Ting Hong Oceanic Enterprises v Trial Division [1996] FMSC 34; 7 FSM Intrm. 642 (App. 1996) (21 November 1996)

FSM SUPREME COURT APPELLATE DIVISION
Cite case as Ting Hong Oceanic Enterprises v Trial Divison, [1996] FMSC 34; 7 FSM Intrm 642 (App. 1996)

TING HONG OCEANIC ENTERPRISES CO., LTD.,
Petitioner,

vs.

SUPREME COURT OF THE FEDERATED STATES
OF MICRONESIA TRIAL DIVISION,
Respondent,

FEDERATED STATES OF MICRONESIA, by its
Attorney, ATTORNEY GENERAL OF THE
FEDERATED STATES OF MICRONESIA,
Real Party in Interest.

_________________________________________________

APPEAL CASE NO. P9-1996

BEFORE:

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

ORDER GRANTING WRIT OF PROHIBITION

Decided: November 21, 1996

APPEARANCE:

For the Petitioner:
John Hollinrake, Esq.
Andrew Clayton, Esq.
Law Offices of R. Barrie Michelsen
P.O. Box 1450
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTE

Courts - Recusal; Mandamus and Prohibition
Because a judge has a ministerial, non-discretionary duty to state on the record his reasons for denying a motion to disqualify himself, a writ of prohibition may issue to prevent him from proceeding further on a case until he has done so. Ting Hong Oceanic Enterprises v. Trial Division, [1996] FMSC 34; 7 FSM Intrm. 642, 643 (App. 1996).

* * * *

PER CURIAM:

Ting Hong Oceanic Enterprises Co., Ltd. (Ting Hong) petitions for a writ of prohibition, or in the alternative a writ of mandamus, restraining the trial judge from taking any further steps, including trial in the retrial of Ting Hong in Criminal Case No. 1994-502. Ting Hong filed its motion to disqualify the trial judge on September 9, 1996. The FSM filed its opposition on October 11, 1996. The motion was heard on November 5, 1996. On November 11, 1996, the motion was denied in a written order which stated that a memorandum with the reasons for the denial would issue later. This petition was filed November 19, 1996. Trial is scheduled to start November 26, 1996. No memorandum with reasons has been issued yet.

A writ of mandamus or prohibition will issue only to compel a public official to perform a ministerial, non-discretionary duty. Senda v. Trial Division, [1994] FMSC 40; 6 FSM Intrm. 336, 338 (App. 1994). The statute requires that "[u]pon receipt of . . . a mo[to dlifyalify], the the justice shall rule on it before proceeding further in the matter, stating his reasons for granting or denying it on the record." 4 F.S.M.C.6). The trial juds juds noted his reasons fons for denr denying the motion on the record. This is a ministerial, non-discretionary duty.

We thereforue a writ of prohibition directed to the trial justice in C in Criminal Case No. 1994-502 that he not proceed further with the case against defendant Ting Hong until he has stated on the record the reasons for his denial of the motion to disqualify. Once that has occurred Ting Hong may renew its petition if it is so advised.