9 FSM Intrm.139-147

FSM SUPREME COURT

Cite as FSM v. Moses,

9 FSM Intrm. 139 (Ponape 1999)

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FEDERATED STATES OF MICRONESIA,

RESIO MOSES and V6AH RADIO STATION,

CRIMINAL ACTION NO. 1999-502

ORDER AND MEMORANDUM

Hearing: April 23, 1999

Decided: May 11, 1999

For the Plaintiff: Lewis W. Littlepage, Esq.

Assistant Attorney General

FSM Department of Justice

Palikir, Pohnpei FM 96941

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For the Defendant: Fredrick L. Ramp, Esq.

(Moses) P.O. Box 1480

Kolonia, Pohnpei FM 96941

For the Defendant: James P. Woodruff, Esq.

(P.P.B.C. (V6AH)) Attorney General

Pohnpei Department of Justice

Kolonia, Pohnpei FM 96941

Criminal Law and Procedure ) Dismissal; Criminal Law and Procedure ) Information

A motion to dismiss an information because the named defendant is not a formally constituted entity is moot when the government's motion to amend the information to change the defendant's name to its proper name is granted. FSM v. Moses, 9 FSM Intrm. 139, 142 (Pon. 1999).

Criminal Law and Procedure ) Motions

A written motion and notice of the hearing thereof shall be served, with a memorandum of points and authorities, not later than 14 days before the time specified for the hearing unless a different period is fixed by order of the court, and the moving party's failure to file a memorandum of points and authorities shall be deemed a waiver by the moving party of the motion. FSM v. Moses, 9 FSM Intrm. 139, 143 (Pon. 1999).

Criminal Law and Procedure ) Motions

Any defense, objection, or request which is capable of determination without the trial of the general issue may be made before trial by motion. Motions may be written or oral at the judge's discretion. FSM v. Moses, 9 FSM Intrm. 139, 143 (Pon. 1999).

Candidates are to notify the national election commissioner twenty-four hours before their intended use of a government broadcast facility. FSM v. Moses, 9 FSM Intrm. 139, 144 (Pon. 1999).

Criminal Law and Procedure ) Information

An information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. FSM v. Moses, 9 FSM Intrm. 139, 145 (Pon. 1999).

Criminal Law and Procedure ) Information

The purpose of a criminal information is to inform the defendant of the charges against him so that he may prepare his defense, and to advise the court of the facts alleged so that the court may determine whether those facts, if proven, may support a conviction. An information that is deficient in these respects may be dismissed without prejudice. FSM v. Moses, 9 FSM Intrm. 139, 145 (Pon. 1999).

Constitutional Law ) Due Process ) Vagueness; Criminal Law and Procedure ) Information

When an information alleges violation of a statute, that statute must be drawn so as to give a person of ordinary intelligence fair notice that the contemplated conduct was forbidden. Laws must provide explicit standards for those who apply them. FSM v. Moses, 9 FSM Intrm. 139, 145 (Pon. 1999).

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Criminal Law and Procedure

The purpose of a preliminary examination is two-fold. The court must determine whether there is probable cause to believe that a criminal offense has been committed and that the arrested person committed it. FSM v. Moses, 9 FSM Intrm. 139, 145 (Pon. 1999).

Criminal Law and Procedure; Criminal Law and Procedure ) Information

No probable cause to believe that a criminal offense has been committed exists when the defendants' alleged conduct as set out in the information has not been made criminal under any statute, rule, or regulation to which the court's attention has been directed. FSM v. Moses, 9 FSM Intrm. 139, 145 (Pon. 1999).

Criminal Law and Procedure ) Dismissal; Elections

When there is no statutory requirement that a candidate submit his taped speech before it is aired and when there is no mention of criminal liability on the of the government broadcast facility should it do so, there is no probable cause to believe a crime has been committed, and the information and criminal summons should be dismissed without prejudice. FSM v. Moses, 9 FSM Intrm. 139, 145 (Pon. 1999).

A court will not extrapolate a statute's allowable meaning to encompass submission of the taped speech directly to the radio station without first submitting it to the national election commissioner when the statute's only stated requirement is twenty-four hours' notice. FSM v. Moses, 9 FSM Intrm. 139, 145 (Pon. 1999).

Constitutional Law ) Freedom of Expression; Elections

A political candidate's freedom of expression is guaranteed, as it is to all citizens, under section 1 of the FSM Constitution's Declaration of Rights. FSM v. Moses, 9 FSM Intrm. 139, 146 (Pon. 1999).

Constitutional Law ) Declaration of Rights; Constitutional Law ) Interpretation

The FSM Constitution's Declaration of Rights is based on the United States Constitution's Bill of Rights, and a court may look to United States precedent in this regard. FSM v. Moses, 9 FSM Intrm. 139, 146 (Pon. 1999).

Constitutional Law ) Freedom of Expression

The freedom to communicate is the rule and restraint is the exception. Censorship, a form of prior restraint, is the most suspect punishment in a free society; ideas do not even get to the marketplace to compete for recognition and acceptance. Censorship thus runs counter to the freedom of speech and press. FSM v. Moses, 9 FSM Intrm. 139, 146 n.2 (Pon. 1999).

Constitutional Law ) Due Process ) Vagueness; Constitutional Law ) Freedom of Expression

When a vague statute abuts upon sensitive areas of basic freedoms, it operates to inhibit the exercise of those freedoms. Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked. FSM v. Moses, 9 FSM Intrm. 139, 146 (Pon. 1999).

Constitutional Law ) Freedom of Expression; Elections

To conclude that 9 F.S.M.C. 107(1) criminalizes either a candidate's conduct in submitting his campaign tape directly to a broadcast facility without previously submitting it to the national election commissioner, or to conclude that the owner and operator of the radio station faces a criminal penalty because it aired the tape would be to attribute an uncertain meaning to the statute, which might well cause candidates to steer far wider of the unlawful zone than they otherwise would, or should, in the

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important work of presenting their views to a public which needs to exercise its franchise in an intelligent manner. The court declines to credit such an uncertain meaning to the statute. FSM v. Moses, 9 FSM Intrm. 139, 146 (Pon. 1999).

The national election director and his deputies in the four states, the national election commissioners, may have a duty to take all reasonable steps to insure that candidates have equal access to government broadcast facilities. FSM v. Moses, 9 FSM Intrm. 139, 146 (Pon. 1999).

MARTIN YINUG, Associate Justice:

On April 23, 1999, the court held a preliminary examination pursuant to 12 F.S.M.C. 503 at which the testimony of witnesses was presented.

On the facts as alleged in the amended information and as further adduced through the testimony of witnesses at the hearing, the court finds that no probable cause to believe that a crime was committed exists. Therefore, without probable cause to support the amended information, and for the reasons set out below, the amended information and criminal summons are dismissed without prejudice.

A. Administrative Matters

1. Pohnpei Public Broadcasting Corporation's motion to dismiss the original information

On March 19, 1999, Pohnpei Public Broadcasting Corporation ("PPBC") filed its Motion to Dismiss Information (meaning the original information) because the radio station known as V6AH is not a formally constituted entity. The original information showed "V6AH Radio Station" as a party defendant. Instead, the call letters "V6AH" are those assigned to a radio station owned and operated by PPBC. Subsequently, on April 9, 1999, the FSM filed a motion to amend the original information to reflect this fact, and to change the name of the defendant from "V6AH Radio Station" to "Pohnpei Public Broadcasting Corporation."

For good cause shown, the FSM's motion to amend the original information is granted. Since the amended information cures the defect which is the subject of PPBC's motion to dismiss the original information, that motion is moot.

2. PPBC's motion to dismiss the amended information; PPBC's oral motion to participate in the preliminary examination; the FSM's May 5, 1999 motion to strike PPBC's motion to dismiss the amended information; defendant Moses's oral motion to dismiss the information

The first three of these motions are interrelated. At the hearing on the preliminary examination on April 23, 1999, PPBC tendered to the court a second, written Motion to Dismiss Information, meaning the amended information. The thrust of this motion is that the amended information should be dismissed because 9 F.S.M.C. 107(1) does not apply to broadcasters, but to political candidates seeking to have their campaign speeches aired over public broadcasting facilities.

Also at the preliminary examination, PPBC moved orally to participate in the hearing. The FSM

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objected to PPBC's participation because PPBC had not requested a preliminary examination. PPBC's answer to this was that it had not requested a preliminary examination because it had not yet entered a plea. The court thereupon took the plea of not guilty from PPBC and granted PPBC's request to participate in the preliminary examination. The court did not rule on PPBC's motion to dismiss the amended information at the hearing.

After the preliminary examination, the FSM filed on May 5, 1999, its Motion to Strike Defendant Pohnpei Public Broadcasting Corporation's Motion to Dismiss Information, which was directed to PPBC's April 23, 1999, motion. In its motion to strike, the FSM contends that PPBC waived any objections it might have to the amended information by not filing a motion registering its objections at least 14 days prior to the hearing, and therefore should not have been permitted to participate the preliminary examination. The FSM cites Rule 45(d) of the FSM Rules of Criminal Procedure, which provides in pertinent part that "[a] written motion . . . and notice of the hearing thereof shall be served, with a memorandum of points and authorities, not later than 14 days before the time specified for the hearing." Rule 45(d) also provides that "[f]ailure by the moving party to file a memorandum of points and authorities shall be deemed a waiver by the moving party of the motion."

While Rule 45(d) provides that the specified time periods for filing motions applies "unless a different period is fixed by order of the court," the precise motion that the court granted at the hearing on the preliminary examination was not PPBC's written motion to dismiss the amended information, but its oral motion to participate in the hearing. Such an oral motion falls well within Rule 12(b) of the Rules of Criminal Procedure, entitled "Pretrial Motions," which provides that "any defense, objection, or request which is capable of determination without the trial of the general issue may be made before trial by motion. Motions may be written or oral at the discretion of the judge." The court had the discretion to entertain and grant PPBC's oral motion to participate in the preliminary examination.

The FSM contended that it would be prejudiced if the hearing proceeded as to PPBC as well, because it would need to present additional witnesses, although the FSM did not indicate who the witnesses were. However, the court resolves the probable cause issue by looking to the specific allegations of the amended information as against the language of the relevant statute, 9 F.S.M.C. 107(1). The rationale that dictates a finding of lack of probable cause as to defendant Resio Moses underlies the same finding as to defendant PPBC. Since this is the case, additional witnesses would not have saved the amended information from dismissal as to PPBC, and the FSM is not prejudiced by PPBC's participation in the hearing.

To the extent that the FSM's May 4, 1999, motion to strike is directed to a reconsideration of the court's granting PPBC's motion to participate at the preliminary examination, the motion is denied. As the court makes a finding of lack of probable cause as to both defendants, the court does not address the remaining issues raised in PPBC's April 23, 1999, motion to dismiss, and the FSM's May 4, 1999, motion to strike the amended information. Nor does it address defendant Moses's oral motion also made at the hearing to dismiss the amended information.

B. The Probable Cause Question

1. The applicable law and factual allegations

Defendants are charged with violating 9 F.S.M.C. 107(1), which provides in its entirety as follows:

§ 107. Use of Government broadcast facilities.

(1) Government broadcast facilities may be made available to candidates within any

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State, except on the day of election, pursuant to the discretion of the national election commissioner of the State concerned after that commissioner has obtained approval from appropriate State authorities. The national election commissioner shall afford each candidate equal opportunity in the use of Government broadcast facilities. If the national election commissioner cannot provide equal opportunities to the candidates in the use of Government broadcast facilities, then no candidate shall be allowed their use whatsoever. Each candidate shall advise the national election commissioner not later than twenty-four hours prior to his intended use of Government broadcast facilities. Failure to notify the national election commissioner of the proposed use of the above described facilities within the prescribed time limit may disqualify the candidate from the use of these Government facilities.

Section 109 of Title 9 goes on to provide in pertinent part that "[a]ny person who violates any of the provisions of this Title . . . for which a penalty is not otherwise provided . . . shall be punished by a fine not to exceed $500, or imprisonment for not more than one year, or both." 1

As to section § 107, it is the penultimate sentence which is at issue. This sentence requires a candidate to notify the national election commissioner no later than 24 hours prior to his intended use of the broadcast facility. Notification is the only obligation which the statute imposes on a candidate.

The amended information (hereinafter "the information," except for direct citations) does not charge that defendant Resio Moses failed to advise the national election commissioner in accordance with the statute. Rather, the information charges that "[d]efendant Moses by-passed the Office of the National Election Commissioner and on February 20, 1999, submitted a tape-recorded campaign speech directly to a radio station with the call sign of V6AH, such radio station being owned and operated by defendant Pohnpei Public Broadcasting Corporation." Amended Information, para. 5 (Apr. 26, 1999). The information concludes with the allegation that

[b]oth Defendant Moses' refusal and failure to submit his tape-recorded campaign speech through the National Election Commissioner's Office, and Defendant Pohnpei Public Broadcasting Corporation's refusal and failure to cease the airing of Moses' campaign speech and to surrender the same to Mr. Mallarme upon his request violate Section 107 of Title 9 of the Code of the Federated States of Micronesia, the penalties of which is prescribed in Section 109 of Title 9 of the Code of the Federated States of Micronesia.

Amended Information (Apr. 26, 1999).

Reading 9 F.S.M.C. 107(1) and the allegations of the information together, the FSM alleges that Mr. Moses's criminal conduct was failure to submit his campaign speech to the national election commissioner before it was aired. As to defendant PPBC, the FSM alleges that the criminal conduct attributable to it was radio station V6AH's failure to cease airing Mr. Moses's speech when requested to do so by the national election director, and failure to turn the speech over to the national election director. The information does not allege that the national election commissioner did not have 24 hours notice that defendant Moses desired to broadcast a campaign speech on V6AH.

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FSM Rule of Criminal Procedure 7(c)(1) provides that "[t]he information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." The purpose of a criminal information is to inform the defendant of the charges against him so that he may prepare his defense, and to advise the court of the facts alleged so that the court may determine whether those facts, if proven, may support a conviction. FSM v. Xu Rui Song, 7 FSM Intrm. 187, 189 (Chk. 1995). An information that is deficient in these respects may be dismissed without prejudice. Id. at 190. Where an information alleges violation of a statute, that statute must be drawn so as to give a person of ordinary intelligence fair notice that the contemplated conduct was forbidden. United States v. Harriss, 347 U.S. 612, 617, 74 S. Ct. 808, 812, 98 L. Ed. 989, 996 (1953). "[L]aws must provide explicit standards for those who apply them." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 2299, 33 L. Ed. 2d 222, 227 (1972).

The purpose of a preliminary examination is two-fold. The court must determine whether "there is probable cause to believe that a criminal offense has been committed and that the arrested person [in this case the defendants who have been served with a criminal summons] committed it." 12 F.S.M.C. 503(4). No probable cause to believe that a criminal offense has been committed exists in this case because the defendants' alleged conduct as set out in the information has not been made criminal under 9 F.S.M.C. 107(1), or any other statute, rule, or regulation to which the court's attention has been directed. No mention is made in 9 F.S.M.C. 107(1) of any requirement that a candidate submit his taped speech to the national election commissioner before it is aired. The statute does not say that a government broadcast facility ) in this case allegedly V6AH ) may not broadcast a speech by a candidate that has not been previously submitted to the national election commissioner, and no mention is made of any criminal liability on the part of the government broadcast facility should it do so. Since the statute does not purport to proscribe these sorts of activities, it follows that there is no probable cause to believe a crime has been committed, and the information and criminal summons should be dismissed without prejudice. Xu Rui Song, 7 FSM Intrm. at 190.

The FSM appeared to argue at the preliminary examination that the only way that the national election commissioner could have had the notice contemplated by the statute was if the taped speech had been first submitted to the national election commissioner before it was aired. However, with respect to 9 F.S.M.C. 107, the court will not "extrapolate its allowable meaning," Garner v. Louisiana, 368 U.S. 157, 174, 82 S. Ct. 248, 257, 7 L. Ed. 2d 207, 220 (1961) (Frankfurter, J., concurring in the judgment), to encompass submission of the taped speech directly to the radio station without first submitting it to the national election commissioner where the statute's only stated requirement is notice. Mr. John Thomas, the national election commissioner for Pohnpei, offered uncontroverted testimony at the preliminary examination that he knew as of February 16, 1999, that candidate Moses wished to broadcast a campaign speech. The speech which candidate Moses subsequently submitted was first played, according to the information, on February 20, 1999, or four days later. The statute requires only 24 hours notice, so the national election commissioner had substantially more than the notice required by the statute. Likewise, as to PPBC, the court will not extrapolate from the statutory language to include V6AH's airing of the taped speech, because the statute does not speak to this point.

In a real sense, this case does not present an instance of statutory vagueness, because the statute at issue is quite clear. As to a candidate, the statute requires 24 hours notice of intended use of government broadcast facilities to air a taped campaign tape, not submission of the tape to the national election commissioner before it is aired. As to a "government broadcast facility," in this case radio station V6AH, the statute gives no indication that a radio station may face a criminal penalty if it plays a tape that has not been previously submitted to the national election commissioner. However,

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the doctrine of vagueness does offer useful guidance insofar as 9 F.S.M.C. 107(1) implicates a political candidate's freedom of expression, which is guaranteed to all citizens under section 1 of the Declaration of Rights of the FSM Constitution: "No law may deny or impair freedom of expression."2 The Declaration of Rights of the FSM Constitution is based on the Bill of Rights of the United States Constitution, and the court may look to United States precedent in this regard. Tosie v. Tosie, 1 FSM Intrm. 149, 154 (Kos. 1982).

"Where a vague statute `abut[s] upon sensitive areas of basic First Amendment freedoms,' it `operates to inhibit the exercise of [those] freedoms.' Uncertain meanings inevitably lead citizens to `"steer far wider of the unlawful zone" than if the boundaries of the forbidden areas were clearly marked.'" Grayned, 408 U.S. at 109, 92 S. Ct. at 2299, 33 L. Ed. 2d at 228 (footnotes containing citations omitted) (alterations in quotations by the Grayned court). To conclude that 9 F.S.M.C. 107(1) criminalizes either defendant Moses's conduct in submitting his campaign tape directly to V6AH without previously submitting it to the national election commissioner, or to conclude that PPBC, as the owner and operator of V6AH, faces a criminal penalty because it aired the tape would be to attribute an "uncertain meaning", Grayned, 408 U.S. at 109, 92 S. Ct. at 2299, 33 L. Ed. 2d at 228, to 9 F.S.M.C. 107(1), which might well cause candidates to "steer far wider of the unlawful zone" than they otherwise would, or should, in the important work of presenting their views to a public which needs to exercise its franchise in an intelligent manner. The court declines to credit such an uncertain meaning to the statute.

The national election director and his deputies in the four states, the national election commissioners, may ) indeed have a duty under law ) to take all reasonable steps to insure that candidates have equal access to government broadcast facilities. But that is not the issue before the court. The issue here is whether, looking to the allegations of the amended information and the evidence adduced at the preliminary hearing, there is probable cause to believe that defendants committed a crime when defendant Moses's campaign speech was aired on V6AH without the speech being previously submitted to the national election commissioner. For the reasons discussed, the court concludes that no such probable cause exists.

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Accordingly, the information and criminal summons are dismissed as to both defendants without prejudice.

1. Because the court decides that there is no probable cause to believe that a crime has been committed, the court does not consider whether the fact that § 107 provides that failure to provide notice as required may disqualify a candidate from use of a government broadcast facility is a "penalty" within the meaning of § 109 so as to preclude the FSM from seeking, via a criminal prosecution, additional penalties against the defendants.

2. The following comments by the Committee on Civil Liberties of the Micronesian Constitutional Convention of 1975 give some sense of the significance that freedom of speech played in the collective mind of the Framers:

The freedom of speech and the press is basic to the principles of a free and knowledgeable society. Without such freedom a society cannot grow or change, and must forever stagnate.

Freedom of speech and press is one of the most basic of all rights. Without this freedom to communicate there could be no truly free society.

This freedom to communicate is the rule and restraint is the exception.

Censorship, a form of prior restraint, is the most suspect punishment in a free society; ideas do not even get to the marketplace to compete for recognition and acceptance. Censorship thus runs counter to the freedom of speech and press.

SCREP No. 2, II J. of Micro. Con. Con. 769-70. The comments were made in regard to Com. Prop. No. 1, entitled "Freedom of Speech and the Press." Com. Pro. No. 1 passed Second and Final Reading on October 23, 1975, on a vote of 46 for, and 1 against. I J. Micro. Con. Con. 392.