Heirs of Sigrah v George [2019] FMSC 10; 22 FSM R. 211 (App. 2019) (15 March 2019)

FSM SUPREME COURT APPELLATE DIVISION
APPEAL CASE NO. K6-2016

HEIRS OF HERBERT SIGRAH,
Appellants,

vs.

ROBERT R. GEORGE, HEIRS OF SHREW JERRY,
HEIRS OF ISAO SIGRAH, JOHN A. TULENKUN,
HEIRS OF FLORIAN NENA, and JOAB SIGRAH,
Appellees.
_____________________________________________

OPINION

Argued: May 3, 2018
Decided: March 15, 2019

BEFORE:

Hon. Dennis K. Yamase, Chief Justice, FSM Supreme Court
Hon. Larry Wentworth, Associate Justice, FSM Supreme Court
Hon. Camillo Noket, Specially Assigned Justice, FSM Supreme Court*

*Chief Justice, Chuuk State Supreme Court, Weno, Chuuk

APPEARANCES:

For the Appellants: Snyder H. Simon, Esq.
P.O. Box 1017
Tofol, Kosrae FM 96944

For the Appellees: Yoslyn G. Sigrah, Esq.
P.O. Box 3018
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Appellate Review - Standard - Civil Cases - Factual Findings
When reviewing an appeal from a Land Court decision, the Kosrae State Court uses the "substantial-evidence rule" to review the Land Court’s factual findings, and otherwise determines whether that decision was contrary to law, and, if the Land Court decision is ultimately appealed to the FSM Supreme Court appellate division, the FSM Supreme Court will use the same standard of review. Heirs of Sigrah v. George, 22 FSM R. 211, 216 (App. 2019).

Appellate Review - Standard - Civil Cases - De Novo
Issues and matters of law are reviewed de novo. Heirs of Sigrah v. George, 22 FSM R. 211, 216 (App. 2019).

Appellate Review - Standard - Civil Cases - Abuse of Discretion
An appellate court reviews a trial court’s denial of a Rule 60(b) motion under an abuse of discretion standard. Heirs of Sigrah v. George, 22 FSM R. 211, 216 (App. 2019).

Appellate Review - Standard - Civil Cases - Abuse of Discretion
The standard of review for a denial of a motion to recuse is whether the trial judge abused his discretion in denying the motion to recuse. Heirs of Sigrah v. George, 22 FSM R. 211, 216 (App. 2019).

Appellate Review - Standard - Civil Cases - Abuse of Discretion
The standard test for a trial court’s abuse of discretion is whether its decision is clearly unreasonable, arbitrary, or fanciful, or if the decision was based on an erroneous conclusion of law or if there is no evidence in the record upon which the court could have rationally based its decision, and an appellate court will find an abuse of discretion only when there is a definite and firm conviction, upon weighing all the relevant factors, that the lower court committed a clear error of judgment in its conclusion. Heirs of Sigrah v. George, 22 FSM R. 211, 216 (App. 2019).

Courts - Recusal - Procedure
It is a well recognized rule that an application for a trial judge’s disqualification must be filed at the earliest opportunity. This rule is strictly applied against a party, who had knowledge of the facts that establish a disqualification, but did not ask for the judge’s disqualification until an unfavorable ruling was made in the matter. Heirs of Sigrah v. George, 22 FSM R. 211, 217 (App. 2019).

Courts - Recusal - Procedure
A motion to recuse should be brought before the trial or hearing unless good cause is shown for filing at a later time. Heirs of Sigrah v. George, 22 FSM R. 211, 217 (App. 2019).

Courts - Recusal - Close Relationship; Courts - Recusal - Procedure
Sufficient cause for a party to seek the presiding judge’s disqualification after he has made his decision is shown when the presiding judge disclosed his uncle-nephew relationship with the parties while rendering his decision and further discussed a different, related case wherein he indicated that, because a party in that case lost, it was rightful that he also lose this case. Heirs of Sigrah v. George, 22 FSM R. 211, 217 (App. 2019).

Courts - Recusal - Bias or Partiality
A judge must disqualify himself from a proceeding in which the judge’s impartiality might reasonably be questioned. The disqualifying factors must be from an extrajudicial source. Heirs of Sigrah v. George, 22 FSM R. 211, 218 (App. 2019).

Courts - Recusal - Bias or Partiality
A charge of appearance of partiality must first have a factual basis. The standard to be applied is whether an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge’s impartiality. Heirs of Sigrah v. George, 22 FSM R. 211, 218 (App. 2019).

Courts - Recusal - Procedure
A party’s motion to disqualify a judge must be supported by an affidavit. Heirs of Sigrah v. George, 22 FSM R. 211, 218 (App. 2019).

Courts - Recusal - Bias or Partiality; Courts - Recusal - Procedure
Generally, an affidavit is required to provide a factual basis for questioning a judge’s impartiality, but other admissible evidence may be used to support a motion to recuse. When the presiding justice’s own statements about his own knowledge of facts relating to the incident and the defendant’s alleged conduct, were made on the record in the courtroom hearings, these statements may be used to question a justice’s impartiality and be a basis for disqualification. Under such facts, the affidavit requirement is satisfied by other admissible evidence: the record of the hearings. Heirs of Sigrah v. George, 22 FSM R. 211, 218 (App. 2019).

Courts - Recusal - Close Relationship; Courts - Recusal - Procedure
The movants have met the standard for showing a factual basis for the judge’s disqualification when they have provided an affidavit from a disinterested observer who has pointed to the close familial ties and friendship that the judge has with the case’s parties. Heirs of Sigrah v. George, 22 FSM R. 211, 218 (App. 2019).

Courts - Recusal - Extrajudicial Knowledge
Disqualification is required when the judge has personal knowledge of disputed evidentiary facts concerning the proceeding. The term "disputed evidentiary facts concerning the proceeding" means facts involved in the actions or conduct of the persons in a case. Heirs of Sigrah v. George, 22 FSM R. 211, 218, 219 (App. 2019).

Courts - Recusal - Bias or Partiality
It is not unusual for the same judge to hear interrelated matters involving one or more parties in common, and the fact that the same judge hears different cases involving the same party or parties, and related issues does not automatically result in an appearance of partiality. Heirs of Sigrah v. George, 22 FSM R. 211, 218 (App. 2019).

Courts - Recusal - Judicial Statements or Rulings
A judge’s statements and rulings made in the course of judicial proceedings do not provide grounds for disqualification. Adverse rulings in a case are not grounds for the presiding judge’s disqualification. Heirs of Sigrah v. George, 22 FSM R. 211, 218 (App. 2019).

Courts - Recusal - Bias or Partiality; Courts - Recusal - Extrajudicial Knowledge
A judge’s disqualification is required when the judge’s impartiality might reasonably be questioned, and one specific basis for disqualification is when the justice has personal knowledge of disputed evidentiary facts concerning the proceeding. Heirs of Sigrah v. George, 22 FSM R. 211, 218-19 (App. 2019).

Appellate Review - Standard - Civil Cases - Factual Findings
The Chief Justice’s use of another case as evidence is improper because he was sitting as an appellate court with its terms of review set by statute, and that statute provided that no evidence or testimony can be considered at the appeal hearing except the official record, transcripts, and exhibits received at the Land Court hearing, since the Chief Justice considered evidence that the statute prohibited him from considering, unless that evidence was part of the Land Court record or is only being cited for a principle of law. Heirs of Sigrah v. George, 22 FSM R. 211, 219 (App. 2019).

Courts - Judges
Kosrae state judges are bound by the 2000 version of the American Bar Association Code of Judicial Conduct, which forms the basis for judicial ethics and disqualification. Heirs of Sigrah v. George, 22 FSM R. 211, 219 (App. 2019).

Courts - Recusal - Bias or Partiality; Courts - Recusal - Close Relationship
A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. A judge’s disqualification is required when the judge or the judge’s spouse, or a person within the third degree of relationship to either of them, is a party to the proceeding. An uncle is within the third degree relationship. Relatives within the third degree of relationship are great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, or niece. Heirs of Sigrah v. George, 22 FSM R. 211, 219 & n.2 (App. 2019).

Courts - Recusal - Rule of Necessity
It is established law that the rule of necessity cannot be applied to permit an otherwise disqualified justice to serve as long as it is possible to appoint a temporary judge who is not disqualified. The "rule of necessity" may be applied to allow a judge not to recuse himself only if no other judge is available to hear the case. Heirs of Sigrah v. George, 22 FSM R. 211, 220 (App. 2019).

Courts - Recusal - Rule of Necessity
The rule of necessity does not apply when the other Kosrae State Court justice has not ruled whether he is disqualified and because, if all of the regularly-appointed Kosrae State Court justices are disqualified, the Kosrae State Code provides for the appointment of a temporary justice. Heirs of Sigrah v. George, 22 FSM R. 211, 220 (App. 2019).

* * * *

COURT’S OPINION

DENNIS K. YAMASE, Chief Justice:

This appeal arises from the Kosrae State Court’s Memorandum of Decision, Judgment and Order to Land Court filed April 26, 2016 affirming the Land Court’s decision in favor of the Heirs of Isao Sigrah as rightful owner of Parcel 080K19, or Lot 449 (Lot 449-02) and the Order Denying Recusal; and Order Denying Petition for Re-hearing filed May 26, 2016.

I. BACKGROUND

This case began in the Kosrae Land Court. It involves a land parcel located at an area commonly known as Innem Wan in Lelu, Kosrae. At the Kosrae Land Court, Appellant Heirs of Herbert Sigrah (hereinafter referred to as "Herbert’s heirs") and Appellee Heirs of Isao Sigrah (hereinafter referred to as "Isao’s heirs") both claimed ownership of Parcel 080K19, registered and shown as Plat No. 080K00, one of several parcels contained within Lot 449 of the 1932 Japanese Map that was awarded to Joab Sigrah in the Trust Territory of the Pacific Islands (hereinafter also referred to as "TTPI") High Court Civil Action No. 60-72.

From the record, it appears that Joab Sigrah openly stated to the Kosrae Land Court that he would not challenge any ownership claims to the Parcel in question, so the Land Court proceeded with the ownership claims of Herbert’s heirs and Isao’s heirs. Also from the record, after reviewing documentary and testimonial evidence, the Land Court decided in favor of Isao’s heirs as rightful owner of Parcel 080K19 on February 20, 2014. On April 16, 2014, Herbert’s heirs appealed to the Kosrae State Court.

On appeal to the Kosrae State Court, that court reviewed the record with transcripts and exhibits entered at the Land Court to determine (1) whether the Land Court’s decision was based upon substantial evidence or (2) whether it was made contrary to law pursuant to Section 11.614(5)(d) of the Kosrae State Code.

In its review of the first issue on appeal, the Kosrae State Court looked at three pieces of evidence considered by the Land Court. First, the Land Court’s reference to a TTPI High Court Trial Division, Civil Action No. 60-76, where it decided in favor of Joab Sigrah as legal owner of Lot 449, but it was Joab Sigrah’s decision not to challenge ownership claims to the land in question. Next, Exhibit 1 containing an excerpt from Walter Scott Wilson’s book entitled "Land, Activity and Social Organization in Lelu, Kosrae" published in 1968 where Lot 449-02 was listed with Herbert Sigrah’s name as land holder while a portion of the same Lot 449-02 also listed Nana Sigrah as land holder. Then, witness testimonies that Nana Sigrah and his heirs had continued, uninterrupted possession, control, and use of Parcel 080K19 up to present day beyond 20 years, and that only in 2009 when the Innem Wan area was being designated for registration did Herbert’s heirs make known their ownership claim.

In its review of the first issue, the Kosrae State Court concluded that the Land Court’s decision was based on substantial evidence when the matter proceeded between Herbert’s heirs and Isao’s heirs, after Joab Sigrah made known that he will not challenge any ownership claims; that Nana Sigrah is also listed as a landowner of the same land in Scott Wilson’s book; and that Nana Sigrah and his family, if not the rightful owner, had adversely possessed the land in question for over 20 years when Herbert’s heirs made their claim for it in 2009.

As for the second issue on appeal, Herbert’s heirs contended that the Land Court’s decision was contrary to law in five ways. First, Herbert’s heirs argued that proper consideration was not given to its Exhibit 1 and testimonial evidence regarding the original ownership and passing of title to the land. Second, Herbert’s heirs asserted that the witness testimonies on how the land was given to Nana Sigrah were not properly considered in that Nana only had a life interest or use right of the property; thus, upon Nana’s death, the property would revert to Herbert and his family. Third, Herbert’s heirs claimed that the Land Court misapplied the adverse possession doctrine. Fourth, Herbert’s heirs contended that the doctrine of laches was applied contrary to law. Lastly, Herbert’s heirs claimed that the application of res judicata was an error and made contrary to law because the Land Court did not properly rely on the TTPI Civil Action No. 60-76 decision.

In further addressing Herbert’s heirs’ contentions, the Kosrae State Court noted that the excerpt from Scott Wilson’s book was clearly taken into account by and played a key role in the Land Court decision; that there was ample evidence submitted to support that the land was given to Nana Sigrah as a prize for winning a checkerboard game; that the prerequisites of adverse possession were met as established by testimonial evidence and was correctly applied by the Land Court; that the Land Court correctly applied the doctrine of laches as there was inexcusable delay in bringing suit by Herbert and his family which has injured or prejudiced Isao and his family due to the passing of credible witnesses and loss of their testimonies as to the history of the ownership of this land; and that the Land Court rightly allowed the action to proceed between Herbert’s heirs and Isao’s heirs. Thus, the Kosrae State Court affirmed the Land Court decision in Appellee Isao’s favor because it was supported by substantial evidence and was not made contrary to law.

After the Kosrae State Court affirmed the Land Court decision on April 26, 2016, Appellant Herbert filed a petition for rehearing with motion(s) for reconsideration; relief from judgment and motion(s) for then Chief Justice Aliksa Aliksa’s recusal based upon a third degree familial relationship to Appellee Isao and extrajudicial knowledge through another case, Kosrae Civil Case No. 22-01, which touched on the ownership issues of the land in question. The Kosrae State Court denied Herbert’s requests, and, on June 21, 2016, Herbert appealed the following: Memorandum of Decision affirming the decision of the Kosrae Land Court, issued on April 26, 2016, and the Order denying Recusal; Order Denying Petition for Rehearing, issued on May 26, 2016.

II. ISSUES PRESENTED

The Appellant Heirs of Herbert Sigrah contend that:

1. The Kosrae State Court was clearly erroneous as a matter of fact because it did not base its decision on substantial evidence when it affirmed the Land Court’s decision;

2. The Kosrae State Court erred as a matter of law because its decision affirming the Land Court’s decision was made contrary to law; and

3. Then Chief Justice Aliksa Aliksa of the Kosrae State Court abused his discretion when he did not recuse from the case because (a) he had extrajudicial knowledge of the land in issue through Kosrae Civil Case No. 22-01, a civil matter he presided over concerning ownership issues of the land at issue and (b) he made extrajudicial statement exhibiting bias towards Appellant Herbert, which is deemed a denial of Herbert’s right to due process.

III. STANDARD OF REVIEW

When reviewing an appeal from a Land Court decision, the Kosrae State Court uses the "substantial-evidence rule" to review the Land Court’s factual findings, Heirs of Benjamin v. Heirs of Benjamin, 17 FSM R. 650, 655-56 (App. 2011), and otherwise determines whether that decision was contrary to law. Ittu v. Ittu, 20 FSM R. 178, 184 (App. 2015) (applying Kos. S. C. § 11.614). When a Court deci decision is ultimately appealed to the FSM Supreme Court appellate division, we use the same standard of review. See Heirs of Benjamin v. Heirs ojamin, 20 FSM R. 188, 193 (App. 2015).

On a>On appeal, we review de novo issues and matters of law. Akinaga v. Heirs of Mike, 15 FSM R. 391, 396 (App. 2007); Esiel v. FSM Dep’t of Fin., 19 FSM R. 590, 593 (App. 2014). "An appellate court reviews a trial court’s denial of a Rule 60(b) motion under an abuse of discretion standard." Arthur v. FSM Dev. Bank, 16 FSM R. 653, 657 (App. 2009).

The standard of review for a denial of a motion to recuse is "whether the trial judge abused his discretion in denying the motion to recuse." Ting Hong Oceanic Enterprises v. Supreme Court, 8 FSM R. 1, 4 (App. 1997). The standard test for a trial court’s abuse of discretion is whether its decision is clearly unreasonable, arbitrary, or fanciful. Weno v. Stinnett, 9 FSM R. 1, 4 (App. 1999). Also, a trial court’s decision may be found to be an abuse of discretion if it was based on an erroneous conclusion of law or there is no evidence in the record upon which the court could have rationally based its decision. George v. Sigrah, 19 FSM R. 210, 216 (App. 2013). Furthermore, an appellate court will find an abuse of discretion only when there is a definite and firm conviction, upon weighing all the relevant factors, that the lower trial court committed a clear error of judgment in its conclusion. Ehsa v. FSM Dev. Bank, 20 FSM R. 498, 506 (App. 2016).

IV. DISCUSSION

During oral argument, we directed the parties to address the third issue of whether then Chief Justice Aliksa Aliksa of the Kosrae State Court abused his discretion when he did not recuse himself from the case because (a) he and his wife are within the third degree relationship with the parties and (b) he had extrajudicial knowledge evident through statements he made exhibiting bias regarding the land in issue through another case in which he was the presiding judge.

A. Parties’ Contentions

Herbert’s heirs argue that then Chief Justice Aliksa should have recused himself because (1) both he and his spouse were within a third degree relationship with the parties in this case and (2) Chief Justice Aliksa had knowledge through Kosrae Civil Case No. 22-01 because he presided over a civil matter that touched on the ownership of the land in question. According to Herbert’s heirs they had only discovered this relationship after Chief Justice Aliksa indicated so on record when he rendered his decision on the appeal from the Kosrae Land Court. As represented, Herbert’s heirs then looked into the matter, and submitted an affidavit from Floyd Tulenkun attesting to such close relationship along with a motion for recusal.

Isao’s heirs claim that the recusal motion was untimely and Herbert’s heirs should have filed their disqualification motion earlier, but did not do so until the Kosrae State Court decided the appeal. For that reason, Isao’s heirs argue that the motion for then Chief Justice Aliksa’s recusal should be denied. Furthermore, Isao’s heirs concede that then Chief Justice Aliksa is related to both parties in this case; however, Appellees argue that Herbert’s heirs should have done their due diligence and discovered this information earlier instead of waiting until after a decision was made and then filing a recusal motion. According to Isao’s heirs, Herbert’s heirs have not shown good cause for their late filing. Moreover, Isao’s heirs represent that the rule of necessity applies in this matter as Justice Chang William, appointed in 2016, is also conflicted out due to his wife’s family relationship with the parties. Therefore, with both justices disqualified, as Isao’s heirs contend, it would incur delay and expenses if another judge is appointed to preside over the matter. Lastly, Isao’s heirs discredit Floyd Tulenkun’s affidavit because he also has a relationship with the parties.

B. Timely Motion for Recusal

"It is a well recognized rule that an application for disqualification of a trial judge must be filed at the earliest opportunity." Tolenoa v. Kosrae, 11 FSM R. 179, 184 (Kos. S. Ct. Tr. 2002). Moreover, this rule is strictly applied against a party, who had knowledge of the facts that establish a disqualification but did not ask for a disqualification of a judge until an unfavorable ruling was made in the matter. Id. (citing 46 AM. JUR. 2D Judges § 199 (rev. e94)). "A motionotion to recuse should be brought before the trial or hearing unless good cause is shown for filing at a later time." Kosrae v. Langu, 13 FSM R. 269, 271-72 (Kos. S. Ct. Tr. 2005).

In the instant matter, the recusal motion was filed after the Kosrae State Court decided the appeal from the Kosrae Land Court. It is Appellees’ main contention that this is why the recusal motion was untimely and should be denied. Moreover, Appellees argue that Appellants should have exercised due diligence and discovered this information instead of waiting until after the hearings and decision to look into the matter. In response, Appellants indicate that their recusal motion stemmed from then Chief Justice Aliksa’s reasoning when he rendered his decision.

From our review of the record, it is clear that Appellees conceded to the uncle-nephew relationship that Chief Justice Aliksa has with the parties. It is also clear from the record that, in rendering his decision, Chief Justice Aliksa mentioned that he is indeed related to both parties in an uncle-nephew relationship and further discussed a different related case wherein he indicated that because Herbert Sigrah, as a party in that case lost, then it is rightful that he loses in this case.

Based upon this, we therefore conclude that although the recusal motion was filed after the Kosrae State Court decided the appeal, its reasoning shows sufficient cause for the Appellants to seek the presiding judge’s disqualification after the decision was made.

C. Factual Basis

A judge must disqualify himself from a proceeding in which the judge’s impartiality might reasonably be questioned, and in specific instances. The disqualifying factors must be from an extrajudicial source. Allen v. Kosrae, 13 FSM R. 55, 59 (Kos. S. Ct. Tr. 2004). A charge of appearance of partiality must first have a factual basis. The standard to be applied is whether an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge’s impartiality. Id. Thus, a party’s motion to disqualify must be supported by an affidavit. Skilling v. FSM, 2 FSM R. 209, 216-17 (App. 1986).

Generally, an affidavit is required to provide a factual basis for questioning a judge’s impartiality, but other admissible evidence may also be used to support a motion to recuse. When statements made by the presiding justice himself, regarding his own knowledge of facts relating to the incident and the defendant’s alleged conduct, were made on the record in the courtroom at hearings, these statements may be used to question a justice’s impartiality and be a basis for disqualification. Under the specific facts of this case, the requirement for an affidavit is satisfied by other admissible evidence: the record of the hearings. Langu, 13 FSM R. at 272.

According to the Order Denying Recusal; Order Denying Petition for Rehearing, Chief Justice Aliksa stated that Floyd Alokoa Tulenkun’s affidavit is false and was based on information he was told. According to Chief Justice Aliksa, the allegations were unsubstantiated and that there were no reasons why he should be disqualified from the case. Therefore, he denied the motion.

In his affidavit, Tulenkun describes Chief Justice Aliksa as a relative, uncle-nephew to both parties, but more so with the Appellee through his spouse. Tulenkun also asserts that then Chief Justice Aliksa is close friends with Isao Mike, a party in this matter. He further stated that the land was given to Nana by Herbert for use and was not given through a checkerboard game. Tulenkun says he knows this because Nana Sigrah told him when he used to work with and care for him. Tulenkun also believed that Chief Justice Aliksa could not remain impartial because of his family ties, close friendship, and personal knowledge of the case’s disputed evidentiary facts.

The Appellants have provided an affidavit from a disinterested observer who has pointed to the close familial ties and friendship that Chief Justice Aliksa had with this case’s parties. Appellants have met the standard for showing a factual basis for a justice’s disqualification.

D. Purported Extrajudicial Knowledge

"Pursuant to Canon 3.E(1)(a), disqualification is required where the Justice has ‘personal knowledge of disputed evidentiary facts concerning the proceeding.’ The term ‘disputed evidentiary facts concerning the proceeding’ has been interpreted to mean facts involved in the actions or conduct of the persons in a case." Kosrae v. Nena, 14 FSM R. 70, 71 (Kos. S. Ct. Tr. 2006). It, however, is not unusual for the same judge to hear interrelated matters involving one or more parties in common, and the fact that the same judge hears different cases involving the same party or parties, and related issues does not automatically result in an appearance of partiality under 4 F.S.M.C. 124(1). Hartman v. Bank of Guam, 10 FSM R. 89, 97 & n.5 (App. 2001). Thus, statements and rulings made by a judge in the course of judicial proceedings do not provide grounds for disqualification. Adverse rulings in a case are not grounds for disqualification of the presiding judge. Allen, 13 FSM R. at 59.

Furthermore, Canon 3.E of the ABA Code of Judicial Conduct requires a judge’s disqualification in a court proceeding where the judge’s impartiality might reasonably be questioned, and one specific basis for disqualification is when the justice has personal knowledge of disputed evidentiary facts concerning the proceeding. Heirs of Mackwelung, 17 FSM R. at 503. "The term ‘disputed evidentiary facts concerning the proceeding’ has been interpreted to mean facts involved in the actions or conduct of persons in a case." Jackson, 11 FSM R. at 136.

The record reflects that Chief Justice Aliksa mentioned another case wherein Herbert Sigrah was a party and lost. Because of this result, it appears to be that Chief Justice Aliksa made a conclusion that because Herbert Sigrah lost in that case then he has also lost in this matter. Chief Justice Aliksa’s use of this case is improper because he was sitting as an appellate court with its terms of review set by statute. That statute provides that "[n]o evidence or testimony shall be considered at the appeal hearing except those matters which constitute the official record, transcripts, and exhibits received at the Land Court hearing." Kos. S.C. § 11.614(5)(a). Thus, wheef hief Justice Aliksa considered that other case he considered evidence that the statute prohibited him from considering, unless, and there is no evidence of this, that evidence was part of tnd Court record or is only only being cited for a principle of law. We, therefore, hold that then Chief Justice Aliksa’s discussion of the other case was improper because the statute setting out his standard of review prohibited it.

E. Third Degree Relationship With the Parties

Kosrae state judges are bound by the 2000 version of the American Bar Association Code of Judicial Conduct, which forms the basis for judicial ethics and disqualification. Heirs of Mackwelung v. Heirs of Mackwelung, 17 FSM R. 500, 503 n. 1 (App. 2011). Section 6.120[1] of the Kosrae State Code establishes the standard of conduct for Kosrae State justices, which includes the ABA Code of Judicial Conduct. Jackson v. Kosrae State Election Comm’n, 11 FSM R. 133, 136 (Kos. S. Ct. Tr. 2002).

Under Canon 3.E(d)(1)(i) of the ABA Code of Judicial Conduct, a judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including, but not limited to, instances where the judge, or the judge’s spouse, or a person within the third degree of relationship to either of them is a party to the proceeding.^[1] "The Code of Judicial Conduct, Canon 3.E (1)(d)(i) (2000) requires disqualification where: ‘The judge or judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse is a party to the proceeding . . .’ ." Tolenoa, 11 FSM R. at 183. Under Canon 3.E(1)(d) (2000) of the ABA Code of Judicial Conduct, an uncle is within the third degree relationship.^[2]

The record shows that Chief Justice Aliksa acknowledged his close relationship with the parties. Chief Justice Aliksa stated that Isao Sigrah is his uncle and also explained that he has the same family relationship with Herbert Sigrah. Herbert Sigrah and Nana Sigrah, father of Isao Sigrah, are brothers. According to the 2000 ABA Code of Judicial Conduct Canon 3.E (d)(1)(i), an uncle is within the third degree relationship. Therefore, because Chief Justice Aliksa stated as evident in the record that Isao Sigrah is his uncle and that he has the same close relationship with Herbert Sigrah, he should have recused himself from the case. We note the arguments put forth regarding the possibility of then Associate Justice Chang William also being disqualified from hearing the matter; however, that is a decision to be made first by Justice William if and when he is assigned the case. The record does not provide any disqualification or recusal by Justice William.

F. Rule of Necessity

In raising the "Rule of Necessity," the Appellees claimed that Associate Justice William could not preside over the matter if Chief Justice Aliksa recused himself because Justice William was also disqualified since his wife was related to the parties. This argument convinced Chief Justice Aliksa. He ruled that it was necessary for him to preside over the case because there was no other available judge. However, it is established law that the rule of necessity cannot be applied to allow a disqualified justice to serve when it is possible to appoint a temporary judge who is not disqualified. The "rule of necessity" may be applied to allow a judge not to recuse himself only if no other judge is available to hear the case. The "rule of necessity" cannot be applied to permit an otherwise disqualified justice to serve as long as it is possible to appoint a temporary judge who is not disqualified. Loyola ex rel. Edmund v. Hairens, 19 FSM R. 603, 606 (App. 2014).

Justice William should have made the initial decision on whether he was disqualified in this matter. The record does not provide any recusal by Justice William. Therefore, whether he is disqualified or not is a decision that has not yet been made. The Rule of Necessity does not apply here because, if all of the regularly-appointed Kosrae State Court justices are disqualified, the Kosrae State Code provides for the appointment of a temporary justice. Kos. S.C. § 6.1204.

V. CONCLUSION

NOW, THEREFORE, we vacate the Kosrae State Court decision and we remand the matter to the Kosrae State Court for assignment to a new presiding justice. If necessary, a temporary justice may be appointed in accordance with the Kosrae State Code.

* * * *

---

^[1] http://omnilearn.net/ethics/cjc3e.html

^[2] "Third degree relationship." The following persons are relatives within the third degree of relationship: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew or niece. ABA CODE OF JUD. CONDUCT Canon 3.E(1)(d) http://omnilearn.net/ethics/cjcterminology.html