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HEADNOTES

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COURT'S OPINION

REPEAT R. SAMUEL, Associate Justice:

This comes before the court on a petition for a writ of mandamus. The petitioner asks that the court issue a writ of mandamus directed to the Chuuk State Election Commission commanding it to announce (and conduct) a runoff election between the two highest vote-getters in the August 24, 2011 special election to fill the vacancy in the Governor's office. This is not an election contest. The sole issue before the court is whether the Constitution requires a runoff election when no candidate has received a majority of the votes cast in a special election for Governor.

The facts are clear and indisputable. Neither the petitioner, Alexander Narruhn, nor the respondent-real-party-in-interest, Johnson Elimo, received a majority of votes in the special election to fill the vacancy in the Governor's office. Elimo received a plurality of the votes, 7,945 (42.83%) and Narruhn received 6,913 votes (37.27%). Total votes were 18,550, so in order to receive a majority a candidate would have needed to receive 9,276 votes (50% plus 1 vote).

The State Election Commission raises five procedural challenges to the maintenance of this petition. None are sufficient to prevent a consideration of the petition's merits. The State Election Commission challenges the sufficiency of service on the ground that the process server was not a police officer, that the Attorney General's Office and not the State Election Commission was served, and that a summons and a verified complaint were not served with the petition. There was no showing that the process server, a former police officer, was not a person who had been specially appointed to serve process in Chuuk State Supreme Court cases under Civil Rule 4(c). It is unclear whether a complaint and summons must be served with a petition for a writ of mandamus. It seems counter-productive to require such duplicative pleadings. Moreover, such alternative pleadings would potentially confuse the respondents about the nature of the relief sought and cause unnecessary procedural entanglements. Nevertheless, service was defective because a summons should have been issued and served.

The service on the Attorney General's Office was proper but the State Election Commission is correct that it should have also been served separately on the State Election Commission. Chk. Civ. R. 4(d)(4). That was not done. Usually when service is defective in this manner the court will either dismiss without prejudice and with leave to refile, Chk. Civ. R. 12(b)(5), or quash service and grant the plaintiff a number of days within which to effect proper service. FSM v. Fu Yuan Yu 096, 16 FSM Intrm. 1, 3 (Pon. 2008); Puchonong v. Chuuk, 14 FSM Intrm. 67, 69 (Chk. 2006); Reg v. Falan, 11 FSM Intrm. 393, 399 (Yap 2003); Dorval Tankship Pty, Ltd. v. Department of Finance, 8 FSM Intrm. 111, 115 (Chk. 1997). In this case, the State Election Commission's brief opposes the petition on the merits and its oral argument presented the merits of its opposition, so it will not be prejudiced by a decision on the merits. The nature of the petition makes this an expedited proceeding. To require, at

[18 FSM R. 20]

this point, that the petitioner re-serve the Attorney General's Office and serve the State Election Commission would be an empty exercise in formality, especially in light of the petition's urgent nature (a runoff should be held September 20, 2011, if one is required) and the need for some certainty in the State's public affairs. In Taylor v. Latimer, 47 F. Supp. 236, 237 (W.D. Mo. 1942), where the defendant filed a proper and timely motion to dismiss for lack of proper service together with a summary judgment motion, the court held that this did not bar a ruling on the alternative summary judgment motion because of the importance of the case. That situation is similar to this case. The inadequate service will not bar a ruling on the alternative dispositive motions (on the merits) to dismiss for the failure to state a claim. The court will decide the dispositive motions.

The State Election Commission also asserts that because the service was insufficient, the court lacks jurisdiction over the subject-matter. This is incorrect. Insufficient process only affects personal jurisdiction - jurisdiction over the person of the defendants or respondents who should have been served properly. It does not affect subject-matter jurisdiction.

The State Election Commission asserts that the verified petition does not state a claim on which relief can be granted. In the context of a petition for a writ of mandamus, this is an argument on the petition's merits, and will be addressed below. The State Election Commission also asserts that the issue is moot because Elimo has already taken the oath of office. The court gives no weight to this argument. If he is not the duly elected governor, then Elimo is still the "Acting Governor until a Governor is elected and takes office." Chk. Const. art. VI, § 11. So if a runoff election must be held, he is only exercising the powers of an office he would be exercising anyway. And if a runoff election is held and the runner-up wins, then the runner-up can be sworn in.

The State Election Commission's last procedural challenge is that, in its view, the Chuuk Legislature should have been joined as an indispensable party because the State Election Commission has no funds to conduct a runoff election and the court would have to order it to appropriate such funds. This is not a ground to deny the petition. First, the Legislature is a co-equal branch of government and the court does not have the authority or power to order it to take a discretionary act of appropriating funds. See, e.g., Narruhn v. Chuuk, 11 FSM Intrm. 48, 54 (Chk. S. Ct. Tr. 2002) (court cannot direct legislature to appropriate funds to pay judgment). Second, the petition seeks a writ commanding the State Election Commission to perform an act, not the Legislature to perform an act. And third, whether sufficient funds are already appropriated to conduct a runoff election is not a ground to deny the petition. The lack of funds to perform a required duty is a problem to be solved by the political branches of government, not the court. If the runoff election must be held, then it must be held and it is the State Election Commission's problem to come up with the necessary funds or to figure out how to conduct the election without funds. All parties agree that the August 24, 2011 special election was mandated by the Constitution. Thus, the State Election Commission could not have refused to hold it because it had insufficient funds. If it had refused to hold that election on that ground, it is clear that, if sought, a writ of mandamus would have issued to command that the election be announced and held.

Elimo's motion to dismiss asserts, as does the State Election Commission's, that the petition fails to state a claim on which relief can be granted. The court therefore treats it and the State Election Commission's similar assertion as oppositions to the petition on its merits.

The court has the authority to issue a writ of mandamus in a proper case. The Chuuk Judiciary Act gives all state courts the "power to issue all writs for equitable and legal relief . . . ." Chk. S.L. No. 190-08, § 4. A writ of mandamus is used to confine an inferior tribunal to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so, which is similar to a writ of prohibition that, instead of commanding an inferior tribunal to do something,

[18 FSM R. 21]

commands it not to do something. Damarlane v. Pohnpei Supreme Court Appellate Division, 10 FSM Intrm. 116, 119-20 (Pon. 2001); cf. Albert v. O'Sonis, 15 FSM Intrm. 226, 231 (Chk. S. Ct. App. 2007) (writ of prohibition); Nikichiw v. O'Sonis, 13 FSM Intrm. 132, 138 (Chk. S. Ct. App. 2005) (writ of prohibition). The historic use of writs of prohibition and mandamus directed by an appellate court to an inferior tribunal has been to exert the revisory appellate power over the inferior tribunal. Damarlane, 10 FSM Intrm. at 120. For the purpose of a writ of mandamus an inferior tribunal is one that is either placed under the supervisory or appellate control of the other court or is one whose jurisdiction is limited and confined. Id. The Chuuk State Election Commission is an agency or tribunal inferior to the Chuuk State Supreme Court. Chk. S.L. No. 190-08, § 18 (person aggrieved by agency action may seek review in court); 17 TTC 13.

The five elements that must be present before the court can exercise its discretion to issue a writ of mandamus are: 1) the respondent must be a judicial or other public officer or body, 2) the act to be compelled must be non-discretionary or ministerial, 3) the respondent must have a clear legal duty to perform the act, 4) the respondent must have failed or refused to perform the act, and 5) there must be no other adequate legal remedy available. In re Failure of Justice to Resign, 7 FSM Intrm. 105, 109 (Chk. S. Ct. App. 1995). The petitioner seeks a writ of mandamus commanding the respondent Election Commission to announce (and conduct) a runoff election between the two highest vote-getters to fill the Governor's office.

In this case, the respondent State Election Commission is a public body or tribunal which has refused to perform the act of announcing and conducting a runoff election and no adequate legal remedy other than a writ of mandamus is available. If the State Election Commission has a duty to announce and conduct a runoff election, that duty can only be ministerial and non-discretionary. The State Election Commission does not have the discretion to choose whether to conduct an election or not. Its duty to conduct elections is mandated by the Constitution. Thus, whether Narruhn is entitled to a writ commanding the respondent Election Commission to announce (and conduct) a runoff election to fill the Governor's office depends solely on the meaning of the relevant provisions of the Chuuk Constitution. The constitutional provision requiring runoff elections states:

Section 7. The Governor and Lieutenant Governor shall be elected jointly on a single ticket at a general election. The candidates for the 2 offices on the ticket receiving the majority of votes cast shall be elected. If a majority is not received, a runoff election between the candidates on the tickets receiving the two highest pluralities shall be held on the fourth Tuesday following the general election, as prescribed by statute.

[Chk. Const. art. VI, § 7.]

The constitutional provision applicable to filling vacancies in the Governor's office states:

If the Governor dies, resigns, suffers a major incapacity, or is removed from office with one year or less of the term remaining, the Lieutenant Governor becomes Governor. However, if any such event occurs with more than one year of the term remaining, the Lieutenant Governor becomes Acting Governor until a Governor is elected and takes office. The election shall be held on the fifth Wednesday after the event occurs. If the Lieutenant Governor dies, resigns, is removed from office, or succeeds the Governor, the Governor shall appoint a Lieutenant Governor with the advice and consent of 2/3 of all of the members of the Senate. The order of succession after the Lieutenant Governor shall be the President of the Senate and the Speaker of the House of Representatives.

[Chk. Const. art. VI, § 11(a).]

[18 FSM R. 22]

It is thus a clear non-discretionary duty for the State Election Commission to conduct a runoff election if, during the general election, no ticket of candidates for Governor and Lieutenant Governor receives a majority of the votes cast. However, in a special gubernatorial election to fill a vacancy, the candidates do not run on tickets. They run alone for the office of governor. The Section 7 provision for runoff elections applies to tickets of candidates, not to single candidates. The Section 11 provision for special elections does not mention runoff elections if there is no candidate with a majority. Nor does Section 11 state that the gubernatorial special election shall be conducted in the same manner as the gubernatorial election in Section 7. It also does not state that it should be conducted in a manner to be prescribed by statute. If it did then, Section 142 of the Election Code, which provides that "[a]ll special elections shall be conducted in the same manner and form as a general election, except as otherwise provided in this Act," Chk. S.L. No. 3-95-26, § 142, would carry great weight and might lead the court to conclude that there was a clear, non-discretionary duty to conduct a runoff. However, there are no such provisions. A court must be careful not to read into a constitution provisions which are not there nor rewrite a constitution to include provisions that seem to be omitted. See Chuuk v. Secretary of Finance, 9 FSM Intrm. 424, 436 (App. 2000). The Constitution's framers did not include such provisions, and even if that was through oversight, the court will not insert into the Constitution a runoff provision that is not there.

Accordingly, the petition for a writ of mandamus directed to the State Election Commission commanding it to hold a runoff election is denied. This is the final order in this case. The case is closed.