THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
CHUUK STATE  TRIAL DIVISION
Cite as Aizawa v. Chuuk State Election Comm'r,
8 FSM Intrm. 275 (Chk. S. Ct. Tr. 1998)

[8 FSM Intrm. 275]

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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Richard H. Benson
Special Trial Court Justice

[ 8 FSM Intrm. 276]

Trial:  February 16-17, March 23-25, 1998
Decided:  April 7, 1998

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
 
For the Defendants:               Douglas Parkinson, Esq.
(Esa et al.)                               P.O. Box 2069
                                                  Kolonia, Pohnpei FM 96941

*    *    *    *

HEADNOTES
Elections
     The proper standard for determining whether a revote should be ordered is whether the result could have been different had the irregularities not occurred. The plaintiffs' obligation is twofold, to establish that irregularities occurred and to show that the result could have been different had no irregularities occurred. Aizawa v. Chuuk State Election Comm'r, 8 FSM Intrm. 275, 277-78 (Chk. S. Ct. Tr. 1998).

Elections
     No revote can be ordered when there is no proof of the alleged election irregularities and thus no showing that the conduct of the election affected the result, and when the outcome is the result of the plaintiffs' refusal to participate in the election.  Aizawa v. Chuuk State Election Comm'r, 8 FSM Intrm. 275, 278-79 (Chk. S. Ct. Tr. 1998).

Constitutional Law ) Chuuk ) Executive Powers
     The Chuuk Governor's constitutional power to declare an emergency is discretionary.  Whether an abuse exists is determined by an "arbitrary and capricious" standard.  Aizawa v. Chuuk State Election Comm'r, 8 FSM Intrm. 275, 280 (Chk. S. Ct. Tr. 1998).

Elections; Jurisdiction
     The Chuuk State Supreme Court trial division had jurisdiction to hear an election appeal from an election conducted, pursuant to the governor's emergency declaration, under a state law providing for such jurisdiction.  Aizawa v. Chuuk State Election Comm'r, 8 FSM Intrm. 275, 280 n.1 (Chk. S. Ct. Tr. 1998).

Constitutional Law ) Chuuk ) Executive Powers
     The validity of the action taken following the declaration of emergency is determined by whether it was taken in good faith and in the honest belief of its necessity.  Aizawa v. Chuuk State Election Comm'r, 8 FSM Intrm. 275, 280 (Chk. S. Ct. Tr. 1998).

[8 FSM Intrm. 277]

COURT'S OPINION
RICHARD H. BENSON, Special Trial Court Justice:
     This election contest is an appeal from the denial of the plaintiffs' protest by the State Election Commissioner.  Two issues are presented:  1) whether the Governor's emergency proclamation calling for an election was a lawful exercise of his authority, and 2) whether the consequent election held November 14, 1996 in Tolensom was properly conducted.  I resolve both issues against the plaintiffs.

     My Memorandum of Decision entered February 26, 1998 contains my conclusions as to the jurisdiction of this court to hear this case and as to the status of certain state election laws.  See Aizawa v. Chuuk State Election Comm'r, 8 FSM Intrm. 245, 247-48 (Chk. S. Ct. Tr. 1998).

     The two issues were presented in separate trials.  The first on February 16 and 17, and March 23; the second on March 24 and 25, 1998.  Prior to each trial the parties submitted lists of stipulated facts and of disputed facts.

     In 1996, the general election for Tolensom was to be held on September 24, as called for in the Tolensom Constitution.  Acting at the instance of the defendant Esa, the State Court on September 19 issued a temporary restraining order restraining the Tolensom Election Commission from holding the election.  The court took no further action.

     On September 29, plaintiff Aizawa, then mayor of Tolensom, declared that Tolensom was in a "state of emergency" because the election had not taken place and the then existing terms of office of the incumbents were due to expire on October 16, 1996.  On October 1st, the Tolensom Legislature passed Ordinance 02-01-96 which decreed that the mayor, assistant mayor and the legislators continue in office until an election is held in accordance with Article XIII, Section 2 of the Constitution of Tolensom.  That provision sets the date of general elections as the last Tuesday of September of even years.  The ordinance was approved by the mayor on October 3rd.

     On October 7, 9 and 30, the Chuuk State Governor issued Proclamations arising out of the events on Tolensom.  The October 30th Proclamation is the authority under which this contested election was held on November 14th and conducted by the Chuuk State Election Commission.

     The defendants Esa, et al. were declared the winners in this election.  They received some 1600 votes.  The plaintiffs received some 200 votes.  The party of the plaintiffs did not participate in the election.  The State Election Commissioner appointed an equal number of each party to serve on an election commission for the election, and the plaintiffs' party's representatives did not participate in that. (No records exist reflecting the preparations for the election, the conduct of the election, or the counting and tabulation of the vote.  All were lost while in the custody of the State Election Commission.)  The plaintiffs filed a contest with the State Election Commission which was denied by the inaction of the Commission. The contest was filed in this court on November 20th.

First Issue ) the Conduct of the Election
     This issue is discussed first, because if it were resolved in favor of the plaintiffs, there would be no need to address the second, constitutional issue of the Governor's authority.

     The plaintiffs argued during closing argument the proper standard for determining whether a revote should be ordered is whether from the totality of all circumstances it appears that the election was unfair and the result should not stand.  No authority is given for this standard.  The proper

[8 FSM Intrm. 278]

standard is whether the result could have been different had the irregularities not occurred.  Cf. Chk. S.L. 3-95-26, 124 ("No irregularity or improper conduct in the proceedings of any precinct election board shall void an election result, unless such irregularity or misconduct resulted in a defendant being declared either elected or tied for election."); 9 F.S.M.C. 906 ("A petition made pursuant to this Section [irregularities not correctable by recount] shall not be granted unless the petitioner proves it is more likely than not that the irregularities complained of could have resulted in the election of a candidate who would not have won had the irregularities not occurred.") (cited in Aten v. National Election Comm'r (II), 6 FSM Intrm. 74, 82 (App. 1993)); 26 Am. Jur. 2d Elections 438, at 233 (1996) ("A petitioner basing a challenge on voting irregularities has the burden of proving the probability that the result of the election would be changed by a shift in, or invalidation of, questioned votes.").

     Because this case is so clear, I do not need to determine whether the burden must be established by clear and convincing evidence or whether a presumption exists in favor of the validity of the election.

     The plaintiffs' obligation is twofold, to establish that irregularities occurred and to show that the result could have been different had no irregularities occurred.

     My findings are arrived at by deciding those facts listed as being in dispute in the joint statement submitted just before trial.

     1.  There is no evidence that "state election officials improperly placed candidates' names on the ballots."

     2.  There is no evidence that "State Election officials denied any eligible voters the opportunity to register to vote."

     3.  There is no evidence that State election officials did not "allow adequate time for registration of eligible voters residing outside Tol."  No one so situated testified that he or she was not able to register.

     4. and 5.  Whether State election officials adequately notified voters of the election date, and generally whether State election officials provided adequate public notice to voters for the elections scheduled for November 14, 1996.

     The testimony is thin as to the notice given.  It was given during the week before election day, and late in the evening of November 14th.  But only one witness (and his testimony on the point was internally conflicting) said he lacked notice of the election.  However, neither he nor any other witness testified that she or he would have voted had the notice been "adequate."

     The next four disputed facts are whether officials made it difficult or burdensome to vote, whether poll workers, and members of counting and tabulation committees were properly designated and whether they followed proper procedures on election day.  There is no evidence of any impropriety as to any of these items.

     The remaining three disputed facts concern matters not directly relevant to whether the election was properly conducted.

     I have carefully considered the allegations in the complaint to assure that every alleged irregularity was considered.  I find none.  Thus there has been no showing that the conduct of the election affected the results.  The results were as they were because the plaintiffs refused to

[8 FSM Intrm. 279]

participate.  As the defendants point out, since the plaintiffs refused to participate in the election, nothing the State Election Commission did or didn't do could have possibly affected the outcome.

Second Issue ) the Governor's Authority
     Because of my conclusion as to the first issue, the second issue ) the authority of the Governor to declare an emergency and call an election ) must be addressed.

     The issue has two parts:  the validity of declaration of an emergency itself and the propriety of the steps taken to end the emergency.

     Relying on sections 1 and 12(a) of Article VI of the Chuuk State Constitution, on October 30th the Governor issued his Proclamation declaring an emergency and calling for an general election in Tolensom on November 7, 1996 (later delayed until the 14th, but no issue is made of this by the parties).  As relevant to this case, section 1 requires the Governor to "faithfully execute and implement [the] Constitution."  Section 12(a) provides, "If required to preserve public peace . . . at a time of extreme emergency caused by civil disturbance . . . the Governor may declare a state of emergency and issue appropriate decrees."  The proclamation is effective for only 15 days unless the Legislature acts.  Chk. Const. art. VI, 12(c).

     The plaintiffs contended at trial that there was no showing of the elements of 12(a), that is, that there was no requirement that public peace be preserved, that there was no extreme emergency, and no state of civil disturbance.  My views on this contention are given later in this portion of my findings and conclusions.

     The plaintiffs also contend that the Governor had no power to interfere in the Tolensom election because of article XIII, section 5 which states in part, "The powers and functions of a municipality with respect to its local affairs and government are superior to statutory law."  This contention is without merit and is answered implicitly by my findings and conclusions.

     I have not been cited to, or found, a case arising in the FSM exactly in point on the exercise of this power to declare an emergency.  Cases in the United States may thus be consulted for assistance.  Cf. Moyer v. Peabody, 212 U.S. 78, 83, 29 S. Ct. 235, 236, 53 L. Ed. 411, 416 (1909) (Holmes, J.) ("It is admitted, as it must be, that the governor's declaration that a state of insurrection existed is conclusive of that fact.") (civil action for damages brought against governor, although he was no longer in office, for causing the plaintiff's arrest and two and one-half month detention; plaintiff was leader of insurrection; Colorado Constitution gave governor power to call out state forces to suppress insurrection); 45 Am. Jur. 2d Insurrection 3 (1969) ("Under a state constitutional provision that the governor shall have the power to call out the volunteer and militia forces to, inter alia, suppress insurrection, the discretion of the governor to determine the existence of insurrection may not be interfered with by judicial authority.").

     The Governor recites in the proclamation, "Whereas, reliable sources have indicated the strong likelihood of great and immediate harm caused by civil disturbance to befall on the people of Tolensom unless the people freely choose their leaders through a democratic election process . . . ."

     Testimony supports his finding.  For example, 1) the temporary restraining order of September 19th was based on improper procedures by the incumbent party during the preparation for the general election; 2) the plaintiff mayor himself declared an emergency because of the imminent crisis of having no officials serving the municipality; and 3) the incumbents took a number of steps, including the passing of an ordinance which purported to continue them in office, seeking to make their positions

[8 FSM Intrm. 280]

secure.  Ordinance 02-01-96 alone could justify civil disturbance by the disaffected who see some officials extend their terms for four years, some for two.

     The Governor justified his proclamation by other provisions of the Chuuk State Constitution:  that article XIII, section 5 requires that municipal constitutions be democratic in form; and that article II, section 1 declares that the Chuuk state constitution is the supreme law of the state and that any act of government in conflict is invalid.  It has not been disputed that an ordinance passed by the incumbents continuing themselves in office violates a fundamental right enjoyed in a democracy.
 
     The power of the governor is discretionary.  Whether an abuse exists is determined by an "arbitrary and capricious" standard.  There is no evidence that the Governor acted in an arbitrary or capricious manner in declaring the emergency.  This finding is in addition to the legal standard set out in the analogous authority (Moyer and American Jurisprudence) cited above.

     Considering all the foregoing aspects, I cannot conclude that the Governor's declaration of emergency was invalid as the plaintiffs ask.

     The second aspect of the issue is the propriety of the actions which the Governor directed to be taken, or, stated another way, whether the Governor "issue[d] appropriate decrees."  Chk. Const. art. IV, 12(a).

     The aim of the proclamation is clearly to have a prompt election in place of the election restrained.  Preparations for that election were made at a time when Truk District Law 27-l-6 was in effect.  The Governor directed that the November election would be according to that law, and that the State Election Commission would supervise.  That law gave the State Election Commissioner overall authority over municipal elections, regardless of municipal "charter, law, or ordinance."  Id. 5.  The proclamation was therefore compatible with the law.1

     Analogous authority states that the validity of the action taken following the declaration of emergency is determined by whether it was taken in good faith and in the honest belief of its necessity.  ("So long as such arrests are made in good faith and in the honest belief that they are needed in order to head the insurrection off, the governor is the final judge . . . ."  Moyer, 212 U.S. at 85, 29 S. Ct. at 236, 53 L. Ed. at 416.)  Plaintiffs presented no evidence that the Governor's actions were taken in bad faith and without an honest belief of their necessity.

     I cannot find that the directives of the Governor set out in the proclamation were inappropriate.  What he did was appropriate to the executive branch.  He decreed that the statutory official (the State Election Commission) must conduct the election.

     Based upon these findings and conclusions, the decision of the State Election Commission in denying the protest is proper.  The decision of the State Election Commission is affirmed and this action dismissed.

[8 FSM Intrm. 281]

     Let judgment be entered accordingly.
 
 
 
Footnote:
 
1.  In my Memorandum of Decision entered February 26, 1998 on the issue of the court's jurisdiction, Aizawa v. Chuuk State Election Comm'r, 8 FSM Intrm. 245, 247-48 (Chk. S. Ct. Tr. 1998), I made no conclusion as to jurisdiction based on this law because the trial had not yet been held on the question of the governor's authority.  Since I now conclude that the governor's direction that required that the procedures be in accordance with 27-1-6 is valid, it follows that jurisdiction in this court based on section 71 ("appeal his case to the District Court") is proper. This constitutes a third ground for the jurisdiction of this court to hear this appeal.
 
                                                                                                                                                                                                                                                                                                           
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