FSM 3 Intrm. 092-101

A fundamental precept of judicial independence is that the judiciary must not be dependent upon other branches of government in order to carry out judicial responsibilities. Article VI, section 8 of the Kosrae Constitution expressly confirms that the judicial branch is to control its own administration. Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 92, 96 (Kos. S. Ct. Tr. 1987).

The Kosrae Constitution contemplates that justices of the FSM Supreme Court may decide cases which arise within Kosrae and fall under the original jurisdiction of the Kosrae State Court. In addition, the Kosrae Constitution vests in the Kosrae Chief Justice the power to include the resources and justices of the FSM Supreme Court as resources of the Kosrae State Court, insofar as that is consistent with the duties of the FSM Supreme Court under the FSM Constitution. Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 92, 97 (Kos. S. Ct. Tr. 1987).

There is a substantial state interest in assuring that land disputes are decided fairly because of the fundamental role that land plays in Micronesia. Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 92, 98 (Kos. S. Ct. Tr. 1987).

A claim that decision makers in a land adjudication were biased raises serious statutory and constitutional issues and is entitled to careful consideration. Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 92, 99 (Kos. S. Ct. Tr. 1987).

Analysis of a claim of bias of a decision maker begins with a presumption that decision makers are unbiased. The burden is on the challenger to show a conflict of interest or some other specific reason for disqualification. Specific facts, not mere conclusions, are required in order to rebut the presumption. Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 92, 99 (Kos. S. Ct. Tr. 1987).

When the charges of prejudice of a decision maker are too conclusory, vague, and lacking in specificity, then they do not bring into question the presumption of impartiality. Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 92, 100 (Kos. S. Ct. Tr. 1987).

There are varying degrees of familial relationships and Micronesian legislative bodies have consistently instructed the courts that not every family relationship requires disqualification. An affidavit, stating that a decision maker is a relative of a party, but not saying whether he is a near relative and failing to set out the degree of relationship, is insufficient to constitute a claim of statutory violation. Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 92, 100 (Kos. S. Ct. Tr. 1987).

This is an appeal by the heirs of Kun Mongkeya from a decision of the Kosrae Land Commission determining that heirs of Allen Mackwelung are the owners of certain land known as Yekula in Tafunsak municipality, Kosrae.2

For the reasons discussed in this opinion, an additional court hearing will be required to determine whether land commissioners and registration team members who participated in the Land Commission adjudication should have abstained from doing so because of their familial relationship with the heirs

The first challenge raised by the heirs Of Kun Mongkeya relates to Kosrae State Chief Justice Harry Skilling's appointment of me to serve as a trial judge for the Kosrae State Court in this appeal.

When this litigation began, the Kosrae State Court had not yet been established. The case fell within the jurisdiction of the Trust Territory High Court and Chief Justice Harry Skilling was counsel for Allen Mackwelung. After the Kosrae State Court was organized and Harry Skilling assumed his new duties, the heirs of Kun Mongkeya moved to disqualify him from presiding over the case. Chief Justice Skilling granted that motion on October 30, 1985 and assigned the case to then Justice Pro Tempore Lyndon Cornelius. However Justice Cornelius had previously served as trial counselor for Micronesian Legal Services Corporation, counsel for the Mongkeya family. He concluded that he also was unable to preside over the litigation. In any event, Justice Cornelius' term as justice pro tempore has now expired. For these reasons, during March 1986 Chief Justice Skilling requested me to preside over the case on behalf of the Kosrae State Court.

The Mongkeya heirs object, pointing to sections 2, 3, and 4 of article VI of the Kosrae Constitution. Those sections provide that appointment of the Kosrae chief justice and associate justices is made by the governor, with advice and consent of three-fourths of the senators. Appellants contend that the only power the Kosrae chief justice has to appoint justices is that provided in article VI, section 5 of the Kosrae Constitution, authorizing him to request retired justices to serve temporarily.

Under the extant facts, appellants' approach would present the Kosrae State Court with rather profound problems. Presently, Chief Justice Harry Skilling is the only justice of the Kosrae State Court. There apparently are no retired justices. In those cases where Chief Justice Skilling believes it inappropriate for him to preside over a particular case, appellants' approach would narrow his options to two courses of action, each of which is distinctly undesirable if not cataclysmic.

One possibility is to disqualify himself and simply announce that there is no justice available who could hear the case. This would effectively render the judiciary incapable of carrying out its judicial powers for such a case. Parties to such a civil action would be deprived of whatever rights they may have to obtain a judicial response to a dispute which falls within the Court's constitutional jurisdiction. For criminal cases in which the chief justice is disqualified, the ripple effect would extend to the furthest ranges of law enforcement. The judiciary would be impotent, unable to authorize confinement or any other punitive action. This, in turn, would effectively prevent the executive branch from enforcing the criminal law.

The sole alternative for Chief Justice Skilling would be to invoke the rule of necessity. See FSM v. Skilling, 1 FSM Intrm. 464, 470-71 (Kos. 1984), discussing the rule of necessity, and United States v. Will, 429 U.S. 200, 101

S. Ct. 471, 66 L. Ed. 2d 392 (1980). Under this approach, he would preside over cases in which he would normally be disqualified. His action could be justified as necessary to carry out the judicial function in such cases. This case is a good example of why that second option, although perhaps preferable to the first alternative, is also perilous and to be avoided if possible.

As already mentioned, Chief Justice Skilling once served as counsel for one of the parties in this very litigation. In doing so, he likely became privy to confidential information which is not part of the evidentiary record, but which both parties might suspect would influence the decision. Moreover, if as chief justice he were to decide in favor of his former clients, it is difficult to imagine that the other party would accept such a determination with equanimity and without suspicion. The reputation of Chief Justice Skilling and the Kosrae State Court for fairness, integrity and impartiality would surely be brought into question.

An additional consideration also bears heavily against appellants' interpretation. A fundamental precept of judicial independence is that the judiciary must not be dependent upon other branches of government in order to carry out judicial responsibilities. J. Cratsley, Inherent Powers of the Courts 3 (1980) (judiciaries must have "all powers reasonably required to enable a court to perform efficiently its judicial functions to protect its dignity, independence and integrity, and to make its lawful actions effective."). The drafters of the Kosrae Constitution recognized the importance of this tenet. The Kosrae Constitution expressly confirms that the judicial branch is to control its own administration:

The chief justice is the chief administrator of the State judicial system. The administration of the State judicial system, including personnel, property, finance and budget matters, is independent of the Legislature and Executive. The Chief Justice shall submit an annual budget to the Legislature.

Kos. Const. art. VI, § 8. If this court were to accept appellants' position that Chief Justice Skilling, who has disqualified himself in response to appellants' motion, now has no authority to appoint any justice to preside over the case, the judiciary would be rendered incapable of carrying out its constitutionally assigned mission for this case until the governor appoints, and the legislature confirms, another justice. Kos. Const. art. VI, § 1. This would place in the other two branches of the state government control over whether the judiciary has the capacity to carry out its judicial functions in this category of cases.

A careful reading of the Kosrae Constitution reveals that the framers of the Constitution never intended such a drastic or rigid structure as is urged by the appellants. The framers recognized the need for, and furnished, administrative flexibility by allowing the Kosrae State Court to call on the FSM Supreme Court for support. Providing that "decisions of the state court may be appealed to the appellate division of the Supreme Court of the

Federated States of Micronesia," the Constitution effectively includes the Federated States of Micronesia Supreme Court as part of the court decision making structure of the State of Kosrae. Kos. Const. art. VI, § 6. This is consistent with the Constitution of the Federated States of Micronesia, which provides that the FSM Supreme Court may review on appeal any decision of the highest court of a state if the state constitution permits. FSM Const. art. XI, § 7. The next sentence of the Kosrae Constitution goes on to provide that, "The courts of the State constitute a unified judicial system for operation and administration."

The Kosrae Constitution, then, contemplates that justices of the FSM Supreme Court may decide cases which arise within Kosrae and fall under the original jurisdiction of the Kosrae State Court. In addition, the Kosrae Constitution vests in the Kosrae chief justice the power to include the resources and justices of the Supreme Court of the Federated States of Micronesia as resources of the Kosrae State Court, insofar as that isconsistent with the duties of the FSM Supreme Court under the FSM Constitution.

Acceptance of Chief Justice Skilling's appointment in this case is entirely consistent with the plan outlined by the FSM Congress for the justices of the FSM Supreme Court. The FSM Judiciary Act of 1979 provides that:

The justices of the Supreme Court shall make themselves available, to the extent not inconsistent with the proper performance of their duties as Supreme Court Justices, for appointment as temporary judges of State or District courts or assessors on matters of law on State courts.

For all of the above reasons, I conclude that Chief Justice Skilling has power under the Kosrae Constitution to appoint an FSM Supreme Court justice to serve from time to time as a justice of the Kosrae State Court so long as acceptance of such appointments is not inconsistent with the FSM Supreme Court duties of the appointed justice.

Appellants also contend that various members of the Land Registration Team and the Land Commissioners who made the determination of ownership at issue here either improperly failed to disqualify themselves, or acted wrongfully even after they were disqualified.

4. The determination is based on testimony by a disqualified land registration team. Inus Albert was disqualified as a team member after our claim that he was prejudiced. However, before, during and after the hearing he continued to communicate to the other team members, as well as making prejudiced remarks in public against our claim. Another team member was Harold Edmond. He was also clearly prejudiced, but he was not disqualified over our motion. Harold Edmond communicated frequently with Inus Albert during the hearing regarding the case. The Senior Land Commissioner, who wrote the findings and conclusion in the case, is a relative of Allen Mackwelung's (defendant herein) daughter.

Appellant's brief, contending that the decision of the Land Commission violates due process, contains the only other allegations concerning bias. "[S]everal members of the Land Commission team as well as the Land Commissioners are related to appellee. Some of these people were disqualified from deciding this case but continued to communicate with team members and made prejudicial remarks." App. Br. 8.

Land plays a fundamental and unique role in the lives of Micronesians. The special importance of land here is in part traceable to its scarcity. The Federated States of Micronesia consists of numerous relatively small islands scattered across a vast expanse of ocean. Land is also uniquely significant in Micronesia, however, because it is so thoroughly intertwined with social structures in Micronesia. A body such as the [Land Commission] mandated to decide who will be permitted to use land holds an awesome power indeed.

Basic notions of fair play, as well as the Constitution, require that such significant decisions be made openly and after giving appropriate opportunity for participation by the public and interested parties. A [Land Commission], of all administrative agencies in Micronesia, must be scrupulous in developing fair procedures and zealous in recognizing those decisions which require exercise of discretion and call for public participation and observation.

The statute concerning Land commission adjudication contains provisions designed to assure the fairness of those proceedings. The Kosrae State Code calls for disqualification from the adjudication of any land registration team member or any land commissioner who "has an interest in the claim, or is a near relative of a party having an interest." KC 11.602(2). The due process clauses of the Constitutions of Kosrae and of the Federated States of Micronesia both furnish additional protections against biased adjudicators. Kos. Const. art. II, § 1(b); FSM Const. art. IV, § 3; see also Suldan v. FSM (II), 1 FSM Intrm. 339, 362 (Pon. 1984).

In this case some thought apparently already has been given to the claim of bias. The Trust Territory High Court originally had jurisdiction of this case. The Palsis affidavit was filed in 1984 in an attempt to persuade that court to set aside the Land Commission's decision and hear the case anew.

The Trust Territory High Court denied that motion for trial de novo. It appears then that the contention of bias has been considered and rejected in this litigation. Unfortunately, however, the record does not establish this fact conclusively, for the motion was denied in one sentence, without explanation.

Out of what is perhaps an excess of caution this Court has independently reviewed the claims of bias. In so doing, however, the Court has applied several principles commonly employed by courts for such claims. These principles are designed to winnow out frivolous or speculative attacks against decision makers and their decisions.

Analysis begins with a presumption that decision makers are unbiased. Suldan v. FSM (II), 1 FSM Intrm. 339, 362 (Pon. 1983). The burden is on the challenger to show a conflict of interest or some other specific reason for disqualification. Specific facts, not mere conclusions, are required in order to rebut the presumption. Applying these principles, we find that most of appellants' allegations fall far short of the requisite specificity. For

example, two persons are labeled as "prejudiced" or "clearly prejudiced" but no factual basis whatever is offered in support of those conclusions. There are also charges that these persons "communicated frequently," and that one of them, Inus Albert, after his disqualification, "continued to communicate with other team members" and made "prejudicial remarks in public." Yet nothing is said about the nature of the communications or the content of the "prejudicial remarks." Such charges are too conclusory, vague and lacking in specificity to bring into question the presumption of impartiality.

Similarly, the assertion concerning Associate Land Commissioner Kun Sigrah is apparently unconnected to the determination of ownership which the appellants challenge here. The determination is signed only by Mitchell K. Aaron as the Senior Land Commissioner and by Claude H. Phillip, as Land Commissioner. Nothing indicates that Commissioner Sigrah took any part in the determination.

The same is true of the allegations concerning familial relationships between Allen Mackwelung and the Governor's wife and the Lieutenant Governor. There is simply no showing that the Governor, the Governor's wife, or the Lieutenant Governor were involved in any way in the decisions.

The lone assertion which furnishes grounds for concern is that "The Senior Commissioner, who wrote the findings and conclusion in the case, is a relative of Allen Mackwelung's (defendant herein) daughter."4 It should be understood that even this kind of allegation is inadequate and should be rejected in future cases, because the degree of relationship is not stated.

There are of course various degrees of familial relationships and Micronesian legislative bodies have consistently instructed the courts that not every family relationship requires disqualification. For example, the FSM Judiciary Act of 1979 requires disqualification of a justice on the basis of "close relationship," not just any relationship, to a person involved in litigation. 4 F.S.M.C. 124(2)(e). Similarly, both the Trust Territory Code, which was in effect at the time of the deliberations concerning this land, and the current Kosrae Code, provide that no member of the decision making team may be a "near relative" of any person having an interest in the land at issue.

However because of the substantial state interest in assuring the fairness of land adjudications, because familial relationship has been specifically recognized by the Kosrae State Legislature as furnishing a basis for disqualification, because the Court has not previously spelled out the

requirements for an affidavit seeking disqualification, and because the allegedly related Senior Land Commissioner is claimed to have played a key role in this decision, it seems appropriate here to grant the appellants an opportunity to establish whether there has been a statutory violation. A hearing will therefore be held in this case for the limited purpose of receiving and considering evidence as to whether any person who participated in the adjudication at issue here was indeed a "near relative" of a party as specified in the statute.

The Office of the Clerk will set this case for a hearing to determine whether persons who adjudicated this claim in the Land Commission proceedings should have refrained from doing so because of their familial relationship with the heirs of Allen Mackwelung.

1. Edward C. King, Chief Justice of the Federated States of Micronesia Supreme Court, was designated by Kosrae State Court Chief Justice Harry Skilling to serve as a Kosrae State Court Associate Justice in this case.

2. The land involved includes parcel numbers 004-T-09 and 004-T-10, and all the remaining unsurveyed part of Yekula, as shown in the Kosrae Land commission's "Property Survey Sketch No. 0082-T-01."

3. Two versions of the Palsis affidavit are in the court file. Both indicate they were signed by Nena Palsis on July 17, 1984 in the presence of a notary public. However these otherwise apparently identical affidavits contain different statements concerning the Senior and Associate Land Commissioner. One affidavit is as set forth above. The other says: "The Senior Land Commissioner, who wrote the findings and conclusion in the case, is a relative of Allen Mackwelung's [sic] (defendant herein). The Associate Land Commissioner is married to Allen's daughter."