Asugar v Edward [2005] FMSC 9; 13 FSM Intrm. 221 (App. 2005) (27 April 2005)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION
Cite case as Asugar v Edward, [2005] FMSC 9; 13 FSM Intrm. 221 (App. 2005)

HENRY ASUGAR,
Appellant,

vs.

BERNELL W. EDWARD, as National Election Director,
and PETER SITAN, as the real party in interest,
Appellees.

__________________________________________________

APPEAL CASE NO. C4-2005

BEFORE:

Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court

ORDER DENYING MOTION

Decided: April 27, 2005

APPEARANCE:

For the Appellee (Director):
Matthew L. Olmsted, Esq.
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

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HEADNOTES

Appellate Review - Motions
A motion may be denied as moot when the court has already dismissed the appeal. Asugar v. Edward, [2005] FMSC 9; 13 FSM Intrm. 221, 222 (App. 2005).

Attorney and Client - Attorney Discipline and Sanctions
Any person may initiate an attorney disciplinary complaint by advising the court of the nature of the charge and indicating the factual basis for the charges. This is done by referring the complaint to the Chief Justice in Palikir, Pohnpei where the Chief Clerk of the Supreme Court will assign the complaint a disciplinary proceeding docket number and open a file. Asugar v. Edward, [2005] FMSC 9; 13 FSM Intrm. 221, 222 (App. 2005).

Attorney and Client - Attorney Discipline and Sanctions
A closed appeal case is not the proper forum in which to pursue or resolve a disciplinary complaint. A proper forum may be reached through application to the Chief Justice and the Chief Clerk in Pohnpei. Only in that forum may a movant seek an order requiring the attorney to show cause why he should not be immediately restrained from engaging in the practice of law. No action on a disciplinary proceeding will be taken within a closed appeal. Asugar v. Edward, [2005] FMSC 9; 13 FSM Intrm. 221, 222 (App. 2005).

[13 FSM Intrm. 227]

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COURT’S OPINION

PER CURIAM:

This comes before the court on the National Election Director’s Motion to Disqualify and Initiate Disciplinary Proceedings Against Appellant’s Counsel, filed on April 26, 2005. The motion asks that Jack Fritz, from whom an unsigned notice of appearance was received earlier on April 26, 2005, be barred from representing the appellant in this appeal, that the court initiate disciplinary proceedings against him, and be restrained from practicing law while the disciplinary proceeding is pending. The ground for the motion is that attorney Fritz was convicted of four felonies in August, 2004.

The motion is denied. The matter of Fritz’s appearance is moot since the court has already dismissed this appeal by order entered on April 26, 2005. There is thus no case for him to appear in. This case is closed.

Any person may initiate a disciplinary complaint "by advising the court of the nature of the charge and indicating the factual basis for the charges." FSM Dis. R. 4(a). This is done by referring the complaint to the Chief Justice in Palikir, Pohnpei where the Chief Clerk of the Supreme Court will "assign the complaint a disciplinary proceeding docket number and open a file." FSM Dis. R. 4(b).

This closed appeal case is thus not the proper forum in which to pursue or resolve a disciplinary complaint. A proper forum may be reached through application to the Chief Justice and the Chief Clerk in Pohnpei. The movant may, if he so chooses, file a disciplinary complaint with the Chief Justice and the Chief Clerk at Palikir, Pohnpei. Only in that forum may the movant seek "an order requiring the attorney to show cause why he should not be immediately restrained from engaging in the practice of law." FSM Dis. R. 10(a). No further action on this "disciplinary proceeding" will be taken within this appeal.

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