FSM SUPREME COURT TRIAL DIVISION
Cite as Paul v. Lambert 24 FSM R. 40 (App. 2023)
ERICK PAUL,
Appellant,
vs.
AUSEN LAMBERT, Election Director,
Government of the Federated States of Micronesia,
Appellee,
ESMOND B. MOSES,
Real Party in Interest.
APPEAL CASE NO. P8-2022
OPINION
Argued: January 31, 2023
Decided: February 7, 2023
BEFORE:
Hon. Beauleen Carl-Worswick, Associate Justice, FSM Supreme Court
Hon. Larry Wentworth, Associate Justice, FSM Supreme Court
Hon. Cyprian Manmaw, Specially Assigned Justice, FSM Supreme Court*
*Chief Justice, State Court of Yap, Colonia, Yap
APPEARANCES:
For the Appellant:
Salomon M. Saimon, Esq.
P.O. Box 911
Kolonia, Pohnpei FM 96941
For the Appellee:
Leonito Bacalando, Jr., Esq. (brief & argued)
Jeffrey S. Tilfas, Esq. (brief)
Assistant Attorneys General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941
For the Real Party in Interest:
Kathleen M. Burch, Esq.
20 Forrest Place
Atlanta, Georgia 30328
* * * *
Generally, for there to be an effective notice of appeal, it is enough that a document is timely filed under Appellate Rule 4 and conveys the information required by Appellate Rule 3(c). The court will construe Appellate Rule 3's requirements liberally, and even if the papers are technically at variance with the letter of Rule 3 but the filing is the functional equivalent of what the rule requires, the court will nonetheless conclude that the litigant has complied with the rule. Paul v. Lambert, 24 FSM R. 40, 45 (App. 2023).
If a document, filed within the Rule 4 time limits, gives the notice required by Rule 3, it is effective as a notice of appeal. Defects in the wording of the notice of appeal are generally overlooked if the appellant's true intentions can fairly be ascertained, if the courts have not been misled, and if the other parties have suffered no prejudice. Paul v. Lambert, 24 FSM R. 40, 45 (App. 2023).
When the court has not previously construed an aspect of FSM Appellate Procedure Rule 3, which (other than the FSM rule's provision that the appellant serve the notice of appeal instead of the trial court clerk) is very similar to the U.S. federal rule, it may look to U.S. sources for guidance in interpreting the rule. Paul v. Lambert, 24 FSM R. 40, 45 n.1 (App. 2023).
The omission of the trial division docket number (or even the inclusion of a wrong docket number) in a notice of appeal is not fatal since Appellate Rule 3(c) makes no mention of an individual case number being required and just states that a party must designate the judgment, order, or part thereof appealed from. Paul v. Lambert, 24 FSM R. 40, 46 (App. 2023).
When the appellant's notice of appeal clearly states that he is appealing "the findings and judgment issued and entered on December 21, 2022," and all the parties were clearly identified (named) in the case caption, and all the attorneys were listed in the body of the notice with reference to which party they represented, it is apparent which decision in which case was being appealed and the lack of the trial court docket number was therefore meaningless as was the omission of the telephone numbers for the other parties' attorneys since the required certification of service on all other parties was included. Paul v. Lambert, 24 FSM R. 40, 46 (App. 2023).
A heading above a notice of appeal's case caption reading "Appellate Division" instead of "Trial Division" is not even an arguable defect because a party wishing to file an appeal has the option of filing the notice of appeal either with the FSM Supreme Court trial division clerk in the State in which the decision appealed from was rendered or directly with the FSM Supreme Court appellate division clerk. There is nothing objectionable about an appellant choosing to file his notice of appeal with the appellate division clerk and not with the trial division clerk. Paul v. Lambert, 24 FSM R. 40, 46 (App. 2023).
Since Rule 3(c) does not require the notice of appeal to contain any reference to the rule or law under which the appellant is proceeding, there is no possible prejudice to any party from what most likely is a trivial typographical error when the appellant cites Rule 2 instead of Rule 3 in his notice of appeal. Paul v. Lambert, 24 FSM R. 40, 46 (App. 2023).
When a notice of appeal was timely filed and contained the necessary information and gave notice to the court and to the other parties that the appellant intended to appeal a particular decision made on a certain date, the notice of appeal was effective. Paul v. Lambert, 24 FSM R. 40, 46 (App. 2023).
A person who was a Trust Territory citizen and a domiciliary of Ponape District became an FSM citizen on May 10, 1979, through Article III, Section 1 of the Constitution, and a son of that person also became an FSM citizen on May 10, 1979, through Article III, Section 2 which provides that a person born of parents one or both of whom are FSM citizens is an FSM citizen and national by birth because Article III may be applied retroactively, and because 7 F.S.M.C. 202(2)(b) provides that among those who are FSM citizens is a person born, at any time, of parents one or both of whom are FSM citizens. Paul v. Lambert, 24 FSM R. 40, 47 (App. 2023).
The Constitution disfavors dual citizenship because it specifically provides that an FSM citizen who is recognized as a citizen of another nation must, within 3 years of his or her 18th birthday, or within 3 years of the Constitution's effective date, whichever is later, register his or her intent to remain an FSM citizen and renounce the other nation's citizenship and, if he or she fails to do so, he or she becomes an FSM national. Paul v. Lambert, 24 FSM R. 40, 47 (App. 2023).
The Constitution's Article III, Section 3 is self-executing to the extent that it automatically deprives a dual citizen of his or her FSM citizenship if he or she does not take the proper affirmative steps to register his or her intent to remain an FSM citizen and to renounce his or her other citizenship(s). The statute, 7 F.S.M.C. 203, implements Article III, Section 3, to the extent that it provides a method for a dual citizen to prevent the loss of his or her FSM citizenship. Paul v. Lambert, 24 FSM R. 40, 47 (App. 2023).
When a statute requires that a citizen's registration of intent be performed in a manner and form prescribed by law or regulation, the statute's use of the word "form" does not require that an FSM citizen's registration must be written, even though that might be preferable. The word's plain meaning is not so restrictive. Paul v. Lambert, 24 FSM R. 40, 48 & n.4 (App. 2023).
An Executive Order delegating executive power to the Office of the Attorney General and making that office responsible for serving as the Executive Branch's legal counsel and representative and for issuing regular and official passports is a general designation of all the passport-issuing (and therefore determination of citizenship) executive functions to the Office of the Attorney General, and in the absence of any more specific designation or delegation to a different office or person, the FSM Attorney General would be the President's designee under 7 F.S.M.C. 203. Paul v. Lambert, 24 FSM R. 40, 48-49 (App. 2023).
In 1995, an oral oath containing a registration of intent to remain an FSM citizen and a renunciation of foreign citizenship made before the President's designee, the Attorney General, was sufficient for a dual citizen to register his or her intent to retain his or her FSM citizenship. Paul v. Lambert, 24 FSM R. 40, 49 (App. 2023).
When the Attorney General administered an oath to a dual citizen in which the dual citizen recited that he renounced his U.S. citizenship, that renunciation was legally effective because the dual citizen followed a process in the manner and form that was prescribed by the Attorney General, the President's designee, at the time. Paul v. Lambert, 24 FSM R. 40, 49 (App. 2023).
As a general proposition, each nation relies only on its own law to determine who is entitled to its citizenship and nationality, not the laws of other nations. Paul v. Lambert, 24 FSM R. 40, 49 (App. 2023).
International law leaves it to each nation to lay down the rules governing the grant of its own nationality. Paul v. Lambert, 24 FSM R. 40, 49 (App. 2023).
Uniformity in the manner and form of the renunciation of non-FSM citizenship and that it be before the President's designee is desirable. Otherwise, if dual citizens had to rely solely on foreign law, no one, including the FSM passport office, could ever be certain that one's foreign citizenship had been effectively renounced for the purpose of retaining one's FSM citizenship after turning 21. Paul v. Lambert, 24 FSM R. 40, 49 (App. 2023).
The FSM cannot compel a foreign country to comply with the FSM's idea of who that foreign country may claim as its own citizen, but for a nation to impose its nationality on a person against his will, or to insist on a nationality that the individual has renounced, may violate international law. Paul v. Lambert, 24 FSM R. 40, 49 (App. 2023).
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PER CURIAM:
This appeal arises from the trial court's December 21, 2022 decision that rejected Erick Paul's challenge of National Election Director Ausen Lambert's ruling that Esmond B. Moses was an FSM citizen qualified to be a candidate for the FSM Congress from Pohnpei Election District No. 3. We affirm. Our reasons follow.
A. Personal History
Esmond B. Moses was born on Guam on April 22, 1974. His father, Resio Moses, was a citizen of the Trust Territory of the Pacific Islands from Pohnpei (then Ponape), and his mother, Susan Moses, was a United States citizen. When he was five years old, the FSM Constitution came into effect (May 10, 1979). The Constitution created the FSM as a nation and conferred FSM citizenship on those Trust Territory citizens who were domiciled in the Trust Territory districts that ratified the FSM Constitution. In his youth, Esmond Moses used a U.S. passport. He eventually acquired and used an FSM passport.
According to his trial court testimony, Esmond Moses traveled, on an FSM passport, from Hawaii, where he was a college student, to Pohnpei during the winter break of 1994-95 for the express purpose of ensuring that he retained his FSM citizenship after he turned 21. His father had advised him that, under an FSM Constitution provision, he would soon lose his FSM citizenship. After arriving on Pohnpei, he obtained an appointment with the then FSM Attorney General Camillo Noket and took an oral oath administered by the Attorney General that registered his intent to remain an FSM citizen and that renounced his citizenship in any foreign country. No written oaths or renunciations were provided for Moses to sign. Moses did not appear and renounce his U.S. citizenship before any U.S. government official. The Attorney General told Moses that several other people had gone through the same citizenship retention process. A few days later, Esmond Moses received a written Certificate of Citizenship, executed and signed by Attorney General Camillo Noket, dated January 6, 1995. Using this certificate, Moses then canceled his old FSM passport and applied for an new FSM passport, which was duly issued.
Since then Esmond Moses has used only an FSM passport. He was elected to the FSM Constitutional Convention of 2001. He was later elected to Congress in 2015 to represent Pohnpei Election District No. 3. The credentials committee of that Congress questioned whether he was an FSM citizen, and, when satisfied that he was, sat him as a member. He was re-elected in 2017, 2019, and 2021. He is currently Vice-Speaker of Congress and again a candidate for re-election this year, having been certified as a qualified candidate for office.
B. Procedural History
On November 25, 2022, Erick Paul filed his Petition for Declaratory and Injunctive Relief, in which he asked the trial court to declare that Esmond Moses was ineligible to be a Congress candidate because he was a U.S. citizen (and an FSM national, but not an FSM citizen) and that the Election Director Ausen Lambert be enjoined from placing Esmond B. Moses's name on the ballot as a candidate in the March 7, 2023 general election. The trial court consolidated the evidentiary hearing on Paul's preliminary injunction motion with a trial on the merits. That proceeding was held on December 12, 2022. Paul, Lambert, and Moses each submitted a brief on December 16, 2022, and Paul filed supplemental briefs on December 19 and 20, 2022.
The trial court issued its decision on December 21, 2022. Based on the facts it found, as recited above in part I.A., the trial court ruled that Esmond Moses was not born a Trust Territory citizen; that the law and procedure in 1995 did not require that the registration of intent to remain an FSM citizen or the renunciation of foreign citizenship be in writing; that no [FSM] law specified to whom a renunciation must be made but that the FSM Attorney General was a proper official to receive Moses's registration of intent to remain an FSM citizen and his renunciation of foreign citizenship; that Moses complied with the form and manner used at the time; that the renunciation of a foreign nation's citizenship can be made either to an official of that foreign nation or to the proper FSM official; that Moses's renunciation was made to the proper FSM official; and that the oath that Attorney General Noket administered to Moses was effective to both register Moses's intent to remain an FSM citizen and to renounce his U.S. citizenship. Paul v. Lambert, 24 FSM R. 13, 21-22 (Pon. 2022).
Paul promptly filed his notice of appeal on December 23, 2022. Due to the time-sensitive nature of the case, the parties' agreement, and the presiding single justice's order suspending the rules, FSM App. R. 2, this appeal was briefed and came before us on an expedited basis.
Paul contends that the trial court erred:
1) in fact and law when it ruled that Esmond Moses registered his intent to remain an FSM citizen and renounced his U.S. citizenship because Moses's testimony was self-serving and unreliable;
2) when it did not rule that the Certificate of Citizenship signed by Attorney General Noket was solely to affirm that Moses was an FSM citizen in 1995, and not evidence that had renounced his U.S. citizenship and retained his FSM citizenship;
3) when it did not rule unconstitutional Public Law No. 19-91, which created a rebuttable presumption that a citizen who has renewed his FSM passport twice in a row has renounced the citizenship of another nation and is solely an FSM citizen;
4) by relying on the Public Law No. 19-91 presumption to confirm Moses's citizenship because that law was enacted in 2016 and thus cannot apply to Moses's situation;
5) by relying on Vance v. Terrazas, 444 U.S. 252, 100 S. Ct. 540, 62 L. Ed. 2d 461(1980) as an example to support its decision when the dual citizen in that case took much more prominent steps than Moses did to renounce his U.S. citizenship; and
6) by holding that Attorney General Noket was the President's designee for the purpose of receiving registrations of intent to remain an FSM citizen and for receiving renunciations of foreign citizenship.
Lambert contends that, as a threshold matter, the notice of appeal was so defective that we lack jurisdiction over this appeal and must dismiss it. Lambert contends that Paul's notice of appeal was defective 1) because it did not show the case appealed from (that is, the trial court's case docket number was not mentioned); 2) because the heading on the notice of appeal reads "Appellate Division" not "Trial Division"; and 3) because the notice of appeal cites Appellate Rule 2 (suspension of rules) rather than Appellate Rule 3 (how appeal taken). We reject this contention.
A. Designation of Decision Appealed from
The applicable rule provides that:
The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; shall name the Federated States of Micronesia Supreme Court appellate division as the court to which the appeal is taken, shall provide the names of all parties in the proceeding appealed from, as well as the names, addresses and telephone numbers of the legal counsel in that proceeding, and shall include certification, as specified in Rule 25(d), of service upon all other parties. . . . An appeal shall not be dismissed for informality of form or title of the notice of appeal.
FSM App. R. 3(c). "Generally, for there to be an effective notice of appeal, it is enough that a document is timely filed under Rule 4 and conveys the information required by Rule 3(c)." FSM v. Pacific Int'l, Inc., 23 FSM R. 452, 455 (App. 2021). We will construe Appellate Rule 3's requirements liberally, and even if the papers are technically at variance with the letter of Rule 3, but the litigant's filing is the functional equivalent of what the rule requires, we will nonetheless conclude that the litigant has complied with the rule. Id.
Thus, if a document, filed within the Rule 4 time limits, gives the notice required by Rule 3, it is effective as a notice of appeal. Pacific Int'l, Inc., 23 FSM R. at 455. "Defects in the wording of the notice of appeal are generally overlooked if the true intentions of the appellant can fairly be ascertained, if the courts have not been misled, and if the other parties have suffered no prejudice." 16A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, EDWARD H. COOPER & CATHERINE T. STRUVE, FEDERAL PRACTICE AND PROCEDURE § 3949.4, at 143 (4th ed. 2008).1
The omission of the trial division docket number (or even the inclusion of a wrong docket number) in a notice of appeal is not fatal. See Scherer v. Kelley, 584 F.2d 170, 174-75 (7th Cir. 1978) (using wrong docket number in notice of appeal was not fatal even though it was from a related case when it was apparent which decision was being appealed). Appellate Rule 3(c) makes no mention of an individual case number being required and just "states that a party must designate the judgment, order or part thereof appealed from." Id. at 174 ("The obvious reason" for the rule's wording "is that its purpose is to ensure that each party is aware of the judgment in dispute rather than a number which when separated from the judgment to which it refers, is meaningless.").
Paul's notice of appeal clearly states that he is appealing "the findings and judgment issued and entered on December 21, 2022." All the parties were clearly identified (named) in the case caption, and all the attorneys were listed in the body of the notice with reference to which party they represented. It was therefore apparent which decision in which case was being appealed. The lack of the trial court docket number was therefore meaningless.
The telephone numbers for the appellee's attorney and the real party in interest's attorney were, however, omitted. But those attorneys did not claim that their clients were prejudiced by that omission. (Presumably they knew their own phone numbers.) And the required certification of service on all other parties was included.
B. Notice of Appeal Heading
A heading above the case caption reading "Appellate Division" instead of "Trial Division" is not even an arguable defect. A party wishing to file an appeal has the option of filing the notice of appeal "with the clerk of the FSM Supreme Court trial division in the State in which the decision appealed from was made or . . . directly with the clerk of the FSM Supreme Court appellate division." FSM App. R. 3(a). Since the appellate division clerk is on Pohnpei, FSM App. R. 1(c), and in the same office as the trial division clerks, there was nothing objectionable about Paul choosing to file his notice of appeal with the appellate division clerk and not with the trial division clerk.
C. Reference to the Wrong Rule
Nor could Paul's reference to Appellate Rule 2 instead of Rule 3 affect the notice of appeal's effectiveness. Rule 3(c) does not require the notice of appeal to contain any reference to the rule or law under which the appellant is proceeding. Lambert acknowledged during oral argument that he was not prejudiced by the reference to Rule 2. Nor can we see any possible prejudice to any party from what most likely is a trivial typographical error.
D. Notice of Appeal Was Effective
Lambert's grounds to dismiss this appeal for a defective notice of appeal are thus baseless. The notice of appeal was timely filed. It contained the necessary information and gave notice to the court and to the other parties that Paul intended to appeal the trial court's December 21, 2022 decision denying his challenge to Moses's qualifications to be included as a candidate on the Congressional election ballot.
Paul's notice of appeal was effective. We therefore turn to the appeal's merits.
A. Esmond Moses's FSM Citizenship
Resio Moses, Esmond Moses's father, was a Trust Territory citizen and a domiciliary of Pohnpei (then Ponape) District. Resio Moses became an FSM citizen on May 10, 1979, through Article III, Section 1 of the Constitution, which provides that "[a] person who is a citizen of the Trust Territory immediately prior to the effective date of this Constitution and a domiciliary of a District ratifying this Constitution is a citizen and national of the Federated States of Micronesia."
Esmond B. Moses was Resio Moses's son. He therefore also became an FSM citizen on May 10, 1979. This was through Article III, Section 2 which provides 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." Section 2 plainly does not restrict its application to only those children born after the Constitution's effective date of May 10, 1979.
If there were any doubt that it did, that doubt would be dispelled by Section 6 of Article III, which provides "[t]his Article may be applied retroactively," and by 7 F.S.M.C. 202(2)(b), which provides that among those who are FSM citizens is "a person born, at any time, of parents one or both of whom are citizens of the Federated States of Micronesia." Section 202(2)(b), which was first enacted in 1979 in Public Law No. 1-75, § 2(2)(b), is a codification of Article III, Section 2, with the "at any time" a codification of Section 6's application to Section 2.
Thus, we reject Paul's contention that the "at any time" clause in Section 202(2)(b) is an unconstitutional addition to the statute. Also, Section 202(2)(b) is obviously not, although Paul contends otherwise, a designation by Congress of who might be naturalized under its power, FSM Const. art. IX, § 2(c), to regulate naturalization. It is thus irrelevant whether Esmond Moses had ever been a Trust Territory citizen. We take no position on that point.
Since Esmond Moses was born in a United States territory (Guam) and had a U.S. citizen mother, he was also a U.S. citizen. That made him a dual citizen, FSM and U.S. The Constitution disfavors dual citizenship. It specifically provides 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.
FSM Const. art. III, § 3. This provision applied to Esmond Moses. If he wanted to retain his FSM citizenship, he had to register his intent to remain an FSM citizen and renounce his U.S. citizenship.
B. Esmond Moses's Compliance with Article III, Section 3 and 7 F.S.M.C. 203
1. Paul's Contentions
Paul contends, alternatively, that either Esmond Moses never registered his intent to remain an FSM citizen and never renounced his U.S. citizenship or that, if he did, Esmond Moses's registration of intent and his renunciation of U.S. citizenship was legally ineffective and that he remains a U.S. citizen and thus ineligible to run for Congress. Paul questions the reliability of Moses's testimony about his registration and renunciation ceremony before then Attorney General Camillo Noket because there is no written copy of the oath Moses took and Moses, during his trial court testimony, could not recite its exact words.
Paul therefore contends that the ceremony may not have ever happened and, that if it did, it was not an effective renunciation by Moses of his U.S. citizenship, thus relegating Moses to the status of an FSM national, ineligible to run for office. Paul contends that for Moses to effectively relinquish his U.S. citizenship, he had to follow U.S. statutory law, and specifically appear before a U.S. consular official at the U.S. Embassy to make a formal renunciation of his U.S. citizenship, 8 U.S.C. § 1481(a)(5), and since he did not do so, Moses might, if he so chose, still be able to obtain a U.S. passport right now or at any future time.
2. Trial Court Factual Findings
That Esmond Moses appeared before Attorney General Camillo Noket and orally stated that he renounced his foreign citizenship and that he intended to remain an FSM citizen and took an oath of some kind is a trial court finding of fact, which, on appellate review, we will only overturn if the factual finding is clearly erroneous.
Esmond Moses's testimony was the only direct evidence that this occurred. There was no evidence to the contrary. Clearly, something of that nature must have happened. Otherwise, Attorney General Noket would not have issued Esmond Moses a Certificate of Citizenship on January 6, 1995,2 and Moses would not have been able to use that certificate to obtain a new FSM passport shortly thereafter. This factual finding is definitely not clearly erroneous. It therefore stands on appeal.
3. Legal Effectiveness
Whether whatever occurred with Attorney General Noket was legally sufficient and effective for Moses to retain his FSM citizenship is a question of law, which we review de novo. The applicable statute, which was also part of FSM Public Law No. 1-75, enacted in 1979 (and which is still in effect), provides:
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 becomes a national of the Federated States of Micronesia.
7 F.S.M.C. 203.3 This statute codifies the Constitution's Article III, Section 3. Article III, Section 3 is self-executing to the extent that it automatically deprives a dual citizen of his or her FSM citizenship if he or she does not take the proper affirmative steps to register his or her intent to remain an FSM citizen and to renounce his or her other citizenship(s). The statute, Section 203, implements Article III, Section 3, to the extent that it provides a method for a dual citizen to prevent the loss of his or her FSM citizenship.
The method requires the dual citizen to register his or her intent to remain an FSM citizen with the President or his designee in a manner and form4 prescribed by law or regulation and renounce his citizenship of another nation. Attorney General Noket was the President's designee. That is because Executive Order No. 1, as amended December 9, 1992 (and in effect in 1995), delegated executive power to the Office of the Attorney General and made that office "responsible for serving as legal counsel and representative of the Executive Branch . . . and for issuing regular and official passports." Exec. Order No. 1, § 5. This is a general designation of all the passport issuing (and therefore determination of citizenship) executive functions to the Office of the Attorney General. In the absence of any more specific designation or delegation to a different office or person, the FSM Attorney General (then Camillo Noket) would be the President's designee under 7 F.S.M.C. 203.
The parties agree, and we have no evidence to the contrary, that no statute or regulation had, by 1995, prescribed a particular a manner and form for a dual citizen to register his or her intent to remain an FSM citizen and to renounce his or her foreign citizenship. In the absence of an applicable statute or regulation in effect at the time, we must conclude that the process devised by the Attorney General's Office – an oral oath, administered by the Attorney General, declaring the dual citizen's intent to retain his or her FSM citizenship and renounce any foreign citizenship – was the proper process (manner and form) prescribed to comply with 7 F.S.M.C. 203. Thus, in 1995, an oral oath containing a registration of intent to remain an FSM citizen and a renunciation of foreign citizenship made before the President's designee, Attorney General Noket, was sufficient for a dual citizen to register his or her intent to retain his or her FSM citizenship.
Any dispute over the definition of "renounce" appears immaterial. Attorney General Noket administered an oath to Moses in which Moses recited that he renounced his U.S. citizenship. That was a finding of fact that, not being clearly erroneous, remains a fact on appeal. The question is not whether that meets the definition of "renounce" but whether that renunciation is legally effective.
We hold that it was. Moses followed a process in the manner and form that was prescribed (by Attorney General Noket, the President's designee) at the time. As a general proposition, each nation relies only on its own law to determine who is entitled to its citizenship and nationality, not the laws of other nations. "[I]nternational law leaves it to each State to lay down the rules governing the grant of its own nationality." Nottebohm Case (Liech. v. Guat.), 1955 I.C.J. 4, 23 (Judgment of Apr. 6). Uniformity in the manner and form of the renunciation and that it be before the President's designee is desirable. Otherwise, if dual citizens had to rely solely on foreign law, no one, including the FSM passport office, could ever be certain that one's foreign citizenship had been effectively renounced for the purpose of retaining one's FSM citizenship after turning 21.
We realize our decision may leave some FSM citizens in the anomalous position of being solely an FSM citizen under FSM law but still recognized by some foreign country as a citizen of that foreign country. (Paul's professed fear is that, since Moses never appeared before a U.S. consular official to renounce his U.S. citizenship as provided for by U.S. law, 8 U.S.C. § 1481(a)(5), Moses could, at any time, successfully regain his U.S. citizenship and obtain a U.S. passport.) That cannot be helped. The FSM cannot compel a foreign country to comply with the FSM's idea of who that foreign country may claim as its own citizen. But we do note that for a nation "to impose its nationality on a person against his will, or to insist on a nationality that the individual has renounced, may violate international law." RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 211 cmt. d (1987).
Esmond Moses was an FSM citizen by birth under Article III, Section 2 of the Constitution, and he retained that citizenship past his 21st birthday through his compliance with Article III, Section 3 and 7 F.S.M.C. 203. His current FSM citizenship makes him eligible to be a candidate for election to Congress. Accordingly, we affirm the trial court decision denying a preliminary injunction barring Moses from a place on the March 7, 2023 ballot.
Esmond Moses may tax his costs against appellant Erick Paul. FSM App. R. 39(a).
_______________________________Footnotes:
1 When we have not previously construed an aspect of an FSM Appellate Procedure Rule which is identical or similar to a U.S. counterpart, we may look to U.S. sources for guidance in interpreting the rule. Palsis v. Tafunsak Mun. Gov't, 16 FSM R. 116, 123 n.4 (App. 2008). Other than the FSM rule's provision that the appellant, instead of the trial court clerk, serves the notice of appeal, Appellate Rule 3 is very similar to the U.S. federal rule. FSM v. Pacific Int'l, Inc., 23 FSM R. 452, 455 n.1 (App. 2021).
2 The certificate could not have been issued merely to show that Moses was an FSM citizen on January 6, 1995 because Moses had better proof of that – a valid FSM passport.
3 In 2016, Public Law No. 19-91 added the sentence "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." to the end of Section 203. No other change was made. Paul contends that the trial court could not apply this evidentiary presumption retroactively to use Moses's passport renewals after his 21st birthday to confirm his 1995 renunciation and he further contends that the Public Law No. 19-91 amendment is unconstitutional. We take no position on this point.
4 We reject Paul's contention that the statute's use of the word "form" requires that an FSM citizen's registration must be written, even though that might be preferable. The word's plain meaning is not so restrictive.
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