1 MILR (Rev.) 27

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 85-05
(Original action concerning
High Ct. No. 1984-098, 102 and -108)

KABUA KABUA,
Petitioner,

-v-

HIGH COURT OF THE REPUBLIC OF THE MARSHALL ISLANDS,
Respondent,

IMADA KABUA AND KWAJALEIN ATOLL CORPORATION,
Real Parties in Interest.

OPINION AND ORDER

MARCH 17, 1986

BURNETT, C.J.
LANHAM, A.J.

SUMMARY:

Petitioners filed an original action in the Supreme Court seeking Writs of Prohibition and Mandamus directed to the High Court. The Supreme Court declined to issue a writ because the petition sought relief from an interlocutory order and petitioners, if prejudiced, had a remedy by appeal from a final judgment.

DIGEST:

1. CLERKS OF COURTS – Duties – Performance: Complaints concerning failure of or refusal by the Clerk of Courts to accept a Notice of Appeal or to certify the record should be presented to the Supreme Court by a motion, supported by affidavit and exhibits, and proposed order.

2. WRITS, EXTRAORDINARY – Power to Issue: The power of the Supreme Court to issue writs is not unlimited or without boundaries, but is limited to cases where they are necessary to aid its appellate or other jurisdiction or to enforce the Constitution.

3. WRITS, EXTRAORDINARY – Requirements – Matters of Public Importance: Writs of mandamus and prohibition are discretionary and generally will be issued only in cases of public importance or of exceptional character or to enforce a prior order of the court.

4. WRITS, EXTRAORDINARY – Same – No Other Adequate Remedy: Writs of mandamus and prohibition may not be used as substitutes for appeal. Further, they generally will not be issued unless there is no adequate remedy available on appeal.

5. WRITS, EXTRAORDINARY – Same – Same: The party seeking a writ of mandamus or prohibition must show there is no other means of obtaining the desired relief and has the burden of showing his right to the writ is clear and indisputable.

6. WRITS, EXTRAORDINARY – Writs In Lieu of Interlocutory Appeals Disfavored: Wise and practical policies dictate that requirements for obtaining writs directed against interlocutory orders are even stricter.

OPINION OF THE COURT BY LANHAM, C.J.

This is a petition filed on behalf of Kabua Kabua, the Petitioner herein, requesting that this Court issue a Writ of Mandamus and/or a Writ of Prohibition directing the High Court of the Republic of the Marshall Islands, Respondent in this case, to vacate the orders issued by that court which disqualify Attorney Benjamin M. Abrams from participating as attorney for Petitioner Kabua Kabua in the cases of Kabua Kabua v. Imada Kabua, Civil No. 1984-98, Kabua Kabua v. Kwajalein Atoll Corporation, Civil No. 1984-102, and in In Re The Kwajalein War Claim, Civil No. 1984-88. These disqualification orders were issued because of the trial court's finding that Attorney Abrams had made unauthorized communications with an opposing party, Imada Kabua, to that party's detriment. If granted, as requested these Writs would in effect reinstate Attorney Abrams as attorney for Petitioner Kabua in these cases.

Filed with this petition was a "Memorandum In Support of Petition" which states that the "July 29 Transcript" was attached to the Petition as Exhibit 2. If so, it is not part of the record or file submitted to the Court. Also thirteen other exhibits referred to in the Petition are not part of the record, including a "September 9 Transcript." The Petition also designates an "Affidavit of Counsel" as being part of the Petition, but that also is not in the record or file transmitted to this Court.

The memorandum accompanying the Petition states that the Chief Justice of the High Court issued the order disqualifying Attorney Abrams in Civil No. 1984-98 after a July 29, 1985, hearing and on August 13, 1985, Attorney Allan B. Burdick (one of Petitioners present counsel) filed an interlocutory appeal from that disqualification order and, pursuant to the provisions of Rule 8(a) of the Appellate Rules of Procedure regulating stays of judgments pending appeals, moved the High Court for a stay of execution of the order disqualifying Attorney Abrams. After hearing on the motion to stay held on September 9, 1985, it is stated that the Chief Justice of the High Court denied the motion to stay, and "purported" to strike Petitioner's appeal, characterizing it as a "sham." It is also claimed in the memorandum that as early as September 9, 1985, Petitioner's lead attorney (Mr. Cushnie) requested the Clerk of Court to certify the record in Civil No. 1984-98, insofar as it relates to the motion to disqualify Attorney Abrams, and that to date that record has not been certified.

Subsequent motions to disqualify Attorney Abrams as Kabua Kabua's attorney in Civil No. 1984-102 and 1984-88 were granted on November 7, 1985 and October 24, 1984, according to the memorandum, on the same grounds.

[1] We view this Petition as an original petition before this Court requesting that a Writ of Mandamus or Prohibition be issued by this Court directing the High court to vacate its orders disqualifying Attorney Benjamin Abrams from these cases, and view that as being the only issue before this Court in this Petition. While Petitioner does, in his memoranda, complain about the "purported" striking of a Notice of Appeal by the High Court, and the failure of the Clerk of Court to certify and forward to this Court the record in Civil No. 1984-98, no relief is requested by Petitioner for these alleged matters, so this Court will take no action thereon. We do hold, however, that, until otherwise provided, complaints concerning any failure or refusal on the part of the Clerk of Court to accept a Notice of Appeal or to certify the record should be presented to this Court by a Motion accompanied by an affidavit and supporting exhibits or orders and a proposed form of the order which it is requested that this Court issue.

We deny the Petition for a Writ of Mandamus and/or Prohibition, and Petitioner's request that Attorney Abrams be reinstated as attorney for Petitioner Kabua Kabua.

[2] Article VI of the Constitution vests the judicial power of the Republic of the Marshall Islands in the Supreme Court, a High Court and other designated courts with the Supreme court having the appellate jurisdiction and the final authority to adjudicate all cases and controversies properly brought before it. Article VI, § 1(2) of the Constitution, and § 63 of P.L. 1983-18 (The Judiciary Act of 1983) confers upon the courts the power to issue "all writs ... not inconsistent with law" so long as such writs are "required for the administration of justice and the enforcement of this Constitution." The power of the Supreme Court to issue writs is, therefore, not unlimited or without boundaries, but is limited to cases where they are necessary to aid in its appellate (Article VI, § 2, Constitution) or other (Article VI, §§ 2(c) and (3), Constitution) jurisdiction or to enforce the Constitution.

[3-6] Additionally, the writs of mandamus and prohibition are discretionary writs and the Supreme Court will, as a general rule, issue such writs only in cases of public importance or of exceptional character (Ex Parte Fahey, 332 U.S. 258, 67 S. Ct. 1558 (1947); Ex Parte Peru, 318 U.S. 578, 63 S. Ct. 793 (1943); Chandler v. Judicial Council of Tenth Circuit, 398 U.S. 74, 90 S. Ct. 1648 (1970)) or to enforce its own prior orders. Further, as these writs are extraordinary remedies they must be reserved for really extraordinary cases, and not as substitutes for appeals. (Ex Parte Fahey, supra). A further consideration is that since these writs savor of the nature of equitable remedies they generally will not be issued unless there is no adequate remedy available on appeal. (Ex Parte Fahey, supra; Ex Parte Peru, supra). The party seeking these writs must show that there is no other means of obtaining the relief he desires and generally must bear the burden of showing that his right to issuance of the writ is "clear and indisputable." (Will v. Calvert Fire Insurance Co., 437 U.S. 655, 665 (1978); Stein, Appellate Practice of the U.S., p. 75). In cases where, as here, the petition for such extraordinary writs is directed against an interlocutory order issued by a judge the requirement for obtaining these writs is even stricter, because we must commence with the general rule that interlocutory orders are not appealable (Cobbledick v. U.S., 309 U.S. 323, 60 S. Ct. 540 (1940); In Re Continental Inv. Corp., 637 F.2d 1 (1980) for three reasons:

(1) The strong legislative policy against piecemeal appeals;

(2) The policy against obstructing ongoing judicial proceedings by interlocutory appeals, and

(3) The unfortunate result that when such a writ is directed against the trial judge it makes that judge a party litigant whereby he must seek his own counsel and prepare his own defense. (Ex Parte Fahey, supra).

These are wise and practical policies this Court must consider in determining this Petition.

We have carefully considered the Petitioner's Petition and Memorandum and find that the Petition is from an interlocutory order of the High Court in a matter which can be brought before this Court on appeal should Petitioner lose in the trial court and elect to appeal his case to the Supreme Court. (In Re Continental Inv. Corp., supra). Petitioner therefore has an adequate remedy by means of appeal if the disqualification complained of was erroneous and prejudicial, and cannot petition for an extraordinary writ of mandamus or prohibition in the absence of a showing that the issue raised by this Petition is of public importance or involves exceptional circumstances. The order which the Petition asks us to vacate was issued by the High Court Chief Justice after motion and hearing, and involved questions well within the discretion and jurisdiction of that court. Although we do not have the transcript of the hearing, it appears from Petitioner's memorandum that the factual issues presented at the hearing were not unusual in a contest involving the disqualification of an attorney. We, therefore, conclude that the Petitioner has failed to show any entitlement to either of these extraordinary writs under the criteria discussed in this opinion.

The Petition is, accordingly, DENIED.

David Lowe and Roy A. Vitousek III for Real Parties in Interest
Douglas F. Cushnie and Alan B. Burdick for Petitioner