bank of guam v. semes

8/3/2019 Bank of Guam v. Semes

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FSM SUPREME COURT TRIAL DIVISION (Pon.)

Cite as Bank of Guam v. Semes , 3 FSM Intrm. 370 (Pon. 1988)

[3 FSM Intrm. 370]

BANK OF GUAM, Plaintiff,

v.

HERMAN SEMES and F.L. MOYLAN COMPANY,

Defendants.

FSM CIV. NO. 1987-019

OPINION

Before Edward C. King Chief Justice May 18, 1988

APPEARANCES: For the plaintiff: Daniel Berman (Bank of Guam) Attorney at Law

P.O. Box 1491

Kolonia, Pohnpei 96941

For the Defendant: Stephen Skipton (Herman Semes) Micronesian Legal Services Corporation


For the Defendant: Martin Mix (F.L. Moylan Co.) Attorney at Law


* * * *

COURT'S OPINION EDWARD C. KING, Chief Justice:

The motion to dismiss of defendant Herman Semes requires carefulconsideration of this Court's jurisdiction on grounds of diversity of citizenshipbetween opposing parties under article XI, section 6(b) of the Constitution. Theprincipal issue is whether this Court may decline to exercise diversity jurisdiction,either in deference to a state statute providing for state court jurisdiction, or because land interests may be affected by the Court's actions in the case.


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I.

This lawsuit has been filed by the Bank of Guam to foreclose on a real

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property mortgage covering land and a house in Pohnpei. The mortgageallegedly was executed by defendant Semes, as part of financial arrangementswhereby Island Hardware, Inc., a company of which Mr. Semes was the principalowner, obtained, and subsequently refinanced, a loan from the Bank of Guam. 1 The foreclosure action is based upon the Pohnpei State Real Property Mortgage

Act, D.L. No. 4L-152-78, as amended in 1980 by S.L. No. 2L-44-80.

The Bank of Guam is a corporation chartered in the Territory of Guam.Defendant Herman Semes is a resident and citizen of Pohnpei State and the

Federated States of Micronesia. The bank seeks to invoke this Court's jurisdiction under article XI, section 6(b) of the Constitution of the Federated

States of Micronesia based upon diversity of citizenship of the parties.

Mr. Semes' motion asks that the case be dismissed. He sees this Court'sconstitutional jurisdiction under article XI, section 6(b) as normally concurrentwith state court jurisdiction, but precluded in this case by section 25 of thePohnpei State Real Property Mortgage Act which says that, "All judicial actionsfor the foreclosure of a mortgage shall be brought in the Trial Division of the HighCourt or its successor in state Law." He views section 25 as a legitimateexercise of state power pursuant to article XI, section 6(c) of the Constitution. 2 Finally, he argues that even if section 25 does not effectively preclude this Court

from exercising jurisdiction in cases under the Pohnpei Real Property Mortgage

Act, the Court should abstain from doing so because land cases should behandled by state, not national courts.

For its part, the bank insists that state courts have no power whatever toadjudicate diversity of citizenship cases because article XI, section 6(b) of theConstitution gives national courts exclusive jurisdiction over the kinds of casesdescribed in that section.

The Court finds itself unable to agree completely with the position of either party but, for the reasons discussed here, the motion to dismiss is denied.

II.

A Article XI, section 6(b) of the Constitution declares that the trial division of the

FSM Supreme Court has concurrent original jurisdiction over disputes wherethere is diversity of citizenship between the parties.

[3 FSM Intrm. 374]


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The national courts, including the trial division of the Supreme Court, haveconcurrent original jurisdiction in cases arising under this Constitution; nationallaw or treaties; and in disputes between a state and a citizen of another state,between citizens of different states, and between a state or a citizen thereof anda foreign state, citizen, or subject.

(Emphasis added). While there can be no doubt that the FSM Supreme Courttrial division and any future national courts that may be created have concurrentoriginal jurisdiction over section 6(b), the language is less conclusive as towhether other courts were intended to share in this "concurrent" jurisdiction. Mr.Semes contends that section 6(b) gives state courts concurrent jurisdiction withnational courts. The Bank of Guam argues that section 6(b) jurisdiction isconcurrent only between the FSM Supreme Court and any other national courts.

Since the constitutional language itself does not provide a conclusive answer on this point, we may look to constitutional history for assistance. FSM v. Tipen,1 FSM Intrm. 79, 83 (Pon. 1982).

The journal of the constitutional convention reveals that the conventionaddressed this precise issue. Two committees at the convention submittedmajor proposals concerning the judiciary. The first was introduced by theCommittee on Governmental Structure on October 14, 1975. SCREP No. 36, IIJ. of Micro. Con. Con. 823. That committee proposed a unified judiciary soencountered no need to make special provision for diversity cases. Comm.Proposal 24, II J. of Micro. Con. Con. 918, 924.

Shortly thereafter, on October 25, 1975, a second proposal was submitted,this one by the Committee on Governmental Functions. SCREP No. 49, I J. of

Micro. Con. Con. 876. That committee proposed a separation of state andnational courts more in conformity with the federal-state system in the UnitedStates. Comm. Proposal 30, II J. of Micro. Con. Con. 933. The committee reportcontemplated that the national court system would have jurisdiction concurrentwith state courts in diversity cases. SCREP No. 49, supra, at 879.

The two committees then began meeting in an effort to resolve their differences. On October 31, they produced a joint report announcing what wasstyled joint amendment No. 10 to the Governmental Structure Committee'sproposal No. 24, but actually was an amalgam of the two earlier proposals.

[3 FSM Intrm. 375]

SCREP No. 58, II J. of Micro. Con. Con. 885. The report contained no specificmention of diversity jurisdiction.

The proposal itself, however, was explicit. The cases and disputes identifiedin section 6(b) were to be within the concurrent jurisdiction of state and localcourts, as well as the national courts.


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Section 6(b). The national courts, trial division of the Supreme Court, and stateand local courts have concurrent original jurisdiction in cases arising under thisConstitution, cases involving national law or treaties,and in disputes between astate and a citizen of another state, between citizens of different states, andbetween a state or a citizen thereof, and a foreign state, citizen, or subject.

Judiciary Article, 6(b), Amendment 10 to Comm. Proposal 24, II J. of Micro.Con. Con. 925, 926.

This version came up for consideration by the entire convention on November 4, 1975. A pivotal amendment was offered by delegate Johnson Toribiong. Hebegan by pointing out that his proposal was "contained in a paper which hasbeen distributed to all the Delegates." I J. of Micro. Con. Con. 492.

He then explained the two basic purposes of the amendment he was offering.The first purpose, to amend section 6(a), "so that only the trial division of theSupreme Court of Micronesia shall have original and exclusive jurisdiction over cases affecting officials of foreign governments, disputes between states,admiralty or maritime cases, and cases in which the national government is aparty," is not directly relevant to the issues now before the Court.

Delegate Toribiong then described the amendment to section 6(b) whichyielded the final version of the section as it now appears in the Constitution.Specifically, he suggested "inserting the words `including the' after `national

courts,' and before `trial division'..., and deleting ... the words `and state and localcourts.'" He then explained to the delegates that "the outcome of the wholeprocess would be to give the national courts, which are the courts which may beestablished by national law, and the trial division of the Supreme Court

concurrent jurisdiction" over the kinds of cases identified in section 6(b). He alsospecifically pointed out that another result would be "to remove state and localcourts" from handling such cases. Id. at 492. The proposed amendment waspromptly adopted.

Johnson Toribiong was a representative of Palau, a Trust Territory districtwhich ultimately did not approve the Constitution or join the Federated States of Micronesia. Nonetheless, the amendment, like the

[3 FSM Intrm. 376]

Constitution itself, has a firm FSM stamp upon it. Delegates from all four of thecurrent states of the Federated States of Micronesia participated in theNovember 4, 1975 floor discussion concerning the amendment. With theexception of Mr. Toribiong, every person who spoke has played a major governmental role within the Federated States of Micronesia after constitutionalgovernment was instituted here. 3 The vote count for the amendment itself doesnot appear in the journal but there were 45 affirmative votes for the proposal, asamended. There was only one abstention. Nobody voted against it.


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The effect of the amendment is that only national courts are given jurisdictionby article XI, section 6(b) of the Constitution. The concurrent jurisdiction referredto there is between the trial division of the FSM Supreme Court, and any other national courts which may be established in the future.

III. Rejection of defendant's interpretation that section 6(b) jurisdiction is

concurrent between state and national courts does not require acceptance of thebank's contention that article XI, section 6(b) deprives the state court of anypower ever to exercise jurisdiction in the types of cases described there.

Plainly, article XI, section 6(b) is not a source of jurisdictional powers for statecourts. However, state courts do not normally look to the national Constitution asa source of jurisdictional authority. Instead they

[3 FSM Intrm. 377]

typically rely upon state constitutions and state law for their authorization to act.The Pohnpei Constitution directly vests in the Pohnpei Supreme Court the

"judicial power of Pohnpei." Pon. Const. art. 10, 1. Moreover, for purposes of this case, section 25 of the Pohnpei State Real Property Mortgage Act is a clear grant of state court jurisdiction over cases brought under that Act.

The presumption is that a state court has jurisdiction to act on any case whicharises within that state. Given this understanding the fact that the nationalConstitution does not place jurisdiction in the state courts is not enough towarrant a conclusion that state courts are without jurisdiction to act in such acase. The proper question is not whether the national Constitution authorizes,

but whether it bars state court jurisdiction.

It does seem likely that delegate Toribiong would have preferred an absoluteprohibition against state court jurisdiction in the kinds of cases identified insection 6(b). He expressed an intention "to remove state and local courts fromhandling cases arising under this Constitution, treaties, and national law becauseif you allow them to handle those cases we will have a mess on our hands ...." IJ. of Micro. Con. Con. 492. Yet, he was the only delegate to express such anintention or understanding. The words of one delegate concerning his own viewscan not be accepted as dispositive of the meaning of the Constitution.

Rather, it is the words of the Constitution which must prevail. Section 6(b)says only that national courts shall have concurrent jurisdiction. Nothing is saidabout state courts. Had the framers intended the concurrent jurisdiction of national courts to be exclusive of state court jurisdiction for such cases,presumably they would have said so, as they did in article XI, section 6(a), whichvests in this Court exclusive jurisdiction over the cases mentioned there.Deletion of state and local courts from section 6(b) reveals that national courts

are to play the primary role in handling the kinds of cases identified in thatsection. Yet, nothing in the amendment and nothing now in article XI, section


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6(b) of the Constitution may be read as absolutely preventing state courts fromexercising jurisdiction over those kinds of cases.

B Aside from the constitutional language itself and the pertinent constitutional

convention discussions, there are other sources of guidance to which, courtsmay turn in ascertaining the meaning of the section. For example, any part of aconstitution should be interpreted and considered against the background of other provisions in the same constitution. Cf. Innocenti v. Wainit, 2 FSM Intrm.173, 181 (App. 1986). An effort should be made to reconcile all provisions sothat none is deprived of meaning. Tammow v. FSM, 2 FSM Intrm. 53, 57 (App.1985). Acceptance of the bank's contention that state courts are precluded from

jurisdiction over section 6(b) cases would raise serious doubt as to the efficacy of part of article XI, section 7,

[3 FSM Intrm. 378]

and all of article XI, section 8.

Section 7 places in the Supreme Court appellate division jurisdiction to review"cases heard in state or local courts if they require interpretation of thisConstitution, national law, or a treaty." If section 6(b) were to be interpreted asplaintiff urges, no cases requiring interpretation of the national Constitution,national law or a treaty could be heard by state or local courts. Provision for appellate review would be rendered superfluous.

Moreover, section 8 provides for certification to this Court of a "substantialquestion requiring the interpretation of the Constitution, national law, or a treaty"

when such question is involved in "a case in a state or local court." Under plaintiff's reading of section 6(b), the existence of any such substantial questionwould prevent state court jurisdiction. Thus, section 8 would have no application.

On the other hand, if the three sections are read together as allowing statecourt jurisdiction in section 6(b) cases, but assuring for the litigants access to thenational courts, and placing primary authority and responsibility for such cases inthe national court, each section retains significant import. Although litigantswould be entitled to demand the exercise of national court jurisdiction under section 6(b), acquiescence of all parties would permit the exercise of state court

jurisdiction, with national law issues certified to the FSM Supreme Courtappellate jurisdiction under article XI, section 8. Appeals from the final statecourt decision could be taken to the FSM Supreme Court pursuant to article XI,section 7.

Yet another method of constitutional interpretation is to trace the provisionshere to their source to ascertain the meaning placed upon those words in the

jurisdiction from whence they were drawn. Jonas v. FSM, 1 FSM Intrm. 322, 327n.1 (App. 1983). This Court has noted on numerous occasions that there aresubstantial similarities between the provisions concerning jurisdiction in the


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Constitution of the Federated States of Micronesia and the comparable parts of the United States Constitution. Federated Shipping Co. v. Ponape Transfer &Storage, Inc., 3 FSM Intrm. 256 (Pon 1987); Etpison v. Perman, 1 FSM Intrm.405, 414 (Pon. 1984); In re Nahnsen, 1 FSM Intrm. 97, 108-09 (Pon. 1982).

It is therefore pertinent that while article III of the Constitution of the UnitedStates authorizes United States federal court jurisdiction in the kinds of casesdescribed in article XI, section 6(b) of the FSM Constitution, those comparableprovisions in the United States Constitution have not been interpreted asprohibiting state court jurisdiction. In the United States system, state courts mayexercise jurisdiction in diversity and federal question cases, but only if bothparties acquiesce. When a case which could be brought in a federal court isstarted in a state court an objecting defendant is given the right to "remove" thecase to a United States federal court. 28 U.S.C. 1441; see also C. Wright, Lawof Federal Courts 38 (4th ed. 1982).

[3 FSM Intrm. 379]

C Based upon all these considerations, this Court concludes that the

Constitution places in national courts the primary role in deciding diversity casesand those which arise under the Constitution, national law or treaty. Parties tosuch a dispute have a constitutional right to invoke the jurisdiction of a nationalcourt and may not be forced to litigate a section 6(b) case in a non-national court.However, state courts are not in all events deprived of jurisdiction. If all parties

agree, and if state law permits, a state court may hear and decide the kinds of cases described in article XI, section 6(b) of the Constitution.

III. Mr. Semes argues that this Court should abstain in favor of state court jurisdiction in this case, for two reasons. First, he maintains that there is aPohnpei statute which requires that result. Second, he points out that theframers of the Constitution contemplated that land cases would be decided bystate and local courts, not by the national courts.

A As already indicated, section 25 of the Pohnpei State Real Property Mortgage

Act says that, "All judicial actions for the foreclosure of a mortgage shall bebrought in the Trial Division of the High Court or its successor in State Law."

Mr. Semes contends the statutory purpose is to place in the Pohnpei StateSupreme Court exclusive jurisdiction over foreclosure actions. He maintains thatstate enactment of the statute is authorized by article XI, section 6(c) of theConstitution, which says, "When jurisdiction is concurrent, the proper court maybe prescribed by statute."

It follows from what has already been said that article XI, section 6(c) placesonly in the national Congress, and not in state legislatures, authority to prescribe


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jurisdiction. The concurrent jurisdiction provided in the Constitution is onlybetween national courts. That being the case, the "proper court" to be prescribedby statute could not be a state court. Even before the Toribiong amendment,when the Committee on Governmental Functions contemplated that theConstitution would vest concurrent jurisdiction in both state and national courts,

the Committee nevertheless intended that Congress, not state legislatures, wouldapportion the cases between the two court systems.

It is the feeling of your Committee that some of these cases could best behandled by state courts and some by the national courts, and that the nationallegislature would be in the best position to

[3 FSM Intrm. 380]

establish, and from time to time adjust, criteria for apportioning such casesbetween the state and national court system.

SCREP No. 49, II J. of Micro. Con. Con. 876, 879. Any lingering question wasremoved by the subsequent deletion of state and local courts from section 6(b).There is no reason to believe that the framers of the Constitution intended insection 6(c) to give state legislatures authority to allocate jurisdiction amongnational courts.

Moreover, the Court does agree with the defendant's reading of section 25.The Constitution of the Federated States of Micronesia is the supreme law of theland. 4 Mr. Semes is correct that section 25 of the Pohnpei Mortgage Actrepresents an effort to deprive litigants from access to national courts in casesthat fall within article XI, section 6(b), the state legislation would be in conflict with

the Constitution and invalid to that extent.

Courts strive to interpret statutes to avoid conflict with the Constitution. Trukv. Hartman, 1 FSM Intrm. 174, 181 (Truk, 1982). There is a reasonablealternative to the interpretation pressed by Mr. Semes. The legislatureundoubtedly recognized that this court's jurisdiction over diversity cases under article XI, section 6(b) of the Constitution would extend to cases under thePohnpei Mortgage Act without any positive statement to that effect by thelegislature itself. The Act's silence concerning national court jurisdiction simplyreflects this legislative awareness. The legislative purpose in section 25 wasmerely to allocate jurisdiction among those courts subject to state authority,confirming that only state courts and not municipal courts would have jurisdictionunder the Act. Just as silence about state and local courts in article XI section6(b) does not prohibit state court jurisdiction flowing from other sources, failure tomention national courts in section 25 of the Pohnpei State Real PropertyMortgage Act should not be read as an attempt to deprive litigants of access tothis Court.


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Thus, defendant's contention that section 25 represents an effort to preventthis Court from exercising jurisdiction over foreclosure proceedings under thePohnpei Real Property Mortgage Act is rejected.

B Defendant has one final argument. He urges that even if this Court does have

jurisdiction over foreclosure actions under the Pohnpei State Real

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Property Mortgage Act, we should refrain from exercising that power becauseland cases should be handled by state and local courts. In particular, defendantSemes notes, quite accurately, that concern was expressed at the constitutionalconvention to assure that the states, and not the national government, wouldhave control over land matters.

There can be no question that land and land use are at the very heart of the

social systems in the various states of the Federated States of Micronesia.

Land plays a fundamental and unique role in the lives of Micronesians. Thespecial importance of land here is in part traceable to its scarcity. The FederatedStates ofMicronesia consists of numerous relatively small islands scatteredacross a vast expanse of ocean. Land is also uniquely significant in Micronesia,however, because it is so thoroughly intertwined with social structures inMicronesia.

Etpison v. Perman, 1 FSM Intrm. 405, 420 (Pon. 1984). This Court hasrecognized that special knowledge and experience relevant to land matters

resides within the states rather than the national government.

[S]tate officials generally should have greater knowledge of use, local customand expectations concerning land and personal property. They should be better equipped than the national government to control and regulate these matters.The framers of the Constitution specifically considered this issue and felt that

powers of the sort under consideration here should be state powers.

In re Nahnsen, 1 FSM Intrm. 97, 107 (Pon. 1982); Etpison v. Perman, 1 FSMIntrm. at 429.

Yet, this is not dispositive. "The allocation of judicial authority is made on the

basis of jurisdiction, generally without to regard to whether state, or national,`powers' will be at issue." Nahnsen, 1 FSM Intrm. at 108.

Admittedly, several statements were made by delegates to the constitutionalconvention indicating their impression that not only would power over land issuesbe vested in state legislative and executive branches, but that cases involvingland would be restricted to the state courts.


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For example, Chief Kintoky Joseph lauded the recommendation in proposal

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No. 24 of the Committee on Governmental Structure that special land courts beset up in each state. He thought it important to "permit land and traditionalmatters to be brought before judges more knowledgeable and compatible withMicronesian customs and traditions." I J. of Micro. Con. Con. 390. On October 28, 1975, delegate Ismael, discussing his committee's article on the judiciary,said, "The consensus of your Joint Committees on Functions and Structure isthat where ownership or interest in land is concerned, this is purely a districtmatter and it is under the jurisdiction of that district. The national level of our future government will not have jurisdiction over land matters." Id. at 448. Seealso SCREP No. 36, II J. of Micro. Con. Con. 823, 858: "There is no one`Micronesian land tenure law' which can easily be applied by a court to any caseinvolving a land ownership dispute. For this reason, it is your Committee's belief that land issues must be resolved by the judicial system on the state level."

However, as already discussed in this opinion, it is not individual statementsof delegates or even committee reports made in the course of the constitutionalconvention, but the actual words of the Constitution, that must control.

The only phrase concerning land in the judiciary article of the Constitution is insection 6(a), providing an exception from this Court's exclusive jurisdiction under that section for cases "where an interest in land is at issue."

Section 6(b) has no such limitation. As this court has noted previously, onedistinction between the jurisdictional provisions of the FSM Constitution and

those in the United States Constitution is that the grants of jurisdiction in thisConstitution are self-executing. FSM Dev. Bank v.Estate of Nanpei, 2 FSMIntrm. 217, 219 n.1 (Pon. 1986). Inevitably, some of the kinds of casesidentified in section 6(b) will touch upon land ownership and interests in land.The Constitution leaves no doubt that when that occurs, litigants are entitled to

invoke this Court's jurisdiction and the Court is required to accept the case.

Nonetheless, the Court should respect, and retains sufficient discretion torespond to, the strong state interests in land matters. Constitutional obligationsto play the primary role in making determinations of national law, and to beavailable for diversity cases, need not preclude national courts from assuring theprimacy of the states in land matters. This Court must be sensitive to the factthat the framers of the Constitution anticipated that states, including state courts,would play the primary role in setting policy and deciding legal issues concerningownership and interests in land.

During the constitutional convention the Committee on GovernmentalFunctions, in SCREP No. 49, said, "Your Committee intends that cases involvingprimarily national issues be brought in national courts and conversely, that cases


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involving primarily state issues be brought in state courts." II J. of Micro. Con.Con. at 879. As already discussed, the jurisdictional provisions

[3 FSM Intrm. 383]

ultimately approved for the Constitution differed in significant ways from theproposal made by the Committee on Governmental Functions in SCREP No. 49.Yet, there is no reason to believe that the committee, nor the convention itself,

intended to depart wholly from these basic guidelines.

Actual practice under the Constitution has developed in essentially the waythe committee anticipated. Most of the cases filed with the FSM Supreme Courttrial division have involved issues of national law. Most cases involving primarilystate issues have been brought in state courts.

Indeed, land issues have hardly ever been presented to this Court. In the rarecircumstances where issues touching upon land ownership or use have been

presented, the Court has attempted to provide an opportunity for localdecisionmakers to resolve the issues of state law. In re Nahnsen, 1 FSM Intrm.97 (Pon. 1986) (questions concerning inheritance of land and other propertytendered to the Pohnpei district court for decision); Etpison v. Perman, 1 FSMIntrm. 405 (Pon. 1984) (doctrine of primary jurisdiction invoked to remand to thePohnpei Public Lands Authority the determination as to use of public land inPohnpei).

The policy has not been restricted to land matters. This Court has certifiedvarious kinds of state law issues to state courts for determination. Panuelo v.Pohnpei (II), 2 FSM Intrm. 244, 246 (Pon. 1986); Hadley v. Kolonia Town, 3 FSM

Intrm. 101 (Pon. 1987); Edward v.Pohnpei, 3 FSM Intrm. 350 (Pon. 1988); seealso Dabchur v. Yap, 3 FSM Intrm. 203 (Yap S. Ct. App. 1987).

Even within the SCREP No. 49 guidelines, it is not altogether clear that theissues in this particular case are primarily state court issues. In essence, this is alawsuit aimed at enforcing a mortgage, which is a kind of lien, as against adelinquent debtor. The Constitution places in the national Congress the power "to regulate...bankruptcy and insolvency." FSM Const. art. IX, 2(g).

On the other hand, it seems unlikely that difficult determinations concerningstate land law will be presented. The state has already spoken on thefundamental policy questions concerning mortgages. The Pohnpei State RealProperty Mortgage Act represents a policy decision by the Pohnpei statelegislature that a mortgage may be cognizable as an interest in land under Pohnpei law. The Act is essentially a set of instructions as to how foreclosuremay take place.

This Court is currently unaware of any questions that may arise in the courseof this litigation concerning interest in, or ownership of, land. If such issues are


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presented, certification procedures may be employed to avoid encroachmentupon state decisionmaking prerogatives.

[3 FSM Intrm. 384]

Conclusion Litigants in the kinds of cases and disputes described in article XI, section

6(b) of the constitution are entitled to demand that this Court exercise the jurisdiction bestowed by that section. Here, the Bank Of Guam asserts that right.

The motion of defendant Herman Semes to dismiss must be denied.

* * * * Footnotes: 1. The bank also seeks a declaration that its rights under the mortgage are superior to any labor and materials lien the other defendant, F.L. Moylan Company, may have in the residence locatedon the property covered by the mortgage. The Moylan Company is not a party to this motion todismiss.

2. Article XI, section 6(c) of the constitution provides, "When jurisdiction is concurrent, the proper court may be prescribed by statute."

3. Delegate Toribiong, a member of the Committee on Governmental Functions, had consulted inadvance with his own committee chairman, Hirosi Ismael (now Vice President of the FSM), andwith Soukichi Fritz (now Truk State Chief Justice), chairman of the Judiciary Subcommittee of thecommittee on Governmental Structure. II J. of Micro. Con. Con. 493. They had agreed that theamendment represented a consensus of their two committees. Id. This information was elicitedby floor leader Luke Tman of Yap, who later was named the first floor leader of the FSMCongress.

When delegate Ismael questioned whether the proposal as amended would be returned to the joint committee, delegate Falcam, the first Governor of Pohnpei and now an FSM Senator,

responded that he could "see no reason why we should refer this back." Delegate Yoma(Pohnpei Lieutenant Governor at the time of his death) added, "I would like to suggest that we goahead and vote on this. Delegate Toribiong's amendment took care of the problem in my opinion,so I think we are ready to vote on it." Delegate Wiliander (first Lieutenant Governor of Truk)concurred. Convention President Tosiwo Nakayama, soon to be the first President of theFederated States of Micronesia, then called for the vote.

4. Article II, section 1 of the Constitution provides that: "This Constitution is the expression of thesovereignty of the people and is the supreme law of the Federated States of Micronesia. An actof the Government in conflict with this Constitution is invalid to the extent of conflict."

bank of guam v. semes

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