REPUBLIC OF THE MARSHALL ISLANDS LAW REPORTS

 

DIGEST FOR MILR Vol. 1 (Rev.), Vol. 2 and Interim Vol. 3

 

Published by:

Carl B. Ingram
Chief Justice, High Court
P.O. Box B Majuro, MH 96960, Marshall Islands
Tel. 692-625-3201/3297; Fax 692-625-3323
Email: [email protected]

December 31, 2007

MILR Vol. 1 (Rev.), Vol. 2, and Interim Vol. 3 DIGEST

 

TABLE OF CONTENTS

 

 

 

Abatement of Actions	Judgments
Appeal and Error	Jurisdiction
Appeal to the High Court
Appearance	Laches
Arbitration	Land Management
Attorneys	Land Rights
Broadcast Communications	Maritime Liens
	Mortgages
Civil Procedure
Clerks of Courts	Nitijela
Collateral Estoppel	Nuclear Claims Tribunal
Common Law
Conflicts of Interest	Parties
Constitutional Law	Public Officers
Contempt
Corporations	Res Judicata
Courts
Criminal Law and Procedure	Service of Process
Custom	Stare Decisis
	Statutes
Damages
	Torts
Elections and Voting	Trial Assistants
Equity	Trust Territory Courts Decisions
Evidence
	War Claims Act
Immigration and Emigration	Witnesses
	Writs, Extraordinary
Judges

 

 

 

 

A

 

ABATEMENT OF ACTIONS

 

Nature and Grounds

 

A second suit will be abated by a first only if there are the same parties, the same rights asserted, and the same relief prayed for, which must be founded on the same facts or essential basis. (Clanton v. MI Chief Elec. Off. (3), 1 MILR (Rev.) 167, 170 (1989))

 

"Same" as used in stating and applying principles of abatement does not mean "identical" causes of action and relief sought. It means the "essential basis" must be the same. (Clanton v. MI Chief Elec. Off. (3), 1 MILR (Rev.) 167, 170 (1989))

 

APPEAL AND ERROR

 

Affirm, Grounds for

An appellate court can affirm a trial court on any ground supported by the record.  This rule has been applied to criminal proceedings.  (RMI v. Lemark, 3 MILR 18, 26 (2006))

Assignment of Errors

- Objections

 

Counsel has a duty to protect his record by timely objection is one such rule. (RMI v. Menke, 1 MILR (Rev.) 36, 39 (1986))

 

When error is claimed in receipt of evidence or in any other ruling by the trial court, it is counsel's duty to protect his record, and preserve the question for appellate review, by timely objection. (Lokken v. Nakap, 1 MILR (Rev.) 69, 70 (1987))

 

Chief Electoral Officer

 The Supreme Court will not to substitute its judgment for that of the Chief Electoral Officer based on the information submitted to him unless his decision is a clear departure from statutory requirements, is fraudulent or in bad faith, arbitrary, capricious, without basis in the evidence, or his decision is one which no reasonable mind could have reached. (Bien v. MI Chief Elec. Off., 2 MILR 94, 96 (1997))

 

If the record supports the Chief Electoral Officer's decision, it is conclusive upon the court and the respondent's action must be sustained and will not be disturbed by the court. (Bien v. MI Chief Elec. Off., 2 MILR 94, 97 (1997))

 

Decisions Reviewable

- Decisions on Appeal to High Court

 

An appeal as of right from any final decision of the High Court in the exercise of its appellate jurisdiction will lie only if the High Court certifies that the case involves a substantial question of law as to the interpretation or effect of any provision of the Constitution. (Clanton, et al., v. MI Chief Elec. Off. (1), 1 MILR (Rev.) 146, 150)

 

The filing of an appeal in the manner provided by the present Rules of Appellate Procedure sufficiently invokes the power of the Court to determine whether jurisdiction lies under any of the three provisions of Article VI, s 2 of the Constitution to review a decision of the High Court made in the exercise of the High Court's appellate jurisdiction. (Clanton, et al., v. MI Chief Elec. Off. (1), 1 MILR (Rev.) 146, 150 (1989))

 

The Supreme Court's discretion to grant, or indeed to order up, an appeal pursuant to Article VI, s 2(2)(c) of the Constitution appears to be unfettered, but exercising discretion imports a reasoned, mature, and responsible exercise of judicial authority. (Clanton, et al., v. MI Chief Elec. Off. (1), 1 MILR (Rev.) 146, 150 (1989))

 

- Finality of Determination

 

An Order for Possession issued by the High Court in an eminent domain proceeding is not a final order and is not appealable. (RMI v. Balos, et al. (1), 1 MILR (Rev.) 53, 53 (1987))

 

An order declining to certify a matter to the Traditional Rights Court is not a final appealable order. (Bokmej v. Lang and Jamore, 1 MILR (Rev.) 85, 85 (1987))

 

Under Article VI, s 2(2) of the Constitution of the Marshall Islands, an appeal may be taken to the Supreme Court only from any final decision of the High Court, as of right, or from any final decision of any court in the discretion of the Supreme Court. (Piamon v. Lanitur-Bulele, 1 MILR (Rev.) 129, 129 (1989))

 

A final judgment or order is one that disposes of the case, whether before or after trial. After such an order or judgment, there is nothing further for the trial court to do with respect to the merits and relief requested. (Lemari, et al., v. Bank of Guam, 1 MILR (Rev.) 299, 300 (1992))

 

The Constitution, statutes, rules and case law in this jurisdiction establish that only a final adjudication, however styled, can be appealed. Article VI, Section 2(2) of the Constitution states that appeals lie to the Supreme Court only from "final decision(s)." (Lemari, et al., v. Bank of Guam, 1 MILR (Rev.) 299, 301 (1992))

 

The Supreme Court has consistently held that appeals from interlocutory orders will not be entertained. (Lemari, et al., v. Bank of Guam, 1 MILR (Rev.) 299, 301 (1992))

 

Insofar as an order of the High Court denies a motion for summary judgment, it is interlocutory only. (Labwidrik, et al. v. Candle, 2 MILR 1, 2 (1993))

 

Insofar as an order of the High Court grants a motion for summary judgment, the order is a final decision of the High Court. (Labwidrik, et al. v. Candle, 2 MILR 1, 2 (1993))

 

Except with respect to (1) matters removed by the High Court to the Supreme Court pursuant to Article VI, s 2(3) of the Constitution, and (2) review of orders granting, dissolving or denying an injunction issued by the Nuclear Claims Tribunal or the Special Tribunal, pursuant to 42 MIRC Ch. 1, s 6(3), the Supreme Court is without power to entertain interlocutory appeals. (Labwidrik, et al. v. Candle, 2 MILR 1, 2 (1993))

 

To the extent that an appeal is from that part of the order granting the motion for summary judgment, it will be allowed only if the High Court certifies to this Court within 30 days of filing of this Order or such longer time as the High Court may request, that the claims of Plaintiff with respect to which the High Court granted summary judgment against Plaintiff-Appellant are: (a) severable from and may be considered without reference to (I) the other claims of Plaintiff and (ii) the claims of other parties, and (b) there is no just reason to delay consideration of the order on appeal. Absent such certification by the High Court, which the Supreme Court requires as assurance that hearing the appeal will neither confuse nor delay the determination of the remaining claims by the High Court, any appeals must await entry of final judgment by the High Court on all claims of all parties. (Labwidrik, et al. v. Candle, 2 MILR 1, 2 (1993))

 

An appeal shall lie only from a final decision. (RMI v. ATC, et al. (1), MILR 133, 133; AMI v. Dornier (1), 2 MILR 180, 180 (2001))

 

Only final judgments are reviewable. (RMI v. ATC, et al. (4), 2 MILR 181, 186 (2002))

 

Voluntary dismissals, granted without prejudice are not final decisions and do not transform an earlier partial dismissal or partial summary judgment order into a final decision. (RMI v. ATC, et al. (4), 2 MILR 181, 186 (2002))

 

Dismissal, Grounds for

- Failure to Identify Errors

 

The notice of appeal must contain a "concise statement of the questions presented by the appeal." The Court may decline to hear an appeal where it cannot be determined from the notice of appeal what the alleged error was. (Abner, et al., v. Jibke, et al., 1 MILR (Rev.) 3, 4 (1984))

 

The notice of appeal must identify the errors claimed. (Jerilong, et al., v. Hazzard, 1 MILR (Rev.) 90, 91 (1988))

 

Failure to include a concise statement of the questions presented, in the notice of appeal, is grounds for dismissal. (Korok v. Lok, 1 MILR (Rev.) 93, 95 (1988))

 

Failure to include in the notice of appeal a concise statement of the questions presented is grounds for dismissal. (Rang, et al., v. Lajwa, 1 MILR (Rev.) 214, 214 (1990))

 

The Court may decline to hear an appeal where it cannot be determined from the notice of appeal what the alleged error was. (Bulale and Jamore v. Reimers and Clarence, 1 MILR (Rev.) 259, 260 (1992))

 

- Failure to Designate Record

 

Appellant's failure to designate the record is grounds for dismissal. (RMI v. Laibwij, 1 MILR (Rev.) 208, 208 (1990))

 

Appellant's failure to in a timely manner either order from the reporter a transcript of such parts as the trial court proceedings that appellant deemed necessary or to certify that no parts of the proceedings will be ordered and file a statement of points of error is grounds for dismissal. (Konou v. Konou, 2 MILR 101, 101 (1997))

 

Appellant's failure to in a timely manner either order from the reporter a transcript of such parts as the trial court proceedings that appellant deemed necessary or to certify that no parts of the proceedings will be ordered and file a statement of points of error is grounds for dismissal. (In the Estate of Harry Anjen, 2 MILR 103, 103 (1997))

 

- Noncompliance with the Rules

 

Rule 20(a) provides that failure of appellant to comply with the rules after filing notice of appeal is ground for dismissal of the appeal. (Lorennij v. Muller, 1 MILR (Rev.) 21, 22 (1985))

 

Appellant filed the notice of appeal before the appellate court rather than the trial court as required by rule. (MIDC and Leon v. MALGOV and RMI (1), 1 MILR (Rev.) 135, 136 (1989))

 

- Failure to Pay Fees and Costs

 

Rule 16 of Appellate Rules of Procedure allows thirty (30) days from service of notice of estimated cost of transcription for appellant to make payments. (Lorennij v. Muller, 1 MILR (Rev.) 21, 22 (1985))

 

Failure to timely pay the cost of the transcript of trial court proceedings is grounds for dismissal. (Leon, et al., v. Balos, 1 MILR (Rev.) 55, 55 (1986))

 

Failure to timely pay estimated cost of transcript does not affect jurisdiction to hear appeal, but may be grounds for dismissal. (Korok v. Lok, et al., 1 MILR (Rev.) 93, 94 (1988))

 

Appellant's failure to timely pay costs for production of the transcript of trial court proceedings. (Jacob v. MI Chief Elec. Off., 1 MILR (Rev.) 128, 128 (1989))

 

- Failure to Timely File Notice

 

Timely filing of the notice of appeal is necessary for the appellate court to have jurisdiction to hear the appeal. (RMI v. Balos, et al. (3), 1 MILR (Rev.) 120, 121 (1988))

 

Rule 4 of the Appellate Rules of Procedure and 6 TTC s 352 require an appeal to be filed within thirty (30) days. Timely filing is jurisdictional. (Jejo v. Lobo (2), 1 MILR (Rev.) 127, 127 (1989))

 

Failure to timely file a notice of appeal is grounds for dismissal. (Edwin v. Elbi, 2 MILR 26, 26)

 

The Supreme Court on its on motion dismissed the appeal for the failure to timely file a notice of appeal. (Jack v. Langidrik, 2 MILR 76, 76 (1996))

 

- Failure to Timely File Opening Brief

 

Appellant's failure to timely file an opening brief is grounds for dismissal. (Adding v. MI Chief Elec. Off., 1 MILR (Rev.) 126, 126 (1989); Premier Film and Eq. v. Mc Quinn, 1 MILR (Rev.) 131, 131 (1989); Konelios v. MI Chief Elec. Off., 1 MILR (Rev.) 132, 132 (1989); RMI v. Lang, 1 MILR (Rev.) 207, 207 (1990); Neylon v. Jeik, 1 MILR (Rev.) 237, 237 (1991); Majuwi v. Jorauit, et al., 1 MILR (Rev.) 238, 238 (1991); and In the Matter of the Estate of Zaion, 2 MILR 118, 119 (1998))

 

Under Section 206(4) of the Judiciary Act and SCRP Rules 30 and 42(b), the failure to file an opening brief within the required time is grounds for dismissal.  (Alik v. PSC, 3 MILR 12, 15 (2006))

Mootness

 

An appellate court should retain jurisdiction in the face of mootness when the matter involves a recurring controversy of great public interest. (Heine v. Radio Station WSZO and GM, 1 MILR (Rev.) 122, 124 (1988))

 

Nuclear Claims Tribunal and Special Tribunal

 

Section 6(3) of the Marshall Islands Nuclear Claims Tribunal Act (1987), as amended, clearly speaks in the disjunctive, permitting the Supreme Court to entertain an appeal from the final determination of the Tribunal or a Special Tribunal. It does not authorize a single appeal from both a final determination of the Special Tribunal the determination of the Tribunal declining to review it. (Samson, et al., v. Rongelap Atoll LDA, 1 MILR (Rev.) 280, 284 (1992))

 

The Supreme Court's current tentative view is that an appeal from a final determination of a Nuclear Claims Special Tribunal should not be entertained unless it suffers from one or more of the defects specified in the Marshall Islands Administrative Procedures Act 1979, ss 17(7)(a) through (f). (Samson, et al., v. Rongelap Atoll LDA, 1 MILR (Rev.) 280, 285 (1992))

 

The Supreme Court has tentatively concluded that probably it should not entertain an appeal from the Nuclear Claims Tribunal or Special Tribunal unless it appears likely that the action appealed from suffered from one or more of the defects specified in s 17(7)(a) through (f) of the Marshall Islands Administrative Procedures Act 1979, 6 MIRC Ch. 1.

(Defender of the Fund v. Rongelap Atoll LDA, 1 MILR (Rev.) 289, 291 (1992))

 

- Standard of Review

 

The standard for Supreme Court review of a finding by the Nuclear Claims Tribunal that the decision of a Special Tribunal did not involve a matter of public importance would be de novo if it is a mixed question of law and fact or clearly erroneous if it is a question only of fact. (Samson, et al., v. Rongelap Atoll LDA, 1 MILR (Rev.) 280, 284)

 

The standard for Supreme Court review of the action of the Nuclear Claims Tribunal in declining to exercise its discretion in favor of reviewing the decision of a Special Tribunal is abuse of discretion. (Samson, et al., v. Rongelap Atoll LDA, 1 MILR (Rev.) 280, 284)

 

Parties

- Amicus Curiae

 

The function of a friend of the court is to assist in assuring that the court is fully advised. He is expected to and usually does take an adversary position. (Clanton, et al. v. MI Chief Elec. Off (2), 1 MILR (Rev.) 156, 158 (1989))

 

Questions Reviewable

- Asserted Below

 

Matters as to which no objection was made at trial will not be considered on appeal. (Ebot v. Jablotok, 1 MILR (Rev.) 8, 10 (1984))

 

An appellate court cannot rule on the merits of a question that was neither presented to, nor decided by, the officer, body or court appealed from. (Clanton, et al., v. MI Chief Elec. Off. (1), 1 MILR (Rev.) 146, 153 (1989))

 

The Supreme Court cannot decide on appeal a question or claim not raised or asserted in the court below. (Jeja v. Lajimkam, et al., 1 MILR (Rev.) 200, 205 (1990))

 

As a general rule, an appellate court will not consider any matter that was not raised by way of an objection in the trial court. (RMI v. de Brum (1), 2 MILR 223, 226 (2002))

 

The decision of whether to reach the merits of an issue not raised below is a decision within the discretion of the court. (RMI v. de Brum (1), 2 MILR 223, 226 (2002))

 

It is well settled in this jurisdiction, as elsewhere, that issues or questions not raised or asserted in the court below are waived on appeal.  (Tibon v. Jihu et al., 3 MILR 1, 5 (2005))

- Contained in Notice

 

Rule 3 of the Rules of Appellate Procedure provides that "only questions set forth in the notice of appeal or fairly comprised therein will be considered by the court." (Lokkon v. Nakap, 1 MILR (Rev.) 69, 70 (1987))

 

- Cross Appeal

 

In the absence of a timely filed cross appeal, the Supreme Court will not rule upon a claimed error of the High Court raised in the brief of the Appellee. (MIDC and Leon v. MALGOV and RMI (2), 1 MILR (Rev.) 209, 210 (1990))

 

An appellee need not cross-appeal from a judgment in order to assert an argument which supports the judgment as entered, even where the argument being raised has been explicitly rejected by the lower court. (Abija v. Bwijmaron, 2 MILR 6, 13 (1994))

 

- Questions of Law

 

Generally, the Supreme Court will not consider a matter which has not been raised by way of objection in the trial court; however, an appellate court may take up a question of law on its own motion, if there is a basis for it in the record. (RMI v. Digno, 1 MILR (Rev.) 18, 19 (1984))

 

Supreme Court is free to consider questions of law not considered in briefs or argument. The Court is free to recognize clear error. (RMI v. Kabua, 1 MILR (Rev.) 39, 40 (1986))

 

When a decision is presented to the appellate court, that court is required to reach the appropriate legal conclusion. Whether the trial court has made a proper or an improper decision on an issue of law is irrelevant. (Gushi Bros Co. v. Kios, et al., 2 MILR 120,125 (1998))

 

An appellate court may take up a question of law, on its own motion, if there is a basis for it in the record. (RMI v. de Brum (1), 2 MILR 223, 226 (2002))

 

Appellate review of a claim raised for the first time on appeal is permitted if: (1) there are "exceptional circumstances" why the issue was not raised at trial; (2) the new issue arises while the appeal is pending because of a change in the law; (3) the issue presented is purely one of law and the opposing party will suffer no prejudice as a result of the failure to raise the issue at trial; or (4) plain error has occurred and injustice might otherwise result. (RMI v. de Brum (1), 2 MILR 223, 227 (2002))

 

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. (Momotaro, et al., v. Chief Elec. Off., 2 MILR 237, 241 (2004))

 

Record and Proceedings Not in Record

 

An appeal is on the record. Neither enlargement of the grounds for complaint nor the presentation of additional evidence nor a hearing de novo is encompassed within the ordinary meaning of appeal. (Clanton, et al., v. MI Chief Elec. Off. (1), 1 MILR (Rev.) 146, 151 (1989))

 

Facts outside that record, unless subject to judicial notice, will not be considered. (Maj. Stev. & Ter. Co., Inc., v. Alik and Alik, 1 MILR (Rev.) 257, 257 (1992))

 

Appeals are on the record, without reference to current circumstances, other than those that render the appeal moot or otherwise justify departure from consideration of the record alone. (Samson, et al., v. Rongelap Atoll LDA, 1 MILR (Rev.) 280, 287 (1992))

 

An appeal is limited to the record of evidence introduced and proceedings taken in the lower court. (So. Seas Marine Corp. v. Reimers, 2 MILR 58, 64 (1995))

 

An appeal is on the record; it is not a new trial. Additional evidence, including statements of purported fact in counsel's argument, will neither be accepted nor considered. (Likinbod and Alik v. Kejlat, 2 MILR 65, 66 (1995))

 

It is well settled that an appeal is on the record which existed at the time the appeal was taken. (Bien v. MI Chief Elec. Off., 2 MILR 94, 97 (1997))

 

Review

- Discretionary Matters

 

Under the abuse of discretion standard, the reviewing court will reverse only where no   reasonable person would have acted as the trial court did.  (Pacific Basin, Inc. v. Mama Store, 3 MILR 33, 35-36 (2007))

- - 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. (RMI v. ATC, et al. (3), 2 MILR 170, 171 (2001))

 

The standard of review for the denial of a motion to reopen discovery is abuse of discretion. (RMI v. ATC, et al. (4), 2 MILR 181, 193 (2002)).

 

The proper standard of review for a single Supreme Court judge's order is "abuse of discretion. (Alik v. PSC, 3 MILR 12, 15 (2006))

- - Continuances

 

Abuse of discretion is the standard of review of trial court's declining to grant a continuance and allowing a trial assistant to sit at counsel table with appellee's counsel. (Ebot v. Jablotok, 1 MILR (Rev.) 8, 10 (1984))

The decision to grant or deny a requested continuance is within the trial court's discretion and will not be disturbed on appeal absent clear abuse of that discretion.  (RMI v. Lemark, 3 MILR 18, 22 (2006))

 

- - Default Judgments

 

Whether to grant a motion to set aside a default judgment is within the discretion of the trial court. Abuse of discretion is the standard of review. (TT Soc. Sec. Sys. Board v. Kabua, 1 MILR (Rev.) 83, 84 (1987))

 

The standard of review for a High Court's refusal to set aside a default judgment under MIRCP Rule 48(a) is abuse of discretion. (Stanley v. Stanley, 2 MILR 194, 198 (2002))

 

- - Dismissals

 

An appellate court can only reverse a trial court's decisions to dismiss a case for failure to prosecute if the appellate court finds the trial court abused its discretion and its decisions is [sic] "clearly erroneous." (Lokot and Kabua v. Kramer, et al., 2 MILR 89, 92 (1997))

 

It is presumed the trial judge acted reasonably and reversal may occur only if it is plain either that the dismissal was a mistake or that the Judge did not consider factors essential to the exercise of a sound discretion. (Lokot and Kabua v. Kramer, et al., 2 MILR 89, 92 (1997))

 

- - Disqualification of Attorneys

 

The Standard of Review of a court's ruling on a motion for an attorney's disqualification is whether the ruling was an abuse of discretion. (Kabua v. Kabua, et al., 1 MILR (Rev.) 96, 110 (1988))

 

The standard of review of a court's ruling on a motion for an attorney disqualification is abuse of discretion. (So. Seas Marine Corp. v. Reimers, 2 MILR 58, 61 (1995))

 

- - Evidentiary Matters

 

The trial court's decision regarding evidentiary matters will be reviewed only for an abuse of discretion. (Elmo v. Kabua, 2 MILR 150, 154 (1999))

 

The standard for review of evidentiary ruling is abuse of discretion. (RMI v. ATC, et al. (4), 2 MILR 181, 187 (2002))

 - - Motion to Vacate Judgement

The reviewing court reviews the denial of a Rule 60(b) motion for an abuse of discretion. (Pacific Basin, Inc. v. Mama Store, 3 MILR 33, 35 (2007))

Because review of the denial of Rule 60(b) relief is deferential, the reviewing court must affirm if the trial court adequately considered the reasons for neglect and the reasons did not compel a finding of excusable neglect.  (Pacific Basin, Inc. v. Mama Store, 3 MILR 33, 36 (2007))

- Findings of Fact

 

Findings of fact by the trial court will not be set aside unless clearly erroneous. (Abner, et al., v. Jibke, et al., 1 MILR (Rev.) 3, 5 (1984))

 

Findings of fact of the High Court cannot be set aside unless clearly erroneous, P.L. 1983-18. (RMI v. Menke, 1 MILR (Rev.) 36, 37 (1986))

 

An appellate court will not set aside findings of fact of a trial court unless they are "clearly erroneous." (RMI v. Langley, 1 MILR (Rev.) 45, 46 (1986))

 

Findings of fact of the High Court in trials before it shall not be set aside by the Supreme Court unless clearly erroneous. (Lokken v. Nakap, 1 MILR (Rev.) 69, 72 (1987))

 

Findings of fact by the High Court are not to be set aside by the Supreme Court unless found to be clearly erroneous. (Mwedriktok v. Langijota and Abija, 1 MILR (Rev.) 172, 174 (1989))

 

Findings of fact are reviewed to determine if they are clearly erroneous. (Lobo v. Jejo, 1 MILR (Rev.) 224, 225 (1991); Zaion, et al., v. Peter and Nenam, 1 MILR (Rev.) 228, 233 (1991))

 

The Findings of Fact by the High Court are not to be set aside by the Supreme Court unless found to be clearly erroneous. (Elmo v. Kabua, 2 MILR 150, 153 (1999))

 

Findings of fact are reviewed for clear error. (Stanley v. Stanley, 2 MILR 194, 199 (2002))

 

If the alleged error is based upon factual findings, the court will reverse or modify if the findings are clearly erroneous. (Jack v. Hisaiah, 2 MILR 206, 209 (2002))

 

A finding of fact as to the custom is to be reversed or modified only if clearly erroneous. (Tibon v. Jihu et al., 3 MILR 1, 6 (2005))

- - Clearly Erroneous

 

A finding of fact is clearly erroneous when review of the entire record produces a definite and firm conviction that the court below made a mistake. (Lobo v. Jejo, 1 MILR (Rev.) 224, 225; Zaion, et al., v. Peter and Nenam, 1 MILR (Rev.) 228, 233)

 

A Findings of fact is clearly erroneous when review of the entire record produces a definite and firm conviction that the Court below made a mistake (Elmo v. Kabua, 2 MILR 150, 153)

 

"A Finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Elmo v. Kabua, 2 MILR 150, 153)

 

A finding is clearly erroneous when the entire record produces a definite and firm conviction that the court below made a mistake. (Jack v. Hisaiah, 2 MILR 206, 209 (2002))

A finding of fact is "clearly erroneous when a review of the entire record produces "a definite and firm conviction that the court below made a mistake." (Tibon v. Jihu et al., 3 MILR 1, 6 (2005))

- Harmless Error

 

Errors by the court below are not grounds for an appellate court to disturb a judgment unless refusal to do so would be inconsistent with substantial justice. (Abner, et al., v. Jibke, et al., 1 MILR (Rev.) 3, 5 (1984))

 

To warrant appellate intervention, error in admitting or excluding evidence, or in any ruling or order of the court must be so prejudicial to the rights of a party as to be inconsistent with substantial justice, 6 TTC Section 351. (RMI v. Menke, 1 MILR (Rev.) 36, 37 (1986))

 

Improper admission of evidence is not grounds for reversal if it appears there is sufficient evidence to justify the decision, independently of the evidence to which objection was made. (Bulale and Jamore v. Reimers and Clarence, 1 MILR (Rev.) 259, 262 (1992))

 

Assuming the evidence was improperly admitted, such admission "is not grounds for reversal if it appears there is sufficient evidence to justify the decision, independently of the evidence to which the objection was made." Further any such error must affect "a substantial right of the party" otherwise it will be deemed harmless error. (Elmo v. Kabua, 2 MILR 150, 154 (1999))

 

- Presumptions

 

Appellate court has a duty to make every reasonable presumption in favor of the correctness of the decision of the lower court. (Ebot v. Jablotok, 1 MILR (Rev.) 8, 10 (1984))

 

- Questions of Fact

 

Appellate courts will not interfere with findings of the trial court which are supported by credible evidence. (Ebot v. Jablotok, 1 MILR (Rev.) 8, 9 (1984))

 

An appellate court does not weigh the evidence. (RMI v. Langley, 1 MILR (Rev.) 45, 46 (1986))

 

An appellate court must refrain from re-weighing the evidence and must make every reasonable presumption in favor of the trial court's decision. (Les Nor. Boat Repair, et al., v. O/S Holly, et al., 1 MILR (Rev.) 176, 179 (1989))

 

Appellate Courts will not interfere with the findings of the trial court which are supported by credible evidence. (Elmo v. Kabua, 2 MILR 150, 153 (1999))

 

An Appellate Court must refrain from re-weighing the evidence and must make every reasonable presumption in favor of the trial court's decision. (Elmo v. Kabua, 2 MILR 150, 153 (1999))

 

There is credible evidence to support the findings of the trial court and this court will not re-weigh the evidence, but must make every reasonable presumption in favor of the trial court's decision. (Elmo v. Kabua, 2 MILR 150, 154 (1999))

 

- Questions of Law

 

Matters of law are reviewed de novo. (Lobo v. Jejo, 1 MILR (Rev.) 224, 225 (1991))

 

A question concerning waiver of affirmative defenses, and specifically res judicata and collateral estoppel, involves the interpretation of Rule 8(c) of the Marshall Islands Rules of Civil Procedure and thus it is a question of law reviewed de novo. (Abija v. Bwijmaron, 2 MILR 6, 14 (1994))

 

The High Court's interpretation of the Marshall Islands Constitution is a question of law which is reviewed de novo. (Abija v. Bwijmaron, 2 MILR 6, 15 (1994))

 

The appellate court reviews questions of law, such as res judicata, de novo. (Gushi Bros Co. v. Kios, et al., 2 MILR 120, 125 (1998))

 

Both issues [the right to counsel and the constitutionality of an Act] are questions of law which are reviewed de novo. (In the Matter of P.L. No. 1995-118, 2 MILR 105, 106 (1997))

 

Purely or predominantly legal issues are reviewed de novo. (Stanley v. Stanley, 2 MILR 194, 199 (2002))

 

Although typically the standard of review for a denial of a motion to vacate a judgment under MIRCP Rule 48(a) is abuse of discretion, where the motion to vacate is based on an assertion of a void judgment under MIRCP Rule 48 (a)(4), the standard of review is de novo. (Stanley v. Stanley, 2 MILR 194, 199 (2002))

 

The standard of review for this Court is if the alleged error is one of law, the court will review the matter de novo. (Jack v. Hisaiah, 2 MILR 206, 209 (2002))

 

The Court reviews the denial of a motion to dismiss based upon a claim of foreign sovereign immunity de novo. (Pac. Int'l, Inc., v. U.S.A. and U.S. Dept. Of the Army, 2 MILR 244, 248 (2004))

 

- - Failure to State a Claim

 

The Supreme Court reviews de novo a dismissal of a complaint for failure to state a claim. (Momotaro, et al., v. Chief Elec. Off., 2 MILR 237, 241 (2004))

 

- - Lack of Jurisdiction

 

The Supreme Court reviews de novo a dismissal of a complaint for want of jurisdiction. (Momotaro, et al., v. Chief Elec. Off., 2 MILR 237,241 (2004))

 

- - Summary Judgment

 

The standard of review of the trial court's grant or denial of summary judgment is de novo. (Ammu v. Ladrik, et al., 2 MILR 20, 22 (1994))

 

The standard of review for summary judgment is de novo. (RMI v. ATC, et al. (4), 2 MILR 181, 189 (2002))

 

APPEAL TO THE HIGH COURT

 

Decisions of Chief Electoral Officer

 

Reviews by the High Court of the decisions of the Chief Electoral Officer pursuant to 2 MIRC Ch. 1, s 81(1) are performed by the High Court in the exercise of its appellate jurisdiction. (Clanton, et al., v. MI Chief Elec. Off. (1), 1 MILR (Rev.) 146, 149 (1989))

 

APPEARANCE

 

Distinction Between General and Special Abolished

 

The provision of Rule 12(b) of the Marshall Islands Rules of Civil Procedure, that defenses or objections are not waived by joinder with other defenses or objections, abolished the distinction between general and special appearances. (Gushi Bros. Co. Hawaiian Flour Mills, et al., 1 MILR (Rev.) 239, 241 (1991))

 

ARBITRATION

 

Agreement to Arbitrate

 

It is well-settled that arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. (AMI v. Dornier (2), 2 MILR 211, 216 (2002))

 

The existence of an agreement to arbitrate must be determined by the court. (AMI v. Dornier (2), 2 MILR 211, 216 (2002))

 

ATTORNEYS

 

Agent for Client

 

Parties are liable for the violations of their attorneys. (Lokot and Kabua v. Kramer, et al., 2 MILR 89, 91 (1997))

 

Disqualification

- Code of Professional Responsibility

 

Disciplinary Rule 7-104 clearly proscribes negotiations by any lawyer with another person who is represented by counsel without first obtaining the permission of that person's lawyer. (Kabua v. Kabua, et al., 1 MILR (Rev.) 96, 111 (1988))

 

- Communicating With Other Counsel's Client

 

In determining whether an attorney should be disqualified because of an alleged violation of Disciplinary Rule 7-104, three competing interests must be balanced: (1) the client's interest in being represented by counsel of its choice; (2) the opposing party's interest in a trial free from prejudice due to disclosures of confidential information; and (3) the public's interest in the scrupulous administration of justice. (Kabua v. Kabua, et al., 1 MILR (Rev.) 96, 111 (1988))

 

- Opposing Former Client

 

Where the cause of action or matters involved in a former suit are substantially related to the present action, an attorney who represented a client in that former suit should not represent his adversary in the present action. (Kabua v. Kabua, et al., 1 MILR (Rev.) 96, 111 (1988))

 

- Prejudice

 

An attorney is not disqualified if his previous representation of the opposing party did not involve disclosure to him of confidential information prejudicial to that party in the pending case. (So. Seas Marine Corp. v. Reimers, 2 MILR 58, 61 (1995))

 

Duty to Client

- Client's Funds

 

The RMI Legal Aid Office also has the duty not to commingle public funds with its client's funds. ABA Model Code of Professional Responsibility Canon 9, EC 9-5. (In the Matter of the Audit of the RMI Legal Aid Office, 2 MILR 80, 87 (1997))

 

- Confidences and Secrets

 

ABA Model Code of Professional Responsibility, Canon 4 (1980 version) provides that "[a] lawyer should preserve the confidences and secrets of a client." DR 4-101 (A) defines "confidence" and "secret": "Confidence" refers to information protected by the attorney client privilege under applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would likely to be detrimental to the client. (In the Matter of the Audit of the RMI Legal Aid Office, 2 MILR 80, 85 (1997))

 

It is not an ethical violation to disclose a client confidence or secret if required by law. See DR 4-101 (c)(2). (In the Matter of the Audit of the RMI Legal Aid Office, 2 MILR 80, 85 (1997))

 

Fees

 

Under "common law" attorney's fees are not awarded to the prevailing party in the absence of an agreement between the parties or a statute authorizing the award of attorney's fees. (Anitok v. Binejal, 2 MILR 114, 117 (1998))

 

Privileges, Disabilities, and Liabilities

- Requirement to Associate Local, Licensed Co-counsel

 

Absent a duly adopted universal rule to that effect, conditioning an attorney's right to appear before the Nuclear Claims Tribunal upon his associating local, licensed co-counsel, requires that the attorney be accorded due process. (Brown v. NCT, 1 MILR (Rev.) 264, 268 (1992))

 

Representation

 

A corporation represented by a non-attorney throughout the trial and appellate proceeding cannot claim error for such representation where the question was not presented to or decided by the lower court. (So. Seas Marine Corp. v. Reimers, 2 MILR 58, 64 (1995))

 

Suspension and Disbarment

- Complaints

 

An order of the Nuclear Claims Tribunal referring an attorney to the Marshall Islands Standing Committee on Professional Conduct is not appealable. (Brown v. NCT, 1 MILR (Rev.) 264, 268 (1992))

 

B

 

BROADCAST COMMUNICATIONS

 

Candidates Programs

- Regulations

 

35 TTC s 51 requires that "free access" be given to any candidate for public office, and that any "program ... shall be broadcast as submitted without any preview or censorship." 35 TTC s 52 provides that each station may promulgate rules which limit the duration of programs. (Heine v. Radio Station WSZO and GM, 1 MILR (Rev.) 122, 123 (1988))

 

C

 

CIVIL PROCEDURE

 

Claims

- When Made

 

As a general rule, a plaintiff should not be prevented from pursuing a valid claim just because he did not set forth in the complaint a theory on which he could recover, "provided always that a late shift in the thrust of the case will not prejudice the other party in maintaining his defense upon the merits." (Anitok v. Binejal, 2 MILR 114, 116 (1998))

 

Default Judgments

- Burden of Proof to Set Aside

 

When a default judgment has been entered, the party seeking to set aside the judgment bears the burden of proving that MIRCP Rule 48(a) relief is justified and that a meritorious defense exists. (Stanley v. Stanley, 2 MILR 194, 198 (2002))

 

- Disposition on the Merits Preferred

 

A trial on the merits is favored over default judgment and that close cases should be resolved in favor of the party seeking to set aside default judgment. (Stanley v. Stanley, 2 MILR 194, 198 (2002))

 

- Entry of Default

 

No notice or hearing is required for entering default. (AMI v. Dornier (2), 2 MILR 211, 221 (2002))

 

- Grounds to Set Aside

 

The factors to be considered in determining "good cause" under FRCP 55(c) [MIRCP44] and "excusable neglect" under FRCP 60(b) [MIRCP48(a)] are the same; a court will deny relief if (l) there was culpable conduct by the defaulting party causing the default, (2) the defaulting party had no meritorious defense, or (3) such relief will prejudice the non-defaulting party. A court may deny relief even if only one of the above elements exists. (AMI v. Dornier (2), 2 MILR 211, 219 (2002))

 

Defendant's failure to answer complaint was culpable when defendant had filed motions to extend their time to answer, indicating an ability to deal with legal requirements. (AMI v. Dornier (2), 2 MILR 211, 219 (2002))

 

To show the existence of meritorious defense, the defaulting party must make a presentation or proffer of evidence, which, if believed, would permit either the Court or the jury to find for the defaulting party. (AMI v. Dornier (2), 2 MILR 211, 220 (2002))

 

With respect to prejudice to the non-defaulting party, the standard is whether plaintiff's ability to pursue its claim will be hindered. (AMI v. Dornier (2), 2 MILR 211, 220 (2002))

 

Discovery

- Production of Documents

 

Orders for production of documents are discretionary and will not normally be interfered with on appeal, unless the action was improvident and affected substantial rights. (Guaschino v. Reimers and Reimers, 2 MILR 49, 54 (1995))

 

Dismissal, Grounds for

Two related doctrines prevent parties from revisiting previously decided matters; res judicata and collateral estoppel.  (Ueno v. Abner and Hosia, et al., 3 MILR 28, 30 (2007))

Indispensable Parties

- Dismissal for Failure to Join

 

The determination and propriety of a dismissal of an action for failure to join an indispensable party is within the discretion of the trial court and the standard of review is abuse of discretion. (Kabua v. Kabua, et al., 1 MILR (Rev.) 96, 104 (1988))

 

A court must first order joinder of indispensable parties, and only if plaintiff then fails to comply with the order is the court justified in dismissing the action. (Kabua v. Kabua, et al., 1 MILR (Rev.) 96, 107 (1988))

 

Joinder of Parties

- Compulsory

 

MIRCivP Rule 19 mirrors Rule 19 of Federal Rules of Civil Procedure and as such MIRCivP Rule 19 carries the construction placed upon it by the Federal Courts. (Kabua v. Kabua, et al., 1 MILR (Rev.) 96, 104 (1988))

 

- Burden of Persuasion

 

The party asserting the necessity of joinder of indispensable parties must identify them and has the burden of persuading the court that they are actually indispensable. (Kabua v. Kabua, et al., 1 MILR (Rev.) 96, 105 (1988))

 

- Requirements

 

MIRCivP Rule 19 requires a trial court to engage in a two-step analysis. The first step is to consider whether nonjoinder would prevent the award of complete relief, or the absentee's interest would otherwise be prejudiced or the persons already parties would be subject to a substantial risk of double or inconsistent obligations. The second step is to decide under MIRCivP Rule 19(b) whether "in equity and good conscience" a court should proceed without absent parties. (Kabua v. Kabua, et al., 1 MILR (Rev.) 96, 105 (1988))

 

Motions

- Continuance

 

A motion for continuance is addressed to the sound discretion of the court. (Lokkon v. Nakap, 1 MILR (Rev.) 69, 70 (1987))

 

- Summary Judgment

 

Summary judgment is determined on the basis of the record, including affidavits. Unsworn statements of counsel will not be considered. (USA Small Bus. Adm. v. Trans Atoll Ser. Corp., 1 MILR (Rev.) 57, 58 (1986))

 

- - Proof of Damages

 

Without a reasonable methodology, summary judgment against the Government is appropriate because the jury is left with no proper proof of damages. City of Vernon v. Southern Gal. Edison Co., 955 F.2d at 1372. (RMI v. ATC, et al. (4), 2 MILR 181, 192 (2002))

 

- - Record

 

The pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, collectively, are the record of the case. (Ammu v. Ladrik, et al., 2 MILR 20, 22 (1994))

 

Summary judgment is determined on the basis of the record. (Ammu v. Ladrik, et al., 2 MILR 20, 22 (1994))

 

- - Unsworn Statements

 

Un-sworn statements and arguments in a memorandum of counsel, filed with a Motion For Summary Judgment, cannot be considered as establishing fact. (Ammu v. Ladrik, et al., 2 MILR 20, 23 (1994))

 

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. (Momotaro, et al., v. Chief Elec. Off., 2 MILR 237, 242 (2004))

 

Pleadings

- Amendments

 

Because the complaint was a nullity, it could not be amended. (Momotaro, et al., v. Chief Elec. Off., 2 MILR 237, 242 (2004))

 

- Affirmative Defense or Avoidance

 

The general rule regarding res judicata and collateral estoppel is that they must be pleaded in the answer or other responsive pleading or they are waived. Marshall Islands Rules of Civil Procedure, Rules 8(c), 12(b). (Abija v. Bwijmaron, 2 MILR 6, 14 (1994))

 

Service of Process

- Service by Publication

 

Where plaintiff's attempts to serve defendant at his last know address are to no avail, service by publication is the only option remaining and is therefore appropriate. (Stanley v. Stanley, 2 MILR 194, 200 (2002))

 

Service of process by court ordered service by publication is effective and proper under 27 MIRC s 255. (Stanley v. Stanley, 2 MILR 194, 200 (2002))

 

Sanctions

- Dismissal of Action

 

Dismissal of an action under MIRCivP Rule 11 must be predicated on findings of subjective bad faith in bringing the action and severe prejudice to, or misleading of, the party against whom the action was brought. (Kabua v. Kabua, et al., 1 MILR (Rev.) 96, 108 (1988))

 

CLERKS OF COURTS

 

Duties

- Performance

 

Complaints concerning failure of or refusal by the Clerk of Courts to accept a Notice of Appeal or to certify the record should be presented to the Supreme Court by a motion, supported by affidavit and exhibits, and proposed order. (Kabua v. H. Ct. Chief Justice, et al., 1 MILR (Rev.) 27, 29 (1986))

 

COLLATERAL ESTOPPEL

 

Distinguished from Res Judicata

 

The doctrine of collateral estoppel is different from the doctrine of res judicata in that, instead of preventing a second assertion of the same claim or cause of action, the doctrine of collateral estoppel prevents a second litigation of issues between the same parties or their privies even in connection with a different claim or cause of action. (Zaion, et al., v. Peter and Nenam, 1 MILR (Rev.) 228, 235 (1991))

 

Effect

Collateral estoppel bars subsequent suits based on issues that were already actually decided in a prior action. (Ueno v. Abner and Hosia, et al., 3 MILR 28, 30 (2007))

Timeliness

 

The affirmative defense of collateral estoppel may not be raised for the first time on appeal. (Zaion, et al., v. Peter and Nenam, 1 MILR (Rev.) 228, 236 (1991))

 

COMMON LAW

 

In General

 

The Supreme Court is obliged to follow common law in the absence of any provision in the Republic of the Marshall Islands Constitution, or in any custom or traditional practices of the Marshallese people or act of the Nitijela to the contrary. (1 TTC 103). (RMI v. Waltz, 1 MILR (Rev.) 74, 77 (1987))

 

Constitutional Law

- Continuance of Common Law

 

The framework of governance provided by the Constitution continued the common law in effect as the governing law, in the absence of customary law, traditional practice or constitutional or statutory provisions to the contrary. (Likinbod and Alik v. Kejlat, 2 MILR 65, 66 (1995))

 

CONFLICTS OF INTEREST

 

Attorneys

- Multiple clients

 

No lawyer can represent parties whose interests are in direct conflict. (In the Matter of P.L. Nos. 1993-56 and 1994-87, 2 MILR 27, 45 (1995))

 

A lawyer cannot, without violating the standards of conduct pertaining to conflicts of interest, represent multiple clients who assert claims in an aggregate amount exceeding the amount of the fund from which those claims are to be satisfied. Reason dictates the same result if the possibility exists that the fund might prove to be inadequate or it is probable that lengthy delay in obtaining payment from the fund will be encountered. (In the Matter of P.L. Nos. 1993-56 and 1994-87, 2 MILR 27, 46 (1995))

 

CONSTITUTIONAL LAW

 

Constitutionality of Statutes

- P.L. 1993-56

 

P.L. 1993-56, insofar as it prohibits claimants from retaining private legal counsel in connection with claims brought under the NCT Act and limits them to utilization of the services of the Public Advocate, deprives claimants of timely, effective and conflict-free representation. It is, therefore, in violation of the due process guarantee of Article II, Section 4(1) of the Constitution and is void. (In the Matter of P.L. Nos. 1993-56 and 1994-87, 2 MILR 27, 47 (1995))

 

- P.L. 1994-87

 

P.L. 1994-87 does not prevent any person, other than the administrator of an estate, from employing counsel and asserting whatever rights he claims with respect to the assets and obligations of the estate. The statute prohibits only the administrator, in his fiduciary capacity, from employing private counsel. If and to the extent that the administrator, in his personal capacity, is interested in the estate, the statute is inapplicable to that interest, which also may be protected through the use of private counsel. (In the Matter of P.L. Nos. 1993-56 and 1994-87, 2 MILR 27, 38 (1995))

 

The limited interference in the administration of certain estates, with the right of a party to a civil action to be represented by counsel of his choice, effected by P.L. 1994-87, does not offend the guarantee of due process in Article II, Section 4(1) of the Constitution. (In the Matter of P.L. Nos. 1993-56 and 1994-87, 2 MILR 27, 29 (1995))

 

Construction
- Article I, Section 4(c) and Article II, Section 14(1)

Taken together, RMI Const. Art. I, Sec. 4(c) (denying sovereign immunity) and RMI Const., Art. II, Sec. 14(1) (guaranteeing access to the court system) guarantee the citizens of RMI the right to sue their government in a court of law.  (Bujen and Wase v. RMI, et al., 3 MIRC 8, 9 (2005))

- Article VI

 

Article VI, section 4(5) mandates that when a question has been certified to the Traditional Rights Court for its determination, its resolution of the question shall be given substantial weight in the certifying court's disposition of the legal controversy before it, which means that the certifying court is to review and adopt the decision of the Traditional Rights Court unless that decision is clearly erroneous or contrary to law. (Abija v. Bwijmaron, 2 MILR 6, 15 (1994))

 

It is well settled that it is the High Court's duty to review the decision of the Traditional Rights Court and to adopt that decision unless it is clearly erroneous or contrary to law. (Tibon v. Jihu et al., 3 MILR 1, 6 (2005))

- Article VIII

 

The word "public" in Article VIII, Section 13 of the Constitution does not necessarily limit the word "accounts." (In the Matter of the Audit of the RMI Legal Aid Office, 2 MILR 80, 83 (1997))

 

There is no constitutional restriction prohibiting the audit by the Auditor General of the accounts of statutory authority such as the Office of Legal Aid. There is a constitutional requirement that the Auditor General shall perform such an audit and report any irregularities in the account to the Nitijela, Article VIII, Section 15(4). (In the Matter of the Audit of the RMI Legal Aid Office, 2 MILR 80, 83 (1997))

 

Client trust accounts of the RMI Legal Aid Office, even if containing private funds, are "relevant" and "related to" the Auditor General's investigation of RMI Legal Aid's use of public funds. (In the Matter of the Audit of the RMI Legal Aid Office, 2 MILR 80, 86 (1997))

 

The Auditor General has the authority to audit a government program, such as RMI Legal Aid, to determine whether the desired results or benefits of the program are being achieved, (In the Matter of the Audit of the RMI Legal Aid Office, 1 MILR (Rev.) 80, 87 (1997))

 

- Rules of Interpretation

 

Article I, s 3(1) mandates that the courts of the Marshall Islands, in interpreting and applying the Constitution, shall look to the decisions of courts of countries having constitutions similar in the relevant respect. (RMI v. Sakaio, 1 MILR (Rev.) 182, 184 (1989))

 

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. (Kabua v. Kabua, et al., 1 MILR (Rev.) 247, 251 (1991))

 

Under Article I, s 3(1) of the RMI Constitution, the Court may look to court decisions of the United States as well as generally accepted common law principles for guidance. (In the Matter of P.L. No. 1995-118, 2 MILR 105, 109 (1997))

 

In the absence of some textual or logical support, the Supreme Court will not read into the Constitution a provision not contained therein. (In the Matter of the 19th Nitijela Const. Reg. Ses., 2 MILR 134, 140 (1999))

 

- Construction of Statutes:

 

The Constitution is the supreme law of the Republic and any statute that is inconsistent with it is void to the extent of the inconsistency. (In the Matter of P.L. Nos. 1993-56 and 1994-87, 2 MILR 27, 34 (1995))

 

The presumption of constitutionality is a strong one, and a court must make every effort to find an interpretation of a statute that is consistent with the Constitution. (In the Matter of P.L. Nos. 1993-56 and 1994-87, 2 MILR 27, 34 (1995))

 

The Court is entitled to look to, without being bound by, the decisions of United States courts for guidance in determining the effect of the Constitution on challenged statutes when the challenges are based on provisions in the Constitution that are similar to provisions in the United States Constitution. (In the Matter of P.L. Nos. 1993-56 and 1994-87, 2 MILR 27, 35 (1995))

 

Disqualification of Judge

 

Article VI, s 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. (Balos, et al., v. H.Ct. Chief Justice, 1 MILR (Rev.) 137, 147 (1989))

 

Due Process

- In General

 

The concept of due process protects rights that cannot be denied without violating fundamental principles of liberty and justice. (In the Matter of P.L. Nos. 1993-56 and 1994-87, 2 MILR 27, 37 (1995))

 

- Accused's Right to Counsel

 

Few constitutional protections are as fundamental to ensuring a fair trial for the accused as the right to the assistance of counsel. This right is guaranteed by Article II, s 4(4) of the Constitution. (RMI v. Sakaio, 1 MILR (Rev.) 182, 184 (1989))

 

- Presumptions and Burden of Proof

 

The "conclusive evidence" clause of s 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. (Balos, et al., v. H.Ct. Chief Justice, 1 MILR (Rev.) 137, 142 (1989))

 

- Procedural

 

Constitutional due process in contempt proceedings requires that the defendant be given reasonable notice of the charges and opportunity to be heard. (Balos, et al., v. H.Ct. Chief Justice, 1 MILR (Rev.) 137, 141 (1989))

 

Due process requires, at a minimum, that deprivation of life, liberty, or property by adjudication be preceded by notice and opportunity for hearing. (Navarro and Velasco v. Chief of Police, 1 MILR (Rev.) 161, 165 (1989))

 

The minimum elements of due process guaranteed by Article II, s 4(1) of the Constitution are notice and the opportunity to be heard. (Brown v. NCT, 1 MILR (Rev.) 264, 268 (1992))

Procedural "due process" only requires adequate notice and an opportunity to be heard. (Pacific Basin, Inc. v. Mama Store, 3 MILR 33, 35 (2007))

- Right to Counsel

 

It has long been recognized that in criminal proceedings, due process includes the right to the assistance of counsel of one's choice. (In the Matter of P.L. Nos. 1993-56 and 1994- 87, 2 MILR 27, 37 (1995))

 

Recent cases have recognized that the right to counsel is also preserved by the due process clause in civil cases. (In the Matter of P.L. Nos. 1993-56 and 1994-87, 2 MILR 27, 37 (1995))

 

It is also established that the right to counsel preserved by the due process clause extends to administrative proceedings as well as to courtroom proceedings. (In the Matter of P.L. Nos. 1993-56 and 1994-87, 2 MILR 27, 37 (1995))

 

Even in a criminal case the right to have a particular attorney is not absolute, and in civil cases a party's right to choose its own counsel can be overridden. (In the Matter of P.L. Nos. 1993-56 and 1994-87, 2 MILR 27, 37 (1995))

 

The right to counsel in civil matters ordinarily includes the right to retain counsel of one's choice. (In the Matter of P.L. Nos. 1993-56 and 1994-87, 2 MILR 27, 37 (1995))

 

A private company has a due process right to counsel of its choice. (In the Matter of P.L. No. 1995-118, 2 MILR 105, 112 (1997))

 

Equal Protection

 

Equal protection of the laws is expressly guaranteed by the Constitution, Article II, Section 2(1), and is also inherent in the due process guarantee of Article II, Section 4(1). (In the Matter of P.L. Nos. 1993-56 and 1994-87, 2 MILR 27, 39 (1995))

 

- Constitutionality of P.L. 1994-87

 

P.L. 1994-87 is social legislation with a classification based on value. That classification is rationally related to a legitimate state interest, preserving cash from awards made by the NCT. The Equal Protection challenge to the statute, therefore, must fail. (In the Matter of P.L. Nos. 1993-56 and 1994-87, 2 MILR 27, 40 (1995))

 

- Tests for Measuring

 

The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate government interest. When social or economic legislation is at issue, wide latitude is allowed. (In the Matter of P.L. Nos. 1993-56 and 1994-87, 2 MILR 27, 39 (1995))

 

When a statute classifies by race, alienage or national origin, or impinges on personal rights protected by the Constitution, it will be subjected to strict scrutiny and will be sustained only if suitably tailored to serve a compelling government interest. (In the Matter of P.L. Nos. 1993-56 and 1994-87, 2 MILR 27, 39 (1995))

 

Nitijela

- Vote of No Confidence

 

Members of the Nitijela are under an obligation to vote on a motion of no confidence once noticed. The language of Article 1, s 2(2) that requires the vote to be held not earlier than 5 days nor later than 10 days is not permissive and suggests that prompt action by the Nitijela is not only recommended but required. (In the Matter of the 19th Nitijela Const. Reg. Ses., 2 MILR 134, 140 (1999))

 

Privacy

 

Both ordinary and truncated estate administration procedures are in a public forum and open to inquiry by anyone interested. The inclusion of NCT awards in an estate so administered does not violate any right of privacy assured by Article II, Section 13 of the Constitution. (In the Matter of P.L. Nos. 1993-56 and 1994-87, 2 MILR 27, 37 (1995))

 

Unreasonable Search and Seizure

- Exclusion of Evidence

 

Since an unlawful arrest is a violation of Article II, Section 3(1) and (2) of the Republic of the Marshall Islands Constitution, all evidence obtained through that arrest is inadmissible (Art. II, Sec. 3(5), RMI of the Marshall Islands Constitution). (RMI v. Waltz, 1 MILR (Rev.) 74, 79 (1987))

 

CONTEMPT

 

Nature and Elements

 

Contempt is civil in nature if sanctions are remedial and conditional upon compliance and is criminal if punitive and unconditional. (Balos, et al., v. H.Ct. Chief Justice, 1 MILR (Rev.) 137, 142 (1989))

 

CORPORATIONS

 

In General

 

The Marshall Islands National Telecommunication Authority is a private corporation, and is not an instrumentality or agent of the RMI government because: (1) it is not wholly owned by the RMI, that is, the government does not own all assets of NTA or all the stocks of NTA [28% of the issued stock has been purchased by private individuals, (Ex. B)]; (2) it is operated for profit; (3) it is not primarily engaged or even engaged at all, in the administration of government; (4) the board of NTA is not exclusively controlled by the government; (5) and, the government is not entitled to all profits and does not risk all losses of NTA, rather private shareholders' money is also at risk. Even though NTA provides telecommunication to the public at large, it remains a private corporation. (In the Matter of P.L. No. 1995-118, 2 MILR 105, 111 (1997))

 

COURTS

 

Composition

 

A trial court not constituted as required by law lacks jurisdiction determine cases before it. (RMI v. Digno, 1 MILR (Rev.) 18, 20 (1984))

 

High Court

 

A High Court judge who was not present at a hearing before the Traditional Rights Court may nevertheless render a final judgment based on the findings of the Traditional Rights Court. (Abija v. Bwijmaron, 2 MILR 6, 16 (1994))

 

Jurisdiction

- Nitijela Proceeding Non-justiciable

 

Procedural matters, as distinguished from legislative acts, are committed to the discretion of the Nitijela are not subject to judicial review. (In the Matter of the 19th Nitijela Const. Reg. Ses., 2 MILR 134, 139 (1999))

 

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. (Kabua, et al., v. Speaker of the Nitijela, 2 MILR 143, 148 (1999))

 

Internal matters of voting and procedure (i.e., voting by secret ballot or roll call) appear to be easily resolvable by the Nitijela according to its own procedural rules, without the assistance of the Court, and indeed, considerations of separation of powers leaves the matter exclusively in the hands of the Nitijela. (In the Matter of the 19th Nitijela Const. Reg. Ses., 2 MILR 134, 141 (1999))

 

Supreme Court

- Jurisdiction

 

Article VI, s 2(2) of the Constitution provides that an appeal lies only from a final decision of the High Court or any court. (RMI v. Balos, et al. (2), 1 MILR (Rev.) 67, 68 (1987))

 

A single judge of the Supreme Court has not authority or lacks "jurisdiction" to vacate the decision previously entered by the fully comprised three-member Supreme Court. (RMI v. de Brum (3), 2 MILR 254, 255 (2004))

 

Traditional Rights Court

- Qualification of Judges

 

After issues referred to the Traditional Rights Court have been tried and decided, it is too late to object to the qualifications of the judges. (Jeja v. Lajimkam, et al., 1 MILR (Rev.) 200, 201 (1990))

 

CRIMINAL LAW AND PROCEDURE

 

Arrests

- Duty to Advise of Right to Counsel

 

The duty to advise arrested persons of their right to counsel does not obligate the police to persuade an accused that he needs counsel, but simply to advise of his right to the assistance of counsel. (RMI v. Sakaio, 1 MILR (Rev.) 182, 186 (1989))

 

- Without Warrants

 

Arrests without warrants in felony cases were justified at common law on the theory that dangerous criminals and persons charged with heinous offenses should be incarcerated with all possible haste in the interests of public safety. Whereas the necessity for prompt on the spot action in suppressing and preventing disturbances of the public peace was the factor which justified arrest without warrant in misdemeanor cases involving breaches of the peace. (RMI v. Waltz, 1 MILR (Rev.) 74, 78 (1987))

 

The rule that a private person may, without a warrant, arrest only for a felony committed, or about to be committed or renewed, in his presence, or for a misdemeanor involving a breach of the peace committed, or about to be committed or renewed, in his presence is the rule we adopt here which is in accord with the overwhelming weight of authority. (RMI v. Waltz, 1 MILR (Rev.) 74, 78 (1987))

 

Continuance

- Denied

- - Effect

When a motion for continuance to obtain witnesses is denied, the prosecution generally has two options available: (1) it can file a nolle prosequi to the charges, having the ability to refile at some later time within the speedy trial period; or (2) proceed to trial then and there without its witnesses.  Should the prosecution proceed to trial and fail to present a prima facie case, it runs the risk that the charges will be dismissed for lack of sufficient evidence.  (RMI v. Lemark, 3 MILR 18, 26 (2006))

Convictions

 

The High Court erred in finding the defendant guilty of multiple offenses, Sodomy and Assault and Battery, from what was, in fact, a single act. (RMI v. Kabua, 1 MILR (Rev.) 39, 42 (1986))

 

- Double Jeopardy

 

Due to the concept of "double jeopardy" the defendant cannot be retried because of the error in the prosecution's case, in failing to present all the necessary evidence, unless a conviction after trial has been reversed on the Defendant's appeal. (RMI v. de Brum (2), 2 MILR 333, 337 (2003))

 

Crimes

- Elements

- Receipt of a Check

 

Receipt of a check is not the equivalent to receiving money. A check is merely an offer to pay the amount when it is tendered for payment. (RMI v. de Brum (2), 2 MILR 333, 337 (2003))

 

- Sodomy

 

The Sodomy statute, 11 TTC s 1303, which defines sodomy as "sexual relations of an unnatural manner" and proscribes, as included within the term sodomy, "any and all parts of the sometimes abominable and detestable crime against nature" is sufficient to withstand constitutional challenge. (RMI v. Kabua, 1 MILR (Rev.) 39, 40 (1986))

 

The Sodomy statute, 11 TTC s 1303, which defines sodomy as "sexual relations of an unnatural manner" and proscribes, as included within the term sodomy, "any and all parts of the sometimes abominable and detestable crime against nature" does not include digital manipulation. (RMI v. Kabua, 1 MILR (Rev.) 39, 42 (1986))

 

Dismissal
- For Want of Prosecution

The court has the inherent discretion to dismiss criminal cases, with or without prejudice, for want of prosecution.  (RMI v. Lemark, 3 MILR 18, 25 (2006))

The power to dismiss a case for want of prosecution exists even if the delay does not rise to the level of a violation of the defendant's constitutional right to a speedy trial.  (RMI v. Lemark, 3 MILR 18, 25 (2006))

The trial court's authority to dismiss a case for want of prosecution is not limited by either the RMI Constitution, Art. I , Sec. 4 or by 32 MIRC 155.  (RMI v. Lemark, 3 MILR 18, 25 (2006))

Jury Instructions

- Lesser Included Offense

 

Where there is overwhelming evidence to support the verdicts rendered, the High Court's failure to include in the jury instructions a lesser included offense is not reversible error. (RMI v. Langley, 1 MILR (Rev.) 45, 51 (1986))

 

Pleas

 

The accused may not be called upon to plead at a preliminary hearing. 32 MIRC Ch. 1, s 40. (RMI v. Sakaio, 1 MILR (Rev.) 182, 188 (1989))

 

Before a plea of guilty is accepted, the trial court must ascertain from the accused's own statements in court that he is voluntarily making the plea and understands the nature and general effect of the plea. (RMI v. Sakaio, 1 MILR (Rev.) 182, 188 (1989))

 

- Withdrawal of Guilty Plea

 

Withdrawal of a plea of guilty should be allowed when the court cannot conclude that it was given advisedly and without fear or ignorance. (RMI v. Sakaio, 1 MILR (Rev.) 182, 191 (1989))

 

Record

 

Rules 2b(1) and 17b(1) of the Marshall Islands Rules of Criminal Procedure impose on the trial court the duty to make a record which is more than merely a summary of the proceedings. (RMI v. Sakaio, 1 MILR (Rev.) 182, 186 (1989))

 

The duty to make a proper record of the proceedings is not discretionary. (RMI v. Sakaio, 1 MILR (Rev.) 182, 186 (1989))

 

Rights of the Accused

- Advice of Rights

 

The official at a preliminary hearing is under an affirmative duty to advise an accused during such hearing of his right to the assistance of counsel. (RMI v. Sakaio, 1 MILR (Rev.) 182, 187 (1989))

 

Sentencing

 

The High Court is not authorized to suspend sentence on one count until the sentence on another count is served. (RMI v. Kabua, 1 MILR (Rev.) 39, 42 (1986))

 

Where the trial court did not impose the maximum sentences authorized by law nor make the sentences imposed to run consecutively, the trial court's failure to grant the defendant credit for pre-sentence detention, in the absence of a statute requiring such a credit, was not error. (RMI v. Langley, 1 MILR (Rev.) 45, 51 (1986))

 

- Conditions for Suspension

 

The trial court cannot impose as a condition of the suspension of a sentence restitution in an unrelated case. (Republic v. Bokmej, 1 MILR (Rev.) 87, 88 (1987))

 

Statutes

- Construction

 

31 MIRC Ch. 1, ss 5 and 38 are clear in their intent and purpose in describing criminal conduct and thus said statutes, and the Information based on said statutes, met the "due process" test of Article II, s 4(4) of the Marshall Islands Constitution. (RMI v. Timothy, 1 MILR (Rev.) 270, 272 (1992))

 

MIRC Ch. 1, s 70 does not deprive the Supreme Court of jurisdiction in an appeal of a criminal conviction merely because the sentence is vacated pursuant to the terms of the statute prior to the conclusion of the appeal. (RMI v. Timothy, 1 MILR (Rev.) 270, 272 (1992))

 

Waivers

- Awareness and Competence

 

Waiver of the right to counsel must be knowingly and affirmatively made by an accused competent and completely aware of the right being waived and must appear on the record. (RMI v. Sakaio, 1 MILR (Rev.) 182, 190 (1989))

 

CUSTOM

 

Burden of Proof

It is axiomatic that a party relying on a rule of custom has the burden of proving its existence and substance at trial. (Zaion, et al., v. Peter and Nenam, 1 MILR (Rev.) 228, 232 (1991); Tibon v. Jihu, et al., 3 MILR 1, 5 (2005))

Factual Inquiry

 

Every inquiry into custom involves two factual determinations: first, is there a custom with respect to the subject matter of the inquiry; and, if so, second, what is it? (Lobo v. Jejo, 1 MILR (Rev.) 224, 226 (1991); Zaion, et al., v. Peter and Nenam, 1 MILR (Rev.) 228, 231 (1991))

 

Every inquiry into custom involves two factual determinations. The first is: is there a custom with respect to the subject matter of the inquiry? If so, the second is: what is it? Only when the ascertained custom is incorporated in a statute or has formed the basis of a final court decision does it become law in the modern sense. (Jack v. Hisaiah, 2 MILR 206, 209 (2002))

 

D

 

DAMAGES

 

Generally

 

A court cannot hold defendants liable for engaging in lawful activities (i.e., selling and distributing cigarettes in the Marshall Islands). Without evidence linking defendants' allegedly illegal activities to claims of damages, the Court declined to consider the plaintiff's claims beyond summary judgment. (RMI v. ATC, et al. (4), 2 MILR 181, 191 (2002))

 

Pain and Suffering

 

When the undisputed evidence establishes as a fact that the wrongdoer caused physical and mental suffering, that there was damage to tissue and loss of blood, and that the battery resulted in a lasting, if not indeed, permanent psychological disorder, the victim is entitled to such an award of money damages as in the reasonable judgment of the trier of fact is appropriate to make the victim as whole as possible by the imperfect means of a money judgment. (Antolok and Antolok v. The Estate of Lakbel, 2 MILR 160, 161 (2000))

 

The award of damages for pain and suffering, physical or mental, will be left to the sound judgment of the trial judge. (Antolok and Antolok v. The Estate of Lakbel, 2 MILR 160, 162 (2000))

 

Proof of Amount

 

Although the amount of damages need not be certain or definite, the evidence must nevertheless provide the jury with some guidance on damage estimates. McGlinchy v. Shell Chem. Co., 845 F.2d 802, 808 (9th C ir. 1988); see also Restatement (Second) of Torts s 912 (1979) ("One to whom another has tortiously caused harm is entitled to compensatory damages ... if, but only if ... he establishes ... the amount of money representing adequate compensation with as much certainty as the nature of the tort and the circumstances permit."). (RMI v. ATC, et al. (4), 2 MILR 181, 192 (2002))

 

Punitive Damages

- in General

 

Punitive damages cannot be awarded when not asked for in the pleadings, but only in argument after the close of evidence. (Guaschino v. Reimers and Reimers, 2 MILR 49, 56 (1995))

 

In the absence of a finding of fraud, the court did not error in not awarding punitive damages. (AMI v. Dornier (2), 2 MILR 211, 222 (2002))

 

- Contract Actions

 

In an action for breach of contract, punitive damages may be awarded only if the conduct constituting the breach is also a tort for which punitive damages are recoverable. (Guaschino v. Reimers and Reimers, 2 MILR 49, 56 (1995))

 

- Tort Actions

 

In tort actions, punitive damages are awarded to punish a person for his outrageous conduct and to deter him and others like him from similar conduct in the future. (Guaschino v. Reimers and Reimers, 2 MILR 49, 56 (1995))

 

- - Outrage

 

Since the purpose of punitive damages is not compensation of the plaintiff but punishment of the defendant and deterrence, those damages can be awarded only for conduct involving some element of outrage similar to that usually found in crime. (Guaschino v. Reimers and Reimers, 2 MILR 49, 56 (1995))

 

E

 

ELECTIONS AND VOTING

 

Conduct of Elections

- Recounts

 

The Chief Electoral Officer must be persuaded that there is a substantial possibility that he election result would be affected by a recount, or he must reject a petition for a recount. (Clanton, et al., v. MI Chief Elec. Off. (1), 1 MILR (Rev.) 146, 152 (1989))

 

Presumptions

 

Every reasonable presumption will be indulged in favor of the validity of an election. (Bien v. MI Chief Elec. Off., 2 MILR 94, 97 (1997))

 

The voters are presumed to know the law. (Bien v. MI Chief Elec. Off., 2 MILR 94, 99 (1997))

 

Voters Eligibility

- Challenges

 

Failure to obtain a ruling on the qualifications to vote of an absentee voter who votes at a special polling place, prior to that voter's ballot being accepted and tallied, defeats a challenge later made. (Clanton, et al. v. MI Chief Elec. Off (2), 1 MILR (Rev.) 156, 159 (1989))

 

Challenge could be made at the special polling place or when the Chief Electoral Officer examines absentee voters' affidavits. (Clanton, et al. v. MI Chief Elec. Off (2), 1 MILR (Rev.) 156, 159 (1989))

 

The Chief Electoral Officer is not required to refer to the High Court a challenge to the rights to vote of a class of voters, as distinguished from the right to vote of a single identified individual. (Clanton, et al. v. MI Chief Elec. Off (2), 1 MILR (Rev.) 156, 159 (1989))

 

EQUITY

 

Principles

- Estoppel

 

Equitable estoppel precludes a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth by acts, deeds or representations, either express or implied. (Ammu v. Ladrik, et al., 2 MILR 20, 24 (1994))

 

EVIDENCE

 

Affidavits

- In General

 

Affidavits must be based on facts and not belief. (Lokkar v. Kemoot, 2 MILR 165, 166 (2000))

 

Burden of Proof

- Sovereign Immunity

 

Once the plaintiff offers evidence that a Foreign Sovereignty Immunity Act exception to immunity applies, the party claiming immunity bears the burden of proving by a preponderance of the evidence that the exception does not apply. (Pac. Int'l, Inc., v. U.S.A. and U.S. Dept. Of the Army, 2 MILR 244, 249 (2004))

 

The foreign state has no obligation to affirmatively eliminate all possible exceptions to sovereign immunity, only those exceptions specifically raised by the plaintiff. (Pac. Int'l, Inc., v. U.S.A. and U.S. Dept. Of the Army, 2 MILR 244, 249 (2004))

 

Discretion of Court

 

Generally evidentiary matters are said to he [sic] committed to the discretion of the trial court. (Elmo v. Kabua, 2 MILR 150, 154 (1999))

 

Expert Testimony

 

Before admitting expert testimony, trial courts have a unique obligation to inquire into the reliability of the expert's methodology, considering factors as: whether the proffered theory or technique has been tested; whether it has been subjected to peer review and publication; the known or potential rate of error; the standards for controlling the technique's operation; and the degree to which it is accepted as reliable within the relevant scientific community. Kumho Tire, 526 U.S. at 149-50 (citing Daubert, 509 U.S. 592-94). (RMI v. ATC, et al. (4), 2 MILR 181, 188 (2002))

 

Contradictory opinions from an expert is an acceptable ground for disqualification. (RMI v. ATC, et al. (4), 2 MILR 181, 189 (2002))

 

Mere speculations by an expert, however, do not make them expert opinion. See Stokes v. L. Geismar, S.A., 815 F.Supp. 904, 910 (E.D. Va. 1993), aff'd, 16 F.3d 411(4th Cir. 1 994) ("the proffering of an expert ... who will bless a guess-based theory will not suffice to withstand summary judgment."). The courtroom is not the appropriate venue for casual musings of scientists. (RMI v. ATC, et al. (4), 2 MILR 181, 189 (2002))

 

Hearsay

- Exceptions

- - Statements by Persons Incapable of Testifying

 

Section 31, Evidence Act 1986, sets forth circumstances in which statements by persons incapable of testifying may be received in evidence. (Bulale and Jamore v. Reimers and Clarence, 1 MILR (Rev.) 259, 261)

 

Presumptions

 

The presumption always is that officials have done what the law requires. (Clanton, et al., v. MI Chief Elec. Off. (1), 1 MILR (Rev.) 146, 153 (1989))

 

The law presumes that election officers perform their duty honestly and faithfully. (Bien v. MI Chief Elec. Off., 2 MILR 94, 97 (1997))

 

Privileges

- Attorney-Client

 

The attorney-client privilege rules only protects (1) "confidential communications," (2) "made by a client to an attorney," (3) "to obtain legal advice or assistance." (In the Matter of the Audit of the RMI Legal Aid Office, 2 MILR 80, 83 (1997))

 

The attorney-client privilege does not protect all communications between a lawyer end client but, rather, hinges upon the client's belief that he/she is consulting a lawyer in order to seek confidential legal advice. (In the Matter of the Audit of the RMI Legal Aid Office, 2 MILR 80, 84 (1997))

 

Since the attorney-client privilege works to suppress otherwise relevant evidence and forestall a search for the truth, the limitations which restrict its operation must be assiduously heeded. In other words, the privilege must be strictly limited to the purpose for which it exists. (In the Matter of the Audit of the RMI Legal Aid Office, 2 MILR 80, 84 (1997))

 

The purpose for which the attorney-client privilege exists is to protect disclosures between client and attorney to obtain legal advice, which might not be given in the absence of the privilege. (In the Matter of the Audit of the RMI Legal Aid Office, 2 MILR 80, 84 (1997))

 

Deposits and disbursements (and records of deposits and disbursements) from a client's trust account cannot be characterized as "confidential communications" within the meaning of the rule. (In the Matter of the Audit of the RMI Legal Aid Office, 2 MILR 80, 84 (1997))

 

Monies or fees collected from clients to cover publication expenses and the like are also not confidential. (In the Matter of the Audit of the RMI Legal Aid Office, 2 MILR 80, 84 (1997))

 

Unsworn Statements

 

Statements in pleadings or argument, whether oral or written, do not themselves constitute evidence. (Guaschino v. Reimers and Reimers, 2 MILR 49, 51 (1995))

 

Weight and Sufficiency

 

Judgment of the trial court will not be reversed for paucity of evidence unless said judgment is "clearly erroneous." (RMI v. Timothy, 1 MILR (Rev.) 270, 273 (1992))

 

I

 

IMMIGRATION AND EMIGRATION

 

Removal or Deportation

- Due Process Requirements

 

Section 4(10) of Article II of the Constitution requires that a person be afforded the protection of procedural due process before he is detained. (Navarro and Velasco v. Chief of Police, 1 MILR (Rev.) 161, 164 (1989))

 

The overwhelming weight of authority holds that an alien, once he has entered a country, is indeed entitled to due process of law before he may be detained and deported. (Navarro and Velasco v. Chief of Police, 1 MILR (Rev.) 161, 164 (1989))

 

J

 

JUDGES

 

Disqualification to Act

 

Article VI, s 1(6) of the Constitution and s 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. (Kabua v. Kabua, et al., 1 MILR (Rev.) 247, 248 (1991))

 

At common law a judge was not disqualified merely by reason of relationship to an attorney in the cause before him. (Kabua v. Kabua, et al., 1 MILR (Rev.) 247, 249 (1991))

 

Powers and Functions

- Ruling on Motions

 

A judge has a duty to decide motions that are properly submitted to him, but he is not required to decide them within a time which suits the convenience of counsel nor is he required to rule on motions or issues which have been rendered moot by time or events. (In the Matter of the Estate of Peter, 2 MILR 68, 74)

 

- Single Supreme Court Judge

A single judge of the Supreme Court has the authority both to deny a request for relief and to dismiss an appeal for failure to comply with the rules of appellate procedure.  (Alik v. PSC, 3 MILR 12, 15 (2006))

Under Sectio 206(4) and SCRP Rule 32, a single judge of the Supreme Court acting alone has the authority to dismiss an appeal for the failure to file an opening brief within the time required.  (Alik v. PSC, 3 MILR 12, 16 (2006)) 

JUDGMENTS

 

In General

 

Judgment may be entered only upon a record sufficient to support it. (MIDB v. Alik and Alik, 1 MILR (Rev.) 193, 195 (1989))

 

Absent a stipulation that an agreement is valid, the High Court must, before rendering judgment on an agreement, find that it is valid under contract law and has not been superseded by any subsequent agreement. (MIDB v. Alik and Alik, 1 MILR (Rev.) 193, 198 (1989))

 

Conclusiveness and Finality

- dismissal with prejudice

 

As the trial court noted, it is well established that a stipulation of dismissal with prejudice is a final judgment on the merits and operates the same as any other final judgment for purposes of res judicata. (Gushi Bros Co. v. Kios, et al., 2 MILR 120, 123 (1998))

 

- Fees and Costs

 

A judgment is final notwithstanding fees and costs have not been settled. (RMI v. Balos, et al. (3), 1 MILR (Rev.) 120, 121 (1988))

 

Grounds to Vacate

- MIRCP Rule 48(a)

 

The factors to be considered in determining "good cause" under FRCP 55(c) [MIRCP44] and "excusable neglect" under FRCP 60(b) [MIRCP48(a)] are the same; a court will deny relief if (l) there was culpable conduct by the defaulting party causing the default, (2) the defaulting party had no meritorious defense, or (3) such relief will prejudice the nondefaulting party. A court may deny relief even if only one of the above elements exists. (AMI v. Dornier (2), 2 MILR 211, 219 (2002))

 

Defendant's failure to answer complaint was culpable when defendant had filed motions to extend their time to answer, indicating an ability to deal with legal requirements. (AMI v. Dornier (2), 2 MILR 211, 219 (2002))

 

To show the existence of meritorious defense, the defaulting party must make a presentation or proffer of evidence, which, if believed, would permit either the Court or the jury to find for the defaulting party. (AMI v. Dornier (2), 2 MILR 211, 220 (2002))

 

With respect to prejudice to the non-defaulting party, the standard is whether plaintiff's ability to pursue its claim will be hindered. (AMI v. Dornier (2), 2 MILR 211, 220 (2002))

 

- MIRCP Rule 48(a)(1)

 

The High Court has the discretion to deny a MIRCP Rule 48(a)(1) motion if (1) the defendant's culpable conduct led to the default, (2) the defendant has no meritorious defense, or (3) the plaintiff would be prejudiced if the judgment is set aside. (Stanley v. Stanley, 2 MILR 194, 202 (2002))

 

Defendant's actual or constructive notice of the filing of an action and his failure to answer is culpable conduct that precluded relief from default judgment under MIRCP Rule 48(a)(1). (Stanley v. Stanley, 2 MILR 194, 202 (2002))

 

- MIRCP Rule 48(a)(3)

 

In order to obtain relief under MIRCP Rule 48(a)(3), the moving party must demonstrate misconduct, like fraud and misrepresentation, by clear and convincing evidence, and must than show that the misconduct foreclosed full and fair preparation or presentation of his case. (Stanley v. Stanley, 2 MILR 194, 204 (2002))

 

- MIRCP Rule 48(a)(4)

 

Judgment may be vacated as void under MIRCP Rule 48(a)(4) only if the rendering court lacked personal jurisdiction, subject matter jurisdiction, or acted in a manner inconsistent with due process of law. (Stanley v. Stanley, 2 MILR 194, 199 (2002))

 

- MIRCP Rule 60(b)

 

A trial court has the discretion to deny a Rule 60(b) motion to vacate a default judgment if (1) the plaintiff would be prejudiced if the judgment is set aside, (2) defendant has no meritorious defense, or (3) the defendant's culpable conduct led to the default.  This tripartite test is disjunctive. (Pacific Basin, Inc. v. Mama Store, 3 MILR 33, 35 (2007))

On Trial of Issues

 

A trial court can only decide issues of fact on the basis of evidence whether written or oral introduced before it. (Guaschino v. Reimers and Reimers, 2 MILR 49, 51 (1995))

 

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. (Momotaro, et al., v. Chief Elec. Off., 2 MILR 237, 241 (2004))

 

- 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. (Momotaro, et al., v. Chief Elec. Off., 2 MILR 237, 241 (2004))

 

Challenges

 

It is unnecessary for a defendant to abstain from asserting other defenses while at the same time attacking jurisdiction over his person. (Gushi Bros. Co. Hawaiian Flour Mills, et al., 1 MILR (Rev.) 239, 241 (1991))

 

- Waiver of Objection

 

If it is clear that the objection has been preserved, neither going to trial after a challenge to jurisdiction has been overruled nor going to trial after it has been upheld, but proper service has not yet been effected, constitutes a waiver of the objection. (Gushi Bros. Co. Hawaiian Flour Mills, et al., 1 MILR (Rev.) 239, 242 (1991))

 

Subject Matter

 

The High Court acted properly in dismissing sua sponte the complaint. (Momotaro, et al., v. Chief Elec. Off., 2 MILR 237, 242 (2004))

 

- 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. (Momotaro, et al., v. Chief Elec. Off., 2 MILR 237, 242 (2004))

 

- Lack of

 

If jurisdiction was lacking, then the court's various orders, including that granting leave to amend the complaint, were nullities. (Momotaro, et al., v. Chief Elec. Off., 2 MILR 237, 242 (2004))

 

L

 

LACHES

 

Discretionary

 

Whether laches bars an action depends upon the facts and circumstances; the decision to apply laches is primarily left to the discretion of the trial court. (Langijota v. Alex, 1 MILR (Rev.) 216, 222 (1990))

 

Requirements

 

To apply laches, the court must find (1) lack of diligence by the party against whom the defense is asserted and (2) prejudice to the party asserting the defense. (Langijota v. Alex, 1 MILR (Rev.) 216, 222 (1990))

 

Constitutional and Statutory Law

 

The doctrine of laches is a well-established part of the common law. There are no statutory or constitutional provisions that preclude application of the doctrine of laches, even to cases involving land titles. (Likinbod and Alik v. Kejlat, 2 MILR 65, 66 (1995))

 

LAND MANAGEMENT

 

Regulation No. 1

- Finality of Determinations

 

Courts will not be bound by the finality provisions of Land Management Regulation No. 1. (Ebot v. Jablotok, 1 MILR (Rev.) 8, 11 (1984))

 

LAND RIGHTS

 

Alap

- Powers and Obligations

 

An alap has no authority to unilaterally and without notice cut off the inheritance rights of her bwij. (Tobeller v. David, 1 MILR (Rev.) 81, 82 (1987))

 

It is contrary to custom for an alap to change rights and responsibilities with respect to land without any reference to the iroij or anyone else. (Lejeman v. Laakbel, 1 MILR (Rev.) 117, 119 (1988))

 

The amounts and timing of distributions of the alap's share among the members of his bwij entitled thereto is in the discretion of the alap. (Lobo v. Jejo, 1 MILR (Rev.) 224, 226 (1991))

 

Notice to members of the alap's bwij is not necessary for the alap to convey his or her alap rights. It is sufficient that the iroij, iroijedrik where necessary, alap and senior dri jerbal approve of any such alienation or disposition of land rights. (Gushi Bros Co. v. Kios, et al., 2 MILR 120, 125 (1998))

 

- Succession to Rights

 

Marshallese customary pattern provides for matrilineal descent of land rights. (Lokken v. Nakap, 1 MILR (Rev.) 69, 71 (1987))

 

Disposition on Merits Preferred

 

This court agrees with the High Court that the land rights of the Marshallese people are of extreme importance and that the drastic procedure of preventing a full hearing in court should be avoided if at all possible. (Lokot and Kabua v. Kramer, et al., 2 MILR 89, 91 (1997))

 

Distribution of Land Use Payments

 

Allocating equal thirds of payments for land use and in lieu of copra to the iroijlaplap, alap and dri jerbal is consistent with Marshallese practice. (Mwedriktok v. Langijota and Abija, 1 MILR (Rev.) 172, 175 (1989))

 

Iroij

- Powers and Obligations

 

An iroij must notify and consult with his successor and/or Bwij, before executing a testamentary statement allocating a certain amount to be paid to another from the iroij's share of land use payment. (Elmo v. Kabua, 2 MILR 150, 154 (1999))

 

- Decisions

 

The determinations of iroij are presumed to be reasonable unless it is clear that they are not. (Abner, et al., v. Jibke, et al., 1 MILR (Rev.) 3, 7 (1984))

 

Kitre (gift land)

- Conditions of Gift

 

The husband who makes the kitre can attach conditions to it. (Bulale and Jamore v. Reimers and Clarence, 1 MILR (Rev.) 259, 262 (1992))

 

- Succession to Rights

 

It is proper and normal for kitre land to pass to the bwij of the recipient. (Bulale and Jamore v. Reimers and Clarence, 1 MILR (Rev.) 259, 262 (1992))

 

Morjinkot

 

Rights in Morjinkot land, a gift from an Iroij as reward for bravery in battle, remain in the bwij and are inherited in the maternal line. (Tobeller v. David, 1 MILR (Rev.) 81, 82 (1987))

 

- Termination of Rights

 

In order to change rights in Marjinkot lands, in absence of consent, good cause must be shown. (Abner, et al., v. Jibke, et al., 1 MILR (Rev.) 3, 7 (1984))

 

Possession

 

Possession or use of land does not, in itself, convey any rights in the land under the custom. (Abner, et al., v. Jibke, et al., 1 MILR (Rev.) 3, 7 (1984))

 

M

 

MARITIME LIENS

 

Enforcement

- Laches

 

Absence of a vessel from home waters operates to relieve the lienor, to some extent, from laches; but the question in each case against a subsequent owner who acquired in good faith and without notice is whether the high degree of diligence in the enforcement of lien rights has been shown. (Les Nor. Boat Repair, et al., v. O/S Holly, et al., 1 MILR (Rev.) 176, 180 (1989))

 

Whether laches applies in a given case depends upon the circumstances of the case and is primarily addressed to the trial court's discretion. (Les Nor. Boat Repair, et al., v. O/S Holly, et al., 1 MILR (Rev.) 176, 180 (1989) )

 

- Allocation of Costs

 

Trial court has discretion to allocate wharfage charges and costs of government custody of vessels among lienor claimants and holders of mortgages as it thinks appropriate, but portion allocable to lienor who established a lien should be charged against proceeds of sale of the vessels. (Les Nor. Boat Repair, et al., v. O/S Holly, et al., 1 MILR (Rev.) 176, 180 (1989))

 

MORTGAGES

 

Construction and Operation

- Substitution of New Mortgagor

 

A substitution of the primary obligor does not invalidate or necessarily subordinate the priority of the lien on the security. (Les Nor. Boat Repair, et al., v. O/S Holly, et al., 1 MILR (Rev.) 176, 179 (1989))

 

N

 

NITIJELA

 

Powers and Procedures

 

Article IV, s 12(2) of the Constitution provides for automatic dissolution on the thirtieth day of September in the fourth year after the year in which the last preceding general election was held. (In Re Nitijela Dis. Act of 1981, 1 MILR (Rev.) 1, 2 (1982))

 

The proviso in Article IV, s 12(2) of the Constitution applies only in the event of a general election pursuant to Article IV, s 13(3) that occurs before the thirtieth day of April. (In Re Nitijela Dis. Act of 1981, 1 MILR (Rev.) 1, 2 (1982))

 

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. (Kabua, et al., v. Speaker of the Nitijela, 2 MILR 143, 147 (1999))

 

- 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 (Kabua, et al., v. Speaker of the Nitijela, 2 MILR 143, 147 (1999))

 

NUCLEAR CLAIMS TRIBUNAL

 

Powers and Duties

- Authority to Halt Distribution of Borrowed Funds

 

The Tribunal has broad authority with respect to local distribution authorities, including the power to halt distribution by a local distribution authority of borrowed funds representing an advance against future proceeds. (Defender of the Fund v. Rongelap Atoll LDA, 1 MILR (Rev.) 289, 297 (1992))

 

- Review of Special Tribunal's Ruling

 

Under s 31(q) of the Marshall Islands Nuclear Claims Tribunal Act (1987), as amended, a refusal of the Tribunal to review the conclusions of a Special Tribunal would be based either upon (a) a finding by the Tribunal that the decision did not involve a matter of public importance, or (b) the Tribunal declining to exercise its discretion in favor of reviewing the decision. (Samson, et al., v. Rongelap Atoll LDA, 1 MILR (Rev.) 280, 284 (1992))

 

- Review of Transfers of Funds

 

If a sound basis exists for the Tribunal to invalidate an assignment or proposed assignment of funds, independent of the question whether the purpose of the assignment is consistent with the Section 177 Agreement, the Tribunal has the duty and power to make that determination. (Defender of the Fund v. Rongelap Atoll LDA, 1 MILR (Rev.) 289, 292 (1992))

 

Rules and Procedures

- Public Notice of Assignments of Funds

 

Section 12(d) of the Nuclear Claims Tribunal Act and s 404 of the regulations adopted by the Tribunal require each local distribution authority to put all proposed assignments of future proceeds in writing and give public notice of the same at least 75 days prior to consummation of the proposed assignment. (Defender of the Fund v. Rongelap Atoll 40 LDA, 1 MILR (Rev.) 289, 293 (1992))

 

- Public Notice of Regulations

 

The Tribunal does not have to give advance public notice of, or to have a hearing on, proposed regulations. The regulations become effective upon adoption by affirmative vote of the Chairman and one member of the Tribunal. They are thereafter to be published and made available to the public in printed form. (Defender of the Fund v. Rongelap Atoll LDA, 1 MILR (Rev.) 289, 294 (1992))

 

P

 

PARTIES

 

Appearing Pro Se

- Compliance with Rules

 

An unrepresented litigant appearing pro se is not entitled to any different treatment in the application of Rules of Evidence and Procedure than is a litigant represented by counsel. (Guaschino v. Reimers and Reimers, 2 MILR 49, 51 (1995))

 

PUBLIC OFFICERS

 

Presumptions

- Duties Performed

 

Absent evidence to the contrary, a court can presume that Trust Territory officials did their duty; that is, did the things a Regulation required them to do. (Langijota v. Alex, 1 MILR (Rev.) 216, 221 (1990))

 

R

 

RES JUDICATA

 

Determinations by Land Title Officers

 

Trust Territory Office of Land Management Regulation No. 1 provided sufficient procedural safeguards to hold administrative determinations thereunder to be res judicata as to persons who participated in the proceedings and those in privity with them. (Langijota v. Alex, 1 MILR (Rev.) 216, 219 (1990))

 

Effect

 

The doctrine of res judicata bars a second action between the same parties on the same subject matter directly involved in the prior action. (Zaion, et al., v. Peter and Nenam, 1 MILR (Rev.) 228, 234 (1991))

 

Res judicata bars further claims by parties or their privies against the same defendants based on the same cause of action.  (Ueno v. Abner and Hosia, et al., 3 MILR 28, 30 (2007))

 

Requirements

 

Application of the doctrine of res judicata requires both identity of parties and identity of issues in the earlier and subsequent actions. (Jeja v. Lajimkam, et al., 1 MILR (Rev.) 200, 203 (1990))

 

The final judgment on the merits in a previous action involving the same parties and substantially the same issues precludes litigating issues that were or should have been presented in the previous action. (So. Seas Marine Corp. v. Reimers, 2 MILR 58, 61 (1995))

 

A party seeking to rely on the doctrine of res judicata, or claim preclusion, must prove that: 1) there has been a final judgment on the merits in a prior suit; 2) the prior suit involves the same parties or their privies; and 3) the causes of action are the same as in the prior suit. (Gushi Bros Co. v. Kios, et al., 2 MILR 120, 123 (1998))

  

S

 

SERVICE OF PROCESS

 

Constructive Service

 

Service on opposing party is valid where statutory and rule procedures are fully complied with. (So. Seas Marine Corp. v. Reimers, 2 MILR 58, 63 (1995))

 

STARE DECISIS

 

The doctrine of stare decisis, now commonly called following precedent, is concerned with determination of points of law, not with conclusions of fact. (Ammu v. Ladrik, et al., 2 MILR 20, 23 (1994))

 

STATUTES

 

Construction and Operation

 

Title 8, s 1 of the Trust Territory Code provides every judgment for the payment of money bears an interest rate of 9% a year from date it is entered. (Carolson Com. Corp. v. Sawej Bros. Co., 1 MILR (Rev.) 24, 25 (1986))

 

Neither 8 TTC s 55 nor 8 TTC s 75 authorizes a court to forgive any part of a judgment obligation absent consent of the holder of the judgment. (Carolson Com. Corp. v. Sawej Bros. Co., 1 MILR (Rev.) 24, 25 (1986))

 

Statutes are to be construed according to their plain and obvious meaning, absent some indication of legislative intent to the contrary. (Clanton, et al., v. MI Chief Elec. Off. (1), 1 MILR (Rev.) 146, 151 (1989))

 

Courts should give great deference to the interpretation given statutes and regulations by the officials charged with their administration. (Bien v. MI Chief Elec. Off., 2 MILR 94, 99 (1997))

 

Section 174(d) of the Compact is analogous to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. s 1602(a)(2), which provides that a "foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case ... in which the action is based upon a commercial activity carried on in the United States by the foreign state." Due to the similarity in language, the legislative history and judicial interpretation of FSIA s 1602(a)(2) guide the analysis of what constitutes "commercial activity" under Section 174(d) of the Compact. (Pac. Int'l, Inc., v. U.S.A. and U.S. Dept. Of the Army, 2 MILR 244, 251 (2004))

 

- Based Upon

 

The phrase "based upon" means something more than a mere connection with, or relation to, commercial activity. (Pac. Int'l, Inc., v. U.S.A. and U.S. Dept. Of the Army, 2 MILR 244, 251 (2004))

 

- Commercial Activity

 

The analysis of whether the "commercial activity" exception applies must begin with identifying the particular conduct "upon" which the action is "based." (Pac. Int'l, Inc., v. U.S.A. and U.S. Dept. Of the Army, 2 MILR 244, 251 (2004))

 

Conduct by a state is considered "commercial activity" where the state exercises "only those powers that can also be exercised by private citizens, as distinct from those powers peculiar to sovereigns." (Pac. Int'l, Inc., v. U.S.A. and U.S. Dept. Of the Army, 2 MILR 244, 252 (2004))

 

Operation of military bases, including control of access thereto, is universally considered a purely governmental function and, as such, sovereign in nature, as opposed to commercial. (Pac. Int'l, Inc., v. U.S.A. and U.S. Dept. Of the Army, 2 MILR 244, 252 (2004))

 

Repeal

- Incorporated Statute

 

Repeal of a statute that re-enacted, through incorporation by reference, a repealed statute, effects a repeal of the statute incorporated by reference. (MIDC and Leon v. MALGOV and RMI (2), 1 MILR (Rev.) 209, 211 (1990))

 

T

 

TORTS

 

Government Liability Act

- In General

 

The Act did not grant a right to sue, but, to the contrary, severely limited the pre-existing constitutional right of an individual to seek judicial redress against the Government or its agent. (Enos and Enos v. RMI, et al., 1 MILR (Rev.) 63, 64 (1987))

 

- Procedural Requirements

 

Because of problems encountered in attempting to timely file a claim, the six-month time limitation in s 9 is unduly restrictive and therefore unconstitutional. (Kabua v. H. Ct. Chief Justice, et al., 1 MILR (Rev.) 33, 35 (1986))

 

- Scope

 

The Act does not address the issue whether government has sole liability for torts of its employees. It was error to dismiss action as to employees. (Leon v. RMI, et al., 1 MILR (Rev.) 59, 60 (1987))

 

- Severability

 

Section 9 with the six-month limitation is severable from the balance of the Act and may be stricken while leaving the balance of the Act intact. (Enos and Enos v. RMI, et al., 1 MILR (Rev.) 63, 66 (1987))

 

Negligence

- General

 

Negligence is the omission to do something an ordinarily prudent person would have done or the doing of something which an ordinarily prudent person would not have done under such circumstances. (Anitok v. Binejal, 2 MILR 114, 116 (1998))

 

Medical malpractice

- Time claim accrues

 

Rule established by the U.S. Supreme Court in United States v. Kubrick, 444 U.S. 111, 62 L.Ed. 2d 259, 100 S.Ct. 352 (1979), that cause of action accrued when claimant knew both the existence and the cause of injury, is not inflexible. It must necessarily be applied to varying fact situations. (Leon v. RMI, et al., 1 MILR (Rev.) 59, 61 (1987))

 

TRIAL ASSISTANTS

 

Suspension and Disbarment

 

Criminal conviction of violation of 31 MIRC Ch. 1, ss 5 and 38 involves actions of sufficient moral turpitude as to clearly violate Rule 6 of the "Order Creating Standing Committee on Professional Conduct." (In re: The Matter of Timothy, 1 MILR (Rev.) 275, 277 (1992))

 

The findings and recommendations of a trial court in a disciplinary proceeding will be set aside only when "clearly erroneous." (In re: The Matter of Timothy, 1 MILR (Rev.) 275, 277 (1992))

 

The fact that a criminal conviction under 31 MIRC Ch. 1, ss 5 and 38 is vacated pursuant to 37 MIRC Ch. 1, s 70(4) and (5) does not negate disciplinary findings based on said conviction and does not render appeal moot. (In re: The Matter of Timothy, 1 MILR (Rev.) 275, 278 (1992))

 

TRUST TERRITORY COURTS DECISIONS

 

Precedential Value

 

In some circumstances, the value of Trust Territory court decisions as precedent will exceed the precedential value of cases from non-Pacific Islands jurisdictions. (Langijota v. Alex, 1 MILR (Rev.) 216, 218 (1990))

 

Stare Decisis

 

Decisions of Trust Territory courts do not have stare decisis, as distinguished from res judicata, effect in courts of the Marshall Islands. (Langijota v. Alex, 1 MILR (Rev.) 216, 218 (1990))

 

W

 

WAR CLAIMS ACT

 

Judicial Review of Awards

 

Although the War Claims Act contains provisions that make all awards final, not subject to judicial review, this finality provision applies only as to claims against the United States. The court cannot be precluded from determining who actually owned the land, or was entitled to share in the claim. (Ebot v. Jablotok, 1 MILR (Rev.) 8, 11 (1984))

WITNESSES

Continuance
- Grounds

When a continuance is sought to obtain witnesses, the party seeking the continuance must show that the witnesses can probably be obtained if the continuance is granted and that "due diligence" has been used to obtain their attendance on the day set for trial.  (RMI v. Lemark, 3 MILR 18, 22 (2006))

Court generally deny requests for continuances based on the nonappearance of a witness unless the litigant can show "due diligence" in attempting to subpoena the witness.  (RMI v. Lemark, 3 MILR 18, 23 (2006))

The trial court is under no obligation to grant continuances until a non-subpoenaed witness finally arrives.  (RMI v. Lemark, 3 MILR 18, 24 (2006))

WRITS, EXTRAORDINARY

 

Power to Issue

 

The power of the Supreme Court to issue writs is not unlimited or without boundaries, but is limited to cases where they are necessary to aid its appellate or other jurisdiction or to enforce the Constitution. (Kabua v. High Court, et al. (2), 1 MILR (Rev.) 27, 30 (1986))

 

The power to issue writs is discretionary and it is sparingly exercised. (Kabua, et al., v. H.Ct. Chief Justice, et al., 1 MILR (Rev.) 33, 34 (1986))

 

The constitutional grant of power to each court to issue all writs, in Article VI, s 1(2), confers original jurisdiction on the Supreme Court to issue writs in appropriate cases. (Kabua v. Kabua, et al., 1 MILR (Rev.) 247, 252 (1991))

 

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. (Kabua v. Kabua, et al., 1 MILR (Rev.) 247, 252 (1991))

 

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. (Kabua v. Kabua, et al., 1 MILR (Rev.) 247, 252 (1991))

 

Mandamus and prohibition are extraordinary writs. The power to issue them is discretionary and sparingly exercised. (In the Matter of the Estate of Peter, 2 MILR 68, 74 (1995))

 

A writ of prohibition is to be used with great caution and forbearance and should be issued only in cases of extreme necessity. (In the Matter of the Estate of Peter, 2 MILR 68, 74 (1995))

 

Requirements

- In General

 

In order for the Court to issue these prerogative, discretionary writs, the petitioner must show that respondent is about to exercise judicial power, that the exercise of such power is unauthorized by law, and that it would result in injury for which there is no other adequate remedy. (Kabua, et al., v. H.Ct. Chief Justice, et al., 1 MILR (Rev.) 33, 34 (1986))

 

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. (Kabua v. Kabua, et al., 1 MILR (Rev.) 247, 253 (1991))

 

For a writ of mandamus to issue there must be a clear showing of a non-discretionary 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. (In the Matter of the Estate of Peter, 2 MILR 68, 74 (1995))

 

For a writ of prohibition to issue to a judge, it must be shown that the respondent is about to exercise judicial power, that the exercise of such power is unauthorized by law and that it would result in injury for which there is no other adequate remedy. (In the Matter of the Estate of Peter, 2 MILR 68, 74 (1995))

 

- Matters of Public Importance

 

Writs of mandamus and prohibition are discretionary and generally will be issued only in cases of public importance or of exceptional character or to enforce a prior order of the court. (Kabua v. High Court, et al. (2), 1 MILR (Rev.) 27, 30 (1986))

 

The Supreme Court will hear writs of mandamus or prohibition challenging High Court action in cases of extraordinary public importance. (RMI v. ATC, et al. (2), 2 MILR 167, 168 (2001))

 

- No Other Adequate Remedy

 

Writs of mandamus and prohibition may not be used as substitutes for appeal. Further, they generally will be not issued unless there is no adequate remedy available on appeal. (Kabua v. High Court, et al. (2), 1 MILR (Rev.) 27, 30 (1986))

 

The party seeking a writ of mandamus or prohibition must show there is no other means of obtaining the desired relief and has the burden of showing his right to the writ is clear and indisputable. (Kabua v. High Court, et al. (2), 1 MILR (Rev.) 27, 30 (1986))

 

Writs In Lieu of Interlocutory Appeals Disfavored

 

Wise and practical policies dictate that requirements for obtaining writs directed against interlocutory orders are even stricter. (Kabua v. High Court, et al. (2), 1 MILR (Rev.) 27, 30 (1986))

 

Interlocutory rulings of the trial court can be assigned as error on appeal from a final judgment. (RMI v. ATC, et al. (2), 2 MILR 167, 168 (2001))

 

Assuming that the writ procedure can sometimes be utilized as a substitute for an interlocutory appeal, in the rare case where such an appeal is available, it should be noted that interlocutory appeals are not favored. (RMI v. ATC, et al. (2), 2 MILR 167, 169 (2001))

 

Common law courts have learned from experience that interlocutory and piecemeal appeals in most cases are wasteful of both time and judicial resources. Extraordinary writ practice employed in lieu of an interlocutory appeal suffers from many of the same infirmities. (RMI v. ATC, et al. (2), 2 MILR 167, 169 (2001))