Cite as Ruben v. Petewon, 14 FSM Intrm. 177 (Chk. S. Ct. App. 2006)

[14 FSM Intrm. 177]

ORIGINAL ACTION NO. 03-2005

OPINION AND ORDER GRANTING WRIT OF PROHIBITION

Argued: March 8, 2006
Decided: April 7, 2006

Hon. Dennis Yamase, Temporary Justice, Presiding*
Hon. Benjamin Rodriguez, Temporary Justice**
Hon. Repeat Samuel, Temporary Justice***

*Associate Justice, FSM Supreme Court, Chuuk
**Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei
***Attorney at Law, Weno, Chuuk

[14 FSM Intrm. 179]

ruling on a disqualification motion, it must likewise issue where a justice has patently disregarded a mandate which stripped him of any discretion to act in the first instance.Ruben v. Petewon, 14 FSM Intrm. 177, 184 (Chk. S. Ct. App. 2006).

Courts – Recusal

The duty to recuse may arise even in the absence of a motion to disqualify. Ruben v. Petewon, 14 FSM Intrm. 177, 185 (Chk. S. Ct. App. 2006).

Courts – Recusal

When a party files a motion to remove a trial justice from presiding over a case, irrespective of nomenclature, the party is attacking that justice's perceived bias or conflict of interest. For purposes of the referral procedure set forth in section 22(5) of the Chuuk Judiciary Act, a motion to recuse and one to disqualify are one and the same. Ruben v. Petewon, 14 FSM Intrm. 177, 185 (Chk. S. Ct. App. 2006).

Courts – Recusal; Mandamus and Prohibition

A Chuuk State Supreme Court justice exceeds his jurisdiction when he refuses to refer a recusal motion to another trial division justice. Ruben v. Petewon, 14 FSM Intrm. 177, 185 (Chk. S. Ct. App. 2006).

Appellate Review

Aggrieved parties have the right to appeal single-justice appellate orders to a full panel. This applies strictly to parties, not to justices. Ruben v. Petewon, 14 FSM Intrm. 177, 185 (Chk. S. Ct. App. 2006).

Appellate Review – Notice of Appeal

A properly filed notice of appeal transfers jurisdiction from the trial court to the reviewing court. The transfer of jurisdiction divests the trial court of any authority, except to act in aid of the appeal. Examples of actions which have been construed to aid an appeal include, but are not necessarily limited to: applications for release from jail pending appeal, applications for stay pending appeal, taxation of costs, and considering and denying, but not granting, except upon remand, Rule 60(b) motions for relief from judgment. Ruben v. Petewon, 14 FSM Intrm. 177, 185 (Chk. S. Ct. App. 2006).

Appellate Review – Stay – Civil Cases

An application for stay must first be made in the trial division. If the trial justice issues a stay, that justice retains jurisdiction of the stay issue while the appeal is pending. Ruben v. Petewon, 14 FSM Intrm. 177, 186 (Chk. S. Ct. App. 2006).

Mandamus and Prohibition

The extraordinary writ of prohibition will lie where a trial justice exercises jurisdiction over a case wherein another justice has jurisdictional priority over the parties and issues. Ruben v. Petewon, 14 FSM Intrm. 177, 186 (Chk. S. Ct. App. 2006).

Mandamus and Prohibition

A writ of prohibition is proper when a trial justice interferes with the appellate division's jurisdiction. Ruben v. Petewon, 14 FSM Intrm. 177, 186 (Chk. S. Ct. App. 2006).

Mandamus and Prohibition

A justice's acts after a single appellate justice issued a stay that were not acts taken in aid of the appeal, but were acts designed to frustrate or nullify the appeal process and the respondent justice’s interference with the jurisdiction of, and blatant disregard for a stay entered by, a justice

[14 FSM Intrm. 180]

having greater jurisdictional authority supports the conclusion that he must be prohibited from taking any further action in the case. Ruben v. Petewon, 14 FSM Intrm. 177, 186-87 (Chk. S. Ct. App. 2006).

Appellate Review – Stay – Civil Cases

An attack upon the Acting Chief Justice's authority to rule on a motion to stay as a single appellate justice must come from one of the parties, and in the proper forum – the appellate division, not by a trial judge . Ruben v. Petewon, 14 FSM Intrm. 177, 187 (Chk. S. Ct. App. 2006).

Mandamus and Prohibition

The court is mindful of its duty to issue the extraordinary writ of prohibition with great caution and is also mindful that it is especially important to exercise the writ in those cases where it is necessary to confine a lower court to its proper function. Ruben v. Petewon, 14 FSM Intrm. 177, 187 (Chk. S. Ct. App. 2006).

COURT'S OPINION

PER CURIAM:

Petitioners, Moria and Hersin Ruben, filed this original action in the appellate division of this Court on May 23, 2005. Petitioners seek the issuance of an extraordinary writ of prohibition directed to Respondent, Associate Justice John Petewon, sitting as a trial division justice. We must decide whether Respondent, with regard to the acts cited by Petitioners, either lacked jurisdiction or acted in excess of his jurisdiction in trial division Civil Action No. 64-98, Ruben v. Hartman et al.

Respondent did not file a response to the petition. Rather, on February 16, 2006, he filed a motion to disqualify Temporary Presiding Justice Dennis K. Yamase and to dissolve the appellate panel. The Court heard argument on Respondent’s motion on March 7 and 8, 2006, and, in two orders filed on March 8 and 10, 2006, denied the motion in its entirety.

On March 8, 2006, the Court also heard argument on the instant petition. Petitioners and Real Parties in Interest Chonsy Hartman and Chuuk State appeared by counsel. Respondent appeared in person.

After carefully considering the record, the filings and arguments of the parties, and the applicable law, we conclude that Respondent acted without and exceeded his jurisdiction in Civil Action No. 64-98. We, therefore, grant the petition and issue herewith a writ of prohibition directed to Respondent. Our reasoning follows.

I.  Facts and Procedural History of the Trial Division Case

Civil Action No. 64-98 has a very extensive history. It arose from a dispute amongst Petitioners and certain of the Real Parties in Interest over a tract of land known as Unupuku (Lot 040-A-17), located in Weno Municipality. In October 1954, a Trust Territory District Title Officer determined that the Wito Clan was the owner of Unupuku. In 1959, Tiu Killion, father of Chonsy Hartman, occupied Unupuku, claiming to have bought the land from one Nimuk. In 1961, the predecessor to Chuuk State leased the land from the Wito Clan and either relocated or evicted Killion.¹

In July 1981, the Truk District of the Trust Territory Land Commission, relying on the 1954 determination of ownership made by the District Title Officer, issued the Wito Clan a certificate of title. In February 1982, the Land Commission's decision was affirmed by the trial division of the Trust Territory High Court. Echikar v. Erwin, Trust Terr. Civ. Action No. 95-81 (Tr. Div. Feb. 2, 1982). The trial division's judgment was not appealed. A 1991 case filed in this Court was dismissed on the ground of res judicata.

In March 1997, the Wito Clan sold 1,598 square meters of Unupuku to Petitioners. A certificate of title for that tract (re-designated Lot 040-A-41) issued in April 1999.

On March 6, 1998, Chonsy Hartman filed a complaint against Chuuk State, seeking a declaration that she was the owner of Unupuku. She named no other person or entity as defendant in the action, which was docketed as CSSC Civil Action No. 64-98. On August 20, 1998, the trial division entered a default judgment against Chuuk State.

On August 2, 1999, Petitioners filed a motion to intervene in the case. They filed a complaint in intervention on September 13, 1999.

In April 2000, Chuuk State released Unupuku to the landowners who held the certificate of title. The same year, two additional quiet title actions involving Unupuku were filed, one by the Wito Clan against Hartman and Chuuk State, the other by Petitioners against Samuel and Chonsy Hartman (CSSC Civil Action Nos. 36-2000 and 229-2000, respectively).

On July 8, 2003, the late Chief Justice Soukichi Fritz consolidated the three cases and assigned them to a Special Trial Justice. On March 23, 2004, the Special Trial Justice vacated the 1998 default judgment against the State and dismissed Civil Action No. 64-98 with prejudice. Hartman v. Chuuk, 12 FSM Intrm. 388 (Chk. S. Ct. Tr. 2004). The Court entered a judgment on the Special Trial Justice's order on April 6, 2004. That decision was never appealed.

According to Respondent, a Rule 60(b) motion – the existence of which Petitioners deny – was filed and later assigned to him by Justice Machime O'Sonis of this Court. The motion, for which there is no docket entry and which is not in the certified record, would have been filed prior to August 20, 2004. On that day, the trial division docketed a response to the motion. The response, likewise, is not contained in the certified record.

On January 18, 2005, Respondent issued a notice, scheduling Civil Action No. 64-98 for a hearing on January 27, 2005. He issued another notice on February 1, 2005, scheduling a trial on February 7, 2005. The trial proceeded on that day, despite the absence of Petitioners' counsel.

On March 22, 2005, Respondent issued an order reinstating the August 20, 1998, default judgment and vacating all later orders in Civil Action No. 64-98. On March 23, 2005, Chonsy Hartman filed a motion for an order in aid of judgment and asked the Court to hold Petitioners in contempt for failing to comply with the March 22, 2005, order.

Petitioners appealed Respondent's March 22, 2005, order on March 29, 2005. On May 11, 2005, they filed a motion seeking his recusal.

At a hearing on May 12, 2005, Respondent orally denied the motion to recuse. He also informed Petitioners and the Wito Clan representative (the parties holding certificate of title to Unupuku) that they were not parties and could not be joined as parties, since judgment had already been entered in Civil Action No. 64-98. In a May 17, 2005, order, continuing a hearing on Hartman's motion for an order

in aid of judgment, Respondent noted that he had denied the motion to recuse on the ground that – in his view – recusal, unlike disqualification (for which the Judiciary Act contains a referral requirement), is discretionary.

Petitioners filed a motion to disqualify Respondent on May 18, 2005. The Judiciary Act, Chk. S.L. No. 190-08, – 22(5), requires a justice against whom such motion is filed to refer it to another justice. The same day, Petitioners filed a motion for stay in the appellate division of this Court.

On May 19, 2005, the Acting Chief Justice of this Court stayed all trial court proceedings in the three cases pending resolution of the appeal. Nonetheless, on May 20, 2005, Respondent held a hearing in Civil Action No. 64-98, at which he announced that the stay did not apply.

On May 23, 2005, Respondent effectively denied the motion to disqualify by orally ruling that, since Petitioners were not parties, he was not statutorily required to refer the motion to another justice. The same day, Petitioners filed the petition for writ of prohibition which is the subject of this opinion. Respondent has never issued a written decision on the disqualification motion.

On May 26, 2005, Petitioners appealed Respondent’s decisions of May 12 and 23, 2005, as well as the May 17, 2005, order. On July 15, 2005, Respondent ordered Petitioners to show cause why they should not be held in contempt for failing to obey the judgment and orders he issued in Civil Action No. 64-98.

Petitioners filed a motion for a preliminary injunction in the FSM Supreme Court on July 21, 2005. On Sept. 1, 2005, the trial division of the FSM Supreme Court enjoined Respondent from taking further action in Civil Action No. 64-98 until the conclusion of the State appellate process.

II.  Jurisdiction and Legal Standard

This Court derives its authority to issue writs of prohibition from Chk. S.L. No. 190-08, § 4, and Chk. App. R. 21(a). Election Comm’r v. Petewon, 6 FSM Intrm. 491, 496, 1 CSR 5, 8 (Chk. S. Ct. App. 1994).

The general requirements for the issuance of a writ of prohibition are that: "a court or officer is about to exercise judicial or quasi-judicial power, [and] the exercise of power is unauthorized and will result in damage or injury for which there is no plain, speedy or adequate legal remedy." Id. at 497, 1 CSR at 9. Ordinarily, the writ will not issue unless the petitioner has objected in the lower court to that court’s exercise of jurisdiction. Id.

III.  Discussion

As a preliminary matter, Respondent raised repeated objections to Petitioners' recitation of the foundational facts, as well as their arguments, at the March 8, 2006, hearing. He argued that those facts and arguments pertained to Appellate Case No. 02-2005, which is an appeal of Civil Action No. 36-2000. Although we noted Respondent's objections, we continue to deem Petitioners’ statements and arguments germane to this case as well as the two cases which are pending on appeal. This opinion pertains only to Original Action No. 03-2005, and Respondent's objections have no impact upon our decision. We now turn to the merits of the petition.

Petitioners contend that this Court should prohibit Respondent from conducting any further proceedings in Civil Action No. 64-98 because he (1) lacked jurisdiction to assume the matter in January 2005; (2) failed to abide by the Chuuk State Judiciary Act with regard to disqualification

[14 FSM Intrm. 183]

of justices; and (3) lost any jurisdiction he may have had when the stay issued. Petitioners objected to each of the challenged actions below. We consider each of their contentions in turn.

A.  Respondent lacked jurisdiction to assume Civil Action No. 64-98.

Petitioners first argue that Respondent had no jurisdiction to hear and decide any matters involving Civil Action No. 64-98 when he began issuing orders in January 2005. They point out that the Special Trial Justice's March 23, 2004, order, which vacated the 1998 default against Chuuk State and dismissed the case with prejudice, became final on April 6, 2004, and was not appealed. Petitioners also point out that no motion to set aside the judgment was ever filed by any party; nor did any written notice of assignment issue after the judgment became final.²

Respondent asserts that, at some point (which would have necessarily been between April 6, 2004, and August 20, 2004), a Rule 60(b) motion was filed and assigned to him by Justice O'Sonis. Respondent also asserts that the issues raised in the petition are the same issues that were raised in Petitioners' preliminary injunction motion.

Respondent undoubtedly knows, as do we, that a writ of prohibition and a preliminary injunction are distinct remedies. Moreover, assuming Respondent is making a res judicata argument, a preliminary injunction cannot have preclusive effect because it is not a decision on the merits. See Ungeni v. Fredrick, 6 FSM Intrm. 529, 531, 1 CSR 14, 15 (Chk. S. Ct. App. 1994) (explaining that res judicata applies only where there has been a full and final decision on the merits). Respondent's latter argument is simply without merit.

It is axiomatic that a trial justice may not, sua sponte, assert jurisdiction over a case which has been fully dismissed, particularly when that case was dismissed by another justice. When a case has been dismissed, there is no case or dispute remaining before the court. We are in agreement with Petitioners that Respondent could not have properly asserted jurisdiction over Civil Action No. 64-98 in the absence of a motion for relief from judgment filed by a party and a proper assignment of that motion to Respondent.

However, our resolution of this issue is complicated by the fact that the existence of the Rule 60(b) motion is disputed. According to the trial division’s certification of records, a document entitled, "Defendant’s opposition to the motion to vacate judgment by Special Justice Light and Certificate of service filed," was docketed on August 20, 2004. The same day, a document entitled, "Supplement on motion to vacate special appointed justice Light; Order to vacate judgment of CA No. 64-98 filed," was docketed. These documents, however, are not in the trial division files – over which Respondent suggested and agreed that we could take judicial notice. Nor is the motion to vacate, or the alleged assignment order from Justice O’Sonis, noted on the certification of records or contained in the files.

We are left, then, with conflicting statements by the parties and a record which implies that a

post-judgment motion in Civil Action No. 64-98 was indeed filed. Although we are not fully convinced that Respondent properly assumed the case in January 2005, we cannot say unequivocally that he lacked jurisdiction. Therefore, we will not issue the writ on this basis alone.

B.  Respondent failed to abide by the Chuuk State Judiciary Act with regard to disqualification of justices.

Next, Petitioners contend that Respondent should be prohibited from taking further action in this case because he violated the Judiciary Act respecting disqualification of justices. Petitioners insist that Respondent was statutorily required to refer the motions to recuse and disqualify to another justice. We agree.

Chuuk State Law No. 190-08, § 22(5) states, "Upon receipt of [a disqualification] motion, the Justice shall refer the motion to another Justice, to hear the motion and rule upon it." This language leaves no room for discretion. See Ting Hong Oceanic Enterprises v. Supreme Court, 8 FSM Intrm. 1, 4 (App. 1997) ("The use of the word 'shall' is the language of command and considered mandatory.").

Respondent denied the May 11, 2005, motion to recuse on the ground that recusal, unlike disqualification, is discretionary. He never formally ruled on the May 18, 2005, motion to disqualify. Instead, he pronounced that he was not required to refer that motion, since Petitioners were not parties. The statement as to Petitioners' standing was clearly erroneous. They became parties to Civil Action No. 64-98 no later than September 13, 1999.³

To date, this Court has not had occasion to consider whether the writ of prohibition should issue based on a trial justice's ruling on a disqualification or recusal motion. The FSM Supreme Court, however, has considered the issue on at least three occasions, e.g., Ting Hong, 8 FSM Intrm. 1 (App. 1997); Berman v. FSM Supreme Court(I), 7 FSM Intrm. 8 (App. 1995); Nahnken of Nett v. Trial Div., 6 FSM Intrm. 339 (App. 1994). In each of these three cases, the Court utilized an abuse-of-discretion test: In order for the extraordinary writ of prohibition to issue where a justice has denied a motion to recuse or disqualify, it must be an abuse of discretion for a justice not to recuse him- or herself. Ting Hong, 8 FSM Intrm. at 4; Berman, 7 FSM Intrm. at 10; Nahnken of Nett, 6 FSM Intrm. at 340.

An important distinction between the FSM Supreme Court cases and the case sub judice is that those cases concerned the FSM disqualification statute, 4 F.S.M.C. 124, which contains no provision requiring a trial justice to pass on a motion to disqualify when the justice is the subject of the motion. Despite that distinction, we find the cases instructive. The situation here is even more serious than that presented when a justice is accused of abusing his discretion in ruling on a motion to disqualify. We are of the opinion that, if the extraordinary writ of prohibition may issue where a justice has abused his discretion in ruling on a disqualification motion, it must likewise issue where a justice has patently disregarded a mandate which stripped him of any discretion to act in the first instance.

[14 FSM Intrm. 185]

We must now determine whether the violation first occurred when Respondent denied the May 11, 2005, recusal motion or when he failed to refer or formally rule upon the May 18, 2005, motion to disqualify. Respondent argues that, despite the interchangeable use of the words "recuse" and "disqualify," they are distinct actions, imposing distinct duties, and the Judiciary Act – which does not mention the word "recuse" – pertains only to the latter. This theory is not completely devoid of merit, since, as Respondent points out, the duty to recuse may arise even in the absence of a motion to disqualify. Ting Hong, 8 FSM Intrm. at 5.

Nevertheless, when a party files a motion to remove a trial justice from presiding over a case, irrespective of nomenclature, the party is attacking that justice's perceived bias or conflict of interest. See McIlrath v. Amaraich, 11 FSM Intrm. 502, 505 (App. 2003) ("A thing is what it is regardless of what someone chooses to call it."). We conclude then, that for purposes of the referral procedure set forth in section 22(5) of the Judiciary Act, a motion to recuse and one to disqualify are one and the same. See Berman, 7 FSM Intrm. at 10 ("A party seeking to disqualify an FSM Supreme Court justice files a motion to disqualify or recuse . . . .") (emphasis added); F.S. New Prods., Inc. v. Strong Indus., Inc., 129 S.W.3d 594, 597 (Tex. App. 2003) (where state rules provided procedure for recusal, but not disqualification, court held that rule governing recusal of appellate justices also applied to disqualification). Respondent exceeded his jurisdiction when he refused to refer the May 11, 2005, recusal motion to another trial division justice.

C.  Respondent lost any jurisdiction he may have had when the stay issued on May 19, 2005.

The order granting the stay, issued by the Acting Chief Justice of this Court, directed that "no further action be taken in the Trial Division in CSSC CA No. 64-98 and related cases until the matters raised in the appeal to this Court are heard and decided." The stay was not appealed to a full panel by any party.

Petitioners argue that the stay divested Respondent of any jurisdiction he may have had to hear and decide matters involving Civil Action No. 64-98 during the pendency of the appeal. Petitioners direct our attention to Rule 27(c) of this Court's Rules of Appellate Procedure, which grants aggrieved parties the right to appeal single-justice orders to a full panel. Petitioners interpret Rule 27(c) as applying strictly to parties, not to justices. We agree with that interpretation. Although subsection 'c' does not contain the word "party," the word is used elsewhere in Rule 27, and we believe this is the only sensible interpretation of the Rule.

However, our concurrence in Petitioners' argument does not fully dispose of the question before us: whether, by violating the stay, Respondent acted without, or in excess of, his jurisdiction. To fully dispose of the issue, it is necessary that we set forth certain principles of appellate review.

It is a firmly established general rule that a properly filed notice of appeal transfers jurisdiction from the trial court to the reviewing court. Election Comm'r, 6 FSM Intrm. at 498, 1 CSR at 10; FSM Dev. Bank v. Louis Family, Inc., 10 FSM Intrm. 636, 638 (Chk. 2002); Dep't of the Treasury v. FSM Telecomm. Corp., 9 FSM Intrm. 465, 467 (App. 2000). The transfer of jurisdiction divests the trial court of any authority, except to act in aid of the appeal. Walter v. Meippen, 7 FSM Intrm. 515, 517 (Chk. 1996). Examples of actions which have been construed to aid an appeal include, but are not necessarily limited to: applications for release from jail pending appeal, Nimwes v. FSM, 8 FSM Intrm. 297, 298-99 (App. 1998), applications for stay pending appeal, In re Recall Election, 8 FSM Intrm. 71, 73-74 (App. 1997), taxation of costs, Damarlane v. United States, 8 FSM Intrm. 14, 17 (App. 1997), and considering and denying, but not granting, except upon remand, Rule 60(b) motions for relief from judgment, Walter, 7 FSM Intrm. at 517-18.

[14 FSM Intrm. 186]

The only exception applicable here is the one pertaining to stays pending the appeal process. Rule 8(a) of the Rules of Appellate Procedure provides that an application for stay must first be made in the trial division of this Court. If the trial justice issues a stay, that justice retains jurisdiction of the stay issue while the appeal is pending. Konman v. Esa, 11 FSM Intrm. 291, 296 (Chk. S. Ct. Tr. 2002).

Rule 8(a) further provides that an application may be made to the appellate division or a justice thereof if the applicant can show that application to the court appealed from is not practicable; the court has denied the application; or it has failed to grant the requested relief. When a trial justice denies a stay, thereby permitting a complainant to seek appellate review pursuant to Rule 8(a), the justice loses jurisdiction over the issue. Id.

Here, Petitioners applied to Respondent for a stay on three occasions. The first occasion was March 29, 2005, when Petitioners filed a motion to stay pending resolution of the appeal which was filed that same day. It is not clear from the record whether Respondent formally ruled upon that motion. It is possible that he made some sort of oral pronouncement at the hearing on May 12, 2005, but his ruling on the March 29, 2005, motion to stay was not memorialized.

The second occasion was May 11, 2005, when Petitioners filed the recusal motion. In his order of

May 17, 2005, Respondent stated that he had denied the request for a stay. He reasoned, "I have decided not to recuse myself from this case. Therefore, the stay became moot."

The final occasion was May 18, 2005, when Petitioners filed the motion to disqualify Respondent. It does not appear that he ruled upon the accompanying motion to stay.

At the absolute latest, Respondent lost jurisdiction to enter a stay on May 18, 2005, when Petitioners filed a motion for stay in the appellate division. What, then, was the effect of the May 19, 2005, stay entered by the Acting Chief Justice of this Court?

This Court has said that the extraordinary writ of prohibition will lie where a trial justice exercises jurisdiction over a case wherein another justice has jurisdictional priority over the parties and issues. Election Comm'r, 6 FSM Intrm. at 498, 1 CSR at 10. The example of jurisdictional priority we cited in Election Commissioner was where a case has been assigned to a particular trial division justice. That justice has jurisdictional priority until the case is terminated in the trial division. Id.

We also said in Election Commissioner that the writ is proper where a trial justice interferes with the jurisdiction of the appellate division. Id. ("If a trial court continues to exercise jurisdiction after a proper notice of appeal has been filed, a writ of prohibition is proper.").

Here, once the appeal of Civil Action No. 64-98 was filed on March 29, 2005, jurisdictional priority shifted from Respondent to the appellate division – except, as we have explained, to perform acts in aid of the appeal. We must now decide whether the post-stay actions taken by Respondent can be deemed actions in aid of Petitioners’ appeal.

On July 15, 2005, Respondent entered an order directing Petitioners to show cause why they should not be held in contempt of court for failing to comply with Respondent's March 22, 2005, order, which set aside the order of the Special Trial Judge who vacated the 1998 default judgment. Respondent scheduled a show cause hearing for July 21, 2005. On July 25, 2005, he entered an order continuing the show cause hearing to July 29, 2005. On July 26, 2005, Respondent amended his July 25, 2005, order to include Petitioners’ counsel. On July 28, 2005, he issued a miscellaneous order which (a) said – erroneously – that a motion for stay had been filed in the trial division for the first time

on July 28, 2005, and the stay entered by the Acting Chief Justice on May 19, 2005, was "done without due process and without following the said rule" or the Constitution of this State; and (b) reflected that his order of July 29, 2005 (apparently, Respondent meant to refer to his order of July 25, 2005), was unchanged.

Respondent finally conducted the show cause hearing on August 2, 2005. He subsequently issued an order directing that Unupuku be surveyed on September 7, 2005.

Clearly, Respondent's post-stay acts were not acts taken in aid of Petitioners' appeal. On the contrary, they were acts designed to frustrate or nullify the appeal process.⁴

Respondent's only argument on this point is that, because the Acting Chief Justice had, in his view, a conflict of interest, he should not have ruled on the motion to stay. It is our view that an attack upon the Acting Chief Justice's authority to rule on the motion should have come from one of the parties, in the proper forum – the appellate division. See Chk. App. R. 27(c)(which we have interpreted as applying only to parties).

We conclude, therefore, that Respondent's interference with the jurisdiction of, and blatant disregard for a stay entered by, a justice having greater jurisdictional authority further supports our finding that he must be prohibited from taking any further action in Civil Action No. 64-98.

IV.  Conclusion

The Court is mindful of its duty to issue this extraordinary writ with great caution. See Election Comm'r, 6 FSM Intrm. at 497, 1 CSR at 9. The Court is also mindful, however, that it is "especially important to exercise the writ in those cases where it is necessary to confine a lower court to its proper function." Id. This is such a case. Respondent, having questionable jurisdiction when he assumed Civil Action No. 64-98 in January 2005, exceeded any jurisdiction he may have had by violating the Judiciary Act. Additionally, he acted without jurisdiction when he violated the stay entered by the Acting Chief Justice. Thus, the writ of prohibition ordering Respondent to refrain from exercising further jurisdiction – or taking any further action whatsoever – over Civil Action No. 64-98 issues herewith.⁵

¹ Tiu Killion may have been residing on Saipan at the time.

² Petitioners also advance a two-pronged due process argument: Respondent violated their due process rights by issuing sua sponte decisions in Civil Action No. 64-98 and by failing to provide Petitioners with notice that the April 6, 2004, judgment was being challenged or was in jeopardy. This Court does not take alleged due process violations lightly. However, a due process violation may be remedied through other means, such as a direct appeal. A writ of prohibition is not a writ of right and cannot lie when there is a plain, speedy, and adequate remedy otherwise available which has not been exhausted. Berman v. FSM Supreme Court (I), 7 FSM Intrm. 8, 10 (App. 1995). Our job is simply to determine whether Respondent has acted without, or in excess of, his jurisdiction. Election Comm'r v. Petewon, 6 FSM Intrm. 491, 497, 1 CSR 5, 9 (Chk. S. Ct. App. 1994).

³ In their motion to intervene, filed on August 2, 1999, Petitioners relied on Rule 24(a)(2) (intervention as of right) & (b)(2) (permissive intervention) of this Court's Rules of Civil Procedure. Petitioners argued that they had a right to intervene because they had an interest in the subject property. They argued in the alternative that the trial court should grant them permission to intervene. Petitioners clearly had a right to intervene in CSSC Civil Action No. 64-98, and they filed their complaint in intervention on September 13, 1999. Their status as parties was noted by the late Chief Justice Soukichi Fritz, who issued the consolidation order on July 8, 2003: "On May 2, 2000, apparently to ensure that their claims were heard, [Petitioners], already intervenors in CSSC-CA-No. 64-1998, filed . . . ." (emphasis added.) Petitioners' status as parties after September 13, 1999, cannot reasonably be disputed.

⁴ The hearing conducted by Respondent on May 23, 2005, was technically a post-stay activity, since the stay issued on May 19, 2005. He should have simply (a) denied the motion as moot, on the ground that the appellate division had already entered a stay, or (b) refrained from ruling at all, on jurisdictional grounds. However, since Petitioners, on May 18, 2005, filed motions to stay in both the trial and appellate divisions, we do not deem Respondent's May 23, 2005, ruling on the motion an act taken simply to frustrate or nullify the appeal process.

⁵ At the hearing on March 8, 2006, Respondent stated, on the record, that he recognizes his own partiality and, even if this Court were to deny the instant petition, he would, in the interest of justice, recuse himself from this case. Although we anticipate that Respondent would abide by those statements, we nonetheless believe in the necessity of the writ.