CHUUK STATE SUPREME COURT APPELLATE DIVISION

Cite as Bisaram v. Oneisom Election Comm'n 16 FSM Intrm. 475 (Chk. S. Ct. App. 2009)

APPEAL CASE NO. 10-2007

Hearing: May 18, 2009
Decided: June 8, 2009

BEFORE:

Hon. Keske S. Marar, Associate Justice, Presiding

Hon. Dennis K. Yamase, Temporary Justice*

Hon. Repeat Samuel, Temporary Justice**
 

*Associate Justice, FSM Supreme Court, Pohnpei

**Attorney at Law, Weno, Chuuk
 

APPEARANCES:

COURT'S OPINION

KESKE S. MARAR, Associate Justice:

I. INTRODUCTION

    On May 18, 2009, the court heard argument on the respondent election commission's motion to dismiss, which the panel took under advisement. The panel now grants the motion.

II. BACKGROUND

    Petitioner Pasiente Bisaram, a losing mayoral candidate in the July 31, 2007 Oneisom municipality mayoral election, contested the results of the election by a complaint filed with the election commission on August 10, 2007. On September 13, 2007, the contestant filed his notice of appeal from the election commission's August 24, 2007 decision denying his complaint. On October 8, 2007, the panel convened for trial. The proceedings continued from day to day, but were postponed due to the unavailability of panel members.

    The parties were ultimately notified that a new trial would be necessary because of the need to replace a deceased panel member. On January 27, 2009, the court issued a scheduling order setting the new trial to begin on May 18, 2009. The order also stated that the parties were to file with the court a record of stipulations and exhibits by April 1, 2009, and that failure to file such record by the contestant would be considered an abandonment of his contest. The real parties in interest subsequently filed a motion for enlargement asking for a continuance of the trial. Neither of the other parties filed a response to the requested enlargement and none of the parties filed a record of stipulations and exhibits.

    After the deadline for filing a pre-trial record passed, the election commission filed a motion to dismiss. The first basis for the motion was that contestant had not complied with the court's January 27, 2009 order. A second basis was that the case was non-justiciable once the real party in interest took office and should be dismissed for lack of subject matter jurisdiction. Aside from the motions filed by the respondents, there were no filings made by the parties from the time trial was continued in October of 2007.

    During the May 18, 2009 hearing, counsel for contestant stated that he was served with the court=s January 27, 2009 order, but did not believe it was necessary to comply with the order because none of the evidence to be presented at the new trial would be different than that entered at the first trial.

III. ANALYSIS

    The Election Law gives the Appellate Division jurisdiction to hold a trial de novo of election contest appeals from the election commission. Chk. S.L. No. 3-95-26, ' 131. Since, in an election contest appeal, the appellate division is statutorily required to conduct a trial instead of the usual appellate proceeding, and the Election Law itself does not prescribe rules of procedure, the court has followed, where necessary, procedures analogous to those in the Civil Procedure Rules. Samuel v. Chuuk State Election Comm'n, 14 FSM Intrm. 591, 594-95 n.1 (Chk. S. Ct. App. 2007) (motion to dismiss analogous to one brought under Civil Rule 41(b)); see also Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 155 (Chk. S. Ct. App. 2001) (same).

    The panel therefore considers the election commission=s motion to dismiss as analogous to one brought under Civil Rule 41(b), which permits dismissal for failure to prosecute or to comply with the court's orders. Chk. Civ. R. 41(b); Sally v. Andon, 9 FSM Intrm. 55, 56 (Chk. S. Ct. Tr. 1999). To avoid dismissal for failure to prosecute, civil lawsuits must be prosecuted with reasonable diligence. O'Sullivan v. Panuelo, 9 FSM Intrm. 229, 231 (Pon. 1999). The purpose of the rule allowing dismissal for failure to prosecute is to guard against delay in litigation and harassment of the defendant, as well as preventing undue delays in disposition of pending cases and avoiding court congestion. McGillivray v. Bank of the FSM, 7 FSM Intrm. 19, 23 (Pon. 1995). Courts in the exercise of their inherent powers may therefore dismiss an action in which a plaintiff refuses to comply with a court order. Also, when the plaintiff has been given reasonable notice of his trial and he and his attorney fail to appear to adduce

evidence and prosecute the claim, his inactivity amounts to abandonment of his claim subjecting it to dismissal for failure to prosecute. Etpison v. Perman, 1 FSM Intrm. 405, 414 (Pon. 1984). In dismissing an action, the court may consider the importance of a judge maintaining control of his calendar trial continuances should be granted only for the most compelling reasons. Sally, 9 FSM Intrm. at 56.

    In ruling on a motion to dismiss for failure to prosecute an election contest, the court also takes into consideration the vigilance required of an election contestant to prosecute his claim to a speedy resolution. See Wiliander v. Mallarme, 7 FSM Intrm. 152, 157 (App. 1995). The court notes that due to the time sensitivity of election contests, continuances should rarely if ever be granted since the public interest and the litigants' private rights demand that proceedings are resolved as soon as consistent with justice and orderly process. See generally 26 AM. JUR. 2D Elections ' 350 (1966); see also 29 C.J.S. Elections ' 298 (1965). Yet, by his inaction, the contestant consented to numerous continuances.

    Once it became necessary to have a new trial, the court attempted to move the proceedings forward by requiring the parties to prepare and file a pre-trial record of stipulations and exhibits. The court's notice stated that the contestant's failure to file a pre-trial record would be deemed an abandonment of the appeal.

    The contestant was therefore required to make a filing by April 1st or his claim would be deemed abandoned. If the contestant believed the exhibits and record would be identical to evidence stipulated to during the earlier proceeding, as counsel explained to the court, he should've filed a record of that stipulation or otherwise notified the court of his compliance with the order. Without justification, the contestant did not comply with the court's order. Nor did he ask for an enlargement to comply with the order. He also did not file any response to the real party in interest's March 27, 2009 motion to continue, or the election commission=s motion to dismiss. From his complete inaction in meeting court filing deadlines and otherwise taking steps to prosecute his claim, the panel concluded that the contestant had abandoned his claim.

    The burden was on the election contestant to be vigilant and to prosecute his claim diligently to a speedy resolution. Chk. Civ. R. 41(b); Wiliander, 7 FSM Intrm. at 157. This the contestant did not do. The court does not find that the contestant's explanation for not complying with the court's order for a pre-trial record was consistent with a good faith effort to prosecute his appeal, and the contestant otherwise took no action to expedite his appeal=s resolution. When an election contestant, without reasonable justification, fails to comply with a court order requiring a filing by a set deadline or his claim will be deemed abandoned, and does not take steps to diligently pursue the speedy resolution of the election contest, the court is justified in concluding that the prosecution of the claim has been abandoned. The court, therefore, grants the motion to dismiss for failure to prosecute.

    Since dismissal is granted on that basis, the court need not address the second basis asserted for dismissal.

IV. CONCLUSION

    The appeal is dismissed.