Cite as Adams v. Etscheit,
4 FSM Intrm. 237 (Pohnpei S. Ct. Tr. 1989)

[4 FSM Intrm. 237]




PCA NO. 343



Before Edwel H. Santos
Chief Justice
Pohnpei Supreme Court
June 26, 1989
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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Courts - Recusal
     A motion requiring a trial court to reconsider its earlier ruling denying a motion for recusal may be denied where a party making the motion has been aware of the document upon which the motion is based for almost 10 years; where counsel who prepared the motion had done so without previously appearing before the trial judge to "assess the temper of that judge;" where the trial judge had studied the entire case "quite extensively" before the motion had been filed; and where there are "strong indications" that counsel is "judge-shopping," so that counsel's conduct "represents an example of a very serious and contemptuous misconduct" toward the court.  Adams v. Etscheit, 4 FSM Intrm. 237, 238-40 (Pon. S. Ct. Tr. 1989).

Civil Procedure - Recusal
     To apply a standard of judicial ethics established by statute in 1982 to

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prevent a judge in 1989 from presiding over a case because his conduct prior to 1982 suggests that he now may be biased against the party seeking recusal would be inappropriate, in the nature of an ex post facto violation, and would be contrary to "the policy favoring prospective application of court decisions [which] also applies to statutes."  Adams v. Etscheit, 4 FSM Intrm. 237, 240 (Pon. S. Ct. Tr. 1989).

EDWEL H. SANTOS, Chief Justice:
     Defendant through counsel filed on June 21, 1989, a motion asking the Court to reconsider its earlier ruling rendered on May 19, 1989 (docketed May 24, 1989).  The earlier ruling denied the defendant's motion to disqualify the presiding judge from hearing the case.  The motion for reconsideration requests the Court to reconsider that May 19th ruling and to grant the motion for disqualification.  In a letter submitted by counsel along with a copy of the motion, he indicated that his "client sees no need for a hearing on this motion." Accordingly, I proceeded to consider the motion herein, including two affidavits submitted in support thereof, re-read and re-analyzed this Court's ruling of May 19, 1989, against the arguments advanced under the motion for reconsideration, and concluded that this Court's ruling of May 19, 1989, need not be varied.  This being my conclusion, nevertheless, I feel it is imperative for the record that I explain certain points of notable concern raised in the instant motion.

     First, counsel's undesirable scheme of conduct.  It should be pointed out that the defendant had employed three attorneys thus far since 1983, the first being Mr. Robert Keogh of Guam.  Anyway, the tactic being employed by the defense counsel since they assumed the case represents, in my considered opinion, an unhealthy threat to this Court, a deficiency in character amounting to misconduct, and is calculated to sample the temper of this Court as an attempt to fish out for some supportable grounds to justify their motion for disqualification.  For example:

     (a)  Misconduct of Counsel.  Counsel Michael Berman entered his notice of appearance on May 17, 1989, however, on April 27, 1989, counsel had already began his research work in Honolulu to disqualify Judge Santos.  [See defendant's Exhibit ("A") and Attachment "1" to said exhibit].  So here it is evident that even prior to counsel being allowed to enter the case, he had already formulated his scheme to disqualify the presiding judge without even knowing whether the presiding judge would grant him permission to enter in the case. Counsel's own affidavit, Exhibit (A), paragraph 5, states that on May 11, 1989, he received for the first time his motion to disqualify judge, marked Attachment (E). If counsel only had seen for the first time on May 11, 1989, what he submitted as Attachment (E) to his motion for disqualification and upon which his motion for disqualification was grounded, how could counsel began his research on April 27, 1989, to disqualify the judge when counsel had not even appeared before that judge to assess the temper of that judge.  This is awfully absurd.  The defendant's own affidavit, Exhibit (B) paragraph 5

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referring to the same document being relied upon to justify disqualification of the judge, shows that defendant and his attorneys were in possession of that document since December 20, 1980.  Defendant having forgotten all about that document, as he claimed he had, afford no excuse; it only facilitates counsel's deficiency in character.  After counsel Daniel Berman attended the first chamber conference on December 7, 1987, where the Court instructed that attorneys filed their notices of appearance in the case, he filed his notice of appearance on December 8, 1987.  Why counsel did not take special attention to a piece of document which the defendant relied upon for his disqualification motion is beyond reason.  And interestingly, however, immediately after this Court denied defendant's motion for disqualification on May 19, 1989, counsel filed a writ of mandamus action in the Appellate Division of this Court without even citing any authority within this jurisdiction for such an action against a justice of this Court. The Court views counsel's effort, as here, to amount to a threat to the integrity of the Court.  It should be noted here that had a motion for disqualification lodged with the Court prior to the Court's entry of certain management orders, including the granting of a temporary restraining order, a different ruling by the Court could be anticipated then, but certainly not this time, especially after the presiding judge had done a substantial amount of judicial work in the proceeding since 1987.

     (b)  Handling of Case by Presiding Judge.  On November 11, 1987, the presiding judge here assumed handling of the case, first chamber conference was held on December 7, 1987, wherein attorneys Daniel Berman and Martin F. Mix attended.  A number of motions had been ruled upon, including motion to amend pleadings and to enlarge time, and the presiding judge had studied quite extensively the entire case, including the interrogatories and answers filed by the parties since 1987.  The presiding judge had, in practically all of the chamber conferences with counsel, encouraged counsel to try to effect settlement negotiations to take place by and between the parties, both with and without counsel, in order to effect an amicable solution of the dispute regarding partitioning of the land Umpwompw.  Defendant's motion to reconsider, at page 4, claimed that "up until April 25, 1989, counsel for defendant were not even certain which trial judge would be assigned to this case."  Co-counsel's affidavit Exhibit (C) tends to show that he did not know that the presiding judge was assigned the case until a chamber conference was held on April 15, 1989.  The Chief Justice is in charge of placing actions upon the trial calendar (1) without request of the parties or (2) upon request of a party and notice to the other parties or (3) in such other manner as the court deems expedient.  Precedence shall be given to actions entitled thereto by any statute of the State or by nature of the action.  Pon. Civ. R. 40.  Consequently, defendant's attempt through counsel to justify timeliness of his motion for disqualification by using of tactful lies cannot be honored by this Court.

     (C)  Judge Shopping.  Counsel's attempt to file a Quiet Title Action in PCA 77-80 on April 20, and their writ of mandamus action filed on May 19, 1989, are strong indications that counsel are judge shopping.  The language of section 30(1) calling for the "disqualification of a judge in any proceeding

[4 FSM Intrm. 240]

in which his impartiality might reasonably be questioned," does not amount to a grant of automatic veto power in order that attorneys might choose a judge who meets with their approval.

     The conduct exhibited by the defendant's counsel up to this point represents an example of a very serious and contemptuous misconduct of this Court.  It should be emphasized here that this Court does not tolerate lies to form the basis of its decision in any case.

     The defendant's "checker game approach" played by his motion to reconsider is merely an attempt to either repeat what had been argued and ruled upon, or to bring additional information merely to conform to what the earlier ruling has indicated were legally insufficient or lacking in the defendant's original motion to disqualify.

     Secondly, the ex post facto effect of the disqualification statute.  The Court recognizes that ex post facto relates to criminal matters, that this is not a criminal matter, and the use of the phrase ex post facto may not be appropriate.  (This basically why the Court employed the phrase "ex post facto effect" so as to conform the indiscriminate language of article 4, section 7 of the Constitution of Pohnpei in its Pohnpeian version).  Notwithstanding, the court is cognizant of and also relied upon its earlier ruling in Paulus v. Pohnpei, 3 FSM Intrm. 208, 222-23 (Pon. S. Ct. Tr. 1987) where it said:

     For a jurisdiction that has just been permitted to chart its own destiny ... the adoption of a policy favoring prospective ruling and application of court decisions overruling previous decisions or declaring statutes unconstitutional is in order, insofar as the ruling does not prejudice those who might have relied on such ruling or on such statute.

     This policy favoring prospective application of court decisions also applies to statutes passed by the Pohnpei Legislature, unless specifically stated otherwise. The effective date clause of State Law 2L-160-82, wherein the disqualification provisions are provided, reads, "This Act shall become law upon approval by the Governor or upon its becoming law without such approval."

     The inappropriateness of the use of the ex post facto does not override the effective date clause of 2L-160-82 and the policy favoring prospective application of court decisions, as also applicable to statutes.

     Thirdly, the court's exercise of inherent power to appoint temporary judges. Defendant attempted to justify his argument by resorting to this Court's prior exercise of its inherent power to appoint Judge William Norman of Kolonia Town Court to sit on the first appeal in this Court's appellate division.  The doctrine of inherent power runs essentially as follows:

     The courts are a constitutionally created branch of government whose continued effective functioning is

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indispensable; performance of that constitutional function is a responsibility committed to the courts; this responsibility implies the authority necessary to carry it out; therefore, the courts have the authority to raise money to sustain their essential functions.

     Hazard, McNamara & Sentilles, Court's Finance and Unitary Budgeting, 81 Yale L.J. 1286, 1287 (1972) as quoted in the National Judicial College, Inherent Powers of the Court.

     The term 'inherent power of the judiciary' means that power which is essential to the existence, dignity, and functions of the court from the very fact that it is a court.  In re Integration of the Nebraska State Bar Ass'n, 133 Neb. 283, 275 N.W. 265, 267 (1937).  In considering whether a trial judge within the jurisdiction of Pohnpei-uh should invoke the inherent power of the Court, the subject under consideration must be evaluated as to whether it is (a) necessary to the court's role in adjudication, (b) necessary to a system of checks and balances, (c) necessary to a properly balanced constitution, (d) necessary to the proper and efficient administration of justice, (e) necessary to promote a system of respect for the customs and traditions of the people of the Pohnpei, or (f) necessary to the maintenance of the rule of law.  The fact that this court has seen fit to invoke its inherent power in one case does not necessarily mean that the Court will have to keep invoking its inherent power whenever a litigant asks for it.  Careful analysis will have to be made by the Court to justify fully the presence of the need to use the inherent power in any subject matter, fiscal or non-fiscal.

     The circumstances involved in the case where the Court had resorted to the exercise of its inherent power for the first time in 1986 were totally different from the case before the Court.  There two justices had already been disqualified, practically all pleadings, papers, and transcript of evidence, including proceedings in that case were in Pohnpeian language.  The need for translation did not exist in the prior case.  The case before us now has all its pleadings, papers, and most of its proceedings in English, and it is the most voluminous case ever to come before this Court.  The legal issues thus identified in the present case are too difficult for an appointed municipal court judge to deal with. Lots and lots of translation work will be required if a non-English speaking judge is to be appointed to sit on the appeal.  This court just does not have the resources to undertake the work involved, if I were to disqualify myself, to appoint another of my brethren judges to sit on trial, thus to make him a second judge to have been disqualified from sitting  on appeal.  What counsel is trying to do here is to paralyze the Pohnpei Supreme Court by threatening the presiding judge here to disqualify himself, so that the next assigned judge would also be disqualified from sitting on the appeal thus to satisfy the necessary requirement as noted above.  This Court has a constitutional and customary duty to balance things to conform to the Pohnpeian concept of justice.  This Court sees no necessity to yield to counsel's surreptitious tactics in order to create the required necessity for it to invoke its inherent power to appoint a temporary judge in this case.  Consequently, it has been said that judges who seek to vindicate the

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inherent powers in the courts should be fully prepared for extensive and expensive litigation including counsel, pretrial discovery, procedural motions, a lengthy trial, and full appellate review.

     Accordingly, it is the ruling of this Court that the earlier ruling denying disqualification of presiding judge entered on May 19, 1989, stands.
     So ordered, 25 June 1989.
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