1 MILR (Rev.) 137

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 87-05
(High Ct. Civil Nos. 1987-108, 109, and 110)

ATAJI BALOS, JULIAN RIKLON, and LAJI TAFT,
Petitioners,

-v-

HIGH COURT CHIEF JUSTICE TENNEKONE,
Respondent.

REMOVAL BY THE HIGH COURT

AUGUST 2, 1989

KING, A.J. pro tem1
ASHFORD, C.J., and KOBAYASHI, A.J. pro tem2

SUMMARY:

This action stems from a determination by a Commission of Inquiry that petitioners committed the offense of contempt against its authority. The Court dismissed the contempt charges on the following grounds: The 1986 Commissions of Inquiry Act failed to provide any notice or opportunity to be heard and the "conclusive evidence" clause of § 12(3)(b) of the Act was unconstitutional. The Court also dismissed, as moot, the petitioners' request for a writ of prohibition.

DIGEST:

1. CONSTITUTIONAL LAW – Due Process – Procedural: Constitutional due process in contempt proceedings requires that the defendant be given reasonable notice of the charges and opportunity to be heard.

2. CONTEMPT – Nature and Elements: Contempt is civil in nature if sanctions are remedial and conditional upon compliance and is criminal if punitive and unconditional.

3. CONSTITUTIONAL LAW – Due Process – Presumptions and Burden of Proof: The "conclusive evidence" clause of § 12(3)(b) of the Commissions of Inquiry Act 1986 runs directly contrary to the guarantees of the Constitution of presumption of innocence and rights against self-incrimination, confrontation of witnesses and compelling attendance of witnesses.

4. CONSTITUTIONAL LAW – Disqualification of Judge: Article VI, § 1(6) of the Constitution requires a judge to recuse himself if he previously played a role in the case or he is disabled by any conflict of interest.

OPINION OF THE COURT BY KING, A.J.

I. BACKGROUND

This action stems from contempt proceedings arising from a determination by a Commission of Inquiry (the "Commission") that petitioners Ataji Balos, Julian Riklon, and Laji Taft (collectively "petitioners") committed the offense of contempt against its authority.

The Commissions of Inquiry Act 1986, P.L. 1986-29 ("Act"), gives the President the authority to appoint Commissions of Inquiry into the administration of any government department or public authority, conduct of public employees, and matters which are "in the interest of the public safety, national security or welfare." Act, § 2(1). Pursuant to this authority, on February 19, 1987, the President of the Republic of the Marshall Islands appointed a Commission of Inquiry to investigate the finances of the Kwajalein Atoll Corporation and the status of the Kwajalein Atoll Trust.

Petitioners were summoned by the Commission to produce pertinent records by April 7, 1987. They subsequently appeared personally before the Commission for examination, but produced no records. On August 18, 1987, in its final report, the Commission stated the following "(Petitioners") failure to respond (to the order for production of document) constitutes the offense [of] contempt which has to be dealt with [by] the High Court."

Petitioners were summoned to appear before the High Court and show cause why they should not be held in contempt. On October 7, 1987, petitioners moved to quash the summons, claiming that the Act was unconstitutional. Prior to the hearing on the order to show cause, petitioners moved to disqualify Chief Justice Tennekone. Petitioners argued that the Chief Justice's prior role – as legislative counsel – in the drafting and enactment of the Act constitutes a conflict of interest that necessitated the Chief Justice's recusal. Petitioners' motion for disqualification was denied on October 22, 1987, by Associate Justice Ralph W. Kondo of the High Court.

On November 13, 1987, Chief Justice Tennekone referred the question of the constitutionality of Section 12(2) and (3) of the Act to the Supreme Court – pursuant to Article VI, § 2(3) of the Constitution. On November 14, 1987, the Supreme Court accepted the referral of the constitutional challenge.

On November 14, 1987, petitioners' appeal of Justice Kondo's denial of disqualification was dismissed because this denial was not a final, appealable order. Petitioners then filed a writ of prohibition in this Court, seeking to bar Chief Justice Tennekone from participating in the High Court proceeding on the order to show cause and the related motion to quash. The Supreme Court, consisting of Chief Justice Harold W. Burnett, and, sitting by designation, High Court Associate Justice Ralph W. Kondo, and Judge Robert Hefner of the Commonwealth Court of the Northern Marianas Islands, heard both the petition for a writ and the referral of constitutional questions on February 12, 1988.

However, the following events occurred after the Supreme Court hearing:

(1) The Court learned that Judge Hefner had not been appointed by the Cabinet to hear the case;

(2) The Cabinet failed to renew Chief Justice Burnett's contract, so his appointment lapsed on June 15, 1988;

(3) On July 11, 1988, the Clerk of the Court received a handwritten opinion signed by Burnett which held that the Act was unconstitutional;

(4) The opinion was typed and then signed by both Burnett and Kondo and filed on August 16, 1988, but was "unfiled" on the same day pursuant to instructions from the Chief Justice of the High Court.

These events led to the present rehearing of both the issue of constitutionality of the Act's § 12(2) and (3) and the petition for the writ of prohibition. Chief Justice Clinton R. Ashford of the Supreme Court invited the attorney general and the legislative counsel of the Republic to appear at the rehearing. Mr. Douglas Premaratne, Legislative Counsel, filed a written submission as amicus curiae in response to this invitation.

II. DISCUSSION

A. Constitutionality of the Act

Section 12 of the Act specifies what actions or omissions constitute contempt against the Commission and provides, in relevant part:

(1) If any person upon whom a summons is served under this Act ...

c) refuses or fails without cause which in the opinion of the commission is reasonable, to produce to the commission any document or other thing which is in his possession or power and which is in the opinion of the commission necessary for arriving at the truth of the matters to be inquired into ... such person shall be guilty of the offense of contempt against or in disrespect of the authority of the commission.

The Act provides that the Commission "may cause its secretary to transmit to the High Court a certificate setting out such determination." Act, § 12(2). Section 12 further provides that:

3) In any proceedings for the punishment of an offense of contempt (before) the High Court ... any document purporting to be a certificate signed and transmitted to the court under Subsection (2) shall

(a) be received in evidence, and be deemed to be a certificate without further proof unless the contrary is proved; and

(b) be conclusive evidence that the determination set out in the certificate was made by the commission, and of the facts stated in the determination.

Section 10 of the Act provides that every offense of contempt committed against the Commission shall be punishable by the High Court as if it were an offense of contempt against the High Court. The offense of contempt against the Commission is therefore a misdemeanor carrying with it a possible prison term of up to six months and a fine up to $500.00. See Judiciary Act § 59.

Article II, § 4(1), of the Constitution of the Marshall Islands ("Constitution") provides that "(n)o person shall be deprived of life, liberty, or property without due process of law." While the penalties for the offense of contempt are clearly deprivations of liberty and property, the Act fails to provide for any notice or opportunity to be heard. This failure alone does not render the Act's contempt provision constitutionally infirm, since these due process guarantees can be read into the Act's requirement that the Commission refer the matter to the High Court which would then hold a hearing, after giving notice and providing the alleged contemnor an opportunity to be heard. The written submission of Counsel Premaratne for the Republic as amicus curiae agrees that the High Court must necessarily observe due process of law once the matter is referred to it. Written Submission, at 9.

[1] In this case, the petitioners were not given prompt notice since the order to show cause came months after their appearance before the Commission. This delay does not comport with the Constitution's due process guarantees. See, e.g., Kabua v. Gannett Co., Inc., 1 Selected Decisions of the High Court of the Republic of the Marshall Islands 10 (1984) [Constitutional due process requires defendant in a civil case be given reasonable notice of action]. In criminal cases, the requirement of adequate notice is even more imperative. See, e.g., Cooke v. United States, 267 U.S. 517, 537 (1925) [Constitutional due process in criminal contempt proceedings requires that the defendant be given reasonable notice of the charges and opportunity to be heard]. Delay which is not due to the person charged may be presumed to be prejudicial.

However, even had the petitioners been given prompt notice with the opportunity to be heard, they would have been faced at the hearing with the Commission's determination that they had committed contempt. Section 12(3)(b) of the Act provides that this determination and the facts in the Secretary's certificate constitute "conclusive evidence." This "conclusive evidence" clause is unconstitutional.

[2] First of all, the contempt charges at issue here are for criminal, not civil contempt. The Commission's certificate does not specify whether the contempt is criminal or civil; but since the Commission is no longer in existence, punishment cannot be conditional upon compliance with the Commission's request for the documents. See, e.g., Hicks v. Feiock, 108 S. Ct. 1423, 1429-31(1988) [Contempt is civil in nature if sanctions are remedial and conditional upon compliance and is criminal if punitive and unconditional]. In any event, the referral to the High Court did not request coercive remedies.

This view is further supported by the failure of the Commission to refer the matter to the High Court, at the time of the alleged failure to produce the requested document, for civil contempt under Section 60 of the Judiciary Act which would have authorized the High Court to impose imprisonment and/or daily fines until the documents were produced.

[3] Because the petitioners face criminal charges, they are entitled to the procedural safeguards expressly enumerated in Article II, § 4 of the Constitution. Section 4(2) provides that "every person charged with a criminal offense shall be presumed innocent until proven guilty beyond a reasonable doubt." See Rep. of the Marshall Islands v. Yates, 1 Selected Decisions of the High Court of the Marshall Islands 75 (1982) [Accused is presumed innocent; burden is upon the prosecutor to prove guilt beyond a reasonable doubt]. Section 4(4) guarantees the accused in all criminal proceedings prior notice of the nature and cause of the accusation, the right against self-incrimination, the right of confrontation, and the right to compel attendance of witnesses. See also, Criminal Procedure Code of the Marshall Islands, § 37 (enumerated rights of criminal defendants).

The "conclusive evidence" clause runs directly contrary to these safeguards. The accused contemnors are not presumed innocent until proven guilty beyond a reasonable doubt, but instead are faced with "conclusive evidence" that they have committed the offense. The "conclusive evidence" clause also abrogates the rights against self-incrimination, of confrontation, and to compel the attendance of witnesses.

Finding that the Act's "conclusive evidence" clause is contrary to the Constitution necessitates that the Court find this clause void as a matter of law. The Constitution declares in its opening sections that it is the supreme law of the land and that any law "which is inconsistent with this Constitution, shall, to the extent of the inconsistency, be void." Constitution, Article I, §§ 1 and 2.

So far as this Court is aware, this "conclusive evidence" clause in relation to the contempt powers of tribunals of inquiry is unique to the Marshall Islands and to Ceylon (Sri Lanka). The "conclusive evidence" clause of the Marshall Islands Act mirrors that of the Ceylonese Commissions of Inquiry Act. See relevant portions of Ceylonese Act printed and discussed in Rajah Ratnagopal v. Attorney-General, [1970] AC 974, [1969] 3 W.L.R. 1056.

In England, the original Tribunals of Inquiry (Evidence) Act 1921 specifically provided that the Court would hold a hearing with witnesses for both the Commission and for the accused before taking any action against the accused. Tribunals of Inquiry (Evidence) Act 1921, § 1(c). The contempt portions of that Act have been superseded by the Contempt of Court Act of 1981. The 1981 Act provides that the Tribunal of Inquiry's certificate, which states that there has been commission of an offense of contempt, "is not binding on the court. The court must itself inquire into the matter afresh to determine if an offense has been committed." Contempt of Court Act, 1981, Criminal Contempt (4), § 49.

Striking the unconstitutional "conclusive evidence" clause of the Commissions of Inquiry Act does not change the procedure for criminal contempt referrals from Commissions of Inquiry to the High Court. Any alleged contempt before the Commission would not have been committed before the High Court itself. Therefore, the High Court would not follow the procedure for summary contempt, but would follow the procedure specified for contempt charges in § 57(4) of the Judiciary Act, which provides that "a charge of the offense of contempt of court shall be laid and dealt with in the same way as other charges of offenses."

The Attorney-General, as "chief legal officer of the Government of the Marshall Islands," is in charge of the supervision of the criminal prosecution for contempt. See Part I, § 2(b) of the Criminal Procedure Code. The Constitution charges the Attorney-General with the responsibility for "instituting, conducting or discontinuing any proceedings for an offense alleged to have been committed, and for seeing to it that the laws are faithfully executed." Constitution, Article VII, § 3(1).

The Attorney-General's constitutional duty to ensure that "the laws are faithfully executed" in his supervision of the criminal contempt proceedings before the High Court provides further assurance that these proceedings would comport with the Constitution's due process guarantees and with the rights of criminal defendants enumerated in the Criminal Procedure Code.

Upon review of these due process guarantees and rights, the Court finds that the protracted length of these proceedings mandates that the contempt charges against the petitioners be dismissed with prejudice. More than two years have elapsed since the events at issue; the Commission has long since been dissolved; the invalidity of the earlier Supreme Court's "unfiled" opinion which necessitated the present Court's rehearing of the issues – all of these factors counsel that the charges be dismissed in the interest of due process and fundamental fairness.

The matter is remanded to the High Court with instructions to dismiss the contempt charges against the petitioners with prejudice.

B. The Writ of Prohibition

Dismissal of the petitioners' contempt charges renders their motion for a writ of prohibition moot. Nonetheless, the Court deems it desirable to comment upon the standard used by Justice Kondo in denying their motion to disqualify Chief Justice Tennekone.

Article VI, § 1(6) of the Constitution states:

No judge shall take part in the decision of any case in which the judge has previously played a role or with respect to which he is disabled by any conflict of interest.

This language is repeated in Section 67 of the Judiciary Act.

Justice Kondo's order denying petitioner's motion for disqualification acknowledged Chief Justice Tennekone's role in the drafting of the legislation, but stated that "(s)ection 67 of the Judiciary Act requires that (petitioners) also show that the Chief Justice was in fact biased and prejudiced against them." No authority is cited for this proposition, and the Court has found none for it.

[4] The Court is of the opinion that these provisions in the Constitution and in the Judiciary Act concerning disqualification of a judge are disjunctive. If a judge played a role in a case or if he is disabled by any conflict of interest, he must recuse himself. The Court therefore finds that the standard used by Justice Kondo was incorrect.

The petition for a writ of prohibition is dismissed as moot.

SO ORDERED.

_________

1Honorable Samuel P. King, Senior United States District Judge for the District of Hawaii, by appointment of the Cabinet.

2Honorable Bert T. Kobayashi, Associate Justice Emeritus of the Supreme Court of Hawaii, by appointment of the Cabinet.