FSM SUPREME COURT
APPELLATE DIVISION
Cite as Etscheit, Jr., vs. Santos,
5 FSM Intrm. 35 (App.1991)

[5 FSM Intrm. 35]

ROBERT ETSCHEIT, JR.,
Petitioner,
 
vs.
 
HONORABLE EDWEL SANTOS,
Respondent,
 
vs.
 
YVETTE ETSCHEIT ADAMS and
RENEE ETSCHEIT VARNER,
Plaintiffs.

FSM App. P1-1990

OPINION

          Oral Argument:  August 3, 1990
Decided: March 25, 1991

BEFORE:
Hon. Edward C. King, Chief Justice, FSM Supreme Court
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Mamoru Nakamura, Designated Justice, FSM Supreme Court*

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

APPEARANCES:
For the Petitioner:         Daniel J. Berman
                                        RUSH, MOORE, CRAVEN, SUTTON,
                                        MORRY & BEH
                                        P.O. Box 1491
                                        Kolonia, Pohnpei  FM   96941

For the Respondent:     Joses R. Gallen
                                        Pohnpei State Attorney
                                        Pohnpei State
                                        Kolonia, Pohnpei   FM    96941]

[5 FSM Intrm. 36]

For the Plaintiff:             Fredrick L. Ramp
                                        Attorney-at-Law
                                        P.O. Box 1480
                                        Kolonia, Pohnpei   FM   96941

 *    *    *    *

HEADNOTES
Constitutional Law - Judicial Guidance Clause
    The judicial guidance clause, article XI, section 11 of the Constitution, requires that in searching for legal principles to serve the Federated States of Micronesia, courts must "first look to sources of law and circumstances here [within the Federated States of Micronesia] . . . rather than begin with a review of cases decided by other courts."  Etscheit v. Santos, 5 FSM Intrm. 35, 38 (App. 1991).

Constitutional Law - Judicial Guidance Clause
    The judicial guidance clause implies a requirement that courts consult the values of the people in finding principles of law for this new nation, and the fact that all state legislatures in the Federated States of Micronesia, and the Congress, have enacted Judiciary Acts adopting the Code of Judicial Conduct as the standard for judicial officials and authorizing departures from those standards only to impose tighter standards, suggests that courts should rely heavily on those standards in locating minimal due process protections against biased decisionmaking in judicial proceedings within the Federated States of Micronesia.  Etscheit v. Santos, 5 FSM Intrm. 35, 38-39 (App. 1991).

Courts - Recusal; Constitutional Law - Due Process
    There are certain circumstances or relationships which, as a per se matter of due process, require almost automatic disqualification, and, if a judge has a direct, personal, substantial, pecuniary interest in the outcome of the case, recusal is constitutionally mandated.  Etscheit v. Santos, 5 FSM Intrm. 35, 43 (App. 1991).

Courts - Recusal; Constitutional Law - Due Process
    If a judge has participated as an advocate in related litigation touching upon the same parties, and in the course of that previous activity has taken a position concerning the issue now before him as a judge, the appearance of justice, as guaranteed by due process clause, requires recusal.  Etscheit v. Santos, 5 FSM Intrm. 35, 43 (App. 1991).

Courts - Recusal; Constitutional Law - Due Process
    To prevent the "probability of unfairness," a former trial counselor or attorney must refrain from presiding as a trial judge over litigation involving his former client, and many of the same issues, and the same interests and the same land, with which the trial judge has been intimately involved as a trial counselor or attorney.  Etscheit v. Santos, 5 FSM Intrm. 35, 45 (App. 1991).

[5 FSM Intrm. 37]

COURT'S OPINION
EDWARD C. KING, Chief Justice:
    This case is before the Court on a petition for writ of prohibition.  The petitioner, Robert Etscheit, Jr., is a party to trial proceedings before the Pohnpei Supreme Court in Civil Action No. 343, which was filed with the Trust Territory High Court in 1968 and was transferred to the Pohnpei Supreme Court during March, 1984. Petitioner seeks to require the respondent, the trial judge in that case, to step aside on grounds that the judge formerly served a  counsel for the petitioner and his predecessor in interest in litigation concerning their claims of ownership of the same land which is now before him as trial judge in Civil Action No. 343.

    Several opinions have been written by the Pohnpei Supreme Court trial and appellate divisions in response to the petitioner's effort to disqualify the trial judge.See Adams v. Etscheit, 4 FSM Intrm. 226 (Pon. S. Ct. Tr. 1989) and Adams v. Etscheit, 4 FSM Intrm. 237 (Pon. S. Ct. Tr. 1989).  See also Etscheit v. Adams, 4 FSM Intrm. 242 (Pon. S .Ct. App. 1990).  The basic facts can be gleaned from those opinions and need not be reiterated here.

I.
    At the core of the task of the Federated States of Micronesia Supreme Court is the obligation to uphold the declaration of rights set out in article IV of the Constitution of the Federated States of Micronesia.  Among the individual rights guaranteed to citizens by the Constitution is the right to be free from the taking of property without due process.1  Petitioner asserts that the due process clause guarantees impartial decisionmaking in judicial proceedings, and that this promise to litigants is being violated in Civil Action No. 343.

    The full and precise meaning of the words "due process" is "not self-evident."Alaphonso v. FSM, 1 FSM Intrm. 209, 214 (App. 1982).  The "fundamental concept" is that citizens may not be stripped of life, liberty or property in an "unfair, arbitrary manner."  Semes v. FSM, 4 FSM Intrm. 66, 74 (App. 1989), quoting Suldan v. FSM (II), 1 FSM Intrm. 339, 354-55 (Pon. 1983).  Of course, judicial proceedings often may affect life, liberty or property, and the due process clause requires courts to follow procedures calculated to assure a fair and rational decision-making process. Unquestionably, this fairness requirement demands impartiality on the part of judges.Cf. Suldan, 1 FSM Intrm. at 362.

    Yet, even with these principles drawn from previous decisions of this Court, the term "due process" remains somewhat abstract and undelineated, especially as applied to judicial impartiality.  Although due process

[5 FSM Intrm. 38]

requirements of neutrality in judicial proceedings are basic to a system of justice, they are nonetheless difficult to define with precision.

A.
     The judicial guidance clause, article XI, section 11 of the Constitution, requires that in searching for legal principles to serve the Federated States of Micronesia, we must "first look to sources of law and circumstances here [within the Federated States of Micronesia]...rather than begin with a review of cases decided by other courts."  Alaphonso v. FSM, 1 FSM Intrm. at 214.

     Fortunately, there is guidance available to assist the Court in determining the values of the people of the Federated States of Micronesia concerning judicial impartiality.  From the beginning, since the inception of constitutional self-government, elected representatives unmistakably have aligned this nation, and all of the states, with the neutrality standards set out in the American Bar Association Code of Judicial Conduct.

     All state legislatures in the Federated States of Micronesia, and the Congress of the Federated States of Micronesia, have enacted Judiciary Acts, each of which expressly adopts the Code of Judicial Conduct as the standard by which the actions of judicial officials are to be measured.  For example, the legislation most pertinent to this case, the Pohnpei State Judiciary Act of 1982, S.L. No. 2L-160-82, says, at section 29, "The Justices and Judges of courts of this State, and the Land Commissioners and members of Land Registration Teams shall adhere to the standards of the Code of Judicial Conduct of the American Bar Association except as otherwise provided by law.  The Chief Justice may by rule prescribe stricter or additional standards."2

     Lest there have been any misunderstanding as to the legislativeinsistence upon impartial decisionmaking in all courts within the Federated States of Micronesia, four of the five legislative bodies also inserted within their Judiciary Acts specific provisions, almost identical with those already in the Code of Judicial Conduct, mandating disqualification of judges in certain circumstances.3

[5 FSM Intrm. 39]
 
     Thus there has been unanimous affirmation by legislatures within the Federated States of Micronesia of the Code's demands for impartiality in judicial proceedings. Moreover, the national Congress and state legislatures have made clear that the Code's provisions are minimum requirements, which are to be strictly upheld and may not be loosened through judicial interpretation or rulemaking.  Each Judiciary Act, like section 29 of the Pohnpei Judiciary Act, quoted supra, authorizes departures from the standards of the Code only for purposes of restricting judges still further, not to give them more leeway.

     The judicial guidance clause implies a requirement that we consult the values of the people in finding principles of law for this new nation.  Semes v. Continental Air Lines, Inc., 2 FSM Intrm. 131, 140 (Pon. 1985).  Legislation may be helpful for this purpose.  This is especially so when legislative bodies throughout the nation have spoken with such unison as in this instance, through uniform acceptance of identical standards by the national Congress and all state legislatures, coupled with the legislative prohibitions against liberalization of the standards.  It is within the spirit of the judicial guidance clause for this Court to give serious consideration to such positive and uniform legislative advice.

     We therefore conclude that, in responding to claims of unconstitutional judicial bias, we should lean heavily upon the standards supplied by the Code of Judicial Conduct.  We may not lightly assume that a standard set forth in the Code of Judicial Conduct and embraced by all state and national legislative bodies as a minimal requirement for impartial decisionmaking is peripheral or marginal, falling outside the core protections of the due process clause.

B.
     Our reliance upon the statutory disqualification provisions for guidance does not suggest that legislation may be employed to overrule the Constitution itself, or previous judicial interpretations of it.  The Constitution of course provides rights to citizens which cannot be diminished by legislation.  Indeed, that is the central significance of the declaration of rights.

     The statutory standards as to disqualification however are fully in accord with the spirit of the constitutional provision.  Legislative adoption of the Code of Judicial Conduct and its disqualification provisions is calculated to implement and support the constitutional protection rather than to weaken or chip away at the right of neutrality in judicial proceedings.

     It is also significant that the guidance we are accepting is not contrary to previous rulings of this Court concerning the meaning of the Constitution.  In fact, this Court has previously noted the close relationship between the disqualification provisions in the FSM Judiciary Act and the due process requirements of neutrality in decisionmaking.  In Skilling v. FSM, 2 FSM Intrm. 209, 213 (App. 1986), the Court identified the disqualification
 
[5 FSM Intrm. 40]

provisions as the "beginning point" for analysis of a due process claim that a judge accused of bias may not preside over the motion for his disqualification.

     We note as well that even before enactment of any of the current Judiciary Acts and before establishment of this Court, there had been recognition within this geographical area of the interplay between statutory and due process protections against bias in judicial proceedings.  In Hamo v. Gianotti, 8 T.T.R. 50 (App. 1979), litigants in Chuuk and Pohnpei brought a class action seeking disqualification of a Trust Territory justice on grounds of his alleged bias against their legal counsel. Legislation establishing bias against counsel as a ground for judicial disqualification was enacted after the case was started and after the judicial acts complained of. The Trust Territory High Court had to decide whether to give the legislation retrospective effect.  Pointing out that the right to trial before an unbiased judge is a constitutional right, the court viewed the statute as merely implementing the "basic due process right."  8 T.T.R. at 53.  The statute therefore was given retroactive effect.

C.
     It is also important to our decision that reliance upon the Code of Judicial Conduct as an important tool in measuring the reach of due process protections against judicial bias is not contrary to fixed principles developed under the United States Constitution.4

     Relatively little is said directly about due process in most current United States decisions concerning the right of litigants to impartial judicial decisionmaking.  A consensus has emerged that judicial responsibilities must be measured by reference to the standards set out in the

[5 FSM Intrm. 41]

American Bar Association Code of Judicial Conduct.5  Thus, decisions of courts in the United States concerning claims of judicial bias typically refer to the Code of Judicial Conduct, or to statutes based upon the Code, rather than to the due process clause of the United States Constitution.

     Yet there can be no doubt that the concerns of due process in the United States are parallel, if not indeed identical, with the prohibitions set out in the Code of Judicial Conduct.6  The United States Supreme Court has recognized that the purpose of the Code, to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible, has "constitutional dimensions."Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 865 n.12, 108 S. Ct. 2194, 2205 n.12, 100 L. Ed. 2d 855, 875 n.12 (1988).

     In setting aside a judgment of the Alabama Supreme Court because of the bias of one of the justices, the United States Supreme Court has reiterated that due process protections extend well beyond actual bias, to even the mere appearance of partiality.

     We conclude that Justice Embry's participation in this case violated appellant's due process rights....We make clear that we are not required to decide whether in fact Justice Embry was influenced, but only whether sitting on the case then before the Supreme Court of Alabama "would offer a possible temptation to the average...judge to...lead him to not to hold the balance nice, clear and true."  [Citations omitted].  The Due Process Clause may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way, "justice must satisfy the appearance of justice."

Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825, 106 S. Ct. 1580, 1587, 89 L. Ed. 2d 823, 835 (1986).

[5 FSM Intrm. 42]

     The Aetna decision is instructive on two grounds.  First, the case demonstrates that a claim of unconstitutional personal bias without establishing that the judge has any direct, personal, substantial or pecuniary interest in the outcome of the case, could give rise to a constitutional due process claim only in the "most extreme of cases."  475 U.S. at 821, 106 S. Ct. at 1585.  Secondly, Aetna illustrates that if the trial judge has the requisite interest in the outcome, recusal may be constitutionally required even without a showing that the decision would actually be influenced by the judge's interest in the outcome.

     In Aetna, the interest of the Alabama Supreme Court justice which constitutionally mandated his disqualification was pecuniary.  This has typically been the case when the United States Supreme Court has found a constitutional requirement of disqualification.  Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927); Ward v. Village of Monroeville, 409 U.S. 57, 93 S. Ct. 80, 34 L. Ed. 2d 267 (1972). However, the court in Aetna noted that disqualification could be constitutionally required in any situation "which would offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true."  Aetna, 475 U.S. at 822, 106 S. Ct. at 1585, 89 L. Ed. 2d at 833.

     The United States Supreme Court case most nearly parallel to the instant one, In re Murchison, 349 U.S. 133, 75 S. Ct. 623, 99 L. Ed. 942 (1955), demonstrates that one such constitutionally disqualifying ground can be the existence of an advocacy interest, arising out of the judge's prior involvement with the same parties and issues in the same or closely related litigation.  In Murchison, the trial judge had conducted a "one-man grand jury" during which he believed the defendants had perjured themselves.  The judge therefore charged them with perjury and contempt of court, then presided over the contempt proceedings and found the defendants guilty.  The trial judge had denied the defendants' motion to recuse himself from the contempt proceedings and the Michigan Supreme Court had affirmed his decision.

     In determining what factors might be seen as hampering the judge's effort to preside impartially over the contempt proceedings, the United States Supreme Court did not limit its analysis to financial conflicts.  Instead, the Court pointed out that the kind of interest which prevents a judge from presiding over a case "cannot be defined with precision," and that "circumstances and relationships must be considered."  349 U.S. at 138, 75 S. Ct. at 625.  The holding that disqualification was constitutionally required, was not based upon a finding of actual bias.  The court acknowledged that the judge "would not likely have all the zeal of a prosecutor," yet emphasized the necessities of preventing the "probability of unfairness" and of satisfying the "appearance of justice."  349 U.S. at 136, 75 S. Ct. at 625.

     The court thought it important that the judge had participated in the earlier grand jury proceedings, that he had formed impressions of the conduct of the defendants in those proceedings, and that he had taken at least a preliminary position, to the point of charging them with contempt, as to the legality of that conduct.  The court also noted that, because of his prior

[5 FSM Intrm. 43]

involvement in these issues, the trial judge would bring to the contempt proceedings his own personal knowledge and impressions, which the court thought "likely to weigh far more heavily with him than any testimony given in the open hearing."  349 U.S. at 138, 75 S. Ct. at 626.  The court concluded that "it can certainly not be said" that a trial judge in such circumstances would have none of the zeal of the prosecutor.  349 U.S. at 137, 75 S. Ct. at 626.

     The United States cases, then, caution us to look askance at a claim that a trial judge has wrongly refused to recuse himself on grounds of bias or prejudice arising simply out of personal hostility.  Except in the "most extreme of cases," such a claim would not lead to a finding by this Court that there has been a due process violation, and would not warrant our intervention in state court proceedings.

     On the other hand, there are certain circumstances or relationships which, as a per se matter of due process, require almost automatic disqualification.  Thus, if a judge has a "direct, personal, substantial, pecuniary interest in the outcome of the case," recusal is constitutionally mandated.  Tumey v. Ohio, 237 U.S. at 523, 475 S. Ct. at 441. Moreover, if the judge has participated as an advocate in related litigation touching upon the same issues and involving the same parties, and in the course of that previous activity  has taken a position concerning the issues now before him as a judge, the appearance of justice, as guaranteed by the due process clause, requires recusal.  In re Murchison, 349 U.S. at 136, 75 S. Ct. at 625.
 
     Careful assessment is often necessary to determine precisely which kinds of "circumstances and relationships" require recusal to protect the appearance of justice.  As we have said, the uniform acceptance within the Federated States of Micronesia of the disqualification standards of the Code of Judicial Conduct leads us to the conclusion that we should rely heavily upon those standards in locating minimal due process protections against biased decisionmaking in judicial proceedings within the Federated States of Micronesia.
 
II.
     That being so, there can be no question as to the appropriate result in this case.  The relevant disqualification language of the Pohnpei Judiciary Act is practically identical with that of the Code of Judicial Conduct:

30(1) A justice or judge shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.  Land Commissioners and members of the Land Registration Teams shall be deemed to be judges for the purposes of this section.

30(2) A Justice or Judge shall also disqualify himself . . . (b) where in private practice he served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter....

[5 FSM Intrm. 44]

Pohnpei S.L. No. 2L-160-82, 30(1) and (2).  Section 30(2) is addressed to a specific kind of relationship, that between an attorney and client, and to activities, such as investigation, analysis and advocacy of issues, which are calculated to engage the passion and zeal, as well as the intellect of the advocate.  The section represents the collective judgment of the legal profession, as represented through the American Bar Association, and of all four state legislatures and the national Congress within the Federated States of Micronesia, that prior involvement as an attorney and advocate with issues is antithetical to the impartiality required of the judge who must resolve these same issues.  We find that collective judgment similar in principle to the one expressed by the United States Supreme Court in Murchison. We accept the standard specified in section 30(2) as an essential requirement of due process in judicial proceedings.

     The record establishes that the trial judge in Civil Action No. 343 represented the interests of the petitioner, and the petitioner's predecessor in interest, in litigation involving the same land which is now in dispute between the parties in this case.7 Obviously, an attorney or trial counselor involved in such litigation could receive confidential information that the client would not want revealed to other persons or used against the client in subsequent proceedings.  He also could form impressions from such confidential information and from his own independent investigations and analysis for advocacy purposes that are "likely to weigh far more heavily with him than any testimony given in the open hearing" over which he presides as a judge.  In this case, it is also clear that the trial judge, in his capacity as a trial counselor representing the interests of the petitioner, expressed opinions on the very subject, the allocation of interests in the land between various members of the Etscheit and Adams families, that is at issue in Civil Action No. 343.

     The trial judge also, in his former capacity as trial counselor for the petitioner, laid claim to some of the land now at issue in Civil Action No. 343, asserting an agreement that the land had been promised to him as part of his fee for professional services.  This claim was denied by the petitioner and his predecessor in interest.

     Finally, in response to notice he received from his client that his services would no longer be desired, the future judge wrote a letter to the petitioner, emphasizing the losses he had sustained, in terms of his physical well-being, his relationships with Pohnpeian traditional leaders, and his political popularity, because of his involvement in the earlier litigation.  This letter, written in 1983, confirms that the emotional atmosphere surrounding the trial judge, his former client, and his role as an advocate concerning the lands now and then at stake in Civil Action No. 343, was at that time far from dispassionate.

     We acknowledge, much as did the Murchison court in similar circumstances, that the trial judge today "would not likely have all the zeal" he felt then.

[5 FSM Intrm. 45]

However, the fervor of the letter, coupled with the background described in it, certainly preclude even now any assumption that those passions, which grew out of the attorney-client relationship, have entirely dissipated.  Here as in Murchison, "it certainly cannot be said" that the trial judge now "would have none of the zeal" or intensity he felt in his previous role.
 
     The due process clause, mirrored and focused by the Code of Judicial Conduct and uniform legislation adopted throughout the Federated States of Micronesia, leaves no doubt.  To prevent the "probability of unfairness," a former trial counselor or attorney must refrain from presiding as a trial judge over litigation involving many of the same issues, and the same interests and the same land, with which the trial judge has been intimately involved as a trial counselor or attorney.

     In so holding we may here appropriately note, as did the court in Murchison, that, "Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties.  But to perform its high function in the best way, justice must satisfy the appearance of justice."  349 U.S. at 136, 75 S. Ct. at 625.

III.
     We have reviewed carefully the opinions of the trial court and have considered the reasons given for denying the request for disqualification.  In light of the clarity of the legal principles just discussed and the uniform acceptance of those principles by all legislative bodies of the states and nation, we need not comment on all of the points made in those opinions.  We do however note that the rule of necessity cannot be applied in the circumstances of Civil Action No. 343, where there are three constitutionally appointed justices available to serve as trial judges in lieu of the trial judge himself.

     We note also that there is no ex post facto issue here.  The Code provisions and due process principles we rely upon regulate only the current conduct of the trial judge, disqualifying him from presiding over the litigation.  In no sense do those provisions, nor does this decision, render illegal or improper the prior activities of the trial judge, taken by him as a trial counselor before he assumed the bench.

IV.
     This is one of those rare instances when it has become necessary to respond to the request of a litigant that we address ourselves to a matter pending at the trial level of a state court.  Indeed, this is the first such case and it is fervently to be hoped that there are few, if any, repetitions in the future.  Here, however, the petitioner has exhausted his remedies, seeking relief from the Pohnpei State Supreme Court Appellate Division before coming to this Court.  The state appellate division has denied relief but has declined to issue an opinion explaining the reasons for that decision.  Etscheit v. Adams, 4 FSM Intrm. 242 (Pon. S. Ct. App. 1990).  Petitioner now is before this Court as a last resort.

[5 FSM Intrm. 46]

     In light of our finding that considerations of due process require disqualification it would be a disservice to the trial judge as well as to the litigants to permit further investment by them in a futile proceeding which could produce no effective result.Cf. United Church of Christ v. Hamo, 4 FSM Intrm. 95 (App. 1989).

     Therefore, we declare that the trial judge has a clear, nondiscretionary duty to step aside and that the petitioner has a constitutional right of due process to obtain compliance with that duty.

     Petitioner asks that a writ of prohibition be issued to require the respondent to step aside from his position as a trial judge in this litigation.  In other circumstances we have found it unnecessary to issue an order to a high ranking official, confident that the spirit of our decision would be followed.  Constitutional Convention 1990 v. President of the Federated States of Micronesia, 4 FSM Intrm. 320 (App. 1990). We trust that such restraint is appropriate in this case as well and therefore decline now to issue the requested writ of prohibition.

*    *    *    *

RICHARD H. BENSON, Associate Justice (Dissenting):

     I respectfully dissent.

     The majority opinion is based on the premise that Congress and the state legislatures' unanimous adoption of the Code of Judicial Conduct was calculated to implement and support due process protections in judicial proceedings.  I am unable to join in the decision because of the absence of any nexus between the due process clause of the FSM Constitution, upon which our jurisdiction must rest, and the disqualification statutes embodying the Code of Judicial Conduct. No authority exists to support the majority's analytical connection which joins the Code and the due process clause, other than the court's own holding.  It is this fundamental difference upon which I base my dissent.

     The majority cites two United States Supreme Court cases in support of its finding that recusal in this instance is constitutionally required.  Having reviewed these decisions, I reach a different result.

     In Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 824, 106 S. Ct. 1580, 1586, 89 L. Ed. 2d 823 (1986), the United States Supreme Court citing Ward v. Village of Monroeville, 409 U.S. 57, 60 (1972) found that the Alabama state judge had a "direct, personal, substantial [and] pecuniary" interest.  This disqualifying interest was also described as a "direct stake in the outcome" of the case. Id. at 821, 106 S.Ct. a 1583Justice Brennan observes in his concurring opinion, "[A]s this case demonstrates, an interest is sufficiently 'direct' if the outcome of the challenged proceeding substantially advances

[5 FSM Intrm. 47]

the judge's opportunity to attain some desired goal even if that goal is not actually attained in the proceeding."  475 U.S. at 830, 106 S. Ct. at 1590.  Thus it was the existence of the judge's interest, which was a direct, substantial and pecuniary stake in the outcome of the case, that constitutionally required his recusal.

     In the Supreme Court case of In re Murchison the judge sat as a one-man judge-grand jury and also heard the contempt hearing arising out of the grand jury hearing.  His disqualifying interest was described in this way:

Having been a part of that [accusatory] process a judge cannot be, in the very nature of things, wholly disinterested in the conviction or acquittal of those accused.  While he would not likely have all the zeal of a prosecutor, it can certainly not be said that he would have none of that zeal. Fair trials are too important a part of our free society to let prosecuting judges be trial judges of the charges they prefer.

In re Murchison, 349 U.S. 133, 137, 99 L. Ed. 942, 947 (1955).

     Bearing in mind these decisions which analyze to what extent a disqualifying interest reaches constitutional dimensions, I am unable to find any analogous interest of the trial judge in this case.  The majority appears to have elevated the present trial judge's prior trial counselor involvement to the level of the judicial interest denounced in Murchison.  But here, the trial judge's interest may at best be characterized as "personal."  Such interest however is neither direct nor substantial in this instance, having no identifiable "stake in the outcome" as was present in either Murchison and Aetna.  Nor have counsel defined any interest that would trigger a constitutional consideration of due process.

     I note the majority's observation that relatively little is said directly about due process in most current United States decisions concerning the right of litigants to impartial judicial decisionmaking.  However in Aetna, the United States Supreme Court made a critical distinction between judicial disqualifying interests which reach constitutional dimensions and those that do not.  In addition to claims that the Alabama state court judge possessed a direct stake in the outcome of the case before him, there also existed allegations of bias and prejudice.  The court rejected these latter allegations as grounds for disqualification under the due process clause, stating:

The Court has recognized not "[a]ll questions of judicial qualification...involve constitutional validity. Thus matters of kinship, personal bias, state policy, remoteness of interest, would seem generally to be matters merely of legislative discretion."  Tumey v. Ohio, 273 U.S. 510, 523 (1927);

5 FSM Intrm. 48]

see also FTC v. Cement Institute, 333 U.S. 683, 702 (1948) ("most matters relating to judicial disqualification [do] not rise to a constitutional level").

475 U.S. at 820.

     The Supreme Court's concluding statement in Aetna includes this cautionary passage:  "We underscore that our decision today undertakes to answer only the question of under what circumstances the Constitution requires disqualification. The Due Process Clause demarks only the outer boundaries of judicial disqualification."Id. at 828.

     In its constitutional formulation of the present facts, the majority opinion does not make this demarcation.
 
     Although it is not my decision to make, I share the belief of the majority that the record supports a finding that the trial judge had a duty to recuse himself because of the provisions of the Pohnpei State Judiciary Act of 1982.  Thus this case is before us because the state declined to enforce its own laws; it is not before us because of some fundamental injustice existing in the present statutory and constitutional framework governing judicial disqualification.  That framework appears suitable. This isolated case does not warrant taking the new direction the majority has taken.
 
*    *    *    *
 
Footnotes:
 
1.  A person may not be deprived of...property without due process of law...."  FSM Const. art. IV, 3.

2.  This language is substantially similar to provisions in the Judiciary Acts of the Federated States of Micronesia, 4 F.S.M.C. 122; Kosrae, KSC 6.1201; Yap, 4 Y.S.C. 154; and Chuuk S.L. No. 190-08, 25 (1st Leg., 1st Reg. Sess. 1990).

3.  See Pohnpei S.L. No. 2L-160-82, 29; 4 F.S.M.C. 124; 4 Y.S.C. 155; Chuuk S.L. No. 190-08, 22.  The exception is Kosrae, which has adopted the Code of Judicial Conduct, including the disqualification provisions, as the standard of conduct for its justices but has not duplicated the Code's disqualification provisions within its own Judiciary Act.  KSC 6.1201.

4.  In adopting the declaration of rights, the drafters of the Constitution drew heavily upon the bill of rights of the United States Constitution and looked to decisions of the United States courts up to 1975 as providing content to those borrowed terms which are now in the declaration of rights.  Alaphonso v. FSM, 1 FSM Intrm. 209, 214-16 (App. 1982).  Thus, we often draw upon decisions of United States courts for assistance in determining the meaning of phrases employed in the declaration of rights in the Constitution of the Federated States of Micronesia.  See, e.g., Ludwig v. FSM, 2 FSM Intrm. 27, 35 (App. 1985); Runmar v. FSM, 3 FSM Intrm. 308, 311 (App. 1988).  However, "we have never considered the decisions of United States courts to be binding upon this Court as to the meaning of this Constitution."  Federal Business Development Bank v. Thorfinn, 4 FSM Intrm. 367 (App. 1990).  Here, because of the clear direction available within the Federated States of Micronesia, the United States decisions do not play a governing or primary role in our analysis.  See Federated Shipping Co. v. Ponape Transfer & Storage, 3 FSM Intrm. 256 (Pon. 1987).

5.  See 4 ABA/BNA, Lawyer's Manual of Professional Conduct at 38.  The Code of Judicial Conduct has been adopted by 47 states, the District of Columbia and the United States Federal Judiciary.  Only Montana, Rhode Island and Wisconsin remain as non-code states, and even those states have adopted rules of judicial conduct similar to the Code.  J. Shaman, S. Lubet, J. Alfini, Judicial Conduct and Ethics 1.02 (1990).

6.  The Fifth Amendment due process right to a fair trial before an impartial trier of fact is codified in 28 U.S.C. 144 and 455 and recognized in Canon 3 [of the ABA Code of Judicial Conduct]." Matter of Demjanjuk, 584 F. Supp. 1321, 1324 n.9 (N.D. Ohio 1984).  The disqualification provisions of the Code, and of the pertinent legislation in the Federated States of Micronesia, are substantially identical with 28 U.S.C. 455.

7.  See Nanmwarki v. Etscheit Family, 8 T.T.R. 287 (App. 1982).