Adams v Island Homes Construction Inc [2003] FMSC 52; 12 FSM Intrm. 181 (Pon. 2003) (14 October 2003)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Adams v. Island Homes Constr., Inc., [2003] FMSC 52; 12 FSM Intrm. 181 (Pon. 2003)

[2003] FMSC 52; [12 FSM Intrm. 181]

YVETTE ETSCHEIT ADAMS, d/b/a POHNPEI
ACE HARDWARE, and ADAMS BROTHERS
CORPORATION,
Plaintiffs,

vs.

ISLAND HOMES CONSTRUCTION, INC., JOE
FELIX d/b/a ISLAND HOMES CONSTRUCTION,
FSM DEVELOPMENT BANK, PAULUS PERMAN
and LORENZA PERMAN,
Defendants.

CIVIL ACTION NO. 2000-012

ORDER

Martin Yinug
Associate Justice

Decided: October 14, 2003

APPEARANCES:

For the Plaintiffs:
Craig D. Reffner, Esq.
Law Office of Fredrick L. Ramp
P.O. Box 1480
Kolonia, Pohnpei FM 96941

For the Defendants (Island Homes, Felix):
Salomon Saimon, Esq.
Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941

[12 FSM Intrm. 182]

For the Defendant (FSM Dev. Bank):
James Woodruff, Esq.
Bank’s Legal Counsel
P.O. Box M
Kolonia, Pohnpei FM 96941

For the Defendants (Permans):
Matt Mix, Esq.
P.O. Box 143
Kolonia, Pohnpei FM 96941

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HEADNOTES

Courts - Recusal
A Supreme Court justice must disqualify himself when a person within a close relationship to him is a director of a party and also in any proceeding in which his impartiality might reasonably be questioned. Adams v. Island Homes Constr., Inc., [2003] FMSC 52; 12 FSM Intrm. 181, 182-83 (Pon. 2003).

Courts - Recusal
The recusal statute provides that a justice shall disqualify himself if a closely related person is a director of a party, not has been or was at some point in the past. Therefore when the judge’s brother’s board membership and the judge’s assignment to the case was never concurrent, there was not a time when 4 F.S.M.C. 124(2)(e)(i) was applicable, especially when the judge was not aware that his brother had been a member of party’s board until so notified by the party’s advice to the court. Adams v. Island Homes Constr., Inc., [2003] FMSC 52; 12 FSM Intrm. 181, 183 (Pon. 2003).

Courts - Recusal
The standard to be applied when a judge’s recusal is sought on the ground a judge’s impartiality might reasonably be questioned is whether a disinterested reasonable observer who knows all the circumstances would question the judge’s impartiality. Adams v. Island Homes Constr., Inc., [2003] FMSC 52; 12 FSM Intrm. 181, 183 (Pon. 2003).

Courts - Recusal
When it has now been just over three and a half years since the judge’s brother was last a party’s board member, and more than six and a half years since he first became one, and when the judge was not aware that his brother had been a board member until so advised by the party, the judge’s thinking in the course of the case could not have been influenced by a fact of which he was not aware, and the court cannot conclude that a disinterested reasonable observer who knows all of these circumstances would question the judge’s impartiality. Adams v. Island Homes Constr., Inc., [2003] FMSC 52; 12 FSM Intrm. 181, 183 (Pon. 2003).

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COURT’S OPINION

MARTIN YINUG, Associate Justice:

The defendant FSM Development Bank (the Bank) has moved to disqualify me under 4 F.S.M.C. 124(2)(e)(i) and 4 F.S.M.C. 124(1) on the basis that my brother has served on the Bank’s board of directors. Under the first statutory section a Supreme Court justice "shall disqualify himself ...: (e) where ... person within a close relationship to [him] ... is: (i) ... a director ... of a party." The

[12 FSM Intrm. 183]

latter section provides that "[a] Supreme Court justice shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." I note that the Bank has not moved to disqualify me under 4 F.S.M.C. 124(2)(e)(iv) on the basis that my brother is a material witness in this proceeding. By order of October 7, 2003, at 5, I found that there had been no showing that my brother was such a witness in this case.

According to the affidavit of the Bank’s president attached to the motion, at 4, my brother served on the Bank’s board of directors from April 7, 1997, until April 10, 2000. By order of reassignment entered on April 20, 2000, this case was assigned to me due to the illness of Chief Justice Amaraich. Section 142(2)(e)(i) provides that a justice shall disqualify himself if a closely related person is a director of a party, not has been or was at some point in the past. My brother’s board membership and my assignment to this case have never been concurrent. Thus there has not been a time when 4 F.S.M.C. 124(2)(e)(i) has been applicable. Furthermore, I was not aware that my brother was a member of the Bank’s board until so notified by the Bank’s September 3, 2003 notice of advice to the court. In that notice at 2 the Bank also stated that "[b]ecause of the posture of the instant case, FSMDB has not brought forth any motion but rather management and the undersigned believe that it is prudent to simply bring this information to the Court’s attention and to allow the Court to decide whether such information should have any effect on this case." By my order of October 7, 2003, I indicated that I was taking no action based on the Bank’s advice to the court. It was after the issuance of the October 7, 2003 order, which also limited the witnesses that the Bank will be permitted to call on the issue of the plaintiffs’ damages against it, that the Bank filed the instant motion.

The Bank has also moved to disqualify me under 4 F.S.M.C. 124(1) on the basis that my impartiality might reasonably be questioned. The standard to be applied under 4 F.S.M.C. 124(1) is whether a disinterested reasonable observer who knows all the circumstances would question the judge’s impartiality. Fu Zhou Fuyan Pelagic Fishery Co. v. Wang Shun Ren, [1996] FMSC 12; 7 FSM Intrm. 601, 605 (Pon. 1996). It has now been just over three and a half years since my brother was last a board member of the Bank, and more than six and a half years since he first became a board member. Further, as just noted, I was not aware that he had been a board member until so advised by the Bank. My thinking in the course of this case could not have been influenced by a fact of which I was not aware. I am unable to conclude that a disinterested reasonable observer who knows all of these circumstances would question my impartiality.

Accordingly, the Bank’s motion to disqualify me is denied. The trial now set for eleven days from today will proceed as scheduled.

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