Nikichiw v Marsolo [2007] FMCSC 13; 15 FSM Intrm. 177 (Chk. S. Ct. App. 2007) (4 July 2007)

CHUUK STATE SUPREME COURT APPELLATE DIVISION

Cite as Nikichiw v. Marsolo, [2007] FMCSC 13; 15 FSM Intrm. 177 (Chk. S. Ct. App. 2007)

RESWITH NIKICHIW, as Tolensom Election
Commissioner, and TOLENSOM ELECTION
COMMISSION,
Appellants,

vs.

AMANTO MARSOLO and MAKASA KAREN,
Appellees.

CIVIL APPEAL NO. 01-2006

ORDER DISMISSING APPEAL AS MOOT

Decided: July 4, 2007

[15 FSM Intrm 184]

BEFORE:

Hon. Benjamin Rodriguez, Temporary Justice, Presiding*
Hon. Repeat Samuel, Temporary Justice**
Hon. Frank Casiano, Temporary Justice**

*Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei
**Attorney at Law, Weno, Chuuk

APPEARANCES:

For the Appellants:
Andrea S. Hillyer, Esq.
P.O. Drawer D
Kolonia, Pohnpei FM 96941

For the Appellees:
Johnny Meippen, Esq.
P.O. Box 705
Weno, Chuuk FM 96942

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HEADNOTES

Appellate Review - Standard of Review - Civil Cases; Constitutional Law - Case or Dispute - Mootness;; Evidence - Judicial Notice
Since an appellate court may receive proof or take notice of facts outside the record for determining whether a question presented to it is moot, the court therefore may take notice of the opinion in a related appeal case. Nikichiw v. Marsolo, [2007] FMCSC 13; 15 FSM Intrm. 177, 178 (Chk. S. Ct. App. 2007).

Appellate Review - Decisions Reviewable; Constitutional Law - Case or Dispute - Mootness
No justiciable controversy is presented if events subsequent to an appeal’s filing make the issues presented in a case moot. A claim becomes moot when the parties lack a legally cognizable interest in the outcome, and if an appellate court finds that any relief it could grant would be ineffectual, it must treat the case as moot, and if the appeal has become moot, the court no longer has jurisdiction to hear and decide it. Nikichiw v. Marsolo, [2007] FMCSC 13; 15 FSM Intrm. 177, 179 (Chk. S. Ct. App. 2007).

Appellate Review - Dismissal; Constitutional Law - Case or Dispute - Mootness
When the opinion and the writ of prohibition issued in a different appeal has already granted the appellants all of the relief that they first sought in this case, this appeal has become moot because any relief the court could now grant would be ineffectual, and a motion to dismiss will therefore be granted. Nikichiw v. Marsolo, [2007] FMCSC 13; 15 FSM Intrm. 177, 179 (Chk. S. Ct. App. 2007).

Appellate Review - Dismissal; Constitutional Law - Case or Dispute - Mootness
When an appeal is dismissed as moot, the established rule is for the appellate court to reverse or vacate the judgment below and dismiss the case. Nikichiw v. Marsolo, [2007] FMCSC 13; 15 FSM Intrm. 177, 179 (Chk. S. Ct. App. 2007).

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[15 FSM Intrm 185]

COURT’S OPINION

BENJAMIN RODRIGUEZ, Temporary Justice, Presiding:

On June 13, 2007, the appellants filed and served their Motion to Dismiss Appeal; Motion Requesting Court to Take Judicial Notice of Appellate Division Ruling. The appellees had seven days to file a response, Chk. App. R. 27(a), but have not done so. The motion is granted. Our reasoning follows.

I.

The appellants’ motion asks that the court dismiss this appeal on the ground that the court no longer has any subject matter jurisdiction over this appeal because the appellate division, in Civil Appeal No. 02-2006, declared the orders appealed from in this case were void because the trial court lacked jurisdiction to entertain the case before it and that therefore this appeal has become moot. The appellants also note that they had moved to consolidate this appeal with No. 02-2006 so that the two could be decided together, but that the court had not ruled on the motion before No. 02-2006 was heard.

The motion also asks that we take judicial notice of the May 28, 2007 Opinion and Order Granting Writ of Prohibition in that case. [Nikichiw v. Petewon, [2007] FMCSC 17; 15 FSM Intrm. 33 (Chk. S. Ct. App. 2007).] An appellate court may receive proof or take notice of facts outside the record for determining whether a question presented to it is moot. Wainit v. Weno, [2002] FMCSC 21; 10 FSM Intrm. 601, 610 (Chk. S. Ct. App. 2002). We therefore may take notice of the May 28, 2007 Opinion in Civil Appeal No. 02-2006.

II.

No justiciable controversy is presented if events subsequent to an appeal’s filing make the issues presented in a case moot. A claim becomes moot when the parties lack a legally cognizable interest in the outcome, and if an appellate court finds that any relief it could grant would be ineffectual, it must treat the case as moot. Wainit, 10 FSM Intrm. at 610. If this appeal has become moot, we no longer have jurisdiction to hear and decide it.

In Fritz v. National Election Dir., [2003] FMSC 37; 11 FSM Intrm. 442, 444 (App. 2003), the FSM Supreme Court appellate division held that the case before it had become moot because the sole issue before the appellate court was whether the National Election Director’s rejection of an election petition as untimely was in compliance with the applicable statute and the only relief the court could have granted would have been to vacate the Director’s denial, remand the matter to the Director, and order the Director to consider the petition on the merits, but since the Director himself had already resolved that one issue in the appellant’s favor and considered and ruled on the petition’s merits, there was no further relief that the court could grant that had not already been granted.

The Opinion and the Writ of Prohibition issued in Civil Appeal No. 02-2006 has already granted the appellants all of the relief that they first sought in this case. Thus, as in Fritz, this appeal has become moot because any relief we could now grant would be ineffectual. The motion to dismiss as moot is therefore granted.

[15 FSM Intrm 186]

III.

When an appeal is dismissed as moot, the established rule is for the appellate court to reverse or vacate the judgment below and dismiss the case. Wainit, 10 FSM Intrm. at 611. Now therefore it is hereby ordered that this appeal is dismissed as moot, and it is further ordered that the judgment in the case below, Civil Action No. 250-2005, is reversed and that Civil Action No. 250-2005 is dismissed.

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