Cites as Kimoul v. FSM ,
4 FSM Intrm. 344 (App. 1990)

[4 FSM Intrm. 344]




FSM APP. NO. C2-1990


Edward C. King, Chief Justice
FSM Supreme Court
November 15, 1990

For the Appellant:     Dan Maloney (On Brief)
                                    Ready Johnny (Argued)
                                    Office of the Public Defender
                                    Weno, Chuuk  FM 96942

For the Appellee:      Douglas Juergens
                                    Office of the Attorney General
                                    FSM National Government
                                    Palikir, Pohnpei  FM 96941

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Appeal and Certiorari
     The court for good cause shown may upon motion enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time.  Kimoul v. FSM, 4 FSM Intrm. 344, 345 (App. 1990).

Appeal and Certiorari
     The FSM Appellate Court Rules, Rule 26(b) gave the appellate court broad discretion to enlarge time upon a showing of good cause.  Kimoul v. FSM, 4 FSM Intrm. 344, 346 (App. 1990).

Appeal and Certiorari
     Under the FSM Appellate Court Rule 4(a)(1), a notice of appeal must be filed within 42 days after entry of the judgment.  Kimoul v. FSM, 4 FSM Intrm. 344, 346 (App. 1990).

[4 FSM Intrm. 345]

Appeal and Certiorari
     Where the delay was only ten days, no prejudice to the appellant has been suggested, the appellant has not opposed the motion for extension of time and the court finds a substantial public interest in having the position of the government considered in the criminal appeal, the Court may appropriately enlarge the time and permit late filing of the government's brief.  Kimoul v. FSM, 4 FSM Intrm. 344, 346 (App. 1990).

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EDWARD C. KING, Chief Justice:
     This memorandum of decision is written to explain the reasons for the Court's action today in granting the government's motion to file the appellee's brief although the prescribed time for doing so has expired.  The government's motion is based on the ground that both attorneys responsible for the handling of this case were off island for business purposes.  Appellant has no objection to an extension of time being granted.

     Appellant's opening brief in this case was filed on August 7, 1990.  On September 7, the government filed a timely motion requesting an extension of time for filing of appellee's brief, until October 12, 1990.  That motion was granted.  On October 12, a second timely request was filed by the government, asking that the time for filing appellee's brief be extended until October 23, 1990. That request was also granted.

     The government took no action from that time until October 29, 1990, when a motion seeking a third enlargement of time was filed.  Although filed some six days after the time for filing appellant's brief expired, the motion contained no explanation as to why the motion was not filed until after the expiration of the time granted.  Therefore, the motion was denied on the same day.  The government then filed the present motion on November 5, at the same time tendering its proposed brief.

     In support of this motion the appellee states that the chief of litigation, who was primarily responsible for handling this case, was off-island at the time the brief came due.  The assistant attorney general who was delegated the authority to make sure any necessary motions for extension of time were filed, was unexpectedly required to leave the island to attend a conference in Papua New Guinea.  No other attorney at the Attorney General's office was alerted to handle this case file in the absence of those two attorneys.

     The applicable rule, entitled "Enlargement Of Time," states, in pertinent part, that: "The court for good cause shown may upon motion enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time."  FSM App. R. 26(b).

[4 FSM Intrm. 346]

     It is clear from the face of Rule 26(b) that the appellate court is given broad discretion to enlarge time upon a showing of "good cause".

     In Jonas v. Mobil Oil Micronesia, 2 FSM Intrm. 164 (App. 1986), the appellees filed a motion to dismiss the defendant's appeal on the ground that the appellant failed to file a timely notice of appeal.  The Court held that it had not jurisdiction to hear the appeal.  The notice of appeal had not been filed until 81 days after the filing of the judgment, although the applicable rule requires that the notice be filed within 42 days after entry of the judgment.  FSM App. R. 4(a)(1).  The appellants in that case acknowledged receiving the judgment on the 46th day, but had not requested an enlargement of time prior to the filing of the notice of appeal.  2 FSM Intrm. at 165.  The Court viewed the filing of a notice of appeal as "jurisdictional" and therefore concluded that it could not permit the case to proceed.  Even so, the Court did recognize the possibility of a limited extension of time for "good cause" under FSM App. R. 4(a)(5).  The Court indicated that if the appellant had filed a motion for enlargement of time, saying that they did not receive the first mailed judgment and that the second judgment was not received until the 46th day, this could have been considered good cause.  2 FSM Intrm. at 167.

     In two previous case, the Court has directly considered the meaning of Rule 26(b).  In Kephas v. Kosrae, 3 FSM Intrm. 248 (App. 1987), the appellee sought dismissal of the appeal on grounds that the appellant's brief was filed two days late.  In denying the motion to dismiss, the Court noted that the appellant apparently relied in good faith on advice from the clerk's office concerning the time for the filing of briefs.  The Court also said:

     The prejudice to it that the State asserts here is in the undermining of the public policy considerations which support finality of judgments.  Every late filing would to a degree entail prejudice of this type.  In this case there is no particularized harm to the State.  We do not find that such generalized prejudice as is caused by two days' delay is of the kind warranting dismissal of the appeal.

3 FSM Intrm. at 253.

     More recently, the appellate court held that where an appellee files a motion to enlarge time to submit the appellee's brief, and that motion is filed well after the brief is due and oral argument has already been held, a lack of fee arrangements between an attorney and the appellee/clients does not constitute good cause within Rule 26(b).  Paul v. Celestine, 3 FSM Intrm. 572, 574 (App. 1988).

     In the instant case the appellee's delay in filing is not so egregious so as to fall within the scope of the Jonas decision; nor is this appeal past the preliminary stage as seen the Paul case.

     Here, the delay, all told, has been ten days.  The government tendered an explanation that confusion in the office of the attorney general due to the

[4 FSM Intrm. 347]

press of other events caused the failure to file the brief on time.  While the Court does not consider this an entirely satisfactory explanation, the delay was relatively small and no prejudice to the appellant has been suggested.  Indeed, the appellant has not oppose the motion.  The Court also notes that there is a substantial public interest in having the position of the government considered in a criminal appeal.  In the circumstances of this particular case, the Court considers this public interest sufficient good cause for enlarging the time and permitting filing of the government's brief.
     For these reasons the motion will be granted and the appeal permitted to proceed.
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