Cite as In re Recall Election ,
8 FSM Intrm. 71 (App. 1997)

[8 FSM Intrm. 71]



In the Matter of the Recall Election
of Mayor Eugene A. Palsis.



Andon L. Amaraich
Chief Justice

Decided:  May 17, 1997

For the Appellant:     Ron Moroni, Esq.
                     P.O. Box 1618
                     Kolonia, Pohnpei FM 96941

[8 FSM Intrm. 72]

For the Appellee:      Delson Ehmes, Sr., Esq.
                     P.O. Box 1018
                     Kolonia, Pohnpei FM 96941

*    *    *    *

Appeal and Certiorari ) Stay
     A single justice may consider a motion for a stay when time requirements and geographical dispersion make it impractical for it to be considered by the full appellate panel.  In re Recall Election, 8 FSM Intrm. 71, 73-74 (App. 1997).

Appeal and Certiorari ) Stay
     A motion for a stay will be denied when it does not show that application to the court appealed from is impractical or that the court appealed from has denied the relief requested accompanied by that court's reasons for the denial.  In re Recall Election, 8 FSM Intrm. 71, 74 (App. 1997).

*    *    *    *
ANDON L. AMARAICH, Chief Justice:

     On May 5, 1997, appellant Eugene A. Palsis filed a motion for a stay of an order by the Kosrae State Court entitled "Order Establishing the Conduct of a Special Election," entered on April 9, 1997.  Appellant also filed a request for immediate consideration by this Court.  As grounds for the motion(s) filed with this Court, appellant states that time is of the essence, and it is therefore impractical to wait until the state court rules on the motion before applying to this Court. Appellant noted that he had filed a similar motion for a stay on the same day with the Kosrae State Court.  On May 12, 1997, appellant filed a request for an immediate hearing on the motion to stay, stating that the Kosrae State Court has refused to take any action on appellant's motion for a stay.

     On May 13, 1997, appellee Tafunsak Municipal Council, represented by Delson Ehmes, Sr., filed a motion to dismiss the appeal with this Court; a memorandum in support of the motion to dismiss; a motion for summary denial of the motion to stay pending appeal; and a memorandum in opposition to the motion for a stay pending appeal.

     As basis for the motion, appellant states that he is the mayor of Tafunsak Municipality in Kosrae State.  In October of 1996, the Tafunsak Municipal Council purportedly passed a resolution calling for an election to determine whether appellant should be removed as mayor.  Appellant states that the resolution was signed on January 27, 1997, but no written minutes were kept of that meeting.

     Appellant argues that, according to the Tafunsak Municipal Charter, a "resolution of removal" must first be submitted to the Municipal Court, which, upon a finding that the resolution is in order, is required to call a special removal election, which must be passed by a two-thirds majority of registered voters. Appellant notes, however, that the Municipal Court was never brought into existence.

[8 FSM Intrm. 73]

     Appellant states that the state court initially refused to act on the resolution, but that on March 12, 1997, the Chairman of the Tafunsak Council filed a document with the court entitled "Notice or Petition," which document did not appear to be approved by an independent vote of the Council.  Appellant states that he was not named as defendant or respondent, and that he was not served with a summons or other documentation advising him that he had a right to respond or setting a deadline for response, if any.

     Appellant states that he did not file a written response, no proceedings were scheduled on the petition, and no hearings were held.  Nevertheless, appellant states, on April 9, 1997, the state court issued an order granting the petition, and directed the municipality to establish an Election Committee and to hold a special removal election on May 19, 1997.  It is this order from which appellant appeals.

     Appellant argues that he was denied the right to procedural due process when the petition was granted without affording appellant proper notice or an opportunity to be heard; that the state court lacked constitutional and/or statutory authority to grant the petition; and that the petition was void as it was not signed by an attorney or trial counselor authorized to represent the Municipality.  Appellant also argues that the scheduled election is only days away, and that he meets the criteria for a stay or an injunction pending appeal.

     In response, appellee, citing In re Extradition of Jano, 6 FSM Intrm. 23, 25 (App. 1993), argues that the state court order in calling the special recall election is not a "final judgment" and is not appealable to this Court.  Appellee also argues that the motion for a stay pending appeal should be denied, because a similar motion for a stay is under consideration by the Kosrae State Court.

     The Court understands that, on May 16, 1997, the Kosrae State Court held a hearing on this matter.

     Rule 27(c) of the Rules of Appellate Procedure governing the power of a single justice to entertain motions, provides, in pertinent part:

In addition to the authority expressly conferred by these rules or by law, 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, although a single justice may not dismiss or otherwise determine an appeal . . . .  The action of a single justice may be reviewed by the court.

     Rule 8(a) of the Rules of Appellate Procedure, governing stay or injunction pending appeal, provides, in pertinent part:

Application for a stay of the judgment or order of the court appealed from pending appeal . . . or granting an injunction during the pendency of an appeal must ordinarily be made in the first instance in the court appealed from.  A motion for such relief may be made to the Supreme Court appellate division or to a justice thereof, but the motion shall show that application to the court appealed from for the relief sought is not practicable, or that the court appealed from has denied an application, or has failed to afford the relief which the applicant requested, with any reasons given by the court appealed from for its action.  . . .  The motion . . . normally will be considered by all justices of the court eligible to act with the appellate division in the case, but in exceptional cases where such procedure would be impracticable due to the requirements of time, the application may be . . .

[8 FSM Intrm. 74]

     considered by a single justice of the Supreme Court.

     Consideration of appellant's motion by the full appellate division is impracticable due to the requirements of time, as well as the geographical dispersion of the appellate panel.  Therefore, appellant's motion will be considered by a single justice.

     Appellant's motion did not show that application to the court appealed from, Kosrae State Court, was not practicable because appellant, in fact, did file such a motion with the state court.  Appellant has also not yet filed with this Court any pleadings showing that the relief requested has been denied, accompanied by any reasons given by the court appealed from for its action.

     Additionally, appellant's motion raises constitutional and/or due process concerns.  Absent any evidence that such issues were presented to the state court, and absent the state court's findings on these issues, this Court finds no reason before it that would justify granting appellant's motion at this time.

     On consideration of the foregoing and the pleadings filed in this matter, the Court hereby denies appellant's motion for a stay.  The Court will allow further filing by facsimile, provided that the original is mailed at approximately the same time. The Court will not, at this time, address appellee's motions.