FSM SUPREME COURT
TRIAL DIVISION
Cite as In Re Ripen Ress,
5 FSM Intrm. 273 (Chk. 1992)

[5 FSM Intrm. 273]

IN THE MATTER OF
RIPEN RESS,
A minor.

FSM JUV. 1991-1200

OPINION
 
Richard H. Benson
Associate Justice
FSM Supreme Court
March 4, 1992
 
[5 FSM Intrm. 274]

APPEARANCES:
For the Government:     Caroline Pankove
                                        Assistant State Attorney
                                        Chuuk State Government
                                        Weno, Chuuk  FM 96942

For the Juvenile:            John Brackett
                                        Attorney at Law
                                         Kolonia, Pohnpei  FM 96941

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HEADNOTES
Constitutional Law; Jurisdiction; Criminal Law
     The intent of the Constitutional Convention is that major crimes, as defined by Congress and committed prior to voter ratification, fall within the jurisdiction of the national government and may be prosecuted pursuant to the national law after the effective date of the amendment.  In re Ress, 5 FSM Intrm. 273, 276 (Chk. 1992).

Constitutional Law; Jurisdiction; Criminal Law
     The national court should not abstain from deciding a criminal case where the crime took place before the effective date of the 1991 amendment removing federal jurisdiction over major crimes because of the firmly expressed intention by the Constitutional Convention delegates as to the manner of transition from national jurisdiction to state jurisdiction.  In re Ress, 5 FSM Intrm. 273, 276 (Chk. 1992).

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COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     This matter came before me on February 10, 1992 on the motion of the minor for an order dismissing the petition in delinquency, or in the alternative, for an order that I abstain.  At the close of oral argument, I denied the motions.  This memorandum briefly sets out my reasons.

     The minor comes before the court on a petition in delinquency filed July 26, 1991.  The petition alleges an offense occurring on November 3, 1990.
 
     As to the motion to dismiss, the minor contends that the court does not have the authority to try the case.  He relies on the amendment to the FSM Constitution ratified July 2, 1991, which removed from Congress the power to define major crimes.  FSM Const. art. IX, 2(p).  The minor stresses the purpose of the amendment, as expressed in the proposal before the

[5 FSM Intrm. 275]

Constitutional Convention of 1990, to remove major crimes from the jurisdiction of the national government.  The goal was for the states to exercise the criminal jurisdiction then exercised by the FSM Supreme Court.  The purpose of the amendment is uncontested; the issue before me is the framers' intent regarding the transition from a system of national major crimes to a system of exclusive state jurisdiction over major crimes.  I turn to review the history of the amendment because of the ambiguity stemming from the deletion of "major" from and the insertion of "national" in the instant Constitutional provision; the provision is silent as to the issue of transition.

     The amendment, proposal 90-13, was to change art. IX, 2(p) by changing the word "major" to "national", and thus "(p) to define national crimes and prescribe penalties, having due regard for local custom and tradition."

     The history of the proposal is clear as to the transition intended.  On August 26, 1990 the proposal was withdrawn from final reading and returned to committee for consideration of amending the proposal to provide for implementation.  J. of FSM Con. Con. 1990, 618, 619.

     On August 27, 1990, the Committee on Governmental Structure and Functions met.  Two draft committee reports had no amendments, that is, the report which did not have a specific provision for transition.  The report was to be given to the Constitutional Convention orally by the chairman of the committee.  See, Summary Minutes of the Committee for August 27, 1990, dated August 28, 1990, which reflect the committee's discussion regarding when state jurisdiction over major crimes would be phased in or become effective.

     On August 29, the chairman made the report to the Convention in plenary session.  He stated,

Your committee has concluded that no additional amendments to the proposal are required, but certain understandings and intentions must be stated for the record.
     . . .

The national government will not have jurisdiction over major crimes committed on or after that date [of the ratifying vote].  Instead, state criminal laws will apply to all such crimes.
                 . . .

[T]he national government will have jurisdiction over major crimes committed until the day the amendment is ratified by the people and becomes a part of our Constitution.  In other words, persons may be

[5 FSM Intrm. 276]

prosecuted for major crimes defined by Congress that occur before the effective date of the proposed amendment, even though the prosecution takes place after the effective date.

J. of FSM Con. Con. 1990, 744.

     The oral report was adopted by the Convention.  Id. at 747.

     Afterwards the proposal was passed unanimously on second and final reading.  Id. at 762-63.

     That the Constitutional Convention specifically expressed its intention is clear: major crimes as defined by Congress and committed prior to voter ratification fall within the jurisdiction of the national government and may be prosecuted pursuant to the national law after the effective date of the amendment.  That is the situation in the present case.  I therefore conclude that the motion to dismiss cannot be granted.

     The minor's alternative motion that I abstain is based on the same contention: since the purpose of the amendment is to divest this court of criminal jurisdiction (except as to post amendment "national crimes), abstention would be proper in recognition of this policy and the policy of avoiding the disruption of the balance of national and state relations.

     In applying the same reasoning employed above, again I examine the intent of the Constitutional Convention and must deny the motion to abstain.  Prior to the amendment it was an unquestioned national policy that this court exercise major crimes jurisdiction.  On July 2, 1991, the change of this policy which terminated this jurisdiction was ratified.  However there was a firmly expressed intention by the Convention delegates as to the manner of transition from national jurisdiction to state court jurisdiction.  That intention is set forth above.

     Given the Convention's express considerations, it would be unwarranted and unjustifiable for me to disregard this transition intention and be governed only by the overall purpose of the amendment.

     Based on these considerations, the motions are denied.

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