7 FSM Intrm. 644-651

A motion to recuse is untimely when it is brought over five weeks after the deadline for pretrial motions and when the movant had known for months which judge would be presiding over the trial. FSM v. Ting Hong Oceanic Enterprises, 7 FSM Intrm. 644, 647-48, 649 (Pon. 1996).

Because parties have a right to trial before a justice duly appointed by the President under Article XI of the Constitution the Rule of Necessity may be invoked to prevent recusal of a judge when no other judge is qualified to hear the case. FSM v. Ting Hong Oceanic Enterprises, 7 FSM Intrm. 644, 648 (Pon. 1996).

unbiased, and the burden of proof is on the party asserting an unconstitutional bias to demonstrate otherwise. A party requesting recusal on retrial must establish that actual bias or prejudice exists that comes from an extrajudicial source. FSM v. Ting Hong Oceanic Enterprises, 7 FSM Intrm. 644, 649 (Pon. 1996).

A judge whose governmental employment ended before the events occurred that gave rise to the criminal case in front of him is not disqualified from the case because he did not act as an adviser to or was a material witness to the agreement at issue. FSM v. Ting Hong Oceanic Enterprises, 7 FSM Intrm. 644, 649-51 (Pon. 1996).

The Court, after giving careful consideration to the arguments made by both parties in their briefs and at oral argument on November 5, 1996, denied defendant's Motion to Disqualify Chief Justice Amaraich on November 11, 1996. This Memorandum of Decision explains the Court's reasoning.

Chief Justice Amaraich found Defendant Ting Hong guilty of various fishing violations under Title 24 of the FSM Code following trial in May 1995. The basis for that decision was set out in the Court's Memorandum of Decision, issued on July 27, 1995. Defendant appealed these convictions to the Appellate Division of the FSM Supreme Court.

On April 15, 1996, the Appellate Division ruled that Ting Hong had had ineffective assistance of counsel before the Trial Division, and vacated defendant's convictions and sentence. After denying the government's Motion for Rehearing, the Appellate Division issued a Mandate on May 13, 1996, directing the Trial Division to reinstate the criminal case on its docket. Since that time, Chief Justice Amaraich has continued to preside over the action, and has ruled on a number of substantive and procedural motions filed by the parties. 1

On September 9, 1996, defendant filed a Motion to Disqualify Chief Justice Andon Amaraich from presiding over retrial of this matter. Defendant based its motion for disqualification on a series of arguments: (1) retrial by the same judge in a non-jury trial is improper; (2) Chief Justice Amaraich must be disqualified because his impartiality might reasonably be questioned under 4 F.S.M.C. 124(1), based on comments expressed in his July 27, 1995 Memorandum of Decision in the original trial; (3) Chief Justice Amaraich must be disqualified under 4 F.S.M.C. 124(2)(c), due to his role as a government advisor to the Micronesian Maritime Authority ("MMA"); and (4) Chief Justice Amaraich must be disqualified under the same section based on his status as a material witness in this action. The Court heard the parties's argument on the motion on November 5, 1996.

The Court denies defendant's motion to disqualify for two reasons. First, to the extent defendant argues that retrial by the same judge is improper, and that the Chief Justice's July 27, 1995 comments indicate bias, the Court finds that these challenges are not timely. Even if these objections had been timely raised, defendant has failed to show that its motion for recusal and reassignment premised on these arguments is supported by the applicable law. Second, to the extent defendant asserts that the Chief Justice's former service as Chairman of MMA requires his disqualification in this proceeding, defendant's motion and supporting affidavit fail to provide a sufficient factual basis for recusal under 4 F.S.M.C. 124(1) or 4 F.S.M.C. 124(2)(c), as the Court recently held in Fu Zhou Fuyan Pelagic Fishery Co. v. Wang Shun Ren, 7 FSM Intrm. 601 (Pon. 1996) ("Fu Zhou").

Defendant initially raised the issue of Chief Justice's possible disqualification in its Motion to Dismiss for Lack of Jurisdiction Due to Improper Venue, filed on June 6, 1996. In that motion, defendant argued that the government should have brought this case in Chuuk, rather than in Pohnpei. Defendant attempted to buttress its argument by suggesting that "[r]efiling this matter in the proper venue (Chuuk State) may help alleviate the problem which Chief Justice Andon Amaraich would face if he attempted to sit again as trier of fact in the retrial of this matter . . . ." Motion to Dismiss at 7. Defendant cited United States case law pertinent to non-jury retrials, and noted that "by dismissing the matter in this court and allowing the government to refile in the proper venue, the issue of disqualification of the Hon. Andon Amaraich may be avoided." Id. at 7-8.

Apparently uncertain as to whether defendant was in fact asking the Chief Justice to recuse himself, the government's brief in opposition to that motion responded directly to defendant's suggestion that disqualification might be appropriate. The government argued that in the absence of any demonstration of actual bias or prejudice, or the appearance of partiality, Chief Justice Amaraich is in fact the proper judge to hear this case on retrial, citing Jonas v. FSM, 2 Intrm. 238, 239 (App.

1986). Based on the Jonas standard, the government contended that defendant had not filed a properly supported motion for recusal, as required by 4 F.S.M.C. 124(6), and that until defendant has done so, its suggestion that the judge should not hear the case should be disregarded. The government also argued at length that the social and geographic configuration of the FSM, and factors such as delay and expense, would weigh against recusal and in favor of invocation of the Rule of Necessity in this case. Mem. of the FSM in Opp'n to Ting Hong's Motion to Dismiss for Lack of Jurisdiction at 13-17 (June 25, 1996). The Rule of Necessity sometimes obliges judges to hear cases from which they would otherwise recuse themselves. Nahnken of Nett v. United States (II), 6 FSM Intrm. 318 (Pon. 1994); FSM v. Skilling, 1 FSM Intrm. 464 (Kos. 1984).

Almost a month later, at the July 23, 1996 hearing on defendant's Motion to Dismiss, defendant clarified that it was not formally moving for disqualification, and that it intended to leave the comments in its brief regarding disqualification as a suggestion for the Court.2 Following defendant's statement to this effect, the government reiterated that defendant had not presented evidence of bias or prejudice from extrajudicial sources, as required by FSM case law, or explained why the Rule of Necessity would not defeat any argument for recusal. Hearing (July 23, 1996) (Tape No. 00-3822, Counter Nos. 2382-2570). The Court terminated discussion on the topic, because defendant had stated that the issue of recusal was not before the Court. Counter Nos. 1399, 2570.

Ting Hong has been on notice since May 13, 1996 that Chief Justice Amaraich would be presiding over retrial of this criminal case. At the July 23, 1996 hearing on defendant's Motion to Dismiss, when the issue of disqualification arose, the Court made clear to counsel for Ting Hong that the Court did not consider the issue of disqualification to be before the Court. Defendant reiterated that it was not making a formal motion to disqualify.

The Court will not speculate as to defense counsel's motives in delaying the filing of a formal motion to disqualify based on its objection that the Chief Justice should not sit on retrial of this criminal case. The Court simply notes that Ting Hong had ample opportunity to present a timely motion to disqualify between May 16, 1996, when the Appellate Division issued its Mandate, and August 1, 1996, when the deadline for the filing of pre-trial motions expired. Defendant could have filed a formal motion to disqualify in conjunction with its Motion to Dismiss, or it could have filed a properly supported motion in response to arguments made in the government's opposition brief. If either route had been taken, the issue of disqualification on this basis could have been fully addressed at the

Court's July 23, 1996 hearing.3 Instead, defendant waited until over five weeks after the August 1, 1996 deadline for the filing of pre-trial motions had passed to present its motion to the Court. The Court therefore rejects defendant's motion to disqualify as untimely, to the extent the motion objects to retrial by the same judge following appeal.

Even if the Court had found defendant's motion to be timely, the Court would have found that the facts in this case justify invocation of the Rule of Necessity. Defendant's numerous citations to United States law on this point are simply not applicable.4 Whether recusal would be desirable in the United States under similar circumstances is really of no moment; this Court must take up the issue of recusal in the unique context of the social and geographic configuration of the FSM.

At the November 5, 1996 hearing on defendant's motion to disqualify, defendant argued that in order to preserve the appearance of impartiality and maintain public confidence in the operation of the judiciary, the three justices who sat on the panel reviewing the trial division's original findings should also be disqualified from sitting as trial judges in the retrial of this case. As a practical matter, this means that not only Chief Justice Amaraich, but also FSM Supreme Court Associate Justice Yinug, FSM Supreme Court Associate Justice Benson, and Justice Wanis Simina, who sat as a temporary justice by designation on the appellate panel, would all be disqualified from hearing the retrial of this action. Defendant further argued that none of these justices should sit on any subsequent appellate panel if defendant should again be convicted and again appeal its conviction. On this basis, defendant asked the Chief Justice to recuse himself and to reassign this case to a state court justice or to a justice from outside the jurisdiction, urging that this would be the only means of maintaining the appearance of impartiality.

The Court cannot agree that such extreme measures are warranted in this case. If the Court were to accept defendant's argument, no constitutionally-appointed FSM Supreme Court justice would be able to sit as trial judge in this action, or sit on the appellate panel in this case if a further appeal is taken. This would deny both parties their right to trial before a justice duly appointed by the President under Article XI of the FSM Constitution. Skilling, 1 FSM Intrm. at 469-70. As a matter of policy this is to be avoided ) particularly in a case such as this, which is of national significance because it directly affects our nation's most important natural resources.

In Skilling, this Court discussed the factors justifying invocation of the Rule of Necessity, whereby judges are obliged to hear and decide cases from which they might otherwise recuse themselves if no other judge is available to hear the case. In view of defendant's argument that no other FSM Supreme Court Justice is any better suited to hear this appeal than Chief Justice Amaraich, in view of the significance of the issues raised, and in view of the expense, disruption, and delay inherent in reassigning this action to another judge at this late stage of litigation, not to mention the

difficulty of establishing an appellate panel if this case were reassigned, the Court finds that invocation of the Rule of Necessity is justified here. See Skilling, 1 FSM Intrm. at 470-71 (noting that in the United States the Rule of Necessity has been held to prevail over language nearly identical to that found in 4 F.S.M.C. 124(1) and (2)).

Defendant next argues that the Chief Justice's impartiality might be reasonably questioned based on comments pertaining to sentencing, contained in the trial court's July 27, 1995 Memorandum of Decision. The Court finds that this argument for disqualification, like defendant's objection to retrial by its original trial judge, is also untimely. Defendant has had the Trial Division's July 27, 1995 Memorandum of Decision in its possession for over a year. Defendant nevertheless waited until September 9, 1996, long after the August 1, 1996 deadline for pretrial motions had expired, to move for Chief Justice Amaraich's disqualification based the comments contained in that Memorandum. Defendant has failed to provide any plausible reason for its delay in raising this issue. See supra at 648 & n.3.

Even if the Court did not find defendant's argument to be untimely, the Court would nevertheless find that defendant's objection to the Court's July 27, 1995 comments provide no basis for recusal as a matter of law. Statements and rulings made by a judge in the course of judicial proceedings do not provide grounds for disqualification under 4 F.S.M.C. 124(1). Skilling , 1 FSM Intrm. at 473. There is a presumption that judicial officials are unbiased, and the burden of proof is on the party asserting an unconstitutional bias to demonstrate otherwise.Suldan v. FSM (II), 1 FSM Intrm. 339, 362 (Pon. 1983). A party requesting recusal on retrial must establish that actual bias or prejudice exists, based on extrajudicial statements. Jonas, 2 FSM Intrm. at 239. In Skilling, this Court wrote that

Section 124 also furnishes no grounds for disqualifying a judge on the basis of statements or rulings made by him in his judicial capacity reflecting reasoned views derived from documents submitted, arguments heard, or testimony received in the course of judicial proceedings in the same case.

1 FSM Intrm. at 473-74. The Chief Justice's remarks in the original action were made during the course of judicial proceedings, and defendant has not shown that the comments to which it objects have their source in actual bias or prejudice from an extrajudicial source.

Defendant next asserts that Chief Justice Amaraich must be disqualified from presiding over this case based on his former role as Chairman of MMA, and his execution of a 1991 foreign fishing agreement between Ting Hong and MMA in that capacity. Defendant cites 4 F.S.M.C. 124(2)(c), which states that a judge shall disqualify himself "(c) where he has served in governmental employment and in such capacity participated as counsel, adviser, or material witness concerning the proceeding or

Defendant previously raised a virtually identical argument in Fu Zhou, which the Court rejected. In that case, in which the parties disagreed over interpretation of the language of the 1994 foreign fishing agreement between Ting Hong and MMA, as they do here, the Court found that the Chief Justice's impartiality could not reasonably be questioned based on his Chairmanship of MMA up until 1991. The Court found that the 1991 Agreement was not at issue in that case, and any negotiations surrounding the 1991 Agreement would not be relevant to negotiation of the 1994 Agreement or admissible under the parol evidence rule.

Chief Justice Amaraich did not serve as legal counsel or as a legal adviser to the MMA during his time as Chairman of MMA. The Chief Justice's prior position as Chairman of MMA also did not concern this proceeding or the merits of the particular case in controversy in this lawsuit, within the meaning of 4 F.S.M.C. 124(2)(c). Indeed, it could not, because the Chief Justice was no longer Chairman of MMA in 1995, when the facts giving rise to this litigation occurred. Chief Justice Amaraich concluded his service as Chairman of MMA late in 1991. Defendant's affidavit does not establish otherwise.

Fu Zhou, 7 FSM Intrm. at 604. 5 Based on the reasoning set forth in Fu Zhou, the Court rejects defendant's argument in this action as well. When the events giving rise to this criminal proceeding occurred, in August 1994, Chief Justice Amaraich was no longer Chairman of MMA. Id.

Finally, defendant's September 9, 1996 Motion to Disqualify asserts that it is "likely" that defendant will wish to call Chief Justice Amaraich as a witness at trial with respect to the intention of negotiators of a 1991 foreign fishing agreement between the same parties, because that agreement "contained several terms which are identical or nearly identical to the terms set forth" in defendant's April 1994 agreement with MMA. Motion to Disqualify at 11-12. For this reason, Ting Hong argues that the Chief Justice is a material witness to these proceedings, and must be disqualified under 4 F.S.M.C. 124(2)(c).

Again, an identical argument was raised and rejected in Fu Zhou. Fu Zhou, 7 FSM Intrm. at 604. For the same reasons set out in Fu Zhou, the Court rejects this argument in the instant case. The fact that defendant's November 13, 1996 designation of witnesses lists Andon Amaraich as a possible witness does not alter the Court's analysis.6 As in Fu Zhou, the Court finds that Chief Justice could not have been a material witness to the negotiation and signing of the 1994 Agreement at issue here, because he had left MMA by the time that agreement was negotiated and signed. In addition, any testimony the Chief Justice might be able to give concerning the events surrounding the signing of the

1. On May 20, 1996, defendant filed a Motion for Order Directing Clerk of Court to Release Letter of Credit and Application for Order Shortening Time. Following a hearing on May 23, 1996, the Court granted defendant's motion. On June 6, 1996, defendant filed a Motion to Dismiss for Lack of Jurisdiction Due to Improper Venue. The Court granted the government's June 14, 1996 motion for enlargement of time to respond. Following a status conference on June 25, 1996, the Court issued an Order Scheduling Further Proceedings on July 2, 1996. That order scheduled defendant's Motion to Dismiss for hearing on July 23, 1996, required the parties to file all pre-trial motions by August 1, 1996, and directed the government to file any motion to dismiss individual defendants from the case or motion to sever the trial of any individual defendants no later than August 1, 1996. The Court heard argument on defendant's Motion to Dismiss on July 23, 1996. The government served a Motion to Sever Defendants on counsel for defendant on August 1, 1996, and filed that motion with the Court on August 2, 1996.

On August 6, 1996, the Court denied defendant's Motion to Dismiss for Lack of Jurisdiction Due To Improper Venue, and issued a Memorandum of Decision explaining the basis for that ruling on September 3, 1996. On September 4, 1996, the Court issued an Order setting a status conference for September 10, 1996, and on September 5, 1996, granted the government's unopposed Motion to Sever Defendants. On September 9, 1996, defendant filed its Motion to Disqualify Chief Justice Amaraich. The September 10, 1996 status conference proceeded, with the understanding that no substantive issues would be discussed pending resolution of defendant's Motion to Disqualify. On September 16, 1996, the Court granted the government's motion for enlargement of time to respond to that motion, scheduled oral argument on the motion, and set trial for November 26, 1996.

One final matter, on which there was quite a bit of discussion by the government, having to do with a suggestion that was made in our motion concerning recusal by this Court, again, the matter was a suggestion and it is not a formal motion before the Court and I'll simply leave it as the suggestion that was made in our motion and allow the Court to consider it as a suggestion.

3. 4 F.S.M.C. 124(6) provides that a motion to disqualify "shall be filed before the trial or hearing unless good cause is shown for filing it at a later time." Defendant has shown no good cause for failing to file its formal motion to disqualify prior to the Court's July 23, 1996 hearing on defendant's substantive Motion to Dismiss for Lack of Jurisdiction Due to Improper Venue. Defendant's objection to retrial by the same fact finder, and argument for disqualification based on comments contained in the Court's July 27, 1995 Memorandum of Decision, could both have been raised formally prior to that hearing.

4. 4 F.S.M.C. 124(6) provides that a motion to disqualify "shall be filed before the trial or hearing unless good cause is shown for filing it at a later time." Defendant has shown no good cause for failing to file its formal motion to disqualify prior to the Court's July 23, 1996 hearing on defendant's substantive Motion to Dismiss for Lack of Jurisdiction Due to Improper Venue. Defendant's objection to retrial by the same fact finder, and argument for disqualification based on comments contained in the Court's July 27, 1995 Memorandum of Decision, could both have been raised formally prior to that hearing.

5. The Affidavit of John H. Hollinrake in Support of Motion to Disqualify Chief Justice Andon Amaraich, filed in this action on September 9, 1996, is virtually identical to the September 4, 1996 affidavit Mr. Hollinrake filed in Fu Zhou on this same issue.

6. Defendant's "presumptions" and "assumptions" that Chief Justice Amaraich may be responsible for the terms of the 1991 Agreement, based on his execution of that document as Chairman of MMA, are not supported by any affidavit or other evidence on the record, and are not relevant to interpretation of the 1994 Agreement, as the Court explained in detail in Fu Zhou. To date, defendant has made no showing that Chief Justice Amaraich has any information relevant to interpretation of the 1994 foreign fishing agreement at issue in this case.