FSM SUPREME COURT APPELLATE DIVISION

Cite as Damarlane v. Pohnpei Legislature, 14 FSM Intrm. 582 (App. 2007)

[14 FSN Intrm. 582]

KADALINO DAMERLANE,

Appellant,

vs.

POHNPEI LEGISLATURE,

Appellee.

APPEAL CASE NO. P5-2000

ORDER RE: DISQUALIFICATION

Andon L. Amaraich

Chief Justice

Decided: April 11, 2007

APPEARANCE:

For the Appellant:   Mary Berman, Esq.

                                P.O. Box 163

                                Kolonia, Pohnpei   FM   96941

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HEADNOTES

Courts ) Recusal

      In the absence of a showing of any actual partiality or extrajudicial bias under 4 F.S.M.C. 124(1), a judge properly meets his obligation to hear the case. The type of partiality at which 4 F.S.M.C. 124(1) is aimed is extrajudicial bias, or bias resulting from information received by the judge outside of the judicial proceeding or proceedings in which the judge has participated. Damarlane v. Pohnpei Legislature, 14 FSM Intrm. 582, 584 (App. 2007).

Courts ) Recusal

      A justice whose extrajudicial statements exhibit a bias towards a partyís counsel must disqualify himself. Damarlane v. Pohnpei Legislature, 14 FSM Intrm. 582, 584 (App. 2007).

Courts ) Recusal

      While a trial judge has a range of discretion in making his determination about whether he will disqualify himself, he cannot use a standard of mere suspicion. A charge of appearance of partiality must first have a factual basis. Disqualification is then appropriate only if a disinterested reasonable person who knows all the circumstances would harbor doubts about the judgeís impartiality. The facts must provide what an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judgeís impartiality. Damarlane v. Pohnpei Legislature, 14 FSM Intrm. 582, 584-85 (App. 2007).

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Courts ) Recusal

      A party requesting disqualification must establish that actual bias or prejudice exists that comes from an extrajudicial source. A litigantís unsupported allegations that the trial judge may have subconscious misgivings is purely speculation, and is insufficient to support the judgeís disqualification. Damarlane v. Pohnpei Legislature, 14 FSM Intrm. 582, 585 (App. 2007).

Courts ) Recusal

      When there is simply no evidence ) beyond mere speculation ) that a justice might harbor some element of partiality towards the appellant or his counsel, as such, and without any evidence beyond mere speculation as to my purported partiality, the justice must deny the appellantís request under 4 F.S.M.C. 124(1) to disqualify himself from participating in the matter, but recusal may be granted on other grounds. Damarlane v. Pohnpei Legislature, 14 FSM Intrm. 582, 585 (App. 2007).

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COURTíS OPINION

ANDON L. AMARAICH, Chief Justice:

       This matter comes before the Court on the Appellantís motion to disqualify me from sitting as one of the three appellate justices on this appeal under 4 F.S.M.C. 124(1). The other two justices on this appellate panel are Associate Justices Martin Yinug and Dennis Yamase of this Court.

      There is no opposition to the Appellantís motion.

      Although the Appellantís motion to disqualify me from sitting on this appeal lacks merit, and is being denied on that basis, I am nonetheless disqualifying myself from participating in this appeal based upon my prior participation in the case of Damarlane v. Pohnpei Supreme Court, Civ. No. 1994-121. Accordingly, Associate Justice Ready Johnny shall serve as the third justice on this appellate panel along with Associate Justices Martin Yinug and Dennis Yamase.

A.   Background

       This is the second occasion for this appeal to come before this Court. Previously, this Court heard the case of Damarlane v. Pohnpei Legislature, App. No. P5-1994, which concerned an appeal from an opinion issued by the Pohnpei Supreme Courtís appellate division in Appeal No. 4-91. The appellate panel for that case consisted of the Honorable Richard H. Benson, Associate Justice of the FSM Supreme Court, the Honorable Martin J. Yinug, Associate Justice of the FSM Supreme Court, and Ramon G. Villagomez, Temporary Justice, FSM Supreme Court.

      In that appeal, this Court determined that the Pohnpei Supreme Courtís dismissal of Appeal No. 4-91, which arose from a final judgment entered by the Pohnpei Supreme Courtís trial division in PCA 106-87, should be vacated and the appeal reinstated on the docket of the Pohnpei Supreme Courtís appellate division. Damarlane v. Pohnpei Legislature, 8 FSM Intrm. 23 (App. 1997).

      While Damarlane v. Pohnpei Legislature, App. No. P5-1994, was pending before this Courtís appellate division, the Appellant petitioned the trial division of this Court for a writ of mandamus

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directed to the appellate division of the Pohnpei Supreme Court, requiring it to issue a written opinion in support of its dismissal of the Appeal No. 4-91, so that the record before this Court would be complete, thereby allowing the appeal to proceed forward. Damarlane v. Pohnpei Supreme Court, Civ. No. 1994-121 (Pet. Writ Mandamus Sept. 2, 1994).

      On October 27, 1994, the trial division of this Court issued an order denying the Appellantís petition for a writ of mandamus. Damarlane v. Pohnpei State Court, 6 FSM Intrm. 558 (Pon. 1994). Because the Pohnpei Supreme Courtís appellate division issued a written opinion in Appeal No. 4-91 shortly after the petition for a writ of mandamus was filed with this Courtís trial division, the petition for a writ of mandamus was deemed moot.

      I acted as the presiding justice in Damarlane v. Pohnpei Supreme Court, Civ. No. 1994-121. Under Section 2 of Article XI of the FSM Constitution, "[n]o justice may sit with the appellate division in a case heard by him in the trial division." Accordingly, because I presided over the case of Damarlane v. Pohnpei Supreme Court, Civ. No. 1994-121, I did not sit on the appellate panel in the case of Damarlane v. Pohnpei Legislature, App. No. P5-1994.

      On remand, after the Pohnpei Supreme Courtís appellate division issued yet another opinion in Appeal No. 4-91, dismissing that case, the Appellant lodged the instant appeal, which is scheduled for oral arguments before this Courtís appellate division on April 20, 2007.

B.   Motion for Disqualification

      In support of his motion to disqualify me from sitting on this appeal, the Appellant asserts that I previously disqualified myself from participating in two unrelated matters. First, the Appellant asserts that I disqualified myself from participating in the case of Warren v. Pohnpei, Civ. No. 2001-049, because the party plaintiff, Gibson Warren, was closely related to me. Second, the Appellant maintains that I then disqualified myself from participating in the case of Smith v. Nimea, Civ. No. 2005-004, because the defendant in that case was married to the sister of Gibson Warren.

      According to the Appellant, because his attorney in this appeal is also the plaintiffís counsel in Smith v. Nimea, I might harbor feelings ) "even if only subconsciously" ) towards his attorney arising from her advocacy against my relative. The Appellant argues that this could, in turn, influence any decision I make in this appeal. The Appellant asserts that since his counsel is also his wife, and since he and his wife are financially related, issuing a decision against the Appellant would impact negatively upon his counsel.

C.  Disqualification under 4 F.S.M.C. 124(1)

      In the absence of a showing of any actual partiality or extrajudicial bias under 4 F.S.M.C. 124(1), a judge properly meets his obligation to hear the case. Hartman v. Bank of Guam, 10 FSM Intrm. 89, 98 (App. 2001). The type of partiality at which 4 F.S.M.C. 124(1) is aimed is extrajudicial bias, or bias resulting from information received by the judge outside of the judicial proceeding or proceedings in which the judge has participated. Hartman, 10 FSM Intrm. at 96. A justice whose extrajudicial statements exhibit a bias towards a partyís counsel must disqualify himself. Damarlane v. Pohnpei Legislature, 8 FSM intrm. 23, 27-28 (App. 1997).

      On the other hand, while a trial judge has a range of discretion in making his determination about whether he will disqualify himself, he cannot use a standard of mere suspicion. FSM v. Wainit, 11 FSM Intrm. 424, 432 (Chk. 2003); Ting Hong Oceanic Enterprises v. FSM, 8 FSM Intrm. 1, 6-7 (App. 1997). A charge of appearance of partiality must first have a factual basis. Disqualification is then appropriate

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only if a disinterested reasonable person who knows all the circumstances would harbor doubts about the judgeís impartiality. The facts must provide what an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judgeís impartiality. Wainit, 11 FSM Intrm. at 432.

      A party requesting disqualification must establish that actual bias or prejudice exists that comes from an extrajudicial source. FSM v. Ting Hong Oceanic Enterprises, 7 FSM Intrm. 644, 649 (Pon. 1996). A litigantís unsupported allegations that the trial judge may have subconscious misgivings is purely speculation, and is insufficient to support the judgeís disqualification. Nahnken of Nett v. United States, 6 FSM Intrm. 318, 322 (Pon. 1994).

      In the case at hand, although the Appellant refers to my prior disqualification in two other cases involving parties to whom I am purportedly related, I actually only disqualified myself from presiding over the case of Warren v. Pohnpei, Civ. No. 2001-049. I did so because of a customary Mortlockese relationship that I had with Gibson Warren, who is neither a member of my family or the clan which I am a member of.

      Although the Plaintiff in the case of Smith v. Nimea, Civ. No. 2005-004 moved to disqualify me from presiding over that matter, I ultimately reassigned that case to Associate Justice Martin Yinug for administrative reasons. In reassigning that case, I did not disqualify myself from participating in that case, as the Appellant asserts. Instead, based upon the reassignment of that case, I considered the motion to disqualify me as moot.

      In short, the mere fact that the Appellantís counsel in the matter at hand is also the counsel for the Plaintiff in Smith v. Nimea, Civ. No. 2005-004, has not influenced me, or otherwise caused me to lose my impartiality towards the Appellantís counsel. There is simply no evidence ) beyond mere speculation ) that I might harbor some element of partiality towards the Appellant or his counsel. As such, and without any evidence beyond mere speculation as to my purported partiality, I must deny the Appellantís request that I disqualify myself from participating in this matter under 4 F.S.M.C. 124(1).

      Nonetheless, and based upon my prior participation in the case of Damarlane v. Pohnpei Supreme Court, Civ. No. 1994-121, I am disqualifying myself from this appeal, as required by Section 2 of Article XI of the FSM Constitution.

      Accordingly, and as set forth in the amended notice of oral argument issued by the Clerk of Court, the panel for this appeal consists of Associate Justices Martin Yinug, Dennis Yamase and Ready Johnny, with Associate Justice Yinug serving as the presiding justice.

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Footnotes:

1.   Justice Villagomez, now deceased, was, at the time, an Associate Justice of the Supreme Court of the Commonwealth of the Northern Mariana Islands.

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