CHUUK STATE SUPREME COURT
TRIAL DIVISION
Cite as Aizawa v. Chuuk State Election Comm'r,
8 FSM Intrm. 245 (Chk. S. Ct. Tr. 1998)

[8 FSM Intrm. 245]

SUSUMU AIZAWA, SWITER ETER and ALL
MEMBERS OF THE TOLENSOM LEGISLATURE
WHO SERVE PURSUANT TO TOL MUNICIPAL
ORDINANCE NO. 02-02-96,
Plaintiffs,

vs.

CHUUK STATE ELECTION COMMISSIONER,
CHUUK STATE ELECTION COMMISSION and ALL
OTHER INDIVIDUALS REPRESENTING THE STATE
ELECTION COMMISSIONER OR COMMISSION,
KISAUO ESA, ANTHONYO N. MAZAWA et al.,
Defendants.

CSSC CA NO. 203-96

MEMORANDUM OF DECISION

Richard H. Benson
Special Trial Court Justice

Hearing:  February 9, 1998
Decided:  February 10, 1998
Memorandum Entered:  February 26, 1998

[8 FSM Intrm. 246]

APPEARANCES:
For the Plaintiffs:                    Johnny Meippen, Esq.
                    P.O. Box 705
                    Weno, Chuuk FM 96942

For the Defendants:               Manny Otoko, Trial Counselor
(Chuuk Election Comm'r)      P.O. Box 189
                            Weno, Chuuk FM 96942

*    *    *    *

HEADNOTES
Elections
     The Chuuk State Election Law, Chk. Pub. L. No. 3-95-26, 126, 130, requires that all election complaints be filed with the Chuuk Election Commissioner and that all appeals from the Election Commissioner's decision go directly to the Chuuk State Supreme Court appellate division.  Aizawa v. Chuuk State Election Comm'r, 8 FSM Intrm. 245, 247 (Chk. S. Ct. Tr. 1998).

Elections; Jurisdiction
     When the state election law requiring election appeals to go directly to the state court appellate division has a provision applying the law to municipal elections if the municipal constitution or law so provides and there is no such municipal provision, then jurisdiction over the election appeal does not lie in the state court appellate division in the first instance.  Aizawa v. Chuuk State Election Comm'r, 8 FSM Intrm. 245, 247 (Chk. S. Ct. Tr. 1998).

Jurisdiction
     A case challenging the Governor's authority to take certain actions where the Governor has cited the state constitution as his authority and where the issues are serious and substantial is clearly a case arising under the state constitution over which the state court trial division has original and exclusive jurisdiction.  Aizawa v. Chuuk State Election Comm'r, 8 FSM Intrm. 245, 247 (Chk. S. Ct. Tr. 1998).

Elections; Jurisdiction
     When the state judiciary act gives the state court trial division authority to review allactions of an agency of the government, the trial division has jurisdiction over an appeal of the state election commissioner's denial of a petition to set aside a municipal election.  Aizawa v. Chuuk State Election Comm'r, 8 FSM Intrm. 245, 247 (Chk. S. Ct. Tr. 1998).

*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Special Trial Court Justice:
     The plaintiffs ask that the election held on November 14, 1996 in Tolensom for mayor, assistant mayor, and municipal legislators be set aside on the grounds that the Governor lacked the authority to direct that the election be held and that the election procedure itself was defective.  This memorandum concerns my ruling on the Chuuk State Elections Commissioner's Motion to Dismiss filed December 22, 1997.  The motion contends that the court lacks subject matter jurisdiction.
 
[8 FSM Intrm. 247]     

     Oral arguments on the motion were presented on February 9, 1998.  The motion is made pursuant to Rule 12(b)(2) of the Rules of Civil Procedure for the State Court of Chuuk.  The parties submitted a number of documents to assist in my inquiry of the issue.  On February 10, 1998, I denied the motion, concluding that the plaintiffs had carried their burden of establishing the court's jurisdiction. This Memorandum sets out my reasons for that ruling which differ from those I gave on February 10th.

     The motion has two grounds:  1) that the plaintiffs failed to contest the election by filing a complaint with the Chuuk Election Commissioner, and 2) that the appellate division, not the trial division, has jurisdiction.  He cites the Chuuk State Election Law, Chk. Pub. L. No. 3-95-26, sections 126 and 130, respectively. Section 126 requires that all election complaints be filed with the Chuuk Election Commissioner.  Section 130 mandates that all appeals from the Election Commissioner's decision go directly to the appellate division of the Chuuk State Supreme Court.

     The Chuuk State Election Law became effective on September 27, 1996. Section 8 states, "The Commission [Chuuk State Election Commission, established by the law] shall have the power to conduct all elections in the State of Chuuk, including national and municipal elections, if so provided by law or municipal constitutions."  The parties agree that Tolensom's Constitution and ordinances do not provide that its elections shall be governed by the Chuuk State Election Law.  I must conclude that Tolensom does not come within the purview of the state election law and that the election held November 14, 1996 was not governed by its provisions.  Therefore jurisdiction over this election appeal does not lie in the Chuuk State Supreme Court appellate division in the first instance.

     Plaintiffs' Opposition to Defendant Election Commission's Motion to Dismiss contends that the court does have jurisdiction since the case arises under the Chuuk State Constitution.  They also contend that Truk District Law 27-1-6 applies since the Governor, in his proclamation calling upon the State Election Commissioner to conduct the election, required that it be conducted according to the provisions of that law.

     I do not need to decide this second ground involving 27-1-6 since trial has not yet been held on the issue of the Governor's authority.  If that authority is found, the Governor may have the power, when exercising that authority, to specify the procedures to be used in the elections he calls.  (I note that the Chuuk State Election Law repealed Truk District Law 27-1-6 in its entirety.)  Since I conclude that the plaintiffs have established this court's jurisdiction, as shown below, I reach no conclusion now as to the plaintiffs' reliance on 27-1-6.

     The plaintiffs are correct, however, in their assertion that the case arises under the Constitution, giving the court jurisdiction.  Chuuk Constitution article VII, section 3(a) provides, "The trial division of the State Supreme Court has original and exclusive jurisdiction over . . . cases arising under this Constitution."  The three successive proclamations issued by the Governor concerning this matter recited the Constitution as his authority.  The plaintiffs contend that he acted in excess of the authority permitted by the Constitution.  The issues are "serious and substantial."  Cf. Ponape Chamber of Commerce v. Nett Municipal Gov't, 1 FSM Intrm. 389, 391 (Pon. 1984). The case thus clearly arises "under this Constitution."

     In their Petition to Set Aside Election Results the plaintiffs allege the Chuuk State Judiciary Act, Chk. S.L. No. 190-08, as one ground for the court's jurisdiction.  Section 17 of that act grants the trial division authority to review all actions of an agency of the Government.

     The plaintiffs provided evidence at the hearing that they had submitted a petition to the State Election Commissioner on November 20, 1996 seeking the setting aside the election.  The Commissioner either refused to entertain it or denied it on the spot (it is not clear).  In any event it is

[8 FSM Intrm. 248]

not disputed that the petition was delivered to the office of the state commissioner and that no written decision was made then or at any time thereafter.  These circumstances constitute a denial of the petition, warranting the plaintiffs to file their petition in this court.

     Based on the two grounds for the jurisdiction, coupled with the denial by the agency, jurisdiction in this court is proper.

     As stated before, the Motion to Dismiss was denied on February 10, and this memorandum is issued to give reasoning justifying that ruling.
                                                                                                                                                                                                                                                                                                           
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