8 FSM Intrm. 023-028

An appeal is still pending on the day before the appellate opinion is filed even though the justices' signatures are dated earlier. Damarlane v. Pohnpei Legislature, 8 FSM Intrm. 23, 26 (App. 1997).

The FSM Supreme Court's jurisdiction is derived from the FSM Constitution which grants the appellate division the jurisdiction to review cases heard in state or local courts if they require interpretation of the FSM Constitution, and a state constitution cannot deprive the FSM Supreme Court of this jurisdiction. Damarlane v. Pohnpei Legislature, 8 FSM Intrm. 23, 26-27 (App. 1997).

The FSM Supreme Court appellate division has jurisdiction over an appeal where a motion to recuse filed by the appellant in the state court appellate division raised an issue of due process under the FSM Constitution. Damarlane v. Pohnpei Legislature, 8 FSM Intrm. 23, 27 (App. 1997).

A justice whose extrajudicial statements exhibit a bias towards a party's counsel must disqualify himself under Pohnpei statute, and failure to do so is a denial of due process. Damarlane v. Pohnpei Legislature, 8 FSM Intrm. 23, 27-28 (App. 1997).

A state court is competent to rule on FSM Constitution, but should avoid unnecessary adjudication of the FSM Constitution. Damarlane v. Pohnpei Legislature, 8 FSM Intrm. 23, 28 (App. 1997).

If the preponderance of evidence shows that a government employee would have been terminated even in the absence of the protected free speech conduct the employee's termination should be upheld. Damarlane v. Pohnpei Legislature, 8 FSM Intrm. 23, 28 (App. 1997).

1. Does the FSM Supreme Court Appellate Division have jurisdiction to hear this appeal from the Pohnpei Supreme Court Appellate Division where the appellant raised FSM Constitutional grounds below but which were not decided? Do we also have jurisdiction where the appellant contends that he was denied his due process rights because a justice of the court below failed to recuse himself for bias and where the appellant had raised the issue below but the matter was not addressed? We hold that we do have jurisdiction in both instances. These are matters of law. We also deny the appellee's Motion to Dismiss for Lack of Jurisdiction.

2. Did ad hominem remarks directed to counsel for appellant made by the Chief Justice of the Pohnpei Supreme Court, who sat on the appeal of this case, in a pleading in a separate case in which the Chief Justice was defendant "individually and in his official capacity as Chief Justice of the Pohnpei Supreme Court," deprive the appellant of a fair hearing before the Pohnpei Supreme Court Appellate Division in violation of the due process rights of the appellant? We hold that the appellant was deprived of due process and that the Chief Justice had a duty to recuse himself. Our standard of review is whether the Chief Justice abused his discretion. Ting Hong Oceanic Enterprises v. Supreme Court, 8 FSM Intrm. 1, 4 (App. 1997).

On January 23, 1987, Kadalino Damarlane was terminated as a legislative aide of the Pohnpei State Legislature by the Speaker. Damarlane appealed, and, after hearing, a legislative committee affirmed on February 25, 1987, the termination on each of the several grounds assigned by the Speaker. Damarlane brought an action in the Pohnpei Supreme Court trial division on June 8, 1987, alleging, among others, that the termination violated his right to freedom of expression protected under both the FSM and Pohnpei Constitutions. The trial division affirmed the termination on June 12, 1991, without making a specific holding as to the FSM Constitution. Damarlane appealed that decision to the Pohnpei Supreme Court Appellate Division, raising again, as one ground, that the termination violated his right of expression safeguarded by the FSM Constitution. Oral argument was heard on May 8, 1992.

Before an opinion was rendered, other events occurred. On June 28, 1994, Damarlane's new lawyer, who is also his wife, Mary Berman, filed Civil Action No. 1994-097 in the FSM Supreme Court Trial Division against the Chief Justice of the Pohnpei Supreme Court alleging his wrongful failure to admit her to practice before that court and seeking damages and injunctive relief. The action was brought against Chief Justice Santos, both individually and in his official capacity. On August 22, 1994 the Chief Justice, representing himself, filed a Motion to Dismiss. This seventeen page pleading with six exhibits attached gave three grounds: 1) insufficiency of service, 2) failure to state a claim upon which relief can be granted, and 3) plaintiff's failure to comply with other laws. [On September 27, 1994, the trial court granted the motion on the first ground. Berman v. Santos, 6 FSM Intrm. 532 (Pon. 1994).]

In support of the ground of improper service, Chief Justice Santos first referred to an earlier case (Civil Action No. 1993-017, reported at Damarlane v. Santos, 6 FSM Intrm. 45 (Pon. 1993)) filed against him by Mary Berman, in which there had been improper service. He then stated,

This case presents the second exact scheme. This effort on the part of the plaintiff is evidence of the plaintiff's indifferent disregard of her duty to obey rules of Court, calculate as a means of manipulating and abusing the judicial process of this young nation solely to denigrate and to embarrass the defendant.

On the ground of failure to state a cause of action Chief Justice Santos disputed the allegation in the complaint that he cannot govern admission to practice in the Pohnpei state courts. He wrote that such an allegation was "a flagrant and intentional attempt to mislead the FSM Court." On the ground of Mary Berman's failure to comply with other laws (referring to matters other than the rules of service and the Pohnpei authorities governing admission), the motion to dismiss with its attachments argued the justification of denying Mary Berman admission because of her past performance. The Chief Justice concluded his argument on this ground with this paragraph:

While the Pohnpei Supreme Court has no settled means to disbar the plaintiff based on her unethical conducts thus enumerated inasmuch as she has not been fully admitted to the State Bar, the only sanction available to the Pohnpei Court is to penalize her as in contempt of court, or to refuse admission.

On September 26, 1994, Mary Berman filed a motion that Chief Justice Santos recuse himself in the still pending appeal of the Damarlane termination case on the ground that he was biased against her, appellant's counsel, and her client, Kadalino Damarlane, her husband. The motion relied principally upon the words of the Chief Justice in his motion to dismiss Civil Action No. 1994-097.

The appellate opinion was filed on September 27, 1994, the day after the motion to recuse Chief Justice Santos was filed. The appeal was thus still pending when the motion was filed. (Chief Justice Santos' and another justice's signature were dated September 23, 1994.) No action was ever taken on the recusal motion.

We conclude as a matter of law that we have jurisdiction in this matter. When Damarlane appealed his termination to the Trial Division of the Pohnpei Supreme Court, he alleged that his free expression rights guaranteed by the FSM and Pohnpei Constitutions were violated. The trial court affirmed the termination and the appellant asserted the same rights in his appeal to the Appellate Division of the Pohnpei Supreme Court. Damarlane has clearly raised the issue of his free expression rights under the FSM Constitution below, and argues it before us.

The State, however, argued in its Motion to Dismiss Appeal for Lack of Jurisdiction that since neither the state trial court nor the appellate court ruled on the FSM Constitutional argument, resting their decisions instead on the Pohnpei Constitution, we lack jurisdiction, since the Pohnpei Constitution provides in article 10, section 4(5) that "No appeal on any matter relating to the Constitution, Pohnpei law, customs and traditions may be made to any other court, except the Pohnpei Supreme Court."

There is no merit in the State's contention. First, our jurisdiction is derived from the FSM Constitution. Article XI, section 7 states, "The appellate division of the Supreme Court may review cases . . . heard in state or local courts if they require interpretation of this Constitution . . . ." Since the Constitution is the supreme law of the FSM, any act in conflict with it is invalid. FSM Const. art.

II, § 1. Thus, even assuming that the provision of the Pohnpei Constitution quoted above has the meaning that the state asserts, an assumption we do not adopt, it would be ineffective to alter our jurisdiction specified in the FSM Constitution. A state constitution cannot deprive the FSM Supreme Court of jurisdiction granted it under the FSM Constitution. Gimnang v. Yap, 5 FSM Intrm. 13, 23 (App. 1981).

Secondly, this is not a case in which appeal is unavailable because the issue was not raised below. See, e.g., Alfons v. FSM, 5 FSM Intrm. 402, 404 (App. 1992) ("an issue not raised at trial cannot be introduced for the first time on appeal"). As noted above, the appellant argued before both the state trial and appellate levels that his right of expression under the FSM Constitution was violated by the termination. The State's Motion to Dismiss must accordingly be denied.

When appealing his termination from the Legislature to the trial division of the Pohnpei Supreme Court, Damarlane also raised the issue of whether he received procedural due process, as guaranteed by the FSM and Pohnpei Constitutions, in his hearing before the Legislature. The record reveals that Damarlane waived this claim before trial so that it was not preserved for appeal.

We also have jurisdiction because the motion to recuse filed by the appellant raises an issue of due process under the FSM Constitution. Etscheit v. Santos, 5 FSM Intrm. 35 (App. 1991).

The motion to recuse alleged bias against Damarlane's counsel. Section 30(2)(a) of the Pohnpei State Judiciary Act of 1982 states: "a Justice or Judge shall also disqualify himself in the following circumstances: (a) where he has a personal bias or prejudice concerning a party of [sic: or] counsel . . . ." Pon. S.L. 2L-160-82, §30(2)(a). Etscheit holds that the disqualification statutes of the state and national governments set minimum standards in defining due process protection of those who appear in court. The goal is to assure fair trials in fact and in appearance. Etscheit, 5 FSM Intrm. at 45-46.

We find that the statements of Chief Justice Santos quoted above reveal a bias against Damarlane's counsel, who is also his wife. We also conclude that the bias is of a nature to require Chief Justice Santos's disqualification to participate in the decision of the present case when it was before the Pohnpei Supreme Court Appellate Division. Damarlane had a constitutional due process right to have his appeal heard by unbiased justices.

In the "normal situation" an extrajudicial source gives rise to a disqualification. In re Main, 4 FSM Intrm. 255, 261 (App. 1990). While it is true that the views of Chief Justice Santos arose from his judicial position or from cases in which he was a party, the source of the disqualification is extrajudicial for a number of reasons: The Motion to Dismiss

b) contains a third section, "Failure to comply with other laws" which has nothing in it relevant to the Motion to Dismiss; it is instead a statement in defense of the allegations made in the complaint, and

We conclude that Chief Justice Santos exhibited a "personal bias" against the appellant's counsel and should have disqualified himself from the Pohnpei Supreme Court Appellate Division panel which heard this case.

It is accordingly ordered that the opinion of the Pohnpei Supreme Court Appellate Division is reversed and the case remanded to that Court for rehearing before a reconstituted panel. On remand the Pohnpei Supreme Court Appellate Division may rule on the FSM Constitutional issue, Gimnang, 5 FSM Intrm. at 18 (state court competent to rule on FSM Constitution), but should do so last, Jonah v. FSM, 5 FSM Intrm. 308, 313 (App. 1992) (unnecessary adjudication of the FSM Constitution to be avoided). In ruling on the constitutional issue the Pohnpei Supreme Court Appellate Division may want to consider Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 576, 50 L. Ed. 2d 471, 484 (1977) (if preponderance of evidence shows employee would have been terminated even in the absence of the protected free speech conduct the employee's termination should be upheld).


	FSM SUPREME COURT APPELLATE DIVISION Cite as Damarlane v. Pohnpei Legislature, 8 FSM Intrm. 23 (App. 1997) [8 FSM Intrm. 23] KADALINO DAMARLANE, Appellant, vs. POHNPEI LEGISLATURE, Appellee. APPEAL CASE NO. P5-1994 OPINION Argued: September 19, 1996 Decided: February 26, 1997 BEFORE: Hon. Richard H. Benson, Associate Justice, FSM Supreme Court Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court Hon. Ramon G. Villagomez, Temporary Justice, FSM Supreme Court* Associate Justice, Supreme Court of the Commonwealth of the Northern Marianas, Saipan, CNMI [8 FSM Intrm. 24]* APPEARANCES: For the Appellant: Mary Berman, Esq. P.O. Box 163 Kolonia, Pohnpei FM 96941 For the Appellee: Todd Richards, Esq. Assistant Attorney General Pohnpei Department of Justice P.O. Box 1555 Kolonia, Pohnpei FM 96941 * * * * HEADNOTES Appeal and Certiorari An appeal is still pending on the day before the appellate opinion is filed even though the justices' signatures are dated earlier. Damarlane v. Pohnpei Legislature, 8 FSM Intrm. 23, 26 (App. 1997). Appeal and Certiorari) Decisions Reviewable; Jurisdiction The FSM Supreme Court's jurisdiction is derived from the FSM Constitution which grants the appellate division the jurisdiction to review cases heard in state or local courts if they require interpretation of the FSM Constitution, and a state constitution cannot deprive the FSM Supreme Court of this jurisdiction. Damarlane v. Pohnpei Legislature, 8 FSM Intrm. 23, 26-27 (App. 1997). Constitutional Law) Due Process; Jurisdiction The FSM Supreme Court appellate division has jurisdiction over an appeal where a motion to recuse filed by the appellant in the state court appellate division raised an issue of due process under the FSM Constitution. Damarlane v. Pohnpei Legislature, 8 FSM Intrm. 23, 27 (App. 1997). Constitutional Law) Due Process; Courts) Recusal A justice whose extrajudicial statements exhibit a bias towards a party's counsel must disqualify himself under Pohnpei statute, and failure to do so is a denial of due process. Damarlane v. Pohnpei Legislature, 8 FSM Intrm. 23, 27-28 (App. 1997). Constitutional Law) Interpretation A state court is competent to rule on FSM Constitution, but should avoid unnecessary adjudication of the FSM Constitution. Damarlane v. Pohnpei Legislature, 8 FSM Intrm. 23, 28 (App. 1997). Constitutional Law) Freedom of Expression If the preponderance of evidence shows that a government employee would have been terminated even in the absence of the protected free speech conduct the employee's termination should be upheld. Damarlane v. Pohnpei Legislature, 8 FSM Intrm. 23, 28 (App. 1997). [8 FSM Intrm. 25] COURT'S OPINION RICHARD H. BENSON, Associate Justice: This is an appeal from the Pohnpei Supreme Court Appellate Division, raising a question requiring the interpretation of the FSM Constitution. I. Issues Addressed The appeal raises the following issues: 1. Does the FSM Supreme Court Appellate Division have jurisdiction to hear this appeal from the Pohnpei Supreme Court Appellate Division where the appellant raised FSM Constitutional grounds below but which were not decided? Do we also have jurisdiction where the appellant contends that he was denied his due process rights because a justice of the court below failed to recuse himself for bias and where the appellant had raised the issue below but the matter was not addressed? We hold that we do have jurisdiction in both instances. These are matters of law. We also deny the appellee's Motion to Dismiss for Lack of Jurisdiction. 2. Did ad hominem remarks directed to counsel for appellant made by the Chief Justice of the Pohnpei Supreme Court, who sat on the appeal of this case, in a pleading in a separate case in which the Chief Justice was defendant "individually and in his official capacity as Chief Justice of the Pohnpei Supreme Court," deprive the appellant of a fair hearing before the Pohnpei Supreme Court Appellate Division in violation of the due process rights of the appellant? We hold that the appellant was deprived of due process and that the Chief Justice had a duty to recuse himself. Our standard of review is whether the Chief Justice abused his discretion. Ting Hong Oceanic Enterprises v. Supreme Court, 8 FSM Intrm. 1, 4 (App. 1997). II. Background On January 23, 1987, Kadalino Damarlane was terminated as a legislative aide of the Pohnpei State Legislature by the Speaker. Damarlane appealed, and, after hearing, a legislative committee affirmed on February 25, 1987, the termination on each of the several grounds assigned by the Speaker. Damarlane brought an action in the Pohnpei Supreme Court trial division on June 8, 1987, alleging, among others, that the termination violated his right to freedom of expression protected under both the FSM and Pohnpei Constitutions. The trial division affirmed the termination on June 12, 1991, without making a specific holding as to the FSM Constitution. Damarlane appealed that decision to the Pohnpei Supreme Court Appellate Division, raising again, as one ground, that the termination violated his right of expression safeguarded by the FSM Constitution. Oral argument was heard on May 8, 1992. Before an opinion was rendered, other events occurred. On June 28, 1994, Damarlane's new lawyer, who is also his wife, Mary Berman, filed Civil Action No. 1994-097 in the FSM Supreme Court Trial Division against the Chief Justice of the Pohnpei Supreme Court alleging his wrongful failure to admit her to practice before that court and seeking damages and injunctive relief. The action was brought against Chief Justice Santos, both individually and in his official capacity. On August 22, 1994 the Chief Justice, representing himself, filed a Motion to Dismiss. This seventeen page pleading with six exhibits attached gave three grounds: 1) insufficiency of service, 2) failure to state a claim upon which relief can be granted, and 3) plaintiff's failure to comply with other laws. [On September 27, 1994, the trial court granted the motion on the first ground. Berman v. Santos, 6 FSM Intrm. 532 (Pon. 1994).] [8 FSM Intrm. 26] In support of the ground of improper service, Chief Justice Santos first referred to an earlier case (Civil Action No. 1993-017, reported at Damarlane v. Santos, 6 FSM Intrm. 45 (Pon. 1993)) filed against him by Mary Berman, in which there had been improper service. He then stated, This case presents the second exact scheme. This effort on the part of the plaintiff is evidence of the plaintiff's indifferent disregard of her duty to obey rules of Court, calculate as a means of manipulating and abusing the judicial process of this young nation solely to denigrate and to embarrass the defendant. On the ground of failure to state a cause of action Chief Justice Santos disputed the allegation in the complaint that he cannot govern admission to practice in the Pohnpei state courts. He wrote that such an allegation was "a flagrant and intentional attempt to mislead the FSM Court." On the ground of Mary Berman's failure to comply with other laws (referring to matters other than the rules of service and the Pohnpei authorities governing admission), the motion to dismiss with its attachments argued the justification of denying Mary Berman admission because of her past performance. The Chief Justice concluded his argument on this ground with this paragraph: While the Pohnpei Supreme Court has no settled means to disbar the plaintiff based on her unethical conducts thus enumerated inasmuch as she has not been fully admitted to the State Bar, the only sanction available to the Pohnpei Court is to penalize her as in contempt of court, or to refuse admission. On September 26, 1994, Mary Berman filed a motion that Chief Justice Santos recuse himself in the still pending appeal of the Damarlane termination case on the ground that he was biased against her, appellant's counsel, and her client, Kadalino Damarlane, her husband. The motion relied principally upon the words of the Chief Justice in his motion to dismiss Civil Action No. 1994-097. The appellate opinion was filed on September 27, 1994, the day after the motion to recuse Chief Justice Santos was filed. The appeal was thus still pending when the motion was filed. (Chief Justice Santos' and another justice's signature were dated September 23, 1994.) No action was ever taken on the recusal motion. III. Jurisdiction We conclude as a matter of law that we have jurisdiction in this matter. When Damarlane appealed his termination to the Trial Division of the Pohnpei Supreme Court, he alleged that his free expression rights guaranteed by the FSM and Pohnpei Constitutions were violated. The trial court affirmed the termination and the appellant asserted the same rights in his appeal to the Appellate Division of the Pohnpei Supreme Court. Damarlane has clearly raised the issue of his free expression rights under the FSM Constitution below, and argues it before us. The State, however, argued in its Motion to Dismiss Appeal for Lack of Jurisdiction that since neither the state trial court nor the appellate court ruled on the FSM Constitutional argument, resting their decisions instead on the Pohnpei Constitution, we lack jurisdiction, since the Pohnpei Constitution provides in article 10, section 4(5) that "No appeal on any matter relating to the Constitution, Pohnpei law, customs and traditions may be made to any other court, except the Pohnpei Supreme Court." There is no merit in the State's contention. First, our jurisdiction is derived from the FSM Constitution. Article XI, section 7 states, "The appellate division of the Supreme Court may review cases . . . heard in state or local courts if they require interpretation of this Constitution . . . ." Since the Constitution is the supreme law of the FSM, any act in conflict with it is invalid. FSM Const. art. [8 FSM Intrm. 27] II, § 1. Thus, even assuming that the provision of the Pohnpei Constitution quoted above has the meaning that the state asserts, an assumption we do not adopt, it would be ineffective to alter our jurisdiction specified in the FSM Constitution. A state constitution cannot deprive the FSM Supreme Court of jurisdiction granted it under the FSM Constitution. Gimnang v. Yap, 5 FSM Intrm. 13, 23 (App. 1981). Secondly, this is not a case in which appeal is unavailable because the issue was not raised below. See, e.g., Alfons v. FSM, 5 FSM Intrm. 402, 404 (App. 1992) ("an issue not raised at trial cannot be introduced for the first time on appeal"). As noted above, the appellant argued before both the state trial and appellate levels that his right of expression under the FSM Constitution was violated by the termination. The State's Motion to Dismiss must accordingly be denied. When appealing his termination from the Legislature to the trial division of the Pohnpei Supreme Court, Damarlane also raised the issue of whether he received procedural due process, as guaranteed by the FSM and Pohnpei Constitutions, in his hearing before the Legislature. The record reveals that Damarlane waived this claim before trial so that it was not preserved for appeal. We also have jurisdiction because the motion to recuse filed by the appellant raises an issue of due process under the FSM Constitution. Etscheit v. Santos, 5 FSM Intrm. 35 (App. 1991). IV. Disqualification The motion to recuse alleged bias against Damarlane's counsel. Section 30(2)(a) of the Pohnpei State Judiciary Act of 1982 states: "a Justice or Judge shall also disqualify himself in the following circumstances: (a) where he has a personal bias or prejudice concerning a party of [sic: or] counsel . . . ." Pon. S.L. 2L-160-82, §30(2)(a). Etscheit holds that the disqualification statutes of the state and national governments set minimum standards in defining due process protection of those who appear in court. The goal is to assure fair trials in fact and in appearance. Etscheit, 5 FSM Intrm. at 45-46. We find that the statements of Chief Justice Santos quoted above reveal a bias against Damarlane's counsel, who is also his wife. We also conclude that the bias is of a nature to require Chief Justice Santos's disqualification to participate in the decision of the present case when it was before the Pohnpei Supreme Court Appellate Division. Damarlane had a constitutional due process right to have his appeal heard by unbiased justices. In the "normal situation" an extrajudicial source gives rise to a disqualification. In re Main, 4 FSM Intrm. 255, 261 (App. 1990). While it is true that the views of Chief Justice Santos arose from his judicial position or from cases in which he was a party, the source of the disqualification is extrajudicial for a number of reasons: The Motion to Dismiss a) is filed by Chief Justice himself on his own behalf and in his official capacity, b) contains a third section, "Failure to comply with other laws" which has nothing in it relevant to the Motion to Dismiss; it is instead a statement in defense of the allegations made in the complaint, and c) included as attachments letters from the Governor of Pohnpei and two practicing attorneys which he feels support his views of Mary Berman's unsuitability for admission, and d) expresses opinions based not just on counsel's actions in that present case, but on other [8 FSM Intrm. 28] sources in which he either presided or was a party as an individual or were clearly extrajudicial. We conclude that Chief Justice Santos exhibited a "personal bias" against the appellant's counsel and should have disqualified himself from the Pohnpei Supreme Court Appellate Division panel which heard this case. V. Conclusion It is accordingly ordered that the opinion of the Pohnpei Supreme Court Appellate Division is reversed and the case remanded to that Court for rehearing before a reconstituted panel. On remand the Pohnpei Supreme Court Appellate Division may rule on the FSM Constitutional issue, Gimnang, 5 FSM Intrm. at 18 (state court competent to rule on FSM Constitution), but should do so last, Jonah v. FSM, 5 FSM Intrm. 308, 313 (App. 1992) (unnecessary adjudication of the FSM Constitution to be avoided). In ruling on the constitutional issue the Pohnpei Supreme Court Appellate Division may want to consider Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 576, 50 L. Ed. 2d 471, 484 (1977) (if preponderance of evidence shows employee would have been terminated even in the absence of the protected free speech conduct the employee's termination should be upheld). It is further ordered that Appellee's Motion to Dismiss Appeal for Lack of Jurisdiction is denied. * * * *