Etscheit v Santos [1991] FMSC 18; 5 FSM Intrm. 111 (App. 1991) (25 July 1991)

[1991] FMSC 18; 5 FSM Intrm. 111 (App. 1991)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION

FSM APPEAL CASE P1-1990

ROBERT ETSCHEIT, JR
Petitioner

V

HONORABLE EDWEL SANTOS
Respondent

V

YVETTE ETSCHEIT ADAMS
AND RENEE ETSCHEIT VARNER
Plaintiffs

ORDER

DECIDED: July 25, 1991

BEFORE: The Honorable Edward C. King, Chief Justice, FSM Supreme Court
The Honorable Richard H. Benson, Associate Justice, FSM Supreme Court
The Honorable Mamoru Nakamura, Designated Justice, FSM Supreme Court*

*Chief Justice, Supreme Court of the Republic of Palau, on this Court by designation for this case

APPEARANCES: For the Petitioner: Daniel J. Berman; For the Respondent: Joses R. Gallen, Pohnpei State Attorney; For the Plaintiffs: Fredrick L. Ramp, Attorney-at-Law

HEADNOTE

Appeal and Certiorari; Courts - Recusal
Where an appellate court has held that a trial judge is under a clear and non-discretionary duty to step aside from presiding over a case and the petitioner has a constitutional right to obtain compliance with that duty, all documents issued after the date of the appellate decision are null and void and shall be expunged from the record and the judge shall be enjoined from taking any further action as a judge in the case. Etscheit v. Santos, [1991] FMSC 18; 5 FSM Intrm. 111, 113 (App. 1991).

COURT'S OPINION

PER CURIAM:

On March 25, 1991 this Court held that the Honorable Edwel H. Santos, Pohnpei Supreme Court Chief Justice, who had been presiding as trial judge over Pohnpei Supreme Court Trial Division Civil Action No. 343, was under a "clear, nondiscretionary duty to step aside" and that the petitioner, Robert Etscheit, Jr., had "a constitutional right of due process to obtain compliance with that duty." Etscheit v. Santos, [1991] FMSC 32; 5 FSM Intrm. 35, 46 (App. 1991).

The petitioner has now returned to this Court asking us to enforce that declaration of law "to avert a miscarriage of justice." The various parties have filed memoranda concerning Mr. Etscheit's renewed petition to this Court, and all parties have waived oral argument.

We have reviewed carefully the actions of the trial judge taken after March 25, 1991 and have concluded that those actions were in violation of the decision of March 25 and of the petitioner's constitutional rights, and therefore must be set aside.

NOW THEREFORE IT IS HEREBY ORDERED that:

1. All orders and documents issued after March 25, 1991 by the Honorable Edwel H. Santos as trial judge in Civil Action No. 343 are null and void and shall be expunged from the record.

2. The Honorable Edwel H. Santos is hereby prohibited and enjoined from taking any further action as a judge in connection with Civil Action 343, including the transfer of that case to another forum, PROVIDED HOWEVER that he shall, in his capacity as Pohnpei State Chief Justice, and no later than August 5, 1991, assign Civil Action 343 to a justice of the Pohnpei Supreme Court trial division, to permit the litigation to proceed without further delay and to assure compliance with this order and the decision of March 25, 1991.