FSM SUPREME COURT APPELLATE DIVISION
Cite as Heirs of George v. Heirs of Dizon,16 FSM Intrm. 100 (App. 2008)
HEIRS OF LINUS GEORGE,
Appellants,
vs.
HEIRS OF FRANKY DIZON,
Appellees.
APPEAL CASE NO. K2-2007
ORDER OF DISMISSAL; REVERSAL OF SANCTION
Decided: September 9, 2008
BEFORE:
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court
Hon. Ready E. Johnny, Associate Justice, FSM Supreme Court
APPEARANCES:
For the
Appellant: Sasaki L. George, Esq.
P.O. Box 780
Tofol, Kosrae FM 96944
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An opening brief is deemed filed when mailed, not when received by the clerk. Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 106 n.3 (App. 2008).
A single justice's reprimand of a legal services corporation law firm must be reversed where it was based on a factual error that the attorney appearing for the appellants was appearing as a member of the law firm when he was appearing only on his own behalf and his close relatives. Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 106-07 (App. 2008).
An attorney is the real party in interest for any sanction imposed on him personally. Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 107 (App. 2008).
Imposition of Rule 46(c) disciplinary sanctions is subject to due-process scrutiny. Adequate notice and an opportunity to be heard are the essence of due process. Heirs of George v. Heirs of
Dizon, 16 FSM Intrm. 100, 107 (App. 2008).
When an FSM court has not previously construed an FSM appellate procedure rule which is identical or similar to a U.S. counterpart, the court may look to U.S. sources for guidance in interpreting the rule. Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 107 n.4 (App. 2008).
The good cause standard is a broader and more liberal standard than excusable neglect standard. Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 108 n.5 (App. 2008).
When, although the notice did not cite any of the Rules of Professional Conduct that the reprimand found that the attorney violated, it was adequate notice because it did state what act or omission of counsel may lead to discipline and cited the relevant appellate rule. The attorney ought to have been aware that he was facing some sort of sanction for not timely filing a brief and that the sanction would be imposed under Rule 46(c). Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 108 (App. 2008).
An attorney can be disciplined for ignoring or tardily responding to repeated court orders to file documents and briefs, and failure to prosecute an appeal with due diligence is sanctionable under Appellate Rule 46(c). It is not required that the appellate court find intentional conduct in order for an attorney to be disciplined under Rule 46(c). Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 108-09 (App. 2008).
An attorney's inability to comply with the court's rules and orders governing the filing of briefs and appendixes within the time deadlines does not excuse the attorney's failure to comply with such rules and orders. The attorney's admitted inability to produce an appellate brief in a timely manner would not prevent him from being disciplined under Rule 46(c). Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 109 (App. 2008).
A single Supreme Court appellate division justice may entertain and may grant or deny any request for relief which under the appellate procedure rules may properly be sought by motion. Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 109 (App. 2008).
It is the FSM Supreme Court appellate division that, under Rule 46(c), imposes "any appropriate disciplinary action" against one certified to practice before the court. Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 109 (App. 2008).
A single justice may entertain and grant or deny any request for relief which under the appellate rules may properly be sought by motion. But "appropriate disciplinary action" is not "relief" that can be properly sought by motion and is thus not within a single justice's power. Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 109 (App. 2008).
A norm of the interpretation of rules is that the specific provision prevails over the general provision. Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 110 (App. 2008).
Only an appellate panel has the power to impose attorney disciplinary sanctions through the application of Appellate Rule 46(c) (for transgressions committed in the appellate division). A single appellate justice cannot impose Rule 46(c) disciplinary sanctions. The proper procedure is for the appellate division to give notice of possible sanction after disposing of the appeal, or, in a criminal appeal, after the offending attorney has been discharged. The same panel would then rule on, and impose, if necessary, the appropriate sanction. If the appeal is disposed of by a single justice dismissal order, that single justice may give notice of a possible Rule 46(c) sanction, but only an appellate panel may decide whether to impose it. Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 110 (App. 2008).
Besides Appellate Rule 46(c), disciplinary sanctions may also be imposed on an attorney through a complaint referred to the Chief Justice and docketed by the Chief Clerk, which then proceeds through the usual disciplinary process in the Disciplinary Rules. Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 110 & n.8 (App. 2008).
A single justice reprimand must be reversed since a single justice lacks the power to impose Appellate Rule 46(c) discipline. Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 110 (App. 2008).
Rule 34(a) exhibits a marked preference for oral argument on the merits, although the parties may waive oral argument unless the court directs otherwise, but Rule 2 provides a ready means for dispensing with oral argument, especially when argument would not be on the merits. Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 111 & n.10 (App. 2008).
The FSM Supreme Court appellate division may, in the interest of expediting decisions or for other good cause shown, suspend the requirements or provisions of any of the appellate rules in a particular case on a party's application or on its own motion except as otherwise provided in Rule 26(b), which prohibits the court from enlarging time to file an appeal or to seek permission to appeal and does not mention oral argument. Thus, even if Rule 34(a) were read to require oral argument, Rule 2 would permit the court to dispense with oral argument. Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 111 (App. 2008).
The Constitution's due process protections do not require appellate oral argument. Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 111 (App. 2008).
Motions may be decided without oral argument. Where argument would not be helpful to the decisional process, it will not be required on a dismissal issue when the appellants have had, and have taken, their opportunity to be heard by filing written submissions. Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 111 (App. 2008).
A single FSM Supreme Court appellate division justice may entertain and may grant or deny any request for relief which under the appellate rules may properly be sought by motion, but a single justice may not dismiss or otherwise determine an appeal, except upon stipulation of all parties, or upon a party's failure to comply with the rules' timing requirements. The phrase "timing requirements of these rules" has been interpreted to include an appellant's failure to file an opening brief or a statement of issues on appeal and a designation of the record and the failure to file a notice of appeal within the time prescribed by Rule 4. Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 112 (App. 2008).
If an appellant fails to file a brief within the time provided by Rule 31, or within the time as extended, an appellee may move for dismissal of the appeal. Rule 31(c) permits an appellee to move to dismiss, but it does not require appellees to do so because they are not required to do anything. Since a court, even an appellate court, has the right to control its own docket, Rule 31(c) does not prevent the appellate court, in an effort to control its own docket, from also moving to dismiss an appeal for an appellant's failure to timely file a brief. Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 112-13 (App. 2008).
When the court, through a single justice, has made its own motion to dismiss as a matter of docket management, it cannot decide its own motion without first giving the parties notice and an opportunity to be heard because that would violate a litigant's due process rights guaranteed by the FSM Constitution since notice and an opportunity to be heard is the essence of due process. Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 113 (App. 2008).
When an order constituted the sua sponte motion to dismiss and the notice to the appellants of the motion to dismiss and when, although it did not cite Rule 27(c), the order did give notice that the appeal was subject to dismissal and the factual basis (failure to file a brief and thus failure to comply with Rule 31) for the possible dismissal, the appellants had notice of the facts they had to respond to and the probable result if they were unable to show cause. Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 113 (App. 2008).
It is within a single justice's power to, upon the justice's own motion and with adequate notice, dismiss an appeal for an appellant's failure to timely file an opening brief. Like any other single justice order, an aggrieved party may seek review of the dismissal order by a full appellate panel, which must then consider it. Review of a single justice order is de novo. Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 113 (App. 2008).
Dismissal for an attorney's inexcusable neglect in failing to file an opening brief is handled differently in civil and criminal appeals. Appellate courts are much more reluctant to dismiss a criminal appeal for an attorney's inexcusable neglect because a criminal defendant has no other remedy. In a civil appeal, when the appeal is dismissed for inexcusable neglect in prosecuting the appeal, if the party whose appeal is thus dismissed is thereby aggrieved, his remedy will be against his attorney. A criminal appellant has no such remedy. Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 114 (App. 2008).
The burden is on the appellant to apply, before his time allowance has run, for additional time upon a showing of real need which will not unduly prejudice the appellee. Until such application for extended time is made so that it may be considered before the allotted time has expired, it is evidence of a lack of good faith and, and failing extraordinary circumstances, it constitutes neglect which will not be excused. Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 114 (App. 2008).
When there is a pattern of not seeking enlargements of time until after filing dates, either set by the court or rule, or even the ones suggested by the appellants as when their brief would be done, had passed; when this practice is considered evidence of a lack of good faith; and when the appellants do not present any extraordinary circumstances that would warrant excusing their neglect in filing their brief seven months late, the dismissal of their appeal is proper. Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 114-15 (App. 2008).
The appellate court is not required to just patiently wait until a self-described inexperienced (in appellate matters) counsel has finished a brief and then moved for an enlargement of time so that the court can then be called upon to decide the appeal on its merits. The policy preference for adjudications on the merits (and the case has already been adjudicated on the merits once, by the trial court) does not automatically negate all other considerations or make the procedural rules a nullity. The rules' timing requirements apply to these appellants as they would with any other civil appellant. Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 115 (App. 2008).
* * * *
PER CURIAM:
This comes before us on the appellants' request to review a single justice's order dismissing this appeal and imposing disciplinary sanctions on the appellants' counsel, Sasaki L. George, and on the Micronesian Legal Services Corporation ("MLSC"). After review, we dismiss the appeal and reverse the disciplinary sanctions. Our reasons follow.
On February 12, 2007, the Kosrae State Court affirmed the Kosrae Land Court's January 20, 2006 Order of Dismissal of the claim of the Heirs of Linus George. On March 26, 2007, the George heirs filed a notice of appeal to the FSM Supreme Court in the Kosrae State Court. (This was 42 days after the February 12, 2007 decision, the last day to appeal to the FSM Supreme Court appellate division. FSM App. R. 4(a)(1)(A).) On March 29, 2007, the George heirs filed the required notice of appeal in the FSM Supreme Court appellate division.1
On April 22, 2007, the appellants filed an unopposed motion to enlarge time to request a transcript. On May 30, 2007, the chief clerk certified the record was ready and issued a briefing schedule setting July 16, 2007 as the date the appellants' brief was due. (The clerk appears to have miscounted because the 40 days allowed to file an opening brief, FSM App. R. 31(a); 12(b), would have made the due date July 9, 2007.) On May 31, 2007, the Chief Justice granted the motion to enlarge time to request a transcript. On July 9, 2007, the Kosrae State Court ordered that the record be supplemented to include the Kosrae Land Court records. On July 23, 2007, the appellants filed a motion to enlarge time to file their opening brief because the transcript was not ready and the supplemental record had not been certified. On August 14, 2007, the Chief Justice granted this motion. On August 22, 2007, the chief clerk issued an amended briefing schedule setting October 8, 2007, as the due date for the appellants' opening brief. (The clerk appears to have miscounted again because 40 days would have made the due date October 1, 2007.) On August 23, 2007, the Kosrae State Court denied the appellants' motion to have the record re-assembled, re-certified, and re-transmitted as a single record.
No brief having been filed, the Chief Justice, on November 22, 2007, issued an order for the George appellants to show cause, no later than December 15, 2007, why this appeal "should not be dismissed and why the Court should not take appropriate disciplinary action against Mr. George [the appellants' attorney and an heir of Linus George] pursuant to Appellate Rule 46(c)." Order to Show Cause at 1 (Nov. 22, 2007). It further stated that "[i]f Mr. George requests a hearing before the entire panel, the Court will consider, as part of the disciplinary action, if any, requiring Mr. George, in his individual capacity, to pay the travel costs incurred by the panel." Id.
On December 17, 2007, the appellants faxed to the court a motion to enlarge time to December 28, 2007, and a request to file the enlargement motion by fax. On December 24, 2007, the Chief Clerk sent George a letter stating that the motion had not been filed because only one original and two copies of the motion had been received in the mail and that, although the clerk=s office had done so in the past, it would no longer accept for filing less than the requisite number of copies. The motion was never filed, and the earlier request to file by fax was never ruled on. On December 27, 2007, George signed his Written Submissions, with memorandum and supporting exhibits and affidavit. These were filed on January 8, 2008. The memorandum included a statement that counsel George would do everything within his control to finish the opening brief in this and four other appeal cases by February 20, 2008.
Still no brief having been filed, the Chief Justice, on March 12, 2008, issued an Order of Dismissal; Reprimand, which dismissed the appeal for failure to show good cause why the appellants' opening brief had not been filed, and which reprimanded counsel George for conduct unbecoming a member of the bar, for breaching his fiduciary duties to his clients by not providing competent legal services to them or acting for them with diligence and promptness. Order of Dismissal; Reprimand at 2-4 (Mar. 12, 2008). The order also held that, since George was an MLSC employee, George was not alone in his misconduct; MLSC had a responsibility to supervise his work and had "failed to live up to its fiduciary obligations by allowing Mr. George to neglect this appellate matter to the detriment of the Heirs of Linus George." Id. at 4. The order also noted that since it was a single justice order, either George or the appellants could, under Appellate Rule 27(c) seek review by the full panel and added that "[s]uch review, if sought, must be requested by filing a request for review within fourteen (14) days of service of this order." Id. The order was served on March 13, 2008. The due date was thus March 27, 2008.
On March 28, 2008,2 the appellants faxed their Motion for Reconsideration and their Request for Appellate Panel Review, which were marked received by the clerk on March 31, 2008, which included a request to permit filing by fax. The clerk filed these on April 8, 2008, after they were received by mail. On May 8, 2008, the Chief Justice issued an Order Appointing Panel to Consider Motion for Reconsider; Order of Recusal, in which he noted, in his view, that even if he were to grant the request to file by fax, the March 31, 2008 fax was too late because it was not within 14 days of service, and assigned consideration of the motions to the current appellate panel.
The appellants' opening brief was mailed on May 6 or 7, 2008, and marked received by the clerk at Palikir on May 14, 2008. The brief should have been marked "filed" on the earlier date3 since there was no order instructing the clerk to refuse further filings in this case and it was signed by an admitted attorney.
The appellants' Motion for Reconsideration and their Request for Review by Appellate Panel together are essentially three motions – three different requests for relief: 1) to reconsider the single justice's dismissal of the appeal of the Heirs of Linus George, 2) to reconsider the single justice's imposition of the disciplinary sanction of public reprimand against counsel Sasaki George, and 3) to reconsider the single justice's imposition of the disciplinary sanction of public reprimand against MLSC. The motion and request also ask that the court accept the motion and the request for filing, which is presumably a motion to enlarge time for filing to whenever they are received.
The reconsideration motion also asked that the time to file the appellants' opening brief be enlarged to ten days after the motion was submitted (presumably until April 7, 2008, ten days after the March 28, 2008 date on the motion). The brief was not filed until May.
The single justice's March 12, 2008 order commented that:
Mr. George is not alone in his misconduct. Mr. George is an employee of Micronesian Legal Services Corporation ("MLSC") and has been representing appellant in that capacity. MLSC has a responsibility to supervise the work–and workload–of its employees in order to protect the interests of its clients. It appears that MLSC has also failed to live up to its fiduciary obligations by allowing Mr. George to neglect this appellate matter to the detriment of the Heirs of Linus George.
Order of Dismissal; Reprimand at 4 (Mar. 12, 2008). George contends that this must be reversed because this is not an MLSC case, and he is representing himself and his close relatives, who are all heirs of Linus George.
A review of the record shows that George is a party-appellant; he has used his personal address, P.O. Box 780, on all his filings as the address of appellants' counsel, and not MLSC's address, P.O. Box 38; and in the notice of appeal he is called, "Representative for the Heirs of Linus George." Also,
the amended briefing schedule was served on George at P.O. Box 780.
The single justice's reprimand of MLSC is therefore reversed because it was based on a factual error. This is not an MLSC case.
George (since he is the real party in interest for any sanction imposed on him personally) contends that the notice in the November 22 order "was inadequate, in relations to the findings that the Court ultimately made." Motion for Reconsideration at [unnumbered] 10.
The November 22 order, in its first paragraph, recited that the appellants' opening brief was due October 8, 2007 and that no brief had been filed and that this violated Appellate Rule 31. The second paragraph, in its entirety, then gave the following notice: "Accordingly, appellants and Mr. George are hereby ordered to show cause why appellants' appeal should not be dismissed and why the Court should not take appropriate disciplinary action against Mr. George pursuant to Appellate Rule 46(c)." Order to Show Cause at 1 (Nov. 22, 2007). The last paragraph set December 15, 2007 as the date by which to file written submissions and further stated that "[i]f Mr. George requests a hearing before the entire panel, the Court will consider, as part of the disciplinary action, if any, requiring Mr. George, in his individual capacity, to pay the travel costs incurred by the panel." Id.
George contends that the November 22 order did not apprise him of the charges that he wrongfully committed – blatant disregard of the appellate rules, violation of professional obligations and the sacred trust owed client to the appellants, and neglecting court filing deadlines. The single justice found that George violated FSM MRPC Rules 1.1 (failure to provide competent legal representation to a client), and 1.3 (failure to act with reasonable diligence and promptness in representing a client). Order of Dismissal; Reprimand at 3 (Mar. 12, 2008). George also contends that the November 22 order did not apprise him that the court, or the single justice would impose disciplinary sanctions in the appeal, but left the impression that any disciplinary sanctions would come through referral to a disciplinary counsel under the Disciplinary Rules, or by way of a Title 4 contempt proceeding, or through the court's inherent powers. George further contends that, since the notice was inadequate, there was no real opportunity to be heard, especially since the notice's language, in his view, discouraged a hearing by requiring George to pay the panel's travel costs if he asked for one. And lastly, George, relying on In re Sanction of Woodruff, 10 FSM Intrm. 79 (App. 2001), argues that if the court's inherent powers were used to reprimand him, clear and convincing evidence of his bad faith was needed and that there was no such evidence since, in his view, there had been no bad faith on his part because he was trying his best to get all his appellate briefs satisfactorily completed.
Imposition of Rule 46(c) disciplinary sanctions is subject to due-process scrutiny. In re Bithoney, 486 F.2d 319, 323-24 (1st Cir. 1973).4 Adequate notice and an opportunity to be heard are the essence of due process. In re Sanction of Michelsen, 8 FSM Intrm. 108, 110 (App. 1997).
1. Notice
The notice provided George by the November order was sparse. Although it did not cite any of
the Rules of Professional Conduct that the March reprimand found that George violated, it is notice, because of the recitation in its first paragraph, that, if George could not show good cause why no opening brief had been filed, he would then be subject to disciplinary action under Rule 46(c). The November order thus does state what act or omission of counsel may lead to discipline and cited the relevant appellate rule. The notice given George was thus adequate. He ought to have been aware that he was facing some sort of sanction for not timely filing a brief and that the sanction would be imposed under Rule 46(c).
George's response did address the causes of the delays. He recited that he had to travel to Chuuk three times between August 28 and November 19, 2007, as court-appointed counsel for a criminal defendant in the FSM Supreme Court, an appointment he tried to decline but was denied; he had four other appellant's briefs due in four other appeals; people kept coming to the MLSC office seeking urgent legal assistance, which he could not turn away because those cases were assigned to him; and he was generally overwhelmed. Aff. George at 2-3 (Dec. 24, 2007). He further stated that, in all three prior appeals that he had briefed, because of his lack of formal legal training, he had difficulty in completing the briefs since he "needed long uninterrupted hours to not only find [his] argument, but to learn how to write the arguments appropriately." Id. at 2. Also, since the appellants' financial costs were borne solely by George, he stated that he needed time to save up the $1,000 for transcripts and records from the Land Court and the State Court. Aff. George at 5 (Dec. 26, 2007).
Even if we were to conclude that George had shown good cause5 why the brief was not filed by either October 8, 2007, or November 22, 2007, because of his appointment to represent a defendant in three criminal cases in the FSM Supreme Court, Chuuk, and the attendant time and travel that that involved, the situation does not qualify as good cause for not filing an opening brief by February 20, 2008, the appellants' suggested due date for their brief, or as good cause for not filing an opening brief until May, 2008, when it was sent to the court clerk.
An attorney can be disciplined for ignoring or tardily responding to repeated court orders to file documents and briefs. United States v. Song, 902 F.2d 609, 610 (7th Cir. 1990); United States v. Bush, 797 F.2d 536, 537-38 (7th Cir. 1986). In the present appeal, George did not exactly ignore repeated court orders since he was never given an enlargement of time after October 8, 2007, but he did have a habit of responding tardily, and the opening brief was ultimately seven months late. George's responses to the single justice's show cause order and to the dismissal/reprimand were always tardy, although sometimes only by a day or two. Furthermore, he never once moved for an enlargement of time before the due date passed, which is the better, and preferred, practice.
Failure to prosecute an appeal with due diligence is sanctionable under Appellate Rule 46(c). See, e.g., Song, 902 F.2d at 610; United States v. Stillwell, 810 F.2d 135, 136 (7th Cir. 1987) ($500 penalty); United States v. Dominguez, 810 F.2d 128, 129 (7th Cir. 1987) ($1,000 penalty); Bush, 797 F.2d at 538 ($500 penalty); In re Pritzker, 762 F.2d 532, 533 (7th Cir. ($1,000 penalty); In re Harte, 701 F.2d 62, 62 (7th Cir. 1983) (public reprimand); In re Hanson, 572 F.2d 192, 193 (9th Cir. 1977) ($500 penalty); In re Morris, 521 F.2d 793, 794 (9th Cir. 1975) ($300 penalty); In re Margolin, 518 F.2d 551, 551 (9th Cir. 1975) ($500 penalty); In re Silver, 508 F.2d 647, 647 (9th Cir. 1974) (repay 80% of fee); United States v. Farmer, 476 F.2d 996, 997 (9th Cir. 1973) ($779.40 penalty); United States v. Pearson, 476 F.2d 996, 996 (9th Cir. 1973) ($100 penalty); United States v. Rivera, 473 F.2d 1372, 1372 (9th Cir. 1972) ($500 penalty); Gilroy v. Erie Lackawana R.R., 421 F.2d 1321, 1323
(2d Cir. 1970).
It is not required that the appellate court find intentional conduct in order for an attorney to be disciplined under Rule 46(c). DCD Programs, Ltd. v. Leighton, 846 F.2d 526, 528 (9th Cir. 1988); Hanson, 572 F.2d at 193. And an attorney's inability to comply with the court's rules and orders governing the filing of briefs and appendixes within the time deadlines does not excuse the attorney's or the firm's failure to comply with such rules and orders. In re Solerwitz, 848 F.2d 1573, 1580 (Fed. Cir. 1988); Bush, 797 F.2d at 538; Harte, 701 F.2d at 62. Thus, George's admitted inability to produce an appellate brief in a timely manner would not prevent him from being disciplined under Rule 46(c). But, for the reason discussed next, this sanction must be reversed on a different ground.
2. A Single Justice's Power and Rule 46(c) Sanctions
The one point that George does not raise directly6, but that we must address, is jurisdictional – whether a single justice can impose Appellate Rule 46(c) disciplinary sanctions.
There is no indication in Rule 46(c) or in Rule 27(c) that attorney discipline sanctions through Rule 46(c) may be imposed by a single justice. Under Rule 27(c), "a single . . . justice of the Supreme Court appellate division may entertain and may grant or deny any request for relief which under these rules may properly be sought by motion." While Rule 46(c) states, in its entirety:
The Federated States of Micronesia Supreme Court appellate division may, after reasonable notice and an opportunity to show cause to the contrary, and after hearing, if requested, take any appropriate disciplinary action against any person certified to practice before the Supreme Court of the Federated States of Micronesia, for conduct unbecoming a member of the bar or for failure to comply with these rules or any rule of the court.
FSM App. R. 46(c). Two things are apparent. One, it is the appellate division that imposes disciplinary sanctions under Rule 46(c), which may include suspension or disbarment, FSM App. R. 46(b). (The term "appellate division" may refer to either a full appellate panel or to all remaining article XI, section 3 judges, who are not disqualified. It is they who may take "any appropriate disciplinary action" against one certified to practice before the court.) Two, a single justice may entertain and grant or deny any request for relief which under the appellate rules may properly be sought by motion. But "appropriate disciplinary action" is not "relief" that can be properly sought by motion and is thus not within a single justice's power.7
This also conforms to the norms of statutory construction and the interpretation of rules – that the specific provision prevails over the general provision. See, e.g., Olter v. National Election Comm'r, 3 FSM Intrm. 123, 129 (App. 1987); FSM v. Petewon, 14 FSM Intrm. 463, 466-67 (Chk. 2006) (court-promulgated rules are interpreted using the principles of statutory construction); Andrew v. FSM Social Sec. Admin., 12 FSM Intrm. 101, 104 (Kos. 2003); In re Engichy, 12 FSM Intrm. 58, 64, 69 (Chk. 2003). The specific provision of Rule 46(c) ("appellate division") prevails over the general provision of Rule 27(c) (allowing single justice to grant or deny relief properly sought by motion).
In Appellate Rule 46(c) disciplinary sanction cases in the U.S. courts of appeal (whence our Rule 46 was drawn), the ruling imposing (or declining to impose) a sanction is made by an appellate panel, and the notice is given by the appellate panel as well. In In re Solerwitz, 848 F.2d 1573 (Fed. Cir. 1988), the procedure differed slightly in that the show cause order was issued by the Federal Circuit Court of Appeals judges in banc; but a single judge conducted the requested hearing at which seven witnesses testified and other evidence was presented; the single judge made factual findings and recommended certain discipline be imposed; the in banc panel (10 judges) reviewed the testimony and the single judge's recommended discipline; and the in banc panel then imposed the discipline in part as recommended and in part as modified. Thus, even though a single judge conducted the requested hearing, the notice was given and the disciplinary sanctions were imposed, by the Solerwitz court in banc. In In re Hendrix, 986 F.2d 195, 201 (7th Cir. 1993), the appellate panel, after deciding the appeal, gave notice to a lawyer that he may have engaged in sanctionable conduct and gave him 14 days to show cause why he should not be sanctioned under Rule 46(c).
Only an appellate panel has the power to impose attorney disciplinary sanctions8 through the application of Appellate Rule 46(c) (for transgressions committed in the appellate division). A single appellate justice cannot impose Rule 46(c) disciplinary sanctions. The proper procedure is for the appellate division to give notice of possible sanction after disposing of the appeal, or, in a criminal appeal, after the offending attorney has been discharged. The same panel would then rule on, and impose, if necessary, the appropriate sanction. If the appeal is disposed of by a single justice dismissal order, that single justice may give notice of a possible Rule 46(c) sanction, but only an appellate panel may decide whether to impose it.
Thus, the March 12, 2008 single justice reprimand is reversed since the single justice lacked the power to impose it. This reversal of the single justice Rule 46(c) discipline is based solely upon the single justice's lack of power to impose Rule 46(c) discipline. We in no way excuse or condone counsel's behavior in this appeal. Any similar future behavior may well result in attorney discipline.
The appellants also seek reinstatement of their dismissed appeal and wish to be heard on the issue. We hereby grant them their opportunity to be heard on the dismissal issue by considering their reconsideration motion and request for review even though those documents were filed late.
A. Whether Hearing Needed
Since our consideration of the issues before us may result in our upholding the single justice's dismissal, we first consider whether oral argument9 is required. Rule 34(a) exhibits a marked preference for oral argument on the merits.10 "Oral argument shall be allowed in all cases except as otherwise provided in these rules." Id. Appellate Rule 2 provides a ready means for dispensing with oral argument, especially when argument would not be on the merits.
In the interest of expediting decisions, or for other good cause shown, the Federated States of Micronesia Supreme Court appellate division may, except as otherwise provided in Rule 26(b), suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its discretion.
FSM App. R. 2. Rule 26(b) prohibits the court from enlarging time to file an appeal or to seek permission to appeal and does not mention oral argument. Thus, even if Rule 34(a) were read to require oral argument, Rule 2 would permit us to dispense with oral argument.11
The Constitution's due process protections does not require appellate oral argument. "Oral argument on appeal is not an essential ingredient of due process." Price v. Johnson, 324 U.S. 266, 286, 68 S. Ct. 1049, 1060, 92 L. Ed. 1356, 1369 (1948). In National Labor Relations Board v. Local No. 42, 476 F.2d 275, 276 (3d Cir. 1973), the appellate court held that denial of oral argument did not violate constitutional due process rights when oral argument would be held if any one member of the panel requested it. Id. (relying on Federal Communications Comm'n v. WJR, The Goodwill Sta., Inc., 337 U.S. 265, 276, 69 S. Ct. 1097, 1103, 93 L. Ed. 1353, 1360-61 (1949); Huth v. Southern Pac. Co., 417 F.2d 526 (5th Cir. 1969)).
Since, in this case, we cannot see that argument would be helpful to the decisional process, we will not require oral argument on the dismissal issue. Furthermore, we have previously held that "[m]otions may be decided without oral argument." Christian v. Urusemal, 14 FSM Intrm. 291, 293 (App. 2006). The appellants have had, and have taken, their opportunity to be heard by filing written submissions. See Ehsa v. Pohnpei Port Auth., 14 FSM Intrm. 567, 571-72 (Pon. 2007); Kosrae v. Seventh Kosrae State Legislature, 11 FSM Intrm. 56, 59 (Kos. S. Ct. Tr. 2002); Adams v. Island Homes Constr., Inc., 10 FSM Intrm. 430, 432 (Pon. 2001); see also Chuuk v. Andrew, 15 FSM Intrm. 39, 42 (Chk. S. Ct. App. 2007).
B. Whether Dismissal Warranted
The appellants request reconsideration of the dismissal on the grounds 1) that the November 22, 2007 order did not give the appellants notice that the Chief Justice would dismiss the appeal under Rule 27(c) and requests an opportunity to be heard on the Rule 27(c) dismissal; 2) that the policy that matters be adjudicated on their merits means that the court should sanction counsel rather than dismissing the client's case; and 3) that in other cases dealing with counsel's non-compliance with the appellate rules, this case is different. The appellants also question whether dismissal is proper under Rule 27(c) or under the court's inherent power.
1. Power of Single Justice to Dismiss and Rule 31(c)
Under our appellate rules,
a single article XI, section 3 justice of the Supreme Court appellate division may entertain and may grant or deny any request for relief which under these rules may properly be sought by motion, although a single justice may not dismiss or otherwise determine an appeal, except upon stipulation of all parties, or upon failure of a party to comply with the timing requirements of these rules.
FSM App. R. 27(c). Our Appellate Rule 27(c) differs from the U.S. federal Appellate Rule 27(c) in that the U.S. rule bars a single judge from ever dismissing or otherwise determining an appeal.12 U.S. Fed. R. App. P. 27(c).
The phrase "timing requirements of these rules" has been interpreted to include an appellant's failure to file an opening brief or a statement of issues on appeal and a designation of the record, Cuipan v. FSM, 10 FSM Intrm. 323, 325-26 (App. 2001); Ting Hong Oceanic Enterprises v. FSM, 8 FSM Intrm. 264, 265 (App. 1998), and the failure to file a notice of appeal within the time prescribed by Appellate Rule 4, see, e.g., Pohnpei v. AHPW, Inc., 13 FSM Intrm. 159, 161 (App. 2005), aff'd, 14 FSM Intrm. 1, 12 (App. 2006).
The appellants argue that a dismissal under Rule 27(c) requires a motion by the appellee – that the appellee is the sole holder of the privilege or right to move for dismissal when an appellant has failed to file a brief. For this they rely on Rule 31(c)'s language: "If an appellant fails to file a brief within the time provided by this rule, or within the time as extended, an appellee may move for dismissal of the appeal." Rule 31(c) thus permits an appellee to move to dismiss. It does not require the appellee to do so.
If we had to wait for an appellee to move to dismiss an appeal, we, in all likelihood, would still have a number of decade-old appeals on our docket. This case is an example. The appellees are unrepresented, and it is not likely that an admitted attorney will ever appear for them. Even if appellees are represented, they are not required to do anything. Kitti Mun. Gov't v. Pohnpei, 11 FSM Intrm. 622, 627 (App. 2003). If the appellants were correct and only appellees could move to dismiss for an appellant's failure to file a brief, then the appellees' absence would mean that we must let such cases just sit on our docket, forever. Even U.S. courts with an identical Rule 31(c) provision have been
known to move for dismissal sua sponte. See United States v. Gerrity, 804 F.2d 1330, 1331 (7th Cir. 1986); Bush, 797 F.2d at 537. A court, even an appellate court, has the right to control its own docket. See, e.g., Romano & Mitchell, Chartered v. LaPointe, 807 A.2d 139, 145 (Md. Ct. Spec. App. 2002); Tharp v. Disabled Am. Veterans Dep't, 710 A.2d 378, 385 & n.3 (Md. Ct. Spec. App. 1998); Galland v. Bronson, 546 A.2d 935, 936 (Conn. App. Ct. 1988). We therefore conclude that Rule 31(c) does not prevent the appellate court, in an effort to control its own docket, from also moving to dismiss an appeal for an appellant's failure to timely file a brief.
In the present case, the court, through a single justice, made its own motion to dismiss as a matter of docket management. A court cannot decide its own motion without first giving the parties notice and an opportunity to be heard because that would violate a litigant's due process rights guaranteed by the FSM Constitution since notice and an opportunity to be heard is the essence of due process. E.g., Albert v. O'Sonis, 15 FSM Intrm. 226, 234 (Chk. S. Ct. App. 2007); Kama v. Chuuk, 10 FSM Intrm. 593, 598 (Chk. S. Ct. App. 2002). The November 22, 2007 order constituted the sua sponte motion to dismiss and the notice to the appellants of the motion to dismiss. The appellants assert that they were not given notice that the appeal would be dismissed under Rule 27(c). While the November 22, 2007 order does not cite that rule, it does give notice that the appeal is subject to dismissal and the factual basis (failure to file a brief and thus failure to comply with Rule 31) for the possible dismissal. The appellants thus had notice of the facts they had to respond to and the probable result if they were unable to show cause.
In Ting Hong Oceanic Enterprises v. FSM, 8 FSM Intrm. 264, 265 (App. 1998), a single justice held that when an appellant has failed to comply with the appellate rules' timing requirements for filing its opening brief, a single article XI, section 3 justice may, on his own motion, dismiss the appeal after the appellant has been afforded its constitutional due process right to notice and an opportunity to be heard and dismissed that criminal appeal because no brief had been filed and the appellant had been given notice of the court's own motion to dismiss. In Cuipan v. FSM, 10 FSM Intrm. 323, 325-26 (App. 2001), a single justice dismissed a criminal defendant's appeal because no brief had been filed and because the appellant failed, for about six months after entry of the record ready notice, to serve on the appellee a designation of the parts of the record which she intended to include in the appendix and a statement of the issues which she intended to present for review, both of which an appellant must file within 10 days after the date of the clerk's record ready notice.
We conclude that the single justices in Ting Hong and Cuipan acted properly since it is within a single justice's power to dismiss an appeal upon the justice's own motion and with adequate notice, for an appellant's failure to timely file an opening brief. Like any other single justice order, an aggrieved party may seek review of the dismissal order by a full appellate panel, which must then consider it. Pohnpei v. AHPW, Inc., 14 FSM Intrm. 1, 12 (App. 2006). This is what the appellants have now done. Our review of a single justice order is de novo. Western Elec. Co. v. Milgo Electronic Corp., 568 F.2d 1203, 1206 & n.6 (5th Cir. 1978).
2. Merits of Dismissal
The appellants assert that this appeal ought not to have been dismissed and that their appeal should be reinstated because their counsel had spent about 90 hours on this appeal by March 28, 2008; because their counsel was busy, having four other appellate briefs to complete at the same time and having to work on this private case in his off-hours; because of the unending flow of cases or people who come in to seek legal assistance (since it is free of charge) from their counsel; because their counsel had no intention to neglect this particular appeal; and that since receiving the March 12, 2008 dismissal, their counsel has had several other matters that required his immediate attention. The appellants assert that the dismissal in Ting Hong Oceanic Enterprises v. FSM, 8 FSM Intrm. 264 (App.
1998) is distinguished from this case because Ting Hong was an appeal from a criminal conviction and the appellant there did not respond to the single justice's order to show cause. In the appellants' view, policy considerations would cause the court to want to forestall a criminal defendant's delay of his sentence.
Dismissal for an attorney's inexcusable neglect in failing to file an opening brief is handled differently in civil and criminal appeals, but not in the manner the appellants suggest. Appellate courts are much more reluctant to dismiss a criminal appeal for an attorney's inexcusable neglect because a criminal defendant has no other remedy. See, e.g., United States v. Ford, 806 F.2d 769, 770 (7th Cir. 1986) (dismissal denied when no indication that criminal defendant was complicit in or even knew about her attorney's derelictions); Gerrity, 804 F.2d at 1331; Bush, 797 F.2d at 537-38 (in criminal appeals, courts have supervisory responsibilities not present in other appeals); cf. Engichy v. FSM, 15 FSM Intrm. 546 (App. 2008) (one co-appellant did not file a brief but the court, without comment, did not dismiss his appeal on that ground and affirmed all the appellants' convictions on the merits). In a civil appeal, when the appeal is dismissed for inexcusable neglect in prosecuting the appeal, "[i]f the party whose appeal is thus dismissed is thereby aggrieved, his remedy will be against his attorney." Gilroy v. Erie Lackawana R.R., 421 F.2d 1321, 1323 (2d Cir. 1970). A criminal appellant has no such remedy.
In Kephas v. Kosrae, 3 FSM Intrm. 248, 253-54 (App. 1987), another case the appellants rely on for not dismissing an appeal for a late-filed brief, the appellate court denied dismissal on the ground that the brief was filed two days late but ruled dismissal was proper for the three-month delay in serving the appellant's brief on the appellee. In this case there was a seven-month delay in serving the appellees because there was a seven-month delay in filing the brief. The appellants also rely on Nakamura v. Bank of Guam (I), 6 FSM Intrm. 224 (App. 1993), for the principle that counsel ought to be sanctioned rather than the appeal be dismissed. But in Nakamura (I), the appellant's brief was timely filed but was short one copy and missing an appendix. Id. at 225-26. In the present appeal, the brief was not timely filed. It was seven months late.
The appellants assert that their appeal was prosecuted in good faith and that the failure to file an opening brief on time was not done on bad faith but through their inexperienced (in appellate matters) counsel's inability to prepare and file the brief, as described above. The appellants did not seek enlargements of time before the due date(s) had passed.
[T]he burden is on the appellant to apply, before his time allowance has run, for additional time upon a showing of real need which will not unduly prejudice the appellee. . . . Until such application for extended time is made so that it may be considered before the allotted time has expired, it is evidence of a lack of good faith and, failing extraordinary circumstances, it constitutes neglect which will not be excused.
Gilroy, 421 F.2d at 1323; accord Escobar-Ramos v. Immigration & Naturalization Serv., 927 F.2d 482, 485 (9th Cir. 1991). Not once since the Chief Clerk issued the August 22, 2007 amended briefing schedule, have the appellants sought an enlargement of time until after the deadline has passed and the court issued an order. The December Written Submissions, the Motion for Reconsideration, and the Request for Appellate Panel Review were all tardily filed and asked for enlargements of time for their filing. The brief was seven months late. There is a pattern here. Enlargements of time were only sought after filing dates, either set by the court or rule, or even the ones suggested by the appellants as when their brief would be done, had passed. The appellants' attorney even stated that he "thought that it was better" to finish the brief first and then ask for an enlargement of time for the court "to accept the brief late." Aff. George at 4 (Dec. 28, 2007). He added that he thought that "this approach was better than getting multiple orders of enlargement of time and then missing the deadlines again."
Motion for Reconsideration at [unnumbered] 3 (Apr. 8, 2008). As stated in Gilroy, this is considered evidence of a lack of good faith.
The reasons given (once past counsel's stint as appointed criminal defense attorney in Chuuk) were always the busy and urgent nature of legal services work and their counsel' s lack of formal legal training. These reasons do not qualify as extraordinary circumstances. According to George's affidavits, these reasons are ordinary, everyday circumstances – the general and usual nature of legal services work. Furthermore, since their counsel only worked on their appeal during his off-hours, the appellants do not explain why counsel's busy MLSC work-hours would be relevant. Examples of the type of situation qualifying as extraordinary circumstances excusing timely filing of briefs are when counsel's son was seriously injured while on sea duty and both his wife and son were hospitalized during the 40-day period for preparing the brief and appendix, Matute v. Procoast Navigation Ltd., 928 F.2d 627, 631 (3d Cir. 1991), and when a law office's roof failed and four inches of rain water were dumped into the office disrupting the files and preventing use of the office, Escobar-Ramos, 927 F.2d at 486. The appellants do not present any extraordinary circumstances such as these that would warrant excusing their neglect in filing their brief seven months late.
The appellants' contentions, reduced to their essentials, are that we should just patiently wait until a self-described inexperienced (in appellate matters) counsel has finished a brief and then moved for an enlargement of time so that we can then be called upon to decide the appeal on its merits. The policy preference for adjudications on the merits (and the appeal has already been adjudicated on the merits once – by the Kosrae State Court) does not automatically negate all other considerations or make the procedural rules a nullity. The rules' timing requirements apply to these appellants as they would with any other civil appellant.
We therefore conclude that dismissal of this appeal is proper.
Accordingly, the disciplinary sanction imposed by the single justice's March 12, 2008 order on counsel is vacated and that imposed on the Micronesian Legal Services Corporation is reversed, and this appeal is dismissed for want of diligent prosecution, namely the failure to timely file an opening brief and to diligently seek enlargements of time to file the brief when it became apparent it would not be done on time.
_______________________________Footnotes:
1 This is technically three days late, because the notice of appeal becomes effective once it is filed with both the state court and the FSM Supreme Court, in either the appellate division or in the trial division in the state where the case is appealed from. FSM App. R. 3(a). But Akinaga v. Heirs of Mike, 15 FSM Intrm. 391, 394-96 (App. 2007) permits this as long as the state court filing was timely and the FSM filing reasonably soon thereafter. The George heirs could have filed the FSM notice of appeal with the FSM clerk in the Kosrae courthouse at the same time they were there filing the state notice of appeal instead of mailing it to Palikir.
2 The FSM Telecom fax header says the fax was sent at 2:40 p.m., March 28, 2008, a Friday. March 28 was still one day late.
3 An opening brief is deemed filed when mailed, not when received by the clerk. FSM App. R. 25(a).
4 When an FSM court has not previously construed an FSM appellate procedure rule which is identical or similar to a U.S. counterpart, the court may look to U.S. sources for guidance in interpreting the rule, see, e.g., Berman v. College of Micronesia-FSM, 15 FSM Intrm. 622, 624 n.1 (App. 2008); Jano v. King, 5 FSM Intrm. 326, 329 (App. 1992).
5 The good cause standard is a broader and more liberal standard than excusable neglect standard. Ramp v. Ramp, 12 FSM Intrm. 228, 229-30 (Pon. 2003); Bualuay v. Rano, 11 FSM Intrm. 139, 147 (App. 2002); FSM Dev. Bank v. Gouland, 9 FSM Intrm. 375, 377-78 (Chk. 2000).
6 George does touch upon the point obliquely when he states that he expected "any appropriate disciplinary action" to be either through referral to a disciplinary counsel under the Disciplinary Rules, or by way of a contempt proceeding, or through the court's inherent powers, not by the single justice's reprimand. Motion for Reconsideration at 11-12.
7 The Notes of Advisory Committee on Appellate Rules to the U.S. Federal Rules of Appellate Procedure list as examples of a single judge's power: the ability to stay execution or enforcement of a judgment (Rules 8 and 9), to extend time to transmit record or docket appeal (Rules 11 and 12), substitution (Rule 43), to permit in forma pauperis appeal (Rule 24), to enlarge time (Rule 26(b)), to permit amicus curiae brief (Rule 29), to authorize a deferred appendix (Rule 30(c)), to dispense with appendix (Rule 30(f)), permit use of copies (Rule 32(a)), to permit additional briefs (Rule 28(c)), to permit lengthy briefs (Rule 28(g)), to postpone oral argument (Rule 34(a)), or to grant additional time therefor (Rule 34(b)). Petitions for permission to appeal, for mandamus or prohibition, or for rehearing are examples listed as not within a single judge's power. The Notes explain that Rule 27(c) "empowers a single judge to act upon virtually all requests for intermediate relief which may be made{page110} during the course of an appeal." Attorney disciplinary sanctions are not any form of intermediate relief. They are collateral to the appeal, and, as stated below, the notice should be given and discipline imposed after the appeal itself has been disposed of.
8 Disciplinary sanctions may also be imposed on an attorney through a complaint referred to the Chief Justice and docketed by the Chief Clerk, FSM Dis. R. 4(b), which then proceeds through the usual disciplinary process in the Disciplinary Rules.
9 George did not ask for oral argument on reconsideration of his reprimand, perhaps because the November order required him to defray the panel's travel costs. Order to Show Cause at 1 (Nov. 22, 2007). He has prevailed on that issue.
10 The parties may, of course, waive oral argument unless the court directs otherwise. FSM App. R. 34(f).
11 The current U.S. federal version of Rule 34 permits oral argument to be dispensed with when the panel believes the appeal is frivolous, when the dispositive issue has already been decided, or when the facts and arguments are adequately presented in the brief and the decisional process would not be significantly helped by oral argument. Our Rule 34 does not list these exceptions.
12 While in the U.S. Courts of Appeal there is always an appellate panel available, in the FSM we only recently have had enough judges to be able to assemble an appellate panel without the appointment of one or more special judges to fill out the panel, but even now the geographical dispersion of FSM judges places an extra burden on our appellate division.
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