ARTICLE XI
Judicial
Section 1. The judicial power of the national government is vested in a Supreme Court and inferior courts established by statute.
Case annotations: Judicial
Powers
The FSM Supreme Court is empowered to exercise authority in probate matters where there is an independent basis for jurisdiction under the Constitution. In re Nahnsen,1 FSM Intrm. 97, 104 (Pon.
1982).
There is no
statutory limitation on the FSM Supreme Court's jurisdiction; the Judiciary Act
of 1979 plainly contemplates that the FSM Supreme Court will exercise all the
jurisdiction available to it under the Constitution. 4 FSMC 201-08.
In re Nahnsen, 1 FSM Intrm. 97, 106 (Pon. 1982).
The FSM Supreme Court has inherent constitutional power to issue all writs; this includes the traditional common law writ of mandamus. 4 FSMC 117. Nix v. Ehmes, 1 FSM Intrm. 114, 118 (Pon. 1982).
The FSM Supreme Court's constitutional jurisdiction to consider writs of habeas corpus is undiminished by the fact that the courts whose actions are under consideration, the Trust Territory High Court and a Community Court, were not contemplated by the FSM Constitution. In re Iriarte (I), 1 FSM Intrm. 239, 244, 246 (Pon. 1983).
The FSM Supreme Court is entitled and required to assure that the Trust Territory High Court, exercising governmental powers within the FSM, does not violate the constitutional rights of its citizens. In re Iriarte (II), 1 FSM Intrm. 255, 268 (Pon. 1983).
The Constitution unmistakably places upon the judicial branch ultimate responsibility for interpretation of the Constitution. Suldan v. FSM (II), 1 FSM Intrm. 339, 343 (Pon. 1983).
By using the U.S. Constitution as a blueprint, the framers created a presumption that they were adopting such a fundamental American Constitutional principle as judicial review, found to be inherent in the language and very idea of the U.S. Constitution. Suldan v. FSM (II), 1 FSM Intrm. 339, 348 (Pon. 1983).
The power to issue declaratory judgments is within the judicial power vested in the FSM Supreme Court by art. XI, § 1 of the Constitution and confirmed by the Judiciary Act of 1979. The FSM Supreme Court may exercise jurisdiction over an action seeking a declaratory judgment so long as there is a "case" within the meaning of art. XI, § 6(b). Ponape Chamber of Commerce v. Nett, 1 FSM Intrm. 389, 400 (Pon. 1984).
An attorney's professional activities are individually subject to regulation by the judiciary, not by the administrators of the Foreign Investment Act. Michelsen v. FSM, 3 FSM Intrm. 416, 427 (Pon. 1988).
The Constitution places control over admission of attorneys to practice before the nat'l courts, and regulation of the professional conduct of the attorneys, in the Chief Justice, as the chief administrator of the nat'l judiciary. Carlos v. FSM, 4 FSM
Intrm. 17, 27 (App. 1989).
The FSM Constitution provides no authority for any courts to act within the FSM, other than the FSM Supreme Court, inferior courts to be established by statute, and state or local courts. United Church of Christ v. Hamo, 4 FSM Intrm. 95, 105 (App. 1989).
The provisions of the FSM Constitution spelling out jurisdiction and vesting the entire judicial power of the nat'l gov't in the FSM Supreme Court are self-executing, and the judicial power of the FSM Supreme Court is not dependent upon congressional action. United Church of Christ v. Hamo, 4 FSM Intrm. 95, 105-06 (App. 1989).
Although judiciaries are vested with power to require or authorize initiation of criminal contempt proceedings, and may appoint private counsel to prosecute those proceedings, judiciaries typically attempt to appoint for that purpose gov't attorneys who are already responsible for public prosecutions. Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 62, 66 (Pon. 1991).
It is the duty of the FSM Supreme Court to review any nat'l law, including a treaty such as the Compact of Free Association , in response to a claim that the law or treaty violates constitutional rights, and if any provision of the Compact is contrary to the constitution, which is the supreme law of the land, then that provision must be set aside as without effect.Samuel v. Pryor, 5 FSM Intrm. 91, 98 (Pon. 1991).
Where there is in the Constitution a textually demonstrable commitment of the issue to a coordinate branch of gov't, such as Congress being the sole judge of the elections of its members, it is a nonjusticiable political question not to be decided by the court because of the separation of powers provided for in the Constitution. Aten v. National Election Comm'r (III), 6 FSM Intrm. 143, 145 (App. 1993).
Section 2. The Supreme Court is a court of record and the highest court in the nation. It consists of the Chief Justice and not more than 5 associate justices. Each justice is a member of both the trial division and the appellate division, except that sessions of the trial division may be held by one justice. No justice may sit with the appellate division in a case heard by him in the trial division. At least 3 justices shall hear and decide appeals. Decision is by a majority of those sitting.
Section 3. The Chief Justice and associate justices of the Supreme Court are appointed by the President with the approval of 2/3 of Congress. Justices serve during good behavior.
Section 4. If the Chief Justice is unable to perform his duties he shall appoint an associate justice to act in his stead. If the office is vacant, or the Chief Justice fails to make the appointment, the President shall appoint an associate justice to act as Chief Justice until the vacancy is filled or the Chief Justice resumes his duties.
Case annotations: The Chief Justice may appoint an acting chief justice if he is unable to perform his duties. "Unable to perform his duties" refers to a physical or mental disability of some duration, not to the legal inability to act on one particular case. Jano v. King, 5 FSM Intrm. 326, 331 (App. 1992).
Section 5. The qualifications and compensation of justices and other judges may be prescribed by statute. Compensation of judges may not be diminished during their terms of office unless all salaries prescribed by statute are reduced by a uniform percentage.
An attorney disciplinary proceeding in state court for violations of state disciplinary rules may not be removed to the FSM Supreme Court. Berman v. Santos, 7
FSM Intrm. 231 , 241 (Pon. 1995).
(a) The trial division of the Supreme Court has original and exclusive jurisdiction in cases affecting officials of foreign governments, disputes between states, admiralty or maritime cases, and in cases in which the national government is a party except where an interest in land is at issue.
Case annotations: Art. XI, § 6(a) of the Constitution places jurisdiction in the FSM Supreme Court over cases in which the nat'l gov't is a party. Panuelo v. Pohnpei, 2 FSM Intrm. 150, 153 (Pon. 1986).
A seaman's contract claim against the owner of the vessel upon which he served would be regarded as falling within the exclusive admiralty and maritime jurisdiction of the FSM Supreme Court. FSM Const. art. XI, § 6(a). Lonno v. Trust Territory (I), 1 FSM Intrm.
53, 6871(Kos.
1982).
The Seaman's Protection Act, originally enacted for the entire Trust Territory by the Congress of Micronesia, relates to matters that now fall within the legislative powers of the nat'l gov't under art. IX , § 2 of the Constitution, and has therefore become a nat'l law of the FSM under art. XV. That being so, a claim asserting rights under the Act falls within the jurisdiction of the FSM Supreme Court under art. XI, § 6(b) of the Constitution as a case arising under nat'l law. 19 FSMC 401-437.
Lonno v. Trust Territory (I),
1 FSM Intrm. 53(Kos. 1982).
Activities and organizations created and controlled by the nat'l gov't should remain subject to FSM Const. art. XI, § 6(a)
, but organizations merely authorized or licensed by the nat'l gov't which operate for private purposes, with little governmental involvement or control, should not be treated as a part of the nat'l gov't. FSM Dev. Bank v. Estate of Nanpei, 2 FSM Intrm. 217, 219-20 (Pon. 1986).
In an action on a delinquent promissory note brought by an instrumentality of the nat'l gov't which seeks to foreclose the mortgage securing the payment of the note, prior to the filing of an answer no interest in land is at issue, and therefore, the motion to dismiss on the ground that the court lacked jurisdiction is denied. FSM Dev. Bank v. Mori, 2 FSM Intrm. 242, 244 (Truk 1987).
Exact scope of admiralty jurisdiction is not defined in the FSM Constitution or legislative history, but U.S. Constitution has a similar provision, so it is reasonable to expect that words in both Constitutions have similar meaning and effect. Weilbacher v. Kosrae, 3 FSM Intrm. 320, 323 (Kos. S. Ct. Tr. 1988).
A dispute arising out of injury sustained by a passenger on a vessel transporting passengers from Kosrae to Pohnpei, at a time when the vessel is 30 miles from Kosrae, falls within the exclusive admiralty jurisdiction of the FSM Supreme Court. Weilbacher v. Kosrae, 3 FSM Intrm. 320, 323 (Kos. S. Ct. Tr. 1988).
The maritime jurisdiction conferred on the FSM Supreme Court by the Constitution is not to be decided with reference to the details of U.S. cases and statutes concerning admiralty jurisdiction but instead with reference to the general maritime law of seafaring nations of the world, and to the law of nations. Federal Business Dev. Bank v. S.S. Thorfinn, 4 FSM Intrm. 367, 374 (App. 1990).
Where a claim is against the nat'l gov't and an interest in land is not placed at issue the claim is within the exclusive jurisdiction of the FSM Supreme Court and it cannot abstain on the claim. Damarlane v. Pohnpei
Transp. Auth., 5 FSM Intrm. 67A, 67E (Pon. 1991).
The FSM Supreme Court has exclusive jurisdiction in actions by the nat'l gov't to enforce the terms of fishing agreements and permits to which it is a party. FSM v. Hai Hsiang No. 63, 7 FSM Intrm. 114, 116 (Chk. 1995).
(b) The national courts, including the trial division of the Supreme Court, have concurrent original jurisdiction in cases arising under this Constitution; national law or treaties; and in disputes between a state and a citizen of another state, between citizens of different states, and between a state or a citizen thereof, and a foreign state, citizen, or subject.
Case annotations: National
Law
The Nat'l Criminal Code places in the FSM Supreme Court exclusive jurisdiction over allegations of violations of the Code. No exception to that jurisdiction is provided for juveniles, so charges of crimes leveled against juveniles are governed by the Nat'l Criminal Code. FSM v. Albert, 1 FSM Intrm. 14,15 (Pon. 1981).
The repealer clause of the Nat'l Criminal Code repealed those provisions of Title 11 of the Trust Territory Code above the monetary minimum of $1,000 set for major crimes. Where the value is below $1,000, § 2 does not apply because it is not within the nat'l court jurisdiction. FSM v. Hartman, 1 FSM Intrm. 43 (Truk 1981).
Title 11 of the Trust Territory Code, prior to the effective date of the Nat'l Criminal Code, is not a nat'l law because its criminal jurisdiction was not expressly delegated to the nat'l gov't, nor is the power it confers of indisputably nat'l character; therefore, it is not within the jurisdiction of the FSM Supreme Court. Truk v. Otokichy (I), 1 FSM Intrm. 127, 130 (Truk 1982).
The FSM Supreme Court has jurisdiction to try Title 11 Trust Territory Code cases if they arise under a nat'l law. Title 11 of the Trust Territory Code is not a nat. l law. It was not adopted by Congress as a nat'l law and it did not become nat'l law by virtue of the transition article. Truk v. Hartman, 1 FSM Intrm. 174, 178 (Truk 1982).
Exclusive nat'l gov't jurisdiction over major crimes is not mandated by the Constitution; such jurisdiction would be exclusive in any event only if criminal jurisdiction was a power of indisputably nat'l character. Truk v. Hartman, 1 FSM Intrm. 174, 181 (Truk 1982).
Sections of Title 11 of the Trust Territory Code covering matters within the jurisdiction of Congress owe their continuing vitality to § 102 of the Nat'l Criminal Code. Thus, the criminal prosecutions thereunder are a nat'l matter and fall within the FSM Supreme Court's constitutional jurisdiction. 11 FSMC 102. In re Otokichy, 1 FSM Intrm. 183, 185 (App. 1982).
§ 102(2), the savings clause of the Nat'l Criminal Code, authorizes prosecutions of Title 11 Trust Territory Code offenses occurring prior to the enactment of the Nat'l Criminal Code. Therefore, these prosecutions fall within the FSM Supreme Court's constitutional jurisdiction. 11 FSMC 102(2). In re Otokichy, 1 FSM Intrm. 183, 190 (App. 1982).
Presumably,
Congress inserted no specific jurisdictional provision in § 102 of the Nat'l Criminal Code because Congress recognized that the FSM Supreme Court would have jurisdiction over all cases arising under nat. l law by virtue of art. XI, § 6(b) of the Constitution. 11 FSMC 102. In re Otokichy, 1 FSM Intrm. 183, 193 (App. 1982).
The Trust Territory Weapons Control Act is not inconsistent with any provision of the Constitution. It therefore continued in effect. When the Nat'l Criminal Code was enacted, and major crimes were defined, the Trust Territory Weapons Control Act became nat'l law and trials for violations thereof were within the jurisdiction of the FSM Supreme Court. 11 FSMC 1201-1231. FSM v. Nota, 1 FSM Intrm. 299, 302-03 (Truk 1983).
The FSM Supreme Court trial division is required to decide all nat. l law issues presented to it. Certification to state court is only proper for state or local law issues. Edwards v. Pohnpei, 3 FSM Intrm. 350, 354 (Pon. 1988).
The Trust Territory of the Pacific Islands, which still exists and has governmental powers in the Republic of Palau, is now "foreign" to the FSM and a corporation organized under the laws of the Trust Territory may itself be regarded as foreign for purposes of diversity of citizenship jurisdiction. U Corp. v. Salik, 3 FSM Intrm. 389, 392 (Pon. 1988).
In the absence of any special limitation, issues that arise under any state or nat'l law within the particular state may fall within the jurisdiction of the state and local courts of that state through state constitutional and statutory provisions which place the "judicial power of the state" within those courts. Gimnang v. Yap, 5 FSM Intrm. 13, 17 (App. 1991).
Art. XI, §§ 6(b)and8 of the FSM Constitution places primary responsibility in the nat'l courts for the kind of cases arising under the constitution or requiring interpretation of the Constitution, nat'l law or treaties; and in disputes between a state and a citizen of another state, between state, citizen, of different states, and between a state or a citizen, a foreign state, citizen, or subject but they do not prohibit state court jurisdiction over issues of nat'l law or cases which arise under nat'l law. Gimnang v. Yap, 5 FSM Intrm. 13, 18 (App. 1991).
Issues that arise under any state or nat'l law within the particular state may fall within the jurisdiction of the state and local courts of that state through state constitutional and statutory provisions which place the "judicial power of the state" within those courts, subject to the possibility that state or local courts may sometimes be barred from exercising jurisdiction in some such cases by the action of Congress, of this court, or of the state legislature. Gimnang v. Yap, 5 FSM Intrm. 13, 18 (App. 1991).
The intent of the Constitutional Convention is that major crimes, as defined by Congress and committed prior to voter ratification, fall within the jurisdiction of the nat'l gov't and may be prosecuted pursuant to the nat'l law after the effective date of the amendment. In re Ress, 5 FSM Intrm. 273, 276 (Chk. 1992).
The nat'l court should not abstain from deciding a criminal case where the crime took place before the effective date of the 1991 amendment removing federal jurisdiction over major crimes because of the firmly expressed intention by the Constitutional Convention delegates as to the manner of transition from nat'l jurisdiction to state jurisdiction. In re Ress, 5 FSM Intrm. 273, 276 (Chk. 1992).
Where the crimes charged are no longer those expressly delegated to Congress to define, or are not indisputedly of a nat'l character the FSM Supreme Court has no subject matter jurisdiction. FSM v. Jano, 6 FSM Intrm. 9, 11 (Pon. 1993).
The term "concurrent" in art. XI, § 6(c) of the FSM Constitution has the same meaning as in § 6(b); i.e., that jurisdiction is concurrent as between the FSM Supreme Court and any other nat'l courts that may be established by statute. It would be illogical and contrary to norms of constitutional interpretation to assume a different meaning for "concurrent" in § 6(c) than in § 6(b), since it is quite clear that the two sections are to be read together. Faw v. FSM, 6 FSM Intrm. 33, 35 (Yap 1993).
Abstention and
Certification
Nat'l courts are not required to certify to state courts state law issues of first impression. Whether to certify a question to state court is left to the sound discretion of the trial court on a case by case basis. Youngstrom v. Youngstrom, 7 FSM Intrm. 34, 36 (App. 1995).
A most important issue in determining whether to certify an issue to state court is whether it will result in undue delay and whether that delay will prejudice a party. Youngstrom v. Youngstrom, 7 FSM Intrm. 34, 36 (App. 1995).
The decision whether the FSM Supreme Court will exercise its inherent power to abstain from a case is left to the sound discretion of the trial division which must exercise it carefully and sparingly. Conrad v. Kolonia Town, 7 FSM Intrm. 97, 99 (Pon. 1995).
Counseling against the unfettered use of abstention is the FSM Supreme Court's solemn obligation to consider the interests and protect the rights of those who wish to invoke its constitutional jurisdiction. Conrad v. Kolonia Town, 7 FSM Intrm. 97, 99 (Pon. 1995).
There is a presumption favoring abstention in claims involving state law and money damages against the state touch upon the particularly strong state interest of fiscal autonomy and federalism. Even in those cases the FSM Supreme Court will not abstain when abstention will result in substantial delay or additional cost. Conrad v. Kolonia Town, 7 FSM Intrm. 97, 100 (Pon. 1995).
Where a case involves several substantive FSM constitutional claims the FSM Supreme Court will not and most likely cannot exercise its discretion to abstain. Conrad v. Kolonia Town, 7 FSM Intrm. 97, 101 (Pon. 1995).
Full abstention is not appropriate where claims are not essentially state law claims, and are made against another nation, thus falling within the nat'l court's primary jurisdiction.Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 67A, 67E (Pon. 1991).
Abstention may be appropriate for causes of action that raise issues of state law only, but may not be where substantive issues of nat'l law are raised. A nat'l court may not abstain from deciding a nat'l constitutional claim. Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 67A, 67E (Pon. 1991).
Diversity
The Supreme Court of the FSM is specifically given jurisdiction over disputes between citizens of a state and foreign citizens. FSM Const. art. XI, § 6(b). The jurisdiction is based upon the citizenship of the parties, not on the subject matter of the dispute. In re Nahnsen, 1 FSM Intrm. 97, 101 (Pon. 1982).
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." In re
Nahnsen, 1 FSM Intrm. 97, 102 (Pon. 1982).
A
requirement for complete diversity among all parties has no constitutional
support as a prerequisite to FSM Supreme Court jurisdiction. In re Nahnsen, 1 FSM Intrm.
97, 105-06 (Pon. 1982).
Where
jurisdiction exists by virtue of diversity of the parties, the FSM Supreme Court
may resolve the dispute despite the fact that matters squarely within the
legislative powers of states (e.g., probate, inheritance and land issues) may be
involved. Ponape
Chamber of Commerce v. Nett, 1 FSM Intrm. 389, 392 (Pon.
1984).
Diversity of citizenship is determined as of commencement of
the action. Where diversity existed between the parties at the date and
time the suit commenced, diversity will not be defeated by later developments.
Etpison
v. Perman, 1 FSM Intrm. 405, 414 (Pon. 1984).
As a
general proposition, a court system resolves disputes by considering and
deciding between competing claims of two or more opposing parties. In re Sproat, 2 FSM Intrm. 1, 4 (Pon.
1985).
Where
there is diversity of citizenship between the parties, litigation involving
domestic relations issues, including custody and child support, falls within the
jurisdiction of the FSM Supreme Court. Mongkeya v. Brackett, 2 FSM Intrm. 291, 292 (Kos.
1986).
Although the FSM Supreme Court has often decided matters of
tort law without stating explicitly that state rather than nat'l law controls,
there has been acknowledgment that state law controls in the resolution of
contract and tort issues. When the Supreme Court, in the exercise of its
jurisdiction, decides a matter of state law, its goal should be to apply the law
the same way the highest state court would. Edwards
v. Pohnpei, 3 FSM Intrm. 350, 360 n.22 (Pon. 1989).
Failure
to mention nat'l courts in § 25 of the Pohnpei State Real Property Mortgage Act
should not be read as an attempt to deprive litigants of access to the FSM
Supreme Court's trial division. Bank of
Guam v. Semes, 3 FSM Intrm. 370, 380 (Pon. 1988).
The
Constitution requires only that one plaintiff has citizenship different from one
defendant for there to be diversity jurisdiction. U Corp.
v. Salik, 3 FSM Intrm. 389, 392 (Pon. 1988).
The
nat'l Constitution does not prohibit state courts from hearing cases described
in art. XI, § 6(b) if all parties accept state court
jurisdiction, but parties to a dispute within scope of art.
XI, § 6(b) have a constitutional rights to invoke jurisdiction of FSM
Supreme Court trial division. U Corp. v. Salik, 3 FSM Intrm. 389, 392 (Pon.
1988).
The
Truk State Court will not assert jurisdiction in a diversity case because the
"The national courts, including the trial division of the Supreme Court, have
concurrent original jurisdiction . . . in disputes between a state and a citizen
of another state, between citizens of different states, and between a state or a
citizen thereof, and a foreign state, or subject." FSM
Const. art. XI, § 6(b). Flossman v. Truk, 3 FSM Intrm. 438, 440 (Truk S. Ct.
Tr. 1988).
State
courts are not prohibited by art. XI, § 6(b) of the FSM
Constitution from hearing and determining cases where the defendants are
from FSM states other than the prosecuting state. Jurisdiction over
criminal matters between the nat'l and state governments is determined by the
severity of the crime; not diversity of citizenship. Pohnpei
v. Hawk, 3 FSM Intrm. 543, 554 (Pon. S. Ct. App. 1988).
When
all of the parties are citizens of foreign states there is no diversity of
citizenship subject matter jurisdiction under art.
XI, § 6(b). International Trading Co. v.
Hitec Corp., 4 FSM Intrm. 1, 2 (Truk 1989).
A joint
venture, without the powers to sue or be sued in the name of the association and
without limited liability of the individual members of the association, is not a
citizen of Truk State for diversity purposes even though its principal place of
business is in Truk State. International Trading Corp. v. Hitec
Corp., 4 FSM Intrm. 1, 2 (Truk 1989).
While
the FSM Constitution provides initial access to the FSM Supreme Court for any
party in art. XI, § 6(b)
litigation, the court may, having familiarized itself with the issues, invoke
the doctrine of abstention and permit the case to proceed in a state court,
since the power to grant abstention is inherent in the jurisdiction of the FSM
Supreme Court, and nothing in the FSM Constitution precludes the court from
abstaining in cases which fall within its jurisdiction under art. XI, § 6(b). Ponape
Transfer & Storage, Inc. v. Federated Shipping Co., 4 FSM Intrm. 37,
42-43 (Pon. 1989).
No
jurisdiction is conferred on state courts by FSM Constitution - Article
11art. XI, § 6(b) of the FSM Constitution, but neither does the
diversity jurisdiction of § 6(b) preclude state courts from acting under state
law, unless or until a party to the litigation invokes nat'l court jurisdiction.
Hawk v. Pohnpei, 4 FSM Intrm.
85, 89 (App. 1989).
It is
consistent with the broad plan of the framers of the FSM Constitution that the
Constitution would not require that diversity jurisdiction be available in
criminal proceedings. Hawk v.
Pohnpei, 4 FSM Intrm. 85, 94 (App. 1989).
Although the purpose of diversity jurisdiction is to provide
parties who are not citizens of the state where a matter arises with a nat'l
forum for which the federation of states is responsible, the need to safeguard
the legitimate rights of a noncitizen in a state forum must be balanced against
the understandable concern of the society of that state to control standards of
behavior in accordance with its own set of values. Hawk v. Pohnpei, 4 FSM Intrm.
85, 94 (App. 1989).
Jurisdiction based upon diversity of citizenship between the
parties is concurrent in the Supreme Court and the nat'l courts, and therefore a
party to state court litigation where diversity exists has a constitutional
right to invoke the jurisdiction of the nat'l court. In re Estate of Hartman, 4 FSM
Intrm. 386, 387 (Chk. 1989).
Issues
concerning land usually fall into state court jurisdiction, but if there are
diverse parties having bona fide interests in the case or dispute, the
Constitution places jurisdiction in the nat'l courts even if interests in land
are at issue. Etscheit
v. Adams, 5 FSM Intrm. 243, 246 (Pon. 1991).
When an
estate is a party it is the citizenship of the estate representative that is to
be considered for diversity purposes. Etscheit v. Adams, 5 FSM
Intrm. 243, 246 (Pon. 1991).
Where,
for six and a half years after the nat'l court had come into existence the
noncitizen petitioners made no attempt to invoke the nat'l court's jurisdiction,
the noncitizen petitioners affirmatively indicated their willingness to have the
case resolved in court proceedings, first in the Trust Territory High Court and
later in Pohnpei state court, and thus have waived their right to diversity
jurisdiction in the nat'l courts. Etscheit v. Adams, 5 FSM
Intrm. 243, 247-48 (Pon. 1991).
The
fact that a "tactical stipulation," made in 1988 to eliminate all noncitizens as
parities to the litigation and thus place the litigation within the sole
jurisdiction of the state court, may have been violated in 1991, does not
retroactively change the effect of the stipulation for purposes of jurisdiction.
Etscheit v. Adams, 5 FSM
Intrm. 243, 248 (Pon. 1991).
Nat'l
courts can exercise jurisdiction over divorce cases where there is diversity of
citizenship although domestic relations are primarily the subject of state law.
Youngstrom v. Youngstrom, 5
FSM Intrm. 335, 336 (Pon. 1992).
Where
the constitutional language itself, following FSM precedents on constitutional
interpretation, only requires minimal diversity for the nat'l courts to have
jurisdiction, and the constitutional journals do not reveal any intent to depart
from the plain meaning of the constitutional language, there are no sound
reasons why 12 years of FSM jurisprudence requiring only minimal diversity
should be overturned. Luzama v.
Pohnpei Enterprises Co., 7 FSM Intrm. 40, 48 (App. 1995).
The FSM
Supreme Court has diversity jurisdiction only in disputes between a state and a
citizen of another state, between citizens of different states, and between a
state or a citizen thereof, and a foreign state, citizen, or subject.
Diversity jurisdiction thus does not exist when all the parties are
foreign citizens, even though they may be citizens of different foreign nations.
In such cases, the court's subject matter jurisdiction must be based on
some other ground. Trance v.
Penta Constr. Co., 7 FSM Intrm. 147, 148 (Chk. 1995).
Pendent
Where
the FSM Supreme Court has jurisdiction over a violation of the Nat'l Criminal
Code, it cannot then take jurisdiction over a non-major crime, which arose out
of the same transaction and formed part of the same plan, under the theory of
ancillary jurisdiction. FSM v.
Hartman, 1 FSM Intrm. 43,44-46 (Truk 1981).
Where a
substantial constitutional issue is involved in a case, the nat'l court may
exercise pendent jurisdiction over state or local claims which derives from the
same nucleus of operative fact and are such that the plaintiff would ordinarily
be expected to try them all in one judicial proceeding. Ponape Chamber of Commerce v.
Nett, 1 FSM Intrm. 389, 396 (Pon. 1984).
Even
though the requirements for pendent jurisdiction are met in a case, a nat'l
court has discretion to decline to exercise jurisdiction over state claims.
This determination should turn on considerations of judicial economy,
convenience and fairness to litigants and should be instructed by a desire of
the federal or nat'l court to avoid needless decisions of state law. Ponape Chamber of Commerce v.
Nett, 1 FSM Intrm. 389, 397 (Pon. 1984).
A nat'l
court may exercise pendent jurisdiction over state law claims included in a
plaintiff's cause of action if they arise out of a common nucleus of operative
fact and are such that they ordinarily would be expected to be tried in one
judicial proceeding, but its exercise of pendent jurisdiction will be limited so
as to avoid heedless decisions of state laws. Ponape Constr. Co. v. Pohnpei,
6 FSM Intrm. 114, 116 (Pon. 1993).
(c) When jurisdiction is
concurrent, the proper court may be prescribed by statute.
Case annotations:
Case or Dispute
A case
must be one appropriate for judicial determination, that is, a justiciable
controversy, as distinguished from a difference or dispute of a hypothetical or
abstract character, or one that is academic or moot. The controversy must
be definite and concrete, touching the legal relations of parties having adverse
legal interests. In re
Sproat, 2 FSM Intrm. 1,5 (Pon. 1985).
One
reason the judicial power is limited to cases or disputes is to prevent the
Judiciary from intruding into areas committed to other branches of gov't.
In re Sproat, 2 FSM Intrm.
1, 7 (Pon. 1985).
The
principal objectives of the case and dispute requirement are to enhance the
ability of the courts to make fair and intelligent decisions, and to keep the
judicial power within its proper role. Innocenti v. Wainit, 2 FSM
Intrm. 173, 178-79 (App. 1986).
A
concrete case or dispute clearly exists where a state legislature contends that
an act of the legislature requires payment of a tax on imports and others insist
that the act is null and void, and, depending on the outcome of the controversy,
money may or may not be collected, and penalties may or may not be imposed.
Innocenti v. Wainit, 2 FSM
Intrm. 173, 179 (App. 1986).
Where
there is no indication that the sentencing order in question is an attempt to
modify or affect the powers of the Director of Public Safety, absent indications
that the order prevents the director from doing anything he wishes, the order
creates no case or dispute as to the scope of the director's powers, and the
court is thus without jurisdiction to speak on the issue. Loch v. FSM, 2
FSM Intrm. 224, 237 (App. 1986).
Art.
XI, § 6(c) of the Constitution places authority to prescribe jurisdiction only
in the nat. l Congress, and not in state legislatures. Bank of Guam v. Semes, 3 FSM
Intrm. 370, 379 (Pon. 1988).
The
term "concurrent" in art. XI, § 6(c) of the FSM Constitution has the same
meaning as in § 6(b); i.e., that jurisdiction is concurrent as between the FSM
Supreme Court and any other nat. l courts that may be established by statute.
It would be illogical and contrary to norms of constitutional
interpretation to assume a different meaning for "concurrent" in § 6(c) than in
§ 6(b), since it is quite clear that the two sections are to be read together.
Faw v.
FSM, 6 FSM Intrm. 33, 35 (Yap 1993).
Where
there is in the Constitution a textually demonstrable commitment of the issue to
a coordinate branch of gov't, such as Congress being the sole judge of the
elections of its members, it is a nonjusticiable political question not to be
decided by the court because of the separation of powers provided for in the
Constitution. Aten v. National Election Comm'r (III), 6 FSM Intrm.
143, 145 (App. 1993).
While
the court has statutory authority to hear appeals regarding the conduct of
elections, its power to grant relief is limited to ordering a recount or a
revote. Only Congress can decide who is to be seated and once it has
seated a member unconditionally the matter is nonjusticiable. Aten v.
National Election Comm'r (III), 6 FSM Intrm. 143, 145 & n.1 (App.
1993).
Case or Dispute; Mootness
A claim
becomes moot when the parties lack a legally cognizable interest in the outcome.
If an appellant court finds that any relief it could grant would be
ineffectual, it must treat the case as moot. Berman
v. FSM Supreme Court (II), 7 FSM Intrm. 11, 16 (App.
1995).
Case or Dispute; Ripeness
When a
party has been specifically warned by the attorney general that he is required
to obtain a foreign investment permit under nat'l statute which imposes criminal
sanctions for failure to comply, the question of whether a permit is required is
sufficiently ripe to support a suit seeking declaratory judgment. Michelsen v. FSM, 3 FSM Intrm. 416, 419 (Pon.
1988).
Case or Dispute; Standing
The
jurisdictional language in the FSM Constitution is patterned upon the U.S.
Constitution. In re Sproat, 2 FSM Intrm.
1, 4 n.2 (Pon. 1985).
It is
thought that the judicial power to declare the law will more likely be exercised
in enlightened fashion if it is employed only where the Court is exposed to the
differing points of view of adversaries. Thus judicial decision-making
power is typically exercised by a court which has heard competing contentions of
adversaries having sufficient interests in the outcome to thoroughly consider,
research and argue the points at issue. Even then, a court's declarations
of law should be limited to rulings necessary to resolve the dispute before it.
In re Sproat, 2 FSM Intrm.
1, 4 (Pon. 1985).
Though
the words used in art. XI, § 6 of the FSM Constitution,
including the case or dispute requirements, are based on the similar case and
controversy provisions set out in art. III of the U.S. Constitution, courts
within the F.S.M. are not to consider themselves bound by the details and minute
points of decisions of U.S. courts attempting to ferret out the precise meaning
of art. III. Aisek v.
FSM Foreign Investment Board, 2 FSM Intrm. 95, 98 (Pon.
1985).
Standing to sue was an unsettled area of U.S. law when the
FSM Constitution was ratified and the issue of standing to sue within the FSM is
one that calls for independent analysis rather than rigid adherence to the
decisions of U.S. courts construing that Constitution. Aisek v. FSM Foreign
Investment Bd., 2 FSM Intrm. 95, 98-99 (Pon. 1985).
In
deciding who may litigate in the FSM Supreme Court, the goal is to develop
principles consistent with the language of the Constitution and calculated to
meet the needs of the people and institutions within the FSM. Aisek
v. FSM Foreign Investment Bd., 2 FSM Intrm. 95, 100 (Pon.
1985).
Where
dive shop operators allege actual or threatened economic injury as a result of
increased competition flowing from business activities of a pleasure cruise ship
providing diving opportunities in the same geographical area where the
plaintiffs operate, and where they have placed before the court information
sufficient to establish the reasonableness of their fear of economic injury,
their law suit challenging the legality of the issuance of a foreign investment
permit to a cruise ship may not be dismissed for lack of standing. Aisek
v. FSM Foreign Investment Bd., 2 FSM Intrm. 95, 100 (Pon.
1985).
There
is in the FSM no separate requirement that there be a nexus, that is, a logical
connection between persons threatened by injury from the actions of an
administrative agency and the statutory provisions under which the agency is
operating. Aisek
v. FSM Foreign Investment Bd., 2 FSM Intrm. 95, 102 (Pon.
1985).
The
principal objectives of the case and dispute requirement are to enhance the
ability of the courts to make fair and intelligent decisions, and to keep the
judicial power within its proper role. Innocenti v. Wainit, 2 FSM Intrm. 173, 178-79 (App.
1986).
The
issue of standing to sue, because it was a particularly unsettled area in U.S.
law when the FSM Constitution was drafted and ratified, is an area especially
calling for independent analysis rather than adherence to decisions construing
similar provisions in the U.S. Constitution. Innocenti v. Wainit, 2 FSM Intrm. 173, 178-79 (App.
1986).
A
concrete case or dispute clearly exists where a state legislature contends that
an act of the legislature requires payment of a tax on imports and others insist
that the act is null and void, and, depending on the outcome of the controversy,
money may or may not be collected, and penalties may or may not be imposed.
Innocenti v. Wainit, 2 FSM Intrm. 173, 179 (App.
1986).
The
standing requirement is not expressly stated in the Constitution but implied as
an antecedent to the constitutional case or dispute requirement, and should be
interpreted so as to implement the objectives of that requirement. Innocenti v. Wainit, 2 FSM
Intrm. 173, 179 (App. 1986).
Business people have standing to challenge the
constitutionality of an excise tax based on imports where the addition of the
tax increases the cost that business people must pay for goods intended for
resale to consumers. Innocenti
v. Wainit, 2 FSM Intrm. 173, 180 (App. 1986).
Plaintiff's possessory interest in land is sufficient to
maintain standing to bring action for damages wrought when a road was built
across the land. Benjamin
v. Kosrae, 3 FSM Intrm. 508, 511 (Kos. S. Ct. Tr. 1988).
When a
public officer is requested to perform a duty mandated by law which he feels
would violate the constitution, he has standing to apply to the court for a
declaratory judgment declaring the statute unconstitutional. Siba v. Sigrah, 4 FSM Intrm.
329, 334 (Kos. S. Ct. Tr. 1990).
A party
has standing to sue when that party has a sufficient stake or interest in an
otherwise justiciable controversy to obtain judicial resolution of that
controversy. The implied requirement that a party have standing should be
interpreted so as to implement the objectives of the constitutional requirement
that a case or dispute exist. In re Parcel No. 046-A-01, 6 FSM Intrm. 149, 153
(Pon. 1993).
Private
individuals lack standing to assert claims on behalf of the public. When
the state gov't has certified ownership of land, and the traditional leaders'
suit to have that land declared public land failed, private individuals cannot
raise the same claim. In re Parcel No. 046-A-01, 6 FSM Intrm. 149, 157
(Pon. 1993).
The FSM
will not apply a Trust Territory rule on that only the gov't had standing to
challenge title to land based Trust Territory Code provisions to deny standing
to private persons challenging title to land under entirely separate FSM
Constitutional provisions on citizenship, especially since the authority for the
Trust Territory rule was derived from now deleted language in an American legal
encyclopedia. Etscheit
v. Adams, 6 FSM Intrm. 365, 383-84 (Pon. 1994).
Section 7. The
appellate division of the Supreme Court may review cases heard in the national
courts, and cases heard in state or local courts if they require interpretation
of this Constitution, national law, or a treaty. If a state constitution
permits, the appellate division of the Supreme Court may review other cases on
appeal from the highest state court in which a decision may be
had.
Case annotations:
APPEAL AND CERTIORARI
An
appeal at the early stage of development of FSM judicial systems is a
significant event calling for relatively large expenditure of judiciary
resources. In order to preserve and uphold the legitimate right of parties
to appropriate appeals, the FSM Supreme Court must be vigilant and exercise its
inherent powers to avoid unnecessary expenditure of resources for premature or
unauthorized appeals. FSM v.
Yal'Mad, 1 FSM Intrm. 196, 197-98 (App. 1982).
FSM
Appellate Rule 9's purpose is to permit a defendant held in custody, or
subjected to conditions of release, to receive expedited review of that
restriction of his freedom. There is no suggestion in the rule nor in any
other authority indicating that the gov. t is entitled to appeal from the
pretrial release of a defendant. FSM v. Yal'Mad, 1 FSM Intrm.
196, 198 (App. 1982).
Tardiness of the appellant in filing his brief, with no
explanation offered in response to a motion for dismissal or when the brief is
submitted, constitutes a ground for dismissal of an appeal. FSM App. R.
31(a) & (c). Alaphonso
v.FSM, 1 FSM Intrm. 209, 229-30 (App. 1982).
In
absence of express appellate division permission to appear without supervision
of an attorney, the court will require all appellate level briefs and other
documents to be signed by an attorney authorized to practice before the FSM
Supreme Court. Any appellate submissions not so signed will be rejected.
Alaphonso v. FSM, 1 FSM Intrm.
209, 230 n.13 (App. 1982).
The
Trust Territory High Court has the legitimate authority to issue writs of
certiorari for cases from the FSM Supreme Court; the Supreme Court cannot
disregard an opinion resulting from such review. Jonas v. FSM, 1 FSM Intrm.
322, 326-29 (App. 1983).
A writ
of certiorari is improvidently granted by the Trust Territory High Court unless
a decision of the FSM Supreme Court affects the ability of the Secretary of the
Interior to fulfill his responsibilities under Executive Order
11021. Jonas v. FSM, 1 FSM Intrm.
322, 329 n.1 (App. 1983).
A trial
court may in its discretion permit a case involving separate charges based upon
the same act to proceed to trial. However, the court should render a
decision and enter a conviction only on the more major of the crimes proven
beyond a reasonable doubt. After appeal, if any, has been completed, and
the greater charge is reversed on appeal, the trial court may then find it
necessary to enter a judgment on the lesser charge. Laion v. FSM, 1 FSM Intrm.
503, 529 (App. 1984).
Where a
party on appeal challenges the intervention in the appeal of another party, and
the issue on the merits is decided in favor of the challenging party, no harm is
visited on the challenging party by allowing the intervention, and the court is
not required to rule on the propriety of that intervention. Innocenti v. Wainit, 2 FSM
Intrm. 173, 180 (App. 1986).
In a
new nation in which the courts have not yet established a comprehensive
jurisprudence, where an issue is one of first impression and of fundamental
importance to the new nation, the court should not lightly impose sanctions upon
an official who pushes such an issue to a final court decision, and should make
some allowance for wishful optimism in an appeal. Innocenti v. Wainit, 2 FSM
Intrm. 173, 188 (App. 1986).
Only
attorneys admitted to practice before the FSM Supreme Court or trial counselors
supervised by an attorney admitted to practice may appear before the FSM Supreme
Court on appeals from state court cases. Kephas v. Kosrae, 3 FSM Intrm.
248, 252 (App. 1987).
A delay
of only two days in filing the appellate brief does not warrant dismissal of the
appeal when there is no showing of prejudice. Kephas v. Kosrae, 3 FSM Intrm.
248, 253 (App. 1987).
Unexcused and extended delay in service of appellant's brief
after certification of the record warrants dismissal of the appeal. Kephas v. Kosrae, 3 FSM Intrm.
248, 254 (App. 1987).
Failure
of the appellant to include a transcript in the record on an appeal based upon a
claim of insufficiency of evidence warrants dismissal of the appeal. Kephas v. Kosrae, 3 FSM Intrm.
248, 254 (App. 1987).
That
fee arrangements had not been made is not good cause in support of a motion to
enlarge time for filing appellees brief when the motion is filed well after the
brief was due and after oral argument was held. Paul v. Celestine, 3 FSM
Intrm. 572, 574 (App. 1987).
The
appellate court, for good cause shown, may upon motion enlarge the time
prescribed by the appellate rules or by its order for doing any act, or may
permit an act to be done after the expiration of such time. Kimoul v. FSM, 4 FSM Intrm.
344, 345 (App. 1990).
Where
the delay was only ten days, no prejudice to the appellant has been suggested,
the appellant has not opposed the motion for extension of time and the court
finds a substantial public interest in having the position of the gov't
considered in the criminal appeal, the court may appropriately enlarge the time
and permit late filing of the government's brief. Kimoul v. FSM, 4 FSM Intrm.
344, 346 (App. 1990).
Where
an appellate court has held that a trial judge is under a clear and
non-discretionary duty to step aside from presiding over a case and the
petitioner has a constitutional right to obtain compliance with that duty, all
documents issued after the date of the appellate decision are null and void and
shall be expunged from the record and the judge shall be enjoined from taking
any further action as a judge in the case. Etscheit v. Santos, 5 FSM
Intrm. 111, 113 (App. 1991).
When
the language of an FSM appellate rule is nearly identical to a U.S.'
counterpart, FSM courts will look to the U.S. federal courts for guidance in
interpreting the rule. Jano v.
King, 5 FSM Intrm. 326, 329 (App. 1992).
It is
within the court's discretion to dismiss an appeal where the appellant has
failed to file a brief within the time prescribed when the appellee has moved
for dismissal. In deciding a motion to dismiss an appeal under FSM Appellate Rule 31(c), the court may
consider, among other things, the length of delay in filing briefs; nature of
the reason for any filing delay; evidence of prejudice to the opposing party;
and extent of the delaying party's efforts to correct procedural defects.
Nakamura v. Bank of Guam (I),
6 FSM Intrm. 224, 227 (App. 1993).
Prejudice to an appellee may be shown by failure of an
appellant to file a notice of issues presented and contents of the appendix as
required under FSM Appellate Rule 30(b). Nakamura v. Bank of Guam (I),
6 FSM Intrm. 224, 227 (App. 1993).
Parties
to an appeal must reference properly and clearly in their briefs the parts of
the record containing material in support of their arguments, and unless the
court has waived an appendix under Appellate
Rule 30(f), references should be to the appropriate pages of the appendix.
Nakamura v. Bank of Guam (I),
6 FSM Intrm. 224, 228 (App. 1993).
FSM
Appellate Rule 28(a)requires, among other things, that arguments in an
appellant's brief be supported by citations to authority; failure to provide
such support will be deemed a waiver by appellant of the claims being argued.
McCaffrey v. FSM Supreme
Court, 6 FSM Intrm. 279, 283 (App. 1993).
Where
the appellant at oral argument contended that a grant of an interest in land was
for an indefinite term and the court inquired of the appellant whether the grant
was perpetual or forever the issue of whether a perpetual grant was for an
indefinite term was fairly before the appellate court and could be decided by it
even though the issue had not ben briefed nor had the appellee urged it.
Nena v. Kosrae (II), 6 FSM
Intrm. 437, 439 (App. 1994).
The
proper procedure, in accordance with Kosrae State
law and the FSM appellate rules, in filing a notice of appeal from a
decision of the Kosrae State Court is to file notice in both Kosrae State Court
and the FSM Supreme Court, either with the trial division in Kosrae or directly
with the appellate division. Tafunsak
v. Kosrae, 6 FSM Intrm. 467, 468 (App. 1994).
An
appellate court cannot hold a party in contempt for violating a trial court's
orders because his actions were not a violation of the appellate court's orders
or done in the appellate court's presence. Onopwi v. Aizawa, 6 FSM Intrm.
537, 539 (Chk. S. Ct. App. 1994).
For
good cause shown, an appellate court may grant an enlargement of time for any
act, except notice of appeal or times set by statute in administrative appeals,
including a petition for rehearing. Nena v. Kosrae (III), 6 FSM
Intrm. 564, 567 (App. 1994).
Decisions
Reviewable
The
court will not issue a writ of certiorari to review the trial court's
suppression of defendant's confession in a case in which no assignments of error
are furnished to the court, although such decision effectively terminates the
case because the gov. t cannot continue its prosecution without the confession,
and although no appeal is available to the gov. t. In re Edward, 3 FSM Intrm.
285, 286-87 (App. 1987).
A
petition for certiorari will not be granted unless it delineates the act or acts
alleged to be in error with sufficient particularity to demonstrate material,
harmful error. In re
Edward, 3 FSM Intrm. 285, 288 (App. 1987).
There
are no FSM statutory or constitutional provisions that expand or establish the
grounds for a writ of certiorari beyond its customary scope. In re Edward, 3 FSM Intrm.
285, 289 (App. 1987).
Generally, an appeal from a ruling of a trial judge is to be
taken only after completion of all trial proceedings, upon issuance of a final
judgment. In re Main, 4 FSM Intrm.
255, 257 (App. 1990).
The
appellate division of the Supreme Court of the FSM may accept direct filing of a
case and an expedited briefing schedule may be established where there is
limited time available and prompt resolution of the issues in the case is
decidedly in the nat. l interest. Constitutional Convention 1990
v. President, 4 FSM Intrm. 320, 324 (App. 1990).
Although the FSM Supreme Court has the constitutional power
to use its discretion to review a case from a state trial court, generally,
proper respect for the state court requires that state appeal rights be
exhausted before the FSM Supreme Court would grant appellate review especially
when important state interests are involved. Damarlane v. Pohnpei Transp.
Auth., 5 FSM Intrm. 322, 324 (App. 1992).
Where
it is unclear as to what rights a state trial court found the appellants had and
the FSM court is unequipped to define those rights, and when the FSM appellate
panel remains unsatisfied that the due process issue was raised below, although
not determinative these are additional factors militating against FSM Supreme
Court, appellate division review of a state trial court decision. Damarlane v. Pohnpei Transp.
Auth., 5 FSM Intrm. 322, 325 (App. 1992).
Generally only final judgments or orders can be appealed,
but the appellate division may, at its discretion, permit an appeal of an
interlocutory order. The court, in exercising its discretion should weigh
the advantages and disadvantages of an immediate appeal and consider the
appellant's likelihood of success before granting permission. Jano v. King, 5 FSM Intrm.
326, 329 (App. 1992).
Where a
court order takes no action concerning an existing injunction and states that it
may modify the injunction depending on the happening of certain events, that
order does not come within the provision of the rule allowing interlocutory
appeals of orders granting, continuing, modifying, or dissolving, or refusing to
dissolve or modify an injunction. Damarlane v. Pohnpei Transp.
Auth., 5 FSM Intrm. 332, 334 (App. 1992).
The
right to appeal an interlocutory order which affects an injunction is an
exception to the general rule that permits appeals only from final decisions.
The exception reflects the importance of prompt action when injunctions
are involved since the threat of irreparable harm is a prerequisite to
injunctive relief. Damarlane
v. Pohnpei Transp. Auth., 5 FSM Intrm. 332, 334 (App. 1992).
The
well established general rule is that only final judgment decisions may be
appealed. A final decision generally is one which ends the litigation on
the merits and leaves nothing for the court to do but execute the judgment.
In re Extradition of Jano, 6
FSM Intrm. 23, 24 (App. 1993).
Certifications of extraditability are not final decisions of
the trial court since the final decision-making authority rests with the
Secretary of External Affairs. Therefore they are not appealable. In re Extradition of Jano, 6
FSM Intrm. 23, 25 App. 1993).
Judicial review of a certification of extraditability,
although not appealable, is available to an accused in custody by seeking a writ
of habeas corpus. In re
Extradition of Jano, 6 FSM Intrm. 23, 25 (App. 1993).
Where
the FSM statute governing extradition proceeding is silent on the appealability
of extradition proceedings and where the statute has been borrowed from another
jurisdiction where extradition proceedings are not appealable it is presumed
that the meaning and application of the statute is as it was interpreted by the
courts of the source. In re
Extradition of Jano, 6 FSM Intrm. 23, 25 (App. 1993).
In
civil cases appeals may be taken from all final decisions of the Kosrae State
Court. Finality should be given practical rather than technical construction,
however, a summary judgment on the issue of liability, is not final or
appealable until after the damage issue is resolved. Giving the word
"final" its ordinary meaning, a decision that does not entirely dispose of one
claim of a complaint containing four cannot be said to be final. Kosrae v. Melander, 6 FSM
Intrm. 257, 259 (App. 1993).
Under
the FSM Constitution the FSM Supreme Court may hear cases on appeal from the
highest state court in which a decision may be had if that state's constitution
permits it. The Chuuk
State Constitution permits such appeals, which, in civil cases, Chuuk
statute provides be made by certiorari. Gustaf v. Mori, 6 FSM Intrm.
284, 285 (App. 1993).
Because
a decision of a single justice in the appellate division of the Chuuk State
Supreme Court may be reviewed by an appellate panel of the same court it is not
a final decision of the highest state court in which a decision may be had,
which it must be in order for the FSM Supreme Court to hear it on appeal.
Gustaf v. Mori, 6 FSM Intrm.
284, 285 (App. 1993).
Where
summary judgment has been granted on the issue of liability, but the issue of
damages is still pending, the right to appeal has not been lost even though 10
months have elapsed because no final judgment has been entered and the deadline
for filing an appeal does not begin to run until a final judgment has been
entered. Kihara Real Estate, Inc. v.
Estate of Nanpei (II), 6 FSM Intrm. 354, 356 (Pon. 1994).
When an
appeal from an administrative agency decision involves issue of extreme time
sensitivity and of nat. l importance that ultimately would have to be decided by
the appellate division the court may allow a direct appeal to the appellate
division. Robert v. Mori, 6 FSM Intrm.
394, 397 (App. 1994).
The
general rule is that appellate review of a trial court is limited to final
orders and judgments. However, certain interlocutory orders involving
injunctions, receivers and receiverships, and interlocutory decrees determining
rights and liabilities in admiralty cases, are reviewable in the appellate
division. In exceptional cases, the extraordinary writs of mandamus or of
prohibition may be issued to correct a trial court's decisions before final
judgment. Appellate review may also be granted when the trial court has
issued an order pursuant to Appellate Rule 5(a). Etscheit v. Adams, 6 FSM
Intrm. 608, 610 (App. 1994).
"Direct" appeals to the appellate division have been limited
to entire cases appealed from administrative agencies decisions. Etscheit v. Adams, 6 FSM
Intrm. 608, 610 (App. 1994).
Civil
case appeals to the FSM Supreme Court may be taken from final decisions of the
highest state courts in Yap and Pohnpei if the cases require interpretation of
the nat. l constitution, nat. l law, or a treaty; and in other cases where
appeals from final decisions of the highest state courts are permitted under the
Constitution of that state. A final decision is one which leaves nothing
open to further dispute and which ends the litigation on the merits leaving the
trial court with no alternative but to execute judgment. Damarlane v. United States, 7
FSM Intrm. 202, 203-04 (App. 1995).
A state
appellate court opinion in response to questions of state law certified to it by
the FSM Supreme Court trial division is not a final decision and therefore not
reviewable by the FSM Supreme Court appellate division. Damarlane v. United States, 7
FSM Intrm. 202, 204 (App. 1995).
Standard of Review
A
criminal sentence may be affirmed on appeal when a review of the record reveals
that the sentence is appropriate. Malakai v.
FSM, 1 FSM Intrm. 338, 338 (App. 1983).
In
considering challenges that there was insufficient evidence to justify the trial
court's findings that the defendant aided and abetted, and is therefore
criminally liable for the assaults with dangerous weapons, to the FSM Supreme
Court recognizes the obligation of its appellate tribunal to review the evidence
in the light most favorable to the trial court's factual determinations.
The standard of review extends to inferences drawn from the evidence as
well. Engichy v. FSM, 1 FSM Intrm.
532, 545 (App. 1984).
The
standard of review is not whether the appellate court is convinced beyond a
reasonable doubt but whether the court can conclude that the trier of fact
could, acting reasonably, be convinced beyond a reasonable doubt by the evidence
which it had a right to believe and accept as true. Engichy v. FSM, 1 FSM Intrm.
532, 546 (App. 1984).
An
appellate court should not overrule or set aside a finding of fact of a trial
court where there is credible evidence in the record to support that finding.
Engichy v. FSM, 1 FSM Intrm.
532, 556 (App. 1984).
The
trial court's findings will be upheld so long as they rationally reflect
evidence which is reasonable and combines with other evidence to present a
coherent, believable, overall picture. Engichy v. FSM, 1 FSM Intrm.
532, 557 (App. 1984).
Normally the trial court fashions the remedies and sanctions
for failure of a party to comply with discovery requirements. The exercise
of the trial court's discretion should not be disturbed by an appellate court
absent a showing that the trial court's action has unfairly resulted in
substantial hardship and prejudice to a party. Engichy v. FSM, 1 FSM Intrm.
532, 558 (App. 1984).
The
standard to be applied in reviewing a trial court's finding of intention to kill
is not whether the appellate court is convinced that there was intention to kill
but whether the appellate court believes that the evidence was sufficient to
persuade a reasonable trier of fact beyond a reasonable doubt of the intention
to kill. Loch v. FSM, 1 FSM Intrm.
566, 575-76 (App. 1984).
The
appellate process contemplates that any issue brought before an appellate court
will first have been ruled upon by a trial judge. Loch v. FSM, 2 FSM Intrm.
234, 236 (App. 1986).
An
issue not presented to and ruled upon by the trial court cannot properly come
before the appellate division for review. In the absence of an objection
in the trial court the appellate division will refuse to consider the issue.
Loney v. FSM, 3 FSM Intrm.
151, 154 (App. 1987).
Standard to be applied in reviewing a claim of insufficiency
of evidence in a criminal proceeding is whether the appellate court can conclude
that the trier of fact could reasonably have been convinced beyond a reasonable
doubt by the evidence which it had a right to believe and accept as true.
Runmar v. FSM, 3 FSM Intrm.
308, 315 (App. 1988).
The
appellate court may notice error, even though not properly raised or preserved
in the trial court, where the error affects the substantial rights of a minor
under the particular circumstances of a case. In re Juvenile, 4 FSM Intrm.
161, 164 (App. 1989).
The
general rule is that on appeal a party is bound by the theory advanced in the
trial court, and cannot urge a ground for relief which was not presented there,
particularly where the party had ample opportunity to raise the issues in the
trial court instead of presenting them for the first time on appeal. Paul v. Celestine, 4 FSM
Intrm. 205, 210 (App. 1990).
In
reviewing a sentencing decision of a trial court, an appellate court should
follow the standards generally applied in criminal appeals, upholding findings
of fact supported by credible evidence but overruling those legal rulings with
which the appellate court disagrees. Tammed v.
FSM, 4 FSM Intrm. 266, 274 (App. 1990).
Normally the trial court fashions the remedies and sanctions
for failure of a party to comply with discovery requirements and the exercise of
the trial court's discretion should not be disturbed by an appellate court
absent a showing that the trial court's action has unfairly resulted in
substantial hardship and prejudice to a party. Bernardo v. FSM, 4 FSM Intrm.
310, 313 (App. 1990).
For
false evidence to lead to reversal of a conviction, there must be some reason to
believe that the trier of fact may have been misled and that this may have
contributed to the conviction. Bernardo
v. FSM, 4 FSM Intrm. 310, 314 (App. 1990).
An
appeal from the decision of the trial judge may be only on the grounds of abuse
of discretion resulting from the justice exceeding constraints imposed by the
parole statute, Pub. L. No. 5-24 (5th Cong., 1st Spec. Sess. 1987). Yalmad
v. FSM, 5 FSM Intrm. 32, 34 (App. 1991).
A
defendant that has failed to raise and preserve the issue has waived his right
to object to the admission of evidence, but when a plain error that affects the
constitutional rights of the defendant has occurred the court may notice the
error. Moses v. FSM, 5 FSM Intrm.
156, 161 (App. 1991).
In a
criminal case, the task of an appeals court is to determine whether the trier of
fact could reasonably have been convinced of the charge beyond a reasonable
doubt by the evidence. Tosie v.
FSM, 5 FSM Intrm. 175, 178 (App. 1991).
The
test on appeal is not whether the appellate court is convinced beyond a
reasonable doubt, but whether the trial court acting reasonably is convinced.
Otto v. Kosrae, 5 FSM Intrm.
218, 222 (App. 1991).
In
reviewing the sufficiency of evidence to warrant conviction, the issue is
whether the evidence, viewed in a light most favorable to the finding, would
justify a finder of fact, acting reasonably, to conclude that guilt was
established beyond a reasonable doubt. Welson v. FSM, 5 FSM Intrm.
281, 285 (App. 1992).
In
reviewing a criminal conviction on appeal the appellate court need not go beyond
the standard of review in Engichy v. FSM, 1 FSM Intrm. 532, to require that the
test be whether the trier of fact could reasonably conclude that the evidence is
inconsistent with every hypothesis of innocence. Jonah v. FSM, 5 FSM Intrm.
308, 310-11 (App. 1992).
The
appellate court will not decide a constitutional issue if not raised below and
because unnecessary constitutional adjudication is to be avoided. Jonah v. FSM, 5 FSM Intrm.
308, 313 (App. 1992).
In
order to overturn the trial judge's denial of a motion to recuse, the appellant
must show an abuse of discretion by the trial judge. The appellate court
will not merely substitute its judgment for that of the trial judge. Jano v. King, 5 FSM Intrm.
326, 330 (App. 1992).
An
abuse of discretion by the trial court occurs when its decision is clearly
unreasonable, arbitrary, or fanciful; or it is based on an erroneous conclusion
of law; or the record contains no evidence upon which the court could rationally
have based its decision. Jano v.
King, 5 FSM Intrm. 326, 330 (App. 1992).
The
proper standard of appellate review for a criminal conviction challenged for
insufficiency of evidence is whether the appellate panel, in considering the
evidence in the light most favorable to the trial court's findings of fact,
determines that a reasonable trier of fact could be convinced of the defendant's
guilt beyond a reasonable doubt. Alfons v. FSM, 5 FSM Intrm.
402, 405 (App. 1992).
The
standard of review of a trial court's factual findings is whether those findings
are clearly erroneous. The appeals court cannot substitute its judgment
for that of the trial judge but in reviewing the findings it may examine all of
the evidence in the record in determining whether the trial court's factual
findings are clearly erroneous, and if it is left with the definite and firm
conviction that a mistake has been committed with respect to the findings, it
must reject the findings as clearly erroneous. Kapas v. Church of Latter Day
Saints, 6 FSM Intrm. 56, 59 (App. 1992).
Where
no motion has been made to amend the complaint at the trial level and the issue
was not tried with the express or implied consent of the parties the general
rule is that one cannot raise on appeal an issue not presented in the trial
court. Nena v. Kosrae (I), 6 FSM
Intrm. 251, 253-54 (App. 1993).
Where
the trial court found no negligence and the appeal court upon review of the
record does not find the trial court's factual findings to be clearly erroneous
the trial court's dismissal of the negligence claim will be affirmed. Nena v. Kosrae (I), 6 FSM
Intrm. 251, 254 (App. 1993).
Where
the trial court's finding that damages were not proven at trial is not clearly
erroneous the appellate court will not remand to the trial court for further
presentation of evidence on that issue. Wito Clan v. United Church of
Christ, 6 FSM Intrm. 291, 292 (App. 1993).
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, 6 FSM Intrm.
293, 296 (App. 1993).
In
determining whether a trial court's findings are clearly erroneous, an appellate
court must construe the evidence in the light most favorable to the appellee.
A finding is clearly erroneous when the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been
committed. Kinere v. Kosrae, 6 FSM Intrm.
307, 309 (App. 1993).
The
fashioning of remedies and sanctions for a party's failure to comply with
discovery requirements is a matter within the trial court's discretion and
should not be disturbed by an appellate court absent a showing that the trial
court's action has unfairly resulted in substantial hardship and prejudice to a
party. Nakamura v. Bank of Guam (II),
6 FSM Intrm. 345, 349 (App. 1994).
If a
judge does not specifically rely on the objected to evidence, the appellate
court must presume that he did not rely on that evidence and therefore that any
error in admitting the evidence did not result in substantial hardship or
prejudice to a party. Nakamura
v. Bank of Guam (II), 6 FSM Intrm. 345, 349 (App. 1994).
An
appellate court should not set aside a trial court's finding of fact where there
is credible evidence in the record to support that finding. The trial
court, unlike the appellate court, had the opportunity to view the witnesses and
the manner of their testimony. Nakamura
v. Bank of Guam (II), 6 FSM Intrm. 345, 349 (App. 1994).
A claim
that a trial court's decision did not address all the issues raised is not a
basis for remand as long as the trial judge made a finding of such essential
facts as provide a basis for the decision. The test as to the adequacy of
the findings is whether they are sufficiently comprehensive and pertinent to the
issue to form a basis for the decision. Nakamura v. Bank of Guam (II),
6 FSM Intrm. 345, 349 (App. 1994).
It is
not an abuse of the trial court's discretion for a trial court to admit
testimony that is inconsistent with that witness's answer to an interrogatory.
Admissions made in interrogatories are not binding and the answering party
may introduce other evidence on the subject of the admissions at trial.
Contradictions between a party's answers to interrogatories and court
testimony go to the weight and credibility of the testimony, not to its
admissibility. Conflicting testimony may be admitted, and it is the
responsibility of the finder of fact to weigh all the answers and resolve the
conflict. Nakamura v. Bank of Guam (II),
6 FSM Intrm. 345, 350 (App. 1994).
Where a
party at trial claims surprise, and the judge offers that party a chance to cure
any prejudice this might have caused and they make the tactical choice to
decline the opportunity it is a tactical choice the party must live with and is
not a basis for reversal. Nakamura
v. Bank of Guam (II), 6 FSM Intrm. 345, 351-52 (App. 1994).
Where
there is no indication that the trial court relied on certain evidence the
presumption is there was no such reliance, and any error in its admission is not
prejudicial. Nakamura
v. Bank of Guam (II), 6 FSM Intrm. 345, 351 (App. 1994).
Where a
trial court's decision does not state that it reached any conclusion about a
certain disputed fact the appellate court may presume that it was not a basis
for the trial court's decision. Nakamura v. Bank of Guam (II),
6 FSM Intrm. 345, 352 (App. 1994).
Whether
the lower court erred by issuing a preliminary injunction that did not require
the return of funds obtained in violation of a TRO involves a trial court's
exercise of discretion and is reviewed using an abuse of discretion standard.
Onopwi v. Aizawa, 6 FSM Intrm.
537, 539 (Chk. S. Ct. App. 1994).
The
standard of review for an appeal from the trial division's determination of an
administrative agency appeal is whether the finding of the trial division was
justified by substantial evidence of record. FSM v. Moroni, 6 FSM Intrm.
575, 577 (App. 1994).
An
issue not presented to and ruled upon by the trial court cannot properly come
before the appellate division for review. FSM v. Moroni, 6 FSM Intrm.
575, 579 (App. 1994).
Factual
determinations of a trial court, such as the appropriate size and period for an
award of child support, will be overturned on appeal only if the findings of the
trial court are clearly erroneous. Youngstrom v. Youngstrom, 7
FSM Intrm. 34, 36 (App. 1995).
A court
must deny a motion for summary judgment unless the court, viewing the facts
presented and the inferences made in the light most favorable to the non-moving
party, finds there is no genuine issue as to any material fact. Thus if
the appellants can show there was a genuine issue of material fact then the
trial court's summary judgment must be reversed. Luzama v. Pohnpei Enterprises
Co., 7 FSM Intrm. 40, 48 (App. 1995).
Rehearing
Where
the points of law and fact referred to in a petition for rehearing were not
overlooked or misapprehended in the previous consideration of the appeal the
petition will be denied. Carlos v.
FSM, 4 FSM Intrm. 32, 33 (App. 1989).
Where
appellants request a rehearing on the grounds that it is no longer equitable
that the judgment have prospective application, and neither the appellate order
of dismissal nor the judgment in the state court had by their terms any
prospective application the motion will be denied. Damarlane v. Pohnpei Transp.
Auth. (I), 6 FSM Intrm. 166, 167 (App. 1993).
After
an appellate court has issued its opinion it may grant a petition for a
rehearing if it has overlooked or misapprehended points of law or fact.
Ordinarily, such petitions are summarily denied. Nena v. Kosrae (II), 6 FSM
Intrm. 437, 438 (App. 1994).
A
motion for reconsideration of denial of rehearing will be considered as a second
petition for rehearing, and as such it cannot be granted it unless the court has
overlooked or misapprehended points of law or fact. Nena v. Kosrae (III), 6 FSM
Intrm. 564, 567 (App. 1994).
A court
has the power to enlarge the time to petition for rehearing and to modify an
erroneous decision although the time for rehearing has expired, and sometimes
may consider petitions for rehearing filed even after rehearing has been denied.
Nena v. Kosrae (III), 6 FSM
Intrm. 564, 567-68 (App. 1994).
Stay
A stay
is normally granted only where the court is persuaded as to the probability of
ultimate success of the movant. In re Raitoun, 1 FSM Intrm.
562, 563 (App. 1984).
In
determining whether to grant a stay, a single appellate judge, acting alone,
must consider whether it is more likely than not that the petitioner would be
able to persuade a full appellate panel as to the soundness of his legal
position and that there are such special circumstances that the trial court
should be mandated to modify its conduct of the trial. In re Raitoun, 1 FSM Intrm.
561, 563 (App. 1984).
In
weighing the possibility of success of an application for a writ of mandamus on
grounds that one public defender's conflict should be imputed to all lawyers in
the Public Defender's office, when the original disqualification is based upon a
conflict of the attorney's loyalties because of his familial relationship with
the victim, but no issue of confidentiality is raised, and only the issue of
loyalty is present, but no showing is made that the other lawyers could not give
full loyalty to the client; there exists no substantial possibility of an
appellate court granting the writ and a stay of proceedings pending
consideration of the application should not be granted. Office of the Public Defender
v. Trial Division, 4 FSM Intrm. 252, 254 (App. 1990).
Under
FSM Appellate Rule 27(c) a motion for a
stay of proceedings pending consideration of a motion for a writ of mandamus to
require a trial court to appoint a lawyer other than the Public Defender is
denied where there: 1) is no substantial possibility that a full panel would
grant the writ, 2) is no showing of irreparable harm if the stay is denied, and
3) are no equities presented in favor a stay. Office of the Public Defender
v. Trial Division, 4 FSM Intrm. 252, 255 (App. 1990).
Where
the record fails to reflect that the functions of the judiciary have been
prevented or substantially impaired by the financial management and fiscal
powers exercised by the Secretary of Finance, the judiciary has not been
deprived of its essential role and constitutional independence. Mackenzie v. Tuuth, 5 FSM
Intrm. 78, 84 (Pon. 1991).
The
Constitution mandates that the Chief Justice by rule may govern the admission to
practice of attorneys, but a rule which differentiates between FSM citizens and
noncitizens inherently relates to the regulation of immigration and foreign
relations which are powers expressly delegated to the other two branches of gov.
t. Berman v. Pohnpei, 5 FSM
Intrm. 303, 305 (Pon. 1992).
The
Chief Justice has the constitutional authority to make rules for the
appointment of special judges, and Congress has the constitutional
authority to amend them. Congress has provided the Chief Justice with the
statutory authority to appoint temporary justices. 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, 5 FSM Intrm.
326, 331 (App. 1992).
Congress and the President respectively have the power to
regulate immigration and conduct foreign affairs while the Chief Justice may
make rules governing the admission of attorneys. Therefore a rule of admission
that treats aliens unequally promulgated by the Chief Justice implicates powers
expressly delegated to other branches. Berman v. FSM Supreme Court
(I), 5 FSM Intrm. 364, 366 (Pon. 1992).
Without
a rational valid basis for the rule limiting the number of times an alien may
take the bar exam it will be held unconstitutional even if it would be
constitutional if the regulation were made by Congress or the President.
Berman v. FSM Supreme Court
(I), 5 FSM Intrm. 364, 367 (Pon. 1992).
When an
appellant has applied to the appellate division for a stay it normally will be
considered by all justices of the appellate division, but in exceptional cases
application may be made to and considered by a single justice. The power
of the appellate division or a single justice thereof to stay proceedings during
the pendency of an appeal is not limited by the Rules of Civil Procedure.
Pohnpei v. Ponape Constr. Co.,
6 FSM Intrm. 221, 222 (App. 1993).
The
purpose of requiring a supersedeas bond for a stay is to protect the interests
of the appellees. A bond protects the appellees by providing a fund out of
which it may be paid if the money judgment is affirmed, and it meets the
concerns of the appellee that the appellant might flee the jurisdiction or
conceal or dissipate assets so as to render itself judgment-proof. The latter
concerns are not present when the appellant is a state. Pohnpei v. Ponape Constr. Co.,
6 FSM Intrm. 221, 223 (App. 1993).
While a
supersedeas bond is a prerequisite to granting a stay from a money judgment, no
such bond is required in order to obtain a modification of an injunction pending
appeal. It may be granted upon such terms as to bond or otherwise as the
court considers for the security of the adverse party's rights. Ponape Enterprises Co. v.
Luzama, 6 FSM Intrm. 274, 277 (Pon. 1993).
The
criteria for granting a stay pending appeal under Rule 62 are: 1) whether the
appellant has shown that without the stay he will be irreparably harmed; 2)
whether issuance of the stay would substantially harm other parties interested
in the proceedings; 3) whether the public interest would be served by granting a
stay; and 4) whether the appellant has made a strong showing that he is likely
to prevail on the merits of the appeal. Ponape Enterprises Co. v.
Luzama, 6 FSM Intrm. 274, 277-78 (Pon. 1993).
When
summary judgment is granted enjoining trespassing farmers, removing the farmers
from the land while their appeal is pending might more substantially alter the
status quo than a stay allowing them to remain on the land. Ponape Enterprises Co. v.
Luzama, 6 FSM Intrm. 276, 278 (Pon. 1993).
A stay
on appeal may be granted even when the moving party has less than a 50% chance
of success if the question is a difficult one, or an issue of first impression
about which respectable minds might differ. Ponape Enterprises Co. v.
Luzama, 6 FSM Intrm. 274, 279 (Pon. 1993).
An
appellant may apply to the trial division for a stay of judgment. If the
stay is denied by the trial division he may apply to the appellate division.
If the stay is granted and its terms seem onerous, the petitioner may
apply to the appellate division for a modification of the stay, and may also
request an expedited briefing schedule. Senda v. Trial Division, 6 FSM
Intrm. 336, 338 (App. 1994).
The FSM
Code provision authorizing the general powers of the Supreme Court gives the
court the authority to grant a stay of proceedings in one case pending the
outcome of another case which addresses the same or similar issues. Ponape Enterprises Co. v.
Bergen, 6 FSM Intrm. 411, 414 (Pon. 1994).
Factors
for a court to consider in determining it whether should exercise its discretion
to grant a stay of proceedings in one case pending the outcome of another case
which addresses the same or similar issues include whether judicial economy will
be furthered by a stay because the cases on appeal may have claim or issue
preclusive effect on the case to be stayed; the balance of the competing
interests; the orderly administration of justice and whether the case is one of
great public importance. Ponape
Enterprises Co. v. Bergen, 6 FSM Intrm. 411, 414 (Pon.
1994).
A stay
should be granted in one case pending the outcome of another case on appeal
which addresses the same or similar issues, when it is in the interests of
avoiding the waste of judicial resources, managing the court's calendar, sparing
the parties unnecessary litigation efforts, and avoiding inconsistent or
confusing outcomes, especially if granting the stay will not adversely affect
the parties opposing the stay to any substantial extent because they are also
parties to the other case on appeal. Ponape Enterprises Co. v.
Bergen, 6 FSM Intrm. 411, 415-16 (Pon. 1994).
Because
speedy and final resolution of questions regarding the constitutional roles of
the state and nat'l gov'ts will avoid unnecessary conflict and possible
jurisdictional tension between the state and nat'l courts, it is proper to stay
an order of abstention pending appeal in such cases. Pohnpei v. MV Hai Hsiang #36
(II), 6 FSM Intrm. 604, 605 (Pon. 1994).
Section
8. When a case in a state or local court involves a substantial
question requiring the interpretation of the Constitution, national law, or a
treaty, on application of a party or on its own motion the court shall certify
the question to the appellate division of the Supreme Court. The appellate
division of the Supreme Court may decide the case or remand it for further
proceedings.
Case annotations: Certification of
Issues
Pursuant to art. XI, § 8 of the FSM Constitution, a state
court receiving a proper motion is required to certify any substantial
constitutional question to the Appellate Division of the Supreme Court for
proper disposition. Koike v.
Ponape Rock Products Co., 1 FSM Intrm. 496, 501 (Pon. 1984).
Art.
XI, § 8 of the Constitution, providing for state court certification of issues
of nat'l law, gives the FSM Supreme Court appellate division another tool to
oversee the development of nat'l law jurisprudence, but also provides the option
of remand so that the state court may address issues of nat'l law. Bernard's Retail Store &
Wholesale v. Johnny, 4 FSM Intrm. 33, 35 (App. 1989).
Under
normal circumstances, the decision as to whether to decide or remand a question
certified under art. XI, § 8 of the Constitution will be made only by the
constitutionally appointed justices of the FSM Supreme Court, without convening
a third judge and without oral argument. Bernard's Retail Store &
Wholesale v. Johnny, 4 FSM Intrm. 33, 35 (App. 1989).
Where
the issues certified to the FSM Supreme Court by a state court under art. XI, §
8 of the FSM Constitution are narrowly framed and not capable of varying
solutions, and it appears that a greater service may be provided by simply
answering the questions posed by the state court, the FSM Supreme Court will not
remand the certified questions to the state court. Bernard's Retail Store &
Wholesale v. Johnny, 4 FSM Intrm. 33, 35 (App. 1989).
The
Constitution provides that the FSM Supreme Court Appellate Division may decide
questions certified from state and local courts, not from the FSM Supreme Court
Trial Division. Etscheit
v. Adams, 6 FSM Intrm. 608, 610 (App. 1994).
Certification is normally granted by the court that will be
applying the guidance sought to its decision, not yet made, not by the court
that is requested to hear the certified question. Etscheit v. Adams, 6 FSM
Intrm. 608, 610 (App. 1994).
Abstention and
Certification
As the
Ponape District Court bears the closest resemblance to the state court system
contemplated by the Constitution, it is appropriate to provide the District
Court an opportunity to render an opinion on local issues. In re Nahnsen, 1 FSM Intrm.
97, 97 (Pon. 1982).
State
courts, rather than nat'l courts, should normally resolve probate and
inheritance issues especially where interests in land are at issue. In re Nahnsen, 1 FSM Intrm.
97, 97 (Pon. 1982).
It
would be contrary to the desire of the framers of the Constitution that local
officials retain control over local matters if the FSM Supreme Court were to
relinquish jurisdiction over issues involving local and state powers to the
Trust Territory High Court, which is the least local tribunal now existing in
the Trust Territory. In re
Nahnsen, 1 FSM Intrm. 97, 110 (Pon. 1982).
The
Ponape District Court, although not granted jurisdiction over land matters, may
be given the opportunity to hear certified questions from the FSM Supreme Court
on issues in a probate case involving land in order to further the intent of the
framers that local decision-makers play a part in decisions of a local nature.
In re Nahnsen, 1 FSM Intrm.
97, 110-12 (Pon. 1982).
Even
though the requirements for pendent jurisdiction are met in a case, a nat'l
court has discretion to decline to exercise jurisdiction over state claims.
This determination should turn on considerations of judicial economy,
convenience and fairness to litigants and should be instructed by a desire of
the federal or nat'l court to avoid needless decisions of state law. Ponape Chamber of Commerce v.
Nett, 1 FSM Intrm. 389, 397 (Pon. 1984).
Where a
Public Land Authority has erred procedurally, but there is no suggestion of bad
faith or substantive violations by the Authority, the FSM Supreme Court may
appropriately employ the doctrine of primary jurisdiction to remand the public
land issue to the Authority for its decision. Etpison v. Perman, 1 FSM
Intrm. 405, 429 (Pon. 1984).
A
reasoned request by a state that the FSM Supreme Court abstain from deciding a
particular issue should be granted 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 v.
Pohnpei (I), 2 FSM Intrm. 150, 156 (Pon. 1986).
Where
neither land, inheritance nor any other crucial interest of the state is
involved; where the state has developed no extensive administrative apparatus or
practical knowledge relating to the state issue with which a state court would
be more familiar; where the state issue is not, strictly speaking,
constitutional; and where the state has tendered the issue to the FSM Supreme
Court and no party has requested abstention, the FSM Supreme Court should decide
the issue rather than abstaining in favor of the state court. Panuelo v. Pohnpei (I), 2 FSM
Intrm. 150, 157-59 (Pon. 1986).
Where
litigation in which a state of the FSM is a defendant involves an issue
concerning the meaning of a provision of the state Constitution, and the parties
in that litigation request that the issue of the meaning of the provision be
certified to the supreme court of the state, it is an appropriate exercise of
the inherent powers of the FSM Supreme Court to devise a procedure for tendering
the issue to the state supreme court, so long as the state court approves.
Panuelo v. Pohnpei (III), 2
FSM Intrm. 244, 246 (Pon. 1986).
The
factors to be considered in the decision about whether the FSM Supreme Court
should certify an issue to the state supreme court include: possible harm to the
party seeking relief; the likelihood of significant delay; and the objections
raised by the opposing party. Hadley v.
Kolonia Town, 3 FSM Intrm. 101, 103 (Pon. 1987).
Certification of appropriate issues to the Pohnpei Supreme
Court appellate division by the FSM Supreme Court is consistent with the
interaction between state and nat'l courts, as contemplated by the FSM
Const. art. XI, §§ 7, 8, 10, and as interpreted in earlier case law.
Hadley v. Kolonia Town, 3 FSM
Intrm. 101, 103-04 (Pon. 1987).
The FSM
Supreme Court has earlier explained that in the interests of judicial harmony
and out of respect for state sovereignty, it is an appropriate exercise of the
FSM Supreme Court's inherent powers to devise a procedure for tendering state
constitutional issues to the state courts, so long as the state court approves.
Hadley v. Kolonia Town, 3 FSM
Intrm. 101, 104 (Pon. 1987).
The FSM
Supreme Court trial division is required to decide all nat. l law issues
presented to it. Certification to state court is only proper for state or
local law issues. Edwards v.
Pohnpei, 3 FSM Intrm. 350, 354 (Pon. 1988).
Determination as to whether a statute is a state or nat. l
law must be made on a statute-by-statute or a section-by-section basis. Edwards v. Pohnpei, 3 FSM
Intrm. 350, 355 (Pon. 1988).
As a
general rule the FSM Supreme Court trial division is obliged to exercise its
jurisdiction and may not abstain simply because unsettled issues of state law
are presented. Edwards v.
Pohnpei, 3 FSM Intrm. 350, 360 (Pon. 1988).
The FSM
Constitution, art. XI, § 8, as well as general principles of federalism and
considerations of judicial harmony, give the FSM Supreme Court power to certify
state law issues to state courts. Edwards v. Pohnpei, 3 FSM
Intrm. 350, 361 (Pon. 1988).
Considerations of federalism and state sovereignty create a
presumption in litigation when a state is defendant in an action for money
damages that a request by the state defendant for certification to state court
of unresolved and significant issues of state law will be granted. Edwards v. Pohnpei, 3 FSM
Intrm. 350, 362 (Pon. 1988).
While
the FSM Supreme Court may certify legal issues in a case before it to the
highest state court, questions which require application of law to facts may not
be certified. Edwards v.
Pohnpei, 3 FSM Intrm. 350, 363 (Pon. 1988).
Certification of issues to other courts typically causes
delay and increases the cost of litigation and therefore should be employed only
for unsettled legal issues. Edwards v.
Pohnpei, 3 FSM Intrm. 350, 363 (Pon. 1988).
FSM
Supreme Court's trial division does not lose jurisdiction over a case merely
because land issues are involved, but if such issues are presented,
certification procedures may be employed to avoid encroachment upon state
decision-making prerogatives. Bank of
Guam v. Semes, 3 FSM Intrm. 370, 381 (Pon. 1988).
Because
the interest of developing a dynamic and well reasoned body of Micronesian
jurisprudence, is best served when all courts have the benefit of one another's
opinions to consider and question; when the litigants are private parties the
FSM Supreme Court normally should attempt to resolve all issues presented, even
when matters of state law are involved. Federated Shipping Co. v. Ponape
Transfer & Storage Co., 4 FSM Intrm. 3, 13 (Pon. 1989).
Art.
XI, § 8 of the Constitution, providing for state court certification of issues
of nat'l law, gives the FSM Supreme Court appellate division another tool to
oversee the development of nat'l law jurisprudence, but also provides the option
of remand so that the state court may address issues of nat'l law. Bernard's Retail Store &
Wholesale v. Johnny, 4 FSM Intrm. 33, 35 (App. 1989).
Where
the issues certified to the FSM Supreme Court by a state court under art. XI, §
8 of the FSM Constitution are narrowly framed and not capable of varying
solutions, and it appears that a greater service may be provided by simply
answering the questions posed by the state court, the FSM Supreme Court will not
remand the certified questions to the state court. Bernard's Retail Store &
Wholesale v. Johnny, 4 FSM Intrm. 33, 35 (App. 1989).
The FSM
Supreme Court may and should abstain in a case where land use rights are at
issue, where the state is attempting to develop a coherent policy concerning the
disposition of public lands, where there is a similar litigation already pending
in state court, where the state requests abstention as defendant in an action
which may expose it to monetary damages, where Congress has not asserted any
nat. l interests which may be affected by the outcome of the litigation, and
where abstention will not result in delay or injustice to the parties. Ponape Transfer & Storage,
Inc. v. Federated Shipping Co., 4 FSM Intrm. 37, 39 (Pon.
1989).
While
the FSM Constitution provides initial access to the FSM Supreme Court for any
party in art. XI, § 6(b) litigation, the court may, having familiarized itself
with the issues, invoke the doctrine of abstention and permit the case to
proceed in a state court, since the power to grant abstention is inherent in the
jurisdiction of the FSM Supreme Court, and nothing in the FSM Constitution
precludes the court from abstaining in cases which fall within its jurisdiction
under art. XI, § 6(b). Ponape
Transfer & Storage, Inc. v. Federated Shipping Co., 4 FSM Intrm. 37,
42-43 (Pon. 1989).
In a
case brought before the FSM Supreme Court where similar litigating involving the
same parties and issues is already pending before a state court, and a decision
by the state court in the litigation would resolve all controversies among the
parties, the risk of costly, duplicative litigation is one factor to be
considered by the nat'l court in determining whether to abstain. Ponape Transfer & Storage,
Inc. v. Federated Shipping Co., 4 FSM Intrm. 37, 44 (Pon.
1989).
Although foreign and interstate commerce and shipping
involve profound nat'l interests, where Congress has not seen fit to assert
those interests and there is no nat'l regulation or law to enforce, the fact
that a case affects interstate and foreign commerce and shipping is not
sufficient to deny abstention if other strong grounds for abstention exist.
Ponape Transfer & Storage,
Inc. v. Federated Shipping Co., 4 FSM Intrm. 37, 47 (Pon.
1989).
There
are no statutory or constitutional obligations which require the FSM Supreme
Court to abstain or certify questions merely because unsettled matters of state
law are at issue. Pryor v.
Moses, 4 FSM Intrm. 138, 141 (Pon. 1989).
The
choice of whether to abstain from a decision or certify questions is one that
lies wholly within the discretion of the FSM Supreme Court, and the judge must
not undertake that decision lightly. Pryor v. Moses, 4 FSM Intrm.
138, 141 (Pon. 1989).
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).
Where
two private parties are involved, special considerations of state sovereignty
are not as weighty in considering requests for abstention or certification, and
the FSM Supreme Court normally should attempt to resolve all issues presented,
even when matters of state law are involved. Pryor v. Moses, 4 FSM Intrm.
138, 143 (Pon. 1989).
Requiring the FSM Supreme Court to abstain from deciding
virtually all state law matters of first impression would not be in the
interests of the efficient administration of justice, and would not be
consistent with the jurisdictional provisions of the FSM Constitution. Pryor v. Moses, 4 FSM Intrm.
138, 143 (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 FSM
Supreme Court will abstain from a claim for recovery of taxes where the
defendant state requests abstention, the claim is for monetary relief, and the
state has endeavored to develop a body of law in the areas of excise taxes and
sovereign immunity. Gimnang v.
Yap, 4 FSM Intrm. 212, 214 (Yap 1990).
On a
claim for declaratory relief from an unconstitutional excise tax, the FSM
Supreme Court trial division will not abstain, where the issue could later be
certified to the FSM Supreme Court appellate division and result in delay, where
the trial court has already retained the case longer than contemplated, where
the issue is narrowly posed and not capable of varying resolutions, and where it
appears that a greater service may be provided by deciding the issue. Gimnang v. Yap, 4 FSM Intrm.
212, 214 (Yap 1990).
It is
not appropriate to abstain from deciding a claim for injunctive relief where it
is undisputed that the court has jurisdiction and where the interests of time
can be of pressing importance. Gimnang v.
Yap, 4 FSM Intrm. 212, 214 (Yap 1990).
The
nat'l courts, in carrying out their judicial responsibilities, do have inherent
power to certify issues, or to abstain partially or completely from exercising
jurisdiction in a particular issue or to exercise jurisdiction over part or all
of a case. Gimnang v. Yap, 5 FSM Intrm.
13, 19 (App. 1991).
A nat'l
court ordinarily should refrain from deciding a case in which state action is
challenged as violating the federal constitution, if unsettled questions of
state law may be dispositive and obviate the need for the constitutional
determination. Gimnang v.
Yap, 5 FSM Intrm. 13, 21 (App. 1991).
A nat'l
court may not abstain from exercising its constitutional jurisdiction when it is
directly faced with a constitutional issue and surely may never abstain
completely from exercising jurisdiction in a case where there remains to be
resolved a substantial issue under the nat. l constitution. Gimnang v. Yap, 5 FSM Intrm.
13, 25 (App. 1991).
In a
case arising under nat'l law there is an especially strong presumption against
full abstention, and there is a serious question whether the trial division of a
nat'l court may ever certify a question of nat'l law to a state court for
decision unless it can reasonably be expected that the particular claim can be
resolved entirely through the application of state law. Damarlane v. Pohnpei Transp.
Auth., 5 FSM Intrm. 67A, 67C (Pon. 1991).
When
there are identifiable, particularly strong state interests, such as questions
concerning the ownership of land or where there are monetary claims against the
state or its agencies, the nat'l courts should exercise restraint, and look with
sympathy upon a state request for abstention. Damarlane v. Pohnpei Transp.
Auth., 5 FSM Intrm. 67A, 67D (Pon. 1991).
Although it may be appropriate to defer to state courts the
resolution of land related state law issues, abstention and certification of
issues should not be allowed to thwart the more fundamental goal and obligation
of the judicial system to render just decisions in a speedy fashion at a minimum
of costs to litigants and society alike. Therefore a reasonable balance
must be sought between responsiveness to state interests and the obligation of
the nat'l courts to carry out their own jurisdictional responsibilities.
Damarlane v. Pohnpei Transp.
Auth., 5 FSM Intrm. 67A, 67D (Pon. 1991).
Abstention may be appropriate for causes of action that
raise issues of state law only, but may not be where substantive issues of nat'l
law are raised. A nat'l court may not abstain from deciding a nat'l
constitutional claim. Damarlane v. Pohnpei Transp.
Auth., 5 FSM Intrm. 67A, 67E (Pon. 1991).
Where a
claim is against the nat'l gov't and an interest in land is not placed at issue
the claim is within the exclusive jurisdiction of the FSM Supreme Court and it
cannot abstain on the claim. Damarlane v. Pohnpei Transp.
Auth., 5 FSM Intrm. 67A, 67E (Pon. 1991).
Where a
case requires decisions as to the rights of owners of land in Pohnpei, it is
appropriate that these issues be certified for presentation to the Pohnpei
Supreme Court if it can be done without undue expense to the litigants, or
extended delay. Damarlane v. Pohnpei Transp.
Auth., 5 FSM Intrm. 67A, 67F (Pon. 1991).
If
nat'l court jurisdiction exists the nat'l court should promptly grant the
petition to remove. Thereafter the nat'l court can entertain a motion to abstain
or to certify specific issues to the state court. Proceedings in the nat'l
court do not have to stop while a certified issue is presented to a state court.
Etscheit v. Adams, 5 FSM
Intrm. 243, 246 (Pon. 1991).
The
nat'l court should not abstain from deciding a criminal case where the crime
took place before the effective date of the 1991 amendment removing federal
jurisdiction over major crimes because of the firmly expressed intention by the
Constitutional Convention delegates as to the manner of transition from nat'l
jurisdiction to state jurisdiction. In re Ress, 5 FSM Intrm.
273, 276 (Chk. 1992).
It is
appropriate for the state court to rule upon the non-constitutional grounds and
upon the alleged violation of the Pohnpei
Constitution. The plaintiff may raise at a later time the allegation
that the ordinance violates the FSM Constitution if that is still necessary
after disposition by the state court. Berman v. Pohnpei, 5 FSM
Intrm. 303, 306-07 (Pon. 1992).
Where
there is a long delay in moving for certification of an issue and it appears the
motion's sole purpose is to cause further delay, the doctrine of laches may bar
the granting of the motion. Youngstrom
v. Youngstrom, 5 FSM Intrm. 335, 337-38 (Pon. 1992).
A bond
of debt is simply a loan instrument. Therefore when determining its legal
effect does not require a determination concerning interests in land there is
insufficient basis for abstention. Kihara v. Nanpei, 5 FSM Intrm.
342, 345 (Pon. 1992).
Because
the FSM Supreme Court is the only court of jurisdiction in cases arising under
art. XI, § 6(a) of the FSM Constitution, the court has no discretion to abstain
in such cases. Faw v.
FSM, 6 FSM Intrm. 33, 36 (Yap 1993).
The FSM
Supreme Court has a constitutional duty to hear disputes wherein the parties are
diverse, even if land issues are involved, although the court may abstain from
exercising such jurisdiction on a case-by-case basis where other factors
weighing in favor of abstention are present. Etscheit v. Mix, 6 FSM Intrm.
248, 250 (Pon. 1993).
Where a
complaint arises from actions concerning the internal operations of municipal
gov't, and the claims sound in tort, abstention in favor of state court
adjudication is appropriate. Mendiola
v. Berman (I), 6 FSM Intrm. 427, 429 (Pon. 1994).
That a
defendant files a counterclaim alleging violation of constitutional rights does
not in itself make abstention of the case as a whole inappropriate. Mendiola v. Berman (II), 6 FSM
Intrm. 449, 450 (Pon. 1994).
Deference to state court jurisdiction is warranted in cases
involving municipal gov. t issues, given the greater familiarity with such
issues at the state level and the greater importance to state interests.
Mendiola v. Berman (II), 6 FSM
Intrm. 449, 450-51 (Pon. 1994).
Even
though the nat'l court has jurisdiction abstention may be warranted in civil
forfeiture fishing case for fishing in state waters where defendants are also
part of a companion criminal case in state court. Pohnpei v. M/V Zhong Yuan Yu
#606, 6 FSM Intrm. 464, 465-66 (Pon. 1994).
Certification of questions to a state court is appropriate
where the decision of the state court on state law may be dispositive,
eliminating the need to address the FSM Constitutional issues and where
important questions as to the source of authority of one of its political
subdivisions to impose a tax and the nature of the exercise of municipal taxing
authority are involved. Stinnett
v. Weno, 6 FSM Intrm. 478, 480 (Chk. 1994).
Certification to a state court does not prevent the FSM
Supreme Court from addressing the FSM constitutional issues if that becomes
necessary. Stinnett v. Weno, 6 FSM Intrm.
478, 480 (Chk. 1994).
Where
the validity of a municipal tax ordinance is questioned under the state
constitution and right of the taxpayer to a refund it is appropriate for the FSM
Supreme Court to certify the question to the appellate division of the state
court. Chuuk Chamber of Commerce v.
Weno, 6 FSM Intrm. 480, 481 (Chk. 1994).
When a
nat'l court abstains it simply says that it is not going to decide the issue and
allows the parties to file in state or local court; it does not submit or
transfer anything to another court. Gimnang v. Trial Division, 6
FSM Intrm. 482, 485 (App. 1994).
Because
speedy and final resolution of questions regarding the constitutional roles of
the state and nat'l gov'ts will avoid unnecessary conflict and possible
jurisdictional tension between the state and nat'l courts, it is proper to stay
an order of abstention pending appeal in such cases. Pohnpei v. MV Hai Hsiang #36
(II), 6 FSM Intrm. 604, 605 (Pon. 1994).
Certification is normally granted by the court that will be
applying the guidance sought to its decision, not yet made, not by the court
that is requested to hear the certified question. Etscheit v. Adams, 6 FSM
Intrm. 608, 610 (App. 1994).
Section 9. The Chief
Justice is the chief administrator of the national judicial system and may
appoint an administrative officer who is exempt from civil service. The
Chief Justice shall make and publish and may amend rules governing national
courts, and by rule may:
Case annotations: The
legislative enactment of the Financial Management Act does not conflict with the
constitutional provision stating the Chief Justice is the chief administrator of
the nat'l judiciary. Mackenzie
v. Tuuth, 5 FSM Intrm. 78, 80 (Pon. 1991).
The
constitutional provision making the Chief Justice the chief administrator of the
nat'l judiciary was not intended to establish a separate administration of funds
allotted to the judiciary; it is not so specific as to overcome the presumption
of the constitutionality of the Financial Management Act as it relates to the
judiciary. Mackenzie v. Tuuth, 5 FSM
Intrm. 78, 82-83 (Pon. 1991).
(a) divide the inferior
national courts and the trial division of the Supreme Court into geographical or
functional divisions;
(b) assign judges among
the divisions of a court and give special assignments to retired Supreme Court
justices and judges of state and other courts;
Case annotations: The
Chief Justice has the constitutional authority to make rules for the appointment
of special judges, and Congress has the constitutional authority to
amend them. Congress has provided the Chief Justice with the statutory authority
to appoint temporary justices. 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, 5 FSM Intrm.
326, 331 (App. 1992).
(c) establish rules of
procedure and evidence;
Case annotations: Many
of the following case annotations regard procedural rules promulgated by the
Supreme Court pursuant to the preceding constitutional provision and do not
directly interpret the preceding the constitutional provision itself. They
are nevertheless included here for reference purposes.
CIVIL PROCEDURE
Except
in the most extraordinary circumstances, a court should not accept one party's
unsupported representations that another party to the litigation has no further
interest in the case. In re
Nahnsen, 1 FSM Intrm. 97, 100 (Pon. 1982).
FSM
Civil Rule 3 confirms that the filing of a complaint is the essential first step
for instituting civil litigation. The Rules of Civil Procedure specify no
other method for a party to obtain judicial action from the court in civil
litigation. Koike v.
Ponape Rock Products Co., 1 FSM Intrm. 496, 500 (Pon. 1984).
Where
purchasers at a judicial sale are not served by summons and complaint pursuant
to FSM Civil Rule 3 but receive notice of a motion seeking confirmation of the
sale and made by a creditor of the party whose property was sold, and where the
purchasers do not object to the motion, confirmation of the sale is effective
and binding on the purchasers and is not violative of their rights of due
process. Sets v. Island Hardware, 3 FSM
Intrm. 365, 368 (Pon. 1988).
Procedural matters in litigation before the FSM Supreme
Court are governed by the FSM Rules of Civil Procedure and nat. l statutes,
rather than by state law. Salik v. U
Corp., 4 FSM Intrm. 48, 49-50 (Pon. 1989).
Courts
have inherent power, and an obligation, to monitor the conduct of counsel and to
enforce compliance with procedural rules. Leeruw v. Yap, 4 FSM Intrm.
145, 150 (Yap 1989).
Under
Civil Rule 54(c) the court has full authority except in default judgments, to
award the party granted judgment any relief to which it is entitled whether that
party prayed for it or not. Billimon
v. Chuuk, 5 FSM Intrm. 130, 137 (Chk. S. Ct. Tr. 1991).
When a
defendant cites certain defenses, but makes no argument as to how they apply and
their application is not self-evident, the court may decline to speculate as to
how they apply. Ponape Constr. Co. v. Pohnpei,
6 FSM Intrm. 114, 119 (Pon. 1993).
Where a
party at trial claims surprise, and the judge offers that party a chance to cure
any prejudice this might have caused and they make the tactical choice to
decline the opportunity it is a tactical choice the party must live with and is
not a basis for reversal. Nakamura
v. Bank of Guam (II), 6 FSM Intrm. 345, 351-52 (App. 1994).
When an
FSM Rule of Civil Procedure is nearly identical to a U.S. Federal Rule of Civil
Procedure and the FSM Rule has not previously been construed by the FSM Supreme
Court it may look to the U.S. federal courts for guidance in interpreting the
rule. Senda v. Mid-Pacific Constr.
Co., 6 FSM Intrm. 440, 444 (App. 1994).
Affidavits
An
affidavit unsupported by factual detail is not sufficient to cast doubt on the
proposition that a project manager of a joint venture, who is in charge of all
activities of a corporate member of the joint venture within a state, is a
managing or general agent of that corporation. Luda v. Maeda Road Constr.
Co., 2 FSM Intrm. 107, 110 (Pon. 1985).
There
are varying degrees of familial relationships and Micronesian legislative bodies
have consistently instructed the courts that not every family relationship
requires disqualification. An affidavit, stating that an administrative
decision-maker is a relative of a party, but not saying whether he is a near
relative and failing to set out the degree of relationship, is insufficient to
constitute a claim of statutory violation. Heirs of Mongkeya v. Heirs of
Mackwelung, 3 FSM Intrm. 92, 100 (Kos. S. Ct. Tr. 1987).
An
affidavit which merely sets out conclusions or beliefs of the affiant, but shows
no specific factual basis therefor, is inadequate. Ittu v. Charley, 3 FSM Intrm.
188, 193 (Kos. S. Ct. Tr. 1987).
Consolidation
Deposition
Where
the court set aside a default judgment upon the payment by defendant to
plaintiff of airfare to attend the trial, no modification will be granted to
require the defendant to pay the costs of the plaintiff's counsel to go to
plaintiff's residence to take his deposition which is being noticed by the
plaintiff, especially where there is no showing that plaintiff could not attend
the trial, nor will the court decide before trial whether such deposition could
be used at trial. Morris v.
Truk, 3 FSM Intrm. 454, 456-57 (Truk 1988).
Where
plaintiff initially appeared for deposition and thereafter missed several
continued dates within a two week time span because of funerals at which he was
required to officiate, the failure to appear on the rescheduled dates was
substantially justified so as to make sanctions under FSM Civil Rule 37(d)
inappropriate. Nahnken of
Nett v. United States (II), 6 FSM Intrm. 417, 419-20 (Pon.
1994).
A
defendant is entitled to examine a plaintiff in the jurisdiction where the
plaintiff has chosen to file the lawsuit. A court may grant an exception
to the rule requiring plaintiffs to submit to depositions in the jurisdiction
where the suit is pending when a plaintiff makes a good faith application based
on hardship. McGillivray v. Bank of the FSM
(II), 6 FSM Intrm. 486, 488 (Pon. 1994).
Discovery
It is
normally for the trial court to fashion remedies and sanctions for failure of a
party to comply with discovery requirements. The exercise of the trial
court's discretion should not be disturbed by an appellate court absent a
showing that the trial court's action has unfairly resulted in substantial
hardship and prejudice to a party. Engichy v. FSM, 1 FSM Intrm.
532, 558 (App. 1984).
The
burden of showing whether exceptional circumstances exist within the meaning of
FSM Criminal Rule 15 is upon the defendant. To obtain a court order for
taking of a deposition, the defendant must show that the witness is unavailable
to attend the trial, that the testimony of the witness would be material and
that such testimony would be in the interest of justice. Wolfe v. FSM, 2 FSM Intrm.
115, 122 (App. 1985).
Forced
disclosure of arrangements for payment of attorney's fees intrudes, in some
degree, upon the attorney-client relationship and can be an "annoyance" within
the meaning of the FSM Civil Rule 26(c) provisions concerning protective orders.
Mailo v. Twum-Barimah, 3 FSM
Intrm. 179, 181 (Pon. 1987).
Unless
the questioning party is able to show some basis for believing there may be a
relationship between an attorney's fee and the subject matter of the pending
action, objections to efforts to discover the attorney's fee arrangement may be
upheld. Mailo v. Twum-Barimah, 3 FSM
Intrm. 179, 181 (Pon. 1987).
Although Kosrae Evidence Rule 408 does not require the
exclusion of factual evidence "otherwise discoverable" simply because it was
presented during compromise negotiations, a statement made in a letter seeking
to settle a dispute, which statement is clearly connected to and part of the
settlement offer, is not otherwise discoverable. Nena v. Kosrae, 3 FSM Intrm.
502, 507 (Kos. S. Ct. Tr. 1988).
A
request for admission as to the genuineness of a letter, excludable as evidence
under Kosrae Evidence Rule 408 because it relates to settlement negotiations, is
reasonably calculated to lead to evidence which could be admissible, and an
objecting party may not obtain a protective order pursuant to Kosrae Civil Rule
26 to avoid responding to the request. Nena v. Kosrae, 3 FSM Intrm.
502, 507 (Kos. S. Ct. Tr. 1988).
It is
normally for the trial court to fashion remedies and sanctions for failure of a
party to comply with discovery requirements and the exercise of the trial
court's discretion should not be disturbed by an appellate court absent a
showing that the trial court's action has unfairly resulted in substantial
hardship and prejudice to a party. Bernardo v. FSM, 4 FSM Intrm.
310, 313 (App. 1990).
An
attorney who fails to make timely requests for enlargement of time to complete
discovery beyond the deadline set by court order; who has someone other than the
client sign answers to interrogatories; and who fails to serve the answers
properly on opposing counsel while filing a proof of service with the court is
sanctionable on the court's own motion. Paul v. Hedson, 6 FSM Intrm.
146, 148 (Pon. 1993).
The
fashioning of remedies and sanctions for a party's failure to comply with
discovery requirements is a matter within the trial court's discretion and
should not be disturbed by an appellate court absent a showing that the trial
court's action has unfairly resulted in substantial hardship and prejudice to a
party. Nakamura v. Bank of Guam (II),
6 FSM Intrm. 345, 349 (App. 1994).
While a
defendant's motion to strike portions of a complaint as immaterial or
impertinent is untimely if not filed before the defendant's answer a court, in
its discretion, may still consider it because the court may, on its own
initiative at any time, order stricken from any pleading any insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter. McGillivray v. Bank of the FSM
(I), 6 FSM Intrm. 404, 406 (Pon. 1994).
Because
methods of discovery may be used in any sequence, and courts rarely order that a
deposition not be taken at all and where there has been inexcusable delay in
responding to interrogatories the court will not issue a protective order
barring the taking of a deposition until after less burdensome means have been
tried. Instead the court will set deadlines for compliance with the
outstanding discovery requests. McGillivray v. Bank of the FSM
(I), 6 FSM Intrm. 404, 408 (Pon. 1994).
Absent
a showing of any of the factors listed in FSM Civil Rule 26(c), the court will
not intrude at the deposition stage at the insistence of a party to declare what
is relevant information that may be sought. Nahnken of Nett v. United
States (II), 6 FSM Intrm. 417, 422 (Pon. 1994).
A trial
judge has considerable discretion on the question of relevancy of discovery
materials and his order should not be disturbed unless there has been an abuse
of discretion or unless the action taken is improvident and affects the
substantial rights of the parties. McGillivray v. Bank of the FSM
(II), 6 FSM Intrm. 486, 489 (Pon. 1994).
Under
FSM Civil Rule 26 evidence may be discovered even if it would inadmissible on
relevancy grounds at trial, as long as the information sought appears reasonably
calculated to lead to the discovery of admissible evidence. However, the
discovery of material to be used for impeachment purposes is generally not
permissible unless the impeaching material is also relevant or material to the
issues in the case. McGillivray v. Bank of the FSM
(II), 6 FSM Intrm. 486, 490 (Pon. 1994).
Dismissal
Customary settlements do not require court dismissal of
criminal proceedings if no exceptional circumstances are shown. FSM v. Mudong, 1 FSM Intrm.
135, 140 (Pon. 1982).
After
prosecution has been initiated, the court may dismiss litigation if there is no
probable cause to believe that a crime has been committed. FSM v. Mudong, 1 FSM Intrm.
135, 140 (Pon. 1982).
The
prosecutor does not have authority to dismiss an existing prosecution on the
basis of customary law but the court does have power to respond to a
prosecutorial suggestion for dismissal because of customary considerations.
FSM v. Mudong, 1 FSM Intrm.
135, 141 (Pon. 1982).
At
common law, repeal of a criminal statute abated all criminal prosecutions which
had not reached final disposition in the highest court authorized to review
them. In re Otokichy, 1 FSM Intrm.
183, 189-90 n.4 (App. 1982).
Where
the plaintiff has been given reasonable notice of his trial and he and his
attorney failed to appear to adduce evidence and prosecute the claim, his
inactivity amounts to abandonment of his claim and it is subject to dismissal
under FSM Civil Rule 41(b). Etpison v.
Perman, 1 FSM Intrm. 405, 414 (Pon. 1984).
A
motion under FSM Civil Rule 12(b) to dismiss for failure to state a claim upon
which relief may be granted maybe upheld only if it appears to a certainty that
no relief could be granted under any state of facts which could be proved in
support of the claim. Mailo v.
Twum-Barimah, 2 FSM Intrm. 265, 267 (Pon. 1986).
Civil
proceedings typically can be concluded by the parties without court action or
approval of any kind pursuant to Rule 41 of the FSM Supreme Court's Rules of
Civil Procedure. FSM v.
Ocean Pearl, 3 FSM Intrm. 87, 91 (Pon. 1987).
Although the prosecution has broad discretion in determining
whether to initiate litigation, once that litigation is initiated in the FSM
Supreme Court, the court also has responsibility for assuring that actions
thereafter taken are in the public interest. Thus, criminal litigation can
be dismissed only by obtaining leave of court. FSM v. Ocean Pearl, 3 FSM
Intrm. 87, 91 (Pon. 1987).
Although it is reasonable to analyze settlement agreements
in civil actions on the basis of contract principles alone, important public
policy considerations attach to the settlement of criminal cases. FSM v. Ocean Pearl, 3 FSM
Intrm. 87, 91 (Pon. 1987).
Dismissal of a claim for failure of the plaintiff to
prosecute normally operates as an adjudication on the merits. Ittu v. Charley, 3 FSM Intrm.
188, 191 (Kos. S. Ct. Tr. 1987).
Where
there is dismissal of an action, even though the dismissal is voluntary and
without prejudice, the defendant is the prevailing party within the meaning of
Rule 54(d) which provides for awards of costs to the prevailing party. Mailo v. Twum-Barimah, 3 FSM
Intrm. 411, 413 (Pon. 1988).
When a
party incurs considerable expense in preparation for trial and the other party
seeks for dismissal, the court may specify the conditions under which dismissal
will be allowed, but dismissal need not be accepted by a party who finds the
conditions too onerous. Mailo v.
Twum-Barimah, 3 FSM Intrm. 411, 414 (Pon. 1988).
Where a
plaintiff seeks dismissal of her own complaint without prejudice under Rule
41(a)(2), it is generally thought that the court should at least require the
plaintiff to pay the defendant's costs of the litigation as a condition to such
dismissal and these costs may include travel expenses of plaintiff's attorney.
Mailo v. Twum-Barimah, 3 FSM
Intrm. 411, 415 (Pon. 1988).
A
motion to dismiss for failure to state a claim for which relief can be granted
brought under FSM Civil Rule 12(b)(6) will be granted only if it appears to a
certainty that no relief can be granted under any state of facts which could be
proven in support of the claim. In making its determination the court is
to assume the allegations in the complaint to be true and give the plaintiff the
benefit of all reasonable inferences. FSM 5 Intrm. 389-398Jano
v. King, 5 FSM Intrm. 388, 390 (Pon. 1992).
A
motion under FSM Civil Rule 12(b) to dismiss for failure to state a claim may be
granted only if it appears to a certainty that no relief could be granted under
any state of facts which could be proven in support. Faw v. FSM, 6 FSM Intrm.
33, 36 (Yap 1993).
Where a
court has dismissed a criminal case for lack of jurisdiction over the crimes for
which the defendant was charged, the dismissal does not act as a discharge so as
to preclude extradition on the charge. "Discharge" requires both personal
and subject matter jurisdiction. In re
Extradition of Jano, 6 FSM Intrm. 93, 107-08 (App. 1993).
Dismissal of actions for attorney misconduct is generally
disfavored in light of the judicial preference for adjudication on the merits
whenever possible so as to allow parties a reasonable opportunity to present
their claims and defenses. Paul v.
Hedson, 6 FSM Intrm. 146, 147 (Pon. 1993).
A
motion to dismiss, unlike a pleading, must state with particularity the grounds
for dismissal, be made before pleading, and be argued with clarity and
relevance. In re Parcel No. 046-A-01, 6
FSM Intrm. 149, 152 (Pon. 1993).
The
purpose of the rules addressing process and service of process in civil cases is
to assure that a defendant receives sufficient notice of all causes of action
that are filed against him and thus has a fair and adequate opportunity to
defend. Where a plaintiff fails to properly serve a defendant, the court
does not have jurisdiction over that defendant, and the case may not proceed,
but will be dismissed without prejudice. Berman v. Santos, 6 FSM Intrm.
532, 534 (Pon. 1994).
Under
the common law the death of a criminal appellant pending appeal abates the
proceedings ab initio. not only the appeal but all proceedings from the
inception of the prosecution, thus requiring the appellate court to dismiss the
appeal, and remand the case to the trial court to vacate the judgment and
dismiss the information. Palik v.
Kosrae, 6 FSM Intrm. 362, 364 (App. 1994).
When a
criminal defendant dies while his conviction is on appeal and where there was no
discrete victim and where there are no collateral matters impinging upon the
case requiring further court proceedings it is appropriate under the facts of
the case to abate the proceedings ab initio and vacate the conviction. Palik v. Kosrae, 6 FSM Intrm.
362, 364 (App. 1994).
A
motion to dismiss is not to be granted unless it appears to a certainty that the
non-moving party is entitled to no relief under any state of facts which could
be proved in support of the claim, and if on the motion to dismiss matters
outside the pleading are presented to and not excluded by the court, the motion
shall then be treated as one for summary judgment. FSM 6 Intrm. 365-393Etscheit
v. Adams, 6 FSM Intrm. 365, 386 (Pon. 1994).
Filings
Fax
transmissions cannot be received for filing. Maruwa Shokai Guam, Inc. v.
Pyung Hwa 31, 6 FSM Intrm. 238, 240 (Pon. 1993).
Trial
courts have considerable discretion in ruling on motions for extension of filing
deadlines. A court which has already extended a filing deadline does not abuse
its discretion by refusing to grant successive extensions. McGillivray v. Bank of the FSM
(II), 6 FSM Intrm. 486, 488 (Pon. 1994).
Frivolous
Actions
Although it is ultimately proved that plaintiff has no solid
claim or theory against a defendant, plaintiff's action against that defendant
is not vexatious or frivolous where 1) plaintiff reasonably believed at the
outset of litigation that defendant might be liable, 2) a considerable amount of
discovery was required to establish that defendant was not liable, 3) plaintiff
did not stubbornly insist on defendant's liability in the face of defendant's
motion for summary judgment, and 4) other defendants would presumably have named
defendant in the case in any event, so that defendant would have incurred
substantial attorney's fees regardless of plaintiff's actions. Semens v. Continental Air
Lines, Inc. (II), 2 FSM Intrm. 200, 209 (Pon. 1986).
Injunctions
FSM
Civil Rule 65 providing for issuance of temporary restraining orders and
preliminary injunctions pending final decisions by the court, is drawn from rule
65 of the United States Federal Rules of Civil Procedure, so decisions of the
U.S. courts under that rule are a legitimate source of guidance as to the
meaning of FSM Civil Rule 65. Ponape
Transfer & Storage v. Pohnpei State Public Lands Auth., 2 FSM Intrm.
272, 275 (Pon. 1986).
A
prerequisite for granting of injunctive relief is that the party seeking
protection must be faced with the threat of irreparable harm before conclusion
of the litigation unless the injunction is granted, and if money damages or
other relief upon conclusion of the litigation will fully compensate for the
threatened interim action, then the preliminary injunction should be denied.
Ponape Transfer & Storage
v. Pohnpei State Public Lands Auth., 2 FSM Intrm. 272, 276 (Pon.
1986).
In
considering motions for temporary restraining order or for preliminary
injunction, courts weigh the possibility of irreparable injury to the plaintiff,
the balance of possible injuries between the parties, the movant's possibility
of success on the merits, and the impact of any requested action upon the public
interest. Ponape Transfer & Storage
v. Pohnpei State Public Lands Auth., 2 FSM Intrm. 272, 276-77 (Pon.
1986).
The
fact that the party moving for preliminary injunction relief does not appear
more likely than not to succeed on the merits is a factor weighing against
granting of such relief but it is only one of four factors and is not
necessarily determinative when the other factors point toward such relief.
Ponape Transfer & Storage
v. Pohnpei State Public Lands Auth., 2 FSM Intrm. 272, 278 (Pon.
1986).
Courts
generally consider the likelihood of success on the merits of the party seeking
injunctive relief, the possibility of irreparable injury as well as the balance
of possible injuries or inconvenience to the parties which would flow from
granting or denying the relief, and any impact upon the public interest.
Ponape Transfer & Storage
v. Federated Shipping Co., 3 FSM Intrm. 174, 177 (Pon.
1987).
It is
not appropriate to abstain from deciding a claim for injunctive relief where it
is undisputed that the court has jurisdiction and where the interests of time
can be of pressing importance. Gimnang v.
Yap, 4 FSM Intrm. 212, 214 (Yap 1990).
Earthmoving regulations themselves represent a governmental
determination as to the public interest, and the clear violation of such
regulations may therefore be enjoined without a separate court assessment of the
public interest and balancing of hardships between the parties. Damarlane v. Pohnpei Transp.
Auth., 4 FSM Intrm. 347, 349 (Pon. 1990).
Right
to appeal an interlocutory order which affects an injunction is an exception to
general rule that permits appeals only from final decisions. The exception
reflects the importance of prompt action when injunctions are involved since the
threat of irreparable harm is a prerequisite to injunctive relief. Damarlane v. Pohnpei Transp.
Auth., 5 FSM Intrm. 332, 334 (App. 1992).
To
obtain a temporary restraining order there must be a clear showing that
immediate and irreparable injury or loss or damage would occur otherwise.
An injury is not irreparable if there is an adequate alternative remedy.
Kony v. Mori, 6 FSM Intrm.
28, 29 (Chk. 1993).
In
exercising its broad discretion in considering whether to grant a preliminary
injunction the court looks to four factors: 1) the likelihood of success on the
merits of the party seeking injunctive relief, 2) the possibility of irreparable
injury to the moving party, 3) the balance of possible injuries or inconvenience
to the parties which would flow from granting or denying the relief, and 4) any
impact on the public interest. The object of a preliminary injunction is
to preserve the status quo pending the litigation on the merits. Ponape Enterprises Co. v.
Bergen, 6 FSM Intrm. 286, 288 (Pon. 1993).
A court
may grant a preliminary injunction even if the moving party is not more likely
than not to prevail, as long as the movant's position appears sufficiently sound
to raise serious, nonfrivolous issues. Ponape Enterprises Co. v.
Bergen, 6 FSM Intrm. 286, 289 (Pon. 1993).
An
injunction allowing defendants in a trespass action to remain on the land,
harvest their crops, but preventing them from destroying any trees or expanding
their cultivations or further entrenching their positions will prevent
irreparable harm to the plaintiffs, balance the interests of the parties, and
serve the public interest by preserving the status quo while the litigation is
pending. Ponape Enterprises Co. v.
Bergen, 6 FSM Intrm. 286, 289-90 (Pon. 1993).
Where
there is little likelihood of success on the merits, where economic loss does
not represent irreparable harm, where balance of interests weighs against
plaintiff, and where public interest favors regulation of alcohol sales, no
preliminary injunctive relief will be granted plaintiff ordering defendant state
grant it an alcoholic beverage license which would not preserve the status quo
pending litigation. Simon v.
Pohnpei, 6 FSM Intrm. 314, 316-18 (Pon. 1994).
Where a
stipulated preliminary injunction is void because of the judge's
disqualification and because of the stipulated dismissal of the court case in
which it was issued, factual questions must be resolved before deciding whether
it is enforceable as an independent contract. Etscheit v. Adams, 6 FSM
Intrm. 365, 391-92 (Pon. 1994).
Whether
the lower court erred by issuing a preliminary injunction that did not require
the return of funds obtained in violation of a TRO involves a trial court's
exercise of discretion and is reviewed using an abuse of discretion standard.
Onopwi v. Aizawa, 6 FSM Intrm.
537, 539 (Chk. S. Ct. App. 1994).
Injunctive relief is an equitable remedy for which a court
must use a balance-of-hardship test with a flexible interplay among four
factors. the likelihood of irreparable harm to plaintiff without an injunction;
likelihood of harm to defendant with an injunction; plaintiff's likelihood of
success on the merits; and the public interest. Striking a fair balance
between two more important factors, likelihood of harm to competing sides, is
largely a matter of the facts of each situation and is thus a matter peculiarly
for the discretion of the trial judge. Onopwi v. Aizawa, 6 FSM Intrm.
537, 539 (Chk. S. Ct. App. 1994).
Intervention
The
interest of the speaker of a state legislature in upholding validity of laws
enacted by that legislature, and in obtaining funds for the legislature pursuant
to the tax legislation challenged in litigation, is not the kind of interest
which will support a right to intervene in the litigation pursuant to FSM Civil Rule 24(a) in order to enforce
the legislation through cross-claims and counterclaims. Wainit v. Truk (I), 2 FSM
Intrm. 81, 85 (Truk 1985).
Where
the speaker of a legislature seeks to intervene in order to deny the plaintiff's
claim that legislation enacted by the legislature is invalid, his proposed
denial, with the complaint, presents a single or common question of law within
the meaning of FSM Civil Rule 24(b), and the
intervention may be permitted so long it will not cause undue delay, or
prejudice adjudication of the rights of the original parties. Wainit v. Truk (I), 2 FSM
Intrm. 81, 85 (Truk 1985).
Where
one seeking to intervene under FSM Civil Rule 24(b) would not raise new
and difficult issues through a proposed answer but would do so through proposed
cross-claims and counterclaims, the court may properly limit the participation
of the intervenor to defense against the plaintiff's claims. Wainit v. Truk (I), 2 FSM
Intrm. 81, 86 (Truk 1985).
Where a
party on appeal challenges the intervention in the appeal of another party, and
the issue on the merits is decided in favor of the challenging party, no harm is
visited on the challenging party by allowing the intervention, and the court is
not required to rule on the propriety of that intervention. Innocenti v. Wainit, 2 FSM
Intrm. 173, 180 (App. 1986).
Either
the husband or the wife may prosecute or defend a civil action in which one or
both are parties, provided that he or she has informed his or her spouse of the
representation. O'Sonis v.
Truk, 3 FSM Intrm. 516, 518 (Truk S. Ct. Tr. 1988).
Joinder
An FSM
Rule of Civil Procedure motion for misjoinder should not be granted where the
claims against the joined parties arose out of the same occurrence and there are
common questions of law and fact. FSM Civ. R. 21.
Manahane v. FSM, 1 FSM Intrm.
161, 164 (Pon. 1982).
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, 6 FSM Intrm.
293, 301-02 & n.12 (App. 1993).
When
more than two years had elapsed in pending litigation before filing of a motion
for leave to file third party complaint under FSM Civil Rule
14(a), when a pre-trial order closing discovery had been filed and the
existing parties had declared themselves ready for trial, when filing of the
complaint would introduce new issues, when no reason for delay in filing the
motion has been given, and when the opposing party reasonably objects on grounds
that the delay will prejudice that party's rights, the motion to file a third
party complaint should be denied. Salik v. U Corp. (II), 3 FSM
Intrm. 408, 410 (Pon. 1988).
A
motion for joinder under FSM Civil Rule 19 will be denied where it appears that
complete relief between the existing parties could be granted without the
joinder and where there is no showing that the party sought to be joined claims
an interest relating to the subject of the action. Salik v. U Corp. (II), 3 FSM
Intrm. 408, 410 (Pon. 1988).
Although there is a danger of prejudice in cases where a
co-defendant's inculpatory statement is admitted into evidence, because the
court is hesitant to limit the broad discretion afforded the trial judge by FSM
Criminal Rule 14, and because many problems can be eliminated by redaction of
the statement, the court will not adopt a perse rule of severance at this time.
Hartman v. FSM, 5 FSM Intrm.
224, 230 (App. 1991).
A
motion to add counterclaims and join new defendants will be denied where the new
defendants and counterclaims are virtually identical to those in a separate
pending action before the court and the moving party has failed to show that the
relief sought by the opposing party is the same as that sought in an earlier
decided case between the same parties. Nahnken of Nett v. United
States (II), 6 FSM Intrm. 417, 421-22 (Pon. 1994).
In some
cases failure to join an indispensable party may subject a judgment to
collateral attack, but failure to join a necessary party will not. A
necessary party is one who has an identifiable interest in the action and should
normally be made a party to the lawsuit, but whose interests are separable from
the rest of the parties or whose presence cannot be obtained; whereas an
indispensable party is one to whom any judgment, if effective, would necessarily
affect his interest, or would, if his interest is eliminated, constitute
unreasonable, inequitable, or impractical relief. Nahnken of Nett v. United
States (III), 6 FSM Intrm. 508, 517 (Pon. 1994).
Juvenile
The
Nat'l Criminal Code places in the FSM Supreme Court exclusive jurisdiction over
allegations of violations of the Code. No exception to that jurisdiction
is provided for juveniles, so charges of crimes leveled against juveniles are
governed by the Nat. l Criminal Code. FSM v. Albert, 1 FSM Intrm.
14, 15 (Pon. 1981).
To
dismiss litigation against juvenile defendants for lack of jurisdiction would be
contrary to the Nat. l Criminal Code despite the fact that Code makes no
reference to charges against juveniles or to the Juvenile Code. FSM v. Albert, 1 FSM Intrm.
14, 15 (Pon. 1981).
The
section of the Juvenile Code mandating that courts adopt flexible procedures in
juvenile cases remains in effect; neither the Nat. l Criminal Code nor any other
provision of law enacted by the Congress is at odds with it. 12 FSMC
1101. FSM v.
Albert, 1 FSM Intrm. 14, 17 (Pon. 1981).
In the
absence of any explanation in the legislative history or from the gov. t to
justify a different interpretation, the only apparent reason for the deletion of
the words "alleged to be found delinquent" from the Model Penal Code definition
of official detention is that Congress wished to exclude detained juveniles from
the nat. l prohibitions against escape. 11 FSMC 505(1). In re Cantero, 3 FSM Intrm.
481, 484 (Pon. 1988).
Juveniles alleged or found to be delinquent children are not
under "official detention" within the meaning of 11 FSMC 505(1). In re Cantero, 3 FSM Intrm.
481, 484 (Pon. 1988).
Motions
The
failure of the nonmoving party's memorandum to set forth points and authorities
constitutes a consent to the granting of the motion. FSM Civ. R. 6(d).
Enlet v. Truk, 3 FSM Intrm.
459, 461 (Truk 1988).
A
memorandum of points and authorities filed by a party opposing a motion must set
forth the law upon which the party relies and his theory as to the application
of that law to the facts of the case. Enlet v. Truk, 3 FSM Intrm.
459, 462 (Truk 1988).
Although failure to oppose a motion operates as a consent by
opposing party to the granting of the motion, the court is not bound to grant
motion simply because it is unopposed. For a motion to be granted, even if
unopposed, it must be well grounded in law and fact, and not interposed for
delay. In re Parcel No. 046-A-01, 6
FSM Intrm. 149, 153 (Pon. 1993).
Under
the Rules of Civil Procedure a party opposing a motion has ten days to file a
response. Six days may be added if service was by mail. The time period
does not commence running from date of notice for hearing on the motion, but
from the date of the motion itself. Maruwa Shokai Guam, Inc. v.
Pyung Hwa 31, 6 FSM Intrm. 238, 240 (Pon. 1993).
While
it is true that failure to file a timely opposition is deemed a consent to the
granting of the motion, FSM Civ. R. 6(d), proper grounds for the granting of the
motion must still exist before a court may grant it. Senda v. Mid-Pacific Constr.
Co., 6 FSM Intrm. 440, 442 (App. 1994).
A
movant's inaction is insufficient to notify the court (or other parties) that a
motion has been dropped. Only a notice of withdrawal of motion will do
that. Otherwise a motion may be decided without hearing and without
further request. Setik v.
FSM, 6 FSM Intrm. 446, 448 (Chk. 1994).
A filed
stipulation to extend time to respond to a motion will be treated as a motion
for an enlargement of time, but will be denied when filed after the time respond
has expired and no excusable neglect has been shown. Elwise v. Bonneville Constr.
Co., 6 FSM Intrm. 570, 572 (Pon. 1994).
A
motion filed in a related criminal case for the release of a vessel, which is
only a defendant in a civil forfeiture action, will be denied as not properly
before the court. FSM v. Wu
Ya Si, 6 FSM Intrm. 573, 574 (Pon. 1994).
Although failure to timely file opposition to a motion is
deemed a consent to the motion, proper grounds for the granting of the motion
must still exist before the court may grant it. Bank of Guam v. Nukuto, 6 FSM
Intrm. 615, 616 (Chk. 1994).
Pleadings
When
issues which were not raised in the pleadings are tried by express or implied
consent of the parties, they shall be treated in all respects as if they had
been raised in the pleadings. Edwin v.
Kosrae, 4 FSM Intrm. 292, 301 (Kos. S. Ct. Tr. 1990).
The
pleading requirements of FSM Civil Rule 8(a) are to be interpreted liberally,
and a complaint which states the grounds of jurisdiction and alleges facts
sufficient to put the defendant on notice as to the nature and basis of the
claim being made sufficiently complies with the rule. Faw v. FSM, 6 FSM Intrm.
33, 36-37 (Yap 1993).
Where a
plaintiff files an amended complaint without leave of court and no motion for
leave was ever filed the court may order the amended complaint stricken from the
record. An entry of default based on such stricken amended complaint will
be set aside. Berman v.
FSM Supreme Court, 6 FSM Intrm. 109, 112-13 (Pon. 1993).
When an
issue not raised in the pleadings is raised at trial without objection by either
party and evidence is admitted on the matter, the issue is to be considered
tried by implied consent per FSM Civil Rule 15(b). Wito Clan v. United Church of
Christ, 6 FSM Intrm. 129, 133 (App. 1993).
Where a
wife is not a party to an action the court may strike references to harm to the
wife from the complaint because the wife is not a party to the litigation and
therefore damages for harm to her cannot be obtained as part of the action.
It would be unfair to allow the plaintiff to seek damages for harms to his
wife while maintaining that she is a non-party who is not subject to the
pleading, discovery, and evidentiary rules that a party is bound by. McGillivray v. Bank of the FSM
(I), 6 FSM Intrm. 404, 407 (Pon. 1994).
Rule
9(b) requires that in allegations of fraud that the circumstances constituting
the fraud shall be stated with particularity. The extent of the
particularity is guided by FSM Civil Rule 8(a) which requires a short and plain
statement of the claim. Pohnpei v.
Kailis, 6 FSM Intrm. 460, 462 (Pon. 1994).
The rules allow for notice pleading and require a short and
plain statement of the claim showing that the pleader is entitled to relief and
a demand for judgment for the relief to which he deems himself entitled.
The pleadings must give the opposing party fair notice of the nature and
grounds for the claim, and a general indication of the type of litigation
involved. Apweteko v. Paneria, 6 FSM
Intrm. 554, 557 (Chk. S. Ct. App. 1994).
Pleadings may be amended as a matter of might anytime before
a responsive pleading is served, with written consent of the adverse party, or
by order of court, which should be liberally granted. Once the pleading is
complete and all amendments have been filed the matters raised by the pleadings
normally form the issues to be determined at trial. Apweteko v. Paneria, 6 FSM
Intrm. 554, 557 (Chk. S. Ct. App. 1994).
When
issues not raised by the pleading are tried by express or implied consent of the
parties, they shall be treated in all respects as if they had been raised in the
pleadings, and any party may make a motion to amended the pleadings to conform
to the evidence and issues tried by such consent. Apweteko v. Paneria, 6 FSM
Intrm. 554, 557 (Chk. S. Ct. App. 1994).
If an
unpled theory of recovery is fully tried by consent of the parties, the trial
court may base its decision on that theory and may deem the pleadings amended
accordingly, even though the theory was not set forth in the pleading or the
pretrial order. Apweteko
v. Paneria, 6 FSM Intrm. 554, 557 (Chk. S. Ct. App. 1994).
If no
understanding by the parties appears in the record that evidence admitted at
trial was aimed at an unpleaded issue, it is an abuse of discretion for a court
to base its decision on issues not pled. An adverse party must have
sufficient notice to properly prepare to oppose the claim. Apweteko v. Paneria, 6 FSM
Intrm. 554, 557 (Chk. S. Ct. App. 1994).
A court
commits reversible error by basing its decision on a theory of recovery that was
not raised by the pleadings nor tried by consent or understanding of the
parties. Apweteko v. Paneria, 6 FSM
Intrm. 554, 558 (Chk. S. Ct. App. 1994).
A court
has discretion to determine whether it is just to allow a party to serve
additional, supplemental pleadings upon an opposing party based on happenings
since the date of the pleading sought to be supplemented. Damarlane v. Pohnpei State
Court, 6 FSM Intrm. 561, 563 (Pon. 1994).
Where a
party has obtained all the relief he originally requested it is not just for a
court to allow that party to supplement his pleadings to seek additional relief
because he is dissatisfied with the relief he received. Damarlane v. Pohnpei State
Court, 6 FSM Intrm. 561, 563 (Pon. 1994).
Res Judicata and Collateral
Estoppel
Under
res judicata, a final judgment on the merits of an action precludes the parties
or their privies from relitigating issues that were or could have been raised in
the that action. Ittu v.
Charley, 3 FSM Intrm. 188, 190 (Kos. S. Ct. Tr. 1987).
Under
common law res judicata principles, an order of dismissal with prejudice bars
reassertion of the dismissed claim at a later date. Ittu v. Charley, 3 FSM Intrm.
188, 191 (Kos. S. Ct. Tr. 1987).
A
judgment of a court having jurisdiction of the parties and of the subject matter
operates as res judicata, in the absence of fraud or collusion, even if obtained
upon a default. Ittu v.
Charley, 3 FSM Intrm. 188, 191 (Kos. S. Ct. Tr. 1987).
The
need for finality of judgment, which is the inspiration of the res judicata
doctrine, exists within the FSM. Ittu v. Charley, 3 FSM Intrm.
188, 191 (Kos. S. Ct. Tr. 1987).
A FSM
Supreme Court decision applying state law in a case before it is final and res
judicata; but if in a subsequent case a state court decides the same issue
differently, the state decision in that subsequent case is controlling precedent
and the nat. l courts should apply the state court rule in future cases.
Edwards v. Pohnpei, 3 FSM
Intrm. 350, 360 n.22 (Pon. 1988).
Judgment entered pursuant to compromise and settlement is
treated as a judgment on the merits barring any other action for the same cause.
Truk v. Robi, 3 FSM Intrm.
556, 564 (Truk S. Ct. App. 1988).
A
fundamental principle of the common law, traditionally referred to in common law
jurisdictions as res judicata, is that once judgment has been issued and the
appeal period has expired or the decision is affirmed on appeal, the parties are
precluded from challenging that judgment or from litigating any issues that were
or could have been raised in that action. United Church of Christ v.
Hamo, 4 FSM Intrm. 95, 106 (App. 1989).
The FSM Supreme Court normally will refuse to review
the correctness of an earlier Trust Territory High Court judgment, which has
become final through affirmance on appeal or through lack of a timely appeal,
and claims that the earlier judgment is ill-reasoned, unfair or even beyond the
jurisdiction of the High Court typically will not be sufficient to escape the
doctrine of res judicata. United
Church of Christ v. Hamo, 4 FSM Intrm. 95, 107 (App. 1989).
The
determination of jurisdiction itself normally qualifies for protection under the
common law principle of res judicata, requiring a second court to presume that
the court which issued the judgment did properly exercise its own jurisdiction,
but plain usurpation of power by a court which wrongfully extends its
jurisdiction beyond the scope of its authority, is outside of the doctrine and
does not qualify for res judicata protection. United Church of Christ v.
Hamo, 4 FSM Intrm. 95, 107-08 (App. 1989).
In
light of the Trust Territory High Court's insistence on maintaining control over
cases within the FSM in disregard of Secretarial Order 3039 and to the exclusion
of the new constitutional courts, its characterizations of Joint Rule No. 1 as
"simply a memorandum" and of the words "active trial" in Secretarial Order 3039
as merely "administrative guidance," its acceptance of appeals after it was
precluded from doing so by Secretarial Order 3039, its decision of appeals after
Secretarial Order 3039 was terminated and its continued remand of cases to the
High Court trial division for further action even after November 3, 1986, there
can be no doubt that for purposes of res judicata analysis, the High Court was a
court lacking capacity to make an adequately informed determination of a
question concerning its own jurisdiction. United Church of Christ v.
Hamo, 4 FSM Intrm. 95, 118 (App. 1989).
Although final judgment in a case has been entered by the
Trust Territory High Court, because any effort by a party to have the High Court
consider its own jurisdiction would have been futile, it is procedurally fair to
later afford the party an opportunity to question that jurisdiction. United Church of Christ v.
Hamo, 4 FSM Intrm. 95, 118-19 (App. 1989).
Where
TT High Court's exercise of jurisdiction was a manifest abuse of authority,
allowing judgment of High Court to stand would undermine decision-making
guidelines and policies reflected in judicial guidance clauses of nat. l and
state constitutions and would thwart efforts of framers of Constitution to
reallocate court jurisdiction within FSM by giving local decision-makers control
over disputes concerning ownership of land. United Church of Christ v.
Hamo, 4 FSM Intrm. 95, 119 (App. 1989).
Decisions regarding res judicata and the transitional
activities of the TT High Court typically should be made on basis of larger
policy considerations rather than equities lying with or against a particular
party. United Church of Christ v.
Hamo, 4 FSM Intrm. 95, 120 (App. 1989).
Actions
of TT High Court taken after establishment of functioning constitutional courts
in FSM, and without good faith determination after a full and fair hearing as to
whether the "active trial" exception permitted retention of the cases, were null
and void, even though the parties failed to object, because the High Court was
without jurisdiction to act and its conduct constituted usurpation of power.
United Church of Christ v.
Hamo, 4 FSM Intrm. 95, 122 (App. 1989).
The
doctrine of merger holds that a plaintiff cannot maintain an action on a claim
or part of a claim for which he has already recovered a valid final judgment
since the original claim becomes merged in the judgment and thereafter
plaintiff's rights are upon the judgment, not the original claim. Mid-Pacific Constr. Co. v.
Semes (II), 6 FSM Intrm. 180, 184 & n. 2 (Pon. 1993).
When an
issue of fact or law is actually litigated and determined by a valid and final
judgment, and determination is essential to the judgment, the determination is
conclusive in a subsequent action between the parties, whether on the same or
different claim under doctrine of collateral estoppel or issue preclusion, but
in a judgment entered by confession, consent, or default none of the issues is
actually litigated. Mid-Pacific Constr. Co. v.
Semes (II), 6 FSM Intrm. 180, 185 & n. 3 (Pon. 1993).
Res
judicata does not apply when different land is involved than the previous case
and only one of the parties is the same. Dobich v. Kapriel, 6 FSM
Intrm. 199, 201 (Chk. S. Ct. Tr. 1993).
The
doctrine of res judicata is recognized in the FSM. The primary reason for
its value is repose. The general rule is that a final decision on the
"merits" of a claim bars a subsequent action on that same claim or any part
thereof, including issues which were not but could have been raised as part of
the claim. A plaintiff must raise his entire "claim" in one proceeding.
"Claim" is defined to cover all the claimant's rights against the particular
defendant with respect to all or any part of the transaction, or series of
connected transactions, out of which the action arose. Maruwa Shokai Guam, Inc. v.
Pyung Hwa 31, 6 FSM Intrm. 238, 241 (Pon. 1993).
A
plaintiff who has previously litigated and lost his claim to a legal interest in
a certain property is collaterally estopped from claiming damages as a result of
loss of ownership or possession of land because under principle of collateral
estoppel, a cause of action which could have been litigated in course of the
original case between same parties is treated as litigated and decided with the
former cause of action. Nahnken of
Nett v. United States (III), 6 FSM Intrm. 508, 516 (Pon.
1994).
In some
cases failure to join an indispensable party may subject a judgment to
collateral attack, but failure to join a necessary party will not. A
necessary party is one who has an identifiable interest in the action and should
normally be made a party to the lawsuit, but whose interests are separable from
the rest of the parties or whose presence cannot be obtained; whereas an
indispensable party is one to whom any judgment, if effective, would necessarily
affect his interest, or would, if his interest is eliminated, constitute
unreasonable, inequitable, or impractical relief. Nahnken of Nett v. United
States (III), 6 FSM Intrm. 508, 517 (Pon. 1994).
Where
land is not public land and where Land Commission and TT High Court had
jurisdiction to adjudicate land claims even over public lands because authorized
adjudicatory body for public lands had not yet been created the TT High Court's
land adjudication will have res judicata effect. Nahnken of Nett v. United
States (III), 6 FSM Intrm. 508, 518 (Pon. 1994).
Only
truly exceptional cases warrant an exception to normal presumption of res
judicata, and such exceptions are to be confined within narrow limits.
Where there is no evidence a TT High Court judgment was obtained unfairly
or worked a serious injustice an FSM court cannot grant relief from it. Nahnken of Nett v. United
States (III), 6 FSM Intrm. 508, 519 (Pon. 1994).
FSM
courts are not bound to follow precedents or reasoning of TT High Court in
deciding cases, but must respect resolution or outcome of a case as between
parties and subject matter of particular action adjudicated absent
constitutional defect or obvious injustice such as a plain usurpation of power.
Nahnken of Nett v. United
States (III), 6 FSM Intrm. 508, 519-20 (Pon. 1994).
Where a
party had imputed and actual notice of the dimensions of the land in dispute in
a previous litigation the same party cannot later attack the judgment for either
vagueness of description or lack of notice. Nahnken of Nett v. United
States (III), 6 FSM Intrm. 508, 520 (Pon. 1994).
Courts
stand ready to assist litigants with claims that are well-grounded in law and
diligently brought. At the same time courts must strive to ensure that
final judgments fairly rendered are upheld, so that all interested parties may
know when an issue has been justly concluded. Parties are entitled to rely
on conclusiveness of prior decisions. Nahnken of Nett v. United
States (III), 6 FSM Intrm. 508, 529 (Pon. 1994).
For a
matter to be considered adjudged so that doctrine of res judicata is applicable,
there must be an existing, final judgment that has been decided on the merits
without fraud or collusion by a court or tribunal of competent jurisdiction.
The doctrine bars any further litigation of same issues between the same
parties or anyone claiming under those parties. Ungeni v. Fredrick, 6 FSM
Intrm. 529, 531 (Chk. S. Ct. App. 1994).
The
decisions of the Land Commission are not final judgments for purposes of res
judicata until after the time for appeal from a determination of ownership has
expired without an appeal or after a properly taken appeal has been determined.
Once the trial court granted a trial de novo on the question of ownership
the Land Commission's determination of ownership ceased to exist for purposes of
res judicata. Ungeni v.
Fredrick, 6 FSM Intrm. 529, 531 (Chk. S. Ct. App. 1994).
Service
Determination of whether an individual is a managing or
general agent for purposes of FSM Civil Rule 4(d)(3) is made on the basis of
whether person served can fairly be expected to know what to do with the papers
so that the organization will have notice of the filing of the action. A
person of authority and responsibility in an organization's operation is a
managing or general agent for purposes of the rule. Luda v. Maeda Road Constr.
Co., 2 FSM Intrm. 107, 109 (Pon. 1985).
The
acts of hand-delivering a subpoena to a deponent, reading its relevant portions
in English and translating it into Pohnpeian, informing the deponent of the date
time and location of his appearance, and stating that the order was signed by
the court satisfy the requirement of Rule 45(c) of the FSM Rules of Civil
Procedure that reasonable attempts be made to explain the subpoena to the person
to be served. Alfons v.
FSM, 5 FSM Intrm. 402, 405 (App. 1992).
The
purpose of the rules addressing process and service of process in civil cases is
to assure that a defendant receives sufficient notice of all causes of action
that are filed against him and thus has a fair and adequate opportunity to
defend. Where a plaintiff fails to properly serve a defendant, the court
does not have jurisdiction over that defendant, and the case may not proceed,
but will be dismissed without prejudice. Berman v. Santos, 6 FSM Intrm.
532, 534 (Pon. 1994).
Where a
state official was sued in his individual capacity and service of the complaint
and summons was made on the governor's office and the state attorney general it
is not good service because service upon an individual is made by delivery to
the individual personally or by leaving copies at the individual's dwelling
house or usual place of abode or of business or by delivery to an agent
authorized to receive service of process. Berman v. Santos, 6 FSM Intrm.
532, 534 (Pon. 1994).
Although the civil rules do not provide for a specific
method of service upon a state officer in his official capacity, service upon a
state officer in his official capacity requires that he receive notice of the
suit. Berman v. Santos, 6 FSM Intrm.
532, 534-35 & nn. 3, 4 (Pon. 1994).
Proof
of service should be made to the court promptly and in any event within the time
during which the person served must respond to the process. Berman v. Santos, 6 FSM Intrm.
532, 535 (Pon. 1994).
Summary Judgment
A
motion for summary judgment under Rule 56 may be granted only if the moving
party shows that there is no genuine issue as to any material fact and that it
is entitled to judgment as a matter of law. Manahane v. FSM, 1 FSM Intrm.
161, 164 (Pon. 1982).
Under
Rule 56 of the FSM Rules of Civil Procedure, a summary judgment shall be
rendered only if the pleadings, depositions, answers, interrogatories, and
admissions on files together with the affidavits, if any, show that there is no
genuine issue as to the material facts and that the moving party is entitled to
a judgment as a matter of law. FSM v.
Ponape Builders Constr. Inc., 2 FSM Intrm. 48, 52 (Pon.
1985).
Rule 56
of FSM Rules of Civil Procedure is drawn from U.S. Federal court rules.
The court therefore may look to interpretations of Rule 56 of the U.S.
Federal Rules of Civil Procedure for guidance in seeking proper interpretations
of the FSM rule. FSM v.
Ponape Builders Constr. Inc, 2 FSM Intrm. 48, 52 (Pon.
1985).
In
considering a motion for summary judgment under Rule 56 of the FSM Rules of
Civil Procedure, the facts and inferences to be drawn therefrom, must be viewed
by the court in the light most favorable to the party opposing the motion for
summary judgment. FSM v.
Ponape Builders Constr. Inc, 2 FSM Intrm. 48, 52 (Pon.
1985).
Where
there is no genuine issue of any material fact and the plaintiffs are entitled
to judgment as a matter of law, summary judgment may be granted. Wainit v. Truk (II), 2 FSM
Intrm. 86, 87 (Truk 1985).
Where
the nonmoving party admits allegations contained in the motion for summary
judgment and there is nothing in the nonmoving party's answer or its response to
the motion that suggests any factual issue in dispute, the moving party is
entitled to summary judgment on those uncontested allegations. FSM Dev. Bank v. Rodriguez
Corp., 2 FSM Intrm. 128, 130 (Pon. 1985).
When a
party to a civil action seeks summary judgment on the question of liability, it
must initiate the inquiry even as to affirmative defenses. The moving
party has the burden of clearly establishing the lack of any triable issue of
fact and this burden extends to affirmative defenses as well as to the moving
party's own positive allegations. FSM Dev. Bank v. Rodriguez
Corp., 2 FSM Intrm. 128, 130 (Pon. 1985).
When a
party moves for summary judgment on an affirmative defense, putting forward
arguments and evidence indicating that there is no material fact at issue and
that the defense is insufficient as a matter of law, the opposing party must
produce some evidence to rebut the moving party's evidence or the moving party
is entitled to partial summary judgment. FSM Dev. Bank v. Rodriguez
Corp., 2 FSM Intrm. 128, 130 (Pon. 1985).
Where
the party moving for partial summary judgment has done nothing to show that a
factual basis for the opposing party's affirmative defenses is lacking or that
the defenses are insufficient as a matter of law, the defenses remain at issue
and the moving party is not entitled to partial summary judgment. FSM Dev. Bank v. Rodriguez
Corp., 2 FSM Intrm. 128, 131 (Pon. 1985).
Facts
and inferences are to be viewed in the light most favorable to the party against
whom summary judgment is sought and the motion may then be granted only if it is
clear that there is no genuine issue of material fact and the moving party must
prevail as a matter of law. Bank of
Guam v. Island Hardware, Inc., 2 FSM Intrm. 281, 284 (Pon.
1986).
A
summary judgment may be granted for a state named as defendant in an act
asserting that the state is liable for negligent preparation of a survey when it
is clear from the pleadings and record that the state did not exist when the
survey was prepared, and plaintiff offers no theory under which the state could
be liable and the pleadings, depositions, answers, interrogations, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue of material fact and that the moving party is entitled to judgment
as a matter of law. Salik v. U
Corp. (I), 3 FSM Intrm. 404, 407 (Pon. 1988).
Conflicting affidavits show that circumstances
surrounding execution of a document allegedly reflecting plaintiffs acceptance
of a settlement and her release of defendant and others from liability for death
of her late husband are not sufficiently clear to permit summary judgment either
as to the efficacy of that document or as to the application to plaintiff's
claims of the statute of limitations found at 6 FSMC 503(2). Sarapio v. Maeda Road Constr.
Co., 3 FSM Intrm. 463, 465, (Pon. 1988).
Where
the party moving for summary judgment makes out a prima facie case which, if
uncontroverted at trial, would entitle it to a directed verdict on the issue,
then the burden shifts to the nonmoving party to offer some competent evidence
that could be admitted at trial showing that there is a genuine issue of
material fact. Federated
Shipping Co. v. Ponape Transfer & Storage Co., 4 FSM Intrm. 3, 11 (Pon.
1989).
In
considering a motion for summary judgment, the court is required to view facts
and draw inferences in a light as favorable to the party against whom the
judgment is sought as may reasonably be done and the motion may then only be
granted if it is clear that there is no genuine issue of material fact and that
the moving party must prevail as a matter of law. Damarlane v. Pohnpei Transp.
Auth., 5 FSM Intrm. 1, 3 (Pon. 1991).
Where
nat'l gov't, in previous appearances and filings, stated that no valid
earthmoving permit was in effect, burden is on nat'l gov't at a motion for
summary judgment to establish that there was a valid delegation of permit
granting authority by nat'l gov't to state officials. Damarlane v. Pohnpei Transp.
Auth., 5 FSM Intrm. 1, 7 (Pon. 1991).
Where a
defendant has not filed a response to a motion for summary judgment within the
ten days provided by FSM Civil Rule 6(d), the defendant is deemed to have
consented to the granting of the motion and the court may decline to hear oral
argument. Actouka v. Kolonia Town, 5 FSM
Intrm. 121, 123 (Pon. 1991).
In a
motion for summary judgment the moving party has the initial burden of showing
that there are no triable issues of fact. Once the moving party has done
this the burden then shifts to the nonmoving party to show that there is a
triable issue. The nonmoving party must show that there is enough evidence
supporting his position to justify a decision upholding his claim by a
reasonable trier of fact. Alik v.
Kosrae Hotel Corp., 5 FSM Intrm. 294, 295 (Kos. 1992).
A
motion for summary judgment must be denied unless the court finds there is no
genuine dispute as to material facts, viewing the facts in the light most
favorable to the nonmoving party, and that the moving party is entitled to
judgment as a matter of law. Tosie v.
Healy-Tibbets Builders, Inc., 5 FSM Intrm. 358, 360 (Kos.
1992).
Without
supporting affidavits the non-moving party cannot rely on inferences culled from
the record to raise inferences as to the existence of genuine issues of material
fact unless the non-movant has shown affidavits are unavailable. Maruwa Shokai (Guam), Inc. v.
Pyung Hwa 31, 6 FSM Intrm. 1, 4 (Pon. 1993).
When a
party's motion for summary judgment has been denied as a matter of law and it
appears the nonmoving party is entitled to judgment as a matter of law the court
may grant summary judgment to the nonmoving party in the absence of a cross
motion for summary judgment if the original movant has had an adequate
opportunity to show that there is a genuine issue and that his nonmoving
opponent is not entitled to judgment as a matter of law. Truk Continental Hotel, Inc.
v. Chuuk, 6 FSM Intrm. 310, 311 (Chk. 1994).
Normally a Rule 12(c) motion for judgment on the pleadings
is granted or denied upon the entire complaint, and the rule does not provide
for partial judgment as in Rule 56(d) summary judgment, but where the briefing
was exhaustive, full argument made, and such a judgment promotes an expeditious
disposition of matters placed before the court, partial judgment may be granted.
Damarlane v. United States, 6
FSM Intrm. 357, 359 (Pon. 1994).
A
motion for summary judgment may be granted only if it is clear that there is no
genuine issue of material fact, viewing the facts, and any inferences therefrom,
in the light most favorable to the party against whom summary judgment is
sought, and that the moving party must prevail as a matter of law. When
the only issues to be decided in a case are issues of law, summary judgment is
appropriate. Etscheit
v. Adams, 6 FSM Intrm. 365, 373 (Pon. 1994).
The
issue of whether the rule of primogeniture that appeared on German standard form
deeds applied to land not held under one of those deeds is a question of law
that may be decided by he court at the summary judgment stage even if the
question is seen as a determination of foreign law. Etscheit v. Adams, 6 FSM
Intrm. 365, 373 (Pon. 1994).
Where a
party has not raised a material issue regarding the one factual question that
might bear on the applicability of the rule of primogeniture, it is appropriate
for the court to decide the rule's applicability at the summary judgment stage.
Etscheit v. Adams, 6 FSM
Intrm. 365, 374 (Pon. 1994).
A
motion to dismiss is not to be granted unless it appears to a certainty that the
non-moving party is entitled to no relief under any state of facts which could
be proved in support of the claim, and if on the motion to dismiss matters
outside the pleading are presented to and not excluded by the court, the motion
shall then be treated as one for summary judgment. Etscheit v. Adams, 6 FSM
Intrm. 365, 386 (Pon. 1994).
Where
both the plaintiffs and defendant claim that the other party is liable and
dispute the amounts, viewing the plaintiffs' motion for summary judgment in the
light most favorable to the defendant, genuine issues of triable material fact
remain precluding summary judgment. House of
Travel v. Neth, 6 FSM Intrm. 402, 403 (Pon. 1994).
A
defendant's mere denial that the calendar was used for advertising purposes does
not "set forth specific facts to show that [this] is a genuine issue for trial"
as an adverse party must do when faced with a motion for summary judgment.
Nethon v. Mobil Oil
Micronesia, Inc., 6 FSM Intrm. 451, 459 (Chk. 1994).
A court
must deny a motion for summary judgment unless it finds there is no genuine
issue as to any material fact and the moving party is entitled to judgment as a
matter of law. The court must view the facts presented and inferences made
in the light most favorable to the nonmoving party. The burden of showing
a lack of triable issues of fact belongs to the moving party. Adams v. Etscheit, 6 FSM
Intrm. 580, 582 (App. 1994).
Where
the facts lead to differing reasonable inferences, thus establishing a genuine
issue of fact, summary judgment is not available. Adams v. Etscheit, 6 FSM
Intrm. 580, 583 (App. 1994).
Because
conditions precedent are disfavored at law and require plain and unambiguous
language to establish, when differing inferences create an issue of fact,
summary judgment that a condition precedent exists is inappropriate. Adams v. Etscheit, 6 FSM
Intrm. 580, 584 (App. 1994).
Whether
a proposed boundary line on a map is insufficiently definite and certain to be
located on the ground is a material fact genuinely at issue, precluding summary
judgment. Adams v. Etscheit, 6 FSM
Intrm. 580, 584 (App. 1994).
Where
resolution of legal questions raised by a summary judgment motion will not
perceptibly shorten trial, and a determination at trial of fact issues may
eliminate need for deciding legal questions which the motion raises, a court may
exercise its discretion to reserve judgment on the motion until after trial.
This exercise of discretion is even more appropriate where legal issues
raised involve constitutional adjudication because unnecessary constitutional
adjudication is to be avoided. Pohnpei v.
Kailis, 6 FSM Intrm. 619, 620 (Pon. 1994).
Venue
In
litigation brought by a mother seeking child support payments from the father,
the court will not grant the defendant-father's motion to change the venue to
the FSM state in which he now resides from the FSM state in which: 1) the
mother initiated the litigation; 2) the couple was married and resided together;
3) their children were born and have always lived; and 4) the mother still
resides. Pernet v. Aflague, 4 FSM
Intrm. 222, 224 (Pon. 1990).
(d) govern the
transfer of cases between state and national courts;
(e) govern the admission
to practice and discipline of attorneys and the retirement of judges;
and
Case annotations:
Purpose of Rule 4.2 of Model Rules of Professional Conduct as it applies
to organizations is not to pull a veil of partial confidentiality around facts,
or even people who have knowledge of matter in litigation by virtue of their
close relationship with a party, but to protect against intrusions by other
attorneys upon an existing attorney-client relationship. Panuelo v. Pohnpei (II), 2 FSM
Intrm. 225, 232 (Pon. 1986).
Prohibition in Rule 4.2 of Model Rules of Professional
Conduct against communications with a client organization represented by another
attorney applies only to communications with an individual whose interests at
the time of the proposed communication are so linked and aligned with the
organization that one may be considered the alter ego of the other concerning
the matter in representation. Panuelo v.
Pohnpei (II), 2 FSM Intrm. 225, 232 (Pon. 1986).
The
comment to Rule 4.2 of the Model Rules of Professional Conduct was written with
the understanding or assumption that it could only affect people who, at the
time of the proposed communication, have a working relationship with the
organization. Panuelo v.
Pohnpei (II), 2 FSM Intrm. 225, 233 (Pon. 1986).
An
attorney's professional activities are individually subject to regulation by the
judiciary, not by the administrators of the Foreign Investment Act. Michelsen v. FSM, 3 FSM Intrm.
416, 427 (Pon. 1988).
The
Truk Attorney General represents the gov't in legal actions and is given the
statutory authority pursuant to TSL 5-32 to conduct and control the proceedings
on behalf of the gov't and, in absence of explicit legislative or constitutional
expression to the contrary, possesses complete dominion over litigation
including power to settle the case in which he properly appears in the interest
of the state. Truk v.
Robi, 3 FSM Intrm. 556, 561-63 (Truk S. Ct. App. 1988).
Truk
State Bar Rule 13(a), which adopts the Code of Professional Responsibility,
prevents conflicts of interest and appearances of impropriety by requiring that
members of the state bar conduct themselves in a manner consistent with the
American Bar Association's Code of Professional Responsibility. Nakayama v. Truk, 3 FSM Intrm.
565, 570 (Truk S. Ct. Tr. 1987).
An
attorney holding public office should avoid all conduct which might lead the
layman to conclude that the attorney is utilizing his former public position to
further his subsequent professional success in private practice. Nakayama v. Truk, 3 FSM Intrm.
565, 572 (Truk S. Ct. Tr. 1987).
Since
Congress did not give any consideration to, or make any mention of, the services
enumerated in art. XIII, § 1 of the FSM Constitution in enacting the Foreign
Investment Act, 32 FSMC 201-232, the avoidance of potential conflict with
the Constitution calls for the conclusion that Congress did not intend the
Foreign Investment Act to apply to noncitizen attorneys or to any other persons
who provide services of the kind described in art. XIII, § 1 of the
Constitution. Carlos v.
FSM, 4 FSM Intrm. 17, 30 (App. 1989).
Counsel
for a party in a civil action may not be appointed to prosecute the opposing
party for criminal contempt for violating an order in that action because the
primary focus of the private attorney is likely to be not on the public
interest, but instead upon obtaining for his or her client the benefits of the
court's order. Damarlane
v. Pohnpei Transp. Auth., 5 FSM Intrm. 62, 67 (Pon. 1991).
By
statute the practice of law is specifically included in businesses engaged in by
noncitizens requiring a foreign investment permit. 32 FSMC 203. Michelsen v. FSM, 5 FSM Intrm.
249, 254 (App. 1991).
Constitution mandates that Chief Justice by rule may govern
admission to practice of attorneys, but rule which differentiates between FSM
citizens and noncitizens inherently relates to regulation of immigration and
foreign relations which are powers expressly delegated to other two branches of
gov't. Berman v. Pohnpei, 5 FSM
Intrm. 303, 305 (Pon. 1992).
Without
a rational valid basis for rule limiting number of times an alien may take the
bar exam it will be held unconstitutional even if it would be constitutional if
the regulation were made by Congress or the President. Berman v. FSM Supreme Court
(I), 5 FSM Intrm. 364, 367 (Pon. 1992).
The
parties, not their attorneys, have ultimate responsibility to determine the
purposes to be served by legal representation. Thus, clients always have the
right, if acting in good faith, to agree to settle their own case, with or
without the consultation or approval of counsel, even when their attorneys have
failed to settle. Iriarte v.
Micronesian Developers, Inc., 6 FSM Intrm. 332, 334 & n.1 (Pon.
1994).
A judge
cannot adopt a procedure not provided for by the rules because the Constitution
grants the Chief Justice, and Congress, the power to establish rules of
procedure. FSM v. M.T. HL Achiever (II),
7 FSM Intrm. 256, 258 (Chk. 1995).
Admission to Practice
The
normal TT High Court authorization to practice before it is unlimited as to time
and covers entire Trust Territory. Limited or provisional TT High Court
authorization to practice law is not sufficient High Court "certification" to
qualify an applicant for admission to practice under Rule I(A) of FSM Supreme
Court's Rules for Admission. In re
Robert, 1 FSM Intrm. 4, 4-5 (Pon. 1981).
The
grandfather clause of Rule I of FSM Supreme Court's Rules for Admission permits
licensed or existing practitioners before the Trust Territory courts to continue
in their same capacity by shielding them from the necessity of complying with
the new licensing standards. FSM 1
Intrm. 004-013In re Robert, 1 FSM Intrm. 4, 7 (Pon. 1981).
In
seeking authorization to practice before the FSM Supreme Court, if the High
Court's authorization of the applicant to practice before it is not an
unreserved certification the applicant does not fulfill the requirements under
the FSM Supreme Court's Rule for Admission I(A), and must fulfill the conditions
required of new applicants. In re
Robert, 1 FSM Intrm. 4, 11-13 (Pon. 1981).
In
absence of express appellate division permission to appear without supervision
of an attorney, the court will require all appellate level briefs and other
documents to be signed by an attorney authorized to practice before the FSM
Supreme Court. Any appellate submission not so signed will be rejected.
Alaphonso v. FSM, 1 FSM Intrm.
209, 230 n.13 (App. 1982).
Only
attorneys admitted to practice before the FSM Supreme Court or trial counselors
supervised by an attorney admitted to practice may appear before the FSM Supreme
Court on appeals from state court cases. Kephas v. Kosrae, 3 FSM Intrm.
248, 252 (App. 1987).
Where
an attorney seeks to have another attorney disqualified on the grounds that such
other attorney was not admitted to the state bar, and the attorney seeking the
disqualification should have known that the other attorney was within an
exception to that rule, the motion to disqualify is without merit and shall be
denied. Nakayama v. Truk, 3 FSM Intrm.
565, 568-69 (Truk S. Ct. Tr. 1987).
In a
nation constitutionally committed to attempt to provide legal services for its
citizens, the mere fact that an attorney had previously sued the state, without
any suggestion that actions taken were frivolous, vexatious, or for purposes of
harassment, cannot be viewed as reasonable grounds for denying the attorney the
opportunity to practice law in that state. Carlos v. FSM, 4 FSM Intrm.
17, 24 (App. 1989).
The
Constitution places control over admission of attorneys to practice before the
nat. l courts, and regulation of the professional conduct of the attorneys, in
the Chief Justice, as the chief administrator of the nat. l judiciary. Carlos v. FSM, 4 FSM Intrm.
17, 27 (App. 1989).
The
decision whether to permit an attorney, not licensed within the FSM, to practice
before the FSM Supreme Court, in a particular case falls within the sound
discretion of the trial judge. In re
Chikamoto, 4 FSM Intrm. 245, 248 (Pon. 1990).
FSM
Admission Rule IV(A) does not provide a means for a nonresident attorney,
who has not been licensed to practice before the court and who has no reasonable
prospect of being licensed in the near future, nonetheless to be permitted to
practice before the court on a continuing basis. In re Chikamoto, 4 FSM Intrm.
245, 249 (Pon. 1990).
Congress and the President respectively have the power to
regulate immigration and conduct foreign affairs while the Chief Justice may
make rules governing the admission of attorneys. Therefore a rule of admission
that treats aliens unequally, promulgated by the Chief Justice, implicates
powers expressly delegated to other branches. Berman v. FSM Supreme Court
(I), 5 FSM Intrm. 364, 366 (Pon. 1992).
FSM Admission Rule III presumes that an
arrangement of reciprocity must already exist between the FSM Court and another
jurisdiction, in order for the rule to apply. When no such arrangement
exists, it must first be created before Rule III can be applied. In re McCaffrey, 6 FSM Intrm
20, 21 (Pon. 1993).
The
fact that the Pohnpei Supreme Court admits attorneys of FSM Bar does not alone
create a formal arrangement of reciprocity. The arrangement must be
formal, neither implied nor constructive. In re McCaffrey, 6 FSM Intrm.
20, 22 (Pon. 1993).
The FSM
Supreme Court's Chief Justice's constitutional powers to make rules governing
the attorney discipline and admission to practice is limited to the nat. l
courts. He is not authorized to govern admission to practice in state
courts. Berman v. Santos, 7 FSM Intrm.
231, 236 (Pon. 1995).
Attorney Discipline and
Sanctions
A
counsel's decision to take steps which may cause him to be late for a scheduled
court hearing, coupled with his failure to advise the court and opposing counsel
of the possibility that he might be late to the hearing, may, when followed by
failure to appear at the scheduled time, constitute an intentional obstruction
of the administration of justice within the meaning of § 119(a) of the
Judiciary Act, and may be contempt of court. 4 FSMC 119(a). In re Robert, 1 FSM Intrm.
18, 20 (Pon. 1981).
The
summary contempt power may be invoked even after some delay if it was necessary
for a transcript to be prepared to substantiate the contempt charge, or where
the contemner is an attorney and immediate contempt proceedings may result in a
mistrial. In re Iriarte (II), 1 FSM
Intrm. 255, 261 (Pon. 1983).
In new
nation in which courts have not yet established a comprehensive jurisprudence,
where an issue is one of first impression and of fundamental importance to the
new nation, the court should not lightly impose sanctions upon an official who
pushes such an issue to a final court decision, and should make some allowance
for wishful optimism in an appeal. Innocenti
v. Wainit, 2 FSM Intrm. 173, 188 (App. 1986).
The
Constitution places control over admission of attorneys to practice before the
nat. l courts, and regulation of the professional conduct of the attorneys, in
the Chief Justice, as the chief administrator of the nat. l judiciary. Carlos v. FSM, 4 FSM Intrm.
17, 27 (App. 1989).
Courts
have inherent power, and an obligation, to monitor the conduct of counsel and to
enforce compliance with procedural rules. Leeruw v. Yap, 4 FSM Intrm.
145, 150 (Yap 1989).
Under
Rule 3.7 of Model Rules of Professional Conduct, when a party's counsel believes
opposing party's attorney should be required to testify as to information which
may be prejudicial to the opposing party, it is appropriate for counsel for the
first party to move to disqualify opposing counsel from further representation
of the opposing party, but this is not only procedure which may be followed and
counsel who fails to file such a motion may not be sanctioned for his failure in
absence of harm to the opposing party or a showing of bad faith. Bank of Guam v. Sets, 5 FSM
Intrm. 29, 30 (Pon. 1991).
Where
record lacked any identifiable order directing a particular counsel to appear
before court, insofar as court's expectation was that "somebody" from Office of
the Public Defender appear, no affirmative duty to appear existed, nor did any
intentional obstruction of administration of justice occur to support lower
court's finding of contempt against counsel. In re Powell, 5 FSM Intrm.
114, 117 (App. 1991).
Where
the information desired from another party's lawyer as a witness was material
and necessary and unobtainable elsewhere and the party desiring it had not acted
in bad faith in the late service of a subpoena, a motion for sanctions may be
denied at the court's discretion. In re Island Hardware, Inc., 5
FSM Intrm. 170, 174-75 (App. 1991).
Dismissal of actions for attorney misconduct is generally
disfavored in light of judicial preference for adjudication on merits whenever
possible so as to allow parties a reasonable opportunity to present their claims
and defenses. Paul v.
Hedson, 6 FSM Intrm. 146, 147 (Pon. 1993).
Court
may sanction an attorney by its inherent authority to enforce compliance with
procedural rules whenever it is apparent that attorney has failed to abide by
such rules without good cause. Paul v.
Hedson, 6 FSM Intrm. 146, 148 (Pon. 1993).
An
attorney who fails to make timely requests for enlargement of time to complete
discovery beyond the deadline set by court order; who has someone other than the
client sign answers to interrogatories; and who fails to serve the answers
properly on opposing counsel while filing a proof of service with the court is
sanctionable on the court's own motion. Paul v. Hedson, 6 FSM Intrm.
146, 148 (Pon. 1993).
In
light of court's policy for adjudicating matters on the merits the court may
sanction counsel for initial noncompliance with the procedural rules rather than
dismissing his client's case. Nakamura
v. Bank of Guam (I), 6 FSM Intrm. 224, 229 (App. 1993).
Rule 11
mandates a reasonable inquiry by the attorney as to whether the pleading or
motion is well grounded in fact and warranted either by current law, or,
alternatively, by a good faith argument that that is what the law ought to be.
A bad faith argument, although still sanctionable, is thus not the only
action sanctionable under this provision. A purely frivolous, good faith
argument is also sanctionable. Berman v.
Kolonia Town, 6 FSM Intrm. 433, 435 (App. 1994).
It is
an abuse of discretion to deem a motion frivolous and sanctionable when it was a
case of first impression in this jurisdiction, no contrary authority can be
cited from another jurisdiction, and no authority was cited by the trial court,
and where the appellant made a good faith argument for the extension of existing
law. Berman v. Kolonia Town, 6 FSM
Intrm. 433, 436-37 (App. 1994).
An
argument, although plainly incorrect, may be insufficiently frivolous as to
warrant sanctions under FSM Civil Rule 11. Berman v. Santos, 7 FSM Intrm.
231, 241 (Pon. 1995).
A
attorney disciplinary proceeding in state court for violations of state
disciplinary rules may not be removed to the FSM Supreme Court. Berman v. Santos, 7 FSM Intrm.
231, 241 (Pon. 1995).
Disqualification of
Counsel
Under
Rule 1.11 of Truk State Code of Professional Responsibility, a lawyer may not
represent a private client in connection with a matter in which the lawyer
participated "personally and substantially" as a public officer or employee,
unless the appropriate gov. t agency consents after consultation. Nakayama v. Truk, 3 FSM Intrm.
565, 570 (Truk S. Ct. Tr. 1987).
For
purposes of Rule 1.11, an attorney who, as a gov. t attorney, signs his name to
a lease agreement, approving the lease "as to form," is personally and
substantially involved. Nakayama
v. Truk, 3 FSM Intrm. 565, 571 (Truk S. Ct. Tr. 1987).
Where a
member of the office of the public defender has a conflict of interest, based
upon his familial relationship with the victim of the crime of which the
defendant is accused, but where he is under no traditional obligation to cause
harm to the defendant and has done nothing to make other members of the office
feel that they are under any such obligation, and where there is no showing that
the conflict would have any actual tendency to diminish the zeal of any other
members of the office, the conflict of the first counsel is not imputed to the
other members of the office. FSM v.
Edgar, 4 FSM Intrm. 249, 251 (Pon. 1990).
Although trial court may grant a public defender's motion to
withdraw as counsel pursuant to FSM Model Rule of Professional Conduct 1.7(b)
because public defender adopted the son of the victim's nephew, the trial court
may deny the same public defender's motion to relieve the entire staff of the
Public Defender's Office pursuant to Model Rule 1.10(a) because public
defender's conflict was personal and not imputed to Public Defender staff.
Office of Public Defender v.
Trial Division, 4 FSM Intrm. 252, 254 (App. 1990).
The
imputed disqualification provision of Rule 1.10(a) of the FSM Model Rules of
Professional Conduct is not a per se rule and where the other attorneys
associated with the attorney who seeks disqualification are able to give full
loyalty to the client it is proper for the court to find that the disqualifying
condition is not imputed to others. Office of the Public Defender
v. FSM Supreme Court, 4 FSM Intrm. 307, 309 (App. 1990).
Under
Rule 3.7 of the Model Rules of Professional Conduct, when a party's counsel
believes the opposing party's attorney should be required to testify as to
information which may be prejudicial to the opposing party, it is appropriate
for counsel for the first party to move to disqualify opposing counsel from
further representation of the opposing party, but this is not the only procedure
which may be followed and counsel who fails to file such a motion may not be
sanctioned for his failure in absence of harm to the opposing party or a showing
of bad faith. Bank of
Guam v. Sets, 5 FSM Intrm. 29, 30 (Pon. 1991).
Prior
representation of another party to contractual negotiations is not in and off
itself sufficient to create a conflict of interest which would invalidate the
negotiated contract unless it can be shown such representation was directly
adverse to the other client or materially limited the interests of the present
client. Billimon v. Chuuk, 5 FSM
Intrm. 130, 135 (Chk. S. Ct. Tr. 1991).
The FSM
Attorney General's Office is not disqualified in an internat. l extradition case
where the accused is the plaintiff in a civil suit against one of its members
because the Attorney General's office has no discretion in the matter. It
did not initiate nor can it influence the course of the prosecution abroad, and
the discretion of whether to extradite a citizen does not repose in the Attorney
General's Office. In re
Extradition of Jano, 6 FSM Intrm. 12, 13-14 (App. 1993).
The
rules, MRPC 1.10, for vicarious disqualification of attorneys in the same law
firm do not apply to gov. t lawyers who are governed by MRPC 1.11(c). MRPC
1.11 does not impute the disqualification of one member of a gov. t office to
the other members. In re
Extradition of Jano, 6 FSM Intrm. 26, 27 (App. 1993).
An
attorney is not disqualified from representing multiple parties against a
defendant on the grounds that he did not join as defendants former employees of
some of the plaintiffs who would be liable if the defendant is liable. Pohnpei v. Kailis, 6 FSM
Intrm. 460, 462-63 (Pon. 1994).
Fees
There
is no established market for legal services in Kosrae which could be used to
determine a reasonable hourly rate for attorneys in civil rights cases. Tolenoa v. Alokoa, 2 FSM
Intrm. 247, 254 (Kos. 1986).
Because
social and economic situation in FSM is radically different from that of U.S.,
rates for attorney's fees set by U.S. courts in connection with civil rights
actions there are of little persuasive value for a court seeking to set an
appropriate attorney's fee award in civil rights litigation within FSM.
Tolenoa v. Alokoa, 2 FSM
Intrm. 247, 255 (Kos. 1986).
Attorney's fee awards to prevailing parties in civil rights
litigation should be sufficiently high at a minimum to avoid discouraging
attorneys from taking such cases and should enable an attorney who believes that
a civil rights violation has occurred to bring a civil rights case without great
financial sacrifice. Tolenoa v.
Alokoa, 2 FSM Intrm. 247, 255 (Kos. 1986).
Despite
the fact that some of the arguments made by plaintiff in successful civil rights
litigation were rejected by the court, time devoted by counsel to these issues
may be included in the civil rights legislation attorney's fee award to the
plaintiff where all of the plaintiff's claims in the case involved a common core
of related legal theories. Tolenoa v.
Alokoa, 2 FSM Intrm. 247, 259 (Kos. 1986).
Where
an action is brought pursuant to 11 FSMC 701(3), allowing civil liability
against any person who deprives another of his constitutional rights, the court
may award reasonable attorney's fees to the prevailing party based on the
customary fee in the locality in which the case is tried. Tolenoa v. Kosrae, 3 FSM
Intrm. 167, 173 (App. 1987).
In an
action brought under 11 FSMC 701(1) forbidding any person from depriving another
of his civil rights, where it is shown that the attorney for the prevailing
party customarily charges attorney's fees of $100.00 per hour for legal services
in the community in which the case is brought, and when this is at or near the
hourly fee rate charged by other attorneys in the locality, the court may award
the prevailing party an attorney's fee based upon the $100.00 hourly rate.
Tolenoa v. Kosrae, 3 FSM
Intrm. 167, 173 (App. 1987).
Forced
disclosure of arrangements for payment of attorney's fees intrudes, in some
degree, upon the attorney-client relationship and can be an "annoyance" within
the meaning of the FSM Civil Rule 26(c) provisions concerning protective orders.
Mailo v. Twum-Barimah, 3 FSM
Intrm. 179, 181 (Pon. 1987).
Unless
the questioning party is able to show some basis for believing there may be a
relationship between an attorney's fee and the subject matter of the pending
action, objections to efforts to discover the attorney's fee arrangement may be
upheld. Mailo v. Twum-Barimah, 3 FSM
Intrm. 179, 181 (Pon. 1987).
As a
general rule, attorney's fees will be awarded as an element of costs only if it
is shown that such fees were traceable to unreasonable or vexatious actions of
the opposing party, but where the basic litigation flows from a reasonable
difference of interpretation of a lease, the court is disinclined to attempt to
sort out or isolate particular aspects of one claim or another of the parties
and to earmark attorney's fees awards for those specific aspects. Salik v. U Corp., 4 FSM Intrm.
48, 49-50 (Pon. 1989).
The
clerk's office only has authority to grant default judgments for a sum certain
or for a sum which can by computation be made certain. Any award of
attorney's fees must be based upon a judicial finding and thus is not for a sum
certain and cannot be granted by the clerk. Bank of the FSM v. Bartolome,
4 FSM Intrm. 182, 184 (Pon. 1990).
FSM
Supreme Court will consider an unambiguous provision in a promissory note for
payment of reasonable attorney's fees in debt collection cases as valid in FSM.
Bank of Hawaii v. Jack, 4 FSM
Intrm. 216, 219 (Pon. 1990).
Because
agreements in promissory notes for payment of attorney's fees are essentially
indemnity clauses, they will be given effect only to the extent that expenses
and losses are actually incurred, as demonstrated by detailed supporting
documentation showing the date, work done, and amount of time spent on each
service for which a claim for compensation is made. Bank of Hawaii v. Jack, 4 FSM
Intrm. 216, 219 (Pon. 1990).
It is
necessary for each creditor to establish that attorney's fees to be charged to a
debtor pursuant to an agreement in a promissory note are reasonable in relation
to the amount of the debt as well as to the services rendered. Bank of Hawaii v. Jack, 4 FSM
Intrm. 216, 220 (Pon. 1990).
Where
attorney's fees claimed pursuant to a contractual provision are excessive or
otherwise unreasonable, it is within the equitable and discretionary power of
the court to reduce or even deny the award, despite the contractual provision.
Bank of Hawaii v. Jack, 4 FSM
Intrm. 216, 220 (Pon. 1990).
Except
in unusual circumstances, amount awarded pursuant to a stipulation for payment
of attorney's fees in debt collection cases in FSM will be limited to a
reasonable amount not in excess of 15% of the outstanding principal and
interest. Bank of Hawaii v. Jack, 4 FSM
Intrm. 216, 221 (Pon. 1990).
The
gov't does not pay twice when it violates someone's civil rights and then is
forced to pay attorney's fees. It pays only once as a violator of civil
rights. Its role as a provider of public services is distinct from its
role as a defendant in a civil case. Thus an award of costs and reasonable
attorney's fees should be made to a publicly funded legal services organization
whose client prevailed in a civil rights action. Plais v. Panuelo, 5 FSM Intrm.
319, 321 (Pon. 1992).
11 FSMC
701(3) is comprehensive and contains no suggestion that publicly funded legal
services are outside the clause or should be treated differently than other
legal services. Plais v. Panuelo, 5 FSM Intrm.
319, 320-21 (Pon. 1992).
Where a
debtor/account receivable to an insolvent corporation is liable to the
corporation's creditors the debtor cannot challenge the arrangement for
attorney's fees made between the creditors, counsel, and the court for
collection of the insolvent corporation's accounts receivable. Creditors of Mid-Pac Constr.
Co. v. Senda, 6 FSM Intrm. 140, 142 (Pon. 1993).
A
taxpayer who owes social security taxes to the gov't as employer contributions
under the FSM Social Security Act is liable for reasonable attorney's fees if
the tax delinquency is referred to an attorney for collection; however, the
court may exercise discretion in determining the reasonableness of the fees
assessed in light of the particular circumstances of the case. FSM Social Sec. Admin. v.
Mallarme, 6 FSM Intrm. 230, 232 (Pon. 1993).
Among
factors which court may consider in determining amount of attorney's fees
recoverable in an action brought under 53 FSMC 605 is nature of violation,
degree of cooperation by taxpayer, and extent to which Social Security Admin.
prevails on its claims. FSM Social
Sec. Admin. v. Mallarme, 6 FSM Intrm. 230, 232-33 (Pon.
1993).
In
collection cases, creditors must establish that attorney's fees to be charged
are reasonable in relation to the amount of debt as well as to services
rendered. Generally, plaintiff's attorney's fees in a debt collection
case, barring bad faith on defendant's part, will be limited to a
reasonable amount not to exceed 15% of outstanding principal and interest. J.C. Tenorio Enterprises, Inc.
v. Sado, 6 FSM Intrm. 430, 432 (Pon. 1994).
An FSM
court may reduce the amount of attorney's fees provided for under a foreign
judgment, where that judgment is unenforceable as against public policy to the
extent that the attorney fees in excess of 15% of debt are repugnant to
fundamental notions of what is decent and just in the FSM. J.C. Tenorio Enterprises, Inc.
v. Sado, 6 FSM Intrm. 430, 432 (Pon. 1994).
In the
absence of statutory authority there is a general presumption against attorney's
fees awards, and they should not be awarded as standard practice. Bank of Guam v. Nukuto, 6 FSM
Intrm. 615, 617 (Chk. 1994).
Where
the defendant has breached her fiduciary duty, and converted to her own personal
use funds of others, has made no claim of right to any of the funds or offered
any defense, and blame thus lies wholly with the defendant, the plaintiff will
be allowed to recover its attorney's fees in order to make the victim whole.
This is a narrowly drawn exception to the general rule parties will bear
their own attorney's fees. Bank of
Guam v. Nukuto, 6 FSM Intrm. 615, 617-18 (Chk. 1994).
(f) otherwise provide for
the administration of the national judiciary. Judicial rules may be
amended by statute.
Case annotations: The
FSM Supreme Court has broad rule-making powers under the Constitution. FSM
Const., art. XI, § 9. FSM v.
Albert, 1 FSM Intrm. 14, 17 (Pon. 1981).
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, 6 FSM Intrm. 293, 297 (App. 1993).
A chief
justice's actions in reviewing an attorney's application for admission is a
judicial function that is entitled to absolute immunity from suit for damages.
Berman v. Santos, 7 FSM Intrm.
231, 240 (Pon. 1995).
Section 10. The
Congress shall contribute to the financial support of state judicial systems and
may provide other assistance.
Section 11. Court
decisions shall be consistent with this Constitution, Micronesian customs and
traditions, and the social and geographical configuration of Micronesia.
In rendering a decision, a court shall consult and apply sources of the
Federated States of Micronesia.
The
original language of art. XI, § 11 was as follows:
"Section 11. Court decisions shall be consistent
with this Constitution, Micronesian customs and traditions, and the social and
geographical configuration of Micronesia."
Case
annotations prior to the effective date of the constitutional amendment
interpret art. XI, § 11 as originally worded.
Case annotations: FSM
Supreme Court must remain sensitive to unique circumstances of the FSM and may
not slavishly follow interpretations of similar language by United States, Trust
Territory, or other tribunals in different contexts. Lonno v. Trust Territory (I),
1 FSM Intrm. 53, 69 n.11 (Kos. 1982).
Because
FSM Constitution has drawn upon numerous concepts established in U.S.
Constitution, interpretations of U.S. Constitution, as of 1978 when Constitution
was ratified by plebiscite, are pertinent to determining meaning of particular
provisions in FSM Constitution. To the extent that the FSM clearly
patterned upon the U.S. Constitution, the reasonable expectation of the framers
would be that the words of the FSM Constitution would have substantially the
effect those same words had been given in the U.S. Constitution as of the times
that the convention was acting, or when the ratifying vote occurred. Lonno v. Trust Territory (I),
1 FSM Intrm. 53, 69-70 (Kos. 1982).
Decisions of courts of the Trust Territory may be useful
source of guidance in determining meaning of particular provisions within
Constitution. The framers were working against background of legal
concepts recognized and applied by TT High Court and may have been guided by
those interpretations in selecting or rejecting certain provisions. Lonno v. Trust Territory (I),
1 FSM Intrm. 53, 71 (Kos. 1982).
FSM
Supreme Court may look to law of other nations, especially other nations of
Pacific community, to determine whether approaches employed there may prove
useful in determining meaning of particular provisions within Constitution.
Lonno v. Trust Territory (I),
1 FSM Intrm. 53, 71 (Kos. 1982).
Analysis of Constitution must start with words of
constitutional provision. If these words are clear and permit only one
possible result, the court should go no further. FSM v. Tipen, 1 FSM Intrm.
79, 82 (Pon. 1982).
Where
words of a constitutional provision are not conclusive as to its meaning, next
step in determining intent of framers is to review Journal of the Micronesian
Con Con to locate any discussion in convention about the provision. FSM v. Tipen, 1 FSM Intrm.
79, 82 (Pon. 1982).
If
doubt as to meaning of constitutional provision still remains after careful
consideration of language and constitutional history, the court should proceed
to other sources for assistance. These include interpretations of similar
language in U.S. Constitution, decisions of TT High Court, generally held
notions of basic justice within internat. l community, and consideration of law
of other nations, especially others within the Pacific community. FSM v. Tipen, 1 FSM Intrm.
79, 83 (Pon. 1982).
FSM
Supreme Court can and should consider decisions and reasoning of U.S. courts and
other jurisdictions, including the TT courts, in arriving at its own decisions.
It is not, however, bound by those decisions and must not fall into the
error of adopting reasoning of those decisions without independently considering
suitability of that reasoning for FSM. Alaphonso v. FSM, 1 FSM Intrm.
209, 212-13 (App. 1982).
Framers
of FSM Constitution drew upon U.S. Constitution and it may be presumed
that phrases so borrowed were intended to have same meaning given to them by
U.S. Supreme Court. Jonas v.
FSM, 1 FSM Intrm. 322, 327 n. 1 (App. 1983).
Similarities of FSM and U.S. Constitutions mandate that FSM
Supreme Court, in attempting to determine its role under FSM Constitution, will
give serious consideration to U.S. constitutional analysis at time of
Micronesian Con Con. Suldan v.
FSM (II), 1 FSM Intrm. 339, 345 (Pon. 1983).
By
using U.S. Constitution as blueprint, the framers created a presumption that
they were adopting such a fundamental American Constitutional principle as
judicial review, found to be inherent in the language and very idea of the U.S.
Constitution. Suldan v.
FSM (II), 1 FSM Intrm. 339, 348 (Pon. 1983).
A
legitimate method for determining the meaning of a constitution is to trace the
language to its source. Where language in the FSM Constitution and the
U.S. Constitution is similar, it is appropriate to look to interpretations by
U.S. courts, especially those in existence at time of Micronesian Con Con, as
guide to intended meaning of words employed in FSM Constitution. Ponape Chamber of Commerce v.
Nett, 1 FSM Intrm. 389, 394 (Pon. 1984).
FSM
Supreme Court may look to decisions under U.S. Constitution for guidance in
determining the scope of jurisdiction since jurisdictional language of FSM
Constitution is similar to that of U.S.. Etpison v. Perman, 1 FSM
Intrm. 405, 414 (Pon. 1984).
United
States constitutional law at time of Micronesian Con Con furnishes guidance as
to intended scope of FSM Constitution's double jeopardy clause. Laion v. FSM, 1 FSM Intrm.
503, 523 (App. 1984).
1 FSMC
203, with its sweeping mandate that the Restatements and other common law rules
as applied in U.S. be the "rules of decision," would lure the courts in a
direction other than that illuminated by the Constitution's Judicial Guidance
Provisions, FSM Const. art. XI, § 11, which identifies as the guiding star, not
the Restatement or decisions of U.S. courts concerning common law, but the
fundamental principle that decisions must be "consistent" with the
"Constitution, Micronesian custom and tradition, and the social and geographical
configuration of Micronesia." Rauzi v.
FSM, 2 FSM Intrm. 8, 14 (Pon. 1985).
Where
framers of FSM Constitution have borrowed phrases from U.S. Constitution for
guidance, it may be presumed that those phrases were intended to have same
meaning given to them by U.S. Supreme Court. Tammow v. FSM, 2 FSM Intrm.
53, 56-57 (App. 1985).
Interpretative efforts for a clause in the FSM Constitution
which has no counterpart in the U.S. Constitution must begin with recognition
that such a clause presumably reflects a conscious effort by framers to select a
road other than that paved by the U.S. Constitution. The original focus must be
on the language of the clause. If the language is inconclusive the
tentative conclusion may be tested against the journals of the Micronesian Con
Con and historical background against which the clause was adopted. Tammow v. FSM, 2 FSM Intrm.
53, 57 (App. 1985).
Interpretations of the FSM Constitution which strip
constitutional clauses of substance and effect run against the norms of
constitutional interpretation and are greatly disfavored. Tammow v. FSM, 2 FSM Intrm.
53, 57 (App. 1985).
Departure from the form of the U.S. Constitution reveals an
intention by the framers of the FSM Constitution to depart from the substance as
well, so far as major crimes are concerned. Tammow v. FSM, 2 FSM Intrm.
53, 58 (App. 1985).
General
principles gleaned from entire constitution and constitutional history may not
be employed to defeat clear meaning of individual constitutional clause.
Tammow v. FSM, 2 FSM Intrm.
53, 59 (App. 1985).
Interpretations which strip clauses of substance and effect
run against the norms of interpretation and are greatly disfavored. FSM v. George, 2 FSM Intrm.
88, 94 (Kos. 1985).
Though
words used in art. XI, § 6 of FSM Constitution, including case or dispute
requirements, are based on similar case and controversy provisions in art. III
of U.S. Constitution, courts within FSM are not to consider themselves bound by
details and minute points of decisions of U.S. courts attempting to ferret out
the precise meaning of art. III. Aisek v.
FSM Foreign Investment Bd., 2 FSM Intrm. 95, 98 (Pon. 1985).
Many
provisions of this Constitution are derived from the U.S. Constitution and the
framers intended that interpretation of the words adopted would be influenced by
U.S. decisions in existence when this Constitution was adopted in October 1975
and ratified on July 12, 1978. Yet the framers also surely intended that courts
here would not place undue importance on decisions of U.S. courts but would
employ words and concepts used in U.S. Constitution to develop jurisprudence
appropriate and applicable to circumstances of FSM. Aisek v. FSM Foreign
Investment Bd., 2 FSM Intrm. 95, 98 (Pon. 1985).
Constitutional interpretation must start and end with the
words of the provision when the words themselves plainly and unmistakably
provide the answer to the issue posed. The court may not look to
constitutional history nor to U.S. interpretations of similar constitutional
language in this circumstance. Ponape
Federation of Coop. Ass'ns v. FSM, 2 FSM Intrm. 124, 127 (Pon.
1985).
Common
law decisions of United States are an appropriate source of guidance for this
Court for contract and tort issues unresolved by statutes, decisions of
constitutional courts here, or custom and tradition within the FSM. Review
of decisions of courts of U.S., and any other jurisdictions, must proceed
however against background of "pertinent aspects of Micronesian society and
culture." Semens v. Continental Air
Lines, Inc.(I), 2 FSM Intrm. 131, 140 (Pon. 1985).
Where
business activities which gave rise to the lawsuit are not of a local or
traditional nature, and the work setting and the work itself are of a markedly
nonlocal, internat. l character, the Court need not conduct an intense search
for applicable customary laws and traditional rules when none have been brought
to its attention by the parties. Semens v. Continental Air
Lines, Inc.(I), 2 FSM Intrm. 131, 140 (Pon. 1985).
A
message of the Judicial Guidance Clause is that a court, when interpreting a
contract, may not simply assume that reasonably intelligent Micronesians will
perceive the same meaning as would reasonably intelligent Americans.
Courts may not blind themselves to pertinent aspects of Micronesian
society, such as less facility in the English language, less exposure to
business concepts, and paucity of legal resources, which might cause a
reasonably intelligent Micronesian to perceive a meaning differently than would
a person from some other nation. Semens v. Continental Air
Lines, Inc.(I), 2 FSM Intrm. 131, 149 (Pon. 1985).
Customary and traditional practices within a state should be
considered in determining whether the people of that state would expect their
state gov. t to be immune from court action. Panuelo v. Pohnpei(I), 2 FSM
Intrm. 150, 159 (Pon. 1986).
Whether
interference with the efforts of a non-FSM citizen engaged in business within
the FSM is an abuse of process is not an issue which may be resolved by
reference to traditional or customary principles. Mailo v. Twum-Barimah, 2 FSM
Intrm. 265, 268 (Pon. 1986).
Courts
may look to Journals of the Micronesian Constitutional Convention for assistance
in determining the meaning of constitutional language that does not provide an
unmistakable answer. The Journals provide no conclusion as to whether
promises of leniency by police should be regarded as having compelled a
defendant to give statements and other evidence but shows that art. IV, §
7 protection against self-incrimination was based upon fifth amendment to
the U.S. Constitution. Therefore courts within the FSM may look to U.S.
decisions to assist in determining meaning of art.IV, § 7. FSM v. Jonathan, 2 FSM Intrm.
189, 193-94 (Kos. 1986).
Differences in the language employed in parallel provisions
of the FSM and U.S. Constitutions presumably reflect a conscious effort by the
framers of the FSM Constitution to select a road other than that paved by the
U.S. Constitution. FSM Dev.
Bank v. Estate of Nanpei, 2 FSM Intrm. 217, 219 n. 1 (Pon.
1986).
Because
the Declaration of Rights is patterned after provisions of the U.S.
Constitution, and U.S. cases were relied on to guide the constitutional
convention, U.S. authority may be consulted to understand the meaning. Afituk v. FSM, 2 FSM Intrm.
260, 263 (Truk 1986).
Judicial decisions, including interpretations of rules of
civil procedure, should be consistent with the Constitution and with the
Pohnpeian concept of justice. Hadley v.
Board of Trustees, 3 FSM Intrm. 15, 16 (Pon. S. Ct. Tr.
1985).
Common
law decisions of the United States are an appropriate source of guidance for the
FSM Supreme court for contract issues unresolved by statutes, decisions of
constitutional courts or custom and tradition within the FSM. FSM v. Ocean Pearl, 3 FSM
Intrm. 87, 90-91 (Pon. 1987).
An
agreement between the FSM Nat. l Government and operators of a U.S. fishing
vessel in an attempt to terminate court proceedings, is not the kind of matter
that historically came within principles of custom and tradition. FSM v. Ocean Pearl, 3 FSM
Intrm. 87, 91 (Pon. 1987).
Exact
scope of admiralty jurisdiction is not defined in the FSM Constitution or
legislative history, but U.S. Constitution has a similar provision, so it is
reasonable to expect that words in both Constitutions have similar meaning and
effect. Weilbacher v. Kosrae, 3 FSM
Intrm. 320, 323 (Kos. S. Ct. Tr. 1988).
In
interpreting the Constitution, each provision should be interpreted against the
background of all other provisions in the Constitution, and an effort should be
made to reconcile all provisions so that none is deprived of meaning. Bank of Guam v. Semes, 3 FSM
Intrm. 370, 378 (Pon. 1988).
The
judicial guidance clause, FSM Const. art. XI, § 11, is intended to insure, among
other things, that this court will not simply accept decisions of the TT High
Court without independent analysis. FSM v. Oliver, 3 FSM Intrm.
469, 478 (Pon. 1988).
Because
the jurisdiction provisions of the FSM Constitution are substantially similar to
those of the United States but the words themselves provide no definite
interpretation and no party has pointed either to constitutional history or to
other matters, such as custom or tradition, calling for a particular
interpretation or for departure from the accepted meaning in the U.S., it is
appropriate to look to U.S. precedents for possible guidance in determining what
the framers intended in adopting the provisions that now appear in the
Constitution. Ponape
Transfer & Storage, Inc. v. Federated Shipping Co., 4 FSM Intrm. 37, 41
(Pon. 1989).
Where
the language of the FSM Constitution has been borrowed from the U.S.
Constitution, the court may look to leading U.S. cases for guidance in
interpreting that language, especially where the meaning is not self-evident
from the words themselves; in particular, U.S. constitutional law at the time of
adoption of the FSM Constitution can have special relevance in determining the
meaning of similar constitutional language here. Paul v. Celestine, 4 FSM
Intrm. 205, 208 (App. 1990).
The
judicial guidance clause prohibits a sentencing court from giving special effect
to customary beatings administered to the defendant, unless the court finds that
such recognition would be consistent with the protections guaranteed to
individuals in the Declaration of Rights. Tammed v. FSM, 4 FSM Intrm.
266, 284 (App. 1990).
When
the meaning of the words in the FSM Constitution are not self-evident and it is
apparent the words have been drawn from or are patterned upon language in the
Constitution of the U.S. or of some other jurisdiction, the Supreme Court of the
FSM may look to decisions of courts in that other jurisdiction for assistance in
discerning the appropriate meaning of the words in the FSM Constitution.
Federal Business Dev. Bank v.
S.S. Thorfinn, 4 FSM Intrm. 367, 371 (App. 1990).
The
decisions of United States courts are not binding upon the FSM Supreme Court as
to the meaning of the FSM Constitution even when the words of the FSM
Constitution plainly are based upon comparable language in the U.S.
Constitution, and the FSM Supreme Court will not accept a U.S. interpretation
which 1) was shaped by historical factors not relevant to the FSM; 2) was widely
and persuasively criticized by commentators in the U.S.; and 3) was not
specifically recognized or even alluded to by the framers of the FSM
Constitution. Federal Business Dev. Bank v.
S.S. Thorfinn, 4 FSM Intrm. 367, 371 (App. 1990).
The
judicial guidance clause, art. XI, § 11 of the Constitution, requires that in
searching for legal principles to serve the FSM, courts must first look to
sources of law and circumstances here within the FSM rather than begin with a
review of cases decided by other courts." Etscheit v. Santos, 5 FSM
Intrm. 35, 38 (App. 1991).
The
judicial guidance clause implies a requirement that courts consult the values of
the people in finding principles of law for this new nation, and the fact that
all state legislatures in the FSM, and the Congress, have enacted Judiciary Acts
adopting the Code of Judicial Conduct as the standard for judicial officials and
authorizing departures from those standards only to impose tighter standards,
suggests that courts should rely heavily on those standards in locating minimal
due process protections against biased decision-making in judicial proceedings
within the FSM. Etscheit
v. Santos, 5 FSM Intrm. 35, 38-39 (App. 1991).
In
interpreting the provision against cruel and unusual punishment in the FSM
Constitution, the court should consider the values and realities of Micronesia,
but against a background of the law concerning cruel and unusual punishment and
internat. l standards concerning human rights. Plais v. Panuelo, 5 FSM Intrm.
179, 196-97 (Pon. 1991).
State
and nat'l legislation may be useful as a means of ascertaining Micronesian
values in rendering decisions pursuant to the judicial guidance clause,
particularly when more than one legislative body in the FSM has independently
adopted similar law. Tosie v.
Healy-Tibbets Builders, Inc., 5 FSM Intrm. 358, 361 (Kos.
1992).
Art.
XI, § 11 of the FSM Constitution mandates that the court look first to
Micronesian sources of law which includes the FSM Code and rules of the
court in reaching decisions. Alfons v.
FSM, 5 FSM Intrm. 402, 404-05 (App. 1992).
Constitutional analysis always starts with the words of the
Constitution. Where the wording is inconclusive and where the wording is
unique to the FSM Constitution, then the court should look to the journals of
the Constitutional Convention and the historical background at the time the
clause was adopted for guidance. But when there is a conflict with the
language of the Constitution, then the actual wording of the Constitution
prevails. Nena v. Kosrae, 5 FSM Intrm.
417, 422 (Kos. S. Ct. Tr. 1990).
Extradition is founded upon treaties between sovereign
nations involving mutual agreements and commitments. There is no
counterpart in Micronesia custom and tradition that is applicable. In re Extradition of Jano, 6
FSM Intrm. 23, 25 (App. 1993).
Where
entitlement to customary relief has been proven and the means to execute such a
remedy are within the trial court's authority and discretion, the trial court
should as a matter of equity and constitutional duty grant the relief. Wito Clan v. United Church of
Christ, 6 FSM Intrm. 129, 133 (App. 1993).
Where
the constitutional language is inconclusive or does not provide an unmistakable
answer courts may look to the journal of the Constitutional Convention for
assistance in determining the meaning of constitutional words. Robert v. Mori, 6 FSM Intrm.
394, 397 (App. 1994).
Some
weight may be given as well to the early Congresses' understanding of
constitutional provisions given the continuity of elected representation in the
early Congresses. Robert v.
Mori, 6 FSM Intrm. 394, 399 (App. 1994).
A
litigant, in order to make arguments based on the legislative history of the
constitutional provision, must first show the ambiguity in the constitutional
provision. Only if the constitutional language is unclear or ambiguous can
a court proceed to consult the constitutional convention journals and the
historical background. Nena v.
Kosrae (III), 6 FSM Intrm. 564, 568 (App. 1994).
Where
distinctions exist between the FSM Constitution and the U.S. Constitution or
other foreign authorities, court must not hesitate to depart from foreign
precedent and develop its own body of law. Pohnpei v. MV Hai Hsiang #36
(I), 6 FSM Intrm. 594, 600 (Pon. 1994).
Analysis of constitutional issues must begin with the words
of the Constitution, and where the framers of the FSM Constitution drew upon the
U.S. Constitution it may be presumed that phrases so borrowed were intended to
have the same meaning given to them by the Supreme Court of the U.S. Luzama v. Pohnpei Enterprises
Co., 7 FSM Intrm. 40, 45 (App. 1995).
A
committee report that refers to language that is not in the Constitution and
that accompanied a committee proposal that was killed by the Con Con cannot be
relied upon to discover the real intent of the framers. At best it can
only be used to show what was not their intent. Luzama v. Pohnpei Enterprises
Co., 7 FSM Intrm. 40, 47 (App. 1995).