FSM 6 Intrm. 045-047

A request for mandamus so as to avoid a long and costly appeal does not present rare and exceptional circumstances so as to warrant issuance of a writ of mandamus. Damarlane v. Santos, 6 FSM Intrm. 45, 47 (Pon. 1993).

This matter is before me on petitioner's application for a writ of mandamus. Petitioner seeks a writ from this Court compelling the Chief Justice of the Pohnpei Supreme Court to cancel certain orders issued in the matter of Pedrino Walter v. Kadalino Damarlane, P.C.A. No. 86-92. These orders were allegedly issued after a request for the Chief Justice's recusal was made and the Chief Justice recused himself without stating his reasons on the record for doing so. Petitioner also requests mandamus requiring the Chief Justice to transfer the case to a judge whose recusal has not already been requested. The case has allegedly been assigned to Associate Justice Kohler, whose recusal was previously requested on grounds of prejudice and bias. Finally, petitioner requests mandamus to compel the Pohnpei Supreme Court to order discovery by Mr. Walter or dismiss the case against Mr. Damarlane.

A motion for a stay of the state court proceedings pending action by this Court and a motion for respondents' default have also been filed. No appearance by respondents has been made. As a result, respondents' default has been entered by the Clerk of Court.

It is well settled that "the traditional use of writs of mandamus is to compel public officials to perform some clear duty which is ministerial in nature, that is, which is not subject to the discretion or judgment of the official." Nix v. Ehmes, 1 FSM Intrm. 114, 118 (Pon. 1982). That this Court has the general power to issue writs of mandamus is beyond controversy. 4 F.S.M.C. 117. However, exercise of such power must be tempered by sober judgment, for it is equally settled that "[t]he writ of mandamus 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 non-discretionary duty." In re Raitoun, 1 FSM Intrm. 561, 562 (App. 1984). The Court in Raitoun made clear that "[o]nly where special circumstances render the matter rare and exceptional should be Appellate Division issue a writ to alter the conduct of a trial judge before the trial court has completed proceedings and reached a final decision." Id. at 562-63.

The instant petition presents a matter where this Court is called upon to alter the conduct of a trial judge in the state court before that court has completed proceedings and reached a final decision in a case. In light of this Court's precedents, I find the pertinent inquiry to be limited to whether or not special circumstances exist so as to render the matter rare and exceptional. For the


	THE SUPREME COURT OF THE FEDERATED STATES OF MICRONESIA Cite as Damarlane v. Santos , 6 FSM Intrm. 45 (Pohnpei 1993) [6 FSM Intrm. 45] *KADALINO DAMARLANE,* *Petitioner,* *vs.* *CHIEF JUSTICE EDWEL SANTOS, POHNPEI STATE COURT,* *and PEDRINO WALTER,* *Respondents.* CIVIL ACTION NO. 1993-017 MEMORANDUM OF DECISION Andon L. Amaraich Associate Justice Decided: April 19, 1993 APPEARANCES: For the Petitioner: Mary Berman, Esq. P.O. Box 163 Kolonia, Pohnpei FM 96941 For the Respondents: Kevin Shea (Edwel Santos, C.J., State Attorney General Pohnpei Supreme Court) Office of the Pohnpei Attorney General Kolonia, Pohnpei 96941 (Pedrino Walter) Pro se * * * * HEADNOTES Mandamus That the FSM Supreme Court has the general power to issue writs of mandamus is beyond controversy. 4 F.S.M.C. 117. However, exercise of such power must be tempered by sober judgment, for it is equally settled that the writ of mandamus 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 non-discretionary duty. Damarlane v. Santos, 6 FSM Intrm. 45, 46 (Pon. 1993). Mandamus When a justice is called upon to alter the conduct of a trial judge in a state court before that court has completed proceedings and reached a final decision in a case, the pertinent inquiry is [6 FSM Intrm. 46] whether or not special circumstances exist so as to render the matter rare and exceptional for issuance of a writ of mandamus. Damarlane v. Santos, 6 FSM Intrm. 45, 46-47 (Pon. 1993). Mandamus A request for mandamus so as to avoid a long and costly appeal does not present rare and exceptional circumstances so as to warrant issuance of a writ of mandamus. Damarlane v. Santos, 6 FSM Intrm. 45, 47 (Pon. 1993). * * * * COURT'S OPINION ANDON L. AMARAICH, Associate Justice: This matter is before me on petitioner's application for a writ of mandamus. Petitioner seeks a writ from this Court compelling the Chief Justice of the Pohnpei Supreme Court to cancel certain orders issued in the matter of Pedrino Walter v. Kadalino Damarlane, P.C.A. No. 86-92. These orders were allegedly issued after a request for the Chief Justice's recusal was made and the Chief Justice recused himself without stating his reasons on the record for doing so. Petitioner also requests mandamus requiring the Chief Justice to transfer the case to a judge whose recusal has not already been requested. The case has allegedly been assigned to Associate Justice Kohler, whose recusal was previously requested on grounds of prejudice and bias. Finally, petitioner requests mandamus to compel the Pohnpei Supreme Court to order discovery by Mr. Walter or dismiss the case against Mr. Damarlane. A motion for a stay of the state court proceedings pending action by this Court and a motion for respondents' default have also been filed. No appearance by respondents has been made. As a result, respondents' default has been entered by the Clerk of Court. Although respondents have defaulted in this matter, I nonetheless choose to rule on the merits of the petition because of the significant issue which it raises. I. WRITS OF MANDAMUS It is well settled that "the traditional use of writs of mandamus is to compel public officials to perform some clear duty which is ministerial in nature, that is, which is not subject to the discretion or judgment of the official." Nix v. Ehmes, 1 FSM Intrm. 114, 118 (Pon. 1982). That this Court has the general power to issue writs of mandamus is beyond controversy. 4 F.S.M.C. 117. However, exercise of such power must be tempered by sober judgment, for it is equally settled that "[t]he writ of mandamus 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 non-discretionary duty." In re Raitoun, 1 FSM Intrm. 561, 562 (App. 1984). The Court in Raitoun made clear that "[o]nly where special circumstances render the matter rare and exceptional should be Appellate Division issue a writ to alter the conduct of a trial judge before the trial court has completed proceedings and reached a final decision." Id. at 562-63. The instant petition presents a matter where this Court is called upon to alter the conduct of a trial judge in the state court before that court has completed proceedings and reached a final decision in a case. In light of this Court's precedents, I find the pertinent inquiry to be limited to whether or not special circumstances exist so as to render the matter rare and exceptional. For the [6 FSM Intrm. 47] following reasons, I find that such special circumstances do not exist. II. APPLICATION Petitioner's request for mandamus seeks "to avoid a long and costly appeal on grounds of the denial of Mr. Damarlane's procedural rights." Petition for Writ of Mandamus at 4 (Mar. 17, 1993). While it is generally desirable to avoid drawn out proceedings, the Court must remain ever mindful of its jurisdiction and not encroach upon the authority of the state courts to adjudicate matter properly before them. The matter before the Pohnpei Supreme Court is one between two citizens of Pohnpei State.1 Normally, this Court would not have jurisdiction to hear the matter at all. While this Court's authority to issue writs of mandamus is unquestioned, such writs should not have the effect of overruling judicial action taken by a state judge in a state matter, absent extraordinary circumstances. Petitioner is not without unexhausted remedies. A final decision of the state court trial division may be appealed to that court's appellate division and ultimately to the appellate division of the FSM Supreme Court, where issues concerning the FSM Constitution exist. FSM Const. art. XI, § 7. While such a process may prove expensive and protracted to the litigants, it does not warrant this Court's involvement in state court proceedings. III. CONCLUSION The instant petition does not present special circumstances that would render the matter rare and exceptional so as to justify the granting of a writ of mandamus. Wherefore the petition is denied. Good cause having been shown herein, the entry of default of the respondents is hereby set aside, pursuant to FSM Civil Rule 55(c). This matter is dismissed. * * * * Footnote: 1. I hereby take judicial notice of the citizenship of the litigants in Walter v. Damarlane, P.C.A. No. 86-92.