2 MILR 237

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S. CT. CIVIL NO. 04-02
(High Ct. Civil No. 2003-213)

DENNIS P. MOMOTARO and JOHN AND JANE DOES NOS. 1-20,
Plaintiffs-Appellants,

-v-

HEMLEY BENJAMIN, in his capacity as the Chief Electoral Officer,
Defendant-Appellee.

APPEAL FROM THE HIGH COURT

JUNE 22, 2004

CADRA, C.J.
GOODWIN, A.J. pro tem1, and KURREN, A.J. pro tem2

Argued and Submitted May 10, 2004

SUMMARY:

The Supreme Court affirmed the High Court's dismissal of the complaint because it was a nullity when filed, i.e., the complaint was brought in the name of unknown persons. The Supreme Court reversed the High Court's grant of the motion to amend the complaint to add Dennis Momotaro as a named plaintiff. Because of the complaint was a nullity, it could not be amended. The Supreme Court vacated as moot the High Court's holding that the Chief Electoral Officer had properly declined to count ballots mailed together.

DIGEST:

1. APPEAL AND ERROR - Review - Questions of Law- Lack of Jurisdiction: The Supreme Court reviews de novo a dismissal of a complaint for want of jurisdiction.

2. APPEAL AND ERROR - Review - Questions of Law- Failure to State a Claim: The Supreme Court reviews de novo a dismissal of a complaint for failure to state a claim.

3. APPEAL AND ERROR - Questions Reviewable - Questions of Law: The Supreme Court may affirm a dismissal on any ground supported by the record, whether or not the High Court relied on other grounds or reasoning.

4. JURISDICTION - Case and Controversy: To establish High Court jurisdiction, a controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests.

5. SAME - Same - Unknown Persons: A complaint filed on behalf of unknown persons cannot establish a "definite and concrete" controversy because there is only a possibility that a plaintiff will come forward and agree to litigate.

6. CIVIL PROCEDURE - Parties - Proceeding Anonymously: Marshall Islands Rule of Civil Procedure Rule 10's counterpart in the Federal Rules of Civil Procedure has been construed to permit a plaintiff to proceed anonymously under special circumstances, e.g., to avoid retaliation, to avoid disclosure of HIV-positive status, and in abortion and birth control cases.

7. JURISDICTION - Subject Matter - Failure to Contest: A defendant's failure to contest a jurisdictional defect in the complaint cannot confer subject matter jurisdiction any more than a defendant could consent to subject matter jurisdiction.

8. SAME - Same: The High Court acted properly in dismissing sua sponte the complaint.

9. CIVIL PROCEDURE - Pleadings - Amendments: Because the complaint was a nullity, it could not be amended.

10. JURISDICTION - Subject Matter - Lack of: If jurisdiction was lacking, then the court's various orders, including that granting leave to amend the complaint, were nullifies.

OPINION BY GOODWIN, A.J.

Dennis Momotaro and twenty unnamed persons (collectively, "Plaintiffs") appeal the dismissal of their complaint in which they sought to compel the Chief Electoral Officer, Hemley Benjamin ("CEO Benjamin"), to accept and count postal ballots not mailed individually to the election office. We are presented with two issues: (1) whether the High Court erred in dismissing the complaint because no plaintiff was known when the complaint was filed; and (2) whether a complaint without a party plaintiff could be amended after filing to provide a plaintiff. We do not reach a third question: whether the defendant properly rejected Plaintiffs' postal ballots.

I.

A general election was held in the Republic of the Marshall Islands on November 17, 2003. Persons living away from the island where they have land rights were eligible to cast either an "absentee" or a "postal" ballot. An absentee ballot is available if a voter lives on an island other than his or her home island. A postal ballot is available if a voter lives outside of the Marshall Islands. To complete a postal ballot, a voter must mark the ballot, seal the ballot in the ballot envelope, complete an affidavit and place the ballot envelope and the affidavit in a covering reply envelope. The covering reply envelope must be mailed with a postmark on or before the date of the election and be received by the Electoral Office within fourteen days of the election. The Electoral Commission provided stamps to pay the postage required to return the ballots.

Before the election, CEO Benjamin instructed the electoral officials dispatched to the United States to inform voters that postal ballots must be returned individually. Claudia Philippo de Brum, an election official who traveled to the United States, stated that she informed Marshallese voters living in Oregon to return their ballots individually.

Of the more than two-thousand postal ballots received, CEO Benjamin states that twenty-six were not counted because they arrived in envelopes with other ballots, which is to say that one envelope contained more than one ballot. The record is not entirely clear about how the twenty-six ballots arrived. What is clear is that three Express Mail envelopes arrived containing one ballot each, and those ballots were counted. Three other Express Mail envelopes arrived containing two, three and eight ballots, respectively, and those ballots were not counted because they were not sent individually.

On December 8, 2003, twenty "John and Jane Does" filed a complaint. The complaint stated: "The identities of Plaintiffs John and Jane Does Nos. 1-20 ... are unknown at this time. The complaint will be amended to allege their true names, as appropriate, when their identities are ascertained." The complaint sought to compel CEO Benjamin to count all returned ballots and to preclude the announcement of the results in any election decided by fewer than twenty votes.

On December 12, 2003, CEO Benjamin filed his answer. He admitted paragraphs one through nine, which included Plaintiffs' intention to add real persons as plaintiffs as they were located. CEO Benjamin denied that ballots mailed together must be counted.

At a hearing on December 16, 2003, the High Court questioned whether unidentified plaintiffs could bring an action. Plaintiffs responded by amending the complaint to add Momotaro, a candidate for the Nitijela from Mejit Island, as a plaintiff. After further briefing, Plaintiffs filed affidavits from persons living in Oregon who had returned postal ballots. The affidavits explained that the voters returned the ballots in Express Mail envelopes to ensure the ballots arrived in a timely fashion.

On February 17, 2004, the High Court ruled that "[n]amed plaintiffs do not have the capacity to maintain an action and the action is a nullity that can not be amended." (Emphasis omitted.) The High Court found that, contrary to Plaintiffs' assertions, Plaintiffs did not use pseudonyms to protect their identities; Plaintiffs identities were unknown when the complaint was filed. The High Court also concluded that amending the complaint to include Momotaro as a plaintiff did not cure the defect, because, pursuant to Clanton v. Riklon, (No. 2) 1 MILR (Rev.) 156, 159 (Aug 2, 1989), Momotaro did not have standing to litigate on behalf of a class of voters.

In the alternative, the Court reached the merits of the complaint and ruled that CEO Benjamin properly rejected the ballots "based not on the fact that they were in multiples but because the covering reply envelopes were not postmarked as required." The Court denied the request for declaratory judgment.

This appeal ensued.

II.

Plaintiffs argue that the High Court erroneously relied on the absence of identifiable plaintiffs to dismiss the complaint, and that the High Court cannot dismiss a complaint for lack of a proper party, unless the issue is raised by the defendant, which did not occur here. Plaintiffs also contend that Momotaro has standing as a plaintiff, and that the High Court erred by not granting leave to amend to add the Oregon voters' names.

[1-3] We review de novo a dismissal of a complaint for want of jurisdiction and a dismissal for failure to state a claim. Skokomish Indian Tribe v. United States, 332 F.3d 551, 556 (9th Cir. 2003) (jurisdiction); Libas Ltd. v. Carillo, 329 F.3d 1128, 1130 (9th Cir. 2003) (failure to state a claim). We may affirm a dismissal on any ground supported by the record, whether or not the High Court relied on other grounds or reasoning. Flamingo Indus. (USA) v. U.S. Postal Serv., 302 F.3d 985, 997 (9th Cir. 2002). Although the High Court did not base its dismissal on a want of jurisdiction, we conclude that the High Court has no jurisdiction over an action commenced without a known plaintiff.

[4,5] Much like the United States Constitution, which extends federal judicial power to "cases" and "controversies," the Republic of the Marshall Islands Constitution states that the "High Court shall be a superior court of record having general jurisdiction over controversies of law and fact in the Marshall Islands." Art. VI, Sec. 3(1). The U.S. Supreme Court has explained that "[t]he controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests." Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937). A complaint filed on behalf of unknown persons cannot establish a "definite and concrete" controversy because there is only a possibility that a plaintiff will come forward and agree to litigate. Cf. Nat'1 Commodity and Barter Ass'n v. Gibbs, 886 F.2d 1240, 1245 (10th Cit. 1989) ("the federal courts lack jurisdiction over the unnamed parties, as a case has not been commenced with respect to them").

[6] Moreover, Marshall Islands Rule of Civil Procedure 10(a) ("Rule 10") states that "[i]n the complaint the title of the action shall include the names of all the parties." Rule 10's counterpart in the Federal Rules of Civil Procedure has been construed to permit a plaintiff to proceed anonymously under special circumstances. See, e.g., Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000) (to avoid retaliation); Roe v. City of Milwaukee, 37 F. Supp. 2d 1127, 1129 (E.D. WI 1999) (to avoid disclosure of HIV-positive status). As the U.S. Court of Appeals for the Ninth Circuit recognized in Advanced Textile, the U.S. Supreme Court has implicitly condoned the use of pseudonyms by plaintiffs. 214 F.3d at 1067 n.9 (citing, inter alia, Roe v. Wade, 410 U.S. 113 (1973) (abortion); Poe v. Unman, 367 U.S. 497 (1961) (birth control)).

Here, we need not decide whether a voter's interest in maintaining the secrecy of his or her ballot permits the voter to proceed anonymously. As the High Court observed, the complaint omitted the Plaintiffs' names because they were unknown, not because the Plaintiffs wanted to maintain the secrecy of their ballots. The inability to name a plaintiff is not a special circumstance that excuses the requirement in Rule 10 that the plaintiff's name be listed. Thus, the complaint also violated Rule 10.

[7, 8] Plaintiffs' assertion that the High Court acted ultra vires in dismissing the complaint is also unavailing. A defendant's failure to contest a jurisdictional defect in the complaint cannot confer subject matter jurisdiction any more than a defendant could consent to subject matter jurisdiction. Cf. Sosna v. Iowa, 419 U.S. 393, 398 (1975) ("While the parties may be permitted to waive non jurisdictional defects, they may not by stipulation invoke the judicial power of the United States in litigation which does not present an actual 'case or controversy'......."). The High Court acted properly in dismissing sua sponte the complaint. Cf. Gibbs, 886 F.2d at 1245 n.3 (A complaint filed by unnamed persons, without permission from the court to proceed anonymously, "is jurisdictional and the court may consider it sua sponte.").

[9,10] We also agree with the High Court that, because the complaint was a nullity, it could not be amended. The Ninth Circuit has stated: "[W]e must examine [plaintiff's] original complaint to determine whether the claim alleged therein was one over which the district court had jurisdiction. If jurisdiction was lacking, then the court's various orders, including that granting leave to amend the complaint, were nullities." Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d 1376, 1381 (9th Cir. 1988) (as amended). Momotaro was not named in the original complaint; he was added as a plaintiff in an attempt to cure the jurisdictional defect. Without jurisdiction to consider the complaint, the High Court could not allow the complaint to be amended to add Momotaro as a plaintiff. It follows that the High Court properly denied Plaintiffs' request for leave to the amend the complaint.

Finally, we must add a word about the procedural posture of this case. The record indicates that the attorney, acting on his own volition,3 sought to contest the election by filing an action on behalf of unknown persons whom he intended to identify and whom he believed would be dissatisfied by defendant's refusal to count their ballots. This exceeds the bounds of an attorney's role in the judicial system. No matter how laudable the goal, an attorney cannot file at anticipatory complaint, then seek and locate a proper plaintiff and attempt an untimely amendment.

III.

The High Court's dismissal of the complaint is AFFIRMED. Because the complaint was a nullity when filed, we REVERSE the High Court's grant of the motion to amend the complaint to add Momotaro. The High Court's alternative holding, that CEO Benjamin properly declined to count ballots mailed together, is VACATED as moot.

____________

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

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

3We acknowledge that the attorney may have acted at the direction of a real person wishing to contest the election. However, without evidence in the record to support this hypothesis, we may not assume that the attorney acted for a client with a bona fide claim.