Selifis v Robert [2017] FMCSC 3; 21 FSM R. 344 (Chk. S. Ct. App. 2017) (20 September 2017)

CHUUK STATE SUPREME COURT APPELLATE DIVISION

CSSC CIVIL APPEAL CASE NO. 02-2017
(CSSC Civil Action No. 029-2017)

NAHOY SELIFIS, as Chairman, and ANTASIO )
BISEK as Executive Director of the Chuuk State )
Election Commission, and JESSI MORI as Director )
of Department of Administrative Services, )
)
Appellants, )
)
vs. )
)
MIKE ROBERT, as Election Manager, and MOSES )
PEDRO, Chairman of Uman Election Commission, )
)
Appellees, )
)
AKAMPO NAKASHIMA, )
)
Real Party In Interest. )
_______________________________________________ )

ORDER DENYING APPELLANT’S MOTION TO DISQUALIFY JUSTICE JAYSON ROBERT

Hearing: September 14, 2017
Decided: September 14, 2017
Memorialized: September 20, 2017

BEFORE:

Hon. Larry Wentworth, Special Temporary Justice*
Hon. Bethwell O’Sonis, Special Temporary Justice**

*Associate Justice, FSM Supreme Court
**Attorney at Law, Weno, Chuuk

APPEARANCES:

For the Appellants: Sabino S. Asor, Esq.
Chuuk Attorney General
Office of the Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

For the Appellees & Jack Fritz, Esq.
Real Party in Interest: P.O. Box 788
Weno, Chuuk FM 96942

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HEADNOTES

Courts Recusal
The Chuuk State Judiciary Act prohibits justices from presiding over matters when there is a general concern that his or her impartiality might reasonably be questioned, and it also sets forth more specific disqualifying circumstances including where the justice has a personal bias or prejudice concerning a party, or his counsel, or personal knowledge of dispute evidentiary facts concerning the proceeding. Selifis v. Robert, 21 FSM R. 344, 346 (Chk. S. Ct. App. 2017).

Courts Judges
All Chuukese judges are required to adhere to the American Bar Association’s Code of Judicial Conduct. Selifis v. Robert, 21 FSM R. 344, 346 (Chk. S. Ct. App. 2017).

Courts Recusal Bias or Partiality
In order to objectively determine whether a judge may be impartial, the effective test requires the court to determine whether a disinterested reasonable person, knowing all the circumstances, would harbor doubts about the judge’s impartiality. Selifis v. Robert, 21 FSM R. 344, 346 (Chk. S. Ct. App. 2017).

Courts Recusal Bias or Partiality
When, given the loose familial ties between counsel and the justice, it is hard to find a sufficient familial or political connection between the justice and appellee’s counsel that would warrant a disinterested, reasonable individual to doubt the justice’s impartiality. Selifis v. Robert, 21 FSM R. 344, 347 (Chk. S. Ct. App. 2017).

Courts Recusal Bias or Partiality
When the Attorney General’s affidavit did not provide any basis for the belief that the justice and his family did not like his promotion to Chuuk State Supreme Court Associate Justice; when neither the motion nor its accompanying affidavit consider that being a Chuuk State Supreme Court justice has the effect of prohibiting the justice from having anything to do with the Attorney General outside of the courtroom for fear of the appearance of impropriety; when nothing in the arguments or affidavit shows that any specific transgressions occurred between the two; and when, based on the arguments, the justice would be wholly prohibited from presiding over any matter in which Chuuk was a party for the remainder of the Attorney General’s tenure (a dangerous precedent to set on so little evidence), there was not a sufficient showing of personal bias between the justice and the Attorney General that would warrant a disinterested, reasonable individual to doubt the justice’s impartiality. Selifis v. Robert, 21 FSM R. 344, 347-48 (Chk. S. Ct. App. 2017).

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COURT’S OPINION

PER CURIAM:

I. INTRODUCTION

On September 13, 2017, Appellants filed their Motion to Disqualify Justice Jayson Robert from the Present Matter. After Justice Robert withdrew, the remaining two panel members heard arguments from both parties on the matter and ultimately ruled from the bench DENYING Appellant’s motion. The following memorializes this Court’s analysis and reasoning of the issue.

II. ISSUE(S) PRESENTED

The issue before the Court is whether or not a disinterested reasonable person, knowing all the circumstances, would harbor doubts about Associate Justice Robert’s impartiality in this matter.

III. STANDARD OF REVIEW

The Chuuk State Judiciary Act prohibits justices to preside over matters when there is a general concern that his or her “impartiality might reasonably be questioned.” Chk. S.L. No. 190-08, § 22(1he Judiciary Act also slso sets forth more specific circumstances including where the justice has “a personal bias or prejudice concerning a party or his counsel, or personal knowledge of dispute evidentiary facts concerning the proceeding.” Chk. S.L. No. 190-08, § 22(2 Furthermore, all Chuu Chuukese judges are required to adhere to the American Bar Association’s Code of Judicial Conduct. Chk. S.L. No. 190-08, § 2>

In order to tive tively determine whether a er a judge may be impartial, the FSM Supreme Court set forth an effective test adopted from U.S. case law required the court to determine “whether a disinterenterested reasonable person, knowing all the circumstances, would harbor doubts about the judge’s impartiality.” FSM v. Skilling, 1 FSM R. 464, 475 (Kos. 1984).

IV. PROCEDURAL HISTORY

Appellants filed their Notice of Appeal on May 16, 2017, as an appeal of the dismissal of Chuuk State Supreme Court Trial Division Civil Action number 029-2017. We scheduled a hearing regarding Appellees’ Motion to Dismiss on September 14, 2017. Before that hearing, however, Appellant filed their Motion to Disqualify Justice Jayson Robert from the Present Matter on September 13, 2017. Appellees filed their Opposition to Motion to Disqualify Justice Jayson Robert from the Present Matter on the morning of September 14, 2017. During the September 14, 2017, hearing Presiding Justice Robert withdrew himself from the courtroom and remaining Temporary Justices Wentworth and O’Sonis heard the motion to disqualify as a preliminary matter. Opposing counsel then presented their oral arguments to the court.

Appellants’ motion was based on two grounds: the first was Justice Robert’s familial ties to Appellees’ counsel, Attorney Jack Fritz; the second was Justice Robert’s prior employment with Appellants’ counsel, Attorney General Sabino Asor, and the perceived sour note upon which Justice Robert left the Office of the Attorney General when he became a justice.

After opportunity for the two panel justices to reflect on arguments presented, we orally DENIED from the bench Appellants’ Motion to Disqualify Justice Jayson Robert from the Present Matter. The following order memorializes our reasoning.

V. ANALYSIS

We must now determine whether or not there is a sufficient showing that would compel a disinterested, reasonable individual to harbor doubts as to Associate Justice Robert’s impartiality due to the shared political affiliations of Associate Justice Robert’s father and counselor for the Appellees, Jack Fritz. Secondly, the Court must determine whether or not there is a sufficient showing that would compel a disinterested, reasonable individual to harbor doubts as to Associate Justice Robert’s impartiality due to Associate Justice Robert’s prior employment with Appellants’ counsel, Attorney General Sabino Asor, and the perceived sour note upon which Associate Justice Robert left the Office of the Attorney General when he became a justice.

In support of their motion, Appellants’ counsel filed an affidavit wherein Appellants’ counsel himself affirmed that it was common knowledge and his own personal knowledge that Jack Fritz’s and Associate Justice Robert’s mothers are “’cousins’ in the Chuukese meaning of the word.” The affidavit further asserted that the two families which are distantly from the same lineage share “problems and functions and political elections [sic] support.” More recently, as the affidavit proclaimed, Mr. Fritz’s cousin’s bid in the 2017 election was supported by Associate Justice Robert’s mother, while Associate Justice Robert’s father’s bid was supported by Mr. Fritz himself. During oral arguments before this Court, the question was posited to Appellant whether the familial ties between Associate Justice Robert and Mr. Fritz were so strong as to be explicitly prohibited by the code of conduct, and Appellants’ counsel stated they were not. The affidavit stated that given the loss of both Mr. Fritz’s cousin and Associate Justice Robert’s father in the 2017 election, this present case will offer them the opportunity to exact “vengeance” upon the present Chuuk State Executive Branch. Given the loose familial ties between Mr. Fritz and Associate Justice Robert, it is hard for us to find the existence of a vengeance conspiracy in this matter. After reviewing arguments made by both sides, as well as facts presented, we cannot currently find a sufficient familial or political connection between Associate Justice Robert and Appellee’s counsel Jack Fritz that would warrant a disinterested, reasonable individual to doubt Associate Justice Robert’s impartiality to adjudicate this matter.

As regards Appellants’ second basis for disqualification, this was proffered on a pre-existing personal relationship between Associate Justice Robert and the Attorney General himself. The Attorney General affirmed in the same previously mentioned affidavit, that Associate Justice Robert was the Deputy Attorney General in 2012, at which time the Attorney General and the current State administration decided to remove him as Deputy Attorney General in order to make him a justice at the Chuuk State Supreme Court. The affidavit posited that “Mr. Robert and his family did not like the move. Since then, Judge Robert himself never wanted to have anything to do with the affiant Attorney General if he can [sic] help it.” The affidavit did not provide any basis for his belief that Associate Justice Robert and his family did not like his promotion to Chuuk State Supreme Court Associate Justice. Furthermore, neither the motion nor its accompanying affidavit take into consideration the fact that being a justice for the Chuuk State Supreme Court has the effect of prohibiting Associate Justice Robert having anything to do with the Attorney General outside of the courtroom for fear of the appearance of impropriety.

It is unclear how Associate Justice Robert failed to have anything to do with the Attorney General, or what the Attorney General’s expectations were once Associate Justice Robert was promoted to his current position, however nothing set forth in the arguments or affidavit show that any specific transgressions occurred between the two men. Finally, based on the Appellants’ arguments, Associate Justice Robert would be wholly prohibited from presiding over any matter that came before him where Chuuk State was a party for the remaining term of Attorney General Asor’s tenure. That would be a dangerous precedent to set based on so little evidence. After reviewing arguments made by both sides, as well as facts presented, we cannot currently find a sufficient showing of personal bias between Associate Justice Robert and Attorney General Asor that would warrant a disinterested, reasonable individual to doubt Associate Justice Robert’s impartiality to adjudicate this matter.

VI. CONCLUSION

Therefore, based on the foregoing analysis this Court does not find sufficient showing that a disinterested reasonable person would harbor doubts regarding Associate Justice Robert’s impartiality in this matter. Appellant’s Motion to Disqualify Justice Jayson Robert from the Present Matter is DENIED.

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