1 MILR (Rev.) 247

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 91-03
(Original action concerning High Ct. Civil No. 1984-098 & High Ct. Civil No. 1984-102, Consolidated)

KABUA KABUA,
Petitioner,

-v-

AMATA KABUA, et al.,
Respondents.

JUDGMENT IN ORIGINAL ACTION

DECEMBER 20, 1991

ASHFORD, C.J.

SUMMARY:

A petition for a Writ of Mandamus was filed with the Supreme Court to compel the Judicial Service Commission to recommend, and the Cabinet to appoint, a High Court justice qualified to hear the Petitioner's cases. Although the Constitution grants the Supreme Court original jurisdiction to issue writs in appropriate cases, the petition was denied because Petitioner failed to establish that demand had been made on the officials in question to perform a mandatory duty and that they had refused or unreasonably delayed in performing that duty.

DIGEST:

1. JUDGES – Disqualification to Act: Article VI, § 1(6) of the Constitution and § 67 of the Judiciary Act 1983 prohibit a judge from taking part in a decision of any case in which he is disabled by any conflict of interest.

2. JUDGES – Same: At common law a judge was not disqualified merely by reason of relationship to an attorney in the cause before him.

3. CONSTITUTIONAL LAW – Construction – Rules of Interpretation: In the event that the constitutions of other countries are not sufficiently similar in relevant respect to provide guidance, the court may consider provisions of constitutions of states that are part of a federation that has adopted common law, if those constitutional provisions are similar in relevant respect to the Constitution of the Republic of the Marshall Islands.

4. WRITS, EXTRAORDINARY – Power to Issue: The constitutional grant of power to each court to issue all writs, in Article VI, § 1(2), confers original jurisdiction on the Supreme Court to issue writs in appropriate cases.

5. WRITS, EXTRAORDINARY – Same: The constitutional grant of appellate jurisdiction carries with it all the common law writs necessary to the proper exercise of appellate jurisdiction and does not require an additional grant of power to issue all writs.

6. WRITS, EXTRAORDINARY – Same: Section 63 of the Judiciary Act of 1983, 27 MIRC Ch. 2, underscores the Supreme Court's constitutional power to issue writs in the first instance.

7. WRITS, EXTRAORDINARY – Requirements – In General: For a writ of mandamus to issue there must be a clear showing of the existence of a nondiscretionary duty mandated by law, a default in the performance of that duty, a clear right to have the duty performed, and a lack of any other sufficient remedy.

OPINION OF THE COURT BY ASHFORD, C.J.

This is an original action filed in the Supreme Court seeking a writ of mandamus to compel the Judicial Service Commission to recommend to the Cabinet a candidate for appointment to the vacant position of Associate Justice of the High Court and to compel the Cabinet to act upon the recommendation, both within specified periods. In the alternative, the Petitioner requests this Court to appoint a temporary Justice of the High Court to hear Petitioner's pending lawsuits, alleging that both sitting Justices of the High Court are disqualified from hearing them. The individual defendants, the Members of the Cabinet and the Members of the Judicial Service Commission, all of whom are also defendants, filed motions to dismiss on grounds, among others, that this Court lacks jurisdiction to entertain an original action.

Disqualification.

[1] At the outset, the Court must disclose that this Judge's son is employed as an associate in the Honolulu office of the law firm with which two of the individual defendants' attorneys are also affiliated. One of those two is a partner, the other is an associate and both are in the Kona office of the law firm. Article VI, § 1(6) of the Constitution of the Republic and the Judiciary Act 1983, 27 MIRC Ch. 2, § 67, prohibit a judge from taking part in a decision of any case in which he is "disabled by any conflict of interest." Although not required by the Constitution or statute, this Judge is of the view that he should disqualify himself, also, from any proceeding in which his impartiality might reasonably be questioned. It is appropriate to make these disclosures even though I have concluded I am not disqualified to participate in the case now before the Court.

[2] At common law a judge was not disqualified merely by reason of relationship to an attorney in the cause before him. See cases cited in annotation in 50 ALR 2d 143, at 147. I have no concern that my son's status in the law firm of which he is an employee will be affected by the rulings I may make in this case. I am aware that he is an employee who does not participate in the profits or losses of the firm, but I have no other knowledge of his compensation arrangements. I have never discussed this case or the related litigation with him and, in fact, don't know if he has knowledge even of the existence of that litigation. In the circumstances, I have concluded there is neither any conflict of interest nor grounds upon which my impartiality might reasonably be questioned.

Original jurisdiction.

At a time when this Court enjoyed the services of both a Chief Justice and an Associate Justice, it entertained three original actions instituted by petitions for extraordinary writs. All of those cases were disposed of on the merits. Two of them involved the same cases with which the petition in this matter is concerned. The first of the two was Kabua v. High Court, et al. (1), 1 MILR (Rev.) 27 (Jan 23, 1986) in which petitioner requested writs of mandamus or prohibition to prevent Justices Doi and Soll of the High Court from sitting as judges in those cases. A brief order denied the relief requested, indicating the Court believed it had jurisdiction; otherwise, the petition would have been dismissed.

The second was Kabua v. High Court, et al. (2), 1 MILR (Rev.) 27 (Mar 17, 1986) in which writs of mandamus or prohibition were sought directing the High Court to vacate an order disqualifying petitioner's attorney from continuing to represent him in those cases. The Court identified its writ jurisdiction sources as Article VI, § 1(2) of the Constitution and § 63 of P.L. 1983-18, the Judiciary Act of 1983 (now 27 MIRC Ch. 2), and stated:

"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 (Art. VI, § 2, RepMar Const.) or other (Art. VI, § 2(c) and (3), RepMar Const.) jurisdiction or to enforce the Constitution."

The standard suggested by the Court, against which the relief sought should be measured, was:

"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' (citations omitted)."

The Court deemed the application to be, in effect, a substitute for an interlocutory appeal and denied the petition.

The third writ case in which this Court exercised original jurisdiction was Kabua, et al. v. H.Ct. Chief Justice, et al., 1 MILR (Rev.) 27 (Mar 20, 1986). Petitioners sought a writ of prohibition directing judges of the High Court and the Kwajalein Community Court not to proceed with trespass, interference with a public officer and assault and battery cases pending before them. The Court denied the petition, noting it would assume the trial courts would act properly and, if not, appeals would provide an adequate remedy.

Ordinarily, precedent of this nature should be sufficient to establish the authority of this Court to exercise original jurisdiction in the case of prerogative writs. However, in view of the fact that all defendants, including the Attorney General as attorney for the Cabinet and the Judicial Service commission, have taken the position that this Court does not have that jurisdiction, and since it is the Attorney General who most commonly would seek such writs from this Court, the Court has reexamined the question.

Article VI, § 2 of the Constitution expressly confers jurisdiction upon this Court to hear appeals and cases removed here by the High Court. Article VI, § 1(1) of the Constitution allows the Nitijela to confer additional jurisdiction and it has done so. See Nitijela Dissolution (Determination of Date) Act 1981, P.L. 1981-7 (declaratory judgment) and Marshall Islands Nuclear Claims Tribunal (Amendment) Act of 1989, P.L. 1989-57, § 4 (appeals from Nuclear Claims Tribunal and Special Tribunal). The question is whether Article VI, § 1(2) of the Constitution confers original jurisdiction on this Court to issue writs, or merely the power to issue writs in cases in which it has acquired jurisdiction under some other constitutional provision or statute. That section reads:

"Each court of the Marshall Islands shall have power to issue all writs and other processes, make rules and orders and promulgate all procedural regulations, not inconsistent with law, as may be required for the due administration of justice and the enforcement of this Constitution."

Unfortunately, whatever record exists (if any) of the proceedings of the 1979 Constitutional Convention has yet to be found. We must look, therefore, "to the decisions of the courts of other countries having constitutions similar, in the relevant respect, to the Constitution of the Marshall Islands" (Constitution, Article I, § 3(1)) and to analysis and reason.

[3] The Court's attention has not been invited to, and its own extensive research has not uncovered, any Pacific common law jurisdiction having a constitution which might have served as the model for the provisions with which we are here concerned. The U.S. Constitution, too, is markedly different. The constitutions of several of the states of that federation, however, have somewhat similar provisions and the court decisions of those states, considering the question of original jurisdiction to issue writs, are instructive.

The constitution of the State of Wisconsin, in Article 7, § 3, provided:

"The supreme court, except in cases otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be coextensive with the state; The supreme court shall have a general superintending control over all inferior courts; it shall have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and other original and remedial writs, and to hear and determine the same." (Italics in the original, underlining supplied).

In The Attorney General v. Blossom and others, 1 Wis. 277 (1853), the Supreme Court of Wisconsin examined the question whether its power to issue writs was "auxiliary" to its appellate and superintending jurisdictions or was a "distinct power." Id., at 284. The court concluded, both from the language quoted and the nature of the writs themselves, that it had jurisdiction to issue the writs in the first instance.

The constitutions of Colorado (Article 6, §§ 2 and 3) and North Dakota (§§ 86 and 87) contained language nearly identical to that in the Wisconsin Constitution concerning the jurisdiction of the supreme courts of those states, including the limitation to appellate jurisdiction only and the enumeration of the named writs. The supreme courts of those states reached the same conclusion as that reached by the Supreme Court of Wisconsin, agreeing that their constitutions granted original jurisdiction to issue the writs named. Wheeler v. Northern Colorado Irrigation Co., 9 Colo. 248, 11 Pac 103 (1886); State v. Archibald, 5 N.D. 359, 66 NW 234 (1896).

[4,5] We do not think the fact that specific writs are not enumerated in the Marshall Islands Constitution renders the cited cases distinguishable. The Constitution, in Article VI, § 1(2), refers to "all" writs, which would necessarily include those named in the Wisconsin, Colorado and North Dakota Constitutions. Further, as noted in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 146-147, 2 L.Ed. 60, 63 (1803), the constitutional grant of appellate jurisdiction carries with it all the common law writs necessary to the proper exercise of appellate jurisdiction, so an additional grant of all writs power, limited to appellate jurisdiction, would be superfluous. We conclude that Article VI, § 1(2) confers original jurisdiction on this Court to issue writs in appropriate cases.

[6] This interpretation is borne out by the Judiciary Act 1983, 27 MIRC Ch. 2. Notwithstanding § 7 of that statute does not mention § 1(2) of Article VI of the Constitution in describing the sources of jurisdiction of the Supreme Court, § 63 of the statute states that all courts are empowered "to issue writs and other process" as necessary for the due administration of justice and enforcement of the Constitution.

Relief Requested.

[7] For a court to issue a writ of mandamus commanding a government official to perform a duty, the following requirements must be met: (1) the official must be required by law to perform the duty sought and the duty must be non-discretionary (Nix v. Ehmes, 1 F.S.M. Intrm. 114, 118 (Pohn. 1982); Cruz v. Johnston, 6 TTR 354, 359 (1973); Switz v. Township of Middletown, 122 A. 2d 649, 656 (1956); Basset v. Atwater, 65 Conn 355, 32 A. 937, 937-938 (1895)); (2) the official must have neglected or refused to perform the duty (New Mexico ex rel Caledonian Coal Co. v. Baker, 196 U.S. 432, 440, 49 L.Ed. 540, 546 (1905); Switz v. Township of Middletown, supra, at 657 (1956); People v. Bowen Industries, 64 N.E. 2d 213, 214 (1945); Schmidt v. Humphreys, 13 Haw. 332 (1901)); (3) the party applying for the writ must have a clear legal right to have the duty performed and there must be no other sufficient remedy (Kabua Kabua v. High Court et al. (2), supra; State of Missouri ex rel. v. Hawkins, 337 S.W. 2d 441, 443-444 (1960); Basset v. Atwater, supra, at 938).

The petition fails to make a case for granting the relief requested. Not only does it fail to positively allege that the Judicial Service Commission and the Cabinet have neglected or refused to take action to fill the vacancy on the High Court bench, it fails to establish that the Petitioner has requested either, much less both, of those bodies to take action on an urgent basis, with supporting documentation to justify the requests, and that they have refused or unreasonably delayed in taking action. Also, there is an additional route to relief. The Court will take judicial notice of the facts that both High Court Chief Justice Neil Rutledge and High Court Associate Justice Witten Philippo are constitutionally disqualified to hear the cases with which the petition is concerned because they were assistant attorneys general during the pendency of those cases, in which the Republic is a defendant. No other High Court Justice being available to hear the cases, the Cabinet has authority to appoint a person to serve as judge on the cases. 27 MIRC Ch. 2, § 10(3).

The motions to dismiss and the petition are denied.

Douglas F. Cushnie and Alan B. Burdick for Petitioner
David Lowe for the individual Respondents
Dennis McPhillips, Attorney General, for the members of the Judicial Service Commission and the Cabinet