Kosrae States Rules of Appellate Procedure

(a) SCOPE OF RULES. These rules govern procedure in appeals to the Kosrae State Court from the decisions of the Kosrae State Land Commission, pursuant to Kosrae State Code, Title 11 and from the decisions of the Branch Heads, pursuant to Kosrae State Code, Title 18.

In the interest of expediting decisions, or for other good cause shown, the Kosrae State Court may, except as otherwise provided in Rule 9(b), suspend the requirements of provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its discretion.

(a) FILING THE NOTICE OF APPEAL. An appeal permitted by these rules shall be taken by filing a notice of appeal with the Chief Clerk of Court within the time period provided by Rule 4. Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the Kosrae State Court deems appropriate, which may include dismissal of the appeal.

(b) JOINT OR CONSOLIDATED APPEALS. If two or more persons are entitled to appeal from a decision and their interests are such as to make joinder practicable, they may file a joint notice of appeal, or may join in the appeal after filing separate timely notices of appeal, and they may thereafter proceed on appeal as a single appellant. Appeals may be consolidated by order of Kosrae State Court upon its own motion, or upon motion of a party, or by stipulation of the parties to the several appeals.

(c) CONTENT OF THE NOTICE OF APPEAL. The notice of appeal shall specify the party or parties taking the appeal; shall designate the decision, order or party thereof appealed from; and shall name the Kosrae State Court as the court to which the appeal is taken. An appeal shall not be dismissed for informality of form or title of the notice of appeal.

(d) SERVICE OF THE NOTICE OF APPEAL. The Appellant shall serve a copy of the notice of appeal to counsel of record of each party other than the appellant, or if a party is not represented by counsel, to the party. The notice of appeal shall be served by personal delivery or by mailing in accordance with the Kosrae Rules of Civil Procedure, Rule 5(b).

(e) PAYMENT OF FEES. Upon the filing of any notice of appeal, the appellant shall pay to the Chief Clerk of Court, a filing fee of five dollars ($5.00), and such other fees that may be established by statute, by rule or by court order.

(3) The notice of appeal required by Rule 3 shall be filed with the Chief Clerk of Court and served within 120 days from the date of receipt of the decision regarding the disciplinary action or grievance from the Branch Head.

(a) COMPOSITION OF THE RECORD ON APPEAL. The complete set of papers and exhibits filed with the Kosrae State Land Commission, including transcripts of the proceedings for a parcel or parcels shall constitute the record for appeals taken pursuant to Rule 4(a). The entire Appeal Action file, established by the Director of Administration and Finance, shall constitute the record for appeals taken pursuant to Rule 4(b).

(1) Within ten (10) days after filing the notice of appeal, the appellant shall order the certified record from the Kosrae State Land Commission or the Director of Administration and Finance. The order shall be in writing and a copy shall be filed with the Chief Clerk of Kosrae State Court.

(2) If the record is in English or Kosraean and the appellant or appellee, or his attorney or trial counselor does not understand the language contained in the record, the appellant, appellee, or his counsel shall arrange for translation of those parts of the record he deems necessary. Translation of the record may be arranged through the Court, pursuant to GCO 1999-5, or through another translator, at the parties' own expense. Translation of the record shall be ordered within 14 days of receipt of the record.

(3) If the appellant or appellee fails to order a translation of the record within the time specified in paragraph (2), that party shall have waived the opportunity for a translation. Upon motion and upon such terms as are just, the Kosrae State Court may order a translation of the record for the party if there was mistake, inadvertence, excusable neglect or if the need for a translation could not have been reasonably anticipated when the record was ready.

(4) If the appellant or appellee claims a defect or irregularity in the certified record, or claims that the certified record provided by the Land Commission or the Director of Administration and Finance is incomplete, the party shall file a statement which describes in particularity the claimed defect, irregularity or incompleteness of the certified record. A copy of the statement shall be served upon each party and upon the Land Commission or the Director of Administration and Finance. The statement shall be filed with the Chief Clerk and served within 14 days of receipt of the certified record by the party. The Court may issue such orders as necessary and just to cause correction or completion of the certified record.

(a) DUTY OF THE APPELLANT. After filing the notice of appeal, each appellant shall comply with the provisions of Rule 5(b) and shall take any other action necessary to enable the Land Commission or the Director of Administration to assemble, certify and transmit the record.

(b) DUTY OF THE LAND COMMISSION AND DIRECTOR OF ADMINISTRATION AND FINANCE TO PREPARE, CERTIFY AND FILE RECORD. Upon receipt of an order for a record, a single record shall be prepared, certified and filed by the Land Commission or the Director of Administration and Finance. The record shall be assembled with papers in sequence according to the dates listed on the papers. Each page of each document should be numbered in sequence, at the lower right hand corner, beginning with page 1 and continuing up through the total number of pages in the record. The record shall be prepared, certified and filed with the Chief Clerk of Court within sixty (60) days of receipt of the order. The Land Commission or the Director of Administration and Finance shall also notify the parties to the appeal in writing, of the availability of the record. Each party is responsible to pick up and pay the Land Commission or the Director of Administration and Finance for their own copy of the record.

(1) In appeals from decisions of the Land Commission, the names of the parties (usually the claimants) involved in the decision shall be identified in the appeal. (example: John Smith, Appellant v. Frank Roberts, Appellee).

(2) In appeals from decisions of the Branch Head, the name of the affected employee and the Branch Head shall be identified in the appeal. (example: John Smith, Appellant v. Rensley A. Sigrah, Governor of Kosrae State, Appellee).

(b) FILING OF THE RECORD; or PARTIAL RECORD. Upon filing of the record pursuant to Rule 11, the Court shall enter a . Notice of Record Ready and Briefing Schedule. The briefing schedule shall be established pursuant to Rule 14 and served upon all parties to the appeal.

(a) FILING. Papers required or permitted to be filed in Kosrae State Court shall be filed with the Chief Clerk. Filing may be accomplished by hand delivery to the Chief Clerk at Kosrae State Court. Filing may also be accomplished by first class mail addressed to the Chief Clerk at Kosrae State Court, P.O. Box KSC, Kosrae, FM 96944. Filing shall not be timely unless the papers are received by the Chief Clerk within the time specified for filing, except that briefs shall be deemed filed on the date of mailing. Filing may also be accomplished by fax transmittal, in accordance with General Court Order 1998-2.

(b) SERVICE OF ALL PAPERS REQUIRED. Copies of all papers filed by any party shall, at, before the time of filing, or within seven (7) days of filing, be served by a party or a person acting for him upon all other parties to the appeal. Service on a party represented by counsel shall be made on counsel.

(c) MANNER OF SERVICE. Service may be personal delivery, by first class mail or by facsimile. Service includes personal delivery of the document to a clerk or other responsible person at the office of counsel or the party, or the dwelling house of counsel or the party. Service by mail is complete on mailing. Service by facsimile is complete upon complete fax transmission of the document. The party completing service by fax transmission is responsible for verifying the receipt of the faxed document.

(d) PROOF OF SERVICE. Papers presented for filing shall contain an acknowledgment of service by the person served or proof of service in the form of a statement of the date and manner of service and of the name of the person served, certified by the person who made the service. Proof of service may appear on the document served, or be attached as a separate document to the paper filed. The Chief Clerk may permit papers to be filed without acknowledgment or proof of service but shall require such to be filed promptly thereafter.

(a) COMPUTATION OF TIME. In computing any period of time prescribed by these rules, an order of the court, or by any applicable statute, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period shall be included, unless it is a Friday, Saturday, Sunday or legal holiday, in which event the period extends until the end of the next day which is not a Friday, Saturday, Sunday or legal holiday. When the period of time prescribed or allowed is less than seven (7) days, intermediate Fridays, Saturdays, Sundays and legal holidays shall be excluded from the computation. As used in this rule, a . legal holiday. includes any day designated as a holiday by the President, FSM Congress, Governor of Kosrae State or Kosrae State Legislature.

(b) ENLARGEMENT OF TIME. The court for good cause shown may upon motion enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time; but the court may not enlarge the time prescribed by Rule 4 for filing a notice of appeal from a decision of the Kosrae State Land Commission, or from a decision of the Branch Head, except as specifically authorized by law.

(c) ADDITIONAL TIME AFTER SERVICE BY MAIL. Whenever a party is required or permitted to do an act within a prescribed period after service of a paper upon him and the paper is served by first class mail, six (6) days shall be added to the prescribed period.

(a) CONTENT OF MOTIONS; RESPONSE; REPLY. Unless another form is elsewhere prescribed by these rules, an application for an order or other relief shall be made by filing a motion for such order or relief with proof of service on all other parties. The motion shall contain or be accompanied by any matter required by a specific provision of these rules governing such a motion, shall state with particularity the grounds on which it is based, shall contain a memorandum of points and authorities, and shall set forth the order or relief sought. If a motion is supported by affidavits, exhibits or other papers, they shall be served and filed with the motion. Any party opposing the motion shall file and serve his responsive papers within ten (10) days after the service of the motion upon him. Motions for enlargement of time may be acted upon by the Court at any time, without awaiting a response thereto.

(3) A statement of the case. The statement shall first indicate the nature of the case, the course of proceedings, and its disposition by the Kosrae State Land Commission or Branch Head. A statement of the facts relevant to the issues presented for review shall be included, with appropriate references to the record.

(4) An argument. The argument shall contain the contentions of the appellant with respect to the issues presented, and the reasons, with citations to the authorities, statutes, and parts of the record relied upon.

(c) REPLY BRIEF. The appellant may file a brief in reply to the brief of the appellee, and if the appellee has cross-appealed, then the appellee may file a brief in reply to the response of the appellant to the issues presented by the cross appeal. No further briefs may be filed except with leave of court.

(d) REFERENCES IN BRIEFS TO PARTIES. Counsel should avoid using the references of "appellant" and "appellee". Counsel should use the actual names of the parties as references, or descriptive terms, such as . the employee.

(f) REPRODUCTION OF STATUTES, RULES REGULATIONS, ETC. If determination of the issues presented requires the study of statutes, rules, regulations, etc., or relevant parts thereof, other than Kosrae State, they shall be reproduced in the brief, or included in the appendix.

(g) LENGTH OF BRIEFS. Except by permission of the court, principal briefs shall not exceed twenty-five (25) pages, and reply briefs shall not exceed ten (10) pages, not including the pages containing the table of contents, table of citations, and the appendix.

(h) CITATION OF SUPPLEMENTAL AUTHORITIES. When significant authorities come to the attention of a party before decision, a party may promptly advise the Clerk of Court by letter, with a copy to all counsel, setting forth the citations. There shall be a reference either to the page of the brief or the point argued orally to which the citations pertain. The letter shall state the reasons for the supplemental citations. Any response shall be made within seven (7) days of receipt of the letter and shall be similarly limited.

A brief of an amicus curiae may be filed only if accompanied by written consent of all parties, or by leave of court granted on motion or at the request of the court, except that consent or leave shall not be required when a brief is presented by the State of Kosrae. The brief may be conditionally filed with the motion for leave. A motion shall identify the interest of the applicant and shall state the reasons why a brief of an amicus curiae is desirable. The amicus brief shall be filed within the time allowed for the party whose position the amicus brief will support unless the court for cause shown shall grant leave for later filing, in which case the court shall specify the period within which the opposing party may answer. A motion of an amicus curiae to participate in the oral argument will be granted only for extraordinary reasons.

(1) The appellant shall prepare and file with the appellant. s brief an appendix to the brief in appeals where the appellant is relying upon any of the following: decisions entered by Trust Territory Courts which are not reported in the Trust Territory Reports, decisions that are not reported in the FSM Interim Reporter, laws or regulations other than Kosrae State laws or regulations, any other documents not included in the certified record from the Land Commission or Director of Administration and Finance. The appendix shall contain copies of all such decisions, laws, regulations, or other documents relied upon.

(2) The appellant shall serve and file the appendix with his brief. One copy of the appendix shall be filed with the Chief Clerk and one copy of the appendix shall be served by the appellant on each party.

(1) The appellee shall prepare and file with the appellee's brief an appendix to the brief in appeals where the appellee is relying upon any of the following: decisions entered by Trust Territory Courts which are not reported in the Trust Territory Reports, decisions that are not reported in the FSM Interim Reporter, laws or regulations other than Kosrae State laws or regulations, any other documents not included in the certified record from the Land Commission or Director of Administration and Finance. The appendix shall contain copies of all such decisions, laws, regulations, or other documents relied upon.

(2) The appellee shall serve and file the appendix with his brief. One copy of the appendix shall be filed with the Chief Clerk and one copy of the appendix shall be served by the appellee on each party.

(a) TIME FOR SERVING AND FILING BRIEFS. The appellant shall serve and file his brief within 40 days after the . Notice of Record Ready and Briefing Schedule. is issued by the Court. The appellee shall serve and file his brief within 30 days after service of the brief of the appellant. The appellant may serve and file a reply brief within 14 days after service of the brief of the appellee. The court shall consider cases on the merits after briefs are filed, and may shorten or enlarge the periods prescribed above for serving and filing briefs, for specific cases.

(b) NUMBER OF COPIES TO BE FILED AND SERVED. Two copies of the brief shall be filed with the Chief Clerk. One copy of the brief shall be served upon counsel for each party. If a party is not represented by counsel, one copy of the brief shall be served upon each unrepresented party.

(c) CONSEQUENCES OF FAILURE TO FILE BRIEFS. If an appellant fails to file his brief within the time provided by this rule, or within time as extended by court order, an appellee may move for dismissal of the appeal. The court, on its own motion, may also issue an order to show cause why the appeal should not be dismissed for appellant. s failure to file a brief as ordered. If an appellee fails to file his brief, he will not be heard at oral argument.

(d) BRIEFS MUST BE SIGNED. All briefs filed with the court must be signed by an active trial counselor or attorney representing a party. Briefs filed by a party not represented by counsel must be signed by the party or the representative of the party.

(a) FORM OF BRIEFS. Briefs may be produced by standard typing, printing or copying process which produces a clear black image on white paper. Briefs shall be stapled paper 8 ½ by 11 inches in size, with double spacing between each line of text. Margins shall be at least one (1) inch on each side. The first page of each brief shall contain: name of the court; number of the case; title of the case; nature of the proceeding (example: Brief for Appellant); name, address, and phone number of the counsel representing the party on whose behalf the document is filed, or name, address, and phone number of the party on whose behalf the document is filed.

(b) NOTICE OF ARGUMENT. The Chief Clerk shall advise all parties of the time for oral argument. Generally, thirty (30) minutes will be allowed each side for oral argument, unless enlargement is granted by the court. The parties may stipulate in writing to waive oral argument. If one party stipulates to waive oral argument, the court may contact all other parties to inquire about their waiver of oral argument.

(d) NON-APPEARANCE OF PARTIES. If the appellee fails to appear to present argument, the court will hear argument on behalf of the appellant, if present. If the appellant fails to appear, the court may hear argument on behalf of the appellee, if present. If neither party appears, the case will be decided on the briefs unless the court shall otherwise order.

(f) USE OF PHYSICAL EXHIBITS AT ARGUMENT; REMOVAL. If physical exhibits other than documents are to be used at the argument, counsel shall arrange to have them place in the court room before the court convenes on the date of the argument. After the argument, counsel shall cause the exhibits to be removed from the courtroom unless the court otherwise directs. If the exhibits are not reclaimed by counsel within a reasonable time, the exhibits shall be destroyed or disposed of by the Chief Clerk.

Judgment of the court shall be entered by the Chief Clerk after or concurrent with entry of the decision of the court. The Chief Clerk shall serve a copy of the decision and judgment of the court upon all parties by personal delivery, first class mail or facsimile. In appeals from decisions of the Kosrae State Land Commission, a copy of the decision and judgment, including an order of remand or other order, if any, shall also be served upon the Kosrae State Land Commission. In appeals from decisions of the Branch Head, under Title 18 of the Kosrae State Code, a copy of the decision and judgment shall also be served upon the Branch Head.

(a) TIME FOR FILING; CONTENT; ANSWER; ACTION BY COURT IF GRANTED. A petition for rehearing may be filed within 14 days after entry of judgment or decision. The petition shall state with particularity the points of law or fact which in the opinion of the petitioner the court has overlooked or misapprehended, and shall contain such argument in support of the petition as the petitioner desires to present. Oral argument in support of the petition will not be permitted. No answer to a petition for rehearing will be received unless requested by the court, but a petition for rehearing will ordinarily be denied in the absence of such a request. If a petition for rehearing is granted, the court may make a final disposition of the cause without reargument or may restore it to the calendar for reargument, or may make other orders as are appropriate under the circumstances of the particular case.

(b) FORM OF PETITION; LENGTH. The petition shall be in a form prescribed by Rule 15(a) and copies shall be served and filed as prescribed in Rule 14(b). A petition for rehearing shall not exceed ten (10) pages.

(b) An appeal may be dismissed by the court on motion filed by a party in accordance with these Rules, or on its own motion, after notice and an opportunity to be heard, for failure to comply with these Rules.

(a) DEATH OF PARTY. If a party dies after a notice of appeal is filed or while a proceeding is otherwise pending in the court, the personal representative of the deceased party may be substituted as a party on motion filed by the representative or by any party. The motion of a party shall be served upon the representative in accordance with the provisions of Rule 8. If the deceased party has no representative, any party may suggest the death on the record and proceedings shall then be had as the court may direct. If a party against whom an appeal may be taken dies before the notice of appeal is filed, the appellant may proceed as if death has not occurred. After the notice of appeal is filed, substitution of shall made in accordance with this rule. If a party entitled to appeal dies before filing a notice of appeal, the notice of appeal may be filed by his personal representative, or if he has no personal representative, by his attorney of record within the time provided by law.

(b) SUBSTITUTION FOR OTHER CAUSES. If substitution of a party is necessary for any reason other than death, substitution shall be effected in accordance with the procedure described in subdivision (a).

(1) When a public officer is a party to an appeal or other proceeding in his official capacity, and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party. Proceedings following the substitution shall be in the substituted party, but any misnaming shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.

(a) GENERAL PROVISIONS. The Office of the Chief Clerk shall be open for filing during regular court business hours, as specified by General Court Order 1998-4, or as later superseded by court order.

(1) The Chief Clerk shall keep a book known as the docket, in which she shall enter each case. Cases shall be assigned consecutive file numbers, which shall be noted in the docket. All papers filed with the Chief Clerk shall be entered chronologically in the docket, and shall show the nature of each paper filed, decision, order or judgment entered. The entries in the docket shall show the date that the entry is made.

(c) NOTICE OF ORDERS OR JUDGMENTS. Upon entry of an order, decision or judgment, the Chief Clerk shall serve a copy of the order, decision or judgment upon each party to the proceedings and as required under Rule 17, by personal delivery, mail or facsimile. Service on a party represented by counsel shall be made on counsel.

(d) CUSTODY OF RECORDS AND PAPERS. The Chief Clerk shall have custody of the records and papers of the court. She shall not permit any original record or paper to be taken from her custody except as authorized by order of the court. The Chief Clerk shall preserve copies of briefs and other printed papers filed.

(a) SUSPENSION OR DISBARMENT. When it is shown to the court that any member of its bar has been suspended or disbarred from practice in any other court of record, or has been guilty of conduct unbecoming a member of the bar of the court, he will be subject to suspension or disbarment by the court. The member shall be afforded an opportunity to show good cause, within such time as the court shall prescribe, why he should not be suspended or disbarred. Upon his response to the order to show cause, and after hearing, if requested, or upon expiration of the time prescribed for a response if no response is made, the court shall enter an appropriate order.

(b) DISCIPLINARY POWER OF THE COURT OVER ATTORNEYS AND TRIAL COUNSELORS. The court may, after reasonable notice and an opportunity to show cause to the contrary, and after hearing, if requested, take any appropriate disciplinary action against any person certified to practice before the Kosrae State Court, for conduct unbecoming a member of the bar, or for failure to comply with these rules or any rule of this court.

(a) These Rules take effect on September 4, 2000. They govern all appeals from decisions of the Kosrae State Land Commission pursuant to Kosrae State Code, Title 11, and all appeals from decisions of the Branch Head, pursuant to Kosrae State Code, Title 18, thereafter commenced, and so far as just and practicable to all proceedings that are pending.