KOSRAE STATE COURT TRIAL DIVISION

Cite as Melander v. Heirs of Tilfas 13 FSM Intrm. 25 (Kos. S. Ct. Tr. 2004)

[13 FSM Intrm. 25]

CIVIL ACTION NO. 86-04

Hearing: October 12, 2004
Decided: October 13, 2004

APPEARANCES:

HEADNOTES

Attorney, Trial Counselor and Client – Attorney Discipline and Sanctions

An attorney's actions in preparing a notice of appeal for filing by the appellant as a pro se litigant, is called "ghostwriting." An attorney's behind-the-scenes document preparation for persons who wish to appear pro se is not viewed favorably by courts. This surreptitious representation results in the litigant representing to the court that he is acting without the assistance of counsel, when this is not true. Importantly, ghostwriting permits an attorney to evade the responsibilities imposed by Civil Rule 11. Melander v. Heirs of Tilfas, 13 FSM Intrm. 25, 27 (Kos. S. Ct. Tr. 2004).

Attorney, Trial Counselor and Client – Attorney Discipline and Sanctions

Attorney involvement in drafting pro se court documents constitutes unprofessional conduct and is inconsistent with procedural, ethical and substantive rules of court. Melander v. Heirs of Tilfas, 13 FSM Intrm. 25, 27 (Kos. S. Ct. Tr. 2004).

Attorney, Trial Counselor and Client – Attorney Discipline and Sanctions

The Kosrae State Court disapproves of ghostwriting of court documents for pro se litigants by legal counsel admitted to practice law in the State of Kosrae. Counsel may, of course, always refer a

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pro se litigant to the court for the litigant to review a sample notice of appeal from a decision entered by Kosrae Land Court. Melander v. Heirs of Tilfas, 13 FSM Intrm. 25, 27 (Kos. S. Ct. Tr. 2004).

Appellate Review – Notice of Appeal

A notice of appeal from a Land Court decision to the Kosrae State Court must be filed within sixty days of service of the Land Court decision upon the party appealing the decision. State law does not provide any mechanism or authority for extension of the time for filing the notice of appeal beyond the sixty day period. Melander v. Heirs of Tilfas, 13 FSM Intrm. 25, 27 (Kos. S. Ct. Tr. 2004).

Statutes – Construction

Decisions of the United States courts have been consulted by our nation's courts when the language of the FSM Constitution or statute is comparable to language of the United State Constitution, but when there has been no showing that the Kosrae statutory language is comparable to the language addressed by the United States Supreme Court, those decisions will not be considered, especially when the FSM Supreme Court appellate division has addressed the issue. Melander v. Heirs of Tilfas, 13 FSM Intrm. 25, 27 (Kos. S. Ct. Tr. 2004).

Appellate Review – Notice of Appeal

In the absence of a timely notice of appeal, an appellate court has no jurisdiction over an appeal. The appeal is then properly dismissed. Melander v. Heirs of Tilfas, 13 FSM Intrm. 25, 27 (Kos. S. Ct. Tr. 2004).

Appellate Review – Dismissal; Appellate Review – Notice of Appeal

When a notice of appeal was not filed within the statutory time period for appeal, the court has no jurisdiction over the appeal and also has no authority to allow filing of the notice of appeal beyond the statutory time period. When a notice of appeal is filed one day after the statutory sixty day period for appeal from Land Court expired, the statutory deadline for filing a notice of appeal cannot be extended, the court does not have jurisdiction over the appeal, and the appeal will be dismissed with prejudice. Melander v. Heirs of Tilfas, 13 FSM Intrm. 25, 27-28 (Kos. S. Ct. Tr. 2004).

COURT'S OPINION

YOSIWO P. GEORGE, Chief Justice:

On September 5, 2004, this Court entered an Order to Show Cause why this Appeal should not be dismissed. The hearing on the Order to Show Cause was held on October 12, 2004. Appellant appeared pro se, on his own behalf. Sasaki George was also present at the hearing. The basis for the Order to Show Cause was the alleged failure of Appellant's Notice of Appeal to comply with the statutory filing deadline. The Notice of Appeal was filed on June 30, 2004. Appellant's Notice of Appeal states that he was served with the decision pertaining to the subject parcel, 15-U-10, on April 30, 2004,.

The Appellant explained the reason for delay in filing the notice of appeal. He claimed that he had originally requested trial counselor Albert Welly to represent him in the appeal. Mr. Welly apparently considered the matter for some time, but never filed the notice of appeal. The Appellant then asked Sasaki George to draft the notice of appeal for him. Sasaki George, an attorney with MLSC, drafted the notice of appeal. The Appellant, as a pro se litigant, then filed the notice of appeal on June 30, 2004, 61 days after the Land Court decision was served upon him.

[13 FSM Intrm. 27]

Mr. George's actions in preparing the notice of appeal on behalf of the Appellant, for filing by the Appellant as a pro se litigant, is called "ghostwriting." An attorney's behind-the-scenes documentation preparation for persons who wish to appear pro se is not viewed favorably by courts. This surreptitious representation results in the litigant representing to the court that he is acting without the assistance of counsel, when this is not true. Importantly, ghostwriting permits an attorney to evade the responsibilities imposed by KRCP Rule 11. Annotated Model Rules of Professional Conduct, Rule 1.2, Ghostwriting Court Documents for Pro Se Litigants at 37 (5th ed. 2003). While ghostwriting has not been addressed in reported decisions of this Nation's courts, decisions entered by United States courts have determined that attorney involvement in drafting pro se court documents constitutes unprofessional conduct and is inconsistent with procedural, ethical and substantive rules of court. See Ricotta v. California, 4 F. Supp. 2d 961 (S.D .Cal. 1998); Laremont-Lopez v. Southeastern Tidewater Opportunity Ctr., 968 F. Supp. 1075 (E.D. Va. 1997). Consistent with the policies stated by United States courts, this Court also disapproves ghostwriting of court documents for pro se litigants by legal counsel admitted to practice law in the State of Kosrae. Counsel may, of course, always refer a pro se litigant to this Court, for the litigant to review a sample notice of appeal from a decision entered by Kosrae Land Court.

Kosrae State Code, Sections 11.614(1) and 11.614(2) require that the notice of appeal be filed within sixty days of service of the Land Court decision upon the party appealing the decision. The decision was served upon the Appellant on April 30, 2004. The sixty day period for appeal expired on June 29, 2004. The Notice of Appeal was filed on June 30, 2004, after the statutory time for appeal. State Law does not provide any mechanism or authority for extension of the time for filing the notice of appeal beyond the sixty day period.

Sasaki George, citing to caselaw of the United States Supreme Court, suggesting that this Court adopt a "substantial interpretation" of the law, instead of a "strict interpretation." Mr. George reasoned that a "substantial interpretation" of Kosrae State Court, Section 11.614 would permit this Court to retain jurisdiction over this appeal.

Decisions of the United States courts have been consulted by court of our Nation where the language of the FSM Constitution or statute are comparable to language of the United State Constitution. See FSM v. Louis, 9 FSM Intrm. 474 (App. 2000); Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40 (App 1995); Federal Business Dev. Bank v. S.S. Thorfinn, 4 FSM Intrm. 367 (App. 1990). Here, there has been no showing that the language in Kosrae State Code, Section 11.614, is comparable to the language relating to time limits for filing of a notice of appeals, as addressed by the United States Supreme Court. Furthermore, the highest court of our Nation, the Appellate Division of the Supreme Court of the Federated States of Micronesia, has addressed the issue of untimely filing of the notice of appeal. Pursuant to the FSM Constitution, the Supreme Law of our Nation, this Court is bound to follow and apply the decisions of the Appellate Division of the Supreme Court of the Federated States of Micronesia.

The FSM Supreme Court, Appellate Division has held that in the absence of a timely notice of appeal, an appellate court has no jurisdiction over an appeal. The appeal is then properly dismissed. O'Sonis v. Bank of Guam, 9 FSM Intrm. 356 (App. 2000). Here, the notice of appeal was not filed within the statutory time period for appeal. Accordingly, this Court has no jurisdiction over the appeal. This Court also has no authority to allow filing of the notice of appeal beyond the statutory time period. See Jonas v. Mobil Oil Micronesia, Inc., 2 FSM Intrm. 164 (App. 1986).

The statutory sixty day period for appeal expired on June 29, 2004. The notice of appeal was filed on June 30, 2004. This Court does not have authority to allow extend the statutory sixty day limit for filing the notice of appeal. Accordingly, the statutory deadline of June 29, 2004 for filing of the

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notice of appeal in this matter cannot be extended. Therefore, this Court does not have jurisdiction over this appeal from the decision entered by the Kosrae Land Court on April 30, 2004, pertaining to parcel 15-U-10. This appeal is dismissed with prejudice.