1 MILR (Rev.) 167

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.CT. CIVIL NO. 89-02
(High Ct. Civil Nos. 1988-084 and 1988-082, consolidated)

TOJIO CLANTON,
Plaintiff-Appellant

-v-

MARSHALL ISLANDS CHIEF ELECTORAL OFFICER SHIRO RIKLON,
Defendants-Respondents,

and

NIDEL LORAK and JACK HELKENA,
Plaintiffs-Appellants,

-v-

MARSHALL ISLANDS CHIEF ELECTORAL OFFICER SHIRO RIKLON, et al.,
Defendants-Respondents.

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 judgment of the High Court dismissing two suits asking that 1987 elections to fill Arno and Ujae seats in the Nitijela be set aside and new elections ordered because those suits were between the same parties, asserted same rights based on same facts and sought same relief as in actions earlier filed and still pending.

DIGEST:

1. 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.

2. ABATEMENT OF ACTIONS – Same: "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.

OPINION OF THE COURT BY ASHFORD, C.J.

These are two more in the series of actions by candidates for Ujae and Arno seats in the Nitijela who failed to be elected in 1987. Prior to the filing of the complaints in these actions, the following had occurred:

In December 1987, these candidates and others filed appeals in the High Court from the Chief Electoral Officer's denial of their petitions for recounts. While those petitions were pending, these candidates and others petitioned the High Court for a writ of mandamus requiring the Chief Electoral Officer to refer questions of voter qualifications to the High Court. In February 1988, the High Court upheld the Chief Electoral Officer's denial of the petitions for recount and ruled against petitioners on the voters' qualifications questions. In mid-March 1988, the Appellants and petitioners in those actions filed notices of appeal to this court.3 On March 31, 1988, the three candidates who are Appellants in this case filed these actions in the High Court seeking to have the 1987 election declared null and void and new elections ordered for the Ujae seat and "the" Arno seat (without specifying which one of the two) in the Nitijela. Besides the Chief Electoral Officer, the defendants named in these actions were the successful candidates who had been elected to the Ujae and Arno seats. No relief against the successful candidates was sought.

The Complaints in these actions recited the unsuccessful efforts of Plaintiffs to obtain recounts and to obtain a ruling against the qualifications of certain voters, reiterated the same complaints that had been made to the Chief Electoral Officer and High Court in the earlier cases, contained conclusory allegations that the conduct of the Chief Electoral Officer "fatally compromised the secrecy, security and integrity of the election" and conclusory allegations that plaintiffs would be elected if the irregularities were corrected and improper votes not counted. In addition to provisions of the Elections and Referenda Act l980,4 Plaintiffs relied on Article IV, § 9, of the Constitution5 as a basis for relief. The complaint of the Ujae candidate set forth no new factual allegations. The complaint of the Arno candidates did set forth in paragraphs 6(a) through (d) several irregularities not earlier raised.

Defendants moved for dismissal of the complaints on the grounds of abatement, res judicata and election of remedies. The High Court sustained the pleas in abatement and dismissed both actions.

Appellants have cited U.S. v. Oregon State Medical Soc., 343 U.S. 326, 96 L.Ed. 978, 72 S.Ct. 690 (1952) for the proposition that if the remedy sought in the second action is concurrent or cumulative the second action does not abate. The case states that an action for injunction to prevent future violations does not prevent concurrent or subsequent remedies for past violations of anti-trust statutes. In these cases, we are concerned with the same series of events, not with successive, earlier and later events of a similar nature. However, this court agrees with the author of the opinion in the cited case that "(i)t will simplify consideration of such cases as this to keep in sight the target at which relief is aimed." 96 L.Ed. 978 at 984. The targets in the prior actions and in these actions were the Nitijela seats for Ujae and Arno that were filled at the 1987 election.

[1] Appellants have also cited and quoted from The Haytian Republic, 154 U.S. 118, 38 L.Ed. 930, 14 5. Ct. 992 (1894), to the effect that 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. In that case the court held, not surprisingly, that a libel of a vessel for violations of the Chinese Exclusion Act and for smuggling opium is no bar to a subsequent libel of the same vessel for similar violations committed prior to the filing of the first libel.

[2] "Same," as used in stating and applying the principles of abatement does not mean "identical" causes of action and relief sought, as contended by counsel at oral argument. It means, as the court stated in the passage quoted by Appellants, the "essential basis" must be the same.

In the case before the court, the parties were the same as in the still pending prior actions, except that the successful candidates were added as defendants. Their presence did not alter the basics of the situation, nor was any relief directly against them asked. The rights asserted and the bases for relief were the same, but for the additional irregularities alleged in the Arno candidates' complaint. Those were:

(a) Ballot boxes were not present at polling places (2 MIRC Ch. 1, § 69 requires "sufficient" ballot boxes at each polling place).

(b) Polling places were not opened at 7 a.m. and closed at 7 p.m. (2 MIRC Ch. 1, § 70 allows earlier and later closing in stated circumstances).

(c) Ballots were accepted at places not designated as polling places pursuant to the statute (the cited section, 2 MIRC Ch. 1, § 68 has to do with staffing, not location, of polling places).

(d) No certification was made that ballots were dealt with according to the statute (2 MIRC Ch. 1, § 75(2)).

To the extent these were indeed irregularities no assertion was made that they occurred at Arno or how they affected, if at all, the votes tallied or omitted from tallying either for the plaintiffs or the winning candidates.

The relief prayed for, in these cases, was that the Ujae and Arno elections be declared void and new elections held. That relief was aimed at the same target at which the relief in the earlier cases was aimed.

The judgment of the High Court is affirmed.

Dennis J. Reeder for Appellants
Dennis M. McPhillips, Assistant Attorney General, for Appellees

___________

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 appeals that were not abandoned are dealt with in opinions filed concurrently herewith in Clanton, et al. v. MI Chief Elec. Off.(1), MILR (Rev.) 146 (Aug 2,1989) Clanton, et al. v. MI Chief Elec. Off. (2), MILR (Rev.) 156 (Aug 2, 1989).

4The statute in effect at the time of the election was the Elections and Referenda Act 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.

5Any question that arises concerning the right of any person to vote at an election of a member or members of the Nitijela, or to be or to remain a member of the Nitijela, or to exercise the rights of a member, or concerning the conduct of any person in relation to any election of a member or members of the Nitijela, shall be referred to and determined by the High Court.