Chuuk v Secretary of Department of Finance [1999] FMSC 14; 9 FSM Intrm. 255 (App. 1999) (11 November 1999)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION
Cite case as Chuuk v Secretary of Finance, [1999] FMSC 14; 9 FSM Intrm 255 (App. 1999)

STATE OF CHUUK, STATE OF KOSRAE, STATE OF POHNPEI and STATE OF YAP,
Appellants,

vs.

SECRETARY OF DEPARTMENT OF FINANCE and the FEDERATED STATES OF MICRONESIA,
Appellees.

______________________________________________

APPEAL CASE NO. P4-1999

ORDER DENYING MOTIONS AND OVERRULING OBJECTION

Richard H. Benson
Associate Justice

Decided: November 11, 1999

APPEARANCES:

For the Appellant (State of Pohnpei):
James Woodruff, Esq.
Attorney General
Everett Walton, Esq.
Catherine L. Wiehe, Esq.
Assistant Attorneys General
Pohnpei Department of Justice
P.O. Box 1555
Kolonia, Pohnpei FM 96941

For the Appellees:
Elizabeth M. McCormick, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

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HEADNOTES

Appeal and Certiorari - Notice of Appeal
Rule 3(b) is permissive as to filing a joint notice of appeal. No provision in the rule makes this decision irrevocable. Chuuk v. Secretary of Finance, [1999] FMSC 14; 9 FSM Intrm. 255, 257 (App. 1999).

Appeal and Certiorari - Briefs and Record; Appeal and Certiorari - Notice of Appeal
Rule 28(i) permits appellants to join in a single brief. Implicit in this rule is an appellant's right to file individually. The right to file an individual brief is not forfeited or waived by the filing of a joint notice of appeal. Chuuk v. Secretary of Finance, [1999] FMSC 14; 9 FSM Intrm. 255, 257 (App. 1999).

Appeal and Certiorari - Briefs and Record
An appellant has a right to file its brief individually, and does not waive this right by joining the other appellants in earlier appeal procedures. Prejudice to an appellee from the resulting two briefs can be eliminated by seeking any necessary enlargement of time to file its responding briefs. Chuuk v. Secretary of Finance, [1999] FMSC 14; 9 FSM Intrm. 255, 257 (App. 1999).

Attorney, Trial Counselor and Client - Sanctions
Appellate counsel will not be sanctioned when they were not the party's counsel before the trial division or in previous appellate procedures and once they became counsel acted expeditiously to comply with the rules. Chuuk v. Secretary of Finance, [1999] FMSC 14; 9 FSM Intrm. 255, 257 (App. 1999).

* * * *

COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

Three related motions are before the court.

On October 7, 1999, the Appellees (hereafter "FSM") filed their Motion to Prohibit Filing of Multiple Briefs by Appellants. The motion was prompted by the FSM learning that Pohnpei intended to file a brief on appeal separate from the brief of the remaining states. Pohnpei filed its opposition on October 11, coinciding with the filing of its brief.

On October 11, the FSM filed its Objection to Appearance of Counsel. The objection was prompted by the filing on October 5th of the Appearance of Counsel by James Woodruff and Everett Walton. On October 11, Catherine L. Wiehe filed her Motion to Admit Counsel pro hac vice. I assume the same objection would apply to the granting of this motion.

On October 14, the FSM filed its Motion to Strike Appellant's Brief. This motion was prompted by service on the FSM of Pohnpei State's brief.

The factual basis for the motions is undisputed. In the course of this appeal either Andrea Hillyer or Jon M. Van Dyke signed and filed on behalf of the four states the Notice of Appeal, Request for Transcripts, a Response to Court Notice, an Amended Stipulated Motion for Enlargement of Time to File Initial Brief, and Appellants' Motion for Additional Pages for Opening Brief. Thus up until last month the states have proceeded as a single appellant.

It is also undisputed that until some time after September 14 and before October 5 it appeared that one brief would be filed on behalf of all states. Pohnpei then found that it was unable to agree with a proposed brief as to its length, the controlling law in some cases, and the issues to be presented on appeal. Promptly after entering their appearance, counsel for Pohnpei tried to obtain the agreement of the FSM on the contents of the appendix.

The FSM contends that since the notice of appeals was filed jointly, as permitted by Appellate Rule 3(b), the parties must continue jointly as one appellant. It also contends that the brief should be stricken because Pohnpei failed to follow the requirement of Appellate Rule 30(b) to seek agreement as to the contents of its appendix, designate the portions of the record it intended to include in its appendix or submit a statement of the issues it intended to present. The FSM commendably includes that the remaining appellants also failed to follow these requirements of Rule 30(b).

The FSM asserts that Pohnpei has waived its right to file a separate brief, and that permitting such filing would be prejudicial.

Rule 3(b) is permissive as to filing a joint notice of appeal. There is no provision in the rule that makes this decision irrevocable. Rule 28(i), concerning briefs, permits appellants to join in a single brief. Implicit in this rule is the right of an appellant to file individually. This point is stated explicitly in 9 James W. Moore et al., Moore's Federal Practice 228.02[8] d. 1990). No auth authority was provided that the right to file an individual brief is forfeited or waived by the filing of a joint notice of appeal.

The possibility of individual briefs, admittedly in retrospect, can be seen in the appellants' Amended Stipulated Motion for Enlargement of Time to File Initial Brief which stated in part, "[T]he four states need additional time to prepare their respective positions on appeal and to coordinate the drafting of a comprehensive, unified brief."

I conclude that Pohnpei has a right to file individually, and did not waive this right by joining the remaining three states in earlier appeal procedures.

Prejudice to the FSM from the resulting two briefs can be eliminated by seeking any necessary enlargement of time to file its responding briefs.

The motions to prohibit and to strike are accordingly denied.

As sanctions the FSM sought dismissal of Pohnpei, or alternatively, allowing Pohnpei to join the other states in the brief filed by them on October 15, and sanctions against counsel for failing to follow Rule 30(b). The dismissal request fails because the brief will not be stricken.

As to sanctioning of counsel appearing in opposition to these motions, they were not counsel for Pohnpei before the trial division or in all appellate procedures until last month. Additionally, it appears that present counsel acted expeditiously to obtain the agreement on the contents of the appendix, and the issues to be presented appear in the brief. And counsel for other appellants failed to observe Rule 30(b), rendering it difficult to even consider sanctions against counsel for one appellant. This result should not be read to indicate that failure to follow the procedures set out in the rules is approved.

The FSM has failed to provide adequate authority to warrant its objection to the notices of appearance by Pohnpei counsel. That objection is accordingly overruled. The Motion to Admit Catherine L. Wiehe is granted.