Cite as State of Yap vs. Googdow, (Yap, 1989)
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Case No. 1989-026

     Defendant came before the court to motion for release from confinement to attend a funeral, to be treated, similar to a work release, as a modification of sentence, and pleaded good cause under Googmad, infra. The State opposed on the ground that Executive Order 3-89 precluded defendant's release as uncomplied with, thereby not allowing release for good cause. In the alternative, the State argued that the release would amount to a reduction of sentence, not a modification, and thus precluded, for reasons we assume relate to the lapse of the 120 day time limit.

     Based on the discussion below, defendant will be permitted to attend the funeral with the restrictions that follow.

Public Safety Regulations
     The State, in it's opposing motion argued that executive order no. 3-89, Regulations for the Division of the Public Safety, precluded the, court to act on defendant's behalf because the preclude the court to act on defendant's behalf because the regulation had not been complied with. For the reasoning below,

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however, this court will not look to whether the regulation had been complied with, as the regulations is not binding on this court.

     Although 10 Y.S.C. 102 (g) states that regulations carry the force and effect of law,separation of powers will not allow an Executive Order to bind the Judiciary . It is likewise not the court's position to interpret and we do not now interpret, the propriety of specific regulations that the Executive deems proper as guidelines for it's own departments, the Division of Public Safety being an arm of the executive. Although the executive has such authority to do so, they do not have ultimate discretion and control in regulating, for they are equally bound by the constitutions and laws of this land. The court will sit in judgement of those regulations violate of the law or constitution, as this is the court's function.
     The important distinction being that "force and effect of law" is not "law" in every respect. Laws are enacted by the Legislature. Administrative powers, on the other hand, are applied "as law" in their enforcement on those regulated, but do not "become law" and thereby bind the court.

Modification v. Reduction
     Thus, having ruled that the regulation does not bind the judiciary in it's decision-making power, we now turn to the question of how the motions filed will be dealt with.

     Defendant moves that the relationship with the uncle, an important chief, constitutes "good cause" under our recent decision in Yap v. Googmad, 1993-006/013; p.3, and should be

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treated as a "modification", in the same sense of a work release, and not "reduction". The state countered that the defendant is not seeking the time released to be added at the end of the sentence, and is thus, a "reduction". We agree with the defendant, although not completely.

     We stated in Googmad, that it is in our discretion to modify when good, cause is shown, as long as the modification does not amount to a reduction, then the Rules of Criminal Procedure are specific. Also like work release, the defendant returns to the confinement of prison from 7:00 a.m. every day. He is also subject to supervision and control during the daytime. The argument goes that since this is rehabilitatory in nature, the defendant sleeps in the confinement of the prison, and is supervised all day, it is not a reduction of sentence. He is constantly "in confinement" as he is never free to leave.

     The extended family in Micronesia is culturally a very important relationship that separates us in the application of our laws and procedures from the U.S. laws which we originally adopted. The family relationship is stressed in Micronesia and the court recognizes the great ability the family has in conforming a member's proper behavior. Thus, much as work release is rehabilitatory in nature, so must be the formalities of observing and strengthening the family bond. If measures may be properly, legally and constitutionally taken to strengthen this bond, we will not hastily step in the way.

     Therefore, as long as the defendant is supervised by an officer or authorized deputy during the time of release attendance of the funeral will be allowed from 700a.m. to 7:00

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p. m. His supervision is a "custodian" and he is at no time free to leave that custody. Defendant is further cautioned that, he shall not break any laws of the State of Yap or the FSM, and shall not consume alcoholic beverages during his time away from the prison.
     We will now, however, take the opportunity to stress to defendant that this is "a limited example of good cause and will not grand leave for just anyone to attend any funeral. Not just any cause will do, it must be valid. Many factors come into effect. The closeness of the relationship, prior behavior of the prisoner and rehabilitative nature of the release being just a few.
     As to the relationship, if the court were to adopt guidelines similar to those controlling the DPS in Exec. Ord. 3-89, which we have not yet done; the degree of relationship would be defined in the Yapese sense, not the strict western interpretation.

Ignoring Controlling Legal  Authority
     On a side note, there was some mention of the failure to bring up controlling legal authority in this matter, that being the Public Safety regulation discussed above. The rule states in pertinent part:
"A lawyer shall not knowingly:.. fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel." (Model Rules of Professional Conduct; Rule 3.3, Candor Toward the Tribunal ).

     While it is required under the Rules of Professional

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Conduct, Rule 3.3, that parties are required to disclose adverse precedent, the court does not feel that it applies in this instance. As discussed above, the Regulation is an executive order and thus is not binding on the court due to constitutional separation of powers requirements.

      Instead, we will take this opportunity to caution any party coming before this court that Rule 3.3 will be strictly adhered to in the future. This type of behavior may be interpreted as an obstruction of justice, hiding precedent from the court, and is thus subject to sanctions and disciplinary proceedings.

     I.  Separation of powers will not allow Executive Order no. 3-89 to bind the courts "decision-making power". It is applicable to the regulation of the executive's own department, the Division of Public Safety, carrying the "force and effect of law" under 10 Y.S.C. 102(g) as to their conduct, but does not bind or override the judiciary's power.

     II.  Defendant will be allowed to attend the funeral provided that he is supervised by an officer of the law, or authorized deputy, returning each day from 7:00 p.m. to 7:00 a.m., good cause being shown. Further defendant shall not violate any law of the of Yap or of the FSM, and shall consume alcoholic beverages while away from the prison.

     III.  Although Rule 3.3 creates the duty to bring up contrary precedent, there was no technical infraction as

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Executive Orders are not controlling on this court's decision-making authority and is thus not controlling precedent. In the future, however, all parties are advised that violations are punishable and the court will enforce them.



                         Samuel Falanruw
                         Chief Justice

Filed: 7/22/94

                         Clerk of Court
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