THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
KOSRAE STATE COURT
TRIAL DIVISION
Cite as Langu v. Kosrae,
8 FSM Intrm. 443 (Kos. S. Ct. Tr. 1998)

[8 FSM Intrm. 445]

MASAO LANGU et al.,
Appellants,

vs.

STATE OF KOSRAE,
Appellee.

CIVIL ACTION NO. 1-97

ORDER DENYING APPELLEE'S MOTION FOR RELIEF
FROM JUDGMENT; ORDER GRANTING APPELLEE'S
MOTION TO ALTER OR AMEND THE JUDGMENT

Aliksa B. Aliksa
Acting Chief Justice

Decided:  September 17, 1998

APPEARANCES:
For the Appellants:     Canney Palsis, Trial Counselor
                                      Micronesian Legal Services Corporation
                                      P.O. Box 38
                                      Lelu, Kosrae FM 96944

For the Appellee:        Richard C. Martin, Esq.
                                      Kosrae Attorney General
                                      Office of the Kosrae Attorney General
                                      P.O. Box 870
                                      Tofol, Kosrae FM 96944

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HEADNOTES
Civil Procedure) Motions; Judgments) Relief from Judgment
     In the Kosrae State Court, motions for relief from judgment or to alter or amend a judgment are non-hearing motions.  Langu v. Kosrae, 8 FSM Intrm. 455, 457 (Kos. S. Ct. Tr. 1998).
 
Administrative Law ) Judicial Review; Public Officers and Employees ) Kosrae
     Employee grievances were subject to judicial review by the Kosrae State Court, following the completion of certain administrative procedures, specifically review by the Executive Service Appeals Board.  The court may reverse or modify ESAB's decision only if finds a violation of law or regulation.  Langu v. Kosrae, 8 FSM Intrm. 455, 457, 458 (Kos. S. Ct. Tr. 1998).

Administrative Law ) Judicial Review; Public Officers and Employees ) Kosrae
     The Kosrae State Court does not have jurisdiction to review employee grievances of persons who did not first comply with the statutorily required administrative procedure.   Langu v. Kosrae, 8 FSM

[8 FSM Intrm. 456]

Intrm. 455, 457 (Kos. S. Ct. Tr. 1998).

Civil Procedure ) Intervention
     The purposes of intervention are to protect the interests of those who may be affected by the judgment and to avoid delay, circuitry of action, and similar, repetitive lawsuits.  Langu v. Kosrae, 8 FSM Intrm. 455, 457 (Kos. S. Ct. Tr. 1998).

Civil Procedure ) Intervention
     The procedure for intervention is usually specified by statute or by court rules.  In the Kosrae State Court, a motion to intervene must be served upon the parties and the grounds for the motion stated.  When no such motion has been made, the procedural requirements for intervention are not satisfied, and intervention should not be permitted.  Langu v. Kosrae, 8 FSM Intrm. 455, 458 (Kos. S. Ct. Tr. 1998).

Constitutional Law ) Due Process ) Notice and Hearing
     Due process requires that the parties be given the opportunity to comment upon evidence.  A fundamental requisite of due process of law is the opportunity to be heard.  Notice and an opportunity to be heard are the essence of due process of law.  Langu v. Kosrae, 8 FSM Intrm. 455, 458 (Kos. S. Ct. Tr. 1998).

Judgments ) Relief from Judgment
     Failure to calendar the date for response and having only one attorney, busy handling a large volume of work, and a number of trial counselors in the office during the month the response was due is not "excusable neglect" entitling a party to relief from judgment.  Even if the trial counselors were not prepared to handle the response to the submission, they were certainly capable of and experienced in drafting a motion for enlargement of time.  Langu v. Kosrae, 8 FSM Intrm. 455, 459 (Kos. S. Ct. Tr. 1998).

Evidence ) Judicial Notice
     When most documents provided in support of a party's submission are official records of the opponent state government, the Kosrae State Court may take judicial notice of the records.  Langu v. Kosrae, 8 FSM Intrm. 455, 459 (Kos. S. Ct. Tr. 1998).
 
Civil Procedure
     Failure to file any response to an opponent's submission and failure to file a motion for enlargement of time before or after a court-ordered deadline constitutes consent to the content of the opponent's submission.  Langu v. Kosrae, 8 FSM Intrm. 455, 459 (Kos. S. Ct. Tr. 1998).

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COURT'S OPINION
ALIKSA B. ALIKSA, Acting Chief Justice:
     This Court issued its Findings of Fact and Conclusions of Law in its Order of May 26, 1998, in favor of the Appellants.  [See Langu v. Kosrae, 8 FSM Intrm. 427 (Kos. S. Ct. Tr. 1998).]  The Appellants were State Government employees, working as cooks, who were forced to take annual leave and leave without pay in violation of the Kosrae State Code, Title 5 and the Executive Service Regulations. The Court's Order of May 26, 1998 ordered the Appellants to file and serve their proof of damages by June 25, 1998 for each Appellant individually.  The Appellee was ordered to file and serve any objections or other response to the Appellants' proof by July 9, 1998.

[8 FSM Intrm. 457]

     Appellants filed their proof of damages in compliance with this Court's Order, on June 25, 1998.  Appellee failed to file any objection or response by the due date of July 9, 1998, as ordered by this Court.  Appellee failed to file document, objection or response to the Appellant's proof, up to the date that the judgment was entered, on August 14, 1998.  Appellee failed to file any Motion for Enlargement of Time to response to Appellee's submission before the due date of July 9, 1998 and after the due date.  This Court considered and accepted the Appellee's failure to file any objection of response to Appellants' submission, and Appellee's failure to file a Motion for Enlargement of Time as Appellee's consent to the Appellants' submission as their proof of damages.  On August 14, 1998, this Court entered its Judgment awarding a total of $ 47,609 to 19 persons for whom the proof of damages were submitted.

     On August 24, 1998, Appellee filed a timely motion for Relief from Judgment, or in the alternative, Motion to Alter or Amend the Judgment.  On September 3, 1998, the Appellee filed a Memorandum in Opposition to Appellee's Motion for Relief from Judgment or to Alter or Amend the Judgment.  Under our GCO 1997-4, the Appellee's Motions are non-hearing motions.

     Based upon the information submitted before this Court, and the Court having considered the Appellee's Motions, the file in this matter and the interests of justice, hereby rules as follows:

     Appellee's Motion for Relief from Judgment is denied.  Appellee's Motion to Alter or Amend the Judgment is granted.  The Amended Judgment shall be entered in accordance with this Order.

I.  Appellee's Motion to Amend or Alter the Judgment.
     Kosrae State Code, Title 5, Chapter 4 (now repealed), was in force during the time addressed in this case, 1980 through 1990, and therefore it is applied in this matter.  Kosrae State Code, Section 5.429, specified the procedure for the presentation and hearing of a grievance.  Grievances, under Kosrae State Code, Sections 5.429 and 5.421(2), were subject to judicial review by this Court, following the completion of certain administrative procedures, specifically review by the ESAB.  Kosrae State Court, under Section 5.421(2), may reverse or modify ESAB's decision only if finds a violation of law or regulation.  In this case, the Court found a violation of law, as set forth in its Order of May 26, 1998.     

     This Court does not have jurisdiction to review employee grievances which have not complied with the requirements of Kosrae State Code, Title 5, Chapter 4.  Appellee claims, and Appellants submit, that Recca Mongkeya, Sepe Edmond and Relly Jackson had not followed the grievance procedure outlined in Kosrae State Code, Section 5.429.  These three persons did not comply with the requirements of Kosrae State Code, Title 5, Chapter 4 and are therefore not entitled to judicial review by this Court under Section 5.421(2).  The jurisdiction of this Court is granted by the Kosrae State Constitution and further specified by State Law.  This Court does not have jurisdiction over claims of persons who did not comply first with the statutorily required administrative procedure.  See Suldan v. FSM (I), 1 FSM Intrm. 201, 206 (Pon. 1982).

     Appellants claim that by the process of intervention, these three persons are entitled to the damages awarded by the Court.  Courts look with favor upon intervention in proper cases because it is a convenient and appropriate method of settling in one action controversies relating to the same matter.  The purposes of intervention are to protect the interests of those who may be affected by the judgment and to avoid delay circuitry of action and similar, repetitive lawsuits.  59 Am. Jur. 2d Parties 129, at 583 (1987).  The FSM Supreme Court has recognized the right of a person to intervene under FSM Civil Rule 24, which is very similar to our KRCP Rule 24.  See Wainit v. Truk (I), 2 FSM Intrm. 81, 86 (Truk 1985).  The Court's consideration of intervention is based upon the person's motion to

[8 FSM Intrm. 458]

intervene.  See California Pac. Assocs. v. Alexander, 7 FSM Intrm. 198 (Pon. 1995).

     The procedure for intervention is usually specified by statute or by court rules. 59 Am. Jur. 2d Parties 164-68, at 651-66 (1987).  For our Court, Kosrae Civil Procedure Rule 24 sets forth the procedure for intervention in an existing action. Rule 24(c) requires that a motion to intervene be served upon the parties and the grounds for the motion stated.  Appellants did not serve a motion for intervention upon Appellee, nor did Appellant file such motion with the Court.  Appellants did not satisfy the procedural requirements for intervention, therefore, intervention should not be permitted.

     The Appellee's Motion to Alter or Amend the Judgment is granted.  The Judgment shall amended to vacate the amounts claimed by Recca Mongkeya, Relly Edmond and Sepe Jackson as follows:  Recca Mongkeya - $ 2427, Relly Jackson - $ 193, and Sepe Edmond - $3023.  The Amended Judgment shall reflect damages awarded to the sixteen Appellants, in the amount of $ 41,966.

II.  Appellee's Motion for Relief from Judgment.
     The Kosrae State Court, in reviewing appeals from the Executive Service Appeals Board is empowered to overturn or modify the Board's decision if it finds a violation of law or regulation.  Kos. C. 5.421(2).  Also see Palik v. Executive Serv. Appeals Bd., 4 FSM Intrm. 287, 289 (Kos. S. Ct. Tr. 1990).  In this case, a violation of law was found by this Court and the ESAB's decision was reversed by this Court's Order of May 26, 1998.

     The ESAB decision rejected the Appellants' claims for back wages. Therefore, the ESAB did not reach or consider the amount of damages claimed by each individual Appellants.  Consequently, the ESAB record did not include the documentary proof of Appellants' damages.  Therefore, this Court ordered the Appellants, in its Order of May 26, 1998 to submit their proof of damages for each Appellant individually.  The Court further ordered that "such proof of damages shall include copies of personnel action forms, leave forms and other appropriate documents which verify the full-time employment status of each Appellant and the length of time that leave without pay was imposed during each summer season." Langu v. Kosrae, 8 FSM Intrm. 427, 436 (Kos. S. Ct. Tr. 1998).
 
     The Court further ordered that the "Appellee shall file and serve any objections or other response to Appellants' proof of damages by July 9, 1998."  The Order was clear that if the Appellee had any objection to the Appellants' submission, Appellees were to file such objections with the Court.

     Due process requires that the parties be given the opportunity to comment upon evidence.  A fundamental requisite of due process of law is the opportunity to be heard.  Etpison v. Perman, 1 FSM Intrm. 405, 423 (Pon. 1984).  Notice and an opportunity to be heard are the essence of due process of law.  In re Sanction of Michelsen, 8 FSM Intrm. 108, 110 (App. 1997).  For example, it is constitutional error for the trial court to rely on a special master's report, not a part of the record, without prior notice to the parties and an opportunity for the parties to comment on it.  Senda v. Creditors of Mid-Pacific Constr. Co., 7 FSM Intrm. 664, 669 (App. 1996).  In the case of Senda, the parties had not seen, were unaware of and did have not notice of the special master's report that the trial court relied upon in making its decision.  The FSM Supreme Court held that parties must be permitted to comment upon evidence that is being considered by the Court.

     In this case, the State had substantial opportunity to object or prepare a response to Appellant's submission.  This Court's Order of May 26, 1998 specifically stated:  "Appellee shall file and serve any objections or other response to Appellants' proof of damages by July 9, 1998."  The Appellee State failed to submit their response by the due date of July 9, 1998.  The State also failed to submit any response up to the date that the Judgment was entered, on August 14, 1998.  In essence, the Appellee

[8 FSM Intrm. 459]

received an additional month to respond to Appellants' proof of damages, but failed to submit any response.

     The Appellee also failed to request an enlargement of time, either before the due date of July 9, 1998, or after the due date.  While the Appellee provided a list of reasons why a response was not prepared, these reasons do not constitute "excusable neglect" for failure to prepare any objection or response to Appellants' submission, or a motion for enlargement of time.

     The State claims "excusable neglect" for failing to calendar the response date for their response, only having one attorney in the office during the month of July who was busy, handling a large volume of work in the office.  Appellants note, and the Court recognizes, that the Attorney General's office has several attorneys and trial counselors employed there, most of whom have many years of experience in litigation and in calendaring due dates and appearances before this and other Courts.  Even if the trial counselors were not prepared to handle the response to the Appellants' submission, the trial counselors are certainly capable of and experienced in drafting a Motion for Enlargement of Time.  This Court has reviewed its calendar for the months of June, July and August 1998 and has found that many matters in which the Attorney General's Office served as counsel were scheduled and heard by this Court.  Attorneys or trial counselors from the Attorney General's Office appeared before this Court in those scheduled cases.

     The Court has carefully considered the Appellee's arguments regarding their failure to respond to the Appellants' submission.  The Court finds that the Appellee has not shown "excusable neglect" in failing to respond to Appellants' submission and in failing to request an enlargement of time to respond to Appellants' submission.  The Court has also carefully considered the content of the Appellants' submission, and notes that virtually all, if not all, of the documents submitted by Appellant are official documents from the State of Kosrae.  The Court takes judicial notice of the Personnel Action Forms and the "Within Grade Salary Increase" forms as being official records of the Kosrae State Government, Department of Personnel and Employment Services.  Kos. Evid. R. 201.

     Accordingly, this Court finds that Appellee's failure to file any response to the Appellant's submission of June 25, 1998, and Appellee's failure to file a motion for enlargement of time before or after the Court's deadline of July 9, 1998, constitutes Appellee's consent to the content of the Appellants' submission.  See generally Bank of the FSM v. O'Sonis, 8 FSM Intrm. 67, 68 (Chk. 1997).
 
     Appellee's Motion for Relief from Judgment is denied.

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