POHNPEI SUPREME COURT
 Trial Division
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RICHARD ALEX,
 Plaintiff,

 v.

 SUMMARY JUDGMENT
POHNPEI STATE,
Defendant,  

PCA No. 78-93

 ORDER DENYING PARTIAL
 
MLSC, by Mr. Kosaksy Phillip, Tr. C., for plaintiff.

Attorney General, by Mr. Kevin P. Shea, Esquire, for Defendant.


     This action arose out of the fact that the plaintiff was issued an "Off-Sale" business licence on June 29, 1992, to sell alcoholic beverages "within the municipal boundaries of Nett, Pohnpei for a term of one year" (Plaintiff's Exhibit No. 1), and that the "plaintiff had obtained a business license from Nett District Government to operate a "Mobile Off-Sale Unit1 along the Dekehtik Causeway." The plaintiff, under these licenses, began a mobile off-sale business

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along the causeway to Dekehtik, selling certain merchandises, including alcoholic beverages to the general public.

     Believing that the plaintiff had violated the law relating to the use of Public Land Trust and public safety and health regulations, the defendant instructed the plaintiff to stop his business operation on the causeway. This undertaking necessitated a meeting with the Lt. Governor and the Iso Naniken of Nett, presumably to seek some solution. Certain communications were exchanged between the parties of which the following are pertinent for consideration: (1) August 20, 1992, Director of Land Mr. Yasuo Yamada2, notified "the plaintiff to immediately cease and desist from operating his Mobile Off-sale Unit"; (2) October 27, 1992, the Chief of Police "'warned' the plaintiff to remove his business from along the causeway to the airport"; (3) November 24, 1992, the Acting Attorney General suggested to the plaintiff that "the beer license of plaintiff may be for another location and if this is the case, plaintiff should 'stop selling beer'; (4) On November 30, 1992, the Assistant Attorney General informed the plaintiff "to stop his business until he obtained a health permit arid all necessary licenses and permits;" (5) On December 8, 1992, Director of Land, Mr. Yamada informed plaintiff that "he [Mr. Yamada] has heard from a Mr. Elsin Elias, Special Project Officer, that Mr. Elias has informed the plaintiff that he was

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violating the law for entering Public Land and doing business there again. Mr. Yamada then outlined the procedure for use of Public Land, and indicated that plaintiff has contravened the procedure even though plaintiff was there temporarily, that plaintiff has gone against the State for not obeying Mr. Elsin Elias. Mr. Yamada then gave plaintiff seven (7) days to move out or he will be prosecuted;" and (6) By letter of January 14, 1993, the Assistant Attorney General instructed the plaintiff to remove his business from the causeway by 4:00 p.m. Monday the 18th of January 1993" (All communications above are as alleged and styled in the plaintiff's complaint).

     Consequently, the plaintiff was arrested, (Plaintiff's complaint, para. 16), but was not prosecuted criminally (Defendant's answer).

     At the pretrial conference held earlier, Counsel identified four issues as they are contained in the pre-trial order issued on April 7, 1993, namely:

     1. Whether the defendant had standing to instruct the plaintiff to stop from operating his business out of his Nissan Bus along the Dekehtik causeway.

     2. Whether in conducting his business as he was doing during all the time in question the plaintiff had violated any Health Regulation applicable to such business undertaking,

     3. Whether the plaintiff obtained his alcoholic beverages licence under false pretence.

      4. Whether the plaintiff's complaint amounts to Slander and Libel against the defendant.
 
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     Issue number 1 being an issue of law, the Plaintiff moved for the rendering of a partial summary judgment thereon to establish the liability of the defendant to the plaintiff for the former's effort to stop the plaintiff's business operation.


     A summary judgment may be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment according to the law applicable under the circumstances. PN. RCP 51 (c). Our Rule 51 is borrowed from U.S. Federal Rules 56,  thus it is helpful to review certain U.S. case law construing and applying Rule 56 for assistance. Paulus v. State, 2 P.S.Ct. R 481, 494.

     Summary judgment should be granted only where it is perfectly clear that no issue of fact is involved and inquiry into the facts is not desirable to clarify the application of the law. Stevens v. Howard D. Johnson Co., 181 F. 2d 390, 394 (4th Cir. 1950). Summary judgment is not appropriate "even where there is no dispute as to the evidentiary facts but only as to the conclusions to be drawn therefrom." Pierce v. Ford Motor Co., 190 F. 2d 910, 91 (4th Cir. 1951 ). The burden is on the moving party to "show" that there "is no genuine issue as to any material fact" and that he "is entitled to judgment as a matter of law." Federal Rule 56 (c), ours Rule 51 (c). Whether an issue is genuine calls for an examination of the entire record then before the court in the form of pleadings, depositions, answers to the interrogatories, admissions on file and affidavits, under PN R.C.P. 51 (c) and (e). "Genuineness" means that
 
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the evidence must create fair doubt; wholly speculative assertion will not suffice." Ross v. Communications Satellite Corp., 759 F. 2d 355, 364 (4th Cir. 1 979). In determining whether the showing of genuineness has been made, the court must assess the evidence as forecast in the documentary material before it in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994 (1962). Where as here, the nonmoving party would on trial carry the burden of proof, he is therefore entitled, as on motion for directed verdict, to have the credibility of his evidence as forecast assumed, his version of all that is in dispute accepted, all internal conflicts in it resolved favorably to him, the most favorable of possible alternative inferences from it drawn in his behalf; and finally, to be given the benefit of all favorable legal theories invoked by the evidence so considered. Charbonnages de France. v. Smith, 597 F. 2d 406 (4th Cir. 1979).

     The application of Rule 56 is appropriately summed up in a footnote in the case of Roehiling v. National Gypsum Co. Gold Bond Building Products, as the court there said: "In determining whether summary judgment is to be entered, [t]he facts themselves, and the inferences to be drawn from the underlying facts, must be viewed in the light most favorable to the 'non-moving party'. The non-moving party is in a favorable posture, being entitled 'to have the credibility of his evidence as forecast assumed, his version of all that is in dispute accepted, all internal conflicts in it resolved favorably to him, the most favorable of possible alternative inferences from it drawn in his behalf; and finally to be given the benefit of all

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favorable legal theories invoked by the evidence as considered."' Roehiling v. National Gypsum Co. Gold Bond Building Products, 786 F. 2d 1225, 1228, n. 4 (4th Cir. 1986); Ross v. Communications Satellite Corp., 759 F. 2d 355, 364 (4th Cir. 1979).

     In his argument for summary judgment, plaintiff argued that because of the provision of Section 11 (8) of S.L. No. 1L-155-87, which grants the Public Land Trust Board the power "to sue and be sued" in the name of the Trust . . ." the defendant alone (without the initiation from the Board of the Public Land Trust) lacks the standing to instruct or stop the plaintiff from conducting his mobile business venture at Dekehtik causeway.

     The defendant in response states that 4L-69-76 3 gives the Commissioner of Land, (now the Director of Land) which is a cabinet officer in the Executive branch, certain authority and responsibility to administer public land, therefore the defendant had standing to instruct the plaintiff to desist his business from the Dekehtik causeway. Additionally, the defendant being the branch of Government responsible for the faithful execution of State laws had standing to stop the plaintiff from operating his business from his mobile unit on grounds of public safety and health reasons.

     The argument of counsel seem to crisscross each other; plaintiff is arguing that in order for a legal proceeding relating to a violation of the public land trust law to stand, it is the Public Land Trust Board, not the State Government, that should bring such action.
 
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The defendant, on the other hand, argues that it was acting as it did in this case on behalf of the Department of Land, under whose umbrella the Division4 of the Management and Administration of Public Lands is lodged. In addition, the defendant was concerned that certain health regulations had been violated by the plaintiff as a result of the plaintiff's conduct of his mobile business on the Dekehtik causeway.
 
      Standing to Sue

      Section 1 1 (8) reads,

      "(8) To enter Into contracts, sue and be sued in the name of the Trust, and have other powers and duties as may be necessary or appropriate to further the purposes of this act..
 
     The words "sue and be sued" in a statute authorizing and instrumentality to sue and be sued, normally include the natural and appropriate incident of legal proceedings. R.F. Corp. v. J.G. Men ihan Corp. 61 S.Ct. 485, 312 US 81. The words "sue and be sued", in normal connotation, embrace all civil process incident to commencement or continuance of legal proceedings. Sigona v. Slusser, 124 F. Supp 327, 329. The phrase included power to employ counsel. Paslay v. Brooks, 17 S.E.2d 865, 868 (S.C.).

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     The power to enforce the laws of Pohnpei State is vested in the Governor who is elected by the qualified voters of Pohnpei. (Art. 3 9, sec. 1, Pohnpei Constitution). In his oath of office the Governor  swore to "uphold, defend and support the Constitution and to faithfully execute the laws of Pohnpei to the best of his knowledge and ability."

     To determine the issue of standing to sue in this particular matter, it is imperative for us to also consider the Alcoholic Beverage Control law, hereinafter "ABC" law,(4L-99-77) of Pohnpei insofar as it may have affected the plaintiff's mobile off-sale unit. As a premise, let us acquaint ourselves of certain terms employed in  the Act as pertinent to this action:

     "Establishment" means any place, including without limitation, bars, restaurants, hotels, or retail store . . .which sells gives, offers to sell, or gives away, or otherwise dispenses alcoholic beverages to the general public. (Sec. 3-1 (S)).

     "Premises" includes land, buildings, rooms, and equipment under the control of the licensee and used in connection with or in furtherance of the business covered by the license. (3-1 (13)). "Off-sale" means the sale of alcoholic beverages for consumption off the premises. (3-1 (8)).

     An applicant for ABC license is required to provide certain information to the Governor in writing, such information includes, his name, sex, date of birth, residency, type of license applied for, place of his premises, and other pertinent information which the [Governor] may require. (Sec. 3-5). And Section 3-11 prescribes how

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an Off-Sale business  is to be conducted. Subsection (2) prescribes that "The consumption of alcoholic beverages shall not be permitted on the premises of an off-sale establishment or club, whether wholesale or retail."

     Section 3-13 (3) prescribes conditions of premises wherein or from which alcoholic beverage may be dispensed. It states in relevant part:

     "The premises, including all furniture, furnishing, and equipment, of all such establishments and clubs shall, at all times be clean, sanitary,    sufficiently lighted, safe, and in good repair, and shall otherwise be in compliance with all other applicable [National, State], or Municipal laws and regulations pertaining to health, safety, and other conditions." Finally, Section 3-15 (2) prescribes that "it is unlawful for any person to carry or drink from any open can, glass, bottle or any other container containing alcoholic beverages on any public road, or in any moving vehicle, or in any business establishment not having an on-sale or restaurant-sale retail license. Being cognizant of the ABC law, the defendant ought also to be sensitive to guarding the health and welfare of the general public over the area of the Dekehtik causeway whereupon the plaintiff was operating his mobile off-sale business.

     Under the well-established principle of "Police Power" granted by the State Constitution, Pohnpei State may place restraints on the personal freedom and property rights of persons for the protection of the public safety, health, and morals or the promotion of the public convenience and general prosperity. (Article 9, Pohnpei Constitution; Article VI I I, FSM Const.) Also see Marshall v. Kansas 27 City, Mo. 355 S.W. 2d. 877, 883. Of course the State's exercise of the

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police power is subject to limitations of the Federated States of Micronesia and Pohnpei Constitutions, and especially to the requirement of due process.

     Applying the fact of the case to the law, it appears without doubt that the Attorney General of the State, in taking the steps as narrated in the pleadings, was exercising the State's police power to enforce the laws. The process of arrest of an individual for violation of an offense, including arrest for examination is part of the criminal procedures employed by the Executive branch to enforce the laws of this State.

     The plaintiff's concern relates particularly to the fact that the Director of the Department of Land, a cabinet officer, took some initiative in notifying "the plaintiff to immediately cease and desist from operating his Mobile Off-sale Unit" on the causeway as ultra vires, that such initiative gave no authority to the Pohnpei State to instruct the plaintiff to move his business from the causeway. If the conduct of the defendant was grounded on that fact alone, the plaintiff's claim of lack of standing may have some merit. However, it is.clear from the defendant's answer, as well as in its argument that it was also concern about the potential violation of public safety and health regulations.

     Perhaps a caveat is appropriate here to provide some guideline to all persons who may in the future be involved in similar situation respecting the alleged illegal use of the so-called public land trust which is administered by the Board of the Public Lands Trust (Board). To minimize misunderstanding and expenses of litigation, it would be helpful for any person who may be charged as trespassing

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or squatting on public lands to at least get in touch with the Board of the Public Land Trust, or the Chief of the Division of Public Lands to verify the following:

      (i) whether the Board of the Public Land Trust approved of or acquiesced in such initiative as taken by the Director of theDepartment of Land in this case to cause the eviction of, or to restrain individuals from possessing or trespassing upon portions of the public land trust without lawful means;

     (ii) whether the use right and supervision of the particular public land trust had been awarded to the State Government or any instrumentality thereof for public purposes;
 
     (iii) whether there exists an agreement or understanding between the Board of the Public Lands Trust and the Governor to help enforce the laws regulating the use and any dealing in the so-called public land trust.

     Knowledge of the position of the Board to the above questions would certainly assist the plaintiff and any other person similarly situated in prosecuting his case against the defendant.

     Inasmuch as the conduct of the defendant as seen in this case falls within its authority to prosecute violators of State law criminally, I hold that the Defendant had standing to act as it did. Whether the Government's action in the instant case accords with due process is a question left for another day after determination of the other three factual issues.
      On the other hand, if the act of the defendant complained of here was initiated civilly and without the approval, acquiescence, or
 
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the agreement of the Board of the Public Land Trust, that undertaking may not be legally permissible under the statute as the words "sue and be sued", in normal connotation, embrace all civil process incident to commencement or continuance of legal proceedings in the name of the Trust and not in the name of defendant--the Pohnpei State. It should be remembered however, that certain portions of the public land trust had been designated, either by deed, tradition, or by common understanding to the Executive, Legislative, and Judicial branches for their respective use. The Executive branch, through the Attorney General's Office may, at the request of the affected branch, evict a trespasser or bring action to restrain the person unlawfully in possession of such designated areas of the public land trust. In a situation of this type the Board of the Public Land Trust needs not be the party to bring such suit.

Conclusion

     The defendant has standing to sue the plaintiff criminally for any violation of any state law, including any violation of the provisions of the Public Land Trust Act. Plaintiff's Motion for Summary Judgment based primarily on the first issue is accordingly denied.

     The three other issues, namely,

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     1. Whether in conducting his business as he was doing during all the time in`question the plaintiff had violated any Health Regulation applicable to such business undertaking;

     2. Whether the plaintiff obtained his alcoholic beverages licence under false pretence; and

     3. Whether the plaintiff's complaint amounts to Slander and Libel against the defendant; require evidentiary hearing. Although counsel went at length arguing the rest of the issues, I think that they really did not need to go that far as the issues require evidence.

      Accordingly and for purpose of setting the Calendar of the Court, counsel are given 20 days from the date of this Order to advise the Court as to when they will be prepared to go to trial on the three remaining issues.

     So Ordered, 20 December 1993.

    /s/
 Edwell Santos
Chief Justice

Entered: December 21, 1993.

/s/
Clerk of Court







[footnotes]

1 According to Section 3-4 of the ABC law (4L-99-77) it is the Governor that issues licenses to persons and business entities to sell alcoholic beverages. A license or permit to operate business out of a mobile off-sale unit issued by a Municipal Government does not authorize the licensee or the permittee to sell alcoholic beverages out of such mobile off-sale unit.Back to opinion
 
2 A letter dated August 26, 1992 from Nett District Administrator to Mr. Yamada expressed disagreement with the director pointing out that the plaintiff was there temporarily until the State has a planned use of the temporarily occupied premises"(Para. 7 of Plaintiff's complaint). While this letter appears to be well-intentioned, its effect could be viewed as an attempt to obstruct the effective administration of the law relating to public lands trust by the Division of Management and Administration of Public Lands within the Department of LandBack to opinion

3 Defendant's attorney is advised that State Law 4L-69-76 had been replaced by S.L. No.1L-155-87, that the Director of Department of Land is not the successor to the 4L-6976 Commissioner of Public Lands.Back to opinion
 
4 There is hereby established within the Department of Lands, a Division of Management and Administration of Public Lands as created by P.L. No. 1L-62-86. The Division shall consists of a Division Chief and support personnel who shall provide administrative and technical support through the Director to the Board of Trustees in the conduct of their legal and fiduciary responsibilities in respect to the Pohnpei Public Lands Trust. (Section 4, S.L. No. 1 L-155-87).Back to opinion