Mori v Haruo [2009] FMCSC 18; 16 FSM Intrm. 556 (Chk. S. Ct. App. 2009) (7 September 2009)

CHUUK STATE SUPREME COURT APPELLATE DIVISION

CIVIL APPEAL CASE NO. 05-2006

MINIKA MORI, AISEK MORI, and ESTHER RAN,
Appellants,

vs.

LINORA HARUO,
Appellee.

____________________

ORDER DENYING PETITION FOR REHEARING

Decided: September 7, 2009

BEFORE:

Hon. Dennis K. Yamase, Temporary Justice, Presiding*
Hon. Repeat Samuel, Temporary Justice**
Hon. Derensio Konman, Temporary Justice**

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

APPEARANCE:

For the Appellee: Fredrick Hartman
P.O. Box 453
Weno, Chuuk FM 96942

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HEADNOTES

Appellate Review  Rehearing
A petition for rehearing may be denied as untimely when untimely filed and not accompanied by a request for enlargement of time. Mori v. Haruo, [2009] FMCSC 18; 16 FSM Intrm. 556, 557 (Chk. S. Ct. App. 2009).

Appellate Review; Courts  Judges
It is proper for temporary justices, otherwise meeting the requirements of Chuuk Constitution Article VII, section 5(b), to constitute the full appellate panel and to preside over Chuuk State Supreme Court appeals if Chuuk State Supreme Court justices are disqualified or not readily available. Mori v. Haruo, [2009] FMCSC 18; 16 FSM Intrm. 556, 557 (Chk. S. Ct. App. 2009).

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COURT'S OPINION

PER CURIAM:

Appellee Linora Haruo's July 23, 2009 petition for rehearing is denied as untimely and for failure to move for enlargement to file the untimely petition. See Berman v. College of Micronesia-FSM, [2008] FMSC 35; 15 FSM Intrm. 612, 613 (App. 2008) (petition for rehearing denied when untimely filed and not accompanied by a request for enlargement).

For future guidance, we note that Haruo's petition asserts as the basis for rehearing that the appellate panel was improperly constituted pursuant to Section 5(b), Article VII of the Chuuk Constitution. The reasons asserted are that the panel did not include a Chuuk State Supreme Court justice or justice from another state court on the panel, and that two of the temporary justices were attorneys from the same law office. Numerous cases have addressed the proper constitution of a Chuuk State Supreme Court appellate panel. Prior rulings have held that it was proper for temporary justices, otherwise meeting the requirements of Section 5(b), to constitute the full panel and to preside over Chuuk State Supreme Court appeals if Chuuk State Supreme Court justices were disqualified or not readily available. Ruben v. Petewon, [2006] FMCSC 1; 14 FSM Intrm. 146, 148 n.1 (Chk. S. Ct. App. 2006) (when all Chuuk State Supreme Court justices have been disqualified from presiding, an appellate panel is properly constituted without a Chuuk State Supreme Court justice and with a temporarily-appointed justice to preside); In re Mid-Mortlocks Interim Election[2003] FMCSC 6; , 11 FSM Intrm. 470, 473 (Chk. S. Ct. App. 2003) (an appellate panel's composition of three temporary justices is proper in the sudden absence of the presiding Chuuk State Supreme Court justice when the other Chuuk State Supreme Court justices were disqualified and the matter could not wait for the original presiding justice's recovery from illness); Cholymay v. Chuuk State Election Comm'n, [2001] FMCSC 6; 10 FSM Intrm. 145, 151 (Chk. S. Ct. App. 2001) (when all Chuuk State Supreme Court justices have been disqualified from presiding, an appellate panel will have to be constituted without a Chuuk State Supreme Court justice and with a temporarily-appointed justice to preside).

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