FSM SUPREME COURT
APPELLATE DIVISION
Cite as Jano v. King,
5 FSM Intrm. 326 (App. 1992)

[5 FSM Intrm. 326]

MARTIN JANO et al.,
Plaintiffs,

v.

EDWARD C. KING et al.,
Defendants.

FSM APP. NO. P1-1992

OPINION
 
Decided:  June 12, 1992

Before:
Hon. Martin Yinug, Associate Justice, FSM Supreme Court
Hon. Andon L. Amaraich, Associate Justice, FSM Supreme Court

APPEARANCES:
For the Plaintiffs:                          Pro Se

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

For Defendants:                           Daniel Hall
Juergens and Finn                       Assistant Attorney General
                                                       FSM Attorney General's Office
                                                       Palikir, Pohnpei  FM 96941

For the FSM Supreme Court:     Alan Burdick
                                                       Attorney at Law
                                                       702 Haseko Center
                                                       820 Mililani Street
                                                       Honolulu, Hawaii 96813
 
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HEADNOTES
Appeal and Certiorari
     When the language of an FSM appellate rule is nearly identical to a United States' counterpart FSM courts will look to United States federal courts for guidance in interpreting this rule.  Jano v. King, 5 FSM Intrm. 326, 329 (App. 1992).

[5 FSM Intrm. 327]

Appeal and Certiorari
     Generally only final judgments or orders can be appealed, but the appellate division may, at its discretion, permit an appeal of an interlocutory order.  The court, in exercising its discretion, should weigh advantages and disadvantages of an immediate appeal and consider the appellant's likelihood of success before granting permission.  Jano v. King, 5 FSM Intrm. 326, 329 (App. 1992).

Appeal and Certiorari - Standard of Review; Courts - Recusal
     In order to overturn the trial judge's denial of a motion to recuse the appellant must show an abuse of discretion by the trial judge.  The appellate court will not merely substitute its judgment for that of the trial judge.  Jano v. King, 5 FSM Intrm. 326, 330 (App. 1992).

Appeal and Certiorari - Standard of Review
     An abuse of discretion by the trial court occurs when its decision is clearly unreasonable, arbitrary, or fanciful; or it is based on an erroneous conclusion of law; or the court's findings are clearly erroneous; or the record contains no evidence upon which the court could rationally have based its decision.  Jano v. King, 5 FSM Intrm. 326, 330 (App. 1992).

Courts - Judges; Separation of Powers
     The Chief Justice has the constitutional authority to make rules for the appointment of special judges, and Congress has the constitutional authority to amend them.  Congress has provided the Chief Justice with the statutory authority to appoint temporary justices.  Where Congress has acted pursuant to its constitutional authority to provide statutory authority to the court, the Court need not have exercised its concurrent rule-making authority.  Jano v. King, 5 FSM Intrm. 326, 331 (App. 1992).

Courts - Judges
     The Chief Justice may appoint an acting Chief Justice if he is unable to perform his duties. "Unable to perform his duties" refers to a physical or mental disability of some duration, not to the legal inability to act on one particular case.  Jano v. King, 5 FSM Intrm. 326, 331 (App. 1992).

*    *    *    *

COURT'S OPINION
MARTIN YINUG, Associate Justice:

BACKGROUND
     This request for permission to appeal under FSM App. R. 5(a) arises out of a civil suit against the Chief Justice of the FSM Supreme Court, the FSM Attorney General, and one of the Assistant Attorneys General. The case was originally filed in Pohnpei State Supreme Court on October 4, 1991, but was shortly thereafter removed to the FSM Supreme Court Trial Division by the defendants. The motion for removal was heard by Temporary Justice Ngiraklsong

[5 FSM Intrm. 328]

and was granted on October 7, 1991.  On November 20, 1991, the plaintiff filed a motion for recusal of Judge Ngiraklsong.  A Supplemental Motion to that effect was filed on January 6, 1992.  The motion was denied by order of Judge Ngiraklsong entered February 21, 1992.  Plaintiff's motion to reconsider was denied on February 26, 1992.

     On March 2, 1992, the plaintiff made a motion for the prescribed statement required by FSM App. R. 5(a) before a petition for permission to appeal an interlocutory order can be considered, and for a stay of the proceedings.  Judge Ngiraklsong issued the prescribed statement on March 19, 1992, but denied the stay because FSM App. R. 5(a) specifically provides that an appeal under that rule will not stay the proceedings unless so ordered.  On March 30, 1992, the plaintiff mistakenly filed his petition for permission to appeal in the trial division, but by his request on April 2, 1992, for an entry of correction it was then filed in the appellate division.1

ANALYSIS
A.  Nature of the Rule
     None of our previous reported cases have discussed the standards to be employed when considering whether to grant permission for an appeal under FSM App. R. 5(a).  This rule has been cited in only two reported FSM cases.2 The language of FSM App. R. 5(a), however, indicates that it is a discretionary rule.  The Article XI, 3 justices "may permit an appeal" from an

[5 FSM Intrm. 329]

interlocutory order if application for permission is made within 10 days of the entry of the interlocutory order.  This is an exception to the general rule that only final judgments or orders can be appealed.  FSM App. R. 4(a)(1)(A).  See also In re Main, 4 FSM Intrm. 255, 257 (App. 1990) (general rule is that appeals from ruling of trial judge may only be taken upon issuance of final judgment).

     When the language of an FSM Rule of Civil Procedure is nearly identical to a similar United States Federal Rule of Civil Procedure FSM courts will often look to the United States federal courts for guidance in interpreting this rule.  Mailo v. Twum-Barimah, 2 FSM Intrm. 265, 267 (Pon. 1986).  This Court will look to United States practice for similar guidance when its Rule of Appellate Procedure is similar to a United States' counterpart.

     The United States counterpart to FSM App. R. 5(a) is 28 U.S.C. 1292(b).  It is nearly identical.  28 U.S.C. 1292(b) is considered a discretionary rule.  See 16 Charles A. Wright, Arthur R. Miller, Edward H. Cooper & Eugene Gressman, Federal Practice and Procedure 3929, at 140 & n.23 (1977) (citing S. Rep. No. 2434, 85th Cong., 2d Sess. (1958)).
 
     Before the Court decides whether or not to exercise its discretion to grant permission for the appeal the Court should weigh the advantages and disadvantages of an immediate appeal.

The advantages of immediate appeal increase with the probabilities of prompt reversal, the length of the . . . court proceedings saved by reversal of an erroneous ruling, and the substantiality of the burdens imposed on the parties by a wrong ruling.  The disadvantages of immediate appeal increase with the probabilities that lengthy appellate consideration will be required, that the order will be affirmed, that continued . . . court proceedings without appeal might moot the issue, that reversal would not substantially alter the course of . . . court proceedings, and that the parties will not be relieved of any significant burden by reversal.

Id. 3930, at 156.

     Determining the relative advantages or disadvantages of granting permission for this appeal requires a brief look at the merits of the plaintiff's arguments.  The less likely the success of the plaintiff's arguments, the less likely permission should be granted for an appeal under FSM App. R. 5 (a).

B.  Plaintiff's Arguments
     The plaintiff has two arguments that form the basis of this petition for permission to appeal.  The first is that Judge Ngiraklsong should not have denied the plaintiff's motion to recuse himself.  The second is that Judge

[5 FSM Intrm. 330]

Ngiraklsong's appointment was not constitutionally proper.

1.  Failure to Recuse
     In the FSM (as in the U.S.) the appellant must show an abuse of the trial judge's discretion in order to overturn the trial judge's denial of a motion to recuse. Skilling v. FSM, 2 FSM Intrm. 209, 217 (App. 1986).  Success on an appeal based on abuse of the trial court's discretion is thus difficult to achieve.

An abuse of discretion occurs when (1) the court's decision is "clearly unreasonable, arbitrary, or fanciful"; (2) the decision is based on an erroneous conclusion of law; (3) the court's findings are clearly erroneous; or (4) the record contains no evidence on which the . . . court rationally could have based its decision.

Heat & Control, Inc. v. Hestor, Inc., 785 F.2d 1017, 1022 (Fed. Cir. 1986) (citations omitted).  Furthermore, "[s]uch abuses must be unusual and exceptional; [the appeals court] will not merely substitute [its] judgment for that of the trial judge." Premium Servs. Corp. v. Sperry & Hutchinson Co., 511 F.2d 225, 229 (9th Cir. 1975).

     The plaintiff claims that 4 F.S.M.C. 124(1), (2)(a) & (d) require Judge Ngiraklsong to recuse himself.  The plaintiff alleges that Judge Ngiraklsong is personally biased in favor the defendant, Chief Justice King, and has an interest in his continued friendship.  A brief reading of Judge Ngiraklsong's order denying recusal more than adequately rebuts the charges of interest and/or bias.  Jano v. King, 5 FSM Intrm. 266, 270-71 (Pon. 1992).

     Therefore, it is very unlikely that the plaintiff could show that Judge Ngiraklsong abused his discretion under any of the four criteria listed above.  Judge Ngiraklsong's decision was not unreasonable, arbitrary, or fanciful, nor was it based on an erroneous conclusion of law, nor were his findings clearly erroneous, and there was evidence in the record on which the court could rationally have based its decision.  In the light of the abuse of discretion standard that must be applied, it is very unlikely that an appellate panel would overturn Judge Ngiraklsong's denial of the recusal motion.3

[5 FSM Intrm. 331]

2.  Plaintiff's Argument of Unconstitutionality
     The plaintiff's second argument is that the procedure used for appointing Judge Ngiraklsong was unconstitutional.  The plaintiff relies on Article XI, 9(b) of the Constitution, which allows the Chief Justice to make rules for the special assignment of judges, Judge Ngiraklsong's appointment, and all other special appointments made in the history of the FSM Supreme Court, are unconstitutional and illegal.

     The plaintiff asserts that Article XI of the Constitution requires that any special appointment only be made pursuant to a judge-made rule.  The plaintiff  appears to ignore the discretionary language in Article XI: "[T]he Chief Justice . . . by rule may . . . (b) . . . give special assignments."  He also ignores 9(f) of Article XI which states that "[j]udicial rules may be amended by statute."  Congress has provided the Chief Justice with the statutory authority to appoint temporary justices.  4 F.S.M.C. 104. The plaintiff contends that this is not enough.  He contends there must also be a Rule to follow before such appointments are constitutionally made.  This very strained argument is unlikely to prevail on appeal.  Where Congress has acted pursuant to its constitutional authority to provide statutory authority to the Court, the Court need not have exercised its concurrent rule-making authority.

     The plaintiff also argues that Justice Benson should have been appointed Acting Chief Justice before he appointed Judge Ngiraklsong as a Temporary Justice.  This is based on the plaintiff's reading of Article XI, 4 of the Constitution, which authorizes the Chief Justice to appoint an Acting Chief Justice if he is unable to perform his duties.  The plaintiff's reliance on this section is misplaced.  A careful reading of this section indicates that the term "unable to perform his duties" must refer to either a physical or mental disability of some duration, not to the legal inability to act on a one particular case.  This interpretation is supported by the Constitutional Convention's report on this his particular provision.  That report states that this section was needed in the Constitution "in order to assure continuity and avoid disruption in the operation of the judiciary."  SCREP No. 49, II J. of Micro. Con. Con. 876, 880.  It was also thought important that the Constitution provide a procedure to designate an acting Chief Justice "in the case of an unexpected absence" or if for "some reason the chief justice is unable to designate an acting chief justice."  Id.  None of these considerations give the plaintiff's position any support.

     Since the likelihood that the plaintiff could prevail upon any of his arguments upon appeal is slim, his petition for permission to appeal under FSM App. R. 5(a) is accordingly denied.

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Footnotes:

1.  Defendant King also raises the issue that the petition was not timely filed in the proper court - March 30, 1992 (March 29 was a Sunday) being the last day in which the rule allowed the petition to be filed in the appellate division.  While this argument has merit it need not be addressed here as the petition is denied on other grounds.  Additionally, the defendant's opposition which raised this issue was untimely filed.  FSM App. R. 5(b) allows the adverse party 10 days after service in which to file an opposition to a petition for permission to appeal.  The defendants were served on March 30, 1992, and April 2, for the petition and entry of corrections respectively.  Defendant King's opposition was not filed until May 14, 1992.

2.  Lonno v. Trust Territory (II), 1 FSM Intrm. 75 (Kos. 1982) dealt only with the issue whether the situation in that case warranted the trial judge issuing the prescribed statement called for in FSM App. R. 5(a).  That is not an issue in this case as the trial judge has issued such a statement.  In FSM v. Skilling, 1 FSM Intrm. 464 (Kos. 1984), the trial judge entered a prescribed statement to allow the defendant an opportunity for a  FSM App. R. 5(a) appeal in the denial of a motion to recuse the trial judge.  The defendant did not take the opportunity to request permission for an appeal under FSM App. R. 5(a), and when the defendant appealed his conviction both the denial of the motion for recusal and his conviction were affirmed.  See Skilling v. FSM, 2 FSM Intrm. 209 (App. 1986).

3.  The Court also notes that the majority of courts in the United States that have ruled on whether permission should be granted, under the U.S. counterpart to FSM App. R. 5(a), to appeal a denial or granting of a recusal motion have held that such an order is not reviewable.  A minority of courts have held that it is reviewable.  Wesley Kobylak, Review of Federal Judge's Grant or Denial of Motions to Recuse, 64 A.L.R. Fed. 433, 447-51 (1983).