CHUUK STATE SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. 04-2009

OPINION

Hearing: April 29-30, 2009

Decided: May 1, 2009

BEFORE:

Hon. Keske S. Marar, Associate Justice, Presiding

Hon. Salomon M. Saimon, Temporary Justice*

Hon. George Z. Isom, Temporary Justice**

*Attorney at Law, Micronesian Legal Services Corporation, Weno, Chuuk

**Attorney at Law, FSM Public Defender’s Office, Weno, Chuuk

APPEARANCES:

For the Petitioners: Gideon K. Doone

P.O. Box 882

Weno, Chuuk FM 96942

For the Respondent: Joses R. Gallen

(Election Comm’n) Chuuk Attorney General

P.O. Box 1050

Weno, Chuuk FM 96942

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HEADNOTES

    An election contest is a proceeding to challenge the results of an election. Doone v. Chuuk State Election Comm’n, 16 FSM Intrm. 407, 410 (Chk. S. Ct. App. 2009).

    The pleading requirements for filing an election contest are liberal. An election contestant must file a verified, written complaint with the election commission setting forth the contestant’s name and that he is a voter in the state, municipality or precinct where the contested election was held; the defendant’s name; the office; and the particular grounds of contest, and the complaint must not be rejected, nor the proceeding dismissed by the commission or any court, for want of form, if the grounds of the contest are alleged with such certainty as will advise the defendant of the particular ground or cause for which the election is contested. Doone v. Chuuk State Election Comm’n, 16 FSM Intrm. 407, 410 (Chk. S. Ct. App. 2009).

    When the petitioners’ complaint to the election commission shows numerous, specific allegations of misconduct resulting in election irregularities and when, based on these allegations, the petitioners challenge the election results and request relief that could change the election’s outcome, the allegations are set forth with sufficient certainty to advise the defendants of the grounds for the contest, and since the petitioners’ complaint challenges the election results with sufficient certainty, it should be treated as an election contest and not an action against the commissioners in their individual capacities. If there is a basis for criminal or civil liability against election commission officials in their individual capacities, the allegations may be pursued in a separate action within the discretion of the Attorney General or an independent prosecutor. Doone v. Chuuk State Election Comm’n, 16 FSM Intrm. 407, 410 (Chk. S. Ct. App. 2009).

    A complainant before the election commission may name as a defendant a person whose election or qualifications are contested or persons receiving an equal or larger number of votes, other than the contestant, and the election commission or an individual member may also be a defendant. If the election commission believes that the commission is an indispensable party to the action, it can easily order that it be named a party to the action. Doone v. Chuuk State Election Comm’n, 16 FSM Intrm. 407, 410-11 (Chk. S. Ct. App. 2009).

    The decision as to the court’s jurisdiction over an action is one to be made by the court, and the

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election commission is not empowered to assume or confer whether a court has jurisdiction. The election commission is limited to determining its own jurisdiction. Doone v. Chuuk State Election Comm’n, 16 FSM Intrm. 407, 411 (Chk. S. Ct. App. 2009).

    An election contestant must file a verified complaint with the election commission within five days after the declaration of the election result by the body canvassing the returns. The deadline for filing a complaint with the election commission is jurisdictional. If the complainant fails to meet the deadline, then the election commission has no jurisdiction. Doone v. Chuuk State Election Comm’n, 16 FSM Intrm. 407, 411 (Chk. S. Ct. App. 2009).

    A timely-filed election complaint confers jurisdiction in the election commission. Doone v. Chuuk State Election Comm’n, 16 FSM Intrm. 407, 411 (Chk. S. Ct. App. 2009).

    A court will refrain from addressing whether it has jurisdiction over an election contest when the matter is merely hypothetical and not a justiciable controversy, but if the issue comes properly before the court and if it appears that the court lacks jurisdiction over the complaint’s subject matter, the court would dismiss the action. Doone v. Chuuk State Election Comm’n, 16 FSM Intrm. 407, 411 (Chk. S. Ct. App. 2009).

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COURT’S OPINION

KESKE S. MARAR, Associate Justice, presiding:

I. Introduction

    This is an appeal from the Chuuk State Election Commission’s denial for non-justiciability of petitioners’ contest of the April 9, 2009 Chuuk state gubernatorial run-off election results.

II. Background

    Petitioners Gillian Doone and Ritis Heldart are the governor and lieutenant governor candidates who ran against incumbent governor Wesley Simina and lieutenant governor Johnson Elimo in the run-off election held on April 9, 2009. On April 13, 2009, the election commission certified the results of the run-off showing that the Simina ticket received 12, 141 votes to Doone’s 12,016. Simina and Elimo were declared the winners. As set by the Constitution, on April 14, 2009, Simina and Elimo were sworn in and took office for second terms. Chk. Const. art. VI, § 8 ("The terms of the Governor and Lieutenant Governor shall begin at noon on the sixth Tuesday following the general election."). On April 17, 2009, Doone filed his complaint with the election commission. On April 20, 2009, the election commission issued its order dismissing the complaint. On April 27, 2009, petitioners filed their notice of appeal to the Chuuk State Supreme Court.

    The court held a hearing on April 29, 2009. The election commission filed a motion to dismiss the same day. The hearing on the motion to dismiss continued to April 30, 2009. The court then orally delivered its ruling denying the motion to dismiss and remanded the matter back to the election commission. The reasons for that order are memorialized here.

III. The Law

    The election commission dismissed petitioners’ complaint for two reasons. The first reason was that petitioners failed to adequately plead an election contest. The second reason was that the election commission lacked authority to decide on the complaint because, if there was an appeal from its ruling, we would find the matter to be non-justiciable. These reasons were also the grounds for the commission’s motion to dismiss.

A. The Sufficiency of Petitioners’ Complaint to the Election Commission

    The election commission first contends that petitioners’ complaint was deficient. Because petitioners only named individual officials and not the election commission itself, the commission concluded that the complaint was not sufficient to meet the pleading requirements for an election contest. The commission speculated that petitioners were merely attempting to sue the commissioners in their individual capacities for their alleged illegal conduct during the election.

    The commission’s conclusion that petitioners’ complaint was insufficient appears to be based on two distinct premises. The first is that the allegations in petitioners’ complaint did not allege an election contest with sufficient certainty. An election contest is a proceeding to challenge the results of an election. Mathew v. Silander, 8 FSM Intrm. 560, 563 (Chk. S. Ct. Tr. 1998). The pleading requirements for filing an election contest are liberal. An election contestant must file a verified, written complaint with the election commission setting forth the name of the contestant and that he is a voter in the State, municipality or precinct, as the case may be, where the contested election was held; the name of the defendant; the office; and the particular grounds of contest. Chk. S.L. No. 3-95-26, § 126. The complaint shall not be rejected, nor the proceeding dismissed by the commission or any court, for want of form, if the grounds of the contest are alleged with such certainty as will advise the defendant of the particular ground or cause for which the election is contested. Chk. S.L. No. 3-95-26, § 129.

    A review of petitioners’ complaint to the election commission shows numerous, specific allegations of misconduct resulting in election irregularities. Based on these allegations, petitioners challenge the results of the election and request relief that could change the outcome of the election. Chk. S.L. No. 3-95-26, § 124. The allegations are set forth with sufficient certainty to advise the defendants of the grounds for the contest. Since petitioners’ complaint challenges the result of the election with sufficient certainty, the court finds that it should have been treated as an election contest and not an action against the commissioners in their individual capacities.

    If there is a basis for criminal or civil liability against election commission officials in their individual capacities, the allegations may be pursued in a separate action within the discretion of the Attorney General or an independent prosecutor. See Chk. S.L. No. 3-95-26, § 55.

    The second basis for the election commissions’ conclusion that the complaint was insufficient is that petitioners failed to name the proper party when they named individual officers as defendants rather than the election commission. Section 123 of the Election Code specifies who may be named as a defendant in an election contest. A complainant before the election commission may name a person whose election or qualifications are contested or persons receiving an equal or larger number

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of votes, other than the contestant. The election commission or an individual member may also be a defendant. Chk. S.L. No. 3-95-26, § 126. The statute therefore appears to contemplate that individual officers may be named in the alternative to the election commission itself. In any case, the election commission had actual notice that it was an unnamed defendant in the action brought before it. If it believed it was an indispensable party to the action, it could have easily ordered that it be named a party to the action.

    The court notes that petitioners only named the commission in their appeal to us and that they failed to name real party in interest Ritis Heldart in their complaint to the commission. The court therefore orders that petitioners name all real parties in interest in their pleadings.

B. Jurisdiction of the Election Commission

    As to the second issue, the election commission contends that its denial of the complaint without addressing its merits was proper because this court would lack jurisdiction over an appeal of its decision. The argument is based on section 131 of the Election Code, which provides for the court’s jurisdiction over election contests. The election commission emphasizes the sentence in that provision, which requires that the court rule on election contests before a candidate takes office. The commission reads this provision in conjunction with article VI, section 8 of the Constitution, which requires that the terms of the Governor and Lieutenant Governor begin on the sixth Tuesday following the General Election. In the election commission’s reading of these provisions, the consequence is that once the winning candidates take office the court loses its jurisdiction to rule on a pending election contest. Based on this interpretation of the court’s jurisdiction, the commission concludes that it must also lack jurisdiction.

    The commission is not, however, empowered to assume or confer whether this court has jurisdiction. The decision as to the court’s jurisdiction over an action is one to be made by the court. Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40, 45 (App. 1995); Federal Business Dev. Bank v. S.S. Thorfinn, 4 FSM Intrm. 367, 369 (App. 1990).

    The election commission was limited to determining its own jurisdiction. The authority for the commission’s jurisdiction is provided in section 127, which sets forth the timing for a complainant to contest an election. The contestant must file a verified complaint with the election commission within five days after the declaration of the result of the election by the body canvassing the returns. Chk. S.L. No. 3-95-26, § 127, Cholymay v. Chuuk State Election Comm’n, 10 FSM Intrm. 145, 153 (Chk. S. Ct. App. 2001) (declaration of election result is when the results are made known to the public). The deadline for filing a complaint with the election commission is jurisdictional. If the complainant fails to meet the deadline, then the election commission has no jurisdiction. Kinemary v. Siver, 16 FSM Intrm. 201 (Chk. S. Ct. App. 2008); cf. Aten v. Chuuk State Election Comm’n, 16 FSM Intrm. 390 (Chk. S. Ct. App. 2009) (extending the deadline for filing election complaints beyond five days when the election commission did not notify that it was to be open for filing and was not open for filing).

    The complaint therefore conferred jurisdiction in the election commission if it was timely filed within the deadline imposed by section 127. Since there has been no appeal from the election commission’s decision on the merits or from its effective denial, the court will refrain from addressing whether it has jurisdiction over the matter. At this time, that appeal is merely hypothetical and not a justiciable controversy. In re Sproat, 2 FSM Intrm. 1, 5 (Pon. 1985). If the issue is properly before the court and it appears that the court lacks jurisdiction over the complaint’s subject matter, the court will dismiss the action. Rubin v. Fefan Election Comm’n, 11 FSM Intrm. 573, 578 (Chk. S. Ct. Tr. 2003).

IV. Conclusion

    The court remands the matter back to the election commission. The court also refers the allegations to the Attorney General’s office for investigation and possible criminal prosecution, mindful that there may be conflicts of interest that need to be addressed.

Foot Notes:

1.As a result of the stipulated judgment entered in CSSC election appeal 02-09, the date of the run-off was set later than the constitutionally prescribed date. See Chk. Const. art. VI, § 7 ("a run off election . . . shall be held on the fourth Tuesday following the general election").

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