FSM Constitution - Article 11

Section 1. The judicial power of the national government is vested in a Supreme Court and inferior courts established by statute.

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).

Where petitioners raise serious and substantial constitutional claims supported by authorities and reasoning of legal substance, the case falls within the jurisdiction of the FSM Supreme Court under art. XI, § 6(b) of the Constitution. Ponape Chamber of Commerce v. Nett, 1 FSM Intrm. 389, 391 (Pon. 1984).

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).

The Supreme Court of the FSM has the constitutional power and obligation to review legislative enactments of Congress and to set aside nat'l statutes to the extent they violate the Constitution. Constitutional Convention 1990 v. President, 4 FSM Intrm. 320, 324 (App. 1990).

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.

Case annotations: Parties cannot confer or divest a court of jurisdiction by stipulation or by assumption. Luzama v. Pohnpei Enterprises Co., 7 FSM Intrm. 40, 45 (App. 1995).

When it appears that the court lacks subject matter jurisdiction the case will be dismissed.Trance v. Penta Constr. Co., 7 FSM Intrm. 147, 148 (Chk. 1995).

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).

The FSM Development Bank is an instrumentality of the nat'l gov't and part of the nat'l gov't for the purposes of FSM Const. art. XI, § 6(a) , giving the trial division of the Supreme Court exclusive jurisdiction over cases in which the nat'l gov't is a party. FSM Dev. Bank v. Estate of Nanpei, 2 FSM Intrm. 217, 221 (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 FSM Supreme Court's grant of original and exclusive jurisdiction in admiralty and maritime cases implies the adoption of admiralty or maritime cases as of the drafting and adoption of the FSM Constitution. Federal Business Dev. Bank v. S.S. Thorfinn, 4 FSM Intrm. 57, 59 (Truk 1989).

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).

The FSM Supreme Court has jurisdiction over all cases which are maritime in nature including all maritime contracts, torts and injuries. Federal Business Dev. Bank v. S.S. Thorfinn, 4 FSM Intrm. 367, 374 (App. 1990).

The question of the enforceability of ship mortgages is a matter that falls within the maritime jurisdiction of the FSM Supreme Court underart. XI, § 6(a) of the Constitution. Federal Business Dev. Bank v. S.S. Thorfinn, 4 FSM Intrm. 367, 376 (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 framers of the Constitution made clear that the term "exclusive" in art. XI, § 6(a) of the FSM Constitution means that for the types of cases listed in that section, the trial division of the FSM Supreme Court is the only court of jurisdiction. Faw v. FSM, 6 FSM Intrm. 33, 35 (Yap 1993).

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).

A state law cannot divest the FSM Supreme Court of exclusive jurisdiction in cases arising under art. XI, § 6(a) of the FSM Constitution. Faw v. FSM, 6 FSM Intrm. 33, 36-37 (Yap 1993).

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.

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).

The Nat'l Government has exclusive jurisdiction over crimes arising under nat'l law. 11 FSMC 901. 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).

Where petitioners raise serious and substantial constitutional claims supported by authorities and reasoning of legal substance, the case falls within the jurisdiction of the FSM Supreme Court underart. XI, § 6(b) of the Constitution. Ponape Chamber of Commerce v. Nett, 1 FSM Intrm. 389, 391 (Pon. 1984).

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 (I), 2 FSM Intrm. 150, 153 (Pon. 1986).

Nat'l civil rights claims under 11 FSMC 701 furnish a jurisdictional basis for the case to be heard by the FSM Supreme Court. Panuelo v. Pohnpei (I), 2 FSM Intrm. 150, 153 (Pon. 1986).

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).

Art. XI, § 8 of the FSM constitution does not bar state courts from exercising jurisdiction over cases which arise under nat'l law within the meaning of art. XI, § 6(b). 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).

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).

When issues of nat'l law are involved there is a particularly strong presumption against full abstention from the case. Conrad v. Kolonia Town, 7 FSM Intrm. 97, 100 (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).

Extension of the presumption of abstention in certain cases to municipalities is inappropriate. 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).

The Trust Territory is not a foreign state such as to give the FSM Supreme Court diversity jurisdiction over a suit against the Trust Territory. Neimes v.Maeda Constr. Co, 1 FSM Intrm. 47, 51 (Truk 1981).

Under the present state of affairs, the Trust Territory gov. t cannot be considered a foreign state, citizen or subject thereof within the meaning of art. XI, § 6(b) of the Constitution .Lonno v. Trust Territory (I), 1 FSM Intrm. 53,74 (Kos. 1982).

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).

The Constitution places diversity jurisdiction in the Supreme Court, despite the fact that the issues involve matters within state or local, rather than nat'l, legislative powers. FSM Const. art. XI, § 6(b). In re Nahnsen, 1 FSM Intrm. 97, 102 (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).

Under art. XI, § 6(b) of the FSM Constitution, it is proper to employ the rule of pendent jurisdiction over cases involving interpretations of the Constitution or nat'l law, so that the court may resolve state or local issues involved in the same case. Ponape Chamber of Commerce v. Nett, 1 FSM Intrm. 389, 396 (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).

For purposes of diversity jurisdiction under art. XI, § 6(b) of the Constitution, a corporation is considered a foreign citizen when any of its shareholders are not citizens of the FSM. Federated Shipping Co. v. Ponape Transfer & Storage (III), 3 FSM Intrm. 256, 260 (Pon. 1987).

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).

Only nat'l courts are given jurisdiction by art. XI, § 6(b) of the Constitution and the concurrent jurisdiction referred to there is between the trial division of the FSM Supreme Court, and any other nat'l courts which may be established in the future. Bank of Guam v. Semes, 3 FSM Intrm. 370, 377 (Pon. 1988).

Lack of mention of state and local courts in FSM Constitution art. XI, § 6(b) reveals that nat'l courts are to play the primary role in handling the kinds of cases, identified in that section, but nothing in art. XI, § 6(b) may be read as absolutely preventing state courts from exercising jurisdiction over those kinds of cases. Bank of Guam v. Semes, 3 FSM Intrm. 370, 379 (Pon. 1988).

Parties to a dispute in which there is diversity have a constitutional right to invoke the jurisdiction of a nat'l court, but if all parties agree, and if state law permits, a state court may hear and decide the kinds of cases described in art. XI, § 6(b) of the Constitution. Bank of Guam v. Semes, 3 FSM Intrm. 370, 379 (Pon. 1988).

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).

Intent of framers of the Constitution was that nat. l courts would handle most types of cases described in art. XI, § 6(b) of the Constitution and nat. l courts therefore should not lightly find a waiver of right to invoke its jurisdiction. U Corp. v. Salik, 3 FSM Intrm. 389, 394 (Pon. 1988).

A party named as a defendant in state court litigation which falls within the scope of art. XI, § 6(b) of the Constitution may invoke nat'l court jurisdiction through a petition for removal and is not required to file a complaint. U Corp. v. Salik, 3 FSM Intrm. 389, 394 (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).

"Concurrent jurisdiction" as used in art. XI, § 6(b) of the FSM Constitution means concurrent jurisdiction between nat'l courts, including the trial divisions of the FSM Supreme Court and of the four state courts. Pohnpei v. Hawk, 3 FSM Intrm. 543, 554-55 (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).

A cautious, reasoned use of the doctrine of abstention is not a violation of the FSM Supreme Court's duty to exercise diversity jurisdiction, or of the litigants' constitutional rights, under art. XI, § 6(b) of the FSM Constitution. 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).

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).

The diversity jurisdiction provisions of art. XI, § 6(b) of the FSM Constitution do not apply to criminal proceedings. 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).

In a diversity of citizenship case the FSM Supreme Court will normally apply state law. Youngstrom v. Youngstrom, 5 FSM Intrm. 335, 337 (Pon. 1992).

For purposes of diversity jurisdiction a corporation is considered a foreign citizen when any of its shareholders are not FSM citizens. 7Luzama v. Pohnpei Enterprises Co., 7 FSM Intrm. 40, 44 (App. 1995).

For purposes of diversity jurisdiction a joint venture is considered a foreign citizen when the parties to it are not FSM citizens. Luzama v. Pohnpei Enterprises Co., 7 FSM Intrm. 40, 44 (App. 1995).

For purposes of diversity jurisdiction it is the citizenship of the estate administrator that is to be considered for determining citizenship of a decedent's estate. Luzama v. Pohnpei Enterprises Co., 7 FSM Intrm. 40, 44 (App. 1995).

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).

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).

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).

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).

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).

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).

Where plaintiffs seek to challenge issuance to a third party of a permit which plaintiffs reasonably allege will cause them harm, and where they allege that the actions of a nat'l senator were crucial to issuance of the permit, those plaintiffs have standing to be heard on the question of whether the senator's membership on the board is violative of the "incompatibility clause," art. IX, § 13 of the FSM Constitution. Aisek v. FSM Foreign Investment Bd., 2 FSM Intrm. 95, 101 (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 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).

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).

A leasehold interest in land is a sufficient possessory interest to give a party standing to maintain an action for trespass. In re Parcel No. 046-A-01, 6 FSM Intrm. 149, 154 (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).

Noncitizen plaintiffs have standing to sue for trespass if they have a leasehold interest in the land. Ponape Enterprises Co. v. Soumei, 6 FSM Intrm. 341, 343 (Pon. 1994).

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.

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).

Upon showing of excusable neglect or good cause, Rule 4(a)(5)permits extension of time for filing notice of appeal, upon motion made within 30 days after expiration of the 42 days prescribed in Rule 4(a)(1). Jonas v. Mobil Oil Micronesia, Inc., 2 FSM Intrm. 164, 166 (App. 1986).

Rule 26(b) provides for enlargement of time for doing most acts but explicitly excludes enlargement of time to file notice of appeal. A court can grant no relief under Rule 26 for late filing of a notice of appeal. Jonas v. Mobil Oil Micronesia, Inc., 2 FSM Intrm. 164, 166 (App. 1986).

The interest protected by having exact time limits is in preserving finality of judgments. Jonas v. Mobil Oil Micronesia, Inc., 2 FSM Intrm. 164, 166 (App. 1986).

A court has no authority to grant enlargement of time to file notice of appeal pursuant to motion filed after the maximum period of 72 days. Jonas v. Mobil Oil Micronesia, Inc., 2 FSM Intrm. 164, 166 (App. 1986).

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).

FSM Appellate Rule 26(b) gives the appellate court broad discretion to enlarge time upon a showing of good cause. Kimoul v. FSM, 4 FSM Intrm. 344, 346 (App. 1990).

Under the FSM Appellate Rule 4(a)(1), a notice of appeal must be filed within 42 days after entry of the judgment. Kimoul v. FSM, 4 FSM Intrm. 344, 346 (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).

The date of notice from the clerk that the record is ready, not the filing of the Certification of Record, triggers the running of the due date of an appellant's brief. Federated Shipping Co. v. Ponape Transfer & Storage, 5 FSM Intrm. 89, 91 (App. 1989).

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).

Conducting trials de novo and making findings of fact is normally the province of the trial court and not of the appellate division, which is generally unsuited for such inquiries. Moroni v. Secretary of Resources & Dev., 6 FSM Intrm. 137, 138 (App. 1993).

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).

The service on opposing counsel of a signed and dated copy of a brief filed with the appellate division, although not explicitly stated in FSM Appellate Rule 31(d), is a procedural requirement of the FSM Supreme Court. Nakamura v. Bank of Guam (I), 6 FSM Intrm. 224, 228 (App. 1993).

The requirement under FSM Appellate Rule 30(a) of an appendix is only waived at the court's discretion and by court order. Nakamura v. Bank of Guam (I), 6 FSM Intrm. 224, 228 (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).

Facts asserted to excuse the filing of an appellate brief within the time prescribed must be proved. 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).

A properly filed notice of appeal transfers jurisdiction from the trial court to the appellate court. Election Commissioner v. Petewon, 6 FSM Intrm. 491, 498 (Chk. S. Ct. 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).

For an interlocutory appeal, FSM Appellate Rule 5 must be read as requiring a prescribed statement from the trial court. Lonno v. Trust Territory (II), 1 FSM Intrm. 75, 77 (Kos. 1982).

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).

An appeals court has no jurisdiction over a motion for an injunction filed after final dismissal of the appeal case. Damarlane v. Pohnpei Transp. Auth. (II), 6 FSM Intrm. 167, 168 (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).

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 trial court finding of recklessness is a finding of fact which may not be set aside on appeal unless it is clearly erroneous. FSM Civ. R. 52(a)Ray v. Electrical Contracting Corp., 2 FSM Intrm. 21, 25 (App. 1985).

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).

A conviction for robbery is a finding which can only be reversed if the court's finding is clearly erroneous. Loney v. FSM, 3 FSM Intrm. 151, 155

The standard of review on appeal on the issue of the sufficiency of the evidence is very limited only findings that are clearly erroneous can be set aside. Opet v. Mobil Oil Micronesia, Inc., 3 FSM Intrm. 159, 165 (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).

Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. FSM Crim. R. 52(a). Otto v. Kosrae, 5 FSM Intrm. 218, 222 (App. 1991).

An issue raised in closing argument at trial can be properly brought before the appellate court. Otto v. Kosrae, 5 FSM Intrm. 218, 222 (App. 1991).

The standard of review on a question of the sufficiency of the evidence is whether it is clearly erroneous. Senda v. Mid-Pac Constr. Co., 5 FSM Intrm. 277, 280 (App. 1992).

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).

An issue not raised at trial cannot be introduced for the first time on appeal. Alfonso v. FSM, 5 FSM Intrm. 402, 404 (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).

Clear error in key factual findings merits setting aside conclusions of law and is one factor indicating incorrect use of discretion. Kapas v. Church of Latter Day Saints, 6 FSM Intrm. 56, 60 (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).