FSM SUPREME COURT TRIAL DIVISION
Cite as FSM v. Sipos
12 FSM Intrm. 385 (Chk. 2004)

[12 FSM Intrm. 385]

FEDERATED STATES OF MICRONESIA,
 
Plaintiff,
 
vs.
 
MICHAEL J. SIPOS,
 
Defendant.
 
CRIMINAL CASE NO. 2004-1501
 
ORDER GRANTING PETITION
 
Dennis K. Yamase
Associate Justice
 
Decided: March 15, 2004
 
APPEARANCE:
 
For the Petitioner:                        James Woodruff, Esq.
                                                      P.O. Box M
                                                      Kolonia, Pohnpei FM 96941

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HEADNOTES

Criminal Law and Procedure ) Motions
     Failure to oppose a motion is generally deemed a consent to the motion, but even if there is no opposition, the court still needs good grounds before it can grant the motion. FSM v. Sipos, 12 FSM Intrm. 385, 386 (Chk. 2004).
 
Amicus Curiae; Appellate Review
     It is not unusual for amicus curiae to appear at the appellate level. The FSM Rules of Appellate Procedure specifically provide for amicus curiae participation. FSM v. Sipos, 12 FSM Intrm. 385, 386 (Chk. 2004).
 
Amicus Curiae; Civil Procedure; Criminal Law and Procedure
     Unlike the appellate rules, neither the civil nor criminal procedure rules provide for an amicus curiae’s appearance, although the court has in the past invited amicus curiae briefs in civil cases. FSM v.

[12 FSM Intrm. 386]

Sipos, 12 FSM Intrm. 385, 387 (Chk. 2004).
 
Amicus Curiae
     Amicus curiae literally means friend of the court. An amicus is someone who is not a party to the lawsuit but who petitions the court or who is asked by the court to file a brief in the matter because that person has a strong interest in the subject matter. FSM v. Sipos, 12 FSM Intrm. 385, 387 (Chk. 2004).
 
Amicus Curiae
     An amicus curiae gives the court information on some matter of law in respect to which the court is doubtful or calls the court’s attention to a legal matter which has escaped or might escape the court’s consideration. An amicus curiae’s principal or usual function is to aid the court on questions of law. FSM v. Sipos, 12 FSM Intrm. 385, 387 (Chk. 2004).
 
Amicus Curiae
     When an amicus curiae undertakes to inform the court, he or she should act in good faith, make full disclosure on the point, and suppress nothing with the intent to deceive the court. This is true whether the amicus curiae is a neutral provider of information or legal insight or has a partisan interest. FSM v. Sipos, 12 FSM Intrm. 385, 387 (Chk. 2004).
 
Amicus Curiae
     When a criminal contempt prosecution of an attorney regarding his relationship with his client is a matter of first impression in the Federated States of Micronesia and the court concludes that an amicus curiae’s insight may benefit it in understanding the legal issues, a petition to appear as an amicus curiae will be granted. This appearance is limited to briefing legal issues. FSM v. Sipos, 12 FSM Intrm. 385, 387 (Chk. 2004).

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COURT’S OPINION

DENNIS YAMASE, Associate Justice:

     On March 4, 2004, James Woodruff, a member of the Federated States of Micronesia bar, filed his Motion to Appear as Amicus Curiae in this matter. This petition’s grounds are that Woodruff is a member of the FSM bar, the legal issues presented are important to every FSM lawyer because they involve a lawyer’s potential criminal liability when advising a client, and that in such a case a bar association would usually ask to appear as an amicus curiae but the Federated States of Micronesia lacks an organized bar.

     No response to this motion has been filed by either party. Failure to oppose a motion is generally deemed a consent to the motion. FSM Crim. R. 45(d). But even if there is no opposition, the court still needs good grounds before it can grant the motion. Cf. Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 442 (App. 1994).

     It is not unusual for amicus curiae to appear at the appellate level. The FSM Rules of Appellate Procedure specifically provide for amicus curiae participation. FSM App. R. 29. Amicus curiae have appeared in appeal cases on several occasions. See, e.g., Chuuk v. Secretary of Finance, 9 FSM Intrm. 424, 425 (App. 2000) (Congress); Senda v. Creditors of Mid-Pacific Constr. Co., 7 FSM Intrm. 664, 665 (App. 1996) (FSM and Pohnpei); Constitutional Convention 1990 v. President, 4 FSM Intrm. 320, 320-21 (App. 1990) (Congress and Kosrae); Innocenti v. Wainit, 2 FSM Intrm. 173, 177 n.2 (App.

[12 FSM Intrm. 387]

1986) (FSM).

     Unlike the appellate rules, neither the civil nor criminal procedure rules provide for an amicus curiae’s appearance. In civil cases, however, the court has in the past invited amicus curiae briefs. Twice, amicus curiae briefs were filed in trial division cases at the court’s invitation,1 Samuel v. Pryor, 5 FSM Intrm. 91, 93 n.4 (Pon. 1991)2 (FSM); Wainit v. Truk (II), 2 FSM Intrm. 86, 87 (Truk 1986), and once the functional equivalent of an amicus brief was filed in response to a court order, see McIlrath v. Amaraich, 11 FSM Intrm. 502, 506, 508 (App. 2003) (question of whether the trial court had jurisdiction to order a non-party to file an amicus brief left to another time, but noted that FSM Foreign Affairs Dep’t’s submission of its opinion by letter was compliance with order). More commonly, the trial division has requested amicus curiae briefs from entities that declined to file one. Kosrae v. Kingdom of Tonga, 9 FSM Intrm. 522, 523 (Kos. 2000) (FSM Foreign Affairs); Truk v. Hartman, 1 FSM Intrm. 174, 176 (Truk 1982) (Trust Territory and FSM); Truk v. Otokichy, 1 FSM Intrm. 127, 128 (Truk 1982) (Trust Territory). Woodruff’s request is apparently the first instance someone has petitioned the trial division to appear as an amicus curiae, instead of being invited to by the court.

     Amicus curiae literally means friend of the court. 4 Am. Jur. 2d Amicus Curiae § 1, at 320 (rev. ed. 1995). An amicus is someone who is not a party to the lawsuit but who petitions the court or who is asked by the court to file a brief in the matter because that person has a strong interest in the subject matter. Black’s Law Dictionary 83 (7th ed. 1999). An amicus curiae gives the court information on some matter of law in respect to which the court is doubtful or calls the court’s attention to a legal matter which has escaped or might escape the court’s consideration. 4 Am. Jur. 2d Amicus Curiae § 6, at 326 (rev. ed. 1995). "An amicus curiae’s principal or usual function is to aid the court on questions of law." Id. When "an amicus curiae undertakes to inform the court, he or she should act in good faith, make full disclosure on the point, and suppress nothing with the intent to deceive the court." Id. This is true whether the amicus curiae is a neutral provider of information or legal insight or has a partisan interest. Id.

     It appears that this criminal contempt prosecution of an attorney regarding his relationship with his client is a matter of first impression in the Federated States of Micronesia. The court concludes that an amicus curiae’s insight may benefit it in understanding the legal issues. The petition is granted. James Woodruff may appear as an amicus curiae. This appearance is limited to briefing legal issues.

     Defendant Michael J. Sipos has indicated (through counsel) that he intends to file motions to disqualify prosecutor Matthew W. Crabtree, to change venue, and to dismiss. These motions are to be filed by April 30, 2004. The amicus curiae may file (and serve on the parties) within the same time frame, his own legal brief on any of these legal issues. If oral argument is had on any of these motions, the amicus curiae will not be permitted to argue.

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_______________________________

Footnotes:

1.   Other trial courts have asked for or allowed amicus curiae to appear. 4 Am. Jur. 2d Amicus Curiae § 2, at 322 (rev. ed. 1995).

2.   The FSM was also an amicus curiae in Samuel v. United States, 5 FSM Intrm. 108 (Pon. 1991), but this is the same case as Samuel v. Pryor, 5 FSM Intrm. 91 (Pon. 1991).