Cite as Goya v. Ramp, 14 FSM Intrm. 303 (App. 2006)

[14 FSM Intrm. 303]

APPEAL CASE NO. P6-2003

ORDER DENYING WRIT

Decided: July 14, 2006

BEFORE:

Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court
Hon. Yosiwo P. George, Specially Assigned Justice, FSM Supreme Court*

*Chief Justice, Kosrae State Court, Lelu, Kosrae

HEADNOTES

Courts – Recusal; Mandamus and Prohibition

When a petition addressed to an appellate justice asking that he disqualify himself has been denied by that justice, the party may file a petition for a writ of prohibition to prevent that justice from continuing to sit on the appeal. When the other two panel justices are of the opinion that the writ of prohibition clearly should not be granted, they will deny the petition. Goya v. Ramp, 14 FSM Intrm. 303, 304 (App. 2006).

Courts – Recusal

The FSM disqualification statute requires that a motion to disqualify a justice be filed before the trial or hearing unless good cause is shown for filing it later. When good cause was not shown for filing a disqualification motion four months after the hearing for which the movant seeks a justice's disqualification, it will be denied as untimely. Goya v. Ramp, 14 FSM Intrm. 303, 304 (App. 2006).

[14 FSM Intrm. 304]

Courts – Recusal

For the purpose of a recusal motion, a temporary justice is considered an FSM justice to whom 4 F.S.M.C. 124 applies. Goya v. Ramp, 14 FSM Intrm. 303, 304 n.1 (App. 2006).

Courts – Recusal; Mandamus and Prohibition

When a justice excluded counsel from a chambers conference in a Pohnpei Supreme Court case where counsel was trying to appear to represent a different client, her exclusion from that conference is inadequate to, and cannot, show personal bias by that justice toward counsel since, typically, only the judge and court personnel, the parties, and their counsel are permitted to attend a chambers conference and that counsel was not admitted to practice before the Pohnpei Supreme Court and her motion to appear pro hac vice in that case had not been granted. A petition for writ of prohibition will therefore be denied. Goya v. Ramp, 14 FSM Intrm. 303, 304-05 (App. 2006).

Attorney and Client – Admission to Practice

The filing of a motion to appear pro hac vice does not automatically entitle the applicant to appear. Goya v. Ramp, 14 FSM Intrm. 303, 305 n.2 (App. 2006).

COURT'S OPINION

PER CURIAM:

Goya asserts that specially assigned (temporary) justice, Judah Johnny, should have disqualified himself from this panel. She filed (along with petition for rehearing) a petition addressed to Justice Judah Johnny asking that he disqualify himself. Justice Johnny denied that petition by order entered June 13, 2006. Following the procedure outlined in Berman v. FSM Supreme Court (I), 7 FSM Intrm. 8, 10 (App. 1995), Goya then filed a petition for a writ of prohibition to prevent Justice Johnny from continuing to sit on this appeal. We "are of the opinion that the writ clearly should not be granted," and therefore deny the petition. FSM App. R. 21(b). Our reasons follow.

Goya bases this contention on two alleged incidents involving Justice Johnny and her counsel. The first occurred sometime in 2002. Justice Johnny was appointed to this panel in January, 2004. Goya did not raise this alleged ground for disqualification when notified of the panel's composition, or when her opening brief was filed, or at the August 11, 2004 oral argument. She only raises it now after an unfavorable decision and judgment were entered.

We conclude, that this ground was not timely raised. The FSM disqualification statute¹ requires that a motion to disqualify a justice "shall be filed before the trial or hearing unless good cause is shown for filing it at a later time." 4 F.S.M.C. 124(6). Good cause was not shown for filing a disqualification motion four months after the hearing (the August 11, 2004 oral argument) for which Goya now seeks Justice Judah Johnny's disqualification.

The second "incident" involved Justice Johnny's exclusion of Goya's counsel from a chambers conference in a Pohnpei Supreme Court case where Goya's counsel was trying to appear to represent a different client. Typically, only the judge and court personnel, the parties, and their counsel are permitted to attend a chambers conference. Since Goya's counsel is not admitted to practice before

the Pohnpei Supreme Court and her motion to appear pro hac vice² in that case had not been granted, her exclusion from that chambers conference is inadequate to, and cannot, show personal bias toward her by Justice Johnny.

Accordingly, the petition for writ of prohibition is denied.

¹ For the purpose of this appeal, Justice Judah Johnny is considered an FSM justice to which 4 F.S.M.C. 124 applies.

² The filing of a motion to appear pro hac vice does not automatically entitle the applicant to appear.