FSM SUPREME COURT TRIAL DIVISION

Cite as Berman v. Rosario, et al., 15 FSM Intrm. 337 (Pon. 2007)

[15 FSM Intrm. 337]

MARY BERMAN,

Plaintiff,

vs.

UKOLINO ROSARIO, MARTHA

ROSARIO, and SESKO ROSARIO

dba Sei Sei Store and Martha Rosario Store,

Defendants.

CIVIL ACTION NO. 2004-010

ORDER AND MEMORANDUM

Andon L. Amaraich

Chief Justice

Decided: September 26, 2007

Amended: October 4, 2007

APPEARANCES:

For the Plaintiff:         Mary Berman, Esq., pro se

                                  P.O. Box 163

                                  Kolonia, Pohnpei FM 96941
 

For the Defendants:  Matt Mix, Esq.

                                  Directing Attorney

                                  Micronesian Legal Services Corporation

                                  P.O. Box 129

                                  Kolonia, Pohnpei FM 96941

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HEADNOTES

Custom and Tradition ) Chuuk; Courts ) Recusal

       Under Mortlockese custom, a person would be considered related to his relative’s stepson, but the added generation that results from his relative being another’s step-grandmother ) as opposed to his step-mother ) cuts off the relationship under Mortlockese custom so that in actual fact a person is not considered related to the other. In such circumstances, a judge would not need to disqualify himself since he lacks a relationship to the other. Berman v. Rosario, 15 FSM Intrm. 337, 339 n.1 (Pon. 2007).

Courts ) Recusal

      A Supreme Court Justice must disqualify himself in any proceeding in which his impartiality might reasonably be questioned. Berman v. Rosario, 15 FSM Intrm. 337, 340, 341 (Pon. 2007).

[15 FSM Intrm 338]

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. Berman v. Rosario, 15 FSM Intrm. 337, 341 (Pon. 2007).

Courts ) Recusal

      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. A justice whose extrajudicial statements exhibit a bias towards a party’s counsel must disqualify himself. 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. Berman v. Rosario, 15 FSM Intrm. 337, 341 (Pon. 2007).

Courts ) Recusal

      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 judge’s impartiality. The facts must provide what an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge’s impartiality. Berman v. Rosario, 15 FSM Intrm. 337, 341 (Pon. 2007).

Courts ) Recusal

       A party requesting disqualification must establish that actual bias or prejudice exists that comes from an extrajudicial source. A litigant’s unsupported allegations that the trial judge may have subconscious misgivings is purely speculation, and is insufficient to support the judge’s disqualification. Berman v. Rosario, 15 FSM Intrm. 337, 341 (Pon. 2007).

Courts ) Recusal

      When the judge disqualified himself in another case because of his mistaken belief at the time that his relative was a party’s step-mother; when, although the plaintiff in a second matter moved to disqualify the judge from presiding over that matter, he did not disqualify himself and would not have disqualified himself if he had ruled on the motion, but ultimately reassigned that case for administrative reasons; and when the judge had no relationship of any type with the parties in either case and thus there was no reasonable basis for anyone to question his impartiality in presiding over the case at bar, in which counsel in the other two cases is plaintiff; and when there is no evidence, beyond mere speculation, that the judge might harbor some element of impartiality towards the plaintiff, the judge will deny a request that he disqualify himself. Berman v. Rosario, 15 FSM Intrm. 337, 341-42 (Pon. 2007).

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COURT’S OPINION

ANDON L. AMARAICH, Chief Justice:

      This matter comes before the court on the August 17, 2007, motion of the plaintiff Mary Berman to disqualify me from presiding over this case under 4 F.S.M.C. 124(1). Defendant filed his response on August 24, 2007.

      For the reasons that follow, the motion is denied.

[15 FSM Intrm 339]

A.Background

      On July 29, 2002, I issued an order disqualifying myself from presiding over the wholly unrelated case of Warren v. Pohnpei, Civ. No. 2001-049. I did so because of my relationship with the plaintiff in that case, Gibson Warren, as I understood it to be at the time of the disqualification. The plaintiff in this case, Mary Berman ("Berman"), did not participate in Warren as either a party or a representative of a party. Thereafter, on October 28, 2005, the plaintiff in the case of Smith v. Nimea, Civ. No. 2005-004, moved to disqualify me from presiding over that case based upon my purported relationship with the named defendant in that matter. Berman is counsel for the plaintiff in Smith v. Nimea.

      In seeking to disqualify me from Nimea, Smith alleged that the defendant Fabian Nimea was married to Julie Nimea, who was purportedly the sister of Gibson Warren, the plaintiff in Warren. Smith urged that because I disqualified myself from presiding over Warren based upon my relationship with the plaintiff Gibson Warren, I was also required to disqualify myself from presiding over Nimea based upon my purported relationship with the wife of the defendant Fabian Nimea. As Smith contended in Nimea, "[i]t is believed that Warren Gibson [sic] is Julie Nimea’s brother. . . . Therefore in ordinary circumstances, [Chief Justice Andon L. Amaraich] must also be a close relative of Julie Nimea." Nimea, Civ. No. 2005-004, Pl.’s Mot. Disqualify at 4 (Oct. 28, 2005).

      In Nimea however, I never issued a ruling on the request that I disqualify myself from presiding over that case. Instead, on March 16, 2006, due to administrative concerns, I reassigned Nimea to Associate Justice Martin Yinug. Nimea, Order of Reassignment (Mar. 16, 2006). Smith’s request that I disqualify myself from Nimea was therefore moot. I explained this point in the April 11, 2007 order that I issued in the case of Damarlane v. Pohnpei Legislature, 14 FSM Intrm. 582 (App. 2007), in which I denied a request to disqualify myself based upon my alleged bias against Berman, who is appellant’s

[15 FSM Intrm 340]

counsel in that case. Damarlane sought my disqualification from the Damarlane appeal under 4 F.S.M.C. 124(1), which provides that a Supreme Court Justice shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. In support of this request, Damarlane argued that his counsel’s advocacy on behalf of a client whose interests were adverse to someone who was purportedly my relative by marriage, Fabian Nimea, could in turn influence any decision I made in Damarlane’s appeal. Damarlane further asserted that since his counsel, Berman, is also his wife, and since he and his wife are financially related, issuing an adverse decision against him would impact negatively upon his counsel.

      In denying the requested disqualification in Damarlane, I explained that the mere fact that the appellant’s counsel ) Berman ) was also plaintiff’s counsel in Nimea, had not influenced me, nor otherwise caused me to lose my impartiality towards her. Because there was simply no evidence presented ) beyond mere speculation ) that I might harbor some element of partiality towards Damarlane or Berman, I denied Damarlane’s request that I disqualify myself from participating in Damarlane’s appeal. Damarlane, 14 FSM Intrm. at 585.In the case at bar, Berman is again seeking to disqualify me based upon my alleged bias towards her arising from her advocacy against someone ) Fabian Nimea ) whom she maintains is married to my relative. In doing so, Berman relies upon my disqualification in Warren, as well as the fact that she continues to represent the plaintiff in Nimea.

B.Motion for Disqualification

      In support of effort to disqualify me from the case at bar under 4 F.S.M.C. 124(1), Berman relies on my disposition of a motion in another case in which she is a party. Berman argues that she is "informed and believes" that I intentionally delayed issuing the June 6, 2007 order in Berman v. College of Micronesia, 15 FSM Intrm. 76 (Pon. 2007), which granted the College of Micronesia’s motion for summary judgment, until she had filed a motion for summary judgment on behalf of the plaintiff in Nimea. Pl.’s Mot. Disqualify at 4. The June 6, 2007 order that I issued in Berman v. COM was adverse to Berman. She has not only sought reconsideration of the order, but she has filed a notice of appeal with the appellate division. According to Berman, a reasonable person might believe that the issuance of my June 6, 2007 order in Berman v. COM "appears calculated to send [Berman] a clear message that her advocacy against [my purported] close relative [in Nimea] is greatly disapproved." Pl.’s Mot. Disqualify at 5. Berman does not, however, provide any specific basis as to how she was informed, or even came to believe, that I intentionally delayed scheduling oral argument and issuing an order in Berman v. COM for over a year, or for that matter, any other case, for any inordinate period of time

[15 FSM Intrm 341]

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

       As noted above, a Supreme Court Justice shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. 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 party’s 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 only if a disinterested reasonable person who knows all the circumstances would harbor doubts about the judge’s impartiality. The facts must provide what an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge’s 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 litigant’s unsupported allegations that the trial judge may have subconscious misgivings is purely speculation, and is insufficient to support the judge’s disqualification. Nahnken of Nett v. United States, 6 FSM Intrm. 318, 322 (Pon. 1994).

D. Analysis

      In the case at bar, although Berman 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 Warren. I did so because of my belief at the time that I disqualified myself that my relative was Gibson Warren’s step-mother. Supra, note 1. Although the plaintiff in Nimea 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 Berman asserts. Instead, based upon the reassignment of that case, the motion to disqualify me became moot.

      Although I never issued a ruling on the request that I disqualify myself in Nimea, if I had, I would have denied the motion even assuming that my original understanding about how Gibson Warren was related to my relative was correct. Supra, note 1. Under that original assumption, while I might have had a close relationship with Gibson Warren, that relationship would have been based upon our status as male members of our respective clans under Mortlockese custom. The relationship would not have extended to Julie Nimea, even if she were the sister of Gibson Warren, as alleged by Berman. Now that I have a correct understanding of my relationship to Gibson Warren, no reason whatever exists for my disqualification in Nimea.

      In short, I have no relationship of any type with either Julie Nimea or Fabian Nimea. Thus, I do not believe that there is a reasonable basis for anyone to question my impartiality in presiding over the case at bar. The fact that Berman is the plaintiff here as well as counsel for the plaintiff in Nimea has not caused me to lose my impartiality towards Berman either as a party in this case or as counsel for

[15 FSM Intrm 342]

any party in any case pending before me. There is no evidence ) beyond Berman’s mere speculation ) that I might harbor some element of impartiality towards her. The fact that an order might be issued in a case pending before me at the same time, or approximately the same time, that a motion is filed in another case is coincidental, and does not change my conclusion on the issue of my impartiality. As such, and without any evidence beyond mere speculation as to my purported impartiality against Berman, I deny Berman’s request that I disqualify myself from participating in this matter under 4 F.S.M.C. 124(1).

E. Conclusion

      For the reasons set forth above, Berman’s request that I disqualify myself from this case is hereby denied

___________________________

Footnotes:

1.  I subsequently learned that my disqualification in Warren was unnecessary, because I was mistaken with respect to how I was related to Gibson Warren. The man that I now know to be Gibson Warren’s maternal grandfather, whom I shall refer to as "G", was married twice. I shall refer to his first wife as "W1" and to his second as "W2." I am related to W1. G and W2 had a daughter, who then gave birth to Gibson Warren. Originally, however, I thought that Gibson Warren was the direct offspring of G and W2. If that had been the case, then Gibson Warren would have been my relative W1's stepson, and under Mortlockese custom I would have been considered related to him. The added generation that results from W1 being Gibson Warren’s step-grandmother)as opposed to his step-mother cuts off the relationship under Mortlockese custom so that in actual fact I am not considered related to Gibson Warren.

2.  The Plaintiff’s request for me to disqualify myself from Nimea was made under 4 F.S.M.C. 124(2)(e)(i), (iii) and (iv), which provides that a Supreme Court Justice shall disqualify himself in any proceeding in the following circumstances:

(e)   where he or his spouse, or a person within a close relationship to either of them, or the spouse of such a person is:

(i)   a party to the proceeding, or an officer, director, or trustee of a party;

. . . .

(iii)   known by the Justice to have an interest that could be substantially affected by the outcome of the proceeding; or,

(iv)   to the Justice’s knowledge likely to be a material witness in the proceeding.

3.  Although I ultimately did disqualify myself from participating in the case of Damarlane v. Pohnpei Legislature, P5-2000, I did so because of my participation in the earlier related matter of Damarlane v. Pohnpei Supreme Court, Civ. No. 1994-121.

4.  The Plaintiff has filed similar motions seeking to disqualify me from presiding over other cases in which she is a named party, including Berman v. College of Micronesia, Civ. No. 2002-002, and Berman v. Lambert, Civ. No. 2006-004, as well as cases in which she is representing a party, such as Harden v. Hadley, Civ. No. 2005-027, and IAC v. Iriarte, Civ. No. 2003-023. Although there are other cases pending before me involving Berman, either as a party, Berman v. Pohnpei Legislature, Civ. No. 2005-009, or the representative of a party, Primo v. Refalopei, Civ. No. 1992-044, no motion seeking to disqualify me from those matters has been filed.

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