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Clanton v Marshall lslands Chief Electoral Officer (2) [1989] MHSC 23; 1 MILR (Rev) 156 (2 August 1989)

1 MILR (Rev.) 156

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 88-04

(High Ct. Civil No. 1988-010)

TOJIO CLANTON, et al.,
Petitioners-Appellants,

-v-

MARSHALL ISLANDS CHIEF ELECTORAL OFFICER SHIRO RIKLON,
Respondent-Appellee.

APPEAL FROM THE HIGH COURT

AUGUST 2, 1989

ASHFORD, C.J.
KING, A.J. pro tem,¹ and KOBAYASHI, A.J. pro tem²

SUMMARY:

The Supreme Court affirmed a ruling of the High Court that challenges voter qualifications under the Elections and Referenda Act 1980, as amended, would not be entertained because the challenged voters were not identified by name.

DIGEST:

1. APPEAL AND ERROR – 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.

2. ELECTIONS AND VOTING – 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.

3. ELECTIONS AND VOTING – Same – Same: Challenge could be made at the special polling place or when the Chief Electoral Officer examines absentee voters' affidavits.

4. ELECTIONS AND VOTING – Same – Same: 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.

OPINION OF THE COURT BY ASHFORD, C.J.

Petitioners, all of whom were candidates who did not achieve election to the Nitijela in the 1987 election and who had pending appeals from rejections of their petitions for recount, sought a writ of mandamus, directed to the Chief Electoral Officer, to refer questions of voter qualifications to the High Court as required by P.L. 1980-20, § 80(2).³ The High Court ruled that the Chief Electoral Officer should have referred those questions and proceeded immediately to hear and consider them as if the writ had issued.

The questions petitioners had asked the Chief Electoral Officer to refer concerned the qualifications to vote of newly registered voters and newly registered absentee voters, whether some voters cast two ballots and whether there were more ballots in a specified ballot box than voters whose votes were placed in that box. The petition for a writ, however, asked only that the questions concerning voter qualifications be referred to the High Court and, on this appeal, only that question and a procedural question concerning the status of an amicus curiae appointed by the High Court were raised.⁴

Neither the requests directed to the Chief Electoral Officer nor the petition for writ of mandamus identified the newly registered voters, who were challenged as a class. It appears, however, that during the hearing twelve persons were named whom petitioners claimed were either under age or did not hold land rights or reside in the electoral districts in which they voted. It also appears from the High Court's ruling that no challenges to voters' rights to vote, individually or as a class, were made prior to the Chief Electoral Officer being requested to refer to the High Court the question of their qualifications to vote.

The High Court ruled that 2 MIRC Ch. 1, § 88(2), under which the requests were made and were deemed to have been referred to the High Court, requires that the challenged voters be identified by name. Inasmuch as they were not named, and all of them apparently had been allowed to vote, the High Court held that petitioners were not entitled to any relief. We agree.

A. Function of an amicus curiae.

[1] Before addressing the substantive issue on this appeal we can summarily dispose of the procedural issue. Appellants insist the High Court erred in appointing the Legislative Counsel as amicus curiae because, by reason of his employment, he could not be neutral. Appellants misconstrue the role of a friend of the court. His function is to assist in assuring that the court is fully advised. He is expected to and usually does take an adversary position. Rules of appellate procedure universally recognize that an amicus will support one or another of the litigants. See, for example, MIRAppP Rule 10. The Senators whose seats were the target of this and the related cases,⁵ although they were not parties to the cases, certainly had an interest in their outcome. Who, better than the Legislative Counsel, could assure that the court was informed concerning their views and positions?

B. Identification of challenged voters.

[2,3] In the companion cases we have noted that failure to obtain a ruling on the qualifications to vote of a voter registered at the polling place on election day, prior to that voter's ballot being accepted and tallied, defeats a challenge later made. The reason is that the ballot can no longer be identified and its effect, if any, on the election cannot be determined. The same is true of the ballot of an absentee voter who votes at a special polling place pursuant to the provisions of 2 MIRC Ch. 1, §§ 56 to 60. Since absentee voters' ballots are not required to be identified as challenged ballots in the container delivered to the Counting and Tabulation Committee pursuant to 2 MIRC Ch. 1, § 65(2), however [sic], the candidate or his poll watcher would have to challenge the voter and his ballot in order to preserve the identity of that ballot. The challenge could be made at the special polling place or when the Chief Electoral Officer examines absentee voters' affidavits. 2 MIRC Ch. 1, § 65(1). If the challenge is sustained, the voter can demand that the Chief Electoral Officer refer the question to the High Court. 2 MIRC Ch. 1, § 88(1). If denied, the challenger can demand that reference. 2 MIRC Ch. 1, § 88(2).

We turn now to the principal issue by this appeal. That is, whether a candidate who questions the rights to vote of a class of voters is entitled to demand that the Chief Electoral Officer refer the question to the High Court, under either or both of Article IV, § 9 of the Constitution and 2 MIRC Ch. 1, § 88.

The Constitution refers to questions concerning "the right of any person" to vote at an election to the Nitijela. 2 MIRC Ch. 1, § 88 applies not only to elections to the Nitijela, but also to elections by ballot and by consensus under the Local Government Act of 1980 and to referenda under that Act, the Constitution or other law. 2 MIRC Ch. 1, §§ 4 and 93. The statute, as well as the Constitution, refers to individual voters. 2 MIRC Ch. 1, § 88(1) deals with "any person whose claim to a right to vote" has been rejected, and 2 MIRC Ch. 1, § 88(2) deals with questions concerning "the right of a person to vote."

[4] In their plain meaning, "any person" and "a person" both refer to a single individual. One who has been denied the right to vote is, under subsection (1), a single, identified individual. The ordinary meanings of "a person," under subsection (2), and "any person" under Article IV, § 9, whose right to vote has given rise to any question, would also refer to a single, identified person. Neither the language of 2 MIRC Ch. 1, § 88 nor reason suggest that the Nitijela intended an identified person under subsection (1) and unidentified persons, or a class of voters, under subsection (2), nor does the language of Article IV, § 9, which encompasses the situations covered by both subsections (1) and (2), suggest any such differentiation.

We conclude that the High Court was correct in its procedure and interpretation of the law. The judgment is affirmed.

David Strauss for Petitioners-Appellants
(Dennis J. Reeder with him on the briefs)
Neil Rutledge, Assistant Attorney General, for Respondent-Appellee

_________________

¹The Honorable Samuel P. King, Senior United States District Judge for the District of Hawaii, sitting by Cabinet appointment.

²The Honorable Bert T. Kobayashi, Associate Justice Emeritus of the Supreme Court of Hawaii, sitting by Cabinet appointment.

³The statute in effect at the time of the election was the Elections and Referenda Act 3 1980, P.L. 1980-20 as amended by P.L. 1983-25. With renumbering of some sections, it is now incorporated in the Marshall Islands Revised Code as Title 2, Chapter 1, which will be cited for ease of reference.

⁴The Notice of Appeal preserved Appellants' claim that the High Court erred in denying their motion for discovery to compel the Chief Electoral Officer to produce the names of newly registered voters in five electoral districts. This point was not briefed, however, and the brief in the companion cases cross-referenced (Clanton, et al. v. MI Chief Elec. Off. (1), 1 MILR (Rev.) 146 (Aug 2, 1989)) dealt only with the High Court's refusal to issue subpoenas and allow evidence on the appeals from rejection of petitions for recount.

⁵See footnote 4.