FSM SUPREME COURT TRIAL DIVISION
CIVIL ACTION NO. 2017-033

HARI TIMSINA, INDRA GHIMIRE, BISHNU
TAMANG, and KHADGA BAHADUR THAPA,
Petitioners,

vs.

FEDERATED STATES OF MICRONESIA and
JOHNNY SANTOS, Chief, FSM National Police,
Respondents.
_____________________________________________

ORDER DENYING RESPONDENTS’ MOTION FOR RECONSIDERATION

Beauleen Carl-Worswick
Associate Justice

Hearing:  November 8, 2018
Decided:  December 2, 2019

APPEARANCES:

For the Petitioners:	Marstella E. Jack, Esq.
P.O. Box 2210
Kolonia, Pohnpei FM 96941

For the Respondents:	Craig D. Rffner, Esq.
Abigail J. Avoryie, Esq.
Assistant Attorneys General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

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HEADNOTES

Appellate Review - Decisions Reviewable
Generally, an appeal from a trial judge’s ruling is to be taken only after completion of all trial proceedings, upon issuance of a final judgment.  Timsina v. FSM, 22 FSM R. 383, 386 (Pon. 2019).

Civil Procedure - New Trial; Habeas Corpus; Judgments - Alter or Amend Judgment; Judgments - Relief from Judgment
Regardless of whether the issued writ of habeas corpus is a final order, the court may entertain FSM Civil Rule 59 and 60 motions while the matter is subject to an appeal and, if it determines such motion(s) shall prevail, it must so indicate in the record for the appellate court’s consideration.  Timsina v. FSM, 22 FSM R. 383, 386 (Pon. 2019).

Judgments - Relief from Judgment - Time Limits
The time for making a motion for relief from judgment continues to run even while the case is on appeal.  Timsina v. FSM, 22 FSM R. 383, 386 (Pon. 2019).

Civil Procedure - Motions - For Reconsideration; Contempt - Civil
During an appeal, the respondent’s pending motion for reconsideration and petitioners’ pending motion for an order to show cause why the respondent should not be held in contempt, continue to be within the trial court’s jurisdiction.  Timsina v. FSM, 22 FSM R. 383, 386 (Pon. 2019).

Appellate Review - Decisions Reviewable
The appellate court is the appropriate court to determine whether an appeal is proper.  Timsina v. FSM, 22 FSM R. 383, 386 (Pon. 2019).

Constitutional Law - Case or Dispute - Mootness
Article XI, § 6 of the Constitution restricts the court’s jurisdiction to only actual "cases" or "disputes."  A case must be one appropriate for judicial determination, that is, a justiciable controversy, as distinguished from a difference or dispute of a hypothetical or abstract character, or one that is academic or moot.  Timsina v. FSM, 22 FSM R. 383, 386-87 (Pon. 2019).

Constitutional Law - Case or Dispute - Mootness
The court is precluded from making policy pronouncements on the basis of hypothetical or academic issues.  If the court finds that any relief it could grant would be ineffectual, it must treat the case as moot.  Timsina v. FSM, 22 FSM R. 383, 387 (Pon. 2019).

Constitutional Law - Case or Dispute - Mootness
A well-established exception to the mootness doctrine exists when an otherwise moot case may have a continuing effect on future events, including future litigation.  Timsina v. FSM, 22 FSM R. 383, 387 (Pon. 2019).

Contempt - Civil
The court will not consider a motion to show cause why a party should be held in contempt when the movants’ counsel has withdrawn it.  Timsina v. FSM, 22 FSM R. 383, 387 (Pon. 2019).

Civil Procedure - Motions - Unopposed
Although the absence of opposition is generally deemed consent, a court still needs good grounds before it can grant an unopposed motion.  Timsina v. FSM, 22 FSM R. 383, 387 (Pon. 2019).

Civil Procedure - Motions - For Reconsideration
Motions for reconsideration must be narrowly construed and strictly applied in order to discourage litigants from making repetitive arguments on the same issues that have been thoroughly considered by the court.  Timsina v. FSM, 22 FSM R. 383, 388 (Pon. 2019).

Civil Procedure - Motions - For Reconsideration; Habeas Corpus
The respondents’ motion for reconsideration will be denied when there is no compelling new legal authority on which to vacate the court’s grant of petitioners’ motion for a writ of habeas corpus, and when there has been no executive or legislative action to address the issue of refugees that may arrive in the FSM, because the court retains the authority, on a case-by-case basis, to address alleged FSM Constitutional violations with respect to the government’s treatment of refugees.  Timsina v. FSM, 22 FSM R. 383, 388 (Pon. 2019).

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COURT’S OPINION

BEAULEEN CARL-WORSWICK, Associate Justice:

I.  Background

On July 21, 2017, the court issued a Writ of Habeas Corpus in favor of petitioners.  On August 1, 2017, petitioners filed a Motion for an Order to Show Cause why Respondents Federated States of Micronesia and Johnny Santos (collectively, "the Government") should not be held in contempt of court for failing to comply with the terms of the writ of habeas corpus.  The Government filed its opposition thereto on August 10, 2017.  Concurrently filed with the Government’s opposition is a Motion for Reconsideration and a Motion to Stay proceedings pending the disposition of the Motion for Reconsideration.  The Motion for Reconsideration remains unopposed.

On August 21, 2017, the Government filed a Notice of Appeal in this matter, which was docketed as P9-2017.  On October 27, 2017, the Chief Clerk of Court issued a Record Ready Notice and Notice of Briefing Scheduling in Appeal Case No. P9-2017, notifying the Government that it had forty (40) days, or no later than December 14, 2017, to file its opening brief and appendices.  On November 8, 2017, the Government filed a Notice Re: Status of Appeal; Motion for Status Conference.  In that motion, the Government expressed concern that because it is unclear if the court’s Writ of Habeas Corpus is a final order, filing a notice of appeal within forty-two (42) days pursuant to FSM Appellate Rule 4, instead of thirty (30) days as authorized by 6 F.S.M.C. 1510, may have precluded it from timely filing an appeal of the July 21, 2017 Order at issue here.  It requested the court to schedule a status conference so that the court may confer with the parties about the disposition of the various motions pending before the court so that it is clear that a final order has been issued in this matter.

On December 15, 2017 and again on February 2, 2018, the court issued orders to brief the court on the following issues: 1) whether a Petition for a Writ of Habeas Corpus is immediately appealable despite the existence of pending post-writ motions, and 2) whether this matter is now moot in light of the fact that the petitioners no longer remain within the jurisdiction of the Federated States of Micronesia.  The Government filed its brief on those issues on February 15, 2018, which remains unopposed.

On November 8, 2018 the court held a hearing on all pending motions.  FSM Assistant Attorney General Abigail Avoryie appeared on behalf of the Government, and petitioners’ counsel Marstella Jack appeared on their behalf.  Ms. Jack stated that she had only been in contact with one of the petitioners, and that she could not accurately speak to the interests of all of them or continue to represent them now that they have been resettled outside of the FSM.  Given the circumstances, Ms. Jack made a motion to withdraw the petitioners’ Motion for an Order to Show Cause why respondents should not be held in contempt.  As to the Motion for Reconsideration filed by the Government, Ms. Jack stated that she had not filed a written opposition, but that she opposed it on the grounds (1) that it was not timely filed, and (2) that she believed the court made the right decision, and that the court’s July 21, 2017 order provided guidance for the treatment of asylum seekers and refugees where the executive and legislative branches have not acted in that arena.

II.  Analysis

i.  Whether a Petition for a Writ of Habeas Corpus is Immediately Appealable Despite Pending Post-Writ Motions

On February 15, 2018, the Government filed its brief on the issue of whether a petition for a writ of habeas corpus is immediately appealable despite the existence of post-writ motions.  No reply was filed by the petitioners.

In its brief, the Government argues that the issue of whether a petition for a writ of habeas corpus is immediately appealable, despite the existence of post-writ motions, is a determination that should be made by the appellate division, not the trial court.

Generally, an appeal from a ruling of a trial judge is to be taken only after completion of all trial proceedings, upon issuance of a final judgment.  In re Main, 4 FSM R. 255, 257 (App. 1990).  Regardless of whether the writ issued is a final order, the court may entertain FSM Civil Rule 59 and 60 motions while the matter is subject to an appeal and, if it determines such motion(s) shall prevail, it shall so indicate in the record for consideration by the appellate court.  The court recognizes that the time for making a motion for relief from judgment continues to run even while the case is on appeal.  Walter v. Meippen, 7 FSM R. 515, 518 (Chk. 1996).  Moreover, the writ itself contemplates continued trial court supervision of the imposed conditions set forth therein.

Therefore, the court recognizes the Government’s pending motion for reconsideration and petitioners’ then pending motion for an order to show cause why the Government should not be held in contempt, continued to be within this court’s jurisdiction.  The resolution reached infra regarding respondents’ motion for reconsideration extinguishes all of the pending matters before the trial court, and the court deems the July 21, 2017 Order final.

The appellate court is the appropriate court to determine whether the current appeal P9-2017 is proper.  Accordingly, this court will defer making any decision regarding whether it was proper for the Government to file an appeal to preserve its appellate jurisdiction within thirty days after issuance of the writ of habeas corpus1 despite post-writ motions having been filed by both parties.

ii.  Whether this Matter is Moot in Light of the Fact that the Petitioners are no Longer Present in the Federated States of Micronesia

Article XI, Section 6 of the FSM Constitution restricts the Court’s jurisdiction to cases involving only actual "cases" or "disputes."  A case must be one appropriate for judicial determination, that is, a justiciable controversy, as distinguished from a difference or dispute of a hypothetical or abstract character, or one that is academic or moot.  The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests.  Urusemal v. Capelle, 12 FSM R. 577, 584 (App. 2004); Fritz v. National Election Dir., 11 FSM R. 442, 444 (App. 2003); FSM v. Louis, 9 FSM R. 474, 481 (App. 2000); Ueda v. Chuuk State Election Comm’n, 16 FSM R. 395, 398 (Chk. 2009); In re Sproat, 2 FSM R 1, 5 (Pon. 1985).  The court is thereby precluded from making policy pronouncements on the basis of hypothetical or academic issues.  FSM Dev. Bank v. Yinug, 11 FSM R. 405, 409-10 (App. 2003).  If the court finds that any relief it could grant would be ineffectual, it must treat the case as moot.  Louis, 9 FSM R. at 482.

However, a well-established exception to the mootness doctrine exists where there is a situation in which an otherwise moot case may have a continuing effect on future events, including future litigation.  FSM Dev. Bank v. Adams, 12 FSM R. 456, 460 (App. 2004) (when the court’s rulings will have a continuing effect on future events and future litigation and will offer guidance to future litigants, which should have the positive effect of eliminating or lessening unwarranted attempts at interlocutory appeals, thus conserving judicial resources, the court will review the matter); FSM v. Udot Municipality, 12 FSM R. 29, 49 (App. 2003); Yinug, 11 FSM R. at 410 n.5; McIlrath v. Amaraich, 11 FSM R. 502, 506 (App. 2003); Louis, 9 FSM R. at 483.

The court acknowledges that the issues presented in this matter are capable, if not likely, to arise again; thus, the exception to the mootness doctrine applies in this instance and this court therefore retains jurisdiction to decide any pending motions.  Udot Municipality v. FSM , 10 FSM R. 354, 358 (Chk. 2001); Udot Municipality v. FSM, 9 FSM R. 560,562 (Chk. 2000).

iii.  Petitioners’ Motion to Show Cause

The court will not consider this motion, as petitioners’ previous counsel Ms. Jack made a motion to withdraw it at the hearing on November 8, 2018.  Also, any issues related to the Government’s compliance with the writ were resolved by the departure from the FSM of the petitioners.

iv.  Respondents’ Motion for Reconsideration

The Government expresses concern about whether the writ of habeas corpus was a "final" order for purposes of appeal pursuant to 6 F.S.M.C. 1510 where there are pending motions to show cause and to reconsider the court’s granting of the writ.  The Government appealed the Order issuing the writ within the lesser thirty (30) days as provided by 6 F.S.M.C. 1510 as opposed to the forty-two (42) days provided by FSM Appellate Rule 4 so the court need not address that issue and, as stated supra, will defer any decision on the propriety of an appeal at this stage to the appellate division.  Instead, the court will consider the merits of the unopposed Motion for Reconsideration, filed August 10, 2017.

Although the absence of opposition is generally deemed consent, a court still needs good grounds before it can grant an unopposed motion.  FSM Dev. Bank v. Paul, 18 FSM R. 149, 150 (Pon. 2012).  In its motion, the Government asks that the court vacate the court’s July 21, 2017 Order and dismiss this matter or, in the alternative modify that order to reflect the changed circumstances in this case.

In support of its motion to vacate the writ and dismiss the case, the Government contends that, in issuing the Order, the court usurped powers exclusively reserved for the executive and congressional branches of government under the Constitution, namely the President’s exclusive power to engage in diplomatic relations and enforce laws as well as Congress’s exclusive power to regulate immigration.  The Government argues that, consistent with the court’s previous holding regarding the disposition of political questions, the court should reconsider and vacate its July 21, 2017 Order, issue an order denying the petition for writ of habeas corpus, and dismiss this matter.

Motions for reconsideration must be narrowly construed and strictly applied in order to discourage litigants from making repetitive arguments on the same issues that have been thoroughly considered by the court.  Ehsa v. FSM Dev. Bank, 19 FSM R. 421, 423, 424 (Pon. 2014).  The court finds no compelling new legal authority on which to vacate its Order that granted petitioners’ motion for a writ of habeas corpus.  Where there has been no executive or legislative action to address the issue of refugees that may arrive in the FSM, the court retains the authority to address alleged violations of the FSM Constitution with respect to the Government’s treatment of refugees on a case by case basis.

Accordingly, respondents’ Motion for Reconsideration is hereby denied.

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