Adams v Etscheit [1989] FMPSC 2; 4 FSM Intrm. 237 (Pon. S. Ct. Tr. 1990) (26 June 1989)

4 FSM Intrm. 237 (Pon. S. Ct. Tr. 1990)

POHNPEI SUPREME COURT
TRIAL DIVISION

PCA NO. 343

YVETTE ETSCHEIT ADAMS
AND RENEE ETSCHEIT VARNER
Plaintiffs

V

ROBERT ETSCHEIT JR
Defendant

RULING ON DEFENDANT'S MOTION TO RECONSIDER

BEFORE: The Honourable Edwel H. Santos, Chief Justice, Pohnpei Supreme Court

APPEARANCES: For the Plaintiffs: Martin F. Mix; For the Defendant: Michael J. Berman and Daniel J. Berman

OPINION: June 26, 1989

HEADNOTES

Courts - Recusal
A motion requiring a trial court to reconsider its earlier ruling denying a motion for recusal may be denied where a party making the motion has been aware of the document upon which the motion is based for almost 10 years; where counsel who prepared the motion had done so without previously appearing before the trial judge to "assess the temper of that judge;" where the trial judge had studied the entire case "quite extensively" before the motion had been filed; and where there are "strong indications" that counsel is "judge-shopping," so that counsel's conduct "represents an example of a very serious and contemptuous misconduct" toward the court. Adams v. Etscheit, 4 FSM Intrm. 237, 238-40 (Pon. S. Ct. Tr. 1989).

Civil Procedure - Recusal
To apply a standard of judicial ethics established by statute in 1982 to prevent a judge in 1989 from presiding over a case because his conduct prior to 1982 suggests that he now may be biased against the party seeking recusal would be inappropriate, in the nature of an ex post facto violation, and would be contrary to "the policy favoring prospective application of court decisions [which] also applies to statutes." Adams v. Etscheit, 4 FSM Intrm. 237, 240 (Pon. S. Ct. Tr. 1989).

COURT'S RULING

EDWEL H. SANTOS, Chief Justice:

Defendant through counsel filed on June 21, 1989, a motion asking the Court to reconsider its earlier ruling rendered on May 19, 1989 (docketed May 24, 1989). The earlier ruling denied the defendant's motion to disqualify the presiding judge from hearing the case. The motion for reconsideration requests the Court to reconsider that May 19th ruling and to grant the motion for disqualification. In a letter submitted by counsel along with a copy of the motion, he indicated that his "client sees no need for a hearing on this motion." Accordingly, I proceeded to consider the motion herein, including two affidavits submitted in support thereof, re-read and re-analyzed this Court's ruling of May 19, 1989, against the arguments advanced under the motion for reconsideration, and concluded that this Court's ruling of May 19, 1989, need not be varied. This being my conclusion, nevertheless, I feel it is imperative for the record that I explain certain points of notable concern raised in the instant motion.

First, counsel's undesirable scheme of conduct. It should be pointed out that the defendant had employed three attorneys thus far since 1983, the first being Mr. Robert Keogh of Guam. Anyway, the tactic being employed by the defense counsel since they assumed the case represents, in my considered opinion, an unhealthy threat to this Court, a deficiency in character amounting to misconduct, and is calculated to sample the temper of this Court as an attempt to fish out for some supportable grounds to justify their motion for disqualification. For example:

(a) Misconduct of Counsel.

Counsel Michael Berman entered his notice of appearance on May 17, 1989, however, on April 27, 1989, counsel had already began his research work in Honolulu to disqualify Judge Santos. [See defendant's Exhibit ("A") and Attachment "1" to said exhibit]. So here it is evident that even prior to counsel being allowed to enter the case, he had already formulated his scheme to disqualify the presiding judge without even knowing whether the presiding judge would grant him permission to enter in the case. Counsel's own affidavit, Exhibit (A), paragraph 5, states that on May 11, 1989, he received for the first time his motion to disqualify judge, marked Attachment (E). If counsel only had seen for the first time on May 11, 1989, what he submitted as Attachment (E) to his motion for disqualification and upon which his motion for disqualification was grounded, how could counsel began his research on April 27, 1989, to disqualify the judge when counsel had not even appeared before that judge to assess the temper of that judge. This is awfully absurd. The defendant's own affidavit, Exhibit (B) paragraph 5 referring to the same document being relied upon to justify disqualification of the judge, shows that defendant and his attorneys were in possession of that document since December 20, 1980. Defendant having forgotten all about that document, as he claimed he had, afford no excuse; it only facilitates counsel's deficiency in character. After counsel Daniel Berman attended the first chamber conference on December 7, 1987, where the Court instructed that attorneys filed their notices of appearance in the case, he filed his notice of appearance on December 8, 1987. Why counsel did not take special attention to a piece of document which the defendant relied upon for his disqualification motion is beyond reason. And interestingly, however, immediately after this Court denied defendant's motion for disqualification on May 19, 1989, counsel filed a writ of mandamus action in the Appellate Division of this Court without even citing any authority within this jurisdiction for such an action against a justice of this Court. The Court views counsel's effort, as here, to amount to a threat to the integrity of the Court. It should be noted here that had a motion for disqualification lodged with the Court prior to the Court's entry of certain management orders, including the granting of a temporary restraining order, a different ruling by the Court could be anticipated then, but certainly not this time, especially after the presiding judge had done a substantial amount of judicial work in the proceeding since 1987.

(b) Handling of Case by Presiding Judge.