Therefore, the subject matter
of the complaint is the procedure whereby the Speaker/Clerk disallowed
plaintiffs' votes
on a motion to file the Bill due to a conflict of
interest, and validity of the certification of the Bill given by the Speaker
pursuant to Article IV, Section 21 of the Constitution.
The Court now considers the
questionhether it has subject matter jurisdiction to hear these twoe two
matters. Article
IV, Section 16 (3) of the Constitution provides in relevant
part:
Neither the Speaker nor any
officer of the Nitijela in whom powers ested for the regulation ofon of
procedure or the conduct
of business or the maintenance of order shall, in
relation to the exercise of any of those powers, be subject to the
jurisdiction of any court; but this shall not be taken to preclude the
exercise of judicial power under Section 7 of Article
II or judicial review,
in an action against the Clerk of the Nitijela as nominal defendant,
pursuant to Section 9 of
this Article.
This Article expressly recognizes that there are some circumstances in which the Courts should be
able to e to supervise the
internal proceedings of the Nitijela and other matters
which might otherwise have been regarded as under its exclusive control.
However, none of these circumstances arises in the present case.
The judicial power under
Article II, Section 7 is expressly rved. This is the provisionision of the
Bill of Rights guaranteeing
the availability of the writ of habeas corpus
for the benefit of any person held in custody. The courts are therefore
entitled to question the validity of any purported sentence of imprisonment
for contempt of the Nitijela. Under Article IV,
section 15 (12), such a
sentence may be imposed only on a person who is not a member of the Nitijela,
under an Act defining
offenses relating to contempt of the legislature and
making provision for their trial and punishment by the High Court.
The immunity of the Speaker and
offiof the Nitijela from the jurisdiction of the courts in rela relation to
the exercise
of their powers does not preclude judicial review in an action
against the Clerk of the Nitijela as nominal defendant, pursuant
to Article
IV, Section 9. That section reads as follows:
Any question that arises
concerning the right of any person to voten election of a member or
or
members of the Nitijela,
or to be or to remain a member of the Nitijela, or
to exercise the rights of a member, or concerning the conduct of any person
in relation to any election of a member or members of the Nitijela, shall be
referred to and determined by the High Court.
The reference in Article IV,
ection 9 to the jurisdiction of the High Court to determine the right of a
person &qun "to
exercise the rights of a member" of the Nitijela concerns the
question whether any member has been validly suspended,
under Article IV,
Section 15 (12) of the Constitution, for being in contempt of the Nitijela.
The suspension must be
imposed by resolution, must be for no longer than 10
sitting days, and must be authorized under the Rules of the Nitijela or
an
Act. It is for the High Court, not the Nitijela, to determine whether those
requirements have been met.
<
Therefonsofar as the
subject matter of the complaint is concerned with the exercise of the pthe power
of the Speaker to
regulate the procedure, conduct the business, or maintain
the order of the Nitijela, it is clear that Article IV, Section 16
(3) of
the Constitution specifically and explicitly prohibits the Speaker from
being subjected to the jurisdiction of
this Court in this case.
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Plaintiffs' complaint regarding
the validity of the certification by thendants that the Gaming Act Act was
lawfully and
constitutionally passed is specifically and explicitly
prohibited from being heard by this Court due to Article IV, Section
16 (1)
of the Constitution which provides in relevant part:
The validity of any proceeding
in the Nitijela...and the validity of anof any certificate duly given by the
Speaker under
Section ...21 of this Article....shall not be questioned in
any court; but this shall not be taken to preclude judicial review
of the
validity of any Act…of the Nitijela under this constitution.
The Court has jurisdiction hear matters in which the substantive terms of an Act are alleged to violate
cons constitutional
provisions. See Marbury v
Madison
[1803] USSC 16; (1 Cranch 137).
However, as the complaint does
not allege that there are any substantive, provisions of tt which may
violate tate the
Constitution, and insofar as the subject matter of the complaint
is concerned with validity of a proceeding in the Nitijela
which is the
defeat of the motion to file the Bill and the passage of the Gaming Act and
the validity of the certificate
duly given by the Speaker under Section 21
relative to the Gaming Act as passed in accordance with the Constitution and
Rules of the Nitijela, it is clear that Article IV, Section 16 (1) of the
Constitution specifically and explicitly prohibits
this matter from being
subjected to the jurisdiction of this Court in this case.
These constitutional
prohibitions are consistent with the enrolled bill doctrine which was
developed relative to the British
Parliament and is applied to acts of
Parliament, acts of Congress, and acts of the legislatures in several of the
states.
This doctrine holds that when an act of the legislature or
parliament has been properly enrolled or authenticated by the signatures
of
the proper officials affixed thereon, as the Speaker has done pursuant to
Article IV, Section 21, it is conclusively presumed by the courts to have
been properly passed. The doctrine precluded inquiring into the
legislative procedures preceding the enactment of a statute which is
properly
signed and fair upon its fact, as is the Gaming Act, and the
passage of the act can not be impeached by resort to the journals
of the
legislative body or to extrinsic evidence of any sort. See Marshall Field
& Co. v Clark, [1892] USSC 54; 143 US 649, 36 LEd 294, 132 Sct 495 (1892), at
676; Lyons v Woods,
[1894] USSC 170; 153 US 649 (1894);
Parkinson v Jones, 117 P 1057 (1911) at 1059; People v.
Camp, 183 P 845 (1919); Capitol Distributing Co. v Redwine, 57
SE2d 578 (1950) Beaufort County v Jasper County, 68 SE2d 421 (1951);
Schwarz v State, 531 P2d 1280 (1975) at 1282; Citizens Council
Against Crime v Biork, 529 P2d 1072 (1975), Footnote 1 at 1076;
Wilson v Ledbetter, 389, SE2d 771 (Ga.App. 1989); United States v
Munoz - Flores[1990] USSC 75; , 495 US 385, 110 SCt 1964, 109 LEd2d 384 (1990) at
406 - 407.
At issue in the 12 (b) (1)
motion is the trial court's jurisdiction, being whether or not the Court has
the power to hear
the case. There is substantial authority that the trial
court is free to hear evidence and rule on the jurisdictional issue
prior to
trial. No presumptive truthfulness attaches to plaintiffs' allegations, and
the plaintiffs have the burden of
proof in establishing that subject matter
jurisdiction does in fact exist. Furthermore, the existence of jurisdiction
must be tested as of the time the complaint was filed. Interdigital
Technologv Coro. v OKI America, Inc., 845 F.Supp 276 (E.D.Pa. 1994) at
281; Augustine v
United States[1983] USCA9 659; ,
704 F. 2d 1074 (1983) at 1077; Mortensen v First Federal Sav.And
Loan Ass'n, [1977] USCA3 121; 549 F2d 884 (3rd Cir. 1977) .
This Court has reviewed
ence in the form of affidavits from the plaintiffs and defendant Note.
The plaintiffstiffs, by
affidavit, state that all three of them voted in favor of
the motion to file the Bill, but their votes were disallowed. The
speaker,
by affidavit, states that he disallowed the votes of Imata Kabua and Philip
Muller and that Tony de Brum did
not vote. This disputed fact is immaterial
since any one vote would have been sufficient to pass the motion to file the
Bill. This Court thus finds no material disputed facts and further finds
that the plaintiffs have not met their burden of
proof in establishing that
subject matter jurisdiction does in fact exist. To the contrary, for the
reasons stated previously,
this Court finds that even if it assumes all of
the material factual allegations of plaintiffs' complaint to be true, the
defendants have proved by clear and convincing evidence that subject matter
jurisdiction does not exist in this case.
Thist is also justified in
dismissing this complaint under MIRCP 12 (b) (6) for failure ture to state a
claim upon which
relief may be granted. Even if all of the factual
allegations in the complaint are taken as true and viewed in the light most
favourable to plaintiffs, the complaint must be dismissed because the
plaintiffs' claims are not subject to relief from
the court due to the
specific and explicit constitutional prohibitions of the aforementioned
Article IV, Section 16(3),
and Article IV, Section 16(1) of the
Constitution, for the same reasons as discussed previously. Additionally,
plaintiffs
request that the Court issue a preliminary and permanent
injunction against the defendants, enjoining and restraining them
from
enforcing the Gaming Act. Clearly such relief can not be granted. This court
cannot enjoin and restrain defendants
from enforcing the Gaming Act as
defendants do not have any authority to enforce the Gaming Act. Article VII,
Section
3 of the Constitution provides that the Attorney General is
empowered with enforcing the laws, and the Attorney General has
not been
named as a party herein.
Because of the Court’s
dismissal of this matter as pusly described, there is no need for the
Court to furo further address
the issues raised by defendants concerning the
constitutional provision of legislative immunity and the political question
doctrine.
Plaintiffs believe that
nostanding the constitutional prohibitions on jurisdiction puon pursuant to
Article IV, Section
16(1) and (3), this Court has jurisdiction to hear this
matter because the Speaker violated the plaintiffs' constitutional
rights.
Plaintiffs' contentions are unpersuasive. It is instructive to subject these
claims to a brief analysis.
Plaintiffs claim that they w wrongfully, unlawfully and unconstitutionally denied their right to vote on
a qu a question
put to the Nitijela, and that their constituents were thereby
unconstitutionally denied representation in the Nitijela by their
elected
representatives. The right of every qualified person to participate in the
electoral process, whether as a voter
or as a candidate for office, is
directly protected by Article II, Section 14(2) of the Constitution, a
provision of
the Bill of Rights. There is no suggestion that this provision
has not been complied with. The Constitution contains no express
right of
citizens to be represented through the votes of their representatives in the
Nitijela.
Nevertheless, the argument
citizens have such a right is supported by Article 4, Section 15(4) of the
Co Constitution
which states: “Unless, pursuant to an Act or to the rules of
the Nitijela, a member is required to abstain from voting on any
matter in
which he has a personal interest, every member present when any question is
put to the Nitijela shall vote
thereon.” Subject to the exception concerning
conflicts of interest, this provision gives every member present when any
question is put to the Nitijela not merely the right, but the duty, to vote
on it.
On the other hand, the express
recognition pursuant to an Act or to the Rules of the Nitijela, a
member may be required
to abstain from voting on any matter in which he has
a personal interest reflect the right of the people of the Marshall Islands
to ethical government, declared in Article II, Section 16 of the
Constitution. To that extent, the duty, and underlying
right, of members of
the Nitijela to vote on matters before it and the implicit right of citizens
to be represented through
their participation in every vote, is
constitutionally qualified.
To implement the right of the
people of the Marshall Islands to ethiovernment, the Nitijela hasa has
enacted the Ethics
in Government Act (3 MIRCP 17). Section 1704(6) states:
p class="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
Public officials and Government
employees shall give due disclosure of any conflionflict of interest such
official or
employee has or may have in the performance of his or her duties
and recuse himself or herself of any involvement on the matter
in his or her
capacity as such an official or employee...
Plaintiffs do not claim that
any provision os Act has been infringed by the defendants.
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The only requirements on
members of the Nitijela to abstain from votingatters in which they have
ave
a personal interest
are those contained in the Ethics in Government Act and
Rule 29 of the Rules of Procedure of the Nitijela.
Article 4, Section 15(1) of the
Constitution provides:
Subject to this section and any
Act, the Nitijela may from time to tito time make rules for the regulation and
orderly
conduct of its proceedings and the despatch of its official
business.
Article 4,ion 15(2) of the
Constitution provides:
The Rules of, the Nitijela
l ensure that, in the conduct of its official business, the, there is an
opportunity for all
points of view represented in the Nitijela to be fairly
heard.
Although the plaintiffs claim
that the defendants acted in tion of Article 4, Section tion 15(2), that
provision is directed
to the content of the Rules, not the actions of
the Speaker and the Clerk of the Nitijela in applying them. There is no
suggestion that Rule 29 is
inconsistent with Article 4, Section 15(2). It is
hard to see how it could be in view of the provisions of Article 4, Section
15(4) referred to above. Nor is there any suggestion that Rule 29 is
inconsistent with any other provision of the Constitution
or with the Ethics
in Government Act or any other Act.
Plaintiffs also claim that the
defendants violated Article 4, on 15(3) of the Constitutiotution which reads
as follows:
Except where this Coution
otherwise provides, every question before the Nthe Nitijela shall be decided by a
majority of
the votes of the members present and voting at a meeting of the
Nitijela.
The introductory words of
exception foreshadow the provi of Article XII, Section 3 of the
Constitution which hich require
amendments to the Constitution to be approved on
the second and third readings by at least two-thirds of the total membership
of the Nitijela (unless they are amendments of a type required to be
approved by Constitutional Convention and Referendum
in accordance with
Article XII, Section 4). The reference to members “present and voting”
(emphasis added) excludes members required to abstain from voting under Rule
29, as expressly contemplated by Article
4, Section 15 (4). The question
whether the defendants could be said to have violated Article 4, Section 15
(3) of the
Constitution turns solely on whether or not they correctly
applied the Ethics in Government Act, Rule 29, and other relevant
Rules of
the Nitijela. Even then, it is not clear that any misapplication of the
Rules should be regarded as necessarily
giving rise to a violation of the
constitutional provision.
Finally, plaintiffs claim that
the defendants also violated Article 4, Section 8(1) and (2) of the
Constitution. Those
provisions read as follows:
(1) The Speaker shall preside
over any meeting of the Nitiat which he is present and and shall have the
other functions
conferred on him by this Constitution or by or pursuant to
Act or to the Rules of the Nitijela.
(2) The Speaker shall be
responsibl ensuring that the official business of the Nitijela is
s
conducted in compliance
with this Constitution and the Rules of the Nitijela,
and shall exercise his functions impartially.
Again, the claim that the
defendants acted in breacthose provisions rests on the doubtful
proposition thon that a violation
would automatically result from any
misapplication of the Nitijela's Rules of Procedure, if, in fact, that
occurred.
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If plaintiffs were allowed to
continue whis case, every bill, whether it was passed by a close marg margin
or defeated
by a close margin would find itself likewise the subject of
review by the court. If the Speaker found a member had a conflict
of
interest and disallowed his vote, he or any persons supporting his position
for the bill's defeat could file a court
challenge to the bill's passage.
Likewise, if the Speaker did not find that a member had a conflict of
interest and allowed
his vote, those persons supporting the defeat of the
bill could file a challenge to the bill’s passage.
As the court stated in
Citizens Co Against Crime, if the enrolled bill were not taken as n as
conclusive evidence that it was regularly and constitutionally enacted, it
would be practically impossible for the courts even to determine what was
the law, and would render it absolutely impossible
for the average citizen
to ascertain that of which he must at his peril take notice. Also, as
Justice Scalia stated in
United States v Munoz-Flores,
mutual regard between the coordinate branches, and the interest of
certainty, both demand that official representations
regarding such matters
of internal process be accepted at fact value.
For these reasons stated
herein, plaintiffs' complaint is dismissed for lack of subject matter
jurisdiction and failure
to state a claim upon which relief can be granted.
Dated this 22nd day of July,
1998.
Harold Van Voorhis
(Acting Chief Justice, High Court,
<
Republic of the Marshall
Islands)
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