CHUUK STATE SUPREME COURT TRIAL DIVISION

Cite as Nakamura, et al. v. Sharivy, 15 FSM Intrm. 409 (Chk. S. Ct. Tr. 2007)

[15 FSN Intem. 409]

JACK NAKAMURA and FITIES POU,

Plaintiffs,

vs.

NOBU SHARIVY,

Defendant,

NANCY AIZAWA, on behalf of SUSUMU

AIZAWA, and JOHN AISER ENGICHY,

Intervenors.

CSSC CIVIL CASE NO. 75-2003

ORDER DENYING DEFENDANT’S MOTION TO DISQUALIFY

Midasy O. Aisek

Associate Justice

Hearing:  October 15, 2007

Decided:  October 30, 2007

[15 FSM Intrm 410]

APPEARANCES:

For the Plaintiffs:        Ben K. Enlet

                                   Frank Casiano

                                   P.O. Box 1650

                                   Weno, Chuuk FM 96942
 

For the Defendant:     Fredrick A. Hartman

                                   P.O. Box 453

                                   Weno, Chuuk FM 96942
 

For the Intervenors:   Jack Fritz

                                   P.O. Box 788

                                   Weno, Chuuk FM 96942

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HEADNOTES

Civil Procedure ) Motions

      Even though failure to timely oppose a motion is deemed consent to the motion, a court still needs good, proper grounds before it may grant the motion. Nakamura v. Sharivy, 15 FSM Intrm. 409, 412 (Chk. S. Ct. Tr. 2007).

Courts ) Recusal

       A motion for a Chuuk State Supreme Court justice’s disqualification must be supported by affidavit(s) establishing a factual basis for the motion. Mere argument by counsel, be it oral or set forth in a brief, is not the basis on which motions to disqualify are determined. It is the movant’s burden to go beyond wide-ranging speculation or conclusions and show a factual basis for recusal by admissible competent evidence. Nakamura v. Sharivy, 15 FSM Intrm. 409, 412 (Chk. S. Ct. Tr. 2007).

Courts ) Recusal

      A trial judge is justified in denying a motion for recusal on the basis of the moving party’s failure to file an affidavit explaining the factual basis for the motion. Nakamura v. Sharivy, 15 FSM Intrm. 409, 412 (Chk. S. Ct. Tr. 2007).

Courts ) Recusal

      An application for a trial judge’s disqualification must be filed at the earliest opportunity. This rule will be strictly applied against a party who, having knowledge of the facts constituting a disqualification, does not seek to disqualify the judge until an unfavorable ruling has been made. Nakamura v. Sharivy, 15 FSM Intrm. 409, 412 (Chk. S. Ct. Tr. 2007).

Courts ) Recusal

      A motion to recuse may be considered untimely when it is brought many weeks after the deadline for pretrial motions and when the movant has known for months which justice would be presiding over the trial. Nakamura v. Sharivy, 15 FSM Intrm. 409, 412 (Chk. S. Ct. Tr. 2007).

Courts ) Recusal

      By Chuuk statute, a disqualification motion filed after trial has begun must be denied unless there is a showing of good cause for filing it at a later time. Nakamura v. Sharivy, 15 FSM Intrm. 409, 412 (Chk. S. Ct. Tr. 2007).

[15 FSM Intrm 411]

Courts ) Recusal

      A Chuuk State Supreme Court trial justice must be disqualified when the justice’s impartiality might reasonably be questioned including when he or his spouse, or a person within a close relationship to either of them, or the spouse of such person, is a party to the proceeding. A close relationship means a person within the third degree of relationship. Nakamura v. Sharivy, 15 FSM Intrm. 409, 413 (Chk. S. Ct. Tr. 2007).

Courts ) Recusal

      In order to obtain a justice’s disqualification based upon Chk. S.L. No. 190-08, section 22(2)(d)(i), the moving party must establish by admissible evidence that the alleged relationship is within the third degree of relationship. It is not sufficient for disqualification that a party show that a justice is related to a party or a party’s spouse solely by virtue of their membership in the same clan. Nakamura v. Sharivy, 15 FSM Intrm. 409, 413 (Chk. S. Ct. Tr. 2007).

Courts ) Recusal

      A motion to recuse is deficient and will be denied when it was filed without an accompanying affidavit as required by law because without an affidavit establishing the degree of relationship between the justice and the parties, the court has no basis to grant the motion, and when there has been no attempt to comply with the statutory requirement that good cause be shown for filing the motion after trial has already begun. Nakamura v. Sharivy, 15 FSM Intrm. 409, 413 (Chk. S. Ct. Tr. 2007).

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COURT’S OPINION

MIDASY O. AISEK, Associate Justice:

      On October 15, 2007, I heard oral argument on Defendant Nobu Nobuo Sharivy’s motion to disqualify Associate Justice Machime O’Sonis from presiding in the above captioned matter pursuant to Section 22 of the Chuuk State Judiciary Act, Chk. S.L. No. 190-08. I took the motion under advisement.

Procedural Background

1.  On May 8, 2003, Plaintiff Jack Nakamura filed his complaint for injunctive and declaratory relief. The case was originally assigned to Justice Wanis R. Simina.

2.  On May 27, 2003, Plaintiff Nakamura filed his motion to disqualify Justice Simina from presiding over the case and, on February 11, 2004, the motion was granted.

3.  The case was reassigned to Justice Keske S. Marar who recused himself for a conflict of interest.

4.  The case was again reassigned, to Justice O’Sonis, who issued a notice, dated July 24, 2006, for trial to begin on August 21, 2006.

5.  On August 21, 2006, trial began. Counsel for Sharivy presented his case-in-chief before the court recessed. The completion of the trial was postponed indefinitely after Justice O’Sonis became ill.

6.  On August 23, 2006, Sharivy filed a notice of substitution of counsel.

[15 FSM Intrm 412]

7.  On October 18, 2006, Sharivy’s new counsel filed Sharivy’s motion to disqualify Justice O’Sonis.

Defendant Sharivy’s Motion to Disqualify Justice O’Sonis

      In his motion, Sharivy asserts that presiding Justice O’Sonis is a relative of Plaintiff Jack Nakamura and uncle to Defendant Eiken Erwin. In support, Sharivy makes general reference to the Chuuk State Judiciary Act of 1990 and states that there is "a potential for conflict" between Eiken Erwin "for the Masalu Clan" and Associate Justice O’Sonis. Motion at 1. No affidavit was provided in support of the motion.

The Law

      Sharivy’s motion to disqualify Justice O’Sonis was unopposed. Even though failure to timely oppose a motion is deemed consent to the motion, a court still needs good, proper grounds before it may grant the motion. Beal Bank S.S.B. v. Maras, 11 FSM Intrm. 351, 353 (Chk. 2003); Kelly v. Lee, 11 FSM Intrm. 116, 117 (Chk. 2002); Medabalmi v. Island Imports Co., 10 FSM Intrm. 32, 34 (Chk. 2001).

A. A Motion for Disqualification Must be Supported by an Admissible Affidavit Establishing a Factual Basis for the Motion.

      A motion for disqualification of a Chuuk State Supreme Court justice must be supported by affidavit(s) establishing a factual basis for the motion. Kupenes v. Ungeni, 12 FSM Intrm. 252, 259 (Chk. S. Ct. Tr. 2003); In re Disqualification of Justice, 7 FSM Intrm. 278, 279 (Chk. S. Ct. Tr. 1995). Mere argument by counsel, be it oral or set forth in a brief, is not the basis on which motions to disqualify are determined. Kupenes, 12 FSM Intrm. at 259; Disqualification of Justice, 7 FSM Intrm. at 279; Jano v. King, 5 FSM Intrm. 266, 268 (Pon. 1992). It is the movant’s burden to go beyond wide-ranging speculation or conclusions and show a factual basis for recusal by admissible, competent evidence. Jano, 5 FSM Intrm. at 268.

     A trial judge is, therefore, justified in denying a motion for recusal on the basis of failure of the moving party to file an affidavit explaining the factual basis for the motion. Skilling v. FSM, 2 FSM Intrm. 209, 216-17 (App. 1986); see also Allen v. Kosrae, 13 FSM Intrm. 55, 59 (Kos. S. Ct. Tr. 2004) (A motion to disqualify a judge that is not supported by an affidavit which explains the factual basis for the motion is insufficient and will be denied.).

B. An Application for a Trial Judge’s Disqualification must be Filed at the Earliest Opportunity and if it is Filed after Trial has Begun, there must be a Showing of Good Cause.

      An application for a trial judge’s disqualification must be filed at the earliest opportunity. Tolenoa v. Kosrae, 11 FSM Intrm. 179, 184 (Kos. S. Ct. Tr. 2002). This rule will be strictly applied against a party who, having knowledge of the facts constituting a disqualification, does not seek to disqualify the judge until an unfavorable ruling has been made. Id. A motion to recuse may be considered untimely when it is brought many weeks after the deadline for pretrial motions and where the movant has known for months which justice would be presiding over the trial. Shrew v. Kosrae, 10 FSM Intrm. 533, 535 (Kos. S. Ct. Tr. 2002).

      By statute, a disqualification motion filed after trial has begun must be denied unless there is a showing of good cause for filing it at a later time. Chk. S.L. No. 190-08, § 22(5); Hartman v. Bank of Guam, 10 FSM Intrm. 89, 95-96 (App. 2001); Ting Hong Oceanic Enterprises v. Supreme Court, 8 FSM Intrm. 1, 5 (App. 1997).

[15 FSM Intrm 413]

C. Disqualification is Not Required Unless there is a Third Degree Relationship.

      A Chuuk State Supreme Court trial justice must be disqualified when the justice’s impartiality might reasonably be questioned including where he or his spouse, or a person within a close relationship to either of them, or the spouse of such person is a party to the proceeding. Chk. S.L. No. 190-08, § 22(2)(d)(i); Kristoph v. Emin, 10 FSM Intrm. 650, 652 (Chk. S. Ct. Tr. 2002). A "close relationship" for the purposes of Section 22(2)(d)(i) means a person within the third degree of relationship as set forth in the U.S. Model Code of Judicial Conduct. Kristoph, 10 FSM Intrm. at 652-53.

      In order to obtain a justice’s disqualification based upon Chk. S.L. No. 190-08, section 22(2)(d)(i), the moving party must therefore establish by admissible evidence that the alleged relationship is within the third degree of relationship. Kristoph, 10 FSM Intrm. at 653. It is not sufficient for disqualification that a party show that a justice is related to a party or a party’s spouse solely by virtue of their membership in the same clan. Id.

      When it is impossible to determine from an affidavit whether the degree of relationship is within the third degree of consanguinity, the court must deny a motion to disqualify. Kristoph, 10 FSM Intrm. at 654.

Application of Law to Facts

      Sharivy’s motion is deficient because it was filed without an accompanying affidavit as required by Chk. S.L. No. 190-08, § 22(5). Without an affidavit establishing the degree of relationship between Justice O’Sonis and Messrs. Nakamura or Erwin, the court has no basis to grant the motion. The court also finds that the motion is deficient because there has been no attempt to comply with the statutory requirement that good cause be shown for filing the motion after trial has already begun.

Conclusion

      Based on the foregoing, Defendant Nobu Nobuo Sharivy’s motion to disqualify Justice O’Sonis is denied.

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