KOSRAE STATE COURT TRIAL DIVISION

Cite as Kosrae v. Nena, 14 FSM Intrm. 70 (Kos. S. Ct. Tr. 2006)

[14 FSM Intrm. 70]

STATE OF KOSRAE,

Plaintiff,

vs.

MARCUS J. NENA,

Defendant.

CRIMINAL CASE NO. 101-05

ORDER DENYING MOTION FOR RECUSAL; ORDER TO SET TRIAL

Yosiwo P. George

Chief Justice

Hearing: February 6, 2006

Decided: February 9, 2006

APPEARANCES:

For the Plaintiff:  Paliknoa Welly, 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

    It is a judgeís duty not to disqualify himself unless he believes that there are proper and reasonable grounds therefor. The grounds for disqualification of a Kosrae state justice are provided in the Model Code of Judicial Conduct. Kosrae v. Nena, 14 FSM Intrm. 70, 71 (Kos. S. Ct. Tr. 2006).

Courts ) Recusal

    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. Kosrae v. Nena, 14 FSM Intrm. 70, 71 (Kos. S. Ct. Tr. 2006).

[14 FSM Intrm. 71]

Courts ) Recusal

    When the justice did not hear or observe any of the defendantís alleged actions, either concerning the charged offenses, or relating to the alleged crash into the electric pole causing an island-wide power outage; when he did not mention the defendantís identity or name; and when he did not make any statement which suggested bias or prejudice against the defendant, but did reference the island-wide power outage, which the justice and all persons with electrical service on the island suffered and which is unrelated to the offenses that the defendant has been charged with, the exposure to an power outage, without more, cannot form the basis for the justiceís disqualification and the justiceís disqualification is not required. Kosrae v. Nena, 14 FSM Intrm. 70, 72 (Kos. S. Ct. Tr. 2006).

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COURTíS OPINION

YOSIWO P. GEORGE, Chief Justice:

    On January 30, 2006, Defendant filed a Motion for Recusal. The State filed an Opposition on February 3, 2006. A hearing was held on February 2, 2006 and continued on February 6, 2006. After hearing from the parties, I took the matter under advisement. This Order sets forth my ruling and reasoning.

    Defendant seeks recusal of the Presiding Justice based upon a statement made by the Justice at a hearing in another criminal case, Kosrae State v. Wicklon Phillip. At the Wicklon Phillip hearing, off the record, the Presiding Justice inquired of the prosecutor how the State determines which cases were to be filed and not filed. The Justice referenced an incident where a person ran his vehicle into an electric pole, causing an island-wide power outage. The identity or name of the person who ran his vehicle into an electric pole was not mentioned at that hearing. The identity or name of the Defendant was not mentioned at that hearing.

    Defendant argues that the Justiceís reference to this incident must necessarily refer to the Defendant in this matter, because there has been no other recent incidents involving a crash into an electric pole and resulting in a power outage. Defendant argues that the Justiceís inquiry and comment indicates that the Justice has extrajudicial personal knowledge of disputed evidentiary facts concerning the proceeding, and that recusal is required under the Model Code of Judicial Conduct, Cannon 3E(1).

    The State opposes the Motion for Recusal, arguing that Defendant has not shown any bias or prejudice of the Presiding Justice. The State further argues that a matter of general public knowledge or speculation does not constitute the extrajudicial knowledge contemplated by Cannon 3E(1). Finally, the State argues that the Presiding Justice did not inquire about the identity of the person alleged to have crashed into the electric pole, but only inquired generally as to how cases are timed for filing of the information.

    It is a judgeís duty not to disqualify himself unless he believes that there are proper and reasonable grounds therefor. Tolenoa v. Kosrae, 11 FSM Intrm. 179 (Kos. S. Ct. Tr. 2002). The grounds for disqualification of a Kosrae State Justice are provided in the Model Code of Judicial Conduct, Canon 3.E. Specific instances of grounds for disqualification are listed in Canon 3.E(1).

    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 Commín, 11 FSM Intrm. 133 (Kos. S. Ct. Tr. 2002). The application of Canon 3.E(1)(a) was discussed in the case of Kosrae v. Langu, 13 FSM Intrm. 269 (Kos. S. Ct. Tr. 2005).

[14 FSM Intrm. 72]

    In the Langu case, the Presiding Justice, at his home, heard glass being broken on the subject night at the nearby school. The defendant was ultimately charged with offenses related to the breaking of the glass on the subject night at the school. In that case, the Court determined that the Presiding Justiceís hearing of the breaking of glass on the night in question at the nearby school constituted personal knowledge of disputed evidentiary facts concerning the proceeding, pursuant to the Model Code of Judicial Conduct, Canon 3.E.(1)(a). [Langu, 13 FSM Intrm. at 272-73.] The Presiding Justice recused himself from hearing the matter.

    Here, the Presiding Justice did not hear or observe any alleged actions of the Defendant. The Presiding Justice did not hear or observe any alleged actions of the Defendant concerning the charged offenses, or relating to the alleged crash into the electric pole. The Presiding Justice did not reference the identity or name of the Defendant. The Presiding Justice did not make any statement which suggested bias or prejudice against the Defendant.

    The Presiding Justice did reference the power outage, which was island-wide. The Presiding Justice and all persons with electrical service on the island of Kosrae suffered the power outage. The existence of the power outage is an undisputed fact, which is unrelated to the offenses that the Defendant has been charged with. Without more, exposure to an island-wide power outage cannot form the basis for disqualification of a justice.

    The alleged crash into the electrical pole is also unrelated to the offenses that the Defendant has been charged with. The alleged crash of a vehicle into the electrical pole took place on the only main road in Kosrae, which connects all the villages. It is inevitable that Justices, court staff, the legal community and the general public will view the scenes of roadside accidents while driving on the main road. Without more, the viewing of an accident scene cannot by utilized as the sole basis for disqualification of a Justice.

    The Presiding Justiceís inquiry did not identify or name the Defendant as related to the power outage or the accident involving the electrical pole. Therefore, this statement cannot form the basis for disqualification. The Presiding Justice did not make any statement indicating any prejudice or bias against the Defendant. Based upon these reasons, disqualification of the Presiding Justice is not required. Defendantís Motion for Recusal is denied. The Chief Clerk shall set this matter for trial on the next available calendar.

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