THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as In re Disqualification of Justice ,
7 FSM Intrm. 278 (Chk. S. Ct. Tr. 1995)

[7 FSM Intrm. 278]

IN THE MATTER OF THE
DISQUALIFICATION OF JUSTICE O'SONIS.

CA No. 113-95

OPINION AND ORDER
Wanis R. Simina
Associate Justice

Hearing:  August 30, 1995
Decided:  August 31, 1995

APPEARANCES:
For the Movant:            Sabino Asor
                                       P.O. Box 44
                                       Weno, Chuuk FM 96942

For the Nonmovant:     Julio Akapito
                                       P.O. Box  EX
                                       Weno, Chuuk FM 96942

*    *    *    *

HEADNOTES
Courts ) Recusal
     The Chuuk Judiciary Act requires that a motion for a justice's disqualification be supported by affidavits to establish a factual basis for the motion, and that there be a hearing at which the movant must prove his allegations.  In re Disqualification of Justice, 7 FSM Intrm. 278, 279 (Chk. S. Ct. Tr. 1995).

Civil Procedure ) Affidavits; Evidence ) Hearsay
     Hearsay is not admissible in a hearing or trial.  Hearsay is an out-of-court statement offered as evidence to prove the truth of the matter asserted.  A statement is an oral or written assertion.  An affidavit is hearsay which is inadmissible unless allowed by an exception to the hearsay rule.  In re Disqualification of Justice, 7 FSM Intrm. 278, 279 (Chk. S. Ct. Tr. 1995).

Courts ) Recusal
     Allegations that are the basis for a motion for a justice's disqualification must be proven by

[7 FSM Intrm. 279]

admissible and competent evidence.  Inadmissible affidavits are not enough.  In re Disqualification of Justice, 7 FSM Intrm. 278, 279 (Chk. S. Ct. Tr. 1995).

*    *    *    *
 
COURT'S OPINION
WANIS R. SIMINA, Associate Justice:
     This matter was referred to me, pursuant to Chk. S.L. 190-08, 22 [Judiciary Act] after one of the parties defendant in Robert v. Gouland et al., CA No. 113-95 filed a Motion to Disqualify Justice O'Sonis from presiding over the trial of this matter.  The hearing was held on August 30, 1995.  Mr. Sabino Asor appeared for the moving party, Defendant Welles [herein movant], and the plaintiff was represented by Mr. Julio Akapito.  At the conclusion of the hearing I orally denied the motion.  I now set forth the reasons for the denial.

     The movant's Motion for Disqualification was supported as required by affidavits. There were two affidavits.  One alleged serious misconduct on the part of the presiding justice and the other alleged a family relationship between the justice and the plaintiff.  The movant has the burden of proving the allegations made in the motions and affidavits by a preponderance of admissible evidence.

     Affidavits are required by the Judiciary Act to establish in essence probable cause sufficient to disrupt the proceedings and require a hearing.  Otherwise any party could make a motion to disqualify with no factual basis and be able to disrupt the proceedings to gain a tactical advantage or for mere delay.

     The Judiciary Act also requires a hearing.  The purpose of that hearing is to require the moving party to prove their allegations.  As with any hearing, the Chuuk Rules of Evidence apply.  Hearsay is not admissible in a hearing or trial.  Chk. Evid. R. 802.  Hearsay is an out-of-court statement offered as evidence to prove the truth of the matter asserted.  Id. R. 801(c).  A statement is an oral or written assertion.  Id. R. 801(a).  Thus, the affidavits that accompanied the motion are hearsay if offered as evidence to prove the allegations of disqualification.

     The movant offered no evidence to support the allegations of disqualification other than the affidavits that supported the motion.  The movant identified no exception to the hearsay rule that would render the affidavits admissible in evidence. Further, a close reading of the affidavits demonstrates that they are hearsay based on other hearsay.  In other words, many of the allegations are based on information told to the affiant by other persons.  In such a case, the one offering the evidence must identify exceptions to hearsay rule for not only the affidavits but also the other hearsay contained in the affidavits.  Chk. Evid. R. 805.

     Again the reason that the movant must produce evidence of his allegation, even those contained in affidavits, is to prevent parties to an action from disrupting the proceedings based on mere allegations and rumors.  While all parties have the right under the Judiciary Act to move to disqualify any justice, they must be prepared to prove those allegations by competent and admissible evidence.  The movant has totally and completely failed to produce any admissible or competent evidence of the allegations contained in his motion.

     Since the movant has offered no evidence in support of his motion, the court has no choice but to deny the motion to disqualify.

[7 FSM Intrm. 280]

     The fact that counsel for the movant failed to offer any evidence of the allegations he asserted in the motion to disqualify is disturbing.  Counsel as a member of the bar should be familiar with the rules of evidence and the idea of burden of proof.  He should also be familiar with the Chuuk Rules of Professional Conduct.  The fact that counsel for the movant presented no witnesses or admissible evidence at the hearing suggests to the court one of two possibilities.  Counsel is either ignorant of the law or he has shown reckless disregard as to the truth of the allegations made in the affidavits that concern the integrity of a judge.  Either situation could give rise to possible violation of the Rules of Professional Conduct.  See MRPC Rule 1.1 Competence and Rule 8.2(a) Judicial and Legal Officials.

     Accordingly, it is therefore

     Ordered that the Motion to Disqualify should be and the same is hereby denied for failure of the movant to present admissible evidence, and it is further

     Ordered that CA No. 113-95 is to be returned to Justice O'Sonis for further proceedings.
                                                                                                                                                                                                                                                                                                           
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