2 MILR 68

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S. Ct. CIVIL NO. 95-02
(High Ct. Probate No. 1994-002)

IN THE MATTER OF THE ESTATE OF MARIA PETER, Deceased,

By: HENSE HENSENE
Petitioner-Administrator,

-v-

WITTEN T. PHILIPPO,
Respondent,

and

OKJEN KOBAIA,
Respondent-Real Party in Interest.

PETITION FOR WRIT

DECEMBER 13, 1995

ASHFORD, C.J.

SUMMARY:

The Court denied a Petition for a writ of mandamus or prohibition, finding that there was no legally sufficient justification for issuance of either of those extraordinary writs.

DIGEST:

1. WRITS, EXTRAORDINARY - Power to Issue: Mandamus and prohibition are extraordinary writs. The power to issue them is discretionary and sparingly exercised.

2. WRITS, EXTRAORDINARY - Requirements - In General: For a writ of mandamus to issue there must be a clear showing of a non-discretionary duty mandated by law, a default in the performance of that duty, a clear right to have the duty performed and a lack of any other sufficient remedy.

3. JUDGES - Powers and Functions - Ruling on Motions: A judge has a duty to decide motions that are properly submitted to him, but he is not required to decide them within a time which suits the convenience of counsel nor is he required to rule on motions or issues which have been rendered moot by time or events.

4. WRITS, EXTRAORDINARY - Requirements - In General: For a writ of prohibition to issue to a judge, it must be shown that the respondent is about to exercise judicial power, that the exercise of such power is unauthorized by law and that it would result in injury for which there is no other adequate remedy.

5. WRITS, EXTRAORDINARY - Power to Issue: A writ of prohibition is to be used with great caution and forbearance and should be issued only in cases of extreme necessity.

ORDER AND OPINION BY ASHFORD, C.J.

CONCISE STATEMENT AND DISPOSITION:

In this Petition for Writ of Mandate (sic), Prohibition or Other Appropriate Relief, the Petitioner-Administrator sought to interdict a hearing scheduled for November 24, to vacate an order entered on November 15, to disqualify the judge from further activity in the case and to prohibit the judge from interfering with attorney McCaffrey's representation of the petitioner. For the reasons which appear below the petition is denied in its entirety.

FACTS:

P.L. 1994-87, containing the Probate Code (Amendment) Act of 1994, was certified and became law on March 3, 1994. Petitioner herein was appointed Administrator of the Estate of Maria Peter on November 11, 1994. The estate he was to administer was described by the High Court judge as a "Nuclear Cairns Tribunal estate." It appears, therefore, that the administrator had the benefit and burden of the amendments to the Probate Code made by P.L. 1994-87. Thus, he was entitled to the free legal services of the Legal Aid Office or of the Public Defender, if desired, and was prohibited from retaining private legal counsel to assist him in the discharge of his fiduciary duties. In October 1995 the administrator was in fact represented by Rosalie Konou of the Legal Aid Office.

The following sequence of events then occurred (all Majuro dates):

October 2: Kobaia, represented by attorney David Strauss, filed motions to set aside judgment, appoint co-administrator and approve distribution scheme and for a temporary restraining order, preliminary injunction and accounting.

October .10: Judge Philippo, in the presence of the administrator and his attorney, Ms. Konou, granted a temporary restraining order and set some or all of the remaining motions for hearing on October 31. This was confirmed by order filed October 18.

October 25: Attorney Strauss caused subpoenas to be issued to attorney Konou and her secretary to testify on behalf of Kobaia at the October 31 hearing.

October 26: The subpoenas were served.

October 27: A Substitution of Attorneys was filed, in which the administrator substituted "JAMES McCAFFREY, Attorney at law" for "ROSALIE A. KONOU, RMI Legal Aid Office" as his "attorney of record." This document was signed by the administrator and both attorneys. Mr. McCaffrey's signature was dated at Tijuana, Mexico, and the others at Majuro. On its face, this substitution offended the prohibition contained in the Probate Code (Amendment) Act of 1994.

Attorney David Lowe faxed a Memorandum to Judge Philippo from Fairfield, California, advising that he will be representing Ms. Konou, she has been subpoenaed to appear on October 31, he is unable to be present with her on that date, he understands that Mr. McCaffrey will be substituting in place of her as attorney for the administrator, Mr. McCaffrey is also unable to appear on October 31 and Ms. Konou has moved for a continuance and to disqualify Judge Philippo. He requested a conference call or other communication regarding a new date for the hearing. The memo concluded with the statement that copies of the memorandum are being sent to "each of the other counsel."

Mr. McCaffrey sent a letter by fax from Tijuana to Judge Philippo, with a copy by fax to Mr. Strauss, stating "I was retained late yesterday by Hense Hensene, the Administrator." He stated he understood "there is currently a motion for a continuance before the court" and requested a continuance, stating reasons. He also stated that he had received a copy of Mr. Lowe's memorandum and stated he, too, would be available for a conference call or to submit available dates and gave telephone numbers at which he could be reached.

No copies of the motion for continuance mentioned by Messrs. Lowe and McCaffrey and the motion to disqualify mentioned by Mr. Lowe have been submitted to this court, if they exist.

October 30: Mr. Strauss faxed a letter to Ms. Konou, showing copies by fax to the clerk of courts and by mail to Messrs. McCaffrey and Lowe, stating he had received correspondence from Messrs. Lowe and McCaffrey, and "in order to dispose of this matter tomorrow afternoon" he would not call her as a witness and is asking the court to quash the subpoena issued to her. Mr. Strauss faxed a letter to the clerk of courts, showing a copy to Ms. Konou, stating he had decided not to call Ms. Konou to testify "at tomorrow's scheduled hearing" and asking that the subpoena he requested be regarded as quashed.

October 30: Mr. McCaffrey filed a combined motion to quash the subpoena issued to Ms. Konou, motion to continue the October 31 hearing, assertion of the administrator's right to an attorney of his choosing and assertion of privilege by the administrator concerning communications with his former attorney, Ms. Konou. This was supported by a memorandum and affidavits by him and by Ms. Konou asserting that his costs and fees were to be paid by the RMI Legal Aid Office and not by the administrator and that his work was to be without supervision by the Legal Aid Office. Mr. McCaffrey states that these documents were filed on October 30. The copies furnished this court have no filing stamp and do not have attached any certificate of service on opposing counsel. At this time, this court is not called upon to determine whether the conditions of employment of Mr. McCaffrey cured the problem with the Probate Code (Amendment) Act of 1994.

October 31: Mr. McCaffrey faxed two draft orders to Judge Philippo, to quash the Konou subpoena and to continue the hearing on Kobaia's motions. It is not clear whether the covering letter and draft orders were received by the court prior or subsequent to the early afternoon hearing on October 31.

The court convened, for the scheduled hearing on Kobaia's motions. The administrator appeared, but his attorney, Ms. Konou, did not. The transcript of the hearing reveals that the judge had not been notified that she would not appear and the administrator did not know why she failed to appear. Over the strenuous objection of attorney Strauss, Judge Philippo declined to hear the scheduled motions. Further, he directed that an order be issued for Ms. Konou to show cause why she should not be held in contempt for failure to appear, and set ten o'clock a.m. on November 13, 1995 as the time and date for the order to show cause hearing. He also stated that he would not bear the motions until after that hearing and determination of what to do with a motion to disqualify him and with an attempted substitution of counsel filed by the administrator. At the hearing, the judge also expressed doubt whether conflicts facing Ms. Konou would prevent her from fully and adequately representing the interests of the administrator.

Judge Philippo signed an order setting Monday, November 13, 1995 at 10:00 a.m. as the date and time for Ms. Konou to appear and show cause why she should not be held in contempt for failure to appear at the October 31 hearing. The order also stated "(a)t that time she should also be prepared to address the issue of whether she can continue to represent the interests of the administrator and whether or not this court should recuse itself from further hearing this matter." The order was filed in November but the date stamp on the copy furnished to this court is too dim to be deciphered. Mr. McCaffrey asserts that it was filed on November 8 or 9.

November 6: Mr. Lowe faxed a letter to Judge Philippo in which he stated "(a)s far as I have been able to determine, there is no pending matter regarding Ms. Konou for which she would require my services." He also asked that, in any scheduling decision the judge might be required to make, the judge bear in mind that Lowe would be on vacation in England from November 10 until November 22.

November 10: According to Mr. McCaffrey, the October 31 show cause order was served on Ms. Konou on this date, but was never served on him or the administrator.

November 12: Mr. McCaffrey filed an objection to lack of service of the show cause order on him and the administrator and a memo in opposition to the scheduled November 13 hearing, devoted primarily to a defense of Ms. Konou.

November 13: The court convened a hearing on the order to show cause. Ms. Konou did not appear, having notified the court by fax that morning that she had decided she would not. It is not clear whether the administrator appeared. Mr. Strauss did appear.

November 15: Judge Philippo filed an order in which he referred to the legislative requirement that administrators of estates with nuclear claims as the primary asset be represented only by the Legal Aid Office or the Public Defender and made a number of factual findings and legal conclusions. These included findings that Mr. McCaffrey appeared to be representing the interests of Ms. Konou rather than those of the administrator, that a conflict of representation existed between the Legal Aid Office and the administrator which precluded the Legal Aid office from contracting with another attorney for representation of the administrator and that the asserted grounds for disqualification of the judge were insufficient in law to cause a disqualification. The order appointed the Public Defender to represent the administrator, denied the motion to disqualify and set Kobaia's motions for hearing on November 24, 1995, at 10 o'clock a.m.

November 16: Mr. McCaffrey filed a motion for reconsideration of the court's November 15 order, an alternative motion for stay of that order pending a proposed petition to this court for a writ of mandamus and a request that these motions be promptly considered and decided on the written submission only. No certificate of service on opposing counsel was attached to the copy furnished to this court nor is there any filing stamp on that copy.

November 22: The petition for mandate (sic) was filed in this court. It did not have attached any proof of service upon the respondent judge, all parties to the action and the attorney general as required by S.Ct. Rule 21(a).

November 24: Presumably the scheduled hearing was held. However, no information on that point has been submitted to this court.

November 28: A file-stamped copy of the petition for mandate (sic) was received by this court from the clerk of courts and an unstamped copy was received from Mr. McCaffrey by priority mail bearing a date stamp of November 22 at San Diego. Again, no proof of service was attached.

DISCUSSION:

[1,2] Mandamus and prohibition are extraordinary writs. The power to issue them is discretionary and sparingly exercised. Kabua, et al. v. H.Ct. Chief Justice, et al., 1 MILR (Rev.) 33, 34-5 (Mar 20, 1986). For a writ of mandamus to issue there must be a clear showing of a non-discretionary duty mandated by law, a default in the performance of that duty, a clear right to have the duty performed and a lack of any other sufficient remedy. Kabua v. Kabua, et al., 1 MILR (Rev.) 247,253 (Dec 20, 1991).

[3] A judge has a duty to decide motions that are properly submitted to him, but he is not required to decide them within a time which suits the convenience of counsel nor is he required to rule on motions or issues which have been rendered moot by time or events. A trial judge has considerable discretion in the timing and manner in which he conducts the business of his court. The events detailed above indicate that the substitution of counsel initially failed to consider the provisions of the Probate Code (Amendment) Act of 1994 and that counsel subsequently concentrated on the defense of Ms. Konou and failed to consider the need for scheduling and appearances that would accommodate the needs of both the judge and other counsel.

[4,5] For a writ of prohibition to issue to a judge, it must be shown that the respondent is about to exercise judicial power, that the exercise of such power is unauthorized by law and that it would result in injury for which there is no other adequate remedy. Kabua v. Kabua et al., supra. In this instance, there is no showing that Judge Philippo was about to exceed his jurisdiction or abuse his discretion. Neither has it been shown that any injury would result from his orders that could not be remedied by appeal. A writ of prohibition is to be used with great caution and forbearance and should be issued only in cases of extreme necessity. Arriola v. Hefner, 7 TTR 437 (1976). The sequence of events above detailed falls substantially short of being sufficiently compelling.

CONCLUSION:

The Petition is denied.