Lizama finds motion to recuse him mere ‘forum-shopping’

Superior Court Associate Judge Juan T. Lizama has expressed concern about a motion that requested for his recusal in a civil case, describing the move as mere “forum-shopping.”

Lizama said he is concerned that attorney William Fitzgerald’s motion for recusal, brought two years after the initiation of litigation, “is simply a tactic to manipulate the judicial system to gain a more favorable verdict.”

Using a minor “tiff” as an excuse to forum-shop is expressly forbidden, said Lizama in his order issued on Monday that denied plaintiff Columba Il Chul Chong’s motion for recusal.

“It is widely accepted that forum shopping should not be promoted in a judicial system. Allowing a recusal based on an unsubstantiated ‘grudge’ could take forum shopping to another level,” the judge said.

Lizama said that, should an attorney finds himself or herself losing motions halfway through the litigation, he or she might be tempted to collaborate with additional counsel against whom the court is “prejudiced.”

The attorney could then seek recusal and move to a “friendlier” court, he noted.

Court records show that the lawsuit, which was filed in 2003, concerns a personal injury that Chong allegedly sustained at the Hotel Nikko Saipan.

Chong was referred to attorney Bruce Berline by her close friend, who is also the wife of Lizama.

Fitzgerald joined the case as additional counsel for Chong. At a Dec. 13, 2005 scheduling conference, at which Fitzgerald was not present, Berline suggested that Lizama recuse himself due to a perceived bias against Fitzgerald.

Berline referred to the case Health Professional Corp. vs. Bank of Guam, where Fitzgerald served as counsel for HPC.

As the judge in that case, Lizama denied many of Fitzgerald’s motions.

Berline suggested that HPC’s lack of success in the Bank of Guam case was due to hard feelings coming out of an earlier collaboration between Lizama, Berline, Fitzgerald, Lana Buffington, and Lee Nelson.

That collaboration ended several years ago with some disagreement about the division of $30,000 fees earned in a case shared by the five attorneys.

Lizama firmly stated that he holds no grudge against Fitzgerald or Berline, and that the Bank of Guam case has had no impact whatsoever on the instant proceedings.

In January 2006, after more than two years of litigation in the case, Fitzgerald moved for Lizama’s recusal.

The motion was based in part on Fitzgerald’s understanding that Lizama’s statements during the Dec. 13, 2005 conference suggested bias.

At the Jan. 24, 2006 hearing on the motion, Lizama expressed his lack of hard feelings for Fitzgerald or any of the other attorneys before the court.

Fitzgerald accepted Lizama’s conviction that the judge harbored no grudges against Fitzgerald, but suggested that the appearance of impropriety arising from their former disagreement was sufficient to warrant recusal.

Fitzgerald referred to comments allegedly made during the Bank of Guam case by the late Justice Pedro Atalig, a friend of both Fitzgerald and Lizama, regarding Lizama’s alleged grudge against Fitzgerald.

Two of the other counsels present, Robert O’Connor and Eric S. Smith, expressed their confidence in Lizama’s ability to fairly decide the case regardless of Fitzgerald’s claim.

In his order, Lizama said the standard for a recusal based on the appearance of impropriety is what a reasonable person “with knowledge of all the facts” would conclude.

The determination of whether to recuse himself or herself is left to the judge’s discretion, Lizama said.

He said that, because the motion appears to be untimely, it must be denied.

Fitzgerald’s affidavit in support of the motion does not meet the statutory requirements for affidavits, he said.

“It is not a sworn statement nor is it stated to be made under penalty of perjury as required by the statute,” the judge said.

Further, he said, the allegations in the affidavit are based on third-party statements rather than personal knowledge.

“In small communities like ours, the knowledgeable observer is less likely to perceive bias arising from those common circumstances, because the circumstances is so common,” he said.

It appears to the court that the motion is based at least in part on Fitgerald’s dissatisfaction with Lizama’s ruling in the Bank of Guam case, he said.

“Dissatisfaction with a ruling and displeasure with the court are not grounds for recusal. Any alleged bias must be based on extra-judicial conduct, which does not concern a judicial decision,” he said.

In our small community, Lizama added, a reasonable person would not necessarily conclude that a judge would be biased because of extra-judicial financial transaction with a lawyer under the facts as stated.