7 FSM Intrm. 642-643

THE SUPREME COURT OF THE

FEDERATED STATES OF MICRONESIA

APPELLATE DIVISION

Cite as Ting Hong Oceanic Enterprises v. Trial Division ,

7 FSM Intrm. 642 (App. 1996)

[7 FSM Intrm. 642]

TING HONG OCEANIC ENTERPRISES CO., LTD.,

Petitioner,

vs.

SUPREME COURT OF THE FEDERATED STATES

OF MICRONESIA TRIAL DIVISION,

Respondent,

FEDERATED STATES OF MICRONESIA, by its

Attorney, ATTORNEY GENERAL OF THE

FEDERATED STATES OF MICRONESIA,

Real Party in Interest.

APPEAL CASE NO. P9-1996

ORDER GRANTING WRIT OF PROHIBITION

Decided: November 21, 1996

BEFORE:

Hon. Richard H. Benson, Associate Justice, FSM Supreme Court

Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court

APPEARANCE:

For the Petitioner: John Hollinrake, Esq.

Andrew Clayton, Esq.

Law Offices of R. Barrie Michelsen

P.O. Box 1450

Kolonia, Pohnpei FM 96941

* * * *

[7 FSM Intrm. 643]

HEADNOTE

Courts ) Recusal; Mandamus and Prohibition

Because a judge has a ministerial, non-discretionary duty to state on the record his reasons for denying a motion to disqualify himself, a writ of prohibition may issue to prevent him from proceeding further on a case until he has done so. Ting Hong Oceanic Enterprises v. Trial Division, 7 FSM Intrm. 642, 643 (App. 1996).

* * * *

PER CURIAM:

Ting Hong Oceanic Enterprises Co., Ltd. (Ting Hong) petitions for a writ of prohibition, or in the alternative a writ of mandamus, restraining the trial judge from taking any further steps, including trial in the retrial of Ting Hong in Criminal Case No. 1994-502. Ting Hong filed its motion to disqualify the trial judge on September 9, 1996. The FSM filed its opposition on October 11, 1996. The motion was heard on November 5, 1996. On November 11, 1996, the motion was denied in a written order which stated that a memorandum with the reasons for the denial would issue later. This petition was filed November 19, 1996. Trial is scheduled to start November 26, 1996. No memorandum with reasons has been issued yet.

A writ of mandamus or prohibition will issue only to compel a public official to perform a ministerial, non-discretionary duty. Senda v. Trial Division, 6 FSM Intrm. 336, 338 (App. 1994). The statute requires that "[u]pon receipt of . . . a motion [to disqualify], the justice shall rule on it before proceeding further in the matter, stating his reasons for granting or denying it on the record." 4 F.S.M.C. 124(6). The trial judge has not stated his reasons for denying the motion on the record. This is a ministerial, non-discretionary duty.

We therefore issue a writ of prohibition directed to the trial justice in Criminal Case No. 1994-502 that he not proceed further with the case against defendant Ting Hong until he has stated on the record the reasons for his denial of the motion to disqualify. Once that has occurred Ting Hong may renew its petition if it is so advised.


	THE SUPREME COURT OF THE FEDERATED STATES OF MICRONESIA APPELLATE DIVISION Cite as Ting Hong Oceanic Enterprises v. Trial Division , 7 FSM Intrm. 642 (App. 1996) [7 FSM Intrm. 642] *TING HONG OCEANIC ENTERPRISES CO., LTD.,* *Petitioner,* *vs.* *SUPREME COURT OF THE FEDERATED STATES* *OF MICRONESIA TRIAL DIVISION,* *Respondent,* *FEDERATED STATES OF MICRONESIA, by its* *Attorney, ATTORNEY GENERAL OF THE* *FEDERATED STATES OF MICRONESIA,* *Real Party in Interest.* APPEAL CASE NO. P9-1996 ORDER GRANTING WRIT OF PROHIBITION Decided: November 21, 1996 BEFORE: Hon. Richard H. Benson, Associate Justice, FSM Supreme Court Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court APPEARANCE: For the Petitioner: John Hollinrake, Esq. Andrew Clayton, Esq. Law Offices of R. Barrie Michelsen P.O. Box 1450 Kolonia, Pohnpei FM 96941 * * * * [7 FSM Intrm. 643] HEADNOTE Courts ) Recusal; Mandamus and Prohibition Because a judge has a ministerial, non-discretionary duty to state on the record his reasons for denying a motion to disqualify himself, a writ of prohibition may issue to prevent him from proceeding further on a case until he has done so. Ting Hong Oceanic Enterprises v. Trial Division, 7 FSM Intrm. 642, 643 (App. 1996). * * * * PER CURIAM: Ting Hong Oceanic Enterprises Co., Ltd. (Ting Hong) petitions for a writ of prohibition, or in the alternative a writ of mandamus, restraining the trial judge from taking any further steps, including trial in the retrial of Ting Hong in Criminal Case No. 1994-502. Ting Hong filed its motion to disqualify the trial judge on September 9, 1996. The FSM filed its opposition on October 11, 1996. The motion was heard on November 5, 1996. On November 11, 1996, the motion was denied in a written order which stated that a memorandum with the reasons for the denial would issue later. This petition was filed November 19, 1996. Trial is scheduled to start November 26, 1996. No memorandum with reasons has been issued yet. A writ of mandamus or prohibition will issue only to compel a public official to perform a ministerial, non-discretionary duty. Senda v. Trial Division, 6 FSM Intrm. 336, 338 (App. 1994). The statute requires that "[u]pon receipt of . . . a motion [to disqualify], the justice shall rule on it before proceeding further in the matter, stating his reasons for granting or denying it on the record." 4 F.S.M.C. 124(6). The trial judge has not stated his reasons for denying the motion on the record. This is a ministerial, non-discretionary duty. We therefore issue a writ of prohibition directed to the trial justice in Criminal Case No. 1994-502 that he not proceed further with the case against defendant Ting Hong until he has stated on the record the reasons for his denial of the motion to disqualify. Once that has occurred Ting Hong may renew its petition if it is so advised.