CHUUK STATE SUPREME COURT APPELLATE DIVISION

Cite as Ruben v. Petewon, 14 FSM Intrm. 141 (Chk. S. Ct. App. 2006)

[14 FSM Intrm. 141]

MORIA RUBEN and HERSIN RUBEN,

Petitioners,

vs.

ASSOCIATE JUSTICE JOHN PETEWON,

Respondent,

CHONSY TIU HARTMAN, CHUUK STATE

GOVERNMENT, SAMUEL HARTMAN, MAIKAWA

PICHO, on behalf of the Wito Clan of Iras, and

ROKURO STEPHEN,

Real Parties in Interest-Respondents.

CIVIL APPEAL NO. 03-2005

ORDER

Argued: March 7, 2006

Decided: March 7, 2006

Entered: March 8, 2006

[14 FSM Intrm. 142]

BEFORE:

        Hon. Benjamin Rodriguez, Temporary Justice*

        Hon. Repeat Samuel, Temporary Justice**

                *Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei

                **Attorney at Law, Weno, Chuuk

APPEARANCES:

For the Petitioners:   Stephen V. Finnen, Esq.

                                    P.O. Box 1450

                                    Kolonia, Pohnpei   FM   96941

For the Respondent:   John Petewon, pro se

                                      Chuuk State Supreme Court

                                      P.O. Box 187

                                      Weno, Chuuk   FM   96942

For Real Party in Interest-Respondent:   Fredrick A. Hartman

                           (Hartman)                        P.O. Box 222

                                                                    Weno, Chuuk   FM   96942

For Real Party in Interest-Respondent:   Tony Rosokow

                          (Chuuk)                              Assistant Attorney General

                                                                      P.O. Box 189

                                                                      Weno, Chuuk   FM   96942

* * * *

HEADNOTES

Courts ) Judges

    When an oral motion to disqualify one of the panel members was made, the other two members constitute the deciding majority in an appellate case and can decide a motion to disqualify the third member. Ruben v. Petewon, 14 FSM Intrm. 141, 143-44 & n.1 (Chk. S. Ct. App. 2006).

Courts ) Judges

    The Chuuk Constitution does not include a provision allowing the Legislature to add further qualifications to those required for temporary appellate justices. FSM citizenship is not a constitutional requirement to be a temporary Chuuk State Supreme Court appellate justice. The Legislature thus cannot add it by statute. When the Constitution sets forth the requirements for office and does not authorize the Legislature to add further requirements, it is barred from doing so. Ruben v. Petewon, 14 FSM Intrm. 141, 144, 145 (Chk. S. Ct. App. 2006).

Courts ) Judges

    The Legislature cannot add qualifications for appellate division justices to those found in the Chuuk Constitution, article VII, section 5(b). Thus the statutory requirements that a temporary appellate justice be either a graduate of an accredited law school in that jurisdiction or have at least twenty years experience practicing law, is contrary to the Chuuk Constitution and cannot be enforced. Ruben v. Petewon, 14 FSM Intrm. 141, 145 (Chk. S. Ct. App. 2006).

[14 FSM Intrm. 143]

Courts ) Recusal; Mandamus and Prohibition

    A writ of prohibition directed to a Chuuk State Supreme Court trial division justice is not a matter that the justice is barred from hearing when it was not heard by such justice in the Chuuk State Supreme Court trial division, and in an FSM Supreme Court case, the justice was careful not to decide anything on the merits. Not having expressed an opinion on the merits or done more than issue a preliminary injunction, a justice is not precluded from sitting on a panel considering a petition for writ of prohibition. Ruben v. Petewon, 14 FSM Intrm. 141, 145 (Chk. S. Ct. App. 2006).

Civil Procedure ) Injunctions

    When the only decision a judge made was whether a preliminary injunction should issue to maintain the status quo until the Chuuk state court could resolve the matter, although in deciding that, the judge had to make some determination of the likelihood of success on the merits of the parties seeking the preliminary injunction, the merits were not decided nor were any determinations of the parties’ rights made. In the normal course of events, such a ruling never precludes a judge from making a later ruling on the merits, that is, whether a permanent injunction and final judgment should issue. Ruben v. Petewon, 14 FSM Intrm. 141, 145 (Chk. S. Ct. App. 2006).

Courts ) Recusal

    A justice is barred from sitting on a case where he has personal knowledge of disputed evidentiary facts, but knowledge that does not stem from an extrajudicial source is not disqualifying. Ruben v. Petewon, 14 FSM Intrm. 141, 145-46 (Chk. S. Ct. App. 2006).

* * * *

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 with 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 and so is disqualified from sitting on the panel at all; 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. The third contention is also 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. Following the procedure used in In re Failure of Justice to Resign, 7 FSM Intrm. 105 (Chk. S. Ct. App. 1995) (procedure not mentioned in reported opinion) when an oral motion to disqualify one of the panel members was made, the other two remaining panel members heard argument on whether Temporary Justice Dennis K.

[14 FSM Intrm. 144]

Yamase should be disqualified.(Contention number one above).

    The respondent justice then orally amended his motion to include one further ground ) that as a United States citizen Justice Yamase is ineligible to sit on any Chuuk State Supreme Court appellate division panel because, in his view, only FSM citizens can sit on an appellate panel. The respondent justice also orally moved for the two remaining panel members to recuse themselves if the situation applied to them if they were not either a graduate of an accredited law school in that jurisdiction or had at least twenty years experience practicing law, as required by section 13 of the Judiciary Act of 1990, Chk. S.L. No. 190-08, § 13, which section 36(2) of the same Act applies to temporary appellate justices.

    Before we, the remaining panel members, could determine whether Justice Yamase was disqualified, we first had to determine whether we should grant the respondent justice’s oral motion for us to recuse ourselves. We concluded that the oral motion had to be denied. The Chuuk State Supreme Court appellate division previously rejected the contention that the qualifications in section 13 could be applied to temporary appellate division justices. Cholymay v. Chuuk State Election Comm’n, 10 FSM Intrm. 145, 151-52 (Chk. S. Ct. App. 2001). No grounds for overruling that prior appellate decision or its reasoning were argued or shown. Since that previous decision is well-reasoned, it is set out here:

[S]ection 36(2) of the Judiciary Act . . . states in pertinent part that: "A temporary justice appointed under this Section [to an appellate appeal] shall meet the requirements of Section 13 of this Act and Section 9 of Article VII of the Constitution except for the ‘birth’ and ‘residency’ requirements of Section 9 of Article VII of the Constitution." Chk. S.L. No. 190-08, § 36(2). Article VII, section 9 states that:

       No person is eligible to serve as the Chief Justice or as an Associate Justice unless at least 35 years of age, was a born Chuukese, has been a resident of the State of Chuuk for at least 25 years, is a citizen of the Federated States of Micronesia, and has never been convicted of a felony. Other qualifications may be prescribed by statute.

Chk. Const. art. VII, § 9. The qualifications listed in section 9 for Chuuk State Supreme Court justices are not the same as those the Constitution requires for Chuuk State Supreme Court temporary appellate justices, which are as follows:

To complete an appellate panel, the Chief Justice may appoint as temporary Justices, for the limited purpose of hearing the appeal, a justice of the Supreme Court of the Federated States of Micronesia, a judge of a court of another state of the Federated States of Micronesia, or a qualified attorney in the State of Chuuk.

Chk. Const. art. VII, § 5(b). Unlike section 9, section 5(b) does not include a provision allowing the Legislature to add further qualifications to those required for temporary

[14 FSM Intrm. 145]

appellate justices. . . . FSM citizenship is not a constitutional requirement to be a temporary Chuuk State Supreme Court appellate justice. The Legislature thus cannot add it by statute. When the Constitution sets forth the requirements for office and does not authorize the Legislature to add further requirements, it is barred from doing so.

Cholymay, 10 FSM Intrm. at 151-52 (citations omitted). The Legislature therefore cannot add qualifications for appellate division justices under Judiciary Act sections 36(2) and 13 to those found in the Chuuk Constitution, article VII, section 5(b). Thus the statutory requirements that a temporary appellate justice be either a graduate of an accredited law school in that jurisdiction or have at least twenty years experience practicing law, Chk. S.L. No. 190-08, § 13, is contrary to the Chuuk Constitution and cannot be enforced. We therefore denied the oral motion to recuse ourselves. Next we turned to the portion of the written motion to disqualify Justice Yamase.

    The respondent justice’s contention that a non-FSM citizen cannot sit on an appellate is based on the same reasoning we, and the Cholymay court, rejected ) that Judiciary Act sections 13 and 36(2) prohibit it. The Cholymay court held that:

FSM citizenship is not a constitutional requirement to be a temporary Chuuk State Supreme Court appellate justice. The Legislature thus cannot add it by statute. When the Constitution sets forth the requirements for office and does not authorize the Legislature to add further requirements, it is barred from doing so. (We do note, however, that most of those the Constitution lists as eligible are likely to be FSM citizens, although, at the time the Chuuk Constitution was framed, both FSM Supreme Court justices were non-citizens.) We therefore held that the statutory requirement that Chuuk State Supreme Court temporary appellate justices be FSM citizens is contrary to the Constitution and cannot be enforced.

Cholymay, 10 FSM Intrm. at 152. No grounds have been shown to overrule this controlling appellate holding. The contention that FSM Supreme Court Justice Yamase’s citizenship bars him from sitting on a Chuuk State Supreme Court appellate panel is thus without merit.

    The remaining ground bears more scrutiny. It cannot be said that this appellate proceeding (a writ of prohibition directed to a Chuuk State Supreme Court trial division justice) is a matter that the justice is barred from hearing because it was "heard by such justice in the [Chuuk State Supreme Court] trial division," Chk. Const. art. VII, § 5(b). Justice Yamase never heard any of the cases in the Chuuk State Supreme Court trial division that are involved in this petition.

    In FSM Supreme Court Civil Action No. 2005-1018, Justice Yamase was careful not to decide anything on the merits. The only decision he made was whether a preliminary injunction should issue to maintain the status quo until the Chuuk state court could resolve the matter. Ruben v. Petewon, 13 FSM Intrm. 383 (Chk. 2005). Although in deciding that, Justice Yamase had to make some determination of the likelihood of success on the merits of the parties seeking the preliminary injunction, the merits were not decided nor were any determinations of the parties’ rights made. In the normal course of events, such a ruling never precludes a judge from making a later ruling on the merits, that is, whether a permanent injunction and final judgment should issue. Analogously, not having expressed an opinion on the merits or done more than issue a preliminary injunction in FSM Civil Action No. 2005-1018, Justice Yamase is not precluded from sitting on this panel considering a petition for writ of prohibition.

    The respondent justice also contended that Justice Yamase was disqualified because FSM Civil Action No. 2005-1018 gave him personal knowledge of the case. A justice is barred from sitting on

[14 FSM Intrm. 146]

a case where he has "personal knowledge of disputed evidentiary facts." Chk. S.L. No. 190-08, § 22(2)(a). Knowledge that does not stem from an extrajudicial source is not disqualifying. Bualuay v. Rano, 11 FSM Intrm. 139, 148 (App. 2002). Thus any knowledge Justice Yamase may have gained in FSM Civil Action No. 2005-1018 is not disqualifying because it was not extrajudicial.

    Accordingly, we denied the oral motion to recuse ourselves and we denied the written motion, amended orally, to disqualify FSM Supreme Court Associate Justice Dennis K. Yamase.

__________________________

Footnotes:

1.  The respondent justice also contended that the two remaining panel members could not decide the motion because an appellate panel must have three members. Acceptance of this contention would create an unworkable situation. Any litigant could paralyze an appellate proceeding by moving to disqualify a panel member and then requiring one or more appointments of temporary appellate justices to rule on the disqualification motion. This cannot be so. At any rate, two members constitute the deciding majority in an appellate case. Chk. Const. art. VII, § 5(b) ("[d]ecision shall be by concurrence of a majority of the Justices sitting on the appellate panel"). Other appellate courts, when reduced to two members have still functioned to issue necessary orders. See, e.g., Damarlane v. United States, 7 FSM Intrm. 52, 53 (Pon. S. Ct. App. 1995).

* * * *