FSM SUPREME COURT
TRIAL DIVISION
Cite as Jano v. King ,
5 FSM Intrm. 266 (Pon. 1992)

[5 FSM Intrm. 266]

MARTIN JANO,
Plaintiff,

v.

EDWARD C. KING,
et al.,
Defendants.

FSM CIV. 1991-061

OPINION
 
Arthur Ngiraklsong
Designated Temporary Justice
FSM Supreme Court

APPEARANCES:
For the Plaintiff:                 Pro Se

For Defendant:                  Douglas Juergens
(National Gov't)                 Assistant Attorney General
                                            FSM National Government
                                            Palikir, Pohnpei  FM 96941

For Defendant:                  Alan Burdick
(FSM Supreme Court)      Attorney at Law
                                            702 Haseko Center
                                            820 Mililani Street
                                            Honolulu, HI 96813

For Defendant:                  R . Barrie Michelsen
(King)                                 Attorney at Law
                                            Kolonia, Pohnpei  FM 96941

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HEADNOTES
Courts - Recusal
     Mere argument by counsel, be it oral or set forth in a brief, is not the basis on which motions to disqualify are determined.  Motions for recusal must be supported by affidavit stating the grounds for recusal.  It is the movant's burden to go beyond wide-ranging speculation or conclusions and show a factual

[5 FSM Intrm. 267]

basis for recusal.  Jano v. King, 5 FSM Intrm. 266, 268 (Pon. 1992).

Courts - Recusal
     In determining whether a judge's impartiality might reasonably be questioned, the test is whether a disinterested reasonable person who knows all the circumstances would harbor doubts about the judge's impartiality.  A reasonable disinterested observer would require more evidence than that one of the parties was seen at hotel with where the judge had checked in.  Jano v. King, 5 FSM Intrm. 266, 270 (Pon. 1992).

Courts - Recusal
     Even when sufficient allegations have not been made, a judge may disqualify himself if he believes sufficient grounds exist.  Jano v. King, 5 FSM Intrm. 266, 271 (Pon. 1992).

*    *    *    *

COURT'S OPINION
ARTHUR NGIRAKLSONG, Associate Justice:
 
BACKGROUND
     Plaintiff filed this matter on October 4, 1991 in Pohnpei State Court.  On October 7, 1991 defendant King petitioned the State Court for removal of the action to the Supreme Court of the Federated States of Micronesia on the grounds that diversity of citizenship exists.  Defendant also filed on the same day a motion for an expedited hearing on the petition for removal.  Defendant's motion for expedited hearing was granted on October 8, 1991 and a hearing was scheduled for October 9, 1991.  At the October 9 hearing defendant King's petition for removal was granted and this matter was removed to the Supreme Court of the Federated States of Micronesia, Trial Division.

     On November 20, 1991 plaintiff filed this motion which demands that I recuse myself from sitting as the trial judge in this matter.  Section 124(6) of 4 F.S.M.C. requires that motions for recusal be determined before proceeding further in the matter and that reasons for granting or denying be made part of the record.
 
     This court has consequently held all other matters in this case in abeyance pending its decision on plaintiff's motion for recusal.

ANALYSIS
     4 F.S.M.C. 124 governs motions to disqualify a judge.  Plaintiff cites 4 F.S.M.C. 124(1), (2)(a) & (d) as requiring my recusal.  These subsections state:

[5 FSM Intrm. 268]

"(1)  A Supreme Court Justice shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(2)  He shall also disqualify himself in the following circumstances:
 
     (a)  where he has a personal bias or prejudice concerning a party or his counsel, or personal knowledge of disputed evidentiary facts concerning the proceeding;
          ....
     (d) where he knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding; ..."

     Plaintiff's memorandum of points and authorities sets forth a number of arguments and conclusions demanding my recusal which can be summarized as follows: 1) Chief Justice King "apparently shopped for his own friendly judge" by hand-picking me to be the judge to handle this matter; (2) My alleged personal friendship with Judge King gives me a personal bias in favor of Judge King; (3) I am "saddled with personal and professional interests that could be substantially affected by the outcome of this civil lawsuit."  (plaintiff's memorandum, at 3).

     Mere argument by counsel, be it oral or set forth in a brief, is not, however, the basis on which motions to disqualify are determined.  Motions for recusal must be supported by evidence in the form of an affidavit stating the grounds for recusal.  4 F.S.M.C. 124(6); Skilling v. FSM, 2 FSM Intrm. 209, 216-17, (App. 1986).  It is plaintiff's burden to go beyond wide-ranging speculation or conclusions and show a factual basis for recusal.  United States v. Peltier, 553 F. Supp. 886 (D.N.D. 1982); Markus v. United States, 545 F. Supp. 998, 1000 (S.D.N.Y. 1982).  The affidavit filed in support of a motion for recusal is, therefore, where a court must look to determine the true substance of the motion.

     Plaintiff filed a supporting affidavit and the pertinent paragraphs of the affidavit which are to be considered by this court are:
 
5.  On October 8, 1991, or exactly four days after I had filed the civil suit against Mr. Edward C. King, et al., I had breakfast at the Harbor View Hotel, located in Tekehtik Pohnpei.

6.  While eating breakfast, I saw Mr. Edward C. King standing at the front desk lobby of the Harbor View     
[5 FSM Intrm. 269]

Hotel and he appeared to be anxious to meet someone  in the Hotel.  Mr. King was still standing there when I left the Hotel.

7.  On October 8, 1991, at about 3:20 p.m., I received via facsimile transmission a copy of a court order issued by the FSM Supreme Court, Trial Division, granting Mr. King's petition for an "Expedited Hearing," on his petition for removal of my civil complaint then-pending in the Pohnpei Supreme Court, Trial Division to be heard next day October 09, 1991, at 9:00 a.m.

8.  The said FSM Court order was signed by Arthur Ngiraklsong, Associate Justice Supreme Court, the Republic of Palau.

9.  I contacted Harbor View Hotel after the order for removal had been issued as I was kind of curious why Judge King appeared to be waiting and anxious to meet someone at the Harbor View Hotel.

10.  The Hotel Management informed me that Judge Arthur Ngirasklong [sic], of the Palau Supreme Court checked into room 316 at the Harbor View Hotel on October 7, and checked out on October 9, 1991.  I then immediately formed a sudden and uncomfortable suspicion and fear that Mr. King had conferred with Judge Ngiraklsong regarding the civil lawsuit I had earlier filed against Mr. King.

11.  On October 9, 19891, Judge Ngiraklsong granted Mr. King's petition for removal of my civil case from the Pohnpei Supreme Court.

12.  I feared that the appointment of Palau Supreme Court Associate Justice Ngiraklsong by FSM Supreme Court Chief Justice Edward C. King to preside over my case would prejudice my case for the reason judge  King made such appointment or designation after judge King has already been named a defendant in the civil suit. Such appointment or designation by judge King  gave me the feeling that judge King had freely appointed his own judge to hear the suit against him.

     Based upon a generous interpretation of the affidavit, plaintiff has made only two allegations that must be considered by this court; 1) that my impartiality might reasonably be questioned because Judge King in fact

[5 FSM Intrm. 270]

assigned this case to me after he had been named a defendant; and 2) that my impartiality might reasonably be questioned because of an appearance that Judge King assigned this matter to me after Judge King had already been named as a defendant.  These allegations can be characterized as impropriety in fact and impropriety in appearance.

1) IMPROPRIETY IN FACT
     Even if every statement made by plaintiff is presumed to be true, the affidavit does not present a scintilla of evidence that Judge King "hand-picked" me to be the Judge on this matter.  The affidavit does not state that plaintiff or any other person saw Judge King and me meet at the Harbor View Hotel on October 8, 1991, or that any conversation was had between us at any time regarding the subject matter of this case.  Plaintiff's conclusions are based solely on his opinion that Judge King appeared to be anxious to meet someone and that he had been informed that I had checked into the Harbor View Hotel on October 7, 1991.  None of plaintiff's statements in this regard are evidence of anything except that plaintiff and Judge King were both at the Harbor View Hotel on October 8, 1991 around the time plaintiff was eating his breakfast.  The affidavit shows only that plaintiff allowed his opinion that Judge King appeared to be anxious to meet someone to cause him fear and speculation on which he based his conclusions.

     Had plaintiff reviewed the file in this matter before making his allegations he would have discovered that the true facts are that Judge King did not assign this matter to me.  Judge King assigned administrative responsibility to Judge Benson.  See, October 8, 1991 Memorandum from Chief Justice King to Justice Benson.  Judge Benson then determined that the case should be assigned to me.  See October 8, 1991 letter from Justice Benson to Justice Ngiraklsong.

     This is the precise procedure plaintiff claims should have been adopted.  At page 10 of his brief plaintiff states: "this case should have been sent to FSM Supreme Court Justice Benson in Chuuk State to determine the proper administrative procedures."


2)  IMPROPRIETY IN APPEARANCE
     Implicit in plaintiff's affidavit is an allegation that the scenario presented by plaintiff creates an appearance of impropriety which could lead to my impartiality being reasonably questioned.  In determining whether a judge's impartiality might reasonably be questioned, the test is whether a disinterested reasonable person who knows all the circumstances would harbor doubts about the judge's impartiality.  Parliament Ins. Co. v. Hanson, 676 F.2d 1069, 1075 (5th Cir. 1982); United States v. Martorano, 620 F.2d 912 (1st Cir. 1980), cert. denied, 449 U.S. 952 (1981).  Considering the true facts and the allegations made by plaintiff, I cannot hold that a disinterested observer would harbor doubts as to my impartiality merely because I happened to be checked into the Harbor View Hotel on a day when Judge King was seen in the

[5 FSM Intrm. 271]

Hotel.  A reasonable disinterested observer would require at least a shred of evidence to support the conclusion that such a clandestine meeting occurred.

 BIAS AND PERSONAL INTEREST
     As stated at pages 267-68 above, plaintiff's brief also alleges that I must disqualify myself under 4 F.S.M.C. 124 2(a) & (d) on the grounds that I have a personal bias in favor of Judge King based upon a close personal friendship and professional relationship including continued appointment to serve as a temporary Justice of the FSM Supreme Court.  Plaintiff's affidavit is silent on these issues and pursuant to Skilling, 2 FSM Intrm. at 210-11, these points need not be considered as part of plaintiff's motions as they fail to satisfy the requirements of 4 F.S.M.C. 124.

     Even when sufficient allegations have not been made, a judge may disqualify himself if he believes sufficient grounds exist.  FSM v. Jonas (II), 1 FSM Intrm. 306, 315 (Pon. 1983).  Despite plaintiff's failure to make sufficient allegations of bias and personal interest, I will briefly comment upon them to avoid any conclusions being drawn from silence.

     Any analysis of the file in this matter leads me to the conclusion that the causes of action relating to Judge King involve straightforward legal issues regarding the liabilities of judges arising from the signing of search and arrest warrants.  The issues raised are not fact specific to Judge King: they would apply to any judge signing a warrant under the circumstances surrounding the case, including the legal issues presented.  I am unable to conclude that: 1) a disinterested reasonable person knowing all of the circumstances would harbor doubts as to my impartiality; or 2) that my relationship with Judge King and my service as a temporary Justice of the FSM Supreme Court creates any personal bias, prejudice or interest requiring my recusal pursuant to 4 F.S.M.C. 124(2)(a) or (d).

     Plaintiff's motion for recusal is denied.
 
CONSTITUTIONAL ARGUMENT TO RECUSE
     In his supplemental brief plaintiff claims that the appointment of this Temporary Judge to preside over this matter violates FSM Const. art. XI, 9, and 4 F.S.M.C. 104.

     The FSM Congress has the authority to enact legislation on procedures for appointment of special judges.  FSM Const. art. XI, 9(f).  The appointment of this Temporary Judge by Acting Chief Justice Benson has followed the procedures set forth under 4 F.S.M.C. 104.

     Plaintiff has a duty to rebut the presumption in favor of the constitutionality of 4 F.S.M.C. 104.  Truk v. Hartman , 1 FSM Intrm. 174, 181 (1982).  He also has a duty to prove the constitutionality of 4 F.S.M.C. 104 beyond a rational doubt.Adkins v. Children's Hosp., 261 U.S. 525,

[5 FSM Intrm. 272]

544, 43 S. Ct. 394, 396, 67 L. Ed. 785 (1923).  Defendant has failed to carry both duties.

     Plaintiff's motion to recuse this Court on the above constitutional grounds is DENIED.

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