1 MILR (Rev.) 33

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 86-06
(Original Action)

IMADA KABUA, et al.,
Petitioners

-v-

HIGH COURT CHIEF JUSTICE TENNEKONE, et al.,
Respondents.

ORDER DENYING PETITION FOR WRIT OF PROHIBITION

MARCH 20, 1986

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

SUMMARY:

A petition for a Writ of Prohibition was filed with the Supreme Court to prohibit Respondents, Justice Tennekone of the High Court, Presiding Judge Koenig of the Kwajalein Community Court, and the High Court and Community Court, from allowing prosecutions to proceed against petitioners based on charges brought by law personnel on Kwajalein Missile Range. The petition was denied because the respondent courts had neither acted in excess of their jurisdiction, nor yet had acted at all, and the right to appeal would provide an adequate remedy.

DIGEST:

1. WRITS, EXTRAORDINARY – Requirements – In General: In order for the Court to issue these prerogative, discretionary writs, the petitioner must show that respondent is about to exercise judicial power, that the exercise of such power is unauthorized by law, and that it would result in injury for which there is no other adequate remedy.

2. WRITS, EXTRAORDINARY – Power to Issue: The power to issue writs is discretionary and it is sparingly exercised.

OPINION OF THE COURT BY BURNETT, C.J.

This is an original action in this court, brought by an undated Petition for Writ of Prohibition, received by the Chief Justice on March 16, 1986. It asks that the Respondents, Justice Tennekone of the High Court, Presiding Judge Koenig of the Kwajalein Community Court, and the High Court and Community Court be prohibited from allowing prosecutions to proceed against petitioners based on charges brought by law personnel on Kwajalein Missile Range.

Petitioners are alleged to be, with a single exception, not relevant to this proceeding, holders of land rights within Kwajalein atoll. Each (with the exception of four charged with more serious offenses) has been charged with violations of Marshall Islands trespass law. The four have been charged with interference with a public officer and assault and battery.

The contention is that KMR has no present authority to so charge; since the Interim Use Agreement had expired, Petitioners had every right to return to the land.

The question of issuance, or denial, of Prohibition has been considered previously, frequently by the Courts of the United States, as well as by the High Court of the Trust Territory.

[1] Wherever, and whenever, the matter of the great prerogative writs has been raised, the answer has been the same:

"the petitioner must show that the respondent is about to exercise judicial power, that the exercise of such power is unauthorized by law, and that it would result in injury for which there is no other adequate remedy ...." Arriola, et al. v. Robert A. Hefner, 7 TTR 437 (App. Div. 1976).

[2] To the same effect, (and, perhaps more fitting here) see Lajuan v. Makroro, 6 TTR 209, 213 (App. Div. 1972), where it is said, citing Parr v. United States, 351 U.S. 513, 76 S. Ct. 912, 917 (1956):

"Such writs may go only in aid of appellate jurisdiction .... The power to issue them is discretionary and it is sparingly exercised .... This is not a case where a court has exceeded or refused to exercise its jurisdiction, nor one where appellate review will be defeated if the writ does not issue."

Here there is nothing to show that the respondent courts have acted in excess of their jurisdiction, nor does it appear, from the Petition, that they have been yet given an opportunity to determine the question, or have acted in any manner.

We cannot assume that the trial courts will act improperly. If there should be error in the trial process, it can be dealt with through ordinary appellate procedure. Nothing is shown here to warrant departure from the procedure. In short, the right to appeal provides an adequate remedy; there is thus no need to the exceptional remedy afforded by prohibition.

For our view as to the use of these prerogative, discretionary, writs, see our opinion in Kabua v. High Court, et al. (2), 1 MILR (Rev.) 27, 30 (Mar 17, 1986).

Accordingly, we must, and hereby do, DENY this Petition.

George M. Allen for Petitioners