McCaffrey v Federated States of Micronesia Supreme Court [1993] FMSC 51; 6 FSM Intrm. 279 (App. 1993) (6 December 1993)

THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as McCaffrey v. FSM Supreme Court, [1993] FMSC 51; 6 FSM Intrm. 279 (App. 1993)

[1993] FMSC 51; [6 FSM Intrm. 279]

JAMES McCAFFREY,
Appellant,

vs.

FSM SUPREME COURT,
Appellee.

APPEAL CASE NO. P5-1993

OPINION

Argued: July 14, 1993
Decided: July 14, 1993
Opinion Entered: December 6, 1993

BEFORE:
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Martin Yinug, Associate Justice, FSM Supreme Court
Hon. Wanis Simina, Temporary Justice, FSM Supreme Court*

*Associate Justice, Chuuk State Supreme Court, Weno, Chuuk

[6 FSM Intrm. 280]

APPEARANCES:

For the Appellant:
James McCaffrey (in pro per)
P.O. Box 672
Kolonia, Pohnpei FM 96941

For the Appellee:
Douglas J. Juergens, Esq.
Chief of Litigation
Office of the FSM Attorney General
P.O. Box PS-105
Palikir, Pohnpei FM 96941

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HEADNOTES

Statutes - Construction
A long-standing norm of statutory construction holds that provisions of law must be read so as to be internally consistent and sensible. McCaffrey v. FSM Supreme Court, [1993] FMSC 51; 6 FSM Intrm. 279, 281 (App. 1993).

Attorney, Trial Counselor and Client - Admission
The language of FSM Admission Rule III contemplates that formal arrangements between the FSM Supreme Court and other jurisdictions must exist before an attorney from another jurisdiction may apply for admission to the FSM Supreme Court on the basis of reciprocity. McCaffrey v. FSM Supreme Court, [1993] FMSC 51; 6 FSM Intrm. 279, 281-82 (App. 1993).

Attorney, Trial Counselor and Client - Admission
FSM Admission Rule III is directed at attorneys residing outside of the FSM in other Pacific jurisdictions. McCaffrey v. FSM Supreme Court, [1993] FMSC 51; 6 FSM Intrm. 279, 282 (App. 1993).

Appeal and Certiorari - Briefs and Record
FSM Appellate Rule 28(a) requires, among other things, that arguments in an appellant's brief be supported by citations to authority; failure to provide such support will be deemed a waiver by appellant of the claims being argued. McCaffrey v. FSM Supreme Court, [1993] FMSC 51; 6 FSM Intrm. 279, 283 (App. 1993).

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COURT'S OPINION

MARTIN YINUG, Associate Justice:

I. BACKGROUND

This case comes before us on appeal of the trial division's ruling of February 19, 1993 denying appellant petitioner's application for admission to the FSM Supreme Court bar. In re McCaffrey[1993] FMSC 6; , 6 FSM Intrm. 20 (Pon. 1993). We affirm.

Appellant James McCaffrey filed a motion for admission to practice before the FSM

[6 FSM Intrm. 281]

Supreme Court on February 5, 1993. Admission was sought on the basis of FSM Admission Rule III, which reads as follows:

The Court favors reciprocal bar admission arrangements with other jurisdictions. The Court will cooperate as appropriate with attorneys admitted to practice in other jurisdictions in their attempts to encourage such reciprocal arrangements, and will give favorable consideration to requests for admission to practice before the Federated States of Micronesia Supreme Court by applicants licensed to practice in other jurisdictions, where the Federated States of Micronesia admission is sought on the same terms that would be available to a Federated States of Micronesia practitioner in the jurisdiction in which the applicant is admitted.

FSM Adm. R. III. Mr. McCaffrey cited his membership in the Pohnpei State Court bar as the basis for reciprocal admission.

The trial division denied the motion on February 19, 1993 and Mr. McCaffrey thereafter filed a notice of appeal from the trial court decision. On appeal McCaffrey alleges a number of grounds for reversal of the decision, including due process and other constitutional violations. We find no error of law by the trial court in interpreting FSM Admission Rule III, and no support for the constitutional claims raised.

II. ANALYSIS

Interpretation of FSM Admission Rule III

FSM Admission Rule III states the Court's intention to consider "reciprocal bar admission arrangements with other jurisdictions." It also states the Court's willingness to assist attorneys admitted in other jurisdictions "to encourage such reciprocal arrangements." Lastly, the rule states that the Court will favorably consider requests for admission by attorneys licensed in other jurisdictions, where the FSM Supreme Court admission "is sought on the same terms" that would apply to an attorney licensed in the FSM seeking admission in the other jurisdiction.

No formal arrangement of reciprocal admission exists between the Pohnpei Supreme Court, where appellant is licensed to practice, and the FSM Supreme Court. However, appellant argues that the rule does not require a formal arrangement and that the last clause of the rule implies that de facto reciprocity exists in this case because FSM Supreme Court practitioners are freely admitted to practice before the Pohnpei Supreme Court bar.

The trial court in its denial of McCaffrey's motion concluded that formal existing arrangements are contemplated by the language of the rule and that where no such arrangement exists the rule does not apply. Without pronouncing a view as to the exact nature of the arrangement intended, we agree with the trial court that the rule does not provide that unstated arrangements for reciprocal admission suffice. The first clause of the second sentence of the rule clearly suggests that in the absence of a known, formally established arrangement between the FSM Supreme Court and another jurisdiction, the Court will aid in efforts to establish one when appropriate. We find it contrary to logic to read the second and third clauses of the second sentence as undercutting the intent of the first part of the sentence by providing an alternate way for individual attorneys to circumvent the stated method of gaining admission by reciprocity. In reading the rule, we follow the established norm of statutory construction that a provision of law must be read so as to be internally consistent and sensible. FSM v. George, 2 FSM Intrm. 88, 94

[6 FSM Intrm. 282]

(Kos. 1985); 2A C. Dallas Sands, Sutherland Statutory Construction §§ 45.12, 46.05 (4th ed. 1973). Consequently, we deem the second and third clauses of the second sentence to indicate the conditions under which an application for admission from an attorney licensed in another jurisdiction will be considered when a reciprocal arrangement exists between the FSM and the other jurisdiction. In other words, the last clause of the FSM Admission Rule III does not in itself create supplemental terms for a reciprocal admission arrangement.

We note further that the term "other jurisdictions" in FSM Admission Rule III referred to other Pacific jurisdictions at the time of rule's promulgation. This is suggested by the history of the rule. The explanatory notes to the Rules for Admission state the purpose of Rule III to be "so that practitioners within one jurisdiction in the Pacific community may be able to practice in other jurisdictions through reciprocal arrangements." Explanation of the Rules for Admission to Practice Before the Supreme Court of the Federated States of Micronesia at 16 (June 30, 1981). There is nothing to suggest that other Pacific community jurisdictions were meant to include individual state courts within the FSM which were not in existence at the time of promulgation of the rules of admission to the national court.

Also, it is clear from the explanatory notes that the attorneys to whom the rule is directed are non-FSM resident practitioners. The discussion of FSM Admission Rule III comes under the section labeled "Nonresident Attorneys." Explanation of the Rules for Admission at 16. It appears in the paragraph that begins, "[t]here nevertheless remains some opportunity for such persons to appear as counsel within the Federated States of Micronesia." The term "such persons" refers to nonresidents, as indicated by the immediately preceding paragraph on page 16 and the section heading. Therefore, we find that FSM Admission Rule III does not apply to a FSM resident attorney such as Mr. McCaffrey seeking admission to this Court by means of membership in a state bar.

Finally, we note that even in light of a showing of having met the conditions specified in the Rule, admission based on reciprocity ultimately rests within the discretion of the Court. The clause "will give favorable consideration to requests for admission" found in the rule does not create a right on the part of an attorney to guaranteed admission nor a mandatory duty on the part of the Court to grant admission. Under this analysis the standard of review would be abuse of discretion by the adjudicator. Appellant offers no proof and we find no evidence that the trial court abused its discretion in denying appellant's motion for admission, even assuming arguendo that a reciprocal admission arrangement existed with the Pohnpei Supreme Court.

Constitutional Claims

The appellant having failed on the reciprocity grounds he asserted, we now turn to his constitutional arguments. Mr. McCaffrey makes the following constitutional claims:

(1) that it was a denial of due process for the trial division to rule on the petition without holding a hearing;

(2) that for the FSM Supreme Court, as a court of "limited jurisdiction," to require a written bar examination constitutes an unconstitutional usurpation of state sovereignty;

(3) that FSM Admission Rule II requiring a bar examination exceeds the Constitutional rule-making authority to govern the admission and practice of attorneys;

(4) that the requirement of a bar examination "chills" and infringes upon the right of the

[6 FSM Intrm. 283]

people to legal services in violation of article XIII, section 1 of the FSM Constitution; and

(5) that it was a denial of due process for the trial court not to follow FSM Admission Rule III and grant appellant's motion for admission.

Closely connected with appellant's constitutional argument (1) above is the assertion that the trial court erred as a matter of law in making outside the record findings regarding reciprocity with the Pohnpei State Supreme Court.

We are not persuaded of any constitutional violation in this matter. We note that the appellant cites no legal authority whatsoever for any of his constitutional assignments of error. FSM Appellate Rule 28(a), regarding the contents of the brief of an appellant, requires, inter alia, that arguments "shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes, and parts of the record relied on." FSM Civil Rule 28(a) is derived from the United States Federal Rule of Civil Procedure 28(a). United States courts applying this rule have treated failure to comply with the mandatory requirements of the rule as grounds for dismissal of the appellant's case. See Stevens v. Security Pac. Nat'l Bank, [1976] USCA9 748; 538 F.2d 1387 (9th Cir. 1976) (appeal dismissed on other grounds but court noted that failure to comply with provisions of Appellate Rule 28(a) would alone justify dismissal); Harrelson v. Lewis, [1969] USCA4 522; 418 F.2d 246 (4th Cir. 1969) (appeal dismissed for failure to comply with Appellate Rule 28(a) and Appellate Rule 30, requiring inclusion of an appendix). A similar penalty applies in the trial division of this Court under FSM Civil Rule 6(d) ("Failure by the moving party to file the memorandum of points and authorities shall be deemed a waiver by the moving party of the motion . . . ."). We find ample justification, therefore, from case authority and by analogy with FSM Civil Rule 6(d) to deem Mr. McCaffrey's constitutional claims as waived by the failure to provide any supporting authority.^[1]

The decision of the trial court is affirmed and the appeal is dismissed.

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^[1] On a procedural note, appellant also failed to provide an appendix when filing his brief pursuant to FSM Appellate Rule 30(a). The provision of an appendix is mandatory, not optional at the discretion of the attorney. See Nakamura v. Bank of Guam (I), [1993] FMSC 37; 6 FSM Intrm. 224, 228 (App. 1993).