FSM SUPREME COURT APPELLATE DIVISION
Cite as Chuuk v. Chuuk State Supreme Court App. Div., 21 FSM R. 583 (App. 2018)
CHUUK STATE,
Petitioner,
vs.
CHUUK STATE SUPREME COURT
APPELLATE DIVISION and YUSER JESSE,
Respondents.
APPEAL CASE NO. C1-2017
ORDER ADDRESSING PETITION FOR WRIT OF PROCEDENDO
Decided: June 1, 2018
BEFORE:
Hon. Dennis K. Yamase, Chief Justice, FSM Supreme Court
Hon. Beauleen Carl-Worswick, Associate Justice, FSM Supreme Court
Hon. Larry Wentworth, Associate Justice, FSM Supreme Court
APPEARANCES:
For the Petitioner:
Sabino S. Asor, Esq.
Attorney General
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942
For the Respondent:
Mary McDonough, Esq.
(CSSC app. div.)
P.O. Box 206
Weno, Chuuk FM 96942
For the Respondent:
Jack Fritz, Esq.
(Jesse)
P.O. Box 788
Weno, Chuuk FM 96942
* * * *
The FSM Supreme Court appellate division may exercise appellate jurisdiction over the merits of a Chuuk State Supreme Court appellate division case if the appeal is from a final order or judgment. Chuuk v. Chuuk State Supreme Court App. Div., 21 FSM R. 583, 585 (App. 2018).
A writ of procedendo is a high prerogative writ of extraordinary nature that is an order from a
superior or higher court to a lower court to proceed to judgment without trying to tell the lower court what its judgment should be. It was the earliest remedy for refusal or neglect of justice by the courts, and, in many jurisdictions, the writ has become obsolete, and a writ of mandamus may be issued instead. Chuuk v. Chuuk State Supreme Court App. Div., 21 FSM R. 583, 585 (App. 2018).
A prerogative writ such as procedendo, mandamus, or prohibition can only be directed to a court or tribunal lower in rank to the one issuing the writ. Chuuk v. Chuuk State Supreme Court App. Div., 21 FSM R. 583, 586 (App. 2018).
Since the FSM Supreme Court appellate division is a court that is superior or higher in rank to the Chuuk State Supreme Court appellate division because, as authorized by the FSM Constitution, FSM Const. art. XI, § 7, and the Chuuk Constitution, Chk. Const. art. VII, § 4. The FSM Supreme Court appellate division may thus, but only in the appropriate and rare and exceptional case, issue the high prerogative writ of procedendo or mandamus directed to the Chuuk State Supreme Court appellate division. Chuuk v. Chuuk State Supreme Court App. Div., 21 FSM R. 583, 586 (App. 2018).
When the case's time delays have been excessive; when, under the Chuuk Rules of Appellate Procedure, the Chuuk State Supreme Court appellate division is prepared to consider cases on the merits promptly after briefs are filed; and when the FSM Supreme Court appellate division, although it has been dilatory, can see no reason why Chuuk State Supreme Court appellate division appeal should not be set for argument, it will, considering the possibility there might be a reason and out of deference to the Chuuk State Supreme Court appellate division, defer action for sixty days, and, if, within that sixty days, the Chuuk State Supreme Court appellate division has held oral argument on all pending matters or if that court has fixed oral argument on a date certain in the near future, it will not issue the writ of procedendo or mandamus. Chuuk v. Chuuk State Supreme Court App. Div., 21 FSM R. 583, 586 (App. 2018).
* * * *
Before us is a petition for a writ of mandamus or procedendo, which asks us to issue a high prerogative writ directed to the Chuuk State Supreme Court appellate division requiring it to proceed forward with and make a decision in Chuuk Land Management v. Jesse, CSSC Civil Appeal No. 01-2015. We conclude that it is within our authority to issue the writ and that the writ should issue.
This case involves land, which at one time was owned by the Fanimei clan, and for which at one time the Trust Territory government paid the clan rent. Later, both Shimard (a/k/a Smart) Lampson and the government claimed to have purchased the land. In February 1992, a Chuuk Land Commission registration team, after hearing, found that both alleged purchases were invalid and that the Trust Territory government had leased, not bought, the land. On January 26, 1993, this land dispute was, under somewhat murky circumstances, referred to the Chuuk State Supreme Court trial division for resolution. While the matter was pending in the state court, the son of the original lineage head sold an interest in the land to another family.
The case languished. Eventually, trial was set. On the scheduled trial date, September 9, 2013, the state's attorney requested a continuance to October 29, 2013. On that date, no one appeared for the state. Trial went forward with plaintiff Yuser Jesse (Lampson's nephew) presenting his case. On November 6, 2013, the trial court entered judgment in Jesse's favor. The state learned of the judgment when Senior Land Commissioner KM Mailo tried to verify the judgment with Chuuk State Land Management. On January 29, 2014, the state moved to set aside the judgment, but was denied. On May 30, 2014, the state moved for relief from judgment, but was denied. On August 12, 2014, the state moved to disqualify the trial judge and void the judgment because the trial judge had, when in private practice, supposedly represented the family that had bought, or tried to buy, an interest in the land after the case was referred to the state court. That was also denied.
The state appealed to the Chuuk State Supreme Court appellate division. On March 27, 2015, the appellee, Yuser Jesse, filed a motion to dismiss the appeal. The appellant, Chuuk State Land Management, filed its appellate brief on May 29, 2016. Jesse has not filed his opposing brief, although under the Chuuk appellate rules, it was due thirty days later. Jesse did file, on September 19, 2016, a motion to strike Chuuk State Land Management's brief. The Chuuk appellate division has neither ruled on the motion to dismiss nor heard argument on the motions, nor heard argument on the merits.
On June 21, 2017, the state served on respondents Chuuk appellate division and Jesse and filed in the FSM Supreme Court appellate division its Petition for Writ of Mandamus or for Writ of Procedendo and a Brief of the Appellant. The state asked that we either 1) issue a writ of mandamus dismissing appellee Jesse from the appeal and thereby either reverse the November 6, 2013 judgment or order the trial judge to recuse himself and have another judge try the case, or 2) issue a writ of procedendo requiring the Chuuk State Supreme Court appellate division to proceed with Civil Appeal No. 01-2015 in accordance with the requirements of the Chuuk appellate rules.
On June 27, 2017, the FSM Chief Justice issued an Order to Answer the Petition, in which the respondents were given until July 27, 2017, to file an answer to the petition. On June 30, 2017, Jesse filed his Motion to Dismiss for Lack of Subject Matter Jurisdiction. On July 10, 2017, the Chuuk Chief Justice designated an appellate panel for Civil Appeal Case No. 01-2015. On July 17, 2017, the Chuuk State Supreme Court filed its motion to dismiss and a motion for its attorney to appear pro hac vice.1 On July 25, 2017, Jesse and Chuuk State Supreme Court filed Respondents' Joint Answer, in which they stated that they would rely on their motions to dismiss as their forms of answer.
Nothing has transpired in Chuuk State Supreme Court appellate division Civil Appeal No. 01-2015 since then.
The respondents contend that we lack subject matter jurisdiction over this matter since we may only exercise appellate jurisdiction over a Chuuk State Supreme Court case if it is an appeal from a final order or judgment and there is no final order or judgment in Civil Appeal No. 01-2015. That is correct if we were to address, as Chuuk does ask us to, the merits of its appeal to the Chuuk State Supreme Court appellate division. Bualuay v. Rano, 9 FSM R. 548, 549 (App. 2000) (FSM Supreme Court appellate division may review a final decision entered by the Chuuk State Supreme Court appellate division); Wainit v. Weno, 9 FSM R. 160, 162 (App. 1999) (a single justice Chuuk State Supreme Court appellate order is not a final appellate decision therefore the FSM Supreme Court lacks jurisdiction to consider it). The state, however, asks, as alternative relief, that we issue a writ of procedendo.
A. Our Authority to Issue a Writ of Procedendo or Mandamus
A writ of procedendo is a high prerogative writ of extraordinary nature that is an order from a superior or higher court to a lower court to proceed to judgment without trying to tell the lower court what its judgment should be. Mori v. Hasiguchi, 16 FSM R. 382, 385 n.1 (Chk. 2009). It was the earliest remedy for refusal or neglect of justice by the courts, and, in many jurisdictions, the writ has become obsolete, and a writ of mandamus may be issued instead. Id. A prerogative writ such as procedendo, mandamus, or prohibition can only be directed to a court or tribunal lower in rank to the one issuing the writ. Berman v. FSM Supreme Court (I), 7 FSM R. 8, 10 (App. 1995); Ehsa v. FSM Dev. Bank, 19 FSM R. 253, 257 (Pon. 2014).
The FSM Supreme Court appellate division is a court that is superior or higher in rank to the Chuuk State Supreme Court appellate division because, as authorized by the FSM Constitution, FSM Const. art. XI, § 7 ("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"), the Chuuk Constitution, Chk. Const. art. VII, § 4 ("Decisions of the appellate division of the State Supreme Court may be appealed to the Supreme Court of the Federated States of Micronesia, whose decisions are final."), makes it so. Accordingly, the FSM Supreme Court appellate division may, but only in the appropriate and rare and exceptional case, issue the high prerogative writ of procedendo or mandamus directed to the Chuuk State Supreme Court appellate division.
B. Whether Writ of Procedendo or Mandamus Should Issue
The time delays in this case have been excessive. It was twenty years from the Land Commissioner's referral to the state court to trial date. It has been over three years since appellee Jesse filed his motion to dismiss the appeal. It has been about two years since Chuuk State Land Management filed its opening appellate brief. And it has been about a year since Chuuk State Land Management filed its petition in our court, and also about a year since the Chuuk State Supreme Court appellate division panel was constituted. We note that under the Chuuk Rules of Appellate Procedure that "[t]he State Court Appellate Division is prepared to consider cases on the merits promptly after briefs are filed . . . ." Chk. App. R. 31(a).
We have even been dilatory in addressing the filings in our court. We were ever hopeful that action in the Chuuk State Supreme Court appellate division would make what is before us moot. We can see no reason why Chuuk State Supreme Court appellate division Civil Appeal No. 01-2015 should not be set for argument on pending matters – the appellees' motions and the merits of the Chuuk State Land Management's appeal. There may, however, be one. Accordingly, considering that possibility and out of deference to the Chuuk State Supreme Court appellate division, we will defer action on the petition for sixty days. If, within that sixty days, the Chuuk State Supreme Court appellate division has held oral argument on all pending matters or if it has fixed oral argument on a date certain in the near future, we will not issue the writ of procedendo or mandamus.
_____________________________________Footnotes:
1 We hereby grant that motion to appear pro hac vice.
* * * *