FSM SUPREME COURT
TRIAL DIVISION
Cite as Berman v. FSM Supreme Court (I),
5 FSM Intrm. 364 (Pon. 1992)

[5 FSM Intrm. 364]

MARY KATHLEEN BERMAN,
Plaintiff,

v.

FSM SUPREME COURT,
Defendant.
 
FSM CIV. 1991-053

OPINION
 
Before Richard H. Benson
Associate Justice
Trial:  June 26, 1992
Decided:  August 28, 1992

APPEARANCES:
For the Plaintiff:          pro se

For the Defendant:     Douglas Juergens, Esq.
                                     Chief of Litigation
                                     Office of the Attorney General
                                     P.O. Box PS-105
                                     Palikir, Pohnpei  FM 96941

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HEADNOTES
Constitutional Law - Due Process; Constitutional Law - Equal Protection
     Aliens are persons protected by the due process and equal protection clause of the Constitution.  Berman v. FSM Supreme Court (I), 5 FSM Intrm. 364, 366 (Pon. 1992).

Constitutional Law - Due Process
     Employment opportunity is a liberty interest protected by due process. Berman v. FSM Supreme Court (I), 5 FSM Intrm. 364, 366 (Pon. 1992).

Immigration
     A rule that treats aliens unequally to citizens involves immigration and foreign affairs.  Berman v. FSM Supreme Court (I), 5 FSM Intrm. 364, 366 (Pon. 1992).

[5 FSM Intrm. 365]

Attorney, Trial Counsellor and Client; Constitutional Law - Equal Protection
     Congress and the President respectively have the power to regulate immigration and conduct foreign affairs while the Chief Justice may make rules governing the admission of attorneys. Therefore a rule of admission that treats aliens unequally, promulgated by the Chief Justice, implicates powers expressly delegated to other branches.  Berman v. FSM Supreme Court (I), 5 FSM Intrm. 364, 366 (Pon. 1992).

Constitutional Law - Equal Protection; Separation of Powers
     Without a rational valid basis for the rule limiting the number of times an alien may take the bar exam it will be held unconstitutional even if it would be constitutional if the regulation were made by Congress or the President.  Berman v. FSM Supreme Court (I), 5 FSM Intrm. 364, 367 (Pon. 1992).
 
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COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     The plaintiff alleged that the provision in the rule of admission to practice which limited an alien's right to take the written examination to three examinations in a five year period violated the Constitution.  She sought a declaratory judgment and damages.  This memorandum sets forth the reasons why I denied the defendant's motion that I amend my earlier order denying its motion to dismiss for failure to state a cause of action.  It also sets forth my reasons for granting a partial judgment giving declaratory relief to the plaintiff following the trial in the matter.

     Both the motion that I amend my order, and the trial were heard on June 26, 1992. After the conclusion of both the arguments on the motion and testimony and arguments in the trial the matters were submitted for decision.  I have carefully considered the written and oral arguments in support of and in opposition to the motion and to the conclusion of law.  I have separately entered my findings and conclusion, and entered my denial of the motion to amend.

     The issue presented is one of law to determine whether the rule of admission which limits a non-citizen to the taking of three written examinations within a five year period violates the equal protection clause of the FSM Constitution.

     These are the findings of fact entered after the trial:
 
     1.  The plaintiff is a citizen of the United States.

     2.  The plaintiff is married to a citizen of the Federated States of Micronesia, and is a resident of Pohnpei.

[5 FSM Intrm. 366]

     3.  The plaintiff has taken one part of the FSM bar examination three times and has failed to pass it.

     4.  Rule II(D) of the FSM Rules for Admission to Practice provides that non-citizens may not take the bar examination more than three times in any five year period.

     Under the rule of admission at issue, the non-citizen resident of the Federated States of Micronesia is not treated the same as the citizen applicant for admission. Article IV, section 3 of the FSM Constitution provides:  "A person may not be deprived of life, liberty, or property without due process of law, or be denied the equal protection of the laws."

     The parties agree that an alien is a person within the meaning of the  above passage. The defendant states, correctly I believe, that an employment opportunity is a liberty interest protected by due process. See Hampton v. Mow Sun Wong, 426 U.S. 88, 102, 96 S. Ct. 1895, 1905, 48 L. Ed. 2d 495, 508 (1976).  Equal protection "means the protection of equal laws . . . that those similarly situated must be similarly treated."  SCREP No 23, II J. of Micro. Con. Con. 796.

     In Gilmete v. FSM, 4 FSM Intrm. 165, 168, 169 (App. 1989) the court observed that the equal protection clause is patterned after the provision in the Constitution of the United States.  When such a borrowing has occurred we have presumed that those phrases are to have the same meaning as given them by the Supreme Court of the United States.  Tammow v. FSM, 2 FSM Intrm. 53, 56-57 (App. 1985).

     The rule in question, by treating aliens unequally to citizens, involves immigration. Under the rule, the alien citizen's opportunity to take the written examination is curtailed.

     The rule in question also affects foreign relations in that foreign countries are interested in the way in which its citizens are treated, and this may color relations between our country and others.  Cf. Hampton, 426 U.S. at 104, 96 S. Ct. at 1905, 48 L. Ed. 2d at 509 (suggesting that an exclusion of aliens from work opportunities may affect treaty negotiations by giving the executive a concession it can make to achieve reciprocal concessions).

     The Constitution delegates to Congress the power to regulate immigration. FSM Const. art. IX, 2(c).  The Constitution delegates to the President the power to conduct foreign affairs.  FSM Const. art. X, 2(b).

     The Chief Justice, as the Constitution provides, may be rule govern the admission to practice.  FSM Const. art. XI, 9(e).  Pursuant to this grant the Chief Justice made and published Rules for Admission to Practice, one portion of which contains the provision at issue.  The provision implicates powers expressly delegated to other branches.  The defendant has not stated any findings which made it necessary to issue the provision in order to properly and appropriately govern admission.  Cf. Hampton, 426 U.S. at 103, 96 S. Ct. at 1905, 48 L. Ed. 2d at 509 ("If the agency which promulgates the rule has direct responsibility for fostering or protecting that interest [justifying a discriminatory rule], it may reasonably be presumed that the asserted interest was the actual predicate for the rule.  That presumption

[5 FSM Intrm. 367]

would, of course, be fortified by an appropriate statement of reasons identifying the relevant interest.")  See also id. at 115, 96 S. Ct. at 1911, 48 L. Ed. 2d at 515 as to the failure of the Civil Service Commission to make known its reasons for the exclusion.

     The defendant contends that since the Constitution provides that "[j]udicial rules may be amended by statute," FSM Const. art. XI, 9(f), Congress' failure to amend the provision in question is a ratification of the provision.  The defendant continues (as I understand the argument) by contending that since the grant of power to make rules comes from the Constitution, and the rule has been ratified, the provision is an act of the national government itself, valid if any rational basis for its enactment exists.

     The last part of the defendant's argument rests upon settled United States law that in the areas of foreign relations, immigration, and others, entrusted to the legislative and executive branches, there is a very narrow standard of judicial review.  Mathews v. Diaz, 486 U.S. 67, 81 n.17, 96 S. Ct. 1883, 1892 n.17, 48 L. Ed 2d 478, 491 n.17 (1976).

     The difficulty with the defendant's argument is that Congress cannot, by failing to amend, ratify the provision which is not, as I conclude, within the rule making authority of the Chief Justice.

     This case thus presents a problem analogous to the issue in Hampton, supra. In that case the Civil Service Commission (an agency established by statute) by regulation limited federal employment to citizens.  The regulation had been in effect almost 100 years, and so both political branches were aware of it.  The court concluded that even assuming that the justification for the regulation would support an exclusion if made by Congress or the President, that justification was inadequate to support the regulation promulgated by the Commission.

     To summarize:  The provision unlawfully discriminates between citizens and aliens.

     The provision implicates powers (immigration and foreign relations) delegated to the other two branches.

     Even assuming (but not deciding) that if the provision were enacted by the two political branches it could be justified, such a standard review is unavailable to the judiciary.

     There is no evaluation before me to indicate a finding that the provision is necessary to promote the Chief Justice's field of governing admissions.

     I therefore concluded that the provision is contrary to the equal protection clause.

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