2 MILR 143

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 98-03
(High Ct. Civil No. 1998-091)

IMATA KABUA, PHILLIP MULLER and TONY DE BRUM,
Plaintiffs-Appellants,

-v-

KESSAI NOTE in his official capacity as Speaker of the Nitijela and JOE RIKLON in his official capacity as Clerk of the Nitijela,
Defendants-Appellees.

APPEAL FROM THE HIGH COURT

SEPTEMBER 17, 1999

FIELDS, C.J.
GOODWIN, A.J. pro tem,1 and KING, A.J. pro tem2

SUMMARY:

The Supreme Court affirmed the High Court's ruling dismissing plaintiff-appellants' complaint, which sought to have the courts review internal proceedings of the Nitijela with respect to the passage of an Act.

DIGEST:

1. NITIJELA - Rules - Conflicts of Interest: Pursuant to Rules 8 and 29 of Nitijela Procedure, the Speaker is authorized to raise and rule upon a question of conflict of interest.

2. NITIJELA - Rules - Certification of Acts: Pursuant to Rule 8 of the Nitijela Rules of Procedure, the Speaker is authorized to certify passage of a legislative enactment.

3. COURTS - Jurisdiction - Nitijela Proceeding Non-justiciable: The process by which an Act of the Nitijela becomes a law is within the sole province of the Nitijela not subject to judicial review.

OPINION OF THE COURT BY KING, A.J.

Defendant Speaker Kessai Note and Defendant Clerk Joe Riklon of the Nitijela certified that Nitijela Bill No. 14 ND-2 had been passed by the Nitijela in accordance with the Constitution of the Republic of the Marshall Islands and the Rules of the Nitijela. This legislative bill thus became Public Law 1998-64.

Plaintiffs were and are three voting members of the Nitijela. They are President Imata Kabua, Minister of Foreign Affairs Phillip Muller, and Senator from Majuro Tony de Brum. Their votes were not counted in connection with the passage of Nitijela Bill No. 114 ND-2. They seek in this action to go behind the certification of passage in order to prove that, if any of their votes had been counted, the bill would not have passed.

The dispute arose during the consideration on March 25, 1998, by the Nitijela, of two companion bills, Bill 113 and Bill 114. Bill 113 provided for the repeal of the so-called Gambling Act. Bill 114 provided for the prohibition of gambling activities, including gambling machines, within the Republic.

When these bills came up for consideration, Defendant Note raised the issue of the impropriety of members voting on matters in which the members had a pecuniary interest. He referenced the Ethics in Government Act and Section 29 of the Rules of Procedure of the Nitijela.

Defendant Note stated that he was aware of conflicts of interest of certain members because of their pecuniary interest in gambling machines in the Republic, that he expected members to declare their conflict of interest and not vote on these bills, and if they did not declare their conflict of interest he would declare it, subject to appeal to the Nitijela. (Affidavit of Defendant Note).

According to Defendant Note's affidavit, all three plaintiffs refrained from voting on Bill 113.

When Bill 114 came up for a vote, a motion to file the bill was made by Plaintiff Kabua (Ex. B 1 to the Complaint). Plaintiffs argued that they did not have a conflict of interest when voting on the motion to file because this was a procedural matter not directly related to gambling. Defendant Note rejected that argument and declared that the plaintiffs did have a conflict of interest in relation to the motion to file. (Affidavit of Defendant Note).

In the event, the Speaker did not count the "aye" votes of the three plaintiffs. (Affidavit of Defendant Note). (Defendant Note states that Tony de Brum did not vote on the motion to file. Tony de Brum in his affidavit, Exhibit B3 to the complaint, states that he did. In either case, his vote was not counted.)

Plaintiffs allege that: "This issue, as prejudged by the Speaker was not put to the Nitijela as the rules required." The record before the court does not indicate whether any attempt was made to appeal this ruling to the full body.

The Rules of Procedure of the Nitijela provide in Section 27 that three members may request a vote by call of the roll. According to Defendant Note, the voting on the motion to file was by roll call. The first count was 13 to 13 (not counting plaintiffs' votes). Another Senator's vote which had not been included in the first count was declared to be a "nay" vote making the final result 14 against and 13 for. (There are 33 members of the Nitijela. Three members were absent.)

There was another vote on passage at which Plaintiff Kabua was not present. He left before the vote to attend to other business. (Affidavit of Plaintiff Kabua, Exhibit B 1 to the complaint). The record before the court is silent as to whether the other two plaintiffs attempted to vote on passage of Bill 114.

It is not argued that each of the plaintiffs does not have an interest in gambling machines in the Republic.

Plaintiffs seem to be arguing that (1) the Speaker's application of the conflict of interest rule to the motion to file was in error, either because (a) he had no authority to make such a decision, or (b) he was wrong, or (c) he was not sustained by the vote of the whole body, or (2) his action was "wrongful, unlawful and unconstitutional."

Plaintiffs seek declaratory and injunctive relief as follows:

(1) An order requiring the defendants to count the vote cast by each plaintiff in favor of the motion to file Bill 114 and declaring that the motion to file had carried.

(2) An order declaring that Public Law 1998-64 is null and void.

(3) A preliminary injunction enjoining "the defendants, together with their employees, agents and servants," from enforcing Public Law 1998-64.

(4) A permanent injunction against the same persons prohibiting the enforcement of Public Law 1998-64.

The motion for preliminary injunction was denied earlier.3

We adopt the excellent analysis by Acting Chief Justice Harold van Voorhis set forth in the Order dated July 22, 1998, and repeat here only the main principles that guide our decision. Section 29 of Rules of Procedure of the Nitijela provides:

"A member shall not vote on any matter in which he has a distinct, individual, pecuniary interest, or in which his individual conduct is involved."

This rule was adopted pursuant to Article IV, Section 15(1) of the Constitution which provides:

"Subject to this Section and to any Act, the Nitijela may from time to time make Rules for the regulation and orderly conduct of the proceedings and the despatch of its official business."

Thus Section 29 of the Rules of Procedure of the Nitijela is clearly authorized by this provision of the Constitution and the further provisions of Article 11, Section 16 of the Constitution relating to Ethical Government,4 and of Section 1704 of the Ethics in Government Act of 1993.5

Section 8 of the Rules of Procedure of the Nitijela specifies the functions of the Speaker, among which are the duty to be "responsible for ensuring that the official business of the Nitijela is conducted in compliance with the Constitution and these Rules,"6 and to "authenticate by his signature and cause to be sealed with the official seal of the Nitijela official acts and papers of the Nitijela."7

[1,2] Thus, Speaker Note was clearly authorized to raise and rule upon a question of conflict of interest and to certify passage of a legislative enactment, and Clerk Riklon was clearly authorized to countersign documents signed by the Speaker.

The case then reduces to a question of whether the Speaker and Clerk appropriately and lawfully carried out their duties with respect to the proceedings of the Nitijela on March 25, 1998.

Article IV, Section 16 states in relevant part:

(1) The validity of any proceeding in the Nitijela... and the validity of any certificate duly given by the Speaker under Section ... 21 of this Article ... shall not be questioned in any court; but this shall not be taken to preclude judicial review of the validity of any Act ... of the Nitijela under this constitution.
….
(3) Neither the Speaker nor any officer of the Nitijela in whom powers are vested for the regulation of procedure or the conduct of business or the maintenance of order shall, in relation to the exercise of any of those powers, be subject to the jurisdiction of any court, but this shall not be taken to preclude the exercise of judicial power under Section 7 of Article II or judicial review, in an action against the Clerk of the Nitijela as a nominal defendant, pursuant to Section 9 of this Article.

[3] We note that the provisions of Public Law 1998-64 are not at issue, but only the process by which it became a law. Since the process detailed above was within the sole province of the Nitijela, this court is without jurisdiction to review the official actions of the Speaker and Clerk regarding the proceedings of the Nitijela with respect to Public Law 1998-64.

Brown v. Hansen, 973 F.2d 1118, 1122 (3d Cir. 1992), states the general rule that:

"If defendants' conduct here did not violate any constitutional or statutory provision, the question whether the legislature violated its own internal rules is nonjusticiable."

Marshall Field & Co. v. Clark, 143 U.S. 649, 672 (1892), in holding that federal courts will not inquire into whether an enrolled bill was the bill actually passed by Congress, stated:

The signing by the Speaker of the House of Representatives, and by the President of the Senate, in open session, of an enrolled bill, is an official attestation by the two houses of such bill as one that has passed Congress. It is a declaration by the two houses, through their presiding officers, to the President, that a bill, thus attested, has received, in due form, the sanction of the legislative branch of the government, and that it is delivered to him in obedience to the constitutional requirement that all bills which pass Congress shall be presented to him. And when a bill, thus attested, receives his approval, and is deposited in the public archives, its authentication as a bill that has passed Congress should be deemed complete and unimpeachable .... The respect due to coequal and independent departments requires the judicial department to act upon that assurance, and to accept, as having passed Congress, all bills authenticated in the manner stated: leaving the courts to determine, when the question properly arises, whether the act, so authenticated, is in conformity with the Constitution."

This statement was quoted and cited with approval by Justice Scalia in United States v. Munoz-Flores, 495 U.S. 385,408 (1990).

The Constitution and judicial holdings lead to the conclusion that the courts have no jurisdiction to decide the issues raised in the complaint.

The decision and order of the High Court dismissing the complaint is affirmed.

__________________

1Honorable Alfred T. Goodwin, Senior Judge, United States Court of Appeals for the Ninth Circuit, sitting by designation by the Cabinet.

2Honorable Samuel P King, Senior Judge, United States District Court for the District of Hawaii, sitting by designation by the Cabinet.

3Among other difficulties with the motion is the fact that it is directed to the wrong persons. Enforcement of the gambling laws is the province of the executive. The same difficulty applies to the prayer for a permanent injunction.

4"The Government of the Republic of the Marshall Islands recognizes the right of the people to responsible and ethical government and the obligation to take every step reasonable and necessary to conduct government in accord with a comprehensive code of ethics."

5"To ensure that every citizen can have complete confidence in the integrity of the Government, each public official and Government employee shall respect and adhere to the fundamental principles of ethical conduct set forth below ....

.....
"(6) Public officials and Government employees shall give due disclosure of any conflict of interest such official or employee has or may have in the performance of his or her duties and recuse himself or herself of any involvement on the matter in his or her capacity as such an official or employee.... (underline added)

.....
"(12) Public officials and Government employees shall endeavor to avoid any actions creating the appearance that they are violating the law or ethical standards set forth in this Chapter ......"

6Subsection (1)(b). Also Article IV, Section 8(2) of the Constitution.

7Subsection (2)(g). See also Article 11, Section 8(6) of the Constitution, requiring the countersignature of the Clerk of the Nitijela.