Impeachment tribunal denies Ehsa’s motion to dismiss two of its Justices

By Bill Jaynes
The Kaselehlie Press
October 16, 2015
Pohnpei, FSM—The impeachment tribunal has once again ruled against a motion filed by Governor John Ehsa. On September 30 the impeachment tribunal issued an eleven page ruling explaining their decision to deny Governor John Ehsa's motion for two of the Justices on the tribunal to recuse themselves. "Under the Powell factors, and based on the totality of the circumstances, we find that a reasonable disinterested Pohnpeian who knows all the circumstances (the ruling listed) would not harbor any doubt as to the Justices' impartiality in this case. The motion is therefore DENIED," it concluded.
Governor Ehsa motion claimed that because Special Prosecutor Kembo Mida is Chief Justice Benjamin Rodriguez' personal attorney in a matter that is before the FSM Supreme Court he cannot be impartial in the matter of the impeachment.

It argued that a similar argument applies to Associate Justice Nickontro Johnny who is the presiding Justice on the tribunal. The motion also argued that because Governor Ehsa denied a request to provide housing for Justice Johnny, and because the Governor did not oblige Johnny's request to seat his promise brother to the bench of the Pohnpei Supreme Court, Johnny would naturally have a bias against Governor Ehsa that could act to affect Johnny's judgment as a member of the tribunal.
Special Prosecutor Mida filed his opposition to Governor's Motion to disqualify Rodriguez and Johnny. He argued that the motion was untimely and that no reasons existed for disqualification.
"There is insufficient evidence in the record to decide whether the filing of the motion was untimely and therefore decline to deny the motion based on untimeliness," the tribunal's ruling said. It said that it is obvious from the Governor's own motion that he knew long before he filed his motion for disqualification that he had denied Johnny's requests in 2014. "Thus, these issues are untimely."
However, while it is indisputable that Mida represents Rodriguez and Johnny in unrelated cases before the FSM Supreme Court there isn't sufficient evidence in the record for the tribunal to know when Mr. Ehsa or his attorney became aware of that fact. "We thus treat this issue as timely brought forth in the motion."
Mida argued in his opposition to the motion that the motion was untimely because it was not filed before "trial or hearing". Ehsa argued timeliness by arguing that "[n]o set trial or evidentiary hearing date is now imminently pending in the matter."
The ruling cited precedent that showed that it has been settled that a court may strike a disqualification motion as untimely where the motion is made after the court has ruled on an issue of considerable importance in the case. It then listed several of the important rulings that it had already issued before the motion was filed. On that basis the filing of the motion was untimely.
However, the law allows for filing at a later time "for good cause" and Mr. Ehsa argued that good cause includes the circumstance where the movant lacked the information that potentially causes disqualification. The tribunal accepted Ehsa's claim that he only became aware of the relationship between Mida and the two justices just before he filed the claim to disqualify them, thus making the filing of his motion timely under the statute.
"In striking a balance, the law presumes that a justice is qualified and unbiased," the ruling says. "To overcome that presumption, the movant must prove bias by a preponderance of evidence."
It again cited case precedent in which a court had ruled that unsupported allegations that a Justice may have subconscious misgivings is speculation and is insufficient to support the judge's disqualification.
The remaining issue of whether or not the fact that two of the Justices on the Tribunal are being legally represented on unrelated matters by the Special Prosecutor means that those Justices should be disqualified is not a simple matter. The ruling says that matter is not settled in the FSM and that the U.S. state law is split on the issue. Neither Ehsa nor Mida cited any FSM case law to back their respective arguments.
The Tribunal decided "to adopt the factors promulgated by the Supreme Court of Minnesota in Powell v. Anderson...and later adopted by the Supreme Court of Mississippi in another case." The Tribunal called them the Powell factors:
"In discussing the circumstances which would require recusal due to representation of the judge,...four factors should be considered.
"First, the reviewing court should consider the extent of the attorney-client relationship. 'If the relationship consisted of a single, short episode, or even a series of sporadic contacts, disqualification is less likely than it it consisted of a long-term, continuous course of representation.'
"Second, the nature of the representation should be considered. 'A direct relationship, where the judge is represented personally, is more indicative of a reasonable question regarding the judge's impartiality than a relationship that only involves the judge in some institutional or technical role.'
"Third, the court should consider the frequency, volume and quality of contacts between the judge and the attorney or firm.
"Fourth, the court should look to any special circumstances that may enhance or diminish the importance of disqualification, particularly in the eyes of the public."
The tribunal ruled that the Powell factors allow the Court to abide by the letter of the law, but also follow the decreed from a previous FSM case to take into account the unique circumstances of Pohnpeian society, culture, and geography. "These factors can be applied to the facts of this case in order to determine whether a disinterested reasonable Pohnpeian who knows all the circumstances would harbor doubt as the judge's impartiality," the ruling said.
It said the limited involvement of the justices with their respective cases at the FSM Supreme Court does not disqualify them. "The Ramp and Mida Law Firm was in conversations with the justices for only a limited time regarding a single matter in which the justices acted in their official capacities. "Any communication was conducted through the law clerks or court administrator as opposed to direct communication between the justices and any lawyer of the firm," the ruling said. "Also, because of the nature of the case, communication between this Court and the law firm on the matter has been infrequent. The matter on which they are represented, acting solely in their official capacities as justices of the Pohnpei Supreme Court, is wholly unrelated to the present case. Moreover, the defense of the justices for the cases at the FSM Supreme Court are funded by the Pohnpei State Legislature, not by the justices themselves. Lastly, neither Justice Johnny nor Justice Rodriguez have ever recused themselves in a prior proceeding for the reason that they are represented by Mr. Mida in a case before the FSM Supreme Court."
"In a large city in the United States, it may be justified for parties in a dispute to confront each other in Court with carefully applied rules for a judicial officer's disqualification from a particular case because the instance of a judge and party or their attorney having a relationship requiring recusal is so infrequent where the population is vast and spread out. By contrast, an island society the size of Pohnpei is greatly affected by its geography and the connected and interwoven relationships of the people who live here. It is commonly accepted as normal that any two people, both having lived their lives on a particular island, almost certainly are related or otherwise connected by a relationship in some way. We apply the reasonable Pohnpeian standard using the four factor test set forth in Powell with these truths in mind," the ruling said.

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