KOSRAE STATE COURT TRIAL DIVISION

Cite as Jackson v. Kosrae State Election Comm'n ,11 FSM Intrm. 133 ( Kos. S. Ct. Tr. 2002)

[11 FSM Intrm. 133]

GERSON JACKSON,

Plaintiff,

vs.

KOSRAE STATE ELECTION COMMISSION,

Defendant.

CIVIL ACTION NO. 76-02

ORDERS

Aliksa B. Aliksa
Associate Justice

Decided: September 10, 2002

APPEARANCES:

For the Plaintiff:              Andrea Hillyer, Esq.
                                       P.O. Drawer D
                                       Kolonia, Pohnpei FM 96941

                                                 Jon M. Van Dyke, Esq.
                                        2515 Dole St.
                                        Honolulu, Hawaii 96822

For the Defendants:        Edward Buckingham, Esq.
                                        Assistant Attorney General
                                        Office of the Kosrae Attorney General
                                        ┬áP.O. Box 870
                                        Lelu, 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 judge shopping. Jackson v. Kosrae State Election Comm'n, 11 FSM Intrm. 133, 135-36 (Kos. S. Ct. Tr. 2002).

Courts – Recusal

The power of a justice to recuse himself must be exercised conscientiously, and should not be used merely to accommodate nervous litigants or counsel. Jackson v. Kosrae State Election Comm'n, 11 FSM Intrm. 133, 136 (Kos. S. Ct. Tr. 2002).

[11 FSM Intrm. 134]

Courts – Recusal

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. 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. The term does not apply to the legal issues presented in the case. Jackson v. Kosrae State Election Comm'n, 11 FSM Intrm. 133, 136 (Kos. S. Ct. Tr. 2002).

Courts – Recusal

The Code of Judicial Conduct requires that a judge disqualify himself in a proceeding in which the judge's impartiality must reasonably be questioned. Jackson v. Kosrae State Election Comm'n, 11 FSM Intrm. 133, 136 (Kos. S. Ct. Tr. 2002).

Courts – Recusal

Even when a judge has had prior opinions regarding a legal issue, this alone does not disqualify a judge, and 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. Jackson v. Kosrae State Election Comm'n, 11 FSM Intrm. 133, 137 (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. Jackson v. Kosrae State Election Comm'n, 11 FSM Intrm. 133, 137 (Kos. S. Ct. Tr. 2002).

Courts – Recusal

When a justice does not have personal knowledge of disputed evidentiary facts concerning a case involving the interpretation of constitutional provisions because any knowledge gained during a constitutional convention is not personal knowledge of disputed evidentiary facts concerning the case, and when the justice has not prejudged any legal issues in the case, a disinterested reasonable observer, knowing all the facts and circumstances, would not have doubts regarding the justice's impartiality in the case, based upon his participation as a constitutional convention delegate. The justice's disqualification is therefore not required. Jackson v. Kosrae State Election Comm'n, 11 FSM Intrm. 133, 137 (Kos. S. Ct. Tr. 2002).

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COURT'S OPINION

ALIKSA B. ALIKSA, Associate Justice:

This matter was assigned to me. The following documents have been filed by the parties to date. Plaintiff filed a Complaint for Declaratory and Injunctive Relief, a Motion for Expedited Procedure, and a Motion to Recuse Justices George and Aliksa on August 29, 2002. Jon Van Dyke filed a Petition of Nonresident Attorney to Appear in a Special Case on September 2, 2002. Also on September 2, 2002, Plaintiff filed Motion to Admit Counsel Pro Hac Vice and an Affidavit of Gerson Jackson. On September 4, 2002, Defendant filed a Notice of Non-Opposition to Motion for Leave of Entry to Appear and Motion to Recuse Justices. This Order addresses all pending Motions.

[11 FSM Intrm. 135]

1. Petition of Nonresident Attorney to Appear in a Special Case
Motion to Admit Counsel Pro Hac Vice.

Jon Van Dyke has petitioned this Court to appear in this matter on behalf of the Plaintiff. The Defendant does not oppose the Petition. The Court has reviewed Mr. Dyke's Petition, Motion and supporting documentation and finds that the Petition, Motion and documentation comply with the requirements of GCO 2001-5. Accordingly, the Petition of Nonresident Attorney to Appear in a Special Case is granted. Jon M. Van Dyke shall appear in this matter as counsel for the Plaintiff and shall work with local counsel Andrea Hillyer. All papers to be served upon the Plaintiff shall be served upon Andrea Hillyer at her office in Pohnpei.

2. Motion to Recuse Justices George and Aliksa

The Plaintiff filed a Motion to Recuse Justices George and Aliksa, on the basis that both Justices served as delegates to the Second Kosrae State Constitutional Convention in 1995, where proposed amendments to the subject constitutional provisions were deliberated. The Defendant does not oppose the Motion to Recuse. This matter was assigned to Associate Justice Aliksa B. Aliksa, and accordingly, the ruling by the Court on this Motion applies to Justice Aliksa only.

Plaintiff seeks to have the presiding justice on this matter, Associate justice Aliksa B. Aliksa, disqualified from further proceedings in this case. The basis of Plaintiff's Motion is that the Associate Justice has "personal knowledge of disputed evidentiary facts" and that he could be a material witness" in this case. This argument is based upon the participation of the Associate Justice in the 2nd Kosrae State Constitutional Convention in 1995 ("ConCon"), during which the subject constitutional provisions were proposed for amendment. Plaintiff claims that Associate Justice, through his service at the ConCon has knowledge of disputed evidentiary facts concerning the proceeding, and therefore disqualification is required under the Model Code of Judicial Conduct.

This precise issue has been recently raised before this Court. In the case of Kosrae State v. Steven J. Sigrah, Traffic 212-01, the Defendant in that case moved for the recusal of the presiding Justice Aliksa, on the grounds that he was a delegate to the 1st Kosrae State Constitutional Convention in 1983, during which the subject constitutional provision was proposed for amendment. In that case, the Plaintiff State opposed the Defendant's Motion. In that case, the State argued that Associate Justice's participation in the ConCon does not create personal bias, and does not create knowledge concerning disputed evidentiary facts concerning this proceeding. In opposite to the State's arguments in the case of Kosrae State v. Steven J. Sigrah, the State in this case does not oppose the Plaintiff's Motion for Recusal. The Court has carefully reviewed its decision on the Motion to Disqualify Judge in Kosrae State v. Steven J. Sigrah and finds the reasoning to be sound and applicable to this matter. Kosrae v. Sigrah, 10 FSM Intrm. 650 (Kos. S. Ct. Tr. 2002).

Acceptance of the Plaintiff's argument would result in the potential disqualification of the Associate Justice from every case filed in this Court involving a constitutional issue) thereby allowing "judge shopping." This Court takes judicial notice of the fact of the Chief Justice George's participation in the 2nd Kosrae Constitutional Convention in 1995 as a delegate. Therefore, acceptance of the Plaintiff's argument would also result in the potential disqualification of the Chief Justice from every case involving a constitutional issue, based upon the Chief Justice's 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

[11 FSM Intrm. 136]

permitted to use a motion to disqualify a judge as a means of judge shopping. See 32 Am. Jur. 2d Federal Courts § 47 (rev. ed. 1995). The power of a justice to recuse himself must be exercised conscientiously, 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). 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. See 46 Am. Jur. 2d Judges § 173 (rev. ed. 1994).

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 provisions between the Plaintiff and the Defendant. However, it is Court's 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.

B. Judge's Impartiality Might Reasonably Be Questioned.

The Code of Judicial Conduct requires that a judge disqualify himself in a proceeding in which the judge's impartiality must reasonably be questioned. Canon 3.E(1). 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 justice's 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 Justice's 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

[11 FSM Intrm. 137]

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 Justice's 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 2002, the Associate Justice was no longer a ConCon delegate. While the Plaintiff may call the Associate Justice as a witness, many other ConCon delegates are available to testify.

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. See 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 provisions at issue. The Associate Justice has not prejudged the legal questions before him. The Associate Justice has not stated any strong beliefs regarding the subject constitutional issue prior to joining the judiciary. There has been no showing of partiality or bias by Associate Justice Aliksa B. Aliksa.

In the absence of a showing of any actual partiality or extrajudicial bias, a judge properly meets 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 regarding the parties or the issues before the Court.

C. Conclusion.

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

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

2. The Associate Justice has not prejudged any legal issues in this case, including the interpretation of the Kosrae State Constitution, Article V, Sections 4 and 6; and

3. That a disinterested reasonable observer, knowing all the facts and circumstances, would not have doubts regarding Associate Justice Aliksa's impartiality in this case, based upon his participation as a ConCon delegate; and

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

Accordingly, the Plaintiff's Motion to Recuse Justice Aliksa B. Aliksa is therefore denied.

[11 FSM Intrm. 138]

3. Motion for Expedited Procedure.

The Plaintiff has filed a Motion for Expedited Procedure. The Defendant states that it shares the goal of achieving a prompt judicial determination. Finding good cause, the Motion for Expedited Procedure is granted. The following pre-trial deadlines and trial date are established.

Deadline for the Kosrae State Election Commission to serve its "final finding," pursuant to Kosrae State Code, Section 3.1301(3), regarding qualification of the Plaintiff to run as Lieutenant Governor: September 16, 2002

Deadline for both parties to file and serve pre-trial briefs:                                                     September 23, 2002

Trial Date:                                                                                                                              September 25, 2003, 10 a.m.

The pre-trial briefs shall contain the following items:

1. Concise statement of party's claims or defenses, including legal theories.

2. Any facts or other matters to which the parties have stipulated.

3. Issues of fact remaining to be litigated.

4. Issues of law to be litigated.

5. Witnesses for party by name and brief description of testimony.

Copies of exhibits which have been stipulated to by counsel should be attached to the submission.

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