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THE SUPREME COURT OF THE

FEDERATED STATES OF MICRONESIA
TRIAL DIVISION-STATE OF PONAPE
Cite as In re Nahnsen, 1 FSM Intrm. 97 (Pon. 1982)

[1 FSM Intrm. 97]

In the matter of the Estate of
JANE NAHNSEN
Deceased

CIVIL ACTION NO. 8-81

DENIAL OF MOTION TO DISMISS;
AUTHORIZATION TO SEEK RULING
FROM PONAPE DISTRICT COURT

     The motion to dismiss filed by respondent Lena Rudolph questions whether this court may exercise jurisdiction, on grounds of diversity of citizenship, over probate proceedings where interests in land are involved.

     We conclude that the court does have jurisdiction.  Nevertheless, we suggest that state courts, rather than national courts, should normally resolve probate and inheritance issues.  This is especially true where, as here, interests in land are at issue.

     Unfortunately, the State of Ponape has not yet established its state court system.  These local issues therefore cannot be transferred to the state courts. For now, the Ponape district court bears the closest resemblance to the state court system contemplated by the Constitution of the Federated States of Micronesiaand the Ponape State Charter.  It seems appropriate to provide the Ponape district court an opportunity to render an opinion on the local issues.

[1 FSM Intrm. 98]

     Therefore, this court is abstaining from proceeding further with this litigation until the parties have an opportunity to ask the Ponape district court to render an opinion on the issues designated here.

Factual Background
     This is already the third forum for this litigation.  Plaintiff Akira Suzuki filed a petition for probate of two wills, each dated November 9, 1978, with the Ponape district court on January 29, 1981. 1  On March 10, 1981, Marilyn T. Milne, administration of the estate of James Milne, deceased, filed an answer denying all allegations in the petition. Ms. Milne's answer was signed by her attorney, Charles K. Novo-Gradac, and was accompanied by a letter from Mr. Novo-Gradac explaining that Ms. Milne is the oldest child of James Milne, an heir to the decedent, Jane Nahnsen.

     On February 9, 1981, Lena Rudolph and Ermick Rudolph filed an answer to the petition.  Their answer contained a recitation that Alex Milne, representative of James Milne, deceased, also claimed an interest in the estate.  Alex Milne's name was added to the answer with the recitation that Toshiuki Rudolph was signing the petition on his behalf.  The case was transferred, pursuant to petitioner's motion, to the Trust Territory High Court on March 10, 1981.  No action took place there other than the authorization of discovery at the request of the petitioner.

[1 FSM Intrm. 99]

     Trust Territory High Court Justice Mamoru Nakamura on June 25, 1981 ordered transfer to this court.  Justice Nakamura presumably believed this court has diversity of citizenship jurisdiction because the estate of James Milne, deceased, is based in the Marshall Islands, and Marilyn Milne and Alex Milne are from the Marshall Islands.  The other parties are apparently all residents and citizens of Ponape.

     Respondent Lena Rudolph has now filed a motion to dismiss.  Her motion contains the following declarations:

The firm of Charles K. Novo-Gradac . . . was engaged by the estate of James Milne only to determine what interest, if any, James Milne might have in the estate of Jane Nahnsen.  Charles K. Novo-Gradac has clarified to Lena Rudolph that the interest of James Milne which Novo-Gradac legally represents has been withdrawn and Novo-Gradac is no longer connected with this action.

     A few days later Mr. Novo-Gradac submitted a letter, received by the court on October 29, 1981, saying,

There will be no appearance by this firm on behalf of Marilyn Milne and the Estate of James Milne at the October 28, 1981 pretrial this October 28, 1981.  We will have no objection to a motion to dismiss said parties from the action . . . .

     Upon receipt of Lena Rudolph's motion, this court requested the parties to file memoranda addressing the question of jurisdiction. Petitioner Suzuki has filed a memorandum suggesting that, even if diversity of citizenship does exist among the parties, the issues involved here are essentially local issues and the court should not take jurisdiction over them.  No other party has filed a memorandum on the issue.

[1 FSM Intrm. 100]

Diversity of Citizenship
     The record in this case indicates that there still is diversity of citizenship among the parties.  As already stated, Marilyn Milne filed an answer to the petition in February, 1981 on behalf of the estate of James Milne, deceased, and opposed every statement in Akira Suzuki's petition.  In addition, on February 9, Alex Milne's name was attached to the petition filed by the Rudolphs.

     The documents filed in January and February, 1981, when this case was still with the Ponape district court, have not been altered, revoked or withdrawn by subsequent actions.  Despite several tantalizing hints and intimations to the contrary, the case file still today shows Marilyn Milne, administratrix, and the estate of James Milne, deceased, stoutly contesting every allegation in Akira Suzuki's petition. Lena Rudolph's recitation in her motion that "the interest of James Milne which Novo-Gradac legally represents has been withdrawn" was not a sworn statement and is not supported by affidavit.  In any event, a court would only in the most extraordinary circumstances accept the unsupported representations of one party to litigation that another party has no further interest in the case.

     The disinclination to accept a party's representation concerning the lack of interest of another is especially strong when the other is actively represented by counsel.2

[1 FSM Intrm. 101]

Here, Mr. Novo-Gradac wrote a letter just a few days after the Rudolph motion was filed.  He did not confirm Mrs. Rudolph's statement that the interests of the Milne estate had been withdrawn, nor did he indicate that his clients intend to withdraw, or renounce their interest in the Nahnsen estate.  He did say that his clients would have "no objection" to a motion to dismiss them from the action, but no such motion has been filed.  Lena Rudolph's motion seeks to dismiss the entire action, not just some of the parties.  I conclude that Marilyn Milne and the Milne Estate remain parties to this litigation.  Alex Milne also has not renounced his interest in the estate and therefore apparently is still a party in this case.

     Thus, although the actual present intent of the various parties is less than clear, there is no basis in the record for concluding that the non-Ponapean and the non-FSM parties have no further interest in the litigation or in the Nahnsen estate.

     This court's jurisdiction is prescribed by Section 6 of the Judiciary Article of the Constitution of the Federated States of Micronesia.  The court is specifically given jurisdiction over disputes between citizens of a state and foreign citizens. FSM Const. art. XI, 6(b).  This jurisdiction is based upon the citizenship of the parties, not the subject matter of their dispute.  The dispute here is between a citizen of Ponape, Akira Suzuki, and citizens of the Marshall Islands.

[1 FSM Intrm. 102]

     The constitution places jurisdiction over this dispute in this court, despite the fact that the issues involve matters within state or local, rather than national, legislative powers.  A primary purpose of diversity jurisdiction is to minimize any belief of the parties that a more local tribunal might favor local parties in disputes with "outsiders." This purpose is at least as likely to be well served where the issues before the court involve matters within state or local, rather than national, powers.

     Under constitutional language somewhat similar to ours concerning diversity jurisdiction, 3  United States courts have developed two doctrines whereby federal courts might deny jurisdiction in a case such as this.  First, United States Federal courts typically have not accepted jurisdiction over probate matters.Markham v. Allen, 326 U.S. 490, 494, 66 S. Ct. 296, 298 90 L. Ed. 256 (1946); Sutton v. English, 246 U.S. 199, 205, 38 S. Ct. 254, 256, 62 L. Ed. 664 (1918). Annotations, 12 A.L.R. Fed. 292 (1972) and 158 A.L.R. 9 (1945).

[1 FSM Intrm. 103]

(1972). This is based on the constitutional limitation of the judicial power of United States federal courts to "all cases in law and equity." (Emphasis added). U.S. Const. art. III, 2. The limitation was confirmed by the United States Congress in the Judiciary Act of 1789, the original statute defining diversity jurisdiction in the United States federal courts.  That statute granted diversity jurisdiction over "suits of a civil nature in law or in equity."  This grant of jurisdictional authority was found to grant equity jurisdiction identical with the power of the English Chancery Court in 1789.  Wright, Law of Federal Courts, 25 (3d rd 1976); see also Starr v. Rupp, 421 F.2d 999, 1004, 12 A.L.R. Fed. 279, 286-87 (6th Cir. 1970).  Probate matters are statutory and involve proceedings in rem (that is, jurisdiction is based on court control of specific property).  They therefore fall outside of traditional common law jurisdiction, and the general equity jurisdiction exercised by the English courts of Chancery in 1789.  Probate matters at that time were typically handled by ecclesiastical courts.  1 Moore's Federal Practice 6[2.-2], at 213-14 (2d ed. 1981).

     Those early decisions in the United States and the precedents they have fathered for the current United States law arose from unique historical factors not relevant to the Federated States of Micronesia today.  The drafters of the United States Constitution were thinking of the legal system then current in England.

[1 FSM Intrm. 104]

     During the two hundred years since adoption of the United States Constitution the vast majority of the subtle and complex distinctions between law and equity jurisdiction which seemed so important to the lawyers and judges of that time have been minimized or erased.  In any event, Micronesians have never had separate courts of law and courts of equity.  There are no ecclesiastical courts within the Federated States of Micronesia nor have probate matters been assigned to specialized courts here.  For the past 35 years, the same courts, the Trust Territory High Court and District Courts, have exercised general jurisdiction without regard to whether the issues involved are legal, equitable or probate.

     Moreover, the constitutional grant to this court of all "judicial power of the national government" is not limited in the language establishing diversity jurisdiction.  FSM Const. art. XI, 1, and 6(b).  See also Judiciary Act of 1979, Pub. L. No. 1-31, 2 [4 F.S.M.C. 102].  There is no limitation in this authority similar to the United States Constitution limitation of diversity jurisdiction to cases "in law and equity."  The historical context and the language of this constitution therefore indicate that the framers were not intending to limit the diversity jurisdiction of this court to coincide with the equity jurisdiction of the English Chancery Court in 1789.  This court is empowered to exercise authority in probate matters where, as here, there is an independent basis for jurisdiction.

[1 FSM Intrm. 105]

     A second theory under which United States federal courts might be precluded from exercising jurisdiction in this case is the "complete diversity" rule.  United States federal courts have declined to exercise jurisdiction, despite the fact that two or more adverse parties are not co-citizens, where at least one party on each side of a dispute is from the same state.  Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L. Ed. 435 (1806).

     Interestingly enough, this United States federal court limitation of jurisdiction is also traceable to the Judiciary Act of 1789.  The United States Constitution itself does not require "complete diversity" among the parties in order to trigger United States federal court diversity of citizenship jurisdiction.  State Farm Fire & Casualty v. Tashire, 386 U.S. 523, 531, 87 S. Ct. 1199, 1203-04, 18 L. Ed. 2d 270, 275 (1967); Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 373 n.13, 98 S. Ct. 2396, 2402 n.13, 57 L. Ed. 2d. 274, 282 n.13 (1978).

     The draftsmen of the Federated States of Micronesia Constitution employed diversity jurisdiction language similar to that in the United States Constitution, almost 10 years after the United States Supreme Court had ruled that the United States Constitution's language did not require complete diversity among the parties as a prerequisite for diversity jurisdiction.  Supra, page 103 n.3.  There is no reason to believe that the Federated States of Micronesia

[1 FSM Intrm. 106]

Constitution was intended to establish a requirement of complete diversity.  4

     In addition, there is no statutory limitation in the Federated States of Micronesia similar to the limitations found to exist in the United States Judiciary Act of 1789.  The Federated States of Micronesia Judiciary Act of 1979 plainly contemplates that this court will exercise all of the jurisdiction available to it under the Constitution.  See 4 F.S.M.C. 102.  Accordingly, we find that this court has jurisdiction over these proceedings under Article XI, Section 6(b) of the Constitution of the Federated States of Micronesia.

Abstention to Permit Local Decision
     Despite findings that this court has, and is required to exercise, jurisdiction over this litigation, I find myself somewhat troubled by the point raised by petitioner Suzuki in his memorandum.

[1 FSM Intrm. 107]

     It is true that the framers of the Constitution strove to demarcate between national powers, principally those set out in Article IX of the Constitution, and state and local powers.  It is also plain that the issues in this litigation fall within the areas subject to state powers.

     Article IX, Sections 2 and 3 of the Constitution, delegates various specific powers to Congress.  There is no delegation to the national government of power to establish laws concerning probate of wills, or inheritance.

     A power "not expressly delegated to the national government or prohibited to the states is a state power."  FSM Const. art. VIII, 2.  This is so unless the subject is "of such an indisputably national character as to be beyond the power of a state to control."  FSM Const. art. VIII, 1.

     Nothing about the power to regulate probate of wills or inheritance of property suggests that these are "beyond the power of the state to control." To the contrary, state officials generally should have greater knowledge of use, local custom and expectations concerning land and personal property.  They should be better equipped than the national government to control and regulate these matters.  The framers of the constitution specifically considered this issue and felt that powers of the sort under consideration here should be state powers.

[1 FSM Intrm. 108]

     Committee Proposal No. 21 of the Micronesian Constitutional Convention's Committee on Governmental Functions eventually led to adoption of Article VIII of the Constitution. The committee report plainly confirms that regulation of inheritance and land were to be state powers.

The bulk of the power and legislative authority of government resides in the states.  Most of these powers are reserved exclusively to the states, but some may be exercised concurrently by the national government.  The powers which your Committee contemplates will be reserved to the states include ... [l]and law... [and]... inheritance law ....

II J of Micro. Con. Con. 814; SCREP No. 33 (Oct. 10, 1975).

     The conclusion that the powers to regulate probate, inheritance and land matters are powers of states, rather than the national government, of course does not suggest that this court is without jurisdiction to preside over proceedings involving the exercise of those powers.  The constitution emphasized "powers" in delegating authority to the legislative and executive branches.  FSM Const. art. IX, 2 and art. X, 2.  The allocation of judicialauthority is made on the basis of jurisdiction, generally without regard to whether state, or national, "powers" will be at issue.

     It is common for state courts to consider questions involving national constitutions, and national laws and treaties, although the laws or treaties under consideration could come into effect only through the exercise of national powers granted to the Congress or the national executive branch.  Conversely, federal courts commonly exercise jurisdiction over disputes where state or local issues are involved.

[1 FSM Intrm. 109]

To a considerable extent the courts of our  dual system, federal and state, are working partners.  Because of the diversity grant, the federal courts exercise jurisdiction over cases involving nonfederal matters, and this jurisdiction is quite substantial. On the other hand, the state courts exercise jurisdiction over a great many federal matters, for unless the federal courts are given exclusive jurisdiction, expressly or by implication, over a particular matter, the state courts can exercise jurisdiction and must normally enforce federal rights, in a nondiscriminatory manner, when their courts are competent to do so, as they usually are.

1 Moore's Federal Practice 0.60[l], at 603 (2d ed. 1981) (speaking of United States courts).

     Thus, our finding that the issues between these parties concern matters within the legislative powers of states to regulate does not indicate that this court is without jurisdiction to decide the issues.

     The fact that these are state issues does however suggest that we should be sensitive to the interests of the state in these matters.

     We must face squarely here the truth that if this court were to relinquish jurisdiction in this case, the ironic result would be that the decisionmakers would be less, not more, local.  We have recognized that the constitutional convention journal and the constitution reflect a desire that state and local authorities play a decisive role on issues concerning land, inheritance, and other state or local matters.  In that context our relinquishment of jurisdiction would yield a perverse result.  The constitution anticipates that eventually,where national courts do not have jurisdiction over

[1 FSM Intrm. 110]

particular legal proceedings, those cases will be decided by state courts.  Since the state of Ponape has not yet established its court system however, there are not yet state courts here.  Consequently, this case would fall into a constitutional vacuum.  Until the new state courts contemplated by the constitution are established, the Trust Territory High Court and Trust Territory District Court continue to preside over cases within the Federated States of Micronesia which do not fall within the jurisdiction of this court.

     Under the governing legislation for the High Court system, the Trust Territory District Court in Ponape has no jurisdiction over land matters.  5 T.T.C. 101. Therefore, this litigation would revert to the Trust Territory High Court, whose justices are appointed by the Secretary of the Interior of the United States without approval or power of advice and consent of any officer or legislative body within the Federated States of Micronesia, or any of its states.  Thus, if we were to relinquish our jurisdiction in deference to the desire of the framers of the constitution that local officials should retain control over local matters, our action would instead assure that the least local tribunal still existing within the Trust Territory of the Pacific Islands would be the decisionmaker in this dispute. Plainly, this would not fulfill the intention of the framers of the constitution.

[1 FSM Intrm. 111]
 
     The constitution contemplates that decisions affecting the people of the Federated States of Micronesia will be decided by courts appointed by the constitutional governments of the Federated States of Micronesia.  This in turn requires an expansive reading of our jurisdictional mandate while we await establishment of functioning state courts.

     The dual purpose of the framers of the constitution, to make this court available to litigants where there is diversity of citizenship among the parties and also to provide appropriate decisionmaking control for the states on issues involving inheritance, probate, and interests in land, may be best served here by giving the parties an opportunity to present these questions to the Ponape district court. The judges of that court have not been appointed by constitutional authority within the Federated States of Micronesia, but they are citizens of the Federated States of Micronesia and lifelong residents of Ponape.  If the district court agrees to decide the issues of uniquely local import and certify its decisions to this court for further consideration and implementation, this will assure that local decision makers do play a major part in decisions of a local nature, while this court fulfills its constitutional obligation to make

[1 FSM Intrm. 112]

the final decision.5

     I.  The following questions, involving inheritance, probate, and interest and usage of land, are the issues which the parties may tender to the Ponape district court:

     A.  Were the wills of Jane Nahnsen, dated November 9, 1978, executed in accordance with requirements of the law of Ponape?  Are these wills, or is one of them, (and if one, which one?), valid and enforceable under the law of the State of Ponape?

     B.  If neither of the wills mentioned above is valid to control the distribution of all of the property of the estate of Jane Nahnsen, is some other will previously or subsequently executed by her an enforceable will sufficient under Ponape state law to determine distribution of her estate?

     C.  If there is no valid will:

          1. Who are the heirs of the estate of Jane Nahnsen, deceased? and

[1 FSM Intrm. 113]

          2. What are the rights of the heirs of the estate of Jane Nahnsen?

     II.  To accomplish this procedurally, we take the following steps.

     A.  This court retains jurisdiction of the case but  will abstain from taking any action for forty-five days, so that any party may petition the Ponape district court to seek rulings on the issues identified in this opinion.

     B.  If after the expiration of forty-five (45) days no party has filed such a petition with the Ponape district court, or if at any time the Ponape district court declines to rule on these issues, this court shall immediately reinstitute active proceedings in this litigation.

     C.  If the Ponape district court agrees to rule on those issues but has not done so before expiration of the forty-five (45) day period, this court will continue its abstention from further action in this case, so that the Ponape district court may have ample time to render
its decision.

     The next hearing before this court in this lawsuit will be at 9 A.M., on Tuesday, April 20, 1982.

       So ordered this 2nd day of March, 1982.


                                                            /s/ Edward C. King            
                                                          Chief Justice
                                                          Supreme Court of the Federated
                                                                     States of Micronesia
                                                          Trial Division

Footnotes:
 
 1.  This case was Civil Action No 8-81 in the district court.  Upon transfer to the High Court it was renumbered as 12-18.  We retain the original number, 8-81, in the hope that this will minimize confusion.  (Back to opinion)

 2. My reluctance here is compounded by the fact that earlier statements made by Toshiuki Rudolph, appearing with Lena Rudolph at a pre-trial hearing on September 20, indicated that Mr. Novo-Gradac had represented them but had "withdrawn." Those comments generated a good deal of confusion.  They proved inaccurate. (Back to opinion)

 3. The Constitution of the Federated States of Micronesia, Article XI, Section 6(b), says: "The national courts ... have concurrent original jurisdiction ... in disputes between a state and a citizen of another state, between citizens of different states, and between a state or a citizen thereof, and a foreign state, citizen or subject."

     The United States Constitution, Article III, Section 2 says "The judicial Power shall extend to all Cases, in Law and Equity; ... to Controversies between two or more States;-between a State and Citizens of another State;--between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State or the Citizens thereof, and foreign States, Citizens or Subjects." (Back to opinion)

 4. The complete diversity rule has been roundly criticized by commentators, and even by the courts, in the United States.  See Tashire, 386 U.S. at 531 n.7, 87 S. Ct. at 1204 n.7, 18 L. Ed. 2d at 275 n.7.

     One objection has been that the rule introduces unnecessary technicality into the law, encouraging lawyers and litigants to engage in artificial maneuvers aimed at gaining, or thwarting, federal jurisdiction.  This, it is contended, unjustifiably increases the cost, time and complexity, of lawsuits.

     Others insist that the complete diversity requirement often violates a primary purpose of United States diversity jurisdiction, to protect out of state litigants from biased state courts, for an out-of-state party may have a much different interest in a particular issue or even the entire litigation, than does his co-party whose presence in the lawsuit bars diversity jurisdiction.

     Reputedly, even Chief Justice Marshall frequently expressed regret about his decision in Strawbridge and said that if given another opportunity, he would have decided the issue differently.  Wright, Law of Federal Courts, supra page 103, Section 24. (Back to opinion)

 5. It does not appear that the decisions sought here would violate the jurisdictional limitations of the Ponape district court.  Although the district court opinion would pertain of to an interest in land, this court retains jurisdiction of the adjudication of title to land or any interest therein..." 5 T.T.C. 101 (emphasis added).  For the same reason, the jurisdictional amount limits would not be violated.  Finally, this is an actual case or controversy so any general prohibitions against rendering "premature" or "academic" opinions would be inapplicable.  Nonetheless, the question of the power of the Ponape district court to decide the issues tendered here is a decision for that court to make.  If the district court declines to accept these issues, the entire litigation will revert to this court. (Back to opinion)