[24 FSM R. 53]

APPEAL CASE NO. P8-2022

Decided: February 24, 2023

BEFORE:

Hon. Beauleen Carl-Worswick, Associate Justice, FSM Supreme Court
Hon. Larry Wentworth, Associate Justice, FSM Supreme Court
Hon. Cyprian Manmaw, Specially Assigned Justice, FSM Supreme Court*

*Chief Justice, State Court of Yap, Colonia, Yap

APPEARANCES:

For the Appellant:         Salomon M. Saimon, Esq.
                                      P.O. Box 911
                                      Kolonia, Pohnpei FM 96941

HEADNOTES

Appellate Review – Rehearing

A petition for a rehearing may be granted only if the appellate court has overlooked or misapprehended points of law or fact that would alter the result. Paul v. Lambert, 24 FSM R. 53, 54 (App. 2023).

Appellate Review – Rehearing

Ordinarily, the appellate court summarily denies petitions for rehearing, but, when clarification may be helpful, some reasons may be given. Paul v. Lambert, 24 FSM R. 53, 54 (App. 2023).

Citizenship

The "at any time" clause in 7 F.S.M.C. 202(2)(b) is not an unconstitutional extension of Congress's power because Section 202(2)(b)'s "at any time" principle was not a statutory creation by Congress since the Constitution's Article III, Section 2, reinforced by Section 6, created that principle, and Section 202(2)(b) merely acknowledges it. Paul v. Lambert, 24 FSM R. 53, 54 (App. 2023).

Citizenship

Under current FSM law, a person over 21 will not be recognized by the FSM as a dual citizen of the FSM and another country, but the FSM cannot force or compel a foreign country to recognize a dual citizen's renunciation of that foreign citizenship if that foreign country refuses to. Paul v. Lambert, 24 FSM R. 53, 55 (App. 2023).

Appellate Review – Parties

An appellee is a party against whom an appeal is taken and whose role is to respond to that appeal, usually seeking affirmance of the lower court's decision. Paul v. Lambert, 24 FSM R. 53, 55 (App. 2023).

Costs

A prevailing appellee may have his costs taxed against the appellant. Paul v. Lambert, 24 FSM R. 53, 55 (App. 2023).

COURT'S OPINION

PER CURIAM:

Our opinion and the judgment in this matter were issued on February 7, 2023. [Paul v. Lambert, 24 FSM R. 40 (App. 2023).] On February 13, 2023, the appellant, Erick Paul, timely filed his Petition for Reconsideration (Rehearing). Paul contends that we have misapprehended the nature and application of 7 F.S.M.C. 202(2)(b) and 203; the implications of allowing Moses's renunciation of foreign citizenship to stand; and that Moses may have his costs.

We may grant a petition for a rehearing only if we have overlooked or misapprehended points of law or fact, Nena v. Kosrae (II), 6 FSM R. 437, 438 (App. 1994), that would alter the result, Heirs of Henry v. Heirs of Akinaga, 19 FSM R. 364, 366 (App. 2014). Ordinarily, we summarily deny petitions for rehearing, but, when clarification may be helpful, some reasons may be given, Iriarte v. Individual Assurance Co., 18 FSM R. 406, 408 (App. 2012); Goya v. Ramp, 14 FSM R. 305, 307 (App. 2006); Ting Hong Oceanic Enterprises v. FSM, 7 FSM R. 481, 482 (App. 1996), although in this case, it may be a matter more of re-emphasis of certain points than of clarification.

Paul contends that 7 F.S.M.C. 202(2)(b) is a naturalization statute and that somehow, by not holding the "at any time" clause in it an unconstitutional extension of Congress's power, we have, in effect, allowed Congress to amend the Constitution by enacting a statute. Section 202(2)(b)'s "at any time" principle was not a statutory creation by Congress. The Constitution's Article III, Section 2, reinforced by Section 6 ("Article [III] may be applied retroactively"), created that principle. Section 202(2)(b) merely acknowledged it.

Paul also takes issue with our use of the word "codifies" in reference to 7 F.S.M.C. 203, and spends some time discussing the "codification" of constitutions in countries that do not have written constitutions. Paul misses the point. We used "codifies" only in the sense that Congress enacted a statute that replicated a constitutional provision and then we noted that Congress had included in 7 F.S.M.C. 203, a means to implement the part of the constitutional provision (Article III, Section 3) that was not self-executing because the Constitution did not provide a way for a dual citizen to register his or her intent to remain an FSM and to renounce his or her other citizenship(s).

Paul further contends that we admitted that renunciation of foreign citizenship to FSM authorities is "constitutionally wanting" because, in Paul's view, we "admitted" that persons may today legally have the passports of the FSM and another country. We made no such ruling. Under current FSM law, a person over 21 will not be recognized by the FSM as a dual citizen of the FSM and another country. We only noted that the FSM cannot force or compel a foreign country to recognize a dual citizen's renunciation of that foreign citizenship if that foreign country refuses to.

Lastly, Paul contends that the clerk cannot tax costs in Esmond Moses's favor because, in Paul's view, Moses is not an appellee (even though Paul labels Moses as an appellee in the caption of his rehearing petition).An appellee is "[a] party against whom an appeal is taken and whose role is to respond to that appeal usu. seeking affirmance of the lower court's decision." BLACK'S LAW DICTIONARY 115 (9th ed. 2009). That is an apt description of Moses's role and position in this appeal. As the prevailing appellee, Moses may have his costs taxed against the appellant. FSM App. R. 39(a).

Accordingly, we deny the petition for rehearing.