2 MILR 170

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 00-06
(High Ct. Civil No. 1997-261)

THE REPUBLIC OF THE MARSHALL ISLANDS,
Plaintiff,

-v-

AMERICAN TOBACCO COMPANY, et al.,
Defendants.

REMOVAL BY THE HIGH COURT

MARCH 27, 2001

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

SUMMARY:

The Supreme Court denied Defendants' motion to dismiss conditionally without prejudice to re-file in a proper forum. The Court found that the courts of the Republic and potential jurors did not have disqualifying interests in the outcome of the litigation.

DIGEST:

1. APPEAL AND ERROR - Review - Discretionary Matters - Motions in General: The standard of review of the High Court's order denying the motions may be reversed only for an abuse of discretion.

OPINION BY FIELDS, C.J.

Defendants filed a motion to disqualify the courts in the Republic of the Marshall Islands from hearing this action and requesting that this action be dismissed conditionally without prejudice, to re-file in a proper forum.

It is alleged as a basis for this motion that (1) the judges and jurors alike have a disqualifying interest in the outcome of the litigation; (2) the relationship between the citizens of the Republic and their government, the translational barriers and the absence of jury experience in the Republic; (3) the RMI's government early termination of a judge's contract originally assigned to this case; and (4) an alleged long history of the RMI's government interference with the judiciary.

The trial court denied Defendants' motion to disqualify the courts and granted Defendants' motion ordering this matter removed to the Supreme Court pursuant to Art. VI, Section 2(3) of the RMI's Constitution, which provides for the removal of "any question arising as to the interpretation or effect of the Constitution in any proceeding of the High Court." Defendants allege the constitutional question is whether the Defendants' right to due process of law guaranteed by Art. 11, Section 4 would be violated by a trial by a jury of RMI citizens or by a judge in the Marshall Islands.

[1] The standard of review of the High Court's order denying the motions may be reversed only for an abuse of discretion. Thomassen v. United States, 835 F.2d 727 (9th Cir, 1987). Defendants arguments are without merit. The judges and jurors of the Marshall Islands are not parties to this law suit and will not directly receive any damages that may be recovered. While the attorneys appearing in this case are trained in the law in the United States and some are licensed and continue to practice there, they have failed to cite any case from the United States that prevents judges or jurors in those jurisdictions from hearing these same claims brought before there.

The Constitution of the Republic of the Marshall Islands was adopted in 1979 and insures certain rights to all citizens, especially those set forth in Article II, entitled “Bill of Rights.” Art. I, Section 1(1) provides "This Constitution shall be the supreme law of the Republic of the Marshall Islands; and all judges and other public officers shall be bound thereby." Article I, Section 2(2) states "Any other action taken by any person or body on or after the effective date of this Constitution which is inconsistent with this Constitution, shall, to the extent of the inconsistency, be unlawful." Article I, Section 3(2) states "In all cases, the provisions of this Constitution shall be construed to achieve the aims of fair and democratic government, in the light of reason and experience."

Prior to the constitutional guarantees of the rights given to all citizens, the iroij had virtually complete domination over their subjects. The Constitution was enacted with the full support of the iroij. The complete dominion by the iroij over their subjects no longer exists. The Preamble of the Constitution states "WE THE PEOPLE OF THE REPUBLIC OF THE MARSHALL ISLANDS, trusting in God, the Giver of our life, Liberty, identity and our inherent rights, do hereby exercise these rights and establish for ourselves and generations to come this Constitution, setting forth the legitimate legal framework for the governance of the Republic." The citizens are free to exercise their own minds and not be influenced by others. The President of the Republic, who is not an Iroij was elected and has prevailed over the Iroij. There is no doubt that the citizens can serve as fair and impartial jurors in any trial in the Marshall Islands.

Translational difficulties can be involved in any trial. Until the courts throughout the world provide for only jurors as well as judges who are experts in the subject matter in the controversy before the courts, there may be some problems. In the meantime we must rely upon the expertise of the attorneys in conducting their voir dire of the jurors, and in their presentation of the evidence during the course of the trial.

The Constitution provides in Article VI for the Judiciary in the Republic. Section 1 of that Article provides in (1) "The judicial power of the Republic of the Marshall Islands shall be independent of the legislative and executive powers and shall be vested in a Supreme Court, a High Court, a Traditional Rights Court, and such District Courts, Community Courts and other subordinate courts as are created by law, each of these courts possessing such jurisdiction and powers and proceeding under such rules as may be prescribed by law consistent with the provisions of this Article." The term of the non-Marshallese judge shall be for a term of one or more years set by the Cabinet. Art. VI. Section 1(4).

Historically the term has been set by the Cabinet, and the Judge is confirmed by the Nitijela for the usual term which has been for a total of 4 years. Either party, after two years, may terminate the employment without stating any reason. A judge may be removed during these two years only by impeachment.3

The judges of the Marshall Islands have subscribed to and are dedicated to the concept of the independence of the judiciary, asset forth in the Constitution of the Republic. See the attached appendix "A" being a report of the Judiciary to the Nitijela, by the Chief Justice of the Supreme Court and dated February 9, 1998, and the attached "Beijing Statement" wherein the Marshall Islands is a signatory to the accord.

Judges do not serve at the pleasure of the Government, but rather for the terms set forth by the Cabinet. In all the cases set forth by the Defendants no judge was fired, but instead they resigned. This does not excuse the attempted interference with the judiciary. No judge made any decision to please the government, rather they gave up their employment. The decisions to resign were great losses to the judiciary and more importantly a greater loss to the Marshallese people. The resignations of the Chief Justice of the High Court, Witten Philippo, and the Chief Justice of the Supreme Court, Clinton Ashford, were a result of the most egregious conduct of an American attorney, James McCaffrey. He was formerly an employee of the Nitijela who became dissatisfied with the decisions of the both judges, and went to the Cabinet and distorted the truth either through ignorance or a direct attempt to advance his own position of power or influence.4

In the most recent case of attempted interference with the Judiciary, again it was an American attorney, David Lowe, who was acting as the legal advisor to the President, Imata Kabua, and as legal advisor to the RMI Cabinet, who was the author of an initially anonymous unjustified scurrilous diatribe against the then Chief Justice of the High Court, Dan Cadra. His later acknowledgment as the author came when the Marshall Islands Journal on Friday, October 9, 1998, re-printed his statement. This newspaper article has been cited in Defendants' Index of Pleadings at tab 3, exhibit K. It is unfortunate that the attorneys omitted the other articles on the same page wherein several opposition Senators spoke out in opposition to Lowe's position and stated "It was expected that political interference by foreign advisors such as David Lowe would advise the government party to disregard the judicial decisions rendered by the High court as has been the case in previous court judgments involving David Lowe as counsel." Also on the same page and also omitted from Defendants citation are the statements by a former Chief Justice of the High Court and then Senator, Witten Philippo, who is presently the Minister of Justice. Minister Philippo was quoted as saying "Lowe had no business issuing such an inflammatory statement against the High Court Chief Justice. The executive branch should treat the judicial branch with due deference, just as the judiciary does to the executive."

Also omitted from Defendants' citation is the article in the Marshall Islands Journal dated October 22, 1999, wherein Senator Wilfred Kendall in reference to Lowe's statement was quoted as saying "those trying to interfere with the Judiciary wanted the government to be an outlaw not a government of law. People are losing confidence in the government because of actions like attorney David Lowe's criticism of the judges."

The Minister of Justice at that time, Hemos Jack, in responding to High Court Chief Justice Dan Cadra's notice that he would serve out his term and then become a judge in Palau, mistakenly considered this notice as a resignation. The Minister was advised in a letter dated June 9, 1999, from the Chief Justice of the Supreme Court, that Cadra could only be removed at that time by a mutual agreement of the judge and the Cabinet. This was ultimately done. The Minister was further advised to discuss this matter with David Lowe the legal advisor to the Cabinet. Assuming the Minister did so, he still persisted in treating Cadra's notice as a resignation.5 The Defendants again only cite half of the story in their citation in tab 3, exhibit N, being the article under the headline "Supreme Court Ignorant?." The article quotes Lowe's criticism of the Supreme Court's affirmation of Cadra's decision in In the Matter of the 19th Nitijela Const Reg. Ses., 2 MILR 134 (Sep 8, 1999). See Marshall Islands Journal October 1, 1999. To complete the story the attorneys should have referred to the Marshall Islands Journal headlines of October 15, 1999. "Supreme Court Chief to Pres. Imata Kabua, LOWE NEEDS ENGLISH LESSON," and the article following, including the letter addressed to the President that was also printed therein. See attached Appendix D.

While much is made of the attempted interference by the government, no mention is made of the support for the judiciary by other members of the Nitijela including the present President, Kessai Note. As reported in the Marshall Islands Journal of May 5, 2000, under headlines "President, Kessai Note says gov't must keep HANDS-OFF THE COURTS." The article states "Majuro-Marshall Islanders have to insure that the court's constitutional right to act independently is not violated by political leaders, President Kessai Note said in remarks at the swearing in of Supreme Court Chief Justice Allen Fields Wednesday. "During the past 20 years, we've seen the independence of the judiciary chipped away by personal interests involved in the judicial system.... It's incumbent upon ourselves - the citizens of the RMI - to return to the judiciary its rightful authority and power so it can exercise its independent responsibility under the constitution." Note reiterated his administration's support of the independence of the judiciary to insure that the courts are kept free "of any political influence that might hamper the court's duties to deliver fair and just decisions for the Marshallese people." He thanked the panel of three Supreme Court judges - which included former High Court C.J. Dan Cadre and U.S. Circuit Court of Appeals Judge Alfred Goodwin - for their earlier rulings that had a "profound effect" on democracy in the Marshall Islands."

The Marshall Islands Journal on December 22, 2000, quoted the powerful U.S. Senator from North Carolina, Jesse Helms, "I will be hard-pressed even to consider supporting the RMI's request (for future U.S. financial support) or, for that matter, engaging in serious discussion regarding renegotiation of the Compact. I share the view that the process of renegotiating the Compact of Free Association should be seen for what it is - an opportunity to promote the implementation of democratic principles in the RMI." He then goes on to discuss the alleged interference with the courts and particularly, Judges Cadra, and Johnson, both American citizens serving as Judges in the Marshall Islands. It can be gleaned from his comments that his information has come from the pleadings filed by the Defendants in this case. It is obvious that he is relying only on part of the true facts, and some of his statements even though they are an attempted inference not only with the judiciary but with the government of the RMI as well, can be excused because of the limited information given to him.

In Defendants' Memorandum of points and authorities on page 1 there appears the statement that "But the action cannot be tried to the Court either because of the Government's repeated pattern of infringing the independence of the judiciary (including the unconscionable and illegal firing of the former Chief Justice in this very case) has rendered the judicial structure of this country constitutionally inadequate to the task of ensuring the fair and impartial bench trial of this suit, in which the Government has an overwhelming interest .... Apparently the American attorneys are unfamiliar with the continuing struggle of the courts in the United States to have and to keep their independence. With the election of Thomas Jefferson as President of the United States, in 1800, along with the then called "Republicans" that later became known as "Democrats" that controlled the House as well as the Senate, a reign of terror descended upon the Judiciary. Jefferson controlled the executive and legislative branches and set out to replace all the federalist judges appointed by his predecessor, President Adams. To accomplish this, the Judiciary Act of 1801 would first be abolished by the new Congress. By repealing the Act of 1801, they would abolish the positions and the 38 federal judges appointed by the Federalists. President Jefferson asserted that he alone, as President, had the authority and power to decide the constitutionality of federal laws. The debate was so heated that several states discussed leaving the Federal Union. The Jeffersonian Republicans decided to first impeach Associate Justice Samuel Chase from the Supreme Court and then would follow with the impeachment of John Marshall, their main target. Jefferson stated "To consider the judges as the ultimate arbiters of all constitutional questions would place us under the despotism of an oligarchy." Chief Justice Marshall responded "The constitution is either a superior paramount law, unchangeable by ordinary means or it is on a level with ordinary legislative acts alterable when the Legislature shall please to alter it. It is emphatically the province and duty of the judicial department to say what the law is. This is the very essence of judicial duty." Marshall then in the case of Marbury v. Maddison, pronounced that the Supreme Court had the power to decide Constitutional questions. The attacks upon Marshall and the Supreme Court continued throughout Jefferson's term as President. See "The Life of John Marshall" by Albert Beveridge, Volume 111, of four volumes, Chapters 1, 2, and 3, pages 1-222, published in 1919.

The fight against interference with the U.S. Supreme Court and the struggle to maintain its independence continues to this day. There was a concerted effort during the time Earl Warren was Chief Justice. The John Birch Society had the support of many Legislators and put up signs on large bill boards throughout the United States calling for the impeachment of the Chief Justice. In 2000, Governor Gray Davis, following his election as Governor of the State of California; called for the resignation of any Judge who he appointed that did not follow his ideas as to the law. On February 3, 2001, the Associated Press reported that Justice Ruth Ginsburg of the U.S. Supreme Court, in a speech to the University of Melbourne Law School on February 1, 2001, regarding the independence of the Judiciary, had some harsh words about House Republican Whip Tom Delay's 1997 proposal to impeach federal judges whose rulings he believed did not follow the law. It is fortunate today that the officials in the government of the Marshall Islands no longer follow their counterparts the United States, by attempting to interfere with the judiciary.

The Defendants' motion to disqualify the Courts in the Marshall Islands is hereby denied.

GOODWIN AND KURREN ARE CONCURRING SPECIALLY

We concur in the denial of the motion to disqualify the courts. We do not join in the historical material contained in the Order for the reason that we do not believe that material to be necessary to our decision on the removed question before us.

PUBLISHER'S NOTE: FOR EXHIBITS SEE S.CT.'S FILE.
______________

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

2Honorable Barry M. Kurren, Magistrate Judge, District of Hawaii, sitting by designation of the Cabinet.

3On March 8, 2000, the most recent appointment to the courts by the Nitijela was for a 6 year term, without any option to terminate. 21th Constitutional Regular Session, Resolution No. 18 reappointing to the Supreme Court, Chief Justice Allen P. Fields.

4The Supreme court in file No. S.Ct. Civil No. 95-02 dated January 10, 2000, in dismissing McCaffrey's claims stated "The deliberate misleading and unwarranted actions of Attorney McCaffrey resulted in the resignation of the two finest justices to serve the Judiciary and the citizens of the Marshall Islands." He was further ordered to abstain from taking any further action in that case and any violation of those orders could result in suspending his right to practice law in the Marshall Islands." See Appendix B, attached, 2 MILR 157 (Jan 10, 2000).

5(See letter dated June 9, 1999 attached as Appendix C, from Chief Justice of the Supreme Court also advising the Minister as to the independence of the judiciary.)