FSM SUPREME COURT TRIAL DIVISION
CIVIL ACTION NO. 2019-1001

LUISITO MACAYON,
Plaintiff,

vs.

FEDERATED STATES OF MICRONESIA	through its DIVISION OF IMMIGRATION AND LABOR, DEPARTMENT OF JUSTICE OF THE FEDERATED STATES OF MICRONESIA,
Defendant.
__________________________________________

ORDER DENYING DISQUALIFICATION MOTION

Larry Wentworth
Associate Justice

Decided:  September 9, 2019

APPEARANCES:

For the Plaintiff:	Stephen V. Finnen, Esq.
P.O. Box 1450
Kolonia, Pohnpei FM 96941

For the Defendant:	Carolyn Crump, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

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HEADNOTES

Civil Procedure - Motions - Unopposed
Failure to oppose a motion is deemed consent to the motion, but even then, the court still needs good grounds before it can grant the motion.  Macayon v. FSM, 22 FSM R. 317, 319 (Chk. 2019).

Courts - Recusal - Procedure
The statute requires that a disqualification motion be accompanied by an affidavit stating the reasons for the belief that grounds for disqualification exist.  A disqualification motion may be denied solely on the ground that the movant failed to accompany it with an affidavit setting forth the motion’s factual basis.  Macayon v. FSM, 22 FSM R. 317, 319 (Chk. 2019).

Courts - Recusal - Extrajudicial Knowledge
A Supreme Court justice must disqualify himself when he has personal knowledge of disputed evidentiary facts concerning the proceeding.  Personal knowledge is knowledge gained through firsthand observation or experience, as distinguished from a belief based on what someone else said.  Macayon v. FSM, 22 FSM R. 317, 319-20 (Chk. 2019).

Courts - Recusal - Extrajudicial Knowledge
A judge has no personal knowledge - no firsthand observation or experience - when he was not present when any of them occurred, and when it is not clear that any of the case’s operative facts will be disputed evidentiary facts.  Macayon v. FSM, 22 FSM R. 317, 320 (Chk. 2019).

Courts - Recusal - Extrajudicial Knowledge
The general rule is that the jurist’s knowledge of disqualifying facts must have originated from an extrajudicial source.  Extrajudicial means outside court, outside the functioning of the court system.  Macayon v. FSM, 22 FSM R. 317, 320 (Chk. 2019).

Courts - Recusal - Extrajudicial Knowledge
When a judge has no personal knowledge, or any extrajudicial knowledge, of the case’s operative facts or of any disputed evidentiary facts, he is unable to use 4 F.S.M.C. 124(2)(a) to disqualify himself from the case.  Macayon v. FSM, 22 FSM R. 317, 320 (Chk. 2019).

Courts - Recusal - Bias or Partiality
A Supreme Court justice must disqualify himself in any proceeding in which his impartiality might reasonably be questioned.  Macayon v. FSM, 22 FSM R. 317, 320 (Chk. 2019).

Courts - Recusal
A statement that something is "likely" is speculation.  Allegations, that are purely speculative, are insufficient to support a judge’s disqualification.  Macayon v. FSM, 22 FSM R. 317, 320 n.1 (Chk. 2019).

Courts - Recusal - Bias or Partiality
The type of partiality at which 4 F.S.M.C. 124(1) is aimed is extrajudicial bias, or bias resulting from information received by the judge outside of the judicial proceeding or proceedings in which the judge has participated.  Macayon v. FSM, 22 FSM R. 317, 320 (Chk. 2019).

Courts - Recusal - Bias or Partiality
A movant has not shown that a judge’s impartiality might reasonably be questioned when it has not shown that a disinterested reasonable person, who knows all the circumstances, would harbor doubts about the judge’s impartiality.  A judge then is unable to disqualify himself under 4 F.S.M.C. 124(1).  Macayon v. FSM, 22 FSM R. 317, 320 (Chk. 2019).

Courts - Recusal - Judge’s Duty
Absent a showing that the judge is disqualified under 4 F.S.M.C. 124, a judge is obligated to hear the cases assigned to that judge.  This is because a judge must exercise the power to recuse himself conscientiously and cannot use it to avoid difficult or controversial cases or to merely accommodate nervous litigants or counsel.  Macayon v. FSM, 22 FSM R. 317, 321 (Chk. 2019).

Courts - Recusal - Judge’s Duty
When it is not the judge’s duty to disqualify himself from a case to which he has been assigned, it is the judge’s duty to serve.  Macayon v. FSM, 22 FSM R. 317, 321 (Chk. 2019).

Courts - Recusal - Judge’s Duty
When the movant has not shown that the judge is disqualified from hearing the case, and the judge is not aware of other grounds that would disqualify him, the judge is obligated to hear the case, and must deny the disqualification motion.  Macayon v. FSM, 22 FSM R. 317, 321 (Chk. 2019).

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COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

On August 7, 2019, the defendant, the Federated States of Micronesia, filed its Motion for Disqualification of Supreme Court Justice, with supporting memorandum of points and authorities.  No opposition has been filed.  The failure to oppose a motion is generally deemed a consent to the motion, FSM Civ. R. 6(d); Eot Municipality v. Elimo, 20 FSM R. 7, 9 (Chk. 2015), but even then, the court still needs good grounds before it can grant the motion.  Senda v. Mid-Pacific Constr. Co., 6 FSM R. 440, 442 (App. 1994); Lee v. Lee, 13 FSM R. 68, 71 (Chk. 2004).

I.  The Disqualification Motion

The FSM asks that I disqualify myself from this case because I, as a Chuuk State Supreme Court trial division temporary justice, preside over a divorce case, Civil Action No. 005-2016, in which the plaintiff herein, Luisito Macayon, is the respondent.  The FSM contends that, by presiding over that divorce case, "it is likely" that I have "extrajudicial knowledge of the operative facts of this case" because this case, in which the FSM seeks to deport Luisito Macayon, is based on the plaintiff’s state court misdemeanor assault conviction after an altercation with his wife.

The FSM states that "[t]he facts in the divorce proceedings involve some of the same operative facts" as this case.  It relies on 4 F.S.M.C. 124(1) and 4 F.S.M.C. 124(2)(a) to conclude that my disqualification is now required because my impartiality in this case might reasonably be questioned and because "it is likely" that I already have personal or extrajudicial knowledge of this deportation case’s operative facts learned from presiding over the Macayon divorce case.

II.  Disqualification Grounds

A.  Lack of Statutorily-Required Affidavit

The FSM’s motion was not accompanied by a supporting affidavit.  The statute requires that a disqualification "motion shall be accompanied by an affidavit stating the reasons for the belief that grounds for disqualification exist . . . ."  4 F.S.M.C. 124(6).  A disqualification motion may be denied solely on the ground that the moving party failed to accompany it with an affidavit setting forth the motion’s factual basis.  Jonas v. FSM, 2 FSM R. 238, 239 (App. 1986); Skilling v. FSM, 2 FSM R. 209, 216-17 (App. 1986); FSM Dev. Bank v. Christopher Corp., 20 FSM R. 225, 228 (Chk. 2015); Jano v. King, 5 FSM R. 266, 268 (Pon. 1992); see also Miju Mulsan Co. v. Carl-Worswick, 20 FSM R. 660, 662 (App. 2016).

But even if the contents of the FSM’s points and authorities had been averred in an affidavit, they are still insufficient to support granting the motion.

B.  Personal Knowledge of Disputed Facts, 4 F.S.M.C. 124(2)(a)

Under 4 F.S.M.C. 124(2)(a), a Supreme Court justice must "disqualify himself . . . (a) where he has . . . personal knowledge of disputed evidentiary facts concerning the proceeding."  Personal knowledge is "[k]nowledge gained through firsthand observation or experience, as distinguished from a belief based on what someone else said."  Black’s Law Dictionary 951 (9th ed. 2009).

Obviously, I have no personal knowledge - no firsthand observation or experience - of any of the operative facts in this deportation case or in the divorce case.  I was not present when any of them occurred.  And, it is not clear that any of this case’s "operative facts" will be disputed evidentiary facts.  "The general rule is that the jurist’s knowledge of disqualifying facts must have originated from an extrajudicial source."  Halbert v. Manmaw, 20 FSM R. 245, 250 (App. 2015).  Extrajudicial means "[o]utside court; outside the functioning of the court system."  Black’s Law Dictionary 665 (9th ed. 2009).

Whatever I might have learned from the plaintiff’s divorce proceedings, is not "extrajudicial" - not from outside court or from outside of a court system’s functioning - because it came from a court case over which I presided.  To be disqualifying, the disqualifying ground must come from an extrajudicial source or conduct.  Heirs of Tulenkun v. Aliksa, 19 FSM R. 191, 195 (App. 2013); FSM v. Wainit, 13 FSM R. 293, 294-95 (Chk. 2005).

I, however, seem not to have learned anything in that case about this case’s operative facts.  It just has not come up.  The parties, after an unsuccessful reconciliation attempt at the start of this year, stipulated to a divorce decree, which the court duly entered.  I did not make, bor was I asked to make, any findings of fact before entering the divorce decree.  The only matters left in the state court case are the identification of and the division of the marital property.

Since I have no personal knowledge, or any extrajudicial knowledge, of this case’s "operative facts" or of any disputed evidentiary facts, I am unable to use 4 F.S.M.C. 124(2)(a) to disqualify myself from this case.

C.  Appearance of Partiality, 4 F.S.M.C. 124(1)

The FSM also states that I may be disqualified under 4 F.S.M.C. 124(1).  That statute provides 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).  The FSM asserts that my impartiality might reasonably be questioned since it is "likely"1 that I have personal or extrajudicial knowledge of certain facts.

This argument mirrors the previous one.  It fails for the same reasons.  "The type of partiality at which 4 F.S.M.C. 124(1) is aimed is extrajudicial bias, or bias resulting from information received by the judge outside of the judicial proceeding or proceedings in which the judge has participated."  Berman v. Rosario, 15 FSM R. 337, 341 (Pon. 2007) (citing Hartman v. Bank of Guam, 10 FSM R. 89, 96 (App. 2001)).  But I have no such knowledge.  I have not received any information outside of the judicial proceedings in which I have participated.

The FSM has not shown that my impartiality might reasonably be questioned because it has not shown that a disinterested reasonable person, who knows all these circumstances, would harbor doubts about my impartiality.  Therefore, I am unable to disqualify myself under 4 F.S.M.C. 124(1) either.

III.  Judicial Obligations

Absent a showing that the judge is disqualified under 4 F.S.M.C. 124, a judge is obligated to hear the cases assigned to that judge.  See Halbert v. Manmaw, 20 FSM R. 245, 250 (App. 2015); Hartman v. Bank of Guam, 10 FSM R. 89, 98 (App. 2001); Berman v. Rosario, 15 FSM R. 337, 341 (Pon. 2007).  This is because a judge must exercise the power to recuse himself conscientiously and cannot use it to avoid difficult or controversial cases or to merely accommodate nervous litigants or counsel.  Fu Zhou Fuyan Pelagic Fishery Co. v. Wang Shun Ren, 7 FSM R. 601, 605 (Pon. 1996); FSM v. Skilling, 1 FSM R. 464, 471 (Kos. 1984), aff’d, 2 FSM R. 209 (App. 1986).  When it is not the judge’s duty to disqualify himself from a case to which he has been assigned, it is the judge’s duty to serve.

The FSM has not shown that I am disqualified from hearing this case.  Nor am I aware of other grounds that would disqualify me.  I am therefore obligated to hear this case.  Accordingly, the disqualification motion must be denied.

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