In re Neron [2009] FMSC 30; 16 FSM Intrm. 472 (Pon. 2009) (4 June 2009)

FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2009-019

IN RE THE PETITION OF ROBERT NERON,
Petitioner.

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ORDER AND MEMORANDUM

Andon L. Amaraich
Chief Justice

Decided: June 4, 2009

APPEARANCE:

For the Petitioner: Joseph Leo Robert Neron, pro se
14525 SW Milikan
Beaverton, Oregon 97005-2343

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HEADNOTES

International Law
What is now the Federated States of Micronesia was a part of the Trust Territory of the Pacific Islands during the United Nations Trusteeship, and the government of the Trust Territory was not an agency of the United States. When the present Federated States of Micronesia was part of the Trust Territory of the Pacific Islands, the Federated States of Micronesia was a foreign country relative to the United States, and not a U.S. territory. In re Neron[2009] FMSC 30; , 16 FSM Intrm. 472, 473-74 (Pon. 2009).

Compact of Free Association
After the commencement of full self-government in 1986, the Federated States of Micronesia remained, from the United States's perspective, a foreign country. Under the Compact of Free Association with the United States, the Federated States of Micronesia is a sovereign and independent nation. In re Neron[2009] FMSC 30; , 16 FSM Intrm. 472, 474 (Pon. 2009).

International Law
The Federated States of Micronesia is not, and historically was not, a U.S. territory. In re Neron[2009] FMSC 30; , 16 FSM Intrm. 472, 474 (Pon. 2009).

Constitutional Law  Interpretation
The FSM Constitution is based in great part on the U.S. Constitution, but there are significant differences between the two, and where such differences exist, they presumably represent a conscious effort by the framers to select a road other than that paved by the United States Constitution. In re Neron, [2009] FMSC 30; 16 FSM Intrm. 472, 474 (Pon. 2009).

Constitutional Law
The FSM Constitution contains no privileges and immunities clause. In re Neron[2009] FMSC 30; , 16 FSM Intrm. 472, 474 (Pon. 2009).

Attorney and Client  Admission to Practice
An argument that the residency requirement for foreign citizens to take the FSM bar exam violates the U.S. Constitution's privileges and immunities clauses is without merit. In re Neron[2009] FMSC 30; , 16 FSM Intrm. 472, 474 (Pon. 2009).

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COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

On May 20, 2009, the petitioner Robert Neron ("Neron") filed his "Petition for Waiver of the Rules of Admission Regarding Residency & Domiciliary Requirement." Neron asks the court to waive the residency requirement of Rule 4(c) of the Rules for Admission to Practice Before the Supreme Court of the Federated States of Micronesia ("Rules for Admission"). That rule provides in part that "[e]ach [non-FSM citizen] applicant shall be a resident or domiciliary of the Federates States of Micronesia." The Rules for Admission do not provide for a waiver of the residency requirement. Neron, however, makes the following argument:

In passing 45 U.S.C. Sec. 1561, the U.S. Congress expressly stated that the privileges and immunities clause of the U.S. Constitution "hereby extend[s] to the Virgin Islands to the extent that they have not been previously extended to that territory and shall have the same force and effect there as in the United States or in any State of the United States." I respectfully submit to you that it also extents [sic] to the Federated States of Micronesia, a U.S. Territory under the Compact of Free Association Agreement.

Pet. at 2.

After World War II and prior to November 3, 1986, the islands that now comprise the Federated States of Micronesia were part of the United Nation's Trusteeship System. Neimes v. Maeda Constr. Co., 1 FSM Intrm. 47, 51 (Truk 1981). The United States was the administering authority under that system. Id. However, the Federated States of Micronesia emerged from United Nations Trusteeship on November 3, 1986, which the people of Micronesia celebrate annually to "commemorate the termination of the United Nations Trusteeship Agreement as it applied to the Federated States of Micronesia and the commencement of full self-government for the people of the Federated States of Micronesia." 1 F.S.M.C 601(3).

While what is now the Federated States of Micronesia was a part of the Trust Territory of the Pacific Islands during the United Nations Trusteeship, the government of the Trust Territory was not an agency of the United States. Gale v. Andrus, [1980] USCADC 235; 643 F. 2d 826, 832 (D.C. Cir. 1980). "The Trust Territory of the Pacific Islands is not a territory nor an insular possession of the United States, but was only held under a trusteeship agreement with the Security Council of the United Nations." In re Rothstein, [1989] USCA9 786; 884 F.2d 490, 492 (9th Cir. 1989). "Numerous cases establish that the Trust Territory is a foreign country." McComish v. Commissioner, [1978] USCA9 872; 580 F. 2d 1323, 1331 (9th Cir. 1978) (citing Callas v. United States, [1958] USCA2 210; 253 F. 2d 838 (2d Cir. 1958); Adranas v. Hogan, 155 F. Supp. 546 (D. Haw. 1957); Brunnell v. United States, 77 F. Supp. 68 (S.D.N.Y. 1948)). Thus prior to 1986, when the present Federated States of Micronesia was part of the Trust Territory of the Pacific Islands, the Federated States of Micronesia was a foreign country relative to the United States, and not a U.S. Territory.

After the commencement of full self-government in 1986, this status of the Federated States of Micronesia did not change. From the United States's perspective, it remained a foreign country. The court in Robinson v. Harbert Intern'l, Inc., 743 F. Supp. 797, 799 (N.D. Ala. 1989), aff'd[1991] USCAFED 165; , 912 F. 2d 1423 (11th Cir. 1990) addresses this issue with regard to Kwajalein Atoll: "the new relationship between the United States and Kwajalein Atoll is governed by the Compact of Free Association entered into by the Government of the United States and the Governments of the Republic of the Marshall Islands (RMI) and the Federated States of Micronesia." Id. The Robinson court concluded that the Republic of the Marshall Islands "is a sovereign and independent country." Id. Similarly, the Federated States of Micronesia under the Compact of Free Association with the United States is a sovereign and independent nation.

Neron contends that a United States statute applicable to the Virgin Islands on the basis that the Virgin Islands is a United States Territory also applies to the FSM for the same reason – i.e., because the Federated States of Micronesia is a U.S. Territory. The foregoing authorities establish that the FSM is not and historically was not a U.S. Territory. "The United States Territories and Commonwealths are defined to mean the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa and the Commonwealth of the Northern Mariana Islands." In re Rothstein, 884 F.2d at 491 n.1 (citing Compact of Free Association Act of 1985, Pub. L. 99-239, 99 Stat. 1770, 1789 (1986)). Thus the contention is without merit.

Neron asserts that the residency requirement for taking the FSM bar examination violates the privileges and immunities clause of the United States Constitution. The FSM Constitution is based in great part on the U.S. Constitution. Edwards v. Pohnpei, [1988] FMSC 6; 3 FSM Intrm. 350, 361 (Pon. 1988). But there are significant differences between the two. Id. Where such differences exist, they "presumably represent[] a conscious effort by the framers to select a road other than that paved by the United States Constitution." FSM Dev. Bank v. Estate of Nanpei, [1986] FMSC 8; 2 FSM Intrm. 217, 219 n.1. (Pon. 1986).

The United States Constitution contains two privileges and immunities clauses. Section 2 of Article IV provides that "[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States," while Section 1 of the Fourteenth Amendment provides that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." In contrast, the FSM Constitution contains no equivalent provisions. Thus the argument that the residency requirement violates the privileges and immunities clauses of the U.S. Constitution is similarly without merit.

For the foregoing reasons, Neron's request to waive the residency requirement for taking the FSM bar examination is denied.

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