Panuelo v Pohnpei [1986] FMSC 2; 2 FSM Intrm. 150 (Pon. 1986) (12 March 1986)

THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA

Cite as Panuelo vs. Pohnpei[1986] FMSC 2; , 2 FSM Intrm. 150 (Pon. 1986)

[1986] FMSC 2; [2 FSM Intrm. 150]

YASUO PANUELO AND BRIDIGA PANUELO,
Plaintiffs,

vs.

STATE OF POHNPEI,
Defendants.

CIVIL NO. 1985-027

OPINION

Before Edward C. King
Chief Justice
March 12, 1986

APPEARANCES:
For the Plaintiffs: R. Barrie Michelsen
Attorney-at-Law
Stovall, Spradlin, Ramp
Armstrong & Israel
P.O. Box 1480
Pohnpei, FSM 96941

For the Defendant: Thomas M. Tarpley
(Pohnpei State) Special Counsel
State Attorney's Office
Kolonia, Pohnpei 96941

For the Defendant: Jack Warndof
(Federated States of Assistant Attorney General
Micronesia) Office of the Attorney General
Kolonia, Pohnpei 96941

* * * *

[2 FSM Intrm. 151]

HEADNOTES

Jurisdiction; Constitutional Law
Article XI, Section 6(a) of the Constitution places jurisdiction in the Federated States of Micronesia Supreme Court over cases in which the national government is a party. Panuelo v. Pohnpei, [1986] FMSC 2; 2 FSM Intrm. 150, 153 (Pon. 1986).

Jurisdiction; Constitutional Law
National civil rights claims under 11 F.S.M.C. 701 furnish a jurisdictional basis for the case to be heard by the FSM Supreme Court. Panuelo v. Pohnpei, [1986] FMSC 2; 2 FSM Intrm. 150, 153 (Pon. 1986).

Federalism
A reasoned request by a state that the FSM Supreme Court abstain from deciding a particular issue should be granted unless the opposing party establishes that the benefits of abstention in terms of federalism and judicial harmony, and respect for state sovereignty, would be substantially outweighed by delay, harm or injustice. Panuelo v. Pohnpei, [1986] FMSC 2; 2 FSM Intrm. 150, 156 (Pon. 1986).

Federalism
Where neither land, inheritance nor any other crucial interest of the state is involved; where the state has developed no extensive administrative apparatus or practical knowledge relating to the state issue with which a state court would be more familiar; where the state issue is not, strictly -speaking, constitutional; and where the state has tendered the issue to the FSM Supreme Court and no party has requested abstention, the FSM Supreme Court should decide the issue rather than abstaining in favor of the state court. Panuelo v. Pohnpei, [1986] FMSC 2; 2 FSM Intrm. 150, 156-57 (Pon. 1986).

Constitutional Law - State
The tenor of the Pohnpei Constitution is that the government is to be responsible to the people. That Constitution does not provide for sovereign immunity. Panuelo v. Pohnpei, [1986] FMSC 2; 2 FSM Intrm. 150, 157-59 (Pon. 1986).

Custom and Tradition; Sovereign Immunity
Customary and traditional practices within a state should be considered in determining whether the people of that state would expect their state government to be immune from court action. Panuelo v. Pohnpei, [1986] FMSC 2; 2 FSM Intrm. 150, 159 (Pon. 1986).

Sovereign Immunity
Neither the Pohnpei Constitution, laws, custom nor tradition, nor the common law, grant the Pohnpei State Government sovereign immunity from all unconsented suits against the state. Panuelo v. Pohnpei, [1986] FMSC 2; 2 FSM Intrm. 150, 161 (Pon. 1986).

Torts
The State of Pohnpei and its agencies may be held liable in tort subject to legislative restrictions that may be imposed and to certain other

[2 FSM Intrm. 152]

recognized common law exceptions. Panuelo v. Pohnpei, [1986] FMSC 2; 2 FSM Intrm. 150, 163 (Pon. 1986).

* * * *

COURT'S OPINION

EDWARD C. KING, Chief Justice:

The State of Pohnpei has filed a motion to dismiss claiming that, because of the doctrine of sovereign immunity, the state government may not be sued by its citizens for any governmental actions, or failures to act, which have injured or caused monetary losses to those citizens.

No constitutional or statutory provision of the State of Pohnpei mentions sovereign immunity. No party has shown any customary or traditional principle indicating that the people of Pohnpei would expect their leaders to be insulated from all petitions for redress. The common law of other nations has now effectively rejected the earlier notion that governments inherently were absolutely immune from being sued without their consent.

I conclude that the State Government of Pohnpei does not have the sweeping immunity it claims in this motion. The motion to dismiss is therefore denied.

Factual Background

For purposes of this motion, I regard as true the following allegations of the complaint filed by plaintiffs. 1

Elizabeth Panuelo, the eleven year old daughter of plaintiffs Yasuo and Brigida Panuelo, died on January 8, 1985. Diagnosed in Pohnpei as a possible leukemia victim, Elizabeth was sent, to Tripler Army Medical Center in Honolulu, Hawaii during 1984. There, doctors discovered that she was not suffering from leukemia, but severe aplastic anemia, a condition which, without treatment, would inevitably lead to her death.

The complaint goes on to say that Elizabeth's one possible chance to live would have been a bone marrow transplant, a type of operation for which the "success rate" is "over seventy percent." However, Pohnpei officials refused to fund the operation and ordered that Elizabeth be returned to

[2 FSM Intrm. 153]

Pohnpei, where she died in January, 1985.

Elizabeth's parents, in this lawsuit seeking monetary damages, allege that the State of Pohnpei's actions were violative of the state's obligation under article 7, section 4 of the Pohnpei Constitution to "provide health care services for the public." They also claim that the state's actions were negligent and violated her civil rights under 11 F.S.M.C. 701. 2

Legal Analysis

A. Jurisdiction

This Court has jurisdiction under Article XI, Section 6(a) of the Federated States of Micronesia Constitution, because the national government is a party. Plaintiffs' national civil rights claims under 11 F.S.M.C. 701 furnish an additional jurisdictional base. See FSM Const. art. XI, § 6(b).

B. Abstention

The state's motion presents an important issue of state law. This Court of course has the power to decide state law issues. Ponape Chamber of Commerce v. Nett, [1984] FMSC 2; 1 FSM Intrm. 389 (Pon. 1984). However, we have on various occasions abstained so that issues of state law might be decided by local decisionmakers. In re Nahnsen, 1 FSM Intrm. 97 (Pon. 1982); Etpison v. Perman, [1984] FMSC 3; 1 FSM Intrm. 405 (Pon. 1984).

There is a dilemma though, for the national courts do have responsibility to exercise their own jurisdiction under Article XI, Section 6 of the Constitution. This Court surely may not simply foist off on the state courts every difficult question of state law presented in cases within this Court's jurisdiction.

I have therefore looked to practices in the United States federal courts to see how those courts have resolved their similar dilemma.

United States courts have recognized the general rule is that they should decide all cases under their jurisdiction.

It is most true, that this court will not take jurisdiction if it should not; but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure, because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever

[2 FSM Intrm. 154]

difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur, which we would gladly avoid, but we cannot avoid them. All we can do, is to exercise our best judgment, and conscientiously to perform our duty. In doing this, on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the constitution and laws of the United States. We find no exception to this grant, and we cannot insert one.

Cohens v. Virginia, 19 U.S. [1821] USSC 18; (6 Wheat.) 264, 404[1821] USSC 18; , 5 L. Ed. 257, 291 (1821). This general rule holds even when the case itself, and the issues presented in it, are primarily of state or local import.

When a Federal court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction.... That the case may be one of local interest only is entirely immaterial, so long as the parties are citizens of different States or a question is involved which by law brings the case within the jurisdiction of a Federal court. The right of a party plaintiff to choose a Federal court where there is a choice cannot be properly denied.

Willcox v. Consolidated Gas Co., [1906] USSC 9; 212 U.S. 19, 40[1906] USSC 9; , 29 S. Ct. 192, 195[1906] USSC 9; , 53 L. Ed. 382, 394-95 (1908). In the past fifty years this general rule has been tempered by the doctrine of abstention under which federal courts, in carefully defined circumstances, have sometimes consigned issues of state law to state courts for decision.

The first ground for abstention was established in Railroad Commission of Texas v. Pullman Co., [1941] USSC 66; 312 U.S. 496, 500-01[1941] USSC 66; , 61 S. Ct. 643, 645-46[1941] USSC 66; , 85 L. Ed. 971, 974-75 (1941). There the United States Supreme Court held that a federal court ordinarily should refrain from deciding a case in which state action is challenged as violating the federal constitution, if unsettled questions of state law may be dispositive. This can be done to avoid the need for addressing the constitutional question.

The Pullman theory does not fit the instant case. This Court's decision about the State of Pohnpei's sovereign immunity will have no bearing upon the necessity for addressing the national constitutional claim here, which is made only against the national government.

Burford v. Sun Oil Co., [1943] USSC 131; 319 U.S. 315, 333-34[1943] USSC 131; , 63 S. Ct. 1098, 1107, 87 2L. Ed. 1424, 1435 (1943) provided another ground for abstention. In Burford, the

[2 FSM Intrm. 155]

United State Supreme Court held that abstention is permissible when federal review of the questions in a case would be disruptive of state efforts to establish a coherent policy on a matter of substantial public concern.

The record in this case reflects neither any substantial public concern nor any productive state efforts to establish a coherent policy. For this reason, abstention cannot be justified under the Burford rationale.

A third reason sometimes given for abstention is to avoid duplicative litigation. When similar actions are before a federal and a state court, and a decision by the state court would resolve the controversy between the parties in the federal court, the federal action may be dismissed, under exceptional circumstances. Colorado River Water Conservation Dist. v. United States, [1976] USSC 45; 424 U.S. 800, 817[1976] USSC 45; , 96 S. Ct. 1235, 1246, 47 L. Ed. 2d 483, 498 (1976). There is no pending litigation involving the issues raised by the state's motion so this Court may not avoid the issue on the grounds of duplicative litigation."

A fourth theory appeared in a few other cases. Some federal courts have abstained merely because a state law question presented in the litigation was difficult. United Services Life Ins. Co. v. Delaney, [1964] USCA5 405; 328 F.2d 483 (5th Cir. 1964). However the United States Supreme Court has spoken to the contrary saying:

the difficulties of ascertaining what the state courts may hereafter determine the state law to be do not in themselves afford a sufficient ground for a federal court to decline to exercise its jurisdiction to decide a case which is properly brought to it for decision.

* * * *

To remit the parties to the state courts is to delay further the disposition of the litigation which...is now ready for decision .... [and] to penalize petitioners for resorting to a jurisdiction which they were entitled to invoke.

Meredith v. City of Winter Haven, [1943] USSC 152; 320 U.S. 228, 234, 237[1943] USSC 152; , 64 S. Ct. 7, 11, 12[1943] USSC 152; , 88 L. Ed. 9, 13, 15 (1943). It "may now be regarded as settled that mere difficulty in ascertaining state law does not justify abstention in private litigation." 17 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, § 4246, at 500 (1978).

The categories mentioned above have left United States federal courts with definite guidelines but still a certain amount of discretion to determine whether abstention would be appropriate in a particular case. In any event, although this court often looks to the United States federal system for guidance, we are not bound to follow the rules employed by that system.

[2 FSM Intrm. 156]

Instead, we must make our own determination as to the suitable rule for Federated States of Micronesia. Alaphonso v. FSM, [1982] FMSC 22; 1 FSM Intrm. 209, 212-14 (App. 1982). In so doing, the Court should keep in mind that there are differences between federalism in the United States and that established under the Constitution of the Federated States of Micronesia. Tammow v. FSM, 2 FSM Intrm. 53, 57 (App. 1985).

A distinction of utmost significance is that the Constitution here contains no clause comparable to the eleventh amendment of the United States Constitution. 3 Because of the eleventh amendment, no suit such as this, a citizen seeking monetary damages against a state, could be brought in a United States federal court. Monaco v. Mississippi, [1934] USSC 117; 292 U.S. 313, 54 S. Ct. 745, 78 L. Ed. 1282 (1934); Hans v. Louisiana, [1890] USSC 63; 134 U.S. 1, 10 S. Ct. 504, 33 L. Ed. 842 (1890).

This dramatic distinction strongly suggests that, while the framers of the Constitution did not consider it necessary to prevent all lawsuits against the states for monetary damages from coming here, this Court should be highly sensitive to the stresses which could be placed upon the good will of the states by subjecting them to such suits. Thus, this Court may need to develop an especially liberal policy for abstention in suits against a state for monetary relief. As a beginning step in that direction, I submit that a reasoned request by a state that we abstain from deciding a particular issue should be granted unless the opposing party establishes that the benefits of abstention in terms of federalism and judicial harmony, and respect for state sovereignty, would be substantially outweighed by delay, harm or injustice.

Thus, although it is clear that United States holdings would not permit abstention under the circumstances of this case, I have nevertheless considered whether abstention nevertheless might be appropriate for federalism purposes here.

I have concluded that the Court should not abstain from deciding this motion. First, this is not a case where land, inheritance or any other crucial interest of the state specifically identified in the national constitutional convention as crucial to the states is involved. Second, the issue of sovereign immunity is not one for which the state has developed an administrative apparatus and a great deal of practical knowledge with which a state court would be more familiar than this Court. Instead, this is the kind of "clean" legal issue which this Court is well equipped to handle.

Third, although the motion requires consideration of the Pohnpei Constitution, the issue is not, strictly speaking, Constitutional. As will be

[2 FSM Intrm. 157]

discussed, the Pohnpei Constitution neither makes any direct reference to sovereign immunity nor provides a conclusive answer as to whether the state was to have such immunity.

Finally, and most important, no party has requested the Court to abstain from deciding the issues. The State of Pohnpei has tendered the question of sovereign immunity. Under these circumstances, it appears clear that all parties are prepared to have the Court exercise its constitutional power and decide the governmental immunity issue.

C. Governmental Immunity

I employ here the analytic method outlined in Semens v. Continental Air Lines, Inc., [1985] FMSC 3; 2 FSM Intrm. 131 (Pon. 1985).

The state's claim of sovereign, or governmental, immunity is broad and unqualified, that no suit may be brought against the state by any person, under any circumstances, unless the state has consented.

The motion does not present the more refined question of whether the particular governmental actions of which plaintiffs complain were of such a nature that those actions must as a matter of good government be immunized from court challenges. Nor does the state contend that this kind of lawsuit, by posing a threat to the state treasury, threatens the capacity of the state government to carry out its constitutional functions, therefore must be barred. 4

Accordingly, this opinion addresses only the broad issue posed by the state, whether sovereign immunity bars all unconsented suits against the state.

1. The Constitution - That the government may not be sued without its consent is written into many constitutions. Restatement (Second) of Torts § 895ment a (1979). It is sigs significant, then, that the State Constitution of Pohnpei contains no such provision. The term, "immun is found only in article 7, section 7, which merely immunizes legislators from arrest for for the limited purpose of permitting attendance at legislative meetings. 5

[2 FSM Intrm. 158]

In contrast to that single carefully drawn provision of limited immunity, the Pohnpei Constitution contains several clauses pointedly designed to assure that even the highest governmental officials will remain accountable to the people of Pohnpei. For example, article 13, section 6 makes the "Governor, Lieutenant Governor, Auditor, members of the Legislature, justices or judges of any Court and all appointed officials of the Government of Pohnpei" subject to impeachment upon specified grounds. In addition, the "Governor, Lieutenant Governor and members of the Legislature may be removed from office by recall." Pon. Const. art. 13, § 7.

Similarly, the Constitution does not say or imply that the government itself, as distinguished from government officials is to receive more insulation from litigation than is required by the nature of the functions assigned to government. To the contrary, the Constitution is plainly calculated to assure that the rights of the people of Pohnpei will be respected and that the government will serve, not exploit, the people. Numerous provisions restrict the powers of the government to affect persons in Pohnpei. In particular, fourteen sections of article 4 specify "fundamental rights" of the people, not to be breached by the government.

In addition to those restrictions, several affirmative obligations are imposed upon the government. For example, the government is instructed to "respect and protect the customs and traditions of Pohnpei," article 5, section 2; to "establish and faithfully execute comprehensive plans for the conservation of natural resources and the protection of the environment," article 7, section 1; to "promote economic development" and "establish and faithfully execute a development plan for Pohnpei," article 7, section 2; to "provide educational services for the public," article 7, section 3(1); to "provide for the regulation of educational services," article 7, section 3(2); to "establish and faithfully execute comprehensive plans for the continual improvement of educational standards and services," article 7, section 3(3); to "establish and maintain a library, museum and archives," article 7, section 3(4); to "establish and faithfully execute comprehensive plans for the identification, preservation and administration, for the benefit of the public, of places, artifacts, and information of historical and cultural importance," article 7, section 5; and to "establish and faithfully execute comprehensive plans for continued improvement in the protection of the safety and security of persons and property." article 7, section 6.

Most pertinent to this case is article 7, section 4 of the Constitution, concerning health care.

(1) The Government of Pohnpei shall provide health care services for the public.

(2) The Government of Pohnpei shall establish and faithfully execute comprehensive plans for the continual improvement in health care services.

(3) The Government of Pohnpei shall provide for the regulation of health care Services.

[2 FSM Intrm. 159]

The Pohnpei Constitution therefore does not lend itself to a conclusion that the people of Pohnpei, in drafting and approving their Constitution, expected that the government they were creating could be impervious to their attempts to assert rights in court against the government. Instead, the entire tenor of this Constitution is that the government of Pohnpei is to be responsive to the people.

2. Legislation - No legislation claims immunity for the government of Pohnpei. The Pohnpei Legislature has considered, but has not spoken on, the question of sovereign immunity. 6

3. Custom and Tradition - Neither party has suggested that principles of Pohnpei custom and tradition may relate to the issue of sovereign immunity. Yet the Judicial Guidance Provision requires that this Court give consideration to custom and tradition wherever it might apply. Semens v. Continental Air Lines, Inc., 2 FSM Intrm. at 139-40.

Moreover, the doctrine of sovereign immunity was introduced to United States jurisprudence on what were in essence grounds of "custom and tradition." Courts in the early days of United States constitutional government based the doctrine upon the traditional adage that "the king [of England] can do no wrong." 7 If the practices of English kings bore upon the question of sovereign immunity for the constitutional United States, where a war had been fought to free the nation from the power of kings, then surely here, where the constitutional governments seek "not to override custom but to work in cooperation with the traditional system in an atmosphere of mutual

[2 FSM Intrm. 160]

respect," 8 we should consider custom.

Accordingly, I have attempted to consider whether Pohnpeian customary and traditional practices may be viewed as notably consistent or at odds with the concept of sovereign immunity. This review points toward the conclusion that, based upon their experience with traditional leaders, the people of Pohnpei would expect their government to be responsive and provide a forum for their pleas.

Legendary history has it that Pohnpei Island was "once ruled by a series of tyrannical kings called the Saudeleur dynasty." Hughes, Continuity of Indigenous Ponapean Social Structure and Stratification, 53 Oceania 5 (1982). 9 If the traditional leaders of recent years could be considered "tyrannical," then Pohnpeians might expect that their government could injure them with impunity. However the situation changed several centuries ago. Id. The Saudeleurs were overthrown and Pohnpei eventually fragmented into five wehi, or states, now known as municipalities. Id. Each wehi is governed by two lines of royal titles, one line headed by a Nahnmwarki, the other by a Nahniken. Id.

This traditional system of government is much more benign and responsive to the needs of the people than was the reign of the Saudeleurs.

Along with the privileges went weighty obligations for the Nahnmwarki. one of his most important obligations was to `help the people' -- He was supposed to be concerned with their general welfare in any way necessary. He was expected to care for all of the people of his state and to be as patient with them as with his own children. When people criticized him or when they failed to live up to their obligations, ideally the Nahnmwarki was supposed to be above such concerns and not to notice. Of course, even the lofty Nahnmwarki could be provoked beyond his patience and had to correct his erring subjects. He was then expected to forgive the offenders when they pleaded their case through the Nahniken.

Id. at 6-7. Even with their great powers, Nahnmwarkis are required by custom to respond to a commoner seeking a hearing through the intercession of a Nahniken for the purpose of obtaining forgiveness. Id. at 14. Indeed several

[2 FSM Intrm. 161]

commentators have concluded that the Nahnmwarki's refusal to accept sakau when offered by the Nahniken pursuant to prescribed ritual would be considered by Pohnpeians "a sign that the tribe was falling apart." S. Riesenberg, The Native Polity of Ponape, 56-58 (Smithsonian Contributions to Anthropology No. 10, 1968). See also Hughes, supra at 14, and R.L. Ward, Ponapean Apology Rituals: The Persistence of the Apology Pattern in Modern Ponape (1975).

More pertinent to the issue here is whether the highest traditional leaders are required by custom to hear complaints by others that the leaders themselves have violated the rights of those others. I have found no discussion of that point and therefore cannot conclude that the position of either party would be inconsistent with custom or tradition of Pohnpei.

It is apparent however that substantial responsiveness of leaders is crucial to the traditional system. Considerations of custom and tradition then may be seen as pointing away from sovereign immunity.

4. Common Law - When constitutions, statutes and custom provide no conclusive answer, the Court may look to common law of the United States and other nations for guidance. Semens v. Continental Air Lines, Inc., 2 FSM Intrm. at 140. Both parties here have pointed to common law principles developed in the United States as supporting their position.

The common law of the United States has seen significant movement on the question of sovereign immunity during the past two hundred years. When the United States initiated constitutional self-government the courts uniformly accepted the notion of sovereign immunity. Throughout the first 160 years of United States governmental history, the doctrine normally was applied in about the manner sought by the State of Pohnpei here. That is, except to the extent a state or national government had consented to be sued, it was held to be immune from suit by virtue of its sovereignty.

However, at a time roughly corresponding with the beginning of United States administration of the Trust Territory of the Pacific Islands, scholars, and legal commentators and courts within the United States began first to question, then to assail, the doctrine of sovereign immunity. Since that time a virtual tidal wave has swept through the field of sovereign immunity, leaving but remnants behind. Nearly every jurisdiction has reviewed, and either abolished or radically modified, its application of the doctrine. 10

[2 FSM Intrm. 162]

In most instances, the changes have been wrought by legislatures, but courts have also abolished or restricted the doctrine in some states. 11 Apparently the most recent to do so is the South Carolina Supreme Court. In a case argued during October 1984, the month before the Pohnpei Constitution went into effect, that court referred to sovereign immunity as "archaic and outmoded." Noting that "few principles of modern law have been so uniformly criticized" as the sovereign immunity doctrine, the South Carolina Supreme Court abolished that state's sovereign immunity from general tort liability. McCall ex rel. Andrews v. Batson, No. 22290, 329 S.E.2d 741 (S.C. 1985) (copy provided to parties).

Now only two states, Maryland and Mississippi, of the fifty within the United States uphold the kind of unrestricted sovereign immunity which the State of Pohnpei seeks for itself in this motion. W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton on the Law of Torts 1044 (5th ed. 1984).

The revolution has been so complete that the rule now is that "the State and its agencies are subject to liability in tort .... subject ... to any legislative restrictions that may be imposed upon it and also to certain recognized exceptions at common law." Restatement (Second) Of Torts § 895B comment b (1979).

As already implied, the principal arguments made today against abolition of sovereign immunity are not based upon the merits of the doctrine itself, but flow from the long line of decisions in every jurisdiction upholding governmental immunity. One line of thought is that the precedential force of those earlier decisions is simply too great to permit change now. 12 The other is that if anybody should make the change, it should be the legislatures, not the courts. 13

Neither argument works in favor of governmental immunity here. We have no previous decision, therefore no stare decisis in favor of sovereign immunity. Luda v. Maeda Road Constr. Co., [1985] FMSC 20; 2 FSM Intrm. 107, 112 (Pon. 1985). Moreover since no source of governmental immunity has been found, this Court would have to create, not merely refrain from abolishing sovereign immunity in order to grant the state's motion. Judicial restraint here, then, works against the state, not for it.

[2 FSM Intrm. 163]

It is also sometimes argued that sovereign immunity is necessary to prevent undue interference with the operations of government. These conventions also take two forms, one that claims could so deplete the public treasury as to bring the government to a standstill, and the other that exposure to tort liability could wreak havoc with the policy setting and decision making functions of government.

Neither convention compels the adoption of sovereign immunity here. Refusal of the courts to announce or establish the doctrine of sovereign immunity does not prohibit states from creating sovereign immunity by statute. Thus, legislatures retain the power to establish immunity reasonably calculated to protect the public treasury and operations of government.

Moreover, even where no sovereign immunity exists, all courts recognize limitations upon the power of litigants and courts to intrude into the discretionary and policy making activities of government. These limitations, though, derive from constitutional considerations more subtle than naked claims of sovereign immunity. See People of Kapingamaranqi v. Pohnpei Legislature, [1985] FMPSC 3; 3 FSM Intrm. 5 (Pon. S. Ct. Tr. 1986). See also Prosser and Keeton on Torts, supra, at 1046.

As already noted, the historical underpinnings of the doctrine are weak indeed. In any event, we should not look to English practices at the time of the American revolution for common law guidance, but to principles of the common law of other jurisdictions as of the time when we need to adopt a principle for the common law here. Rauzi v. FSM, 2 FSM Intrm. 8, 17 (Pon. 1985). To put it mildly, the common law today furnishes no compelling arguments for judicial adoption of sovereign immunity.

Instead, most writings of courts and legal thinkers today are to the effect that sovereign immunity is just too radically at odds with the "basic concept underlying the entire field of tort law that liability follows negligence and that individuals and corporations are responsible for the negligent acts of their agents and employees, acting in the course of their employment." Smith v. State, 473 P.2d 937, 942 (Idaho 1970). It is now generally thought

incredible that...the entire burden of damage resulting from the wrongful acts of the government should be imposed upon the single individual who suffers the injury, rather than distributed among the entire community constituting the government, where it could be borne without hardship upon any individual, and where it justly belongs.

Hicks v. State, 544 P.2d at 1156 ((quoting Molitor v. Kaneland Community Unit Dist. No. 302, 163 N.E.2d 89, 94 (Ill. 1959)).

Conclusion

Finding no existing source for the absolute immunity claimed for the

[1986] FMSC 23; [2 FSM Intrm. 164]

state here, this Court declines to establish such immunity. If sovereign immunity from tort liability is to be created, it will have to be done by the legislature. The motion to dismiss is denied.

_______________________________________
Endnotes:

1. A motion to dismiss for failure to state a claim upon which relief may be granted is authorized by Rule 12(b)(6) of our Rules of Civil Procedure. The movant is regarded as admitting the material allegations of the complaint, for purposes of such a motion. This has been the longstanding interpretation under the United States Federal Rules of Civil Procedure, upon which our Rules of Civil Procedure are based. Hosp. Bldg. Co. v. Trustees of the Rex Hosp., [1976] USSC 86; 425 U.S. 738, 740[1976] USSC 86; , 96 S. Ct. 1848, 1850, 48 L. Ed. 2d 338, 341 (1976).

2. Similar claims are made against the national government of the Federated States of Micronesia, but are not put into issue by this motion.

3. "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI.

4. More narrow issues could require factual analysis, thus might not be resolvable by a Rule 12(b)(6) motion to dismiss in any event. Under Rule 12(b)(6) of the United States Federal Rules of Civil Procedure, a motion to dismiss is not to be granted unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. Haines v. Kerner, [1972] USSC 29; 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972).

5. "Immunities. Members of the Legislature shall in all cases, except felony or breach of the peace, be privileged from arrest during and while going to or returning from sessions or committee meetings of the Legislature. A member is responsible only to the Legislature for his statements in the Legislature or a committee thereof." Pon. Const. art. 7, § 7.

6. The parties in their arguments and memoranda have debated whether 6 F.S.M.C. §§ 601-03 remain in effect in Pohnpei today. That is of no moment. Those sections, by their terms, relate only to the liability of the Trust Territory Government, not to the new constitutional governments. See, e.g., In re Raitoun[1984] FMSC 10; , 1 FSM Intrm. 561, 564 (App. 1934); Ray v. Electrical Contracting Corp., 2 FSM Intrm. 21, 23 n.1 (App. 1985); Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 73 n.5 (Pon. 1985).

7. The case commonly cited as establishing the precedent for sovereign immunity in the United States is Mower v. Inhabitants of Leicester, 9 Mass. 247 (1812), which in turn relied on the reasoning of an earlier English case, Russel v. Men of Devon, [1788] EngR 226; 100 Eng. Rep. 359 (K.B. 1788). Some historians assert that the early American courts misconstrued the expression, "the king can do no wrong." Scholars have mounted impressive evidence that the phrase should not have been interpreted as meaning that whatever the king does is correct Instead, they say, the phrase meant that the king must not, was not allowed, not entitled to, do wrong. Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1, 4 (1963), and authorities cited there. Indeed, American and English scholars have pointed out that the normal practice was for "substantial relief" to be granted by the king in response to petitions by commoners. Muskopf v. Corning Hosp. Dist., 359 P.2d. 457, 458 (Cal. 1961).

8. In re Iriarte (II)[1983] FMSC 2; , 1 FSM Intrm. 255, 271 (Pon. 1983).

9. The histories and anthropological studies cited here are "sources whose accuracy cannot reasonably be questioned." I take judicial notice of their findings pursuant to Rule 201(b)(2) of this Court's Rules of Evidence.

10. The decided trend against sovereign immunity has not been limited to the United States. Worldwide, there has been a "growing tendency in most states under the rule of law to limit severely the sovereign prerogative insofar as it granted immunity to the home sovereign from actions in contract and tort in its own courts." Singer, Abandoning Restrictive Sovereign Immunity; An Analysis in Terms of Jurisdiction to Prescribe, 26 Harv. Int'l L.J. 1, 8 (1985) (citing Lauterpacht, The Problem of Jurisdictional Immunities of Foreign States, 28 Brit. Y.B. Int'l L. 220, 221 (1951)).

11. Examples available in this Court's library include Vanderpool v. State, 672 P.2d 1153 (Okla. 1983), Hicks v. State, 544 P.2d 1153 (N.M. 1975); Smith v. State, 473 P.2d 937 (Idaho 1970); Carroll v. Kittle, 457 P.2d 21 (Kan. 1969).

12. Hicks v. State, 544 P.2d at 1159-60 (specially concurring); Carroll v. Kittle, 457 P.2d at 30 (dissent).

13. Kelso v. City of Tacoma, 390 P.2d 2, 4 (Wash. 1964); Vanderpool v. State, 672 P.2d 1153, 1158 (Okla. 1983) (dissent).