THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Damarlane v. United States,
7 FSM Intrm. 52 (Pohn. S. Ct. App. 1995)

[7 FSM Intrm. 52]

IGNACIA DAMARLANE et al.,
Appellants,

vs.

THE GOVERNMENT OF UNITED STATES OF AMERICA
ON ITS OWN BEHALF AND STANDING IN THE PLACE OF
THE TRUST TERRITORY OF THE PACIFIC ISLANDS,
THE GOVERNMENT OF POHNPEI STATE and
POHNPEI TRANSPORTATION AUTHORITY,
THE FEDERATED STATES OF MICRONESIA
and JOHN DOES 1-21,
Appellees.

APPEAL NO. 5-91

ORDER

Ordered:  February 15, 1995
Entered:  February 20, 1995

APPEARANCES:
For the Plaintiff/Appellants:          Mary Berman, Esq.
                                                        P.O. Box 163
                                                        Kolonia, Pohnpei FM 96941

For the Defendant/Appellees:     Joses R. Gallen, Esq.
(Gov't of Pohnpei and PTA)         Attorney General
                                                        State of Pohnpei
                                                        Peilapalap, Pohnpei FM 96941

*    *    *    *
[7 FSM Intrm. 53]

HEADNOTES
Courts ) Recusal
     In considering motions for recusal a court must carefully analyze the grounds in terms of the disqualification statute, and it need not lightly grant such motions simply to accommodate or placate litigants or their counsel, lest the judge be violating his judicial oath to administer justice. Damarlane v. United States, 7 FSM Intrm. 52, 54 (Pon. S. Ct. App. 1995).

Courts ) Recusal
     A motion for disqualification ordinarily may not be predicated on the judge's rulings in the case or in related cases, nor on a demonstrated tendency to rule in a particular way, nor on a particular judicial leaning or attitude derived from his experience on the bench.  Damarlane v. United States, 7 FSM Intrm. 52, 54 (Pon. S. Ct. App. 1995).

Courts ) Recusal
     For the questioning of a judge's impartiality to be reasonable it must be grounded upon facts or reasons which furnish a rational basis for doubting the judge's impartiality, and such reasonableness is not to be considered from the perspective of the litigant or of the judge, but of the disinterested reasonable observer.  Damarlane v. United States, 7 FSM Intrm. 52, 54 (Pon. S. Ct. App. 1995).

Courts ) Recusal
     Under the Pohnpei statute a party moving for disqualification of a judge must do so before the trial or hearings unless good cause is shown for filing it at a later time.  Upon receipt of such a motion, the judge shall rule on it before proceeding further in the matter, stating his reasons for granting or denying it on the record.  Damarlane v. United States, 7 FSM Intrm. 52, 55 (Pon. S. Ct. App. 1995).

Courts ) Recusal
     Normally a judge will not be disqualified when after the case has been submitted for decision a party files an unrelated lawsuit against the judge.  Damarlane v. United States, 7 FSM Intrm. 52, 55 (Pon. S. Ct. App. 1995).

*    *    *    *

COURT'S OPINION
EDWEL H. SANTOS, Chief Justice:
     Oral argument was heard before:  Edwel H. Santos, Chief Justice, Carl Kohler and Judah C. Johnny, Associate justices on March 20, 1992, and the case was submitted for decision.  Initial deliberation by the appellate panel took place in chambers following listening to oral argument of counsel, and the task of writing the opinion of the Court was assigned to Chief Justice Santos.  During the process of writing the first draft of the opinion, Justice Carl Kohler was called to eternal rest on May 7, 1994, thus leaving Chief Justice Santos and Associate Justice Johnny to complete the judicial task called for by this appeal.

     More than two years after oral argument before the appellate panel, Mary Berman, on June 28, 1994, filed a totally unrelated action against Chief Justice Santos in the FSM Supreme Court alleging that Chief Justice Santos had denied her right to be admitted to the Pohnpei State Bar.  The case was Berman v. Chief Justice Santos, FSM Civil Action No. 1994-097.  The case was dismissed on September 27, 1994 on procedural grounds.  Berman v. Santos, 6 FSM Intrm. 532, 536 (Pon. 1994).

[7 FSM Intrm. 54]

     After Chief Justice Santos had conducted a substantial research of the law and customs to aid in the preparation of the opinion of the Court and when Chief Justice Santos was about to produce the first draft of the opinion, Attorney Mary Berman, on October 12, 1994, filed a motion with affidavit to recuse Chief Justice Santos from the appellate panel in this appeal, projecting that Chief Justice Santos was bias against her as well as against her client Kadalino Damarlane.  The charge of bias was harbored apparently because Attorney Mary Berman, more than 2 years following the hearing of the appeal, brought a lawsuit against Chief Justice Santos in the FSM Supreme Court (FSM Civil No. 1994-097), and more than a year following oral argument, Attorney Mary Berman, on behalf of Kadalino Damarlane, filed a mandamus action in the FSM Supreme Court (Damarlane v. Chief Justice Santos, Respondent, v. Pedronio Walter, FSM Civil No. 1993-017), requesting the FSM Supreme Court to order Chief Justice Santos to recuse himself from a Pohnpei case, Pedronio Walter v. Damarlane, PCA No. 86-92, and that the FSM Supreme Court to order that certain orders issued by Chief Justice in PCA No. 86-92 be set aside as null.  The complaint in the FSM Civil No. 1993-017 was never served upon defendant Chief Justice Santos, and Attorney Mary Berman without conducting a "reasonable inquiry" of the fact relating to services of process in the case as required under Rule 11 of both the FSM and Pohnpei Rules of Civil Procedure, filed an affidavit with the FSM Supreme with motion for the entry of default of Chief Justice Santos [alleging] that Chief Justice Santos was served with the Court process and had failed to respond.  Acting on this fraudulent affidavit of Mary Berman, the Clerk of the FSM Supreme Court entered the default of Chief Justice Santos in that case.  Upon the Court's review of the case, Acting Chief Justice Amaraich, as he then was, on April 19, 1993, set aside the default of Chief Justice Santos.  See Damarlane v. Santos, 6 FSM Intrm. 45 (Pon. 1993).  About one month later, Chief Justice Santos then learned of the mandamus action having been filed against him in the FSM Supreme Court, the entry of his default by the Court's Clerk, and the setting aside of that default by Acting Chief Justice Amaraich.  Needless to say as the record is clear on this point, Chief Justice Santos was afforded no opportunity to defend himself in the case.  Not too long after the incident, Attorney Mary Berman committed the exact "back stabbing" tactic against Chief Justice Santos and subsequently filing a fraudulent affidavit in the FSM Supreme Court asking that the Court enter a judgment of default against Chief Justice Santos.  Such conduct is unbecoming of an attorney and should be discouraged.

     In any event and for the reasons given below, I think the petitioner's motion for my recusal from the appellate panel in this appeal should be denied.

     Reasons:
     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 to "administer justice without respect to persons, and to do equal right unto all manner of people . . . and faithfully and impartially discharge and perform all duties incumbent upon [a judge] of the Pohnpei Supreme Court according to the best of [his] abilities and understanding, agreeably to the Constitution and laws of the Federated States of Micronesia, the Constitution, laws and customs and traditions of the State of Pohnpei . . . ."  Joseph v. Joseph, 3 Pon. L.R. 421.  A motion for disqualification ordinarily may not be predicated on the judge's rulings in the instant case or in related cases, nor on a demonstrated tendency to rule in a particular way, nor on a particular judicial leaning or attitude derived from his experience on the bench.  Id.  See also FSM v. Skilling, 1 FSM Intrm. 464 (Kos. 1984).  For the questioning of a judge's impartiality to be reasonable it must be grounded upon facts or reasons which furnish a rational basis for doubting the judge's impartiality, and such reasonableness is not to be considered from the perspective of the litigant or of the judge, but of the disinterested reasonable observer.  Id.

     The disqualification statute contained in Section 30(2) of the Pohnpei Judiciary Act, Pon. S.L.

[7 FSM Intrm. 55]

2L-160-82, states in relevant part that "a Justice shall . . . disqualify himself (a) where he has a personal bias or prejudice concerning a party or his counsel . . . ." Subsection (6) provides that

     A party may move to disqualify a Justice . . . for one or more of the reasons stated in Subsection (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 Justice shall rule on it before proceeding further in the matter, stating his reasons for granting or denying it on the record.

Pon. S.L. 2L-160-82, 30(6) (emphasis supplied).  Except for its frivolity and the untimeliness in filing the motion, the appellants' motion complied with the procedure for filing the motion)motion with affidavit.  Thus the next task in the process is for the Judge to rule upon the motion, granting or denying the motion.

     In the case of Joel v. Isokohnedi, 2 Pon. L.R. 421 (Tr. 1989) Justice Johnny said, "E wia kosondi (rule) dehde ieu me pekipen en kapiodohi Soun Kopwung men udahn pahn kapidelong ni ahnsou mwadang nin duwen me kak."

     Petitioner's motion for my recusal having been filed more than two years after the appellate panel heard oral argument of counsel in the appeal and the matter having been submitted for decision, and Chief Justice Santos having proceeded into the writing of the first draft of the court's opinion constitute substantial court time to be wasted if the motion is granted.  Additionally ground No. 2 (alleging that Chief Justice Santos was bias against Mr. Damarlane) having been harbored as a result of Mr. Damarlane's mandamus action against Chief Justice Santos filed one year after oral argument, the untimely filing of the motion shows no "good cause" for it to be granted.

     If this motion is grantable under the circumstances presented, it will have a far adverse and detrimental impact on the Court's constitutional function to administer justice to the People of Pohnpei.  A case may be heard by a judge, taken under advisement and during the process of the judge's determination of the case which normally include reviewing the pleadings, evidence, research of the law, including applicable customs and putting the opinion (judgment) in writing, a party may file a lawsuit against the judge for any reason simply to cause the disqualification of the judge from proceeding further, thus frustrating the function of the Judiciary.  This certainly is an undesirable process which this Court can not accept to become part of our judicial process.  And as emphatically observed by Justice Yinug in Berman v. FSM Supreme Court, 7 FSM Intrm. 8, 11 (App. 1995), "it is . . . disturbing to consider that a party could unilaterally bring about the disqualification of a justice by filing an unrelated civil action against him after the case has been submitted for decision and then claim prejudice [bias]" against the party or his attorney.  While there may be certain cases, though rare, where disqualification under related circumstances may be proper, this appeal is certainly not that type of such cases.
 
     The effect of the petitioner's motion to disqualify Chief Justice Santos from the appellate panel is to render the Court without power to issue its decision in the appeal.  And as stated in Adams v. Etscheit (II), 4 FSM Intrm. 237, 241, 3A Pon. L.R. 527, 538-39 (Pon. S. Ct. Tr. 1989) where the effect of a motion to disqualify a judge is to paralyze the Court the Court in exercising its constitutional and customary duty to balance things to conform to the Pohnpeian concept of justice may deny such motion.

     Wherefore, the Appellants' motion to disqualify Chief Justice Santos from the appellate panel in this appeal is denied.