KOSRAE STATE COURT TRIAL DIVISION
Cite as Kosrae v. Langu, 13 FSM Intrm. 269 (Kos. S. Ct. Tr. 2005).

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STATE OF KOSRAE,

Plaintiff,

vs.

RODRIQUES J. LANGU,

Defendant.

CRIMINAL CASE NO. 23-05

ORDER OF RECUSAL; ORDER OF REASSIGNMENT

Yosiwo P. George

Chief Justice

Hearing: May 26, 2005

Decided: June 2, 2005

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APPEARANCES:

For the Plaintiff:   Paliknoa Welly, trial counselor

                                 State Prosecutor

                                 Office of the Kosrae Attorney General

                                 P.O. Box 870

                                 Lelu, Kosrae   FM   96944

For the Defendant:   Harry A. Seymour, Esq.

                                      Office of the Public Defender

                                       P.O. Box 245

                                       Lelu, Kosrae   FM   96944

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HEADNOTES

Courts; Recusal

     An application for a trial judgeís disqualification must be filed at the earliest opportunity. A motion to recuse should be brought before the trial or hearing unless good cause is shown for filing it at a later time. Kosrae v. Langu, 13 FSM Intrm. 269, 271-72 (Kos. S. Ct. Tr. 2005).

Courts ) Recusal

     It is necessary to show a factual basis ) not just speculation or conclusions, for questioning a judgeís impartiality. A factual basis must be provided by affidavit or other admissible evidence. Counselís arguments are not evidence and therefore cannot form a "factual basis" for questioning a judgeís impartiality. Kosrae v. Langu, 13 FSM Intrm. 269, 272 (Kos. S. Ct. Tr. 2005).

Courts ) Recusal

     Mere argument by counsel, verbal or written, is not the basis on which motions to recuse are determined. It is the movantís burden to go beyond speculation or conclusion and show a factual basis for recusal. Kosrae v. Langu, 13 FSM Intrm. 269, 272 (Kos. S. Ct. Tr. 2005).

Courts ) Recusal

     Generally, an affidavit is required to provide a factual basis for questioning a judgeís impartiality, but other admissible evidence may also by used to support a motion to recuse. When statements made by the presiding justice himself, regarding his own extrajudicial knowledge of facts relating to the subject incident and the defendantís alleged conduct, were made on the record in the courtroom at hearings, these statements can be used for questioning the justiceís impartiality and a basis for recusal. Under these specific facts and in this case, the requirement for an affidavit is satisfied by other admissible evidence: the record of the hearings. Kosrae v. Langu, 13 FSM Intrm. 269, 272 (Kos. S. Ct. Tr. 2005).

Courts ) Recusal

     Disqualification of a the justice is required when the justice has personal knowledge of disputed evidentiary facts concerning the proceeding. The term "disputed evidentiary facts concerning the proceeding" has been interpreted to mean facts involved in the actions or conduct of persons in a case. Kosrae v. Langu, 13 FSM Intrm. 269, 272 (Kos. S. Ct. Tr. 2005).

Criminal Law and Procedure ) Malicious Mischief

     The offense of malicious mischief as willfully destroying, damaging, or injuring property belonging

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to another. Kosrae v. Langu, 13 FSM Intrm. 269, 272 (Kos. S. Ct. Tr. 2005).

Criminal Law and Procedure

     Neither state law nor court rules require a criminal defendant to dispute any evidence relating to the allegations prior to trial. The defendant is permitted to dispute evidence presented by the state at trial, through cross-examination or by producing independent evidence. Kosrae v. Langu, 13 FSM Intrm. 269, 272 (Kos. S. Ct. Tr. 2005).

Courts ) Recusal

     Since at trial, the defendant may defend the malicious mischief charge through disputing the elements of the offense, including the alleged damage to the glass at the school, and since the presiding justiceís hearing glass being broken on the subject night at the school may be considered circumstantial evidence of defendantís conduct, the presiding justiceís hearing glass being broken on the subject night at the school may be facts involved in the defendantís actions or conduct in this case and therefore disputed evidentiary facts concerning the proceeding. Accordingly, the trial justice recused himself. Kosrae v. Langu, 13 FSM Intrm. 269, 272-73 (Kos. S. Ct. Tr. 2005).

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COURTíS OPINION

YOSIWO P. GEORGE, Chief Justice:

     Defendantís Motion to Recuse was heard on May 26, 2005. Paliknoa Welly, State Prosecutor, appeared for the State. Defendant was represented by Harry Seymour, Public Defender. Defendantís Motion for Recusal of the presiding justice was based upon the justiceís alleged personal knowledge of the incident resulting in filing of the criminal charges against the Defendant.

     The following information was provided to the parties by the presiding justice at the initial appearance held on February 25, 2005, and again on May 6, 2005, when this matter was first set for trial. These statements made by the Presiding Justice regarding his knowledge of the subject incident were made in the courtroom and are part of the record in this matter.

     The Presiding Justice lives across the road from the site of the incident, Malem Elementary School. On the night in question, February 24, 2005, the Justice heard noise and commotion, and glass breaking at the location of the incident. He got in his car and drove by the site. At the site, the Justice spoke to a boy standing nearby. The Justice did not see the Defendant, and returned home. Shortly thereafter, the Kosrae State Police Officers Fred Taulung and Tarren Mongkeya came to the home of the Presiding Justice and requested an oral arrest warrant. The arrest warrant was granted, based upon statements made by the police officer. The Defendant was arrested and this action followed. The Presiding Justice disclosed his knowledge of these facts at the initial appearance held in this matter on February 25, 2005, and also at the time when this matter was first called for trial on May 6, 2005.

     The State argues that Defendantís Motion to Recuse should be denied because it is untimely. The Presiding Justice first provided both parties the information regarding his personal knowledge of the subject incident on the record at the initial appearance held in late February 2005, more than three months ago. At that time both parties were aware of the handling of this matter by the Presiding Justice, yet Defendantís Motion to Recuse was filed only when trial of this matter was set. An application for a trial judgeís disqualification must be filed at the earliest opportunity. Tolenoa v. Kosrae, 11 FSM Intrm. 179 (Kos. S. Ct. Tr. 2002). A motion to recuse should be brought before the

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trial or hearing unless good cause is shown filing at a later time. Id. Here, Defendant filed his Motion to Recuse before the trial, but not at the earliest opportunity. Defendant was aware of the Presiding Justiceís knowledge of the subject incident at the initial appearance, but chose to wait until the eve of trial to file the instant motion. Defendantís late filing of his Motion to Recuse, immediately before the trial, serves only to delay the trial and the efficient administration of the Court. Parties are instructed to file motions to recuse at the earliest opportunity possible to allow timely consideration and reassignment if necessary.

     The State argues that the Defendantís Motion to Recuse should fail because it is not supported by an affidavit. It is necessary to show a factual basis ) not just speculation or conclusions, for questioning a judgeís impartiality. FSM v. Skilling, 1 FSM Intrm. 464 (Kos. 1984). A factual basis must be provided by affidavit or other admissible evidence. Arguments of counsel are not evidence and therefore cannot form a "factual basis" for questioning a judgeís impartiality. Mere argument by counsel, verbal or written, is not the basis on which motions to recuse are determined. It is the movantís burden to go beyond speculation or conclusion and show a factual basis for recusal. Jano v. King, 5 FSM Intrm. 266 (Pon. 1992). Therefore, generally, an affidavit is required to provide a factual basis for questioning a judgeís impartiality. Other admissible evidence may also by used to support a motion to recuse. In this case, the statements made by the Presiding Justice himself, regarding his own extrajudicial knowledge of facts relating to the subject incident and alleged conduct of the Defendant, were made on the record in the courtroom at the February and May 2005 hearings. Therefore, in this case, the statements made by the Presiding Justice form the factual basis for questioning the Justiceís impartiality and basis for recusal. Under these specific facts and in this case, the requirement for an affidavit is satisfied by other admissible evidence: the record of the February and May 2005 hearings.

     The Model Code of Judicial Conduct, Canon 3.E. governs disqualification of presiding justices. Pursuant to Canon 3.E.(1)(a), disqualification is required where the justice has "personal knowledge of disputed evidentiary facts concerning the proceeding." The term "disputed evidentiary facts concerning the proceeding" has been interpreted to mean facts involved in the actions or conduct of persons in a case. Jackson v. Kosrae State Election Commission, 11 FSM Intrm. 133 (Kos. S. Ct. Tr. 2002). Defendant argues that the Presiding Justice hearing of the noise and breaking glass at the time and place of the alleged incident constitute disputed evidentiary facts concerning the proceeding, and therefore recusal is required. The State opposes the Defendantís Motion on three grounds. First, the State argues that the Motion is untimely. Second, the State argues that the argument is premature as the Defendant has not disputed the allegation that he broke that glass at the school on the night in question. Finally, the State argues that the Motion must fail because it is not supported by affidavit.

     A review of the charges brought against the Defendant is instructive. Defendant has been charged with the offenses of Malicious Mischief and Unauthorized Consumption of Alcoholic Drink. The affidavit of probable cause states that the Defendant is alleged to have broken glass in two classrooms at the Malem Elementary School. Therefore, the breaking of the glass appears to form the basis for the charge of malicious mischief. Kosrae State Code, Section 13.408 defines the offense of malicious mischief as "willfully destroying, damaging, or injuring property belonging to another."

     The State argues that the Defendant has not disputed evidence supporting the allegations made in the Information. Neither State Law nor Court Rules require the Defendant to dispute any evidence relating to the allegations prior to trial. The Defendant is permitted to dispute evidence presented by the State at trial, through cross-examination or by producing independent evidence. At trial, the Defendant may defend the malicious mischief charge through disputing the elements of the offense, including the alleged damage to the glass at the school. The Presiding Justiceís hearing of glass being broken on the subject night at the school may be considered circumstantial evidence of Defendantís

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conduct. The Presiding Justiceís hearing of the glass being broken on the subject night at the school may be facts involved in the actions or conduct of the Defendant in this case and therefore disputed evidentiary facts concerning the proceeding. Accordingly, I conclude that my hearing of the broken glass on the subject night at the school, as provided to the parties on the record, constitute disputed evidentiary facts concerning the proceeding, pursuant to the Model Code of Judicial Conduct, Canon 3.E.(1)(a). I now recuse myself and reassign this matter to Associate Justice Aliksa B. Aliksa for trial and further proceedings in this matter.

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