Cite as Ruben v. Petewon, 14 FSM Intrm. 146 (Chk. S. Ct. App. 2006)

[14 FSM Intrm. 146]

CIVIL APPEAL NO. 03-2005

Argued: March 7, 2006
Decided: March 7, 2006
Entered: March 10, 2006

BEFORE:

Hon. Dennis Yamase, Temporary Justice, Presiding*
Hon. Benjamin Rodriguez, Temporary Justice**
Hon. Repeat Samuel, Temporary Justice***

*Associate Justice, FSM Supreme Court, Chuuk
**Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei
***Attorney at Law, Weno, Chuuk

[14 FSM Intrm. 147]

HEADNOTES

Courts – Judges

If the Chief Justice is removed or disqualified, then the most senior associate justice who has not been removed or disqualified from the case will appoint the temporary justices, but if all Chuuk State Supreme Court justices are disqualified and there is no associate justice that could appoint a panel in the Chief Justice’s stead and there is no provision for the Chief Justice to appoint a temporary justice to make the appointments, then the rule of necessity, in this limited circumstance, allows the Chief Justice to make the panel appointments. Ruben v. Petewon, 14 FSM Intrm. 146, 148 (Chk. S. Ct. App. 2006).

Courts – Recusal

The "rule of necessity" cannot be applied to force an otherwise disqualified justice to serve because as long as it is possible to appoint a temporary judge who is not disqualified, the rule of necessity has no application and cannot be resorted to. Ruben v. Petewon, 14 FSM Intrm. 146, 148 n.1 (Chk. S. Ct. App. 2006).

Courts – Recusal

If the Acting Chief Justice knows that a particular associate justice is disqualified there is no reason for him to take the pointless step of referring the matter to that associate justice for that justice to say so. Ruben v. Petewon, 14 FSM Intrm. 146, 148 (Chk. S. Ct. App. 2006).

Courts – Judges

When all Chuuk State Supreme Court justices have been disqualified from presiding, an appellate panel will have to be constituted without a Chuuk State Supreme Court justice and with a temporarily-appointed justice to preside. Ruben v. Petewon, 14 FSM Intrm. 146, 149 (Chk. S. Ct. App. 2006).

Courts – Judges

There is no authority that would require the justice making the appointment of temporary Chuuk State Supreme Court appellate division justices to make the appointments of temporary appellate justices in the order of seniority. Ruben v. Petewon, 14 FSM Intrm. 146, 149 (Chk. S. Ct. App. 2006).

[14 FSM Intrm. 148]

COURT'S OPINION

PER CURIAM:

This came before the court on the Respondent Associate Justice John Petewon's Motion to Disqualify Presiding Temporary Justice and to Dissolve the Appellate Panel With Points and Authorities and supporting affidavit. The motion contends that the Presiding Temporary Appellate Justice Dennis K. Yamase is disqualified from presiding for three reasons: (1) that Justice Yamase sat on the same matter as is on appeal when he sat on and decided Civil Action No. 2005-1018 in the FSM Supreme Court trial division; (2) that as an FSM Supreme Court justice he cannot be a presiding justice in the Chuuk State Supreme Court appellate division because the Chuuk Constitution Article VII, section 5(b) and the Chuuk Judiciary Act of 1990, section 37 permit only Chuuk State Supreme Court justices to preside in the appellate division; and (3) because Acting Chief Justice Keske Marar was disqualified from sitting on the appellate panel he was disqualified from appointing Justice Yamase to the appellate panel. This last contention is the motion's ground that the whole appellate panel should be dissolved.

At oral argument on March 7, 2006, the respondent justice further challenged the panel's makeup and ability to decide his motion to disqualify and dissolve. That challenge and the first contention in the motion to disqualify Justice Dennis K. Yamase were denied and the reasoning memorialized in an earlier order by the panel members other than Justice Yamase. [Ruben v. Petewon, 14 FSM Intrm. 141, 146 (Chk. S. Ct. App. 2006).] This order memorializes the court's decision on the remainder of the motion to disqualify and to dissolve – that Justice Yamase cannot legally be the presiding justice and that Acting Chief Justice Marar cannot appoint any of the members of this panel.

The third contention is without merit. It has been considered by the Chuuk State Supreme Court appellate division before and rejected. If the Chief Justice is a member of a Chuuk State Supreme Court appellate panel, or is so removed or disqualified, then the most senior associate justice who has not been removed or disqualified from the case will appoint the temporary justices, but if all Chuuk State Supreme Court justices are disqualified and there is no associate justice that could appoint a panel in the Chief Justice's stead and there is no provision for the Chief Justice to appoint a temporary justice to make the appointments, then the rule of necessity,¹ in this limited circumstance, allows the Chief Justice to make the panel appointments. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 152 (Chk. S. Ct. App. 2001). Associate Justice Petewon is disqualified because he is a party. Associate Justice Machime O’Sonis is disqualified because he is the close relative of a party (Petewon). Chk S.L. No. 190-08, § 22(2)(d)(i). Justice O’Sonis is also disqualified because petitioners’ counsel represents him in a pending land case. (It also appears that Justice O’Sonis was assigned to one of the underlying cases before they were consolidated.) There are no other Chuuk State Supreme Court associate justices. The respondent suggests that when Acting Chief Justice Marar is disqualified, the matter should have been referred to Justice O’Sonis for O'Sonis to determine if he is qualified. We see no reason for the Acting Chief Justice to take this pointless step. If the Acting Chief Justice knows that a particular associate justice is disqualified there is no reason to refer the matter to that associate justice for that justice to say so. It was therefore proper for Acting Chief Justice Keske Marar to appoint an appellate panel in this case. The motion to dissolve the entire appellate panel is therefore denied.

[14 FSM Intrm. 149]

At oral argument, the respondent justice, joined by the respondent/real party in interest, contended that if all Chuuk State Supreme Court justices are disqualified, then the strength of their disqualifying conflict must be weighed and then the justice with the least conflict must be the one to make the temporary justice appointments. The respondent justice contended that Justice O’Sonis was less disqualified. It is unclear, just who they believed should be the one to do the weighing. Nor can we say that the Acting Chief Justice did not weigh the disqualifying conflicts. All we can say is that we can find no constitutional or statutory provision requiring the suggested procedure and none was cited to us. Nor does it appear that if such a procedure were used that, because of the grounds for Justice O’Sonis's disqualification cited above, he would be less disqualified than the Acting Chief Justice who had previously entered, in one of three consolidated cases, a default judgment since default judgments do not require a decision between competing adversarial parties on the merits.

The second contention is also without merit. It also has previously been considered by the Chuuk State Supreme Court appellate division and rejected. When all Chuuk State Supreme Court justices have been disqualified from presiding, an appellate panel will have to be constituted without a Chuuk State Supreme Court justice and with a temporarily-appointed justice to preside. In re Mid-Mortlocks Interim Election, 11 FSM Intrm. 470, 473 (Chk. S. Ct. App. 2003); Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 151 (Chk. S. Ct. App. 2001). The court further notes there have been many previous occasions when a Chuuk State Supreme Court appellate panel consisted entirely of temporary justices. See, e.g., Nikichiw v. O'Sonis, 13 FSM Intrm. 132 (Chk. S. Ct. App. 2005); Narruhn v. Aisek, 13 FSM Intrm. 97 (Chk. S. Ct. App. 2004); In re Mid-Mortlocks Interim Election, 11 FSM Intrm. 470 (Chk. S. Ct. App. 2003); Phillip v. Moses, 10 FSM Intrm. 540 (Chk. S. Ct. App. 2002); Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 220 (Chk. S. Ct. App. 2001); Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145 (Chk. S. Ct. App. 2001); In re Contempt of Umwech, 8 FSM Intrm. 20, 22 (Chk. S. Ct. App. 1997). There were other, unreported cases in which none of the panel members were regular Chuuk State Supreme Court justices.

At oral argument, the respondent justice made a further contention that when non-Chuuk State Supreme Court justice panel members are appointed that other more senior persons should have been considered for appointment first. In other words, before appointing FSM Supreme Court Justice Yamase, FSM Chief Justice Andon Amaraich should have been appointed, and if not him, then the more senior FSM associate justice, Martin Yinug; and before appointing Pohnpei Supreme Court Associate Justice Benjamin Rodriguez, Pohnpei Supreme Court Chief Justice Judah Johnny should have been appointed, and if not him then a more senior Pohnpei Supreme Court associate justice, or perhaps the Chief Justice of another state court; and before appointing Repeat Samuel as a temporary justice, a more senior "qualified attorney in the State of Chuuk" such as Camillo Noket should have been appointed before Mr. Samuel could have been appointed. No authority was cited for this novel proposition. Nor can we find any authority that would require the justice making the appointment of temporary Chuuk State Supreme Court appellate division justices to make the appointments of temporary appellate justices in the order of seniority.

It is not within this, or any, appellate panel's power to establish the method, or a method, for choosing temporary justices from among those constitutionally eligible to be appointed as temporary appellate justices or to even determine whether there should be a set methodology for choosing temporary appellate justices. Those are matters for others to decide.

Accordingly, the remainder of the respondent justice's motion to disqualify and to dissolve was denied.

¹ The "rule of necessity" cannot be applied to force an otherwise disqualified justice to serve because as long as it is possible to appoint a temporary judge who is not disqualified, the rule of necessity has no application and cannot be resorted to. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 151 (Chk. S. Ct. App. 2001).