Allen v Kosrae [2004] FMKSC 11; 13 FSM Intrm. 55 (Kos. S. Ct. Tr. 2004) (29 November 2004)

KOSRAE STATE COURT TRIAL DIVISION
Cite case as Allen v Kosrae, 13 FSM Intrm. 55 (Kos. S. Ct. Tr. 2004)

WILSON J. ALLEN,
Plaintiff,

vs.

KOSRAE STATE, DIRECTOR OF EDUCATION HENRY
ROBERT, and PAUL HADIK, as Chief of Secondary
Education, in their official capacities,
Defendants.

__________________________________________________

CIVIL ACTION NO. 126-04

ORDERS

Aliksa B. Aliksa
Associate Justice

Hearings: September 7, November 9, 2004
Decided: November 29, 2004

APPEARANCES:

For the Plaintiff:
Canney Palsis, Esq.
Micronesian Legal Services Corporation
P.O. Box 38
Tofol, Kosrae FM 96944

For the Defendants:
Arthur Buck, Esq.
Acting Attorney General
Office of the Kosrae Attorney General
P.O. Box 870
Tofol, Kosrae FM 96944

[13 FSM Intrm.55]

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HEADNOTES

Attorney, Trial Counselor and Client - Disqualification of Counsel
When plaintiffs' counsel admitted that he had signed the verified complaint on behalf of another and that the other had been represented through proxy at a meeting during which the lawsuit was discussed and when, although that other later appeared and testified that he did not consider himself to be counsel’s client for the civil action, that he did not give permission for the complaint to be filed on his behalf, and that he does not want to be involved in this lawsuit but in a deposition did state under oath that he asked the proxy to act on his behalf, the court may conclude that at the time the complaint was filed, plaintiffs's counsel had reasonable basis to accept the proxy's representation of the other and his approval to file the complaint on his behalf and counsel will not be disqualified on that basis. Allen v. Kosrae, 13 FSM Intrm. 55, 57-58 (Kos. S. Ct. Tr. 2004).

Attorney, Trial Counselor and Client - Disqualification of Counsel
Model Rule 7.3 prohibits the solicitation of professional employment from a prospective client with whom the lawyer had no family or prior professional relationship when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. But when a person attended and participated in a meeting regarding the subject of this matter and in doing so, expressed his interest in this matter, and when counsel’s later contact with him after the meeting did not involve harassment or duress, counsel’s contact with him does not provide an adequate basis for disqualification of counsel. Allen v. Kosrae, 13 FSM Intrm. 55, 58 (Kos. S. Ct. Tr. 2004).

Attorney, Trial Counselor and Client - Disqualification of Counsel
Plaintiff's counsel’s employee’s disruptive actions at a meeting at which a defendant presided do not provide an adequate basis for disqualification of plaintiffs' counsel because she was also a parent of children who attend Kosrae High School and therefore had adequate reason to attend that meeting as an interested parent and because the defendants did not present sufficient evidence to prove that her actions at that meeting were encouraged or supported by plaintiffs' counsel. Allen v. Kosrae, 13 FSM Intrm. 55, 58 (Kos. S. Ct. Tr. 2004).

Civil Procedure - Discovery
When certain requested documents did not exist and therefore could not be provided and the plaintiffs had provided those responsive documents which were in existence at the time of issuance of the subpoena duces tecum, there is no basis for the defendants' motion to compel and accordingly it will be denied. Allen v. Kosrae, 13 FSM Intrm. 55, 58 (Kos. S. Ct. Tr. 2004).

Courts - Recusal
A judge must disqualify himself from a proceeding in which the judge's impartiality might reasonably be questioned, and in specific instances. The disqualifying factors must be from an extrajudicial source. Statements and rulings made by a judge in the course of judicial proceedings do not provide grounds for disqualification. Adverse rulings in a case are not grounds for disqualification of the presiding justice. The slow progress of the case is not based upon an extrajudicial source and therefore is not a basis for disqualification. Allen v. Kosrae, 13 FSM Intrm. 55, 59 (Kos. S. Ct. Tr. 2004).

Courts - Recusal
A charge of appearance of partiality must first have a factual basis. The standard to be applied is whether an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge's impartiality. The standard of "mere suspicion" is inadequate to support disqualification. Allen v. Kosrae, 13 FSM Intrm. 55, 59 (Kos. S. Ct. Tr. 2004).

[13 FSM Intrm.56]

Courts - Recusal
Unsolicited letters from the public, expressing their views or requests on matters pending before the court, without anything more, cannot form the basis for disqualification of the justice to whom the letter was addressed. Unsupported allegations that the presiding judge may be influenced by an unsolicited letter is speculation and is insufficient to support the judge's disqualification. Allen v. Kosrae, 13 FSM Intrm. 55, 59 (Kos. S. Ct. Tr. 2004).

Courts - Recusal
A motion to disqualify a judge that is not supported by an affidavit which explains the factual basis for the motion is insufficient and will be denied. Allen v. Kosrae, 13 FSM Intrm. 55, 59 (Kos. S. Ct. Tr. 2004).

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COURT’S OPINION

ALIKSA B. ALIKSA, Associate Justice:

A hearing on pending motions was held on November 9, 2004. The following motions were heard: (1) Defendants' Motion to Disqualify Plaintiffs' Counsel was continued from September 7, 2004; (2) Defendants' Motion to Compel Production of Documents and for Sanctions; (3) Plaintiffs' Motion to Disqualify Justice Aliksa B. Aliksa; and (4) Plaintiff Mathias Mongkeya's Request for Dismissal with Prejudice. All motions have been fully briefed by the parties. Canney Palsis, MLSC, appeared for the Plaintiffs. Defendants were represented by Arthur Buck, Acting Attorney General.

I. Defendants' Motion to Disqualify Plaintiffs' Counsel