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HEADNOTES

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COURT'S OPINION

CAMILLO NOKET, Chief Justice:

The petitioner, Anucha Stephan Hallers (Steven Hallers), sought a court order requiring the respondent Chuuk State Election Commission to recount certain ballot boxes in Election Districts 2, 3, and 4 in which the tabulation was alleged to be deficient. At the close of the petitioner's case at trial, the respondent-real party in interest, Harris Rain, joined by respondent Chuuk State Election Commission and respondent Anader Yer (in his capacity as Chairman of the Election Commission), moved to dismiss the petitioner's case because he had not shown a right to relief. We granted that motion from the bench and this written order memorializes our oral dismissal. Our reasoning follows.

I. BACKGROUND

In the March 5, 2013 election, there were four candidates for the two House of Senate seats for the Southern Namoneas, with the top two vote-getters being elected Senators. In the official results, candidate Nelson Stephen had the highest vote total (4,606), respondent Rain had the second highest total votes (3,785), and Hallers had the third highest total (3,700). The State Election Commission declared Stephen and Rain the winners.

Hallers petitioned the Chuuk Election Commission for a recount of all votes for Election Districts 2, 3, and 4 with the exception of the ballot boxes for Sapore, Penoir, Penienuk, the Guam special polling place and the Honolulu polling place. He alleged that there were irregularities in the tabulation of the ballot boxes for which he sought a recount. Hallers contended that when the tabulators for the challenged ballot boxes stopped to check their tallies after every twenty-five votes, if all three tabulators did not agree on the total for Rains that they choose the higher figure for Rains and that the tabulators ignored his poll watchers' objections that the tabulators' figures were inaccurate. Hallers contended that these discrepancies, which always seemed to be in Rain's favor, were enough to make it likely that he, instead of Rain, was the actual winner.

The Election Commission denied Hallers' petition because it did not have the authority to order a recount. This ruling was correct. Under the Election Law of 1996, only a court, not the Election Commission, has the authority to order a recount. Chk. S.L. No. 3-95-26, § 120 ("a recount . . . shall be conducted only upon the order of a court of competent jurisdiction").

Hallers then filed his election contest petition in the Chuuk State Supreme Court appellate division. Hallers asked us to order a recount using the court-approved method of vote counting and asked that we issue an order securing the challenged ballot boxes until this case could be concluded. Our March 27, 2013 order secured those ballot boxes.

[18 FSM R. 647]

At the start of trial on April 10, 2013, we heard Rain's motion to dismiss this case because Hallers' April 4, 2013 amended complaint was, in his view, not specific enough for Rain to know what he had to defend. We denied that motion because the original March 21, 2013 complaint with its affidavit and supporting exhibits along with the April 4, 2013 amendment to the original complaint, gave the respondents adequate notice of the factual allegations that formed the basis of the election contest petition. The election contest then proceeded to trial as the Election Law of 1996 requires. Chk. S.L. No. 3-95-26, §§ 130-131.

II. MOTION TO DISMISS AT THE CLOSE OF HALLERS' EVIDENCE

At the close of Hallers' case-in-chief, Rain, joined by Yer and the Chuuk State Election Commission, moved to dismiss Hallers' case because he had not shown a right to relief. Although the civil procedure rules apply to the trial division and not the appellate division, we considered this motion to be analogous to a Civil Procedure Rule 41(b) motion to dismiss in the trial division. Samuel v. Chuuk State Election Comm'n, 14 FSM Intrm. 591, 594 & n.1 (Chk. S. Ct. App. 2007). Such a motion to dismiss may be made on the ground that on the facts and the law the petitioner has shown no right to relief. Id. at 595. We, as the triers of fact, "may then determine the facts and render judgment against the petitioner or may decline to render any judgment until the close of all the evidence." Id.

In determining whether a plaintiff, or in this case the petitioner, has shown a right to relief, we are not required to view the facts in the light most favorable to the petitioner but may draw permissible inferences, and if we determine that the petitioner has not made out a prima facie case, the defendant is entitled to have the case dismissed. Peter v. Jessy, 17 FSM Intrm. 163, 171 (Chk. S. Ct. App. 2010) (interpreting Civil Rule 41(b)). Even if a plaintiff (or petitioner) makes out a prima facie case, we, the triers of fact, may, in assessing the evidence on a Rule 41(b) or analogous motion, weigh the evidence, resolve any conflicts in it, and decide for ourselves where the preponderance of the evidence lies, and when weighing the evidence, we may view it with an unbiased eye without any attendant favorable inferences, and we may sift and balance the evidence and give it such weight as we deem fit. Id. And, "[w]hen we render judgment on the merits against the petitioner by granting a motion to dismiss after the close of the petitioner's case-in-chief, we must make findings of fact and conclusions of law in a manner analogous to Civil Procedure Rule 52(a)." Samuel, 14 FSM Intrm. at 595.

III. FINDINGS OF FACT AND CONCLUSIONS OF LAW

Based on the testimony and evidence in Hallers' case-in-chief, we find that, for a number of Southern Namoneas ballot boxes tabulated on the night of March 5, 2013, the tabulators, after twenty-five ballots and been tabulated, would compare their tabulations and if the tallies did not agree the tabulators would, if two tallies agreed, adopt the majority figure, and if all three were different, they would adopt the middle figure. According to Hallers' poll-watchers who testified, some of the challenged ballot boxes did not have any discrepancies in the tally figures, while other boxes would, virtually every time, differ by one vote at the twenty-five ballot checkpoint, with Rain invariably getting one vote higher than the number Hallers' poll-watcher, by his own independent tally, thought Rain had received. Other times there was sometimes a one-vote discrepancy and sometimes all figures agreed. Hallers and his poll-watchers complained about these tabulating methods, and the next day, these tabulating methods were no longer used and Hallers does not dispute the accuracy of the tally counts and tabulations for the boxes counted from then on.

In Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 157 (Chk. S. Ct. App. 2001), where the tabulators used the same two-of-three and middle figure methods as were used here on March 5, 2013, to resolve discrepancies between their tally counts at the twenty-five ballot checkpoints, "[w]e concluded that the methods used to resolve discrepancies introduced a substantial

[18 FSM R. 648]

chance of inaccurate results, and because of the closeness of the official results (a one vote difference . . .) these inaccurate results could have affected the outcome." We therefore ordered a recount in that case. For the recount, the

parties agreed that if there were any discrepancies in tally totals at any of the [twenty-five ballot] checking points that instead of using the methods the court had just found to introduce a substantial chance of inaccurate results, the tabulating committee would instead recount the ballots they had counted since the last checking point and not count any further ballots until all tally counts agreed. We thanked the parties for their agreement on a method designed to achieve an accurate result, and we heartily approved of the method chosen.

Cholymay, 10 FSM Intrm. at 157. Although, when we decided Cholymay, we did not require that all future elections use the tabulation method that we "heartily approved," the Cholymay method will produce the most accurate result. We still heartily endorse that method. This is the "court-approved" method that Hallers wants used to recount the challenged ballot boxes. However, "[n]o irregularity or improper conduct . . . shall void an election result, unless such irregularity or misconduct resulted in a defendant [the real party in interest] being declared either elected or tied for election." Chk. S.L. No. 3-95-26, § 124.

In this case, there was an eighty-five vote difference between Hallers and Rain (while in Cholymay there was only a one-vote difference). Weighing the evidence with an unbiased eye, we determined that Hallers did not show that the possible tabulation inaccuracies, even in the unlikely event that they were all in Rain's favor, were enough that there was a substantial chance that the election's outcome was affected – that Rain had at least eighty-five fewer votes while Hallers' total remained the same. Even if we were to view the facts in the light most favorable to Hallers and gave Hallers the benefit of all reasonable inferences in his favor, it still would not have been more likely than not that if a more accurate vote count were obtained through a recount the vote totals would have changed enough so that there was a substantial chance that the election's outcome would be affected; that is, that Hallers and Rain would have been tied or that Hallers would have been elected.

Since it was not more likely than not that the alleged irregularities or inaccuracies, if corrected by a recount, could have affected the election's outcome – could have resulted in a tie or in Hallers' election – Hallers, the election contestant, failed to carry his burden of proof to show that upon the facts and the law he had a right to relief, and we therefore may, on motion made after the presentation of the petitioner's case-in-chief, dismiss the case. Samuel, 14 FSM Intrm. at 596.

IV. CONCLUSION

Accordingly, we granted Harris Rain's motion to dismiss this election contest and dismissed Anucha Stephan Hallers' appeal.