POHNPEI LAW REPORTS
VOL.3A
[3A PN.L.R.469]
YVETTE ETSCHEIT ADAMS and RENEE ETSCHEIT VARNER,
Plaintiffs
v.
ROBERT ETSCHEIT, JR.,
Defendant
Pohnpei Civil Action No. 343
Trial Division of the Pohnpei Supreme Court
May 19, 1989
Motion by defendant for the disqualification of presiding judge. The motion was filed following the entry by the Court of a Temporary Restraining Order against the defendant and his attorney and agents from engaging in certain construction work on land in dispute. The defendant's grounds were (1) that the presiding judge's impartiality might reasonably be questioned; (2) bias or prejudice on the part of the presiding judge; and (3) that the presiding judge previously served as the defendant's lawyer in the matter in controversy.
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The Trial Division of the Pohnpei Supreme Court, EDWEL H. SANTOS, denying the motion, held (1) that the Rule of Necessity (by which judges were obliged to hear and decide cases from which they might otherwise recuse themselves if no other judge was available to hear the case) prevailed over the disqualification standards set out in the Pohnpei Judiciary Act, S. L. 2L-160-82, Section 30 (1) and (2); (2) that the case at bar presented circumstances warranting the invocation of the Rule of Necessity, as no fewer than three justices shall hear and decide cases in the Appellate Division of the Court under Article 10, Section 5 (2) of the Pohnpei Constitution, and failure to invoke the Rule of Necessity in the case would adversely reduce the capacity of the entire Pohnpei Supreme Court to the point of closing the door to the Appellate Division; (3) that all the current judges of the Court, having participated one way or the other in the case relating to the land in dispute, would be affected by the question of disqualification, if reasonably valid; (4) that if the motion to disqualify the presiding judge were granted and the case reassigned to another judge out of the three other justices, that would leave only two justices availableto siton appeal should a partydecideto appeal the decision of the newly assigned trial judge, therefore failure by the Court to invoke the Rule of Necessity in the case would have a contrary effect by denying the litigants their right to an appeal forum; (5) that when issues arose for the first time in Pohnpei jurisdiction which required the interpretation of a constitutional [or statutory] provision in pari materia with that of some other jurisdiction'tt would be improper to import into the question of construction doctrines of democratic theory and practice obtaining in other countries, unrelated to the tenor, scheme, and words of the provisions which were to be construed by the Court, thus the Court must try to understand the contents of the foreign constitution as delimited by judicial interpretation and in considering the authorities of the foreign courts, the Court would not therefore be incorporating principles foreign to the Pohnpei Constitution [or statute], or be proceeding upon the slippery ground of apparent similarity of expressions or concepts in an alien jurisprudence developed by a society whose approaches to similar problems on account of historical, social, cultural or other reasons differed from Pohnpeian jurisprudence; (6) that the duty of the judge to disqualify himself under S.L. 2L-160-82, Section 30 (1), (2) and (6) as read together was discretionary and not mandatory; (7) that since the three alleged grounds for disqualification took their root during a period before the enactment of the Pohnpei Judiciary Act of 1982, S.L. 2L-16082, those grounds could not be held to disqualify the presiding judge for doing so would violatetheconstitutionofthe nation; (8)thatto sustain a motion to disqualify ajudge under the Pohnpei Judiciary Act, S.L.2L-160-82, the motion filed after an issue of considerable importance in the case had been decided by the Court might be considered untimely filed; (9) that where an alleged ground for disqualification was known to the movant but he chose to wait until the Court had ruled on an issue adversely to his interest in the case the disqualification motion was suspect; (10) that questioning of the impartiality of ajudge must be determined on the basis of whether a disinterested reasonable Pohnpeian who knew all the circumstances would harbor doubt about the judge's impartiality; (11) that the reasonableness of one's questioning about a judge's impartiality was to be consid-
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ered from the perspective of the disinterested reasonable observer, that is to say a "reasonable Pohnpeian observer", not from the perspective of the litigant, or of the judge; (12) that no Pohnpeian law prohibited a nominee to a judgeship from continuing to practice law: prohibition attached when one took the judicial oath; (13) that the defendant's projected self-hatred of and prejudice against the presiding judge did not justify a ground for disqualification; (14) that notwithstanding the defendant's statement that the affidavit in support of the motion for disqualification was made in good faith, it tended to be libellous and contained substantial inaccurate statements, was derogatoryto Pohnpeian customary mores and should be viewed as suspect; (15) that the justices of the Court had a duty not to disqualify from a case where disqualification would render the Pohnpei judicial system inoperable, or where delay in the Court's administration of justice would result; (16) that in considering motions for recusal the Court must carefully analyze the grounds in terms of the disqualification statute, and need not lightly grant such motions simply to accommodate or placate litigants or their counsel, lest the judge be violating his judicial oath; (17) that it was a judge's duty not to disqualify himself and reassign the case to another judge. unless he believed there were proper and reasonable grounds therefor; (18) that an allegation in an affidavit of bias or prejudice, charging that the presiding judge "before and after his ascendancy to the bench" made certain statements which led the defendant to believe that the presiding judge was biased, was legally insufficient to require the presiding judge to recuse himself; (19) that matter in controversy relating to the presiding judge's prior legal assistance to the defendant was distinguishable; (20) and that promptness in asserting disqualification was necessary to prevent either party from awaiting possibly adverse determination of the claim, therefore to allow a motion to come in at a late date without excuse would be to place the management and control of civil cases in the hands of the attorneys.
1. Judges - Recusal - Rule of Necessity
The Rule of necessity obliging a judge to hear and decide a case from which he might otherwise recuse himself if no other judge was available to hear the case prevails over the disqualification standards set out in the Pohnpei Judiciary Act of 1982, S.L. 2L-160-82, Section 30 (1) and (2).
2. Judges - Recusal - Rule of Necessity - Invocation
Where the full Court comprises of four judges and the State Constitution and the Judiciary Act provide that no fewer than three justices shall hear and decide cases in the Appellate Division, and such judges shall not have heard the matter at the Trial Division nor otherwise be disqualified, the failure to invoke the Rule of Necessity in a case in which the presiding judge is sought to be disqualified, would adversely reduce the capacity of the entire Court to the point of closing the door to the Appellate Division.
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3. Judges - Recusal
Where all the judges of the Court had in some way previously participated in acase dealing with a subject matter, the question of disqualification may, if reasonably valid affect such judges both~at the trial and appellate levels.
4. Judges - Recusal
Where the recusal of the presiding judge and the assignment of the case to anotherjusticewould leave onlytwojusticesofthe statutory requirement of three to sit in the event of an appeal, the Rule of Necessity may be invoked by the presiding judge to hear and determine the case.
5. Statutes - Construction - Pohnpelan Jurisprudence
In construing a constitutional or statutory provision in pari materia with a foreign statute, in order not to import into the question of construction doctrines of democratic theory and practice obtaining in other countries, unrelated to the tenor, scheme and words of the provision which is to be construed, the Court must try to understand the foreign constitutional or statutory provision as delimited by judicial interpretation so that the Court would not be incorporating principles foreign to the Pohnpei Constitution orstatute, or be proceeding upon the slippery ground of apparent similarity of expressions or concepts in an alien jurisprudence developed by a society whose approaches to similar problems on account of historical, social, cultural or other reasons differ from Pohnpeian jurisprudence.
6. Judges - Recusal - Statutes - Construction
The duty of a presiding judge of the Court to recuse is discretionary rather than mandatory (S.L.2L- 160-82, Section 30 (1), (2) and (6)).
7. Judges - Recusal - Statutes - Construction
Under the Pohnpei disqualification statute the duty to sit is still the rule (S.L.2L-160-82, Section 30(6))
8. Judges - Recusal - Constitutional Law - Statutes
Where the alleged groundsforthe disqualification of a presiding judge took
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place during a period before the enactment of the disqualification statute those grounds cannot be held to disqualify the presiding judge as doing that would violate the constitution of the nation (Pohnpei Constitution, Art 4, Section 7; Federated States of Micronesia Constitution, Art. IV, Section 11)
9. Judges - Recusal - Motions - Requirements
To sustain a motion to disqualify a judge under Pohnpei law (S.L.2L160-82) the following minimum requirements must be present:
(1) The motion for disqualification must be made in writing and filed before the trial or hearings unless good cause is shown for filing it at a later time; a motion filed after an issue of considerable importance in the case had been decided by the Court may be considered untimely filed.
(2) The motion shall be accompanied by an affidavit stating factual grounds upon which the motion for disqualification is based. An affidavit made in bad faith provides no ground for disqualification. Where an alleged ground for disqualification is known to the movant, but he chose to wait until the Court had ruled on any issue adversely to his interest in the case, the disqualification motion is suspect.
(3) The grounds alleged must have their origin after the Pohnpei disqualification statute came into force to wit, January 20, 1984. Grounds which took their root prior to that date will not be honored.
(4) Questioning of the impartiality of a judge must be determined on the basis of whether a disinterested Pohnpeian who knows all the circumstances would harbor doubt about the judge's impartiality.
10. Judges - Recusal - Motions - Reasonableness
The reasonableness of one's questioning about a judge's impartiality is to be considered from the perspective of the disinterested reasonable observer, not from the perspective of the litigant, or of the judge, and the reasonable observer test here is the case as viewed by a reasonable Pohnpeian observer rather than by any reasonable observer.
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11. Judges - Nominees to Judgeship - Practice of Law
Pohnpei law does not prohibit a nominee to the office of a judge from continuing to practice law; but a prohibition attaches when such nominee takes his judicial oath.
12. Judges - Recusal - Grounds
A party's own hatred or prejudice against a judge does not justify a ground for the disqualification of the judge.
13. Judges - Recusal - Motions for Recusal - Pohnpelan Custom
An affidavit, tending to support a motion to disqualify a judge, which is libellous because it contains substantial inaccurate statements, is derogatory to Pohnpeian customary mores, notwithstanding the defendant's statement that "the affidavit is made in good faith", and should be viewed as suspect.
14. Judges - Recusal
Justices of the Court have a duty not to disqualify from a case where disqualification would render the judicial system inoperable, or where delay in the Court's administration of justice will result.
15. Judges - Recusal - Motions for Recusal
In considering motions for recusal the Court must carefully analyze the grounds in terms of the disqualification statute, and the Court need not lightly grant such motions simply to accommodate or placate litigants or their counsel, lest the judge be violating his judicial oath.
16. Judges - Recusal
it is a judge's duty not to disqualify himself and reassign the case to another judge unless he believes there are proper and reasonable grounds therefor.
17. Judges - Recusal - Grounds - Sufficiency
An allegation in an affidavit of bias or prejudice, charging that the presiding
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judge "before and after his ascendancy to the bench" made certain statements which lead the defendant to believe that the presiding judge is biased, is legally insufficient to require the presiding judge to recuse himself.
18. Judges - Recusal - Grounds - Sufficiency
Where a party fails to state in particularity or in specific terms any acts or extra-judicial statements made by a presiding judge, which acts or statements can rightfully be attributed to the party himself, but relies upon a general characterization of race as involving himself for the purpose of disqulalifying the judge, this general characterization is insufficient to warrant a disqualification of the judge.
19. Judges - Motion for Recusal
Promptness in asserting disqualification is necessary to prevent either party from awaiting possibly adverse determination of claim.
20. Judges - Motion for Recusal - Late Filing - Effect
To allow a motion to come in at a late date without excuse would be to place the management and control of civil cases in the hands of attorneys.
Counsel for Plaintiffs: Matt Mix, Esq.,
Kolonia, Pohnpei
Counsel for Defendant: Dan Barman, Esq.,
Kolonia, Pohnpei
Edwel H. Santos, Chief Justice
MOTION TO DISQUALIFY PRESIDING JUDGE
The defendant, following the entry by the Court of a Temporary Restraining Order on April 27, 1989, which restrained the
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defendant, his attorney and agents from engaging in any further construction or clearing or earthmoving work on certain portion of the land Umpwompw, filed his motion and affidavit to disqualify the presiding judge in this case from further proceeding in the case. The defendant's motion alleged three grounds:
1. that the presiding judge's impartiality might reasonably be questioned;
2. bias or prejudice; and
3. that the presiding judge previously served as the defendant's lawyer in the matter in controversy.
The Court heard oral argument on the motion on May 19, 1989, and upon consideration of the circumstances involved, the Court invoked the Rule of Necessity and denied the motion for disqualification.
REASONING
1. INVOCATION OF THE RULE OF NECESSITY
[1] The Rule of Necessity prevails over disqualification standards set out in the Pohnpei Judiciary Act, 2L-160-82, Section 30
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(1) and (2). The Rule of Necessity in the United States provides that:
judges are obliged to hear and decide case from which they might otherwise recuse themselves if no other judge is available to hear the case. This Rule of Necessity has been held in the United States to prevail over the disqualification provisions of 28 U.S.C. s. 455 and Canon 3C of the Code of Judicial Conduct of the American Bar Association, both of which are nearly indentical to the language of 4 FSMC 124 (1) and(2). FSM v. Skilling, 1 FSM Intrm 464, 470-471, United States v. Will, 449 U.S. 209,101 S.Ct. 471, 66 L. Ed. 2d 392 (1980)
Be it noted however that the Pohnpei and the FSM Disqualification standards, S. L. 2L_-160-82, s. 30 (1) and 92) and 4 FSMC 124 (1) and (2), respectively are identical, word for word. And as stated by this Court in Joseph v. Joseph, PCA No. 228-88, "The principles relating to recusal of a judge in a proceeding laid down by these cases ( FSM v. Jonas (11), 1 FSM Intrim 306, (1983), and FSM v. Skilling, 1 FSM Intrm 464, (1984) are proper and are appropriate for adoption to be followed in similar circumstances," the case at bar present similar circumstances warranting invocation of the Rule of Necessity.
(a) Constitutional Considerations
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[2] No fewer than three justices shall hear and decide cases in the Appellate Division of the Pohnpei Supreme Court. Pohnpei Const. Art. 10 s. 5 (2). Failureto invoke the Rule of Necessity in this case will adversely reduce the capacity of the entire Pohnpei Supreme Court to the point of closing the door to our Appellate Division.
(b) Statutory Considerations
Appeals to the Appellate Division shall be heard by a panel consisting of three justices of the [Supreme] Court not having heard the matter at the Trial Division level nor been otherwise disqualified. The concurrence of two justices shall be necessary to a determination of any appeal by the Appellate Division of the [Supreme] Court but a single justice may make all necessary orders concerning any appeal prior to the hearing and determination thereof, and may dismiss an appeal for want of jurisdiction, or failure to take or prosecute it in accordance with the applicable law or rules of procedure, or at the request of the appellant S.L. 3L-584 of 2/13/84 which amended s. 50 (b) of the Pohnpei Judiciary Act of 1982.
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(c) Judicial Economy and Administration Considerations
This action was first filed in the Trust Territory High Court on April 26, 1968, by the then plaintiff Carlos Etscheit against Leo Etscheit and others. Both Carlos Etscheit and Leo Etscheit have since died. Nonetheless, the Trust Territory High Court did not resolve the issue raised by the parties. This case was transferred by the Trust Territory High Court to the Pohnpei Supreme Court in February 1984 for further handling. The plaintiff's second amended complaint changed the title of the action to Yvette Etscheit Adams and Renee Etscheit Varner, plaintiffs v. Robert Etscheit, Jr, defendant.
[3] As one searches through the files of the case beginning from April 26,1968, to this date, all of the current justices of the Pohnpei Supreme Court have in some ways participated in the case dealing with Umpomp. Such participations include clerical work and serving as judge, orcounsel. The question of disqualification may, if reasonably valid, affect all four justices who now sit on the bench of the Pohnpei Supreme Court, trial and appellate levels.
The Court must respond to the issue long standing between
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the parties in this case.
If I do not invoke the Rule of Necessity here and grant the defendant's motion to disqualify the presiding judge in this case, I will have to assign another judge out of the only otherthree justices available. That in essence will leave only two justices available to sit on appeal if a party decides to appeal the decision of the newly assigned trial judge. The undesirable result will be that the doorto the Appellate Division of the Pohnpei Supreme Court will be closed to the litigants. Additionally, and given the age of the case, reassignment to another judge will demand a completely new start, because the new judge will have to go back to the beginning of the case to educate himself aboutthe developments taking place since 1968. This in a way will further delay the administration of justice, not only to the litigants in this case, but to the entire population of this State as well. Failure by this Court to invoke the Rule of Necessity in this case would have a contrary effect by denying the litigants their right to an appeal forum.
The Chief Justice of this Court may prescribe stricter or additional standards of the Code of Judicial Conduct as borrowed
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from the American Bar Association approved standards. SL 2L 160-82, s. 29. The holding in this case should be viewed as imposing an additional standard to the rule of disqualification as discussed in United States v. Will, 449 U.S. 200, 101 S.Ct. 471, 66 L. Ed. 2d 392 (1980)
In a jurisdiction like Pohnpei where only four justices are on the bench of its Supreme Court, trial and appellate levels, and where the appointment of special judges is not provided by law in situations where the disqualification of a judge would result in a contrary effect, like closing the door to the appellate forum, and where no appeal lies in any other court, other than the Pohnpei Supreme Court where the issue of state law and constitution is involved, invocation of the Rule of Necessity is proper.
The defendant argues that the situations found in U.S. v. Will, supra, are not applicable to the situations confronted in the instant case because there still are other judges who can hear the case. That argument is not well taken because even under the circumstances existing in Will, supra, where there was United States statute authorizing assignment of other federal judges to sit tempo-
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rarily, 28 U.S.C.S. ss. 291-296 (1976 ed.), the Court said: "It is not possible to convene a division of the Court of Appeal with judges who are not subject to the disqualification provisions of s. 455." The Court in Will's case went on to say: "It was precisely considerations of this kind that gave rise to the Rule of Necessity, a well-settled principle at common lawthat, as Pollock put it, although a judge had better not, if it can be avoided, take part in the decision of a case in which he has any personal interest, yet he can not only may but must do so if the case can not be heard otherwise." 101 S. Ct. 479480.
[5] When attorneys argue before this Court urging us to apply certain meanings of similar terms or situations as had been decided and applied in the United States or elsewhere, they must be extra careful in making such arguments because this Court has repeatedly made its position explicitly clear on that point as the Court, in response to the query, "What effect should be given to foreign decisions interpreting their own Constitution or (statute) when an issue arises for the first time in a jurisdiction with a new constitution (statute) interpreting a provision in pari materia with
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that of some other jurisdictions?", said,
It will be improper to import into the question of construction doctrines of democratic theory and practice obtaining in other countries, unrelated to the tenor, scheme, and words of the provisions which we have to construe. We must try to understand the contents of the United States Constitution delimited by judicial interpretation in considering the authorities of the United States courts, we would not therefore be incorporating principles foreign to our Constitution or statute, or be proceeding upon the slippery ground of apparent similarity of expressions or concepts in an alien jurisprudence developed by a society whose approaches to similar problems on acount of historical, social, cultural or other reasons differ from Pohnpeians. Rosario v. Lohn, PCA 214-87; Pohnpei v. Hawk, Appeal No. 10-86 (1988).
The defendant further argues that under S.L. 2L-160-82, s. 30 (1) and (2) a judge has a "mandatory duty" to disqualify from hearing a case where his impartiality might reasonably be questioned orwhere he is allegedly biased orprejudiced against a party. The Court takes exception to that argument because it has certain flaws in it, including that taint of misleading the Court as to the proper construction of our disqualification statute. Note the caveat in Hawk's case at page 10, "any attempt by an attorney to mislead the courts of this State... will be viewed as suspect, and may be dealt with as contempt of Court."
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[6] To determine whether s. 30 (1) and (2) mandate a duty to disqualify, the statute's s. 30 (1) and (2) must be read and construed together with s. 30 (6) which says:
A party may move to disqualify a justice or a judge for one or more of the reaons stated in subsections (1) or (2) of this Section, said motion shall be accompanied by an affidavit stating the reasons for the belief that the grounds for disqualification exist, and shall be filed before the trial or hearings unless good cause is shown for filing it at a later time. Upon receipt of such a motion, the justice shall rule on it before proceeding further in the matter, stating his reasons for granting or denying it on the reocrd (Emphasis supplied).
This provision of the disqualification statute presents no doubt whatsoeverthat adiscretionary duty, ratherthan a mandatoryduty, to disqualify was intended by the Legislature in enacting the disqualification statute.
[7] Parties are invited to take note of the fact that under the disqualification statute of the United States, 28 U.S.C. 455, there is no such discretionary provision as found in the Pohnpei statute S.L. 2L-160-82, s. 30 (6), as well as that of the FSM as codified in 4 FSMC 124 (6). The United States statute, 28 U.S.C. 455, is a modification of the "duty-to-sit rule", thus making it mandatory on the part of the judges to disqualify. See Note 4, 28 U.S.C.S. s. 455,
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on Interpretive Notes and Discussion section. Underthe Pohnpei statute, as well as the FSM's, the "duty to-sit" still is the rule. Joseph v. Joseph, PCA No. 228-88; FSM v. Skilling, 1 FSM Intrm 464 (1988).
[8] Another interesting fact of constitutional magnitude was the ex post facto effect of the defendant's grounds for disqualification which needs reconciliation. All three grounds alleged as reasons for disqualification of the presiding judge here were based on events which took place before the coming into force of the disqualification statute. Note as the defendant states: "From approximately 1977 until 1982 the presiding judge in this action served as legal counsel for the defendant, the defendant's uncle, and the defendant's father Dr. Robert Etscheit." Hence all alleged grounds for disqualification charged by the defendant took their root during the period admittedly between 1977 and 1982. The Pohnpei Judiciary Act of 1982, S.L. 2L-160-82, within which the disqualification provisions are legislated, was passed bythe Pohnpei Legislature on December 7, 1983, and signed into law by the Governor on January 20,1984. The defendant's alleged grounds
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for disqualification cannot be held to disqualify the presiding judge in this case, lest doing so would violate the constitution of this nation. See Pohnpei Const. Art. 4, 7; FSM Const. Art. IV, s. 11; Duplan Corp. v. Deering Milliken, Inc. 400 F. Supp. 497 (1975).
For the reasons stated, the Rule of Necessity is available and appropriate in this case. The defendant's motion should be denied.
II. Consideration of the Defendant's Alleged Grounds for Disqualification.
[9] To sustain a motion to disqualify a judge under the Pohnpe. Judiciary Act, S.L. 2L-160-82, as amended, the following features as a minimum, must be present:
1. The motion for disqualification must be made in writing and filed before the trial or hearings unless good cause is shown for filing it at a later time; a motion filed after an issue of considerable importance in the case had been decided by the Court may be considered untimely filed.
2. The motion shall be accompanied by an affidavit stating factual grounds upon which the motion for disqualification is based, An affidavit made in bad faith provides no ground for disqualifica-
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tion. Where an alleged ground for disqualification is known to the movant, but he chose to wait until the Court had ruled on any issue adversely to his interest in the case, the disqualification motion is suspect.
3. The grounds alleged must have their origin after the Pohnpei disqualification statute came into force, to wit, January 20, 1984. Grounds which took their root prior to the coming into force of the Pohnpei disqualification statute will not be honored.
4. Questioning of the impartiality of a judge must be determined on the basis of whether a disinterested reasonable Pohnpeian who knows all the circumstances would harbor doubt about the judge's impartiality.
Considering the minimum requirements thus stated and even assuming that the Rule of Necessity is not appropriate and that the ex post facto effect of the constitution be overlooked in this case, the alleged grounds for disqualification as analyzed below do not warrant disqualification of the presiding judge from hearing the case.
(a) The ground that the presiding judge's impartiality might
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reasonably be questioned.
[10] This Court has stated in Joseph v. Joseph, PCA No. 228-88, following FSM v. Skilling, 1 FSM Intrm. 464, that the reasonableness of one's questioning about a judge's impartiality is to be considered from the perspective of the disinterested reasonable observer, not from the perspective of the litigant, or of the judge. The reasonable observer test here is to be viewed from a "reasonable Pohnpeian observer" rather than from any reasonable observer.
The defendant's motion, including his affidavit, fails to satisfy this disinterested reasonable observer test. The alleged facts which necessitated the communication between the presiding judge here and the defendant's father, Attachment B and C, were misconstrued by the defendant to the point of harassing the presiding judge here. The actual fact then known to the presiding judge which prompted the communications (Defendant's Attachments "A" and "B") directly related to the presiding judge (counsel's) taking the initiative of having the late Leo Etscheit's will translated into English, thus making that will known to the world.
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The translation of said will certainly defeated the defendant's father's scheme of removing the accounts of Leo Etscheit from the Bank of America in San Francisco to a much farther away bank in Zurich, Switzerland, thus evading the accounts from the reach of the Micronesian Courts, creating unjustified jurisdictional problems forthe Micronesian Courts over~Leo Etscheit's bankaccounts. The translation of Leo Etscheit's will into English paved the road forthe named. beneficiaries therein, including the State Government to come forth to claim their shares under the will through probate action in this Court, PCA No. 77-80. This is exactly what the defendant's father did not want happen, and for what other reasons did he not want the late Leo Etscheit's will to be translated is a matter for anybody to conjecture. Needless to say, however, it is appropriate to say here, "Dehr Sarepada Pwoar en Kakiles," or better preserve the right to remain silent.
[11-12] In addition, the defendant's affidavit present certain other flaws and libellous statements which this Court, in the interest of preserving the cultural mores of Pohnpei, is duty bound to correct. For example, paragraph 4 of his affidavit is not fully accurate.
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Paragraph 5 through 8 of the affidavit repeat the irony of Dr. Robert Etscheit's letter (Defendant's Attachment B). Paragraph 9 alleging the presiding judge's failure to address the issue of judicial ethics and how he could continue to represent the family's legal affairs while being a nominee for the position of Chief Justice is without merit. No Pohnpei law prohibits a nominee to a judgeship from continuing to practice law. Prohibition attaches when one takes one's judicial oath. There still are other statements in the defendant's affidavit amounting to mistreatment of the presiding judge here, which for the purpose of this ruling, I need not belabor upon any further. The truth of the matter shall prevail any how, as the Pohnpeian terminology "eluwahk reirei sapwasapw" denotes. The defendant's charges of partiality and bias made against the presiding judge could very well be the defendant's own projected selfhatred of and prejudice against the presiding judge. One's own hatred or prejudice against a judge does not justify a ground for disqualification.
[13] An affidavit tending to support a motion to disqualify a judge when found to be libelous, containing substantial inaccurate state-
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ments, is derogatory to Pohnpeian customary mores, notwithstanding the defendant's statement that "the affidavit is made in good faith", should be viewed as suspect and be accorded the treatment if rightfully deserves. Joseph v. Joseph, PCA No. 22888.
[14-15] The justices of this Court have a duty not to disqualify from acase where disqualification would render our judicial system inoperable, or where delay in the Court's administration of justice will result. As stated by this Court, "In considering motions for recusal the Court must carefu Ily analyze the grounds in terms of the disqualification statute, and the Court need not lightly grant such motions simply to accommodate or placate litigants or their counsel, lest the judge be violating his judicial oath." Joseph v. Joseph, supra; FSM v. Skilling 1 FSM Intrm 464. The defendant's motion here points to the similar situations to which the above instruction directs.
[16] It is a judge's duty not to disqualify himself and reassign the case to another judge unless he believes there are proper and reasonable grounds therefor. Lazofky v. Sommerset Bus Co., Inc. 389 F. Supp. 1041, 1045 (1975).
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[17] (b) The ground that the presiding judge's bias or prejudice against the defendant precludes the defendant from obtaining a fai r and impartial hearing or trial. The affidavit as to the alleged personal bias or prejudice of a judge must be filed at the earliest opportunity and must be legally sufficient. An allegation in an affidavit of bias or prejudice, charging that the presiding judge "before and after his ascendency to the bench" made certain statements which lead the defendant to believe that the presiding judge is biased, was legally insufficient to require the presiding judge to recuse himself. United States v. Partin, 312 F. Supp.1335. [18] The defendant failed to state in particularity or in specific terms any act or statement of the presiding judge made extrajudicially which can rightfully be attributed to the defendant himself, nor did he explain the reasons for withholding his motion until this late date, especially where his alleged grounds were known to him long beforehand. The defendant however relied primarily on a statement in which this presiding judge in an earliercommunication characterized the late Leo Etscheit as a "business tycoon of the white race." That characterization made no mention at all of the defendant himself. The defendant's generalization that the char-
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acterization involved himself as well is not to be taken as correct.
The Court in Duplan said, "Judge's comments said to show a dislike for Europeans in general and the French in particular were legally insufficient to warrant a disqualification of the judge. 400 F. Supp. 497, 524.
(c) The ground that the presiding judge in private practice served as lawyer in the matter in controversy.
If the defendant had been more sincere in his effort, he could have stated that the presiding judge represented the late Leo Etscheit and others against the Iriarte royal family of Nett, that the issue then was the ownership right in Umpwompw. The issue before this Court in the instant case is "how to partition the land Umpompw" in its entirety between Yvette Etscheit Adams and Renee Etscheit Varner on the one side and Robert Etscheit, Jr. on the other. The matter in controversy relating to the presiding judge's prior legal assistance to the defendant is distinguishable.
This case is the oldest case in the docket of this Court, having been pending since 1968. It was transferred to this Court from the Trust Territory High Court in 1984. The defendant sought to disqualify the presiding judge after the judge had assumed han-
[3A PN.L.R.494]
dling of the case since November 11,1987, issued several rulings and orders in the case, and after the presiding judge issued a temporary restraining order adversely to the defendant. The grounds assigned for disqualification were known to the defendant even before the case was transferred to the Pohnpei Supreme Court in 1984. No excuse was given by the defendant as to why he chose to file his disqualification motion at this late date, especially after this presiding judge had issued certain rulings and orders in the case.
In a small state like Pohnpei where the population is small, everybody knows everybody, and in order to preserve the good personal relationship of the citizens where an affidavit is filed to disqualify a justice for bias or prejudice, the trial judge must respond to the matters asserted therein, and where the allegations are known by the judge to be false, the judge must rectify the falsity to set the record straight.
[19] Promptness in asserting disqualification is necessary to prevent either party from awaiting possibly adverse determination of his claim.
[3A PN.L.R.495]
[20] The defendant, in the span of four years, had been assisted by two attorneys in this action. The first attorney did not ask for disqualification. The second attorney who entered his appearance as late as on May 17, 1989, made the move to disqualify the presiding judge. The defendant's tactics here are best viewed as judge shopping. The late filing of the defendant's motion without just cause is not favored by this Court. To allow a motion like this to come in at a late date without excuse would be to place the management and control of civil cases in the hands of the attorneys. These tactics should not be permitted to prevail in this jusrisdiction.
CONCLUSION
The defendant's motion to disqualify the presiding judge from further hearing and deciding the case hereby is denied on the grounds of
1. The Rule of Necessity, and
2. Insufficient legal and inexcusable factual basis.
II. PLAINTIFF'S MOTION TO STAY FURTHER PROCEEDING UNTIL DETERMINATION IS MADE AS TO WHETHER THE FATE
[3A PN.L.R.496]
OF ETSCHEIT LAND WILL BE MADE IN PCA 343 or PCA 77-80. Court Ruling. Upon consideration of the relevant circumstances in both cases and on balancing the interests of both the plaintiffs and the defendant in PCA 343, the Court is of the opinion that PCA 343 is the proper action to resolve the issue long confronting the parties and this Court. PCA 77-88 being a probate action deals only with the late Leo Etscheit's estate which includes only a portion of the land Umpwompw. PCA 343 includes the entire Umpwompw.
ORDERED:
1. PCA 343 shall proceed.
2. The defendant to withdraw all pleadings relating to the late Leo Etscheit's real estate previously filed in PCA 77-80 and have same filed in PCA 343 to be treated as the defendant's reply to the plaintiff's second amended complaint.
III. MANAGEMENTORDER
The Court anticipates resolution of the partition issue between the parties to be completed during the remaining portion of 1989. To accomplish this objective, the parties and their attorneys are ordered to comply with the following schedule of activities:
1. No later than Wednesday, May 24,1989, parties are to
[3A PN.L.R.497]
prepare and to file a joint statement, signed, stating whether or not a preliminary injunction ought to issue, and if so, what should be the acceptable terms of such a preliminary injunction. If no agreement on this point can be reached, the parties should also notify the Court of that conclusion. (This undertaking cancels the hearing set for 2 p.m. on Friday, 19, 1989, on the plaintiffs' motion for preliminary injunction).
2. The defendant's motion to stay enforcement of the order denying disqualification, filed on May 19, 1989, and his motion for a writ of mandamus are held in abeyance.
3. The parties are to complete discovery by the end of May 1989. No further discovery will be allowed after May 31, 1989. An examination of the pleadings and exhibits filed in the case reveals the necessity for determining certain fundamental issues before consideration of whether and how to partition the land Umpwompw between the parties now before the Court can be made. For this reason, bifurcated hearings are necessary. Accordingly, the below listed issues will be tried on Monday, June 26, 1989, beginning at 10:00 a.m. in the Courthouse.
[3A PN.L.R.498]
1. What legal or equitable rights do the respective parties have in the land U mpwompw , at commonly referred to as the Etschpit's land.
2. Fromwhat source or sources did the parties' respective rights flog.
The parties are invited to produce evidence at this hearing to support their respective claims. In addition, briefs or memoranda on the issues era welcome.
Following the resolution of the issues, the question of partition will pose no further difficulty between the parties.
So Ordered, 19 May, 1989.