In re Failure of Justice to Resign [1995] FMCSC 3; 7 FSM Intrm. 105 (Chk. S. Ct. App. 1995) (30 March 1995)

CHUUK STATE SUPREME COURT
APPELLATE DIVISION
Cite as In re Failure of Justice to Resign, [1995] FMCSC 3; 7 FSM Intrm. 105 (Chk. S. Ct. App. 1995)

IN THE MATTER OF THE FAILURE OF AN ASSOCIATE JUSTICE OF THE CHUUK STATE SUPREME COURT TO RESIGN HIS JUDICIAL OFFICE IN ACCORDANCE WITH CSL 190-08, § 25 ANON 5.2 OF THE ABA MODE MODEL CODE OF JUDICIAL CONDUCT (AUGUST, 1990) GOVERNOR, CHUUK STATE,
Petitioner,

vs.

HONORABLE JOHN PETEWON, Associate Just Justice,
Respondent.

ORIGINAL ACTION NO. 6 (95)

OPINION

Application for Writ: February 22, 1995
Argued and Writ Issued: March 3, 1995
Opinion: March 30, 1995

BEFORE:

Hon. Soukichi Fritz, Chief Justice, Chuuk State Supreme Court
Hon. Richard H. Benson, Temporary Justice, Chuuk State Supreme Court*
Hon. Harry Skilling, Temporary Justice, Chuuk State Supreme Court**

*Associate Justice, FSM Supreme Court, Weno, Chuuk
**Associate Justice, Kosrae State Court, Lelu, Kosrae

APPEARANCES:

For the Petitioner:
Wesley Simina, Esq.
Attorney General
Office of the Chuuk Attorney General
P.O. Box 189
Weno, Chuuk FM 96942

For the Respondent:
John R. Petewon (pro se)
P.O. Box 175
Weno, Chuuk FM 96942

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HEADNOTES

Mandamus and Prohibition
The Chuuk Judiciary Act gives the Chuuk State Supreme Court Appellate Division the authority to issue writs, including writs of mandamus or prohibition directed to a justice. In re Failure of Justice to Resign, [1995] FMCSC 3; 7 FSM Intrm. 105, 108 (Chk. S. Ct. App. 1995).

Mandamus and Prohibition
The central issues of law presented by an application for a writ mandamus are whether the act sought to be compelled is one that is ministerial or non-discretionary and whether the act is one which the respondent as a judicial or other public officer has a clear legal duty to perform. In re Failure of Justice to Resign, [1995] FMCSC 3; 7 FSM Intrm. 105, 108 (Chk. S. Ct. App. 1995).

Courts - Judges
Pursuant to the Chuuk Judiciary Act judges in Chuuk are required to adhere to the standards of the Code of Judicial Conduct of the American Bar Association which require judges to resign from judicial office upon becoming a candidate for a non-judicial office. In re Failure of Justice to Resign, [1995] FMCSC 3; 7 FSM Intrm. 105, 108 (Chk. S. Ct. App. 1995).

Mandamus and Prohibition
The purpose of a writ of mandamus is to compel a judicial or other public officer who has failed or refused to perform a non-discretionary act which results from his official station or from operation of law. In re Failure of Justice to Resign, [1995] FMCSC 3; 7 FSM Intrm. 105, 108-09 (Chk. S. Ct. App. 1995).

Mandamus and Prohibition
The five elements that must be present before the court can exercise its discretion to issue a writ of mandamus are: 1) the respondent must be a judicial or other public officer, 2) the act to be compelled must be non-discretionary or ministerial, 3) the respondent must have a clear legal duty to perform the act, 4) the respondent must have failed or refused to perform the act, and 5) there must no other adequate legal remedy available. In re Failure of Justice to Resign, [1995] FMCSC 3; 7 FSM Intrm. 105, 109 (Chk. S. Ct. App. 1995).

Statutes - Construction
The intention of the legislature as to whether a provision is mandatory or not is determined from the language used. The use of the word shall is the language of command and considered mandatory. In re Failure of Justice to Resign, [1995] FMCSC 3; 7 FSM Intrm. 105, 109 (Chk. S. Ct. App. 1995).

Courts - Judges; Mandamus and Prohibition
Pursuant to the Chuuk Judiciary Act judges in Chuuk have a clear ministerial, non-discretionary duty to resign from judicial office upon becoming a candidate for a non-judicial office. A writ of mandamus is the specific remedy to compel the performance of such a legally required ministerial act. In re Failure of Justice to Resign, [1995] FMCSC 3; 7 FSM Intrm. 105, 110 (Chk. S. Ct. App. 1995).

Mandamus and Prohibition
Although the Chuuk Constitution does subject members of the judiciary to removal from office by impeachment, the court need not decide if this is the sole method a judge may be removed from office because the issuance of a writ of mandamus is not a removal action. All the court did by issuing the writ is to require the judge to follow the applicable law and remove himself from office by resignation when he became a political candidate. In re Failure of Justice to Resign, [1995] FMCSC 3; 7 FSM Intrm. 105, 110 (Chk. S. Ct. App. 1995).

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COURT'S OPINION

SOUKICHI FRITZ, Chief Justice:

This is an original action in which the Governor [herein Petitioner] acting as the Chief Executive Officer and charged with the enforcement of the law sought the issuance of the extraordinary writ of mandamus directed to an Associate Justice [herein Respondent]. On February 22, 1995, the Petitioner filed his application for the writ alleging that the Respondent had filed as a candidate for a non-judicial office and was therefore required by Chk. S.L. 190-08, § 25 [Judiciary Act] to resign from his office. The application further alleged that this provision of the Judiciary Act was mandatory and the Respondent had a non-discretionary duty to resign and had failed to do so. On ary 23, 1995 an Order to Shto Show Cause why the writ should not be issued was filed and served on the Respondent.[1] The Respondent filed his opposition to the issuance of the writ along with several motions.[2]

A hearing was held on March 3, 1995 and the court issued the writ that same day. This opinion sets forth the reasons for the issuance of the writ.

I. Jurisdiction

The Judiciary Act gives the Appellate Division the authority to issue writs, including writs of mandamus directed to a justice. Election Commissioner v. Petewon, 6 FSM Intrm.491, 496, 1 CSR 5, 8 (Chk. S. Ct. App. 1994). Pursuant to Rule 21 of the Chuuk State Rules of Appellate Procedure only the Appellate Division has jurisdiction and discretion to issue a writ of mandamus or prohibition or any other extraordinary writ to a justice of the Chuuk State Supreme Court.

II. Issue Presented

The central issues presented by an application for a writ mandamus are: whether the act sought to be compelled is one that is ministerial or non-discretionary and whether the act is one which the Respondent as a judicial or other public officer has a clear legal duty to perform. These are questions of law.

III. Facts

The facts are simple and undisputed in this case. The Respondent, an Associate Justice of the Chuuk State Supreme Court, became a candidate for the District 4, FSM Congressional seat on January 21, 1995. The office of FSM Congressman is a legislative office. The Respondent still held his judicial office when the application for the writ was filed and continued to hold that office at the time of his appearance at the show cause hearing.

Section 25 of the Judiciary Act provides that: "Justices, [sic] and municipal judges shall adhere to the standards of the Code of Judicial Conduct of the American Bar Association except as otherwise provided by law or rule. The Chief Justice may by rule prescribe stricter or additional standards." [emphasis added]. The Judiciary Act was passed on September 17, 1990. At the time the Judiciary Act was passed the American Bar Association [ABA] had adopted the Model Code of Judicial Conduct (1990) [Code]. Among the provisions of that Code is Canon 5A(2) which states:

A judge shall resign from judicial office upon becoming a candidate for a non-judicial office either in a primary or in a general election, except that the judge may continue to hold judicial office while being a candidate for election to or serving as a delegate in a state constitutional convention if the judge is other wise permitted by law to do so.

[emphasis added].

The Petitioner alleged that the provisions of the Judiciary Act and the Code imposed a mandatory and non-discretionary duty on the Respondent to resign his judicial office once he became a candidate for the office of FSM Congress. The Petitioner further alleged that since the Respondent had failed to resign on January 21st the issuance of a writ was proper to require the Respondent to perform this ministerial duty.

The Respondent opposed the application for the writ asserting among other things that he could only be removed from office by legislative impeachment.

IV. Requirements for a Writ of Mandamus

The purpose of a writ of mandamus is to compel a judicial or other public officer who has failed or refused to perform a non-discretionary act which results from the official station of the Respondent or from operation of law. 52 Am. Jur. 2d Mandamus § 1, at 330 (; see also Senda v, Trial Division[1994] FMSC 40; , 6 FSM Intrm. 336, 338 (App. 1994). Thus, there are five elements that must be present before the court carcise its discretion to issue a writ of mandamus.

First, the respondent must be a judicial or other public officer. Second, the act to be compelled must be non-discretionary or ministerial. Third, the respondent must have a clear legal duty to perform the act. Fourth, the respondent must have failed or refused to perform the act. Of course, as with any extraordinary remedy, there must no other adequate legal remedy available.

There is no dispute that the Respondent as an associate justice of the Chuuk State Court is a judicial officer. It is unquestioned that the Respondent failed to resign his judicial office, the act the Petitioner sought to compel. No other remedy exists to compel the Respondent to perform the act the Petitioner alleges the law requires. Therefore, we now turn to the analysis of the remaining two requirements.

V. Analysis

A. Duty of the Respondent to Resign

The intention of the legislature in passing § 25 of the Judi Act as to whto whether the provision is mandatory or not is determined from the language used. 73 Am. Jur. 2d Statutes § 22 at 281 (1974). This secsion states that a justice "shall adhere to the Code of Judicial Conduct of the American Bar Association." Chk. S.L. 190-08, § 25 [emphasis added]. se of e of the word shall i language of command and cond considered mandatory. Escoe v. Zerbst, [1935] USSC 112; 295 U.S. 490, 493[1935] USSC 112; , 55 S. Ct. 818, 820[1935] USSC 112; , 79 L. Ed. 1566, 15935). We hold that § 25 of udiciary Act mand mand mandatorily requires all justices to "adhere" to the Code.

The Code that must be adhered to provides in Canon 5A(2) that a "judge shall resign from judicial office upon becoming a candidate for non-judicial office." ABA Model Code of Judicial Conduct Canon 5A(2) (1990) [emphasis added]. Thus, the use of the word shall makes this Code provision mandatory. When the court considers the purpose of the foregoing provisions any doubt regarding the mandatory nature of the requirement to resign is put to rest.

Comments to the Code explain that one of the reasons that a judge is required to resign upon becoming a candidate is that so it cannot be said that he is using his power or the prestige of his judicial position to promote his own candidacy or the success of his "party." The fact that a sitting judge is in the community soliciting votes necessarily causes the public to be suspicious that the judge is politically biased in favor of those in his own "party" and prejudice against those in the opposing "parties." The impartially and fairness of the judiciary suffers. We therefore hold that this Code provision is mandatory and together with the Judiciary Act imposes a clear duty to resign upon any justice that becomes a candidate for non-judicial office.

Congress is a part of the legislative branch of the National Government and therefore a congressional seat is a non-judicial office. The Respondent acknowledged at the show cause hearing that he had signed and filed the official nominating petition for the District 4 congressional seat. He also admitted that he was officially listed as a candidate for that office. Clearly, the Respondent has a duty to resign under the facts and the law. The remaining requirement for the issuance of a writ of mandamus is whether this duty is non-discretionary or ministerial in nature.

B. The duty to resign is non-discretionary

An act is said to be ministerial if the law that requires the performance of the act leaves no room for discretion. 52 Am. Jur. 2d Mandamus § 80402-03 (1970). In other wher words, once a certain set of facts exists the judicial or public officer is commanded by the law toorm the act, the officer has no choice. The Judiciary Act requires adherence to the Code. Tde. The Code in turn mandates resignation if a judge becomes a candidate for a non-judicial office. The law is clear and the facts that give rise to the duty exist. The Respondent had no choice but to resign when he signed and filed his nomination petition to be a candidate for Congress. This is a ministerial act. The choice the Respondent had was whether or not to become a candidate in the first place. Once he chose to become a candidate for a non-judicial office, the law required him to resign his judicial office. He failed to preform that ministerial act. A writ of mandamus is the specific remedy to compel the performance of a legally required ministerial act. Senda v. Trial Division, [1994] FMSC 40; 6 FSM Intrm. 336, 338 (App. 1994) [citations omitted]. We hold that under the undisputed facts and the mandate of the law the requirements for the issuance of the writ have been met. The only issue left to resolve is the Respondent's claims that he can only be removed from office by impeachment.

VI. Removal from Office

In the Respondent's opposition to the application and other motions, he raised several issues. All are without merit except his claim that he can only be removed from office by impeachment.

The Chuuk Constitution does in fact subject members of the judiciary to removal from office by impeachment. Chk. Const. art. V, § 19. Trocedure is available able only through legislative action. The Petitioner as an executive branch officer does not participate in that process. But the constituis silent on whether or not this is the exclusive method ofod of removing a justice from office. We note that the Legislature itself enacted the Judiciary Act which mandates adherence to the Code and gives rise to this action.[3] We need not decide this issue. This is not a removal action.

A writ of mandamus is "an extraordinary remedy for exceptional circumstances." Senda, 6 FSM Intrm. at 338. We consider the circumstances of this to be exceptional and indeed extraordinary. Circumstances that are so rare, they are unlikely to come before this court again.

The issuance of a writ of mandamus does not remove the Respondent from his judicial office. The Respondent was required to remove himself from office by resignation when he to become a candidate for Congress. All this court has done by issuing the writ is to require the Respondent to follow the law that is applicable to the choice he made.

VII. Conclusion

The Judiciary Act § 25Canon 5A(2) of the Code aode are mandatory and impose a legal duty on a justice of this court to resign his judicial office upon becoming a candidate for a non-judicial office. It is undisputed that the Respondent on January 21, 1995 became a candidate for the non-judicial office of national congressman. The Respondent failed to perform the ministerial act of resigning his office. Thus, a writ of mandamus is proper to compel the performance of that act.

Accordingly, on March 3, 1995, we issued the writ.

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^[1] The order to show cause was issued, in the absence of the Chief Justice, by the Acting Chief Justice, Associate Justice Marar who later voluntarily recused himself in response to a motion to disqualify. The Chief Justice reassigned the case to himself and reaffirmed the appointment of the panel under General Court Order 4-94.

^[2] A motion to disqualify the Chief Justice and the entire panel was made the day before the show cause hearing. The challenge to the Temporary Justices was based upon a claim that they had not been appointed properly. The Chief Justice ruled that the panel had been properly appointed under General Court Order 4-94 and referred the matter of his disqualification to a member of the panel. The disqualification of the Chief Justice was rejected after a hearing.

^[3] We also note that the constitution also gives the Chief Justice the authority and the duty to regulate the judicial profession. Chk. Const. art. VII, § 13ief Justice shall promulgomulgate . . . the regulations of the judicial profession"].