KOSRAE STATE COURT TRIAL DIVISION
Cite as Tolenoa v. Kosrae
11 FSM Intrm. 179 (Kos. S. Ct. Tr. 2002)

[11 FSM Intrm. 179]

 
STEVEN T. TOLENOA,
Plaintiff,
 
vs.
 
STATE OF KOSRAE,
Defendant.
 
CIVIL ACTION NO. 23-01
 
ORDERS
 
Yosiwo P. George
Chief Justice
 
Decided: October 1, 2002
 
APPEARANCES:
 
For the Plaintiff:                      Sasaki L. George, Esq.
                                                 Micronesian Legal Services Corporation
                                                 P.O. Box 38
                                                 Lelu, Kosrae FM 96944
 
For the Defendant:               April Dawn M. Skilling, Esq. (new trial motion)
                                               Paul J. Simonett, Esq. (other filings)
                                               Assistant Attorneys General
                                               Office of the Kosrae Attorney General
                                               P.O. Box 870
                                               Lelu, Kosrae FM 96944

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HEADNOTES

Civil Procedure ) New Trial
     A motion for new trial may be filed before the entry of judgment. Tolenoa v. Kosrae, 11 FSM Intrm. 179, 182 (Kos. S. Ct. Tr. 2002).
 
Civil Procedure ) New Trial
    A motion for new trial will be denied when the movant has not demonstrated that a manifest error of law or fact existed. Tolenoa v. Kosrae, 11 FSM Intrm. 179, 182 (Kos. S. Ct. Tr. 2002).
 
Courts ) Recusal
     Adverse rulings by a judge in a case do not create grounds for disqualification in that case. To be disqualifying, any alleged judicial bias and prejudice must be based upon an extrajudicial source. Tolenoa v. Kosrae, 11 FSM Intrm. 179, 182 (Kos. S. Ct. Tr. 2002).

[11 FSM Intrm. 180]

Courts ) Recusal
     It is a judges duty not to disqualify himself unless he believes that there are proper and reasonable grounds therefor. Tolenoa v. Kosrae, 11 FSM Intrm. 179, 182 (Kos. S. Ct. Tr. 2002).
 
Courts ) Recusal
     A motion to recuse should be brought before the trial or hearing unless good cause is shown filing it at a later time. Tolenoa v. Kosrae, 11 FSM Intrm. 179, 182 (Kos. S. Ct. Tr. 2002).
 
Courts ) Recusal
     A justice is required to disqualify himself in a proceeding in which a person within the third degree of relationship to the justice is, to the justices knowledge, likely to be a material witness in the proceeding, but when the justices brother was never a witness in the case, was not named as a witness by either party, and did not testify at the trial, he was not a person likely to be a material witness in the proceeding and the justices disqualification was not required on this basis. Tolenoa v. Kosrae, 11 FSM Intrm. 179, 183 (Kos. S. Ct. Tr. 2002).
 
Constitutional Law ) Kosrae
     The Kosrae Constitution requires court decisions to be consistent with state traditions and customs, and the states social and geographical configuration. Tolenoa v. Kosrae, 11 FSM Intrm. 179, 183 (Kos. S. Ct. Tr. 2002).
 
Courts ) Recusal
     The Code of Judicial Conduct requires a judges disqualification when the judge or judges spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person is a party to the proceeding, or an officer, director or trustee of a party. But the phrase "director of a party" in the Code of Judicial Conduct is limited to corporations and business entities, and does not include directors in state government. Tolenoa v. Kosrae, 11 FSM Intrm. 179, 183-84 (Kos. S. Ct. Tr. 2002).
 
Courts ) Recusal
     An application for a trial judges disqualification must be filed at the earliest opportunity. This rule will be strictly applied against a party who, having knowledge of the facts constituting a disqualification, does not seek to disqualify the judge until an unfavorable ruling has been made. Tolenoa v. Kosrae, 11 FSM Intrm. 179, 184 (Kos. S. Ct. Tr. 2002).
 
Civil Procedure ) New Trial; Courts ) Recusal
     The trial court may deny a motion for new trial when the motions basis is the judges failure to recuse himself and the party making the motion was, since the beginning of the case, aware of the information upon which the motion is based. Tolenoa v. Kosrae, 11 FSM Intrm. 179, 184 (Kos. S. Ct. Tr. 2002).
 
Courts ) Recusal
     A justice is not required to recuse himself due to his former position as governor at the time that the plaintiff was moved into the teacher position in question. Tolenoa v. Kosrae, 11 FSM Intrm. 179, 184-85 (Kos. S. Ct. Tr. 2002).
 
Civil Procedure ) New Trial
     When a justice was not required to recuse himself from a matter, his failure to recuse himself does not constitute manifest error of law and a motion for a new trial on that basis will be denied. Tolenoa v. Kosrae, 11 FSM Intrm. 179, 185 (Kos. S. Ct. Tr. 2002).

[11 FSM Intrm. 181]

Public Officers and Employees ) Kosrae
      Since a state employee classification plan that identifies class specifications for each class, including appropriate pay levels, must be approved by the Oversight Board, of which the Chief Justice is a member, it would be improper for the Chief Justice to order a classification of a position that would ultimately be reviewed and approved by him as an Oversight Board member. The court will therefore delete from its order the requirement that the state must create Head Teacher position classification. Tolenoa v. Kosrae, 11 FSM Intrm. 179, 185 (Kos. S. Ct. Tr. 2002).
 
Civil Procedure ) Pleadings; Statutes of Limitation
      The statute of limitations is an affirmative defense which must be raised in the defendants answer, and when it has not been, the defendant has waived its statute of limitations defense. Tolenoa v. Kosrae, 11 FSM Intrm. 179, 185 (Kos. S. Ct. Tr. 2002).

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COURTS OPINION

YOSIWO P. GEORGE, Chief Justice:

     On December 19, 2001, this Court entered its Memorandum of Decision in this case, on the issue of liability only. [Tolenoa v. Kosrae, 10 FSM Intrm. 486 (Kos. S. Ct. Tr. 2001).] The Court found liability in favor of the Plaintiff, determined the damages due to the Plaintiff, and ordered the State to classify the position of Head Teacher.

     Defendant filed a Motion for New Trial and a Response to Court Order regarding Damages on February 6, 2002. Plaintiff filed an Opposition to Defendants Motion for a New Trial and an Opposition to Defendants Response on February 18, 2002. Defendant filed a Reply to Plaintiffs Opposition to Motion for New Trial on February 19, 2002. Defendant filed a Reply to Plaintiffs Opposition to Motion for Clarification of Court Order on February 21, 2002.

Following careful consideration of the papers filed by the parties, the record in this matter, and in the interests of justice, the Court rules as follows: Defendants Motion for New Trial is denied. Defendants Motion for Clarification of Court Order is granted in part. This memorandum sets forth the reasoning of the Court.

1. Defendants Motion for a New Trial.

      Defendant has filed a Motion for a New Trial, based upon the failure of the Chief Justice to disqualify himself from presiding over this matter. Defendant argues that it was Chief Justice, as Governor of the State of Kosrae, who authorized the Plaintiff to become a head teacher, by signing the Plaintiffs Personnel Action Form. Defendant argues that the Head Teacher designation was created during former Governor Georges term, therefore he was directly responsible for the Plaintiffs position. Further, Singkitchy George, brother of the Chief Justice, was the Director of Education during the time when Plaintiff was appointed as a "head teacher." Defendant argues that Chief Justices failure to disqualify himself was manifest error of law, and therefore grounds for a new trial.

     Plaintiff opposes the Defendants Motion on several grounds. Plaintiff argues that this motion is untimely. The Defendants have been aware that Chief Justice was Governor during the subject period of time since the beginning of this case and their challenge at this time is too late. Plaintiff argues that Chief Justice disclosed his position on the record as having served as former Governor

[11 FSM Intrm. 182]

before this trial began and none of the parties objected to Chief Justice presiding at that time. Plaintiff also argues that the Code of Judicial Conduct does not require recusal of Chief Justice from this matter. Finally, Plaintiff argues that a Motion for New Trial under KRCP 59 is premature since a judgment has not been entered in this matter.

     Defendant, in its Reply, argues that since Singkitchy George was a "director," Chief Justice was required to disqualify himself under the Code of Judicial Conduct, Canon 3.E(d)(1). Defendant closes by arguing that a Rule 59 Motion for New Trial may be made before judgment is entered.

     KRCP Rule 59(a) and (b) allows a new trial to be granted as follows:

(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issued for manifest error of law or fact, or for newly discovered evidence. On a Motion for a new trial the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusion of law or make new findings and conclusions, and direct the entry of a new judgment.

(b) Time for Motion. A motion for a new trial shall be served not later than 10 days after the entry of judgment.

     A motion for new trial may be filed before the entry of judgment. Walter v. Meippen, 7 FSM Intrm 515 (Chk. 1996). A motion for new trial will be denied when the movant has not demonstrated that a manifest error of law or fact existed. Conrad v. Kolonia Town, 8 FSM Intrm. 215 (Pon. 1997). Here, Defendant must show that the Chief Justices failure to recuse himself from this matter constitutes manifest error of law.

     Defendant has filed its Motion for New Trial after the Memorandum of Decision was entered, imposing liability upon the Defendant. Adverse rulings by a judge in a case do not create grounds for disqualification in that case. FSM v. Skilling, 1 FSM Intrm. 464 (Kos. 1984). Any alleged judicial bias and prejudice, to be disqualifying, must be based upon an extrajudicial source. Id. "It is a judges duty not to disqualify himself . . . unless he believes that there are proper and reasonable grounds therefor." Adams v. Etscheit, 4 FSM Intrm. 226, 233 (Pon. S. Ct. Tr. 1989).

      Defendants Motion for a New Trial, based upon KRCP Rule 59, is timely filed within the provisions of the Rule. However, the basis for the Defendants Motion for New Trial: Chief Justices failure to Recuse himself, is untimely.

     In the case of FSM v. Ting Hong Oceanic Enterprises, 7 FSM Intrm. 644 (Pon. 1996), a motion to recuse was 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. Here, the Motion for New Trial, based upon failure to recuse, was brought after the trial on liability was completed, and after the Memorandum of Decision had been entered. The Defendant knew in April 2001, months before trial, that Chief Justice George would be presiding over this case. See Order Setting Pre-Trial Deadlines and Trial Date (April 5, 2001). A motion to recuse should be brought before the trial or hearing unless good cause is shown filing it at a later time. Ting Hong Enterprises v. Supreme Court, 8 FSM Intrm. 1 (App. 1977). The Defendant has not given any good cause for its delay in raising this issue so late after trial of this matter. Defendant has raised the issue of recusal only after an adverse decision has been entered.

     Defendant argues that Chief Justice should have recused himself in this matter due to his relationship with the Director of Education in 1990, his brother Singkitchy George. This basis for

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recusal has already been addressed by this Court. In the case of Warner Edmond v. State, Civil Action No. 49-01, Chief Justice recused himself on two grounds. First, the Defendant named Chief Justice as a potential witness. Second, Defendant designated Singkitchy George, former Director of Education, and the brother of the Chief Justice Yosiwo P. George, as a trial witness. In the Warner Edmond case, Chief Justice recused himself based upon the Code of Judicial Conduct, Canon 3.E(l)(d)(iv) (2000), which requires a justice to disqualify himself in a proceeding in which a person within the third degree of relationship to the justice is to the justices knowledge likely to be a material witness in the proceeding. Director Singkitchy P. George, was named by the Defendant as a witness for trial of the Warner Edmond matter, who is a brother and within the third degree of relationship to the Chief Justice.

     In this case, the facts are different. Singkitchy George, former Director of Education, was never a witness for this case. Director George was not named as a witness by the Plaintiff or the Defendant, and did not testify at the trial. Therefore, Director George was not a person likely to be a material witness in the proceeding. Disqualification was not required on this basis.

     Defendant also argues that Director George was a "director" of a party (the State) and therefore the Code of Judicial Conduct required disqualification.

     The Code of Judicial Conduct, Canon 3.E(l)(d)(I) (2000) requires disqualification where: "The judge or judges spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person is a party to the proceeding, or an officer, director or trustee of a party." Here, the Defendant argues that disqualification was required because the Director Singkitchy George is a director of the Defendant, the State. Defendants interpretation that a "director of a party" was intended to include Directors of a State Government. This interpretation must be rejected based upon several grounds. First, the Court takes judicial notice that Singkitchy George remains a Director of Kosrae State Government, currently as Director of Commerce and Industry, Furthermore, Singkitchy George has served continuously as a Director of Kosrae State Government, since the 1980s, first as Director of Education, then as Director of Health Services and most recently as Director of Commerce and Industry.

     Therefore, Defendants interpretation would result in the Chief Justice being disqualified from every criminal case and every civil case in which the State was a party) so long as the Chief Justices brother remained a Director in State Government. Chief Justice would then be disqualified in most of this Courts cases. Furthermore, this case is the first instance that the State had argued recusal was required solely due to Singkitchy Georges position as former Director of Education and not because he was a witness at the trial. The Chief Justice has presided over and continues to preside over many cases in which the State is a party: without any objection from either party, and most importantly, without any request for recusal by the State.

     The Kosrae State Constitution, Article VI, Section 9, requires Court decisions to be consistent with State traditions and customs, and the social and geographical configuration of the State. Based upon this provision, I conclude that the phrase "director of a party" in Canon 3.E(l)(d) of the Code of Judicial Conduct is limited to corporations and business entities, and does not include directors in Kosrae State Government. This interpretation is appropriate because these terms: officer, director or trustee, all refer to corporations and businesses, much more so than government entities. For example, a comparison between Kosrae State Government and FSM National Government cabinet members is instructive. In Kosrae State Government, cabinet members and heads of a department are called "director." Within the FSM National Government, the cabinet members and heads of a department are called "secretary." Both the State directors and FSM National secretaries serve as cabinet members and as heads of departments, and have similar functions, yet they have different titles. The title of "director" in Kosrae State Government is a descriptive term only. Therefore, a Director of the Kosrae

[11 FSM Intrm. 184]

State Government in not a "director of a party" under the Code of Judicial Conduct.

     The Chief Justice would have been required to recuse himself if he was an officer, director or trustee of a corporation who is a party, or related within the third degree to a relative who is an officer, director or trustee of a corporation who is a party. 46 Am. Jur. 2d Judges  114, 129 (rev. ed. 1994). However here, Director Singkitchy George was not an officer, director or trustee of a corporation who is a party to this case. Therefore, Chief Justice was not required to recuse himself from this matter, based upon his brother being the former Director of Education.

     Defendant also argues that Chief Justice was required to recuse himself due to his former position as Governor, during the time when Plaintiff was designated Head Teacher. Defendant argues that the Chief Justice, as former Governor, signed the Plaintiffs Personnel Action Form in March 1990, transferring the Plaintiff to the Head Teacher position. A review of the subject Personnel Action Form clearly indicates that the former Governor George did not sign the Form. The Personnel Action Form was signed by Moses Mackwelung, the Lieutenant Governor at that time. Therefore, the Chief Justice, as former Governor, did not personally approve Plaintiffs movement to the Head Teacher position. Defendants argument on this ground is rejected.

     It is a well recognized rule that an application for disqualification of a trial judge must be filed at the earliest opportunity. This rule will be strictly applied against a party who, having knowledge of the facts constituting a disqualification, does not seek to disqualify the judge until an unfavorable ruling has been made. 46 Am. Jur. 2d Judges  199 (rev. ed. 1994).

     This is precisely the case here. Defendant has been aware of the potential basis for Chief Justices disqualification, but failed to seek disqualification in a timely manner. Defendant did not object to Chief Justice presiding over this matter, even though Chief Justice stated his past service as Governor on the record prior to trial of this matter. Now Defendant seeks a new trial, based upon Chief Justices failure to disqualify himself, after an unfavorable ruling has been made.

     The trial court may deny a Motion for New Trial where the basis is the judges failure to recuse himself, where the party making the motion has been aware of the information upon which the motion is based since the beginning of this case. See Adams v. Etscheit, 4 FSM Intrm. 237 (Pon. S. Ct. Tr. 1989). Here, the Defendant has been aware of the Chief Justice presiding over this case since shortly after the States answer was filed.

     This Court has considered additional cases where a justice has been asked to recuse himself due to his prior employment. In the case of In re Extradition of Jano, 6 FSM Intrm. 93 (App. 1993), the Appellate Division held that the trial justice, who had signed the Compact and the Extradition Agreement, was not disqualified from presiding over an extradition proceeding. The justices participation in the Compact and Extradition Agreement negotiations and signing did not serve as grounds that his impartiality might reasonably be questioned.

     In the case of Laird v. Tatum, 409 U.S. 824, 93 S. Ct. 7, 34 L .Ed. 2d 50 (1972), defendant moved to have Justice Rehnquist disqualified, due to his prior employment as Assistant Attorney General. Justice Rehnquist, as former Assistant Attorney General, had provided public testimony regarding government surveillance) the issue in that case. The motion to recuse was denied. In another United States case, a motion to recuse a judge who was previously the Collector of Internal Revenue, was filed. The basis for the motion was that the judge was the Tax Collector during the period that the subject tax returns were filed. Neil v. United States, 205 F.2d 121 (9th Cir. 1953), the motion to recuse was denied. Likewise, in this case, the Chief Justice was not required to recuse himself from this matter due to his former position as Governor at the time that the Plaintiff was moved

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into the Head Teacher position in 1990.

      The Chief Justice was not required to recuse himself from this matter. Therefore, his failure to recuse himself from presiding over this matter does not constitute manifest error of law. Accordingly, Defendants Motion for a New Trial is denied.

2. Defendants Response to Court Order Regarding Damages.

     Defendant argues that it should not be required to classify the Head Teacher position for several reasons. First, it is difficult to properly classify a position for backdating to 1990. Second, Defendant argues that there was not a single Head Teacher position. The pay adjustments for the Head Teacher position resulted in different pay levels for each teacher, based upon their then current pay level. Classification of the Head Teacher position to a single pay level would result in decreased salaries for some teachers. Third, the Head Teacher position no longer exists. The duties that were assigned to the Head Teacher position are now completed by "specialist" positions. Defendant also argues that the classification plan must be approved by the Oversight Board, of which Chief Justice is a member of. Therefore, it would be improper for Chief Justice to order a classification of a position that would ultimately be approved by him as an Oversight Board member.

      Defendants arguments regarding classification of the Head Teacher position have merit. Pursuant to Kosrae State Code, Section 18.202, the Oversight Board is responsible to approve the position classification plan that identifies class specifications for each class, including appropriate pay levels. If classification is required, the Chief Justice would be ordering classification under his judicial authority, and then reviewing that classification under his authority as a Board member. Chief Justice would be asked to serve two roles and two functions, creating a conflict in his duties. Defendants request to delete the requirement of classification of the Head Teacher position is granted.

     Finally, Defendant argues that the damages should be limited to six years, based upon the statute of limitations. Defendants argument that the statute of limitations limits damages to six years is without merit. The statute of limitations is an affirmative defense which must be raised in the answer of the Defendant. Kos. Civ. R. 8(c) and 12(b). It was not. Therefore Defendant has waived its defense of statute of limitations. Sigrah v. Kosrae State Land Commn, 9 FSM Intrm. 89 (Kos. S. Ct. Tr. 1999). Defendants argument that damages should be limited to six years is therefore rejected.

      The argument made in Defendants Response to Court Order Regarding Damages is accepted in part. Accordingly, this Courts Order in the Memorandum of Decision is amended to delete the requirement of classification of the Plaintiffs Head Teacher position by the State. The Defendant shall not be required to classify the Head Teacher position.

3. Submission of Damages Calculations.

     The damages due to the Plaintiff were established in the Memorandum of Decision, Part V. The Plaintiff is entitled to the following monetary damages:

1. Compensation equivalent to a two step increase from pay level and step 14/9, effective March 11, 1990 and continuing thereafter during Plaintiffs employment with the State.

2. Subsequent pay level and step adjustments to reflect step increases as appropriate, salary schedule decreases and increases as mandated by State laws.

Defendant has submitted a calculation of damages to provide the Plaintiff the two step increase

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he was entitled to under the law. Defendant has calculated that the addition of one step to Plaintiffs pay from March 1, 1990 (designation as Head Teacher) to October 1, 1997 (retirement) is the amount of $ 4,389.17.

      If the parties will stipulate that the amount of damages due to Plaintiff, pursuant to this Courts Memorandum of Decision, Part V, entered on December 19, 2001, is the amount of $4,389.17, without waiving any rights to appeal on the merits, then the parties will file a Joint Stipulation of Damages no later than October 10, 2002. If no such Joint Stipulation is filed, trial on the issue of damages shall begin on October 15, 2002 at 9 am.

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