CHUUK STATE SUPREME COURT APPELLATE DIVISION
Cite as Cholymay v. Chuuk State Election Commn,
10 FSM Intrm. 145 (Chk. S. Ct. App. 2001)
 
[10 FSM Intrm. 145]
 
ALANSO CHOLYMAY
Appellant
 
vs.
 
CHUUK STATE ELECTION COMMISSION
and TRACY SOULENG and VICTOR GOULAND,
real parties in interest,
Appellees.
 
APPEAL CASE NO. 02-2001
 
ORDER AND MEMORANDUM OF DECISION
 
Argued: April 6, 2001
 
Trial: April 9-13, 2001
 
Decided: April 13, 2001
 
Entered: April 16, 2001
 
BEFORE:
 
Hon. Richard H. Benson, Temporary Justice, Presiding, Chuuk State Supreme Court*
Hon. Midasy O. Aisek, Temporary Justice, Chuuk State Supreme Court**
Hon. Jerry L. Coe, Temporary Justice, Chuuk State Supreme Court**
 
*Associate Justice, FSM Supreme Court
**qualified attorneys in the State of Chuuk
 
APPEARANCES:
For the Appellant & Cross Appellee:   Johnny Meippen, Esq.
                                                                 P.O. Box 705
                                                                 Weno, Chuuk FM 96942
 
For the Appellee & Cross Appellee:   Ready Johnny, Esq.
(Election Comm'n)                                Chief of Litigation
                                                                Office of the Chuuk Attorney General
                                                                P.O. Box 189
                                                                Weno, Chuuk FM 96942
 
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For the Appellees & Cross Appellant:   Wesley Simina, Esq.
  (Souleng & Gouland) (Souleng)              P.O. Box 94
                                                                    Weno, Chuuk FM 96942
For the Amicus Curiae:                            Keith Hall Barkley, Esq.
(Chuuk Legislature)                                   Michael Schmidtke, Esq.
                                                                    Legislative &
                                                                    Deputy Legislative Counsel
                                                                    P.O. Box 1452
                                                                    Weno, Chuuk FM 96942
 
* * * *
 
HEADNOTES
 
Appeal and Certiorari; Courts
     Only one Chuuk State Supreme Court justice may hear or decide an appeal in the appellate division. The other members of the appellate panel must be temporary justices appointed for the limited purpose of hearing the appeal. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 150 (Chk. S. Ct. App. 2001).
 
Courts; Courts ) Judges
     The constitutional language does not require that a Chuuk State Supreme Court justice sit on an appellate panel when none is available, only that no more than one can sit under any circumstance. But if there are Chuuk State Supreme Court justices who are not disqualified, one must preside over the panel in order for it to be properly constituted. If needed, a justice, who is not disqualified, has a professional and constitutional obligation to serve. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 151 (Chk. S. Ct. App. 2001).
 
Courts ) Recusal
     Recusals are not required to be in writing. While the better practice would be that recusals be in writing, and the Legislature could require that practice if it so chose, there is currently no such statutory or constitutional requirement. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 151 (Chk. S. Ct. App. 2001).
 
Courts ) Recusal
     In the usual case, a Chuuk State Supreme Court justice's temporary unavailability would not be grounds to consider him disqualified and unable to perform his professional and constitutional duty to preside on an appellate panel. But he is disqualified when the court is required by statute to decide the case by a certain date in the near future and the court would be unable to meet its statutory obligation if it had to await the justice's return. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 151 (Chk. S. Ct. App. 2001).
 
Courts ) Recusal
     When all Chuuk State Supreme Court justices have been disqualified from presiding, an appellate panel will have to be constituted without a Chuuk State Supreme Court justice and with a temporarily-appointed justice to preside. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 151 (Chk. S. Ct. App. 2001).
 
Constitutional Law ) Chuuk ) Interpretation; Constitutional Law ) Chuuk ) Judicial Powers
     Because the constitutional provision states that only one Chuuk State Supreme Court justice may hear or decide an appeal, and because "may" is permissive, not mandatory
language, the Constitution
 
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contemplates that there may be an occasion when no Chuuk State Supreme Court justice would hear an appeal. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 151 (Chk. S. Ct. App. 2001).
 
Courts ) Recusal
     The "rule of necessity" cannot be applied to force an otherwise disqualified justice to serve because as long as it is possible to appoint a temporary judge who is not disqualified, the rule of necessity has no application and cannot be resorted to. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 151 (Chk. S. Ct. App. 2001).
 
Constitutional Law ) Chuuk ) Legislative Powers; Courts ) Judges
     Temporary Chuuk State Supreme Court justices, appointed for the limited purpose of hearing the appeal, may be a justice of the FSM Supreme Court, a judge of a court of another FSM state, or a qualified attorney in the State of Chuuk. FSM citizenship is not a constitutional requirement to be a temporary Chuuk State Supreme Court appellate justice and the Legislature cannot add it by statute. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 152 (Chk. S. Ct. App. 2001).
 
Constitutional Law ) Chuuk ) Legislative Powers
     When the Constitution sets forth the requirements for office and does not authorize the Legislature to add further requirements, it is barred from doing so. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 152 (Chk. S. Ct. App. 2001).
 
Courts ) Recusal
     If the Chief Justice is a member of a Chuuk State Supreme Court appellate panel, or is so removed or disqualified, then the most senior associate justice who has not been removed or disqualified from the case shall appoint the temporary justices, but if all Chuuk State Supreme Court justices are disqualified and there is no associate justice that could appoint a panel in the Chief Justice's stead and there is no provision for the Chief Justice to appoint a temporary justice to make the appointments, then the rule of necessity, in this limited circumstance, allows the Chief Justice to make the panel appointments. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 152 (Chk. S. Ct. App. 2001).
 
Constitutional Law ) Chuuk; Elections
     While the Chuuk Constitution may not make voting abroad a constitutionally-protected right, it does not prohibit voting out-of-state. Such voting is a privilege that the Legislature may create and regulate by statute and it has done so. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 153 (Chk. S. Ct. App. 2001).
 
Constitutional Law ) Case or Dispute; Constitutional Law ) Chuuk ) Legislative Powers
     Legislative houses are the final judges of their memberships and under the Chuuk Constitution each house is the sole judge of the election and qualification of its members. This does not make an election case about a member-elect non-justiciable until such time as the house has taken its final action. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 153 (Chk. S. Ct. App. 2001).
 
Elections; Statutes ) Construction
     When the statute requires that a statement of contest must be filed within five days "after declaration of the result of the election by the body canvassing the returns" and also provides that upon "tabulation of each of the precinct votes, the Commission shall tabulate or cause to be tabulated the cumulative results, including the total of election results for each nominee, and make these results known to the public," the declaration is when the results are made known to the public. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 153 (Chk. S. Ct. App. 2001).
 
[10 FSM Intrm. 148]
 
Elections
     An aggrieved candidate does not have to wait until the final certification of the results to file his complaint. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 153 (Chk. S. Ct. App. 2001).
 
Administrative Law ) Judicial Review; Elections
     The Chuuk State Election Commission must meet within three days after certification to consider any complaints. A contestant is justified in considering the Commission's failure to meet within its deadline as a denial of his complaint, and is thus entitled to file a notice of appeal. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 153-54 (Chk. S. Ct. App. 2001).
 
Administrative Law ) Judicial Review; Elections
     Under Chuuk election law, once the votes are tabulated and certified, the Election Commission does not have the power to grant a recount request unless ordered to do so by "a court of competent jurisdiction." It can only deny a recount request and a contestant's only recourse then is an appeal to a court of competent jurisdiction. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 154 (Chk. S. Ct. App. 2001).
 
Statutes ) Construction
     If a current law is unconstitutional, the previous law generally applies. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 154 (Chk. S. Ct. App. 2001).
 
Administrative Law ) Judicial Review; Constitutional Law ) Chuuk ) Legislative Powers; Elections
     The Legislature has, under its power to prescribe by statute for the regulation of the certification of elections and under its power to provide by law for review of administrative agency decisions, the power to place the jurisdiction to review Election Commission decisions in the Chuuk State Supreme Court appellate division rather than in the trial division. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 155 (Chk. S. Ct. App. 2001).
 
Elections
     There is no provision in the election law allowing a voter to cast a ballot after the polling places have closed and everyone in line at the time has been allowed to vote. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 155 (Chk. S. Ct. App. 2001).
 
Elections
     When sufficient evidence was not produced to establish a prima facie case for the reliability of state ballots found misplaced in national election ballot boxes, and those ballots were not kept securely, the election contestant has failed to establish an attribute of reliability that might have lead the court to allow those ballots to have been counted. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 156 (Chk. S. Ct. App. 2001).
 
Elections
     When the faxed official result form from a polling place abroad is illegible and the results are later sent on an unofficial form, the proper relief for those results' unreliability is not their elimination, but that the ballot box be placed in the court clerk's custody, to be opened and the original official result form used in place of the faxed results to determine the proper result. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 156 (Chk. S. Ct. App. 2001).
 
Elections
     When the election statute provides that a recount is to be taken if a recount is necessary for the proper determination of the election contest, the proper standard to use to determine whether "a
 
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recount is necessary for the proper determination of the contest" is that a recount will be ordered when the contestant has shown that it is more likely than not that there were substantial irregularities that could have affected the election's outcome. It is the election contestant's burden to make this showing. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 156 (Chk. S. Ct. App. 2001).
 
Elections
     When one member of the tabulating committee, called the speaker, read out the votes on the ballot, another member verified what he read, and three other members recorded the votes on their tally sheets and stopped at various checking places to check their totals and when the methods used to resolve tally sheet discrepancies ) if two tally sheets agreed and one did not, the result of the two that agreed was used; and if all three differed, the middle result was used ) introduced a substantial chance of inaccurate results, these methods' inaccurate results could have affected the outcome because of the closeness of the official results (a one vote difference). Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 156-57 (Chk. S. Ct. App. 2001).
 
Elections
     The court heartily approved of a recount method designed to achieve an accurate result by which, if there were any discrepancies in tally totals at any of the checking points, the tabulating committee would instead recount the ballots they had counted since the last checking point and not count any further ballots until all tally counts agreed. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 157 (Chk. S. Ct. App. 2001).
 
Administrative Law ) Judicial Review; Elections
     The election statute does not contain a deadline to file an election contest appeal from the Chuuk State Election Commission. The only deadlines in the statute that relate to the court are that the court must "meet within 7 days of its receipt of a complaint to determine the contested election," and that the court must "decide on the contested election prior to the date upon which the declared winning candidates are to take office." Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 157 (Chk. S. Ct. App. 2001).
 
Administrative Law ) Judicial Review; Elections
     An appellee's cross appeal in an election case will be dismissed when there was no evidence that he had ever raised the issue before either the tabulating committee or the Election Commission. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 158 (Chk. S. Ct. App. 2001).
 
Administrative Law ) Judicial Review; Elections
     The absence of a filing deadline in the election statute means that there is no statutory jurisdictional time bar to an appeal, but that any election contest party who appeals within seven days of when the declared winning candidates are to take office runs the risk that the court will either not meet before its authority to decide the appeal expires or that court may be unable to conclude the proceedings and make its decision before its authority to decide the appeal expires. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 158 (Chk. S. Ct. App. 2001).
 
Appeal and Certiorari ) Dismissal
     An appellant may dismiss his own appeal upon such terms as may be agreed by the parties or fixed by the court. An appellee may not take over and prosecute an opposing party's appeal because he would be contesting an issue that he had never before challenged. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 158 (Chk. S. Ct. App. 2001).
 
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COURT'S OPINION

RICHARD H. BENSON, Temporary Justice, Presiding:

     This election contest comes before us as an appeal from the Chuuk State Election Commission by a candidate in the March 6, 2001 election. The appellant, Alanso Cholymay, was a candidate to represent Election District One (Weno, Piis-Panewu and Fonoton) in the Chuuk Legislature House of Representatives. In the official results he finished sixth (2,615 votes), one vote behind real party in interest Tracy Souleng (2,616 votes), and four votes behind real party in interest Victor Gouland (2,619 votes). The top five vote getters in District One fill the seats that represent that district. Citing section 130 of the Election Law of 1996, Chk. S.L. No. 3-95-26, and alleging various irregularities, candidate Cholymay appealed that outcome to the Chuuk State Supreme Court appellate division.

     The appellee, Chuuk State Election Commission, and real parties in interest, Souleng and Gouland, challenged the appellate panel's composition and the appellate division's jurisdiction. We rejected those challenges and proceeded to trial. During trial the real parties in interest filed a cross appeal. We granted Cholymay's motion to dismiss Gouland's cross appeal and denied his motion to dismiss Souleng's cross appeal. We granted some of Cholymay's requested relief and trial proceeded on Souleng's cross appeal. When the results of Cholymay's requested relief became known cross-appellant Souleng moved to dismiss his cross-appeal. We granted that motion and confirmed the election of Souleng and Gouland. Our reasoning follows.

I. Validity of the Appellate Panel's Composition

     The Chuuk State Election Commission and the real parties in interest raised a number of challenges to the appellate division's jurisdiction. Preliminary to those challenges, the real parties in interest questioned whether this appellate panel was itself properly constituted. There were three challenges to the panel's composition: 1) that the lack of a Chuuk State Supreme Court justice on the panel was improper; 2) that two of the panel members were foreign citizens and thus not qualified to sit; and 3) that Chief Justice's appointments to the panel were improper because he is disqualified from appointing an appellate panel in a case in which he is disqualified from sitting. We rejected these challenges. Our reasoning follows.

A. Must a Chuuk State Supreme Court Justice Preside?

     The real parties in interest contended that the Chuuk Constitution requires that a Chuuk State Supreme Court justice preside on every Chuuk State Supreme Court appellate panel. They rely on Article VII, section 5(b) of the Chuuk Constitution which states in pertinent part that:

(b) At least 3 Justices shall hear all appeals in the appellate division. Only one Justice of the State Supreme Court may hear or decide an appeal in the appellate division. The other members of the appellate panel shall be temporary Justices appointed for the limited purpose of hearing the appeal. . . .

Chk. Const. art. VII,  5(b). The real parties in interest contended that this language means that a Chuuk State Supreme Court justice is constitutionally obligated to sit unless otherwise disqualified, and note that only one justice's recusal appears in the written record. They also noted that one other justice is their counsel's father and would properly be disqualified for that reason. No written recusal appears for either the Chief Justice or Justice Marar. The real parties in interest contended that in the absence of such a writing it must be presumed that those justices are not disqualified, and that therefore one of them must preside over this panel, and that if neither presides then the panel is not

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constitutionally constituted and cannot hear this matter. They further contended that because of the constitutional dimension of the justice's obligation to serve, any recusal must be in writing.

     We concluded that the constitutional language does not require that a Chuuk State Supreme Court justice sit when none is available, only that no more than one can sit under any circumstance. But we agreed that if there are Chuuk State Supreme Court justices who are not disqualified, one must preside over this panel in order for it to be properly constituted. If needed, a justice, who is not disqualified, has a professional and constitutional obligation to serve. Section 22 of the Judiciary Act, Chk. S.L. No. 190-08,  22, governs when judges and justices must be disqualified. But it does not require that recusals be in writing. While the better practice would be that such recusals be in writing, and the Legislature could require that practice if it so chose, there is currently no such statutory or constitutional requirement.

     The Chief Justice informed one of the panel members that he was disqualified because he was related to one of the parties and that communication was announced in open court. Another indication of his disqualification was that he did not appoint himself. When this panel was appointed on March 28, 2001, and when trial began, Justice Marar was off-island and unavailable for the immediate future. In the usual case, a Chuuk State Supreme Court justice's temporary unavailability would not be grounds to consider him disqualified and unable to perform his professional and constitutional duty to preside on an appellate panel. This is not the usual case. The court is required by statute to "decide on the contested election prior to the date upon which the declared winning candidates are to take office." Chk. S.L. No. 3-95-26,  131. That date in this case is April 17, 2001. The court would be unable to meet its statutory obligation if it had to await Justice Marar's return. Therefore, under the very unusual circumstances of this appeal, and all Chuuk State Supreme Court justices having been disqualified from presiding, a panel would have to be constituted without a Chuuk State Supreme Court justice and with a temporarily-appointed justice to preside.

     The constitutional provision states that a Chuuk State Supreme Court justice "may hear or decide an appeal." Chk. Const. art. VII,  5(b). "May" is permissive, not mandatory language. Thus this constitutional provision contemplates that there may be an occasion when no Chuuk State Supreme Court justice would hear an appeal. This absence of mandatory language means that, contrary to the real parties in interest's contentions, the "rule of necessity" cannot be applied to force an otherwise disqualified justice to serve. As long as it is possible to appoint a temporary judge who is not disqualified, the rule of necessity has no application and cannot be resorted to.

B. Must Temporary Justices Be FSM Citizens?

     The real parties in interest further contended that since two panel members are foreign citizens they are ineligible to serve as temporary justices. For this they relied on section 36(2) of the Judiciary Act, which states in pertinent part that: "A temporary justice appointed under this Section [to an appellate appeal] shall meet the requirements of Section 13 of this Act and Section 9 of Article VII of the Constitution except for the `birth' and `residency' requirements of Section 9 of Article VII of the Constitution." Chk. S.L. No. 190-08,  36(2). Article VII, section 9 states that:

     No person is eligible to serve as the Chief Justice or as an Associate Justice unless at least 35 years of age, was a born Chuukese, has been a resident of the State of Chuuk for at least 25 years, is a citizen of the Federated States of Micronesia, and has never been convicted of a

Chk. Const. art. VII,  9. The qualifications listed in section 9 for Chuuk State Supreme Court justices are not the same as those the Constitution requires for Chuuk State Supreme Court temporary appellate

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justices, which are as follows:

To complete an appellate panel, the Chief Justice may appoint as temporary Justices, for the limited purpose of hearing the appeal, a justice of the Supreme Court of the Federated States of Micronesia, a judge of a court of another state of the Federated States of Micronesia, or a qualified attorney in the State of Chuuk.

Chk. Const. art. VII,  5(b). Unlike section 9, section 5(b) does not include a provision allowing the Legislature to add further qualifications to those required for temporary appellate justices. FSM citizenship is not a constitutional requirement to be a temporary Chuuk State Supreme Court appellate justice. The Legislature thus cannot add it by statute. When the Constitution sets forth the requirements for office and does not authorize the Legislature to add further requirements, it is barred from doing so. See, e.g., Chipen v. Election Comm'r of Losap, 10 FSM Intrm. 15, 17-18 (Chk. 2001); Olap v. Chuuk State Election Comm'n, 9 FSM Intrm. 531, 533-34 (Chk. S. Ct. Tr. 2000). (We do note, however, that most of those the Constitution lists as eligible are likely to be FSM citizens, although, at the time the Chuuk Constitution was framed, both FSM Supreme Court justices were non-citizens.) We therefore held that the statutory requirement that Chuuk State Supreme Court temporary appellate justices be FSM citizens is contrary to the Constitution and cannot be enforced.

C. Was the Chief Justice Disqualified from Appointing this Panel?

     The real parties in interest further contended that if in fact the Chief Justice is disqualified from presiding over this panel, he is then also disqualified from appointing us to sit on this panel. The applicable constitutional provision reads: "If the Chief Justice is a member of the appellate panel, or is so removed or disqualified, the most senior Associate Justice who has not been removed or disqualified from the case shall appoint the temporary Justices." Chk. Const. art. VII,  5(b). The statutory provision is similar. See Chk. S.L. No. 190-08,  36(3).

     As discussed above, all Chuuk State Supreme Court justices are disqualified in this case. This is thus one of those exceedingly rare instances where the rule of necessity applies. There was thus no associate justice that could appoint this panel in the Chief Justice's stead and there was no provision for the Chief Justice to appoint a temporary justice to make the appointments. Since a panel had to be appointed, the rule of necessity, in this limited circumstance, allowed the Chief Justice to make the appointments to this panel.

II. The Appellate Division's Jurisdiction

     After rejecting the challenges to the panel's composition, we then considered the appellees' four challenges to the appellate division's jurisdiction over this case. Those challenges may be summarized as follows: 1) whether article VII of the Constitution permits a direct appeal of an election contest to the appellate division; 2) whether the appeal's timing is such that the court cannot exercise jurisdiction; 3) whether section 133 of the Election Law of 1996 makes this appeal non-justiciable; and 4) whether, for the alleged irregularities that involve votes cast abroad, the court lacks jurisdiction because voting outside of Chuuk is not a constitutionally protected right and therefore unconstitutional. We take these in reverse order.

A. Constitutionality of Voting Abroad

     The Constitution protects various voting rights in the State of Chuuk ) eighteen-year-olds "may vote in the State," Chk. Const. art. XII,  2; the Legislature must make laws "for the protection of voting in the State of Chuuk," id.  3; and there shall be an election commission "for the administration

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of elections in the State of Chuuk," id.  4. And, "[e]xcept as so provided, no [Chuuk] resident entitled to vote may be denied the privilege to vote or be interfered with in voting." Chk. Const. art. XII,  3. Since all these constitutional provisions specifically refer to voting "in the State of Chuuk" the appellees contended that voting outside of Chuuk is unconstitutional and those votes should not be counted in this case, so that there is no appeal to hear. While voting abroad may not be a constitutionally-protected right, we concluded that the Constitution does not prohibit voting out-of-state. Such voting is a privilege that the Legislature may create and regulate by statute. The Legislature has done so. Chk. S.L. No. 3-95-26,  86-97. This challenge was therefore without merit.

B. Non-justiciability of Appeal

     Section 133 of the Election Law states that "[i]f in any election contest which does not involve members-elect of the Legislature, it appears that another person than the defendant has the largest number of legal votes, the Court shall declare that person elected." Chk. S.L. No. 3-95-26,  133. The statute also states that "[i]n the case of a contested election of a member-elect of the Senate or House of representatives, the decision of the specific House concerned shall prevail and is final." Id.  131. The appellees contended that this means that the court cannot hear an election appeal involving members-elect of the Legislature because such cases are non-justiciable.

     We disagree. The statute merely restates the well-known constitutional principle that legislative houses are the final judges of their memberships. See Chk. Const. art. V,  7(c) ("Each house is the sole judge of the election and qualification of its members."). This does not make this case non-justiciable until such time as the House has taken its final action. Cf. Aten v. National Election Comm'r (III), 6 FSM Intrm. 143, 145 (App. 1993) (once Congress unconditionally seated a candidate, election case became non-justiciable).

C. The Appeal's Timing

      The appellees contended that the court is without jurisdiction to hear this appeal because, in their view, the notice of appeal was filed too soon. They further contended that since the Election Commission rendered its opinion after the appeal had been filed, it did not have jurisdiction to render a decision, and that therefore there is no Election Commission decision to appeal from, and since there is no decision to appeal from, we have no jurisdiction to hear this appeal.

     The statute requires that a statement of contest must be filed within five days "after declaration of the result of the election by the body canvassing the returns." Chk. S.L. No. 3-95-26,  127. The appellees contend that the declaration took place on March 16, 2001, when the Election Commission certified all the election results. Cholymay contends that results were declared at various times, e.g., March 8, 2001 for the Guam box, with the Pasadena box being last on March 10, 2001.

     Cholymay is entitled to rely upon section 116 of the Election Law. That section provides that "[u]pon tabulation of each of the precinct votes, the Commission shall tabulate or cause to be tabulated the cumulative results, including the total of election results for each nominee, and make these results known to the public." Chk. S.L. No. 3-95-26,  116. We believe that the declaration is when the results are made known to the public. Cholymay would then have had until March 15, 2001, at the latest, to file an election complaint. Id.  127. An aggrieved candidate does not have to wait until the final certification of the results to file his complaint. The Election Commission must meet within three days after that to consider any complaints. Id.  130. They should therefore have started their hearing by March 18, 2001. When they did not, Cholymay appealed on March 19, 2001. Evidently, Cholymay considered the Commission's failure to meet within its deadline as a denial of his complaint. He was justified in doing so, even though if the Commission had met on time it would have had a further two

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days after the start of its meeting in which to decide the contest. Id. Depending on when the hearing started, a decision by March 20, 2001 might have been timely.

     Cholymay was entitled to consider the Commission's inaction as a denial and file a notice of appeal. Accord Wiliander v. Mallarme, 7 FSM Intrm. 152, 158 (App. 1995). Also, once the votes were tabulated and certified on March 16, 2001, the Election Commission did not have the power to grant most of the relief requested, a recount, unless ordered to do so by "a court of competent jurisdiction." Chk. S.L. No. 3-95-26,  120. After the March 16, 2001 election certification, the Election Commission could only deny a recount request. Cholymay's only recourse then was an appeal to "a court of competent jurisdiction."

     A careful lawyer might have filed a second notice of appeal after the Election Commission's March 26, 2001 decision, safe in the knowledge that at least one of the notices of appeal must be valid. But in this case we hold the first notice was timely. We also note, without deciding if the principle could be applied in an election contest, that premature notices of appeal are in many circumstances effective. SeeChk. App. R. 4(a)(2).

D. Constitutionality of Section 130

     The appellees contended that section 130 of the Election Law, permitting an appeal from the Election Commission's decision directly to the appellate division is unconstitutional because article VII, section 3(c) gives the trial division the authority to review administrative agency decisions. We tentatively held that section 130 was not unconstitutional and proceeded with the trial. But because the Chuuk Attorney General's Office was in the unusual position of contending that a legislative enactment was unconstitutional rather than defending its constitutionality, we deferred a final ruling and requested that the Legislature brief the issue of the constitutionality of its enactment, if it so desired. The Legislature filed an amicus curiae brief.

     The appellees sought dismissal of the case on this ground, but if section 130 were held unconstitutional we would not dismiss the case. We would instead transfer it to the trial division for adjudication since if the current law is unconstitutional, the previous law generally applies. Cholymay should not be penalized for following the statute.

     The Constitution provides that "[t]he trial division of the State Supreme Court has jurisdiction to review the actions of any state administrative agency, board, or commission, as may be provided by law." Chk. Const. art. VII,  3(c). The Constitution also provides that "[t]he appellate division of the State Supreme Court has jurisdiction to review all decisions of the trial division, of inferior state courts, and of the municipal courts. . . ." Chk. Const. art. VII,  4. The appellees contended that these provisions mean that an appeal from the Election Commission must go only to the Chuuk State Supreme Court trial division. In opposition, Cholymay relied in part on article XII which provides in part that "[t]he Legislature shall prescribe by statute . . . for the protection of voting in the State of Chuuk." Chk. Const. art. XII,  3. Article XII also provides that "[t]here shall be an independent Election Commission vested with powers, duties, and responsibilities, as prescribed by statute for the administration of elections in the State of Chuuk, including voter registration and the conduct and certification of elections." Chk. Const. art. XII,  4.

     We conclude that the relevant constitutional provisions do not bar the Legislature from providing by statute for an appeal directly from the Chuuk State Election Commission to the Chuuk State Supreme Court appellate division. Article XII requires that the Legislature create an Election Commission and allows the Legislature to prescribe by statute for the protection of voting rights and the regulation of elections in Chuuk. It has done so, and in doing so has statutorily provided for an

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appeal from the Election Commission to the Chuuk State Supreme Court appellate division. The Constitution does provide for appeals from administrative agencies to the Chuuk State Supreme Court trial division in article VII, section 3(c). Unlike those cases enumerated in article VII, section 3(a), the Constitution does not make the trial division's jurisdiction exclusive, although it easily could have.

     Furthermore, section 3(c) qualifies the trial division's jurisdiction with the proviso "as may be provided by law." The election law, as enacted by the Legislature, does not provide the trial division with jurisdiction. It provides the appellate division with jurisdiction. The Constitution could have placed jurisdiction to decide election appeals in the trial division, whose decisions could then be appealed to the appellate division, Chk. Const. art. VII,  4, but it did not. One previous decision of the appellate division has considered whether the trial division can hear election appeals and concluded that it does not. In David v. Uman Election Comm'r , 8 FSM Intrm. 300d, 300h (Chk. S. Ct. App. 1998), the court concluded that there was no provision of law that authorized election appeals to the trial division. The Legislature has decided, under its power to prescribe by statute for the regulation of the certification of elections and under its power to provide by law for review of administrative agency decisions, to place the jurisdiction to review Election Commission decisions in the Chuuk State Supreme Court appellate division rather than in the trial division with an appeal to the appellate division and a further possible appeal to the FSM Supreme Court appellate division. We conclude that it has the power to do so. We therefore have jurisdiction to hear this appeal pursuant to section 130. Chk. S.L. No. 3-95-26,  130.

III. The Merits of Cholymay's Appeal

     We then proceeded to trial in the appellate division. Chk. S.L. No. 3-95-26,  131. After presentation of Cholymay's case, the real parties in interest moved for dismissal on the ground that Cholymay had not carried his burden of proof for the relief sought. We considered this motion analogous to a Rule 41(b) motion in the trial court and heard argument.

A. Majuro Voter

     One voter in Majuro was denied the right to vote because her name did not appear on the list of those eligible to vote on Majuro, although she had submitted the proper forms to the Chuuk State Election Commission. Cholymay asked that she be allowed to cast her vote now. He did not claim that it was improper for the election officials to deny her a ballot when her name was not listed.

     It is unknown why her name did not appear on the list. But there is no provision in the election law allowing a voter to cast a ballot after the polling places have closed and everyone in line at the time has been allowed to vote. See Chk. S.L. No. 3-95-26,  59, 81. We therefore concluded that Cholymay had not made out a prima facie case for relief he requests. We therefore dismissed this claim for relief.

B. Misplaced Votes

     Cholymay asked that various Election District One ballots that were placed in other ballot boxes be counted. Around ten ballots were misplaced in national election ballot boxes (the national and state elections were held the same day) and were in the custody of the National Election Commissioner for Chuuk. Additionally, some of the votes cast on Guam were put in state election ballot boxes other than District One (Northern Namoneas).

     Those ballots misplaced in national election ballot boxes were, once discovered, placed in a sealed envelope in a drawer of the Chuuk National Election Commissioner's desk. Two state ballots

[10 FSM Intrm. 156]

were found in the national election ballot box in Winipis (Sapuk) and there are affidavits that the state election box at that polling place had two fewer ballots than were given out and that the two ballots were found in the national box. Such evidence would have established a attribute of reliability that might have lead us to allow those ballots to have been counted. Unfortunately, no such evidence was produced for the rest of the state ballots found in national boxes, and there is no way to tell which of the ten ballots in the National Election Commissioner's hands these two are. Additionally, these ballots were not kept securely. The same lack of evidence is apparent for those District One state ballots that were found in other state boxes. Cholymay therefore failed to establish a prima facie case for the reliability of the misplaced ballots and we dismissed this claim for relief.

C. Pasadena Ballot Box Results

     One VAAPP (voting at an alternate polling place) polling place was established in Pasadena, California. The votes cast there were counted there and the official result form was faxed to the Chuuk State Election Commission. The portion of the fax covering the House seats for District One was illegible. It was put aside. Days later, the officials in Pasadena were contacted and asked to fax another copy of the results. Since the official result form had already been placed in the ballot box and the box freighted to Chuuk, the results were sent on an unofficial form. Cholymay requested that these results be thrown out because of the unknown source and reliability of the second fax results. We agreed that a prima facie showing of reliability had been established and denied the dismissal motion.

     By the time of trial, the Pasadena box had arrived in Chuuk and was in storage at the airport because of unpaid freight charges. The appellees therefore moved that the box be opened and the official result form be removed and examined. Cholymay opposed. He contended that the proper relief for the unreliability was the elimination of the Pasadena results. We determined that the appropriate relief would be to place the box in the court clerk's custody, to be opened and the original official result form used in place of the faxed results to determine the proper result of the Pasadena vote for these three candidates. This was done and it was found that the official result form totals were identical to the faxed totals.

D. Guam Alternate Polling Place Ballot Box Recount

     Cholymay also sought a recount of the District One votes cast in the VAAPP box on Guam. We concluded that he had established a prima facie case that there were substantial irregularities in the vote counting and tabulation that could have affected the result. He asked that the court order a recount. We therefore denied the dismissal motion.

     The statute provides that "[a]t trial, if ordered the ballots shall be opened and a recount taken . . . ." Chk. S.L. No. 3-95-26,  132. This is to be done when "a recount is necessary for the proper determination of the contest." Id. We concluded that the proper standard to use to determine whether "a recount is necessary for the proper determination of the contest" is that a recount will be ordered when the contestant has shown that it is more likely than not that there were substantial irregularities that could have affected the election's outcome. Cf. Olter v. National Election Comm'r, 3 FSM Intrm. 123, 136-37 (App. 1987). It is the election contestant's burden to make this showing.

     After the parties rested, we made the following findings of fact. Two committees were used to count the Guam VAAPP, each counting about half of the over 500 votes in the box. The ballots were counted using the following method. One member of the tabulating committee, called the speaker, read out the votes on the ballot, another member verified what he read, and three members recorded the votes on their tally sheets. Every now and then, this would stop at a checking point and the talliers would see if their vote totals agreed. If the totals did not all agree, the discrepancies were resolved

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in the following manner: if two tally sheets agreed and one did not, the result of the two that agreed was used; and if all three differed, the middle result was used. For example, if two tally sheets had totals of 49 and one had 48, then 49 was the official result. And if one tally sheet had a total of 47, another 48, and the third 50, then the official result would be 48. We found that during one committee's counting of the Guam box it stopped at a checking point about five times. A few of those times revealed discrepancies that were reconciled using the methods described.

     We concluded that the methods used to resolve discrepancies introduced a substantial chance of inaccurate results, and because of the closeness of the official results (a one vote difference between Cholymay and Souleng) these inaccurate results could have affected the outcome. We recognized the strength of the argument that there was no showing of which of the eighteen candidates on the District One ballot (or which of the twelve who were running for the five House seats) had discrepancies in their vote totals, but we feel that this situation comes within the meaning of "could have affected the outcome." We therefore concluded that Cholymay had met his burden of proof and ordered that the Chuuk State Election Commission proceed with the recount of the Guam VAAPP District One box. We further concluded that only the votes for the three candidates party to this appeal need be recounted because those candidates who were elected and finished one through three were so far ahead (well over a hundred votes) that their election outcome could not change, and those candidates who finished seventh through twelfth were so far behind (also well over a hundred votes) that the recount could not change their result either.

     The parties agreed that if there were any discrepancies in tally totals at any of the checking points that instead of using the methods the court had just found to introduce a substantial chance of inaccurate results, the tabulating committee would instead recount the ballots they had counted since the last checking point and not count any further ballots until all tally counts agreed. We thanked the parties for their agreement on a method designed to achieve an accurate result, and we heartily approved of the method chosen.

IV. Souleng's Cross Appeal

     Gouland and Souleng filed a cross appeal on April 10, 2001. The cross appeal asked the court to order the Election Commission to open and count 25 ballots cast in Sefin (Mwan) that had not been counted because the voters' names were not on the master list and their affidavits attesting to their right to vote were not in or attached to the envelopes in which their ballots were sealed. Cholymay and the Chuuk State Election Commission both moved to dismiss the appeal on the ground of timeliness. Cholymay also raised the question of whether Gouland's and Souleng's interests were adverse in this appeal because Gouland had not raised this issue before the Election Commission.

     Both Cholymay and the Election Commission conceded that the statute does not contain a deadline to file an election contest appeal from the Election Commission. The only deadlines in the statute that relate to the court are that the court must "meet within 7 days of its receipt of a complaint to determine the contested election," and that the court must "decide on the contested election prior to the date upon which the declared winning candidates are to take office." Chk. S.L. No. 3-95-26,  131. Cholymay and the Election Commission contended that the entire scheme envisioned in the election statute was that election contests were expedited matters and a cross appeal that came, at a minimum, fifteen days after the Election Commission's March 26th decision and less than seven days before the appeal had to be decided (April 16th) had to be considered untimely. They urged us not to use the appeal deadline of 30 days set forth in the appellate rules. Chk. App. R. 4(a)(1).

     The cross appellants stated that they did not file the cross appeal earlier because they were unsure whether winning candidates had standing to appeal Election Commission decisions and because

[10 FSM Intrm. 158]

they did want to appear that, by filing an appeal, they were waiving their challenges to this court's jurisdiction to hear election contest appeals. They noted that they filed their cross appeal the day after we denied their jurisdictional challenges. They also noted that their cross appeal is a narrow issue, capable of easy resolution, and that if the court granted the relief they requested that the Election Commission could quickly tabulate the 25 uncounted Sefin ballots.

     We dismissed Gouland's cross appeal because there was no evidence that he had ever raised this issue before either the tabulating committee or the Election Commission. The motions were denied as to Souleng. We concluded that the absence of a filing deadline in the election statute meant that there was no statutory jurisdictional time bar to Souleng's April 10th cross appeal. (This is an unfortunate flaw in the election statute that the Chuuk Legislature might see fit to remedy with future legislation.) We only note that an election contest party who appeals within seven days of when the declared winning candidates are to take office runs the risk that the court will either not meet before its authority to decide the appeal expires or that court may be unable to conclude the proceedings and make its decision before its authority to decide the appeal expires. We then proceeded to trial on Souleng's cross appeal.

V. Effect of Guam Recount Result

     During trial on the cross appeal, the official results of the recount were delivered to the court and admitted without objection as an exhibit. Those results differed from the previous official results. Cholymay had three fewer votes than in the earlier results; Souleng had two more votes than before; and Gouland had one fewer vote. If the previous official results were adjusted to reflect these recount totals, the new totals would be Gouland, 2,618 votes; Souleng, 2,618 votes; and Cholymay, 2,612 votes. The recount therefore did not change Cholymay's sixth place finish.

     In light of this result, and on the ground that as a winning candidate he had no standing to proceed as an appellant in an election contest, Souleng moved to dismiss his cross appeal. Cholymay opposed the motion on the ground that there were still 25 votes outstanding that might still affect the election's outcome, and announced that he withdrew his previous opposition to the cross appeal. He, in effect, asked that the court grant the cross appeal and order that the 25 Sefin ballots now be counted.

     The motion was made pursuant to the second sentence of Chuuk Appellate Procedure Rule 42(b). That provision allows an appellant to dismiss his own appeal "upon such terms as may be agreed by the parties or fixed by the court." Chk. App. R. 42(b). Cholymay's new position was, in effect, an attempt to take over and prosecute an opposing party's appeal. He would be contesting a part of the election that he had never before challenged. Those 25 ballots were as open to being challenged by Cholymay as by Souleng. But he did not challenge the tabulating committee's decision not to count them. He did not contest their not being counted before the Election Commission. Nor was the failure to count the 25 Sefin ballots included as an issue on appeal in his Notice of Appeal; Issues on Appeal, filed March 19, 2001. He cannot now use it as a ground to contest the election. Souleng's motion to dismiss his cross appeal was therefore granted.

VI. Conclusion

     Accordingly, we concluded that the overall election results) who the winning candidates were ) had not changed. Therefore we hereby order that the election in District One is confirmed.

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