KOSRAE STATE COURT TRIAL DIVISION

Cite as Isaac v. Saimon, 14 FSM Intrm. 33 (Kos. S. Ct. Tr. 2006)

[14 FSM Intrm. 33]

ANDREW ISAAC,

Appellant,

vs.

HAMLIN SAIMON et al.,

Appellees.

CIVIL ACTION NO. 28-03

MEMORANDUM OF DECISION; JUDGMENT;

ORDER OF REMAND TO KOSRAE LAND COURT

Yosiwo P. George

Chief Justice

Hearing: November 8, 2005

Decided: January 5, 2006

APPEARANCES:

For the Appellant:  Albert T. Welly

                                Kosrae State Legislature

                                P.O. Box 187

                                Lelu, Kosrae FM 96944

For the Appellees:   Clanry Likiaksa

                                   P.O. Box 764

                                   Lelu, Kosrae FM 96944

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HEADNOTES

Appellate Review ) Standard of Review ) Civil Cases

    Under the statutory provisions applicable to appeals made from a Kosrae Land Court decision, Kosrae State Court is required to apply the "substantial evidence rule" ) if the Kosrae State Court finds that the Land Court decision was not based upon substantial evidence or that the Land Court decision was contrary to law, then the court must remand the case to the Land Court with instructions and guidance for re-hearing the matter. Isaac v. Saimon, 14 FSM Intrm. 33, 35 (Kos. S. Ct. Tr. 2006).

Courts ) Recusal

    Kosrae Land Court justices are required to adhere to the provisions of the Code of Judicial Conduct of the American Bar Association, which specifies that a justice is required to disqualify himself in all proceedings in which the justice’s impartiality might reasonably be questioned. Isaac v. Saimon, 14 FSM Intrm. 33, 35 (Kos. S. Ct. Tr. 2006).

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Courts ) Recusal

    The test for determining whether a justice’s impartiality in a proceeding might reasonably be questioned is whether a reasonable disinterested person, who knows all the circumstances, would have doubts about the justice’s impartiality, and the general rule is that the disqualifying factors must be from an extrajudicial source. Isaac v. Saimon, 14 FSM Intrm. 33, 35 (Kos. S. Ct. Tr. 2006).

Courts ) Recusal

    The normal situation in which recusal may be required is when a justice’s extrajudicial knowledge, relationship or dealing with a party might be such as to cause a reasonable person to question whether the justice could preside over and decide a particular case impartially. Isaac v. Saimon, 14 FSM Intrm. 33, 35-36 (Kos. S. Ct. Tr. 2006).

Property ) Land Commission

    The Kosrae State Land Commission was never a court nor an instrumentality of the Kosrae state judiciary. Isaac v. Saimon, 14 FSM Intrm. 33, 36 (Kos. S. Ct. Tr. 2006).

Courts ) Recusal

    A justice must disqualify himself where he has served in governmental employment and in such capacity expressed an opinion concerning the merits of the particular case in controversy. The presiding Land Court justice’s former position as Land Commissioner and his attendant statutory duties to review, approve and affirm adjudications for determination of ownership of land, including boundary determinations, serve as grounds for disqualification, based upon extrajudicial knowledge. When the presiding justice served in governmental employment as a Kosrae State Land Commissioner and affirmed the land registration team adjudication and determination of the parcel’s boundaries, the presiding justice (as a Land Commissioner) did express an opinion concerning the merits of the parties’ boundary claims. Isaac v. Saimon, 14 FSM Intrm. 33, 36 (Kos. S. Ct. Tr. 2006).

Appellate Review ) Standard of Review ) Civil Cases; Constitutional Law ) Due Process

    When the presiding Land Court justice was required to disqualify himself, his failure to recuse himself was a violation of due process making the Land Court’s decision contrary to law because the Land Court proceeding’s presiding justice failed to recuse himself, and the matter must be remanded to the Kosrae Land Court with instructions and guidance for re-hearing the matter. Isaac v. Saimon, 14 FSM Intrm. 33, 36 (Kos. S. Ct. Tr. 2006).

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COURT’S OPINION

YOSIWO P. GEORGE, Chief Justice:

    This is an appeal from a Decision issued by the Kosrae Land Court on March 6, 2003 for parcel 041-T-04, also known as Finolof in Tafunsak Municipality. Appellant’s brief was filed on January 1, 2004. Appellee’s brief was filed on October 7, 2004. This matter was set for hearing on November 8, 2005. Albert Welly appeared for the Appellant. Clanry Likiaksa appeared on behalf of the Appellee.

    Appellant disputes the determination of boundary for parcel 041-T-04, made by the Kosrae Land Court, as specified in its Memorandum of Decision entered on March 6, 2003. Appellant claims that the Land Court’s evidentiary findings were not based upon substantial evidence. Appellant further claims that the decision of the Land Court was made contrary to law.

Based upon the record in this matter, arguments made at the hearing and applicable law, I find

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in favor of the Appellant. This Memorandum of Decision explains the Court’s decision and reasoning, and remands this matter back to the Kosrae Land Court for further proceedings.

I.  Analysis and Conclusions.

    The provisions of Kosrae State Code, Section 11.614 are applicable to appeals made from a decision entered by the Kosrae Land Court. Pursuant to Section 11.614(5)(b), this Court is required to apply the "substantial evidence rule" to all Land Court decisions. If this Court finds that the Land Court decision was not based upon substantial evidence or that the Land Court decision was contrary to law, this Court must remand the case to the Land Court with instructions and guidance for re-hearing the matter. Kos. S.C. § 11.614(5)(d).

    The Court has carefully reviewed the Kosrae Land Court record for parcel 041-T-04. The record includes documents issued by the former Kosrae State Land Commission and the record for Land Commission proceedings which took place prior to January 2002. Both parties had appeared pro se at the Kosrae State Land Commission and the Kosrae Land Court proceedings.

    The Kosrae Land Court based its findings and decision of boundary for the subject parcel in favor of the Appellees’ claim and against the Appellant’s claim. The Appellant argues that the Land Court’s decision was contrary to law because the presiding justice in the Land Court proceeding was required to recuse himself and failed to do so. The presiding justice formerly served as the Kosrae State Land Commissioner for the proceedings on the subject parcel and approved the Determination of Ownership with boundaries in favor of the Appellees. The Appellant also argues that the Land Court findings on the boundaries for parcel 041-T-04 were not supported by substantial evidence.

    The Court first addresses the disqualification issue raised by the Appellant. The presiding justice served as an Associate Commissioner of the Kosrae State Land Commission in 1992. As Associate Commissioner, he approved and signed the Determination of Ownership for parcel 041-T-04, issued on May 28, 1992. Pursuant to prior applicable law, Commissioners of the Kosrae State Land Commission were required to review the record of the Land Commission proceeding, including findings of fact, opinion and adjudication of the Land Registration Team, and if approved, then affirm the adjudication. Kos. S.C. § 11.608 (repealed). In his former capacity as Associate Commissioner, the presiding justice therefore reviewed the record of the Land Commission proceedings, approved and affirmed of the adjudication of the Land Registration Team, and made the Determination of Ownership for parcel 041-T-04 on May 28, 1992. The presiding justice, in the Land Court proceeding, was therefore required to review and determine the correctness of his own prior decision made as a Land Commissioner. It is this action, the review by the presiding justice of his own prior decision, that Appellants argue was improper and contrary to law.

    The standard of conduct for Kosrae Land Court justices is prescribed in Kosrae State Code, Section 11.608. Justices of the Land Court are required to adhere to the provisions of the Code of Judicial Conduct of the American Bar Association. The Code of Judicial Conduct specifies disqualification requirements in Canon 3, Part E. A justice is required to disqualify himself in all proceedings in which the justice’s impartiality might reasonably be questioned. Canon 3.E(1). See also Kosrae v. Sigrah, 10 FSM Intrm. 654 (Kos. S. Ct. Tr. 2002). The interpretation of Canon 3.E(1) has been addressed by the courts of our Nation and our State. The test for determining whether the impartiality of a justice in a proceeding might reasonably be questioned is whether a reasonable disinterested person, who knows all the circumstances, would have doubts about the justice’s impartiality. FSM v. Skilling, 1 FSM Intrm. 464 (Kos. 1984). The general rule is that the disqualifying factors must be from an extrajudicial source. Tolenoa v. Kosrae, 11 FSM Intrm. 179 (Kos. S. Ct. Tr. 2002). The normal situation in which recusal may be required is when a justice’s extrajudicial

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knowledge, relationship or dealing with a party might be such as to cause a reasonable person to question whether the justice could preside over and decide a particular case impartially. In re Main, 4 FSM Intrm. 255

(App. 1990); Ting Hong Oceanic Enterprises v. Supreme Court, 8 FSM Intrm. 1 (App. 1997).

    Here, the alleged disqualifying factor is based upon an extrajudicial source: the presiding justice’s former position as a Kosrae State Land Commissioner. The Kosrae State Land Commission formerly existed as an agency and instrumentality of the Kosrae State Government. Kos. S.C. tit. 7, § 7.101 and ch. 7 (repealed). The Kosrae State Land Commission was never a court nor an instrumentality of the Kosrae State Judiciary. The Kosrae State Land Commission consisted of the Land Commissioners, pursuant to former Kosrae State Code, Section 7.702 (repealed).

    The presiding justice’s former position as Land Commissioner and his attendant statutory duties to review, approve and affirm adjudications for determination of ownership of land, including determinations of boundaries, serve as grounds for disqualification, based upon extrajudicial knowledge. A justice shall disqualify himself where he has served in governmental employment and in such capacity expressed an opinion concerning the merits of the particular case in controversy. Fu Zhou Fuyan Pelagic Fishery Co. v. Wang Shun Ren, 7 FSM Intrm. 601, 604 (Pon. 1996). Here, the presiding justice served in governmental employment as a Kosrae State Land Commissioner. Through affirming the Land Registration Team adjudication and issuing the Determination of Ownership for parcel 041-T-04 in May 1992, including the determination of boundaries, the presiding justice as a Land Commissioner, did express an opinion concerning the merits of the boundary claims of the parties. Following the decision and application of Canon 3.E in Fu Zhou Fuyan Pelagic Fishery Co., the presiding justice was required to disqualify himself in this matter. His failure to recuse himself from presiding over Land Court Case No. 07-02 was a violation of due process. See Edmond v. Alik, 13 FSM Intrm. 413 (Kos. S. Ct. Tr. 2005); Damarlane v. Pohnpei Legislature, 8 FSM Intrm. 23 (App. 1997).

    Based upon the record and the above analysis, I conclude that the Land Court’s decision in Land Court Case No. 07-02, pertaining to parcel 041-T-04 was contrary to law because the presiding justice in the Land Court proceeding was required to recuse himself and failed to do so. Therefore, this matter must be remanded to the Kosrae Land Court with instructions and guidance for re-hearing the matter.

II.  Judgment.

    Judgment is entered in favor of the Appellant and against the Appellees. The Land Court decision, entered on March 6, 2003, for parcel 041-T-04, also known as Finolof, is vacated and set aside as void.

III.  Order of Remand.

    This matter is now remanded to Kosrae Land Court for further proceedings on parcel 041-T-04. Kosrae Land Court shall hold hearings and issue written findings and a decision on parcel 041-T-04, consistent with the statutory and procedural requirements. The Kosrae Land Court shall issue the decision on parcel 041-T-04, to reflect the ownership and boundaries of the subject parcel. All proceedings shall be conducted according to the following instructions:

1. The Land Court shall provide notice and hold hearings, as required by Kosrae State Code, Title 11, Chapter 6, the KLCRP and General Court Orders.

2. The Land Court shall hear the Appellant, Appellees, and their witnesses on the issue of the boundaries of parcel 041-T-04

3. The Land Court may consider any evidence, including testimony, which was received at the prior hearings, giving appropriate evidentiary weight to those testimonies which were based upon hearsay or not subject to cross examination, and giving appropriate evidentiary weight to documentary evidence which were offered without foundation or authentication.

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4. This matter shall be assigned highest priority by the Land Court, and shall be assigned for hearing and further action by the first Land Court Justice who is available to hear and adjudicate this matter, and who is not disqualified due to prior service as a Land Commissioner, or other grounds.

5. The Kosrae Land Court shall complete all hearings within 120 days, and shall issue its written findings and decision within 120 days after the close of the hearings, as provided by law.

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