Cite as Daniel v. Moses,
3 FSM Intrm. 1 (Pon. S. Ct. Tr. 1985)

[3 FSM Intrm. 1]





Judah C. Johnny
Associate Justice
Pohnpei Supreme Court

January 17, 1985

          For the Petitioner:          James P. Hagerstrom
                                                   Kolonia, Pohnpei 96941

          For the Respondents:     Patricia Billington
                                                    Pohnpei State Government
                                                    Kolonia, Pohnpei 96941

*        *       *      *

Separation of Powers; Elections
     After the executive branch has declared a candidate to have won an election, that winner has the right to hold office, subject only to the legislative branch's power to judge the qualifications of its members.  Daniel v. Moses, 3 FSM Intrm. 1, 4 (Pon. S. Ct. Tr. 1985).

     An election must be completed and the results announced before the election can be contested.  Daniel v. Moses, 3 FSM Intrm. 1, 4 (Pon. S. Ct. Tr. 1985).

[3 FSM Intrm. 2]

JUDAH JOHNNY, Associate Justice:

     This matter came for hearing before me on January 15 and 16, 1985, in Kolonia, State of Pohnpei on a motion for a temporary restraining order.  The petitioner, on January 10, 1985, filed a petition for reelection in the Kitti Municipality, pursuant to a special election that was held in the State of Pohnpei on December 21, 1984 to fill the vacant position of the Pohnpei State Lieutenant Governor, and three newly established seats in the Pohnpei State Legislature, respectively for the municipalities of Kitti, Madolenihmw, and Sokehs, under the Pohnpei State Constitution, which took effect in this State on October 8, 1984.

     This election was completed and pursuant to the votes tallied, the Governor declared no winner in the Lieutenant Governor's race.  In accordance with article 6, section 4 of the Constitution, a run-off election was called to be held on January 18, 1985.  Following that, the petitioner filed the motion for a restraining order, seeking an order of this Court to restrain the State from holding the scheduled run-off election for the Lieutenant Governor's seat, until this matter could be fairly and equitably resolved.

     At the January 15 hearing, the petitioner represented to this Court that the petition for reelection had been inadvertently filed with the Court; that it was, in fact, intended to be filed with the Pohnpei State Election Commissioner to seek a run-off election between the two candidates who received the highest votes in the December 21 election.  The petition was thus duly withdrawn.  What remained at bar was therefore the motion to temporarily halt the run-off election of the Lieutenant Governor.

     There was no assertion of jurisdiction.  Therefore, the first issue that the Court is required to address is the question of judicial jurisdiction, inasmuch as the matter is an offspring of an election of a legislative seat.  Counsel were required to furnish the Court with authorities that confirm or controvert the existence of jurisdiction of this Court to entertain the motion.  Counsel have cooperatively done so. Respondent additionally moved for dismissal on grounds of want of jurisdiction and procedural defects.  This is considered in the light of authorities that have been furnished on the question of jurisdiction.

     In weighing arguments of counsel and reviewing the authorities furnished, I am satisfied that the test in determining judicial jurisdiction in this instance, is "election contest."  That is, if the nature of this case is one of election contest, then it lacks jurisdiction; if not, then jurisdiction lies.

     By way of argument, petitioner treats this matter not as an election contest but as a "situation" where the Executive Branch of the government refuses to use the run-off provision of the 1979 General Election Law and Amendment No. 2 of the Ponape District Charter.  Petitioner contends that the situation requires action to correct the manner or mechanism by which an

[3 FSM Intrm. 3]

election contest will be carried out, before that election contest begins, citing Kautenburger v. Jackson, 333 P.2d 293 (Ariz. 1958), as an example where the court took jurisdiction to enjoin a county board of supervisors from using a voting machine unless the names of candidates were rotated.  Other authorities were offered which are considered.  The respondent argues to the contrary, asserting that the matter is an election contest.

     It is necessary to define election contest in analyzing the jurisdiction, if any, that this Court has in this case.  Some definitions, according to 14  Words and Phrases 277 (1952) are:

An `election contest' is not an ordinary `civil suit'; it is a special statutory proceeding which can only be maintained where all requirements specified in election contest statutes are complied with.

`Election contest' is contest in behalf of one who has failed of success in election against right of one who has been declared or determined by proper authority to have been successful.  Id. at 278.

The purpose of an `election contest' is to ascertain how many votes were cast for or against a candidate, or for or against a measure, and thereby ascertain will of people.  Id. at 277.

The Constitutions and statutes of most jurisdictions provide, as part of the machinery of elections, a procedure by which election results may be contested. 26 Am. Jur. 2d Election 318 (1966).

Subject to constitutional limitations, the legislature may prescribe the elections which are subject to contest, and where it has acted, the elections designated are to the exclusion of others.  Id.   319.

An election is not a single event, but a process, and the entire process is subject to contest, including the manner of giving notice of the election, the manner in which the ballots are prepared, and various other things which of necessity precede an election. Id. 321.

The courts have no inherent power to determine election contests.  The determination of an election contest is a judicial function only when, and to the extent that, the determination is authorized by statute. Id. 329.

[3 FSM Intrm. 4]

Election contests are essentially a responsibility of the legislative or political branch of government under the American theory of separation of powers and are generally beyond the control of the judicial power, except to the extent that responsibility therefor has been expressly  given the judiciary by legislation.  Liberal Party of Palau v. Election Commissioner for Palau, 3 TTR 293, 295 (1967); see also Basilius v. Election Commissioner, 5 TTR 290 (1970).

     How do we relate these to the case at bar?  Counsel have ably argued.  In my opinion, it is important to note the relief being sought, to determine how this case relates to the foregoing.  Also important is to note the development of the election, from the result of which this motion is brought.  Here, petitioner has asked for a run-off, the petition being to the Election Commissioner, dated January 10, 1985.  On January 14, petitioner moved this Court to restrain the State from holding an election scheduled for January 18, 1985.  On the same date (January 14, 1985), the Governor declared a winner in the election being sought for a run-off by the petitioner.  The election process, in my view, is now in the hands of the legislative branch to determine whether to seat or not to seat the declared winner.  In my opinion, the declaration by the Executive Branch naming a winner gives that named winner the right to hold office, subject, of course, to the judgment of the Legislative Branch pursuant to the constitutional retention of power of the legislature to judge the qualifications of its members.

     The requirements prescribed by statute providing for election contests have been said to be the conditions precedent to the exercise of the right of contest, and must be complied with.  The right to contest an election cannot be exercised until the election has been completed and unless the statutes provide otherwise, there can be no contest before the canvassing board has declared the contestee elected, and it has been held that until a certificate is issued by the proper officer, there can arise no cause for a contested election.  However it has been held that an express declaration by the board that the candidate receiving the highest number of votes was elected is not necessary.  Where the election laws so contemplate, a recount must terminate and the result be declared before an election contest can commence.  See 29 C.J.S. Elections 250 & nn.6-11 (1965).

     As I see it, respondents' refusal to grant a run-off is their determination to declare a winner and is in fact their declaration of a winner as evidenced in their communication witnessed on January 14, 1985.

     If this Court at this stage shall hold the Lieutenant Governor's run-off election, the obvious thing to do to affect a simultaneous run-off election for the legislative seat for the Municipality of Kitti will be to attempt to null the declaration of the Executive Branch of the winner, and if the Legislative Branch has seated the declared winner, it will also be to attempt to null the legislative determination.  I am of the opinion that this in itself is contesting the election procedures and result, and therefore while

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it initially may not have been so, the matter is now at this stage an election contest. We lack jurisdiction.

     Accordingly, the motion is denied and this matter is hereby dismissed.  The run-off election may proceed as scheduled.

     Cognizant that these addendum remarks are purely dictum, I feel compelled to invite the indulgence of the other branches of this government to take a deeper look at the existing election law in this State.  I offer the following concerns, which, while I sympathize with them as expressed by the petitioner in this matter, I consider them to be beyond our reach to grant relief.  Article VII, section 2 of the Constitution of the Federated States of Micronesia, from which we derived our mandate to establish our own state constitution, provides that our constitution shall be "democratic."  In that spirit, we have established a Constitution which declares as its banner democratic principles and guarantees every citizen a "free and equal" election. Failing that guarantee, as explicitly stated by the framers, any statute is in militation thereof.  Free and equal election, I submit, encompasses an election system where the choice of the majority prevails, because of equality in individual votes.

     We have at hand, as ably demonstrated by the petitioner, a statutory system of recounting of election votes which provides that, "the person  receiving the greatest number of votes shall be deemed to have been elected...." Pon. D.L. 4L-260-79, 10-5.  This provision applies to the  election of members of the Legislative Branch, whose election, such statute seems to deprive of the benefit of a run-off election in the event that no candidate receives a majority of the votes cast.  If it shall happen that in one of our elections, 50 candidates vie for a vacancy and the election result of 103 votes cast shows that the highest vote getter receives 4 votes, the runner-up receives 3, and all the remaining 48 receive 2 votes, will it be contended that all of the 99 votes cast lost to the 4?  One wonders if this is the intent of the Constitution that guarantees an "equal" vote.  See Standing Committee Report No. 61 of the Pohnpei State Constitutional Convention.

     We urge appropriate changes in the statutes.