FSM SUPREME COURT APPELLATE DIVISION

Cite as Etscheit v. Amaraich, 14 FSM Intrm. 597 (App. 2007)

[14 FSM Intrm. 597]

AGNES ETSCHEIT, AGNES ETSCHEIT d/b/a LEOíS APPEAL

STORE, ETSCHEITS ENTERPRISES, ACE

COMMERCIAL, ACE CONSTRUCTION, A-1 FASHION,

RONALD ETSCHEIT, ROBERT ETSCHEIT, JR., and

POHNPEI TRUE VALUE, INC.,

Petitioners,

vs.

HONORABLE ANDON L. AMARAICH,

Respondent, and

TIM McVEY and ERINE McVEY, KEHAU RAMP,

individually and d/b/a POHNPEI ACCOUNTING AND

BOOKKEEPING SERVICES ("PABS"), and

POHNPEI DO IT BEST HARDWARE, INC.,

Respondents Real Parties in Interest.

CASE NO. P1-2006

Civil Action No. 2005-011

Civil Action No. 2005-016

MEMORANDUM OPINION

Decided:  April 23, 2007

[14 FSM Intrm. 598]

BEFORE:

Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court

Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court

APPEARANCES:

For the Petitioners:        Daniel J. Berman, Esq.

                                      Berman OíConnor Mann & Shklov

                                     111 Chalan Santo Papa, Suite 503

                                      Hagatna, Guam   96910

 

For the Respondents:   Andrea S. Hillyer, Esq.

                                     P.O. Drawer D

                                     Kolonia, Pohnpei FM 96941

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HEADNOTES

Mandamus and Prohibition

     The FSM Supreme Court has inherent constitutional power to issue all writs, including writs of mandamus and writs of prohibition. The extraordinary writ of mandamus is used to compel public officials to perform a duty ministerial in nature and not subject to the officialís own discretion while the extraordinary writ of prohibition is used to prevent a trial court from exceeding its jurisdiction and exercising unauthorized judicial or quasi-judicial power. The writs of mandamus and prohibition are similar in that the former commands the trial court to do something, while the latter commands the trial court not to do something. Etscheit v. Amaraich, 14 FSM Intrm. 597, 600 (App. 2007).

Mandamus and Prohibition

     A writ of mandamus or prohibition is an extraordinary remedy, the object of which is not to cure a mere legal error or to serve as a substitute for appeal, but to require an official to carry out a clear, nondiscretionary duty. Such a writ may only force a ministerial act or prevent a clear abuse of power and cannot be used to test or overrule a judgeís exercise of discretion. Mere legal error by a judge, even gross legal error in a particular case, as distinguished from a calculated and repeated disregard of governing rules, does not suffice to support the issuance of a writ of mandamus or prohibition. The issuance of writs is discretionary and must be used with great caution. Etscheit v. Amaraich, 14 FSM Intrm. 597, 600 (App. 2007).

Mandamus and Prohibition

     Only under special circumstances that render the matter rare and exceptional should the FSM Supreme Court appellate division issue a writ of mandamus or prohibition to alter a trial judgeís conduct before the trial court has completed the proceedings and reached a final decision. The finality requirement and its underlying rationale mandate appellate court restraint, and preclude issuance of writs of mandamus and prohibition on an interlocutory basis, except in those rare and exceptional circumstances when the precise requirements for issuance of the writ are met and the appellate court, in its discretion, determines that immediate relief is necessitated. Etscheit v. Amaraich, 14 FSM Intrm. 597, 600 (App. 2007).

Mandamus and Prohibition

     The FSM Supreme Courtís exercise of its power to issue writs of mandamus and prohibition

[14 FSM Intrm. 599]

must be tempered by sober judgment, since such writs are extraordinary remedies. The determination whether to grant a writ of mandamus or prohibition involves the courtís full recognition of the extraordinary nature of the relief requested. Though the power is curative, it is strong medicine and its use must be restricted to the most serious and critical ills. Etscheit v. Amaraich, 14 FSM Intrm. 597, 600 (App. 2007).

Mandamus and Prohibition

     The five elements that must be present in order for the FSM Supreme Court to exercise its discretion to issue a writ of mandamus or prohibition are: 1) the respondent must be a judicial or other public officer; 2) the act to be compelled must be non-discretionary or ministerial; 3) the respondent must have a clear legal duty to perform the act; 4) the respondent must have failed or refused to perform the act; and 5) there must be no other adequate legal remedy available. Each of these five elements must be satisfied. Etscheit v. Amaraich, 14 FSM Intrm. 597, 600 (App. 2007).

Mandamus and Prohibition

     The party seeking a writ of mandamus has the burden of showing that its right to issuance of the writ is clear and indisputable. Since a prerequisite to the issuance of a writ of mandamus or prohibition is the existence of a clear duty that is being violated by the trial court, no writ will issue when the petitioner has not established that the trial court had any duty, much less a clear duty. Etscheit v. Amaraich, 14 FSM Intrm. 597, 600 (App. 2007).

Attorney and Client ) Disqualification of Counsel; Mandamus and Prohibition

     Since a trial courtís decision to disqualify an attorney from participation in a given case is a decision falling within a trial courtís inherent discretionary powers, and since a petition for a writ of mandamus fails when it seeks appellate review that is explicitly beyond the curative parameters of mandamus or prohibition, the petition will be denied. The trial court had no legal duty to admit an attorney in the case, since the challenged disqualification was wholly within the trial courtís discretion. Etscheit v. Amaraich, 14 FSM Intrm. 597, 601 (App. 2007).

Attorney and Client ) Disqualification of Counsel; Mandamus and Prohibition

      An attempt to use a petition for writ of prohibition or mandamus to obtain a preemptory disqualification of an attorney not presently involved in the case is misplaced because, given the nature of the remedy of mandamus and prohibition and the caution exercised in affording it, the right sought to be enforced must be clear and certain. There must be an immediate right to have the act in question performed, and such right must be specific, well defined, and complete, so as not to admit of any reasonable controversy. As such, mandamus or prohibition relief cannot be used as a precaution against future events that may never occur. Etscheit v. Amaraich, 14 FSM Intrm. 597, 601 n.1 (App. 2007).

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COURTíS OPINION

PER CURIAM:

Introduction

      This matter is currently pending in the trial division in Pohnpei. On April 25, 2006, the trial court issued an interlocutory order disqualifying Daniel Berman, Michael Sipos, and their law firms from representing Petitioners in this action. On May 23, 2006, Petitioners filed a Petition for Writ of Mandamus or, in the alternative, Writ of Prohibition requesting this Court to reverse the trial courtís

[14 FSM Intrm. 600]

order disqualifying Daniel Berman and order the trial court to reinstate him as counsel for Petitioners. Respondents and Real Parties In Interest Tim and Erine McVey et al., have answered this Petition. Petitioners also moved this Court to stay proceedings in the trial court until the Petition for Writ is adjudicated.

Writ of Mandamus/Prohibition

      The FSM Supreme Court has inherent constitutional power to issue all writs, including writs of mandamus and writs of prohibition. FSM App. R. 21(a); Nix v. Ehmes, 1 FSM Intrm. 114, 118 (Pon. 1982). The extraordinary writ of mandamus is used to compel public officials to perform a duty ministerial in nature and not subject to the officialís own discretion, id., while the extraordinary writ of prohibition is used to prevent a trial court from exceeding its jurisdiction and exercising unauthorized judicial or quasi-judicial power. Election Commír v. Petewon, 6 FSM Intrm. 491, 497 (Chk. S. Ct. App. 1994). The writs of mandamus and prohibition are similar in that the former commands the trial court to do something, while the latter commands the trial court not to do something. Damarlane v. Pohnpei Supreme Court Appellate Division, 10 FSM Intrm. 116, 120 (Pon. 2001).

       A writ of mandamus or prohibition is an extraordinary remedy, the object of which is not to cure a mere legal error or to serve as a substitution for appeal, but to require an official to carry out a clear, nondiscretionary duty. Senda v. Trial Division, 6 FSM Intrm. 336, 338 (App. 1994). Such a writ may only force a ministerial act or prevent a clear abuse of power and cannot be used to test or overrule a judgeís exercise of discretion. Id. Mere legal error by a judge, even gross legal error in a particular case, as distinguished from a calculated and repeated disregard of governing rules, does not suffice to support the issuance of a writ of mandamus or prohibition. Id. The issuance of writs is discretionary and must be used with great caution. Petewon, 6 FSM Intrm. at 497.

      Only under special circumstances that render the matter rare and exceptional should the appellate division of the FSM Supreme Court issue a writ of mandamus or prohibition to alter the conduct of a trial judge before the trial court has completed the proceedings and reached a final decision. In re Raitoun, 1 FSM Intrm. 561, 562-63 (App. 1984). The finality requirement and its underlying rationale mandate appellate court restraint, and preclude issuance of writs of mandamus and prohibition on an interlocutory basis, except in those rare and exceptional circumstances when the precise requirements for issuance of the writ are met and the appellate court, in its discretion, determines that immediate relief is necessitated. In re Main, 4 FSM Intrm. 255, 257-258 (App. 1990). The FSM Supreme Courtís exercise of its power to issue writs of mandamus and prohibition must be tempered by sober judgment, since it is settled beyond controversy that such writs are extraordinary remedies. Damarlane v. Santos, 6 FSM Intrm. 45, 46 (Pon. 1993). The determination whether to grant a writ of mandamus or prohibition involves the courtís full recognition of the extraordinary nature of the relief requested. Federated Shipping Co. v. Trial Division, 9 FSM Intrm. 270, 272-73 (App. 1999). Though the power is curative, it is strong medicine and its use must be restricted to the most serious and critical ills. Id.

      The five elements that must be present in order for this Court to exercise its discretion to issue a writ of mandamus or prohibition are: 1)   the respondent must be a judicial or other public officer; 2)   the act to be compelled must be non-discretionary or ministerial; 3)   the respondent must have a clear legal duty to perform the act; 4)   the respondent must have failed or refused to perform the act; and 5) there must be no other adequate legal remedy available. Talley v. Timothy, 10 FSM Intrm. 528, 530 (Kos. S. Ct. Tr. 2002). Each of these five elements must be satisfied. Id. The party seeking a writ of mandamus has the burden of showing that its right to issuance of the writ is clear and indisputable. Senda, 6 FSM Intrm. at 338. Since a prerequisite to the issuance of a writ of mandamus or prohibition is the existence of a clear duty that is being violated by the trial court, no writ will issue when the petitioner has not established that the trial court had any duty, much less a clear duty. Gimnang v. Trial

[14 FSM Intrm. 601]

Division, 6 FSM Intrm. 482, 485 (App. 1994).

      The Trial Courtís Disqualification of Petitionersí Counsel is Discretionary and not Subject to, Alteration by Writ of Mandamus of Prohibition.

      A trial courtís decision to disqualify an attorney from participation in a given case is a decision falling within a trial courtís inherent discretionary powers. FSM v. Wainit, 12 FSM Intrm. 172, 177 (Chk. 2003); Office of the Public Defender v. FSM Supreme Court, 4 FSM Intrm. 307, 309 (App. 1990). The Petition fails, for it seeks appellate review that is explicitly beyond the curative parameters of mandamus or prohibition. The trial court had no legal duty to admit Attorney Berman in this case, since the challenged disqualification was wholly within the trial courtís discretion. Accordingly, the second and third requirement for issuance of a writ of mandamus or prohibition as specified in Talley are not met. The Petition is therefore denied.

Stay of Proceedings

      This Court recognizes that Respondents have been able to find and retain replacement counsel subsequent to the trial courtís order. Conversely, it is this Courtís understanding that Petitioners have sought but have been unable to retain replacement counsel. In light of this current inequity, and to protect against any undue prejudice to Petitioners, the Court, pursuant to FSM Civil Rule 62(g), orders a stay of all trial court proceedings in this matter until replacement counsel has entered an appearance on behalf of Petitioners.

Conclusion

      The Petition for Writ fails to satisfy the five requirements for this Court to issue a writ of mandamus or prohibition. The trial courtís disqualification of Petitionersí counsel was a discretionary decision not subject to alteration by a writ of mandamus or prohibition. Accordingly, the Petition for Writ of Mandamus or, in the alternative, Writ of Prohibition is hereby denied. All proceedings in the trial court in this matter are stayed until replacement counsel enters an appearance on behalf of Petitioners.

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Footnotes:

1.   Alleged Errors 1,6,7, and 8 are irrelevant to the relief being sought, i.e., the appointment of Daniel Berman as counsel for Petitioners, and rather are aimed at the failure of the trial court to disqualify Attorney Fred Ramp from representing Respondent Kehau Ramp. This Court agrees with the trial court that this issue is moot as Fred Ramp has unequivocally withdrawn from any participation in this case. In fact, Respondent Ramp is now, along with the remaining Respondents, being represented by Attorney Andrea Hillyer. Petitionersí attempt to use a Petition for Writ to obtain a preemptory disqualification of an attorney not presently involved in the case is misplaced. Given the nature of the remedy of mandamus and prohibition, and the caution exercised in affording it, it is important that the right sought to be enforced be clear and certain. FSM Dev. Bank v. Director of Commerce & Indus., 10 FSM Intrm. 317, 319 (Kos. 2001). There must be an immediate right to have the act in question performed, and such right must be specific, well defined, and complete, so as not to admit of any reasonable controversy. Id. As such, mandamus or prohibition relief cannot be used as a precaution against future events that may never occur. Damarlane v. Pohnpei State Court, 6 FSM Intrm. 561, 563-64 (Pon. 1994).

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