FSM SUPREME COURT APPELLATE DIVISION

MOSES NELSON,

Appellant,

vs.

FSM NATIONAL ELECTION DIRECTOR,

Appellee,

TONY OTTO,

Real Party in Interest.

APPEAL CASE NO. C2-2009

OPINION

Argued: May 4, 2009

Decided: May 7, 2009

BEFORE:

Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court

Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court

Hon. Ready E. Johnny, Associate Justice, FSM Supreme Court

APPEARANCES:

For the Appellant: Marstella Jack, Esq.

P.O. Box 2210

Kolonia, Pohnpei FM 96941

For the Appellee: Steven V. Finnen, Esq.

P.O. Box 1450

Kolonia, Pohnpei FM 96941

For the Real Party in Interest: Joseph Phillip, Esq.

P.O. Box 464

Kolonia, Pohnpei FM 96941

For the Amicus Curiae: L.M. Bacalando, Jr., Esq.

(FSM Dep’t of Justice) Assistant Attorney General

FSM Department of Justice

P.O. Box PS-105

Palikir, Pohnpei FM 96941

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HEADNOTES

    A court’s subject-matter jurisdiction may be raised at any time by a party or by the court. Nelson v. FSM Nat’l Election Dir., 16 FSM Intrm. 414, 419 (App. 2009).

    An appeal is an election contest when a candidate seeks relief that would result either in him being confirmed the "winning candidate" or preventing another candidate from such a confirmation or the relief could affect an election’s outcome. Nelson v. FSM Nat’l Election Dir., 16 FSM Intrm. 414, 419 (App. 2009).

    Constitutions and statutes provide, as a part of the election machinery, the procedure by which election results may be contested, and such contests are regulated wholly by these constitutional or statutory provisions. A strict observance of the steps necessary to give us jurisdiction over an election contest is required, and if these steps are not followed, the court is powerless to entertain such proceedings. Nelson v. FSM Nat’l Election Dir., 16 FSM Intrm. 414, 419 (App. 2009).

    An aggrieved candidate may, within five days after receipt of the National Election Director’s decision granting or denying a petition for a recount or a revote, appeal that decision to the FSM Supreme Court appellate division. A post-certification petition, and a decision thereon, is a prerequisite to an appeal to the court. Nelson v. FSM Nat’l Election Dir., 16 FSM Intrm. 414, 419 (App. 2009).

    If the possibility of double voting is alleged, the burden is on the election appellant to show that it is likely to have occurred; he cannot rely solely on an assertion that double voting is possible. Nelson v. FSM Nat’l Election Dir., 16 FSM Intrm. 414, 420 n.4 (App. 2009).

    A petition presented to the National Election Director must contain a) a statement of the nature, location and extent of the election fraud or error that forms the basis of the petition; b) a statement of the form of relief the petitioner seeks; c) a list of election records and witnesses that will establish the existence of election error or fraud, specifying how each record or official listed is relevant to the petition’s allegations; and d) affidavits, documents and any other evidence in support of the petition. Nelson v. FSM Nat’l Election Dir., 16 FSM Intrm. 414, 420 (App. 2009).

    When an election contestant’s shifting allegations of irregularities (the allegations shifted from misreporting or tampering with the reported results to double-voting) and his later exhibits could have been an appropriate basis for a post-certification petition to the National Election Director, but instead of filing the required post-certification petition, the contestant filed a court appeal, the court cannot conduct a meaningful appellate review in such a manner and therefore cannot consider them because these issues and exhibits would, if allowed, come before the court without the benefit of the National

[16 FSM Intrm 416]

Election Director’s reasoned review and decision. Nelson v. FSM Nat’l Election Dir., 16 FSM Intrm. 414, 420-21 (App. 2009).

    If an election contestant’s appeal is considered as only a claim challenging the acceptability of votes, the five-day time frame to appeal the National Election Commissioner’s denial of that claim would start then even though a recount was pending because an FSM Supreme Court appellate division decision may have the effect of disallowing challenged votes but shall not halt or delay balloting or counting and tabulating. Nelson v. FSM Nat’l Election Dir., 16 FSM Intrm. 414, 421 (App. 2009).

    A decision to provide a recount is not appealable. Nelson v. FSM Nat’l Election Dir., 16 FSM Intrm. 414, 421 (App. 2009).

    Provisions for challenging the acceptability of votes apply to individual or particular votes and not to an entire polling place. The only proper remedies when the reliability of an entire polling place result is in question, are either a recount or a revote, depending on the particular circumstances. Nelson v. FSM Nat’l Election Dir., 16 FSM Intrm. 414, 421 (App. 2009).

    The court will decline to order the exclusion of all votes at a polling place, thus disenfranchising many qualified and innocent voters and possibly altering the will of the electorate and the election results. Only a recount or a revote would be proper in such cases. Nelson v. FSM Nat’l Election Dir., 16 FSM Intrm. 414, 421 (App. 2009).

    When the only irregularity clearly alleged in an election petition was that the transmission of the results had been tampered with, a recount of the actual ballots, if the ballot boxes’ security and integrity has been maintained and assured, is the logical remedy. Nelson v. FSM Nat’l Election Dir., 16 FSM Intrm. 414, 421 n.5 (App. 2009).

    A candidate’s only appeal from the certification of an election or the declaration of the winning candidate is to file a petition with the National Election Director within seven days of the certification, and, if the candidate is still aggrieved after the National Election Director’s decision on the post-certification petition, then he or she may appeal to the FSM Supreme Court appellate division. The Election Code does not authorize an appeal of a certification of election directly to the FSM Supreme Court. Nelson v. FSM Nat’l Election Dir., 16 FSM Intrm. 414, 421-22 (App. 2009).

    An election appeal filed too soon will be dismissed as premature (unripe) because the statute does not grant the court jurisdiction over election cases until the administrative steps and time frames have been adhered to. Nelson v. FSM Nat’l Election Dir., 16 FSM Intrm. 414, 422 (App. 2009).

    Although there are rare occasions when an equitable remedy may be proper in an election case, overlooking or extending a deadline to file an appeal is not one of them. Statutory deadlines to file appeals are jurisdictional, and if the deadline has not been strictly complied with the adjudicator is without jurisdiction over the matter once the deadline has passed. Nelson v. FSM Nat’l Election Dir., 16 FSM Intrm. 414, 422 (App. 2009).

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COURT’S OPINION

ANDON L. AMARAICH, Chief Justice:

    This appeal arises from the certification of Tony Otto as the winning candidate in the Chuuk fifth congressional election district in March 3, 2009 national election for the Sixteenth Congress two-year seats. We conclude that we lack jurisdiction to consider the merits and must dismiss it. Our reasons follow.

I. Background

    On March 9, 2009, the incumbent candidate, Moses Nelson, filed a petition with the Chuuk National Election Commissioner Bernes Reslap, alleging election irregularities with the Piahrah, Ruo, and Nomwin results and asking that those results be excluded on the grounds that the Piahrah results had been reported late and that the Ruo and Nomwin results differed significantly from the first radio reports of those results. The petition could also be read to ask that the initial Ruo and Nomwin results, as had been overheard on the radio, be reinstated. Either remedy would have left Nelson with the highest vote total.

    The National Election Commissioner responded the same day with a copy of the Piserach (Piahrah or Piahrarh) results relayed on March 4, 2009, and received on March 5, 2009, and a copy of a text message from an FSM assistant attorney general replying that the regulations do not require that late returns must be rejected and that the Piahrah returns should be accepted. In the Chuuk Election District No. 5 unofficial returns, Otto received 928 total votes, Nelson received 908 total votes, and two other candidates each received lesser totals. On March 11, 2009, the Chuuk National Election Commissioner certified the winning candidates for all the Chuuk congressional races, including Tony Otto as the winning candidate for the Chuuk fifth election district. The certification only listed the votes received by the winning candidates.

    A copy of Nelson’s petition had also been sent to National Election Director Kimueo Kimiuo. He received it on March 11, 2009. On March 13, 2009, the National Election Director ordered that the Ruo and Nomwin ballot boxes be secured and that they be transported to Weno for a recount. On March 20, 2009, the National Election Director responded to Nelson’s petition. He rejected Nelson’s request to exclude the three ballot boxes. He stated that Nelson had failed to include the essential elements of a petition as required by 9 F.S.M.C. 801(4)(c) and (d) because it failed to list the election records and witnesses that would establish the existence of election error or fraud and how that evidence would be relevant and failed to contain any supporting affidavits and documents. The National Election Director also informed Nelson that he had ordered that, for verification, the Nomwin and Ruo ballot boxes be reviewed, investigated, and recounted. The recount was held on March 24, 2009. The recount results left Nelson with nine fewer votes than before and Otto with the same number. That left the totals: Otto, 928 votes; Nelson 899 votes.

    On March 23, 2009, the President designated FSM Deputy National Election Director Emilio Esperiam as Acting National Election Director. On March 25, 2009, the Acting National Election Director declared Otto the winning candidate in Chuuk Election District No. 5. On March 30, 2009, Nelson filed this appeal. On March 31, 2009, the National Election Director issued his confirmation of

[16 FSM Intrm 418]

the acting National Election Director’s declaration that Otto was the winning candidate.

II. Issues Presented

A. Nelson’s Issues

    Nelson’s opening brief does not include a statement of issues. It does list "Grounds for Appeal" which is Nelson’s discussion of his statement of issues, filed April 8, 2009. In it, Nelson presented seven issues. He contended 1) that the Piahrah polling place returns should have been excluded because of the late receipt of the return from that ballot box; 2) that the Ruo and Nomwin results should have been excluded because they differed significantly from the initial results from these polling places and no investigation was made of alleged irregularities in those places; 3) that the National Election Director failed to conduct an actual investigation into the alleged irregularities at Ruo and Nomwin; 4) that the Election Director failed to investigate allegations that Otto brought alcohol on board the FSS Micronesia when that vessel was reporting the final tabulations; 5) that the Acting Election Director’s March 25, 2009 declaration of Tony Otto as the winning candidate is void because only the National Election Director has the authority to make that declaration and he was in the FSM at the time; 6) that the Ruo and Nomwin recount was not a proper response to his petition that those boxes be excluded; and 7) that the Ruo and Nomwin recount tabulation differed from the first tabulation for those boxes.

    In his April 8, 2009 statement of issues, Nelson sought the exclusion of the Piahrah, Ruo, and Nomwin ballot boxes and a revote at those polling places. In his later briefs, he sought only the exclusion of the results from those three ballot boxes, which would leave him with the greatest number of votes. He maintained this position at oral argument.

B. The National Election Director’s Issues

    The National Election Director characterizes Nelson’s main issues as: 1) whether the National Election Director’s decision to not disallow the Piahrah votes due to the lateness of the receipt of that result was arbitrary or capricious or unsupportable under any other grounds under 9 F.S.M.C. 804; and 2) whether the National Election Director’s decision to not disallow the Ruo and Nomwin votes was arbitrary or capricious or unsupportable under any other grounds under 9 F.S.M.C. 804.

    To these issues, the National Election Director adds: 3) whether Nelson’s Exhibits 1 to 7 and 10 to 12 ought to be excluded because they were not part of the Director’s underlying review and decision; 4) whether the issues on appeal before the court should be limited to those issues reviewed and ruled upon by the Director; and 5) whether Nelson failed to support the allegations raised and to support the relief requested as a matter of law.

C. Otto’s Issue

    Otto adds as a further issue: whether the appeal was untimely since it was not within five days of the National Election Director’s March 20, 2009 denial of Nelson’s petition.

D. Amicus Curiae’s Issue

    The amicus curiae (FSM Department of Justice) directs the court’s attention to a further issue: whether after Nelson’s petition was presented to the National Election Commissioner for Chuuk and denied by him it was ever properly before the National Election Director for a decision, or at least for a decision that could be appealed to this court.

III. Threshold Jurisdictional Issues

A. Subject-matter Jurisdiction

    In their briefs, both Otto and the amicus curiae question whether the court has jurisdiction to consider this election contest appeal. At oral argument, the National Election Director also asserted that the court lacked jurisdiction. A court’s subject-matter jurisdiction may be raised at any time by a party or by the court. Bualuay v. Rano, 11 FSM Intrm. 139, 145 (App. 2002); Hartman v. FSM, 6 FSM Intrm. 293, 296 (App. 1993).

    This appeal is an election contest because when a candidate seeks relief that would result either in him being confirmed the "winning candidate" or preventing another candidate from such a confirmation or relief could affect an election’s outcome, it is an election contest. See Sipenuk v. FSM Nat’l Election Dir., 15 FSM Intrm. 1, 4 (App. 2007). Constitutions and statutes provide, as a part of the election machinery, the procedure by which election results may be contested, and such contests are regulated wholly by these constitutional or statutory provisions. A strict observance of the steps necessary to give us jurisdiction over an election contest is required, and if these steps are not followed, we are powerless to entertain such proceedings. Sipenuk, 15 FSM Intrm. at 5; Asugar v. Edward, 13 FSM Intrm. 215, 219 (App. 2005); Wiliander v. National Election Dir., 13 FSM Intrm. 199, 203 (App. 2005) (an election contest appellant has not strictly observed the steps necessary to give the court jurisdiction when he has not filed his appeal within the statutory time frame).

B. Whether Appeal was Premature

1. No Post-Certification Petition

    The first jurisdictional contention is that Nelson failed to exhaust his administrative remedies before filing this appeal. This contention relies on 9 F.S.M.C. 802(1) and on 9 F.S.M.C. 804(2). Section 802(1) provides that "[a] petition for a recount or revote must be filed within one week after the National Election Director certifies the results of the National Election in the Congressional Election District or State concerned." Section 804(2) provides that an aggrieved candidate "may, within five days after receipt of the decision of the National Election Director granting or denying the petition, appeal the decision to the Appellate Division of the Supreme Court of the Federated States of Micronesia." Nelson did not file any petition with the National Election Director for a revote after Otto was certified the winning candidate. Under 9 F.S.M.C. 804(2), a post-certification petition, and a decision thereon, is a prerequisite to an appeal to the court. Nelson thus failed to exhaust his administrative remedies before appealing to the FSM Supreme Court.

    Nelson counters that he had already petitioned the National Election Director and that the Director had already provided an alternative remedy. But it was the Chuuk National Election Commissioner he had petitioned. Nelson contends that a "second petition" (that is, a post-certification petition to the National Election Director, instead of his pre-certification petition to the Chuuk National Election Commissioner) was unnecessary because it would not concern election irregularities but the National Election Director’s failure to investigate irregularities.

2. Issues Not Presented and Exhibits Not Provided

    We will digress and address an ancillary issue here since it will assist us to illustrate the wisdom of the post-certification petition requirement and the purpose behind its jurisdictional prerequisite.

    A petition presented to the National Election Director must contain "(a) a statement of the nature, location and extent of the election fraud or error that forms the basis of the petition; (b) a statement of the form of relief the petitioner seeks; (c) a list of election records and witnesses that will establish the existence of election error or fraud, specifying how each record or official listed is relevant to allegations contained in the petition; and (d) affidavits, documents and any other evidence in support of the petition." 9 F.S.M.C. 801(4). None of the challenged exhibits were presented or mentioned in a petition for the National Election Director’s review and decision. (Nor had any such supporting documents been provided with Nelson’s March 9, 2009 petition to the National Election Commissioner.) Nelson did not provide the National Election Director with any list of any of the election records, as required by subsection 801(4)(c), that he now asks us to consider. The affidavits, all dated after Nelson’s March 9, 2009 petition, were also not before the National Election Director for his review and decision.

3. Post-certification Petition Prerequisite for Court Review

    These exhibits and Nelson’s shifting allegations of irregularities (the allegations shifted from misreporting or tampering with the reported results to double-voting) and these exhibits could have been an appropriate basis for a post-certification petition to the National Election Director. But instead of filing the required post-certification petition, Nelson filed a court appeal. These issues and exhibits would therefore, if allowed, come before us without the benefit of the National Election Director’s

[16 FSM Intrm 421]

reasoned review and decision. We cannot conduct a meaningful appellate review in such a manner and therefore cannot consider them.

    A post-certification petition could or would have included any and all irregularities, with supporting evidence, that were not fully developed in the March 9, 2009 petition, such as the "double voting" allegations. More importantly, regardless of Nelson’s dismissive attitude toward the need for a post-certification petition, the statute requires it as a prerequisite for appellate court review of an election contest. This is consistent with our earlier holdings in Sipenuk and Asugar.

C. Whether Untimely under 9 F.S.M.C. 802(2)

    Nelson, however, contends that this appeal is reviewable under section 802(2), which provides: "Any other petition challenging the acceptability of a vote or votes must be filed before the National Election Director certifies the results of the National Election in the Congressional Election District or State concerned, or within one week of Election Day, whichever comes first . . . ." 9 F.S.M.C. 802(2). In asking that the Piahrah, Ruo, and Nomwin results be excluded, Nelson asserts that he is only challenging the acceptability of those votes. His March 9, 2009 petition to the National Election Commissioner asked that those votes be excluded, and not for a revote.

    This is, as noted, not an appeal from the National Election Director’s decision on a post-certification petition. The National Election Director’s March 20, 2009 response to Nelson’s petition was a denial of Nelson’s request to exclude the Piahrah, Ruo, and Nomwin results. If Nelson’s appeal is considered (as he claims) a Section 802(2) claim only challenging the acceptability of votes, the five-day time frame to appeal that denial would start then even though a recount was pending. This is because 9 F.S.M.C. 804(4) provides that "[a] decision of the Appellate Division of the Supreme Court may have the effect of disallowing challenged votes but shall not halt or delay balloting or counting and tabulating." Thus, a March 30, 2009 notice of appeal would be too late to appeal the National Election Director’s March 20, 2009 denial of Nelson’s petition if it is considered a Section 802(2) claim for relief. And a decision to provide a recount is, under 9 F.S.M.C. 804(2), not appealable.

    Furthermore, we think that these provisions, 9 F.S.M.C. 802(2) and 9 F.S.M.C. 804(4), apply to individual or particular votes, and not to an entire polling place. We think the only proper remedies when the reliability of an entire polling place result is in question, are either a recount or a revote, depending on the particular circumstances. We would decline to order the exclusion of all votes at a polling place, thus disenfranchising many qualified and innocent voters and possibly altering the will of the electorate and the election results. See Sipenuk, 15 FSM Intrm. at 6. Only a recount or a revote would be proper in such cases.

D. Summary: No Jurisdictional Filing Deadline Met

    The Acting National Election Director’s certification of Otto as the winning candidate was the only act that would be within the statutory five days before Nelson’s March 30, 2009 notice of appeal. But a candidate’s only appeal from the certification of an election or the declaration of the winning candidate is to file a petition with the National Election Director within seven days of the certification. 9 F.S.M.C. 802(1). If the candidate is still aggrieved after the National Election Director’s decision on the post-certification petition, then he or she may appeal to the FSM Supreme Court appellate division.

[16 FSM Intrm 422]

9 F.S.M.C. 804(2). The Election Code does not authorize an appeal of a certification of election directly to the FSM Supreme Court.

    We lack jurisdiction to hear an election appeal filed too soon because the statute does not grant the court jurisdiction over election cases until the administrative steps and time frames have been adhered to. Such an appeal is therefore dismissed as premature (unripe). Asugar, 13 FSM Intrm. at 220; Wiliander, 13 FSM Intrm. at 204. Nelson did not strictly observe the jurisdictional steps.

    If this appeal was considered one from a Section 802(2) petition, it would be too late. Again, the proper jurisdictional steps were not taken, and we thus lack jurisdiction to hear it.

    Nelson asserts that this case is different because the National Election Director ordered a review, investigation, and recount, but that only the opening of the ballot boxes and a recount were performed before Otto’s election was certified. This "difference" (alleged failure to follow the National Election Director’s instructions) could have been a ground for a post-certification petition to the National Election Director, and that once the National Election Director had ruled on that petition, Nelson, if still aggrieved could then have appealed to court.

E. Claim for Equitable Relief

    Nelson concedes that there is no specific Election Code provision permitting a losing candidate to appeal from a declaration of a winning candidate, but contends that this case is different and thus ought to be treated differently. In Nelson’s view, the difference is that Nelson relied on the National Election Director’s response to his March 9, 2009 petition that there would be a review, investigation, and recount, but there was only an opening of the Ruo and Nomwin ballot boxes and a recount.

    Nelson suggests that we need not be bound by the statutory deadlines. He suggests that we apply equity to permit our consideration of his current allegations of irregularities. For this contention, Nelson relies on Braiel v. National Election Director, 9 FSM Intrm. 133, 137-38 (App. 1999), wherein we applied equitable concerns to prevent the disenfranchisement of innocent voters by extending the time for receipt of mailed absentee ballots because election officials had failed to mail out absentee ballots to requestors until well after the deadline to do so.

    In Braiel, we noted that there are rare occasions when an equitable remedy may be proper in an election case. Id. at 137. This is not one of them. The deadline that Nelson asks us to overlook or extend is a deadline to file an appeal. Statutory deadlines to file appeals are jurisdictional, and if the deadline has not been strictly complied with the adjudicator is without jurisdiction over the matter once the deadline has passed. Wiliander v. Mallarme, 7 FSM Intrm. 152, 158 (App. 1995). Thus, the jurisdictional five-day filing deadline is one we cannot overlook or extend. The jurisdictional filing dates not having been strictly complied with, we have no jurisdiction to consider this election contest appeal.

IV. Conclusion

Accordingly, this appeal is dismissed.

FootNotes:

1.In the Chuuk Constitution, this municipality’s name is spelled "Piherarh." Chk. Const. art. XIII, § 2.

2.It also does not contain a table of contents, with page references, and a table of cases (alphabetically arranged), statutes and other authorities cited, with page references, as required by Appellate Rule 28(a)(1). All appellate briefs are required to include these helpful features.

3.The National Election Director asserts that if the double-voting claim had been presented, he would have explained that a voter could be listed in both Guam or Honolulu and the voter’s home island, but would be permitted to vote at only one location.

4.We have earlier held that if the possibility of double voting is alleged the burden is on the election appellant to show that it is likely to have occurred and that he "cannot rely solely on an assertion that double voting is possible." Aten v. National Election Comm’r (II), 6 FSM Intrm. 74, 78 (App. 1993).

5.Since the only irregularity clearly alleged in Nelson’s March 9, 2009 petition was that the transmission of the results had been tampered with, we would think that a recount of the actual ballots, if the ballot boxes’ security and integrity has been maintained and assured, was the logical remedy.

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