Sipos v Crabtree [2005] FMSC 37; 13 FSM Intrm. 355 (Kos. 2005) (8 August 2005)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

Cite as Sipos v Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355 (Kos. 2005)

MICHAEL J. SIPOS,
Plaintiff,

vs.

MATTHEW CRABTREE, individually, and MATTHEW)
CRABTREE in his capacity as an FSM Assistant
Attorney General, ANTHONY WELCH in his capacity
as an Assistant Attorney General, and the FEDERATED
STATES OF MICRONESIA through its SECRETARY OF
JUSTICE, MARSTELLA JACK,)
Defendants.

CIVIL ACTION NO. 2004-001

ORDER GRANTING MOTION TO DISMISS

Dennis K. Yamase
Associate Justice

Hearing: July 6, 2005
Decided: August 8, 2005

APPEARANCES:

For the Plaintiff:
Michael J. Sipos, Esq.
P.O. Box 2069
Kolonia, Pohnpei FM 96941

Stephen V. Finnen, Esq. (argued)
P.O. Box 1450
Kolonia, Pohnpei FM 96941
For the Defendants:
Andrea S. Hillyer, Esq.
P.O. Drawer D
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Civil Procedure - Parties
The Secretary of Justice’s name will be substituted for that of the former Acting Secretary of Justice because when a public officer is a party to an action in an official capacity and during its pendency ceases to hold office, the officer’s successor is automatically substituted as a party and proceedings following the substitution will be in the name of the substituted party. Sipos v. Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355, 360 (Pon. 2005).

Civil Procedure - Dismissal; Civil Procedure - Pleadings
Motions to dismiss are not pleadings and oppositions to such motions are not responsive pleadings. Sipos v. Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355, 360 (Pon. 2005).

Civil Procedure - Dismissal
A defendant cannot file successive Rule 12 motions to dismiss that raise different defenses. Sipos v. Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355, 360 (Pon. 2005).

Civil Procedure - Dismissal
To what extent a defendant can amend an existing motion to dismiss is unclear. However, when an amended motion to dismiss adds only a more detailed discussion of a case, which was cited in the original motion and thus already before the court, plus some other trivial changes, there is no real difference in defenses raised in each motion. Because of this and when the parties have proceeded, without discussion, on the basis that the amended motion is what is before the court, the court need not determine which is the operable filing. Sipos v. Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355, 360 (Pon. 2005).

Civil Procedure - Motions
The FSM Civil Procedure Rules neither specifically provide for the filing of replies to oppositions to motions nor bar them, and it has been the trial division’s general practice to accept such filings. A court may thus consider replies to the extent that they address the opposition, and not to the extent that the reply raises issues extraneous to the original motion or the opposition. A response to a reply can only be termed a surreply. Surreplies are uncommon, but the court will consider them on the same terms and for the same reasons that it considers replies. Sipos v. Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355, 360-61 (Pon. 2005).

Civil Procedure - Dismissal
A court evaluates a Rule 12(b)(6) motion to dismiss only on whether a plaintiff’s claim has been adequately stated in the complaint, and does not resolve the case’s facts or merits. The court’s review is limited to the complaint’s contents. A motion to dismiss cannot be granted unless it appears to a certainty that no relief could be granted under any state of facts that can be proven in support of the claim, and in making its determination, the court must assume that the complaint’s allegations are true and view all reasonable inferences drawn therefrom in the light most favorable to the plaintiff. Sipos v. Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355, 362 (Pon. 2005).

Constitutional Law - Case or Dispute - Ripeness; Constitutional Law - Case or Dispute - Standing
Standing is a threshold issue going to this court’s subject matter jurisdiction and thus is addressed first. Standing must be found for each count of a complaint or that count will be dismissed. Ripeness is also a threshold issue. Sipos v. Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355, 362 (Pon. 2005).

Constitutional Law - Case or Dispute - Standing
Although standing is not an expressly-stated requirement of the FSM Constitution, it is implied as an antecedent to the "case or dispute" requirement found in the Constitution’s jurisdictional grant to the court, and must be interpreted so as to implement that requirement’s objectives. That is, there must be a case or dispute in order for the FSM Supreme Court to have jurisdiction over the subject matter. Sipos v. Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355, 362 (Pon. 2005).

Constitutional Law - Case or Dispute - Standing
The issue of standing to sue is an area which calls for this court’s independent analysis rather than adherence to decisions construing similar provisions in the United States Constitution. Sipos v. Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355, 363 (Pon. 2005).

Constitutional Law - Case or Dispute - Standing
For there to be standing, opposing parties must have sufficiently competing contentions and adverse interests such that the adversaries will thoroughly consider, research, and argue the points of law at issue. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. Two factors are central to the determination of whether a party has standing. First, he must allege a sufficient stake in the controversy’s outcome and he must have suffered some threatened or actual injury resulting from the allegedly illegal action, and, second, the injury must be such that it can be traced to the challenged action and must be of the kind likely to be redressed by a favorable decision. Sipos v. Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355, 363 (Pon. 2005).

Constitutional Law - Case or Dispute - Standing
While not constitutionally based, three additional, prudential principles need to be considered before the standing question can be resolved. First, generalized grievances shared by substantially the whole population do not normally warrant standing. Second, even when an injury sufficient to satisfy the constitutional requirement is alleged, the plaintiff generally must assert his own legal rights and interests, and cannot rest its claim to relief on the legal rights or interests of third parties. Third, the plaintiff’s complaint must fall within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. Sipos v. Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355, 363 (Pon. 2005).

Constitutional Law - Case or Dispute - Standing
The first factor to be addressed in a standing inquiry is whether the plaintiff has alleged a sufficient stake in the controversy’s outcome and whether he has suffered some threatened or actual injury resulting from defendants’ allegedly illegal action. The injury must be an invasion of some legally protected interest which is concrete and particularized, and actual, or imminent. Sipos v. Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355, 363 (Pon. 2005).

Constitutional Law - Case or Dispute - Standing
To have standing, a plaintiff must suffer some threatened or actual injury resulting from defendant’s allegedly illegal action and the injury must be an invasion of a legally protected interest which is concrete and particularized, and actual or imminent, but when the plaintiff’s assertion of injury that runs to all counts of his complaint is that his threatened injury of attorney fee forfeiture is too speculative, it does not pass the first factor of the standing test. Sipos v. Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355, 363-64 (Pon. 2005).

Constitutional Law - Case or Dispute - Standing
When no fee forfeiture proceeding has been instituted against the plaintiff and the government has stated that it has no intention of seeking pre-conviction attachment or seizure of attorney fees and would consider seeking forfeiture only if the criminal defendants are convicted; when in spite of the plaintiff’s assertion of a chilling effect on representation of those defendants, he entered an appearance on their behalf; when that case has yet to go to trial and no one has been convicted; and when no determination has been made of the status of any of the funds that might be subject to forfeiture, there is yet no injury or likelihood of any injury to the plaintiff and the dispute is purely of a hypothetical or abstract character. To be a threatened injury which is actual or imminent, the court would have to presume that the plaintiff’s clients are guilty, before that has been proven, or that they will be convicted, before a verdict has been rendered. Since that case may end with the plaintiff’s clients’ acquittal or dismissal, the threatened injury may remain forever hypothetical, is thus neither actual nor imminent. Sipos v. Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355, 364-65 (Pon. 2005).

Constitutional Law - Case or Dispute - Standing
The second factor in a standing inquiry is that the injury must be such that it can be traced to the challenged action and must be of the kind likely to be redressed by a favorable decision. Part of this standing factor is redressability - will the relief requested make any legal difference that will redress the plaintiff’s injury? Sipos v. Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355, 365 (Pon. 2005).

Constitutional Law - Case or Dispute - Standing
A party cannot raise the claims of third persons; he may raise only his own claims. He generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties. Sipos v. Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355, 365 (Pon. 2005).

Constitutional Law - Case or Dispute - Standing
Since the alleged wrongful interference with the plaintiff’s ability to represent his clients is an alleged violation of his clients’ rights, not of his rights, those rights are for his clients to assert. Thus to the extent that a cause of action is based on the violation of the rights of others, the plaintiff lacks standing to bring it because it is not redressible - he cannot seek redress for these allegations. Sipos v. Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355, 365 (Pon. 2005).

Constitutional Law - Case or Dispute - Standing
When a request for relief is a declaration of when an attorney may accept a fee without the fee being subject to forfeiture at a later time by a confiscation order, it asks for an advisory opinion. The court has no jurisdiction to give advisory opinions, because to do so would violate the Constitution’s case or dispute requirement. An advisory opinion is thus not a form of redress available to a plaintiff. Sipos v. Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355, 365 (Pon. 2005).

Constitutional Law - Case or Dispute - Standing
When the plaintiff seeks as relief an order unsealing another case, even if it were his own rights he was asserting and not those of other non-parties, he would have to seek that relief in the court handling that case or a criminal case that arose from it, not in this case since that proposed relief does not redress the threatened injury - loss of attorney’s fees - in this case. Sipos v. Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355, 365 (Pon. 2005).

Constitutional Law - Case or Dispute - Ripeness
A matter must also be ripe for adjudication for there to be a case or dispute over which the court can exercise jurisdiction. Sipos v. Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355, 366 (Pon. 2005).

Constitutional Law - Case or Dispute - Ripeness
When any attorney’s fee forfeiture (which is the plaintiff’s allegedly threatened injury) could not possibly occur until after trial and conviction of his clients in another case, and, since only if that occurs, the government might (but not even then, certainly) seek forfeiture of any fee earned by the plaintiff, the alleged injury is, at this time, too speculative and remote for this case to be ripe for adjudication. It is thus not a concrete controversy capable of adjudication now since none of the four counts, to the extent that they seek redress for or protection of the plaintiff’s allegedly threatened fees, are ripe for adjudication. Sipos v. Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355, 366 (Pon. 2005).

Constitutional Law - Case or Dispute - Ripeness; Constitutional Law - Case or Dispute - Standing
When the complaint either asserts the rights of others not a party to the case or seeks relief not available here or seeks redress for or protection of the plaintiff’s allegedly threatened attorney’s fees and the fee claim is not ripe for adjudication, the entire complaint will be dismissed for lack of standing and ripeness. Sipos v. Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355, 366 (Pon. 2005).

Constitutional Law - Case or Dispute - Ripeness; Constitutional Law - Professional Services Clause
Although it is doubtful whether the Constitution’s Professional Services Clause protects an attorney’s fee from forfeiture in any or all circumstances where the law would seem to allow it, that is an issue that must await another day when there is a case or dispute before the court ripe for adjudication. Sipos v. Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355, 366 (Pon. 2005).

Criminal Law and Procedure - Prosecutors; Torts - Immunity
Under FSM caselaw, prosecutors enjoy absolute immunity from prosecution for their actions which are connected to their role in judicial proceedings, including participation in hearings related to obtaining search warrants. Prosecutors do not, however, enjoy absolute immunity for their role as administrative or investigative officers. Prosecutors are absolutely immune for involvement in judicial proceedings to obtain a search warrant, but not for participation in and giving police advice regarding the execution of a search warrant. Sipos v. Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355, 366 (Pon. 2005).

Criminal Law and Procedure - Prosecutors; Torts - Immunity
A request for, appearance at, and the presentation of evidence related to obtaining a search warrant is considered part of a prosecutor’s judicial function, for which the prosecutor enjoys absolute immunity. This is true even though no criminal information has been filed yet since search warrants are usually, but not always, sought before criminal charges are filed. The defendants therefore enjoy absolute immunity for all alleged wrongful acts related to obtaining search warrants or other pretrial orders of a similar nature. Sipos v. Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355, 367 (Pon. 2005).

Criminal Law and Procedure - Prosecutors; Torts - Immunity
A prosecutor’s actions in seeking (and obtaining) release conditions during an initial appearance in a criminal case, was a judicial function for which prosecutors enjoy absolute prosecutorial immunity. Sipos v. Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355, 367 (Pon. 2005).

Attorney and Client - Attorney Discipline and Sanctions
The court’s disciplinary procedures remain the means of redress for anyone who believes an FSM attorney has acted unethically. Sipos v. Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355, 367 (Pon. 2005).

Civil Procedure - Dismissal; Civil Procedure - Pleadings
When no responsive pleading has been filed in a case, but only a Rule 12(b) motion to dismiss, which is not a responsive pleading, has been filed, the plaintiff could have amended his complaint without leave of court at anytime before the court acted on the motion to dismiss. Since he chose not to do so, the court will not grant him leave to do now what he has had the opportunity to do for over a year. Sipos v. Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355, 367 (Pon. 2005).

* * * *

COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

On July 6, 2005, oral arguments were heard on the defendants’ motion to dismiss and the plaintiff’s opposition to it. The motion to dismiss is granted. The court’s reasons follow.

I. Background

The plaintiff, Michael J. Sipos, filed his complaint on January 26, 2004 and served it on defendant Matthew Crabtree on January 28, 2004. On February 16, 2004, the defendants filed their Motion to Dismiss. On February 19, 2004, they filed an Amended Motion to Dismiss. On March 1, 2004, the defendants other than Crabtree were served. Also on March 1, 2004, Sipos filed his Opposition to Amended Motion to Dismiss, and on March 3, 2004, filed his Supplement to Opposition to Amended Motion to Dismiss. On March 22, 2004, the defendants filed papers styled Adoption of Amended Motion to Dismiss on Behalf of the FSM National Government, Anthony Welch. On March 24, 2004, Sipos filed papers styled Opposition to 2d Amended Motion to Dismiss (Erroneously Labeled "Adoption of Amended Motion to Dismiss"). On June 27, 2005, the defendants filed a Notice of Supplemental Authority and Request to Take Judicial Notice.

At the July 6, 2005 hearing’s outset and in the parties’ submissions, the court was informed that any lack of service on defendants Anthony Welch and the national government had been cured and that the part of the motion to dismiss based on insufficiency of service of process, FSM Civ. R. 12(b)(5), on those defendants was now moot. The court was also informed that defendants Matthew Crabtree and Anthony Welch are no longer employed by the Department of Justice and have the left the FSM and that the current Secretary of the Department of Justice is Marstella Jack. "When a public officer is a party to an action in an official capacity and during its pendency . .&# ceases to hold office .ice . .&. the officer’s sucs successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party . . . ." FSM C. 25(d)(1)reSecy ofry of Juof Justice Marstella Jack’s name has therefore been substituted for that of the former Acting Secretf JusHarryour.

All parties have proceeded on the basis that the AmendAmended Moed Motion tion to Dismiss and the subsequent related filings are the operative papers before the court. The defendants filed the amended motion on their theory that since "no responsive pleading to the original motion has been served," they had a right to file an amended motion. Motions to dismiss are not pleadings and oppositions to such motions are not responsive pleadings. See FSM Civ. R. 7(a) (list of all possible pleadings). Generally, a defendant cannot file successive Rule 12 motions to dismiss that raise different defenses. FSM Civ. R. 12(g) (consolidation of defenses and objections into one motion; omitted defense or objection cannot be subject of later motion). To what extent a defendant can amend an existing motion to dismiss is unclear. However, since the amended motion to dismiss adds only a more detailed discussion of a case, Caplin & Drysdale, Chartered v. United States, [1989] USSC 129; 491 U.S. 617, 109 S. Ct. 2646, 105 L. Ed. 2d 528 (1989), which was cited in the original motion and thus already before the court, plus some other trivial changes, there is no real difference in defenses raised in each motion. Because of this and since the parties have proceeded, without discussion, on the basis that the amended motion is what is before the court, the court need not determine which is the operable filing.

Sipos responded to the amended motion with an opposition and then later with a supplement to that. The defendants’ March 22, 2004 filing is thus a reply to the opposition(s). The FSM Civil Procedure Rules neither specifically provide for the filing of replies to oppositions to motions nor bar them, and it has been the trial division’s general practice to accept such filings. Damarlane v. FSM, [1996] FMSC 40; 7 FSM Intrm. 383, 385 (Pon. 1996). A court may thus consider replies to the extent that they address the opposition, and not to the extent that the reply raises issues extraneous to the original motion or the opposition. Island Dev. Co. v. Yap, [1999] FMSC 19; 9 FSM Intrm. 279, 282 (Yap 1999). Sipos’s March 24, 2004 response to the defendants’ reply can therefore only be termed a surreply. Surreplies are uncommon, but the court has considered them, and will consider this one, on the same terms and for the same reasons that it considers replies. See, e.g., Enlet v. Bruton, [2003] FMSC 71; 12 FSM Intrm. 187, 189 (Chk. 2003); Amayo v. MJ Co., [2001] FMSC 32; 10 FSM Intrm. 371, 384 (Pon. 2001).

II. Plaintiff’s Pleading

Under Count I, Sipos asserts that the money-laundering statute’s forfeiture provision, 11 F.S.M.C. 929 et seq., is unconstitutional because it: (1) violates the Professional Services Clause, FSM Const. art. XIII, § 1; (2) impairs the constitutional guarantee to right to counsel, FSM Const. art. IV, § 6; (3) does not afford adequate due process protections, FSM Const. art. IV, § 3; (4) violthe constitutionutionaht to silence, FSM Const. ast. art. IV, § 7; (5) as defendants indicate they will seek to apply it, it violates the equal protecclause, FSM Const. art. IV, § 4;as defendantndants indicandicate they will seek to apply it, it violates Sipos’s righ freely associate with his his clients protected by FSM Const. art. IV, § 1; and (7) the statutunconsnconstitutionally vague.

Under Count II, Sipos asserts civil rights violations under the Professional Services Clause, FSM Const. art. XIII, & 1. Sipos asserts that the defendants’ actions pons put him in conflict with his clients’ interests and that he has been harmed by the inability to further his defense obligations to his clients. Sipos lists further constitutional violations as violation of the rights of freedom of association, FSM Const. art. IV, § 1; of equal prote, FSM Cons Const. art. IV, § 4, and deprivation of property rights without due process, FSM Const. art. IV, § 3.

Under Count IIIosIIIos asserts that the defendants’ unlawful behavior impr impairs his contractual relationship with his clients and will result in greaconomic losses to him that would not otherwise occur but fout for defendants’ unlawful conduct.

Under Count IV, Sipos asserts that the defendants conspired to systematically deprive all the Chuukese criminal defendants in FSM v. Kansou et al., Crim. No. 2003-1508 (Kansou), of their basic and fundamental constitutional rights, including the right to counsel, FSM Const. art. IV, § 6, and the right not to be compelled to give evidence that may be used against them in a criminal proceeding, FSM Const. art. IV, § 7.

Thesertions ions are based, in part, on the following factual alions: that Sipos had been reen refused access to a sealed court file [Case No. 2003-700] at Palikir that involved an investigation of warrants served on, one ofne of his clients; that Sipos encountered certain difficulties with the FSM Department of Justice regarding items seized from that client during the course of that investigation; that, as a result of that investigation, a money-laundering prosecution (Kansou) was filed against numerous defendants, including his client, and that, both before and after that prosecution was filed, Sipos was told a number of times (mostly by Crabtree) that the FSM could seek the forfeiture of fees received by an attorney representing those under investigation or being prosecuted; that at the January 13, 2004 initial appearance in Kansou, Sipos appeared representing two (later three) of the accused [none of whom were his original client] and that Crabtree appeared as prosecutor; and that at that initial appearance, Crabtree sought (and obtained) in an improper manner pretrial release conditions Sipos alleges were unlawful. Sipos alleges that these actions were all designed to intimidate him (and other private attorneys) from representing defendants in Kansou. He also alleges that the search of another private attorney’s Pohnpei law office was part of this design.

Sipos seeks as relief a declaration that the forfeiture provision of Title 11, chapter 9 is unconstitutional when applied to attorney’s fees because attorney’s fees are protected by the above-cited constitutional provisions, or, in the alternative, a declaration of when "he may accept a fee without the fee being subject to forfeiture at a later time by a confiscation order"; and if the court does not find the forfeiture provision unconstitutional under the facts alleged, then he seeks an injunction barring the government from seeking forfeiture, and from investigating him for the purpose of seeking forfeiture, if Sipos complies with the court’s declaration of terms of when he may accept a fee without danger of forfeiture. He also seeks an order unsealing the file in Case No. 2003-700. Additionally, Sipos seeks money damages for Counts II, III, and IV, and attorney’s fees and punitive damages for Counts II and IV.

III. Defendants’ Motion to Dismiss

The defendants challenge Sipos’s complaint on the grounds that Sipos lacks standing, that the action is not ripe, and that it fails to state a claim upon which relief can be granted. The defendants assert that Count I of the complaint should be dismissed for lack of standing, ripeness, and justiciability and that Counts II, III, and IV should be dismissed due to the doctrine of absolute prosecutorial immunity. The motion is thus brought under Civil Rule 12(b)(1), lack of subject matter jurisdiction (standing, ripeness, and justiciability), and under Civil Rule 12(b)(6), failure to state a claim upon which relief can be granted.

A court evaluates a Rule 12(b)(6) motion to dismiss only on whether a plaintiff’s claim has been adequately stated in the complaint, and does not resolve the case’s facts or merits. The court’s review is limited to the complaint’s contents. Latte Motors, Inc. v. Hainrick, [1995] FMSC 31; 7 FSM Intrm. 190, 192 (Pon. 1995). A motion to dismiss cannot be granted unless it appears to a certainty that no relief could be granted under any state of facts that can be proven in support of the claim, and in making its determination, the court must assume that the complaint’s allegations are true and view all reasonable inferences drawn therefrom in the light most favorable to the plaintiff. Nahnken of Nett v. United States, [1996] FMSC 9; 7 FSM Intrm. 581, 586 (App. 1996).

IV. Discussion

Essentially, the complaint seeks to protect Sipos’s allegedly threatened right to attorney’s fees in another case (Kansou) and to prevent those fees from being forfeited to the government. The defendants assert that Sipos lacks standing, that the case is not ripe at this time, and that it fails to state a claim upon which the court can grant relief.

A. Standing and Ripeness

Standing is a threshold issue going to this court’s subject matter jurisdiction and thus is addressed first. FSM v. Udot Municipality, [2003] FMSC 60; 12 FSM Intrm. 29, 39 (App. 2003). Standing must be found for each count of Sipos’s complaint or that count will be dismissed. Ripeness is also a threshold issue.

1. Standing Requirements

Although standing is not an expressly-stated requirement of the FSM Constitution, it is implied as an antecedent to the "case or dispute" requirement found in the Constitution’s jurisdictional grant to the court, FSM Const. art. XI, § 6, and must be interp so asso as to implement that requirement’s objectives. Udot Municipality, 12 FSM Intrm. at 40. That is, there must be a case or dispute in order fe FSM Supreme Court to have jurisdiction over the subject mect matter. Moses v. M.V. Sea Chase, [2001] FMSC 56; 10 FSM Intrm. 45, 51 (Chk. 2001). The issue of standing to sue is an area which calls for this court’s independent analysis rather than adherence to decisions construing similar provisions in the United States Constitution. Innocenti v. Wainit, [1986] FMSC 3; 2 FSM Intrm. 173, 178-79 (App. 1986); Eighth Kosrae Legislature v. FSM Dev. Bank, [2003] FMSC 27; 11 FSM Intrm. 491, 496 (Kos. 2003).

A party has standing to sue when that party has a sufficient stake or interest in an otherwise justiciable controversy to obtain judicial resolution of that controversy. The implied requirement that a party have standing should be interpreted so as to implement the objectives of the constitutional requirement that a case or dispute exist. Udot Municipality, 12 FSM Intrm. at 40; Eighth Kosrae Legislature, 11 FSM Intrm. at 496; In re Parcel No. 046-A-01[1993] FMSC 30; , 6 FSM Intrm. 149, 153 (Pon. 1993).

The judicial guidance clause, FSM Const. art. XI, § 11, mandthat the court firs first consult and apply sources from within the FSM. Alfons v. FSM, [1992] FMSC 29; 5 FSM Intrm. 402, 404-05 (App. 1992). The overall goal is to develop standing principles which arsistent with the Constitutiitution’s language and designed to meet the needs of the FSM’s people and institutions. Udot Municipality, 12 FSM Intrm. at 40; Eighth Kosrae Legislature, 11 FSM Intrm. at 496; Aisek v. Foreign Inv. Bd., 2 FSM Intrm. 95, 98-99 (Pon. 1985).

Opposing parties must have sufficiently competing contentions and adverse interests such that the adversaries will thoroughly consider, research, and argue the points of law at issue. Aisek, 2 FSM Intrm. at 101. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. Ponape Chamber of Commerce v. Nett Mun. Gov’t[1984] FMSC 2; , 1 FSM Intrm. 389, 401 (Pon. 1984).

Two factors are central to the determination of whether a party has standing. First, he must allege a sufficient stake in the controversy’s outcome and he must have suffered some threatened or actual injury resulting from the allegedly illegal action, and, second, the injury must be such that it can be traced to the challenged action and must be of the kind likely to be redressed by a favorable decision. Udot Municipality, 12 FSM Intrm. at 40; Eighth Kosrae Legislature, 11 FSM Intrm. at 497.

While not constitutionally based, three additional, prudential principles need to be considered before the question of standing can be resolved. First, generalized grievances shared by substantially the whole population do not normally warrant standing. Second, even when an injury sufficient to satisfy the constitutional requirement is alleged, the plaintiff generally must assert his own legal rights and interests, and cannot rest its claim to relief on the legal rights or interests of third parties. Third, the plaintiff’s complaint must fall within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. Udot Municipality, 12 FSM Intrm. at 40; Eighth Kosrae Legislature, 11 FSM Intrm. at 497.

2. Standing Analysis

The first factor to be addressed is whether Sipos has alleged a sufficient stake in the controversy’s outcome and whether he has suffered some threatened or actual injury resulting from defendants’ allegedly illegal action. The injury must be an invasion of some legally protected interest which is concrete and particularized, and actual, or imminent. Eighth Kosrae Legislature, 11 FSM Intrm. at 497.

Sipos asserts that he has a sufficient stake in this controversy’s outcome as various constitutional violations occurred in Kansou due to the defendants’ conduct and that the injury is concrete and definite. To have standing, Sipos must suffer some threatened or actual injury resulting from defendant’s allegedly illegal action and the injury must be an invasion of a legally protected interest which is concrete and particularized, and actual or imminent. The problem with Sipos’s assertion of injury that runs to all counts of his complaint is that his threatened injury of attorney fee forfeiture is too speculative to pass the first factor of the standing test.

At oral argument, Sipos has cited a number of FSM cases where declaratory judgment had been sought and the case withstood a Rule 12 challenge - Truk Trading Co. (Pohnpei) v. Department of Treasury, [2003] FMSC 41; 12 FSM Intrm. 1 (Pon. 2003); Udot Municipality v. FSM, [2000] FMSC 21; 9 FSM Intrm. 560 (Chk. 2000) and [2001] FMSC 29; 10 FSM Intrm. 354 (Chk. 2001), aff’d[2003] FMSC 60; , 12 FSM Intrm. 29 (App. 2003); Dorval Tankship Pty, Ltd. v. Department of Finance, [1997] FMSC 24; 8 FSM Intrm. 111 (Chk. 1997). Those cases, however, are distinguishable.

In the Dorval, the plaintiffs were time charters of an ocean-going petroleum tanker and the FSM government was trying to levy FSM gross revenue taxes upon them, and wage and salary taxes upon the vessel’s crew. Dorval Tankship, 8 FSM Intrm. at 113. At the time the plaintiff filed its suit, the FSM government had already concluded that the plaintiffs were liable for the taxes. Id. at 115. The government asserted that the Dorval plaintiffs lacked standing to assert the rights to a declaratory action on the crew’s behalf because the crew were not parties to the action. Id. at 114. However, because the government had already determined the plaintiffs and the crew were liable for the taxes and since, if the crew were liable for wage and salary taxes, the plaintiffs would then be liable for withholding those taxes, the Dorval court concluded that the plaintiffs had standing to seek a declaratory judgment that they were not liable for the taxes. Id. at 115.

In Truk Trading Co. (Pohnpei), when the plaintiff sought a declaratory judgment, Pohnpei had already assessed liability for state sales tax against plaintiff, and the FSM government had already assessed liability against plaintiff for failure to pay FSM gross revenue tax on the amount that plaintiff had paid under protest in state sales taxes. Truk Trading Co. (Pohnpei), 12 FSM Intrm. at 2.

In Udot Municipality, the plaintiff municipality was found to have standing to challenge both the legality of the process and compliance with the Financial Management Act and related regulations to the extent that such compliance impacted upon the relief that it had requested when Udot had more than a general interest in this process’s legality as it contended that, under a fair and transparent application process, it would have received at least the opportunity to apply for and receive some of the funds for its own projects before the money was all spent. Udot Municipality, 12 FSM Intrm. at 45. The Udot standing analysis properly recognized and focused on Udot’s imminent threatened economic injury when the process by which the Faichuk appropriations were being administered was alleged to be unlawful. Id.

In contrast, at this stage of the Kansou proceedings, no fee forfeiture proceeding has been instituted against Sipos. In a letter dated January 16, 2004 from defendant Crabtree to Sipos (attached to Sipos’s complaint as Exhibits E and F), it is stated that the government had no intention of seeking pre-conviction attachment or seizure of attorney fees and would consider seeking forfeiture only if the Kansou criminal defendants are convicted. Further, in spite of Sipos’s assertion of a chilling effect on representation of the Kansou defendants, on January 13, 2004, Sipos entered an appearance to represent Roosevelt and Memorina Kansou, husband and wife, and later would also enter an appearance for EM-R, a business co-owned by the Kansous, subject to the resolution of a potential conflict of interest.

Kansou has yet to go to trial.^[1] No defendant has been convicted. And no determination has been made of the status of any of the funds that might be subject to forfeiture under Title 11, chapter 9. Further, because the Kansou proceedings are still in the pre-trial stage, the decision whether any of Sipos’s’ attorney fees would be subject to forfeiture has not been made. Since there is yet no injury or likelihood of any pre-trial injury to Sipos, the dispute here is purely of a hypothetical or abstract character. To be a threatened injury which is actual or imminent, this court would have to presume that Sipos’s clients are guilty, before that has been proven, or that they will be convicted, before a verdict has been rendered. This, the court refuses to presume. Kansou may end with Sipos’s clients’ acquittal or dismissal. The threatened injury may thus remain forever hypothetical. Unlike the cases cited by Sipos during oral argument where the threatened injury was either actual or imminent, in this case it is neither.

Sipos asserts that liability can arise from the defendants’ repeated statements to him that his attorneys fees would be subject to forfeiture. However, after those statements were made and, most importantly, before Sipos filed this case, the government put in writing (in Crabtree’s above-mentioned January 16, 2004 letter to Sipos) its commitment that it would not seek any pre-judgment attachment or forfeiture of Sipos’s attorney fees, although it did reserve its rights depending on that case’s outcome.

The second factor is that the injury must be such that it can be traced to the challenged action and must be of the kind likely to be redressed by a favorable decision. Udot Municipality, 12 FSM Intrm. at 40; Eighth Kosrae Legislature, 11 FSM Intrm. at 497. Part of this standing factor is redressability - will the relief requested make any legal difference that will redress the plaintiff’s injury? Eighth Kosrae Legislature, 11 FSM Intrm. at 498.

The claims raised in Count IV (and to some extent those in Count II) are primarily based on alleged violations of the rights of persons who are not parties in this case. A party cannot raise the claims of third persons; he may raise only his own claims. He generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties. Udot Municipality, 12 FSM Intrm. at 40; see also Eighth Kosrae Legislature, 11 FSM Intrm. at 497, 500 (petitioner generally must assert its own legal rights and interests and cannot rest its claim to relief on the legal rights or interests of third parties); College of Micronesia-FSM v. Rosario, [2001] FMSC 3; 10 FSM Intrm. 175, 188 (Pon. 2001) (a defendant cannot defeat a plaintiff’s summary judgment motion by raising a third party’s potential claim), aff’d[2003] FMSC 10; , 11 FSM Intrm. 355, 360 (App. 2003) (agreeing with trial court); Dorval Tankship, 8 FSM Intrm. at 115 (generally true that parties may not assert the rights of third parties). The alleged wrongful interference with Sipos’s ability to represent his clients in Kansou is an alleged violation of his clients’ rights, not of his rights. Those rights are for Sipos’s clients to assert. Thus to the extent that the fourth cause of action is based on the violation of the rights of others, Sipos lacks standing to bring it because it is not redressible in this case - Sipos cannot seek redress for these allegations.

Sipos’s alternative request for relief - a declaration of when he may accept a fee without the fee being subject to forfeiture at a later time by a confiscation order - asks for an advisory opinion. The court has no jurisdiction to give advisory opinions, Fritz v. National Election Dir., [2003] FMSC 37; 11 FSM Intrm. 442, 444 (App. 2003); Estate of Mori v. Chuuk, [2003] FMSC 43; 12 FSM Intrm. 24, 26 (Chk. 2003), because to do so would violate the Constitution’s case or dispute requirement. An advisory opinion is not a form of redress available to a plaintiff.

Sipos also seeks as relief an order unsealing Case No.2003-700. For that relief, even if it were his own rights he was asserting and not those of other non-parties, he would have to seek it in the court handling that case or a criminal case that arose from it, not in this case. That proposed relief does not redress the threatened injury - loss of attorney’s fees - in this case.

3. Ripeness

A matter must also be ripe for adjudication for there to be a case or dispute over which the court can exercise jurisdiction. See Dorval Tankship, 8 FSM Intrm. at 115 (when the government is attempting to enforce its tax statutes plaintiffs and the plaintiffs have been warned that they are potentially subject to criminal and civil penalties if they do not comply, it is a case or dispute sufficiently ripe for the plaintiffs to seek a declaratory judgment); Michelsen v. FSM, [1988] FMSC 25; 3 FSM Intrm. 416, 418 (Pon. 1988) (when the attorney general has specifically warned a party that he is required to obtain a foreign investment permit under national statute which imposes criminal sanctions for failure to comply, the question of whether a permit is required is sufficiently ripe to support a suit seeking declaratory judgment).

Sipos did not directly address, either in his written submissions or at oral argument, the defendants’ contention that his complaint was not ripe for adjudication. He apparently relies on his assertions of current threatened injury. As described above, any fee forfeiture (which is Sipos’s allegedly threatened injury) could not possibly occur until after trial and conviction of his clients in Kansou. Since only if that occurs, the government might (but not even then, certainly) seek forfeiture of any fee earned by Sipos, the alleged injury is, at this time, too speculative and remote for this case to be ripe for adjudication. This is thus not a concrete controversy capable of adjudication now.

Thus none of the four counts, to the extent that they seek redress for or protection of Sipos’s allegedly threatened fees, are ripe for adjudication. The rest of this complaint either asserts the rights of others not a party to the case or seeks relief not available here. The entire complaint will thus be dismissed for lack of standing and ripeness.^[2]

Although the court has some doubts whether the Constitution’s Professional Services Clause protects an attorney’s fee from forfeiture in any or all circumstances where the law would seem to allow it, see Carlos v. FSM, 4 FSM Intrm. 17, 29 (App. 1989) (primary responsibility, perhaps even sole responsibility, for the Professional Services Clause’s affirmative implementation must lie with Congress), that is an issue that must await another day when there is a case or dispute before the court ripe for adjudication.

B. Absolute Prosecutorial Immunity

Sipos contends that, under the facts he has alleged, the defendants do not enjoy absolute prosecutorial immunity. Under FSM caselaw, prosecutors enjoy absolute immunity from prosecution for their actions which are connected to their role in judicial proceedings, including participation in hearings related to obtaining search warrants. Prosecutors do not, however, enjoy absolute immunity for their role as administrative or investigative officers. Prosecutors are absolutely immune for involvement in judicial proceedings to obtain a search warrant, but not for participation in and giving police advice regarding the execution of a search warrant. Liwi v. Finn, [1992] FMSC 28; 5 FSM Intrm. 398, 401 (Pon. 1992); Jano v. King, [1992] FMSC 27; 5 FSM Intrm. 388, 396 (Pon. 1992).

Sipos contends that the defendants are entitled only to qualified immunity because many of the acts he complains of he alleges took place before the criminal information in Kansou was filed on November 11, 2003. He contends that those allegedly wrongful acts did not take place in a judicial proceeding, but were investigative or administrative actions.

However, a request for, appearance at, and the presentation of evidence related to obtaining a search warrant is considered part of a prosecutor’s judicial function, for which the prosecutor enjoys absolute immunity. Liwi, 5 FSM Intrm. at 401. This is true even though no criminal information has been filed yet. Search warrants are usually, but not always, sought before criminal charges are filed. FSM v. Wainit, [2002] FMSC 43; 11 FSM Intrm. 1, 10 (Chk. 2002). The defendants therefore enjoy absolute immunity for all alleged wrongful acts related to obtaining search warrants or other pretrial orders of a similar nature.

To the extent that Count IV does not involve the unripe fee forfeiture claim, it involves the release conditions sought (and obtained) by Crabtree during the January 13, 2004 Kansou initial appearance. That was a judicial proceeding for which the defendants enjoy absolute prosecutorial immunity. Even if Counts II, III, and IV were not dismissed for not being ripe and for (in part) lack of standing, much alleged in those counts would be dismissed for failure to state a claim upon which the court may grant relief based upon the defendants’ absolute prosecutorial immunity.

C. Redress

Sipos also contends that he has no alternative means of redress for the alleged wrongdoings of the Department of Justice’s personnel. He bases this contention on his conclusion that the FSM Department of Justice will not criminally prosecute its own personnel for any of their actions which, in his view, represent violations of criminal law; that there is no organized FSM bar association to regulate attorneys; and that "direct action by the court is rare, even in the face [of] compelling evidence of unethical conduct, largely because of the cumbersome nature of the rules governing prosecution of misconduct and the limited resources for doing so." Despite Sipos’s disregard for the court’s disciplinary procedures, these procedures remain the means of redress for anyone who believes an FSM attorney has acted unethically.

V. Conclusion

Accordingly, the defendants’ motion to dismiss is granted and the complaint filed January 26, 2004 is dismissed. At oral argument, Sipos asked that if the court were to dismiss his complaint, that it do so with leave for him to file an amended complaint. However, "[a] party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served . . . ."Civ. (. 15No . No responssponsive pleading has been filed in this case. A Rule 12(b) motion to dismiss is not a responsive pleadSe FSM R. 7(a) (list of all possible pleadings). Sipos thus could have amendedended his his complcomplaint without leave of court at anytime before the court acted on the motion to dismiss. He chose not to do so. The court will therefore not grant him leave to do now what he has had the opportunity to do for over a year.

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^[1] Kansou is apparently not scheduled for trial until 2006.

^[2] The defendants asked the court to take judicial notice of the Kansou court’s September 28, 2004 ruling, FSM v. Kansou, [2004] FMSC 54; 12 FSM Intrm. 637 (Chk. 2004), rejecting many of the claims Sipos raises in this case. In light of this court’s decision to grant the motion to dismiss this case, judicial notice will not be necessary.