Lawyer cites joke as ground for judge’s disqualification

Superior Court Associate Judge David A. Wiseman’s joke on the whereabouts of a flash drive has been cited by lawyer Brien Sers Nicholas as ground for the judge to be disqualified from presiding over the probate of an estate that has been pending in court for over a decade now.

Wiseman, however, denied Nicholas’ motion to disqualify, saying he is thinking of imposing sanctions against the lawyer.

Wiseman said even if the lawyer’s allegations were true, his comments did not rise to a level of a “deep-seated and unequivocal antagonism that would render fair judgment impossible.”

The flash drive issue arose on the second day of the jury trial of former Commonwealth Utilities Corp. board chair Francisco Q. Guerrero in July 2013. On that day, Wiseman ordered the parties to submit proposed jury instructions in Word format on a flash drive for the court’s convenience and to conserve the resources of the parties. Each party submitted.

After that day, Nicholas, as counsel for Guerrero, asked to retrieve his flash drive. Nicholas alleged that Wiseman responded, “It was sent to the NSA [National Security Agency].”

Nicholas, who was also counsel for Enrique Seman, the previous administrator of the estate of Rita Rogolofoi, cited the comment as among the grounds that should disqualify Wiseman from presiding over the probate. He said Wiseman’s comment displays the judge’s bias and prejudice.

In his affidavit, Nicholas stated that Wiseman “attacked his honor and integrity by accusing him…of criminal acts in the highest order, so to speak…those deemed ‘terroristic’ in all respect.”

Nicholas implied that Wiseman, by and through his comments, was under the “impression that counsel was somehow a treat [sic] to the national security of the United States of America, much less her peoples (sic).”

In his order Thursday denying the motion, Wiseman said that based on his knowledge and recollection, as well as that of his court clerk and law clerk, he responded to Nicholas’ inquiry of the whereabouts of his flash drive with a jest made off the record: “I don’t know, maybe the NSA has it.”

Wiseman said in light of the surrounding circumstances at the time—the height of the NSA scandal which pervaded the media in response to the public discovering a massive government surveillance program that targeted the communications and devices of millions of Americans—his comment, while deemed unnecessary in retrospect, was “intended to be a satire on the state of affairs regarding government spying on the mainland and around the world.”

Wiseman stated that nothing said during the court’s proceedings that day or any other would lead the court to genuinely believe Nicholas was a threat to national security or that the NSA would have some legitimate reason to intercept the lawyer’s flash drive in the hopes of recovering evidence of terrorist activity.

“To suggest otherwise is inappropriate, unprofessional, and unacceptable to this court,” Wiseman said.

The judge stated that Nicholas’ allegations and “colossal leaps in logic” are equally offensive to the court, and impugns his integrity as a long-time member of the CNMI Bar and tenure as an associate judge.

Wiseman said even assuming such comments were, in fact, made to Nicholas off the record, a well-informed, thoughtful, and reasonable person would not find that he actually believed counsel to be a terrorist or a threat to national security.

Wiseman said a highly suspicious and cynical person may believe his comment indicated some bias or prejudice toward Nicholas but any reasonable person would recognize it as an attempted jape directed at making light of the infamous NSA scandal of dragnet government surveillance.

Accordingly, Wiseman said he finds that no reasonable person could find that the facts represented by counsel supported the contention that he harbored bias or prejudice toward Nicholas.

Wiseman said Nicholas’ accusations regarding the Guerrero case are unfounded and nothing less than benign.

Wiseman said he will continue to preside over the Rogolifoi estate probate until its ultimate and expeditious disposition.