FSM SUPREME COURT
TRIAL DIVISION
Cite as Damarlane v. Pohnpei Supreme Court Appellate Division,
10 FSM Intrm. 116 (Ponape 2001)

[10 FSM Intrm. 116]

KADALINO DAMARLANE,
Plaintiff,

vs.

POHNPEI SUPREME COURT APPELLATE
DIVISION, CHIEF JUSTICE JUDAH JOHNNY,
ASSOCIATE JUSTICES IOANNIS KANICHY
and NELSON JOSEPH,
Defendants.

CIVIL ACTION NO. 2000-049

ORDER GRANTING SUMMARY JUDGMENT
AND DISMISSING COMPLAINT

Richard H. Benson
Associate Justice

Decided:  April 4, 2001

APPEARANCES:
     For the Plaintiff:          Mary Berman, Esq.
                                          P.O. Box 163
                                          Kolonia, Pohnpei FM 96941

     For the Defendants:     Douglas Parkinson, Esq.
                                            P.O. Box 2069
                                            Kolonia, Pohnpei FM 96941

*    *    *    *

HEADNOTES
Civil Procedure ) Dismissal; Constitutional Law ) Case or Dispute ) Mootness
     Because the FSM Supreme Court generally (with some exceptions) lacks jurisdiction over a moot cause of action, it must be dismissed.  Damarlane v. Pohnpei Supreme Court Appellate Division, 10 FSM Intrm. 116, 119 (Pon. 2001).

Mandamus and Prohibition
     A writ of mandamus is used to confine an inferior court to a lawful exercise of its prescribed

[10 FSM Intrm. 117]

jurisdiction or to compel it to exercise its authority when it is its duty to do so.  This is similar to a writ of prohibition, which, instead of commanding an inferior tribunal to do something, commands it not to do something.  Damarlane v. Pohnpei Supreme Court Appellate Division, 10 FSM Intrm. 116, 119-20 (Pon. 2001).

Mandamus and Prohibition
     Writs of mandamus are issued in aid of the court's appellate jurisdiction.  The court's authority is not confined to issuance of writs in aid of a jurisdiction already acquired by appeal but extends to those cases which are within its appellate jurisdiction although no appeal has been perfected.  Damarlane v. Pohnpei Supreme Court Appellate Division, 10 FSM Intrm. 116, 120 (Pon. 2001).

Mandamus and Prohibition
     For the purposes of writs of mandamus an inferior court is one that is either placed under the supervisory or appellate control of the other court or is one whose jurisdiction is limited and confined.Damarlane v. Pohnpei Supreme Court Appellate Division, 10 FSM Intrm. 116, 120 (Pon. 2001).

Mandamus and Prohibition
     The historic use of writs of prohibition and mandamus directed by an appellate court to an inferior court has been to exert the revisory appellate power over the inferior court.  Damarlane v. Pohnpei Supreme Court Appellate Division, 10 FSM Intrm. 116, 120 (Pon. 2001).

Courts
     The Pohnpei Supreme Court is a court of general jurisdiction, not a court whose jurisdiction is limited and confined.  Damarlane v. Pohnpei Supreme Court Appellate Division, 10 FSM Intrm. 116, 120 (Pon. 2001).

Appeal and Certiorari; Courts
     The FSM Supreme Court trial division has no appellate or supervisory jurisdiction over either division of the Pohnpei Supreme Court, and no appeal lies from the Pohnpei Supreme Court to the FSM Supreme Court trial division.  Damarlane v. Pohnpei Supreme Court Appellate Division, 10 FSM Intrm. 116, 120 (Pon. 2001).

Courts; Federalism ) National/State Power
     In our federal system of government, state courts are not inferior tribunals to the FSM Supreme Court trial division.  The national and state court systems are separate systems created by and serving different sovereigns.  Neither system is superior to the other.  Rather the systems are parallel.Damarlane v. Pohnpei Supreme Court Appellate Division, 10 FSM Intrm. 116, 120 (Pon. 2001).

Courts; Mandamus and Prohibition
     The FSM Supreme Court trial division is not a superior tribunal to the Pohnpei Supreme Court, although in certain circumstances the FSM Supreme Court appellate division is such a superior tribunal.  Damarlane v. Pohnpei Supreme Court Appellate Division, 10 FSM Intrm. 116, 120 (Pon. 2001).

Mandamus and Prohibition
     If it were proper to issue a writ of mandamus directed to the Pohnpei Supreme Court appellate division, it could only be done upon application to the FSM Supreme Court appellate division, not to the trial division.  Damarlane v. Pohnpei Supreme Court Appellate Division, 10 FSM Intrm. 116, 120 (Pon. 2001).

Mandamus and Prohibition
     The FSM Supreme Court trial division is without jurisdiction to issue a writ of mandamus directed

[10 FSM Intrm. 118]

to the Pohnpei Supreme Court.  Damarlane v. Pohnpei Supreme Court Appellate Division, 10 FSM Intrm. 116, 120 (Pon. 2001).

Courts ) Judges; Torts ) Immunity
     A judge is generally granted absolute immunity from civil liability for acts done in the exercise of a judicial function.  Few doctrines were more solidly established at common law than the immunity of judges for damages for acts committed within their judicial jurisdiction.  Damarlane v. Pohnpei Supreme Court Appellate Division, 10 FSM Intrm. 116, 121 (Pon. 2001).

Courts ) Judges; Torts ) Immunity
     Judges lose their judicial immunity only for non-judicial actions (actions not taken in the judge's judicial capacity), or for actions, though judicial in nature, taken in the complete absence of all jurisdiction.  Damarlane v. Pohnpei Supreme Court Appellate Division, 10 FSM Intrm. 116, 121 (Pon. 2001).

Courts ) Judges; Torts ) Immunity
     Two factors, both relating to the nature of act itself, determine whether an act by a judge is a judicial one:  whether it is a function normally performed by a judge, and whether the parties dealt with the judge in his judicial capacity.  The second question in deciding whether immunity exists is whether the judge acted in complete absence of all jurisdiction.  Damarlane v. Pohnpei Supreme Court Appellate Division, 10 FSM Intrm. 116, 121 (Pon. 2001).

Courts ) Judges
     Issuance of appellate opinions is a function normally performed by judges, and the timing of a decision is normally, if not always, a judicial decision.  Damarlane v. Pohnpei Supreme Court Appellate Division, 10 FSM Intrm. 116, 121 (Pon. 2001).

Statutes ) Construction
     Generally, statutes and enactments in derogation of the common law ) existing law ) are to be strictly construed.  Damarlane v. Pohnpei Supreme Court Appellate Division, 10 FSM Intrm. 116, 122 (Pon. 2001).

Statutes ) Construction
     Although it is generally agreed that a statute in the derogation of the common law must be strictly construed, this rule of statutory construction cannot be used to defeat the obvious purpose of the legislature, nor to lessen the scope plainly intended to be given the statute.  Damarlane v. Pohnpei Supreme Court Appellate Division, 10 FSM Intrm. 116, 122 (Pon. 2001).

Courts ) Judges; Statutes ) Construction; Torts ) Immunity
     When a Pohnpei statute does not show any legislative intent to abolish the well-established principle of absolute judicial immunity for the judicial act of timing the issuance of court decisions and to allow a private suit for damages in such cases, a court can only conclude that the Pohnpei Legislature did not intend to abolish absolute judicial immunity in this instance and did not intend to create a right for damage suits against judges if their decisions were not timely.  Damarlane v. Pohnpei Supreme Court Appellate Division, 10 FSM Intrm. 116, 122 (Pon. 2001).

Civil Procedure ) Dismissal
     When a complaint's first cause of action is dismissed for lack of jurisdiction, and its only other cause of action is dismissed for failure to state a claim upon which relief may be granted, the complaint is thereby dismissed.  Damarlane v. Pohnpei Supreme Court Appellate Division, 10 FSM Intrm. 116, 122 (Pon. 2001).

*    *    *    *
[10 FSM Intrm. 119]

COURT'S OPINION
 
RICHARD H. BENSON, Associate Justice:
     This matter was reassigned to me on February 16, 2001.  My February 22, 2001 order asked the defendants to raise by motion their asserted affirmative defenses of mootness as to the plaintiff's first cause of action and of judicial immunity as to the plaintiff's second cause of action.  The plaintiff, Kadalino Damarlane, was also asked to file papers demonstrating that the FSM Supreme Court trial division has jurisdiction to issue a writ of mandamus directed to the Pohnpei Supreme Court as sought in his first cause of action.

     Damarlane responded to this request.  He stated only that, since the act sought had been done, mandamus was no longer prayed for.  The defendants filed a motion for summary judgment based on their affirmative defenses.  Damarlane opposed summary judgment and the defendants replied to the opposition. Damarlane responded to new matter in the reply.

I.  First Cause of Action ) Writ of Mandamus
     Damarlane's first cause of action asked the FSM Supreme Court trial division to issue a writ of mandamus directed to the Pohnpei Supreme Court appellate division ordering it to issue its decision in an appeal case, Damarlane v. Pohnpei Legislature, 8 FSM Intrm. 23 (App. 1997), remanded to it from the FSM Supreme Court appellate division.  The basis for this claim was that the Pohnpei Judiciary Act of 1995 gives persons a right to expect an appellate division opinion within 120 days of the close of oral argument.  Pon. S.L. No. 3L-99-95, 3-7.  Appellate argument was held in the Pohnpei Supreme Court on October 14, 1997.  This case was filed on August 10, 2000 when no opinion had been issued by then.

     The defendants assert that the first cause of action is moot since the Pohnpei Supreme Court appellate division issued its opinion in the case on September 7, 2000.  Damarlane agrees that, because of the opinion's issuance, a writ of mandamus is no longer needed to require the Pohnpei Supreme Court appellate division's adherence to the state Judiciary Act's time standards.  The parties thus appear to agree that this cause of action is moot.  I also conclude that this cause of action is moot, and, because the FSM Supreme Court generally (with some exceptions) lacks jurisdiction over a moot cause of action, it must be dismissed.FSM v. Louis, 9 FSM Intrm. 474, 482 (App. 2000).

     However, the more important jurisdictional question here is whether the FSM Supreme Court trial division has any jurisdiction to issue a writ of mandamus directed against the Pohnpei Supreme Court in the first place.  This question may arise again. There are two previous reported cases in which a plaintiff asked the FSM Supreme Court trial division to issue a writ of mandamus directed to a state court.  Damarlane v. Pohnpei State Court, 6 FSM Intrm. 561 (1994); Damarlane v. Santos, 6 FSM Intrm. 45 (1993).  Neither case addressed the issue of whether the FSM Supreme Court trial division could direct a writ of mandamus to a state court. Both were dismissed on other grounds.  The situation is thus sure to recur.  Also, because Damarlane was specifically asked to submit authority on the point, the court feels justified in reaching this question although he has cited no authority (other than his complaint's reliance on 4 F.S.M.C. 117).

     A writ of mandamus is used "`to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.'"  Will v. United States, 389 U.S. 90, 95, 88 S. Ct. 269, 273, 19 L. Ed 2d 305, 310 (1967) (quoting Roche v. Evaporated Milk

[10 FSM Intrm. 120]

Ass'n, 319 U.S. 21, 26, 63 S. Ct. 938, 941, 87 L. Ed. 1185, 1190 (1943)); 52 Am. Jur. 2d Mandamus 302, 303 (1970).  This is similar to a writ of prohibition, which, instead of commanding an inferior tribunal to do something, commands it not to do something.  Berman v. FSM Supreme Court (I), 7 FSM Intrm. 8, 10 (App. 1995) (writ of prohibition will only issue to prevent an inferior court or tribunal from acting without or in excess of its jurisdiction and must be directed to a court or tribunal inferior in rank to the one issuing the writ; it cannot issue from one court to another of equal rank); Election Commissioner v. Petewon, 6 FSM Intrm. 491 , 496 (Chk. S. Ct. App. 1994) (writ of prohibition only issues to an inferior court or tribunal that is without jurisdiction or about to act in excess of its jurisdiction).  Such writs of mandamus are issued in aid of the court's appellate jurisdiction.  The court's "authority is not confined to issuance of writs in aid of a jurisdiction already acquired by appeal but extends to those cases which are within its appellate jurisdiction although no appeal has been perfected." Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 25, 63 S. Ct. 938, 941, 87 L. Ed. 2d 1185, 1189 (1943).  See also Ex parte Republic of Peru, 318 U.S. 578, 583, 63 S. Ct. 793, 796, 87 L. Ed. 1014, 1017 (1943) ("The historic use of writs of prohibition and mandamus directed by an appellate court to an inferior court has been to exert the revisory appellate power over the inferior court."); Rapp v. Van Dusen, 350 F.2d 806, 811 (3d Cir. 1965).  For the purposes of writs of mandamus an inferior court is one that is either placed under the supervisory or appellate control of the other court or is one whose jurisdiction is limited and confined.  Mattila v. Mason, 598 P.2d 675, 679 (Or. 1979).

     The Pohnpei Supreme Court is a court of general jurisdiction, Pon. Const. art. 10, 4, not a court whose jurisdiction is limited and confined.  The FSM Supreme Court trial division has no appellate or supervisory jurisdiction over either division of the Pohnpei Supreme Court.  No appeal lies from the Pohnpei Supreme Court to the FSM Supreme Court trial division.  In our federal system of government, state courts are not inferior tribunals to the FSM Supreme Court trial division.  The national and state court systems are separate systems created by and serving different sovereigns.  Neither system is superior to the other.  Rather the systems are parallel. The FSM Supreme Court trial division is thus not a superior tribunal to the Pohnpei Supreme Court, although in certain circumstances the FSM Supreme Court appellate division is such a superior tribunal.  See FSM Const. art. XI, 7, 8 (FSM Supreme Court appellate jurisdiction).

     Thus, if it were proper to issue a writ of mandamus directed to the Pohnpei Supreme Court appellate division in this case, it could only have been done upon application to the FSM Supreme Court appellate division, not to the trial division.See, e.g., General Atomic Co. v. Felter, 436 U.S. 493, 497, 98 S. Ct. 1939, 1941, 56 L. Ed. 2d 480, 485 (1978) (U.S. Supreme Court may issue writ of mandamus to control state court if state court mistakes, misconstrues, or fails to give full effect to earlier U.S. Supreme Court mandate in same case); Bucolo v. Adkins, 424 U.S. 641, 96 S. Ct. 1086, 47 L. Ed. 2d 301 (1976) (although court said writ may issue, it refrained from doing so because court was confident that state court would conform to the U.S. Supreme Court's disposition); Deen v. Hickman, 358 U.S. 57, 79 S. Ct. 1, 3 L. Ed. 2d 28 (1958).  See also Etscheit v. Santos, 5 FSM Intrm. 111, 113 (App. 1991) where the FSM Supreme Court appellate division ordered a state court judge prohibited from taking any further action in a case earlier remanded from the FSM Supreme Court appellate division in order to enforce its prior decision in Etscheit v. Santos, 5 FSM Intrm. 35, 46 (App. 1991) in which the FSM Supreme Court appellate division had not issued a writ of prohibition, although it was asked to, because it was confident that state court would follow the decision's spirit without the writ.  The trial division is without jurisdiction to issue a writ of mandamus directed to the Pohnpei Supreme Court.

     The first cause of action is therefore dismissed for lack of jurisdiction on the grounds that the FSM Supreme Court trial division has no authority to issue such a writ requested and that the request is moot.

[10 FSM Intrm. 121]

II.  Second Cause of Action ) Civil Rights Damages
     Damarlane's second cause of action is that the defendants' failure to timely issue the Pohnpei Supreme Court appellate opinion in violation of Pohnpei state law gives rise to a civil rights claim for damages, even if those damages are only nominal. The defendants contend that the second cause of action fails to state a claim for which relief can be granted because of the principle of judicial immunity.  Damarlane contends that the lengthy delay in issuing its opinion is not the type of judicial act for which judicial immunity is available.  For this proposition, Damarlane relies on Morrison v. Lipscomb, 877 F.2d 463 (6th Cir. 1989) and on a footnote in Lowe v. Letsinger, 772 F.2d 308, 312 n.4 (7th Cir. 1985).

     "[A] judge is generally granted absolute immunity from civil liability for acts done in the exercise of a judicial function."  Jano v. King, 5 FSM Intrm. 388 , 391 (Pon. 1992).  "`Few doctrines were more solidly established at common law than the immunity of judges for damages for acts committed within their judicial jurisdiction.'"Id. (quoting Pierson v. Ray, 386 U.S. 547, 553-54, 87 S. Ct. 1213, 1217, 18 L. Ed. 2d 288, 294 (1967)).  This doctrine of judicial immunity derived from the common law of England and the United States has been found equally applicable for and adopted in the Federated States of Micronesia.  Id. at 392.  Judges lose their judicial immunity only for non-judicial actions (actions not taken in the judge's judicial capacity), or for actions, though judicial in nature, taken in the complete absence of all jurisdiction.Bank of Guam v. O'Sonis, 9 FSM Intrm. 106, 112 (Chk. 1999); Liwi v. Finn, 5 FSM Intrm. 398, 400 (Pon. 1992); Jano, 5 FSM Intrm. at 391.

     Damarlane contends that the Pohnpei Supreme Court's delay in issuing its appellate opinion is not an act for which judicial immunity is available.  He cites Morrison in which a Chief Judge, acting in his administrative capacity, placed a moratorium on the issuance of all writs of restitution from December 15th through January 2nd.  The Morrison court held that absolute judicial immunity did not apply because the act was administrative, not judicial, but that qualified immunity from a suit for damages did apply if the Chief Judge had not violated clearly established constitutional rights of which he should have known.  Morrison, 877 F.2d at 466.

     Two factors, both relating to the nature of act itself, determine whether an act by a judge is a judicial one:  whether it is a function normally performed by a judge, and whether the parties dealt with the judge in his judicial capacity.  Bank of Guam v. O'Sonis, 9 FSM Intrm. 106, 112 (Chk. 1999).  The second question in deciding whether immunity exists is whether the judge acted in complete absence of all jurisdiction.  Id.

     Damarlane does not contend that the defendants acted in complete absence of all jurisdiction, and Damarlane did deal with the defendants in their judicial capacities. Issuance of appellate opinions is a function normally performed by judges.  And "the timing of a decision is normally, if not always, a judicial decision."Lowe, 772 F.2d at 312.  The Morrison reasoning is therefore inapplicable because the Chief Judge's moratorium in Morrison was an administrative, not a judicial act.

     In response, Damarlane relies on a footnote that the Lowe court appended to the statement quoted above.  That footnote reads:  "An exception might be where a statute specifically sets forth a maximum period for decision-making."  Id. at 312 n.4. The statement is dicta.  It gives little guidance.  It does not affirmatively state that such is the case.  It only states that that might be the case without further explanation and it offers no authority for that statement.

     The Pohnpei Judiciary Act sets forth time periods within which appellate decisions should be made absent good cause.  Pon. S.L. No. 3L-99-95, 3-7.  It also provides that a monthly statement must be filed by the court clerk, listing those pending cases, and the judge(s) responsible for them, that have not met the time standards.  Id. 3-7(1).  Damarlane contends that this statute removes the cloak

[10 FSM Intrm.122]

of judicial immunity from a suit for damages for failure to issue a timely decision.

     If the statute has that effect it would be in derogation of the well-established common law principle of absolute immunity from suits for damages for judicial acts. Generally, statutes and enactments in derogation of the common law ) existing law ) are to be strictly construed.  State v. Taylor, 425 P.2d 1014, 1018 (Haw. 1967) (court should not find that the common law has been superseded in an area not mentioned by the statute when it does not appear that it was the legislative purpose to supersede the common law); Floyd v. City of Butte, 412 P.2d 823, 826 (Mont. 1966); Keller v. City of Bellingham, 600 P.2d 1276, 1279 (Wash. 1979); Mahaney v. Hunter Enterprises, Inc. , 426 P.2d 442, 444 (Wyo. 1967).  "Although it is generally agreed that a statute in the derogation of the common law must be strictly construed, this rule of statutory construction cannot be used to defeat the obvious purpose of the legislature, nor to lessen the scope plainly intended to be given the statute."State v. Hagerud, 570 P.2d 1131, 1134-35 (Mont. 1977).

     The defendants claim that the Judiciary Act contains no penalty for the failure to issue a timely decision.  That is not so.  The penalty imposed by the Pohnpei Legislature is that the cases that have not been handled in a timely fashion, and the judge(s) responsible for them, are listed in a public document filed by the court clerk every month with the Director of the Department of Treasury and the State Auditor. Pon. S.L. No. 3L-99-95, 3-7(1).  The defendants also claim that the Act does not create a private right of action for the failure to render an opinion in a timely manner. That is true.  The statute does not show any legislative intent to abolish the well-established principle of absolute judicial immunity for the judicial act of timing the issuance of court decisions and allow a private suit for damages in such a case.  In the absence of an explicit expression of such legislative intent, I can only conclude that the Pohnpei Legislature did not intend to abolish absolute judicial immunity in this instance and did not intend to create a right for damage suits against judges if their decisions were not timely.  The second cause of action therefore fails to state a claim for which relief may be granted.  It is accordingly dismissed.  FSM Civ. R. 12(b)(6).

III.  Conclusion
     The first cause of action is accordingly dismissed for lack of jurisdiction to issue to writ requested, and because, even if the trial division did have such jurisdiction, the cause of action is moot.  The second cause of action is dismissed for its failure to state a claim upon which relief may be granted.  Since both causes of action are dismissed, the complaint is thereby dismissed.
 
?1,0Mbw 4I^s7778808E8Z8o888888899,9A9^9{99999::.:C:X:m::::P:::;;*;?;T; ȀH$.,1a3H]ri;~;;;;;;;6RMMt?KG1 9<&<C<`<}<<<<<fMHO6U;G1A=#=8=U======>0>M>dj>