CIVIL ACTION NO. 127-04

For the Appellant:   Robinson Timothy, trial counselor

                                     P.O. Box 261

                                     Tofol, Kosrae   FM   96944

                                      P.O. Box 187

                                      Tofol, Kosrae   FM   96944

     If the Kosrae State Court finds that a Land Court decision was contrary to law, or not based upon substantial evidence, it must remand the matter to the Land Court for further proceedings. Edmond v. Alik, 13 FSM Intrm. 413, 415 (Kos. S. Ct. Tr. 2005).

     When, contrary to the requirements of GCO 2002-13, the presiding justice questioned the claimants instead of the land assessor and the same series of questions were not asked of each unrepresented claimant, which is required by GCO 2002-13 in order to provide an equal opportunity to each claimant to present his or her claim and the reasons therefor, the non-compliance jeopardizes the fairness of the proceeding by providing one claimant better opportunity, through specified questions, to present his or her claim. Edmond v. Alik, 13 FSM Intrm. 413, 416 (Kos. S. Ct. Tr. 2005).

     When a party not represented by legal counsel is not given the opportunity to present his claim in Land Court, pursuant to the requirements of GCO 2002-13, this procedural failure is a violation of the due process protection provided by the Kosrae Constitution. Edmond v. Alik, 13 FSM Intrm. 413, 416 (Kos. S. Ct. Tr. 2005).

      When an unrepresented party made statements as a preamble to the questions he posed to another claimant, the Land Court, recognizing that the claimants were lay persons and not trained in legal hearing procedures, should have provided instructions that cross-examination is limited to asking questions of the witness. Edmond v. Alik, 13 FSM Intrm. 413, 416 (Kos. S. Ct. Tr. 2005).

     Courts have inherent power and obligation to monitor the conduct of parties and to enforce compliance with procedural rules. Edmond v. Alik, 13 FSM Intrm. 413, 416 (Kos. S. Ct. Tr. 2005).

     Since it is error for a court to rely upon evidence never presented at a hearing or trial, the Land Court’s reference in its decision to statements not in evidence properly before it was contrary to law. Edmond v. Alik, 13 FSM Intrm. 413, 416 (Kos. S. Ct. Tr. 2005).

      Disqualification of a Land Court Justice is required when the justice’s impartiality might reasonably be questioned. One specific basis for disqualification is where the justice has a personal bias or prejudice concerning a party, or has personal knowledge of disputed evidentiary facts concerning the proceeding. Edmond v. Alik, 13 FSM Intrm. 413, 416 (Kos. S. Ct. Tr. 2005).

      Adjudicatory decisions affecting property rights, such as ownership, are subject to due process requirements of the state constitution. Due process demands impartiality on the part of the adjudicators, including a Land Court Presiding Justice. Edmond v. Alik, 13 FSM Intrm. 413, 416 (Kos. S. Ct. Tr. 2005).

      A justice, who at the beginning of a trial, is so influenced by other information that he know he will not be capable of basing his decision solely on the properly admitted evidence is under an ethical obligation to disqualify himself from the proceedings. Edmond v. Alik, 13 FSM Intrm. 413, 416-17 (Kos. S. Ct. Tr. 2005).

     The test for determining if a judge’s impartiality in a proceeding might by reasonably be questioned is whether a disinterested reasonable person, knowing all the circumstances, would harbor doubts about the judge’s impartiality. There may be a time when each of the actions is insufficient to reasonably question the judge’s impartiality, but the combination of all would cause a reasonable disinterested person to harbor doubts about the judge’s impartiality. Edmond v. Alik, 13 FSM Intrm. 413, 417 (Kos. S. Ct. Tr. 2005).

     Since a judge must disqualify himself in a proceeding in which the judge’s impartiality might reasonably be questioned, when the presiding justice’s failure to recuse himself from the proceeding resulted in a violation of the appellant’s due process rights, the decision determining ownership must

be vacated and the matter remanded for further proceedings. Edmond v. Alik, 13 FSM Intrm. 413, 417 (Kos. S. Ct. Tr. 2005).

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     The hearing on briefs was held on May 5, 2005. Robinson Timothy represented the Appellant. Appellees were represented by Chang William. After hearing from the parties and consideration of the record, I took the matter under advisement. This Memorandum of Decision sets forth my findings, reasoning and orders issued in this matter.

     Appellant has appealed the decision of the Kosrae Land Court, entered on June 30, 2004, which awarded ownership of parcel 071-T-01 to the Appellees. Parcel 071-T-01, also called Palusrik in Okat, was initially identified for the registration process in 1986, by the former Kosrae State Land Commission. The registration process was not completed and ownership was not determined by the Land Commission. Therefore in 2002, the parcel was transferred to the Kosrae Land Court for further proceedings. A hearing was held by the Kosrae Land Court on March 18, 2004. The Land Court relied upon the evidence presented at that hearing and also upon the Land Commission record for the parcel.

     The adjacent parcel 071-T-02 was also part of the same registration designation in 1986. The Land Commission did complete the proceedings upon parcel 071-T-02 and issued the determination of ownership in March 1998 to Warner R. Ned. The Presiding Justice in the Land Court proceedings for parcel 071-T-01 was also the Senior Land Commissioner who concurred in the Determination of Ownership issued for the adjacent parcel 071-T-02.

     Appellant presents two grounds of error on appeal. First, Appellant claims that the Presiding Justice should have disqualified himself from hearing the matter, based upon the Presiding Justice’s prior involvement in the Land Commission proceedings for parcel 071-T-02, his prior knowledge of evidentiary facts regarding land and boundaries at Palusrik, and his bias against the Appellant in the present proceedings for parcel 071-T-01. Appellant argues that the Model Code of Judicial Conduct required the Presiding Justice to recuse himself from the Land Court proceedings in this matter. Appellant further claims that the findings of the Kosrae Land Court are not based upon substantial evidence. If this Court finds that the Land Court decision was contrary to law, or not based upon substantial evidence, it must remand this matter to the Land Court for further proceedings. Kos. S.C. § 11.614(5)(d).

     This Court has carefully reviewed the transcript and the record of the Land Court proceedings for parcel 071-T-01. Neither of the parties were represented by legal counsel at the Land Court proceedings. Therefore, GCO 2002-13, Questioning of Claimants Not Represented by Legal Counsel, was applicable to the Land Court hearing held on March 18, 2004. Careful review of the transcript reveals that the requirements of GCO 2002-13 were not complied with. The Presiding Justice questioned the claimants instead of the Land Assessor, contrary to the requirements of GCO 2002-13. Furthermore the claimants themselves were not questioned pursuant to the requirements of GCO 2002-13.

     The purpose of GCO 2002-13 is to establish procedural rules of the questioning of claimants who are not represented by legal counsel. This GCO requires the same series of questions to be asked of each claimant, in order to provide an equal opportunity to each claimant to present his or her claim and the reasons therefore. Non-compliance with GCO 2002-13 jeopardizes the fairness of the proceeding by providing one claimant better opportunity, through specified questions, to present his or her claim. When a party not represented by legal counsel is not given the opportunity to present his claim, pursuant to the requirements of GCO 2002-13, this procedural failure is a violation of the due process protection provided by the Kosrae Constitution. See Ittu v. Heirs of Mongkeya, 10 FSM Intrm. 446 (Kos. S. Ct. Tr. 2001).

      Careful review of the transcript also reveals that the Land Court permitted the one of the Appellees to make statements in his cross-examination of the Appellant. The Appellee made statements as a preamble to the questions he posed to the Appellant. The Land Court, recognizing that the claimants were lay persons and not trained in legal hearing procedures, should have provided instructions that cross-examination shall be limited to asking questions of the witness. Courts have inherent power and obligation to monitor the conduct of parties and to enforce compliance with procedural rules. Leeruw v. Yap, 4 FSM Intrm. 145 (Yap 1989). The Land Court’s failure to enforce compliance with procedural rules, and failure to limit cross-examination of the Appellant to questions, impacted upon the fairness of the proceedings.

     The decision of the Land Court references statements that were not part of the properly presented evidence during the hearing. The decision references statements that are not in the record and are therefore are not evidence properly before the Land Court. It is error for a court to rely upon evidence never presented at a hearing or trial. Waguk v. Kosrae Island Credit Union, 6 FSM Intrm. 14 (App. 1993). The Land Court’s reference to statements not in evidence properly before the Land Court was contrary to law.

     The KLCRP require that in all proceedings, each and every claimant be provided the opportunity to present his or her claim and evidence in support thereof. State law, KLCRP and constitutional due process requires that all claimants at a proceeding be on "equal footing." Repeated comments made by the Court which suggest favoritism in favor of one claimant or bias against a claimant, may create an appearance of impartiality. In the Land Court proceeding, the Court’s repeated references to the Appellant’s "new boundary claim" suggest a bias against the Appellee’s boundary claim. Implicit in Appellant’s argument is that the Presiding Justice was biased in favor of adopting the boundary claimed by Appellees for parcel 071-T-01, due to the Presiding Justice’s prior action in concurring to the boundary for the adjacent parcel 071-T-02, for which the Presiding Justice served as Senior Land Commissioner. The Land Court record and transcript reveals several continued references are made to the Appellant’s "new boundary claim." The context in which these references were made by the Court created an appearance of prejudice against the Appellant during the hearing.

     The standard for disqualification of a Land Court Justice is set forth in GCO 2003-2. GCO 2003-2 adopts the Code of Judicial Conduct as basis for disqualification. The Code of Judicial Conduct, Canon 3.E. requires disqualification of a justice in a proceeding where the justice’s impartiality might reasonably be questioned. One specific basis for disqualification is where the justice has a personal bias or prejudice concerning a party, or has personal knowledge of disputed evidentiary facts concerning the proceeding. Adjudicatory decisions affecting property rights, such as ownership, are subject to due process requirements of our State Constitution. Due process demand impartiality on the part of the adjudicators, including the Presiding Justice of a Land Court. Langu v. Heirs of Jonas, 10 FSM Intrm. 547 (Kos. S. Ct. Tr. 2002); Wito Clan v. United Church of Christ, 8 FSM Intrm. 116 (Chk. 1997). Therefore a justice, who at the beginning of a trial, is so influenced by other information that he know he will not be capable of basing his decision solely on the properly admitted evidence is under an ethical

obligation to disqualify himself from the proceedings. FSM v. Jonas(II), 1 FSM Intrm. 306 (Pon. 1983).

     This Court has carefully reviewed the transcript and the record for this matter and has carefully considered the facts discussed above: the questioning of the Appellant, the cross-examination of the Appellant by an Appellee, references in the Land Court’s decision to statements not in evidence properly before the Court, the Land Court’s repeated references to the Appellant’s boundary claims as "new," combined with the Presiding Justice’s previous actions in the proceedings for parcel 071-T-02, including the determination of the parcel boundaries.

     The test for determining if the impartiality of a judge in a proceeding might by reasonably be questioned is whether a disinterested reasonable person, knowing all the circumstances, would harbor doubts about the judge’s impartiality. FSM v. Skilling, 1 FSM Intrm 464 (Kos. 1984). There may be a time when each of the actions are insufficient to reasonably question the judge’s impartiality, but the combination of all would cause a reasonable disinterested person to harbor doubts about the judge’s impartiality. See generally Ting Hong Oceanic Enterprises v. Supreme Court, 8 FSM Intrm. 1 (App. 1997). These are the circumstances in this matter. The statements and actions of the Presiding Justice, taken individually, may by insufficient to reasonably question the Presiding Justices impartiality. However, taking the statements and actions of the Presiding Justice all together, I conclude that the Presiding Justice’s impartiality might have been reasonably questioned.

     The Code of Judicial Conduct requires that a judge disqualify himself in a proceeding in which the judge’s impartiality might reasonably be questioned. Kosrae v. Sigrah, 10 FSM Intrm. 654 (Kos. S. Ct. Tr. 2002). Pursuant to State Law and the Model Code of Judicial Conduct, the Presiding Justice was required to recuse himself from the Land Court proceeding on parcel 071-T-01. Failure of the Presiding Justice to recuse himself from the proceeding resulted in a violation of the Appellant’s due process rights.

     When there has been a denial of due process, the decision determining ownership must be vacated and the matter remanded for further proceedings. Langu v. Heirs of Jonas, 10 FSM Intrm. 547 (Kos. S. Ct. Tr. 2002). Accordingly, the decision entered by the Land Court on parcel 071-T-01 is hereby vacated and set aside as null and void.

     Judgment is entered in favor of the Appellant and against the Appellees. The Land Court decision, entered on June 30, 2004 for parcel 071-T-02 is vacated and set aside as void.

     This matter is now remanded to Kosrae Land Court for further proceedings on parcel 071-T-01. Kosrae Land Court shall hold hearings and issue written findings and a decision on parcel 071-T-01, consistent with the statutory and procedural requirements, and consistent with this Memorandum of Decision. All proceedings shall be conducted according to the following instructions:

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