1 MILR (Rev.) 63

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 85-04
(High Ct. Civil No. 1984-007)

AMRAM ENOS AND BINA ENOS, individually and as legal guardians and next friends of Moana Enos, a minor child,
Plaintiffs-Appellants,

-v-

REPUBLIC OF THE MARSHALL ISLANDS,
Defendant-Appellee.

APPEAL FROM THE HIGH COURT

JANUARY 29, 1987

BURNETT, C.J.
SOLL, A.J., and TENNEKONE, A.J. (sitting by designation)

SUMMARY:

The trial court dismissed a tort action for failure to comply with the six-month time requirement under § 9 of the Government Liability Act 1980, P.L. 1980-19. The Supreme Court found the six-month time limitation unconstitutional, as it unduly restricted a constitutional right guaranteed by Article I, § 4(c), which provides specifically that the Government of the Marshall Islands shall not be immune from suit. The judgment was reversed and the case remanded for trial.

DIGEST:

1. TORTS – Government Liability Act – In General: The Act did not grant a right to sue, but, to the contrary, severely limited the pre-existing constitutional right of an individual to seek judicial redress against the Government or its agent.

2. TORTS – Same – Procedural Requirements: Because of problems encountered in attempting to timely file a claim, the six-month time limitation in § 9 is unduly restrictive and therefore unconstitutional.

3. TORTS – Same – Severability: Section 9 with the six-month limitation is severable from the balance of the Act and may be stricken while leaving the balance of the Act intact.

OPINION OF THE COURT BY BURNETT, C.J.

The action below was brought in the High Court to recover for injuries sustained by the minor Plaintiff-Appellant on June 10, 1983. On motion of Appellee, the court dismissed for failure to comply with the time requirements of the Government Liability Act 1980, P.L. 1980-19.

For reasons that follow, we reverse.

It is not disputed that a formal claim was not filed with the Attorney General as required by § 7 of the Act, until January 18, 1984, thus beyond the six-month period allowed for filing by § 9.

In moving for dismissal, the Appellee urged that the timely filing of a claim is jurisdictional, and equated the Act with the Federal Tort Claims Act, 28 U.S.C. 2671 et seq. While the trial court noted a clear distinction between the two, it nevertheless cited numerous decisions of Federal Courts in FTCA cases to support the proposition that "failure to properly and timely file the claim with the proper government official deprives the court of jurisdiction ...."

The nature of the distinction between the two Acts must first be made clear.

Prior to enactment of the FTCA, the government of the United States was shielded from tort claims by the doctrine of sovereign immunity. The effect of the Act was to waive that immunity, thus requiring the Courts to strictly construe its provisions, and hold them to be jurisdictional.

[1] That is not our situation. Article I, § 4 (c) of the Constitution of the Marshall Islands provides specifically that the Government of the Marshall Islands shall not be immune from suit.

It follows that, in the absence of the Liability Act, anyone feeling himself injured by acts of the Government or its agents had clear right to seek judicial redress. Consequently, the Act did not grant a right to sue but, to the contrary, severely limited the pre-existing right held under the Constitution. As a result, any reliance on the jurisdictional standards of the FTCA is misplaced; the two Acts rest upon entirely different footing.

[2] Taken in that light, the standard which must be observed is clearly one calling for close examination of the extent to which the basic constitutional right has been limited.

The record contains nothing to evidence a reason for the § 9 requirement that a claim be filed within six months. The trial court felt "personally" that the period was "a bit short because of the vast distance between atolls and the lack of speedy transportation." He suggested "up to a year for such filing, as paper work does not move with great speed in RepMar." (In this instance, the 'paper work' either moved in the wrong direction or not at all). He nevertheless found that "six (6) months to file a claim meets constitutional muster."

A brief review of this matter will demonstrate the problems of one wishing to make a claim particularly from an outer island (this incident occurred on Jaluit).

On August 5, 1983, Appellant Amram Enos filed a claim with the Minister of Education, routing the letter through the Secretary of Education, Chief of Secondary and Elementary Education, Supervisor Elementary Education and Principal Jaluit Atoll, with copy to the Teacher Jaluit Elementary School. We may note, parenthetically, that had he been filing in the United States under the FTCA, he would have been perfectly correct; that Act requires claims to be filed with the responsible department.

What happened to Appellant's letter-claim is not known; he received no answer, nor was he able to obtain any guidance from anyone as to the proper office in which to file. It is not enough to say that "ignorance of the law is no excuse." There are no lawyers in Jaluit, and few in Majuro outside of Government service; Appellant was unable to obtain counsel locally.

His counsel, from Saipan, was similarly frustrated in attempts to obtain information even as to the existence of a Liability Act, receiving no response to written inquiries directed to officials of the Government. That this is true is not surprising, given the position taken by Government counsel "that it would appear to be a conflict of interest" for the Attorney General or his staff to provide counsel with the requested information. Such a position is inconceivable and unconscionable.

If this is the course taken with respect to a claim arising in Jaluit, it takes little imagination to discern the difficulty which would confront a claimant from one of the more remote atolls. Compliance with the six-month requirement would be an impossibility, even if full information were available to the injured party, a proposition that is highly unlikely.

The need to carefully investigate, to determine the cause and extent of injury as well as the possibility of Government liability, is just as great for the claimant as for the Government. In addition, § 16 limits an action to the sum contained in the claim presented to the Attorney General, unless the claimant is able to meet a newly discovered evidence test, not always an easy task.

We conclude that the six months time limitation unduly restricts, and is destructive of a right guaranteed by the Constitution.

[3] The next inquiry must be whether § 9, with the six-month limitation, is severable from the balance of the Act. We conclude that it is, thus the whole Act need not fail.

Section 7 is procedural only, and contains no reference to time.

Section 15 authorizes suit after notice of rejection of his claim, in whole or in part, or three months after filing the claim under § 7.

Section 23, the Statute of Limitations, bars any suit not commenced within one year from the date of filing the claim, or within six months from notice that the claim has been rejected.

None of these sections or any of the balance of the Act are dependent on § 9. Thus, consistent with § 28, Severability, only § 9 need be stricken as unconstitutional.

Also applicable is the Limitations of Action provision of 6 TTC § 303(4) which would bar any action not commenced within two years from the date the claim arose.

Reversed and Remanded.