DRAFT CSC, Title 5. The Judiciary
 
CHAPTER 5
Appeals and Appellate Division

1051.  State Supreme Court review of administrative action.
1052.  Right of review.
1053.  Transfer of cases.
1054.  Appellate Division; Jurisdiction.
1055.  Appellate Division; Appeals.
1056.  Appellate Division; Orders.
1057.  Appellate Division; Decision.
1058.  Appeal to the Supreme Court of the Federated States of Micronesia.

      1051.  State Supreme Court review of administrative action.

     (1)  The Trial Division shall have the authority to review all actions of an agency of the Government of this State in accordance with this Act Chapter and the provisions of  the Chuuk State Constitution;

     (2)  For the purposes of this Act Chapter, an agency means each authority of the Government of this State, but does not include the State Legislature or the courts of this State.  The reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.  The reviewing court shall:

     (a)  Compel agency action unlawfully withheld or unreasonably delayed; and

     (b)  Declare unlawful and set aside agency action, findings and conclusions found to be:

     (i)  arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

     (ii)  contrary to constitutional right, power privilege, or immunity;

     (iii)  in excess of statutory jurisdiction, authority, or limitations, or short of statutory rights;

     (iv)  without observance of procedure required by law;

     (v)   unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute; or
 
     (vi)  unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.  In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

Source:  CSL 190-08, 17.

Cross-reference:  The constitutional provisions on the  Judicial branch of the Chuuk State Government are found in Art. VII of the Chuuk State Constitution.

                Case annotations:     - Judicial Powers

The Chuuk State Supreme Court has constitutional jurisdiction to review the actions of any state administrative agency, and decide all relevant questions of law, interpret constitutional and statutory provisions and determine the meaning or applicability of the terms of an agency action.  Robert v. Mori, 6 FSM Intrm. 178, 179 (Chk. S. Ct. Tr. 1993).

The ultimate interpretation of any provisions of the Chuuk State Constitution is within the sole authority of the Chuuk State Supreme Court, as the ultimate interpreter of the Constitution, and that includes the authority to interpret the meaning of whether a matter has been committed by the Constitution to another branch of government, or whether the action of that branch exceeds its authority.Robert v. Chuuk State House of Representatives, 6 FSM Intrm. 260, 264 (Chk. S. Ct. Tr. 1993).

- Separation of Powers

The ultimate interpretation of any provisions of the Chuuk State Constitution is within the sole authority of the Chuuk State Supreme Court, as the ultimate interpreter of the Constitution, and that includes the authority to interpret the meaning of whether a matter has been committed by the Constitution to another branch of government, or whether the action of that branch exceeds its authority.Robert v. Chuuk State House of Representatives, 6 FSM Intrm. 260, 264 (Chk. S. Ct. Tr. 1993).

Policy determinations by other branches of the government are always to be given wide latitude when under judicial review, and policy determinations within the constitution itself must therefore receive the widest possible latitude when under review.  Robert v. Chuuk State House of Representatives, 6 FSM Intrm. 260, 269 (Chk. S. Ct. Tr. 1993).

The Chuuk Judiciary Act of 1990, Chk. S.L. No. 190-08, states in part that the reviewing court shall declare unlawful and set aside agency action, findings and conclusions found to be unsupported by substantial evidence.  Nakamura v. Moen Municipality, 8 FSM Intrm. 552, 554 (Chk. S. Ct. App. 1998).

When an administrative remedy is provided by statute, relief ordinarily must not only be sought initially from the appropriate administrative agency but such remedy usually must be exhausted before a litigant may resort to the courts.Choisa v. Osia, 8 FSM Intrm. 567, 569 (Chk. S. Ct. Tr. 1998).

The rule requiring the exhaustion of administrative remedies is a wholesome one and an aid to the proper administration of justice.  One of the important reasons, is to prevent the transfer to courts of duties imposed by law on administrative agencies.  Choisa v. Osia, 8 FSM Intrm. 567, 569 (Chk. S. Ct. Tr. 1998).
 
The doctrine of exhaustion of administrative remedies requires that no one is entitled to bring a land dispute to court until the Land Commission has been given a chance to decide the case because the Land Commission is the proper forum for the determination of land ownership.  Choisa v. Osia, 8 FSM Intrm. 567, 569 (Chk. S. Ct. Tr. 1998).

When a plaintiff seeks to establish a claim in a court action that is identical to the claim he already established in administrative proceedings, a court judgment could do no more, and payment of the claim can only be lawfully done by legislative appropriation.  Mark v. Chuuk, 8 FSM Intrm. 582, 583 (Chk. S. Ct. Tr. 1998).

A person who has not been adversely affected or aggrieved by administrative action cannot seek court review when his rights were fully protected by his successful administrative claim.  His remedy is not with the judiciary, but with the Legislature for an appropriation to pay his claim.  Mark v. Chuuk, 8 FSM Intrm. 582, 584 (Chk. S. Ct. Tr. 1998).

      1052.  Right of review.
     A person adversely affected or aggrieved by an agency action is entitled to judicial review thereof by the State Supreme Court.  The action may be for relief in addition to or other than money damages and may state a claim that an agency or an officer or employee thereof acted, or failed to act, unlawfully in an official capacity or under color of legal authority.  The State Government may be named as a defendant in any such action, and a judgment or decree may be entered against the State Government.  Any mandatory or injunctive decree shall specify the officer or officers (by name or by title), or their successors in office, personally responsible for compliance.  The court may dismiss any action or deny relief on any appropriate legal or equitable ground.

Source:  CSL 190-08, 18.

      1053.  Transfer of cases.
     Any case pending in a municipal court may be transferred to the Trial Division of the State Supreme Court upon the request of any party and by order of the Trial Division of the State Supreme Court.  Upon making such transfer, the court in which the case was pending shall take no further action on the merits of the case, but may make orders of a transferring nature which justice may require and which are not inconsistent with the order of the Trial Division of the State Supreme Court.

Source:  CSL 190-08, 19.

      1054.  Appellate Division; Jurisdiction.

     (1)  The Appellate Division of the State Supreme Court has jurisdiction to review decisions of the trial division, of inferior state courts, and of the municipal courts.  A decision of a municipal court or inferior state court may be appealed directly to the Appellate Division only if the case involves a substantial question requiring the interpretation of the Constitution or State laws.  On application of a party or on its own motion, the municipal court or inferior state court shall certify the question to the Appellate Division.  The Appellate Division may order the municipal court or inferior state court to so certify the question.

     (2)  The Appellate Division may reject the certification of a case to it, may decide it, or may remand it for further proceedings in accordance with its instruction.

Source:  CSL 190-08, 35.

Cross-reference:  The constitutional provision on the jurisdiction of the Appellate Division of the State Supreme Court is found in Art. VII, Section 4 of the Chuuk State Constitution.

      1055.  Appellate Division; Appeals.

     (1)  All appeals shall be heard by three justices.

     (2)  The three justices hearing an appeal shall be composed of only one Justice of the State Supreme Court and two other justices, who are appointed as temporary justices for the limited purposes of hearing the appeal.  A justice of the Supreme Court of the Federated States of Micronesia, a judge of a court of another state of the Federated States of Micronesia or a qualified attorney in the State of Chuuk may be appointed to complete the appellate panel.  A temporary justice appointed under this Section shall meet the requirements of Section 13 of this Act Chapter and Section 9 of Article VII of the Constitution except for the "birth" and "residency" requirements of Section 9 of Article VII of the Constitution.

     (3)  The Chief Justice shall appoint the Justice of the State Supreme Court who may sit on the appellate panel and the temporary justices.  If the Chief Justice appoints himself a member of the appellate panel, the most senior Associate Justice shall appoint the two temporary justices.  If the Chief Justice is removed or disqualified, the most senior Associate Justice who has not been removed or disqualified from the case shall appoint the Associate Justice who may sit on the appellate panel and the temporary justices.

Source:  CSL 190-08, 36.

Case annotations:  At least three justices hear all appeals in the Chuuk State Supreme Court appellate division with the decision by a concurrence of a majority of the justices sitting on the appellate panel, but a single justice may make necessary orders concerning failure to take or prosecute the appeal in accordance with applicable law and procedure.  Wainit v. Weno, 9 FSM Intrm. 160, 162 (App. 1999).

In the Chuuk Constitution there is a distinction between a "decision," which must be by a majority of the appellate justices assigned to hear the case, and "orders," which a single appellate justice may make.  A "decision" means the final determination of the appeal.  Wainit v. Weno, 9 FSM Intrm. 160, 162 (App. 1999).
 
Sections 37 and 38(1) of the 1990 Chuuk State Judiciary Act preserve, just as the Chuuk Constitution does, the distinction between an "order" and a "decision." Specifically, a "decision" will be made by the entire appellate panel assigned to the case.  Wainit v. Weno, 9 FSM Intrm. 160, 162 (App. 1999).

      1056.  Appellate Division; Orders.
     The Justice of the State Supreme Court appointed 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 and procedure, or other orders or notices as may be necessary to the disposition of the appeal; provided, that a decision to hear or not to hear an appeal made on certiorari shall be made by a majority of the full appellate panel.

Source:  CSL 190-08, 37.

Case annotations:  At least three justices hear all appeals in the Chuuk State Supreme Court appellate division with the decision by a concurrence of a majority of the justices sitting on the appellate panel, but a single justice may make necessary orders concerning failure to take or prosecute the appeal in accordance with applicable law and procedure.  Wainit v. Weno, 9 FSM Intrm. 160, 162 (App. 1999).

In the Chuuk Constitution there is a distinction between a "decision," which must be by a majority of the appellate justices assigned to hear the case, and "orders," which a single appellate justice may make.  A "decision" means the final determination of the appeal.  Wainit v. Weno, 9 FSM Intrm. 160, 162 (App. 1999).

Sections 37 and 38(1) of the 1990 Chuuk State Judiciary Act preserve, just as the Chuuk Constitution does, the distinction between an "order" and a "decision." Specifically, a "decision" will be made by the entire appellate panel assigned to the case.  Wainit v. Weno, 9 FSM Intrm. 160, 162 (App. 1999).

      1057.  Appellate Division; Decision.

     (1)  A decision of the appellate panel shall be by the concurrence of a majority of the Justices sitting on the appellate panel.  Any concurring and dissenting opinions shall be included in the decision so rendered.

     (2)  Written decisions and opinions of an appellate panel shall be rendered no later than six months after the appellate panel has completed all  such hearings or proceedings necessary to a well informed decision.

Source:  CSL 190-08, 38.

Case annotations:  At least three justices hear all appeals in the Chuuk State Supreme Court appellate division with the decision by a concurrence of a majority of the justices sitting on the appellate panel, but a single justice may make necessary orders concerning failure to take or prosecute the appeal in accordance with applicable law and procedure.  Wainit v. Weno, 9 FSM Intrm. 160, 162 (App. 1999).

In the Chuuk Constitution there is a distinction between a "decision," which must be by a majority of the appellate justices assigned to hear the case, and "orders," which a single appellate justice may make.  A "decision" means the final determination of the appeal.  Wainit v. Weno, 9 FSM Intrm. 160, 162 (App. 1999).

Sections 37 and 38(1) of the 1990 Chuuk State Judiciary Act preserve, just as the Chuuk Constitution does, the distinction between an "order" and a "decision." Specifically, a "decision" will be made by the entire appellate panel assigned to the case.  Wainit v. Weno, 9 FSM Intrm. 160, 162 (App. 1999).

      1058.  Appeal to the Supreme Court of the Federated State of Micronesia.
     A party to an appeal in which the State Supreme Court Appellate Division has rendered an appellate decision may appeal such decision to the Appellate Division of the Supreme Court of the Federated States of Micronesia by certiorari, except in a criminal case in which the defendant may appeal as of right.  All appeals to the Appellate Division of the Supreme Court of the Federated States Micronesia shall be taken in accordance with applicable rules of the Supreme Court of the Federated States of Micronesia.

Source:  CSL 190-08, 39.

Cross-reference:  The constitutional provisions on the Judicial branch of the Chuuk State Government are found in Art. VII of the Chuuk State Constitution. The constitutional provisions on the Judicial branch of the FSM National Government are found in Art. XI of the FSM Constitution.

Case annotations:  Under the FSM Constitution the FSM Supreme Court may hear cases on appeal from the highest state court in which a decision may be had if that state's constitution permits it.  The Chuuk State Constitution permits such appeals, which, in civil cases, Chuuk statute provides be made by certiorari.  Gustaf v. Mori, 6 FSM Intrm. 284, 285 (App. 1993).

The circumstance that decisions of the Appellate Division of the Chuuk State Supreme Court may be appealed to the Appellate Division of the FSM Supreme Court and the method chosen by the sovereign State of Chuuk to select members of their appellate panels will not foreclose the FSM Supreme Court trial division from certifying a question to the Chuuk State Supreme Court Appellate Division where there are other elements in favor of certification.  Stinnett v. Weno, 6 FSM Intrm. 478, 479-80 (Chk. 1994).

The Chuuk Judiciary Act gives the Chuuk State Supreme Court Appellate Division the authority to issue writs, including writs of mandamus or prohibition directed to a justice.  In re Failure of Justice to Resign, 7 FSM Intrm. 105, 108 (Chk. S. Ct. App. 1995).