FSM 5 Intrm. 111-113

FSM SUPREME COURT

APPELLATE DIVISION

Cite as Etscheit v. Santos,

5 FSM Intrm. 111 (App. 1991)

[5 FSM Intrm. 111]

ROBERT ETSCHEIT, JR.,

Petitioner,

vs.

HONORABLE EDWEL SANTOS,

Respondent,

vs.

YVETTE ETSCHEIT ADAMS and

RENEE ETSCHEIT VARNER,

Plaintiffs.

FSM APP. P1-1990

ORDER

Decided: July 25, 1991

BEFORE:

Hon. Edward C. King, Chief Justice, FSM Supreme Court

Hon. Richard H. Benson, Associate Justice, FSM Supreme Court Hon. Mamoru Nakamura, Designated Justice, FSM Supreme Court*

*Chief Justice, Supreme Court of the Republic of Palau, on this Court by designation for this case

[5 FSM Intrm. 112]

APPEARANCES:

For the Petitioner: Daniel J. Berman

RUSH, MOORE, CRAVEN, SUTTON,

MORRY & BEH

P.O. Box 1491

Kolonia, Pohnpei FM 96941

For the Respondent: Joses R. Gallen

Pohnpei State Attorney

Pohnpei State

Kolonia, Pohnpei FM 96941

For the Plaintiffs: Fredrick L. Ramp

Attorney-at-Law

P.O. Box 1480

Kolonia, Pohnpei FM 96941

* * * *

HEADNOTE

Appeal and Certiorari; Courts - Recusal

Where an appellate court has held that a trial judge is under a clear and non-discretionary duty to step aside from presiding over a case and the petitioner has a constitutional right to obtain compliance with that duty, all documents issued after the date of the appellate decision are null and void and shall be expunged from the record and the judge shall be enjoined from taking any further action as a judge in the case. Etscheit v. Santos, 5 FSM Intrm. 111, 113 (App. 1991).

* * * *

COURT'S OPINION

PER CURIAM:

On March 25, 1991 this Court held that the Honorable Edwel H. Santos, Pohnpei Supreme Court Chief Justice, who had been presiding as trial judge over Pohnpei Supreme Court Trial Division Civil Action No. 343, was under a "clear, nondiscretionary duty to step aside" and that the petitioner, Robert Etscheit, Jr., had "a constitutional right of due process to obtain compliance with that duty." Etscheit v. Santos, 5 FSM Intrm. 35, 46 (App. 1991).

The petitioner has now returned to this Court asking us to enforce that declaration of law "to avert a miscarriage of justice." The various parties have filed memoranda concerning Mr. Etscheit's renewed petition to this Court,

[5 FSM Intrm. 113]

and all parties have waived oral argument.

We have reviewed carefully the actions of the trial judge taken after March 25, 1991 and have concluded that those actions were in violation of the decision of March 25 and of the petitioner's constitutional rights, and therefore must be set aside.

NOW THEREFORE IT IS HEREBY ORDERED that:

1. All orders and documents issued after March 25, 1991 by the Honorable Edwel H. Santos as trial judge in Civil Action No. 343 are null and void and shall be expunged from the record.

2. The Honorable Edwel H. Santos is hereby prohibited and enjoined from taking any further action as a judge in connection with Civil Action 343, including the transfer of that case to another forum, PROVIDED HOWEVER that he shall, in his capacity as Pohnpei State Chief Justice, and no later than August 5, 1991, assign Civil Action 343 to a justice of the Pohnpei Supreme Court trial division, to permit the litigation to proceed without further delay and to assure compliance with this order and the decision of March 25, 1991.


	FSM SUPREME COURT APPELLATE DIVISION Cite as Etscheit v. Santos, 5 FSM Intrm. 111 (App. 1991) [5 FSM Intrm. 111] ROBERT ETSCHEIT, JR., Petitioner, vs. HONORABLE EDWEL SANTOS, Respondent, vs. YVETTE ETSCHEIT ADAMS and RENEE ETSCHEIT VARNER, Plaintiffs. FSM APP. P1-1990 ORDER Decided: July 25, 1991 BEFORE: Hon. Edward C. King, Chief Justice, FSM Supreme Court Hon. Richard H. Benson, Associate Justice, FSM Supreme Court Hon. Mamoru Nakamura, Designated Justice, FSM Supreme Court* Chief Justice, Supreme Court of the Republic of Palau, on this Court by designation for this case [5 FSM Intrm. 112]* APPEARANCES: For the Petitioner: Daniel J. Berman RUSH, MOORE, CRAVEN, SUTTON, MORRY & BEH P.O. Box 1491 Kolonia, Pohnpei FM 96941 For the Respondent: Joses R. Gallen Pohnpei State Attorney Pohnpei State Kolonia, Pohnpei FM 96941 For the Plaintiffs: Fredrick L. Ramp Attorney-at-Law P.O. Box 1480 Kolonia, Pohnpei FM 96941 * * * * HEADNOTE Appeal and Certiorari; Courts - Recusal Where an appellate court has held that a trial judge is under a clear and non-discretionary duty to step aside from presiding over a case and the petitioner has a constitutional right to obtain compliance with that duty, all documents issued after the date of the appellate decision are null and void and shall be expunged from the record and the judge shall be enjoined from taking any further action as a judge in the case. Etscheit v. Santos, 5 FSM Intrm. 111, 113 (App. 1991). * * * * COURT'S OPINION PER CURIAM: On March 25, 1991 this Court held that the Honorable Edwel H. Santos, Pohnpei Supreme Court Chief Justice, who had been presiding as trial judge over Pohnpei Supreme Court Trial Division Civil Action No. 343, was under a "clear, nondiscretionary duty to step aside" and that the petitioner, Robert Etscheit, Jr., had "a constitutional right of due process to obtain compliance with that duty." Etscheit v. Santos, 5 FSM Intrm. 35, 46 (App. 1991). The petitioner has now returned to this Court asking us to enforce that declaration of law "to avert a miscarriage of justice." The various parties have filed memoranda concerning Mr. Etscheit's renewed petition to this Court, [5 FSM Intrm. 113] and all parties have waived oral argument. We have reviewed carefully the actions of the trial judge taken after March 25, 1991 and have concluded that those actions were in violation of the decision of March 25 and of the petitioner's constitutional rights, and therefore must be set aside. NOW THEREFORE IT IS HEREBY ORDERED that: 1. All orders and documents issued after March 25, 1991 by the Honorable Edwel H. Santos as trial judge in Civil Action No. 343 are null and void and shall be expunged from the record. 2. The Honorable Edwel H. Santos is hereby prohibited and enjoined from taking any further action as a judge in connection with Civil Action 343, including the transfer of that case to another forum, PROVIDED HOWEVER that he shall, in his capacity as Pohnpei State Chief Justice, and no later than August 5, 1991, assign Civil Action 343 to a justice of the Pohnpei Supreme Court trial division, to permit the litigation to proceed without further delay and to assure compliance with this order and the decision of March 25, 1991.