In re Abraczinksas

                                                       E-FILED
                                                       CNMI SUPREME COURT
                                                       E-filed: Dec 14 2023 11:56AM
                                                       Clerk Review: Dec 14 2023 11:56AM
                                                       Filing ID: 71620870
                                                       Case No.: 2023-SCC-0010-PET
                                                       NoraV Borja




                          IN THE
                  Supreme Court
                         OF THE

Commonwealth of the Northern Mariana Islands
             IN RE WILLIAM ABRACZINSKAS,
                        Petitioner.
        Supreme Court No. 2023-SCC-0010-PET


                      SLIP OPINION
                   Cite as: 

               Decided December 14, 2023


          CHIEF JUSTICE ALEXANDRO C. CASTRO
          ASSOCIATE JUSTICE JOHN A. MANGLOÑA
            ASSOCIATE JUSTICE PERRY B. INOS


              Superior Court No. 23-0082-CR
        Associate Judge Joseph N. Camacho, Presiding
                               In re Abraczinskas, 

INOS, J.:
¶1     William Abraczinskas (“Petitioner” or “Abraczinskas”) petitions for a writ
 of mandamus to disqualify all the Superior Court judges, or in the alternative, to
 disqualify the judge assigned to the case, because their impartiality might
 reasonably be questioned. He seeks the appointment of a judge pro tempore. For
 the following reasons, we GRANT the Petition for Writ of Mandamus and
 VACATE the Superior Court’s denial of the Motion for Disqualification. The
 Superior Court is ORDERED to reassign Petitioner’s case to another judge.
                     I. FACTS AND PROCEDURAL HISTORY
¶2     Abraczinskas, a recently hired employee of the NMI Superior Court, faces
 charges for Sexual Assault in the First Degree, Assault and Battery, and
 Disturbing the Peace, involving another Superior Court employee.
¶3       Two of the five Superior Court judges recused themselves. Upon
 reassignment to Judge Joseph N. Camacho, Abraczinskas immediately moved to
 disqualify all remaining Superior Court judges, claiming that both his and the
 alleged victim’s respective statuses as Superior Court employees create the
 appearance of impropriety and require disqualification of all Superior Court
 judges under 1 CMC § 3308(a). The court denied the motion and set the matter
 for trial. The petition for Writ of Mandamus and Prohibition followed.1
                                II. JURISDICTION
¶4      The Supreme Court has jurisdiction to issue writs of mandamus under
 Article IV, Section 3 of the NMI Constitution. Commonwealth v. Super. Ct., 

 ¶ 5.
                                   III. DISCUSSION
¶5       This petition comes to us from a denial of a motion to disqualify under 1
 CMC § 3308(a) (“3308(a)”). 1 CMC § 3308 deals with disqualification of
 judges. Subsection (a) states: “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.” See Tudela v. Super. Ct., 

 ¶ 13
 (describing 3308(a) as a “waivable catch-all provision”). Unlike section 3308(b)
 (“3308(b)”), which applies to circumstances when actual bias or some close
 relationship of the judge requires disqualification, 3308(a) applies when a judge’s
 presence in a case creates the “appearance of impropriety.” Saipan Lau Lau Dev.,
 Inc. v. Super. Ct. (San Nicolas), 

 ¶ 9. The existence of the appearance
 of impropriety is determined by asking whether a reasonable person with
 knowledge of all the facts would conclude that the judge’s impartiality could be
 questioned. Bank of Saipan v. Superior Court (Disqualification of Castro), 

 ¶ 29. Since the appearance of impropriety is an inherently unique and fact-
 intensive question, a judge’s analysis of a 3308(a) motion must be similarly fact-


1
    In his reply brief, Petitioner requests, in the alternative, that we order the
    disqualification of only Judge Camacho.
                           In re Abraczinskas, 

 intensive. Petitioner requests that we issue a writ of mandamus ordering the court
 disqualify due to the appearance of impropriety.
                           A. Mandamus, Generally.
¶6     Mandamus is an extraordinary form of relief, only to be granted in
 exceptional circumstances. In Tenorio v. Superior Court, 1 NMI 1, 8-9 (1989),
 we explained:
        There are dangers to an unprincipled use of peremptory writs, as for
        example, the possibility that its use would be an impermissible
        alternative to the normal appellate process. Its abuse could operate
        to undermine the mutual respect generally existing between trial
        and appellate court. Further, appellate courts should insure against
        the temptation to grant such writs merely because they might be
        sympathetic to the petitioner’s underlying actions. . . . [T]he remedy
        of mandamus is a drastic one, to be involved only in extraordinary
        situations; . . . it should be used only to confine an inferior court to
        a lawful exercise of its prescribed jurisdiction or to compel it to
        exercise its authority when it is its duty to do so; and . . . only
        exceptional circumstances amounting to a judicial “usurpation of
        power” will justify the invocation of this extraordinary remedy.
        

 (quoting Wills v. United States, 

 (1967)).
¶7       Acknowledging the importance of striking a balance between our
 relationship of mutual respect with the Superior Court and our occasional
 countervailing duty to correct the trial court through a writ of mandamus, we set
 forth an objective test—a set of five factors to guide us in analyzing a claim that
 the Superior Court has erred in a way that, under the circumstances, necessitates
 extraordinary relief. Id. at 9. The five Tenorio factors we follow are “limiting
 objective principles in order not to abuse the use of such extraordinary power.”
 Id. at 8. The factors are:
        1. The party seeking the writ has no other adequate means, such as
            a direct appeal, to attain the relief desired;
        2. The petitioner will be damaged or prejudiced in a way not
            correctable on appeal;
        3. The lower court’s order is clearly erroneous as a matter of law;
        4. The lower court’s order is an oft-repeated error, or manifest a
            persistent disregard of applicable rules; and
        5. The lower court’s order raises new and important problems, or
            issues of law of first impression.
        In re Commonwealth, 

 ¶ 13.
¶8     These factors have always been merely guidelines intended to assist us in
 weighing the various considerations that arise when deciding whether a writ of
 mandamus is warranted. We remind ourselves:
        In applying the above guidelines to a particular case, not always will
        there be a bright-line distinction; and the guidelines themselves
                           In re Abraczinskas, 

        often raise questions of degree as, for example, how clear is it that
        a lower court's order is wrong as a matter of law, or how severe a
        damage will petitioner[] suffer if extraordinary relief is withheld.
        The considerations are cumulative, and proper disposition will often
        require a balancing of conflicting indicators.
        Tenorio, 1 NMI 1 at 10 (citation omitted).
 Guided by these principles, we turn to this case.
         B. The Denial of the Motion to Disqualify Was Clearly Erroneous.
¶9      The “threshold” requirement for any grant of mandamus is that the
 Superior Court must have committed clear error. In re Commonwealth, 

 ¶ 8. “While we weigh all the factors, the absence of factor three is dispositive;
 a writ is not appropriate if the petitioner has not shown clear error.”
 Commonwealth v. Commonwealth Util. Corp. 

 ¶ 9. Because there
 cannot be mandamus without clear error, we start with factor three.
¶ 10     The source to which we look for error is the Order denying Petitioner’s
  Motion for Disqualification. On direct appeal, we review decisions on a motion
  for disqualification for abuse of discretion. Commonwealth v. Caja, 

  ¶ 2. Seemingly by contrast, our mandamus test instructs us to review the decision
  at issue for clear error. Tenorio, 1 NMI at 7–8. However, a court would
  necessarily abuse its discretion if it based its ruling on an erroneous view of the
  law or a clearly erroneous assessment of the evidence. Lucky Dev. Co. v. Tokai,
  U.S.A., Inc., 3 NMI 79, 84 (1992) (citing Cooter & Gell v. Hartmarx Corp, 

 (1990)). In this case, our analyses for abuse of discretion and clear error
  are one and the same.
¶ 11      Reviewing for clear error ensures that we accord “high deference” to the
  Superior Court. Liu v. CNMI, 

 ¶ 17. The goal is to determine whether
  “the court could rationally have found as it did, rather than whether [we] would
  have ruled differently.” Commonwealth v. Taitano, 

 ¶ 44 (quoting
  Markoff v. Lizama, 

 ¶ 8) (internal quotation marks omitted). We will
  not find clear error where a “rational and substantial legal argument can be made
  in support of the questioned ruling even though on normal appeal a reviewing
  court may find reversible error.” In re Buckingham, 

 ¶ 10 (internal
  quotation marks omitted). Thus, our rule is “if after reviewing all the evidence
  . . . we are left with a definite and firm conviction that a mistake was made,” we
  will find clear error. Taitano, 

 ¶ 44 (quoting In re Estate of Malite,
  

 ¶ 7).
¶ 12     We ask first whether the law supports the court’s reasons for denying the
  motion for disqualification. If the reasons do not justify the ruling, we will then
  determine if a rational and substantial legal argument can be made in support of
  the ruling.
        i. The Reasons for Denying the Motion to Disqualify Are Improper.
¶ 13    The court supplied three overarching rationales for denying Petitioner’s
  motion: (1) that Petitioner’s “blanket” motion to disqualify all Superior Court
                             In re Abraczinskas, 

 Judges is overbroad; (2) that granting Petitioner’s motion would negatively
 impact future administrative concerns; and (3) that Petitioner fails to analyze why
 the assigned should be recused under 3308(a) and 3308(b). See Super. Ct.
 Answer. We consider each rationale in turn.
                              1. The Motion Is Overbroad.
¶ 14      The court reasons that the “blanket” motion to recuse is overbroad under
  3308(a) because Petitioner did not analyze the specific grounds for recusal “as to
  each of the judges.” Id. at 4. We agree that the motion is overbroad, but not due
  to a failure to analyze specific grounds for disqualifying each judge. Whether the
  motion was made under 3308(a) or 3308(b) is an important distinction. Tudela v.
  Superior Court, 

 ¶ 14. A 3308(b)(1) motion asserts that a judge has an
  actual bias or prejudice. In such circumstances, a separate judge must decide on
  whether the assigned judge must be disqualified. NMI CODE JUD. COND., Canon
  3(D)(c). By contrast, a 3308(a) motion only alleges the appearance of
  impropriety, so a judge may rule on his or her own disqualification. Tudela, 

 ¶ 15. The plain language of 3308(a) requires that judges decide on their
  own recusal, stating “[a] . . . judge of the Commonwealth shall disqualify himself
  or herself.” 1 CMC § 3308(a). A 3308(a) motion that requests a single judge to
  order the disqualification of all Superior Court judges is overbroad, and cannot
  be granted even if the movant has provided specific grounds for disqualification
  of each judge.
¶ 15    The motion’s overbreadth is not fatal, however, because the motion was
  procedurally sufficient as to the assigned judge. Under 1 CMC § 3309(b), which
  governs the procedure for parties moving to disqualify, “[w]henever a party . . .
  believes that there are grounds for disqualification of the . . . judge . . . , that party
  may move for disqualification of the judge . . . stating specifically the grounds
  for such disqualification.” Id. Here, the motion, though overbroad, included a
  request to disqualify the assigned judge and stated the grounds—appearance of
  impropriety due to Petitioner’s and the alleged victim’s respective statuses as
  employees of the Superior Court. Petition at 1–2. Because we do not strictly
  construe a motion against recusal, the overbreadth of the request alone could not
  form a basis for denying the motion. Saipan Lau Lau Dev., Inc. v. Super. Ct. (San
  Nicolas), 

 ¶ 5.
         2. Denying the Motion on the Basis of Administrative Concerns and
               Implications for Future Legal Challenges Was Improper.
¶ 16     The court also raises the concern that granting Petitioner’s motion would
  set the “untenable precedent” of requiring the disqualification of all Superior
  Court judges any time a long-term employee of the Judiciary is a witness or a
  party to the case. Super. Ct. Answer at 4. The court reasons that “if every case
  requiring witness testimony from a ‘long-time’ employee of the Judiciary would
  result in recusal of all five Superior Court judges, the [Judiciary] would rapidly
  exhaust its goodwill with its counterpart in Guam.” 

 at 4–5. The concern is that
  to grant this motion would force overreliance on judges pro tempore. 

                            In re Abraczinskas, 

¶ 17     Preserving the relationship of mutual goodwill and respect with other
  jurisdictions and avoiding overreliance on judges pro tempore are important and
  significant interests. However, our precedent firmly establishes that such
  considerations are not appropriate when deciding on a motion under 3308(a).
  Caja, 

 ¶ 25 n.4. “Each case must be considered individually,” and “the
  facts of each instance must be considered on a case by case basis, without looking
  to administrative concerns or future legal challenges.” 

 Such concerns, though
  understandable, run afoul of the rule requiring the court to analyze the motion to
  disqualify “in terms of the facts for that specific request, rather than as part of a
  greater scheme.” 

¶ 18     Though concerns about the future administrative and legal implications of
  a 3308(a) motion are immaterial, we add that our decision does not disregard the
  Superior Court’s concern that to grant Petitioner’s motion will set the standard
  that every judge of the Superior Court must self-disqualify any time a long-time
  employee of the judiciary may be implicated in a case before the court. Super.
  Ct. Answer at 4–5. Our decision today sets no such standard. Rather, we reaffirm
  the standard in Caja that every motion for disqualification must be considered by
  the judge on a case-by-case basis. The circumstances of this case are both unique
  and extreme. We do not hold that a judge must recuse any time a judicial
  employee, or even a long-time judicial employee, is involved in a case before the
  Superior Court. Rather, judges considering future motions for disqualification
  should continue to carefully weigh the various unique factors of each case when
  determining whether avoidance of the appearance of impropriety requires
  disqualification under 3308(a).
         3. Petitioner Did Not Fail to Analyze Why the Court Should Recuse.
¶ 19     Finally, the court reasons that Petitioner failed to analyze why the assigned
  judge should recuse. Super. Ct. Answer at 6. Under 3308(a), we ask whether “a
  reasonable person with knowledge of all of the facts would conclude that the
  judge’s impartiality might be questioned.” Bank of Saipan, 

 ¶ 29.
  This analysis is objective: it is intended “to prevent justice-shopping and to
  ensure that a [judge] does not, at the mere sound of controversy, abdicate his duty
  to preside over cases assigned to him, including the most difficult cases.” 

  (internal quotation marks omitted). Discerning how a reasonable person with
  knowledge of all of the facts would view a particular judge’s ability to remain
  impartial requires a careful analysis of the specific context giving rise to the
  motion for disqualification. See Caja, 

 ¶ 25 n.4.
¶ 20     Here, the Superior Court did not conduct a careful analysis of the grounds
  for disqualification. Instead, the court imposed a new procedural requirement
  under 3308(a). Specifically, the court seems to have required that Petitioner
  conduct a “diligent review of all the facts” before filing a motion for
  disqualification.2 See Super. Ct. Answer at 6. Such a requirement conflicts with

2
    This language the court quotes finds its source in two prior Superior Court orders
    analyzing 3308(a): Commonwealth v. Mundo, Crim. No. 04–0283 (NMI Super. Ct. Dec
    28, 2004) (Order Denying Recusal) and Commonwealth v. Ogumoro, Crim. No.13–
                             In re Abraczinskas, 

 our holding that there are no strict procedural requirements for motions made
 under 3308(a). Saipan Lau Lau Dev., 

 ¶ 5.
¶ 21      The court also incorrectly analyzed the motion under 1 CMC § 3308(b).
  Super. Ct. Answer at 7. Section 3308(b) addresses actual lack of impartiality,
  whether because of bias, prejudice or some impermissibly close relationship of
  the judge to an involved individual. See 1 CMC § 3308(b). Here, no specific
  relationship or bias pertaining to the assigned judge forms the basis for
  Petitioner’s motion. Petitioner moved under 3308(a), which requires a different
  analysis than 3308(b). The court’s finding that the motion was not valid because
  it failed to provide reasons specific to the assigned judge misses the mark under
  3308(a) because “there is no bright line rule stating when circumstances are such
  as to necessitate recusal.” Caja, 

 ¶ 25 n.4. Instead, we require every
  judge ruling on a motion for their disqualification to analyze that specific request,
  without consideration of any greater scheme. 

 Nothing in 1 CMC §§ 3308 or
  3309 forbids a party from making an appearance of impropriety argument that
  could be applicable to every member of the Superior Court. Such an argument,
  though a troubling and complex proposition, would form a legitimate basis for
  recusal if the facts of the case supported as much.
                    ii. The Court Should Have Disqualified Itself.
¶ 22     We will not find clear error in satisfaction of Tenorio factor three simply
  because a judge has based a disposition of a 3308(a) motion on improper or
  incorrect considerations. Our standard for clear error is not whether the court’s
  stated reasoning was erroneous, but whether a “rational and substantial legal
  argument can be made in support of the questioned ruling even though on normal
  appeal a reviewing court may find reversible error.” In re Buckingham, 

 ¶ 10. Similarly, though the burden lies with the petitioner to provide the
  reasons for why the court should be disqualified, see Santos v. Santos, 3 NMI 39,
  56 (1992), we will determine whether disqualification should have happened
  based on the factual record in its entirety. See Caja, 

 ¶ 25 n.4.
  Ultimately, our test for clear error is if “after reviewing all the evidence we are


   0073 (NMI Super. Ct. Oct. 9, 2014) (Order Denying Def.’s Mot. to Disqualify). In both
   cases, the court denied 3308(a) motions, cautioning defendants not to file such motions
   in bad faith. Noting that 3308(a) motions are a “direct attack on . . . the impartiality of
   trial courts,” that “impact[] unfavorably upon the public’s perception of the
   administration of justice,” the courts exhorted defendants to conduct a “diligent review
   of the facts” and refrain from filing motions under 3308(a) absent a “sincere belief that
   the motion is based on solid and meritorious grounds.” Crim. No.13–0073 at 5; Crim.
   No. 04–0283 at 2. The thrust of these remarks was aimed toward safeguarding public
   trust in the courts, ensuring that motions to disqualify are not made in bad faith.
   Moreover, the court denied the respective motions to disqualify on other bases, never
   grounding its denial simply on a party’s failure to move in good faith. See Crim. No.
   04–0283; Crim. No.13–0073. The language the court cites deals with the issue of bad
   faith. The court here has made no finding of bad faith, nor does it appear to us that
   Petitioner’s motion was made in bad faith.
                             In re Abraczinskas, 

    left with a definite and firm conviction that a mistake was made.” Taitano, 

 ¶ 44.
¶ 23     The objective standard a judge must apply to a 3308(a) motion is whether
  “a reasonable person with knowledge of all of the facts would conclude that the
  judge’s impartiality might be questioned.” Bank of Saipan, 

 ¶ 29. The
  California Supreme Court, elaborating on the same standard, described it thus:
          [I]f a reasonable mind (not the mind of a particular lawyer or party)
          would conclude that there is an objective doubt that the judge would
          be able to remain impartial regardless of the judge's professional
          efforts to put aside his or her bias, then the judge should disqualify
          himself or herself.
          Extrajudicial Involvement in Marijuana Enterprises, 

    This standard resists hard line rules, as each case under which disqualification is
    sought is likely unique. Add to this our requirement that a judge consider
    disqualification without consideration for the potential future implications of
    such disqualification, Caja, 

 ¶ 25 n.4, and our standard becomes clear:
    we will only find clear error if after reviewing the circumstances of the instant
    case—and only the instant case—we are left with a definite and firm conviction
    that a reasonable person with knowledge of all of the facts would doubt the
    court’s ability to remain impartial.
¶ 24    The circumstances giving rise to Petitioner’s motion are uncommon.
  Though this is not the first motion for disqualification involving Judiciary
  employees, see, for example, Santos, 3 NMI 39 (1992), this is the first case we
  have seen where both the accused and the alleged victim were not only Judiciary
  employees, but employees who worked in chambers at the Superior Court.3 The
  uniqueness of these circumstances likely explains the uniqueness of Petitioner’s
  motion to disqualify the judge purely because he is a Superior Court judge.
¶ 25      To answer the question of whether a reasonable person with knowledge of
  all the facts would conclude that the judge’s impartiality might be questioned, it
  is essential to identify the important facts. We have identified five factors that
  other courts have weighed when judicial employees are involved, or motions
  alleging a general appearance of impropriety for the entire bench. These factors
  include:
          1. The number of judiciary employees involved;
          2. Whether the assigned judge has actually met or knows the
             employees;

3
     We use the term “in chambers” to describe the nature of Petitioner’s and the alleged
     victim’s employment. Both were directly supervised by a judge of the Superior Court.
     Though the physical layout of the Superior Court may not find both of these employees
     officed in the actual judge’s chambers, the day-to-day responsibilities for both
     employees’ positions are related to the in-chambers work of a judge.
                           In re Abraczinskas, 

        3. Whether the employees are expected to be called to testify in the
           case;
        4. The institutional and spatial proximity that the judiciary
           employees have to the assigned judge; and
        5. Whether the movant has demonstrated a sincere belief that the
           assigned judge’s continued presence over the case creates the
           appearance of impropriety.
 This list is neither exhaustive nor exclusive; rather, it is the result of careful
 consideration of the specific facts of this case.
    1. Petitioner and the Alleged Victim Each Individually Constitute Avenues by
        Which a Reasonable Person Could Question the Court’s Impartiality.
¶ 26     The appearance of impropriety can be the result of a combination of
  factors, rather than a single factor. The presence of multiple potential means by
  which impartiality may be questioned, when taken together, can create the
  appearance of impropriety where one factor alone would have been insufficient.
  The Ohio Supreme Court held as much in In re Nugent, 

, 927
  (Ohio 1987), where a defendant sought disqualification of every judge of a court
  when the victim was the nephew of a judge of the court, the victim’s mother was
  an employee of the court, and the victim’s father was a former employee of the
  prosecutor’s office. 

 While the Ohio Supreme Court held that no single factor
  would necessarily compel disqualification, the combination of the factors led “to
  but one conclusion.” 

 We have held in previous cases that a Judiciary employee
  having a stake in the case does not automatically require a judge’s recusal. See,
  e.g., Santos, 3 NMI at 56. By contrast, here, the fact that both the Petitioner and
  the alleged victim are Superior Court employees creates two means by which a
  reasonable person could conclude that the judge’s impartiality might be
  questioned. In effect, the total is greater than the sum of its parts: the fact that
  both were Superior Court employees at the operative time weighs toward leaving
  this Court with the definite and firm conviction that a reasonable person would
  question the court’s ability to remain impartial.
         2. Petitioner and the Alleged Victim Are Not Strangers to the Judge.
¶ 27     Whether a judge has actually met the individuals in the case, though
  perhaps basic at first glance, is an important consideration. We have no reason to
  question the statement that the judge has no meaningful personal or professional
  relationship with the individuals involved. Super. Ct. Answer at 7. Indeed, we
  presume that a judge is able to follow the law and remain unbiased. See Office of
  the Att’y Gen. v. Super. Ct., 

, ¶¶ 16–17; In re Russo, 

 (Ohio 2009). The appearance of impropriety is much lower in a case where
  a judge has never met the individual whose ties to the court form the basis for
  disqualification. The Supreme Court of Delaware found similarly when it held
  that disqualification was not warranted in a case where the alleged victim’s
  mother was a court employee, but the trial judge had never actually met her.
  Hearne v. State, 

, 

, *6. This factor is rooted in
  logic. A judiciary, or even a court, can be a very large institution with hundreds
                            In re Abraczinskas, 

 of employees. The mere fact that a judge and another individual are both
 employees of the same judiciary does not, in itself, create the appearance of
 impropriety if the two can be said to have never met.
¶ 28     If it could be said that the judge had never met Petitioner or the alleged
  victim, the risk of the appearance of impropriety would be low. It is, however,
  likely that the judge has met or crossed paths with either Petitioner, who was
  employed as a law clerk for a fellow judge, or the alleged victim, a long-time
  employee of the Superior Court, if not both. See Super. Ct. Answer at 7, Ex. 2 at
  2. Despite there being no significant relationship with either employee, the fact
  that they cannot be said to be strangers to the judge would contribute to leading
  a reasonable person to question his ability to remain impartial.
        3. Both Petitioner and the Alleged Victim Can Be Expected to Testify.
¶ 29     A third consideration is whether the individual in question is anticipated
  to testify in the case, and the relative weight of such testimony. A trial judge’s
  duties include assessing witnesses’ credibility and competence. In Hearne, the
  Delaware Supreme Court reasoned that disqualification was unnecessary in part
  because the judiciary employee with ties to the case was not expected to be called
  as a fact witness by either party. 

, 

, *8. By
  contrast, in In re O’Neill, the Ohio Supreme Court found the fact that both a
  senior administrator and a judge from the same court would be called as fact
  witnesses in a case to require recusal of all judges of that court and reassignment
  to a judge in another court. 

, 517 (Ohio 1997). The court in
  O’Neill focused on the fact that the judge on the case would be required to make
  “assessment[s] of the [employees’] testimony and perhaps [their] involvement in
  the investigation.” 

¶ 30     Here, unlike Hearne, both Petitioner and the alleged victim will almost
  certainly testify. The Complaint and Affidavit of Probable Cause in Support of
  the Issuance of an Arrest Warrant details an alleged crime occurring with no other
  witnesses present besides Petitioner and the alleged victim. See Super. Ct.
  Answer Ex. 2 at 3–4. While we cannot say what evidence the Commonwealth or
  the defense intend to bring at trial, as key witnesses, we cannot discount the
  likelihood that the defendant and alleged victim will testify. A judge’s duties
  include managing the case, determining the admissibility of evidence, and
  assessing the credibility of witness testimony. The key witnesses’ close ties to the
  Superior Court weigh in favor of finding that a reasonable person would question
  the judge’s ability to remain impartial.
    4. Petitioner and the Alleged Victim Are Superior Court Employees, and the
           Alleged Victim Works in Close Proximity to the Judge’s Office.
¶ 31    Other courts have considered and weighed the spatial and institutional
  proximity of judicial employees to the judge when a judicial employee is
  connected to a case before the court. In State v. Sheldon, the fact that an individual
  with ties to a case was a judicial employee did not weigh in favor of
  disqualification because, even though the employee worked in the same
  courthouse as the judge, they were employed in a different division on a different
                           In re Abraczinskas, 

 floor—providing sufficient institutional and proximal distance as to avoid the
 appearance of impropriety. 

 (Ohio 2017).
¶ 32     The NMI Judiciary is comprised of separate offices and divisions, and has
  locations in Saipan, Tinian, and Rota. Many judicial employees work in offices
  sufficiently separate and distinct from the Superior Court chambers that the
  appearance of impropriety, should they become involved in a case before the
  Superior Court, would be considered low. Here, Petitioner and the alleged victim
  are employed in chambers at the Superior Court. That the judge has no significant
  relationship with either individual does not change the close institutional and
  spatial proximity between the judge and the involved employees.
¶ 33     Moreover, the alleged victim and the judge can reasonably be expected to
  cross paths while the matter is pending. In Nugent, a factor that weighed in favor
  of recusal was that the victim’s parents and uncle, all court employees, were
  anticipated to come into contact with the judge while the case was pending. 546
  N.E.2d at 927. In Hearne, disqualification was disfavored because the judicial
  employee was not expected to come into contact with the judge in the case. 

, 

, *8. Here, we cannot be certain that the judge
  will not cross paths with the alleged victim. While we have full faith that the
  judge would not participate in any ex parte communications with the alleged
  victim, the purpose of 3308(a) is to avoid the appearance of impropriety to a
  reasonable person with knowledge of all the facts. Bank of Saipan, 

  ¶ 29. We cannot set aside the effect that knowledge of possible contact between
  the complaining witness and the judge would have on a reasonable person’s
  conclusions about the impartiality of the court.
        6. Petitioner has Demonstrated a Sincere Belief that Disqualification
                    Is Necessary to Avoid the Appearance of Impropriety.
¶ 34     A final factor which could affect a reasonable person’s belief in the court’s
  impartiality is whether the party moving for disqualification has demonstrated a
  sincere belief that the judge’s continued presence over the case creates the
  appearance of impropriety. See, e.g., Saipan Lau Lau Dev., 

 ¶ 3
  (requiring motions for disqualification under 3308(b) alleging actual bias or
  prejudice to be filed in conjunction certificate of good faith by the movant’s
  attorney). Public confidence in the court’s ability to remain impartial is tied to
  the parties’ demonstrated confidence, or lack thereof, in the court’s impartiality.
  As such, when a party alleges an actual bias or prejudice, we require that the
  moving party aver to the sincerity of their belief. Id; NMI CODE JUD. COND.,
  Canon 3(D)(c). Even when procedure does not require the moving party to swear
  to the sincerity of its belief, the question of sincerity nevertheless affects a
  reasonable person’s perception of the court’s impartiality.
¶ 35    Our objective test asks about the perception of a reasonable person with
  knowledge of all the facts, and one relevant fact is whether the moving party has
  demonstrated consistency in requesting disqualification. In Russo, the Ohio
  Supreme Court based its denial in significant part on the four-month delay that
  occurred between the assignment of the judge and the party’s motion for
                            In re Abraczinskas, 

 disqualification. 

. The Russo court reasoned that such a
 delay while the judge continued to preside over the case and make rulings
 constituted a tacit acknowledgment by the moving party that no appearance of
 impropriety existed. 

¶ 36    By contrast, Petitioner moved for disqualification on the same day that the
  case was reassigned. Compare Super. Ct. Answer Ex. 11 at 4 with Super. Ct.
  Answer Ex. 16. This demonstrated Petitioner’s sincere belief that the assigned
  judge cannot maintain an appearance of impartiality in his case. This factor, in
  combination with the other factors, supra at ¶ 26, would tend to lead a reasonable
  person to question the court’s impartiality.
¶ 37      Though we begin with high deference for the Superior Court, Liu, 

 ¶ 17, we will find clear error when, after reviewing all the evidence, we are
  left with the definite and firm conviction that the court made a mistake. Taitano,
  

 ¶ 44. Petitioner’s argument compels us to conclude that Judge
  Camacho’s continued presence over this case creates the appearance of
  impropriety when the defendant and the alleged victim have both worked, or
  continue to work, in relatively close proximity to the judge. Particularly
  compelling is that the implicated employees are key witnesses and, rather than
  being mere Judiciary employees, have worked or continue to work in-chambers
  at the Superior Court. The judge would eventually be assessing the credibility or
  the admissibility of their testimony. In light of these facts, we find that no rational
  and substantial legal argument can be made in support of the court’s denial of the
  3308(a) motion. No single fact here would, by itself, necessarily require
  disqualification, but the combination of all the factors we have considered leaves
  us with the definite and firm conviction that a reasonable person with knowledge
  of all the facts would conclude that the judge’s impartiality could be questioned.
  Having reviewed all the evidence and weighed it in light of the factors identified,
  we find the court committed clear error in denying Petitioner’s motion.
¶ 38    Having found clear error, we will not automatically grant mandamus
  unless the weight of the Tenorio factors favors mandamus. See, e.g., In re
  Babauta, 

 ¶ 19. We consider the remaining Tenorio factors in turn.
    C. Petitioner Has No Other Adequate Means to Attain the Relief Desired and
        Will Be Damaged or Prejudiced in a Way Not Correctable on Appeal.
¶ 39     The Commonwealth contends that factor one weighs against mandamus
  because Petitioner, if convicted, may appeal the denial of his motion on direct
  appeal after trial. Commonwealth Resp. Br. at 5–6. Both direct appeal and
  mandamus are appropriate avenues for contesting the denial of 3308(a) motions.
  Tudela, 

 ¶¶ 8–9. However, whether direct appeal is an adequate means
  for challenging the denial requires consideration of the harm that Petitioner may
  experience if required to wait until direct appeal is available. Id. at ¶ 9. For this
  reason, we often consider Tenorio factors one and two in conjunction with one
  another. Id.
                              In re Abraczinskas, 

¶ 40     Among the harms he enumerates, Petitioner argues that to require a trial
  and conviction before allowing him to appeal the denial of his 3308(a) motion
  would lead to him to being incarcerated awaiting appeal. Appellant’s Reply Br.
  at 1–2. Imprisonment is the type of harm that weighs in favor of Tenorio factors
  one and two. Tudela, 

 ¶ 9. Accordingly, we find that factors one and
  two favor mandamus.
                          D. The Error Is Not Oft-Repeated.
¶ 41     Under factor four, we weigh whether the “lower court's order is an oft-
  repeated error, or manifests a persistent disregard of applicable rules.” Tenorio,
  1 NMI 1 at 10. The Commonwealth claims Tenorio factor four weighs in favor
  of mandamus. Commonwealth Resp. Br. at 7. It takes a broad view of factor four,
  asserting that our recent decision in In re Commonwealth v. Super. Ct., 

 (“In re Commonwealth (2023)”), stands for the proposition that the lower court
  “has a history of disregarding law in criminal cases (especially sex crime cases).”
  Commonwealth Resp. Br. at 7.4 Since the Commonwealth has raised the issue,
  we take the opportunity to clarify the scope of factor four.
¶ 42     We have held that a single instance of an alleged error does not reach the
  level of frequency to be “oft-repeated error”. In re Babauta, 

 ¶ 17. The
  alleged oft-repeated error must be the same error; an allegation of error will not
  succeed simply by alluding to a general area of law where the judge has
  ostensibly failed. Instead, we require a party to identify prior instances of the
  “same legal error.” In re Commonwealth, 

 ¶ 21; see In re Cushnie,
  

 ¶ 11 (finding Tenorio factor four weighs against mandamus when no
  previous petition for mandamus had been made regarding the same issue). Factor
  four is purely retrospective, looking at actual past errors and rejecting speculative
  arguments that mandamus will prevent future repetition of error. NMI
  Scholarship Bd. v. Super. Ct., 

 ¶ 8.
¶ 43   We have recognized repeatedly that Tenorio factors four and five form
  “opposite sides of the same coin and are rarely if ever present together.” In re
  Commonwealth, 

 ¶ 20 (quoting Liu, 

 ¶ 20). This

4
    The Commonwealth must strive for accuracy and precision when arguing in favor of
    factor four. We have previously remarked that:
         [I]n our island community . . . a criticism of one judge is automatically
         reflected on all the other judges of this Commonwealth. Because judges
         are restrained by tradition and the judicial canons from responding to
         criticisms leveled against them or their decisions, sustained and inaccurate
         criticism would not only erode public trust and confidence in the judges
         but also in the Commonwealth Judiciary itself.
         Office of the AG v. Super. Ct., 

 ¶ 17.
    Though, from time to time, the lower court will inevitably commit error, it is inaccurate
    to say that any judge historically disregards the law in criminal cases. Mandamus is an
    extraordinary form of relief, and any mandamus inquiry begins (and frequently ends)
    with “high deference” for the Superior Court. Xiao Ru Liu, 

 ¶ 17.
                           In re Abraczinskas, 

 presumptive dichotomy is only logical, since it would be a unique circumstance
 for a Superior Court order to represent both an “oft-repeated error” and also
 “raise[] new and important problems, or issues of law of first impression.” 

 For this reason, we frequently merge the two factors in our analysis, asking as
 part of our mandamus inquiry whether a Superior Court decision is an oft-
 repeated error or raises new issues of law. See, e.g., Commonwealth v. Super. Ct.,
 

 ¶ 28; NMHC v. Techur, 

 ¶ 15.
¶ 44      The purpose of factor four is not to afford parties a pathway to mandamus
  by merely alluding to previous errors. Instead, factor four exists as an analytical
  framework for this Court to determine whether past decisions indicate a pattern
  of some specific incorrect application of the law or disregard for the rules
  sufficiently severe as to justify our intervention. Given the extraordinary nature
  of such an intervention, the evidentiary burden of proving factor four falls on the
  party alleging an oft-repeated error or persistent disregard for the rules. In re
  Babauta, 

 ¶ 17. The claim that the Superior Court’s error is oft-
  repeated seemingly sidesteps this evidentiary burden by incorporating by
  reference our recent decision in In re Commonwealth (2023).
¶ 45      At issue in In re Commonwealth (2023) was a dismissal of a sexual assault
  charge at a preliminary hearing for lack of probable cause. 

 ¶ 6. There,
  we determined the dismissal for lack of probable cause was clearly erroneous
  because the court applied the incorrect standard for analyzing evidence,
  “elevat[ing] the burden of proof” beyond determining whether the prosecution
  had presented “believable evidence of all the elements of the crime charged.” 

  at ¶¶ 23–24 (internal quotation marks omitted). As we have stated, the question
  of clear error is dispositive, and therefore a threshold issue. In re Commonwealth,
  

 ¶ 8. Upon determining that the court clearly erred, we then considered
  the remaining Tenorio factors to determine if circumstances warranted
  mandamus. We decided in favor of mandamus on factors one and two because
  the Commonwealth had no other means of obtaining relief and would be
  damaged in a way not correctable on appeal. In re Commonwealth (2023), 

 ¶¶ 24–30. Finally, we analyzed the court’s error under factors four and five,
  asking whether the error was oft-repeated and whether it raised important issues
  of law. 

 at ¶¶ 31–32. Under factor five, we found that while this Court had
  “issued rulings detailing the proper scope and focus of preliminary hearings,” we
  had not yet addressed the probable cause standard and how courts evaluate
  prosecutions when the facts are disputed, as well as “the extent to which the trial
  court at a preliminary hearing can weigh evidence and evaluate witness
  credibility.” Id. at ¶ 32. We determined that the court’s order raised an issue of
  first impression and favored granting mandamus.
¶ 46      Additionally, we discussed factor four. We found that, while there were no
  previous instances of the same legal error, issues at preliminary hearings for
  sexual assault related to evidence and burdens of production were providing
  fertile ground for many petitions and even some grants of mandamus by this
  Court. See id. at ¶ 31. Since the lower court’s order in In re Commonwealth
                              In re Abraczinskas, 

    (2023) presented an issue of first impression in an area of law that had been the
    source of much contention, we determined, in light of the other three Tenorio
    factors, that mandamus was warranted. Id. at ¶ 33.
¶ 47     In re Commonwealth (2023) does not change the standard for Tenorio
  factor four. Our standard remains that for factor four to favor mandamus, the
  erroneous decision must be a repetition of the same legal error made on at least
  more than one other occasion. In re Commonwealth, 

 ¶ 21; In re
  Babauta, 

 ¶ 17. The error in In re Commonwealth (2023) was not the
  same legal error, so on its own factor four did not favor mandamus. Factor four
  in that case should not be considered in isolation; rather, the analysis is properly
  understood in conjunction with the analysis of factor five, since the two factors
  form “opposite sides of the same coin.” Liu, 

 ¶ 20. In re
  Commonwealth (2023) holds that factor five—and factor four by nature of the
  indelible relationship between the two factors—weighs in favor of mandamus
  because the error presented a new and important issue of law in a complex area
  of law that has generally proved difficult for the lower court to navigate without
  erring.
¶ 48     Given that In re Commonwealth (2023) did not set a new standard, the
  argument that factor four favors mandamus in the present case can only be correct
  if the error in this case is the same legal error we identified in the recent case.
  The previous error dealt with a case dismissal at a preliminary hearing on the
  basis of an improper weighing of the evidence in a probable cause analysis. Here,
  the error is a failure to disqualify to avoid the appearance of impropriety—an
  issue which is always unique and fact-driven. The issue of judge disqualification
  is one that will always require a context-based determination, and is unlikely to
  form the basis for the sort of oft-repeated error that factor four exists to address.
  We find that factor four does not weigh in favor of granting mandamus.
               E. The Order Raises New and Important Problems and
                          Issues of Law of First Impression.
¶ 49     This is a case of first impression. Neither party has cited, nor have we
  found in our jurisprudence, any past decision where we have been asked to decide
  on the appropriate standard for motions for disqualification when the motion
  alleges a general question about the impartiality of the Superior Court as a
  whole.5 We find the fifth factor weighs in favor of mandamus.
                                  IV. CONCLUSION
¶ 50     The balance of the Tenorio factors weighs in favor of granting mandamus.
  The Superior Court committed clear error by failing to grant Petitioner’s motion
  for disqualification under 3308(a). Petitioner has no adequate means of obtaining
  the desired relief because he risks damage or prejudice in a way not correctable
  on appeal. While the error is not one that is oft-repeated or manifests a persistent

5
     The fact that this case raises new and important problems likely sheds some light on
     the Superior Court’s concerns about the administrative implications of disqualification
     in this case.
                            In re Abraczinskas, 

 disregard for the rules, it does raise new and important problems and issues of
 first impression. For the foregoing reasons, Abraczinskas’ Petition for Writ of
 Mandamus is GRANTED, and the Superior Court’s Order denying the Motion for
 Disqualification is VACATED. The Superior Court shall reassign Abraczinskas’
 case to another judge.
                 SO ORDERED this 14th day of December, 2023.



 /s/
JOHN A. MANGLOÑA
Associate Justice


/s/
PERRY B. INOS
Associate Justice




CASTRO, C.J., concurring:
¶ 51     I concur with the majority’s holding that the balancing of the Tenorio
  factors weighs in favor of granting the writ of mandamus but write separately to
  underscore that the majority’s reasoning applies to the remaining Superior Court
  judges who have not recused themselves from this case.
¶ 52     In analyzing the threshold question of whether the lower court committed
  clear error, the majority applied a five-factor analysis. In essence, the majority
  found that Judge Camacho’s continued involvement over this case gives rise to
  the appearance of impropriety due to several critical factors: the close
  professional proximity of both the Petitioner and the alleged victim to Judge
  Camacho; the two implicated employees are key witnesses to the case; the
  employees in question have worked or continue to work in chambers; and Judge
  Camacho will be responsible for assessing the credibility or the admissibility of
  the Petitioner and the alleged victim’s testimony. It is important to underscore
  that disqualification decisions require a case-by-case analysis, initiated either by
  the judge’s own discretion or by a motion from one of the involved parties. See
  Commonwealth v. Caja, 

 ¶ 25 n.4; 1 CMC § 3309. However, the
  majority’s rationale carries broader implications. The factors considered in this
  case inevitably lead to the conclusion that the appearance of impropriety extends
  beyond the judge assigned to this case and applies to the impartiality of all current
  sitting Superior Court judges.
                              In re Abraczinskas, 

/s/
ALEXANDRO C. CASTRO
Chief Justice


                                         COUNSEL

Douglas Hartig, Public Defender, Saipan, MP, for Petitioner.



Edward Manibusan, Attorney General, Saipan, MP; J. Robert Glass Jr. Solicitor General,
Saipan, MP, for Respondent.

                                           NOTICE


This slip opinion has not been certified by the Clerk of the Supreme Court for publication
in the permanent law reports. Until certified, it is subject to revision or withdrawal. In the
event of any discrepancies between this slip opinion and the opinion certified for
publication, the certified opinion controls. Readers are requested to bring errors to the
attention of the Clerk of the Supreme Court, P.O. Box 502165 Saipan, MP 96950, phone
(670) 236–9715, fax (670) 236–9702, e–mail Supreme.Court@NMIJudiciary.gov.