THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
APPELLATE DIVISION
Cite as Jackson v. Kosrae ,
7 FSM Intrm. 504 ( App. 1996)

[7 FSM Intrm. 504]

ERICKSON JACKSON, GEORGESTON GEORGE,
YUDA ALBERT and MALONEY TOLENOA,
Petitioners,

vs.

KOSRAE STATE,
Respondent.

APPEAL CASE NO. K3-1995

ORDER OF REMAND

Decided:  July 3, 1996

BEFORE:
Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court

APPEARANCE:
For the Petitioners:     Joses Gallen, Esq.
                                      Office of the Public Defender
                                      P.O. Box 245
                                      Tofol, Kosrae FM 96944

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HEADNOTES
Constitutional Law ) Certification of Issues
     When the FSM Supreme Court appellate division receives a certified question from a state or local court it has the discretion to decide the question or to remand it for decision.  
Jackson v. Kosrae,

[7 FSM Intrm. 505]

7 FSM Intrm. 504, 505 (App. 1996).

Constitutional Law ) Certification of Issues
     Certified questions will normally be remanded to state court unless well-articulated reasons are presented for their resolution by the FSM Supreme Court appellate division.  When the state court might resolve the case without reaching the certified constitutional question remand is proper.  Jackson v. Kosrae, 7 FSM Intrm. 504, 506 (App. 1996).

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COURT'S OPINION
ANDON L. AMARAICH, Chief Justice:
     On February 22, 1994, defendants were charged with the crime of "drinking alcoholic drinks on December 25" in violation of Title 13, Section 13.517(1) of the Kosrae State Code, as amended.  Section 13.517(1) originally prohibited the consumption of alcoholic drink only on Sundays, but was amended in 1991 to prohibit the consumption of alcoholic drinks on December 25th as well, for the stated purpose of "recogniz[ing] and further[ing] the tradition and custom of Kosrae against drinking or being drunk on the Christmas holiday."  See Kos. S.L. No. 5-35, 1.

     On March 23, 1994, defendants pled not guilty, and soon thereafter moved the Kosrae State Court either to declare the statute under which they were charged unconstitutional, or to certify the issue of the statute's constitutionality to the Appellate Division of the FSM Supreme Court.

     Pursuant to Article XI, Section 8 of the FSM Constitution, on November 8, 1995, the Kosrae State Court (Chief Justice Cornelius) certified to this Court the question of whether application of K.C. 13.517(1) in this case violates defendants' rights under the FSM Constitution.  On May 2, 1996, we asked the parties to file briefs within seven days, if they wished to, on whether the certified question should be remanded to Kosrae State Court for decision.  See Bernard's Retail Store & Wholesale v. Johnny, 4 FSM Intrm. 33, 35 (App. 1989).  After a careful review of the arguments the parties have presented both to the Kosrae State Court and to this Court, we now remand the certified issue back to Kosrae State Court for decision.

Discussion
     Article XI, Section 8 of the FSM Constitution provides that certain issues can be certified from state court directly to the Appellate Division of the FSM Supreme Court.  Section 8 provides that

[w]hen a case in a state or local court involves a substantial question requiring the interpretation of the Constitution, national law, or a treaty, on application of a party or on its own motion the court shall certify the question to the appellate division of the Supreme Court.  The appellate division of the Supreme Court may decide the case or remand it for further proceedings.

FSM Const. art. XI, 8.  Following certification, the Appellate Division has discretion to either decide a certified question, or remand it to state court for decision.

     In Kosrae State Court, defendants argued that K.C. 13.517(1) is unconstitutional because it directly conflicts with Article IV, Section 2 of the FSM Constitution, which mandates that "[n]o law may be passed respecting an establishment of religion or impairing the free exercise of religion."  Defendants

[7 FSM Intrm. 506]

further asserted that the statute violates a number of individual rights guaranteed by both the FSM Constitution and the Kosrae State Constitution.  The State disagreed.  In defense of its legislation, Kosrae State cited Article V, Section 2 of the FSM Constitution, which provides that traditions of the Federated States of Micronesia may be protected by statute and, "[i]f challenged as violative of Article IV [of the FSM Constitution,] protection of Micronesian tradition shall be considered a compelling social purpose warranting such governmental action."
 
     In response to this Court's May 2nd request for briefing on the issue of remand, defendants now take the position that no issues of state law are present in this case.  They argue that because the Kosrae State Constitution does not contain an establishment clause parallel to Article IV, Section 2 of the FSM Constitution, their motion to declare K.C. 13.517(1) unconstitutional can only be resolved through interpretation of the FSM Constitution.  They contend that the Appellate Division has an obligation to decide substantial issues involving interpretation of the FSM Constitution, and that remand therefore is not proper in this case.

     In Bernard's Retail Store, this Court explained that the Appellate Division may decide not to resolve issues certified under Article XI, Section 8 of the FSM Constitution, but instead may choose to remand these issues for further proceedings in order to give state court an opportunity to be heard on issues of national law.  See 4 FSM Intrm. at 35.  We anticipated that certified questions normally would be remanded to state court, unless well-articulated reasons were presented in favor of resolution by the Appellate Division.  Id.

     After reviewing the arguments of the parties, we find that remand of the certified question is appropriate in this case.  Defendants' motion to declare K.C. 13.517(1) unconstitutional asserts that the statute violates portions of the Kosrae State Constitution securing freedom of expression, equal protection, the right to privacy, the right to travel and the prohibition on cruel and unusual punishment.  It is therefore possible that Kosrae State Court may rule on the statute's constitutionality under state law without reaching the issue of its consistency with the FSM Constitution.  Unnecessary national constitutional decisions are to be avoided when possible.  See Gimnang v. Yap, 5 FSM Intrm. 13, 21 (App. 1991).  If interpretation of the FSM Constitution is ultimately required, remand will give Kosrae State Court an opportunity to provide its views on the validity of K.C. 13.517(1), against the backdrop of Kosraean custom and tradition and the language of the FSM Constitution.  As we observed in Bernard's Retail, "the interest of developing a dynamic and well reasoned Micronesian body of jurisprudence is best served when all courts have the benefit of one another's opinions to consider and question."  4 FSM Intrm. at 35 (quoting Federated Shipping Co. v. Ponape Transfer & Storage, 4 FSM Intrm. 3, 13 (Pon. 1989)).

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