KOSRAE STATE COURT TRIAL DIVISION
Cite as Kosrae v. Sigrah
10 FSM Intrm. 654 ( Kos. S. Ct. Tr. 2002)
 
[10 FSM Intrm. 654]
 
STATE OF KOSRAE,
Plaintiff,
 
vs.
 
STEVEN J. SIGRAH,
Defendant.
 
TRAFFIC CASE 212-01
 
ORDER DENYING MOTION TO DISQUALIFY JUDGE;
ORDER CONTINUING HEARING
 
Aliksa B. Aliksa
Associate Justice
 
Hearing: May 15, 2002
 
Decided: May 22, 2002
 
APPEARANCES:
 
For the Plaintiff:                           Edward Buckingham, Esq.
                                                      Assistant Attorney General
                                                      Office of the Kosrae Attorney General
                                                      P.O. Box 870
                                                      Tofol, Kosrae FM 96944
 
[10 FSM Intrm. 655]
 
For the Defendant:                      Paul Vignos, Esq.
                                                      Legislative Counsel
                                                      Kosrae Legislature
                                                      P.O. Box 187
                                                      Tofol, Kosrae FM 96944

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HEADNOTES

Courts ) Recusal
     A party is entitled to an unbiased judge, not to a judge of their choosing. A party is not permitted to use a motion to disqualify a judge as a means of forum shopping. Kosrae v. Sigrah, 10 FSM Intrm. 654, 657 (Kos. S. Ct. Tr. 2002).
 
Courts ) Recusal
     A justices power to recuse himself must be exercised concientiously, and should not be used merely to accommodate nervous litigants or counsel. Kosrae State Code,  6.1202 establishes the standards of conduct for Kosrae state justices, which includes the Code of Judicial Conduct of the American Bar Association. Kosrae v. Sigrah, 10 FSM Intrm. 654, 657 (Kos. S. Ct. Tr. 2002).
 
Courts ) Recusal
     The term "disputed evidentiary facts concerning the proceeding" does not apply to disputed legal issues in the case. Even where a judge may have had prior opinions regarding a legal issue, this alone does not disqualify a judge. Kosrae v. Sigrah, 10 FSM Intrm. 654, 657 (Kos. S. Ct. Tr. 2002).
 
Courts ) Recusal
     Even if a judge has commented on certain issues of law when he was a government employee, the judge is not disqualified, so long as he has not prejudged the particular case before him. Kosrae v. Sigrah, 10 FSM Intrm. 654, 657 (Kos. S. Ct. Tr. 2002).
 
Courts ) Recusal
     The Code of Judicial Conduct requires that a judge disqualify himself in a proceeding in which the judges impartiality might reasonably be questioned. Kosrae v. Sigrah, 10 FSM Intrm. 654, 658 (Kos. S. Ct. Tr. 2002).
 
Courts ) Recusal
     In the absence of a showing of any actual partiality or extrajudicial bias, a judge properly meets his obligation to hear the case. Kosrae v. Sigrah, 10 FSM Intrm. 654, 658-59 (Kos. S. Ct. Tr. 2002).
 
Courts ) Recusal
     A judges participation in a constitutional convention does not require his recusal for having personal knowledge of disputed evidentiary facts concerning a provision adopted in that convention because any knowledge gained during the convention is not a disputed evidentiary fact. Kosrae v. Sigrah, 10 FSM Intrm. 654, 659 (Kos. S. Ct. Tr. 2002).
 
Courts ) Recusal
     When the justice does not have personal knowledge of disputed evidentiary facts concerning the proceeding; when he has not prejudged any legal issues in this case; and when a disinterested reasonable observer, knowing all the facts and circumstances, would not have doubts regarding his impartiality in this case based upon his participation as a Constitutional Convention delegate nearly
 
[10 FSM Intrm. 656]
 
twenty years ago, the justices disqualification is not required under the Code of Judicial Conduct. Kosrae v. Sigrah, 10 FSM Intrm. 654, 659 (Kos. S. Ct. Tr. 2002).

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COURTS OPINION

ALIKSA B. ALIKSA, Associate Justice:

     On May 2, 2002, Defendant filed a Motion to Disqualify Judge. Plaintiff filed a Memorandum in Opposition to the Defendants Motion to Disqualify Judge on May 8, 2002. On May 14, 2002, Plaintiff filed a Supplement to its Memorandum in Opposition. The Defendants Motion to Disqualify Judge was heard on May 15, 2002. Edward Buckingham, Assistant Attorney General, appeared for the Plaintiff. Defendant was represented by Paul Vignos, Legislative Counsel.

     Based upon the information submitted to this Court, argument of counsels, the record in this matter, applicable law and in the interests of justice, the Defendants Motion to Disqualify Judge was denied. This Order sets forth the reasoning of the Court.

I. Defendants Motion to Disqualify Judge.

     Defendant seeks to have the presiding justice on this matter, Associate Justice Aliksa B. Aliska, disqualified from further proceedings in this case. The basis of Defendants Motion is that the Associate Justice has "personal knowledge of disputed evidentiary facts." This argument is based upon the participation of the Associate Justice in the 1st Kosrae State Constitutional Convention in 1983 ("ConCon"), during which the subject constitutional provision, Kosrae State Constitution, Article IV, Section 8, was adopted.

     Associate Justice Aliksa served as the Vice Chairman of the Committee on Government Structure and Functions in the 1st Kosrae Constitutional Convention, held nearly twenty years ago. In that capacity, Associate Justice Aliksa deliberated upon and signed a committee report, which states the purposes of the constitutional provisions pertaining to the Legislature. In particular, Associate Justice Aliksa signed SCR 1-83-9, which addresses the proposed constitutional amendment concerning legislative immunity from arrest. This Court takes judicial notice that this provision was later adopted by the voters of Kosrae State, and is now set forth at Kosrae State Constitution, Article IV, Section 8. Defendant claims that Associate Justice, through his service at the ConCon and on the Committee on Government Structure and Functions, has disputed evidentiary facts concerning the proceeding, and therefore disqualification is required under the Model Code of Judicial Conduct.

     The State has opposed the Motion on two grounds. First, the State argues that Associate Justices participation in the ConCon does not create personal bias. Second, the State argues that the Associate Justices participation in the ConCon does not create knowledge concerning disputed evidentiary facts concerning this proceeding. Associate Justices knowledge is legal in nature and not factual. The State argues that many of our leaders and other citizens have had the privilege of being part of the ConCon and that the Defendant now seeks to penalize the Court by preventing a Justice from deciding a constitutional issue because he had the honor of being a member of the ConCon.

     Acceptance of the Defendants argument would result in the potential disqualification of the Associate Justice from every case involving a constitutional issue thereby allowing "judge shopping." This Court takes judicial notice of the fact of the Chief Justices participation in the 2nd Kosrae Constitutional Convention in 1995 as a delegate. Therefore, acceptance of the Defendants argument

[10 FSM Intrm. 657]

would also result in the potential disqualification of the Chief Justice from every case involving a constitutional issue, based upon the Chief Justices participation in the 2nd Kosrae Constitutional Convention. Through these circumstances, a party could choose their judge by claiming application of certain constitutional provisions in their case. A party could also potentially disqualify both justices of Kosrae State Court through careful inclusion of a selected constitutional provision. A party is entitled to an unbiased judge, not to a judge of their choosing. A party is not permitted to use a motion to disqualify a judge as a means of forum shopping. 32 Am. Jur. 2d Federal Courts  47 (rev. ed. 1995).

     The power of a justice to recuse himself must be exercised concientiously, and should not be used merely to accommodate nervous litigants or counsel. Fu Zhou Fuyan Pelagic Fishery Co. v. Wang Shun Ren, 7 FSM Intrm. 601 (Pon. 1996). Kosrae State Code, Section 6.1202 establishes the standards of conduct for Kosrae State justices, which includes the Code of Judicial Conduct of the American Bar Association.

A. Personal Knowledge of Disputed Evidentiary Facts.

     The Code of Judicial Conduct requires a justice to disqualify himself in a proceeding where the judge has personal bias or knowledge of disputed evidentiary facts concerning the proceeding. Canon 3E(1)(a). Although there are no FSM cases which have interpreted this provision, there are decisions by United States courts which have. The term "disputed evidentiary facts concerning the proceeding" has been interpreted to mean facts involved in the actions or conduct of persons in a case. For example, a judge who conducted an unrecorded interview with a child in a divorce matter was found to be "personal knowledge of disputed evidentiary facts," requiring disqualification. 46 Am. Jur. 2d Judges  173 (rev. ed. 1994).

     In this case, the disputed evidentiary facts concerning the proceeding involve the Defendants alleged traffic violation, the issuance of the citation and its impact on the Defendants attendance at a Legislative proceeding. The Associate Justice does not have any personal knowledge regarding the Defendants alleged traffic violation, the issuance of the citation and its impact, if any, upon the Defendants attendance at a Legislative proceeding. The Associate Justice does not have personal knowledge of these evidentiary facts.

     The term "disputed evidentiary facts concerning the proceeding" does not apply to the legal issue presented in this case. It is true that there are disputed interpretations of the subject Constitutional provision between the Plaintiff and the Defendant. However, it is Courts constitutional mandate to interpret the provisions of the Constitution, based upon the evidence that is presented at trial, and based upon the Constitution, applicable law and legal sources.

     Even where a judge may have had prior opinions regarding a legal issue, this alone does not disqualify a judge. For example, where a judge had previously been an attorney general, and had given an opinion regarding a legal point in the litigation, the judge is not required to disqualify himself. 46 Am. Jur. 2d Judges  188 (rev. ed. 1994). Even if a judge has commented on certain issues of law when he was a government employee, the judge is not disqualified, so long as he has not prejudged the particular case before him. 32 Am. Jur. 2d Federal Courts  141 (rev. ed. 1995). In circumstances where prior to joining the bench, a judge has stated strong beliefs regarding a legal issue, that fact alone does not indicate that judge has prejudged the legal question before him. Id.  134. In this case, the Associate Justice has not given any legal opinions regarding the Constitutional provision at issue. The Associate Justice has not prejudged the legal question before him. The Associate Justice has not stated any strong beliefs regarding the subject constitutional issue prior to joining the judiciary. Indeed, the Associate Justice does not recall any testimony or discussion held regarding the subject constitutional provision, during the ConCon, which took place nearly twenty years ago.

[10 FSM Intrm. 658]

B. Judges Impartiality Might Reasonably Be Questioned.

     The Code of Judicial Conduct requires that a judge disqualify himself in a proceeding in which the judges impartiality might reasonably be questioned. Canon 3.E(1) (2000 ed.). The FSM Supreme Court has addressed the interpretation and application of this provision. A review of these cases is instructive.

     In the case of Extradition of Jano, 6 FSM Intrm 93 (App. 1993), the defendant sought to disqualify Chief Justice Amaraich from the proceeding. The basis of the motion was that the Chief Justice was a member of the body that negotiated the Compact of Free Association with the United States and related Extradition Agreement. The Chief Justice, in his former capacity, actually signed those documents on behalf of this Nation.

     The Chief Justice was not disqualified from presiding over an extradition proceeding by the fact of his participation in those negotiations, which took place more than ten years before his judicial appointment. The FSM Supreme Court, Appellate Division, affirmed the trial justices conclusion that the impartiality of Chief Justice Amaraich could not be reasonable questioned due to his participation in those negotiations. The Appellate Court held that the participation of the Chief Justice as a member of a legally constituted body that negotiated the Compact is not enough to disqualify the Chief Justice. The Jano Court required a showing of partiality or actual bias for disqualification.

     In the case of Fu Zhou Fuyan Fishery Co. v. Wang Shun Ren, 7 FSM Intrm. 601 (Pon. 1996) Defendant Ting Hong sought to disqualify Chief Justice Amaraich from presiding over the case due to the Chief Justices former capacity as Chairman of the Micronesia Maritime Authority ("MMA"). Chief Justice Amaraich, as MMA Chair, was a signatory to a March 1991 fishing agreement with one of the defendants, Ting Hong. In this case, the interpretation of a 1994 agreement between MMA and Ting Hong was at issue. The 1994 agreement was nearly identical to the 1991 agreement. The Chief Justice denied the motion to disqualify, on the basis that in 1995, which is when the facts of this case arose, the Chief Justice was no longer the Chairman of the MMA. Ting Hong claimed that it may call the Chief Justice as a witness regarding the 1991 agreement. However, the Chief Justice rejected that argument, stating that the terms of the 1994 agreement control the issue, not the 1991 agreement. Chief Justice Amaraich concluded that based upon the facts in this case, a disinterested reasonable observer, knowing all the circumstances, would not have doubts regarding the Chief Justices impartiality in this case.

     In this case, the Associate Justice, as a ConCon delegate, was a member of a legally constituted body and a signatory to a committee report supporting the proposed constitutional amendment. When the facts to this case arose in 2001, the Associate Justice was no longer a ConCon delegate. While the Defendant may have called the Associate Justice as a witness, many other ConCon delegates are available to testify.

     Defendant relied upon the case of Etscheit v. Santos, 5 FSM Intrm. 35 (App. 1991) as support for his position in requesting disqualification of the Associate Justice in this case. Defendants reliance upon Etscheit v. Santos is misplaced. In that case, the justice subject to the disqualification proceeding had represented one of the parties earlier in litigation as a trial counselor and the case before the justice involved his former client, and that same piece of land now in dispute. Here, in this case, Associate Justice has not represented any other person in litigation, and has not been involved in any other litigation involving interpretation of the Kosrea State Constitution, Article IV, Section 8. Thus, the courts decision in Etscheit v. Santos is not on point here and is not applicable.

      In the absence of a showing of any actual partiality or extrajudicial bias, a judge properly meets

[10 FSM Intrm. 659]

his obligation to hear the case. Hartman v. Bank of Guam, 10 FSM Intrm. 89 (App. 2001). In this case, the Defendant has not shown any actual partiality or extrajudicial bias by Associate Justice Aliksa.

     Based upon the facts and the application of standard discussed above, this Court concludes that:

a. The Associate Justice does not have personal knowledge of disputed evidentiary facts concerning this proceeding. Any knowledge gained during the ConCon are not "disputed evidentiary facts concerning this proceeding"; and

b. The Associate Justice has not prejudged any legal issues in this case, including the interpretation of the Kosrae State Constitution, Article IV, Section 8; and

c. That a disinterested reasonable observer, knowing all the facts and circumstances, would not have doubts regarding Associate Justice Aliksas impartiality in this case, based upon his participation as a ConCon delegate nearly twenty years ago; and

d. Therefore, disqualification of the Associate Justice is not required under the Code of Judicial Conduct.

Accordingly, the Defendants Motion to Disqualify Judge is therefore denied.

II. Pending Motions.

     The Defendants Motion to Suppress, Defendants Motion to Dismiss and Plaintiffs Motion to Remove Defense Counsel are all continued pending further setting by this Court. Defendant shall notify this Court in writing as soon as possible upon Congressman Jacob Nenas availability to appear as a witness in a hearing before this Court.

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