Nameta v Cheipot [2000] FMCSC 4; 9 FSM Intrm. 510 (Chk. S. Ct. Tr. 2000) (21 January 2000)

CHUUK STATE SUPREME COURT
TRIAL DIVISION
Cite case as Nameta v Cheipot, [2000] FMCSC 4; 9 FSM Intrm 510 (Chk. S. Ct. Tr. 2000)

YSAUO NAMETA and IOWANES JOHN, as
candidates for Mayor and Deputy Mayor of Fonoton,
and WAIT ROCHON for Council at large,
Plaintiffs,

vs.

URANO CHEIPOT, in his capacity as Fonoton
Election Commissioner and the COUNCIL of Fonoton
and Mayor of Fonoton,
Defendants.

_________________________________________________

CSSC CA NO. 7-2000

ORDER GRANTING PRELIMINARY INJUNCTION AND DECLARATORY JUDGMENT

Keske S. Marar
Associate Justice

Hearing: January 19, 2000
Decided: January 21, 2000

APPEARANCES:

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

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

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HEADNOTES

Contempt
The test for compliance with court orders is that one have knowledge of the order and if such knowledge exists, it is irrelevant that the person has not been served. Nameta v. Cheipot, [2000] FMCSC 4; 9 FSM Intrm. 510, 511 (Chk. S. Ct. Tr. 2000).

Civil Procedure - Service
The failure of any person to perform service of process when that duty is imposed by the court or by law is subject to severe sanctions. Nameta v. Cheipot, [2000] FMCSC 4; 9 FSM Intrm. 510, 511 (Chk. S. Ct. Tr. 2000).

Elections
While conditions may be imposed on candidates, the candidate must be afforded a reasonable opportunity to satisfy the conditions, and the extraction of fees which are arbitrary, or have no relation to the expense of the election will be denied. Nameta v. Cheipot, [2000] FMCSC 4; 9 FSM Intrm. 510, 512 (Chk. S. Ct. Tr. 2000).

Elections
The purpose of election filing fees is to defray the costs of the procedures leading to the election. There must be a reasonable relation to the amount of the fee and the costs incurred. Unreasonable fees not only deny the candidate his right to be a candidate, but also deny the right of every person to select him for office. When the fee requirements go beyond the bounds of reasonable regulation, it operates as a substantial impairment of the right of the electorate to freely choose the candidate of their choice. Nameta v. Cheipot, [2000] FMCSC 4; 9 FSM Intrm. 510, 512 (Chk. S. Ct. Tr. 2000).

Constitutional Law - Chuuk; Elections
The Chuuk Constitution provides that no person, otherwise qualified to vote, may be denied the privilege to vote. The unreasonableness of candidate qualifying fees is an effective denial of the privilege to vote. Nameta v. Cheipot, [2000] FMCSC 4; 9 FSM Intrm. 510, 512 (Chk. S. Ct. Tr. 2000).

Elections; Statutes - Construction
When an ordinance has a savings clause and its provision for election filing fees is found unconstitutional, the filing fee provision of the previous ordinance it superseded will be reinstated. Nameta v. Cheipot, [2000] FMCSC 4; 9 FSM Intrm. 510, 512 (Chk. S. Ct. Tr. 2000).

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COURT'S OPINION

KESKE S. MARAR, Associate Justice:

This case comes before the Court after notice and hearing on Plaintiffs' Application for Preliminary Injunction and Declaratory Judgment. The Plaintiffs appeared in their own proper person and by Counsel, Wesley Simina. No Defendant appeared in person or by Counsel.

It is represented to the Court that certain policemen of Chuuk State Department of Public Safety refused to serve the Temporary Restraining Order and the notice of this hearing. Also it was represented to the Court that at least two of the Defendants refused to accept these Court Orders and Notices when an attempt to serve them was made. Such acts, if true, exhibit dismal and outrageous conduct on the part of any appointed or elected public official.

The Court feels compelled to point out that the test for compliance with Court Orders is that one have knowledge of the Order and if such knowledge exists, it is irrelevant that the person has not been served. Also, the failure of any person to perform service of process when that duty is imposed by the Court or by law is subject to severe sanctions.

Previously, this Court issued a Temporary Restraining Order wherein it was stated that there appears to be but a single issue as relates to all matters raised in the pleadings. Evidence adduced at the hearing affirmed this observation.

The Plaintiffs seek to file nomination petitions in order to become candidates for various elected offices of Fonoton Municipality. Previous to the enactment of Fonoton Ordinance 7-99, the fees required for filing such petitions were $50 for Mayor and $30 for Council at Large and $20.00 for Village Councilmen. Section 10 of Ordinance 7-99 provides for the following fees:

a. Mayorship and Assistant Mayorship......$500.00

b. Councilmen at Large...........................$300.00

c. Councilmen.......................................$250.00

The Plaintiffs contend that these increased fees effectively deny them the right to become candidates for the offices they seek. The Court finds merit in Plaintiffs' contention.

In 29 C.J.S. Elections § 114 (1965), it is said that while conditions may be imposed on candidates, the "candidate must be afforded a reasonable opportunity to satisfy the conditions" and that the extraction of "fees which are arbitrary, or have nation to the expense of thef the election" will be denied.

There is clearly a substantial issue as to the reasonableness of the fees provided for by Ordinance 7-99. The purpose of all such fees is to defray the costs of the procedures leading to the election. There must be a reasonable relation to the amount of the fee and the costs incurred. See 25 Am. Jur. 2d Elections § 182 (1966>

There isre is ample authority that unreasonable fees not only deny the candidate his substantial rights, but also if voters wanted certain men as candidates who were unwilling or unable to pay an unreasonable fee, the voters would have to pay the fee themselves which would place a clear unconstitutional burden on the right to vote. 25 Am. Jur. 2d Elections § 1t 879 n.20 (1966).

It is also said that an unreasonable fee required for filing nomination papers involves not merely the right of an individual to be a candidate, but also denies the right of every person to select him for office. Where the fee requirements go beyond the bounds of reasonable regulation, it operates as a substantial impairment of the right of the electorate to freely choose the candidate of their choice. See 25 Am. Jur. 2d Elections § 182, at 879 n.9 (196p>

The Court finds clear and ample authority in the foregoing to reach its conclusion herein. Moreover, the Chuuk State Constitution, Article XII, § 3 provides that no personerotherwise qualified to vote, "may be denied the privilege to vote." The unreasonableness of the qualifying fees provided by Section 10 of Ordinance 7-99 is anctive denial of the privilege to vote.

The Cour Court finds that Section 10 of Fonoton Ordinance 7-99 is unconstitutional on its face and as applied to the Plaintiffs and the voters of Fonoton Municipality and for this reason, Section 10 is void and a nullity.

Ordinance 7-99 contains a savings clause and specifically supersedes the previous ordinance relative to candidate fees, that being Fonoton Municipal Ordinance 5-96. The previous ordinance establishes the following fees:

Mayor------------------------$50.00

Councilmen at large------$30.00

Village Councilmen-------$20.00

The Court finds that the foregoing fees provided for in Fonoton Municipal Ordinance 5-96 are reasonable and have a relation to the costs leading to the election. The conclusion reached herein reinstates these fees for elections in Fonoton until changes are lawfully and constitutionally enacted.

The uncontroverted evidence now before the Court indicates that the incumbent Fonoton Municipal Officials have little regard for the rule of law and have shown no indication that a Municipal election will be held in Fonoton in accordance with the rule of law.

In view of the foregoing state of affairs, the Court sees no choice but to appoint the Chuuk State Election Commissioner to conduct an election for the Municipal Officers of Fonoton, that such election be held at the time and in the manner consistent with the valid ordinances of Fonoton and the Orders of this Court. The Chuuk State Election Commissioner is allowed wide discretion in this regard.

Based on the foregoing analysis,

It is ordered, adjudged and decreed that Section 10 of Fonoton Municipal Ordinance 7-99 is unconstitutional and void and that the provisions which establish fees for candidates for public office provided for in Fonoton Municipal Ordinance 5-96 remain in full force and effect.

Further ordered that the Chuuk State Election Commissioner shall undertake the conduct of an election for Municipal Officials of Fonoton and the time and in the manner that his discretion dictates and in accordance with the provision herein.

Further ordered that the Defendants, separately and severally, their agents, successors, employees, attorneys and all persons acting in concert or cooperation with Defendants or any one of them, are enjoined and restrained from enforcing or implementing Sections 10 and 11 of Fonoton Municipal Ordinance 7-99.

Further ordered that a copy of the Plaintiffs' verified complaint, Motion for Temporary Restraining Order, Application for Permanent Injunction and a copy of this order be served on each Defendant in this case and the Chuuk State Election Commissioner. That such service shall be performed by the Director of the Department of Public Safety or his duly authorized representative.

Further ordered that this Court shall retain Jurisdiction over this case for the purpose of entering such other or further orders as may become necessary.