The State Court of Yap
Cite as State of Yap v. Googdow, (1995)

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The State of Yap,

Jesse Googdow,

Criminal Case No. 1994-308

     This is a criminal action brought by the State of Yap against Jesse Googdow for illegal possession of alcoholic beverages in violation of 11 YSC 808. The defendant Jess Googdow moves for dismissal of the information on the ground that the statute itself (11 YSC 808) violates his rights to property and privacy under Article IV, Sections 3 and 4 of the FSM Constitution and Article II, Sections 3 and 4 of the Yap State Constitution. Now before the Court is defendant's motion to dismiss the information in Criminal Case No. 1994-308, which for the reasons stated here, is granted. Furthermore, this Court holds that the portion of the law (11 YSC 808) prohibiting mere possession is invalidated for it is in conflict with Yap State Constitution Article II, Sections 3 and 4, Article I, section 1, and Article III, Section 2.

     The case presents the following issues which the Court has to determine in order to reach the resolution of the ultimate issue before the court. The ultimate issue is the constitutionality of 11 YSC 808 as it specifically applies to mere possession of alcoholicbeverages.

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     I.  Does the prohibition of mere possession of alcoholic beverages in 11 YSC 808 violate due process clause because the substance of the statute restricted the rights to property and privacy?  Yes

     II.  Does 11 YSC 808 classify persons? And if so, is the classification which prohibits all persons, except those who are at least 21 years of age and who must have valid drinking permits, from mere possession violative of equal protection clause?  Yes to both

     III.  Granted that 11 YSC 808 have a strong governmental interest in restricting consumption, is there another statute or part of the statute in question already in effect or other means through which the same governmental end or interest sought could be achieved?  Yes

     IV.  Does 11 YSC 808 interfere with customs and tradition and thereby render itself violative of Article III, section 2?  Yes

     V.  Did the legislature exceed its Article V, section 1 power when it enacted 11 YSC 808?  Yes

      There is no dispute as to the following facts. Defendant Jesse Googdow, over 21 years old, is presently serving time from a different case in a sate on miith privilege for work release.  Information filed Criminal Case No. 1994-308 charges that "on or, about November 22, 1994, in Yap State, the defendant did illegally

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purchase and possess alcoholic beverages when as a prisoner he left his work release site, and purchase beer at Tom's store, while not in possession of nor eligible for a drinking permit, in violation of 11 YSC 808".

     That the FSM and Yap State Constitutions both protect Mr. Googdow right to property and privacy and that any Yap State legislation in conflict with Mr. Googdow's FSM and Yap State property and privacy rights is invalid is not a point in dispute between the parties.

     The defendant moves to dismiss the State's information, pursuant to Yap Criminal Procedure, Rule 12(b)(1), "because it is unconstitutional to prohibit the simple possession of alcoholic beverages.". Defendant Googdow believes that 11 YSC 808, which makes it illegal to simply possess alcoholic beverage, constitutes an unconstitutional deprivation of his FSM and Yap State property rights. Moreover, since Mr. Googdow enjoys a constitutional right to privacy, and since the mere possession of alcoholic beverages does not produce or threatens to produce any harm to the public, the police power under which such legislation is usually sought to be sustained does not authorize it. Mr. Googdow argues that, because of the foregoing reasons, the Yap State Legislature exceeded its powers in enacting 11 YSC 808, and, at least in so far as it applies to simple possession, the statute is invalid.

     Government opposes the motion to dismiss information and argues that the prohibition of mere possession of alcoholic beverages in 11 YSC 808 is not unconstitutional.  As long as there is a

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legitimate legislative purpose, prohibition of mere possession cannot be unlawful or unconstitutional. The statute in question (11 YSC 808) snakes it illegal to possess alcoholic beverages only under circumstances and the requirement needed in order to possess are:  A person must be at least twenty one years old and must possess a valid. drinking permit. The State argues that these requirements are not arbitrary and unreasonable classifications. The Government, furthermore, "submits that the legislative purpose behind 11 YSC 808 is legitimate--especially here on Yap and asks this Court to take judicial notice of the many cultural problems, family problems, health problems and safely problems caused by alcohol in Yap State. The existence of these problems supports the constitutionality of 11 YSC 808: the Yap State Legislature has seen the regulation of alcohol possession as a legitimate and important purpose, subject to control under certain circumstances by a rational and reasonable law." The Government concludes that "the defendant's arguments that his constitutional rights were infringed in this case are misplaced. It is fully within the State's rights to prohibit, as here, a prisoner out on work release from possessing alcohol, and 11 YSC 808 is a lawful and constitutional statute."

     The issue before the Court is one that requires analysis of the Yap State law and testing its validity under both FSM and Yap State Constitutional protections. And since the disposition of the issue in this instant cases based on the analysis of pertinent provisions (or texts) of Yap State Constitution, the Court need not go into defendant's arguments based on the FSM Constitutional grounds. And as both counsel have pointed out that there is no FSM or Yap

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State case law on point (and its case laws are non-binding); this Court is left with a plain meaning (textual) interpretation of the pertinent Yap State Constitution provisions and 11 YSC 808 and this Court's application of the due process and equal protection analysis to the statute in question (11 YSC 808). The analysis of custom and traditions as protected by Yap State Constitution and as they apply to 11 YSC 808 is also required here.

     Defendant Googdow's property and privacy rights are protected by Yap State Constitution, Article II "Fundamental Rights", specifically Sections 3 and 4.

     Sections 3 states: "The right of the people to be secure in their persons; houses, papers, and effects, against unreasonable search(es), seizure(s) or invasion of privacy. shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized".
     Section 4 states: "No person shall be deprived of life, liberty, or property, without due process of law, or be denied the equal protection of the laws, or be denied the enjoyment of his civil rights, or be discriminated against in the exercise thereof, on account of race, sex, religion, language, ancestry; or national origin".

     11 YSC 808, "illegal possession and consumption of alcoholic beverages", however, states that:

     "No person under the age of twenty-one years or not in immediate possession of a valid drinking permit shall possess or consume any alcoholic beverages in the State. Immediate possession of a drinking permit means having a drinking permit in his immediate possession at all times when he is possessing or consuming alcoholic beverages. A person who is

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twenty-one years of age or more may purchase a drinking permit at the Division of Public safety, which permit shall cost $5.00 and which shall be valid for a period of one year from the date of issuance. The permit requirement shall not apply to anyone whose stay in Yap does not exceed thirty days. A person who is convicted of violating this Section shall be punished in accordance with the following standards:

     (a)  If the convicted person is under twenty-one years of age, then he shall be fined not less than $20.00, but not more than $300.00 or imprisoned for not more than six months, or both.

     (b)  If the person convicted is not in immediate possession of a valid drinking permit, then he shall be fined not less than $30.00, but not more than $500.00, or imprisoned for not more than six months, or both.

     (c) (1) A wholesaler, retailer, on sale licensee, off-sale licensee, special events licensee, their employees or agents, or a person to whom alcoholic beverages is administered only if by or under the direction of a bona fide religious order or a medical officer, shall be exempted from this section;

     (2)  A person who has been on probation for a felony or a violation of chapters 1 to 11 of this title, or who has been convicted of at least two or more felonies committed rider the influence of alcoholic beverages or who has been certified to be mentally ill by competent medical officers, shall not be issued a drinking permit; and

     (3)  In applying the provisions of chapters 1 to 11 of this title, the courts shall take into account the requirements and dictates of the customs and traditions of the people of the State of Yap".

     The Legislature has the power to regulate the consumption of alcoholic beverages. The statute, 11 YSC 808, so far as it applies to possession, does not have a sufficient relationship to its legislative purpose. The existence of "cultural problems, family problems,

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health problems and safety problems are legitimate concerns of the legislature. And the legislature certainly does have the power, even the obligation, to enact proper legislations in order to curb or solve these problems. But 11 YSC 808 infringes upon individuals fundamentals rights. The mere possession of alcoholic beverages which is prohibited by this statute does not bear sufficient relationship to the governmental interest sought in 11 YSC 808. And since the, statute in issue limits individuals' fundamental constitutional rights but the government interest, in so far as it applies to possession, is not overriding or compelling, 11 YSC 808 must, therefore, be invalid. The people have the right to own and to keep their property. The decision as to what properties one should keep and which items or things to get rid of belongs to each individual. This right extends to the choosing of new items a person wants to own. As long as the items a person possesses, individually and collectively, do not pose any harm or tend to produce any to the public, including the person possessing, the government does not have the authority to interfere with these private andindividualistic matters. Any act of government which threatens to regulate property rights without the requisite justification will be held invalid. The possession of alcoholic beverages, including local tuba, cannot be prohibited. To do so would be like requiring thepeople to buy from the government their right to possess and to own their property. Such an act of government would be violative of property and privacy rights. 11 YSC 808, as far as it applies to the prohibition, falls under this category.

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     The government has the inherent power to enact legislation that promote health, peace, morals and good order etc, of the people. The Legislature has determined the need to regulate the consumption of alcoholic beverages, especially by the youths or those persons who are under 21 years of age. This Court has been asked to take judicial notice of the many problems that are caused by alcohol. These include "cultural problems, family problems, health problems, and safety problems".

     11 YSC 808 does classify persons. The Court has to decide whether or not the classification bears sufficient relationship to the governmental purpose of that statute. This statute classifies people in an over inclusive way. It classifies all persons under 21 years of age into one group and those who are over 21 years into another group. The first group are prohibited from both consumption and possession. And the second group, comprising of all persons who are at least 21 years of age, can possess and/or consume only if they have valid drinking permits. There are only three categories of people who are not burdened by this classification. These are the members of the religious orders, a very limited number of hospital patients, and those persons whose stay on Yap do not exceed 30 days. This last category includes the wealthy tourists and other transient visitors. These are the only people who benefit from the classification in the statute in issue. All others are burdened by the classification. This is, therefore an over inclusive classification. And

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hence it is discriminatory.  No substantial degree exists between the legislative purpose and the classification as far as the statute applies to mere possession. Furthermore, there is already in effect a better way through which the same governmental end could be achieved without infringing upon individuals constitutional rights. 11 YSC 808, so far as it applies to mere possession is, therefore; violative of the equal protection clause.

     If a statute is found to be in conflict with the Constitution, the legislative purpose of which could be achieved in a different way that does not deprive or infringe upon individual's property and privacy rights and thereby renders itself violative of substantive due process and equal protection clauses, it will be held unconstitutional. 11 YSC 808 does have a governmental interest, but there is already in effect a statute, 30 YSC 405, that takes care of the governmental end sought in 11 YSC 808. And 11 YSC 808 takes care of the consumption of alcoholic beverages by persons under 21 years of age. It is consumption the government attempts to prevent the youths from doing. The government argues that the "cultural problems, family problems, health problems, safety problems" are caused by alcohol in Yap. These problems are not attributable to mere possession of alcoholic beverages. Rather these problems are, for the most part,caused by excessive, abusive, and continual consumption of alcoholic beverages.

     Yap State Constitution recognizes the importance of customs and traditions. "Due recognition shall be given to traditions and

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customs in providing a system of law, and nothing in this constitution shall be construed to limit or invalidate any recognized tradition or custom. Article III Section 2. The courts takes judicial notice of a well-established custom of the people of Yap that calls for obedience and respect for one's parents, grandparents, elders in general, chiefs and high-ranking people, and authority. Furthermore, siblings have certain prescribed roles, one of which is to look after and care for older family members. Depending on age, maturity, sex, mastery of skills, among other factors, children and younger citizens are expected to perform a wide range of chores and duties. Such responsibilities borne by youths include running errands for the elders, providing food and drink, climbing for betel nuts, coconuts and even making tuba. These are only a few examples for it is an impossible task to list every single one, nor is that the purpose here. Furthermore, only the obedient and caring children of the Yapese family will be able to inherit land and family wealth when they become of age.

     The statute, 11 YSC 808, infringes upon the core of family relationships. It interferes with the obligations of children towards parents and older persons in the community as prescribed by customs and traditions. Specifically, this statute prohibits children and the young people from performing their customary obligations and asks which entitle them to inherit and own property.

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     Running errands for the elderly may include going to the stores to buy daily needs. And daily needs include a variety of things such as ba tob ara ba achbay for an out of town visitor, but a youngster, however, is prohibited by 11 YSC 808 to carry out this obligation towards his/her elder kinfolks.  This prohibition, therefore, runs against custom and tradition of the Yapese people.

     Moreover, mere possession of alcoholic beverages cannot be prohibited because village chiefs and elders are oftentimes required to possess alcoholic beverages for safekeeping purposes. Furthermore, tuba making is a recognized custom. The younger residents of the neighboring islands are still very active in tuba making. But the residents of the main Yap Island, on the other hand, have become less active in tuba-making since beer and hard liquor are already available at the stores. "The giving away of tuba among many other things as gifts, especially during mitmit and other traditional celebrations, has been an ages-long tradition and custom. This practice has now included liquor and beer. Based on the above, 11 YSC 808, in so far as it ,applies to mere possession is unconstitutional. It violates recognized customs and tradition which are protected by Article III section 2 of Yap State Constitution.

     The power of the Legislature is provided in Article V, section 1 of the Constitution: "The legislative power of the State is vested in the Legislature. Such power shall extend to all rightful subjects of legislation not inconsistent with this Constitution." And whenever an act of government is in conflict with the Constitution, it shall be held invalid. Article I, section 1 states that "this Constitution is the

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supreme law of the State. An act of government in conflict with this Constitution is invalid to the extend of conflict".

      11 YSC 808 is an act of government. And at least, in so far as it applies to the prohibition of mere possession of alcoholic beverages, this act conflicts not only with Article I, section 1, but also with Article II, sections 3 and 4, and Article III, section 2 (d) of the Yap State Constitution. Moreover; the prohibition of mere possession is inconsistent with subsection (c)(3) of the law itself. The Legislature, therefore, exceeded its Article V, section 1 power when it enacted 11 YSC 808. This law, in, so far as it applies to the prohibition of mere possession, is invalidated.

     As a result of, the foregoing analysis, 11 YSC 808, in so far as it applies to mere possession of alcoholic beverages, is held unconstitutional.

     Accordingly, the Motion to Dismiss is hereby granted.

     SO ORDERED THIS   3rd  day of March, 1995.
                                    John Tharngan
                                    Temporary Justice

     Filed this 3rd day of March,1995.

     Clerk of Court, Yap
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