Election Commissioner v Petewon [1994] FMCSC 2; 6 FSM Intrm. 491 (Chk. S. Ct. App. 1994) (6 September 1994)

CHUUK STATE SUPREME COURT
APPELLATE DIVISION

ORIGINAL ACTION 3-94

ELECTION COMMISSIONER,
Petitioner,

vs.

HONORABLE JOHN PETEWON, ASSOCIATE
JUSTICE OF THE TRIAL DIVISION,
Respondent.

SHIANO PIUS,
Real Party in Interest.
__________________________________________

OPINION

Petition for Writ filed: August 3, 1994
Argued: August 15, 1994
Writ Issued: August 17, 1994
Opinion Entered: September 6, 1994

BEFORE:

Hon. Soukichi Fritz, Chief Justice, Chuuk State Supreme Court
Hon. Richard H. Benson, Temporary Justice, Chuuk State Supreme Court*
Hon. Ready Johnny, Temporary Justice, Chuuk State Supreme Court**

*Associate Justice, FSM Supreme Court
**FSM Public Defender, State of Chuuk

APPEARANCES:

For the Petitioner: Manny Otoko
P.O. Box EX
Weno, Chuuk FM 96942

For the Real Party in Interest: Sabino Asor
P.O. Box EX
Weno, Chuuk FM 96942

* * * *

HEADNOTES

Mandamus and Prohibition
Chuuk State Supreme Court has the power to issue all writs for equitable and legal relief including writs of mandamus and prohibition. Election Commissioner v. Petewon, [1994] FMCSC 2; 6 FSM Intrm. 491, 496 (Chk. S. Ct. App. 1994).

Mandamus and Prohibition
The single issue presented by a writ of prohibition is whether or not an inferior court or tribunal is without jurisdiction or is about to act in excess of it jurisdiction. Election Commissioner v. Petewon, [1994] FMCSC 2; 6 FSM Intrm. 491, 496 (Chk. S. Ct. App. 1994).

Mandamus and Prohibition
The general requirements for the issuance of a writ of prohibition are that a court or officer is about to exercise judicial or quasi-judicial power, that the exercise of such power is unauthorized and will result in damage or injury for which there is no plain, speedy or adequate legal remedy. Generally, the writ will not be issued unless the petitioner has objected in the inferior court to that court's exercise of jurisdiction in order to allow the lower court the opportunity to rule properly on the question of its own jurisdiction. Election Commissioner v. Petewon, [1994] FMCSC 2; 6 FSM Intrm. 491, 497 (Chk. S. Ct. App. 1994).

Mandamus and Prohibition
The extraordinary writ of prohibition is proper to prevent an inferior tribunal acting without or in excess of jurisdiction which may result in wrong, damage, and injustice and there is no plain, speedy and adequate remedy otherwise available. Election Commissioner v. Petewon, [1994] FMCSC 2; 6 FSM Intrm. 491, 497 (Chk. S. Ct. App. 1994).

Mandamus and Prohibition
The principal and fundamental purpose of the writ of prohibition is to prevent an encroachment, excess, usurpation or assumption of jurisdiction on the part of an inferior court or tribunal. The issuance of the writ is discretionary and used with great caution for the furtherance of justice and to secure order and regularity in judicial proceedings. Election Commissioner v. Petewon, [1994] FMCSC 2; 6 FSM Intrm. 491, 497 (Chk. S. Ct. App. 1994).

Courts; Jurisdiction
The Chuuk State Supreme Court is a unified court system with two constitutionally mandated divisions - the trial division and the appellate division. All justices are members of both divisions, but a justice does not serve in the appellate division until he has been designated by the Chief Justice to be the presiding justice on a specific case. The trial division is the state's court of general jurisdiction. Election Commissioner v. Petewon, [1994] FMCSC 2; 6 FSM Intrm. 491, 497 (Chk. S. Ct. App. 1994).

Courts; Jurisdiction
All justices in the trial division have concurrent jurisdiction, but once a case has been assigned to a particular justice, that justice has exclusive jurisdiction over the parties and issues of the case until the case is terminated in the trial division. Election Commissioner v. Petewon, [1994] FMCSC 2; 6 FSM Intrm. 491, 498 (Chk. S. Ct. App. 1994).

Mandamus and Prohibition
It is proper to issue a writ of prohibition to restrain a co-equal court or justice from proceeding in a matter that was already pending before another court or justice. Election Commissioner v. Petewon, [1994] FMCSC 2; 6 FSM Intrm. 491, 498 (Chk. S. Ct. App. 1994).

Appeal and Certiorari; Jurisdiction
A properly filed notice of appeal transfers jurisdiction from the trial court to the appellate court. Election Commissioner v. Petewon, [1994] FMCSC 2; 6 FSM Intrm. 491, 498 (Chk. S. Ct. App. 1994).

Mandamus and Prohibition
Where a properly filed notice of appeal has transferred jurisdiction to the appellate court and the trial court is about to conduct either a hearing on a preliminary injunction or a trial on the merits of the case which is the same as those on appeal, it is proper for an appellate court to issue a writ of prohibition to prevent further action by the lower court. Election Commissioner v. Petewon, [1994] FMCSC 2; 6 FSM Intrm. 491, 498 (Chk. S. Ct. App. 1994).

Equity; Judgments - Relief from Judgment
Trial courts have jurisdiction to set aside judgments either by a Rule 60 relief from judgment motion or by an independent action in equity. Election Commissioner v. Petewon, [1994] FMCSC 2; 6 FSM Intrm. 491, 499 (Chk. S. Ct. App. 1994).

Equity; Judgments - Relief from Judgment
There are five essential elements to an independent action in equity to set aside a judgment. They are 1) a judgment which ought not, in equity and good conscience, to be enforced; 2) a good defense to the alleged cause of action on which the judgment is founded; 3) fraud, accident or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; 4) the absence of fault or negligence on the part of the defendant; and 5) the absence of any adequate remedy at law. If any one of these elements is missing the court cannot take equitable jurisdiction of the case. Election Commissioner v. Petewon, [1994] FMCSC 2; 6 FSM Intrm. 491, 499 (Chk. S. Ct. App. 1994).

Equity; Judgments - Relief from Judgment
Where there are one or more legal remedies still available to a litigant the trial court has no jurisdiction to grant relief from a judgment through an independent action in equity. Election Commissioner v. Petewon, [1994] FMCSC 2; 6 FSM Intrm. 491, 499 (Chk. S. Ct. App. 1994).

Elections; Equity
Courts of equity are without jurisdiction to enforce purely political rights. Matters concerning the conduct of elections are usually left to the political branches and the courts generally have no jurisdiction until after the elections are held. Election Commissioner v. Petewon, [1994] FMCSC 2; 6 FSM Intrm. 491, 500 (Chk. S. Ct. App. 1994).

Elections; Equity; Mandamus and Prohibition
A writ of prohibition is proper to prevent a trial court from exercising equity jurisdiction in an election case. Election Commissioner v. Petewon, [1994] FMCSC 2; 6 FSM Intrm. 491, 500 (Chk. S. Ct. App. 1994).

Mandamus and Prohibition
Where an inferior court has acted in excess of its jurisdiction a writ of prohibition is proper to confine it to its proper role. Election Commissioner v. Petewon, [1994] FMCSC 2; 6 FSM Intrm. 491, 500 (Chk. S. Ct. App. 1994).

Mandamus and Prohibition
When a court has concluded that the inferior court has acted or is about to act in excess of its jurisdiction the next requirement for the writ of prohibition to issue is that a harm or injury will result from the inferior court's action. Election Commissioner v. Petewon, [1994] FMCSC 2; 6 FSM Intrm. 491, 500 (Chk. S. Ct. App. 1994).

Mandamus and Prohibition
Where the Election Commissioner is in the untenable position of being subject to the inconsistent orders of two trial division courts because either order he chooses to obey will cause him to be in violation of the other order and where one trial court's assumption of jurisdiction also interferes with the order and regularity of the judicial proceedings because the same issues affecting the same parties cannot be decided at the same time by a trial division court and the appellate division, it is proper for a writ of prohibition to issue. Election Commissioner v. Petewon, [1994] FMCSC 2; 6 FSM Intrm. 491, 500 (Chk. S. Ct. App. 1994).

Mandamus and Prohibition
When the Election Commissioner is caught between the two competing and inconsistent orders of courts of the same rank, and has pursued the only legal remedy available to him by objecting to the second court's jurisdiction, it is proper for a writ of prohibition to issue to confine the second court to its proper role because the Commissioner has no other plain, speedy or adequate legal remedy. Election Commissioner v. Petewon, [1994] FMCSC 2; 6 FSM Intrm. 491, 501 (Chk. S. Ct. App. 1994).

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COURT'S OPINION

SOUKICHI FRITZ, Chief Justice:

This is an original action filed on August 3, 1994 in the Appellate Division by the petitioner, Chuuk State Election Commissioner [herein Commissioner] seeking the issuance of an extraordinary Writ of Prohibition directed to the Respondent sitting as a Trial Division Justice. The petition alleged that the Respondent had exceeded or was about to exceed his jurisdiction in Trial Division Civil Action No. 166-94, Pius v. Commissioner. This Court issued an Order to Show Cause directed to the Respondent on August 10, 1994. On that same day this panel was appointed. A hearing was held on August 15, 1994. The court heard argument from the Commissioner and Shiano Pius [herein referred to as Mayor] the plaintiff in CA No. 166-94. On August 17th we issued an order granting the writ.

We now set forth our reasons for granting the writ.

I. PROCEEDING IN THE TRIAL DIVISION THAT LED TO THE WRIT

To properly understand the reasons that we granted the writ prohibiting the Respondent from exercising any further jurisdiction in Pius v. Commissioner [referred to herein as 166-94], it is necessary to review not only that action but also other proceedings that are directly related to 166-94.

On July 7, 1994, the Mayor filed a complaint for declaratory judgment, entitled Shiano Pius, Mayor of Wonei v. Election Commissioner, Trial Division Civil Action No. 158-94. This complaint alleged voter registration irregularities by the Commissioner in preparation for the July 18, 1994 Wonei Municipal Election. The complaint also claimed that the Commissioner was related to a candidate running against the Mayor and had shown favoritism to that candidate. The complaint sought enforcement of Wonei Municipal Ordinance 03-94 which concerns the conduct of Wonei Municipal elections. The Mayor also sought an injunction preventing the Commissioner from conducting and supervising the election.

Civil Action No. 158-94 was consolidated for trial with two other cases (Civil Action Nos. 155-94 and 159-94) under the name of In re Wonei Municipal Election Cases. All three cases concerned the Wonei Municipal election and the validity of the municipal ordinance. The consolidated cases were assigned to Associate Justice O'Sonis. Justice O'Sonis issued several pre-trial orders including one that temporarily delayed the election.

The cases were tried and on Monday July 25, 1994, Justice O'Sonis issued his opinion and judgment which invalidated the municipal ordinance and directed the election be held on August 1 under the supervision of the Commissioner in accordance with Chuuk State Law 27-1-6. None of the parties to the consolidated cases filed any of the available post-judgment motions.^[1]

On Friday, July 29, 1994, near the close of business counsel for the Mayor and counsel for the Wonei Municipality, filed a Joint Notice of Appeal from case CA No. 158-94 and a motion for a stay of the judgment in the Appellate Division. This stay was presented to Justice O'Sonis. On July 30, 1994, he denied the stay because it was filed in and addressed to the appellate division, and he was without jurisdiction to enter a stay as a Trial Division Justice.

On Sunday, July 31, 1994, the Mayor's counsel filed his motion for a stay in the Trial Division. By 4:30 P.M. Justice O'Sonis had not ruled upon the motion. At this point the Mayor filed his complaint in CA No. 166-94. This Complaint alleged that the allegation contained in CA No. 158-94 had never been heard. A petition for a Temporary Restraining Order to enjoin the next day's election accompanied the complaint. The Mayor asked the lower court for an order temporarily "restraining the defendant [Commissioner] supervising or conducting the Wonei Municipal and . . . restraining theectbjlectilection from occurring [the next day] . . . ." Thplaint also asked for for "an expedited hearing of CA No. 158-94."

The Respondent, acting as a Trial Division Justice in CA No. 166-94^[> issued a Temporary Restraining ning OrderOrder (TRO (TRO) on July 31, 1994 at 9:37 P.M. The TRO restrained the State Election Commissioner from holding the Wonei election on August 1 as ordered by the original Trial Division judgment in the consolidated cases.

The following day the Respondent gave the parties the opportunity to file briefs on the question of his jurisdiction to issue the TRO. The Commissioner filed his brief objecting to the Respondent's jurisdiction on three grounds. The Commissioner asserted that the bond was inadequate and in a form unrecognized by the rules.[3] The Commissioner's second contention was that the Respondent had no jurisdiction to overrule the order of another trial division justice. The last objection asserted was that no justice of the trial division had jurisdiction to interfere with the issues presented in CA No. 158-94 as the appellate division was vested with jurisdiction upon the filing of the notice of appeal.

The Mayor filed his brief in support of the Respondent's jurisdiction contending that the Respondent had jurisdiction in equity to set aside the judgment entered in the consolidated cases.

The Commissioner filed his petition for the writ on August 3. On August 10, the Respondent entered another order extending the TRO and agreeing with the Mayor that he had jurisdiction in equity to relieve the Mayor of the Judgment entered by Justice O'Sonis. This Court issued its Order to Show Cause why the writ should not be granted on August 10, and set the hearing on the petition for August 15.

II. JURISDICTION OF APPELLATE DIVISION

This is a case of first impression. We must initially set forth the basis of our jurisdiction for granting the relief requested by the Commissioner.

Chuuk State Law 190-08, § 4 [The Jary Act] gives all all State Courts the "power to issue all writs for equitable and legal relief. . . ."^[4] More specifically Rule 21 of the CSSC Rules of Appellate Pate Procedure authorizes and sets forth thcedur "Wri Mandamus and Prohibition Directed to a Justice." We hold the Appellatellate Divi Division sion has the authority to issue a Writ of Prohibition directed to an inferior court. In this case the inferior court is an Associate Justice acting in the Trial Division.

III. ISSUES

The single issue presented by a writ of prohibition is whether or not an inferior court or tribunal is without jurisdiction or is about to act in excess of it jurisdiction. We are required by the petition to decide three aspects of jurisdiction:

(1) Whether the Respondent has jurisdiction to overrule another trial division justice's orders by entertaining a case (166-94) that concerns the same parties and issues that are pending in another case (158-94) before a collateral and co-equal court; or

(2) Whether the Respondent has jurisdiction in CA No. 166-94 when the same parties and issues are before the appellate division as a result of the appeal of No. 158-94 (docketed as Civil Appeal No. 9-94 and assigned to Associate Justice Marar); or

(3) Whether the Respondent has jurisdiction in equity to set aside a judgment that concerns the enforcement of political rights.

This Court reviews questions of jurisdiction de novo.

IV.

A. Requirements for Issuance of the Writ

The general requirements for the issuance of the writ are: that a court or officer is about to exercise judicial or quasi-judicial power, that the exercise of such power is unauthorized and will result in damage or injury for which there is no plain, speedy or adequate legal remedy. 63A Am. Jur. 2d Prohibition § 6, at 142 (1984). Generally, the writ will not be issued unless the petitioner has objected in the inferior court to that court's exercise of jurisdiction. This requirement is to allow the loourt the opportunity to rule properly on the question of itof its own jurisdiction. Id. § 78, at 205. Thus "[t]he exdraordinary writ of prohibition is proper to prevent an inferior tribunal acting without or in excess of jurisdiction which may t in wrong, damage, and injustice and there is no plain, speedy and adequate remedy otherwiherwise available." Rothweiler v. Superior Court of Pima County, 410 P.2d 479, 481 (Ariz. 1966); cf. In re Main[1990] FMSC 14; , 4 FSM Intrm. 255, 258 (App. 1990).

B. Purpose of the Writ of Prohibition

The principal and fundamental purpose of the writ of prohibition is to "prevent an encroachment, excess, usurpation or assumption of jurisdiction on the part of an inferior court or tribunal." 63A Am. Jur. 2d Prohibition § 4, at 140 [ftes omitted]. Td]. The issuance of the writ is discretionary and is generally used with great caution "for the furtherance of justice and to secure order and regularity in judicial proceedings>Id. § 8. Alt. Althoughwrit rarelyarely should be used, it is especially important to exercise the writ in those cases where it is necessary to confine a lower court to its proper function. Id.

V. ANALYSIS

A. Principles of Jurisdiction

As a unified court system, the Chuuk State Supreme Court has two constitutionally mandated divisions. A trial division and an appellate division. Chk. Const. art. VII, § 2. All justices are members of both divisions. Id. A justice does not serve in the appellate division until he is designated to be the presiding jusof a specific case by the Chief Justice. Chk. S. L. 190-08, § 36(3). The Constitustitution defines the jurisdiction of each division.

1. Trial Courts

The trial division has concurrent original jurisdiction with other courts to ll "civil, criminal, probate, juvenile, traffic, and land cand cases, disputes over waters in the State of Chuuk, cases involving state laws and cases in which the State Government is a party." Chk. Const. art. VII, § 3The trial division has jurs jurisdiction to review the action of any state administrative agency, board or commission as may be provided by law. Id. ټ3(c).^[5] The tThe trial division is this state's court of general jurisdiction.

The Commissioner has asserted in essence that all justices acting in the trial division of this court have the same or concurrent jurisdiction. In other words, any case over which the trial division has jurisdiction may be heard by any of the justices as assigned by the Chief Justice. Once a case has been assigned to a particular justice, that justice has jurisdictional priority over the parties and issues of the case to the exclusion of all other justices in the trial division. This exclusive jurisdiction continues until the case is terminated in the trial division. While the case is pending, the priority extends to any other case involving the same parties and issues, even if filed later before a court that could also take jurisdiction.^[6] Scott v. Industrial Accident Comm'n, 293 P.2d 18, 21 (Cal. 1956) (en banc); see also Pacific Live Stock Co. v. Lewis, [1916] USSC 175; 241 U.S. 440, 447[1916] USSC 175; , 36 S. Ct. 637, 60 L. Ed. 1084, 1096 (1916). The Scott court held a writ of prohibition would be proper to restrain a co-equal court from proceeding while the matter was pending.

While this is an accurate statement of the general rule the consolidated cases at issue here had come to a conclusion. The original trial court had issued its opinion and judgment and the Mayor had filed his notice of appeal. Thus, the general rule is inapplicable because the matter was no longer pending before the original trial court as discussed in the next issue.

The writ is not available on this basis.

2. Appellate Division

The constitution gives the appellate division the "jurisdiction to review all decisions of the trial division, of inferior courts, and of municipal courts." Chk. Const. art. VII, § 4. The appe division also hlso has the power to issue writs.

A properly filed notice of appeal transfers jurisdiction from the trial court to the appellate court. Ruby v. Secretary of United States Navy, [1966] USCA9 244; 365 F.2d 385, 388 (9th Cir. 1966). Thus, the trial division loses jurisdiction. If a trial court continues to exercise jurisdiction after a proper notice of appeal has been filed, a writ of prohibition is proper. Id. at 389.

It is also proper for a appellate court to issue a writ of prohibition to prevent an inferior court or tribunal from interfering with its jurisdiction. 63A Am. Jur. 2d Prohibition § 3, at 140. The Mayor'ser foer for relief in 166-94 asked specifically for an expedited hearing on the merits of his claims in CA No. 158-94. Once the notice of appeal was filed, the claims set forth in CA No. 158-9 within the jurisdiction ofon of the appellate division.

Since the Respondent has rejected the Commissioner's challenge to his jurisdiction in CA No. 166-94, the only action that can occur is either a hearing on a preliminary injunction or a trial on the merits of the case which are the same as those now on appeal.^[7] Either of these actions constitutes a clear interference with the appellate division's jurisdiction to resolve the claims now before it in Civil Appeal No. 9-94 (CA No. 158-94). Such an interference disrupts the orderly function of the judicial system. Therefore, the writ should issue on this basis to prohibit the lower court from any further action.

The Commissioner objected to the Respondent's jurisdiction on this same basis. Despite this objection, the Respondent's August 10th opinion and order found he had jurisdiction in equity.

3. Equity Jurisdiction

The trial division courts have jurisdiction in equity to set aside judgments. See Chk. Civ. R. 60(b). There are two methods of seeking to set aside a judgment. One is by filing a Rule 60(b) motion asking the original trial court to grant relief from a judgment on the grounds and within the time limits set forth in the rule. See Chk. Civ. R. 60(b). The granting of relief by the original court is an exercise of that court's supervisory power over its own judgment. Bankers Mortgage Co. v. United States, [1970] USCA5 221; 423 F.2d 73, 78 (5th Cir.), cert. denied, 399 U.S. 927 (1970).

The other method is to bring an independent action which is instituted by filing a new complaint seeking to have the judgment set aside. The jurisdiction for an independent action is based on a trial court's independent and substantive equitable jurisdiction. Id. at 78-79 [quoting 7 James W. Moore et al., Moore's Federal Practice 60.36 (1948)].[8]

In general, the jurisdiction of a court to entertain an independent action in equity to set aside a judgment has five essential elements:

(1) a judgment which ought not, in equity and good conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of the defendant; and (5) the absence of any adequate remedy at law.

Bankers Mortgage, 423 F.2d at 79 [quoting National Surety Co. v. State Bank, 120 F. 593, 599 (8th Cir. 1903)]. If any one of these elements is missing, the court can not take equitable jurisdiction of the case.

Looking only to element (5), it is clearly apparent that the Mayor had at the time and still has a number of legal remedies available. The post-trial procedures under the rules of civil procedure form one group of legal remedies available. See note 1, supra. Another legal remedy is the right of appeal to the appellate division. The Mayor chose the latter legal remedy. But the Mayor argues that without a stay, the remedy he chose is not adequate.^[9]

Even if we agreed with this position and found that the general jurisdictional elements for an equitable action existed, there are certain kinds of claims that are not within a court's equitable jurisdiction. "[C]ourts of equity are without jurisdiction to enforce or protect purely political rights." State ex rel. Robinett v. Jarrett, 196 P.2d 849, 850 (Okla. 1948) [writ of prohibition issued to Judge Jarrett restraining his assumption of equity jurisdiction in an election case]. A writ of prohibition is proper to prevent a trial court from exercising equity jurisdiction to enforce a purely political right. Id. Voter registration, the right to be a candidate or to run for and hold elective office are political rights. See Blackman v. Stone, 17 F. Supp. 102, 109 (S.D. Ill. 1936).

Further the Mayor's allegations in 166-94 and 158-94 all relate to how the Commissioner has conducted the municipal elections up to this point. Matters concerning how elections are conducted are usually left to the political branches. Kony v. Mori, 6 FSM Intrm. 28, 29 (Chk. 1993). Additionally, the courts generally have no jurisdiction until after and election is held. Id. The Mayor has many legal remedies available under the Chuuk State Election Code that address the issues raised. Chk. S. L. 27-1-6.^1[0]

There is no doubt that the Respondent had no jurisdiction in equity to entertain the action filed in 166-94 as the action concerned political rights and the Mayor has a wide range of legal remedies available to him. Thus, the Respondent has acted in excess of his jurisdiction and a writ of prohibition is proper to confine an inferior court to its proper role. Rothweiler v. Superior Court of Pima County, 410 P.2d 479, 481 (Ariz. 1966).

B. Harm or Injury

We have concluded that the Respondent has acted or is about to act in excess of his jurisdiction. The next requirement of the writ is that a harm or injury result from the action.

The Respondent's actions by taking jurisdiction of 166-94 have put the Election Commissioner in a untenable position. The Commissioner is now subject to the inconsistent orders of two courts. Either order he chooses to obey will cause him to be in violation of the other order. The Commissioner is also prevented from fulfilling his statutory duties of conducting the election. Without elections the legal validity of the continued operation of the Wonei Municipal government is in question.

A further consequence of the Respondent's assumption of jurisdiction is to interfere with the order and regularity of the judicial proceedings. The same issues affecting the same parties cannot be decided at the same time by a trial division court and the appellate division with any expectation of order and regularity.

We believe that this situation is sufficient to meet the requirement that a harm or injury will occur unless the writ is issued.

C. Availability of Adequate Legal Remedies

The Commissioner is caught between the two competing and inconsistent orders of courts of the same rank. This impasse cannot be plainly or speedily cured by any of the legal remedies available to him at this point. He has already pursued the only legal remedy available when he presented his objections to the Respondent's jurisdiction.^1[1]

We find that the Commissioner has no other plain, speedy or adequate legal remedy and that prohibition is proper.

VI. CONCLUSION

Any further action by the Respondent sitting as a trial division court in CA No. 166-94 would interfere with the appellate division's jurisdiction in the appeal of CA No. 158-94 (Civ. App. 9-94) and a writ of prohibition is proper to prevent that interference. Additionally, the issuance of the writ of prohibition is also justified as the Respondent lacks equity jurisdiction to entertain an independent action seeking to enforce political rights.

Sufficient harm or injury to the Commissioner and to the orderly function of the judicial process exists to justify the issuance of the writ. The Commissioner has no other plain, speedy or adequate legal remedy.

Accordingly, we ordered the writ to issue.

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^[1] The Chuuk Civil Rules 52, 59 and 60 provide for several post trial motions addressed to the court that has issued the judgment such as: motion to alter or amend the findings, Rules 52(b) and 59(a); motion to make additional findings, Rules 52(b) and 59(a); motion to alter or amend the judgment, Rule 59(e); motion for a new trial, Rule 59(a); and motion for relief from judgment, Rule 60(b).

^[2] It is the normal practice in the Trial Division of this Court that all newly filed cases are assigned to individual trial division justices by the Chief Justice. The Respondent was not assigned this case by the Chief Justice, but rather took it upon himself to assume jurisdiction of the action and issue his orders.

^[3] The bond filed in 166-94 was entitled a "promissory bond" signed only by the attorney. Our rules of civil procedure require a surety bond signed by the party or parties. Chk. Civ. R. 65(c), 65.1.

^[4] Writs of Attachment, Execution or Garnishment against the State are prohibited, but are not in issue here. Compare 28 U.S.C. § 1651 (U.S. Federal Court'sWAll Writs Statute).

^[5] Chuuk State Law 190-08, § 17 [the Judiciary provfor gfor general statutory review of administrative agencies. Other statutes provide fide for review that is specific to particureas of the law. See, e.g., Chk. S.L. 27-1-6 [State Election Law]; 67 TTC 115 [reviereview of Land Commission determinations].

^[6] One reason for this rule "is to avoid unseemly conflicts between courts that might arise if they were free to make contradictory decisions . . . at the same ti relrting ting to the same controversy." "Another reason is to protect litigants from the expense and harassment of multiple litigation." Scott v. Industrial Act Com293 P.2d 18, 21 (Cal. 1956).

^[7] The Respondent on August 10th extended the TRO entered on July 31. A TRO may only be extended once and the extension is limited to a maximum of 14 days. Chk. Civ. R. 65(b).

^[8] The trial division's equitable jurisdiction includes the authority to issue TRO's, injunction and other forms of relief that generally require a showing of irreparable harm and the absence of a legal remedy.

^[9] But the Mayor did in fact have the opportunity to seek a stay.

^1[0] Section 58 of the code provides that objections may be made to the election board for voter irregularities. Section 69 also provides for the right to file a petition for a recount based upon fraud in the vote or other irregularities in the vote. Any decision by the election commission may be reviewed by the trial division of this court as provided by section 71. As additional protection each candidate is entitled to have poll watcher present at all polling places [§ 46] anhave their representasentatives present during the counting of the ballots [§ 60].

[1]1 The issuance of the Order to Show Cause to the Respondent was delayed until the Respondent had time to rule on his jurisdiction in 166-94.