CHUUK STATE SUPREME COURT
TRIAL DIVISION

Cite as Kristoph v. Emin
10 FSM Intrm. 650 (Chk. S. Ct. Tr. 2002)

[10 FSM Intrm. 650]

NITE PAUL KRISTOPH,
Plaintiff,

vs.

PASIANO EMIN,
Defendant,

vs.

ROSE L. WALTER et al.,
Intervenors.

CSSC CA NO. 67-01

ORDER DENYING MOTION TO DISQUALIFY PRESIDING JUDGE

Soukichi Fritz
Chief Justice

Hearing:  April 11, 2002
Decided:  May 13, 2002

APPEARANCES:

For the Plaintiff:	Ben Enlet
P.O. Box 1650
Julio Akapito
P.O. Box 303
Weno, Chuuk FM 96942

[10 FSM Intrm. 651]

For the Defendant:	Wesley Simina, Esq.
P.O. Box 94
Weno, Chuuk FM 96942

For the Intervenors:	Ermino Fritz
P.O. Box 604
Weno, Chuuk FM 96942

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HEADNOTES

Courts - Recusal
A Chuuk State Supreme Court trial justice must be disqualified when the justice’s impartiality might reasonably be questioned where he or his spouse, or a person within a close relationship to either of them, or the spouse of such person is a party to the proceeding.  Kristoph v. Emin, 10 FSM Intrm. 650, 652 (Chk. S. Ct. Tr. 2002).

Courts - Recusal
The ABA Code of Judicial Conduct provides that a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including when the judge or the judge’s spouse, or a person related to either within the third degree of relationship, or the spouse of such a person is a party to the proceeding.  Kristoph v. Emin, 10 FSM Intrm. 650, 652-53 (Chk. S. Ct. Tr. 2002).

Courts - Recusal
In order to obtain a justice’s disqualification based upon Chk. S.L. No. 190-08, section 22(2)(d)(i), the moving party must establish by admissible evidence that the alleged relationship is within the third degree of relationship.  It is not sufficient for disqualification that a party show that a justice is related to a party or a party’s spouse solely by virtue of their membership in the same clan.  Kristoph v. Emin, 10 FSM Intrm. 650, 653 (Chk. S. Ct. Tr. 2002).

Courts - Recusal
When counsel’s affidavit in support of a recusal motion fails to demonstrate in any way how he has personal knowledge of the relationships contained in his affidavit, rather than knowledge based upon statements made to him by others, his affidavit is deficient, and must be disregarded.  Kristoph v. Emin, 10 FSM Intrm. 650, 654 (Chk. S. Ct. Tr. 2002).

Courts - Recusal
When it is impossible to determine from an affidavit whether the degree of relationship is within the third degree of consanguinity, a motion to disqualify will be denied because failure to establish the degree of relationship by admissible evidence is fatal to a motion to disqualify.  Kristoph v. Emin, 10 FSM Intrm. 650, 654 (Chk. S. Ct. Tr. 2002).

Courts - Recusal
Claims that a trial justice has shown disfavor toward intervenors’ counsel, or bias in rulings in the instant case or other cases can be dismissed as failing to provide valid grounds for disqualification.  Kristoph v. Emin, 10 FSM Intrm. 650, 654 (Chk. S. Ct. Tr. 2002).

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[10 FSM Intrm. 652]

COURT’S OPINION

SOUKICHI FRITZ, Chief Justice:

The motion of intervenors to disqualify the trial Justice in this case came regularly for hearing before the Honorable Soukichi Fritz, Chief Justice, on April 11, 2002, at 9:00 AM.  All parties appeared by and through their respective counsel.  The motion had been briefed, and argument was made and the matter submitted.  For the reasons stated below, the Court denies Intervenors’ motion to disqualify the trial Justice.

I.  Procedural Facts

This case, involving conflicting claims to tidelands, was filed on April 4, 2001, and was assigned to Associate Justice Machime O’Sonis.  No objection to Justice O’Sonis was made by either the Plaintiff or the Defendant, when the case was originally assigned or when Defendant appeared and answered the complaint.  The parties proceeded with the pre-trial phase of the dispute, and various motions were made, heard and decided by the trial Justice.

On January 17, 2002, Intervenors, appearing pro se, filed their motion to intervene in the action, together with their proposed complaint seeking quiet title to the disputed tidelands.  The motion to intervene was granted, on an uncertain date but prior to January 29, 2002, when counsel for Intervenors filed his appearance on their behalf with the Court.  On February 8, 2002, Intervenors filed their complaint in intervention, and on February 15, 2002 Intervenors brought their motion to disqualify the trial Justice.  The motion was referred to me for decision by the trial Justice pursuant to Chuuk State Law 190-08, section 22(5).

II.  Reasons for Denial of Motion

The motion was brought pursuant to Chk. S.L. No. 190-08, § 22(2)(d)(i), which provides that a trial Justice must be disqualified where the Justice’s impartiality might reasonably be questioned, including:  "(d) where he or his spouse, or a person within a close relationship to either of them, or the spouse of such person is:  (i) a party to the proceeding . . . ."  (emphasis added).  Intervenors presented no evidence, by affidavit or otherwise, that there is a direct familial relationship between Plaintiff, or her husband, and the trial Justice.  Rather, Intervenors argued that the husband of the Plaintiff, Abel Kristoph, and the trial Justice are both members of the Masano Clan, and that as a result of this clan relationship, the trial Justice must be disqualified from hearing the case.  We do not read Section 22(2)(d)(i) as broadly as do the Intervenors.

Chuuk State Law 190-08, section 25 provides that the Justices of the Chuuk State Supreme Court "shall adhere to the standards of the Code of Judicial Conduct of the American Bar Association . . . ."  The requirements for disqualification are contained in Canon 3C of the Code.  Canon 3C provides, in relevant part:

(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which:

[10 FSM Intrm. 653]

(a) - (c)

(d) the judge or the judge’s spouse, or a person related to either within the third degree of relationship, or the spouse of such a person:

(i) is a party to the proceeding . . . .

(emphasis added).

While the language in Chk. S.L. 190-08, section 22(2)(d)(i) is less specific than the language in Canon 3C(d)(i), and might be construed to require disqualification where a Justice has a close relationship with a party beyond the third degree of relationship, we are of the belief that we should apply the standards contained in the Code of Judicial Conduct, Canon 3(C) when determining whether disqualification for a close relationship is mandated.

In FSM v. Skilling, 1 FSM Intrm. 464 (Kos. 1984), the Court faced a similar issue in interpreting 4 F.S.M.C. 124(1).  The Court found that other than the same modification as exists in Chk. S.L. No. 190-08, section 22(d)(i), 4 F.S.M.C. 124 is functionally equivalent to Canon 3C and to 28 U.S.C. 455, the United States federal disqualification statute.  Skilling, 1 FSM Intrm. at 469-71.  The Court in Skilling determined that because of the realities of judicial administration in Micronesia, especially the small number of qualified judges to hear disputes in the FSM, the demands of judicial administration and economy precluded a more expansive interpretation of the disqualification statutes.

We find the same circumstances here.  The Chuuk State Supreme Court is presently functioning with only four Justices.  Permitting disqualification based upon a more remote relationship than that of the third degree might cause a significant strain on already limited judicial resources.  We can imagine circumstances under which claims could be made that all Justices are in some degree related to a party, an attorney or spouse of a party, by membership in the same or a related clan, thus disqualifying all Justices from hearing a particular matter.  Such a result is clearly contrary to the best interests of a well functioning judiciary.

For this reason, we hold that in order to obtain disqualification of a Justice based upon the provisions of Chk. S.L. No. 190-08, section 22(2)(d)(i), the moving party must establish by admissible evidence that the alleged relationship is within the third degree of relationship.  It shall not be sufficient for disqualification that a party show that a Justice is related to a party or the spouse of a party solely by virtue of their membership in the same clan.

For this reason we also find that the clan relationship between the wife of the trial Justice and the plaintiff - both are alleged to be from the Saponupi clan - is insufficient to establish a relationship sufficiently close to require the disqualification of the trial Justice.

Intervenors’ contention that the adoption by Regina Killion of Haruo Ieseki, who is alleged by Intervenors to the uncle of the husband of the Plaintiff, in some way disqualifies the trial Justice is also without merit.

First, the affidavit in support of the motion to disqualify is signed by counsel for Intervenors.  Counsel fails to demonstrate in any way how he has personal knowledge of the relationships contained

[10 FSM Intrm. 654]

 in his affidavit, rather than knowledge based upon statements made to him by others.  As such, his affidavit is deficient, and must be disregarded.  Chuuk v. Secretary of Finance, 7 FSM Intrm. 563, 570 n.8 (Pon. 1996).

Secondly, Intervenors’ affidavit fails to set out the relationship between Ifou Killion and Regina Killion, or the degree of relationship between Regina Killion and the family of the wife of the trial Justice.  Thus, it is impossible to determine from the affidavit whether the degree of relationship is within the third degree of consanguinity.  Failure to establish the degree of relationship by admissible evidence is fatal to the motion to disqualify.  Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 92, 100 (Kos. S. Ct. Tr. 1987).

The other claims of Intervenors - that the trial Justice has shown disfavor toward counsel for Intervenors, or bias in rulings in the instant case or other cases - can likewise be dismissed as failing to provide valid grounds for disqualification.  Skilling, 1 FSM Intrm. at 472-74.

For the reasons stated, the motion of Intervenors to disqualify the trial Justice is denied.

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______________________________________
Footnotes:
1. As of December, 1992.  The organization of the Code of Judicial Conduct may have changed since that date.
2. The phrase "Within a close relationship" is used in both statutes rather than the phrase "within the third degree of relationship" used in the Code of Judicial Conduct.