FSM SUPREME COURT APPELLATE DIVISION
Cite as Moses v. Belcourt, 24 FSM R. 386 (App. 2024)
ESMOND MOSES, in his official capacity as the
Speaker of the FSM Congress, and THE TWENTY-
THIRD CONGRESS OF THE FEDERATED STATES
OF MICRONESIA,
Petitioners,
vs.
ASSOCIATE JUSTICE DENNIS L. BELCOURT,
Respondent,
YOSLYN G. SIGRAH, JASON F. SIGRAH, MARUKO
T. SIGRAH, and FIONA AULIVIA HEIN,
and
AUSEN LAMBERT, National Election Director,
Respondents and
Real Parties in Interest.
APPEAL CASE NO. P7-2023
ORDER GRANTING DISMISSAL OF PETITION
Decided: January 30, 2024
BEFORE:
Hon. Larry Wentworth, Associate Justice, FSM Supreme Court
Hon. Cyprian Manmaw, Specially Assigned Justice, FSM Supreme Court*
Hon. Jayson Robert, Specially Assigned Justice, FSM Supreme Court**
*Chief Justice, State Court of Yap, Colonia, Yap
**Chief Justice, Chuuk State Supreme Court, Weno, Chuuk
APPEARANCES:
For the Petitioners:
Daniel J. Rescue, Jr., Esq.
Ramp & Mida Law Firm
P.O. Box 790
Weno, Chuuk FM 96942
For the Respondents:
Salomon M. Saimon, Esq.
(Sigrah Respondents)
P.O. Box 911
Kolonia, Pohnpei, FM 96941
Kathleen M. Burch, Esq.
P.O. Box 1365
Koror, Palau PW 96940
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A writ of prohibition is an extraordinary remedy, the object of which is not to cure a mere legal error or to serve as a substitute for appeal. The extraordinary writ of prohibition is proper to prevent an inferior tribunal from acting without jurisdiction, or in excess of jurisdiction when there is no plain, speedy, and adequate legal remedy otherwise available. Moses v. Belcourt, 24 FSM R. 386, 389 (App. 2024).
Mere legal error by a judge, even gross legal error in a particular case, does not suffice to support the issuance of a writ of prohibition. Moses v. Belcourt, 24 FSM R. 386, 389 (App. 2024).
A writ of prohibition issues to restrain the commission of a future act and not to undo one that has already been committed. Moses v. Belcourt, 24 FSM R. 386, 390 (App. 2024).
Since the FSM Constitution's case or dispute clause is similar to, and drawn from, the U.S. Constitution's case or controversy clause, and since it is from the FSM case or dispute clause (and ultimately the U.S. case or controversy clause) that the application of the mootness doctrine is drawn, and while the court must first look to FSM sources of law rather than start with a review of other courts' cases, when the court has not already construed an aspect of an FSM constitutional provision similar to its antecedent U.S. constitutional provision or previously considered when an Appellate Rule 21 petition for a writ of prohibition becomes moot, it may look to U.S. sources for guidance in interpreting the Constitution, or the rule. Moses v. Belcourt, 24 FSM R. 386, 390 n.2 (App. 2024).
The constitutional provisions limiting the court's jurisdiction to cases or disputes require dismissal of moot cases. Moses v. Belcourt, 24 FSM R. 386, 390 n.2 (App. 2024).
The court lacks jurisdiction to consider moot cases since the Constitution requires that there be an actual case or a dispute. Moses v. Belcourt, 24 FSM R. 386, 391 (App. 2024).
Even when a case is moot, it may fall within the exception to the mootness doctrine if it may have a continuing effect on future events, including future litigation, and if it may be capable of repetition, yet evading review, because, if it is, the court will then address the issue. Moses v. Belcourt, 24 FSM R. 386, 391 (App. 2024).
An issue in a moot petition for a writ of prohibition will not continue to evade review since there are pending appeals that, when decided, will resolve the issue that the petitioners want addressed. Moses v. Belcourt, 24 FSM R. 386, 391 (App. 2024).
A writ of prohibition cannot be used as a substitute for an appeal, especially when an appeal is already pending and is currently being briefed. That appeal is an adequate legal remedy. Moses v. Belcourt, 24 FSM R. 386, 391 (App. 2024).
When any resolution of related consolidated appeals must directly address the jurisdictional issue the petitioners seek to resolve with their petition for a writ of prohibition and when that consolidated appeal will be heard in the immediate future, the petitioners have an available plain, speedy, and adequate legal remedy. Moses v. Belcourt, 24 FSM R. 386, 391 (App. 2024).
The standard for issuance of a writ of prohibition is, because of its peremptory nature, generally stricter than an appeal. Moses v. Belcourt, 24 FSM R. 386, 391 (App. 2024).
The Rule 21(b) provision that a writ of prohibition "proceeding shall be given preference over ordinary civil cases" does not require that a Rule 21(b) petition be decided on the merits before deciding a related appeal which the court concludes is an adequate legal remedy. It merely provides that Rule 21 petitions for prohibition or mandamus must be handled on an expedited basis requiring, if necessary, that schedules of ordinary civil appeals be displaced for the expedited Rule 21 petitions. Moses v. Belcourt, 24 FSM R. 386, 391 (App. 2024).
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LARRY WENTWORTH, Associate Justice:
This comes before us on the Motion to Dismiss Petition for Writ of Prohibition and Supplement to Writ of Prohibition, filed on December 22, 2023, by the respondents and real parties in interest, Yoslyn G. Sigrah, Jason F. Sigrah, Maruko T. Sigrah, and Fiona Aulivia Hein ("the Sigrah respondents"). The petitioners, Esmond Moses (in his official capacity as the Speaker of the FSM Congress) and the Twenty-Third FSM Congress, filed an opposition on January 12, 2024. The Sigrah respondents filed a reply on January 15, 2024.
The motion to dismiss is granted. We thus do not consider the petitioners' January 15, 2024 opposition to consolidating this case with Appeal Cases No. P6-2023 and No. P8-2023. Our reasons for dismissing this petition for a writ of prohibition follow.
Yoslyn G. Sigrah was a candidate in the July 4, 2023 special election to fill the vacant four-year Kosrae seat in the Twenty-Third Congress [and in the Twenty-Fourth since this is a four-year seat]. Sigrah received a plurality of the votes cast in that election and the National Election Director certified her as the winning candidate. None of the other eight candidates contested that certification.
On September 28, 2023, the Credentials Committee submitted its report, recommending that Congress not seat Sigrah since, although she met the Constitutional and statutory qualifications to be a Congress member, she was, in the Committee's view, not qualified to be a Congress member because of various past misdeeds while practicing law. Congress, relying on the constitutional provision that "Congress shall be the sole judge of the elections and qualifications of its members," FSM Const. art. IX, § 17(a), adopted the report and did not seat Sigrah. The seat was declared vacant and a new special election was scheduled for November 21, 2023.
On October 2, 2023, Yoslyn G. Sigrah and three Kosrae voters (Sigrah's husband and their two adult children) filed in the trial division a Petition for Declaratory Relief and Injunctive Relief against Speaker Esmond Moses, the Twenty-Third FSM Congress, and National Election Director Ausen Lambert. They sought (1) a declaratory judgment that Yoslyn Sigrah ought to be seated in Congress because she met all the Constitutional and statutory qualifications and (2) an order enjoining the November 21, 2023 special election.1
After hearing, the trial court, on November 2, 2023, issued its Order Granting Declaratory Relief. Sigrah v. Moses, 24 FSM R. 327 (Pon. 2023). The trial court concluded that the Constitution's plain text committed to Congress's consideration only those qualifications "enumerated in the FSM Constitution or prescribed by statute," Id. at 334, and that since, as acknowledged by the Credentials Committee report, Sigrah met all of those qualifications, all that remained was for Sigrah to be administered the oath of office, Id. at 335-36. Sigrah was not administered the oath.
On November 9, 2023, Speaker Esmond Moses and the Twenty-Third FSM Congress appealed the trial court's November 2, 2023 decision. Their appeal was docketed as Appeal Case No. P6-2023. The Sigrahs moved to dismiss that appeal because it is not from a final decision, order, or judgment. On December 1, 2023, a single appellate justice denied that motion. Moses v. Sigrah, 24 FSM R. 353 (App. 2023).
On November 14, 2023, Speaker Esmond Moses and the Twenty-Third FSM Congress filed this petition (docketed as Appeal Case No. P7-2023) for a writ of prohibition, in which they sought to prohibit the trial court judge from enjoining the November 21, 2023 special election in Kosrae because, in their view, the trial court lacked the jurisdiction to rule on whether Sigrah should be seated and thus could not enjoin the special election. On November 17, 2023, the appellate court ordered that an answer be filed to the petition for a writ. The Sigrah respondents and the respondent justice filed separate answers on November 24, 2023. After reviewing their answers, the appellate court ordered that briefs be filed. The Sigrah respondents filed their brief on January 9, 2024.
The trial court, on November 17, 2023, granted a preliminary injunction barring the National Election Director from conducting the November 21, 2023 special election. Sigrah v. Moses, 24 FSM R. 341 (Pon. 2023). The National Election Director, Ausen Lambert, appealed that decision on November 24, 2023. His appeal was docketed as Appeal Case No. P8-2023. Appeal Cases No. P6-2023 and No. P8-2023 have since been consolidated.
A writ of prohibition is an extraordinary remedy, the object of which is not to cure a mere legal error or to serve as a substitute for appeal. Heirs of Tulenkun v. Aliksa, 19 FSM R. 191, 194 (App. 2013). The extraordinary writ of prohibition is proper to prevent an inferior tribunal from acting without jurisdiction, or in excess of jurisdiction when there is no plain, speedy, and adequate legal remedy otherwise available. Tilfas v. Aliksa, 19 FSM R. 181, 184 (App. 2013). Mere legal error by a judge, even gross legal error in a particular case, does not suffice to support the issuance of a writ of prohibition. Heirs of Tulenkun, 19 FSM R. at 194; Tilfas, 19 FSM R. at 184; Ehsa v. Johnny, 19 FSM R. 175, 177 (App. 2013); Etscheit v. Amaraich, 14 FSM R. 597, 600 (App. 2007).
The Sigrah respondents move that the petition should be dismissed because the event that the petitioners seek to prohibit has already occurred since the November 21, 2023 special election was not held that day, there is nothing left to prohibit, making the petition moot. The Sigrah respondents ("movants") contend that the petitioners have an adequate legal remedy (their appeal), and that they lack standing to seek the writ because the trial court preliminary injunction is not directed toward them, but instead enjoins the National Election Director from conducting the November 21, 2023 special election.
Congress and its Speaker counter that their petition is not moot because they still have a legally cognizable interest in the trial court case's outcome and because the trial court exceeded its jurisdiction and violated the separation of powers doctrine, by usurping Congress's power to be the sole judge of the qualification of its members when it enjoined the November 21, 2023 special election to fill the seat made vacant when Congress determined Sigrah unqualified to be a Congress member. The petitioners further argue that the appeal they filed (No. P6-2023) is not an adequate legal remedy that would preclude a writ of prohibition because an appeal only asks an appellate court to reconsider the legal issues while a writ of prohibition goes solely to the trial court's jurisdiction and because, under FSM Appellate Procedure Rule 21(b), a petition for a writ of prohibition is given precedence over a civil appeal, so that therefore we must consider this petition before we consider Appeal Case No. P6-2023. The petitioners note that a petition for a writ of prohibition is an expedited procedure that does not usually require certification of the trial court record, and its standard of review differs from that for an appeal.
The petitioners further contend that they have standing to petition for a writ because the trial court's exercise of jurisdiction and issuance of the injunction encroached on Congress's legislative power and the issuance of a writ would remedy the injury that Congress has suffered even though the injunction is not directed toward them. They conclude that the mere fact the injunction was directed toward a part of the executive branch, and not toward Congress, is thus immaterial.
The movants reply that the petitioners rely on an improper or the wrong standard for determining when a petition for a writ of prohibition has become moot.
We turn first to whether this petition for a writ of prohibition has become moot.
A. Mootness
The petitioners sought to prohibit the trial court from enjoining the November 21, 2023 special election for the Kosrae four-year seat. The trial court did enjoin that special election. It was not held. And that date has passed. The movants therefore contend that the petition has become moot since, if we were to issue the writ prohibiting the trial court from enjoining the November 21, 2023 special election, it would have no effect because that date has come and gone.
The petitioners argue that the trial court's jurisdiction (in their view, its lack thereof) to issue such an injunction is a very important matter that may recur in the future and that this is therefore an issue that may recur and yet evade review, which is an exception to the principle that a court must dismiss a moot case. A writ of prohibition "issues to restrain the commission of a future act and not to undo one that has already been committed." State ex rel. Hamilton v. Dalton, 652 S.W.2d 237, 239 (Mo. Ct. App. 1983).2
In Jones v. Montague, 194 U.S. 147, 153, 24 S. Ct. 611, 613, 48 L. Ed. 913, 915 (1904), the United States Supreme Court, faced with a petition for a writ of prohibition seeking to prevent Virginia election authorities from canvassing and declaring the winners of the November 4, 1902 election for the U.S. House of Representatives ruled that "when "the thing sought to be prohibited has been done, and cannot be undone by the order of the court . . . there is nothing but a moot case remaining, and the motion to dismiss must be sustained." Similarly, a motion to temporarily restrain an election was denied as moot when that election had already held as scheduled. Simina v. Chuuk State Election Comm'n, 19 FSM R. 572, 573 (Chk. S. Ct. App. 2014). We lack jurisdiction to consider moot cases since the Constitution requires that there be an actual case or a dispute. McIlrath v. Amaraich, 11 FSM R. 502, 506 (App. 2003); Setik v. Perman, 22 FSM R. 105, 118 (App. 2018); Andrew, 20 FSM R. at 631.
However, even when a case is moot, it may fall within the exception to the mootness doctrine if it may have a continuing effect on future events, including future litigation, and if it may be capable of repetition, yet evading review, because, if it is, the court will then address the issue. FSM v. Udot Municipality, 12 FSM R. 29, 49 (App. 2003); McIlrath, 11 FSM R. at 506. The petitioners contend that this is such a case.
We cannot agree. The issue will not continue to evade review because there are pending appeals that, when decided, will resolve the issue that the petitioners want addressed. See infra part IV.B.
B. Adequate Remedy
A writ of prohibition cannot be used as a substitute for an appeal, especially when an appeal is already pending and is currently being briefed. Tilfas, 19 FSM R. at 184. That appeal is an adequate legal remedy. The petitioners have also appealed the declaratory judgment that provided the legal basis for the trial court's issuance of the preliminary injunction that they seek to prohibit. Furthermore, their appeal has been consolidated with the National Election Director's appeal of the preliminary injunction. Any resolution of the consolidated appeals must directly address the jurisdictional issue they seek to resolve with their petition for a writ of prohibition. That consolidated appeal will be heard in the immediate future. The petitioners therefore have an available plain, speedy, and adequate legal remedy. Moreover, the standard for issuance of a writ of prohibition is, because of its peremptory nature, generally stricter than an appeal.
C. Given Precedence
Lastly, the petitioners misunderstand the Rule 21(b) provision that a writ of prohibition "proceeding shall be given preference over ordinary civil cases." FSM App. R. 21(b). It does not require that a Rule 21(b) petition be decided on the merits before a related appeal the court concludes is an adequate legal remedy is decided. It merely provides that Rule 21 petitions for prohibition or mandamus must be handled on an expedited basis requiring, if necessary, that schedules of ordinary civil appeals be displaced for the expedited Rule 21 petitions. Furthermore, Appeal Cases No. P6-2023 and P8-2023 do not seem to be ordinary civil appeals. They are being addressed on an expedited basis.
Accordingly, the motion to dismiss this petition for a writ of prohibition is granted.
_______________________________Footnotes:
1 A First Amended Petition for Declaratory Relief and Injunctive Relief (Oct. 13, 2023) added a cause of action for violation of constitutional rights.
2 The court has not previously considered when an Appellate Rule 21 petition for a writ of prohibition (or for a writ of mandamus) becomes moot. The FSM Constitution's case or dispute clause is similar to, and drawn from, the U.S. Constitution's case or controversy clause, FSM v. Louis, 9 FSM R. 474, 482 (App. 2000), and it is from the FSM case or dispute clause (and ultimately the U.S. case or controversy clause) that we draw the application of the mootness doctrine. The constitutional provisions limiting our jurisdiction to cases or disputes, FSM Const. art. XI, §§ 6-7, require dismissal of moot cases, just as the U.S. case and controversy provisions do. See In re Sproat, 2 FSM R. 1, 4-5 & n.2 (Pon. 1985); See also Andrew v. Heirs of Seymour, 20 FSM R. 629, 631 (App. 2016). While we must first look to FSM sources of law rather than start with a review of other courts' cases, when we have not already construed an aspect of an FSM constitutional provision similar to its antecedent U.S. constitutional provision, we may look to U.S. sources for guidance in interpreting the Constitution, Wolphagen v. FSM, 22 FSM R. 96, 102 n.1 (App. 2018); Fuji Enterprises v. Jacob, 21 FSM R. 355, 365 n.10 (App. 2017), or the rule, Berman v. FSM Nat'l Police, 19 FSM R. 118, 123-24 n.1 (App. 2013).
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