1 MILR (Rev.) 122

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 87-07
(High Ct. Civil No. 1987-146)

JOHN R. HEINE,
Plaintiff-Appellant,

-v-

RADIO STATION W.S.Z.O., GENERAL MANAGER SAMUEL JORDON,
Defendants-Appellees.

APPEAL FROM THE HIGH COURT

JUNE 6, 1988

BURNETT, C.J.
KONDO, A.J., and GUNATILAKA, A.J. (sitting by designation)

SUMMARY:

Plaintiff-Appellant, a candidate for election to the Nitijela, appeals from an Order of the High Court, which denied his petition for a mandatory injunction to require Appellees to permit access to radio facilities, for broadcast of his political speech. The court found the basic appeal to be moot but agreed with the Appellant's position that compliance of station rules with statutory law is a substantial, recurring matter of public interest.

DIGEST:

1. BROADCAST COMMUNICATIONS – Candidates Programs – Regulations: 35 TTC § 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 § 52 provides that each station may promulgate rules which limit the duration of programs.

2. APPEAL AND ERROR – Mootness: An appellate court should retain jurisdiction in the face of mootness when the matter involves a recurring controversy of great public interest.

OPINION OF THE COURT BY BURNETT, C.J.

Appellant was a candidate for election to the Nitijela in the November, 1987 election. He appeals from an Order of the High Court which denied his petition for a mandatory injunction to require Appellees to permit him access to radio facilities for the broadcast of his political speech, at his previously scheduled time, 7:15 p.m., November 15, 1987.

The High Court finding was that Appellant had slept on his rights, having chosen to challenge rules of the Appellees too late in the day.

We say, first, that we cannot disturb the ruling of the High Court since the basic issue raised by Appellant is, clearly, moot.

This appeal brings into question the announced rules of the Appellee station as to what was required of candidates wishing to use public broadcast facilities. There appear to be no written rules.

It is agreed that all candidates, according to unwritten policy, were required to submit their tape for broadcast (not more than 30 minutes) before 5:00 p.m. on November 10, 1987. The tape was required to remain in the Appellees' possession until broadcast time, on November 15, 1987.

Having reserved a time slot, and delivered his tape on November 10, Appellant's campaign manager was then returned the tape, being told that the full 30 minutes was not used and that the time could be used with either music, or additional speech. The tape was held and not returned to the station until Appellant learned that his speech would not be broadcast.

Appellant insists that the entire procedure is contrary to law, and cites 35 TTC § 2, still applicable to the Republic of the Marshall Islands.

[1] 35 TTC § 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 § 52 provides that "(e)ach district administrator may promulgate rules …. The limit placed upon the duration of programs shall not be less than one hour."

The following section makes clear that any individual "made the subject of criticism shall be allowed an opportunity to respond to or rebut such criticism ...."

It is obvious that, when the prime broadcast time is scheduled for the night before the election (and time limited to only half that required by law) the only opportunity for rebuttal given by 35 TTC § 53 is given those with a late time slot.

We have no particular problem with the pre-broadcast retention of the tape, so long as it is retained only for the purpose of determining the time for scheduling purposes. If used for censorship, it would be clearly improper.

There seems to be no doubt that the announced "rules" for political broadcast do not meet the law.

Having found the basic appeal to be moot, we are left with the question as to whether the fundamental inquiry is of such a nature as to require us to retain it as a matter of "public interest."

Appellant urges us to decide the basic question of compliance of station rules with the law; as a possibly recurring problem, it could again escape appellate review. We agree.

An appeal is not moot when it involves a controversy which is likely to recur, not as to parties before the court, but with respect to others who are most certainly to be later before the court.

The state decisions on this question are unanimous in holding that an appellate court should retain jurisdiction in the face of mootness, when there is involved a recurring controversy of great public interest. 2 Am Jur 2d, Appeal and Error § 768.

The definitive rule was set by the Supreme Court in Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147 (1973).

"The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated ...."

The Roe v. Wade case set forth a classic situation in which there could well be a recurring controversy without effective appellate review, and so held it reviewable.

[2] We find here a situation where there is substantial, recurring public interest, and where in the ordinary course of events, the challenge might well escape ordinary appellate review.

We find, therefore, that the question presented is not barred from appellate review as moot; that the decision of the High Court will stand as to the primary challenge; and that the announced rules (or policy) of the Appellees are contrary to law, and cannot stand.

It is therefore, ORDERED, that the appeal is dismissed, as moot. The Appellees will, however, prior to the next scheduled election, promulgate rules to govern succeeding elections and the broadcast of candidates' speeches in accord with applicable law. Such rules will be adopted, and promulgated, in accord with the Marshall Islands Administrative Procedure Act of 1979 (P.L. 1979-23).