FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. C2-1996

TADASHI WAINIT d/b/a T & S MART
Petitioner,

vs.

WENO MUNICIPALITY,
Respondent.

ORDER

Decided:  March 10, 1997

BEFORE:

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

APPEARANCE:

For the Appellant:	R. Barrie Michelsen, Esq.
Law Offices of R. Barrie Michelsen
P.O. Box 1450
Kolonia, Pohnpei FM 96941

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HEADNOTES

Appeal and Certiorari
A civil case decided by the Chuuk State Supreme Court Appellate Division may be appealed to the FSM Supreme Court Appellate Division by writ of certiorari.  Wainit v. Weno, 8 FSM Intrm. 28, 29 (App. 1997).

Appeal and Certiorari
Chuuk State Supreme Court appellate rules may be amended by statute.  Wainit v. Weno, 8 FSM Intrm. 28, 30 (App. 1997).

Appeal and Certiorari - Decisions Reviewable
An order by a single justice of the Chuuk State Supreme Court dismissing an appeal is a final order that may be appealed to the FSM Supreme Court appellate division.  Wainit v. Weno, 8 FSM Intrm. 28, 30 (App. 1997).

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COURT'S OPINION

PER CURIAM:

Tadashi Wainit, d/b/a T & S Mart, petitions the Appellate Division of the FSM Supreme Court to grant certiorari and review the April 4, 1996 order of the Chuuk State Supreme Court Appellate Division in CSSC Appeal No. 11-95.  In that order, a single justice of the Chuuk State Supreme Court Appellate Division denied Petitioner's Motion to Vacate Order Dismissing Appeal and Motion for Enlargement of Time.

By notice entered July 3, 1996, we directed the parties to file briefs on the questions of whether an order by a single justice of the Chuuk State Supreme Court Appellate Division dismissing an appeal was a final decision and whether we have jurisdiction to hear the appeal.  By this Order, we grant the petition for writ of certiorari.

The FSM Supreme Court Appellate Division's jurisdiction over decisions by the Chuuk State Supreme Court originates in Article XI, section 7 of the FSM Constitution, which provides that "[i]f 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 Constitution of the State of Chuuk, in turn, allows for appeal to the FSM Supreme Court:  "Decisions 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."  Chk. Const. art. VII, § 4.  The Chuuk State Judiciary Act of 1990 directs that such appeals be made by writ of certiorari in civil cases.  Chk. S.L. No. 190-08, § 39.

On the record submitted by the Petitioner, it appears that this case comes before us from a decision by a single justice of the Chuuk State Supreme Court dismissing an appeal.  Rule 27(c) of the Chuuk State Rules of Appellate Procedure provides that a single justice of the State Appellate Division may grant or deny any request for relief that may be brought by motion, "except that a single justice may not dismiss or otherwise determine an appeal."  Rule 27(c) further provides that the action of a single justice may be reviewed by the court.  However, section 37 of the Chuuk State Judiciary Act, enacted after promulgation of the appellate rules, states that

[t]he Justice of the State Supreme Court to sit on the appellate panel shall be responsible for making necessary orders concerning any appeal for want of jurisdiction, failure to take or prosecute the appeal in accordance with applicable law or procedure, or other orders or notices as may be necessary to the disposition of the appeal.

Chk. S.L. No. 190-08, § 37.  Article VII, section 13 of the Chuuk State Constitution provides that "[j]udicial rules may be amended by statute."

On February 5, 1996, Chief Justice Soukichi Fritz ordered that Tadashi Wainit's state court appeal be dismissed, concluding that Wainit had abandoned his appeal.  On February 23, 1996, Wainit filed a motion to vacate the order dismissing his appeal.  Chief Justice Fritz denied the motion to vacate by order entered April 4, 1996.  Wainit later petitioned this court for relief.

Our July 3rd notice cited the parties to our decision in Gustaf v. Mori, 6 FSM Intrm. 284 (App. 1993).  The petitioner in that case had sought a writ of certiorari to obtain review of an order of the Chuuk State Appellate Division, which had granted a stay pending appeal.  Id. at 285.  We denied the petition, ruling that the stay order, which had been entered by a single justice of the Chuuk State Appellate Division, was not a final decision by the Chuuk State Supreme Court Appellate Division because review of that decision could be sought before the entire pane.  Id.

Gustaf does not control here.  First, this is a petition from an order dismissing an appeal.  Second, and more importantly, the parties to Gustaf did not raise, and we did not then consider, the effect of section 37 of the Chuuk State Judiciary Act of 1990.  Implicit in both of Chief Justice Fritz's orders in this case is the ability of a single justice to make an order dismissing an appeal for failure to prosecute, which, though it conflicts with Chuuk State Appellate Rule 27(c), is consistent with section 37 of the Chuuk State Judiciary Act of 1990.  We therefore find that Chief Justice Fritz's order denying the motion to vacate is a final decision of the Chuuk State Supreme Court, for which review may lie in the Appellate Division of the FSM Supreme Court.

Based on our ruling granting the petition for writ of certiorari, the following matters are ordered:

1.  Together with this Order, a Writ of Certiorari shall issue directing the Appellate Division of the Chuuk State Supreme Court to certify and send to this Court the record in CSSC Appeal 11-95.

2.  Tadashi Wainit's Petition for Writ of Certiorari addresses the substance of his appeal to the FSM Supreme Court, and shall be deemed his opening brief for the purpose of this appeal.

3.  Weno Municipality shall have thirty days from service of this order to file a responding brief.  Mr. Wainit's reply brief, if any, shall be filed in accordance with the FSM Rules of Appellate Procedure.

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