FSM 4 Intrm. 138-145

The list of areas in which the FSM Supreme Court will consider it appropriate to liberally defer to state courts must be open and flexible, responding to the particular state of legal and social development in Micronesia, and when issues important to Micronesians become the focus of concerted state efforts to establish a coherent body of law, the FSM Supreme Court will take those developments into account in evaluating requests for certification or abstention. Pryor v. Moses, 4 FSM Intrm. 138, 142 (Pon. 1989).

Because it is appropriate to seek to develop legal standards through careful consideration of every individual case and all its attendant facts, to certify questions of law in a factual vacuum as a regular and frequent practice ill serves the primary purpose of the courts to address the justice of each separate case. Pryor v. Moses, 4 FSM Intrm. 138, 144-45 (Pon. 1989).

In a case where there is no state party and no issues of land or other matters crucial to state interests for which the state is actively developing policy and law, the healthy and efficient administration of justice demands that the FSM Supreme Court fulfill its duty to exercise jurisdiction and refuse to abstain or certify issues. Pryor v. Moses, 4 FSM Intrm. 138, 145 (Pon. 1989).

The defendants in this defamation action have asked the Court to abstain from deciding all questions of fact and law in this case or, in the alternative, to certify a broad array of issues of state law for decision by the Pohnpei State Supreme Court. For reasons set forth in this opinion, including considerations of the Court's jurisdictional obligations, the efficient administration of justice and the sound development of jurisprudence, the Court must deny the motion to abstain and certify issues.

On various prior occasions, this Court has responded to such requests for abstention or certification with differing degrees of deference and criteria of decision. See, e.g., Panuelo v. Pohnpei (I), 2 FSM Intrm. 150 (Pon. 1986); Edwards v. Pohnpei, 3 FSM Intrm. 350 (Pon. 1986); Ponape Transfer & Storage v. Federated Shipping Co., 4 FSM Intrm. 37 (Pon. 1989). In each of those cases, the state itself was party to the litigation. This is the first time that a motion for abstention and for certification has been presented by a private party against another private party who opposes the motion.

an appropriate exercise of this Court's inherent powers..." Panuelo v. Pohnpei (III), 2 FSM Intrm. 244, 246 (Pon. 1986). On several occasions, this Court has certified questions of law to the State Supreme Court. Id.; Edwards, 3 FSM Intrm. at 350. Cf. Dabchur v. Yap, 3 FSM Intrm. 203 (Yap S. Ct. App. 1987). Similarly, it is within the power of this Court to abstain from a case altogether, when appropriate. Ponape Transfer & Storage, 4 FSM Intrm. at 37. Even when the national court's jurisdiction is based on the diversity of citizenship of the parties within the meaning of article XI, section 6(b) of the Constitution of the Federated States of Micronesia, "cautious, reasoned use of the doctrine of abstention is not a violation of this Court's duty, or of the litigant's constitutional rights." Id. at 39.

At the same time, however, there are no statutory or constitutional obligations which require this Court to abstain or certify questions merely because unsettled matters of state law are at issue. Edwards, 3 FSM Intrm. at 360. On the contrary, the Court has consistently held that it has the power to decide questions of state law, whether because they are pendent to questions of national law, Ponape Chamber of Commerce v. Nett, 1 FSM Intrm. 389 (Pon. 1984), or because the diversity of the parties brings disputes arising under state law within the jurisdiction of the national courts. In re Estate of Nahnsen, 1 FSM Intrm. 97 (Pon. 1982). This power is no less valid in instances where the question of state law is a matter of first impression, or where the interpretation of the state constitution is involved. Panuelo (I), 2 FSM Intrm. 150; Federated Shipping Co. v. Ponape Transfer & Storage (IV), 4 FSM Intrm. 3 (Pon. 1989).

Thus, the choice of whether to abstain from a decision or certify questions is one that lies wholly within the discretion of this Court, and the judge must not undertake that decision lightly. "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." Panuelo (I), 2 FSM Intrm. at 153. See also Edwards, 3 FSM Intrm. at 360.

With that in mind, this Court has thus far only identified two areas in which its power of abstention or certification should be broadly construed and liberally exercised. First, there is a presumption that national courts should abstain from deciding an issue in suits against a state for monetary damages, when the state makes a "reasoned request" that we abstain, "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 (I), 2 FSM Intrm. at 156.1 The same presumption applies to a state's request for

certification of issues to the state supreme court, where the state is the defendant in an action for monetary damages. Edwards, 3 FSM Intrm. at 362. Under the standards articulated in Edwards, questions in such a case are appropriate for certification if they are significant issues of unsettled state law which apply to an actual controversy, as long as there are no countervailing considerations of harm, delay or injustice which substantially outweigh the benefits of certification. Id. at 362-64. In both Edwards and Panuelo (I), this liberal policy developed in consideration of an essential concern for state sovereignty and federalism, in the absence of any constitutional provision granting states immunity from suit in national courts. Id. at 361; Panuelo (I), 2 FSM Intrm. at 156.

The second general area of broad national court deference to state courts has been in cases involving the disposition of land. "[T]his Court's decisions regarding the proper forum to decide a case, or a particular question, should be influenced by whether state land use rights are at issue," we recently concluded in abstaining from just such a public land related controversy. Ponape Transfer & Storage, 4 FSM Intrm. at 43. In those cases, state courts rather than national courts will normally be better suited for resolving the dispute. Nahnsen, 1 FSM Intrm. 97. See also Etpison v. Perman, 1 FSM Intrm. 405, 429 (Pon. 1984). Several considerations underlie this deferential policy. First of all, the "fundamental and unique role [of land] in the lives of Micronesians," id. at 420, gives these issues a local importance beyond even the other broad areas in which the states have a primary lawmaking role. This is especially so when this Court's resolution of the particular issue might complicate current, active efforts of state governments and courts to develop a unified and just policy concerning land use and distribution, particularly with regard to public lands. Id. at 429; Ponape Transfer & Storage, 4 FSM Intrm. at 44. Such efforts gain for the states special expertise and experience in land matters, including "an administrative apparatus and a great deal of practical knowledge with which a state court would be more familiar than this Court." Panuelo (I), 2 FSM Intrm. at 156. Accordingly, state courts are usually better qualified to address public land disputes, and this Court's intrusion into those controversies has the potential to create significant disruption in the coherent and appropriate growth of the states' public policy. Etpison, 1 FSM Intrm. at 429.

This is not to imply, of course, that there are only limited and fixed areas in which this Court will consider it appropriate to liberally defer to state courts. The list must be open and flexible, responding to the particular state of legal and social development in Micronesia. Issues important to Micronesians other than public land use will at times become the focus of concerted state efforts to establish a coherent body of law, and this Court will take those developments into account in evaluating requests for abstention or certification.

Obviously, the present case does not fit into either of the categories which the Court has until now considered apt for broad applications of abstention or certification. On the one hand, this is not the state's motion in an action against it for money damages; indeed, neither the state nor any state agency is party to this litigation. Where two private parties are involved, the special considerations of state sovereignty which the Court considered particularly relevant in cases such as Edwards or Ponape Transfer & Storage are not as weighty. Thus, "when the litigants are private parties, the Court normally should attempt to resolve all issues presented, even when matters of state law are involved." Federated Shipping Co. (IV), 4 FSM Intrm. at 13.

On the other hand, this case does not involve a land dispute in any way. More relevantly, the public policy which led the Court to create an exception for land issues from its obligation to exercise its jurisdiction does not apply here. There is no indication that the state government is currently and actively engaged in specific efforts, contentious or otherwise, to develop a unified and consistent body of law regarding defamation or the other issues for which the defendants seek certification. The risk of this Court interfering in sensitive areas of primary state concern therefore is minimal.

Nonetheless, defendants urge the Court to abstain altogether from this litigation, or at least to certify an extensive list of questions to the Pohnpei State Supreme Court. In essence, they argue that abstention and certification are appropriate and compelling because this case arises primarily under state law, and it involves issues of first impression which implicate important state interests, including the very existence of a specific cause of action. Defendants would have us establish a much broader rule for certification and abstention than this Court has employed before now. Application of the Edwards criteria to every case where state law is at issue would basically require this Court to abstain from deciding virtually all state law matters of first impression. This would not be in the interests of the efficient administration of justice, and would not be consistent with the jurisdictional provisions of the Constitution.

It is beyond question that tort law and liability, including a claim of defamation, does fall principally within the province of state, not national lawmaking power. Edwards, 3 FSM Intrm. at 356-59. See also Semens v. Continental Airlines, Inc. (I), 2 FSM Intrm. 131, 137 (Pon. 1985). For that reason, "this Court is always prepared to follow the pronouncements of the state courts with regard to whether a specific tort is recognized in a particular jurisdiction." Federated Shipping Co. (IV), 4 FSM Intrm. at 13

See also Amor v. Pohnpei, 3 FSM Intrm. 519 (Pon. 1988). Here, however, there is no statutory or case law for national courts to follow regarding the existence or nature of a cause of action for defamation in Pohnpei. Nevertheless, within its power to decide questions of state law, this Court has on different occasions addressed issues of first impression, including the very existence of causes of action or defenses. Panuelo (I), 2 FSM Intrm. at 150; Federated Shipping Co. (IV), 4 FSM Intrm. at 14. Such situations are "unavoidable" in "a young nation with a legal system that is relatively undeveloped." Id. at 16. Following those decisions, nothing has occurred to suggest that they were contrary to or inconsistent with state law as it subsequently developed.

If the Court were, instead, to abstain in all those circumstances where it is presented with issues of first impression, it would be seriously abrogating its duties to exercise jurisdiction under the Constitution. The authority of this Court in a case involving citizens of different states does not come from the allocation of different lawmaking powers to the states and to the national government. Nahnsen, 1 FSM Intrm. at 108. Rather, it derives from a constitutional grant of jurisdiction, pursuant to article XI, section 6(b) of the Constitution of the Federated States. There is an exceptionally strong presumption that this Court is obligated to exercise thatjurisdiction. Bank of Guam v. Semes, 3 FSM Intrm. 370 (Pon. 1988). Only under a combination of highly compelling circumstances will we limit a party's right to avail itself of this Court's diversity jurisdiction. Ponape Transfer & Storage, 4 FSM Intrm. at 39. "A primary purpose of diversity jurisdiction is to minimize any belief of the parties that a more local tribunal might favor local parties in disputes with 'outsiders.'" Nahnsen, 1 FSM Intrm. at 97. This purpose specifically addresses situations like the one at hand, where a citizen of a foreign state is alleging a broad dissemination of defamatory statements within the local community. Here and generally, therefore, this Court is extremely hesitant to abstain altogether from deciding a case properly under its jurisdiction.

If the Court were merely to certify certain questions of state law, while still retaining power to decide the factual issues involved, other problems still make a broad policy of deference, such as the defendants advocate, unwise. To begin with, efficient judicial administration demands that "this Court may not use the certification process to avoid deciding each and every state law issue of first impression...To do so would create enormous delays in the disposition of cases on our docket." Federated Shipping Co.(IV), 4 FSM Intrm. at 13. The defendants in this case have presented a list of questions of law so extensive that the state court would virtually have to write a textbook of defamation law in order to answer them; asking this Court to certify such wide-ranging questions for every issue of first impression would result in "intolerable inefficiency and unfairness." Id.

to seek to develop legal standards through careful consideration of every individual case and all its attendant facts. To certify questions of law in a factual vacuum as a regular and frequent practice ill serves the primary purpose of this Court to address the justice of each separate case, and could result in considerable harm or injustice to the parties involved.

Of course, this Court will always recognize the "predominance of the state role" in areas of law such as this. Edwards, 3 FSM Intrm. at 360 n. 22. Not only will we try to decide such cases in the same way that the highest state court would decide them, but we will also adhere strictly to subsequent state court rulings which will control in that area. Id. In the absence of such guidance, it is appropriate to consider all possible sources of law which might affect a state court's decision on the matter, including custom and tradition, statutes, constitutional interpretation and history, and the common law of this and other jurisdictions. We urge counsel to bring all relevant materials before the Court.

In the end, however, this Court will remain the appropriate forum for deciding all issues of fact and law in this case. With no state party to the case and no issues of land or other matters crucial to state interests for which the state is actively developing policy and law, the healthy and efficient administration of justice demands that this Court fulfill its duty to exercise jurisdiction. Accordingly, defendants' motion to abstain and to certify issues is denied.