THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
TRIAL DIVISION
Cite as Fu Zhou Fuyan Pelagic Fishery Co.,v. Wang Shun Ren ,
7 FSM Intrm. 601 (Ponape 1996)

[7 FSM Intrm. 601]

FU ZHOU FUYAN PELAGIC FISHERY CO., LTD.,
Plaintiff,

vs.

WANG SHUN REN, GAO SHOU XIONG, TING
HONG OCEANIC ENTERPRISES, CO., LTD.,
and LUNG SHENG FU NO. 106,
Defendants.

CIVIL ACTION NO. 1995-066

ORDER

Andon L. Amaraich
Chief Justice

Decided:  October 7, 1996

[7 FSM Intrm. 602]

APPEARANCES:
For the Plaintiff:            Fredrick L. Ramp, Esq.
                                       P.O. Box 1480
                                       Kolonia, Pohnpei FM 96941

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

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HEADNOTES
Courts ) Recusal
     A judge shall disqualify himself where he has served in governmental employment and in such capacity participated as counsel, adviser, or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.  Fu Zhou Fuyan Pelagic Fishery Co. v. Wang Shun Ren, 7 FSM Intrm. 601, 604 (Pon. 1996).

Courts ) Recusal
     A judge whose governmental employment ended before the facts arose that gave rise to the case in front of him is not disqualified from the case because he did not act as an adviser to or was a material witness to the agreement at issue.  Fu Zhou Fuyan Pelagic Fishery Co. v. Wang Shun Ren, 7 FSM Intrm. 601, 604 (Pon. 1996).

Contracts ) Parol Evidence
     When there is a single and final memorial of the understanding of the parties embodied in a written agreement, for evidentiary purposes all prior and contemporaneous negotiations are treated as having been superseded by that written memorial under the parol evidence rule.  Fu Zhou Fuyan Pelagic Fishery Co. v. Wang Shun Ren, 7 FSM Intrm. 601, 604-05 (Pon. 1996).

Courts ) Recusal
     The standard to be applied in reviewing a request for disqualification under 4 F.S.M.C. 124(1) is whether a disinterested reasonable observer who knows all the circumstances would harbor doubts about the judge's impartiality.  A motion for disqualification must be supported by an affidavit which clearly sets forth the factual basis for the belief that grounds for disqualification exist.  Fu Zhou Fuyan Pelagic Fishery Co. v. Wang Shun Ren, 7 FSM Intrm. 601, 605 (Pon. 1996).

Courts ) Recusal
     A judge's impartiality cannot reasonably be questioned when the judge had been chairman of an agency while it concluded an agreement with a party to a case now before him where only a later agreement is at issue and he had no part in negotiating the first agreement.  Fu Zhou Fuyan Pelagic Fishery Co. v. Wang Shun Ren, 7 FSM Intrm. 601, 605 (Pon. 1996).

Courts ) Recusal
     The power of a justice to recuse himself must be exercised conscientiously, and should not be employed merely to accommodate or placate nervous litigants or counsel.  A party's speculation about the justice's unconscious frame of mind is insufficient to create a basis for disqualification.  Fu Zhou Fuyan Pelagic Fishery Co. v. Wang Shun Ren, 7 FSM Intrm. 601, 605 (Pon. 1996).

[7 FSM Intrm. 603]
 
*    *    *    *

COURT'S OPINION
ANDON L. AMARAICH, Chief Justice:

INTRODUCTION
     In this action, filed on May 26, 1995, plaintiff seeks damages for injuries resulting from a collision between two fishing vessels, the Lung Sheng Fu No. 106, and its own vessel, the Zhong Yuan Yu No. 107.  Before the Court is Ting Hong Enterprises Co., Ltd.'s ("Ting Hong's") Motion to Disqualify Chief Justice Andon Amaraich from presiding over this proceeding.

BACKGROUND

     On September 3, 1996, at the commencement of a hearing on the parties' cross-motions for summary judgment, Defendant Ting Hong orally moved the Chief Justice to recuse himself from presiding in this matter.  This oral motion was followed the next day by a written motion.

     Counsel for Ting Hong avers that information has recently come to its attention that Chief Justice Amaraich, in his former capacity as Chairman of the Micronesian Maritime Authority ("MMA"), was a signatory to a March 1991 foreign fishing agreement between MMA and Ting Hong, and to a November 1991 modification to that agreement.1  Defendant contends that the Chief Justice's former involvement with the MMA requires his recusal in this proceeding, in which interpretation of a 1994 fishing agreement between MMA and Ting Hong is at issue. 2

     Ting Hong presents the following facts in support of its motion to disqualify:  (1) the terms of the 1991 agreement between Ting Hong and MMA are "similar or nearly identical" to the terms of the 1994 foreign fishing agreement between the same parties; (2) the parties in this action disagree as to the proper interpretation of the terms of the 1994 agreement; (3) Ting Hong may wish to call Andon Amaraich as a witness, for the purpose of testifying as to MMA's intentions concerning these particular terms at the time the 1991 agreement was drafted; and (4) Andon Amaraich had a fiduciary duty to obtain terms favorable to MMA, as Chairman of MMA, at the time the 1991 agreement was reached.  See Aff. of John P. Hollinrake (Sept. 4, 1996).  Based on these facts, counsel for Ting Hong argues that the Chief Justice is a material witness to the proceedings and therefore his recusal is required under 4 F.S.M.C. 124(2)(c) and 4 F.S.M.C. 122.  In addition, counsel contends that "a reasonable person might reasonably harbor doubts that [the] Chief Justice could not act as a fair and impartial

[7 FSM Intrm. 604]

juror, even if the Chief Justice has no actual bias in the matter."  Hollinrake Aff. para. 2.  This further requires his recusal under 4 F.S.M.C. 124(1) and 4 F.S.M.C. 122.

     The Court finds that defendant's motion and supporting affidavits fail to provide a sufficient factual basis for recusal under any of the cited provisions. 3

DISCUSSION
I.  4 F.S.M.C. 124(2)(c)
     Under 4 F.S.M.C. 124(2)(c), a judge shall disqualify himself "(c) where he has served in governmental employment and in such capacity participated as counsel, adviser, or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy."  Chief Justice Amaraich did not serve as legal counsel or as a legal adviser to the MMA during his time as Chairman of MMA.  The Chief Justice's prior position as Chairman of MMA also did not concern this proceeding or the merits of the particular case in controversy in this lawsuit, within the meaning of 4 F.S.M.C. 124(2)(c).  Indeed, it could not, because the Chief Justice was no longer Chairman of MMA in 1995, when the facts giving rise to this litigation occurred.  Chief Justice Amaraich concluded his service as Chairman of MMA late in 1991.  Defendant's affidavit does not establish otherwise.

     Ting Hong asserts that it "is likely" that it will wish to call Chief Justice Amaraich as a witness at trial with respect to the intention of negotiators of the 1991 agreement, because that agreement "contained several terms which are identical or nearly identical to the terms set forth" in its 1994 agreement with MMA.4  For this reason, Ting Hong argues that the Chief Justice is nevertheless a material witness to these proceedings, and must be disqualified from presiding.

     The Chief Justice could not have been, as defendant argues, a material witness to the negotiation and signing of the 1994 fishing agreement at issue in this case.  The 1994 agreement was negotiated and signed long after Chief Justice Amaraich ceased to serve as Chairman of the MMA.  Accordingly, 4 F.S.M.C. 124(2)(c) does not require disqualification.

     Further, it does not appear that the Chief Justice could be called as a material witness to the signing of the 1991 agreement.  When there is a single and final memorial of the understanding of the parties embodied in a written agreement, for evidentiary purposes all prior and contemporaneous negotiations are treated as having been superseded by that written memorial under the parol evidence

[7 FSM Intrm. 605]

rule.  See 29A Am. Jur. 2d Evidence 1092 (1994).  If the 1994 agreement should be found to be ambiguous or incomplete, and it becomes necessary for the parties to rely on parol or extrinsic evidence to clarify their understanding of the terms of their 1994 agreement, appropriate argumentation will be directed to the circumstances surrounding negotiation of that agreement, not negotiation of the 1991 agreement.  As noted above, the Chief Justice was not Chairman of MMA at the time of the negotiation and signing of the 1994 agreement.

II.  4 F.S.M.C. 124(1)
     Ting Hong next argues that recusal is also required under 4 F.S.M.C. 124(1), which states that "[a] Supreme Court Justice shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."  As this Court has explained in Nahnken of Nett, the standard to be applied in reviewing a request for disqualification under 4 F.S.M.C. 124(1) is whether a disinterested reasonable observer who knows all the circumstances would harbor doubts about the judge's impartiality.  Nahnken of Nett v. United States (I), 6 FSM Intrm. 318, 323 (Pon. 1994); Jano v. King, 5 FSM Intrm. 266, 270 (Pon. 1992); FSM v. Skilling, 1 FSM Intrm. 464, 475 (Kos. 1984).  A motion for disqualification must be supported by an affidavit which clearly sets forth the factual basis for the belief that grounds for disqualification exist.  4 F.S.M.C. 124(6).

     Defendant contends that the Chief Justice's extrajudicial knowledge of the facts and circumstances concerning the drafting of the 1991 Agreement, and his duty at that time to obtain terms favorable to MMA, may cause him to appear to be biased in reviewing the 1994 agreement even if there is no actual bias. Hollinrake Aff. para. 2.e.  The Court finds that the judge's impartiality in this action may not reasonably be questioned on this basis.  The 1991 fishing agreement is not at issue in this case nor, as noted above, would it be for purposes of parol evidence.  Instead, the parties differ over the proper construction of the 1994 fishing agreement between Ting Hong and MMA, which was negotiated and signed over three years later, by other representatives of MMA.  Once again, Chief Justice Amaraich was not present during the negotiation or signing of the 1994 agreement.  Compare with In re Extradition of Jano, 6 FSM Intrm. 93, 97-98 (App. 1993) (denial of motion to disqualify affirmed, where party to be extradited had argued that Chief Justice Amaraich's impartiality could reasonably be questioned based on his negotiation and signing on behalf of the FSM of the Compact of Free Association and the separate Agreement on Extradition, years before).

     Finally, plaintiff suggests that defendant's motion to disqualify has been posed because the Court has ruled against Ting Hong in a different case, and Ting Hong may perceive that the Court is biased against it.  Ting Hong denies that this is its motivation in moving for disqualification.  However, even if this were the underlying reason for defendant's motion, the power of a justice to recuse himself must be exercised conscientiously, and "should not be employed merely to accommodate or placate nervous litigants or counsel."  Skilling, 1 FSM Intrm. at 471.  A party's speculation about the justice's unconscious frame of mind is insufficient to create a basis for disqualification.  Nahnken of Nett (I), 6 FSM Intrm. at 322; Jano, 5 FSM Intrm. at 270-71 (Pon. 1992); Skilling, 1 FSM Intrm. at 474.

     After reviewing the facts and arguments presented in defense counsel's affidavits and pleadings, and the arguments presented by opposing counsel, the Court concludes that a disinterested reasonable observer, knowing all the circumstances, would not harbor doubts about Chief Justice Amaraich's impartiality in this case.  Accordingly, Ting Hong's motion to disqualify is denied.

     On September 3, 1996, the Court continued to another date its scheduled hearing on the parties' cross-motions for summary judgment.  The Court did so in order to rule on defendant's motion to disqualify before proceeding, pursuant to 4 F.S.M.C. 124(6).  This hearing must now be rescheduled.  Accordingly, argument on the parties' cross-motions for summary judgment will now be heard on

[7 FSM Intrm. 606]

October 15, 1996 at 10:00 a.m., the date previously set for trial in this action.

CONCLUSION
     For the foregoing reasons, defendant's Motion to Disqualify Chief Justice Amaraich is denied.  Argument on the parties' cross-motions for summary judgment will be heard on October 15, 1996 at 10:00 a.m.
 
 
Footnotes:
 
1.  Chief Justice Amaraich served as Chairman of MMA until the end of 1991.  He was appointed to the position of Associate Justice of the FSM Supreme Court effective January 29, 1992.

2.  The Court is disturbed by the timing of Ting Hong's motion to disqualify, which was made 15 months into these proceedings, at the commencement of a hearing on the parties' cross-motions for summary judgment.  Although Ting Hong argues that Andon Amaraich's execution of the 1991 foreign fishing agreement on MMA's behalf is newly-discovered evidence, Ting Hong was itself a signatory to the 1991 agreement on which it now premises its motion to disqualify.  Ting Hong has therefore had knowledge of the Chief Justice's former relationship with MMA, at a minimum, since the 1991 agreement was signed almost five years ago.  The grounds now proffered by defense counsel for disqualification could have been discovered with reasonable diligence much earlier in this litigation, and raised at a more reasonable time for all parties involved.

3.  4 F.S.M.C. 122 incorporates by reference the American Bar Association Code of Judicial Conduct, which contains language very similar to that of 4 F.S.M.C. 124(1) and 4 F.S.M.C. 124(2)(c).  For the reasons the Court finds that recusal is not required under sections 124(1) and 124(2)(c), the Court also finds that recusal is not required under section 122.  See A.B.A. Code of Judicial Conduct Canon 3(C).

4.  The Court's November 28, 1995 order specifically requested that the parties' pretrial statements contain the names and addresses of all witnesses each party expected to call at trial.  Ting Hong's August 16, 1996 pretrial statement did not indicate that it intended to call the Chief Justice as a potential witness at trial. Defendant's pretrial statement merely declared that Ting Hong would be unable to decide who it would call as witnesses until after the Court had ruled on the parties' cross-motions for summary judgment.  The Court notes that the affidavits submitted in support of defendant's motion to disqualify do not provide the date on which defense counsel first became aware that the Chief Justice was a signatory to the 1991 agreement.