Full Opinion

IN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS IN THE MATTER OF THE ESTATE OF ANGEL MALITE, Deceased. SUPREME COURT NO. 2009-SCC-0036-CIV SUPERIOR COURT NO. 97-0369-CV Cite as: 2010 MP 20 Decided December 29, 2010 Douglas Cushnie, Saipan, Commonwealth of the Northern Mariana Islands, for Appellant Antonio Atalig. Reynaldo Yana, Saipan, Commonwealth of the Northern Mariana Islands, appearing pro se. Stephen Nutting, Saipan, Commonwealth of the Northern Mariana Islands, for Appellees. BEFORE: JOHN A. MANGLONA, Associate Justice; ROBERT J. TORRES, Justice Pro Tem; HERBERT D. SOLL, Justice Pro Tem. MANGLONA, J.: ¶1 Appellants Antonio M. Atalig and Reynaldo O. Yana appeal an order entered by Judge Kenneth L. Govendo holding them in civil contempt and imprisoning them until they repay $1,288,500.00 in attorney fees received for work performed in connection with the Estate of Angel Malite. Appellants argue that Judge Govendo should have recused himself from the Malite proceedings because comments he made during a hearing demonstrated a lack of impartiality. Appellants further argue that Judge Govendo’s order to disgorge all attorney fees exceeded the scope of this Court’s mandate issued in Malite v. Tudela, 2007 MP 3, and that continued incarceration is improper because Appellants are judgment debtors and have sufficiently demonstrated an inability to comply with the probate court’s disgorgement order. ¶2 We hold that Judge Govendo’s contested comments were general in nature and reflected his opinion of the law, and therefore, his disqualification is not warranted. We hold that our prior opinion, Malite v. Tudela, neither ordered nor foreclosed disgorgement, and so the issued mandate did not bar the probate court’s disgorgement order. We further hold that Appellants were not imprisoned as judgment debtors, but for failing to comply with court orders, and that they have failed to adequately demonstrate an inability to at least partially comply with these orders. However, we hold the probate court abused its discretion by denying all attorney fees without first considering all relevant fee factors stated in Rule 1.5 of the Model Rules of Professional Conduct. We therefore VACATE the probate court’s order denying all attorney fees and REMAND this matter to the probate court for a hearing on the reasonableness of attorney fees. I ¶3 The Estate of Angel Malite1 (the “Estate”) entered probate in April 1997.2 At some point prior to November 2000, the Marianas Public Land Authority (“MPLA”) agreed to pay the Estate $3,450,000 for a piece of land originally owned by Angel Malite. This amount was offered as a settlement for the Estate’s condemnation action taken by the Trust Territory Administration. However, on November 7, 2000, before the money was disbursed, the Attorney General’s Office (“AGO”) brought a separate civil action to enjoin the payment of the $3,450,000 to the Estate. The Estate and MPLA were named as defendants. 1 Many filed documents refer to Angel “Malite,” while others refer to Angel “Maliti.” Both parties use Angel “Malite” in their briefs and so we will do likewise. 2 This Court has issued multiple opinions related to the disposition of the Angel Malite Estate. As a result, portions of this factual background are taken from Tudela v. Superior Court, 2010 MP 6 and Malite v. Tudela, 2007 MP 3. ¶4 In response to the AGO’s request for an injunction, four of the Estate’s eighteen potential heirs signed a contingency fee agreement with attorney Antonio M. Atalig, agreeing to pay him thirty-three percent of whatever amount he could secure from MPLA.3 Mr. Atalig also represented the Estate’s administrator, Jesus C. Tudela (the “Administrator”), in the Estate’s probate. The Administrator did not sign the contingency fee agreement. ¶5 On February 28, 2006, a settlement was reached in the civil case. The settlement was executed by the Commonwealth (through an Assistant Attorney General (“AAG”)), the Department of Public Lands (through the Acting Secretary), and the Estate (through the Administrator and Mr. Atalig as “Attorney for the Administrator of the Estate of Angel Maliti”). Attorney Stephen J. Nutting, separately representing four of the Estate’s heirs (“the Heirs”), also signed the settlement. On March 13, 2006, the civil court accepted the settlement agreement and entered a judgment in accordance with it. ¶6 The next day, March 14, 2006, Mr. Atalig, along with co-counsel in the civil action Reynaldo O. Yana, filed a request in the civil court for attorney fees under the contingency fee agreement. A hearing on the matter was set for April 18, 2006. No notice regarding this hearing or the request for attorney fees was given to the AAG who handled the injunction and the resulting settlement. Nevertheless, the AAG learned of the hearing and appeared in court. The AAG informed the court that she had not been served and requested the court continue the matter so that she could receive notice and have time to respond. The court granted her request, taking the matter off calendar and ordering Mr. Atalig to provide notice. ¶7 However, on May 12, 2006, without a hearing on the matter and apparently sua sponte, the civil court entered an order approving Mr. Atalig and Mr. Yana’s thirty-three percent contingency fee.4 Noting “the absence of any evidence to the contrary,” the court found the contingency fee “appropriate compensation for civil cases.”5 Additionally, the court provided “the clients” ten days to file an opposition. On May 18, 2006, the Administrator filed a waiver of objection to the fees. Neither the AAG nor the Heirs were served with the order granting attorney fees. Thus, no opposition was filed within the ten-day time period. ¶8 After learning of the civil court’s order awarding attorney fees, the Heirs petitioned the probate court for a temporary restraining order requiring Mr. Atalig and Mr. Yana to disgorge the fees. Following a hearing, the Heirs’ motion for a TRO was denied. The Heirs then filed a petition for a writ of mandamus 3 It is unclear from the record whether there are multiple contingency fee agreements or one agreement signed by all participating heirs. 4 This Order awarded Appellants $1,138,500.00. Appellants had previously been awarded $150,000.00 through a probate court order entered April 19, 2006. Supplemental Excerpts of Record (“SER”) at 22. 5 Commonwealth ex rel. Brown v. Demapan-Castro, Civ. No. 04-0563 (NMI Super. Ct. May 12, 2006) (Order Approving Attorneys’ Fees) (included in SER at 19). with this Court, asking us to order the probate court to order the Administrator and his attorneys to disgorge the awarded fees and conduct a proper review and accounting to determine appropriate attorney and administrator fees and costs. ¶9 This Court responded to the Heirs’ petition in its opinion Malite v. Tudela, 2007 MP 3, issued on February 16, 2007. Therein, we ruled that the Heirs had not met the burden for a writ of mandamus, but, after converting the matter to an interlocutory appeal, we found the probate court erred in failing to conduct an independent review of attorney fees. The Court subsequently reversed and remanded the matter “to the probate court for a hearing on the propriety of the attorney fees which should be awarded in the civil proceeding.” Malite, 2007 MP 3 ¶ 37. ¶ 10 After the case was remanded, the Heirs filed a motion in the probate court, asking it to order Mr. Atalig and Mr. Yana to disgorge the awarded attorney fees. A hearing on this motion was delayed due to a series of motions seeking judge recusal and disqualification.6 On June 15, 2007, Judge Govendo made comments during a hearing on attorney fees that led Appellants to file a motion seeking his disqualification. Judge Naraja subsequently denied the motion. On November 6, 2007, Judge Govendo granted the Heirs’ motion seeking disgorgement,7 ordering Mr. Atalig and Mr. Yana to disgorge attorney fees and stating that if they failed to do so the court would hold contempt proceedings. 6 Judge Juan T. Lizama was originally assigned to handle the Malite probate case, but was later disqualified in an order issued by Judge David A. Wiseman. Presiding Judge Robert C. Naraja then assigned the case to Judge Wiseman, who subsequently recused himself. The case was then assigned to Judge Kenneth L. Govendo. The Administrator subsequently filed a motion to disqualify Judge Govendo, which Presiding Judge Naraja denied. The Administrator, through his attorneys Mr. Atalig and Mr. Yana, then filed a petition for a writ of prohibition with this Court to restrain Presiding Judge Naraja and Judge Govendo from presiding over Malite Estate proceedings. This Court requested supplemental briefing concerning whether Judge Govendo should have been disqualified. See Tudela v. Superior Ct., 2010 MP 6 ¶ 1 n.1. 7 The probate court order stated: It is important to note, for the parties and their attorneys that the disgorgement of attorney fees does not mean that the parties’ attorneys will be denied reasonable attorney fees. Rather, the purpose of disgorging the attorney fees is to place the funds in a Superior Court trust while a proper and thorough review and accounting can be performed in accordance with the Supreme Court Order. In re Estate of Angel Malite, Civ. No. 97-0369 (NMI Super Ct. November 6, 2007) (Order Granting the Maliti Heirs’ Motion to Disgorge Attorney Fees at 2). The probate court and the parties repeatedly refer to the probate court’s order to return awarded attorney fees pending a final fee determination as ordering “disgorgement.” This term typically refers to a permanent legal remedy, whereas the probate court’s order is more aptly classified as ordering that the funds be interpleaded. See Black’s Law Dictionary 659 (7th ed. 2000) (defining “interplead” as “to institute an interpleader action, usu. by depositing disputed property into the court’s registry to abide the court’s decision about who is entitled to the property.”). However, throughout this litigation the courts and parties have used the word “disgorgement” and so we will generally do likewise. ¶ 11 Appellants subsequently submitted billing statements to the court and a document summarizing attorney fees and costs. They also stated in sworn declarations that “the fees received have already been distributed and exhausted by both counsels.” SER at 28-31. The court was unsatisfied with this response and ordered the attorneys to provide the court with a detailed accounting of how the fees had been spent, including who received the funds and on what dates, the amounts distributed, and documentation supporting the purported distributions. ¶ 12 When Appellants failed to comply, the court conducted a hearing to show cause why they should not be held in contempt. At the hearing both attorneys testified that they did not keep records of the time they spent working on the case, and that they had been forced to reconstruct their time records. They were only able to provide a vague accounting of how the money was distributed, and in many cases were either unable or unwilling to answer questions concerning how the fees were spent. The court found the attorneys in contempt of court for “failure to disgorge to [sic] attorneys’ fees, failure to provide a detailed billing statement, and failure to provide a detailed accounting.” In re: Estate of Angel Maliti, Civ. No. 97- 0369 (NMI Super. Ct. Jan. 15, 2008) (Amended Order) at 35. Judge Govendo then incarcerated both attorneys. In the months that followed, Mr. Atalig and Mr. Yana filed a series of motions in this Court to stay the probate court’s judgment imprisoning them for civil contempt. ¶ 13 While Appellants remained incarcerated, the probate court held hearings to address the disgorgement issue.8 After Mr. Atalig and Mr. Yana stated that they could not comply with the court’s order while in jail, Judge Govendo released them from custody two days each week.9 The court told Appellants to use this time to comply with the disgorgement order; specifically, to compile detailed billing statements and produce an accounting of time spent on the Malite Estate and how the attorney fees were distributed. ¶ 14 On January 5, 16 and 28, 2009, hearings were held concerning Appellants’ submitted time billings.10 On January 27, 2009, Mr. Atalig and Mr. Yana separately submitted documents showing how they spent the awarded attorney fees. Appellants’ Excerpts of Record (“ER”) at 78-81; SER at 123-34. On January 28, 2009, the court issued its ruling, finding that “Mr. Atalig and Mr. Yana’s billing statements are excessive, unreliable and disingenuous.” In re: Estate of Angel Maliti, Civ. No. 97-0369 (NMI Super. 8 Following one hearing, Judge Govendo suspended Mr. Atalig and Mr. Yana from practicing law until the attorney fees were disgorged. The suspensions were vacated in Atalig v. Superior Court, 2008 MP 19. 9 The court also granted Mr. Atalig temporary release from custody to care for his family after his son was involved in an accident and had to be flown to Hawai’i for treatment. 10 It is unclear from the record whether a hearing on the reasonableness of attorney fees was also held on January 20, 2009. See SER at 119. Ct. Jan. 28, 2009) (Order) (“Order Denying Attorney Fees”) at 14.11 The court ruled the attorneys were not entitled to any fees and awarded the Estate of Angel Malite a judgment for the entire amount of $1,288,500.00—the amount of fees previously awarded to Mr. Atalig and Mr. Yana. The attorneys were subsequently remanded to custody beginning on January 30, 2009, and remained incarcerated until this Court granted their motion to stay their incarceration pending disposition of this appeal. II ¶ 15 This Court must resolve multiple issues on appeal. First, we must determine whether Judge Govendo should have been disqualified from presiding over the Malite proceedings due to comments made at a hearing concerning attorney fees. Second, we must determine whether Judge Govendo’s order denying attorney fees and imprisoning Appellants must be reversed because: (1) the probate court’s disgorgement order conflicted with the mandate issued in Malite v. Tudela, 2007 MP 3; (2) Appellants are judgment debtors and therefore cannot be incarcerated for more than six months (which they have already served); and/or (3) Appellants cannot purge themselves of contempt and are now being held in criminal contempt, which is limited to six months in jail. Addressing these issues requires reviewing whether Judge Govendo held a proper reasonableness hearing before denying attorney fees. We will address each issue separately. A. Judge Govendo May Preside over the Malite Proceedings ¶ 16 Whether Judge Govendo properly presided over the Malite proceedings impacts the level of deference we afford his decisions, and so we will address this issue first. Appellants previously filed a series of petitions with this Court alleging that both Presiding Judge Naraja and Judge Govendo should be disqualified from further participation in the Malite case. In Tudela v. Superior Court, 2010 MP 6, we held that Presiding Judge Naraja was permitted to rule on the disqualification motions filed to remove both himself and Judge Govendo, and that Presiding Judge Naraja properly refused to recuse himself. However, we ordered supplemental briefing concerning whether Presiding Judge Naraja properly denied Appellants’ motion to disqualify Judge Govendo.12 We now resolve this matter. ¶ 17 Appellants argue that Judge Govendo’s disqualification was warranted on multiple grounds. We disagree.13 Appellants make two main arguments for why Judge Naraja should have disqualified Judge 11 The court issued two orders on this date, both of which are entitled “Order.” The first Order is a two-page order denying all attorney fees and is included in Appellants’ Excerpts of Record. ER at 26-27. The court then issued a second Order nunc pro tunc, which denied attorney fees and included the court’s legal analysis which was missing from the initial Order. SER at 137-150. References in this opinion to the Order Denying Attorney Fees refer to the Order issued nunc pro tunc. 12 Both parties filed supplemental briefs, and Roman Demapan filed a brief as amici curiae. 13 While we decide this matter on substantive grounds, we note that Appellants’ disqualification motion may have been untimely. Judge Govendo was assigned to this case on April 12, 2007, and Appellants filed their motion to disqualify him 133 days later—on August 23, 2007. Perhaps even more significantly, sixty-nine days elapsed Govendo.14 First, Mr. Yana asserts that Judge Govendo should have been disqualified from presiding over the Malite proceedings because Mr. Atalig, Mr. Yana and Bernardo Cruz had filed an ethics complaint against Judge Govendo in an unrelated case. We gather from Appellant Yana’s brief that Judge Benson, the investigating judge, ultimately dismissed the complaint. Appellant Yana’s Supplemental Brief on the Disqualification Issue (“Yana’s Supplemental Brief”) at 8 n.1. Given this disposition, Yana apparently argues that recusal is required whenever a judge is the subject of a pending ethics complaint.15 ¶ 18 We find Mr. Yana’s argument unpersuasive. “The mere filing of a complaint of judicial misconduct is not grounds for recusal.” Ginsberg v. Evergreen Sec., Ltd., 570 F.3d 1257, 1265 (11th Cir. 2009). “It would be detrimental to the judicial system if a judge had to disqualify himself anytime someone filed a complaint about his conduct. A party would only have to file a complaint to get a different judge.” Id.; see Ball v. Melsur Corp., 633 A.2d 705, 709 (Vt. 1993) (“We decline to hold that a per se lack of impartiality, mandating recusal, arises whenever a judge is the subject of a judicial conduct complaint by an attorney. . . . Otherwise, an attorney would need only file a complaint, possibly groundless, to avoid a particular judge thereafter.”) This reasoning is even more persuasive when, as here, between Judge Govendo’s contested comments concerning attorney fees, which were made on June 15, 2007, and Appellants’ disqualification motion. A party seeking disqualification under 1 CMC § 3308(a) must do so in a timely manner. Bank of Saipan v. Superior Ct., 2002 MP 16 ¶ 15. “A party waives the [disqualification] issue by not raising it at the first available opportunity.” Id. ¶ 18 (citations omitted). Whether a motion under 3308(a) is timely is determined on a case-by-case basis, considering the following factors: (1) the extent of movant’s involvement in the proceeding; (2) whether recusal would result in a waste of judicial resources; (3) whether the motion was made after entry of judgment; and (4) whether movant can demonstrate good cause for delay. Id. While we reject Appellants’ disqualification argument on substantive grounds, attorneys would be well-advised to ensure that disqualification motions are filed in a timely manner. 14 In denying Appellants’ motion to disqualify Judge Govendo, Judge Naraja considered and rejected arguments grounded in Judge Govendo’s actions in related cases. These arguments were raised to this Court in a series of writ petitions Appellants filed. While Appellants did not revisit these arguments in their supplemental briefs, because Mr. Yana stated during oral argument that he had not abandoned these arguments, we will address them. Appellants assert that Judge Govendo’s disqualification was warranted because in a series of adoption proceedings—unrelated to the present case—in which Mr. Yana was counsel, Judge Govendo issued rulings against Mr. Yana. For reasons discussed in Tudela v. Superior Court, 2010 MP 6 ¶¶ 24, 27, we find these arguments unpersuasive. Similarly meritless is Appellants’ argument that Judge Govendo was required to disclose that in an unrelated case he reviewed billing statements submitted by the late Pedro Atalig—Appellant Antonio Atalig’s brother. The trial court found that this connection was too tenuous to require disclosure. Appellants have made no legal argument supporting that this decision was erroneous, and so we need not examine it further. 15 Mr. Yana cites no legal authority supporting this position. The only case he cites, Blaisdell v. City of Rochester, 609 A.2d 388 (N.H. 1992), does not involve recusal in instances where an ethics complaint is pending against the challenged judge. the ethics complaint is filed in an unrelated proceeding. We thus reject Mr. Yana’s argument as a basis for disqualification.16 ¶ 19 Appellants also assert Judge Govendo’s recusal/disqualification is warranted due to comments he made during a hearing concerning attorney fees for the Malite estate probate and accompanying civil action.17 Specifically, Appellants argue that for these comments Presiding Judge Naraja should have disqualified Judge Govendo under 1 CMC §§ 3308(a) and (b)(1), and Canon 3(D)(c) of the Commonwealth Code of Judicial Conduct. Under 1 CMC § 3308(a), a “justice or judge of the Commonwealth shall disqualify himself or herself in any proceeding in which his or her impartiality might reasonably be questioned.” Without citing any factually analogous cases, Appellants simply assert that “[a]ny reasonable person hearing [Judge Govendo’s comments] would reasonably question his impartiality.” Yana’s Supplemental Brief at 11. Appellants elaborate that their fear that Judge Govendo lacked impartiality materialized in Judge Govendo’s subsequent decisions to suspend Appellants from 16 Appellants also suggest that the trial court erred by not staying probate court proceedings while various writ petitions were pending before this Court, and that such actions implicate Judge Govendo’s impartiality. However, absent the granting of a stay, a lower court is not deprived of jurisdiction while a writ petition is pending before this Court. See, e.g., Ellis v. United States Dist. Ct., 360 F.3d 1022, 1023 (9th Cir. 2004) (“in the context of an extraordinary writ such as mandamus, there is no need for the appellate court to relinquish its jurisdiction to the district court because it was never deprived of jurisdiction over the underlying case. The district court does not lose jurisdiction over a case merely because a litigant files an interlocutory petition for an extraordinary writ.”); Woodson v. Surgitek, 57 F.3d 1406, 1416 (9th Cir. 1995) (“If the district court or the court of appeals finds it appropriate to stay proceedings while a petition for mandamus relief is pending, such a stay may be granted in the court’s discretion. However, absent such a stay, the jurisdiction of the district court is not interrupted.”); Stebbins v. Stebbins, 673 A.2d 184, 193 (D.C. 1996) (“Because the decision whether to issue an extraordinary writ is discretionary and turns on the particular facts of a given case, it would be inexpedient to create a blanket rule that the mere filing of any such petition has the effect of freezing proceedings in the trial court.”). 17 At the hearing, Judge Govendo stated: Probate is for the heirs, not for the attorneys. The heirs should make more than attorneys in probate. Unfortunately, we have had a bad example set in the Commonwealth, it was called the estate of Larry Hillbloom [sic], in which attorneys made contingent fee contracts and got away with it. It isn’t going to happen in this case. All right. So gentlemen, all of you, start going back to day one; date, legal service rendered, I want to see it, I’m going to go through it with a fine tooth comb and I want you to know, I want all of you to know that I’ve done many many probates, okay. And in all my doing a [sic] probate, I probable [sic] never got paid more than $5,000.00 for the entire probate and I guarantee I had many more heirs than the Malite case, many more. I’ve done Carolinian probates, they are a mine field, a mine field that heirs and people that have died in other probates, just what you are going through here. It can be done. So we are going to take a look I want the heirs to get some money out of this. The money in this estate is for the heirs, not for the attorneys. All right, now I’m not saying, I’m not prejudging since I haven’t seen anything, maybe what Mr. Atalig and Mr. Yana had done is well deserving of it, maybe there’s some complications, I will take a look at it . . . . Things are going to change in the probate law in the CNMI and they’re going to change with this case. And the word that should go out is when there’s money it goes to the heirs not to the attorneys. The Hillbloom case was a fluke, it was an aberration. It gave the Commonwealth a bad name. All right, it’s not going to happen again. Petition for Writ of Prohibition, Exhibit E, Transcript of Proceeding of June 15, 2007 at 18-19. practicing law, replace Mr. Tudela as administrator, incarcerate Appellants for civil contempt, and deny Appellants attorney fees. Appellees respond that Appellants have attempted to disqualify every judge who has presided over the Malite case and that Appellants’ actions show a lack of respect for the judicial process.18 Appellees also argue that none of Judge Govendo’s comments or actions creates an appearance of bias, prejudice or partiality.19 ¶ 20 We find that Judge Govendo’s comments do not require disqualification, and therefore Presiding Judge Naraja did not err in denying Appellants’ disqualification motion. At the outset, however, we stress that even though Judge Govendo’s comments do not ultimately warrant disqualification, we question the prudence of his remarks and find he could have conveyed his thoughts in a more temperate manner. Judges are empowered to exercise control over their courtroom, and many judges no doubt find that making extended remarks from the bench aids courtroom administration and facilitates the litigation process. Judges must be vigilant, however, to ensure that their remarks are evenhanded. When comments cause additional litigation, they undermine the very ideals of judicial efficiency they are intended to promote. For example, Judge Govendo’s comments led to dozens of legal filings and the expenditure of precious judiciary resources. Protracted litigation could have been avoided if Judge Govendo had chosen his words more carefully and exercised greater judicial self-control. Observing these practices in the future is necessary to prevent potential disqualification and protect the integrity of the judiciary. ¶ 21 Despite these serious concerns, we find in this particular case that Judge Govendo’s comments were general in nature, reflected his view of the law, and were permissible. It is undisputed that the comments at issue were made during a preliminary hearing on attorney fees. As stated by the United States Supreme Court in Liteky v. United States: [J]udicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality 18 They assert as examples the fact that Appellants disregarded Supreme Court rules governing the procedures for moving to disqualify judges, and that Appellants “engaged in baseless personal attacks on the individual judges, claiming that the first, Judge Wiseman had pre-judged the case against them, the second, Judge Govendo, had a racial prejudice and the third, Judge Naraja, lacked the ‘guts’ to disqualify Judge Govendo.” Supplemental Brief in Response to Order of May 12, 2010 Relative to the Disqualification of the Honorable Kenneth L. Govendo (“Appellees’ Supplemental Brief”) at 1. 19 Appellees also assert that Appellants’ motion to disqualify Judge Govendo was procedurally deficient because it was untimely filed, violated the one-affidavit rule, was not accompanied by a certification that it was brought in good faith, and that the submitted affidavits were signed by the attorneys and not a party to the action. Appellees’ Supplemental Brief at 11. In denying Appellants’ motion to disqualify Judge Govendo, Presiding Judge Naraja stressed the numerous procedural deficiencies attending Appellants’ challenge. See In re: Estate of Angel Malite, Civ. No. 97-0369 (NMI Super. Ct. Sept. 19, 2007) (Order Denying Administrator’s Motion to Disqualify Judge Kenneth L. Govendo and Requiring Counsel for Administrator to Show Cause Why They Should Not Be Sanctioned at 3-5). To the extent that Appellants’ challenge involves 1 CMC § 3308(b)(1), it is denied due to procedural infirmities. See Tudela, 2010 MP 6 ¶ 20. Thus, the only remaining question before us is whether Judge Govendo’s actions violated 1 CMC § 3308(a). challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. 510 U.S. 540, 555 (1994). While the Liteky Court did not focus on when an opinion derived from an extrajudicial source “may” warrant disqualification,20 the Court stressed that the presence or absence of an extrajudicial source alone is not determinative of whether judicial disqualification is required: The fact that an opinion held by a judge derives from a source outside judicial proceedings is not a necessary condition for “bias or prejudice” recusal, since predispositions developed during the course of a trial will sometimes (albeit rarely) suffice. Nor is it a sufficient condition for “bias or prejudice” recusal, since some opinions acquired outside the context of judicial proceedings (for example, the judge's view of the law acquired in scholarly reading) will not suffice. Since neither the presence of an extrajudicial source necessarily establishes bias, nor the absence of an extrajudicial source necessarily precludes bias, it would be better to speak of the existence of a significant (and often determinative) “extrajudicial source” factor, than of an “extrajudicial source” doctrine, in recusal jurisprudence. Id. at 554.21 20 The Supreme Court, however, has long maintained that bias or prejudice “to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” United States v. Grinnell Corp., 384 U.S. 563, 583 (1966). 21 Appellees appear to have mischaracterized the nature of the extrajudicial source doctrine. Citing Liteky, they argue that “[b]ecause all of the statements referenced were made in ‘open court’ as a result of the judicial source rule, those statements and judicial rulings could constitute a valid basis for finding a bias or partiality only if they display[ed] a deep-seated favoritism or antagonism that would make fair judgment impossible.” Appellees’ Supplemental Brief at 20 (citing Liteky, 510 U.S. 540). This Court has previously applied the “judicial source rule,” which is also known as the extrajudicial source doctrine. See Bank of Saipan v. Superior Ct., 2002 MP 16 ¶ 39 (“bias stemming from a court’s decisions during proceedings are not of an extra-judicial nature.”); Saipan Lau Lau Dev. Inc. v. Superior Ct., 2000 MP 12 ¶ 4 (stating that disqualification is warranted if factual allegations “stem[] from some extrajudicial source and would thus result in an opinion on the merits on some basis other than what the judge has learned from his participation in the case.”). Appellees’ argument—that comments made in a courtroom by definition cannot be extrajudicial— mischaracterizes the Liteky case and its progeny. The Liteky Court stated that “[j]udicial remarks during the course of a trial . . . may . . . reveal an opinion that derives from an extrajudicial source.” 510 U.S. at 554. The critical inquiry in applying the extrajudicial source doctrine is thus not simply where the comments are made, but the source of the information underlying the comments. This idea was succinctly stated by District of Columbia Court of Appeals: Ordinarily, a trial judge is not required to recuse when an affiant alleges bias arising from a source within the “four corners of the courtroom.” The “four corners of the courtroom” test is really an alternative formulation of the rule that bias must be personal rather than judicial before recusal will be required. The proper distinction is between a judicial determination derived from evidence and lengthy proceedings before the court, and a determination not so founded upon facts brought forth in court, but based on attitudes and conceptions that have their origins in sources beyond the four corners of the courtroom. Essentially, the importance of the distinction lies not in the physical location of the incidents from which bias is alleged to arise, but in the nature of the incidents as inside or outside the scope of official judicial conduct in regard to the instant or a prior case. The alleged bias and prejudice to be disqualifying must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. ¶ 22 Thus, we must do more than simply classify the nature of Judge Govendo’s comments. “The general rule is that bias sufficient to disqualify a judge must stem from extrajudicial sources and must be focused against a party to the proceedings.” Hamm v. Members of Bd. of Regents, 708 F.2d 647, 651 (11th Cir. 1983) (citations omitted).22 The disqualifying “attitude of personal enmity” must be “towards the party or in favor of the adverse party to the other’s detriment” and thus “[i]mpersonal prejudice resulting from [the judge’s] background experience” does not warrant disqualification. State ex rel. Wesolich v. Goeke, 794 S.W.2d 692, 697-98 (Mo. Ct. App. 1990); see United States v. Fiat Motors of N. Am., Inc., 512 F. Supp. 247 (D.D.C. 1981) (involving a motor vehicle lawsuit where challenged judge had been involved in the car accident, the court held that “personal background and experience of a trial judge” are insufficient to warrant disqualification). Thus, “[g]enerally stated views, even when expressed strongly, against a wide variety of conduct, are not unreasonable for a judge, and would not, absent more, disqualify a judge from sitting on a case involving the same subject matter.” United States v. Cooley, 1 F.3d 985, 993 n.4 (10th Cir. 1993). ¶ 23 In the present case, Judge Govendo’s comments were not directed toward any particular party to the Malite proceedings. Instead, his remarks conveyed to the attorneys and the administrator how fees would be awarded. No one was singled out for preferential treatment. To the contrary, Judge Govendo stated that he had “not prejudged” the fee issue. While this statement alone will not act as a talisman, shielding judges from disqualification challenges, it distinguishes this case from others in which a party is clearly disfavored by a judge’s prejudgment of the issues. See Leighton v. Henderson, 414 S.W.2d 419 (Tenn. 1967) (ordering new trial where judge stated, “I don’t care what proof is in the record, if the Governor doesn’t pardon this man, I’m going to grant the petition. . . .”).23 ¶ 24 Appellants further argue that Judge Govendo should be disqualified because his in-court comments “show an individual with a strong animosity against attorney fees in probate proceedings, and a publicly stated intention to personally remedy the situation.” Appellant’s Supplemental Brief at 2. In re Evans, 411 A.2d 984, 995 (D.C. 1980) (emphasis added) (citations omitted). Ultimately, Appellees’ mistaken view of the law is inconsequential to resolving the present case because we find Judge Govendo’s comments—regardless of their origin—insufficient to warrant recusal. See United States v. Barry, 961 F.2d 260, 263 (D.C. Cir. 1992) (“even if the remarks should prove to have been derived from an extrajudicial source, they will not require a judge to disqualify himself unless they are of such a character that ‘an informed observer would reasonably question the judge’s impartiality.’”). 22 “Since the language at issue in 1 CMC § 3308 – the statute governing disqualification and recusal of judges – is nearly identical to that in 28 U.S.C. § 455, we look to federal case law for guidance.” Tudela, 2010 MP 6 ¶ 8 (citing Commonwealth v. Caja, 2001 MP 6 ¶ 18). 23 It also