THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
CHUUK STATE
APPELLATE DIVISION
Cite as David v. Uman Election Comm'r ,
8 FSM Intrm. 300d (Chk. S. App. 1998)

[8 FSM Intrm. 300d]

FRANKY DAVID et al.,
Appellants,

vs.

UMAN ELECTION COMMISSIONER et al.,
Appellees.

CIVIL APPEAL NO. 4-97

OPINION

Argued:  December 2, 1997
Decided:  March 28, 1998

BEFORE:
Hon. Keske S. Marar, Associate Justice, Chuuk State Supreme Court, presiding
Hon. Lyndon L. Cornelius, Temporary Justice, Chuuk State Supreme Court*
Hon. Ready Johnny, Temporary Justice, Chuuk State Supreme Court**

*Chief Justice, Kosrae State Court, Lelu, Kosrae
**FSM Public Defender, Weno, Chuuk

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

For the Appellees:      Wesley Simina, Esq.
                                      P.O. Box 94
                                      Weno, Chuuk FM 96942

*    *    *    *

HEADNOTES
Elections
     A decision of the Chuuk Election Commission may be appealed to the Chuuk State Supreme Court appellate division.  David v. Uman Election Comm'r, 8 FSM Intrm. 300d, 300f, 300h (Chk. S. Ct. App. 1998).

Appeal and Certiorari
     A motion to strike a single appellate justice's dismissal of an appeal may be set for oral argument and determination by an appellate panel.  David v. Uman Election Comm'r, 8 FSM Intrm. 300d, 300f (Chk. S. Ct. App. 1998).

[8 FSM Intrm. 300e]

Elections
     A radio announcement of the results of an Uman municipal election by the Uman Election Commissioner is not a ruling by the Chuuk Election Commission which would authorize an appeal to the Chuuk State Supreme Court appellate division.  David v. Uman Election Comm'r, 8 FSM Intrm. 300d, 300f (Chk. S. Ct. App. 1998).

Elections
     The right to contest an election is not a common law right.  Elections belong to the political branch of the government, and are beyond the control of the judicial power.  David v. Uman Election Comm'r, 8 FSM Intrm. 300d, 300g (Chk. S. Ct. App. 1998).

Elections
     The jurisdiction of courts exercising general equity powers does not include election contests, unless it is so provided expressly or impliedly by the constitution or by statute.  David v. Uman Election Comm'r, 8 FSM Intrm. 300d, 300g (Chk. S. Ct. App. 1998).

Elections
     It is a general rule that courts of equity have no inherent power to try contested elections, notwithstanding fraud on the part of the election officers.  David v. Uman Election Comm'r, 8 FSM Intrm. 300d, 300g (Chk. S. Ct. App. 1998).

Elections
     Constitutions and statutes of most jurisdictions provide, as a part of the machinery of elections, a procedure by which election results may be contested.  Such contests are regulated wholly by the constitutional or statutory provisions.  A strict observance to the steps necessary to give jurisdiction is required, and the jurisdictional facts must appear on the face of the proceedings.  If these steps are not followed, courts are powerless to entertain such proceedings.  David v. Uman Election Comm'r, 8 FSM Intrm. 300d, 300g (Chk. S. Ct. App. 1998).
 
Elections
     Election contests are purely statutory, and the courts have no inherent power to determine election contests, the determination of such contests being a judicial function only when and to the extent that the determination is authorized by statute.  David v. Uman Election Comm'r, 8 FSM Intrm. 300d, 300h (Chk. S. Ct. App. 1998).

Elections
     If the Chuuk State Supreme Court appellate division has original jurisdiction to decide an election contest, there must be a specific constitutional or statutory provision giving the appellate division that authority.  David v. Uman Election Comm'r, 8 FSM Intrm. 300d, 300h (Chk. S. Ct. App. 1998).

Administrative Law ) Judicial Review
     The Chuuk State Supreme Court trial division has jurisdiction to review the actions of any state administrative agency, board, or commission, as may be provided by law.  David v. Uman Election Comm'r, 8 FSM Intrm. 300d, 300h (Chk. S. Ct. App. 1998).

Elections
     The Chuuk Constitution provides that there shall be an independent Election Commission vested with powers, duties, and responsibilities, as prescribed by statute, for the administration of elections in the State of Chuuk.  David v. Uman Election Comm'r, 8 FSM Intrm. 300d, 300h (Chk. S. Ct. App.

[8 FSM Intrm. 300f]

1998).

Elections
     The Chuuk Election Law of 1996 applies to all elections in Chuuk including municipal elections unless otherwise specifically provided.  David v. Uman Election Comm'r, 8 FSM Intrm. 300d, 300i (Chk. S. Ct. App. 1998).

Elections
     The Chuuk State Supreme Court appellate division has no original jurisdiction to entertain an appeal directly from a municipal election commissioner.  David v. Uman Election Comm'r, 8 FSM Intrm. 300d, 300i (Chk. S. Ct. App. 1998).

*    *    *    *

COURT'S OPINION
KESKE S. MARAR, Associate Justice:
     A general election to fill the offices of Mayor, Deputy Mayor and members of the Municipal Council was held in the Uman Municipality on March 4, 1997.  On March 7, 1997, the Uman Municipal Election Commissioner certified and transmitted to the Governor of Chuuk State, a declaration of the results of that election.  The declaration named the Appellees in this action as the successful candidates.  The Appellants, the unsuccessful candidates in the March 4, 1997 election filed a "Notice of Appeal" in this Court which contains a single paragraph as follows:  "Notice is hereby given that the above named appellants, by and through their undersigned Counsel, pursuant to Sections 130 and 148 of Chk. S.L. No. 3-95-26. hereby appeal the March 8, 1997 denial of their petitions by the Uman Election Commissioner."
 
     The applicable portion of Section 130, cited by Appellant, provides as follows: "A decision of the Chuuk Election Commission may be appealed to the Appellate Division of the Chuuk State Supreme Court."  Chk. S.L. No. 3-95-26, 130 [emphasis added].
 
     On March 19, 1997, Counsel for the Appellees filed a Motion to Dismiss on the grounds that no decision of the Chuuk State Election Commission was ever entered from which the Appellants could appeal to this Court.  The Motion was granted and the appeal dismissed by a single justice pursuant to Section 37, Judiciary Act of 1990. Chk. S.L. No. 190-08.

     The basis for this ruling was that an appeal in an election case may be had to this Court only from a decision of the Chuuk Election Commission as provided for in Section 130, Election Law of 1996.

     On November 24, 1997, Counsel for Appellants filed in this Court, a document entitled "Motion to Strike Order of Dismissal."  On consideration, the single Justice to which the matter had been assigned, determined that an issue of first impression was presented and the "Motion to Strike Order of Dismissal" was set for oral argument and determination by an Appellate Panel scheduled to convene during the week of December 1, 1997.  The case was argued before a three Justice Appellate Panel on December 2, 1997.

     The oral argument before the Appellate Panel brought nothing to light that had not been previously presented by the parties as reflected in the record of the case.  There is no merit in the argument of Appellants that a radio announcement of the results of the election by the Uman Election Commissioner was a ruling by the Chuuk Election Commission which would authorize an appeal to this Court.

[8 FSM Intrm. 300g]

     Since there is no decision of the Chuuk Election Commission from which an appeal will lie to this Court pursuant to Section 130, supra, the only issue necessary for decision in this case is whether this Court has original jurisdiction to hear an election contest.
 
     The rule at common law is stated in 29 C.J.S. Elections 246 (1965) as follows:  "The right to contest an election is not a common law right.  Elections belong to the political branch of the government, and are beyond the control of the judicial power."

     26 Am. Jur. 2d Elections 316 (1966) repeats the rule as follows:  "An election contest is purely a constitutional or statutory proceeding.  At common law there was no right to contest in a court any public election, the theory being that elections belong to the political branch of the government, beyond the control of judicial power . . . ."

      As to courts of equity, it is said:

The jurisdiction of courts exercising general equity powers does not include election contests, unless it is so provided expressly or impliedly by the constitution or by statute.  The reason for this exclusion is that the questions involved are political, and the right to public office is not considered as constituting property in such a sense as will warrant the intervention of equity to protect it . . . nor will an injunction issue to restrain one of two claimants to an office . . . in controversy from exercising the duties of the office because of any defect in his election.

26 Am. Jur. 2d Elections 317 (1966) (footnotes omitted).

     29 C.J.S. Elections 248 (1965) provides that:  "It is a general rule that courts of equity have no inherent power to try contested elections, notwithstanding fraud on the part of the election officers . . . ."

     The foregoing authorities have been quoted at length so that there be no doubt that this court has no jurisdiction to hear an election contest unless the contestant can point to a specific constitutional or statutory provision that gives the court jurisdiction.

     Again, the court feels compelled to discuss the need for constitutional or statutory provisions giving the court jurisdiction in election contests by quoting at length from the authorities on this subject:

The constitutions and statutes of most jurisdictions provide, as a part of the machinery of elections, a procedure by which election results may be contested.  Such contests are regulated wholly by the constitutional or statutory provisions.  They are not actions at law or suits in equity, and were unknown to the common law.  The proceedings are special and summary in their nature.  A strict observance to the steps necessary to give jurisdiction is required, and the jurisdictional facts must appear on the face of the proceedings.  If these steps are not followed, courts are powerless to entertain such proceedings.

26 Am. Jur. 2d Elections 318 (1966) (emphasis added).

     On the question of the court's jurisdiction to hear election contest cases, further authority is found in 29 C.J.S. Elections 252 (1965) which states that:

[8 FSM Intrm. 300h]

election contests are purely statutory, and the courts have no inherent power to determine election contests, the determination of such contests being a judicial function only when and to the extent that the determination is authorized by statute.  Constitutional or statutory provisions in the various jurisdictions determine what court shall entertain the proceedings, and only the court or board authorized by the statute has jurisdiction to hear an election contest, and then only to the extent authorized.

     From a procedural standpoint, the case at bar is near identical to Tazwell v. Davis, 130 P. 400 (Or. 1913) and the Tazwell case is cited in support of all the legal quotations previously cited in the case at bar.

     In the Tazwell case, the election contestant filed a special proceeding in the trial court.  The trial court dismissed the case for the reason that the court had no jurisdiction to try the proceedings.  The Supreme Court of Oregon said:

In the absence of any statutory proceedings, the only remedy in the nature of a contest known to the common law is quo warranto, or in modern times, an action in the nature of quo warranto.  The determination of an election contest is a judicial function only so far as authorized by the statute.  The court exercising the jurisdiction does not proceed according to the course of the common law, but must resort to the statute alone to ascertain its powers and mode of procedure.

Id. at 401 (emphasis added).

     Thus, it is clear that if this court has original jurisdiction to decide an election contest, there must be a specific constitutional or statutory provision giving the Appellate Division that authority.  Looking first to the Chuuk State Constitution, there are but two sections relative to the issues in this case.

     Article VII, Section 3(c) states:  "The trial division of the State Supreme Court has jurisdiction to review the actions of any state administrative agency, board, or commission, as may be provided by law."
 
     As discussed hereafter, there is no provision of law which gives the Trial Division jurisdiction to review actions of the Chuuk State Election Commissioner or any Municipal Election Commissioner.

     Article XII, Section 4, provides as follows:  "There shall be an independent Election Commission vested with powers, duties, and responsibilities, as prescribed by statute, for the administration of elections in the State of Chuuk, including voter registration and the conduct and certification of elections."

     Pursuant to this constitutional mandate, the legislature has enacted the Election Law of 1996 for the governance of elections including judicial review. The Election Law of 1996, Section 3(a), states:  "There shall be within the government of Chuuk State the independent Election Commission.

     Further definition is given for the composition, duties, and responsibilities of the Commission.  Clearly, this is a "commission" over which the Trial Division could have had jurisdiction pursuant to Article VII, Section 3(c), had the legislature seen fit to grant such authority to the Trial Division.

     The legislative intent is specifically spelled out to the contrary.  Section 130, Election Law of 1996, provides:  "A decision of the Chuuk Election Commission may be appealed to the Appellate Division of the Chuuk State Supreme Court."

[8 FSM Intrm. 300i]

     There is no other reference to an appeal in the Election Law of 1996, and no where does this Law provide that an appeal from a ruling of a Municipal Election Commissioner can be appealed to this Court.

     Section 148, Election Law of 1996, states as follows:  "All the provisions of this Act shall apply to all elections in the State of Chuuk, including municipal or national election whenever applicable unless otherwise specifically provided."

     This court finds no law which specifically provides that this case is to be governed by rules other than those cited herein.  To allow litigation of election contests in the manner being pursued here by Appellants would have the effect of abolishing both the office of the Uman Election Commissioner as well as the Chuuk Election Commission.  Clearly, this was not the intent of the Legislature when the Election Law of 1996 was enacted.

     The provisions of the Election Law of 1996 set out specific remedies and procedures for the contestant in any election case to follow.  Under the great weight of authority and the prevailing rule of law and the specific provisions of the constitution and statutes of Chuuk State, the Appellate Division of the Chuuk State Supreme Court has no original jurisdiction to entertain the complaint in this case and the Defendant's Motion to Dismiss this case is due to be granted.

     It is so ordered.
                                                                                                                                                                                                                                                                                                           
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