FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite case as Federated States of Micronesia v Wainit, 13 FSM Intrm. 293 (Chk. 2005)

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

TADASHI WAINIT and KERSON RIZAL,
Defendants.

__________________________________________

CRIMINAL CASE NO. 2004-1512

ORDER DENYING RECUSAL MOTION

Martin Yinug
Associate Justice

Decided: June 24, 2005
Corrected: July 8, 2005

APPEARANCES:

For the Plaintiff:
Matthew L. Olmsted, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Defendant (Wainit):
Peter J. Stelzer, Esq.
Office of the Public Defender
P.O. Box 425
Colonia, Yap FM 96943

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HEADNOTES

Courts - Recusal
The court must decide a recusal motion before it can consider and rule on substantive motions, although the court can probably entertain and decide merely procedural matters before ruling on the recusal motion. FSM v. Wainit, 13 FSM Intrm. 293, 294 (Chk. 2005).

Courts - Recusal
The applicable statute requires that a Supreme Court justice must disqualify himself in any proceeding in which his impartiality might reasonably be questioned. FSM v. Wainit, 13 FSM Intrm. 293, 294 (Chk. 2005).

Courts - Recusal
Disqualifying factors must be from an extrajudicial source. When the only example a party gives of the court’s supposed "extrajudicial knowledge" is the court’s statement of its intention when it issued the search warrant that lead to the events in the case, it is a novel interpretation of the word "extrajudicial." Knowledge gained through the application for and issuance of a search warrant, by its nature, cannot be deemed extrajudicial knowledge. FSM v. Wainit, 13 FSM Intrm. 293, 294-95 (Chk. 2005).

Courts - Recusal
A judge’s disqualification must be made on the basis of conduct which is extrajudicial in nature that is, on some basis other than what the judge learned from his participation in the case. Information learned, or events occurring during the course of a judicial proceeding cannot be used to recuse a judge on the grounds that the events or this information has now caused him to be biased or prejudiced or that it creates an appearance of impropriety. FSM v. Wainit, 13 FSM Intrm. 293, 295 (Chk. 2005).

Courts - Recusal
A judge’s statements and rulings made in the course of judicial proceedings do not provide grounds for disqualification under 4 F.S.M.C. 124(1). Even a judge’s adverse rulings made in the course of judicial proceedings do not provide grounds for disqualification under 4 F.S.M.C. 124(1). FSM v. Wainit, 13 FSM Intrm. 293, 295 (Chk. 2005).

Courts - Recusal
A judge’s adverse rulings made in the course of judicial proceedings do not provide grounds for recusal. Nor may a recusal be based on the judge’s rulings in a related case. Thus, whether a refiled case is considered the same case as the earlier (dismissed) case or a related case, the court’s prior rulings are not a ground for recusal. FSM v. Wainit, 13 FSM Intrm. 293, 295 (Chk. 2005).

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COURT’S OPINION

MARTIN YINUG, Associate Justice:

On June 13, 2005, defendant Tadsahi Wainit filed his Motion to Recuse Justice, to which the government filed its opposition on June 21, 2005. A court must decide a recusal motion before it can consider and rule on substantive motions, 4 F.S.M.C. 124(6); see also Ting Hong Oceanic Enterprises v. Trial Division, 7 FSM Intrm. 642, 643 (App. 1996) (writ of prohibition issued to prevent judge from proceeding further until reasons given for denying recusal), although the court can probably entertain and decide merely procedural matters before ruling on the recusal motion. The applicable statute requires that a "Supreme Court justice shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 4 F.S.M.C. 124(1).

Wainit contends that the justice to which this case has been assigned should recuse himself on the ground that he has extrajudicial knowledge of the case. Wainit further contends that because of this "extrajudicial knowledge" the assigned justice must recuse himself because his impartiality might reasonably be questioned. Wainit further contends that since the assigned justice has made rulings in three different criminal cases (including the predecessor to this case) in which Wainit was a defendant that a disinterested reasonable observer would harbor doubts concerning the justice’s impartiality.

Disqualifying factors must be from an extrajudicial source. Ting Hong Oceanic Enterprises v. Supreme Court, 8 FSM Intrm. 1, 7 (App. 1997) (citing In re Main, 4 FSM Intrm. 255, 261 (App. 1990)). The only example Wainit gives of the court’s supposed "extrajudicial knowledge" is the court’s statement of its intention when it issued the search warrant that lead to the events in this case. This is a novel interpretation of the word "extrajudicial." Knowledge gained through the application for and issuance of a search warrant, by its nature, cannot be deemed extrajudicial, knowledge. A disqualification must "be made on the basis of conduct which is extrajudicial in nature" that is, "on some basis other than what the judge learned from his participation in the case." FSM v. Jonas (II), 1 FSM Intrm. 306, 318 (Pon. 1983). Information learned, or events occurring during the course of a judicial proceeding cannot be used to recuse a judge on the grounds that the events or this information has now caused him to be biased or prejudiced or that it creates an appearance of impropriety. Id. at 317-20.

Nor do a judge’s statements and rulings made in the course of judicial proceedings provide grounds for disqualification under 4 F.S.M.C. 124(1). FSM v. Ting Hong Oceanic Enterprises, 7 FSM Intrm. 644, 649 (Pon. 1996). Even a judge’s adverse rulings made in the course of judicial proceedings do not provide grounds for disqualification under 4 F.S.M.C. 124(1). Id.; FSM v. Skilling, 1 FSM Intrm. 464, 484 (Kos. 1984) (judge’s adverse rulings in a case do not create grounds for disqualification from that case); see also Damarlane v. United States, 7 FSM Intrm. 52, 54 (Pon. S. Ct. App. 1995) (recusal ordinarily may not be predicated on the judge’s rulings in the case or in related cases, nor on a demonstrated tendency to rule in a particular way, nor on a particular judicial leaning or attitude derived from his experience on the bench).

It bears noting that of the three criminal cases involving Wainit in which the court has made rulings, the court’s only action in one case was to dismiss it without prejudice, FSM v. Wainit, 12 FSM Intrm. 360 (Chk. 2004), and in another, the court entered a dismissal with prejudice, FSM v. Wainit, Crim No. 2001-1519 (Chk. June 2, 2004) (order of dismissal with prejudice). In particular, Wainit suggests that the court’s ruling in another dismissed case (that was refiled as this case) would require the court’s recusal. But a judge’s adverse rulings made in the course of judicial proceedings do not provide grounds for recusal. Ting Hong Oceanic Enterprises, 7 FSM Intrm. at 649. Nor may a recusal be based on the judge’s rulings in a related case. Damarlane, 7 FSM Intrm. at 54. Thus, whether this refiled case is considered the same case as the earlier (dismissed) case or a related case, the court’s prior rulings are not a ground for recusal.

Accordingly, Wainit’s motion to recuse is denied.

[13 FSM Intrm. 300]

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