THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
 TRIAL DIVISION
Cite as Stinnet v. Weno ,
8 FSM Intrm. 142 (Chk. 1997)

[8 FSM Intrm. 142]
 
CHRISTINA STINNETT d/b/a TRUK STOP,
RAYMOND SETIK d/b/a CHRISTOPHER INN,
KATCHUTOSY PAULUS and TRUK
CONTINENTAL HOTEL, INC., a corporation,
Plaintiffs,

vs.

WENO MUNICIPALITY,
Defendant.

CIVIL ACTION NO. 1992-1036

CHUUK CHAMBER OF COMMERCE et al.,
Plaintiffs,

vs.

WENO MUNICIPALITY,
Defendant.

CIVIL ACTION NO. 1992-1038

ORDER

Richard H. Benson
Associate Justice

[8 FSM Intrm. 143]
Decided:  August 5, 1997

APPEARANCES:
For the Plaintiffs:                Fredrick L. Ramp, Esq.
(Stinnett in 1992-1036      P.O. Box 1480
and all in 1992-1038)        Kolonia, Pohnpei FM 96941

For the Defendant:             Andrea S. Hillyer, Esq.
                               P.O. Drawer D
                               Kolonia, Pohnpei FM 96941

*    *    *    *

HEADNOTES
Appeal and Certiorari; Judgments ) Relief from Judgment
     When a judgment is on appeal, a trial court, without appellate court permission, has the power to both consider and deny Rule 60(b) relief from judgment motions, but cannot grant such a motion while an appeal is pending.  If inclined to grant the motion, the trial court issues a brief memorandum so indicating.  Armed with this, the movant can then request the appellate court to remand the action so that judgment could be vacated.  If the Rule 60(b) motion is denied, the movant may appeal from the order of denial.  A trial court's jurisdiction to consider and deny a Rule 59(e) motion (motion to alter or amend judgment) after an appeal has been filed is similar to its power with respect to a Rule 60(b) motion.  Stinnett v. Weno, 8 FSM Intrm. 142, 145 & n.1 (Chk. 1997).

Appeal and Certiorari; Civil Procedure
     Although in the absence of an order directing final judgment any order or decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights of all the parties, a trial court does not have the authority to vacate or amend the order from which an appeal is taken. Stinnett v. Weno, 8 FSM Intrm. 142, 145 (Chk. 1997).

Appeal and Certiorari; Civil Procedure ) Injunctions
     When there is an Appellate Rule 4(a)(1)(B) appeal from the grant of an injunction the trial court loses its power to vacate the order when the notices of appeal are filed.  However, as with Rule 59(e) and 60(b) motions, the trial court may consider and deny the motion, or, if it were inclined to grant the motion, so indicate on the record so as to allow the movant an opportunity to request a remand from the appellate division so that it could proceed to grant the motion. Stinnett v. Weno, 8 FSM Intrm. 142, 145 & n.2 (Chk. 1997).

Appeal and Certiorari ) Decisions Reviewable; Civil Procedure ) Injunctions
     Pursuant to FSM Appellate Rule 4(a)(1)(B) the FSM Supreme Court appellate division has jurisdiction to hear an appeal from an interlocutory order granting a permanent injunction.  Stinnett v. Weno, 8 FSM Intrm. 142, 145 n.2 (Chk. 1997).

Appeal and Certiorari; Civil Procedure ) Injunctions
     Rule 62(c) giving the trial court the authority to "suspend, modify, restore, or grant an injunction during the pendency of the appeal" does not give any authority to vacate an order granting an injunction that has been appealed.  It only allows a trial court in its discretion to issue such orders as are necessary to preserve the status quo while the appeal is pending.  Jurisdiction has otherwise passed to the appellate court.  Stinnett v. Weno, 8 FSM Intrm. 142, 145 (Chk. 1997).

[8 FSM Intrm. 144]

Constitutional Law ) Chuuk ) Interpretation
     It is true that when a provision of the Chuuk Constitution is ambiguous, and because no constitutional convention journal was ever compiled, the constitutional convention reports may be consulted to discern the framers' intent.  But the constitutional provision must first be ambiguous, unclear, or inconclusive before a court can proceed to the legislative history to determine the provision's meaning. Stinnett v. Weno, 8 FSM Intrm. 142, 146 (Chk. 1997).

Judgments ) Relief from Judgment
     When there was no showing that the movant tried to obtain the evidence before judgment and where the evidence would not change the result, it cannot be considered newly discovered evidence that could not have been discovered previously by the exercise of due diligence entitling the movant to relief from judgment.  Stinnett v. Weno, 8 FSM Intrm. 142, 146 (Chk. 1997).

Constitutional Law ) Chuuk ) Interpretation
     Statements prepared afterward for use in a lawsuit are not satisfactory legislative history and cannot be used to show the framers' intent.  Stinnett v. Weno, 8 FSM Intrm. 142, 146 (Chk. 1997).

Constitutional Law ) Chuuk ) Interpretation
     Language in a committee report in support of language that did not become part of the constitution cannot be relied upon to discover the real intent of the framers.  At best it can only be used to show what was not their intent.  Stinnett v. Weno, 8 FSM Intrm. 142, 147 (Chk. 1997).

Constitutional Law ) Chuuk
     Chuuk municipalities do not have the power to levy taxes until such time as that power has been delegated to them by statute.  No such delegation has occurred. Stinnett v. Weno, 8 FSM Intrm. 142, 147 (Chk. 1997).

*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     The defendant, Weno Municipality, has brought a combined motion to modify my order of August 30, 1996 granting summary judgment in these two cases, see Stinnett v. Weno, 7 FSM Intrm. 560 (Chk. 1996), and to vacate, alter, or amend the judgment in Civil Action No. 1992-1036 which was based on that order.  The motion is denied.  My reasons follow.

I.  The Motion
     Weno's motion is brought on the ground that it is based upon newly discovered evidence that was not previously available and that could not have been discovered earlier with the exercise of due diligence.  The newly discovered evidence consists of a committee report and proposal from the constitutional convention that drafted the current Chuuk Constitution.  The report concerns a proposal that eventually became the constitutional provision under which I concluded that Weno business license fees were unconstitutional taxes.  Weno contends that these materials require me to conclude that the proper interpretation of the Chuuk Constitution is that municipalities do have the power to levy business license fee taxes and that thus my August 30, 1996 order was in error.

[8 FSM Intrm. 145]
 
II.  Jurisdiction
     Weno filed an interlocutory appeal of my August 30th order in both cases.  The interlocutory nature of the Civil Action No. 1992-1036 appeal lapsed when final judgment when entered in that case on June 20, 1997.  Weno's motion with respect to that case is brought pursuant to Civil Rule 59(a) (motion for new trial) and 59(e) (motion to alter or amend judgment) or, alternatively, Rule 60(b) (motion for relief from judgment).  Because there was no trial in this case, Rule 59(a), motion for a new trial, does not apply.  When a judgment is on appeal a trial court, without appellate court permission, has the power to both consider and deny Rule 60(b) relief from judgment motions, but cannot grant such a motion while an appeal is pending.1  Walter v. Meippen, 7 FSM Intrm. 515, 517-18 (Chk. 1996). "If the [Rule 60(b)] motion is denied, the movant may appeal from the order of denial."  Aune v. Reynders, 344 F.2d 835, 841 (10th Cir. 1965).  A trial court's jurisdiction to consider and deny a Rule 59(e) motion after an appeal has been filed is similar to its power with respect to a Rule 60(b) motion.  11 Charles Alan Wright et al., Federal Practice and Procedure 2821, at 222-23 (1995).  I therefore have the power to consider and to deny this motion as to Civil Action No. 1992-1036 whether brought under Rule 59(e) or 60(b).

     Weno's motion with respect to Civil Action No. 1992-1038 was brought pursuant to Rule 54(b), which merely acknowledges that in the absence of an order directing final judgment any order or decision "is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights of all the parties."  But a trial court does not have the authority to vacate or amend the order from which an appeal is taken.  Lewis v. Tobacco Workers' Int'l Union, 577 F.2d 1135, 1139 (4th Cir. 1978).  Where there was "an appeal from the granting of an injunction under [28 U.S.C.] 1292(a)2 . . . the [trial] court lost its power to vacate the order when the notices of appeal were filed."  Id.  I therefore do not have the power to grant the motion.  However, as with Rule 59(e) and 60(b) motions, I may consider and deny the motion, or, if I were inclined to grant the motion, so indicate on the record so as to allow the movant an opportunity to request a remand from the appellate division so that I could proceed to grant the motion.

     Rule 62(c) giving the trial court the authority to "suspend, modify, restore, or grant an injunction during the pendency of the appeal" does not give any authority to vacate an order granting an injunction that has been appealed.  It only allows a trial court in its discretion to issue such orders as are necessary to preserve the status quo while the appeal is pending.  Jurisdiction has otherwise passed to the appellate court.  See, e.g., Ideal Toy Corp. v. Sayco Doll Corp., 302 F.2d 623, 625 (2d Cir. 1962).

[8 FSM Intrm. 146]
 
III.  Analysis
A.  Constitutional Provision's Lack of Ambiguity
     It is true that when a provision of the Chuuk Constitution is ambiguous, and because no constitutional convention journal was ever compiled, the constitutional convention reports may be consulted to discern the framers' intent.  Nimeisa v. Department of Public Works, 6 FSM Intrm. 205, 209 (Chk. S. Ct. Tr. 1993).  But a constitutional provision must first be ambiguous, unclear, or inconclusive before a court can proceed to the legislative history to determine the meaning of the provision.  Nena v. Kosrae (III), 6 FSM Intrm. 564, 568 (App. 1994); Robert v. Mori, 6 FSM Intrm. 394, 397 (App. 1994).  Weno has made no effort to show that the Chuuk constitutional provision is in any way ambiguous.  Nor have I concluded that the provision is ambiguous.  Weno's motion is properly denied on that ground alone.

B.  The Material Does Not Qualify as Newly Discovered Evidence
     The motion may also be denied because the evidence it offers comes too late. The material submitted with the motion cannot be considered newly discovered evidence.  Weno does not present an affidavit concerning its previous unavailability.  It only represents that the material was "previously unavailable" and that it "could not have been discovered by the exercise of due diligence previously."  Weno represents that "through the exercise of extraordinary diligence, [it] was able to locate the clerk for the constitutional convention."  I note that the custodian of the committee report was the chief clerk, as described in that person's affidavit identifying the submitted material.

     The proffered Committee Report and Proposal cannot be considered newly discovered evidence because there is no showing that Weno exercised due diligence (or even made any attempt) to obtain this evidence prior to my August 30th order.  Furthermore, as shown later in this order, consideration of this evidence would not alter the result of last August's order.  Thus no miscarriage of justice would result from its exclusion.

     Paragraph four of the Chief Clerk's affidavit states:  "That according to the my best recollection and memory, Standing Committee Report No. 36 was acted upon and duly adopted by the Convention on October 26, 1988, with the subject proposals also adopted as well."  This sentence must be disregarded for two reasons.  First, statements prepared afterward for use in a lawsuit are not satisfactory legislative history and cannot be used to show the framers' intent. Lonno v. Trust Territory, 1 FSM Intrm. 53, 61-62 (Kos. 1982).  Second, the statement appears to be, at least in part, untrue.  Delegate Proposals No. 16 and 212 were considered by the committee and were "referred to file," not adopted. SCREP No. 36, at 3 (Oct. 26, 1988), Chk. Con. Con.  Instead, the committee (five signatures) presented Committee Proposal No. 35, which was attached to its report.  As seen below, this proposal was not adopted as submitted.  Therefore, for the foregoing reasons, the material submitted with the motion should not be considered.

C.  The Merits of Weno's Arguments
     Even if I were to overlook the lack of ambiguity in the constitutional provision and the inappropriateness of considering the submitted material, the motion would still be denied.  The committee report language upon which Weno bases its argument follows:

Your committee believes that the municipalities need to be protected in the Constitution from a State Government with exclusive taxation power. The best means of protection is a guarantee of funds.  Municipalities currently have the power to raise revenues

[8 FSM Intrm. 147]

through head taxes and business license fees.  Your committee further believes that the reservation of such revenues to the municipalities, when added to funds received from mandatory revenue sharing by the State Government (Committee Proposal No. 16), will provide sufficient monies for the municipalities to operate and yet not adversely affect the State Government's ability to raise revenue and adapt to changing circumstances. . . .  Your committee does not intend that the State Government have concurrent power to levy business license fees and head taxes.

The revenues received from the head tax and business license fees are, moreover, the minimum amount which municipalities may receive from taxation.  The State may delegate additional taxation powers and revenues as it deems appropriate.

SCREP No. 36, at 2 (Oct. 26, 1988), Chk. Con. Con.  This report accompanied Committee Proposal No. 35.  That proposal, however, is quite different from the provision that was adopted by the convention and which is a part of the current Chuuk Constitution, as can be seen from the comparison below.

Comm. Prop. No. 35, Chk. Con. Con.
(Oct. 26, 1988).
The State Government shall have the power to tax, and may delegate such powers to the Municipal Governments by law.  The Municipal Governments shall have the exclusive power to levy head taxes and business license fees.  All State taxes shall be prescribed by law.
 
Chk. Const. art. VIII, 7.
The State Government shall have the power to tax, and may delegate certain taxing powers to the municipal governments by statute.  All taxes levied by the State Government shall be prescribed by statute.

     Most markedly, the language in the proposal granting the municipal governments "the exclusive power to levy head taxes and business license fees" was deleted.  The committee report language that Weno relies upon concerns the language deleted from the proposal.  A committee report in support of language that did not become part of the constitution "cannot be relied upon to discover the real intent of the framers.  At best it can only be used to show what was not their intent."  Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40, 47 (App. 1995).

     Perhaps the convention delegates heeded the committee report's other advice that "your Committee believes that the Chuukese people are best protected by centralizing the taxing power in the State Government, and by having a single governmental entity with the power to levy taxes."  SCREP No. 36, at 2 (Oct. 26, 1988), Chk. Con. Con.  At any rate, the legislative history, what there is of it, gives no support to Weno's position.  To the contrary, it further buttresses the conclusion that the municipalities do not have the power to levy taxes until such time as that power has been delegated to them by statute.  No such delegation has occurred.

IV.  Conclusion
     Weno's motion is accordingly denied.  The judgment in Civil Action No. 1992-1036 stands unaltered.  Let judgment be entered in Civil Action No. 1992-1038.
 
 
Footnotes:
 
1.  If I were inclined to grant the motion, I would issue a brief memorandum so indicating.  Armed with this, Weno could then request the appellate court to remand the action so that I could vacate judgment and proceed accordingly. Walter v. Meippen, 7 FSM Intrm. 515, 518 (Chk. 1996).

2.  28 U.S.C. 1292(a) is the U.S. counterpart to FSM Appellate Rule 4(a)(1)(B) which allows appeals "from interlocutory orders of the Federated States of Micronesia Supreme Court trial division granting, continuing, modifying, refusing, or dissolving injunctions, or refusing to dissolve or modify injunctions."  Because the appeals in these cases were from an interlocutory order granting a permanent injunction they were presumably made pursuant to FSM Appellate Rule 4(a)(1)(B). When the language of an FSM appellate rule is nearly identical to a U.S. counterpart, FSM courts may look to the U.S. federal courts for guidance in interpreting the rule.  Jano v. King, 5 FSM Intrm. 326, 329 (App. 1992).
                                                                                                                                                                                                                                                                                                           
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