Cite as Allen v. Kosrae,13 FSM Intrm. 55 (Kos. S. Ct. Tr. 2004)

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CIVIL ACTION NO. 126-04

Hearings: September 7, November 9, 2004
Decided: November 29, 2004

APPEARANCES:

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HEADNOTES

Attorney, Trial Counselor and Client – Disqualification of Counsel

When plaintiffs' counsel admitted that he had signed the verified complaint on behalf of another and that the other had been represented through proxy at a meeting during which the lawsuit was discussed and when, although that other later appeared and testified that he did not consider himself to be counsel's client for the civil action, that he did not give permission for the complaint to be filed on his behalf, and that he does not want to be involved in this lawsuit but in a deposition did state under oath that he asked the proxy to act on his behalf, the court may conclude that at the time the complaint was filed, plaintiffs's counsel had reasonable basis to accept the proxy's representation of the other and his approval to file the complaint on his behalf and counsel will not be disqualified on that basis. Allen v. Kosrae, 13 FSM Intrm. 55, 57-58 (Kos. S. Ct. Tr. 2004).

Attorney, Trial Counselor and Client – Disqualification of Counsel

Model Rule 7.3 prohibits the solicitation of professional employment from a prospective client with whom the lawyer had no family or prior professional relationship when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. But when a person attended and participated in a meeting regarding the subject of this matter and in doing so, expressed his interest in this matter, and when counsel's later contact with him after the meeting did not involve harassment or duress, counsel's contact with him does not provide an adequate basis for disqualification of counsel. Allen v. Kosrae, 13 FSM Intrm. 55, 58 (Kos. S. Ct. Tr. 2004).

Attorney, Trial Counselor and Client – Disqualification of Counsel

Plaintiff's counsel's employee's disruptive actions at a meeting at which a defendant presided do not provide an adequate basis for disqualification of plaintiffs' counsel because she was also a parent of children who attend Kosrae High School and therefore had adequate reason to attend that meeting as an interested parent and because the defendants did not present sufficient evidence to prove that her actions at that meeting were encouraged or supported by plaintiffs' counsel. Allen v. Kosrae, 13 FSM Intrm. 55, 58 (Kos. S. Ct. Tr. 2004).

Civil Procedure – Discovery

When certain requested documents did not exist and therefore could not be provided and the plaintiffs had provided those responsive documents which were in existence at the time of issuance of the subpoena duces tecum, there is no basis for the defendants' motion to compel and accordingly it will be denied. Allen v. Kosrae, 13 FSM Intrm. 55, 58 (Kos. S. Ct. Tr. 2004).

Courts – Recusal

A judge must disqualify himself from a proceeding in which the judge's impartiality might reasonably be questioned, and in specific instances. The disqualifying factors must be from an extrajudicial source. Statements and rulings made by a judge in the course of judicial proceedings do not provide grounds for disqualification. Adverse rulings in a case are not grounds for disqualification of the presiding justice. The slow progress of the case is not based upon an extrajudicial source and therefore is not a basis for disqualification. Allen v. Kosrae, 13 FSM Intrm. 55, 59 (Kos. S. Ct. Tr.

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2004).

Courts – Recusal

A charge of appearance of partiality must first have a factual basis. The standard to be applied is whether an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge's impartiality. The standard of "mere suspicion" is inadequate to support disqualification. Allen v. Kosrae, 13 FSM Intrm. 55, 59 (Kos. S. Ct. Tr. 2004).

Courts – Recusal

Unsolicited letters from the public, expressing their views or requests on matters pending before the court, without anything more, cannot form the basis for disqualification of the justice to whom the letter was addressed. Unsupported allegations that the presiding judge may be influenced by an unsolicited letter is speculation and is insufficient to support the judge's disqualification. Allen v. Kosrae, 13 FSM Intrm. 55, 59 (Kos. S. Ct. Tr. 2004).

Courts – Recusal

A motion to disqualify a judge that is not supported by an affidavit which explains the factual basis for the motion is insufficient and will be denied. Allen v. Kosrae, 13 FSM Intrm. 55, 59 (Kos. S. Ct. Tr. 2004).

COURT'S OPINION

ALIKSA B. ALIKSA, Associate Justice:

A hearing on pending motions was held on November 9, 2004. The following motions were heard: (1) Defendants' Motion to Disqualify Plaintiffs' Counsel was continued from September 7, 2004; (2) Defendants' Motion to Compel Production of Documents and for Sanctions; (3) Plaintiffs' Motion to Disqualify Justice Aliksa B. Aliksa; and (4) Plaintiff Mathias Mongkeya's Request for Dismissal with Prejudice. All motions have been fully briefed by the parties. Canney Palsis, MLSC, appeared for the Plaintiffs. Defendants were represented by Arthur Buck, Acting Attorney General.

I. DEFENDANTS' MOTION TO DISQUALIFY PLAINTIFFS' COUNSEL

The hearing on Defendants' Motion to Disqualify Plaintiffs' Counsel was continued from September 7, 2004. The hearing had been continued, pending the return of Mathias Mongkeya to the State of Kosrae. Mr. Mongkeya was a named Plaintiff in the Complaint. Defendant alleged that Mr. Mongkeya had not consented to being named as a Plaintiff in this matter and had not consented to counsel's signing of the Complaint on his behalf. The Complaint had been signed and filed while Mr. Mongkeya was off-island. Plaintiffs' counsel admitted that he had signed the verified complaint on behalf of Mr. Mongkeya. Counsel claimed that Mathias Mongkeya was represented through proxy Palmer Seymour, at a meeting during which this lawsuit was discussed.

Mr. Mongkeya appeared and testified at the hearing subject to the witness summons which had been issued on behalf of the Court pursuant to KRE Rule 614. Mr. Mongkeya testified that he did not consider himself a client of MLSC for this civil action, that he did not give permission for the complaint to be filed on his behalf, and that he does not want to be involved in this lawsuit. At the hearing, Mr. Mongkeya further testified that he did not ask Palmer Seymour to represent him in this matter. However, in a deposition taken on October 22, 2004, Mr. Mongkeya did state under oath that he asked Mr. Seymour to act on his behalf. Based upon this conflicting testimony, I conclude that at the time

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the complaint was filed, Plaintiffs's counsel had reasonable basis to accept Mr. Seymour's representation of Mr. Mongkeya and his approval to file the complaint on his behalf. There is insufficient evidence that Plaintiffs' counsel filed the complaint without consent of Mr. Mongkeya. Accordingly Plaintiffs' counsel's filing of the complaint which named Mr. Mongkeya as a Plaintiff does not provide an adequate basis for disqualification of Plaintiffs' counsel.

Based upon the testimony of Jacob Henry received at the September 7, 2004 hearing, I conclude that Plaintiffs' counsel did have an adequate basis to approach Mr. Henry and inquire whether he was still interested in becoming a client for this matter. Mr. Henry had attended and participated in a meeting at MLSC regarding the subject of this matter and in doing so, expressed his interest in this matter. Mr. Palsis's later contact with Mr. Henry after the meeting did not involve harassment or duress by Mr. Palsis.

The Model Rules of Professional Conduct, Rule 7.3 prohibits the solicitation of professional employment from a prospective client with whom the lawyer had no family or prior professional relationship when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. Based upon the evidence presented at the September 7, 2004 hearing, I conclude that the Defendants did not present sufficient evidence of violation of Model Rule 7.3. Mr. Palsis's contact with Mr. Henry does not provide an adequate basis for disqualification of Mr. Palsis as Plaintiffs' counsel.

Defendants argued that Louisa Nena's disruptive actions at a meeting at which Defendant Hadik presided were endorsed or encouraged by Plaintiffs' counsel. Mrs. Nena is employed by Plaintiffs' counsel MLSC office. Mrs. Nena is also a parent of children who attend Kosrae High School and therefore had adequate reason to attend that meeting as an interested parent. Defendants did not present sufficient evidence to prove that Mrs. Nena's actions at that meeting were encouraged or supported by Plaintiffs' counsel. Accordingly, Mrs. Nena's actions do not provide an adequate basis for disqualification of Plaintiffs' counsel.

Based upon the evidence received from Mr. Mongkeya and the evidence received at the September 7, 2004 hearing, I concluded that there is insufficient basis to disqualify Plaintiffs' counsel from representing the Plaintiffs in this matter. Accordingly, Defendant's Motion to Disqualify Plaintiffs' Counsel is denied. Canney Palsis, MLSC, remains as counsel for the Plaintiffs in this matter.

II. DEFENDANTS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND FOR SANCTIONS

Defendant filed a Motion to Compel and For Sanctions on October 20, 2004. Plaintiffs' Opposition to the Motion was filed on November 1, 2004. Based upon the evidence presented at the hearing, I concluded that Plaintiffs had complied with the subpoena duces tecum by producing those documents which satisfied the request to the Defendant. Plaintiffs stated that certain documents requested by the Defendant, for example, MLSC policy on solicitation, did not exist and therefore could not be provided. I found that Plaintiffs had provided those responsive documents which were in existence at the time of issuance of the subpoena duces tecum. Therefore, there is no basis for the Defendants' Motion to Compel and accordingly the Motion to Compel and for Sanctions is denied.

III. PLAINTIFFS' MOTION TO DISQUALIFY JUSTICE ALIKSA B. ALIKSA

On November 5, 2004, Plaintiffs filed a Motion to Disqualify Justice Aliksa B. Aliksa from presiding over this matter. Defendants filed their Opposition to the Motion on November 8, 2004. Plaintiffs argue that Justice Aliksa should be disqualified from presiding over this matter based upon a letter written to Justice Aliksa by the President of the Lelu School Board which supports Defendant Paul Hadik as Chief of Secondary Education for Kosrae High School, Plaintiff argues that Justice Aliksa

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would endorse the Board's position as he is a parent of a child in the Lelu school system. Plaintiffs also argue that Justice Aliksa should be disqualified from presiding over this matter due to slow progress of this case. Defendants argued that the Motion to Disqualify is void due to lack of support by affidavit as required. Defendants argue that Justice Aliksa's status as a parent of children who attend a different school and different grades than the subject of litigation here is not a valid basis for disqualification, where there is no showing that Justice Aliksa participated in School Board deliberations or endorsed the letter written to him. Finally Defendants argue that the progress of this case has been influenced by a number of factors, most particularly the prolonged absence of Mr. Mongkeya from the State of Kosrae.

The Model Code of Judicial Conduct, Canon 3.E. provides that a judge shall disqualify himself from a proceeding in which the judge's impartiality might reasonably be questioned, and in specific instances. See Kosrae v. Sigrah, 10 FSM Intrm. 654 (Kos. S. Ct. Tr. 2002). The disqualifying factors must be from an extrajudicial source. Ting Hong Oceanic Enterprises v. Supreme Court, 8 FSM Intrm. 1 (App. 1997). Statements and rulings made by a judge in the course of judicial proceedings do not provide grounds for disqualification. FSM v. Ting Hong Oceanic Enterprises, 7 FSM Intrm. 644 (Pon. 1996). Adverse rulings in a case are not grounds for disqualification of the presiding justice. FSM v. Skilling, 1 FSM Intrm. 464 (Kos. 1984). Plaintiffs' argument regarding slow progress of this case is not based upon an extrajudicial source. Therefore, this basis for disqualification of Justice Aliksa is without merit and must fail.

A charge of appearance of partiality must first have a factual basis. The standard to be applied is whether an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge's impartiality. The standard of "mere suspicion" is inadequate to support disqualification. Ting Hong Oceanic Enterprises, 8 FSM Intrm. at 6-7. Here, Plaintiffs argue that a letter sent to Justice Aliksa by the Lelu School Board, which support Defendant Paul Hadik's position, is proof of Justice Aliksa's partiality, because he is a parent of children who attend Lelu Elementary School, and would therefore support the position of the Lelu School Board. It is undisputed that Justice Aliksa is a parent of children who attend Lelu Elementary School. However, Justice Aliksa is not a member of the Lelu School Board and he did not participate in the discussions, deliberations or writing of the subject letter. The Plaintiffs did not present any evidence that Justice Aliksa endorsed or was otherwise influenced by the letter. Moreover, this Court receives many unsolicited letters from the public, expressing their views or requests on matters pending before this Court. These unsolicited letters, without anything more, cannot form the basis for disqualification of the Justice to whom the letter was addressed. Plaintiffs' unsupported allegations that the presiding justice may be influenced by an unsolicited letter is speculation and is insufficient to support the justice's disqualification. Nahnken of Nett v. United States (I), 6 FSM Intrm. 318 (Pon. 1994).

Finally, Plaintiffs' Motion to Disqualify was not supported by an affidavit which explains the factual basis for the Motion. A party's motion to disqualify the presiding justice is insufficient if the motion is not supported by affidavit. Skilling v. FSM, 2 FSM Intrm. 209 (App. 1986), Jonas v. FSM (II), 2 FSM Intrm. 238 (App.1986). Accordingly, Plaintiffs' Motion to Disqualify is insufficient as it was not supported by affidavit.

Based upon all of these factors, I find that the basis presented by Plaintiffs' Motion to Disqualify as insufficient to support the disqualification of Justice Aliksa B. Aliksa from presiding over this matter. Plaintiffs' Motion to Disqualify Justice Aliksa B. Aliksa is therefore denied.

IV. PLAINTIFF MATHIAS MONGKEYA'S REQUEST FOR DISMISSAL WITH PREJUDICE

On November 5, 2004, MLSC filed a Notice of Withdrawal as Counsel for Mathias Mongkeya.

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On November 8, 2004, Plaintiff Mathias Mongkeya, acting pro se, filed a Request for Dismissal With Prejudice. Defendants consented to the request for dismissal. Accordingly, Plaintiff Mongkeya's Request for Dismissal with Prejudice is granted. Plaintiff Mongkeya is therefore dismissed from this action with prejudice. The caption is ordered amended to reflect the deletion of Mathias Mongkeya as a plaintiff in this matter. Wilson J. Allen remains as the sole remaining Plaintiff in this matter.

V. HEARING DATE.

The hearing on the Plaintiff's Application for Temporary Restraining Order and Preliminary Injunction shall be held on January 10, 2005 at 10 am.