Nahnken of Nett v Trial Division [1994] FMSC 39; 6 FSM Intrm. 339 (App. 1994) (17 February 1994)

THE SUPREME COURT OF THE
FEDERATES STATES OF MICRONESIA
Cite as Nahnken of Nett v. Trial Division, [1994] FMSC 39; 6 FSM Intrm. 339 (App. 1994)

[1994] FMSC 39; [6 FSM Intrm. 339]

ISO NAHNKEN OF NETT, SALVADOR IRIARTE,
Petitioner,

vs.

TRIAL DIVISION OF THE FSM SUPREME COURT,
Respondent,

GOVERNMENT OF THE UNITED STATES OF AMERICA, on its own and standing in the place of
THE TRUST TERRITORY OF THE PACIFIC ISLANDS, THE POHNPEI PUBLIC LANDS BOARD OF TRUSTEES,
THE ETSCHEITS, and JOHN DOES 1-49,
Real Parties in Interest.

APPEAL CASE NO. P1-1994

OPINION

Submitted: January 14, 1994
Decided: February 17, 1994

BEFORE:
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Martin Yinug, Associate Justice, FSM Supreme Court

APPEARANCES:

For the Petitioner: Mary Berman, Esq.
P.O. Box 163
Kolonia, Pohnpei FM 96941

For the Real Parties in Interest: (Robert Etscheit, Jr.) (Camille Etscheit)
Daniel J. Berman, Esq.
Rush, Moore, Craven, Sutton, Morry & Beh
2000 Hawaii Tower
745 Fort Street
Honolulu, HI 96813-3862

[6 FSM Intrm. 340]

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HEADNOTES

Courts - Recusal
In order to overturn the trial judge's denial of a motion to recuse an appellant must show an abuse of the trial judge's discretion. The same standard of review applies to a petition for a writ of prohibition ordering a judge to recuse himself. Nahnken of Nett v. Trial Division, [1994] FMSC 39; 6 FSM Intrm. 339, 340 (App. 1994).

Courts - Recusal
Where trial justice resides in housing rented by the national government and assigned to the trial justice as a statutory part of his compensation and the party before the court only seeks a monetary award for the alleged loss of the land upon which the trial justice resides the trial justice has no interest which might be substantially affected by any of the relief requested. It is therefore not an abuse of the trial justice's discretion to deny a motion to recuse for interest or bias. Nahnken of Nett v. Trial Division, [1994] FMSC 39; 6 FSM Intrm. 339, 340 (App. 1994).

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COURT'S OPINION

PER CURIAM:

On May 4, 1993, the plaintiff, Iso Nahnken of Nett, Salvador Iriarte, filed his complaint in this matter, demanding $50,000,000.00 relief for the alleged loss of lands in the Municipality of Nett. On October 5, 1993, the plaintiff filed a motion to disqualify the trial justice. The grounds alleged were that, because the trial justice resides in government assigned housing on land involved in the lawsuit, he has an interest that might be substantially affected by the outcome of the proceeding and his impartiality might reasonably be questioned.

After hearing counsel, the trial justice entered his order denying the motion to disqualify on January 12, 1994. Plaintiff petitioned the appellate division for a writ of prohibition ordering the trial justice to recuse himself in this matter. For the reasons that follow we deny the petition.

An "appellant must show an abuse of the trial judge's discretion in order to overturn the trial judge's denial of a motion to recuse." Jano v. King, [1992] FMSC 11; 5 FSM Intrm. 326, 330 (App. 1992) (citing Skilling v. FSM, [1986] FMSC 6; 2 FSM Intrm. 209, 217 (App. 1986)). That standard of review applies to this petition.

Without even a general prayer for relief, the plaintiff only seeks monetary damages from the defendants. The trial justice resides in housing rented by the national government and assigned to the trial justice as a statutory part of his compensation. The trial justice thus has no interest which might be substantially affected by any of the relief requested in this suit. Nor might his impartiality reasonably be questioned in this circumstance.

On this ground alone we conclude that the trial justice's denial of the motion to disqualify was not an abuse of his discretion. In fact, he may have made the only reasonable choice.

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