THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Adams v. Etscheit,
4 FSM Intrm. 226 (Pohnpei S. Ct. Tr. 1989)

[4 FSM Intrm. 226]

YVETTE ETSCHEIT ADAMS
and RENEE ETSCHEIT VARNER,
Plaintiffs,

vs.

ROBERT ETSCHEIT JR.
Defendant.

PCA. NO. 343

RULINGS ON DEFENDANT'S MOTION TO
DISQUALIFY PRESIDING JUDGE, ON PLAINTIFF'S
MOTION TO STAY FURTHER PROCEEDINGS,
AND ORDER OF MANAGEMENT

OPINION

Before Edwel H. Santos
Chief Justice
Pohnpei Supreme Court
May 19, 1989

APPEARANCES:
For the Plaintiffs:        Martin F. Mix
                                     Attorney at Law
                                     Kolonia, Pohnpei  96941

For the Defendant:     Michael J. Berman and
                                     Daniel J. Berman
                                     Attorneys at Law
                                     Kolonia, Pohnpei  96941
  
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HEADNOTES
Courts-Recusal
     In a state jurisdiction where only four justices are on the bench of the state Supreme Court and appointment of special judges is not provided by law, in a case in which only state law and the state Constitution are involved so that no appeal lies in any court other than the state Supreme Court, invocation of the Rule of Necessity rather than recusal is proper.  Adams v. Etscheit, 4 FSM Intrm. 226, 229 (Pon. S. Ct. Tr. 1989).

Courts-Recusal
     The fact that the Pohnpei Judiciary Act, 2L-160-82, 30(1) and (2), require a judge to rule on a motion for recusal reveal that disqualification is not mandated but instead is at the discretion of the judge.  Adams v. Etscheit, 4 FSM Intrm. 226, 230-31 (Pon. S. Ct. Tr. 1989).

[4 FSM Intrm. 227]

Courts-Recusal
           Disqualification of a judge under the Pohnpei Judiciary Act, 2L-160-82, minimally requires: (1) a written motion for disqualification filed before the trial or hearing unless good cause is shown otherwise; (2) a good faith affidavit showing factual grounds; and (3) grounds which originated after January 20, 1984 when the Act became effective, whereupon impartiality is to be assessed on the basis of whether a disinterested reasonable Pohnpeian who knows all the circumstances would harbor doubt about the judge's impartiality.  Adams v. Etscheit, 4 FSM Intrm. 226, 231-32 (Pon. S. Ct. Tr. 1989).

COURT'S RULINGS
EDWEL H. SANTOS, Chief Justice:

MOTION TO DISQUALIFY PRESIDING JUDGE
     Defendant, following entry by the Court of a temporary restraining order on April 27, 1989, which restrained the defendant, his attorneys and agents from engaging in any further construction or clearing or earthmoving work on certain portion of the land Umpwompw, filed his motion and affidavit to disqualify the presiding judge in this case from further proceeding in the case.  Defendant's motion alleged three grounds:

     1.  Presiding judge's impartiality might reasonably be questioned;
 
      2.  Bias or prejudice; and

      3.  Presiding judge previously served as defendant's lawyer in the matter in controversy.

     The Court heard oral argument on the motion on May 19, 1989, and upon consideration of the circumstances involved, the Court invoked the Rule of Necessity and denied the motion for disqualification.

REASONING
I.  INVOCATION OF THE RULE OF NECESSITY
     The Rule of Necessity prevails over disqualification standards set out in the Pohnpei Judiciary Act, 2L-160-82, 30(1) and (2).  The Rule of Necessity in the United States provides that:

     Judges are obliged to hear and decide cases from  which they might otherwise recuse themselves if no other judge is available to hear the case. This Rule of Necessity has been held in the United States to prevail over disqualification provisions of 28 U.S.C. 455 and Canon 3C of the Code of Judicial Conduct of the American Bar Association, both of  which are nearly identical to the language of 4 F.S.M.C. 124(1)(2).

[4 FSM Intrm. 228]

FSM v. Skilling, 1 FSM Intrm. 464, 470-471 (Kos. 1984); United States v. Will, 449 U.S. 200, 101 S. Ct. 471, 66 L. Ed. 2d 392 (1980).

     Be it noted however that the Pohnpei and the FSM Disqualification standards, 2L-160-82, 30(1) and (2) and 4 F.S.M.C. 124(1) and (2), respectively, are identical, word for word.  And as stated by this Court in Joseph v. Joseph, PCA No. 228-88, "The principles relating to recusal of a judge in a proceeding laid down by these cases FSM v. Jonas (II), 1 FSM Intrm. 306 (Pon. 1983), and FSM v. Skilling, 1 FSM Intrm. 464 (Kos. 1984) are proper and appropriate for adoption to be followed in similar circumstances," the case at bar presents similar circumstances warranting invocation of the Rule of Necessity.

     a. Constitutional Considerations
     No fewer than three justices shall hear and decide cases in the Appellate Division of the Pohnpei Supreme Court.  Pon. Const. art. 10, 5(2).  Failure to invoke the Rule of Necessity in this case will adversely reduce the capacity of the entire Pohnpei Supreme Court to the point of closing the door to our Appellate Division.

     b.  Statutory Considerations
     Appeals to the Appellate Division shall be heard by a panel consisting of three justices of the (Supreme Court) not having heard the matter at the Trial Division level nor otherwise disqualified.  The concurrence of the two justices shall be necessary to a determination of any appeal by the Appellate Division of the (Supreme Court) ... but a single justice may make all necessary orders concerning any appeal prior to the hearing and determination thereof, and may dismiss an appeal for want of jurisdiction, or failure to take or prosecute it in accordance with the applicable law or rules of procedure, or at the request of the appellant.  3L-5-84 of 2/13/84 which amended 50(b) of the Pohnpei Judiciary Act of 1982.

     c.  Judicial Economy and Administration Considerations
     This action was first filed in the Trust Territory High Court on April 26, 1968, by the then plaintiff Carlos Etscheit against Leo Etscheit and others.  Both Carlos Etscheit and Leo Etscheit have died.  Nonetheless, the Trust Territory High Court did not resolve the issue raised by the parties.  This case was transferred by the Trust Territory High Court to the Pohnpei Supreme Court in February 1984 for further handling.  Plaintiff's second amended complaint change the title of the action to Yvette Etscheit Adams and Renee Etscheit Varner, plaintiffs, v. Robert Etscheit, Jr., defendant.

     As one searches through the files of the case beginning from April 26, 1968, to this date, all of the current justices of the Pohnpei Supreme Court have participated in some way in the case dealing with Umpwompw.  Such participation includes clerical work, serving as judge, or counsel.  The question of disqualification may, if reasonably valid, affect all four

[4 FSM Intrm. 229]

justices who now sit on the bench of the Pohnpei Supreme Court, trial and appellate levels.
 
      The Court must respond to the issue long standing between the parties in this case.

     If I do not invoke the Rule of Necessity here and grant defendant's motion to disqualify the presiding judge in this case, I will have to assign another judge out of the only other three justices available.  That in essence will leave only two justices available to sit on appeal if a party decides to appeal the decision of the newly assigned trial judge.  The undesirable result will be that the door to the Appellate Division of Pohnpei Supreme Court will be closed to the litigants. Additionally, and given the age of the case, reassignment to another judge will demand a completely new start, because the new judge will have to go back to the beginning of the case to educate himself about the developments taking place since 1968.  This in a way will further delay the administration of justice, not only to the litigants in this case, but to the entire population of this state as well. Failure by this Court to invoke the Rule of Necessity in this case would have a contrary effect by denying the litigants their right to an appeal forum.

     The Chief Justice of this Court may prescribe stricter or additional standards of the Code of Judicial Conduct as borrowed from the American Bar Association approved standards. 2L-160-82, 29.  The holding in this case should be viewed as imposing an additional standard to the rule of disqualification as discussed in United States v. Will, 449 U.S. 200 (1980).

     In a jurisdiction like Pohnpei where only four justices are on the bench of its Supreme Court, trial and appellate levels, and where appointment of special judges is not provided by law in situations where disqualification of a judge would result in a contrary effect, like closing the door to the appellate forum, and where no appeal lies in any other court, other than Pohnpei Supreme Court where the issue of state law and the Constitution is involved, invocation of the Rule of Necessity is proper.

     Defendant argues that the situations found in United States v. Will, are not applicable to the situations confronted in the instant case because there still are other judges who can hear the case.  That argument is not well taken because even under the circumstances existing in Will, where there was a United States statute authorizing assignment of other federal judges to sit temporarily, 28 U.C.C.S. 291-296 (1976 ed.), the Court said, "It is not possible to convene a division of the Court of Appeal with judges who are not subject to the disqualification provisions of section 455."  The Court in Will's case went on to say:  "It was precisely considerations of this kind that gave rise to the Rule of Necessity, a well-settled principle at common law that, as Pollack put it, 'although a judge had better not, if it can be avoided, take part in the decision of a case in which he has any personal interest, yet he not only may but must do so if the case can not be heard otherwise.'"  Id. at 479-80.      

[4 FSM Intrm. 230]

     When attorneys argue before this court urging us to apply certain meanings of similar terms or situations as had been decided and applied in the United States or elsewhere, they must be extra careful in making such arguments because this Court has repeatedly made its position clear on that point as the Court, in response to the query, "What effect should be given to foreign decisions interpreting their own Constitution or (statute) when an issue arises for the first time in a jurisdiction with a new constitution (statute) interpreting a provision in pari materia with that of some other jurisdictions?," said,

     It will be improper to import into the question of construction doctrines of democratic theory and practice obtaining in other countries, unrelated to the tenor, scheme, and words of the provisions which we have to construe.  We must try to understand the contents of the United States Constitution delimited by judicial interpretation and in considering the authorities of the United States courts, we would not therefore be incorporating principles foreign to our Constitution or statute, or be proceeding upon the slippery ground of apparent similarity of expressions or concepts in an alien jurisprudence developed by a society whose approaches to similar problems on account of historical, social, cultural or other reasons differs from Pohnpeians.

Rosario v. Lohn, PCA 214-87; Pohnpei v. Hawk, 3 FSM Intrm. 543, 550 (Pon. S. Ct. App. 1988).

     Defendant further argued that under 2L-160-82, 30(1) and (2), a judge has a "mandatory duty" to disqualify from hearing a case where his impartiality might reasonably be questioned or where he is allegedly bias or prejudice against a party.  The Court takes exception to that argument because it has certain flaws in it, including the taint of misleading the court as to the proper construction of our disqualification statute.  Note the caveat in Hawk's case at page 10, "any attempt by an attorney to mislead the courts of this state ... will be viewed as suspect, and may be dealt with as contempt of Court."

     To determine whether 30(1) and (2) mandate a duty to disqualify, the statute's section 30(6) which says:

     A party may move to disqualify a justice or a judge 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 the grounds for disqualification exist, and shall be filed before the trial or  hearings unless good cause is shown for filing it at a later time.  Upon receipt of such a motion, the
 
[4 FSM Intrm. 231]

justice shall rule on it before proceeding further in the matter, stating his reasons for granting or denying it on the record.
 
(Emphasis supplied).

     This provision of the disqualification statute presents no doubt whatsoever that a discretionary duty, rather than a mandatory duty to disqualify was intended by the Legislature in enacting the disqualification statute.

     Parties are invited to take note of the fact that under the disqualification statute of the United States, 28 U.S.C. 455, there is no such discretionary provision as found in the Pohnpei statute 2L-160-82, 30(6), as well as that of the FSM as codified in 4 F.S.M.C. 124(6).  The United States statute, 28 U.S.C. 455, is a modification of the "duty-to-sit rule," thus making it mandatory on the part of the judges to disqualify.  See note 4, 28 U.S.C.S. 455, on Interpretive Notes and Discussion section.  Under the Pohnpei statute, as well as of the FSM's, the "duty-to-sit" still is the rule.  Joseph v. Joseph, PCA NO. 228-88; FSM v. Skilling, 1 FSM Intrm. 464 (1988).

     Another interesting fact of constitutional magnitude was the ex post facto effect of the defendant's grounds for disqualification which need reconciliation. All three grounds alleged as reasons for disqualification of the presiding judge here were based on events which took place before the coming into force of the disqualification statute.  Note as the defendant states: "From approximately 1977 until 1982 the presiding judge in this action served as legal counsel for the defendant, the defendant's uncle and the defendant's father, Dr. Robert Etscheit." Hence all alleged grounds for disqualification charged by the defendant took their root during the period admittedly between 1977 and 1982.  The Pohnpei Judiciary Act of 1982, 2L-160-82, within which the disqualification provisions are legislated, was passed by the Pohnpei Legislature on December 7, 1983, and signed into law by the Governor on January 20, 1984.  The defendant's alleged grounds for disqualification can not be held to disqualify the presiding judge in this case, lest doing so would violate the Constitution of this nation.  See Pon. Const. art. 4, 7; FSM Const. art. IV, 11; Duplan Corp. v. Deering Milliken, Inc., 400 F. Supp. 497 (D.S.C. 1975).

     For the reasons stated, the Rule of Necessity is available and appropriate in this case.  Defendant's motion should be denied.

     To sustain a motion to disqualify a judge under the Pohnpei Judiciary Act, 2L-160-82, as amended, the following features, as a minimum, must be present:
 
      1.  The motion for disqualification must be made in writing and filed before the trial or hearings unless good cause is shown for filing it at a later time; a motion filed after an issue of considerable importance in the case has been decided by the court may be considered untimely filed.

[4 FSM Intrm. 232]

     2.  The motion shall be accompanied by an affidavit stating factual grounds upon which the motion for disqualification is based.  An affidavit made in bad faith provides no ground for disqualification.  Where alleged ground for disqualification is known to the movant, but he chose to wait until the Court has ruled on any issue adversely to his interest in the case, a disqualification motion is suspect.

     3.  Grounds alleged must have their origin after the Pohnpei Disqualification statute came into force, to wit, January 20, 1984.  Grounds which took their root prior to the coming into force of the Pohnpei disqualification statute will not be honored.

     4.  Questioning of the impartiality of a judge must be determined on the basis of whether a disinterested reasonable Pohnpeian who knows all the circumstances would harbor doubt about the judge's impartiality.

     Considering the minimum requirements thus stated and even assuming that the Rule of Necessity is not appropriate and that the ex post facto effect of the constitution be overlooked in this case, the alleged grounds for disqualification as analyzed below do not warrant disqualification of the presiding judge from hearing the case.

     a.  The presiding judge's impartiality might reasonably be questioned.

     This court has stated in Joseph v. Joseph, PCA No. 228-88, following FSM v. Skilling, 1 FSM Intrm. 464, that the reasonableness of one's questioning about a judge's impartiality is to be considered from the perspective of the disinterested reasonable observer, not from the perspective of the litigant, or of the judge.  The reasonable observer test here is to be viewed from a "reasonable Pohnpeian observer" rather than from any reasonable observer.

     Defendant's motion, including his affidavit fail to satisfy this disinterested reasonable observer test.  The alleged facts which necessitated the communication between the presiding judge here and the defendant's father, attachments B and C, were misconstrued by the defendant to the point of harassing the presiding judge here.  The actual fact then known to the presiding judge which prompted the communications (defendant's attachments "A" and "B") directly related to the presiding judge (counsel's) taking the initiative of having the late Leo Etscheit's will translated into English, thus making that will known to the world.  The translation of said will certainly defeated the defendant's father's scheme of removing the accounts of Leo Etscheit from the Bank of America in San Francisco to a much farther away bank in Zurich, Switzerland thus evading the accounts from the reach of the Micronesian courts, creating unjustified jurisdictional problems for the Micronesian courts over Leo Etscheit's bank accounts.  The translation of Leo Etscheit's will into English paved the road for the named beneficiaries therein, including the State Government to come forth to claim their shares under the will through probate action in this Court, PCA No. 77-80.  This is exactly what the defendant's father did not want to happen, and for what other reasons he did not want the late Leo Etscheit's will to be translated is a

[4 FSM Intrm. 233]

matter for anybody to conjecture.  Needless to say, however, it is appropriate to say here "Dehr Sarepada Pwoar en Kakiles," or better preserve the right to remain silent.

     In addition, the defendant's affidavit presents certain other flaws and libelous statements which this court, in the interest of preserving the cultural mores of Pohnpei, is duty bound to correct.  For example, paragraph 4 of his affidavit is not fully accurate.  Paragraph 5 through 8 of the affidavit repeats the irony of Dr. Robert Etscheit's letter (Defendant's Attachment B).  Paragraph 9 alleging the presiding judge's failure to address the issue of judicial ethics and how he could continue to represent the family's legal affairs while being a nominee for the position of Chief Justice is without merit.  No Pohnpei law prohibits a nominee to a judgeship from continuing to practice law.  Prohibition attaches when one takes his judicial oath.  There still are other statements in the defendant's affidavit amounting to mistreatment of the presiding judge here, which for the purpose of this ruling, I need not belabor upon any further.  The truth of the matter shall prevail anyhow, as the Pohnpeian terminology "eluwahk reirei sapwasapw" denotes. Defendant's charge of partiality and bias made against the presiding judge could very well be the defendant's own projected self hatred of and prejudice against the presiding judge.  One's own hatred or prejudice against a judge does not justify a ground for disqualification.

     An affidavit tending to support a motion to disqualify a judge when found to be libelous, containing substantial inaccurate statements, is derogatory to Pohnpeian customary mores, notwithstanding the defendant's statement that "the affidavit is made in good faith," should be viewed as suspect and be accorded the treatment it rightfully deserves.  Joseph v. Joseph, PCA No. 228-88.

     The justices of this Court have a duty not to disqualify from a case where disqualification would render our judicial system inoperable, or where delay in the Court's administration of justice will result.  As stated by this Court, "In considering motions for recusal the court must carefully analyze the grounds in terms of the disqualification statute, and the court need not lightly grant such motions simply to accommodate or placate litigants or their counsel, lest the judge be violating his judicial oath ... "  Joseph v. Joseph; FSM v. Skilling, 1 FSM Intrm. 464.  Defendant's motion here points to the similar situations to which the above instructions direct.

     It is judge's duty not to disqualify himself and reassign a case to another judge unless he believes there are proper and reasonable grounds therefor.  Lazofsky v. Sommerset Bus  Co., 389 F. Supp. 1041, 1045 (1975).

     b.  The presiding judge's bias or prejudice against the defendant precludes defendant from obtaining a fair and impartial hearing or trial.  Affidavits as to the alleged personal bias or prejudice of a judge must be filed at the earliest opportunity and must be legally sufficient.  Allegation in an affidavit of bias or prejudice charging that the presiding judge "before

[4 FSM Intrm. 234]

and after his ascendancy to the bench" made certain statements which lead defendant to believe that the presiding judge is biased, was legally insufficient to require the presiding judge to recuse himself.  United States v. Partin, 312 F. Supp. 1335 (1970).

     Defendant failed to state in particularity or in specific terms any act or statement of the presiding judge made extra judicially which can rightfully be attributed to the defendant himself, nor did he explain the reasons for withholding his motion until late date, especially where his alleged grounds were known to him long before hand.  Defendant however relied primarily on a statement in which this presiding judge in an earlier communication characterized the late Leo Etscheit as a "business tycoon of the white race."  That characterization made no mention at all of the defendant himself.  Defendant's generalization that the characterization involved himself as well is not to be taken as correct.

     The Court in Duplan said, "Judge's comments said to show a dislike for Europeans in general and the French in particular were legally insufficient to warrant a disqualification of the judge."  Duplan, 400 F. Supp. at 524.

     c.  The presiding judge in private practice served as lawyer in the matter in controversy.
 
      If the defendant had been more sincere in his effort, he could have stated that the presiding judge represented the late Leo Etscheit and others against the Iriarte royal family of Nett, that the issue then was the ownership right in Umpwompw.  The issue before this Court in the instant case is "how to partition the land Umpompw" in its entirety between Yvette Etscheit Adams and Renee Etscheit Varner on one side and Robert Etscheit, Jr. on the other.  The matter in controversy relating to the presiding judge's prior legal assistance to the defendant is distinguishable.

     This case is the oldest case in the docket of this Court, having been pending since 1968.  It was transferred to this Court from the Trust Territory High Court in 1984.  Defendant sought to disqualify the presiding judge after the judge assumed handling of the case since November 11, 1987, issued several rulings and orders in the case, and after the presiding judge issued a temporary restraining order adversely to the defendant.  The grounds assigned for disqualification were known to the defendant even before the case was transferred to the Pohnpei Supreme Court in 1984.  No excuse was given by the defendant as to why he chose to file his disqualification motion at this late date, especially after this presiding judge had issued certain rulings and orders in the case.

     In a small state like Pohnpei where the population is small, everybody knows everybody, and in order to preserve the good personal relationship of the citizens, an affidavit filed to disqualify a justice for bias or prejudice, the trial judge must respond to the matters asserted therein, and where allegations are known by the judge to be false, the judge must rectify the falsity to set the record straight.

[4 FSM Intrm. 235]

     Promptness in asserting disqualification is necessary to prevent either party from awaiting possibly adverse determination of its claim.

     Defendant, in the span of four years, had been assisted by two attorneys in this action.  The first attorney did not ask for disqualification.  The second attorney who entered his appearance as late as May 17, 1989, made the move to disqualify the presiding judge.  Defendant's tactics here are best viewed as judge shopping.  The late filing of defendant's motion without just cause is not favored by this court.  To allow a motion like this to come in at a late date without excuse would be to place the management and control of civil cases in the hands of the attorneys.  This tactic should not be permitted to prevail in this jurisdiction.

CONCLUSION
     Defendant's motion to disqualify the presiding judge from further hearing and deciding the case hereby is denied on grounds of:

     1.  The Rule of Necessity, and

     2.  Insufficient legal and inexcusable factual basis.

II.  PLAINTIFF'S MOTION TO STAY FURTHER PROCEEDING UNTIL DETERMINATION IS MADE AS TO WHETHER THE FATE OF ETSCHEIT LAND WILL BE MADE IN PCA 343 OR PCA 77-80.
     Court Ruling:  Upon consideration of the relevant circumstances in both cases and in balancing the interest of both the plaintiffs and the defendants in PCA 343 or PCA 77-80, the Court is of the opinion that PCA 343 is the proper action to resolve the issue long confronting the parties and this Court.  PCA 77-80 being a probate action deals only with the late Leo Etscheit's estate which includes only a portion of the land Umpwompw.  PCA 343 includes the entire Umpwompw.

ORDERED:
     1.  PCA 343 shall proceed.

     2.  Defendant to withdraw all pleadings relating to the late Leo Etscheit's real estate previously filed in PCA 77-80 and have same filed in PCA 343 to be treated as the defendant's reply to the plaintiff's second amended complaint.

III.  MANAGEMENT ORDER
     The Court anticipates resolution of the partition issue between the parties to be completed during the remaining portion of 1989.  To accomplish this objective, parties and their attorneys are ordered to comply with the following schedule of activities:

     1.  No later than Wednesday, May 24, 1989, parties are to prepare and to

[4 FSM Intrm. 236]

file a joint statement, signed, stating whether or not a preliminary injunction ought to issue, and if so, what should be the acceptable terms of such a preliminary injunction.  If no agreement on this point can be reached, the parties should also notify the Court of that conclusion.  (This undertaking cancels the hearing set for 2 p.m. on Friday, 19, 1989 on the plaintiff's motion for preliminary injunction.).

     2.  Defendant's motion to stay enforcement of order denying disqualification, filed on May 19, 1989, and his motion for a writ of mandamus are held in abeyance.

     3.  Parties are to complete discovery by the end of May 1989.  No further discovery will be allowed after May 31, 1989.

     An examination of the pleadings and exhibits filed in the case reveals the necessity for determining certain fundamental issues before the consideration of whether and how to partition the land Umpwompw between the parties now before the Court can be made.  For this reason, bifurcated hearings are necessary.  Accordingly, the below listed issues will be tried on Monday, June 26, 1989, beginning at 10 a.m. in the Courthouse.

     1.  What legal or equitable rights do the respective parties have in the land Umpwompw, otherwise commonly referred to as the Etscheit land.

     2.  From what source or sources do the parties respective rights flow.

     Parties are invited to produce evidence at this hearing to support their respective claims.  In addition, briefs or memoranda on the issues are welcome.

     Following the resolution of the issues, the question of partition will pose no further difficulty between the parties.

     So ordered, 19 May 1989.

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