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COURT'S OPINION

KESKE S. MARAR, Associate Justice:

I. Statement of the Case

     This action challenges the validity of the May 14, 2002 municipal election in Fefan Municipality, Chuuk State. Plaintiffs are represented by their attorney of record, Johnny Meippen, Esq. Defendant Fefan Election Commission is represented by trial counselor Julio Akapito. Real Parties in Interest, Tikikos Namelo and Istor Muritok, appear to be represented by the Office of the Attorney General of Chuuk State, by and through Kachuo Eko and Tony Rosokow1 .

     Plaintiffs seek a declaratory judgment that the election was void due to violations of the right of the citizens of Fefan to vote and to have a fair and democratic election. This claim is predicated on the alleged violations by Defendants of Article XIII, § 5 of the Chuuk State Constitution, which provides:

Id. (emphasis added).

     Plaintiffs also seek a declaration that the election is void because it was not conducted by the Chuuk State Election Commission, as is required, in the Plaintiffs' view, by Article XII, § 4 of the Chuuk State Constitution. Article XII, § 4 provides: "There 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 certifications of elections." Id. (emphasis added).

     Plaintiffs argue that Article XII, § 4 is all inclusive, and that it establishes a constitutional

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requirement that the Chuuk State Election Commission conduct all elections in the State of Chuuk. They contend that any statute or municipal constitution which permits or requires any other method for the conduct of elections violates Article II, § 1 of the Chuuk State Constitution – the supremacy clause – which provides: "This Constitution is the supreme law of the State of Chuuk. An act of government in conflict with this Constitution is invalid to the extent of the conflict."

     If the Court finds in the Plaintiffs' favor, they request that the Court order a new election to be held, conducted by the Chuuk State Election Commission as required, in their view, by Article XII, § 4.

     Defendants2 move to dismiss for failure to state a claim upon which relief can be granted. Chk. Civ. R.12(b)(6). First, Defendants contend that this Court does not have subject matter jurisdiction over a municipal election contest where the municipality does not explicitly confer jurisdiction on this Court in its municipal constitution. This contention is predicated on their interpretation of the Chuuk State Election Law, specifically Chk. S.L. No. 3-95-26, § 8, which provides, in relevant part: "The Commission shall have the power to conduct all elections in the State of Chuuk, including national and municipal elections, if so provided by law or municipal constitutions. Id. (emphasis added)

     The Defendants contend that this statutory language permits a municipality to create its own municipal election commission in its constitution, and thereby avoid the requirement – which the Plaintiffs find in Article XII, § 4 – that the Chuuk State Election Commission conduct all elections in the State of Chuuk.

     Defendants also contend that the case is moot because the Real Parties in Interest have been sworn in and acting in the capacity of Mayor and Deputy Mayor, respectively, for an extended period of time. Defendants argue in this regard that to order a new election at this late date would in some way void all of the official actions of the Mayor and Deputy Mayor since they took office following the May 14, 2002 election.

II. Procedural History

     The action was filed on June 10, 2002. Real Parties in Interest filed their Chuuk Civil Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted on June 24, 2002. Defendant Election Commission filed its answer on June 28, 2002. Hearing on the motion to dismiss was originally scheduled for July 29, 2002. Due to conflicts of schedules, and other delays, the hearing was rescheduled a number of times, and was finally scheduled to occur on November 19, 2002. Only the Plaintiffs and their counsel appeared at the appointed time and place for the hearing. Rather than try to reschedule the hearing again, the Court issued an order for final briefing to occur on or before April 25, 2003.

     All parties have filed substantial briefs in support of and in opposition to the motion to dismiss. The Court finds that this motion can be decided without oral argument. Chk. Civ. R. 78.

III. Standard of Review

     In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), the court must presume the non-moving party's allegations to be true, and view inferences drawn from the allegations in a light most favorable to the non-moving party. Semwen

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v. Seaward Holdings, Micronesia , 7 FSM Intrm. 111, 113 (Chk. 1995). Dismissal may only be granted if it appears to a certainty that no relief could be granted under any facts which could be proven in support of the complaint. Chuuk v. Secretary of Finance, 7 FSM Intrm. 563, 569-570 (Pon. 1996). If it appears that the court lacks jurisdiction over the subject matter of the complaint, it shall dismiss the action. Island Dev. Co. v. Yap, 9 FSM Intrm. 220, 222 (Yap 1999)3 .

IV. Analysis

A. The Complaint.

     Plaintiffs allege jurisdiction pursuant to the provisions of Chuuk Const. art. VII, §§ 3(a) and (b), on the grounds that this case involves state constitutional and statutory issues. They allege that the election, in which Real Parties in Interest were declared the winners, is void as a result of the wilful disregard by the Election Commission for, and breach of, the principles of democracy, contrary to the specific requirements of Chuuk Const. art. XIII, § 5, which requires that municipal governments be democratic.

     Specifically, the complaint alleges incredibly serious violations of the rights of the citizens of Fefan to cast their votes and to participate freely and without intimidation in the election process. Among these allegations are a total failure to provide an accounting of the number of ballots printed for the election; refusal to record or account for the total number of ballots cast in the election; failure to maintain an acknowledgment list to provide proof of who among the registered voters actually cast ballots; refusal by the Election Commissioner (who is the brother of Real Party in Interest Tikikos Namelo) to permit representatives of the Plaintiffs to accompany the Guam VAAPP ballot box to Fefan; the seizure and opening of the ballot box while it was in his possession; evidence, including the fact that the key for the lock on the ballot box did not fit the lock, which raises an inference that the ballot box had been tampered with by the Election Commissioner while it was in his possession; deciding, a mere 10 days before the election, to do away with VAAPP sites in Hawai'i and Pohnpei, thereby effectively depriving citizens of Fefan residing in those places of their right to cast votes in the election; and the fact that the entire Fefan Election Commission had been hand selected by Real Party in Interest Namelo from his active supporters, thereby calling into question whether the Election Commission was truly independent.

     These allegations, if proven to be true, are sufficient to call into question whether the election was in fact free and democratic, as required by Article XIII, § 5 of the constitution.

     By amendment to the complaint4 , Plaintiffs further allege that by conducting the election, the Fefan Election Commission usurped the constitutional duty of the Chuuk State Election Commission to conduct all elections in the State of Chuuk. In addition, the amended complaint alleges that to the extent Chk. S.L. No. 3-95-26, § 8 is read to authorize municipalities to establish their own election commissions and conduct their own elections, the statute violates Article XII, § 4 and is thus unconstitutional. Plaintiffs therefore clearly raise both constitutional and statutory issues relating to the conduct of the Fefan municipal election by the Fefan Election Commission, and regarding the

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interpretation of the Chuuk State Election Law in light of the relevant provisions of the Chuuk Constitution.

B. Jurisdiction.

     Defendants contend that the trial division of the State Supreme Court lacks subject matter jurisdiction over this case. They argue that this is simply an election case, conducted under the auspices of the Fefan Municipal Constitution, which does not provide for judicial review. They argue that only contests of elections conducted by the Chuuk State Election Commission are appealable to the Chuuk State Supreme Court, and then only to the appellate division of the Court.

     The Court's jurisdiction is set forth in Article VII of the Chuuk State Constitution. Article VII, § 3(a) provides: "The trial division of the State Supreme Court has original and exclusive jurisdiction over disputes between municipalities and cases arising under this Constitution." Id. (emphasis added). Article VII, § 3(b) provides:

Id. (emphasis added).

     Defendants argue that the Constitution does not confer jurisdiction over election cases, thus the trial division is without subject matter jurisdiction. But this case, about an election and involving an election, is not just an election case.

     Plaintiffs challenge the constitutionality of the Fefan Constitution in so far as it provides for an Election Commission and thus prevents the Chuuk State Election Commission from fulfilling its constitutional duty to conduct elections in Chuuk. Plaintiffs also challenge the interpretation given to § 8 of the Chuuk State Election Law which in the view of Defendants permits them to create their own election commission and conduct their own municipal elections, despite the language of Article XII, § 4, which in Plaintiffs' view prohibits municipalities from conducting their own elections.

     The trial division of the State Supreme Court has original and exclusive jurisdiction over cases arising under the Constitution. Chk. Const. art. VII, § 3(a). The trial division has concurrent jurisdiction with other courts over cases involving the statutes and laws of Chuuk State. Chk. Const. art. VII, § 3(b).

     Plaintiffs ask this Court to interpret Chk. S.L. No. 3-95-26, § 8 in light of Article II, § 1, Article XII, § 4 and Article XIII, § 5 of the Constitution. Plaintiffs view Chk. S.L. No. 3-95-26, § 8 as unconstitutionally delegating the power to conduct elections to the municipalities themselves. This is a constitutional question of significant magnitude, given the past history of the conduct of elections in general in Chuuk State5 .

[FSM Intrm. 580]

     Given the clear jurisdictional mandate in the Constitution for this Court to determine issues regarding the Constitution and laws of the State of Chuuk, the Court finds that it does have jurisdiction over this case, and the motion to dismiss for lack of subject matter jurisdiction must therefore be denied.

C. Mootness.

     Defendants next argue that the case is moot, because the Real Parties in Interest have assumed their duties as elected officials. Defendants voice the concern that official acts of the municipality may be questioned if the election is found void.

     A claim is moot when the parties lack a legally cognizable interest in the outcome. Berman v. FSM Supreme Court (II), 7 FSM Intrm. 11, 16 (App. 1995). A case must be one appropriate for judicial determination, as distinguished from an hypothetical or abstract dispute. The controversy must be definite and concrete, touching the legal relations of parties having adverse interests. FSM v. Louis, 9 FSM Intrm. 474, 482 (App. 2000).

     Defendants argue that because the Real Parties in Interest have already taken office, the matter is no longer justiciable. However, it is clear that the Plaintiffs and the Real Parties in Interest both have "a legally cognizable interest in the outcome." If the election is declared unconstitutionally void, the Plaintiffs may have another chance at victory. If the election is declared valid – not violating constitution or statute, then Real Parties in Interest may savor their victory.

     This is not an "abstract dispute." It is a very real problem which threatens the very foundation of democracy, the right of the people to vote in free and fair and democratic elections. The constitutionality of § 8 of the Chuuk State Election Law, in light of the provisions of Article XII, § 4 of the Constitution, is a very real issue, which begs to be determined in order to clarify the rights of municipalities throughout Chuuk who have adopted similar systems.

     Finally, even if it were true that the assumption of office by Real Parties in Interest rendered the underlying action moot in this case, an exception to the mootness doctrine clearly applies. A case is not moot where it appears to the Court that the problem may rise again, and where a determination of the issues may have a continuing effect on future events, including future litigation. Udot Municipality v. FSM, 9 FSM Intrm. 560, 562 (Chk. 2000); Louis, 9 FSM Intrm. at 483.

     The fact that actions have been taken, and municipal funds have been expended by the Real Parties in Interest does not effect this question. The only issue here is whether the case must be dismissed on the ground that it is moot. Denying the motion will not invalidate previous actions by Real Parties in Interest or by Fefan Municipality. The Court has the inherent power to tailor its decision and remedies to prevent any adverse impact on the affairs of Fefan Municipality. Indeed, the Court may, if it determines that the best interests of the parties and the citizens of Fefan require it, render a judgment in favor of Plaintiffs on the constitutional and statutory claims, and make the application of the judgment prospective only. Paulus v. Pohnpei, 3 FSM Intrm. 208, 222 (Pon. S. Ct. Tr. 1987).

     The case is ripe for decision, and is not moot. The motion to dismiss on this ground must be denied as well.

D. Effect of Article XIII, § 5.

     Defendants also argue that the matter must be dismissed because of the provision in the Chuuk State Constitution which provides that municipal constitutions are superior to statutory law. Chk.

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Const. art. XIII, § 5. In making this argument, Defendants actually abandon their argument that the Court does not have subject matter jurisdiction.

     In relevant part, Art. XIII, § 5 provides "The powers and functions of a municipality with respect to its local affairs and government are superior to statutory law." They use this particular clause in the Constitution as the basis for their argument that municipalities may, despite the provisions of Article XII, § 4 establishing the Chuuk State Election Commission, create their own election commissions and conduct their own elections.

     In making this argument, the Defendants invite the Court to construe Article XIII, § 5 in the manner they propose, and to dismiss the action on the basis of their interpretation. In making this invitation, the Defendants implicitly agree that this Court has the jurisdiction to decide this question of constitutional interpretation. Indeed, the crux of the problem presented by this case is the apparent conflict between Article XII, § 4 and Article XIII, § 5 of the Constitution, and indeed, the ambiguity and conflict within Article XIII, § 56 . The Court accepts the invitation of Defendants to decide this constitutional question, and must deny the motion to dismiss on this ground as well.

V. Joinder of Necessary Parties

     Any decision in this case will substantially affect the Chuuk State Election Commission. If the Court finds in favor of the Plaintiffs, and determines that the Chuuk State Election Commission is constitutionally required to conduct all elections in Chuuk, including all municipal elections, the additional burdens and obligations the Chuuk State Election Commission will be required to bear will be substantial. Therefore, the Court must find that the Chuuk State Election Commission is a necessary party to the litigation as provided in Chuuk Civil Rule 19(a). The Court will therefore order the Plaintiffs to amend their complaint to name the Chuuk State Election Commission as an additional defendant on the constitutional and statutory issues presented in the complaint. The Court presumes that the Election Commission will be represented by the Office of the Chuuk State Attorney General. See supra note 1. Plaintiffs may therefore serve the amended complaint on the Election Commission by service on the Chuuk State Attorney General.

VI. Conclusion

     For the reasons stated, the motion to dismiss the complaint is due to be, and it hereby is, denied.

     Real Parties in Interest shall file their answer to the complaint within 20 days of the date of this decision.

     Plaintiffs shall amend their complaint to add the Chuuk State Election Commission as a party defendant on the constitutional and statutory claims, and serve the amended complaint, within 20 days from the date of this decision. The Chuuk State Election Commission shall file its answer to the complaint not later than 15 days after service upon it of the amended complaint and a copy of this

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decision.

     The Court will issue a briefing schedule by separate order.

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Footnotes:

2. Despite being represented by different counsel, the positions of the Election Commission and the Real Parties in Interest appear to be substantially the same.

3. A motion to dismiss for lack of subject matter jurisdiction is properly brought pursuant to Rule 12(b)(1), or as a motion to dismiss pursuant to Rule 12(h)(3), which can be raised at any time. Udot Municipality v. FSM, 9 FSM Intrm. 560, 562 (Chk. 2000).

4. Plaintiffs' motion to amend was filed on July 11, 2002, and the motion was granted by the Court on July 12, 2002.

5. The Court takes judicial notice of the number and variety of election cases which have been brought before the Chuuk State Supreme Court, including the two contests heard and determined by the Appellate Division in April, 2003. [In re Mid-Mortlocks Interim Election, 11 FSM Intrm. 470 (Chk. S. Ct. App. 2003); In re Nomun Weito Interim Election, 11 FSM Intrm. 461 (Chk. S. Ct. App. 2003).]

6. The section first establishes that municipalities shall adopt their own constitutions "within limits prescribed by this Constitution and by general law." Later it states that the "powers and functions of a municipality with respect to its local affairs and government are superior to statutory law." The section does not define either "general law" or "statutory law." It is clear that the provision requiring municipalities to adopt constitutions is limited, however, by the state constitutional provisions themselves. Whether the constitutional provisions on suffrage and elections (Article XII) limit the power of municipalities under Article XIII is the fundamental issue in this case.