CHUUK STATE SUPREME COURT APPELLATE DIVISION
Cite as In re Contempt of Umwech,
8 FSM Intrm. 20 (Chk. S. Ct. App. 1997)

[8 FSM Intrm. 20]

IN RE CONTEMPT OF MARCELLINO UMWECH
and the ACTING DIRECTOR OF TREASURY,
Appellants,

vs.

SUSUMU AIZAWA et al.,
Real Parties in Interest.

APPEAL NO. 1-97
MEMORANDUM

Richard H. Benson
Special Appellate Division Justice

Hearing and Decided:  February 13, 1997
Entered:  February 14, 1997

APPEARANCES:
For the Appellants:     Wesley Simina, Esq.
                       Chuuk Attorney General
                       P.O. Box 189
                       Weno, Chuuk FM 96942

For the Appellees:      Johnny Meippen, Esq.
                       P.O. Box 705
                       Weno, Chuuk FM 96942

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[8 FSM Intrm. 21]

HEADNOTES
Appeal and Certiorari) Stay
     In exceptional cases when consideration by the appellate panel would be impracticable due to time requirements, an application for a stay may be made to and considered by a single Chuuk State Supreme Court justice.  In re Contempt of Umwech, 8 FSM Intrm. 20, 21 (Chk. S. Ct. App. 1997).

Appeal and Certiorari ) Stay; Contempt
     Punishment of imprisonment for contempt is automatically stayed on appeal, unless the court finds that a stay of imprisonment will cause an immediate obstruction of justice.  "Obstruction of justice" means to impede those who seek justice in court or to impede those who have duties or powers to administer justice.  In re Contempt of Umwech, 8 FSM Intrm. 20, 22 (Chk. S. Ct. App. 1997).

Appeal and Certiorari ) Stay; Contempt
     When all parties are seeking to vindicate their positions in a court of law an immediate obstruction of justice is not present that would prevent the automatic stay of punishment of imprisonment for contempt.  In re Contempt of Umwech, 8 FSM Intrm. 20, 22 (Chk. S. Ct. App. 1997).

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COURT'S OPINION
RICHARD H. BENSON, Special Appellate Division Justice:
     On January 30, 1997 the trial court found the defendants in Civil Action No. 216-96 in contempt of court and ordered that if they did not comply with the trial court's order then they should report to the Chuuk State Department of Public Safety for incarceration at 4:30 p.m. on February 7, 1997, and remain there until they complied.  On February 5, 1997, the defendants filed a notice of appeal in the Chuuk State Supreme Court Appellate Division of the finding of contempt and moved for a stay in the trial court.  On February 6th, not knowing when the trial court would rule, they filed a motion for a stay in the appellate division as well.  On February 7, 1997, the trial court denied the motion for stay that was before it.

     I then granted a temporary stay until February 13, 1997, and directed that the appellants file and serve a new motion for a stay that addressed the trial court's denial of a stay.  I acted pursuant to Chuuk State Rule of Appellate Procedure 8(a) which allows a motion for a stay "may be made to the State Court Appellate Division or to a justice thereof."  The rule further provides that the motion "normally will be considered by a panel or division of the court, but in exceptional cases where such procedure would be impracticable due to the requirements of time, the application may be made to and considered by a single justice of the Supreme Court."  I found that this was just such an exceptional case.

     The new motion was filed February 11, 1997.  It thus came before me for argument on February 13, 1997.  Attorney General Wesley Simina was present on behalf of the appellants and Johnny Meippen appeared on behalf of the real parties in interest (plaintiffs in Civil Action No. 216-96).  The attorneys specifically consented to having the motion heard by a single justice.  I then heard counsels' arguments and reviewed the record of the case, including the trial court's February 7th order, denying a stay.  I concluded that a stay of the contempt order would not cause an immediate obstruction of justice.  I therefore granted the motion to stay the trial court's January 30th contempt order, and ordered that any punishment for contempt found in that order be stayed during the pendency of this

[8 FSM Intrm. 22]

appeal.  This memorandum sets forth my reasons for doing so.

     The Chuuk Judiciary Act provides that:

     Any adjudication of contempt is subject to appeal to the Appellate Division of the State Supreme Court.  Any punishment of contempt may be stayed pending appeal, but a punishment of imprisonment shall be stayed on appeal automatically, unless the court finds that a stay of imprisonment will cause an immediate obstruction of justice, which finding must be supported by written findings of fact.  A denial of a stay of imprisonment is subject to review.

Chk. S.L. 190-08, 27(3).  I thus have the authority to review the trial court's denial and can modify the stay.  The order of contempt appealed involves a punishment of imprisonment of the alleged contemnors until certain funds are retrieved and repaid into the state's general fund pursuant to the trial court's January 30th order.  The statute says that a punishment of imprisonment is automatically stayed on appeal, "unless the court finds that a stay of imprisonment will cause an immediate obstruction of justice."  Id.  Thus the issue before me is whether a stay would cause an immediate obstruction of justice.  If it would not, then I must grant the stay.  "Obstruction of justice" means to impede those who seek justice in court or to impede those who have duties or powers to administer justice.  See Black's Law Dictionary 972 (5th ed. 1979).  The statute defines contempt as an "intentional obstruction . . . of the administration of justice . . . ."  Chk. S.L. 190-08, 27(1)(a).  The two are thus different.

     The trial court's findings did not say that a stay would cause great strife and ongoing threats of violence, it instead indicated that this state of affairs already existed.  No other trial court finding addressed whether a stay would cause an immediate obstruction of justice.  Furthermore, all parties were currently seeking to vindicate their positions in a court of law.  There may be unusual cases where a stay would be denied because other people would breach the peace.  This was not one of them.  The question here was whether a stay would cause an immediate obstruction of justice, not the merits of the appeal.  I concluded that it would not, and therefore granted the motion for a stay.

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