FSM SUPREME COURT APPELLATE DIVISION
Cite as FSM v. Chuuk, 24 FSM R. 502 (App. 2024)
FEDERATED STATES OF MICRONESIA,
Appellant,
vs.
STATE OF CHUUK,
Appellee.
APPEAL CASE NO. C3-2018
(Civil Action No. 2015-1012)
ORDER DENYING MOTION TO DISMISS; GRANTING ENLARGEMENT; DENYING MOTION TO STAY;
GRANTING AMICUS CURIAE
Decided: May 31, 2024
BEFORE:
Hon. Beauleen Carl-Worswick, Associate Justice, FSM Supreme Court
Hon. Dennis L. Belcourt, Associate Justice, FSM Supreme Court
Hon. Chang B. William, Associate Justice, FSM Supreme Court
APPEARANCES:
For the Appellant:
Abigail J. Avoryie, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941
For the Appellee:
Sabino S. Asor, Esq.
Chuuk Attorney General
Office of the Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942
For the Amicus Curiae:
Maximo A. Mida, Esq.
(Micro. Reg. Advisors)
Ramp & Mida Law Firm
P.O. Box 1480
Kolonia, Pohnpei FM 96941
For the Amicus Curiae:
Monaliza Abello-Pangelinan, Esq.
(State of Pohnpei)
Judah Johnny
Assistant Attorneys General
Pohnpei Department of Justice
P.O. Box 1555
Kolonia, Pohnpei FM 96941
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Extensions for filing briefs are expressly permitted when good cause is shown. The factors to consider are: the length of delay in filing the brief; evidence of prejudice to the appellee; nature of the reason(s) for the appellant's failure to file on time; and the extent of appellant's efforts in mitigation. FSM v. Chuuk, 24 FSM R. 502, 505 (App. 2024).
The record on appeal expressly includes the transcripts of the proceedings if any are needed for the appeal, but a complete transcript is often unnecessary to the full consideration of an appeal. In particular, transcripts of hearings of arguments on motions are rarely of use to an appellate court. FSM v. Chuuk, 24 FSM R. 502, 506 (App. 2024).
A record ready certificate is not complete without the transcript. As sometimes occurs, a record ready notice must be supplemented due to transcription and therefore requires that an amended briefing schedule issue. FSM v. Chuuk, 24 FSM R. 502, 506 (App. 2024).
Rule 26(b) gives the appellate court broad discretion to enlarge time upon a showing of good cause. "Good cause" means a legally sufficient reason. The four factors to consider are: 1) the length of the delay in seeking an enlargement; 2) whether the non-movant will be prejudiced; 3) whether the non-movant objects to the motion; and 4) whether there is substantial public interest in allowing the movant to submit its argument. FSM v. Chuuk, 24 FSM R. 502, 506 (App. 2024).
A motion to lift a stay is treated as a motion for reconsideration. FSM v. Chuuk, 24 FSM R. 502, 507 (App. 2024).
When the court found no bad faith in the delay from the appellant, and the appellant did all that it could in good faith to move the appeal forward notwithstanding the incomplete transcripts and when there has been no significant change in the case, the court will affirm its prior decision to preserve the status quo pending appeal and deny the motion to lift the stay, especially since case could result in restructuring the financial relationship between the national and state governments which weighs heavily in favor of prudence and necessitates restraint. FSM v. Chuuk, 24 FSM R. 502, 507 & n.5 (App. 2024).
An amicus curiae 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. Chuuk, 24 FSM R. 502, 508 (App. 2024).
By the rule's express language, any State may file its amicus curiae brief as a matter of right, and need not file a motion. FSM v. Chuuk, 24 FSM R. 502, 508 (App. 2024).
By the rule's express language, anyone, who obtains the written consent of both parties to an appeal, may submit an amicus brief as a matter of right. FSM v. Chuuk, 24 FSM R. 502, 508 (App. 2024).
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BEAULEEN CARL-WORSWICK, Associate Justice:
On July 10, 2019, the Court Clerk issued a Record Ready Notice and Certification of Record. On August 5, 2019, Appellant filed a Designation of Record on Appeal, a Statement of Issues on Appeal, a Request for Transcripts, and a Motion to Enlarge Time. On August 14, 2019, the Court issued an Order Granting the Enlargement of Time. On February 5, 2020, Appellee filed a Motion to Dismiss Appeal and Lift Stay. On February 13, 2020, Appellant filed a Motion for Enlargement of Time. On February 14, 2020, Appellant filed an Opposition to Motion to Dismiss and Lift Stay. On February 25, 2020, Appellee filed a Reply to Appellant FSM's Opposition to Motion to Dismiss. This motion to dismiss is still pending before the court.
On March 19, 2020, the Clerk of Court issued a Notice of Briefing Scheduling. On April 13, 2020, Appellant filed a Motion for Enlargement of Time. On May 19, 2020, Appellee filed Brief of the Appellee. On May 29, 2020, Appellant filed Appellant's Brief. This motion to enlarge is still pending before the court.
On February 5, 2020, Appellee Chuuk State filed a Motion to Dismiss Appeal and Lift Stay. On February 14, 2020, Appellant filed an Opposition to Motion to Dismiss and Lift Stay. This motion to lift the stay is still pending before the court.
On May 29, 2020, Micronesia Registration Advisors, Inc., filed an Amicus Curiae Brief in Support of Petitioner/Appellant. On August 12, 2021, the State of Pohnpei filed a Motion for Leave to File Amicus Curiae Brief. On September 21, 2021, the State of Pohnpei filed a Supplemental Motion for Leave to File Amicus Curiae Brief. These motions are still pending before the court.
The court addresses all four of these motions below, respectively.
Pursuant to FSM Appellate Rule 31(a),
The appellant shall serve and file a brief within 40 days after the date of notice by the clerk of the appellate division pursuant to Rule 12(b) that the record is ready. The appellee shall serve and file a brief within 30 days after service of the brief of the appellant. The appellant may serve and file a reply brief within 30 days after service of the brief of the appellant. The appellant may serve and file a reply brief within 14 days after service of the brief of the appellee, but, except for good cause shown, no reply brief may be filed within the last 3 days before argument. The Supreme Court appellate division shall attempt to consider cases on the merits promptly after briefs are filed, and may shorten the periods prescribed above for serving and filing briefs, for specific cases.
(emphasis added). The rule expressly permits extensions when good cause is shown. "The factors that we may consider are: the length of delay in filing the brief; evidence of prejudice to the appellee; nature of the reason(s) for the appellant's failure to file on time; and the extent of appellant's efforts in mitigation." Nakamura v. Bank of Guam, 6 FSM R. 224, 227 (App. 1993).1 A 6 month delay is sufficient to dismiss an appeal. See Heirs of George v. Heirs of Dizon, 16 FSM R. 100, 114 (App. 2008) ("seven months late"); Cuipan v. FSM, 10 FSM R. 323, 326 (App. 2001) ("approximately 6 months after entry of the record ready notice"); Kephas v. Kosrae, 3 FSM R. 248, 250 (App. 1987) ("almost five months after the record had been certified by the clerk"). In this case, the Appellee argues that the Appellant failed to file its brief on time. The Appellant opposes this motion based on the grounds that it had requested the transcript from the FSM Supreme Court Clerk in Chuuk. The clerk confirmed that the Clerk's Office was working diligently to complete it but because many of the hearings were performed telephonically, (during COVID) there was a delay. Without this transcript the Appellant argues that it cannot complete the appeal brief.2 More importantly the Appellant argues that the Record Ready Certificate was not issued in compliance with FSM Appellate Rule 12(b). Pursuant to FSM Appellate Rule 12(b),
Upon receipt of the "record ready certificate" from the clerk of the court appealed from pursuant to Rule 11(c), the clerk of the Supreme Court appellate division shall file it and shall immediately give notice to all parties of the date on which it was filed and the date, 40 days after this notice from the appellate division clerk, when appellant's brief will be due.
(emphasis added). Pursuant to FSM Appellate Rule 11(c), in relevant part,
Upon completion of assembly of the entire record as discussed above, including the transcript, the clerk of the court appealed from shall file with the chief clerk of the appellate division a certificate stating that the record is ready for the purpose of the appeal. This "record ready certificate," including a copy of the certified list of the documents filed, shall be submitted as soon as possible but no later than within 60 days after filing of the notice of appeal.
(emphasis added). Pursuant to FSM Appellate Rule 10(a), in relevant part, the record contains:
The original papers filed and exhibits admitted into evidence or relied upon for demonstration purposes in the court proceedings appealed from, the transcript of proceedings designated and ordered by the parties, if any, and a certified list of the documents and exhibits, showing filing dates and party, and hearings held in the case, prepared by the clerk of the court appealed from, shall constitute the record on appeal in all cases.
(emphasis added). Expressly, the record includes the transcripts of the proceedings if any are needed for the appeal. The comment to FSM Appellate Rule 10(b) states,
A complete transcript often is unnecessary to the full consideration of an appeal. In particular, transcripts of hearings of arguments on motions are rarely of use to an appellate court. Moreover, some entire hearings, such as hearings on discovery motions, or an initial appearance in criminal proceedings, typically would be superfluous. Requests for nonessential portions of transcripts frequently contribute to delay and expense. Counsel also are urged to endeavor to enter into stipulations to alleviate the necessity of, or to reduce the length of transcripts.
(emphasis added). Pursuant to FSM Appellate Rule 10(b), in relevant part,
If the transcript cannot be completed within 50 days of receipt of the request the reporter shall request an extension of time from the clerk of the Supreme appellate division and the action of the clerk of the Supreme Court appellate division shall be entered on the docket and the parties notified. In the event of the failure of the reporter to file the transcript within the time allowed, the clerk of the Supreme Court appellate division shall notify the parties and the judge or justice of the court appealed from and take such other steps as may be directed by the Supreme Court appellate division. Upon completion of the transcript the reporter shall file it with the clerk of the court appealed from and shall notify the clerk of the Supreme Court appellate division.
(emphasis added). In other words, an amended briefing schedule may be directed by the Clerk of Court if a transcript is not ready within 50 days of the request.
A Record Ready Certificate is not complete without the transcript. As sometimes occurs, a record ready notice must be supplemented due to transcription and therefore requires that an amended briefing schedule must issue. In this case, delay was necessary and the supplemented record ready certificate and Notice of Briefing Schedule was filed by the Clerk of Court on March 19, 2020.
The Appellee's Motion to Dismiss Appeal was filed on February 5, 2020, over a month before record ready notice was supplemented and the Notice of Briefing Schedule was issued. This was several weeks before the transcripts were completed by the court reporter.3 In other words, the record was not yet complete at the time the Appellee's filed the motion to dismiss and to grant it would be manifestly improper.
Pursuant to FSM Rule 26, in relevant part, "[t]he court for good cause shown may upon motion enlarge the time prescribed for doing any act, or may permit an act to be done after the expiration of such time." (emphasis added). "It is clear from the face of Rule 26(b) that the appellate court is given broad discretion to enlarge time upon a showing of 'good cause.'" Kimoul v. FSM, 4 FSM R. 344, 346 (App. 1990). "'Good cause' is defined as '[a] legally sufficient reason.'" Heirs of Benjamin v. Heirs of Benjamin, 17 FSM R. 621, 627 (App. 2011); See Jackson v. Siba, 22 FSM R. 224, 233 (App. 2019). In Kephas v. Kosrae, good cause was shown by reliance on the representations of the Clerk of Court. 3 FSM R. 248, 252 (App. 1987) ("The parties relied upon the clerk's letter to the appellant as to the date the brief was due"). "The four factors to consider when addressing this situation: (a) the length of the delay in seeking an enlargement; (b) whether the appellant will be prejudiced; (c) whether the appellant objects to the motion; and (d) whether there is substantial public interest in allowing the government to submit its argument." Engichy v. FSM, 15 FSM R. 432, 434 (App. 2007).
On April 13, 2020, Appellant's filed a Motion to Enlargement of Time requesting an extension until May 29, 2020. The court has not yet responded to this motion, nevertheless appellant filed its Brief, as requested, on May 29, 2020. This enlargement is less than a one-month extension from the date indicated in the Briefing Schedule and any prejudice to the defendant is negligible.
The record indicates that Appellant filed several motions to enlarge and have shown good cause for the extension relying on the completion of transcripts from the court reporter and by other delays associated with COVID. Finally, the court finds that there is a substantial public interest to hear this case as the financial tax implications affect every citizen in the FSM.
Pursuant to FSM Appellate Rule 27(b),
Notwithstanding the provisions of (a) of this Rule 27 as to motions generally, motions for procedural orders, including any motion under Rule 26(b), may be acted upon at any time, without awaiting a response, and pursuant to rule or order of the court, motions for specified types of procedural orders may be disposed of by the clerk. Any party adversely affected by such action may by application to the court request reconsideration, vacation, or modification of such action.
(emphasis added). Thus, a motion for reconsideration is available when a party is adversely affected with an order of the court, or clerk. Nevertheless, this power should be used sparingly and only when justice so requires. The court treats the motion to lift the stay as a motion for reconsideration.
On May 2, 2019, this court issued an Order to Stay Proceeding Pending Appeal. On February 5, 2020, Appellee Chuuk State filed a Motion to Dismiss Appeal and Lift Stay. On February 14, 2020, Appellant filed an Opposition to Motion to Dismiss and Lift Stay. Appellee bases the motion to lift the stay on the Appellant's failure to file a brief on time, characterizing it as a "bad faith delay."4 As stated above, the Court found no bad faith in the delay from the Appellant. To the contrary, Appellant did all that it could in good faith to move the appeal forward notwithstanding the incomplete transcripts. As there has been no significant change in this case, the court affirms its prior decision to preserve the status quo pending appeal.5
Pursuant to FSM Appellate Rule 29,
A brief of an amicus curiae may be filed only if accompanied by written consent of all parties, or by leave of court granted on motion or at the request of the court, except that consent or leave shall not be required when the brief is presented by the Federated States of Micronesia or an officer or agency thereof, or by a State. The brief may be conditionally filed with the motion for leave. A motion for leave shall identify the interest of the applicant and shall state the reasons why a brief of an amicus curiae is desirable. Save as all parties otherwise consent, any amicus curiae shall file its brief within the time allowed the party whose position as to affirmance or reversal the amicus brief will support unless the court for cause shown shall grant leave for later filing, in which event it shall specify within what period an opposing party may answer. A motion of an amicus curiae to participate in oral argument will be granted only for extraordinary reasons.
(emphasis added). "Amicus curiae literally means friend of the court." FSM v. Sipos, 12 FSM R. 385, 387 (Chk. 2004). "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." Id.
On August 12, 2021, the State of Pohnpei filed a Motion for Leave to File Amicus Curie Brief. On September 14, 2021, the State of Pohnpei filed a Supplemental Motion for Leave to File Amicus Curiae Brief. By the express language of the rule, any State need not file a motion to the court and may file its brief as a matter of right. On May 29, 2020, the Micronesia Registration Advisors ("MRA") filed a Brief in Support of Petitioner. This amicus curiae brief was submitted with the written consent of both parties to the appeal.6 Again, by the express language of the rule, any party who obtains the consent of both parties may submit an amicus brief as a matter of right.
Upon CONSIDERATION, of the record and file contained herein, the Court DENIES Appellee's Motion to Dismiss. FURTHER, the Court GRANTS Appellant's the Motion for Enlargement of Time to File Appellant's brief and accepts the brief filed. FURTHER, the Court DENIES Appellee's motion to Lift the Stay pending appeal. FURTHER, both the State of Pohnpei and MRA are permitted to submit an amicus curiae brief as a matter of right and shall be given time to present at the appeal hearing. The date setting oral arguments will issue shortly, by subsequent order of the court.
_______________________________Footnotes:
1 See Christopher Corp. v. FSM Dev. Bank, 20 FSM R. 384, 387 (App: 2016); Chuuk v. Davis, 13 FSM R. 178, 183 (App. 2005); Cuipan v. FSM, 10 FSM R. 323, 325 (App. 2001); O'Sonis v Bank of Guam, 9 FSM R. 356, 361 (App. 2000); Nakamura v. Bank of Guam (I), 6 FSM R. 224, 227 (App. 1993).
2 In lieu of a brief Appellant filed Designation of Record on Appeal and a Statement of Issues on Appeal along with a request for an Enlargement pending the transcripts.
3 The transcript was not completed by the court reporter until February 18, 2020.
4 Appellant's Mot. to Dismiss & Lift Stay at 5.
5 See AHPW, Inc. v. FSM, 13 FSM R. 36, 43-44 (Pon. 2004) ("implicates the public interest in a fundamental way"). The decision in this case could result in a major restructuring the financial relationship between the nat'l and state governments which weighs heavily in favor of prudence and, indeed, necessitates restraint.
6 See App'x A, Br. Amicus Curiae of Micronesia Registration Advisors, Inc., in Support of Petitioner [Appellant].
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