Cite as Skilling v. FSM 2 FSM Intrm. 209 (App. 1986)

[2 FSM Intrm. 209]



APP. No. Kl-1984
(From: Crim. No. 83-515)

Argued:  January 27, 1986
Decided:  May 30, 1986


     Honorable Richard H. Benson, Associate Justice, FSM Supreme Court
     Honorable Mamoru Nakamura, Temporary Justice, FSM Supreme Court*
     Honorable Edwel H. Santos, Temporary Justice, FSM Supreme Court**

     *Chief Justice, Republic of Palau Supreme Court, on this Court for this case by designation

     **Chief Justice, Pohnpei Supreme Court, on this Court for this case by designation

[2 FSM Intrm. 210]

     For the Appellant:          Mark L. Mausert
                                              Public Defender
                                              Office of Public Defender
                                              Pohnpei, FSM 96941

     For the Appellee:               Carl V. Ullman
                                                  Attorney General
                                                  Office of the Attorney General
                                                   Pohnpei, FSM 96941
*       *        *        *


Civil Procedure; Criminal Procedure; Courts
     Due process does not require that a second judge decide motions for recusal where the trial judge accepts as true all of the factual allegations in the affidavit of the party seeking recusal, and must rule only on matters of law in making the decision to recuse or not recuse himself.  Skilling v. FSM, 2 FSM Intrm. 209, 213 (App. 1986).

Civil Procedure; Criminal Procedure; Courts
     The procedure for recusal provided in the FSM Code, whereby a party may file a motion for recusal with an affidavit, and the judge must rule on the motion, stating his reasons for granting or denying the motion, before anyfurther proceeding is taken, allows the moving party due process.  Skilling v. FSM, 2 FSM Intrm. 209, 214 (App. 1986).

Civil Procedure; Criminal Procedure; Courts
     The bar against "public comment" by a judge regarding a case in trial, contained in 4 F.S.M.C. 122 and Canon 3A(6) of the Code of Judicial Conduct of the American Bar Association, is not violated by a trial court judge's encouraging a representative of the national official newspaper to publish his opinion on a motion for recusal, and such encouragement does not demonstrate partiality requiring recusal.  Skilling v. FSM, 2 FSM Intrm. 209, 215 (App. 1986).

Civil Procedure; Criminal Procedure; Courts
     The trial judge is justified in denying a motion for recusal on the
basis of failure of the moving party to file an affidavit explaining the factual basis for the motion.  Skilling v. FSM, 2 FSM Intrm. 209, 216-17 (App. 1986).

Civil Procedure; Criminal Procedure; Courts
     The trial court judge's act of encouraging publication of his opinion on
a motion for recusal in a national official newspaper, taken together with 1) the fining of defense counsel for tardiness, 2) the length of the sentence imposed, 3) the judge's comments about community support for defendant,

[2 FSM Intrm. 211]

explaining how that factor was taken into account in sentencing, and 4) the accelerated pace of sentencing proceedings, which was not contemporaneously objected to by defense counsel, do not indicate an abuse of discretion by the judge in denying the motion for recusal.  Skilling v. FSM, 2 FSM Intrm. 209, 217 (App. 1986).

*       *       *        *

Benson, A. J.:
     The defendant was convicted and sentenced for two counts of theft upon his plea of guilty.  Prior to the plea being offered the trial court deniedthe defendant's motion that he recuse himself on the ground of the appearance of partiality.  The defendant appeals that ruling.  We affirm.

     Two issues are presented.

     (1)  Whether or not due process requires that the judge who is the subject of a recusal motion refrain from ruling upon the motion.

     (2)  Whether or not a judge who denied a motion for recusal and called
his opinion to the attention of the national official newspaper has shown that
there is a reasonable ground to question his impartiality.

     In a two count information filed April 29, 1983, the defendant was accused of theft and forgery.  On September 15, 1983 in open court a plea agreement was presented to the trial court.  For various reasons involving the drafting of the method of restitution, the court found it unsatisfactory in the form submitted.  Later in chambers a revised agreement was presented and the trial court refused it on the ground that it permitted the defendant to retain a hotel.  It appeared that the hotel had been built with stolen funds.

     On March 2, 1984 a new information containing 119 counts of theft and forgery was filed.  The case based on this information and the 1983 case were consolidated.

     The defendant then moved for the trial judge to recuse himself because  of his involvement in the plea agreement.  The motion was not supported by an affidavit as prescribed by 4 F.S.M.C. 124(6) and was therefore denied.  The attorney for the defendant filed an affidavit on March 22, 1984.  The motion was then argued on March 26, 1984.  On March 27, 1984 in open court the judge denied the motion and offered to submit the prescribed statement of Rule 5 of the Rules of Appellate Procedure if an interlocutory appeal was desired.

     On May 9, 1984 a written opinion was entered, 1 FSM Intrm. 464 (Kos. 1984), and the court filed the prescribed statement should application be made
for an interlocutory appeal.

[2 FSM Intrm. 212]

     The trial judge then took the step which constitutes the factual basis for this appeal.  In May 1984 he told a responsible person associated with the
National Union, an official publication of the Federated States of Micronesia,
a news publication published semimonthly, that an opinion in this case "was coming down, that it was interesting, that a copy of said opinion would be forthcoming and that [the person] might want to use it in the NationalUnion."  (The quoted portion is from the September 20, 1984 affidavit of Tom Bryan, the advisor to the National Union, which was attached to the later motion to recuse.)  An article based on the opinion did appear in the May 30, 1984 issue of the National Union.

     No interlocutory appeal was taken.

     On July 16, 1984, a notice setting trial for September 24, 1984 was filed.  Prior to the trial date a motion for recusal supported by affidavits was filed.  The matter came on for oral argument on September 24, 1984.  The motion was denied.

     On September 28, 1984 the defendant pled guilty to an amended two count information.  Sentencing was set for the same day.  At the opening of the sentencing hearing the defendant made an oral motion for recusal unsupported  by affidavit, "based on the same grounds that were argued for recusal for the trial . . ." and on the ground that the court's questioning of the defendant during the plea made it appear that the court disbelieved the defendant, and that although that had been cleared up, the court "might have . . . generated some passion against [the defendant]." Transcript, Vol.  II, at 88.

     The sentence incorporated the terms on the divestment of the hotel which were contained in a written plea agreement, and committed the defendant to
imprisonment for one year--a term which exceeded the length recommended by the
government and by the National Justice Ombudsman.

     This appeal followed.

     The defendant's first contention is that the judge who is the subject of a recusal motion cannot rule upon the motion.  The defendant asserts that for the judge to do so would be to allow the judge to rule on a matter in which he has an interest, and that such a procedure deprives the defendant of due process of law since the matter is not being decided by an impartial judge.

     The defendant next contends that the trial judge erred in not disqualifying himself since his impartiality might reasonably be questioned.  Emphasis is assigned to the incident of encouraging publication of the  opinion.  This is the only ground supported by affidavit.  Defendant contends other incidents which taken together with the publication show partiality.  These are characterized as follows in the Appellant's brief: "the fining of defense counsel for tardiness, the length of sentence imposed upon Mr. Skilling, comments by the trial court regarding its displeasure with manifestations of community support for Mr. Skilling, the length the trial

[2 FSM Intrm. 213]

court to in order to elicit factual admissions at sentencing and the perfunctory, and hurried nature of the sentencing proceeding."  Appellant. s Opening Brief at 11.

     The government points out that the motion to recuse made prior to sentencing was unsupported by any affidavit as required by the statute and contends that the trial court was warranted in denying the motion on this ground alone.

     The government further points out that the September 28th motion was to recuse from sentencing.  The September 24th motion had been to recuse from trial--a matter rendered of no effect because the defendant pled guilty.  Thus an entirely new motion, supported by affidavits, on that new ground is   needed.  The contention is that the September 28th motion was thus fatally defective and that the earlier motion to recuse from trial was rendered moot  by the guilty plea.  We rule on the merits of the motion supported by  affidavit to recuse from trial and from sentencing.  We agree with the government that the grounds not supported by affidavit are not properly before the court.

     We hold first that due process does not require that a second judge decide motions for recusal, where, as here, neither the truthfulness nor the good faith of the affidavits is questioned, and second that the circumstances here do not raise a reasonable question of the court's impartiality.

     Concerning the defendant's due process contention, the beginning point  is the Code itself, 4 F.S.M.C. 124, which provides in pertinent part:

     (1)     A Supreme Court Justice shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
     . . . .
     (6)     A party may move to disqualify a Supreme Court Justice for one or more of the reasons stated in subsections (1) or (2) of this section.  Said motion shall be accompanied by an affidavit stating the reasons for the belief that grounds for disqualification exist, and shall be filed before the trial or hearing unless good cause is shown for filing it at a later time.  Upon receipt of such a motion,  the Justice shall rule on it before proceeding further in the matter, stating his reasons for granting or denying it on the record.

[2 FSM Intrm. 214]

     The contention of the defendant, that due process requires that motions for recusal be ruled upon by another judge, amounts to a claim that the Code provision is unconstitutional.

     Concerning the affidavit filed by the defendant, no question as to its truthfulness or as to the good faith of the moving party in filing it is presented.  The defendant fails to cite one case in support of his proposition that, under such circumstances, the trial judge whose impartiality is the subject of the affidavit should not rule upon the legal sufficiency of the affidavit.  The authority that has been cited to us by the parties, all United States cases, are uniform that under such conditions the judge who is the subject may rule upon the matter.  Typical of such authority is United States v. Haldeman, 559 F.2d 31, 131 (D.C. Cir. en banc 1976), cert. denied, 431 U.S. 933, a case involving both judicial and extrajudicial statements.

     The present procedure called for in the Code renders the defendant due process. He is able to file his motion with the affidavit; then before any further proceeding is taken, the Justice rules on the motion, stating his reasons for granting or denying the motion.  In this case the trial judge stated on the record his reasons for denying the motion when it was made prior to trial to recuse him from trial (Tr., Vol.  II, at 7) and to recuse him fromsentencing (Tr., Vol.  II, at 88, 89).  From the adverse rulings, the defendanthas appealed, and the entire matter has been argued and then reviewed by this division.  This comports with due process.

     Without hesitation we find that the defendant's attack on the constitutionality of Section 124(6) of Title 4, being a part of the Judiciary Act of 1979, is without merit.

     The next question is whether the trial judge should have recused  himself.

     The standard to be observed for recusal is found in 4 F.S.M.C. 124(1), which reads: "A Supreme Court Justice shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

     While this sentence is unambiguous, understanding is increased by defining the words.  "Impartiality" means freedom from bias or favoritism; "reasonably" describes the quality of good judgment--sensibly or rationally; and "questioned" means placed in doubt or in dispute.  Webster's Third New International Dictionary (1965).

     In support of his motion to recuse the trial judge, the defendant submitted an affidavit stating that the trial judge encouraged the publication of his opinion concerning recusal, as already mentioned above under "Facts."  To analyze whether this act reveals bias on the part of the judge, we look  both at the act itself and to the contents of the opinion.

     The opinion was a public document.  The judge made no comment upon it; only excerpts from the opinion appear in the article.  The trial court state his reason for his action at the time he denied the motion to recuse himself:

[2 FSM Intrm. 215]

     The Court's policy is to make its opinion public and to turn over copies of the opinions to the Public Information Officer as part of the Court's wish to develop a system of jurisprudence here in the  Federated States of Micronesia.  In no way does it suggest, nor can it be perceived as indicating partiality on the part of the Court to carry out its normal policy in this situation.

Tr., Vol.  II, at 7.

     The defendant himself makes this acknowledgment in his brief: "[T]he motivation of the trial court may have been purely educational and entirely innocent." Appellant's Opening Brief at 13.  The defendant fails to offer in written or oral argument a single reason that the act of encouraging publication demonstrates partiality.

     The defendant alludes unpersuasively to the bar on "public comment" of   a case in trial in seeking to cast error upon the trial judge.  4 F.S.M.C.  122; Canon 3A(6) of the Code of Judicial Conduct of the American Bar Association.  We do not agree that this encouragement to publish was public comment on pending litigation.

     We next examine the opinion itself.

     The lengthy opinion setting forth the judge's reasons for denying the motion for recusal contains a statement of facts including his acts when the plea proposals were presented to him, a description of why recusal should not lightly be done in a jurisdiction such as ours with a limited number of  judges, an examination of the recusal statute and the meaning given it by the United States cases, and an application of the facts to that statute.

     The only matter in which the judge's view as to the proposal was sought concerned the restitution provision.  The opinion is silent about any punishment of imprisonment.  The facts are that the proposal was submitted to the judge in March, 1984, and he said what he would not approve as to the restitution.

     When the guilty pleas were made on September 28, 1984, there was a new plea agreement.  It involved two parts, restitution and loss of liberty.  The provision concerning the restitution (involving the divestiture of the hotel  by the defendant was detailed, and its provisions were agreed to by both the government and the defendant.  This part was approved also by the court.  As  to loss of liberty, the plea agreement provided that the government would recommend 6 months' confinement. The court was not bound to follow that recommendation, and that was clear to the defendant.  Tr., Vol.  II, at 76, 77.  The agreement provided discretion to the court as to the amount of jail time. Tr., Vol. II, at 70.
     This appeal was taken because the trial court did not follow the recommendation by the government.  Appellant's opening Brief at 11.

[2 FSM Intrm. 216]

     We fail to find in this record--in the act of encouragement of the publication or the opinion itself--justification for the judge to recuse himself.

     The amended information to which the defendant pled guilty contained   two counts of theft--one of the amount of "approximately $73,039," and the second of "approximately $60,708."  The sentence of five years, with four suspended upon conditions, does not appear as one that is the product of bias.

     Next considered are those additional grounds, of which the defendant says: "No single such aspect is sufficient by itself to provide adequate grounds upon which to demonstrate a lack of impartiality.  However, when  viewed together, in conjunction with the trial court's action of encouraging publication of its opinion they cause a reasonable question to arise as to whether the court was impartial."  Appellant's Opening Brief at 10.  Not one  of these aspects was the subject of an affidavit.

     1.  "[T]he fining of defense counsel for tardiness."  This ground was  not raised orally below, and no argument is offered before us as to how this indicated bias against the client.

     2.  "[T]he length of sentence imposed upon Mr. Skilling."

     3.  "[C]omments by the trial court regarding its displeasure with manifestation of community support for Mr. Skilling."

     The comments referred to were made just prior to the imposition of sentence. This court would characterize the comments differently, summarizing what the trial court said:  A popular and important person is the type who is in a position to take such large sums; that such a person has popular and important friends who come forward to request leniency.

     The court then explained how this was taken into account by him in determining sentence.

     4.  "[T]he length the trial court went to in order to elicit factual admissions at sentencing."

     The reference to the transcript that defendant makes indicates that he means what occurred during the examination of the defendant by the trial court at the time the guilty pleas were made, not during sentencing.

     5.  "[T]he perfunctory and hurried nature of the sentence proceeding."
The matter of the time available for sentencing was raised by both counsel prior to the imposition of sentence, and each was satisfied that the sentencing proceed. Tr., Vol. II, at 89, 90, 97.  The defendant made no motion to postpone the proceeding. This was not a ground for recusal raised orally.

     We hold first that these matters were not supported by affidavit as

[2 FSM Intrm. 217]

required by statute and second we fail to find in them the support that the defendant contends is there--that taken with the act of encouraging  publication partiality is shown.  We find no abuse of discretion by the trial court in denying the motions that he recuse himself.

     For the reasons stated, the judgment is affirmed.