 800-02." Huntley v. Potter, 122 S.E.2d 681, 687 (N.C. 1961).

Petitioner questions whether Attorney General Noket had authority to do what he did. Petitioner does not, however, provide evidence to controvert the presumption of regularity and evidence that the Attorney General had such authority. I find that Mr. Moses properly appeared before Attorney General Noket in his quest for compliance with the Article III, section 3 requirements. Mr. Noket's issuance of a Certification of Citizenship, honored since 1995 by numerous agency actions, is further evidence of the authority reposed in his office.

The second question this Court must answer is what form or manner registration must take. Insofar as no regulations have been developed to specify the form and manner of such registration, this Court finds that the form and manner chosen for the Attorney General in 1994-95 complies with the self-executing requirements set forth in the Constitution and statutes.

The third question the Court must address is whether a renunciation under Article III, section 3 that is made to an FSM official is a valid renunciation. In contrast to the process of registering intent, the process of renunciation as set forth in 7 F.S.M.C. 203 does not state to whom the renunciation must be made. Petitioner relies heavily on a legal provision from the United States, 8 U.S.C. § 1481(a)(5), to show us what renunciation in the FSM should look like. That provision describes as a basis for losing US citizenship "making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State." Petitioner's main argument for requiring renunciation be made according to 8 U.S.C. § 1481(a)(5) is that it would be more effective and thus in accord with the FSM Constitution's presumed intent.

Mr. Moses relies instead on dictionary definitions of the verb "to renounce,"¹¹ which definitions encompass both what Mr. Moses did when he met with Attorney General Noket and what Petitioner contends Mr. Moses was required to do.

This Court generally starts with the plain meaning when interpreting statutes or constitutional provisions. Pohnpei Cmty. Action Agency v. Christian, 10 FSM R. 623, 630 (Pon. 2002) (plain meaning rule applies to Constitution); Rodriguez v. Bank of the FSM, 11 FSM R. 367, 378 (App. 2003) (statutes). Dictionaries can be an acceptable tool for ascertaining the plain meaning of statutes and constitutional provisions. Afituk v. FSM, 2 FSM R. 260, 264-65 (Chk. 1986) (dictionary definition of income); Chuuk v. Jose, 21 FSM R. 566, 569 (Chk. S. Ct. Tr. 2018) (dictionary definitions provide commonly understood meaning of "imprisonment").

For purposes of interpreting Article III, section 3 of the FSM Constitution and 7 F.S.M.C. 203, this Court adopts the plain meaning definition of "renounce" proffered by Mr. Moses. The dictionaries do not specify to whom renunciation must be made, either. Petitioner suggests that, citing to US law, 8 U.S.C. § 1481(a)(5), as an example, renunciation may be made to the country whose citizenship is being renounced. Citing to a different part of the same section of law, 8 U.S.C. § 1481(a)(2), a renunciation may be made to the country whose citizenship is sought to be maintained. See Vance v. Terrazas, 444 U.S. 252, 256, 100 S. Ct. 540, 542-23, 62 L. Ed. 2d 461, 467 (1980) (Terrazas, a dual Mexican-US citizen by birth found to renounce citizenship when, applying for a certificate of Mexican nationality, he signed an oath of allegiance to the Mexican Republic, which oath recited that he had expressly renounced his rights to any other nationality).

Accordingly, in the absence of legislation or regulations choosing one over the other, I find that renouncing a claim to foreign citizenship made to an official, properly designated, of either the FSM or the other country of citizenship, fulfills the renunciation requirement set forth in Article III, section 3 and restated in 7 F.S.M.C. 203.¹²

The final question this Court must address is whether Mr. Moses did in fact register his intent to remain an FSM citizen and renounce U.S. citizenship in conformity with the law as discussed above when he spoke the oath to Attorney General Noket. Not all oaths would be compliant. For example the oath to "uphold, promote, and support the laws and the Constitution as prescribed by statute," set forth in Article XIII, section 7, would not meet the renunciation requirement, as it does not abandon citizenship rights that the person taking the oath may have from other nations.

In his sworn testimony, Mr. Moses did not recite the words of the oath he took in 1994-95 but recalled that in the oath he both registered his intent to remain a citizen and that he renounced citizenship of any other country. I find that his testimony was credible and that it was further supported by the fact that Attorney General Noket thereafter issued the Certificate of Citizenship.

VII. CONCLUSION

Petitioner is claiming that Mr. Moses lost his FSM citizenship over twenty-seven years ago by failing properly to register his intent to remain an FSM citizen and renounce his U.S. citizenship before he turn 21. By law pursuant to 7 F.S.M.C. 206(2), the burden is ultimately on Petitioner to prove his claim by a preponderance of evidence. I find that Petitioner has failed to meet that burden.

Therefore, Petitioner's request for injunctive and declaratory relief is denied. Judgment shall be entered accordingly.

Footnotes:

¹ At the outset of the hearing, counsel for Respondent raised as a preliminary matter an oral motion to withdraw from representation of Election Director Ausen Lambert pursuant to 9 F.S.M.C. 303(9)(a)-(c). The oral motion was denied, without prejudice to counsel making a written motion with an affidavit as discussed in the hearing. The motion was subsequently withdrawn.

² FSM Civil Rule 65(a)(2) reads as follows:

Consolidation of Hearing with Trial on Merits. Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial.

³ While Mr. Moses was unrepresented at the consolidated hearing, Attorney Kathleen M. Burch has since entered an appearance and filed briefs on his behalf.

⁴ Leave to file the briefs is hereby granted.

⁵ Mr. Moses testified to doing so "verbally" (i.e., in words). It is apparent from the context that he meant "orally," i.e., spoken, rather than in writing.

⁶ Petitioner claims in his initial post-hearing brief (page 2, paragraph g) that Mr. Moses admitted not taking the oath in front of Attorney General Noket. That claim is not supported by the testimony at hearing.

⁷ Petitioner claimed that Mr. Moses "changed his mind and admitted that he had used U.S. passports." In response to a request for production of documents requesting that he provide copies of U.S. passports, Mr. Moses said "none exist." When asked at the hearing whether he had used a U.S. Passport, he replied that he had, and, on further inquiry, that he used a passport when in elementary school. The Court find Mr. Moses' statements to be consistent, that he previously used US passports but that copies of his old passports no longer exist.

⁸ Petitioner contends that FSM Public Law No. 19-91 is unconstitutional as an end run around the prohibition against dual citizenship. I find Petitioner's contention fails to overcome the presumption of constitutionality. Mackenzie v. Tuuth, 5 FSM R. 78, 82-83 (Chk. 1991). FSM Public Law No. 19-91 creates a rebuttable presumption that can be overcome in accordance with FSM Rules of Evidence Rule 301. As interpreted in Hartmann v. Department of Justice, 20 FSM R. 619 (Chk. 2018), the presumption in that statute is only triggered by passports issued after the applicant reaches 21 years old, when issuance of the passport would have occurred after a determination that the applicant had shown evidence of having renounced US citizenship. As Petitioner has not met his ultimate burden of proof under 7 F.S.M.C. 206, there is no need to consider the rebuttable presumption in 7 F.S.M.C. 203 in this matter.

⁹ See 7 F.S.M.C. 101(2).

¹⁰ By way of contrast, in 2008, well after Mr. Moses met with Attorney General Noket, Congress enacted a naturalization procedure containing a clause requiring that the applicant, "upon naturalization, shall have renounced previous citizenship and allegiance to any and all foreign powers and rulers, and submitted verifiable documentary evidence of said renunciations, and taken an oath of allegiance in a manner and form prescribed by law or regulation." 7 F.S.M.C. 204. Phrased thus and appearing in a different time and context, it would be problematic to attempt to retroactively construe 7 F.S.M.C. 204 in pari materia with the provision on renunciation in 7 F.S.M.C. 203. F.H. Buffington Co. v. Hanrahan, 622 A.2d 470, 473 (R.I. 1993).

¹¹ For example, "[t]o give up or abandon formally (a right or interest) . . . ." BLACK'S LAW DICTIONARY (11th ed. 2019).

¹² There may be reasons or conveniences to giving notice to either. Petitioner claims renunciation to the US embassy is more effective. On the other hand, see Petitioner's Exhibit "Y," Standing Committee Report No. CC-SCR-04-05, attached to his Supplement, suggesting impediments with complying with 8 U.S.C. § 1481(a)(5): cost and restrictions imposed on those who wish to renounce through the US Embassy. Pet.'s Ex. Y at 3.