FSM SUPREME COURT
TRIAL DIVISION
Cite as Berman v. FSM Supreme Court (II),
5 FSM Intrm. 371 (Pon. 1992)

[5 FSM Intrm. 371]
 
MARY KATHLEEN BERMAN,
Plaintiff,
 
v.

FSM SUPREME COURT,
Defendant.

FSM CIV. 1991-053

OPINION
 
Before Richard H. Benson
Associate Justice
Trial:  June 26, 1992
Entered:  October 5, 1992
Amended:  November 2, 1992

APPEARANCES:
For the Plaintiff:          Pro Se

For the Defendant:     Douglas Juergens
                                     Assistant Attorney General
                                     Office of the Attorney General
                                     FSM National Government
                                     Palikir, Pohnpei  FM 96941
 
[5 FSM Intrm. 372]
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HEADNOTES
Civil Rights; Constitutional Law - Judicial Powers
     The FSM Supreme Court is immune from an award of damages, pursuant to 11 F.S.M.C. 701(3), arising from the performance by the Chief Justice of his constitutionally granted rulemaking powers.Berman v. FSM Supreme Court (II), 5 FSM Intrm. 371, 374 (Pon. 1992).

Constitutional Law - Judicial Powers; Courts - Judges; Torts - Immunity
     The Chief Justice in rulemaking is performing a legislative function and is immune from an action for damages.  Berman v. FSM Supreme Court (II), 5 FSM Intrm. 371, 374 (Pon. 1992).
 
Constitutional Law - Judicial Powers; Courts- Judges; Torts - Immunity
     The grant of immunity to the Chief Justice while performing his rulemaking authority is to protect the independence of one exercising a constitutionally granted legislative power.  Berman v. FSM Supreme Court (II), 5 FSM Intrm. 371, 374 (Pon. 1992).

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COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     The issue before me is whether the plaintiff is entitled to nominal damages.

     Alleging that the portion of Rule II(D) of the FSM Rules for Admission to Practice which limited to three the written examinations that an alien could take in a five year period violated the Constitution, the plaintiff sought a declaratory judgment to that effect, and damages for the violation.  In my findings of fact and conclusion of law filed August 28, 1992 I found that the plaintiff had failed to prove any damages, that the rule was invalid, and that the question of nominal damages would be decided later.

     On August 18, 1992 I invited that plaintiff to submit authority on whether the defendant is a person within the meaning of the statute, and upon what basis I could award damages.  The defendant was invited to respond to the plaintiff's authority. Those briefs have been received.  Unfortunately one contained no case authority.

     The plaintiff's first amended complaint alleges:

16.  Rule II(D) of the FSM Rules for Admission for Practice provide that non-citizen may not take the FSM Bar Exam more than 3 times in any 5 year period.

[5 FSM Intrm. 373]

17.  Mary Berman has taken the examination three times, and has passed two out of three parts of the exam.  However, because of the Rule and her citizenship, she is forbidden to practice law as an attorney until March of 1995.

18.  The Rule is a deprivation of rights guaranteed by the Constitution and laws of the FSM, for which the FSM is liable.

The defendant admitted paragraphs 16 and 17.
 
    The plaintiff's jurisdictional allegation is that the case arises under a national law, 11 F.S.M.C. 701-02.

    An unusual aspect of the case is that there were no pretrial motions and no affirmative defenses which would have led to fuller presentations of the important issues at stake.

    I conclude that no award for damages can be given.

    Turning first to the Constitution, Alaphonso v. FSM, 1 FSM Intrm. 209, 214  (App. 1982), indirect guidance is found in section 15 of article IX, which states,

A member of Congress is privileged from arrest during his attendance at Congress and while going to and from sessions, except for treason, felony, or breach of the peace.  A member answers only to Congress for his statements in Congress.

FSM Const. art. IX, 15.

    The Committee on Governmental Structure in proposing an earlier but substantially similar provision, stated:

This is a traditional constitutional protection to legislators.  Immunity against arrest, except for specified crimes, and the privilege against suit for statements made in Congress are both meant to encourage a legislator to act without fear of outside pressure or punishment while Congress is in session.

SCREP No. 36, II J. of Micro. Con. Con. 846.

    At the least this provision indicates that the concept of immunity is not foreign to this nation's institutions.

    In Tolenoa v. Kosrae, 3 FSM Intrm. 167, 170 (App. 1987) the similarity of 11 F.S.M.C. 701 with 42 U.S.C. 1983, the United States counterpart, was noted. The assumption was then made that the United States law was the source of this nation's statute.  Hence consideration can be given to United States cases in their interpretation of like provisions.

[5 FSM Intrm. 374]

    I have examined our statutes and cases and found no authority on the issue of the liability of courts and legislatures under the civil rights statute.  No custom or tradition has been suggested to me.  It then becomes appropriate to examine the experience of other jurisdictions.  Alaphonso v. FSM, 1 FSM Intrm. at 213.  In the resources available, only United States cases have been found on point.

    In Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719, 100 S. Ct. 1967, 64 L. Ed. 2d 641 (1980) the United States Supreme Court held that when the court issued a state code of professional responsibility governing the conduct of attorneys, pursuant to statutory authority and its (claimed) inherent power, it was acting in a legislative capacity and was immune from suit under 42 U.S.C. 1983. Id. at 734-35, 100 S. Ct. at 1976, 64 L. Ed. 2d at 655.  The court upheld the common law immunity of legislators in reaching this holding, finding the rulemaking power of the court in the case similar to the function of a legislator.  The grant of immunity is to insure that legislators may perform their functions without fear of outside interference.  Id. at 731-32, 100 S. Ct. at 1974, 64 L. Ed. 2d at 653.

    I find that the policy reason and the holding in Consumers Union is suitable to the Federated States of Micronesia, since the Chief Justice has the authority under the Constitution to make rules to "govern the admission to practice," FSM Const. art. XI, 9(e), and since the independence of those exercising legislative powers is an interest worthy of protection.  This protection is explicitly granted members of Congress as referred to earlier.  FSM Const. art. IX, 15.

    I therefore conclude that the Chief Justice enjoys immunity in the performance of his rulemaking authority.

    I therefore conclude that a damages award is unavailable to the plaintiff under 11 F.S.M.C. 701(3) against the defendant.

    In its response to the plaintiff's brief, the defendant's brief filed September 7, 1992 suggests that the statute governing actions against the FSM, 6 F.S.M.C. 701-706 is the exclusive remedy available; that the FSM has only waived its sovereign immunity to the extent set forth in that law.  Because of the limited argument and authority before me, I will not decide this newly presented question.

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