THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Berman v. FSM Supreme Court (I),
7 FSM Intrm. 8 (App. 1995)

[7 FSM Intrm. 8]
MARY BERMAN,
Appellant,

vs.

FSM SUPREME COURT
Appellee.

APPEAL CASE NO. P8-1993

ORDER
 
Martin G. Yinug
Associate Justice

Decided:  January 25, 1995

APPEARANCES:
For the Appellant:     Mary Berman, Esq. (pro se)
                                    P.O. Box 163
                                    Kolonia, Pohnpei FM 96941

For the Appellee:      Susan Bussey, Esq.
                                    Chief of Litigation
                                    Office of the FSM Attorney General
                                    P.O. Box PS-105
                                    Palikir, Pohnpei FM 96941

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HEADNOTES
Mandamus and Prohibition
     A writ of prohibition will only issue to prevent an inferior court or tribunal from acting without or in excess of its jurisdiction.  It must be directed to a court or tribunal inferior in rank to the one issuing the writ.  As a general rule, it cannot issue from one court to another of equal rank. Berman v. FSM Supreme Court (I), 7 FSM Intrm. 8, 3 (App. 1995).

Mandamus and Prohibition
     A writ of prohibition is an extraordinary writ and cannot be issued when there is a plain, speedy and adequate remedy otherwise available that has not been exhausted.  Berman v. FSM Supreme Court (I), 7 FSM Intrm. 8, 3 (App. 1995).

Mandamus and Prohibition
     A writ of prohibition will not issue to disqualify an FSM Supreme Court justice where the party seeking disqualification has not filed a motion to disqualify or recuse to be considered by the justice whose disqualification is sought.  Berman v. FSM Supreme Court (I), 7 FSM Intrm. 8, 10 (App. 1995).

[7 FSM Intrm. 9]

Courts ) Recusal; Mandamus and Prohibition
     The proper method to obtain a writ of prohibition to disqualify a member of an appellate panel is to move for disqualification before that member, and, if the recusal motion is denied, to file a petition for a writ of prohibition as a separate matter to be considered by an appellate panel constituted pursuant to Appellate Rule 21(a).  Berman v. FSM Supreme Court (I), 7 FSM Intrm. 8, 10 (App. 1995).

Courts ) Recusal; Mandamus and Prohibition
     In order for a writ of prohibition to issue to require a judge to recuse himself it must be an abuse of discretion for the judge not to recuse himself.  Where it is not apparent what interest of the judge could be substantially affected by the outcome of the proceeding or that the judge is biased or prejudiced the writ will not issue.  Berman v. FSM Supreme Court (I), 7 FSM Intrm. 8, 10 (App. 1995).

Evidence ) Judicial Notice
     A court may take judicial notice of its own reported decisions.  Berman v. FSM Supreme Court (I), 7 FSM Intrm. 8, 11 n.2 (App. 1995).

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COURT'S OPINION
MARTIN G. YINUG, Associate Justice:

Background
     Mary Berman sued the FSM Supreme Court alleging that she was unconstitutionally prohibited from taking FSM bar exams for another five years and for monetary damages resulting therefrom.  She prevailed on her claim that she be allowed to take future bar exams. Berman v. FSM Supreme Court (I), 5 FSM Intrm. 364 , 367 (Pon. 1992).  The court ruled that she had no right to monetary damages.Berman v. FSM Supreme Court (II), 5 FSM Intrm. 371, 374 (Pon. 1992), aff'd on reh'g, 6 FSM Intrm. 109 (Pon. 1993).

     She appealed from that ruling.  Her appeal was assigned docket number P8-1993.  Oral argument was held on April 25, 1994, before an appellate panel consisting of FSM Associate Justice Martin Yinug and FSM Temporary Justices, Chief Justice Edwel Santos of the Pohnpei Supreme Court and Associate Justice Keske Marar of the Chuuk State Supreme Court.  The matter was submitted for decision.

     On June 28, 1994, Mary Berman filed FSM Civil Action No. 1994-097 against Chief Justice Santos in both his official and individual capacity.  Her complaint in that civil action alleges that she has been unconstitutionally denied the opportunity to be admitted to the Pohnpei Supreme Court bar either on the basis of her admission to the FSM bar, or by examination, and for monetary damages for lost employment opportunities resulting therefrom.  On August 30, 1994, she filed a paper in Appeal Case No. P8-1993 styled Petition for Writ of Prohibition seeking Chief Justice Santos' removal from the appellate panel considering her appeal. The grounds for issuance of the writ were that Chief Justice Santos was biased and prejudiced and had an interest in the matter that would be substantially affected by the outcome of the appeal.  The basis for these grounds was Civil Action No. 1994-097 and the claim of her client, the Iso Nahnken of Nett, in another civil action, to lands, popularly known as the Etscheit lands, a portion of which is claimed by Chief Justice Santos.  On September 27, 1994 Civil Action No. 1994-097 was dismissed without prejudice on procedural grounds.  See Berman v. Santos, 6 FSM Intrm. 532, 536 (Pon. 1994).

[7 FSM Intrm. 10]

Analysis
     This petition should be denied on several grounds.  Firstly, a writ of prohibition will only issue to prevent an inferior court or tribunal from acting without or in excess of its jurisdiction.  Election Commissioner v. Petewon, 6 FSM Intrm. 491, 497, 1 CSR 5, 9 (Chk. S. Ct. App. 1994); 63A Am. Jur. 2d Prohibition 24, at 162 (1984).  It must be directed to a court or tribunal inferior in rank to the one issuing the writ.  "As a general rule, it cannot issue from one court to another of equal rank."  63A Am. Jur. 2d Prohibition 24, at 162 (1984).  Asking one or two members of an appellate panel to issue a writ of prohibition against the third member seems improper.  (In this case it would be only one member of the appellate panel because, pursuant to FSM Appellate Rule 21(a) only article XI, section 3 justices who are not the subject of the action may consider writs of mandamus and prohibition.1  Justice Martin Yinug is the only article XI, section 3 justice on this appellate panel.)  The writ would thus not be directed to an inferior tribunal.

     Secondly, a writ of prohibition is an extraordinary writ and cannot be issued when there is a plain, speedy and adequate remedy otherwise available that has not been exhausted.  See, e.g., Election Commissioner v. Petewon, 6 FSM Intrm. 491, 497, 1 CSR 5, 9 (Chk. S. Ct. App. 1994); 63A Am. Jur. 2d Prohibition 9, at 146 (1984).  An unexhausted legal remedy exists here.  A party seeking to disqualify an FSM Supreme Court justice files a motion to disqualify or recuse to be considered by the justice whose disqualification is sought.  4 F.S.M.C. 124(6). That justice must then rule on the motion before the matter proceeds further.  Id. No motion to disqualify was filed for consideration by Temporary Justice Edwel Santos.  Therefore the petition may be denied because there is a plain, speedy and adequate remedy available which the petitioner has ignored.

     Thus the only proper method to obtain a writ of prohibition to disqualify a member of an appellate panel would be to move for disqualification before that member, and, if the recusal motion is denied to file a petition for a writ of prohibition as a separate matter to be considered by an appellate panel constituted pursuant to FSM Appellate Rule 21(a).  That way a ruling by a single justice of an appellate panel, as a single justice, would be a ruling by a tribunal inferior to the one from which the writ of prohibition is sought.

     Thirdly, in order for a writ of prohibition to issue to require a judge to recuse himself it must be an abuse of discretion for the judge not to recuse himself. Nahnken of Nett v. Trial Division, 6 FSM Intrm. 339, 340 (App. 1994).  A justice shall disqualify himself "where he has a personal bias or prejudice concerning a party," 4 F.S.M.C. 124(2)(a), or "where he knows that he . . . has a financial interest . . . or any other interest that could be substantially affected by the outcome of the proceeding," 4 F.S.M.C. 124(2)(d).  "Proceeding" includes appellate review.  4 F.S.M.C. 124(4)(a).  It is not apparent from the circumstances present that a failure to disqualify would be an abuse of discretion.  Civil Action No. 1994-097 has been dismissed.  (Although it is without prejudice and therefore may be refiled.)  The claim of the Nahnken of Nett is for monetary damages only and not for title or possession of any of the Etscheit land, and Chief Justice Edwel Santos is not named as a party.  See Nahnken of Nett v. Trial Division, 6 FSM Intrm. 339 (App. 1994); Nahnken of Nett v. United States (III), 6 FSM Intrm. 508 (Pon. 1994), appeal docketed, P8-1994; Nahnken of Nett v. United States (I)

[7 FSM Intrm. 11]

6 FSM Intrm. 318 (Pon. 1994).2  Furthermore, the Nahnken of Nett's case was dismissed on September 26, 1994.  (But has since been appealed.) Therefore it is not apparent what interest could be substantially affected by the outcome of this proceeding.  Plainly, it is somewhat disturbing to consider that a party could unilaterally bring about the disqualification of a justice by filing an unrelated civil action against him after the case has been submitted for decision and then claim prejudice.

Conclusion
     For the reasons discussed above, it is hereby ordered that the Petition for a Writ of Prohibition is denied.

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Footnotes:
 
 1.  Thus a full panel of three is not required for the appellate division to consider a writ of mandamus or prohibition.  See, e.g., Nahnken of Nett v. Trial Division, 6 FSM Intrm. 339 (App. 1994) (two justices considering writ of prohibition); Senda v. Trial Division, 6 FSM Intrm. 336 (App. 1994) (two justices considering mandamus); Office of the Public Defender v. FSM Supreme Court, 4 FSM Intrm. 252 (App. 1990) (one justice considering mandamus).
 
 2.  The court may take judicial notice of its own reported decisions.