cite as Tolenoa v. Tafunsak Mun.Government, FSM, Kosrae St.(1991)
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Civil Action No. 36-85


Argued May 9, 1991

     This matter brought before me on this 9th day of May 1991 . Counsel for Plaintiff Delson Ehmes appears. Representing FSM David Webster and Glenn Jewell Assistant Attorney General Kosrae appears on behalf of Tafunsak Municipal Government.

     This action involves a motion to dismiss FSM as a defendant in this action for lack of subject matter jurisdiction under Article XI Section 6(a) FSM Constitution.

     Plaintiff Linter Tolenoa filed this action, alleging that defendants have: (1) trespassed over his property; (2) breached a duty of lateral support; (3) taken property without due process; and (4) deprived plaintiff of his constitutional rights by building and maintaining a bridge encroaching upon and damaging

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plaintiff's property. The issue raised at the hearing is this: Must the State Court dismiss this action as to the FSM government for lack of subject matter jurisdiction under Article XI, section 6(a) of FSM Constitution? The Court denied the motion at the hearing. This opinion contains the Court's reasoning in denying the FSM's motion to dismiss.

Constitutional Grants of Jurisdiction

     Defendant FSM moves to dismiss the action as to it for lack of subject matter jurisdiction. The Court must first look to the constitutional jurisdiction expressed in the respective constitutions of the state and national governments. The FSM Constitution provides:

The trial division of the Supreme Court has original and exclusive jurisdiction in cases affecting officials of foreign governments, disputes between states, admiralty or maritime cases and in cases in which the national government is a party except where an interest in land is at issue. FSM Const. Article XI, Section 6(a).

     The Kosrae State Constitution grants Kosrae State Court original jurisdiction in all cases which are not in the exclusive jurisdiction of the lower courts. Kosrae Const., Article VI, Section 6.~tThis action concerns acts performed in Kosrae, and land in Kosrae; therefore, plaintiff has made a showing that this Court has jurisdiction.

     Thus the question arises when the national government is a party and an interest in land is at issue, does the state or national government have jurisdiction; or, must Kosrae State

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transfer the matter to FSM Supreme Court because it is without jurisdiction to act? The FSM Constitution is ambiguous in this regard.

     The Journal of the Constitutional Convention provides some assistance in resolving this question but does not resolve all doubts. In SCREP No. 48, the Committee on Style and Arrangement discussed the jurisdiction of the FSM Supreme Court:

Trial Court jurisdiction of the national courts is divided into two categories, original and exclusive jurisdiction and concurrent jurisdiction. The grant of exclusive jurisdiction means exclusive as to the states but not as to other national courts. The original and exclusive jurisdiction of the national courts includes cases  where the national government is a party under the committee proposal, the state courts would not be permitted to handle any of these types of cases.

In addition to its exclusive jurisdiction, the trial courts of the national court system would also have jurisdiction concurrent with the state courts in cases involving constitutional issues or questions concerning national law [or diversity and foreign party cases] .....[T]he national legislature would be in the best position to establish, and from time to time adjust, criteria for apportioning such cases between the state and national court system. SCREP No. 49 on Comm. Pro. No. 30., J of Micro. Con.Con., at page 879.

     It appears that the framers intended to give the FSM Supreme Court jurisdiction over matters of national character. However, there is no intent expressed to give the FSM Supreme Court jursidiction over land matters involving the Federal Government. Thus, in all cases involving the FSM as a party, the FSM has original and exclusive jurisdiction, unless an interest in land is at issue in the case.

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     No FSM Supreme Court cases have specifically addressed this issue to date. There is, however, a significant discussion of FSM Supreme Court jurisdiction in Bank of Guam v. Semes 3 FSM Intrm. 370 (Pon. 1988). Though that case did not concern FSM Supreme court jurisdiction based upon the national government as a party, a discussion of that case is warranted here. Semes was a diversity case, involving the question of whether the FSM Supreme Court should decline to exercise jurisdiction because interests in land might be affected by the judgment. The Court denied the defendant's motion to dismiss, holding that both litigants have a right to demand that the FSM Supreme Court exercise its diversity jurisdiction.

     After a lengthy discussion of the events of the Constitutional Convention which gave rise to the FSM Constitution, the Semes Court held that "only national courts are given jurisdiction by article XI, section 6(b) of the constitution." The Court's discussion of the bases of state court jurisdiction is relevant here.

[S]tate courts do not normally look to the national Constitution as a source of jurisdictional authority. Instead they typically rely upon state constitutions and state law for their authorization to act . . . .

The presumption is that a state court has jurisdiction to act on any case which arises within that state. Given this understanding the fact that the national Constitution does not place jurisdiction in the state courts is not enough to warrant a conclusion that state courts are without jurisdiction to act in such a case. The proper question is not whether the national constitution authorizes, but whether it bars state court jurisdiction. Id. at 376, 377.

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The Court held that state jurisdiction is barred when one of the litigants in a diversity action under article XI, section (6)(b) exercises its right of removal. Id.

     Nevertheless, a similar result is not dictated here by the Semes case. That case involved diversity jurisdiction under article XI, section 6(b), and the present case involves section 6 (a) of the same article. Though the FSM Supreme Court has held that article XI, section 6(a) cases are exclusively within the power of the national courts1, the "except where an interest in land is at issue" language has never been interpreted by the FSM Supreme Court2.

     Indeed, FSM Supreme court has shown great deference to state courts when interests of land are at issue. In the Semes case, the. Court discussed at length the "special knowledge and experience relevant to land matters" residing in the states rather than in the national government and cited the Convention Journal for this point. Id. at 382. Though the special qualifications of the states in land matters is

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generally known and accepted in the FSM, the Court held that the language of the Constitution must prevail. Id. at 382. In denying the defendant's motion to dismiss the diversity action on the basis that an interest in land is at issue, the Semes court noted that article XI, section 6(b) contains no language like that contained in section 6(a):

The only phrase concerning land in the, judiciary article of the Constitution is in section 6(a), providing an exception from this Court's exclusive jurisdiction under that section for cases "where an interest in land is at issue."

Section 6(b) has no such limitation. As this court has noted previously, one difference between the jurisdictional provisions of the FSM Constitution and those in the United States Constitution is that the grants of jurisdiction in this Constitution are self-executing. Id. at 382, citing FSM Development Bank v. Estate of Nanpei, 2 FSM Intrm. 217, 219 (Pon.1986)

If the "limitation" expressed in section 6(a) of the judiciary article is to have any meaning, we must hold that this Court has some form of jurisdiction to hear cases in which the FSM is a party and an interest in land is at issue.

     In the Estate of Nanpei case cited in the preceding paragraph, the FSM Supreme Court held that the FSM Development Bank is part of the national government for jurisdictional purposes, and denied defendant's motion to dismiss under article XI, section 6(a). In,a footnote to the Court's opinion, the FSM Supreme Court discussed the self-executing nature of the jurisdictional statements contained in the FSM Constitution, and

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distinguished the United States precedent on that and other points.

[T]his Court's exclusive jurisdiction over cases in which the national government is a party is not paralleled in the United State [sic] Constitution. Such differences "presumably reflect a conscious effort by the framers to select a road other than that paved by the United States Constitution" [citation omitted]. We therefore may not assume that United States court interpretations will yield the correct result for the constitutional provision at issue here. Id. at 219, fn. 1.

Likewise, in this case, there is no similar provision in the United States constitution, limiting jurisdiction when an interest in land is at issue in the case. This Court therefore declines to adopt a rule similar to that adopted by the FSM Supreme Court in the Semes case for cases based upon diversity jurisdiction. In Semes, the Court followed the United States precedent of allowing the litigants to proceed in the state court only if ail parties agreed. Semes, supra, at 378, 379. We hold therefore, that there is no right of removal to be exercised by the FSM as a party to a state court case in which an interest in land is at issue. A contrary result would deprive article XI, section 6(a) of any meaning.

     The Constitution does not address the present situation; i.e., the FSM is a party and the case is one in which an interest in land is at issue. In light of the lack of constitutional guidance, several alternatives can be considered. The State Courts could have concurrent jurisdiction when FSM is involved in a case involving interests in land. If this is the result,

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either FSM Court or the Kosrae State Court could hear the case.

     Another alternative can be based upon the following reasoning. The grant of exclusive jurisdiction to FSM Supreme Court trial division governs all actions involving the FSM; except that, cases in which an interest of land is at issue, the jurisdiction will be either (1) non-original or (2) non-exclusive or (3) both non-original and non-exclusive.

     Non-original jurisdiction would include jurisdiction based upon statutory provisions, duly enacted by Congress in addition to those grants provided for in the constitutional provisions. The Committee Report No. 49 suggests that the framers considered a role for Congress in the framing of jurisdiction between states and national courts. If the absence of legislative action in this area is considered, it could be argued that FSM Supreme Court has original and exclusive jurisdiction even in cases involving land, because the Congress has not limited the Court's jurisdiction. This, however is a strained construction. The only construction which makes sense is that the FSM Supreme Court jurisdiction over cases involving interests in land where the FSM is a party is non-exclusive or concurrent with state jurisdiction.

Is an interest in land "at issue" in this case?

     Plaintiff admits that this action is not to determine title, but involves land interests somewhat indirectly. Plaintiff claims damages for trespass, the taking property without due process, and breach of an implied covenant of lateral

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support. All of these claims are land-related issues. The FSM contends that because plaintiff is seeking money damages instead of ejectment or some type of ownership-type remedy, Kosrae State Court does not have subject matter jurisdiction to hear the case under Article XI Section 6(a).

     The Court should look at the substance of the action in order to determine whether issues of land rights are implicated. If land rights are implicated the State Court has an interest in seeing that the state's land laws are properly enforced, and the Court should assume jurisdiction.

     In order to prevail, the plaintiff must prove all the elements of his causes of action to this Court by a preponderance of the evidence. In the cause of action for trespass, the plaintiff must prove that he has a property interest in the damaged property. Without proof of that fact, no cause of action will lie.

     Similarly, the cause of action based upon the breach of a duty of lateral support requires proof of a property interest in the damaged property, and a weighing of the relative interests of the parties. See generally 1 AmJur 2d Adjoining Landowners, §43, et seq. Though this Court has yet to rule as to whether such a duty exists in Kosrae3, it is clear that property interests must

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be proved to the Court.


     Thus, I have concluded that Kosrae State Court is not prohibited from exercising its original jurisdiction over the FSM Government in this action. Though there are no FSM cases directly discussing this issue, I would interpret the language of Article XI Section 6 t a) , to mean that both Courts may proceed with the matter independently of each other, without a "right" of removal as in diversity cases.

     An interest in land is at issue in this matter because the complaint alleges trespass, breach of a covenant of lateral support, and taking of property without due process of law. These causes of action involve the determination of interests in land.

     The FSM's motion is denied based upon the above reasoning.

     SO ORDERED the 9th day of May, 1991 .

                                             Harry H. Skilling
                                             Justice Pro Tempore

     Entered this 19th day of June, 1991.

                                             Chief Clerk of Court, Kosrae


1. FSM Development Bank v. Estate of Nanpei 2 FSM Intrm. 217 (Pon. 1986) (Back to Opinion)

2. In FSM Development Bank v. Mori 2 FSM Intrm. 242 (Truk, 1986), the FSM Supreme Court trial division was presented with a similar motion to dismiss on the grounds that an interest of land was at issue. Mori involved a foreclosure action, yet the court ruled that no interest in land was at issue, because the defendant had not answered the complaint at the time of the motion. Counsel did not argue the applicability of the Mori case here, and this court is not persuaded that a similar result is mandated in this case. (Back to Opinion)

3. The question of whether duties of lateral support are recognized in Kosrae is clearly a state court issue, and lends further support to the assumption of jurisdiction by this Court in this matter.