8 FSM Intrm. 001-010

A denial of a motion to recuse may be reviewed by means of a petition for a writ of prohibition or mandamus. The standard of review is whether the trial judge abused his discretion in denying the motion to recuse. The petitioner must show that the trial judge clearly and indisputably abused his discretion when he denied the motion to disqualify. Ting Hong Oceanic Enterprises v. Supreme Court, 8 FSM Intrm. 1, 4 (App. 1997).

When the issue of recusal was brought to the trial judge's attention well before the date he set for pretrial motions, a judge's obligation to recuse himself is not dependent on bringing a motion, and the motion was timely by the terms of the statute because it was brought before trial even though brought after the date set for pretrial motions the motion to recuse cannot be denied as untimely. Ting Hong Oceanic Enterprises v. Supreme Court, 8 FSM Intrm. 1, 5 (App. 1997).

A charge of appearance of partiality must first have a factual basis. Recusal is then appropriate only if a disinterested reasonable person who knows all the circumstances would harbor doubts about the judge's impartiality. The facts must provide what an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge's impartiality. The trial judge has a range of discretion in making this determination. But a trial judge is not to use the standard of mere suspicion. Ting Hong Oceanic Enterprises v. Supreme Court, 8 FSM Intrm. 1, 6-7 (App. 1997).

Merely because the trial judge was once the sole official whose responsibility it was to sign a fishing agreement that contained similar and identical terms to a later agreement at issue in a case now before him is insufficient ground to disqualify him from trying this case. Ting Hong Oceanic Enterprises v. Supreme Court, 8 FSM Intrm. 1, 7 (App. 1997).

The general rule is that the disqualifying factors must be from an extrajudicial source. The normal situation in which recusal may be required is when a judge's extrajudicial knowledge, relationship or dealings with a party, or the judge's own personal or financial interests, might be such as to cause a reasonable person to question whether the judge could preside over and decide a particular case impartially. Even so, the judge may be disqualified from presiding further after a reversal if actual bias or prejudice or an appearance of partiality exists. Ting Hong Oceanic Enterprises v. Supreme Court, 8 FSM Intrm. 1, 7 (App. 1997).

A judge is not required to recuse himself from a retrial of convictions reversed because of ineffective assistance of counsel where one of his factual findings from the first trial relied upon an independent ground as well as arguably inadmissible evidence when the appellate court never ruled that the finding was clearly erroneous. Ting Hong Oceanic Enterprises v. Supreme Court, 8 FSM Intrm. 1, 8 (App. 1997).

Ting Hong Oceanic Enterprises Co., Ltd. (Ting Hong) has filed a petition 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. Pursuant to Rule 21(b) of the FSM Rules of Appellate Procedure and our order, the real party in interest filed its opposition on December 24, 1996. We deny the petition. Our reasoning follows.

Ting Hong was convicted on four counts of violations of Title 24 of the FSM Code and fined $2.2 million. FSM v. Cheng Chia-W (II), 7 FSM Intrm. 205 (Pon. 1995). On appeal the convictions were reversed due to ineffective assistance of counsel and the case was remanded for retrial. Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 471, reh'g denied, 7 FSM Intrm. 481 (App. 1996). Ting Hong then moved for dismissal for improper venue, anticipating that if the motion were granted the case would be refiled in Chuuk, and that a different judge would then hear it. In that motion Ting Hong suggested that the current trial judge might be disqualified from the retrial. The same suggestion was later made at oral argument. The trial court denied the venue motion on August 6, 1996, and gave its reasons for the denial on September 3, 1996. On September 9, 1996, Ting Hong filed a motion to disqualify the trial judge. No trial date had been set by then. The trial judge denied the motion on November 11, 1996, and gave his reasons by memorandum filed on November 25, 1996. The next day Ting Hong filed this petition for a writ of prohibition, or in the alternative a writ of mandamus, to disqualify the trial judge from the retrial of Ting Hong in Criminal Case No. 1994-502.

We have the power to issue the extraordinary writs sought. 4 F.S.M.C. 117 (each division of the Supreme Court "shall have power to issue all writs"). We can only issue such writs when the party seeking the writ has met its burden to show that its right to the writ is "clear and indisputable." Senda v. Trial Division, 6 FSM Intrm. 336, 338 (App. 1994). This is not the first time we have reviewed the denial of a motion to recuse when the movant has petitioned us for a writ of prohibition or mandamus. See, e.g., Nahnken of Nett v. Trial Division, 6 FSM Intrm. 339 (App. 1994). Our standard of review is whether the trial judge abused his discretion in denying the motion to recuse. Id. at 340. Therefore, in order for the writ to issue, Ting Hong must show that the trial judge clearly and indisputably abused his discretion when he denied the motion to disqualify. In re Cooper, 821 F.2d 833, 834 (1st Cir. 1987). We note, however, that the trial judge's discretion is limited by the disqualification statute, 4 F.S.M.C. 124, which prescribes under what circumstances he "shall disqualify himself." "`The use of the word shall is the language of command and considered mandatory.'" Senda v. Creditors of Mid-Pacific Constr. Co., 7 FSM Intrm. 664, 670 (App. 1996) (quoting In re Failure of Justice to Resign, 7 FSM Intrm. 105, 109 (Chk. S. Ct. App. 1995)).

Before denying the motion to disqualify on the merits, the trial judge denied the motion on two other grounds ) that the motion was untimely and that the Rule of Necessity required him to sit on the case. The trial judge ruled the motion untimely because he had set an August 1, 1996 deadline for filing pretrial motions and the motion to disqualify was filed over five weeks later, and because Ting Hong had known ever since the appellate court had issued its mandate for remand that he would preside over the retrial. The motion to recuse had been brought pursuant to 4 F.S.M.C. 124(1) and 124(2)(c). By statute, such a motion should be brought "before the trial or hearing unless good cause is shown for filing it at a later time." 4 F.S.M.C. 124(6). Ting Hong brought the motion to disqualify before the trial, or to be more accurate, the retrial of this case. As noted, the motion was even brought before the retrial date had been set. Because "a judgment that is reversed and remanded stands as if no trial has yet been held," 5 Am. Jur. 2d Appellate Review § 861, at 515 (1995), Ting Hong stands in the position of an accused who has not yet been tried on the four counts for which its convictions were reversed. The recusal motion was thus not untimely by the terms of the statute. We hesitate to say that a pretrial, interlocutory order should prevail over a statute.

While a party may move to disqualify a justice, a justice's obligation to recuse himself is not dependent on the existence of a motion. Youngstrom v. Youngstrom, 5 FSM Intrm. 385, 387 (Pon. 1992) (judge may recuse himself if sufficient grounds exist even if no party alleges or moves for his disqualification). Furthermore, unlike the ground in subsection 124(1), the parties cannot waive any of the grounds for disqualification under subsection 124(2). 4 F.S.M.C. 124(5). Thus failure to file a motion for grounds in subsection 124(2) cannot be considered a waiver of the judge's obligation to disqualify himself. The suggestion in June that recusal might be appropriate was enough to bring the question to the trial judge's attention. We can understand the reluctance of an attorney to bring a motion to recuse that he fears might antagonize a judge before whom he must appear frequently when he already has another motion1 pending that may accomplish the same result and which suggests the possibility that recusal may be appropriate. The issue of recusal was brought to the trial judge's attention well before the date he set for pretrial motions, a judge's obligation to recuse himself is not dependent on bringing a motion, and the motion was timely by the terms of the statute. Therefore we conclude that, although the motion to disqualify could have been brought earlier, it was not untimely.

The trial judge's reliance on the Rule of Necessity was also misplaced. The only time that rule might apply is "if no other judge is available to hear the case." FSM v. Skilling, 1 FSM Intrm. 464, 470 (Kos. 1984), aff'd, 2 FSM Intrm. 209 (App. 1986). Even if the trial judge were disqualified, nothing in the record indicates that either of the other two constitutionally appointed FSM Supreme Court justices would be disqualified from trying the case. Our only connection with the case was sitting on the appellate panel that concluded that Ting Hong had received ineffective assistance of counsel. We made no other conclusions of law or findings of fact. Even if we had, it would not necessarily disqualify either of us. Neither of us is now disqualified from trying this case. Unless both of us are unable to try the case, the Rule of Necessity cannot apply. As it is, one of us could try the case and the other preside over the appeal, if there were one. Any inconvenience would be minimal. Both of us regularly try cases on Pohnpei. The Rule of Necessity thus cannot be grounds for denial of a motion to disqualify the trial judge in this case.

Ting Hong's petition cites three grounds that it contends each require the trial judge's disqualification. Ting Hong contends that the trial judge must be recused from sitting on its retrial because the trial judge was the Chairman of the Micronesian Maritime Authority (MMA) at the time Ting Hong and MMA negotiated their first foreign fishing agreement in 1991, because the trial judge signed that foreign fishing agreement on behalf of MMA, and because the trial judge sat as the trier of fact on Ting Hong's first trial and therefore cannot be expected to be an impartial trier of fact when the case is retried. Ting Hong therefore seeks from us an extraordinary writ compelling the trial judge's recusal.

Ting Hong contends the trial judge's position as Chairman of MMA in 1991 when Ting Hong and MMA negotiated and signed their first foreign fishing agreement requires the trial judge's disqualification. Ting Hong points out that the provisions of Ting Hong's 1994 foreign fishing agreement that the trial judge will have to interpret in this case are identical or substantially similar to provisions in the 1991 agreement. The FSM does not contest this point. Instead it contends that because 1994 agreement superseded the 1991 agreement that any extrajudicial knowledge the trial judge might have of the intended meaning of these provisions would be inadmissible as evidence. Whether such knowledge would be admissible evidence is not the point. The question is whether the trial judge has extrajudicial knowledge and understanding concerning the meaning of the terms in the 1994 agreement that stems from his involvement with the identical or similar terms in the 1991 agreement that would disqualify him. What the parties understood the 1994 agreement to mean matters little if the trial judge has his own understanding of it based on his earlier involvement with the 1991 agreement. Ting Hong contends that this extrajudicial knowledge must be imputed to the trial judge because he was MMA Chairman in 1991.

Ting Hong's argument on this ground is based both on subsection 124(1) (disqualification where a "judge's impartiality might reasonably be questioned") and subsection 124(2)(c) (disqualification where a judge "has served in governmental employment and in such capacity participated as counsel, adviser, or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy"). Ting Hong's argument rests on its contention that as MMA Chairman the trial judge presumptively must have acted as counsel or adviser in the negotiations that led to the 1991 agreement and thus must already have an opinion as to the meaning the same terms in the 1994 agreement. The trial judge, in his order, states that he "`did not serve as legal counsel or legal advisor to the MMA'" while he was chairman. FSM v. Ting Hong Oceanic Enterprises, 7 FSM Intrm. 644, 650 (Pon. 1996) (quoting Fu Zhou Fuyan Pelagic Fishery Co. v. Wang Shun Ran, 7 FSM Intrm. 601, 604 (Pon. 1996)). Left unsaid was whether he acted as an adviser other than as legal adviser. Ting Hong, however, offers no evidence that the trial judge had any particular understanding of, or involvement in negotiating the 1991 agreement other than signing it on behalf of MMA. Nor does Ting Hong provide any affidavits to show that the trial judge acted as an adviser. Ting Hong merely presumes this to be the case because he was the Chairman. A judicial official, however, is presumed to be unbiased. See Suldan v. FSM (II), 1 FSM Intrm. 339, 362 (Pon. 1983). There is thus an insufficient factual basis to require the trial judge's disqualification on the ground that as MMA Chairman he had acted as an adviser.

Ting Hong also contends that this involvement was such that the trial judge's impartiality could reasonably be questioned. A charge of appearance of partiality must first have a factual basis. Skilling, 1 FSM Intrm. at 477; see also In re United States, 666 F.2d 690, 694 (1st Cir. 1981). Recusal is then appropriate only if "a disinterested reasonable person who knows all the circumstances would harbor doubts about the judge's impartiality." Jano v. King, 5 FSM Intrm. 266, 270 (Pon. 1992); Skilling, 1

FSM Intrm. at 475. In other words, the facts must provide "what an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge's impartiality." In re United States, 666 F.2d at 695 (emphasis in original). The trial judge is allowed a range of discretion in making this determination. Id. The only factual basis cited by Ting Hong is that the trial judge was chairman of MMA in 1991 and in that capacity signed a fishing agreement with Ting Hong with provisions that are similar or identical to the Ting Hong agreement to be interpreted in this case. This may cause someone to suspect that the trial judge is partial, but when considering recusal a trial judge "is not to use . . . the standard of mere suspicion." In re Allied-Signal Inc., 891 F.2d 967, 970 (1st Cir. 1989) (emphasis in original), cert. denied, 495 U.S. 957 (1990). We thus cannot say that the trial judge would have abused his discretion in making a determination that a disinterested, reasonable person who knew all the circumstances would harbor doubts about his impartiality. Ting Hong has not met its burden to show that its right to the writ is clear and indisputable because the trial judge was MMA Chairman in 1991.

Ting Hong also contends that the presence of the trial judge's signature on the 1991 fishing agreement as the only signatory for MMA requires his recusal. In In re Extradition of Jano, 6 FSM Intrm. 93 (App. 1993) the trial judge had, on behalf of the team that had negotiated the Compact and related agreements, signed the extradition agreement that he was called upon to interpret. We held then that that, without more, was insufficient to require the trial judge's recusal. Id. at 97-98. We see no reason to depart from that holding now. Merely because the trial judge was the official whose responsibility it was to sign the 1991 fishing agreement on behalf of MMA is insufficient ground to disqualify him from trying this case.

Ting Hong contends that the trial judge's impartiality "might reasonably be questioned," 4 F.S.M.C. 124(1), if he were to preside over the retrial. Ting Hong relies upon the appellate court's conclusion that "arguably inadmissible opinion evidence" was received at the first trial. It also relies on the trial judge's remarks in his sentencing memorandum.

The general rule is that the disqualifying factors must be from an extrajudicial source. In re Main, 4 FSM Intrm. 255, 261 (App. 1990) ("The normal situation in which recusal may be required is when a judge's extrajudicial knowledge, relationship or dealings with a party, or the judge's own personal or financial interests, might be such as to cause a reasonable person to question whether the judge could preside over and decide a particular case impartially."). Even so, the judge may be disqualified from presiding further after a reversal if actual bias or prejudice or an appearance of partiality exists. Jonas v. FSM (II), 2 FSM Intrm. 238, 239 (App. 1986).

upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.

We examine the first factor of the Robin test. The reversal of the first trial's convictions did not rest on a conclusion that the trial court's findings were based on evidence erroneously admitted or factors erroneously considered. As stated above, reversal was required because Ting Hong was deprived of the effective assistance of counsel. One alleged instance of that ineffectiveness was defendants' counsel's failure to object to the opinion testimony of Ting Hong's representative that Ting Hong was responsible for the boats fishing under its Foreign Fishing Agreement. Ting Hong Oceanic Enterprises, 7 FSM Intrm. at 475, 477. We concluded that the attorney's "failure to object to arguably inadmissible opinion testimony" was one instance of the lawyer's ineffectiveness. Id. at 479. This opinion evidence was cited by the trial judge in support of his finding that the defendant was responsible for the unlawful acts of the vessels. Cheng Chia-W (II), 7 FSM Intrm. at 209. However, the trial court had earlier quoted the Foreign Fishing Agreement between MMA and Ting Hong, which was in evidence, and which contained the provision requiring Ting Hong to "ensure that its authorized Vessels comply with the provisions of this agreement and all applicable laws and regulations." Id. Thus not only was there not a finding called erroneous on appeal, there was an independent ground for the trial court's finding on the subject involved in the "arguably inadmissible opinion testimony."

Beyond the two points mentioned ) that no finding was held to be erroneous and that an independent ground supported the finding, we comment on the reason for this Robin factor. The concern is that a judge on remand would have difficulty in setting aside his earlier expressed finding, and thus not have an open mind on the question; the judge may be inclined toward the earlier finding, or he might "lean over backwards" to be unbiased; in any event the parties may be apprehensive of the influence of the earlier finding. O'Shea v. United States, 491 F.2d 774, 779 (1st Cir. 1974).

We do not know whether the opinion testimony will be proffered at retrial or whether it will be received. We are confident that the trial judge will reach his finding on this issue solely on the evidence that is before him at retrial. If the opinion testimony does not come in, we believe he would have no "substantial difficulty in putting out of his . . . mind [his] previously-expressed . . . finding[]" which was based in part on the opinion testimony from the first trial.

Even more assuredly than the last problem, this element of the trial judge's alleged partiality does not qualify as a problem under the Robin test. Ting Hong did not argue this point on appeal. (For instance, these views could arguably have improperly affected the trial court's discretionary enhancement above the statutory minimum fine.) Thus the view cannot be said to have been "determined to be erroneous or based on evidence that must be rejected."

Raising the matter on our own, however, we address just one area of the comments made in the sentencing memorandum. By stating "an unwillingness to accept responsibility for its criminal conduct, and a complete lack of remorse for that conduct," and "Ting Hong's refusal to accept responsibility for its actions," the trial court may have overlooked the right of Ting Hong to maintain its pleas of not guilty. The conviction, sentence and judgment were not final at the time of sentencing. Having pled not guilty at arraignment, Ting Hong was not required to abandon that plea upon conviction. We entertain no doubt as to the trial court's ability to follow this cautionary guidance should the court need to sentence Ting Hong after retrial.

In addressing the second and third factors of the Robin test we consider both the "arguably inadmissible evidence" and the comments in the sentencing memorandum. The second factor is "whether reassignment is advisable to preserve the appearance of justice." We do not view this factor as expanding the statute's requirement that a judge recuse himself if his impartiality might reasonably be questioned. For the reasons found above, we do not conclude that an appearance of partiality exists. We summarize those reasons: 1) the standard of review; 2) the presumption of the judge's impartiality and thus Ting Hong's burden to establish that one could reasonably question the judge's impartiality; 3) the "normal situation" that disqualification is caused by an extrajudicial influence, Main, 4 FSM Intrm. at 261, 4) that "[i]t has long been regarded as normal and proper for a judge to sit in the same case upon its remand," Liteky v. United States, 114 S. Ct. 1147, 1155, 127 L. Ed. 2d 474, 488 (1994); 5) that although in the FSM the judge is the sole trier of fact, this case presents few disputed issues of fact; and 6) we cannot conclude that "a disinterested reasonable person who knows all the circumstances would harbor doubts about the judge's impartiality," Jano, 5 FSM Intrm. at 270. We are confident that judges here, faithful to their oath of office, "approach every aspect of each case with a neutral and objective disposition. They understand their duty to render decisions upon a proper record and to disregard earlier judicial contacts with a case or party." Liteky, 114 S. Ct. at 1160, 127 L. Ed. 2d at 495 (Kennedy, J., concurring in judgment).

The third factor in the Robin test is whether reassignment would entail waste disproportionate to the advantage of the appearance of fairness. This factor has been dismissed in "A" above ) the Rule of Necessity. Reassignment would entail minor waste and inconvenience. However, the fact that this factor favors reassignment does not lead to that result because we conclude that disqualification is not required in order to insure retrial before an impartial judge. We therefore conclude that in this case the trial judge is not required to recuse himself from the retrial.

Although not specifically raised by Ting Hong we think its contentions fairly pose the following question: Even if each of the three grounds raised by Ting Hong are insufficient to reasonably question the trial judge's impartiality, would the combination of all three cause a reasonable, disinterested person to harbor doubts about the judge's impartiality? We have earlier considered a party's contention that while no single allegation was sufficient by itself to demonstrate a lack of impartiality when viewed together they raised a reasonable question of the court's impartiality.Skilling v. FSM, 2 FSM Intrm. 209, 216-17 (App. 1986) (allegations as a whole were still insufficient). There may well be times when the whole is greater than the sum of its parts. We conclude, however, that this is not such a case. Even the allegations taken cumulatively are not sufficient to reasonably question the trial judge's impartiality.

Ting Hong has incorporated by reference a number of documents in its Petition for Writ. Both Ting Hong and the government have incorporated the government's opposition to the Motion to Disqualify and the trial court's Memorandum of Decision on the disqualification motion. We have studied the entire file as thus identified and considered all points even though all may not appear in this opinion.

We therefore conclude that none of the grounds raised by Ting Hong, taken singly or combined as a whole, require the disqualification of the trial judge. He did not abuse his discretion when he denied the motion to recuse. Ting Hong therefore has no clear, indisputable right to the relief sought. The petition is accordingly denied. The trial judge may proceed with retrial in this matter.

1. We note that if Ting Hong had filed a motion to recuse anytime before the trial judge ruled on motion for dismissal for improper venue the statute would have prevented the trial judge from ruling on the venue motion until he had ruled on the recusal motion. 4 F.S.M.C. 124(6) ("[u]pon receipt of such a motion [to disqualify], the Justice shall rule on it before proceeding further"). The trial judge did not rule on the pending venue motion until after the deadline for pretrial motions had passed.