Cite as FSM v. Yal'mad, 1 FSM Intrm. 196 (Pon. 1982)


[1 FSM Intrm. 196]






Before Edward C. King
Chief of Justice
September 1, 1982
Ponape, Caroline Islands 96941

For the FSM:               Ted Mitchell
                                      Attorney General
                                      State of Yap
                                      Yap, Caroline Islands. 96943     

For the Defendant:     Office of Public Defender
                                     State of Yap
                                     Yap, Caroline Islands 96943

[1 FSM Intrm. 197]

     At this early stage of the development of the judicial systems of the Federated States of Micronesia, the filing of a Notice of Appeal is a significant event calling for relatively large expenditures of judiciary resources.

     The hearing which led to the order sought to be appealed from in this case consumed several days.  Thus the preparation of the transcript here would be a substantial task.

     Moreover, since this Court presently has only two permanent justices, and one will be disqualified from sitting on the appeal by virtue of having heard and decided the point in question, two additional justices would have to be designated and convened in order to develop the requisite three justice panel for an appeal.

[1 FSM Intrm. 198]

     Despite these difficulties, it is of critical importance that this Court provide the necessary resources to assure and enforce the right of any party to proceed with an appropriate appeal from a decision of the Court.  Yet ours is a world of finite resources.  In order to preserve and uphold the legitimate right of parties to appropriate appeals,it is important that this Court be particularly vigilant and exercise its inherent powers to avoid unnecessary expenditure of resources for premature or unauthorized appeals.

     A brief review of the file concerning this appeal suggests that this may be one such case.  The decision from which the Government seeks appeal is an interlocutory order, authorizing the release of the defendant pending trial.  Such an order is not a final judgment and would not normally be considered as giving rise to a governmental appeal.

     Counsel has indicated that the Government relies upon Rule 9 of our Rules for Appellate Procedure.  The apparent purpose of that rule is to permit a defendant held in custody or subjected to conditions of release to receive expedited review of that restriction of his freedom.  There is no suggestion in the rule nor are we aware of any other authorityindicating that the Government is entitled under Rule 9 or any other rule to appeal from the release of a defendant.1

[1 FSM Intrm. 199]

     The Government having waited some 30 days to file its appeal after entry of the order appealed from, and also having requested postponement of the trial date set by the Trial Division, we perceive no Governmental sense of urgency in this matter.  It therefore seems appropriate now to consider whether there are special circumstances, not now apparent, which afford some basis for proceeding with this as an interlocutory appeal.

     For all of these reasons, the Government is instructed  to file with the Court, on or before the expiration of thirty (30) days from service of this Order, a brief explaining why this interlocutory appeal may be permitted.  The defendant may file a response within seven (7) days of the Government's service of the brief upon defendant.

     If no brief is filed by the Government, or if there appears no substantial basis for proceeding with this interlocutory appeal, this appeal will be dismissed and the Government will be relegated to any appeal rights available to it upon termination of the litigation in the Trial Division.     

[1 FSM Intrm. 200]

     In the meantime the court reporter is instructed to  defer preparation of the transcript for this appeal pending further instructions from this Court.

     So ordered this 1st day of September, 1982.

 /s/ Edward C. King
Chief Justice
Supreme Court of the
Federated States of Micronesia


1.To some extent, counsel for the Government may have been misled by typographical errors in the proposed Rules for Appellate Procedure.  This Court's Rule 9 is based upon Rule 9 of the Federal Rules of Appellate Procedure.  However, some copies of the proposed rules as distributed failed to include the last word of the penultimate sentence and the last sentence of Federal Rule 9(a). The correct Appellate Rule 9(a) reads as follows:

          Rule 9. Release in Criminal-Cases.

(a)  APPEALS FROM ORDERS RESPECTING RELEASE ENTERED PRIOR TO A JUDGMENT OF CONVICTION.  An appeal authorized by law from an order refusing or imposing conditions of release shall be determined promptly.  Upon entry of an order refusing or imposing conditions of release, the court appealed from shall state in writing the reasons for the action taken.  The appeal shall be heard without the necessity of briefs after reasonable notice to the appellee upon such papers, affidavits, and portions of the record as the parties shall present.  The Appellate Division or a justice thereof may order the release of the appellant pending the appeal.