Gustaf v Mori [1993] FMSC 41; 6 FSM Intrm. 284 (App. 1993) (6 December 1993)

THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Gustaf v. Mori, [1993] FMSC 41; 6 FSM Intrm. 284 (App. 1993)

[1993] FMSC 41; [6 FSM Intrm. 284]

KUNIO GUSTAF,
Appellant,

vs.

BOB MORI, Chuuk Election Commissioner,
Appellee.

CIVIL ACTION NO. C4-1993

OPINION

Petition for Certiorari: October 6, 1993
Certiorari Denied: December 6, 1993

BEFORE:
Hon. Andon L. Amaraich, Associate Justice, FSM Supreme Court
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court

APPEARANCES:

For the Appellant:
Thomas J. Schweiger, Esq.
Micronesian Legal Services Corporation
P.O. Box D
Weno, Chuuk FM 96942

For the Appellee: none

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HEADNOTES

Appeal and Certiorari; Constitutional Law - Chuuk; Jurisdiction
Under the FSM Constitution the FSM Supreme Court may hear cases on appeal from the highest state court in which a decision may be had if that state's constitution permits it. The Chuuk State Constitution permits such appeals, which, in civil cases, Chuuk statute provides be made by certiorari. Gustaf v. Mori, [1993] FMSC 41; 6 FSM Intrm. 284, 285 (App. 1993).

Appeal and Certiorari
Because a decision of a single justice in the appellate division of the Chuuk State Supreme Court may be reviewed by an appellate panel of the same court it is not a final decision of the highest state court in which a decision may be had, which it must be in order for the FSM Supreme Court to hear it on appeal. Gustaf v. Mori, [1993] FMSC 41; 6 FSM Intrm. 284, 285 (App. 1993).

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COURT'S OPINION

[6 FSM Intrm. 285]

PER CURIAM:

Kunio Gustaf petitions the appellate division of this Court to grant certiorari to review an order of the appellate division of the Chuuk State Supreme Court which granted a stay pending appeal. After careful consideration of the appellant's petition and memorandum of points and authorities, we decline appellate review of the matter. Our reasons follow.

Our jurisdiction over the Chuuk State Supreme Court originates in article XI, section 7 of the FSM Constitution which reads, "If a State Constitution permits, the appellate division of the Supreme Court may review other cases on appeal from the highest state court in which a decision may be had." The Chuuk State Constitution in article VII, section 4 permits appeals in these words, "[D]ecisions of the appellate division of the State Supreme Court may be appealed to the Supreme Court of the Federated States of Micronesia, whose decisions are final." Chuuk State Law 190-08, section 39 further provides that such appeals be made by certiorari in civil cases, and taken in accordance with applicable rules of the FSM Supreme Court.

The decision appellant would have us review is an order by a single justice of the Chuuk State Court appellate division. The order, among other things, granted a motion to stay certain orders of the trial division. The appellant at the hearing before the single justice had moved for a dismissal of the motion to stay the orders on the grounds that the defendant had not complied with Chuuk State Rules of Civil Procedure 8(a), requiring application for a stay to be made first to the state court trial division rather than the appellate division.

The trial court apparently did have the first opportunity to review a motion to stay regarding orders issued before the two orders of May 13, 1993 and July 12, 1993 that are the subject of the appellate court ruling. The trial court on March 3, 1993 denied a motion to stay brought by the defendant, and indicated that an appeal had been taken in the case. It is unclear to us under what jurisdictional authority the trial court would have issued the two orders of May 13 and July 12 while an appeal was pending. The single justice, in ruling on the motion for stay when brought before the appellate division, declared these two orders null and void.

We deny the petition for certiorari because the stay order by the single justice is not a final decision in the Chuuk State Supreme Court Appellate Division. The motion for the stay was heard by the single justice pursuant to Chuuk State Supreme Court Appellate Rule 8(a) which reads in part, "The motion shall be filed with the clerk and normally will be considered by a panel or division of the court, but in exceptional cases where such procedure would be impractical due to the requirements of time, the application may be made to and considered by a single justice . . . ." Chuuk State Supreme Court Appellate Rule 27(c) provides in part, "The action of a single justice may be reviewed by the court." According to the petition before us, there has been no such review. It thus appears to us that the matter of the stay has not been decided finally in the Chuuk State Supreme Court Appellate Division.

Since the stay order is not final, it is not a decision "from the highest state court in which a decision may be had." FSM Const. art. XI, § 7.

The petition for writ of certiorari is accordingly denied.

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