THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Tammow v. FSM, 2 FSM Intrm. 53 (App. 1985)

[2 FSM Intrm. 53]

JAY TAMMOW,
Appellant,

vs.

FEDERATED STATES OF MICRONESIA,
Appellee.

APPEAL Y1-1984
(From FSM v. Tammow, Crim. 1982-3525,
Yap, Benson, J., Decided August 30, 1983

OPINION
Argued February 26, 1985
Decided July 23, 1985

Before:
     Hon. Edward C. King, Chief Justice, FSM Supreme Court;
     Hon. Janet Weeks, Judge, Superior Court of Guam;*
     Hon. Mamoru Nakamura, Chief Justice, Supreme Court of the
          Republic of Palau*

     *Designated Temporary Justice for FSM Supreme Court

APPEARANCES:
     For the Appellant:          Theodore R. Mitchell
                                             Attorney-at-Law
                                             Colonia, Yap 96943

     For the Appellee:          Carl V. Ullman
                                             Chief, Division of Litigation
                                             Office of the Attorney General
                                             Kolonia, Pohnpei 96941

[2 FSM Intrm. 54]

HEADNOTES
Constitutional Law-interpretation
     Where the framers of the < U >FSM Constitution have borrowed phrases from the Constitution of the United States for guidance, it may be presumed that those phrases were intended to have the same meaning given to them by the Supreme Court of the United States.  Tammow v. FSM, 2 FSM Intrm. 53, 56-57 (App. 1985).

Constitutional Law-interpretation
     Interpretative efforts for a clause in the FSM Constitution which has no counterpart in the United States Constitution must begin with recognition that such a clause presumably reflects a conscious effort by the framers to select a road other than that paved by the United States Constitution. The original focus must be on the language of the clause.  If the language is inconclusive the tentative conclusion may be tested against the journals of the Micronesian Constitutional Convention and the historical background against which the clause was adopted.Tammow v. FSM, 2 FSM Intrm. 53, 57 (App. 1985).

Major Crimes; Custom and Tradition
     TheMajor Crimes Clause</U> with its admonition to Congress to have due regard for local custom and tradition, unmistakably reflects awareness of the framers that Congress would be empowered under this clause to regulate crimes that would require consideration of local custom and tradition.  Tammow v. FSM, 2 FSM Intrm. 53, 57 (App. 1985).

Constitutional Law-interpretation
     Interpretations of theFSM Constitution which strip constitutional clauses of substance and effect run against the norms of constitutional interpretation and are greatly disfavored.  Tammow v. FSM, 2 FSM Intrm. 53, 57 (App. 1985).

Constitutional Law-interpretation; Major Crimes
     Departure from the form of the United States Constitution reveals an intention by the framers of theFSM Constitution to depart from the substance as well, so far as major crimes are  concerned. Tammow V. FSM, 2 FSM Intrm. 53, 58 (App. 1985).

Federalism; Major Crimes
     Major crimes obviously were not viewed by the framers as simply a local or state problem. TheMajor Crimes Clause undoubtedly reflects their judgment that the very integrity of this new nation could be threatened if major crimes could be committed with impunity in any part of the nation, with the national government forced helplessly to stand aside.  Tammow v. FSM, 2 FSM Intrm. 53, 58 (App. 1985).

Federalism; Major Crimes
     The framers of the Constitution stipulated that the line for determining

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whether a crime is major be drawn on the basis of severity or gravity of the crime rather than by reference to principles of federalism developed under the Constitution of the United States. Tammow v. FSM, 2 FSM Intrm. 53, 58 (App. 1985).

Constitutional Law-national/state power; Major Crimes
     The scope of state police powers under theFSM Constitution must be determined by reference to the powers of the national government under theMajor Crimes Clause. It follows that legitimate exercise of the national government power to define major crimes can not be viewed as an unconstitutional encroachment upon the police powers of the states.  Tammow v. FSM, 2 FSM Intrm. 53, 59 (App. 1985).

Constitutional Law-interpretation
     General principles gleaned from an entire constitution and constitutional history may not be employed to defeat the clear meaning of an individual constitutional clause.  Tammow v. FSM, 2 FSM Intrm. 53, 59 (App. 1985).

Major Crimes; Federalism
     The members of the Micronesian Constitutional Convention obviously did not believe theMajor Crimes Clause was improperly at odds with their general view that governmental power should be less centralized under the FSM Constitution than it had been in Trust Territory days.  Tammow v. FSM, 2 FSM Intrm. 53, 59 (App. 1985).

Major Crimes
     The precise line to be drawn in defining major crimes is to be determined by Congress.  The policy determined in the Constitutional Convention was that the major-minor crimes distinction be based on the severity of the crime; and that local custom be taken into account.  Tammow v. FSM, 2 FSM Intrm. 53, 60 (App. 1985).

*        *        *        *

COURT'S OPINION
MAMORU NAKAMURA, Designated Associate Justice:
     Jay Tammow was charged and, by his guilty plea, convicted of aggravated assault under 918 of the National Criminal Code, 11 F.S.M.C. 901-953. Tammow now appeals his conviction on the ground that the National Criminal Code is in violation of the Constitution of the Federated States of Micronesia.  For the reasons stated below, we affirm the conviction.

I.
     The Government filed an information on January 13, 1983 charging Tammow with the offense of aggravated assault under 11 F.S.M.C. 918.  On June 9,

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1983, Tammow filed a motion to dismiss for lack of jurisdiction arguing the unconstitutionality of the Code.  At the close of the hearing on the motion on August 24, 1983, the trial division, the Honorable Richard Benson presiding, orally denied the motion.  Following Tammow's entry of a guilty plea, a judgment of conviction was entered on August 30, 1983.  Immediately following the entry of judgment, Tammow filed a motion in arrest of judgment, again attacking the constitutionality of the Code; this motion was denied from the bench following a hearing on August 31, 1983.  Tammow timely filed his notice of appeal.

II.
     The National Criminal Code, Public Law No. 1-134, 11 F.S.M.C. 901-953, was enacted by the First FSM Congress pursuant toArticle IX, Section 2(p) of the FSM  Constitution which identifies as "expressly delegated" to Congress, the power "to define major crimes and prescribe penalties, having due regard for local custom and tradition."

     In the National Criminal Code, the FSM Congress defined "major crimes" as "all crimes which are punishable by imprisonment for a period of three years or more." 11 F.S.M.C. 902(1).  1   It is this definition, as well as the prescription of punishments for the defined crimes, that Tammow challenges as beyond the constitutional authority of Congress.

     On his appeal, as well as on the motions below, Tammow presents one argument: the FSM Congress has no authority to define and punish criminal activity unless it is related to the kind of activity identified as "national" under United States constitutional interpretation.  Skirting the language of theMajor Crimes Clause itself, Tammow asks us to prohibit the FSM Congress from defining major crimes in the manner that it has.  This request is made principally on the basis that actions of the FSM Congress run counter to notions of federalism under the law of the United States, which he considers to be inherent in the Constitution of the Federated States of Micronesia.  He also argues that the broad congressional definition runs counter to the intent of the framers of the Constitution to provide for decentralization of government.

III.
     The nature of the issue before the Court requires us to till new ground.  In the past this Court has had several opportunities to establish guidelines on the interpretation of language adopted from the Constitution or laws of the United States.  We have recognized that the framers of theFSM Constitution drew upon the Constitution of the United States. "[I]t may be

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presumed that phrases so borrowed were intended to have the same meaning given to them by the Supreme  Court of the United States."  Jonas v. FSM, 1 FSM Intrm. 322, 327 n.1 (App. 1983).  See alsoLudwiq v. FSM, 2 FSM Intrm. 27, 35 (App. 1985); Andohn v. FSM, 1 FSM Intrm. 433, 441 (App. 1984),Lonno v. Trust Territory (I), 1 FSM Intrm. 53, 69-70 (Kos. 1982).

     Here, however, both parties agree that theMajor Crimes Clause is not borrowed from the United States Constitution but was specifically crafted by the framers for the FSM Constitution.  We may not approach this clause with a presumption that interpretation of the United States Constitution by United States Courts will yield a correct result.  Instead, we must recognize that such a clause presumably represents a conscious effort by the framers to select a road other than that paved by the United States Constitution.  Our interpretative efforts here then must focus on the language of the clause.  If the language is inconclusive our tentative conclusion may be tested against the journals of the Micronesian Constitutional Convention and the historical background against which the clause was adopted.

IV.
     The language of the Major Crimes Clause simply does not support Tammow's wish that the power of Congress "to define major crimes and prescribe penalties" be limited to crimes which would be regarded as having "national" character under United States law.  Had the intent of the framers been as Tammow suggests, there surely would have been limiting language.  Yet the power is extended to "major crimes" without reservation.  There is no whisper or hint in the clause that the scope of Congressional power to define and penalize crimes is to be measured by reference to whether the crimes defined are "national," "of a national character" or "affect the operation of the national government."

     Instead, the Major Crimes Clause, with its admonition to Congress to have "due regard for local custom and tradition," unmistakably reflects awareness of the framers that Congress would be empowered under this clause to regulate crimes that would require consideration of local custom and tradition.

     Tammow quite accurately admits that his interpretation would render the Major Crimes Clause "merely declaratory of the authority which the national government has in any event."  Brief for Appellant at 17.  This in itself is a compelling argument against the result he seeks. Interpretations which strip constitutional clauses of substance and effect run against the norms of constitutional interpretation and are greatly disfavored.

     Moreover, Tammow's interpretation would furnish no explanation for the existence of the Major Crimes Clause.  Had the intention been, as Tammow urges, to follow United States notions concerning the proper range of Congressional power to enact criminal prohibitions, then surely the framers would have followed the United States pattern to achieve that result.  In that

[2 FSM Intrm. 58]

event, there would have been no Major Crimes Clause in the FSM Constitution. This departure from the form of the United States Constitution reveals an intention to depart from the substance as well, so far as major crimes are concerned.

     Tammow's fundamental error is his assumption that major crimes do not invoke national interests.  He, is strangely confident that one can, indeed must, determine the breadth, of state police powers and national powers concerning crimes by exclusive reference to decisions of United States courts interpreting the United States Constitution.

     The language of the clause mandates the conclusion that the framers of the Constitution simply did not share Tammow's assumptions, or accept United States principles, concerning whether there is a national interest ill preventing crimes.  The drafters pointedly did  not use Tammow's word "national" as the guide for determining the reach of Congressional power concerning crimes.  Instead, they stipulated that the line be drawn on the basis of whether a crime is "major."

     Tammow's approach would have us ignore the fact that the Major Crimes Clause is itself a plain and direct constitutional statement that there is a national interest in preserving law and order throughout the Federated States of Micronesia.  Major crimes obviously were not viewed by the framers as simply a local or state problem. The Major Crimes Clause undoubtedly reflects their judgment that the very integrity of this new nation could be threatened if major crimes could be committed with impunity in any part of the nation, with the national government forced helplessly to stand aside.

     There can be no doubt that the committee which proposed the Major Crimes Clause to the Micronesian Constitutional Convention expected the scope of Congressional powers to be determined on the basis of the severity or gravity of the crime rather than by reference to principles of federalism developed under the Constitution of the United States.  The Committee on Governmental Functions wrote of the clause:

Your Committee feels that a rational, clear-cut distinction between the authority of the national government and that of the state governments ought to be made in the area of criminal law and that the distinction ought to be based on the severity of the crime.  Your Committee also feels that the national government ought to take local custom into consideration in legislating regarding crimes.  Your Committee has therefore provided that the national government should have authority over major crimes, should be empowered to distinguish between "major" and "minor" crimes and that in enacting such legislation should take local custom into account.

SCREP No. 33, II J. of Micro. Con. Con. 819 (emphasis added).

[2 FSM Intrm. 59]

     In the face of this clear language in the Constitution and constitutional history of the Federated States of Micronesia, it is of no import to us that the framers of the United States Constitution some 200 years ago assessed differently the relationship between crime and national integrity.

     As a corollary, the scope of state police powers Under this Constitution must be determined by reference to the powers of the national government under the Major Crimes Clause.  It follows that legitimate exercise of the national government power to define major crimes can not be viewed as an unconstitutional encroachment upon the police powers of the states.

V.
     In the light of our conclusion that there is no ambiguity in the clause itself, Tammow's other arguments warrant little discussion.

     His contention that the clause centralizes power excessively is essentially a repetition of his federalism arguments and must fall for the same reasons.  General principles gleaned from an entire constitution and constitutional history may not be employed to defeat the clear meaning of an individual constitutional clause.

     This is so, of course, because the same drafters and convention members who expressed the general principles are the ones who adopt the specific clauses.  The members of the Micronesian Constitutional Convention obviously did not believe the Major Crimes Clause was unnecessarily or improperly at odds with their general view that governmental power should be less centralized under the FSM Constitution than it had been in Trust Territory days.

     Tammow fails to recognize that the members of the constitutional convention had various goals and concerns.  They were not driven by just one all-consuming governmental principle.  Thus, when they thought about federalism they did not set out to imitate the United States system in every detail. Nor did they strive for maximum decentralization at all costs.

     The overriding goal was not decentralization or a particular form of federalism, but a Constitution which would enable the people of Micronesia to exercise their inherent sovereignty in order to implement the "common wish to live together in peace and harmony, to preserve the heritage of the past, and to protect the promise of the future."  FSM Const. Preamble.   Thus the founders made distinctions, striving to apply general governmental principles derived from other systems to specific Micronesian issues, in measured, balanced fashion.

     When they considered land, for example, they were in agreement that the centralized Trust Territory system of land management, with exclusive jurisdiction over land matters in the Trust Territory High Court, was inappropriate.

[2 FSM Intrm. 60]

     Accordingly, a great deal of emphasis was placed on the development of a new system under which land disputes could be resolved at the state level.  See SCREP No. 36, II J. of Micro. Con. Con. 858:  "Land has received considerable attention at this Convention"; II J. of Micro. Con. Con. 848:  "[L]and matters should be dealt with wholly on the district levels."  Under the Constitution, power over land laws and inheritance law was reserved to the states and the power of state courts to exercise jurisdiction over matters affecting land is clear.  SCREP No. 33, supra, at 814.  This Court's trial division has been scrupulous in acting to assure that state decisionmakers are given the opportunity to resolve land issues.  See Etpison v. Perman, 1 FSM Intrm. 405 (Pon. 1984) (public land issue remanded to Pohnpei Public Land Authority for decision); In re Nahnsen, 1 FSM Intrm. 97 (Pon. 1982) (land and inheritance issues tendered to Ponape District Court).

     In striking contrast to the convention's extended consideration of the need for state control over land issues, the constitutional journals are devoid of criticism of the centralized Trust Territory system of criminal justice.  In this area, there was no felt need expressed to correct systemic defects which had become apparent under the Trust Territory Government.  The adoption of the Major Crimes Clause was therefore not inconsistent with the wish of the founders to correct what they had seen as inappropriate and excessive centralization of powers in the Trust Territory Government.

VI.
     In light of our interpretation of the Major Crimes Clause, there is no doubt as to the constitutionality of the National Criminal Code's prohibition of aggravated assault, a crime of which Tammow is admittedly guilty.  11 F.S.M.C. 918.  So long as the contents of the clause are not violated, the precise line to be drawn in defining major crimes is to be determined by Congress.  In reporting out the proposed National Criminal Code, the Judiciary and Governmental Operations Committee of the First Congress said, "The policy determined in the Constitutional Convention was that the major-minor crime distinction be based on the severity of the crime; and that local custom be taken into account.  The subject bill honors that policy."  SCREP No. 1-299, J. of 1st Cong., 4th Reg. Sess. 282 (1980).  We agree.

VII.
     In conclusion, we find that the grant to the national government under Article IX, Section 2 of the authority to define and prescribe punishment for major crimes is not limited to crimes of some uniquely national character.  Rather, the language of the Crimes Clause, its context within the Constitution, the reports of the Constitutional convention and the historical experience against which the nation emerged together support the interpretation that the FSM Congress would have power to regulate major "common law" crimes as well as those crimes of a uniquely national character.  Accordingly, the National Criminal Code does not run afoul of Congress' authority in this area and the conviction below is AFFIRMED.

Footnote:
 
 1.  In addition, 11 F.S.M.C. 902(2) further defines "major crimes" to include property offenses involving monetary losses exceeding $1,000; however that subsection is not relevant to this appeal. (Back to opinion)