THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Conrad v. Kolonia Town,
7 FSM Intrm. 97 (Pohnpei 1995)

[7 FSM Intrm. 97]

CONRAD CONRAD,
Plaintiff,

vs.

KOLONIA TOWN GOVERNMENT, JOHNSON YAMADA,
RETLEY ARACELY, AUGUSTINE LUZAMA,
ALBENSTER WILLIE and POHNPEI STATE,
Defendants.

CIVIL ACTION NO. 1994-155

ORDER AND MEMORANDUM OF DECISION

Andon L. Amaraich
Chief Justice

Decided:  March 23, 1995

APPEARANCES:
For the Plaintiff:            John Brackett, Esq.
                                       P.O. Box 208
                                       Kolonia, Pohnpei FM 96941

For the Defendants:     Daniel J. Berman, Esq.
(Kolonia Town)             Rush, Moore, Craven, Sutton, Morry & Beh
                                       2000 Hawaii Tower
                                       745 Fort Street
                                       Honolulu, HI 96813-3862

For the Defendant:       Richard L. Counts, Esq.
(State of Pohnpei)        Office of the Pohnpei Attorney General
                                        P.O. Box 1555
                                        Kolonia, Pohnpei FM 96941

[7 FSM Intrm. 98]
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HEADNOTES
Federalism ) Abstention and Certification
     The decision whether the FSM Supreme Court will exercise its inherent power to abstain from a case is left to the sound discretion of the trial division which must exercise it carefully and sparingly.  Conrad v. Kolonia Town, 7 FSM Intrm. 97, 99 (Pon. 1995).

Federalism ) Abstention and Certification
     Counseling against the unfettered use of abstention is the FSM Supreme Court's solemn obligation to consider the interests and protect the rights of those who wish to invoke its constitutional jurisdiction.  Conrad v. Kolonia Town, 7 FSM Intrm. 97, 99 (Pon. 1995).

Federalism ) Abstention and Certification
     When issues of national law are involved there is a particularly strong presumption against full abstention from the case.  Conrad v. Kolonia Town, 7 FSM Intrm. 97, 100 (Pon. 1995).

Federalism ) Abstention and Certification
     There is a presumption favoring abstention in claims involving state law and money damages against the state that touch upon the particularly strong state interest of fiscal autonomy and federalism.  Even in those cases the FSM Supreme Court will not abstain when abstention will result in substantial delay or additional cost.  Conrad v. Kolonia Town, 7 FSM Intrm. 97, 100 (Pon. 1995).

Federalism ) Abstention and Certification
     Where a case involves several substantive FSM constitutional claims the FSM Supreme Court will not and most likely cannot exercise its discretion to abstain. Conrad v. Kolonia Town, 7 FSM Intrm. 97, 101 (Pon. 1995).

Federalism ) Abstention and Certification
     Extension of the presumption of abstention in certain cases to municipalities is inappropriate.  Conrad v. Kolonia Town, 7 FSM Intrm. 97, 101 (Pon. 1995).

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COURT'S OPINION
ANDON L. AMARAICH, Chief Justice:

Introduction
     On January 30, 1995, some of the defendants in this action filed a motion for abstention and dismissal.1  The movants contend that this case involves issues primarily of local concern, and, as such, the movants argue that the Court should utilize its discretionary authority to abstain and dismiss this case.  Abstention and dismissal would force plaintiff to bring this action in state court, which in turn

[7 FSM Intrm. 99]

would allow the state court to address the allegedly local issues raised by this case.

     On February 20, 1995, plaintiff filed an opposition to defendants' motion to abstain.  Plaintiff counters that there are substantial issues of national law raised by this case and thus abstention is inappropriate.

     A review of the substantial FSM case law regarding abstention convinces this Court that abstention by this Court in this case would be incompatible with established precedent, and, accordingly, defendants' motion will be denied.

Facts2
     On December 30, 1994, plaintiff filed the complaint in this action alleging that he suffered serious personal injuries as a result of the excessive use of force by officers of the Kolonia Town Police Department ("Officers") during and subsequent to an arrest.  Based upon this alleged excessive use of force, plaintiff asserts state law causes of action against the Officers, Kolonia Town Government ("KTG"), and the State of Pohnpei grounded in intentional and negligent tort.  Plaintiff also raises causes of action premised upon alleged violations of his FSM constitutional and national statutorily guaranteed rights.  Particularly, plaintiff seeks monetary recovery under 11 F.S.M.C. 701 against all defendants for civil rights violations stemming from the Officers' alleged excessive use of force, for violation of his constitutionally protected right to free speech, the exercise of which plaintiff contends precipitated the alleged physical assault upon him, and for the Officers' violation of 12 F.S.M.C. 214(1), which requires the Officers to notify plaintiff of the cause and authority for his arrest at the time of his arrest.

Discussion
     The power to grant abstention is inherent within the jurisdiction of the FSM Supreme Court.  Ponape Transfer & Storage v. Federated Shipping Co., 4 FSM Intrm. 37, 42 (Pon. 1989).  The decision whether to abstain from a case is left to the sound discretion of the trial court.  Pryor v. Moses, 4 FSM Intrm. 138, 141 (Pon. 1989).  While abstention decisions are left to this Court's sound discretion, this Court has developed a body of case law to guide it in evaluating requests for abstention.

     The discretionary power of this Court to abstain "must be exercised carefully and sparingly."  Gimnang v. Yap, 5 FSM Intrm. 13, 19 (App. 1991); see Pryor, 4 FSM Intrm. at 141 ("judge must not undertake [the decision to abstain] lightly").  This is so because the decision to abstain necessarily involves the balancing of policy issues, an inherently political endeavor which "could be seen as presumptuous arrogation of policy-making powers by this Court in violation of basic principles of separation of powers."  Gimnang, 5 FSM Intrm. at 20.  However, of even greater importance in counseling against the unfettered use of abstention is this Court's "solemn obligation" to consider the interests and protect the rights of those who wish to invoke the constitutional jurisdiction of this Court.  Id. at 20; see Panuelo v. Pohnpei, 2 FSM Intrm. 150, 153 (Pon. 1986) (instructing that when evaluating a motion to abstain, this Court must recall its responsibility to exercise its jurisdiction under Article XI, Section 6 of the Constitution).

[7 FSM Intrm. 100]

     When issues of national law are involved in a case, there is a particularly "strong presumption against full abstention."  Gimnang, 5 FSM Intrm. at 22; Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 67A, 67C (Pon. 1991) ("[t]here can be no question as to the responsibility of this Court to maintain and exercise its jurisdiction over the issues of national . . . laws which are presented").3

     Conversely, the Court has identified several distinct types of claims, involving state law and which touch upon particularly strong state interests, which will cause the Court to broadly construe and presumptively exercise its power of abstention. One of these identified types of cases, which movants argue is applicable to this action, is an action in which monetary damages are sought against a state or its agencies and in which the state makes a reasoned request for abstention.4  Pryor, 4 FSM Intrm. at 141; Gimnang, 5 FSM Intrm. at 21; Damarlane, 5 FSM Intrm. at 67D. The presumption in favor of abstention in cases involving claims for monetary damages arises from a recognition of the strong state interest in fiscal autonomy as well as from a concern for federalism.  Edwards v. Pohnpei, 3 FSM Intrm. 350, 362 (Pon. 1988); Pryor, 4 FSM Intrm. at 142.  However, even in those cases where the Court will liberally construe its power of abstention, the Court will not abstain when abstention will result in substantial delay or additional cost.
 
     [W]e must keep in mind that the primary obligation of a judicial system is to render just decisions in speedy fashion at a minimum cost to the litigants and society alike.  Embellishments such as abstention and certification of issues should not be allowed to thwart these more fundamental goals.

Damarlane, 5 FSM Intrm. at 67D.

     With these guidelines in mind, the Court will evaluate the two main arguments asserted by the movants in support of their motion for abstention.

     First, the movants contend that this action involves almost exclusively issues of state tort law, with no issues of FSM constitutional law present.5  According to the movants, because this action involves primarily issues of local tort law and local "civil rights development," considerations of efficiency and state court experience and local case knowledge militate in favor of abstention.  Defs.' Motion for Abstention at 4 (Jan. 30, 1995).

     The movants' statement that there are no issues of FSM Constitutional law involved in this action is incorrect.  Count IV of the complaint explicitly alleges violation by the Officers of plaintiff's

[7 FSM Intrm. 101]

federal constitutional right to free speech.  FSM Const. art. IV, 1.  Furthermore, movants statement that there is but "one issue of civil rights violation," pursuant to 11 F.S.M.C. 701, is misleading.  Title 11, Section 701 creates a civil cause of action to recover for violations of constitutional or national law rights.6  Plaintiff is raising under its single Section 701 claim, several FSM constitutional and national law causes of action, including violation of plaintiff's right to free speech and plaintiff's right to know the cause and authority of his arrest, pursuant to 12 F.S.M.C. 214(1). Accordingly, because this case involves several substantive FSM constitutional and national law causes of action, this Court will not and most likely cannot exercise its discretion to abstain.  Gimnang, 5 FSM Intrm. at 23 n.4.

     Furthermore, the Court notes that even if the Court were not obligated to address the national law issues involved in this action, and even if the movants' contention that issues of state law predominate in this action is correct, the predominance of state law issues is an insufficient basis on which to justify abstention.  If abstention were appropriate in every action in which state law issues predominate, this Court would abstain from the vast majority of cases before it.  Such unfettered use of abstention would result in this Court's shirking of both its solemn obligation to litigants who have invoked this Court's constitutional jurisdiction, as well as its responsibility to quickly and efficiently resolve the cases before it.  See Damarlane, 5 FSM Intrm. at 67D.  This court has ample expertise and experience in state tort law issues to resolve the legal and factual issues raised in this action.

     While the existence of substantial claims grounded in FSM constitutional and national law require this Court to deny defendants' motion, the Court will address the movants' second argument as it raises a potentially significant issue of first impression.  The movants contend that the Court should abstain because this action seeks to recover monetary damages against the state.  As discussed above, when the state makes a reasoned request for abstention in an action in which monetary damages are sought against the state, the Court will presumptively grant such a request.  Pryor, 4 FSM Intrm. at 141.  However, in this action, the state has made no such request.  KTG has made the request, and accordingly, because KTG is not the state, the asserted presumption in favor of abstention is inapplicable to this case.

     However, movants contend that the deference given to state requests for abstention should be extended to municipalities.  Defs.' Motion for Abstention at 6 (Jan. 30, 1995).  After reviewing the rationale behind the presumptive granting of state requests for abstention in actions seeking monetary damages, primarily the need to preserve state fiscal autonomy, the Court concludes that the extension of this presumption to municipalities is inappropriate.7

[7 FSM Intrm. 102]

Conclusion
     Accordingly, because the presumption of abstention in favor of states in actions seeking monetary recovery is inapplicable to this action, and because this action involves substantive issues of FSM constitutional and national law, this Court will not abstain from hearing this case.  As such, it is hereby ordered that defendants' motion for abstention is denied.

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Footnotes:
 
1.  The movants are four Kolonia police officers and Kolonia Town Government, all of whom are jointly represented by Daniel J. Berman.  The State of Pohnpei is separately represented by the State Attorney General and has filed no memorandum either supporting or opposing the other defendants' motion for abstention.
 
2.  Although returns of service for all of the defendants in this case were filed on January 20, and although counsel for defendant State of Pohnpei requested an "additional" thirteen days until February 13, 1995, in which to file an answer in this case, none of the defendants have filed an answer to plaintiff's complaint. Accordingly, the Court, in drafting the following factual account, was unable to draw from any information that otherwise might have been contained in defendants' answers.
 
3.  There is in fact a serious question as to whether this Court may ever fully abstain from a case which involves issues of national law unless the case may be resolved purely through the application of state law.  Damarlane, 5 FSM Intrm. at 67C; Gimnang, 5 FSM Intrm. at 23 n.4; see Edwards v. Pohnpei, 3 FSM Intrm. 350, 354 ("[t]his Court is required to decide all national law issues presented to it").
 
4.  Two other types of actions, which this Court has identified as affecting particularly strong state interests and from which this Court will favorably review requests for abstention, are cases involving the disposition of land and cases involving matters where the state "is attempting to establish a coherent administrative policy in a complex field in which there is substantial public concern."  Gimnang, 5 FSM Intrm. at 21; Pryor, 4 FSM Intrm. at 142.
 
5.  The movants also point out that this Court has jurisdiction over this action due to only one of the ten causes of action asserted by plaintiff, namely plaintiff's action for violation of his civil rights brought pursuant to 11 F.S.M.C. 701.
 
6.  Title 11, Section 701(1) of the FSM Code provides in pertinent part:

A person commits an offense if, whether or not acting under the color of law, he deprives another of, or injures, oppresses, threatens, or intimidates another in the free exercise or enjoyment of, or because of his having exercised any right, privilege, or immunity secured to him by the Constitution or laws of the Federated States of Micronesia . . . .

     Title 11, Section 701(3) creates a civil cause of action for the rights protected by Section 701(1): "A person who deprives another of any right or privilege protected under this section shall be civilly liable to the party injured . . . ."
 
7.  The jurisdiction of Kolonia Town Municipal Courts is limited in civil matters to cases involving $500.00 or less in controversy.  Ponape State Judiciary Act, Pon. S.L. 2L-238-83, 63 (1983).