Cite as In re Robert (II), 1 FSM Intrm. 18 (Pon. 1981)

[1 FSM Intrm. 18]



     Three separate arraignments, involving seven defendants, were scheduled to be held by this Court at 1:30 p.m. today, September 17.  Each defendant was to be represented by Maketo Robert of the Public Defender's office.  At 1:30 p.m. the Court, the Prosecuting Attorney, and most of the defendants were present and prepared to proceed.  However, Mr. Robert did not appear.

     Court staff inquired at the Public Defender's Office, but nobody there had any information and no other attorney or trial counselor was available so that the scheduled arraignments might proceed.  Moreover, nobody at Mr. Robert's office seemed aware that the hearings had been scheduled for 1:30 p.m. or that there was a possibility that he might be late for a hearing.  Mr. Robert finally arrived at almost 2:00 p.m. The Court was able to convene shortly after 2:00 p.m. although there apparently was little or no opportunity for Mr. Robert to confer with his clients concerning the informations filed for the scheduled arraignments.

     At the beginning of the Court session, the Court advised Mr. Robert that it was considering holding him in contempt of Court for his tardiness and asked that he provide reasons why he should not be held in contempt.  Mr. Robert replied

[1 FSM Intrm. 19]

that he had that morning been required by the High Court to go with Joses Gallen of the State Prosecutors Office to Madolenimw to investigate a matter and he felt that if he did not do that he might be held in contempt by the High Court.  He also stated that he had not realized that the location was so far away, that so much construction work was underway, or that the road on which the person lived was so far up the hill and so difficult to pass.  All of these factors, he explained, consumed more time than he had originally anticipated.

     After Mr. Robert's explanation of these considerations, this Court found him guilty of contempt of court and imposed a fine of 50 cents for each minute of tardiness, for a total of $12.50. This opinion is written to explain the Court's reasoning, as well as to reduce the amount of the fine.

     Section 18 of the Judiciary Act, 4 F.S.M.C. 119, specifies that, for contempt of court to occur, there must be an intentional obstruction of the administration of justice.  After hearing Mr. Robert's explanation, I do not believe that he intentionally malingered or dallied along the way in order to arrive late for the hearing and thereby to obstruct justice.  Once he had placed himself in the position of going to Madolenimw without making prior arrangements, any tardiness on his part was purely unintentional.

     This does not mean however that no intentional misconduct was involved, even though of omission rather than commission.

[1 FSM Intrm. 20]

When leaving for a lengthy trip to Madolenimw less than three hours before the Court was to go into session, knowing that he would have to find somebody who might or might not be at a given location, Mr. Robert surely recognized the possibility that he might be returning later than 1:30 p.m. Before departing, he had to decide whether to take steps to alert his own office to make other arrangements for the hearing if necessary, whether to advise this Court and opposing counsel, and whether to seek a later hearing.  His decision not to take any of these precautions was an intentional one which he knew carried with it a substantial risk that he would be late for the hearing, with all of the various parties and officers of the court forced to await his arrival.  Timely presence at scheduled Court proceedings is a fundamental duty of an attorney.  This intentional failure to take precautionary steps, and the consequent waste of the time of the Court and officers of the Court, constituted an "intentional obstruction of the administration of justice" within the meaning of 4 F.S.M.C. 119(1)(a) and is contempt of court.

     Therefore the requirements for a finding of contempt under 4 F.S.M.C. 119(1)(a) exist, and the Court does find that Mr.  Robert acted in contempt within the meaning of the Act.

     However, the circumstances of the trip to Madolenimw were difficult for Mr. Robert for many reasons.  Not only was he operating under an order of the High Court, he also

[1 FSM Intrm. 21]

was in unfamiliar territory.  While it was not reasonable under the circumstances for him to leave without making arrangements to guard against the possibility that his return might be late, his actions could have seemed more reasonable to him at the time than they do right now to this Court.  The Court has the advantage of hindsight which Mr. Robert did not then have.  This and all of the other considerations mentioned by Mr. Robert and set out earlier in this opinion are notable mitigating factors.  Therefore, although Mr. Robert was advised in open Court that he was being fined in the amount of $12.50, after reflection the Court reduces the fine to $5.00, payable before Mr. Robert makes any further appearance before this Court.

So ordered as of the 17th day of September, 1981.

Dated: September 23, 1981

Chief Justice
Supreme Court
Federated States of Micronesia