Shiro v Pios [1994] FMCSC 8; 6 FSM Intrm. 541 (Chk. S. Ct. App. 1994) (21 October 1994)

CHUUK STATE SUPREME COURT
APPELLATE DIVISION
Cite as Shiro v Pios, [1994] FMCSC 8; 6 FSM Intrm. 541 (Chk. S. Ct. App. 1994)

SINO SHIRO,
Intervenor/Appellant,

vs.

IOSIUO PIOS,
Plaintiff/Appellee,

TIO WILLY,
Defendant/Appellee,

RICHARD IMMY, MARIANO IMMY,
SINA APAP and FUSAKO SHIRO,
Intervenors/Appellees.

CA APPEAL NO. 13-93

OPINION

Argued: September 6, 1994
Decided: October 21, 1994

BEFORE:

Hon. Machime O'Sonis, Associate Justice, Chuuk State Supreme Court
Hon. Yoster Carl, Temporary Justice, Chuuk State Supreme Court*
Hon. Ready Johnny, Temporary Justice, Chuuk State Supreme Court**

*Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei
**FSM Public Defender, Weno, Chuuk

APPEARANCES:

For the Appellant/Petitioner:
Joseph Muritok
Office of the Chuuk Attorney General
P.O. Box 189
Weno, Chuuk FM 96942

For the Appellees:
Richard Eaz
FSM Public Defender Office
P.O. Box 754
Weno, Chuuk FM 96942

* * * *

HEADNOTE

Courts - Recusal
A person who is not a party cannot move for the disqualification of the trial judge because persons who are not parties of record to a suit have no standing which will enable them to take part in or control the proceedings. Shiro v. Pios, [1994] FMCSC 8; 6 FSM Intrm. 541, 543 (Chk. S. Ct. App. 1994).

* * * *

COURT'S OPINION

MACHIME O'SONIS, Associate Justice:

Although there was a notice of appeal filed in this case, this matter is an original action for a petition seeking a Writ of Mandamus directed to a Trial Division Justice. The writ seeks to have the trial judge refer petitioner's motion to disqualify to another justice of the Trial Division. The petition for the writ is denied.

I. FACTS

The petitioner in this matter is in actuality the Appellant's counsel Mr. Joseph Muritok (Muritok). Muritok is employed on a full time basis as a trial counsellor with the Chuuk State Attorney General's Office. He also represents clients in private civil matters. The action below was one of Muritok's private civil cases.^[1] In the private civil action, Muritok was representing Mr. Sino Shiro (Shiro) in a motion to intervene in the case of Iosuo Pios v. Tio Willy, Civil Action 99-88 pending before the Trial Division. The named plaintiff in that action was represented by Mr. Hans Williander also employed full time by the Chuuk State Attorney General's Office as a trial counsellor.

Before the motion to intervene was granted and Shiro was made a party to the litigation, Muritok filed a motion to disqualify the presiding justice. On the day of the hearing on the Shiro motion to intervene, the trial court informed Shiro and Mr. Muritok that Mr. Muritok would not be allowed to represent Shiro because of a conflict of interest with Mr. Williander. The court below informed Muritok that the court's actions were based on Rule 1.10 of the ABA Model Rules of Professional Conduct.

Mr. Muritok demanded the court below first refer the motion to disqualify to another justice, under Chk. S.L. 190-08, § 22, betaking any further acer action. The trial court did not and reiterated its ruling that Mr. Muritok would not be allowed to represent Shiro any further. Muritok persisted and the court below wahim that if he continued heed he would subject himself to contempt of court.

Shiro presented his motion to intervene in proper persona and asked the court for a continuance to seek other counsel. Both motions were granted. Shiro did not renew or pursue the motion to disqualify. He obtained other counsel and the case was tried without Muritok and is now under advisement.

II. ISSUES

The determinative issue is: Whether or not the petitioner had standing to file a motion to disqualify, thus requiring the lower court to refer the matter to another judge. This is a question of law and this Court reviews such questions on a de novo basis.

III. STANDING

Muritok's client was not the named plaintiff nor a named defendant, that is why he sought to join the litigation by his motion to intervene. See Chk. Civ. R. 24 (Intervention). At the time that Muritok filed his motion to disqualify the trial judge, the court had not ruled on his client's motion to intervene in the action. Therefore at that point Muritok's client was not a party of record to the litigation. Motions to disqualify under Chk. S.L. 190-08, § 22(5) are specifically limited to parties.^[2] The reason for this rule is obvious. Persons "who are not parties of record to a suit have no standing ... which will enable them to take part in or control the proceedings." 59 Am. Jur. 2d Parties § 8, at 388 (1987).

It is clearly apparent that at the time Muritok was pressing the motion to disqualify his client was not yet a party to the proceeding and had no right to bring the motion. Thus the lower court had no duty to refer the matter to another judge. Additionally, Shiro did not renew or pursue the motion to disqualify the presiding justice and the trial was completed.^[3]

Since the lower court was under no duty to hear the motion when it was first filed and the motion was not renewed after Shiro became a party, there is no cause for this Court to consider a Writ of Mandamus to compel the trial judge to do an act he was not required to do.^[4]

IV. CONCLUSION

We hold that the petitioner had no standing to bring the underlying motion to disqualify the trial court and therefore the trial court was not required to refer the motion to another justice. The trial court had no duty to refer the motion. Therefore, this Court need not consider the petition for a Writ of Mandamus any further.

The petition for the writ is denied and the appeal dismissed.

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[1] We note that there is currently a Executive Directive which prohibits the private practice of law by those employed by the executive branch of government. The enforcement of this directive is non-existent, but that is a matter for the executive not the court.
[2] "(5) A party may move to disqualify a Justice ...." Chk. S.L. 190-08, § 22(5)[Judiciary Act].
[3] Since the trial has been completed without objection by Shiro the matter of the disqualification is moot.
[4] This Court questions whether or not this appellate action was actually pursued in Mr. Shiro's name or for his benefit given the fact he did not deem it necessary to bring a motion to disqualify the trial judge after Mr. Muritok was removed from the case.