Hartman v Federated States of Micronesia [1993] FMSC 53; 6 FSM Intrm. 293 (App. 1993) (27 December 1993)

THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Hartman v. FSM, [1993] FMSC 53; 6 FSM Intrm. 293 (App. 1993)

[1993] FMSC 53; [6 FSM Intrm. 293]

PAULUS HARTMAN, WILLIAM LADORE, and KASIANO PRIMO,
Appellants,

vs.

FEDERATED STATES OF MICRONESIA,
Appellee.

APPEAL CASE NO. P6-1992

OPINION

Hearing: September 16, 1993
Decided: December 27, 1993

BEFORE:
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Martin Yinug, Associate Justice, FSM Supreme Court
Hon. Lyndon L. Cornelius, Temporary Justice, FSM Supreme Court*

*Chief Justice, Kosrae State Court, Lelu, Kosrae

APPEARANCES:

For the Appellant (Paulus Hartman):
Dennis K. Yamase, Esq.
Office of the Vice President of the Republic of Palau
P.O. Box 100
Koror, Palau PW 96940

For the Appellant (William Ladore):
Joseph S. Phillip, Esq. (brief)
Shirley Paiz, Esq. (reply brief and argued)
Office of the Public Defender
P.O. Box PS-174
Palikir, Pohnpei FM 96941

For the Appellant (Kasiano Primo):
John A. Brackett, Esq.
P.O. Box 208
Kolonia, Pohnpei FM 96941

For the Appellee:
Kevin P. Shea, Esq. (brief)
Acting Pohnpei Attorney General
Joi L. Saylor, Esq. (argued)
Assistant Attorney General
Office of Pohnpei Attorney General
Kolonia, Pohnpei FM 96941

[6 FSM Intrm. 294]

* * * *

HEADNOTES

Appeal and Certiorari; Civil Procedure
Although, ordinarily, an issue must be raised at the trial level for it to be preserved for appeal, whether a court has subject matter jurisdiction is an issue that may be raised at any time. Hartman v. FSM, [1993] FMSC 53; 6 FSM Intrm. 293, 296 (App. 1993).

Courts - Judges; Separation of Powers
In order for a Congressional statute to give the court valid authority in those areas which the Constitution grants the Chief Justice rule-making powers the Chief Justice does not first have to promulgate a rule before Congress may legislate on the same subject. Hartman v. FSM, [1993] FMSC 53; 6 FSM Intrm. 293, 297 (App. 1993).

Courts - Judges; Public Officers and Employees
If someone constitutionally ineligible for appointment, is appointed a judge then his status is that of a de facto judge. A de facto judge is one who exercises the duties of the judicial office under the color of an appointment thereto. Where there is an office to be filled, and one, acting under color of authority, fills the office and discharges its duties, his actions are those of an officer de facto, and binding on the public. Hartman v. FSM, [1993] FMSC 53; 6 FSM Intrm. 293, 298-99 (App. 1993).

Courts - Judges
Since the acts of a de facto judge are valid against all except the sovereign and generally not subject to collateral attack, the proper method to question a de facto judge's authority is through a quo warranto proceeding brought by the sovereign. Hartman v. FSM, [1993] FMSC 53; 6 FSM Intrm. 293, 299 (App. 1993).

Courts - Judges
The view that the de facto doctrine, where applicable, should operate to prevent challenges to the authority of special judges, acting under color of right, by private litigants, in the proceedings before them is better suited for the social and geographical configuration of Micronesia. Hartman v. FSM, [1993] FMSC 53; 6 FSM Intrm. 293, 299 (App. 1993).

Criminal Law and Procedure; Criminal Law and Procedure - Aiding and Abetting; Criminal Law and Procedure - Standard of Proof
When there are verdicts that are inconsistent to such an extent that an essential element cannot be proven beyond a reasonable doubt a resulting conviction is reversible error. Thus when someone is convicted of a charge for which an essential element is being aided and abetted by another and that other is acquitted of being an aider and abettor the conviction is reversible error for failure of proof beyond a reasonable doubt of the essential element of being aided and abetted. Hartman v. FSM, [1993] FMSC 53; 6 FSM Intrm. 293, 300-01 (App. 1993).

Criminal Law and Procedure - Interrogation and Confessions
Use of a defendant's out of court statement as evidence against a codefendant would violate the codefendant's "right of confrontation" since the declarant is not a witness at the trial subject to cross examination. Hartman v. FSM, [1993] FMSC 53; 6 FSM Intrm. 293, 301 (App. 1993).

[6 FSM Intrm. 295]

Criminal Law and Procedure - Interrogation and Confessions; Criminal Law and Procedure - Joinder and Severance
If severance is denied, the defendants' out of court statements ought to be redacted to eliminate in each references to other codefendants. Failure to do so may result in reversal of convictions in the interests of justice. After redaction, no prejudice will occur if the statements then give no reference to any codefendant. Redaction can normally be accomplished by the parties. Thus the court will not view the statement until after redaction. Hartman v. FSM, [1993] FMSC 53; 6 FSM Intrm. 293, 301-02 & n.12 (App. 1993).

* * * *

RICHARD H. BENSON, Associate Justice:

PROCEDURAL HISTORY

This is the second appeal of this case. The opinion in the first case is reported at [1991] FMSC 28; 5 FSM Intrm. 224 (App. 1991). That decision remanded the case to the trial court

1) for its findings as to the use of out-of-court statements of two defendants as evidence against codefendants,

2) for its findings as to whether the two defendants waived their right to remain silent, and

3) for findings as to each defendant including whether the aiders had the requisite intent, and whether the aiding was done while the sexual assaults were occurring.

The order on remand of the trial judge entered September 21, 1992 appears at [1992] FMSC 20; 5 FSM Intrm. 350 (Pon. 1992). The court's findings, in response to our decision, are

1) that the out-of-court statements were only used as evidence against the declarant,

2) that the two defendants who gave statements each did so voluntarily, without coercion, and after being advised of his rights and did thus waive their right to remain silent, and

3) that what occurred in the nahs constituted a "single contemporaneous series of events"; "mutually supporting the general plan" to commit group rape. Findings were given for each of the defendants separately.

Appellants by an Appellate Rule 27 motion, and later Kasiano Primo, by his brief, raise an issue of the trial court's authority to issue its order. A statement of the background of this issue follows. After our order remanding the case on October 31, 1991 and before the trial court's decision entered September 21, 1992, the trial judge had left his position as chief justice on June 1, 1992. In August of 1992, the acting chief justice appointed the former chief justice as a temporary designated justice to handle this and other cases.

We will not restate the factual circumstances of the offenses since they are set out in our earlier opinion.

[6 FSM Intrm. 296]

ISSUES AND HOLDINGS

In order to arrive at a proper mandate only the following need be decided:

1. Because no rules were promulgated by the chief justice as authorized by the Constitution, and assuming the chief justice did not retire making him eligible for assignment as a special justice, is the September 1992 order void?

We conclude that it is not.

2. Is the conviction of Paulus Hartman of aggravated sexual assault in that he was aided by William Ladore who held the victim precluded by the finding of not guilty of William Ladore of aiding Paulus Hartman by holding the victim?

We conclude that it is.

3. Does the record reflect that out-of-court statements of non-testifying defendants were used as evidence against codefendants?

We conclude that they were.

I. VALIDITY OF THE REMAND COURT'S ORDERS

A preliminary matter to be decided is the validity of the trial division rulings now appealed from. Appellants challenge Acting Chief Justice Andon L. Amaraich's appointment of former Chief Justice Edward C. King as a Temporary or Designated Justice as unconstitutional or unlawful.^[1] From this point the appellants then argue that the former Chief Justice's rulings on remand are all null and void.

Ordinarily, an issue must be raised below for it to be preserved for appeal. Paul v. Celestine, [1990] FMSC 2; 4 FSM Intrm. 205, 210 (App. 1990). However, whether a court has subject matter jurisdiction is an issue that may be raised at any time. Cf. FSM Civ. R. 12(h)(3). Authority exists that a defect in the judicial authority of a judge is jurisdictional and can thus be raised for the first time on appeal. 46 Am. Jur. 2d Judges § 246, at 265-66 (1969).^[2] We will therefore consider the issue.

[6 FSM Intrm. 297]

Special Assignments

Appellants cite article XI, section 9(b) which states that "the Chief Justice . . . by rule may . . . (b) . . . give special assignments to retired Supreme Court justices and judges of state and other courts." The appellants argue first that since the Chief Justice has never promulgated a rule governing special assignments that any special assignment is void. However, section 9(f) of article XI states: "Judicial rules may be amended by statute." Congress has provided a statute granting the Chief Justice the authority to make special assignments. 4 F.S.M.C. 104.

When faced with a similar challenge to a special appointment, the Appellate Division commented: "Where Congress has acted pursuant to its constitutional authority to provide statutory authority to the Court, the Court need not have exercised its concurrent rule-making authority." Jano v. King, [1992] FMSC 11; 5 FSM Intrm. 326, 331 (App. 1992). This is the situation envisioned by the framers of the Constitution. "It is intended that the chief justice can make and promulgate the rules authorized under this section. The rules can be amended by the chief justice as long as such rules have not been enacted into law by the legislature." SCREP No. 49, II J. of Micro. Con. Con. 876, 880.

Congress has enacted into law statutory rules for special assignments. 4 F.S.M.C. 104. Since the framers of the Constitution intended that a rule enacted by Congress could not be altered by the Chief Justice, the idea that the Chief Justice must first promulgate a rule before Congress may legislate on the subject does not withstand the test of reason. We therefore see no reason to deviate from our earlier holding in Jano v. King.

The second contention is whether the former Chief Justice is a person who was constitutionally eligible for appointment as a Temporary Justice.^[3] Section 9(b) limits those who may be appointed to "retired Supreme Court justices and judges of state and other courts." Since the former Chief Justice is not a judge of a state or other court^[4] the key to the validity of former Chief Justice King's appointment is whether he is a "retired Supreme Court justice." If he is not, then he is constitutionally ineligible to be appointed. His appointment would thus be constitutionally void.

The appellants further argue that the former Chief Justice could not have retired because he submitted his resignation before he attempted to retire and because he has not reached retirement age. Appellants emphasize that resignation and retirement are not synonymous.

The Chief Justice may make rules governing the retirement of judges. FSM Const. art. XI, § 9(e). This power has not been exercised. Nor has Congress acted. There is thus no set procedure to follow for a Supreme Court justice to retire, and in the absence of any rule, statute, or

[6 FSM Intrm. 298]

constitutional provision, there is no minimum retirement age set specifically for Supreme Court justices.^[5]

The Constitution, however, clearly contemplates that justices can retire. We are thus left to look at the plain meaning of the word. "Retire" is defined as: "To terminate employment or service upon reaching retirement age." Black's Law Dictionary 1183 (5th ed. 1979). Thus without a set retirement age for justices it is doubtful that the former Chief Justice, who was 51 at the time, had reached retirement age. It is therefore possible that he has not retired as contemplated by the Constitution and is thus not eligible for appointment as a temporary justice.^[6]

Judges de facto

The issue with which we are properly concerned, however, is not whether the former Chief Justice was constitutionally eligible for appointment as a temporary justice, but whether the rulings he made as a Temporary Justice are valid. Therefore, assuming, for the sake of argument, former Chief Justice King was constitutionally ineligible for appointment as a temporary justice what effect would this ineligibility have on the rulings he made as a temporary justice?

If he was constitutionally ineligible for appointment, then his status is that of a de facto judge. "A de facto judge has been briefly defined as one who exercises the duties of the judicial office under the color of an appointment . . . thereto." 46 Am. Jur. 2d Judges § 241, at 261 (1969). "The de facto judge thus differs on the one hand from a usurper who undertakes to act officially without any color of right, and on the other from a judge de jure who is in all respects legally appointed and qualified." Id. "Among those recognized as de facto judges are those who exercise judicial duties . . . under color of a known . . . appointment, void because the officer was not eligible . . . such ineligibility . . . being unknown to the public." Id. § 243, at 263. This describes the former Chief Justice's situation. He exercised his duties under the color of a known appointment, but, unknown to the public, was, presumably, ineligible.

Judicial acts performed by a de facto judge are valid. 46 Am. Jur. 2d Judges § 245 (1969).

A judge de facto is, to all intents and purposes, a judge de jure as to all persons except the [sovereign]. Acts performed by a de facto judge are not invalid but are just as valid for all purposes as those of a de jure judge, so far as the public or third persons who are interested therein are concerned.

Id. "[T]he rule is well settled that where there is an office to be filled, and one, acting under color of authority, fills the office and discharges its duties, his actions are those of an officer de facto,

[6 FSM Intrm. 299]

and binding on the public." McDowell v. United States, [1895] USSC 231; 159 U.S. 596, 601-02[1895] USSC 231; , 16 S. Ct. 111, 113[1895] USSC 231; , 40 L. Ed. 271, 274 (1895).

There are strong public policy reasons why this rule is generally followed in American and other jurisdictions, and why this rule should be followed in the Federated States of Micronesia. If the rule were otherwise then every judicial officer's authority could repeatedly be subjected to collateral attack back to the source of his authority, and the qualifications of the source of authority could also then be challenged. 46 Am. Jur. 2d Judges § 241, at 262 n.4 (1969).

Since the acts of a de facto judge are valid against all except the sovereign and generally not subject to collateral attack, Ball v. United States, [1891] USSC 155; 140 U.S. 118, 128-29[1891] USSC 155; , 11 S. Ct. 761, 765[1891] USSC 155; , 35 L. Ed. 377, 382 (1891), the proper method to question a de facto judge's authority is through a quo warranto^[7] proceeding brought by the sovereign. 46 Am. Jur. 2d Judges § 246, at 265 (1969); 65 Am. Jur. 2d Quo Warranto § 18, at 241 (1972). "[E]xcept where local statutes provide otherwise, an information in the nature of quo warranto can be instituted only at the discretion of the attorney general, with his consent, and upon his official responsibility." 65 Am. Jur. 2d Quo Warranto § 64, at 274 (1972).

There is a split of authority on whether the de facto doctrine applies to special judges. One view is that the de facto doctrine does not preclude a party's challenge of a special judge's authority on the highly technical ground that a special judge does not assume to have any title to office.^[8] 46 Am. Jur. 2d Judges § 259, at 274-75 (1969); H.D. Warren, Annotation, Right of Party in Course of Litigation, to Challenge Title or Authority of Judge or Person Acting as Judge, 144 A.L.R. 1207, 1214-16 (1943).

"[T]he position has also been taken that the de facto doctrine, where applicable, should operate to prevent challenges to the authority of special, substitute, or pro tem judges, acting under color of right, by private litigants, in the proceedings before them . . . ." 46 Am. Jur. 2d Judges § 259, at 275 (1969). See also Warren, supra, 144 A.L.R. at 1216.

The latter view is better suited for our adoption. One of the Judicial Guidance clause's mandates is that "[c]ourt decisions . . . shall be consistent with . . . the social and geographical configuration of Micronesia." FSM Const. art. XI, § 11. The social and geographical configuration of Micronesia has required frequent appointment of temporary justices. Indeed, until 1992 every appellate panel of the Supreme Court of the Federated States of Micronesia has included one or more temporary justices. We therefore adopt the de facto doctrine as an appropriate rule of law for the Federated States of Micronesia to apply to temporary justices in light of our social and geographical configuration.

[6 FSM Intrm. 300]

Summary

The former Chief Justice was appointed a temporary justice pursuant to the procedures provided by statute. He held that office under a color of right. If he was constitutionally ineligible to hold that office then his status was that of a judge de facto instead of a judge de jure. The acts of a judge de facto are as valid, as to the parties before him, as those of a judge de jure. Only the sovereign may question a de facto judge's right to title and authority to act. Therefore the former Chief Justice's judgment and rulings entered September 21, 1992 are valid as to the appellants. The appellants are without standing to question the former Chief Justice's authority to rule thereon. The question of whether the former Chief Justice is constitutionally ineligible for appointment as a temporary justice is not squarely before the Court and is not decided because the issue that concerns us is the validity of his rulings and because the appellants are not the proper parties to challenge his designation as a Temporary Justice.

II. INCONSISTENT VERDICTS

Count I(a) of the information accused Paulus Hartman and the codefendants of aggravated sexual assault in that each "while being aided and abetted by one or more of the other defendants" sexually assaulted the victim. The trial court found that Paulus Hartman had been aided and abetted by "William Ladore and at least one more accomplice who assisted Hartman by holding the victim while Hartman disrobed her and subjected her to sexual penetration." Hartman v. FSM, [1992] FMSC 20; 5 FSM Intrm. 350, 352 (Pon. 1992). (This same special finding appears in the original findings.)

In Count I(b) of the information the three defendants were accused of committing sexual assault by each aiding and abetting the other to commit aggravated sexual assault. The particular act of which William Ladore was accused is set out in the same count as follows: "Kasiano Primo and William Ladore did so by holding the victim for Paulus Hartman."

All defendants were acquitted of this accusation. Thus the posture of Paulus Hartman's conviction of Count I(a) is that the element of aggravation (being aided and abetted by one or more of the other defendants) was found to exist by the trial court, while the trial court could not find the aider guilty of the same act under Count I(b).

It should be noted that because Count I(a) requires that the aid be given by a codefendant, the court's finding that the aid to Paulus Hartman was given by William Ladore and at least one more accomplice, does not affect the point at issue. Paulus Hartman contends that the unnamed accomplice does not provide the element alleged in I(a). The government does not dispute this contention, and we agree.

Paulus Hartman contends that the acquittal of William Ladore as an aider under Count I(b) results in the failure of proof as to the aggravating element required to convict him under I(a). He cites our cases which require proof beyond a reasonable doubt as to all elements of an accusation before the due process requirements for a conviction are fulfilled. Ludwig v. FSM, 2 FSM Intrm. 27, 35, 37 (App. 1985) (beyond a reasonable doubt as to each element; applied); Alaphonso v. FSM, [1982] FMSC 22; 1 FSM Intrm. 209, 223 (App. 1982) (as to burden of proof).

In New York inconsistent verdicts such as are presented in our case result in reversible error. In People v. Monroe, 83 N.E. 476 (N.Y. 1908) two men were accused of robbery in the first degree in that each committed the offense "then and there, aided" by the codefendant. Monroe's codefendant was acquitted and Monroe was convicted.

[6 FSM Intrm. 301]

Robbery in the first degree required the element of the perpetrator "being aided by an accomplice actually present." The court stated, "The acquittal of [the codefendant] amounted to this, in substance: The jury found that [the codefendant] was not actually present at the time of the robbery aiding Monroe." Id. at 477. Thus an essential element was lacking and the inconsistent verdicts required a reversal of Monroe's conviction.

Two recent New York intermediate court decisions relied on the Monroe case when presented with a similar issue. People v. Hicks, 522 N.Y.S.2d 65 (N.Y. App. Div. 1987); People v. Fallon, 432 N.Y.S.2d 225, 226 (N.Y. App. Div. 1980) ("finding that the codefendants were not aiders or abettors makes it legally impossible for appellant to be guilty of robbery on the theory of being aided by another person actually present").

For the reasons stated, the conviction of Paulus Hartman must be reversed.

III. USE OF OUT-OF-COURT STATEMENTS

In our first opinion in this case, Hartman v. FSM, [1991] FMSC 28; 5 FSM Intrm. 224, (App. 1991), we expressed concern that the record seemed to reflect that the trial court had used the statements of Kasiano Primo and William Ladore against codefendants, and gave examples. Id. at 235 n.9, 236. As set out in some detail in the first opinion, id. at 229, use of the statement of a defendant as evidence against a codefendant would violate the codefendant's "right of confrontation"^[9] since the declarant is not a witness at the trial subject to cross examination.

In its order on remand the trial court responded to our request that it address the question of the use of the statements. "[T]he court confirms that neither of these statements has been considered as against any defendant other than the one who made the particular statement." Hartman, 5 FSM Intrm. at 353. The court then added, "The court also reiterates that neither statement is necessary as a basis for the findings discussed above of guilt beyond a reasonable doubt." Id.

This grave question of the use of the statements would not have arisen, once severance was denied, had the statements been redacted^[10] to eliminate in each references to either codefendant. Redaction is discussed in the first opinion, Hartman v. FSM, 5 FSM Intrm. at 230 n.4.

In pretrial proceedings Kasiano Primo joined in the motion for a severance of the trial of the defendants, moving alternatively, if severance were denied, for redaction of the statements. In denying both motions ) severance and redaction ) the court explained why it was denying redaction:

The question of whether this Court should suppress -- or sever defendants on the grounds of the existence of statements by codefendants is a fundamental one facing the Court. The Court is aware that judges just like juries are human and that there is always some question as to whether one can glance [sic] from one's mind a

[6 FSM Intrm. 302]

statement that is made by another person seems incriminatory of a particular defendant. On the other hand, one can certainly see why judges usually want to look at the various statements and find out specifically to what extent they do conflict with each other, and to find out what problems that will create. And it is also true that judges are required in this system, certainly, to look at statements that seem to be inculpatory and suppress those statements on occasion, and then go right on and try the case.^[11] And the judge is required to keep in mind that that is not evidence that may be considered for purposes of determining guilt or innocence. I believe our system of jurisprudence is committed already to the idea that judges have to have that ability. Or at least a kind of a policy statement that they do have that ability. And if they do not have it they better get it. They better work on it. Of course, to the extent that there are radical differences in the statements they may raise questions of credibility and even weaken the judge's confidence, that he knows exactly what happened and may sometimes even be to the benefit of the defendants. I do not [sic] it is inherently unfair for judges to look at this information. On the other side, anytime a court cuts out information, statements made by somebody, the judge may -- will certainly reduce the evidence available to him that is relevant and of assistance in making a fair determination and may ironically, in the name of seeking to uphold the rights of the parties, may reduce justice. This is all a long way of leading up to my statement that I believe that a court can proceed fairly and look at the statements of codefendants. And that conflicting views of defendants can be weighed and the facts can be weighed carefully if parties are trying together.

Trial Transcript at 63-64 (emphasis added).

These statements are not consistent with the use of confessions only to inculpate the one making the statement; and read in conjunction with the court's original findings, cause us continued concern. The statements in issue are in the form of short questions and answers. They are filled with answers that inculpate a codefendant. Of the 40 answers William Ladore gave, 8 inculpate a codefendant; of Kasiano Primo's 40 answers, 15 inculpate either William Ladore or Paulus Hartman.

Because the Standards of the American Bar Association state that redaction is workable only when the statement, when redacted, would not prejudice a codefendant, we have reviewed the statements in this light. A.B.A. Standards § 13-3.2(a) (quoted in Yale Kamisar, Wayne R. LaFave & Jerold H. Israel, Modern Criminal Procedure 1079 (6th ed. 1986)). It appears that after redaction,^[12] no prejudice would occur because the statements would then give no reference to any codefendant. And because testimony showed that people other than the defendants were present at the scene this would make identification and incrimination of a codefendant through the redacted statements even more unlikely.

[6 FSM Intrm. 303]

We do not question the trial court's knowing the proper use of the statements or that he intended and tried to exclude the statement where improper as evidence against a codefendant. But his words cause us to believe that he was not entirely successful. When the full statements are before the court, it is difficult to exclude parts from one's reasoning. We repeat here the words of Judge Learned Hand appearing in United States v. Delli Paolo, [1956] USCA2 192; 229 F.2d 319, 321 (2d Cir. 1956), aff'd, 352 U.S. 232 (1957) which were quoted in our first opinion.

It is indeed very hard to believe that a jury will, or for that matter can, in practice observe the admonition. Possibly it would be extreme to say that nobody can ever so far control his reasoning that he will not in some measure base his conclusion upon a part of the relevant evidence before him, which he has been told to disregard; but at least it is true that relatively few persons have any such power, involving as it does a violence to all our habitual ways of thinking.

Hartman v. FSM, [1991] FMSC 28; 5 FSM Intrm. 224, 229-30 (App. 1991).

For the reasons stated, the record reveals that statements of defendants appear to have been used to inculpate codefendants, we reverse the convictions in the interest of justice.

The trial division shall dismiss the amended information if the prosecution has not initiated further proceedings within a reasonable time not to exceed 120 days.

* * * *

---

^[1] This issue was first raised on appellate level, originally in a brief and an FSM Appellate Rule 27 motion filed Oct. 8, 1992, and later in Kasiano Primo's appellant's brief.

^[2] See also Glidden Co. v. Zdanok, [1962] USSC 121; 370 U.S. 530, 535-37[1962] USSC 121; , 82 S. Ct. 1459, 1464-66, 8 L. Ed. 2d 671, 678-79 (1962) (challenge of two temporary judges, one in a criminal case, as constitutionally ineligible for appointment as temporary judges could be raised for first time on appeal since the alleged defect was "jurisdictional"); Lamar v. United States, [1916] USSC 137; 241 U.S. 103, 117-18[1916] USSC 137; , 36 S. Ct. 535, 540[1916] USSC 137; , 60 L. Ed. 912, 918 (1916) (challenge to constitutional authority of a temporarily assigned judge heard and decided on its merits although the issue was first raised by a supplemental brief filed after the appellant's second request for U.S. Supreme Court review).

^[3] Persons given special assignments must also meet the qualifications for Supreme Court justices found in 4 F.S.M.C. 107, and the Chief Justice must notify both the President and Congress of their appointment. 4 F.S.M.C. 104. No one disputes that former Chief Justice King meets the 4 F.S.M.C. 107 qualifications, and that Acting Chief Justice Amaraich formally notified both the President and Congress by letter dated August 3, 1992, of Edward C. King's appointment.

^[4] We are uncertain whether service as a temporary justice in another jurisdiction qualifies as a judge of another court. No party raised or argued this point. The record before us is thus barren. In view of our holding, infra, adopting the de facto doctrine we do not decide this point.
^[5] The retirement age for FSM social security benefits is 60. 53 F.S.M.C. 302(2). This is the only set FSM retirement age.

^[6] Stewart v. Bird, 100 Cal. App. 3d 215, 160 Cal. Rptr. 660 (1979) (discussed at 46 Am. Jur. 2d Judges § 248, at 120 (Supp. 1993)) supports the appellants' position. In Stewart the plaintiff, a former judge, was denied the right to receive special assignments because the statute limited special assignments to "retired" judges. To be a retired judge, he had to have met the age and length of service requirements of the county retirement plan and have a retirement allowance. The plaintiff was not a retirement plan member, and had not received any retirement benefits due to his judicial service. He therefore was not a "retired" judge. Id.
^[7] Quo warranto is a common law writ and remedy which has been enacted into statute in many jurisdictions. Id. §§ 1-3. Even though not enacted into statute in this jurisdiction this Court would have the power to hear such a case if properly brought. 4 F.S.M.C. 117 ("The Supreme Court . . . shall have power to issue all writs and other process . . . as may be necessary for the due administration of justice . . . .").

^[8] Many cases holding this view turn on the existence of a statute requiring the litigants' approval before a special judge can sit. See, e.g., National Bank of Washington v. McCrillis, 130 P.2d 901, 906 (Wash. 1942). There is no such statute in the Federated States of Micronesia.
^[9] "The defendant in a criminal case has a right . . . to be confronted with the witnesses against him . . . ." FSM Const. art. IV, § 6.

^[10] "redact: to select or adapt for publication: edit." Webster's Ninth New Collegiate Dictionary 986 (1985).

^[11] We are not sure what procedure the trial judge is referring to here, however, it prompts us to observe that reading the statement is not necessary either when the court is asked to suppress a statement pursuant to FSM Criminal Rule 12(b)(3), or when faced with an objection (if not waived by failure to move pretrial) to the admission of a statement at trial.
^[12] Redaction can normally be accomplished by the parties. Thus the court will not view the statement until after redaction