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THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as In re Jim Raitoun,
1 FSM Intrm. 561 (App. 1984)

[1 FSM Intrm. 561]

APPELLATE DIVISION

IN THE MATTER OF THE APPLICATION OF
JIM RAITOUN

CASE NO. T3-1984

FOR A WRIT OF MANDAMUS AND THE
ALTERNATIVE WRIT OF PROHIBITION

OPINION AND ORDER
DENYING STAY

Before Edward C. King
Chief Justice
September 28, 1984
Ponape, Caroline Islands 96941

APPEARANCES:
     For the Petitioner:               Michael K. Powell
                                                   Public Defender
                                                   State of Truk
                                                   Truk, Caroline Is. 96942

     For the State of Truk:          David I. Brown
                                                   FSM Asst. Attorney General
                                                   State of Truk
                                                   Truk, Caroline Is. 96942
[1 FSM Intrm. 562]

EDWARD C. KING, Chief Justice,
     Petitioner Jim Raitoun has requested stay of his trial  for murder so that his petition or writ of mandamus may be considered by our Appellate Division before the trial which is scheduled to begin before the Trial Division on October 1 in Truk.  Having read the petition and conducted a telephone hearing in which counsel for the Petitioner and for the government were given an opportunity to express their contentions, I summarily denied the request for stay.

     This opinion and order is written to confirm denial of  the request for stay and to state briefly my reasoning.

     The writ of mandamus is an extraordinary remedy, the object of which is not to cure a mere legal error or to serve as a substitute for appeal, but to require an official to carry out a clear non-discretionary duty.

     Only where special circumstances render the matter rare and exceptional should the Appellate Division issue a writ to

[1 FSM Intrm. 563]

alter the conduct of a trial judge before the trial court has completed proceedings and reached a final decision.

     A stay is normally granted only where the court is persuaded as to the probability of ultimate success of the movant.  Thus, in determining whether to grant this stay, I must consider whether it is more likely than not that the petitioner would be able to persuade a full appellate panel as to the soundness of his legal position and that there are such special circumstances that the trial court should be mandatedto modify its conduct of the trial.

     I do not find any substantial likelihood that the petitioner will prevail with the argument that he asserts in his application.  Petitioner's basic contention is that the trial court is required by 5 F.S.M.C. 514 to appoint two "special judges" to sit with a Justice of this Court in presiding at the trial.

     That statutory provision provides as follows:

(1)     The High Commissioner shall from time to time appoint for definite specified terms two or more special judges of the High Court for each administration District: to sit in the Trial Division of the Court in the trial of murder cases.

(2)     When a murder case is assigned for trial, the Judge of the High Court assigned to preside at the trial shall assign two of the special Judges appointed for the District in which the trial is to take place to sit with him in the trial thereof.  The special Judges shall participate with the presiding Judge in deciding, by majority vote, all questions of fact and sentence, but the presiding Judge alone shall decide all questions of law involved in the trial and determination of the case.  If the trial is by jury, however, the special Judges

[1 FSM Intrm. 564]

shall participate only as assessors and in deciding on the question of sentence.

     Petitioner points to Article XV, Section 1 of the Constitution, which states:  "A statute of the Trust Territory continues in effect except to the extent it is inconsistent with this Constitution, or is amended or repealed."  He argues that 5 F.S.M.C. 514 has not been repealed.

     That argument can be readily accepted, but does not yield a conclusion that the statute pertains to FSM Supreme Court procedures.

     Title 5 of the FSM Code, including Section 514, is in essence the judiciary act of the Trust Territory High Court.  The statute was enacted when the Trust Territory High Court had general original jurisdiction over criminal cases within the area that is now the Federated States of Micronesia.  The act was not deleted in the codification process and still remains part of the body of national law in the Federated States of Micronesia.  This is so because at the time of codification, the Trust Territory High Court still had extensive original jurisdiction here.  Even now, the State of Kosrae has not established its court system and the Trust Territory High Court retains some original jurisdiction there.

     However the Judiciary Act of 1979, in Title 4 of the FSM Code, and the Judiciary Article, Article XI, of the Constitution of the Federated States of Micronesia govern the structure and powers of the FSM Supreme Court.  They make no

[1 FSM Intrm. 565]

provision for appointment of special judges to sit with a Justice of this Court.

     Thus it appears that 5 F.S.M.C. 514 has no application to proceedings before the Trial Division of the FSM Supreme Court and I see no likelihood of the defendant's argument prevailing before this Court's Appellate Division.

     For this reason, the request for a stay is denied.

     My order here is not a final determination of the mandamus and prohibition proceedings and is issued by me as a single judge under Rule 27(c) of our Rules of Appellate Procedure.  However, unless notice to the contrary is received from counsel for the petitioner, I will assume that counsel is not requesting that further steps be taken in response to his client's petition at this time since the defendant would have the opportunity to raise this and any other questions relating to his trial on appeal.

     So ordered the 28th day of September, 1984.

/s/ Edward C. King
Edward C. King
Chief Justice
Supreme Court of the
Federated States of
Micronesia

     Entered this 2nd day of October, 1984

/s/ Emeliana J.  Musrasrik
Chief Clerk of Court
Supreme Court of the
Federated States of
Micronesia