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THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
TRIAL DIVISION-STATE OF PONAPE
Cite asNix v. Ehmes, 1 FSM Intrm. 114 (Pon.1982)

[1 FSM Intrm. 114]

STEVE NIX
Plaintiff

vs.

DELSON EHMES
Defendant

CIVIL ACTION NO. 1981-004

DISMISSAL OF PETITION FOR WRIT OF MANDAMUS

Before Edward C. King
Chief Justice
March 11, 1982
Ponape, Caroline Islands 96941

APPEARANCES:
            For the Plaintiff:               Steve Nix (on his own behalf)

For the Defendant:          Frederick Canover
                                          Chief Litigator
                                          State of Ponape
                                          Ponape, Caroline Islands 96941

[1 FSM Intrm. 115]

     Petitioner Steve Nix was attacked and stabbed, apparently without provocation on October 12, 1980.  There seems no doubt about the identity of his assailant.  Yet, the criminal action against the assailant was dropped one year ago at the request of the prosecution, and the state attorney has refused to prosecute further.  After numerous unsuccessful efforts to persuade the office of the state attorney, Mr. Nix filed this action, seeking a writ of mandamus to require the state attorney to "initiate an appropriate criminal legal proceeding against Gresencio Pelep and such others who may have acted in concert with him.

     The petition is denied.  The facts here are disturbing but this is not one of those rare circumstances where a court may review or overrule the prosecutor's judgment.

[1 FSM Intrm. 116]

Factual Background
     Neither party requested an evidentiary hearing.  We therefore consider this petition on the basis of the affidavits presented by the respective parties.  See FSM Civ. R. 43(e).

     Mr. Nix's affidavit describes the stabbing incident as follows:

... on the evening of October 12, 1980, at 11:00 p.m.,  I was resting in my home when I heard loud noises from across the street.  I went outside and stood in my driveway inside my property line.  Moments later a  young man who had been lying on the ground after suffering a blow from a third person jumped to his feet ran straight toward me as fast as he could, and stabbed me with approximately a 6 inch knife in the side of my chin.  The blade of the knife came out my upper neck, just missing my juglar (sic) vein in the process. Shortly thereafter the assailant, believed to be one Gresencio Pelep, was apprehended with the assistance of some neighbors and escorted to the Ponape State police station.

     Criminal Action 85-80 was filed with the Trust Territory High Court against Gresencio Pelep on October 14, 1980, charging him with assaulting and stabbing Mr. Nix on October 12.  An information was filed on October 14, 1980. The court docket book indicates that the case was dismissed on March 17, 1981, on the prosecutor's motion. 1

     Although originally told that the case would be "taken to court" because of its "severity," Nix Affidavit, para. 4,

[1 FSM Intrm. 117]

and subsequently advised on several occasions that the case would be going to court soon, Mr. Nix was unaware of any activity concerning the case during the year after October, 1980.  When Mr. Nix then inquired of Mr. Ehmes, he was informed that the case had been "dropped" because Mr. Nix had failed to appear to testify pursuant to a summons supposedly served upon Mr. Nix by a police officer.  Id. Para. 1.  There now is no contention that a return shoving service of the summons on Mr. Nix exists, nor does the defendant contend here that service of the summons actually was made on Mr. Nix.  Ehmes Affidavit, paras. 2 and 3. Nevertheless, Mr. Nix insists, and the defendant does not deny, that Mr.  Nix was repeatedly told by Mr. Ehmes that there would be no prosecution of the case because Mr. Nix had "failed to respond to a court issued summons."  Nix Affidavit, para. 10.

     In his affidavit, the defendant states that Case No. 85-80 was dismissed because of the "non-appearance of necessary witnesses."  He does not specify the identity of the witnesses nor assert that they received summons or notice of any kind to appear.  Ehmes Affidavit, para. 2. Instead, the defendant emphasizes in his affidavit and at the hearing in this case that he has declined to reinstate charges because Mr. Nix's assailant, Gresencio Pelep, had sustained a blow immediately before attacking Mr. Nix, and may have been unaware of what he was doing.  Mr. Nix stated that this explanation had never been given to him before the mandamus hearing.

[1 FSM Intrm. 118]

Legal Principles
     Plaintiff cites numerous authorities for the propositions that this court has authority to issue writs of mandamus and that such writs may issue to require the performance of duties placed by law upon public officers.

     There is no doubt concerning either proposition.  Section 16 of the Judiciary Act, 4 F.S.M.C. 117, confirms  the inherent constitutional power of this court to "issue all writs...necessary for the due administration of justice..." This plainly includes the power to issue writs of mandamus, which are common law writs traditionally included within the arsenal of writs issuable by courts in aid of their jurisdiction. See Roche v. Evaporated Milk Assoc., 319 U.S. 21, 63 S. Ct. 938, 87 L. Ed. 1185 (1943).  I also have no hesitancy in agreeing with plaintiff's contention, supported by numerous citations, that the traditional use of writs of mandamus is to compel public officials to perform some clear duty which is ministerial in nature, that is, which is not subject to the discretion or judgment of the official.

     In contrast to plaintiff's support of the preceding axioms, he cites no instances where a writ of mandamus was issued to require a prosecutor to charge an individual with criminal conduct or to prosecute the individual in court proceedings.  Indeed, few courts anywhere have overruled the discretion of a prosecutor in deciding whether or not to prosecute a particular case.

[1 FSM Intrm. 119]

     This is the first application made to this court for an order requiring prosecution.  We must look elsewhere for precedent.  Both the plaintiff and the defendant, in their memoranda, have cited decisions in the United States without discussing their reasons for relying upon decisions of the United State courts. We note that this court is not bound by the decisions of courts in the United States. Nevertheless, we do agree with the apparent assumptions of the parties here that we should give careful consideration to the thinking of courts in the United States in determining our own policy concerning limitations upon prosecutorial discretion.  The people of the Federated States of Micronesia have been governed as part of a United States Trusteeship during the past 35 years, since 1947.  The court system in existence during those years, and also the present courts established pursuant to the Constitution of the Federated States of Micronesia, are modeled upon courts in the United States.  This suggests that we typically should review decisions of courts in the United States in developing policies for the court system here.  There is, though, no reason why counsel or this court should rely exclusively upon precedent from 2 courts within the United States. 2

[1 FSM Intrm. 120]

     That having been said however, we remain relegated to the United States precedent in this case for the reasons already mentioned.  The United States authorities reflect a consensus that the prosecutor's duties require that he exercise a great deal of judgment in determining when to institute criminal proceedings against an individual, and that he must be vested with a great deal of discretionary authority in order to carry out his responsibilities properly.  The result is that:

The prosecutor may well be the most powerful figure in our system of criminal justice.  He has power to determine what investigations to undertake and, in addition to his own staff, typically can call upon the police to carry out investigations looking to prosecution. Generally, he determines whether to charge and what charges to bring and is often able to negotiate a plea of guilty in return for charging less than the maximum.

J. Vorenberg, Criminal Law and Procedure 872 (2d ed. 1981).

     United States Chief Justice (then Circuit Judge) Burger has set out the prevailing view of courts in the United States:

Few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought.

Newman v. United States, 382 F.2d. 479, 480 (D.C. Cir. 1967).

Two persons may have committed what is precisely the same legal offense but the prosecutor is not compelled by law, duty or tradition to treat them the same as to charges.  On the contrary, he is expected to exercise discretion and ... no court has any jurisdiction to inquire into or review his discretion.

Id. at 481-82.

[1 FSM Intrm. 121]

     In United States v. Cox, 342 F.2d 167 (5th Cir.),  cert. denied, 381 U.S. 935, 85 S. Ct. 1767, 14 L. Ed. 2d 700 (1965), a grand jury advised the court of its desire to indict two individuals for perjury and of the refusal of the United States attorney to prepare or sign the indictments. United States Federal District Court Judge Harold Cox ordered the United States attorney to prepare and sign indictments.  On his refusal to do so, the attorney was held in contempt by Judge Cox.  On appeal, the United States Court of Appeals for the Fifth Circuit set aside the finding of contempt, saying:

The judicial power of the United States is vested  in the federal courts, and extends to prosecutions for violations of the criminal laws of the United States. The executive power is vested in the President of the United States, who is required to take care that the laws be faithfully executed. The Attorney General is the hand of the President in taking care that the laws of the United States in legal proceedings and in the prosecution of offenses, be faithfully executed. The role of the grand jury is restricted to a finding as to whether or not there is probable cause to believe that an offense has been committed.  The discretionary power Of the attorney for the United States in determining whether a prosecution. shall be commenced or maintained may well depend upon matters of policy wholly apart from any question of probable cause. Although as a member of the bar, the attorney for the United States is an officer of the court, he is nevertheless an executive official of the Government, and it is as an officer of the executive department that he exercises a discretion as to whether or not there shall be a prosecution in a particular case.  It follows as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions.

Id. at 171.

[1 FSM Intrm. 122]

     In Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375 (2d Cir. 1973), various inmates asked the court to require federal and state officials to investigate and prosecute persons who allegedly had violated various criminal statutes in connection with the treatment of the inmates during and following the Attica prison uprising.  The court noted, at page 379, that

. . . Federal Courts have traditionally and to our knowledge, uniformly refrained from overturning at the instance of a private person, discretionary decisions of federal prosecuting authorities not to prosecute persons regarding whom a complaint of criminal conduct is made.
 
* * *
 
Nor is it clear what the judiciary's role of supervision should be were it to undertake such a review.  At what point would the prosecutor be entitled to call a halt to further investigation as unlikely to be productive? What evidentiary standard would be used to decide whether prosecution should be compelled?  How much judgment would the United States Attorney be allowed?  Would he be permitted to limit himself to a strong "test" case rather than pursue weaker cases?  What collateral factors would be permissible bases for a decision  not to prosecute, e.g., the pendency of another criminal proceeding elsewhere against the same parties? What sort of review should be available in cases like the present one where the conduct complained of allegedly violated state as well as federal laws? See generally, Schwartz, Federal Criminal Jurisdiction and Prosecutor's Discretion, 13 Law & Contempt. Prob. 64 (1948).  With limited personnel and facilities at his disposal, what priority would the prosecutor be required to give to cases in which investigation or prosecution was directed by the court?

These difficult questions engender serious  doubts as to the judiciary's capacity to review and as to the problem of arbitrariness inherent in any judicial decision to order prosecution.  On balance, we believe that substitution of a court's decision to compel prosecution for the U.S. Attorney's decision not to prosecute, even upon an abuse of discretion standard of review and even if limited to

[1 FSM Intrm. 123]

directing that a prosecution be undertaken in good faith, see Note, Discretion to Prosecute Federal Civil Rights Crimes, 74 Yale L.J. 1297, 1310-12 (1965), would be unwise.

     See also Moses v. Kennedy, 219 F. Supp. 762 (D.D.C. 1963), aff'd sub nom., Moses v. Katzenback, 342 F.2d 931 (D.C. Cir. 1965); Massey v. Smith, 555 F.2d 1355 (8th Cir. 1977); United States v. Ojala, 544 F.2d 940 (8th Cir.  1976).

     I confess reservations about the scope and breadth of some of the statements set out above.  The quotations here should not be regarded as adoption of those statements for this court.  Nonetheless, the statements do reveal the consensus of courts in the United States that:

The prosecutor must be allowed to consider whether: "a prosecution will promote the ends of justice, instill a respect for law, and advance the cause of ordered liberty," and to take into account "the degree of criminality, the weight of the evidence, the credibility of witnesses, precedent, policy, the climate of public opinion, timing and the relative gravity of the offense."

Kamisar, LaFave and Israel, Modern Criminal Procedure 913 (1981), quoting from Pugach v. Klein, 193 F. Supp. 630, 63435 (D.D.C. 1961).  See also Smith v. United States, 375 F.2d 243, 247 (5th Cir. 1967).

     In recent years, courts in the United States have recognized that this absolute and unvarying support of the prosecutor in every case can lead to extreme unfairness and injustice.  The basic principle of prosecutorial discretion remains the touchstone, but the courts have imposed some limits upon prosecutorial discretion under certain carefully defined circumstances.  Thus, courts have recognized that

[1 FSM Intrm. 124]

prosecutors may not deliberately discriminate between persons in similar circumstances based upon unjustifiable standards such as race, religion, or other arbitrary classification. United States v. Sacco, 428 F.2d 264 (9th Cir. 1970); United States v. Alarik, 439 F.2d 1349 (8th Cir. 1971).  See also Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886).  Similarly, distinctions in treatment calculated to chill free speech or other rights guaranteed by the constitution may be considered "inherently suspect" and subjected to particular scrutiny.  United States v. Falk, 479 F.2d 616, 620-21 (7th Cir. 1973) (en banc); United States v. Steele, 461 F.2d 1148, 1152 (9th Cir. 1972). A prosecutor may also be required to alter course where the evidence reveals a "realistic likelihood of `vindictiveness.'" Blackledge v. Perry, 417 U.S. 21, 27, 94 S. Ct. 2098, 3012, 40 L. Ed. 2d 628, 634 (1974).  There surely are disturbing elements here.  It seems that a serious crime may have been committed.  The state attorney's office apparently thought so at one time for it initiated criminal proceedings against Mr. Nix's alleged assailant.  Then, without any stated reason, the same office of the state attorney simply terminated the prosecution some 6 months later.

     Especially distressing is the absence of any plausible explanation to Mr. Nix. Until he filed this lawsuit, he was told only that the criminal case had been dropped because of his own failure to appear at the time for which he had been summoned. Yet, this explanation can hardly be viewed seriously

[1 FSM Intrm. 125]

since:  (1)  Mr. Nix consistently has said he was not notified of the hearing; (2) there is nothing in the Trust Territory High Court file indicating notice was given to Mr. Nix; (3) the police have no record of any such notice; and (4)  the defendant has now abandoned that explanation in these court proceedings.  Basic humanity, and fundamental notions of good government, demand that a man almost killed in an unprovoked attack where his apparent assailant is known receive a reasonable explanation for prosecutorial inaction.

     Yet those facts, disquieting as they are, do not furnish a sufficient basis for this court to override the prosecutor's range of authority and judgment.  Mr. Nix has not contended that the defendant is motivated by malice or vindictiveness. There is no suggestion that Mr. Nix is being discriminated against on the basis of his race, nationality, sex, or any other arbitrary classification.  We also see no reason to believe that refusal or failure to prosecute Gresencio Pelep is aimed at preventing Mr. Nix from exercising his constitutional rights.

     It is significant too that the defendant has now offered an explanation for terminating the prosecution.  Although it is difficult to accept the disparity in the explanations of the state attorney before and after the petition here was filed, the explanation now relied upon by the defendant is credible.  If indeed Gresencio Pelep was stunned at the time of the assault and was therefore unaware of his actions, he could not be held criminally liable for those actions. W. LaFave & S. Scott, Criminal Law 195-98 (2d ed. 1972).  This

[1 FSM Intrm. 126]

in turn suggests that the defendant's refusal to act was based upon his sound discretion acting in good faith rather than upon corrupt motives or influences, or popular prejudice or mere conformity to a general sentiment of the people living within the area.  See Annot. 66 A.L.R.3d 732 (1975); 21 Am. Jur. 2d Criminal Law   514 (1981).

Conclusion
     The defendant has offered a plausible reason, the accused's possible lack of awareness of what he was doing when he attacked Mr. Nix, for refusal to prosecute. A state attorney is necessarily given wide discretion to determine, whether to prosecute and this determination should be overruled only in the most extraordinary circumstances.

     For these reasons, the petition for writ of mandamus is denied and dismissed.

     So ordered this 11th day of March, 1982.


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

Footnotes:
 
 1. We take judicial notice of the fact that the defendant did not become state attorney until January, 1981.  Dickson Santos was the acting state attorney when case No. 85-80 was filed in October, 1980.  Mr. Ehmes was state attorney in March, 1981, when the state attorney's office moved for dismissal of the case, and he has held that position since then. (Back to opinion)

 2. Admittedly, libraries throughout the Federated States of Micronesia contain reports of decisions from the United States and few or no reports of courts in other jurisdictions.  However, we urge acquisition of case reports from other jurisdictions, particularly others in the Pacific.  As a general matter counsel should attempt to point out to the court options which might be available from jurisdictions other than the United States. (Back to opinion)