FSM SUPREME COURT
APPELLATE DIVISION
Cite as Wainit v. Weno,
9 FSM Intrm. 160 (App. 1999)

[9 FSM Intrm. 160]

TADASHI WAINIT d/b/a T & S MART,
Petitioner,

vs.

WENO MUNICIPALITY,
Respondent.

APPEAL CASE NO. C2-1996

OPINION

Decided:  May 28, 1999

BEFORE:
Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court

APPEARANCES:
For the Petitioner:         R. Barrie Michelsen, Esq.
                                        Law Offices of R. Barrie Michelsen
                                        Andrew Clayton, Esq. (reply brief)
                                        Law Offices of Hollinrake & Saimon
                                        P.O. Box 1450
                                        Kolonia, Pohnpei FM 96941

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

*    *    *    *

HEADNOTES
Appeal and Certiorari; Constitutional Law ) Chuuk ) Judicial Powers
     At least three justices hear all appeals in the Chuuk State Supreme Court appellate division with the decision by a concurrence of a majority of the justices sitting on the appellate panel, but a single justice may make necessary orders concerning failure to take or prosecute the appeal in accordance with applicable law and procedure.  Wainit v. Weno, 9 FSM Intrm. 160, 162 (App. 1999).

[9 FSM Intrm. 161]

Appeal and Certiorari; Constitutional Law ) Chuuk ) Judicial Powers
     In the Chuuk Constitution there is a distinction between a "decision," which must be by a majority of the appellate justices assigned to hear the case, and "orders," which a single appellate justice may make.  A "decision" means the final determination of the appeal.  Wainit v. Weno, 9 FSM Intrm. 160, 162 (App. 1999).

Appeal and Certiorari
     Sections 37 and 38(1) of the 1990 Chuuk State Judiciary Act preserve, just as the Chuuk Constitution does, the distinction between an "order" and a "decision."  Specifically, a "decision" will be made by the entire appellate panel assigned to the case.  Wainit v. Weno, 9 FSM Intrm. 160, 162 (App. 1999).

Appeal and Certiorari ) Decisions Reviewable
     A party to an appeal in which the Chuuk State Supreme Court appellate division has rendered an appellate decision may appeal such decision to the FSM Supreme Court appellate division by certiorari, except in a criminal case in which the defendant may appeal as of right.  Wainit v. Weno, 9 FSM Intrm. 160, 162 (App. 1999).

Appeal and Certiorari ) Decisions Reviewable
     A petition for writ of certiorari that seeks to appeal an order by a single Chuuk State Supreme Court appellate justice is not an appellate decision.  The FSM Supreme Court therefore lacks jurisdiction to consider it.  Wainit v. Weno, 9 FSM Intrm. 160, 162 (App. 1999).

Appeal and Certiorari ) Decisions Reviewable; Constitutional Law ) Chuuk ) Judicial Powers
     An action of a Chuuk State Supreme Court single appellate justice may be reviewed by the court.  This provides a means whereby a single justice "order" may become the appellate panel's dispositive "decision."  Wainit v. Weno, 9 FSM Intrm. 160, 162-63 (App. 1999).

Appeal and Certiorari ) Decisions Reviewable
     Once an appellant has sought and obtained review of a single justice's order by the appellate panel of the Chuuk State Supreme Court appellate division, the FSM Supreme Court appellate division may then review that decision.  At that point the FSM Supreme Court has jurisdiction to hear the appeal, but not before.  Wainit v. Weno, 9 FSM Intrm. 160, 163 (App. 1999).

*    *    *    *

COURT'S OPINION
MARTIN YINUG, Associate Justice:
     By order of March 10, 1997, this court granted the petitioner's writ of certiorari, and accepted for review the question whether Chief Justice Fritz of the Appellate Division of the Chuuk State Supreme Court erred when he dismissed sua sponte Tadashi Wainit v. Weno Municipality, Appeal No. 11-95, as a result of Wainit's failure to meet the procedural requirements of Rule 10(b) of the Chuuk Appellate Rules of Procedure.  Wainit had neither ordered the transcript within ten days of filing the notice of appeal, nor filed a certificate to the effect that no transcript would be ordered.  He also did not file a statement of issues in lieu of ordering the transcript or filing the certification, an option that he may have exercised under Rule 10(b).  The order dismissing the appeal recites that "[a]lmost four months have elapsed and appellant has failed to comply with these mandatory provisions of the Appellate Rules."  Order, Appeal No. 11-95 (Feb. 5, 1996).  Thereafter, Wainit filed a motion to vacate the order dismissing the appeal, and that motion was denied on April 4, 1996.  The appeal to this court

[9 FSM Intrm. 162]

of the April 4, 1996, order denying the motion to vacate followed.  The petition for certiorari and the response address the merits of whether Chief Justice Fritz abused his discretion when he denied the motion to vacate the dismissal.

     We now believe that our March 10, 1997, order, Wainit v. Weno, 8 FSM Intrm. 28 (App. 1997), incorrectly granted certiorari.  For the reasons that follow, we conclude that we lacked jurisdiction to do so.

     Article VII, section 5(b) of the Chuuk Constitution provides that "[a]t least 3 Justices shall hear all appeals in the appellate division [i.e., the Appellate Division of the Chuuk State Supreme Court].  . . . Decision shall be by concurrence of a majority of the Justices sitting on the appellate panel, but a single Justice may make necessary orders . . . concerning failure to take or prosecute the appeal in accordance with applicable law and procedure."  (emphasis supplied).  Section 5(b) makes a distinction between a "decision," which must be by a majority of the justices assigned to hear the case, and "orders," which a single justice may make. It is plain that within the context of section 5(b), "decision" means the final determination of the appeal.

     Section 37 of the Chuuk State Judiciary Act of 1990, Chk. S.L. No. 190-08 ("the Judiciary Act"), provides in pertinent part that "[t]he Justice of the State Supreme Court appointed to sit on the appellate panel shall be responsible for making necessary orders concerning any appeal for want of prosecution, failure to take or prosecute the appeal in accordance with applicable law and procedure, or other orders or notices as may necessary to the disposition of the appeal."  (emphasis added).  Section 38(1) provides in pertinent part that "[a] decidison [sic] of the appellate panel shall be by the concurrence of a majority of the Justices sitting on the appellate panel."  (emphasis added).  These two sections of the Judiciary Act, just as section 5(b) of the Chuuk Constitution does, preserve the distinction between an "order" and a "decision."  Specifically, section 38(1) makes it abundantly clear that a "decision" will be made by the entire appellate panel assigned to the case.

     Section 39 of the Judiciary Act goes on to outline the procedure by which an appeal from the Chuuk State Appellate Division to the appellate division of this court may be taken.  Section 39 provides in pertinent part that

[a] party to an appeal in which the State Supreme Court Appellate Division has rendered an appellate decision may appeal such decision to the Appellate Division of the Supreme Court of the Federated States of Micronesia by certiorari, except in a criminal case in which the defendant may appeal as of right.

(emphasis added).  Section 39 provides that an appeal to the appellate division of this court may be taken only from an appellate "decision" of the Chuuk State Supreme Court Appellate Division, which is to say a determination that is made by at least two out of three of the justices assigned to hear the case before the Chuuk appellate division.  Since the petition for writ of certiorari in this matter seeks to appeal an order by a single justice, this court lacks jurisdiction to consider the appeal.  Gustaf v. Mori, 6 FSM Intrm. 284, 285 (App. 1993); see also Damarlane v. Pohnpei, 9 FSM Intrm. 114, 118 (App. 1999) (holding that an order by a single appellate justice is not a final decision where the Pohnpei Constitution provides that such an order is "subject to review by a full appellate panel of justices hearing the appeal") (citing Pon. Const. art. 10, 5(2)).

     The foregoing reading of article VIII, section 5(b) of the Chuuk Constitution and sections 37, 38(1), and 39 of the Judiciary Act is consistent with Rule 27(c) of the Chuuk Appellate Rules of Procedure.  Rule 27(c) provides that "[t]he action of a single justice may be reviewed by the court."  Hence, Rule 27(c) provides a means whereby an "order" by a single justice may become a dispositive
 
[9 FSM Intrm. 163]

"decision" of the appellate panel.  Once an appellant has sought and obtained review of a single justice's order by the appellate panel of the Chuuk State Supreme Court Appellate Division, the appellate division of this court may then review that "decision" as provided by section 39 of the Judiciary Act.  At that point we have jurisdiction to hear the appeal, but not before.  Since Wainit did not seek review by the entire panel of the Chuuk State Supreme Court Appellate Division of the April 4, 1996, order denying the motion to vacate the order of dismissal, we have no jurisdiction to consider the petition for writ of certiorari.

     Accordingly, this cause is remanded to the Appellate Division of the Chuuk State Supreme Court for action consistent herewith.
                                                                                                                                                                                                                                                                                                           
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