POHNPEI LAW REPORTS
VOL. 3
[3 PN.L.R. 421]
MERIHNA JOSEPH,
Petitioner
v.
PHILLIP JOSEPH,
Respondent
Pohnpei Civil Action No. 228-88
Trial Division of the Pohnpei Supreme Court
April 10, 1989
Action for child support. There was no proof of service on respondent but
after the lapse of 60 days and no answer was filed the
petitioner moved the Court for a Temporary Restraining Order (TRO) "to
cause the defendant to return to the plaintiff one minor child . . . now
residing in Truk State." The petitioner later moved the Court for default
judgment against the respondent for failure to plead filing with her
motion a later return of service, but the respondent in turn moved for
recusal on the ground of the trial judege's alleged familial relationship
with the plaintiff. He also stated under oath that he was a Trukese and
believed that the Court lacked jurisdiction over the cause based on
diversity of citizenship.
[3 PN.L.R. 422]
The Trial Division of the Pohnpei Supreme Court, EDWEL H. SANTOS,
Chief Justice, denying the motion for recusal and the motion for default
judgment, held (1) that there being no familial relationship between the
petitioner and the trial judge, no factual ground for disqualification
existed; (2) that determination of jurisdiction on the basis of diversity
of citizenship must also take into account the governmental power over the
subject matter of dispute; thus family law actions like the instant case
fell squarely within States' jurisdictions; (3) that the petitioner was at
no liberty to file proof of service later than the prescribed period,
unless there was good reason forfiling late; (4) that a late filing of
proof of service of process as required by the rules without reasonable
justification was no service; (5) that to allow late filing of proof of
service of process without reasonable justification was to place the
control of civil cases in the hands of litigants; and (6) that the
importance of the issues in the case and the equities involved warranted a
denial of the petitioner's motion for a default judgment and an
enlargement of time within which the respondent must file an answer to the
complaint filed in the case.
1. Statutes - Judge - Recusal
Where a judge's partiality is questioned under S.L. 2L-160-82, Section 30 (1), it raises the issue of whether the judge will favor one party or is biased against a party.
2. Statutes - Courts - 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 to "administer justice without respect to persons, and do equal right unto all manner of people ...and faithfully and impartially discharge and perform all the duties incumbent upon [a judge] of the Pohnpei Supreme Court according to the best of [his] abilities and understanding, agreeably to the Constitution and laws of the Federated States of Micronesia, the Constitution, laws and customs and traditions of the State
[3 PN.L.R. 423]
of Pohnpei. . ."
3. Judges - Recusal
It is a judge's duty not to disqualify himself and reassign a case to another judge unless he believes there are proper and reasonable grounds therefor.
4. Judges - Motion for Recusal
A motion for disqualification ordinarily may not be predicated on the judge's rulings in the instant case or in related cases, nor on a demonstrated tendency to rule any particular way, nor on a particular judicial leaning or attitude derived from his experience on the bench.
5. Judges - Recusal
Adverse rulings do not show bias requiring the disqualification of a trial judge.
6. Statutes - Judges - Recusal
It is only the judge's impartiality, not his competency, analytic approach, personality, general philosophy or prior rulings, which may be questioned under S.L. 2L-160-82, Section 30(1).
7. Judges - Recusal
For the questioning of a judge's impartiality to be reasonable it must be grounded upon facts or reasons which furnish a rational basis for doubting the judge's impartiality, and such reasonableness is not to be considered from the perspective of the litigant or of the judge, but of the disinterested reasonable observer.
[3 PN.L.R. 424]
8. Judges - Recusal - Questioning of Judge's Impartiality - Test of Reasonableness
The test whether the questioning of a judge's impartiality is reasonable is whether a disinterested reasonable person who knows all the circumstances would harbor doubts about the judge's impartiality.
9. Judges - Recusal - Civil Procedure - Affidavit in Support of Motion
Where the affidavit in support of a plaintiff's motion for the disqualification of a judge is based on pure speculations and is invidiously invoked the alleged ground cannot be sustained.
10. Judges - Recusal - Grounds
In order to sustain a ground for the disqualification of a judge, a party must show a factual basis, not just wide-ranging speculations, fears, or conclusions, for questioning the judge's impartiality.
11. Statues-Judges- Recusal-Grounds
Where an alleged ground of familial relationship for the disqualification of a judge under S.L. 2L-160-82, Section 30 (2), is based on speculations and is erroneous, there is no justifiable ground for disqualification under that subsection.
12. Courts - Jurisdiction - Diversity of Citizenship
The determination of jurisdiction on the basis of diversity of citizenship must take into account the governmental power over the subject matter of the dispute.
[3 PN.L.R. 425]
13. Judges - Recusal on Ground of Diversity of Citizenship
Family law actions being actions falling squarely within States jurisdictions, recusal may not be granted in any such action by reason of diversity.
14. Civil Procedure - Process - Proof of Service
Where upon the lapse of the statutory 60 days period after the filing of a complaint, there is no proof of service made to the Clerk's Office, it must be presumed that no service was ever made and the complaint should be dismissed accordingly.
15. Civil Procedure - Process - Proof of Service - Purpose
The making of proof of service of process by the litigants or by officers or persons designated to serve process of the Court is a statutory requirement to sustain jurisdiction of Court over the parties in the litigation.
16. Civil Procedure - Process - Proof of Service
A party is at no liberty to file proof of service of process any time later than the prescribed period under the Pohnpei Rules of Civil Procedure, unless there is good reason for filing it late.
17. Civil Procedure- Process- Proof of Service
A late filing of proof of service of process without reasonable justification is no service.
18. Courts - Powers
Where the issues and the equities involved in a case so warrant, the Court may deny a motion for a default judgment
[3 PN.L.R. 426]
and will enlarge the time within which a party must file an answer to the complaint in the case.
Counsel for Plaintiff: Joses Gallen, Esq.
Kolonia, Pohnpei 96941
Counsel for Defendant: Joseph Phillip, Esq.
Kolonia, Pohnpei 96941
EDWEL H. SANTOS, Chief Justice
This is an action forchild support brought by the petitioner on her petition filed on October 14, 1988. Summons was issued forthwith returnable within 15 days. The petitioner made no proof of service1 even after 60 days had elapsed, and no answer was filed. On December 28, 1988, the petitioner came back with a motion for a Temporary Restraining Order (TRO) "to cause the defendant to return to the plaintiff. . . one minor child named Josephine Joseph who is now residing in Truk State. The respondent responded, objecting to the Temporary Restraining Order motion. The petitioner's TRO motion was set for hearing on February 22 but was changed to February 28, 1989, on motion of the petitioner, consented to by the respondent.
On the date set for hearing on the TRO motion, February 28,
[3 PN.L.R. 427]
1988, the petitioner then moved for default judgment against the respondent for the tatter's failure to plead. Simultaneously, however the respondent came in with a motion for recusal. I first rule on the motion for recusal.
1. Motion for Recusal
The Pohnpei Judiciary Act of 1982 (2L-160-82), Section 30(6) prescribes the procedure to be followed by a party desiring to have a justice recuse himself from hearing a case. It reads;
"(6) A party may move to disqualify a Justice or a judge for one or more of the reasons stated in Subsection (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 hearing 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 record."
The respondent's motion being supported by an affidavit complies; on its face, with the statutory requirement. His motion was styled thusly to have the (Court disqualify from hearing [the] matter pursuant to Section 30, Chapter 112 of the Pohnpei State Judiciary Act of 1982 (PL No. 2L-160-82)," on the alleged grounds that:
[3 PN.L.R. 428]
"a. It is believed that the Chief Justice has familial connection with the respondent [sic] in that petitioner's surname is not Joseph but her real surname is Merihna Santos;
b. That the impartiality of the [sic] Chief Justice Santos can reasonably be questioned because of this familial relationship." In support of his motion the respondent included an affidavit which is quoted at length as follows:
"Phillip Joseph, states under oath the following:
1. I am the respondent in PCA 228-88 involving child supports;
2. The Petitioner's last name is not Joseph as appeared on the pleadings and that her real surname is Santos;
3. That I believe strongly that she is from Kitti Municipality and that petitioner is related to the Chief Justice in some ways;
4. I am from Truk State, Federated States of Micronesia and it is my belief that a disinterested person could reasonably questioned [sic] Chief Justice Santos' impartiality in this case because of this familial relationship.
5. I believe also that this Court lack [sic] jurisdiction over this cause based on diversity of citizenship."
[3 PN.L.R. 429]
The petitioner objected to the motion to recuse and filed a counter affidavit in support thereof which completely contradicts that of the.respondent. Her affidavit states in part:
"1. I am the plaintiff in the above-numbered case.
2. That to my knowledge I am not a close relative of the Chief Justice, His Honorable Edwel H. Santos.
3. That my family [sic] last name is David.
4. That my present last name is Joseph as the result [sic] my marriage to the defendant in this case."
The issue raised by the respondent Phillip Joseph's motion for recusal is whether the impartiality of Chief Justice Edwel H. Santos may reasonably be questioned on the alleged ground that both Chief Justice Santos and the petitioner have the same family name (last name).
I have seriously considered the evidence adduced and the facts of the matter and have concluded that under the circumstances where the movant's affidavit was executed in bad faith under a wide range of speculations, a recusal based on the respondent's erroneous ground is inappropriate, extraneous and
[3 PN.L.R. 430]
not well-taken. My reasons are discussed below.
II. Reasoning
The Pohnpei Judiciary Act of 1982 (S.L. 2L-160-82). Section 30, prescribes two specific grounds under which a justice shall disqualify himself from hearing or determining a case.
The first is described as:
A Justice or Judge shall disqualify himself in any proceeding which his impartiality might reasonably be questioned. Land Commissioners and members of the Land Registration Teams shall be deemed to be judges for the purposes of this Section. (S.L. 2L-160-82, Section 30(1).
The second ground enumerates certain specific circumstances underwhich a judge shall also disqualify himself in any proceeding, and these circumstances include, among others, personal bias or prejudice, knowledge of evidentiary facts, the judge's or his former colleague's involvement in a litigation while the judge was a lawyer, whether in private practice or as government counsel, or the judge or a person within his household or any close relative of the judge or his spouse has afinancial interest in the outcome of the litigation. Section 30(2).
The Respondent's motion for recusal is expressedly hinged upon section 30(1) which requires a judge to disqualify himself in
[3 PN.L.R. 431]
any proceeding in which his impartiality might reasonably be questioned. The operating words or phrases in Section 30(1) are "impartiality" and "might reasonably be questioned".
A. "Impartiality". "Impartial" means "favoring neither; disinterested; treating all alike; unbiased; equitable, fair, and just." Black's Law Dictionary, p. 677 (5th ed. 1979)
[1] When a judge's partiality is questioned under Section 30(1), it raises the issue of whether the judge will favor one party or is biased against a party.
[2] In considering motions for recusalthe 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, which says:
I_____, do solemnly swear that I will administer justice without respect to persons, and do equal right unto all manners of people: the poor and the rich, the commoners and the traditional nobility, the unemployed and the employed, the power less and the powerful; and that I will faithfully and
[3 PN.L.R. 432]
impartially discharge and perform all the duties incumbent upon me as (Chief Justice, Associate Justice) of the Pohnpei Supreme Court according to the best of my abilities and understanding, agreeably to the Constitution and laws of the Federated States of Micronesia, the Constitution, laws and customs and traditions of the State of Pohnpei. So help me God. (Emphasis).
[3] It is a judge's duty not to disqualify himself and reassign a case to anotherjudge unless he believes there are proper and reasonable grounds therefor. Lazofsky v. Sommerset Bus Co., Inc. 389 F. Supp. 1041, 1045 (1975).
[4, 5] Motions to recuse have been considered at least twice by the Supreme Court of the Federated States of Micronesia. FSM v. Jonas (II) Intrm. 306 (Tr. Div. Pohnpei 1983); FSM v. Skilling, 1 FSM Intrm 464 (Tr. Div. Kos 1984). In both cases the FSM Supreme Court has noted that "motions to recuse are not readily granted simply to accommodate or placate litigants or counsel." FSM v. Jonas (II) supra, 315-316; FSM v. Skilling, supra, at 471. With respect to the issues of impartiality, the FSM Supreme Court
[3 PN.L.R. 433]
has noted that:
A motion for disqualification ordinarily may not be predicated on the judge's rulings in the instant case or in related cases, nor on a demonstrated tendency to rule any particularway, noron a particular judicial leaning or attitude derived from his experience on the bench.
FSM v. Skilling, supra, at 473, quoting Phillips v. Joint Legislature Committee, 637 F. 2d 1014,1020 (5th Cir.1981), cert. denied, 102 S. Ct. 2035 ( 1982). Adverse rulings do not show bias requiring disqualification of a trial judge, Ma v. Community Bank 686 F. 2d 459, 472 (7th Cir. 1982).
[6] Thus, it is only the judge's impartiality, not his competency, analytic approach, personality, general philosophy or prior rulings, which may be questioned under section 30(1) ]3 FSM v. Skilling, 1 FSM Intrm. 464, 474 (1984). The principles relating to recusal of a judge in a proceeding laid down by these cases are proper and are appropriate for adoption by this Court; hence they are adopted to be followed in similar circumstances.
[7-8] b. "Might reasonably be questioned." Who might reasonably question the impartiality of a judge to warrant disqualification, the
[3 PN.L.R. 434]
litigants or any other persons? Chief Justice King of the FSM Supreme Court has responded to this question very clearly as he said,
Most litigants, surely including the reasonable ones, are likely to "question" various characteristics of the judge, including his impartiality. Normal litigants naturally might wonder and worry about the ability and impartiality of the judge whose duty it is to resolve important issues affecting the liberty or property interests of the litigants. This normal questioning, although naturally induced by the worrisome activity of litigation, is not the kind of reasonable questioning which may justify disqualification. To be "reasonable", the questioning must be grounded upon facts or reasons which furnish a rational basis of doubting the impartiality of the judge. Reasonableness is not to be considered from the perspective of the litigant, or of the judge, but of the disinterested reasonable observer. The test is whether a disinterested reasonable person who knows all the circumstances would harbor doubts about the judge's impartiality. Id. 474, 475 (citations omitted).
[9,10] The alleged ground fordisqualification stated in the respondent's motion for recusal, to wit, that petitioner Merihna Joseph and Chief Justice Edwel H. Santos have a common family name "Santos" is a dreamed-up error. The respondent's affidavit in support of his motion is based on pure speculations, and it is invidiously invoked. Hence the alleged ground of familial relationship could not be sustained. In order to sustain the ground, the
[3 PN.L.R. 435]
respondent must show a factual basis, not just wide-ranging speculations, fears, or conclusions, for questioning the judge's impartiality. Skilling at p. 477 (citations omitted).
No familial relationship exists between the petitioner and Chief Justice Santos, thus no factual ground for disqualification exists.
c. A justice shall also disqualify himself where he has a personal bias, or where he has served in government employment as counsel in the case involving the same parties, where he knows that he has a financial interest in the subject matter in dispute, or the judge or his spouse or a person within a close relationship to either of them is involved in the case.
[11 ] The ground alleged by the respondent "that the petitioner and the Chief Justice Edwel H. Santos have the same family name", if factually correct, could have fallen within the category of "close relationship" justifying disqualification under Section 30(2), but since that speculated "familial relationship" is erroneous, there leaves no justifiable ground for disqualification underthat subsection also.
The respondent also alleges diversity of citizenship as an-
[3 PN.L.R. 436]
other potential ground to justify recusal and perhaps consequently, to dismiss or transfer to the FSM Supreme Court.
[12,13] We have held in George Hawk v. Pohnpei State, P. App. No. 10-86 that determination of jurisdiction on the basis of "diversity" of citizenship must also take into account the governmental power over the subject matter of the dispute. Family law actions like the instant case fall squarely within States' jurisdictions. I deny recusal on ground of diversity of citizenship.
Respondent's False Affidavit
The respondent's affidavit warrants some discussion here. The pleadings show that the respondent and the petitioner had been cohabiting with each other since August 1984, until immediately preceding the filing of this suit. During this period of time the respondent should have learned the true identity of the petitioner, including her true family name. Failing that does not afford the respondent any excuse for committing perjury. The respondent's calculated scheme of bringing perjured evidence (affidavit) to Court as a means to mislead the Court or to retard court proceedings is not only intolerable but contemptuous as well. Situations of this nature ought to be referred to the State Attorney for criminal
[3 PN.L.R. 437]
investigation and prosecution under the laws of this State.
III. Petitioner's Motion for Default Judgment
[14, 15] It appears on the record that the petitioner filed her petition for child support on October 14, 1988, and summons was issued returnable within 15 days. No return was made even after 60 days had elapsed. Rule 4 (f) of Pohnpei Rules of Civil Procedure provides,
The person serving the process shall make proof of service thereof to the Court promptly and in any event within the time during which the person served must respond to the process. The summons required the defendant to respond within 15 days after service. Rule 4(1) however states that, if service of the summons and complaint is not made upon a defendant whitn 60 days after the filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court's initiative.
Under the rules thus stated, the 60 days period after the complaint was filed on October 14,1988, should end on December 15,1988. With proof of service made to the Clerk's Office, it must then be presumed that no service was ever made. Consequently the petitioner's complaint should have been dismissed on December 15, 1988. Making proof of service by litigants or by officers or persons designated to serve process of the Court is a statutory requirement to sustain jurisdiction of the Court over the parties in the litigation. Instead of filing the petitioner's proof of service to
[3 PN.L.R. 438]
maintain jurisdiction, she filed on December 28, 1988, her motion foratemporary restraining order. Had the Court proceeded under the statute to dismiss the petitioner's petition on December 15, 1988, for failure to make proof of service, her TRO motion would have found no route to come in as it did. A new action would be necessary before a TRO motion can come in. Nevertheless, in support of her motion for a default judgment, the petitioner then filed the required proof of service on February 28, 1989.
[16,17] Inasmuch astheRulesprescribethetimelimitformaking proof of service, the petitioner is at no liberty to file such proof any time later than the prescribed period, unless there is good reason for filing it late. The petitioner fails to show any such good reason, and the Court need not ponder upon why. A late filing of proof of service of process as required by the rules without reasonable justification is to place the control of civil cases in the hands of the litigants. This the Court must not do.
It should also be noted that the petitioner carries with her a greater burden to see that hercase be placed on the judicial wheel since the filing of her complaint. Her failure should not be attributed to the respondent. The lack of prosecution has been a common
[3 PN.L.R. 439]
ground for dismissal of actions brought to this Court. This case is no exception.
The foregoing should not be read to implythat the respondent is not without any taint of fault in the procedural aspects of the case, but the Court sees no merit in discussing the procedural failures of each party at this point.
[18] The Court, however, recognizes the importance of the issues involved in this cause, and upon consideration of the equities involved, I must deny the petitioner's motion for a default judgment and will enlarge time within which the respondent must file an answer to the complaint heretofore filed in this case.
Conclusion
The familial relationship alleged in the respondent's motion and supporting affidavit is false, and a faulty ground does not justify my t'ecusal under Section 30, subsection (1), or (2) of S.L. 2L-16082, the Pohnpei Judiciary Act of 1982. I must deny the motion. Motion denied. The petitioner's motion for a default judgment is denied.
It is Ordered, that the respondent shall file his answer, if any, to the complaint of the petitioner heretofore filed within 15 days
[3 PN.L.R. 440]
after service of a copy of this Ruling on him or on his counsel.
It is further Ordered, that following receipt of the respondent's answer, trial on the issue of child support will be determined; and
It is further Ordered, that hearing on the petitioner's motion for Temporary Restraining Order is set on April 19, 1989, at 10:00 a.m. in Courtroom A.
So Ordered, April 10, 1989.
footnotes:
1. Petitioner then filed her proof of service on February 28, 1989, a period of 137 days after filing of her petition.
2. There is no Chapter 11 in the Pohnpei Judiciary Act, S.L. 2L-160-82, Respondent's quoting of Chapter II may have been reference to a different statute unrelated tothe Pohnpei Judiciary Act.
3. Disqualification statutes of FSM (4 FSMC 124) and of Pohnpei (S.L. 2L-160-82, sec. 30) are identical, except in minor differences in the Pohnpeian statute which incorporates Land Commissioners and land Registration Team Members within the meaning of a judge subject to recusal.