KOSRAE STATE COURT TRIAL DIVISION
Cite as Shrew v. Kosrae
10 FSM Intrm. 533 ( Kos. S. Ct. Tr. 2002)
 
[10 FSM Intrm. 533]
 
TAKASY SHREW,
Plaintiff,
 
vs.
 
STATE OF KOSRAE,
Defendant.
 
CIVIL ACTION NO. 8-01
 
ORDER OF RECUSAL; ORDER OF REASSIGNMENT
 
Yosiwo P. George
Chief Justice
 
Decided: February 28, 2002
 
[10 FSM Intrm. 534]
 
APPEARANCES:
 
For the Plaintiff:                        Lyndon L. Cornelius, trial counselor
                                                   Micronesian Legal Services Corporation
                                                   P.O. Box 38
                                                   Lelu, Kosrae FM 96944
 
For the Defendant:                  April Dawn M. Skilling, Esq.
                                                  Assistant Attorney General
                                                  Office of the Kosrae Attorney General
                                                  P.O. Box 870
                                                  Lelu, Kosrae FM 96944
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HEADNOTES
 
Civil Procedure ) Motions
Failure to file a memorandum in opposition to a motion is deemed a consent to the motion, but the motion must have proper grounds before it can be granted. Shrew v. Kosrae, 10 FSM Intrm. 533, 534 (Kos. S. Ct. Tr. 2002).
 
Courts ) Recusal
A motion to recuse may be considered untimely when it is brought many weeks after the deadline for pretrial motions and where the movant has known for months which justice would be presiding over the trial. Shrew v. Kosrae, 10 FSM Intrm. 533, 535 (Kos. S. Ct. Tr. 2002).
 
Courts ) Recusal
A justice is required to disqualify himself in a proceeding in which a person within the third degree of relationship to the justice is to the justice's knowledge likely to be a material witness in the proceeding. Shrew v. Kosrae, 10 FSM Intrm. 533, 535 (Kos. S. Ct. Tr. 2002).
 
Courts ) Recusal
When the justice's brother has been named as a witness for trial the justice, pursuant to Canon 3.E(l)(d)(iv), is now disqualified from the proceeding. Shrew v. Kosrae, 10 FSM Intrm. 533, 535 (Kos. S. Ct. Tr. 2002).

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COURT'S OPINION

YOSIWO P. GEORGE, Chief Justice:

     On February 4, 2002, Defendant filed a Motion to Recuse Chief Justice Yosiwo P. George from further handling of this matter. The Plaintiff did not file a timely response. Failure to file a memorandum in opposition to a motion is deemed a consent to the motion. Actouka v. Etpison, 1 FSM Intrm. 275 (Pon. 1983). However, the Defendant's Motion must have proper grounds before it can be granted. Bank of Guam v. Nukuto, 6 FSM Intrm. 615 (Chk. 1994).

     Defendant presents two grounds for its Motion to Recuse. First, Defendant argues that the Chief Justice served as Governor of Kosrae State during the time when the Plaintiff's "head teacher"

[10 FSM Intrm. 535]

assignment was initially made, in 1988. Defendant has supplemented its Response to Plaintiff's First Set of Interrogatories by naming the Chief Justice as a witness in this case. Defendant has also supplemented its Response to Plaintiff's First Set of Interrogatories by naming Singkitchy R. George, the Director of Commerce and Industry, as another witness in this case. Director George served as the Director of Education in 1988, and is the brother of the Chief Justice Yosiwo P. George.

     The Court notes that this is the second Motion to Recuse filed in this matter. In the first Motion to Recuse, filed by the Plaintiff on April 24, 2001, the Defendant opposed the Plaintiff's Motion to Recuse the Chief Justice. This second Motion to Recuse, filed by the Defendant, is supported by the Defendant's naming of two new witnesses, nearly four months after the Defendant filed its Pre-Trial Brief on November 6, 2001.

     A motion to recuse may be considered untimely when it is brought many weeks after the deadline for pretrial motions and where the movant has known for months which justice would be presiding over the trial. FSM v. Ting Hong Oceanic Enterprises, 7 FSM Intrm. 644 (Pon. 1996). Here the Defendant has brought its motion to recuse nearly five months after the deadline for pretrial motions and more than one year after the Defendant had known that Chief Justice Yosiwo P. George would be presiding over this matter. Under the Court's decision in Ting Hong Oceanic Enterprises, this Court may consider the Defendant's Motion to Recuse as untimely and deny it on those grounds. However, in consideration of issues pertaining to the "head teacher" assignment presented in this case, and in other cases involving similar issues, justice requires that this Court consider the Defendant's Motion to Recuse on its merits.

     The Code of Judicial Conduct specifies the grounds for disqualification of a justice in Canon 3.E (2000 ed.). Canon 3.E(l)(d)(iv) requires a justice to disqualify himself in a proceeding in which a person within the third degree of relationship to the justice is to the justice's knowledge likely to be a material witness in the proceeding. Director Singkitchy P. George, has been named by the Defendant as a witness for trial of this matter. Director George is a brother and within the third degree of relationship to the Chief Justice. Therefore, pursuant to Canon 3.E(l)(d)(iv), Chief Justice Yosiwo P. George is now disqualified from this proceeding.

     Chief Justice Yosiwo P. George is recused from this proceeding. This matter is now reassigned to Associate Justice Aliksa B. Aliksa.

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