FSM SUPREME COURT TRIAL DIVISION
CIVIL ACTION NO. 2016-033

ROMAN HIGGINS,
Plaintiff,

vs.

POHNPEI SUPREME COURT APPELLATE
DIVISION,
Defendant.
__________________________________________

ORDER DENYING MOTION AND GRANTING JUDGMENT FOR THE NONMOVANT

Larry Wentworth
Associate Justice

Hearing:  July 4, 2018
Decided:  October 1, 2018

APPEARANCES:

For the Plaintiff:	Joseph S. Phillip, Esq.
P.O. Box 464
Kolonia, Pohnpei FM 96941

For the Defendants:	Maximo Mida, Esq.
Ramp & Mida Law Firm
P.O. Box 1480
Kolonia, Pohnpei FM 96941

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HEADNOTES

Appellate Review - Stay - Criminal Cases
Pohnpei Criminal Procedure Rule 38(a)(2) does not grant a defendant the right to an automatic stay pending appeal.  Higgins v. Pohnpei Supreme Court App. Div., 22 FSM R. 63, 66 (Pon. 2018).

Appellate Review - Stay - Criminal Cases
Under Pohnpei Criminal Rule 38(a)(2), a stay of sentence is automatic only if the defendant is released pending disposition of appeal.  If the defendant is not released pending appeal, there is no automatic stay.  Higgins v. Pohnpei Supreme Court App. Div., 22 FSM R. 63, 66 (Pon. 2018).

Appellate Review - Stay - Criminal Cases
If a convicted defendant is not released pending appeal, there is no automatic stay, but the trial court may make recommendations about the conditions and place of a defendant’s imprisonment while the appeal is being prepared.  Higgins v. Pohnpei Supreme Court App. Div., 22 FSM R. 63, 66 (Pon. 2018).

Appellate Review - Stay - Criminal Cases
A defendant’s release, and the stay of his imprisonment pending appeal, is a matter of judicial discretion.  Higgins v. Pohnpei Supreme Court App. Div., 22 FSM R. 63, 67 (Pon. 2018).

Constitutional Law - Due Process; Courts
A court may abuse its judicial discretion by an unexplained, lengthy delay or by the failure to exercise its discretion within a reasonable time because the failure to exercise discretion is an abuse of the discretion.  Higgins v. Pohnpei Supreme Court App. Div., 22 FSM R. 63, 67 (Pon. 2018).

Appellate Review - Stay - Criminal Cases
A court may abuse its discretion by not ruling on a defendant’s motion for a stay pending appeal at any time before the date of his release from jail.  Higgins v. Pohnpei Supreme Court App. Div., 22 FSM R. 63, 67 (Pon. 2018).

Appellate Review - Motions
In the Pohnpei Supreme Court appellate division, oral argument will not be heard on any motion unless the court specifically assigns it thereof.  Higgins v. Pohnpei Supreme Court App. Div., 22 FSM R. 63, 67 (Pon. 2018).

Appellate Review - Stay - Criminal Cases
Under the Pohnpei appellate rules, for a stay of sentence pending appeal, a showing that the appeal raises a substantial question of law is sufficient cause for granting a stay upon reasonable terms.  Even then a stay is not automatic.  Higgins v. Pohnpei Supreme Court App. Div., 22 FSM R. 63, 67 (Pon. 2018).

Civil Rights - Remedies and Damages; Constitutional Law - Due Process
Since the right to procedural due process is "absolute" in the sense that it does not depend upon the merits of a claimant’s substantive assertions, and because of the importance to organized society that procedural due process be observed, the denial of due process is generally actionable for nominal damages without proof of actual injury.  And a plaintiff who is awarded nominal damages in a civil rights action is also entitled to his attorney’s fees and costs.  Higgins v. Pohnpei Supreme Court App. Div., 22 FSM R. 63, 67 (Pon. 2018).

Courts - Judges - Judicial Immunity
A Pohnpei Supreme Court justice is generally immune from suit and from the imposition of money damages.  Higgins v. Pohnpei Supreme Court App. Div., 22 FSM R. 63, 67 (Pon. 2018).

Courts - Judges - Judicial Immunity
Judges are generally granted absolute immunity from civil liability for acts done in the exercise of a judicial function.  Higgins v. Pohnpei Supreme Court App. Div., 22 FSM R. 63, 67 (Pon. 2018).

Courts - Judges - Judicial Immunity
A judge loses the cloak of judicial immunity in only two events:  1) a judge is not immune from non-judicial actions, - actions not taken in the judge’s judicial capacity, and 2) a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.  Higgins v. Pohnpei Supreme Court App. Div., 22 FSM R. 63, 67-68 (Pon. 2018).

Courts - Judges - Judicial Immunity
A Pohnpei Supreme Court appellate division single justice’s failure to rule on a motion for a stay of sentence is an act of a judicial nature and the grant or denial of a stay is an act wholly within the Pohnpei Supreme Court appellate division’s jurisdiction.  Thus, if the plaintiff were suing the single justice who failed to rule on his motion to stay, that justice would be immune from this suit for money damages, regardless of whether those damages were compensatory, nominal, or punitive.  Higgins v. Pohnpei Supreme Court App. Div., 22 FSM R. 63, 68 (Pon. 2018).

Courts - Judges - Judicial Immunity
A plaintiff, no matter how worthy, cannot avoid the cloak of judicial immunity by suing the court where the judge sits instead of suing the immune judge.  Higgins v. Pohnpei Supreme Court App. Div., 22 FSM R. 63, 68 (Pon. 2018).

Civil Procedure - Summary Judgment - For Nonmovant
When a party’s summary judgment motion has been denied as a matter of law and it appears that the nonmoving party is entitled to judgment as a matter of law, a court may grant summary judgment to the nonmoving party, even in the absence of a cross motion for summary judgment, if the original movant has had an adequate opportunity to show that there is a genuine factual issue and that its opponent is not entitled to judgment as a matter of law.  Higgins v. Pohnpei Supreme Court App. Div., 22 FSM R. 63, 68 (Pon. 2018).

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COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

This came before the court on July 4, 2018, to hear the only pending motion:  the Plaintiff’s Motion for Partial Judgment on the Pleadings for Liability and/or Partial Summary Judgment for Liability per Due Process and Civil Right Violation, filed January 29, 2018; Notice of Submission of Exhibit A and B and Affidavit of Roman Higgins, filed February 2, 2018; and the Defendant’s Opposition to Plaintiff’s Motion for Partial Judgment on the Pleadings and for Partial Summary Judgment, filed February 19, 2018; and Plaintiff’s Argument for Summary Judgment, filed July 4, 2018.  The plaintiff’s motion is denied and the defendant is granted judgment.  The court’s reasoning follows.

I.  Factual Background

On July 13, 2015, Roman Higgins was convicted in the Pohnpei Supreme Court trial division of sexual abuse and sentenced to three years imprisonment with the first six months in jail and the next 2½ years on probation.  Higgins appealed.  He also filed motions for a stay of conviction and to proceed in forma pauperis.  On July 14, 2015, the trial judge denied the stay and the in forma pauperis motions.  Higgins started his jail sentence on July 15, 2015.

As a consequence of his imprisonment, Higgins lost his job at Adams Brothers Corporation as a night watchman at Ace Hardware and Ace Commercial Center.  He had held that position for over twenty years.  He had been paid $140 biweekly.

On October 20, 2015, he filed an application for a stay and to perfect an appeal in forma pauperis in the Pohnpei Supreme Court appellate division.  On October 29, 2015, that court set November 5, 2015, as the date when those motions would be heard by a single justice.  However, that hearing was later canceled because the prosecutor was off-island on Palau for a professional conference on that date.

Higgins finished his six months in jail on January 15, 2016.  On March 1, 2016, at an appellate division single justice status conference, Higgins’s counsel argued, and was granted, his motion to proceed in forma pauperis.  The motion to stay was not argued or mentioned at the conference.

On December 27, 2016, Higgins filed suit in the FSM Supreme Court against the Pohnpei Supreme Court appellate division, alleging that it had violated his civil rights to due process and the equal protection of the laws and that it had been negligent in carrying out its duties.  Higgins sought as relief, reimbursement for his lost pay from July 2015 to January 2016 ($1,680), and $100,000 more as compensation for the violation of his rights.

For reasons not apparent from the record, the Pohnpei Supreme Court appellate division dismissed Higgins’s appeal on January 23, 2018.

II.  Procedural History

On January 29, 2018, Higgins moved for partial summary judgment on his claim that his civil right to due process was violated by the Pohnpei appellate division’s failure to hear his motion for a stay at anytime before his jail sentence ended.  The defendant asserts that summary judgment cannot be issued because there are genuine issues of fact in dispute.

Higgins bases his claim to the violation of his due process rights and thus his civil rights on the fact that the Pohnpei Supreme Court appellate division, or a single justice thereof, never granted his motion for a stay pending appeal.  His contention is that since he appealed his conviction, a stay of his imprisonment should have been automatically granted.  For this proposition he relies on In re Contempt of Umwech, 8 FSM R. 20 (Chk. S. Ct. Tr. 1997) and, presumably, Pohnpei Criminal Procedure Rule 38(a)(2).

In re Contempt of Umwech is inapplicable.  In that case, the Chuuk State Supreme Court held that, based on a Chuuk state statute, the stay of a criminal contempt conviction that included a sentence of imprisonment was automatic if the conviction was appealed.  Higgins was not convicted of contempt of court and Chuuk statutes do not apply to the Pohnpei state court.  (There is a virtually identical Pohnpei statutory provision for appeals from Pohnpei state court contempt convictions.  See 4 Pon. C. § 2-106(3)).

Pohnpei Criminal Procedure Rule 38(a)(2) does not grant Higgins the right to an automatic stay either.  It provides:

A sentence of imprisonment shall be stayed if an appeal is taken and the defendant is released pending disposition of appeal pursuant to Rules of Appellate Procedure of the Ponape Supreme Court.  If not stayed, the court may recommend to the State Attorney that the defendant be retained under conditions, and at a place, which permit the defendant to assist in the preparation of the appeal.

As should be apparent from Rule 38(a)(2)’s text, a stay of sentence is automatic only if "the defendant is released pending disposition of appeal."  If the defendant is not released pending appeal, there is no automatic stay.  Higgins was not released pending appeal.

If there were any doubt that a stay of imprisonment is not automatic on appeal, Rule 38(a)(2)’s second sentence should dispel that.  That sentence allows the trial court to make recommendations about the conditions and place of a defendant’s imprisonment while the appeal is being prepared; in other words, when a defendant has not been released pending appeal.  That sentence would not be there if a stay of imprisonment were automatic when there was an appeal.

The release of a defendant such as Higgins, and the stay of his imprisonment pending appeal, is thus a matter of judicial discretion.  The question becomes whether the Pohnpei Supreme Court appellate division abused its discretion.

III.  Denial of Higgins’s Summary Judgment Motion

A court may abuse its judicial discretion by an unexplained, lengthy delay or by the failure to exercise its discretion within a reasonable time because the failure to exercise discretion is an abuse of the discretion.  Damarlane v. Damarlane, 19 FSM R. 97, 105 (App. 2013); In re Certification of Belgrove, 8 FSM R. 74, 78 (App. 1997); Ruben v. Petewon, 13 FSM R. 383, 390 n.2 (Chk. 2005).

Thus, the Pohnpei Supreme Court appellate division likely abused its discretion by not rescheduling or ruling on Higgins’s motion to stay at any time before the date of his release from jail.  The court notes that Higgins could have raised the motion to stay at the March 1, 2016 single justice hearing, but did not.  That may have been because his imprisonment had ended a month and half before that.

The Pohnpei Supreme Court appellate division could have ruled on the October 20, 2015 motion at anytime after that.  That is because, under that court’s rules, "[o]ral argument will not be heard on any motion unless the court specifically assigns it thereof."  Pon. App. R. 6.  An oral hearing with the prosecutor present was not a necessity.  The court therefore concludes that there is no genuine issue of material fact that the Pohnpei Supreme Court appellate division abused its discretion by failing to rule on Higgins’s motion to stay.

The court, however, cannot conclude that, if the Pohnpei Supreme Court appellate division had ruled on the motion, a stay would have been granted.  Under the Pohnpei appellate rules, for a stay of sentence pending appeal, "a showing that the appeal raises a substantial question of law shall be sufficient cause for granting a stay upon reasonable terms."  Pon. App. R. 7(a).  Even then a stay is not automatic.  A Pohnpei Supreme Court appellate division single justice (or even a full panel) may have concluded that Higgins’s appeal did not raise a substantial question of law, or even that Higgins should remain imprisoned for some other valid reason.  Thus, Higgins likely has no provable actual injury.

However, since the right to procedural due process is "absolute" in the sense that it does not depend upon the merits of a claimant’s substantive assertions, and because of the importance to organized society that procedural due process be observed, the denial of due process is generally actionable for nominal damages without proof of actual injury.  Robert v. Simina, 14 FSM R. 438, 444 (Chk. 2006).  And a plaintiff who is awarded nominal damages in a civil rights action is also entitled to his attorney’s fees and costs.  Id. at 444-45.

Nevertheless, a Pohnpei Supreme Court justice is generally immune from suit and from the imposition of money damages.  Jacob v. Johnny, 18 FSM R. 226, 234 (Pon. 2012) (claim for injunctive relief because the judge acted in excess of his jurisdiction and violated the plaintiff’s civil rights in doing so, states a claim for which the FSM Supreme Court can grant some relief, but claims for money damages do not).  That is because judges are generally granted absolute immunity from civil liability for acts done in the exercise of a judicial function.  Helgenberger v. U Mun. Court, 18 FSM R. 274, 283 (Pon. 2012) (few common law doctrines more solidly established than a judge’s immunity for damages for acts committed within his judicial jurisdiction).

"A judge loses the cloak of judicial immunity in only two events:  ’First, a judge is not immune from non-judicial actions, i.e. actions not taken in the judge’s judicial capacity.  Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.’"

Id. (quoting Jano v. King, 5 FSM R. 388, 391 (Pon. 1992) (quoting Mireless v. Waco, 502 U.S. 9, 11-12, 112 S. Ct. 286, 288, 116 L. Ed. 2d 9, 14 (1991) (citations omitted))); see also Bank of Guam v. O’Sonis, 9 FSM R. 106, 112 (Chk. 1999).

Unquestionably, the act complained of - the failure of a single justice of the Pohnpei Supreme Court appellate division to rule on a motion for a stay of sentence - is of a judicial nature and the grant or denial of a stay (here a denial by omission or failure to act) is an act wholly within the Pohnpei Supreme Court appellate division’s jurisdiction.  Undoubtedly, if Higgins were suing the single justice who failed to rule on his motion to stay, that justice would be immune from this suit for money damages, regardless of whether those damages were compensatory, nominal, or punitive.

A plaintiff, no matter how worthy, should not be able to avoid the cloak of judicial immunity by suing the court where the judge sits instead of suing the immune judge.  In Helgenberger v. U Municipal Court, 18 FSM R. 274 (Pon. 2012), the plaintiff sued the court itself, but not the judges who sat on it, and in Damarlane v. Pohnpei Supreme Court Appellate Division, 10 FSM R. 116 (Pon. 2001), the plaintiff sued both the court and the judges who sat on it.  In both cases, the FSM Supreme Court concluded that the defendant court was immune from money damages because the cloak of judicial immunity extended to the courts themselves.  Helgenberger, 18 FSM R. at 283-84; Damarlane, 10 FSM R. at 121-22.  That result should not differ in this case.

The court concludes that therefore the defendant Pohnpei Supreme Court appellate division is immune from civil liability for all of Higgins’s causes of action, regardless of whether the money damages he seeks are compensatory, nominal, or punitive.  Accordingly, Higgins’s motion for partial summary judgment is denied as a matter of law.

IV.  Summary judgment for the Nonmovant Defendant

When a party’s summary judgment motion has been denied as a matter of law and it appears that the nonmoving party is entitled to judgment as a matter of law, a court may grant summary judgment to the nonmoving party, even in the absence of a cross motion for summary judgment, if the original movant has had an adequate opportunity to show that there is a genuine factual issue and that its opponent is not entitled to judgment as a matter of law.  Isamu Nakasone Store v. David, 20 FSM R. 53, 58 (Pon. 2015); FSM v. GMP Hawaii, Inc., 17 FSM R. 555, 569 (Pon. 2011); Carlos Etscheit Soap Co. v. McVey, 17 FSM R. 102, 110 n.5 (Pon. 2010); Phillip v. Marianas Ins. Co., 12 FSM R. 464, 470 (Pon. 2004).

The court concludes that Higgins has had an adequate opportunity, in his filings and during the hearing, to show that there are material facts that would preclude the court’s reliance on the judicial immunity doctrine.  There are none.  The act (or omission) that Higgins complains of is a judicial act (or omission) wholly within the Pohnpei Supreme Court appellate division’s jurisdiction.  The defendant Pohnpei Supreme Court appellate division is therefore entitled to a judgment that, as a matter of law, it is immune from liability on Roman Higgins’s causes of action for money damages.

V.  Conclusion

Accordingly, the plaintiff, Roman Higgins, is denied summary judgment, and the defendant, Pohnpei Supreme Court appellate division, is granted summary judgment.  The clerk shall enter judgment in the defendant’s favor.  This case is closed.