Governor Ehsa moves for two of three tribunal judges to be dismissed for conflicts

By Bill Jaynes
The Kaselehlie Press
September 9, 2015
Pohnpei, FSM—This afternoon Pohnpei's Governor John Ehsa filed a motion with the Impeachment Tribunal to disqualify Justices Nickontro Johnny and Benjamin Rodriguez from sitting on the tribunal. The motion was supported by an affidavit from Governor Ehsa.
The motion says that Attorney Kembo Mida, who was hired by the Pohnpei State Legislature as the Special Prosecutor on the Impeachment matter, is also currently serving as personal legal counsel for both Justice Johnny and Justice Rodriguez.
It also claims that "approximately a year ago, as a consequence of his domestic difficulties, Justice Johnny asked Governor Ehsa as a favor, to provide him with cost-free government housing, and also to appoint his 'promise brother', Dion Neth to the State Supreme Court bench, neither of which the Governor could justify." That claim was backed by Governor Ehsa's sworn affidavit.
The motion points out that Tribunal Justice Johnny recused himself from presiding over Kostka v. Kostka, PCA No. 290-10 because of a conflict in the case because he had retained Kembo Mida, Esq., as his personal legal counsel to represent him in another case.
The motion also says that "any reasonably informed Pohnpeian would agree that as a result of (Johnny's) urgent housing request being rejected by Governor Ehsa, Justice Johnny may bear a grudge against him and that his 'impartiality might reasonably be questioned'. The additional refusal of Governor Ehsa to appoint Johnny's 'promise brother' to fill a vacancy on the State Supreme Court would add to a potential temptation to use his judicial role in the matter of impeachment to retaliate against Governor Ehsa.
The Governor's motion says that while the law can sometimes allow a judge to preside in a matter where he might otherwise be conflicted out when it is a question of necessity, that legal principal does not apply in this case. "Necessity, when sparingly invoked, oblige judges to hear and decide cases from which they ought otherwise to recuse themselves or be disqualified, if no other judge is available to hear the case." The motion says that in this case there are currently more than ten alternate, qualified judges in Pohnpei who are not subject to disqualification to hear the impeachment case.
"For Chief Judge Rodriguez and Associate Justice Johnny to sit on this impeachment panel in light of the fact that both have retained the professional legal services of the Special Prosecutor in this impeachment case, places Governor Ehsa at a distinct unfair disadvantage of inherent prejudice per se, and violates due process rights under the FSM Constitution," the motion argues.
The motion says that one of the aspects of the right to due process of law is the right to be tried or heard by an impartial adjudicator.
"Under Pohnpei statutory law, a party moving for disqualification of a judge must do so before trial or hearing unless good cause is shown for filing it at a later time...No set trial or evidentiary hearing date is now imminently pending in this matter," the motion says.
At press time the Pohnpei State Supreme Court impeachment tribunal had not yet made a ruling on the motion.

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