FSM SUPREME COURT
TRIAL DIVISION
Cite as Chipen v. Election Commr of Losap,
10 FSM Intrm. 15 (Chuuk 2001)

[10 FSM Intrm. 15]

TWINIS CHIPEN, as a candidate for Mayor of Losap and
DETOR ROLLIS, as a candidate for Assistant Mayor,
REICHY CHIPEN, RAYSON RUFES, ROGER MORGAN,
TOSUO LOUIS, RITARO CHIPEN, TOMINO TOMOICHY,
TUTAMO CHIPEN, DE-YOUNG CHIPEN, RAMSIS SOSTIN,
RENSINA CHIPEN, ROSEME CHIPEN, and all other voters
of Losap who are residing in Hawaii,
Plaintiffs,

vs.

THE ELECTION COMMISSIONER OF LOSAP
MUNICIPALITY and THE MUNICIPALITY OF LOSAP,
Defendants.

CIVIL ACTION NO. 2001-1002

MODIFIED PRELIMINARY INJUNCTION

Richard H. Benson
Associate Justice

[10 FSM Intrm. 16]

Hearing:  January 19, 22, 2001
Decided:  January 23, 2001
Modified:  January 24, 2001

APPEARANCES:
     For the Plaintiffs:     Wesley Simina, Esq.
                                       P.O. Box 94
                                       Weno, Chuuk FM 96942

     For the Defendants:     Ready Johnny, Esq.
                                            Chief of Litigation
                                            Office of the Chuuk Attorney General
                                            P.O. Box 189
                                            Weno, Chuuk FM 96942

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HEADNOTES
Constitutional Law ) Chuuk ) Legislative Powers; Elections
     Even if the purported enactment of the education qualifications for mayor and assistant mayor were unquestionably enacted, the municipal council is without authority to add qualifications to those set out in the municipal constitution unless the constitution so authorizes the council.Chipen v. Election Comm'r of Losap, 10 FSM Intrm. 15, 17-18 (Chk. 2001).

Constitutional Law ) Equal Protection; Elections
     Unlawfully added education qualifications for mayor and assistant mayor improperly deprive candidates and those similarly situated of the equal protection of the law as guaranteed by the FSM Constitution.  Chipen v. Election Comm'r of Losap, 10 FSM Intrm. 15, 18 (Chk. 2001).

Civil Procedure ) Injunctions;  Elections
     A municipality and its election commissioner will be restrained from enforcing added qualifications for municipal office when a short time remains to file as a candidate and the harm is irreparable to those potential candidates who are denied nominating petitions because they do not meet the unlawful added qualifications, when there is no harm to the municipality or the election commissioner if they are required to allow the candidacies, and when the public interest is served if eligible citizens are able to present themselves for election.  Chipen v. Election Comm'r of Losap, 10 FSM Intrm. 15, 18 (Chk. 2001).

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COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     This matter came before the court on notice on January 19 and 22 on the plaintiffs Application for a Preliminary Injunction filed January 16, 2001.  The plaintiffs seek to prohibit the defendants from enforcing two provisions of the Losap election ordinances: those which prohibit mailing out absentee ballots and those setting out education requirements for candidates for mayor and assistant mayor of Losap.

[10 FSM Intrm. 17]

     The parties stipulated as follows:

     1.  The Losap election is set for February 26, 2001.

     2.  The deadline for filing nominating petitions is January 26, 2001.

     3.  The candidates for mayor (none of whom have filed their petitions) are Twinis Chipen (plaintiff), Takasy Reynold (incumbent) and George Ruben.  Each candidate has a running mate as their assistant mayor.  All six are eligible voters and meet all requirements set out in the Losap constitution.

     4.  Twinis Chipen and George Ruben requested nominating petitions from the Losap election commissioner, who refused because they could not show a college degree of at least an Associate of Arts or an Associate of Science.

     5.  Takasy Reynold has given his college degree to the election commissioner, but has not picked up his petition.

     6.  Two versions of the election ordinances and regulations were admitted as exhibits.

     7.  The election commissioner refused to give Twinis Chipen and George Ruben petitions based on the requirement of a college degree for mayoral candidates in Section A(3) of the election ordinance 09-98 admitted as Exhibit 2. He refused petitions to the running mates of these two based on Section B(2) of the same ordinance which requires assistant mayors to be high school graduates.

     Based on the testimony and evidence presented, I make the following findings of fact.

     1.  No question was raised about the validity of the enactment of the Losap Ordinance 09-98 provision which limits absentee ballots to those cast on Weno.

     2.  Ordinance 09-98 , entitled Losap Municipal Election Rules and Regulations, which purports to limit the candidates for mayor and assistant mayor to those with college and high schools degrees came about in this way: The major part of that ordinance was enacted by the Losap Municipal Council September 9, 1998, the portion concerning the qualifications was prepared by the mayor and the election commissioner more than one year after the ordinances enactment and inserted by them in the final version of the ordinance.

     3.  Because of my view that the adding of qualifications is not permitted, it is unnecessary to make further findings as to the enactment of the education qualifications at issue.

     4.  Plaintiff Detor Rollis is a candidate for assistant mayor, running with Twinis Chipen.

     From the above stipulations and findings, the court concludes as follows:

     1.  Concerning absentee voting, there is little likelihood of success on the merits of this ground for injunctive relief.  The case is not final, but of some authority is Chipen v. Losap Election Commissioner, 9 FSM Intrm. 46 (Chk. S. Ct. Tr.), stay pending appeal denied, 9 FSM Intrm. 80 (Chk. S. Ct. App. 1999).  The harm is not irreparable because a voter can return to Chuuk to vote.

     2.  It is not necessary to make a conclusion of law as to the purported enactment of the education qualifications for mayor and assistant mayor.  Even if unquestionably enacted, the municipal

[10 FSM Intrm. 18]

council is without authority to add qualifications to those set out in the constitution unless the constitution so authorizes the council.  Olap v. Chuuk State Election Comm'n, 9 FSM Intrm. 531, 533-34 (Chk. S. Ct. Tr. 2000).  The defendants cite Article VIII Section 3 of the Losap constitution (Mayor and the Assistant Mayor will be elected by the people in accordance with election law enacted by the Achu-Fonu Council), as permitting the council to add qualifications.  I am not persuaded.  See, for example, article IX, section 9, FSM Constitution, explicitly granting Congress the power to add qualifications for members of Congress.

     3.  The education qualifications for mayor and assistant mayor, as set out in the ordinance improperly deprive Twinis Chipen, Detor Rollis and those similarly situated of the equal protection of the law as guaranteed by the FSM Constitution.

     4.  If the plaintiffs, Twinis Chipen and Detor Rollis, are unable to receive a nominating petition before 26 January, they have no opportunity to be candidates in the February election.  There is insufficient time to pursue normal legal remedies. There is no redress for this problem in the Losap election ordinance. His harm is irreparable.  There is no harm to the defendants if they are required to allow Twinis Chipens and Detor Rolliss candidacies.  The public interest is served if eligible citizens are able to present themselves for election.  There is no factor against this interest.  Based on the evidence presented and the written and oral arguments of counsel, the likelihood of the plaintiffs success on the merits is apparent.

     5.  The Application for a Preliminary Injunction must be granted.

     6.  Because of the presentations at oral argument, I find that there would be no monetary loss to the defendants should the preliminary injunction be granted. Therefore no security bond will be required of the plaintiffs.

     The defendants are accordingly enjoined and restrained from implementing and enforcing the provisions of Losap Ordinance 09-98 relative to educational qualifications for candidates for the offices of mayor and assistant of Losap.
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