THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Soares v. FSM,
4 FSM Intrm. 78 (App. 1989)

[4 FSM Intrm. 78]

GEORGE SOARES,
Appellant,

vs.

FEDERATED STATES OF MICRONESIA,
Appellee.

FSM APPEAL NO. T4-1988

Argued:  June 7, 1989
Decided:  June 21, 1989

Before:
     Hon. Edward C. King, Chief Justice, FSM Supreme Court
     Hon. Soukichi Fritz, Temporary Associate Justice, FSM Supreme Court*
     Hon. C. Guy Powles, Temporary Associate Justice, FSM Supreme Court**

*Chief Justice, Truk State Court, on this Court by designation for this case.
**Former Judge, Western Samoa, on this Court by designation for this case.

APPEARANCES:
For the Appellant:    Michael K. Powell
                                   Chief Public Defender
                                   Office of the Public Defender
                                   Pohnpei, FM  96941

For the Appellee:     R. Barrie Michelsen
                                   Attorney at Law
                                   Ramp and Michelsen
                                   Pohnpei, FM  96941

*    *    *    *

HEADNOTES
Contempt; Prisons and Prisoners
     Except in grave emergencies, the Director of Public Safety or any other executive branch official responsible for the administration of the jail has no inherent or implied power to exercise his own discretion, or to carry out instructions from other nonjudicial officials, in determining whether to release from jail persons ordered to be confined there.  Soares v. FSM, 4 FSM Intrm. 78, 79-80 (App. 1989).

Prisons and Prisoners
     There is necessarily some limited power for a jailer to release prisoners in

[4 FSM Intrm. 79]

the case of a grave emergency to protect lives or property, but the emergency power is narrow, to be exercised only when there is no opportunity to contact the proper authorities.  Soares v. FSM, 4 FSM Intrm. 78, 81 (App. 1989).

Criminal Law and Procedure - Sentencing; Prisons and Prisoners; Separation of Powers
     Although the internal management of a jail or prison is, subject to compliance with constitutional requirements, a function of the executive branch, the legislature controls the overall sentencing scheme through statute.  Soares v. FSM, 4 FSM Intrm. 78, 82 (App. 1989).

Criminal Law and Procedure - Sentencing; Prisons and Prisoners; Separation of Powers
     In the absence of legislative action saying otherwise, it is the sentencing order, not the jailer or any member of the executive branch, which determines whether the prisoner is to be confined, and for how long.  Soares v. FSM, 4 FSM Intrm. 78, 82 (App. 1989).

Criminal Law and Procedure - Sentencing; Prisons and Prisoners; Separation of Powers
     A national senator has no power to release national prisoners confined for violation of laws enacted by the national Congress.  Soares v. FSM, 4 FSM Intrm. 78, 83 (App. 1989).

Criminal Law and Procedure - Sentencing; Prisons and Prisoners; Separation of Powers
     The Joint Law Enforcement Agreement between the State of Truk and the national government in no way affects the ability of a national court to require a jailer who has accepted custody of a prisoner to act in conformity with the sentencing order governing the confinement of the prisoner. Soares v. FSM, 4 FSM Intrm. 78, 84 (App. 1989).

Contempt
     The Judiciary Act of 1979 permits the court to both fine and imprison a person found to be in contempt of court, but does not permit the fine to exceed $1,000.00 or the term of imprisonment to go beyond six months.  Soares v. FSM, 4 FSM Intrm. 78, 84 (App. 1989).

*    *    *    *
 
COURT'S OPINION
EDWARD C. KING, Chief Justice:
     This is an appeal from the trial division of the FSM Supreme Court, where the appellant, George Soares, the Director of Public Safety of the State of Truk, was convicted of contempt of court for releasing from confinement various prisoners who were under jail sentences ordered by the FSM Supreme Court trial division for violation of national law.

     The principal issue is whether, in absence of legislative authorization, the Director of Public Safety or any other executive branch official

[4 FSM Intrm. 80]

responsible for administration of the jail, has inherent power to exercise his own discretion, or to carry out instructions from other nonjudicial officials, in determining whether to release from jail persons ordered to be confined there. We hold that, except in grave emergencies, the jailer has no such inherent or implied power, and that Mr. Soares' actions in releasing from jail persons sentenced for imprisonment constituted contempt of court.

I.  Background
     The evidence indicates that it came to the attention of FSM Supreme Court trial division officials in Truk late 1987 or early 1988 that certain prisoners the court had sentenced to jail confinement were being released from the Truk State jail for periods of time to visit their homes and for other purposes not authorized by the sentencing orders.  George Soares, Truk State Director of Public Safety, was notified of the court's concern about this practice.  By letter dated January 29, 1988, Director Soares wrote to the trial judge, apologizing and promising that "this will never happen again to anyone of my inmates in my custody."

     Reports subsequently reached the court that prisoners were continuing to be released contrary to their sentencing orders.  An investigation was initiated, followed by issuance on September 21, 1988 of an order instructing Mr. Soares to appear before the court to show cause why he should not be held in contempt for the releases of five named prisoners.

     Trial of the contempt charges took place on November 11, 21 and 22, 1988. At the conclusion of the trial the court found Mr. Soares guilty of criminal contempt. Imposition of sentence was deferred subject to conditions that Mr. Soares pay a fine of $1,000.00 and be confined to his home for 30 days.  The record reveals that a few prisoners were being released on continuing basis, a few days at a time, often over weekends.  The releases were essentially for the personal convenience of the prisoners, or other persons, permitting prisoners either to carry out personal chores or private repair projects, or to visit their families.1   Some sporadic efforts were made to place some of those released under some form of custody during some parts of their releases by it is clear that no serious attempt was made to assure that all those released would remain in direct custody and under supervision of police officers at all times.

     It also clear form the record that the releases were not pursuant to any established program placed in effect for the benefit of all prisoners who might meet certain requirements.  Indeed, with the single exception of Mr. Soares' release, there is no suggestion that the prisoners were selected to be released on the basis of any appropriate criteria, such as good conduct in jail, a determination that the releases would be helpful to their rehabilitation, or any finding that they would pose no threat to the

[4 FSM Intrm. 81]

community.2

     Instead, it is apparent that the releases of these five prisoners were in practically every instance purely a product of political pressure, including direct demands, upon Mr. Soares.  There pressures and demands emanated from the Governor and Lieutenant Governor of Truk, and from a national Senator from Truk.

II.  Legal Analysis
     There exist longstanding and well established principles concerning the duties of a jailer.  "The duty of an officer in exercising the mandate of a justicial order in the nature of a commitment is purely ministerial and his power with respect thereto is limited and restricted to compliance with its terms."  Coleman v. State, 482 So. 2d 221, 222 (Miss. 1986).  "The custodian of a prison on receiving a commitment can do only what the commitment orders him to do, that is, receive and safely keep the prisoners so that the prisoner may then be discharged in due course of law."  60 Am. Jur. 2d Penal and Correctional Institutions 22 (1987).

     In cases where a person is committed to prison pursuant to his conviction of a prison offense, the jailer has no discretion (except in case of emergencies) but to obey the warrant of commitment.  He may not rightly consult his own convenience, nor that of a prisoner, and permit   the latter to leave the jail and return thereto at pleasure.  Persons are committed to jail for the purpose    of imposing upon them the penalties they have incurred because of their violations of the law; and it is not for the jailer to remit any part of that punishment.  If sickness or other circumstances should arise which make    it proper to grant the prisoner some indulgences, the  jailer must apply to the proper authorities for permission to grant the same.

Ex parte Shores, 195 F. 627 (D. Iowa 1912).

     The above principles govern unless modified by statute.  As the court in Shores implied, there is necessarily some limited power for the jailer to act in the case of a grave emergency to protect lives or property.  The emergency power is narrow however, to be exercised only when there is no opportunity to contact the proper authorities.  In absence of legislation setting out general procedures for responding to emergencies, the sentencing court is the appropriate authority to approve releases from confinement necessitated by emergencies.  Even in those rare instances, such as a fire at the jail, where

[4 FSM Intrm. 82]

the emergency is of such a grave and immediate nature that the jailer must act without prior approval from proper authorities, he is required to take reasonable steps to assure that the prisoners assigned to him remain under custody and supervision of police officers.

     The sentencing orders of the prisoners released stated either that "the defendant is hereby committed to the custody of the Chief of Police of the State of Truk or his authorized representative for imprisonment," or that the prisoner "is sentenced ... to jail," for designated periods of time.  Provisions for release of some of the prisoners for the employment or other work purposes were spelled out in some of the sentencing orders but no other authority for releases was specified. There is no claim that any of the releases were necessitated by emergency.  It is plain then, that the releases were contrary to the terms of the commitment orders.

Release Demanded By Others.
     Mr. Soares asserts that he did not "intentionally" obstruct justice since his actions were not voluntary but were the product of pressures placed upon him by others.  There is in the record evidence indicating that requests, or demands, for almost all of these releases were initiated by the Governor, the Lt. Governor or an FSM Senator from Truk.  Obviously, one may not act illegally merely because a powerful person has asked him to do so.  Thus the directions given by these persons could serve as a defense only if they had lawful authority to direct him to release prisoners.

     1.  By Executive Branch - The defense correctly notes that the internal management of a jail or prison is, subject to compliance with constitutional requirements, a function of the executive branch.  This does not however lead to the conclusion that anybody within the Truk State executive branch could authorize releases.

      The legislative branch enacts laws identifying actions which may be regarded as criminal and specifying appropriate penalties which may be applied for violations.  When executive branch officials enforce such a statute by charging a person and persuading a judge beyond a reasonable doubt that the charge is a correct one, it is the task of the judge to apply the statute by convicting and sentencing defendant.  In sentencing, the court must act within the sentencing options provided by Congress.  The sentencing order then is not just an isolated judicial act, but is the product as well of legislative policy decisions and executive branch enforcement efforts.

     The legislative branch controls the overall sentencing scheme through statute. The sentencing order, which is the product of the effort launched by Congress through enactment of the statute, limits the options available to the executive branch in controlling a particular prisoner.  In the absence of legislative action saying otherwise, it is the sentencing order, not the jailer or any member of the executive branch, which determines whether the prisoner is to be confined, and for how long.

[4 FSM Intrm. 83]

     In some jurisdictions, there are statutes providing for parole or other forms of release during the period of confinement specified in the sentencing order. Those statutes do permit executive branch officials under specified conditions, to act in manner somewhat at variance with the precise terms of sentencing order. However, there are no such national statutes in the law of the Federated States of Micronesia.3  We conclude that the Truk State executive Branch has no authority to release from confinement national prisoners confined for violations of national law pursuant to national court sentencing orders.

     2.  By National Senators - it hardly needs stating that a national senator has no power to release national prisoners confined for violation of laws enacted by the national Congress.  A senator's power to participate in the enactment of laws is one of the greatest powers available to any official under the Constitution. However, once that power is exercised the law that comes in to existence governs all citizens, including senators.

     3.  Duties of the Director of Public Safety - It is clear then that neither a state executive branch official nor a national senator has power to overrule a sentencing order issued by the national judiciary in response to a violation of national law.  It is equally obvious that Mr. Soares, a police officer since 1952 (Tr. 44), was aware of these elementary truths.

     We can sympathize with Mr. Soares' wish to accommodate the requests, or demands, of powerful political figures that he disregard his responsibilities and permit the release of these people they selected.  However we cannot condone his decision to yield to political pressure and disregard his duty under the sentencing orders.

     It is in the nature of law enforcement work that the fulfillment of duty sometimes requires officers to act in a manner which poses risks to themselves.  A chief of public safety may not justify his release of prisoners consigned to him merely by saying that political pressure was making him uncomfortable or even that he feared for his job.  Citizens are entitled to demand of the chief of their law enforcement agency that he have the integrity and courage to carry out his duty despite personal risk and improper pressures.

Other Contentions.
     The other arguments put forward by Mr. Soares to challenge the finding of contempt do not warrant extended comment.  He contends that our decision in Loch v. FSM (II), 3 FSM Intrm. 234 (App. 1986) implied that the jailer might

[4 FSM Intrm. 84]

have inherent power to grant work release or "furlough" on his own authority and that it is therefore unfair to hold Mr. Soares in contempt for attempting to exercise such powers.  In the first place, the letter written by Mr. Soares on January 29, 1988 leaves no doubt that he understood all along that the releases of the prisoners were improper, and were contrary to the trial court's orders.  Moreover, we were at pains in Loch (II), to point out that we were not deciding anything because no issues were properly before us.  We reject the arguments premised upon that case.

     Similarly, we find without merit the contention that the Joint Law Enforcement Agreement between the State of Truk and the national government pursuant to 12 F.S.M.C. 1201(1) et seq., in any way affects the ability of a national court to require a jailer who has accepted custody of a prisoner to act in conformity with the sentencing order governing the confinement of the prisoner.

Sentencing Limits.
     Finally, we note the defendant's argument that the conditions imposed by the trial court are unreasonable as exceeding permissible sentencing limits under the statute.  This contention is based upon the language of the Judiciary Act of 1979, which says, "A person found to be in contempt of court shall be fined not more than $1,000.00 or imprisoned not more than six months."  4 F.S.M.C. 119(2)(c).

     The defense reads this language, with its disjunctive "or," as permitting a fine or imprisonment, but not both.  We do not agree.  While the language is inartfully drawn, we would loathe to accept the strange interpretation that a defendant could be imprisoned up to six months, or fined up to $1,000.00, but could not be imprisoned for one day and fined ten dollars.  We see no practical consideration in favor or such an interpretation and do not read the language as requiring that result.  Rather, we interpret the word "or" as referring to the two ceilings, emphasizing that neither ceiling may be breached.  The section permits the court to fine and imprison the contemnor, but not to permit the fine to exceed $1,000.00, or the term of imprisonment to go beyond six months.

     Nor do we find the imposition of conditions in this case unreasonable in any other way.  The record reveals a pattern of activities that threatened the underpinnings of the system of justice.  Favored persons were being allowed to avoid the impact of their sentences, while prisoners not so well connected politically were required to comply with the sentencing orders imposed upon them. The introduction of such rank political favoritism into the criminal justice system is calculated to embitter those prisoners left behind because their lack of political connections.

     Even more important is the impact upon the general citizenry.  The sight of political leaders arranging for the release from jail of persons properly confined for homicide or other major crimes inevitably well induced cynicism.  The activities at issue here, then threatened far more than just the criminal

[4 FSM Intrm. 85]

justice system.  These arbitrary and illegal releases placed into question the integrity of leading officials and of the entire system of government of the State of Truk and of the Federated States of Micronesia.

     In this context we find the actions of the trial court in deferring imposition of sentence so that the defendant would not have a conviction on his record, quite compassionate and merciful.  The conditions imposed are within the statute's authorization for sentences and are reasonable.

III.  Conclusion
     The decision of the trial court is affirmed.

     So ordered the 21st day of June, 1989.
 
 

Footnotes:

1.  There is no suggestion that the releases were made pursuant to FSM GCO 1986-3, which authorizes prisoners to be released from jail for public service work programs so ,long as they remain in police custodial supervision at all times.
 
2.  Three of the prisoners, Kirino (Engichy) Otokichy, Cashimiro Engichy and Robert Loch, had been convicted of murder, and a fourth, Kaspar Berry, of manslaughter.  The fifth, Kennedy Este, had been found guilty of unlicensed possession of firearm and attempted criminal coercion.
 
3.  We recognize that the Truk State Charter, article IV, section 6, gives the Governor of Truk power to "grant reprieves, commutations and pardons." That provision is of no relevance to this case for two reasons.  First, there is indication that anybody viewed the actions of the governor or of Mr. Soares as constituting an exercise of those powers.  Second, such powers of a state governor do not extend to prisoners sentenced under national law.