Nikichiw v Petewon [2007] FMCSC 17; 15 FSM Intrm. 33 (Chk. S. Ct. App. 2007) (28 May 2007)

CHUUK STATE SUPREME COURT APPELLATE DIVISION

Cite as Nikichiw v. Petewon, [2007] FMCSC 17; 15 FSM Intrm. 33 (Chk. S. Ct. App. 2007)

RESWITH NIKICHIW, as Tolensom Municipal Election
Commissioner, and TOLENSOM ELECTION
COMMISSION,
Petitioners,

KISAUO ESA, as Mayor of Tolensom, and LORENSO
FARAWEY, as Assistant Mayor of Tolensom,
Petitioners-Real Parties in Interest,

vs.

JOHN PETEWON, Associate Justice of the Chuuk
State Supreme Court, and the CHUUK STATE
SUPREME COURT TRIAL DIVISION,
Respondents,

AMANTO MARSOLO and MAKKASA KAREN,
STATE OF CHUUK, and CHUUK STATE ELECTION
COMMISSION,
Respondents.

CIVIL APPEAL CASE NO. 02-2006

OPINION AND ORDER GRANTING WRIT OF PROHIBITION

Argued: May 1, 2007
Decided: May 28, 2007

[15 FSM Intrm. 34]

BEFORE:

Hon. Keske Marar, Associate Justice, Presiding
Hon. Benjamin Rodriguez, Temporary Justice*
Hon. Repeat Samuel, Temporary Justice**

*Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei
**Attorney at Law, Weno, Chuuk

APPEARANCES:

For the Petitioners:
Andrea S. Hillyer, Esq.
P.O. Drawer D
Kolonia, Pohnpei FM 96941

For the Respondents:
Johnny Meippen, Esq. (Marsolo and Karen)
P.O. Box 705
Weno, Chuuk FM 96942

* * * *

HEADNOTES

Mandamus and Prohibition
The general requirements for the issuance of an extraordinary writ of prohibition are that a court or an officer is about to exercise judicial or quasi-judicial power, that the exercise of such power is unauthorized or the inferior tribunal is about to act without or in excess of jurisdiction which may or will result in damage or injury for which there is no plain, speedy or adequate legal remedy. Nikichiw v. Petewon, [2007] FMCSC 17; 15 FSM Intrm. 33, 37 (Chk. S. Ct. App. 2007).

Mandamus and Prohibition
A writ of prohibition will usually not be issued such a unless the petitioner has objected in the lower court to that court’s exercise of jurisdiction. Nikichiw v. Petewon, [2007] FMCSC 17; 15 FSM Intrm. 33, 37 (Chk. S. Ct. App. 2007).

Mandamus and Prohibition
A court that has the power to issue writs of prohibition may only do so if the petitioner has met its burden to show that its right to the writ is clear and indisputable. Nikichiw v. Petewon, [2007] FMCSC 17; 15 FSM Intrm. 33, 37 (Chk. S. Ct. App. 2007).

Elections
The current Chuuk election statute only gives the Chuuk State Election Commission the power to conduct municipal elections if so provided by law or municipal constitutions. Nikichiw v. Petewon, [2007] FMCSC 17; 15 FSM Intrm. 33, 38 (Chk. S. Ct. App. 2007).

Elections
Jurisdiction over election contests rests purely on statutory and constitutional provisions. 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. Nikichiw v. Petewon, [2007] FMCSC 17; 15 FSM Intrm. 33, 38 (Chk. S. Ct. App. 2007).

[15 FSM Intrm. 35]

Elections; Mandamus and Prohibition
Since the jurisdiction of courts exercising general equity powers does not include election contests and since courts of equity are without jurisdiction to enforce purely political rights in election cases, a writ of prohibition is proper to prevent a trial court from exercising equity jurisdiction in an election case. Nikichiw v. Petewon, [2007] FMCSC 17; 15 FSM Intrm. 33, 38 (Chk. S. Ct. App. 2007).

Elections
Since relief from judgment, either in an independent action or under a Rule 60(b) motion seeks the exercise of a court’s equitable powers, and since courts of equity have no jurisdiction in election contests, any trial division justices are without jurisdiction to hear a case seeking relief from judgment in an election contest case or to issue any substantive orders in that case other than to dismiss it for want of jurisdiction. Nikichiw v. Petewon, [2007] FMCSC 17; 15 FSM Intrm. 33, 38-39 (Chk. S. Ct. App. 2007).

Mandamus and Prohibition
The extraordinary writ of prohibition is to be issued with great caution, but it is especially important to exercise the writ in those cases where it is necessary to confine a lower court to its proper function. Nikichiw v. Petewon, [2007] FMCSC 17; 15 FSM Intrm. 33, 39 (Chk. S. Ct. App. 2007).

* * * *

COURT’S OPINION

KESKE MARAR, Associate Justice:

The petitioners, Tolensom Election Commissioner Reswith Nikichiw and the Tolensom Election Commission, and the petitioners-real parties in interest, Kisauo Esa and Lorenso Farawey, filed this original action in the appellate division on February 13, 2006. The petition seeks the issuance of an extraordinary writ of prohibition directed to the respondent John Petewon, sitting as a trial division justice, and to any other justice sitting in the Chuuk State Supreme Court trial division. It avers that respondent Justice Petewon had exceeded his jurisdiction in trial division Civil Action No. 250-2005.

At the April 23, 2007 hearing, we realized that, through oversight, we had not issued an order directing an answer to the petition, and did so orally from the bench and in a written order. We deemed the petition to be the petitioner’s opening brief, and respondent-real parties in interest Amanto Marsolo and Makkasa Karen, indicated that they could file their answer promptly, which they did on April 26, 2007. The petitioners filed their reply on April 27, 2007. We heard oral argument from the petitioners and the respondent real parties in interest on May 1, 2007. The nominal respondents, Associate Justice John Petewon, the Chuuk State Supreme Court trial division, the State of Chuuk, and the Chuuk State Election Commission, did not appear or participate.
After carefully considering the filings, the arguments, and the files’ contents, we grant the petition and issue herewith the writ of prohibition directed to Justice Petewon and to any other justice sitting in the Chuuk State Supreme Court trial division. Our reasoning follows.

[15 FSM Intrm. 36]

I.

This action arises out of the September 28, 2004 Tolensom municipal election. On October 1, 2004, Amanto Marsolo and Makkasa Karen, candidates for Tolensom mayor and assistant mayor respectively, filed a complaint for injunctive relief and a declaratory judgment in the Chuuk State Supreme Court trial division. That case was docketed as Civil Action No. 132-2004 and a special trial court justice was appointed to preside over it. On November 6, 2004, the Tolensom Election Commission certified Kisauo Esa and Lorenso Farawey as the winning candidates for Mayor and Assistant Mayor of Tolensom, respectively. Civil Action No. 132-2004 thus became an election contest case.

The same plaintiffs (Marsolo and Karen) filed another case about the same election. That case was docketed as Civil Action No. 146-2004. Those two actions were eventually consolidated and the judge that first handled the second case, Civil Action No. 146-2004, was prohibited from acting further in that case. See Nikichiw v. O’Sonis, [2005] FMCSC 1; 13 FSM Intrm. 132, 135, 139 (Chk. S. Ct. App. 2005). Final judgment was entered in the consolidated cases on March 10, 2005. No party ever filed an appeal from that judgment.[1]

On July 29, 2005, Lieutenant Governor Johnson Elimo, acting as Governor, issued a proclamation overturning the September 28, 2004 Tolensom municipal election and installing Marsolo and Karen in the offices of Mayor and Assistant Mayor and setting a new election for September 24, 2005. In a civil rights action brought in the FSM Supreme Court, the Lt. Governor Johnson Elimo, the State of Chuuk, Amanto Marsolo, Makkasa Karen, and the Chuuk State Election Commission were restrained from certifying the results of the September 24, 2005 Tolensom election or swearing in to office any person whose election was certified or recognizing any persons thus elected as the Tolensom Municipal Government or a part thereof and from permitting them to exercise any Tolensom Municipal Government official powers.[2]

On December 13, 2005, Amanto Marsolo and Makkasa Karen filed a "petition" in the Chuuk State Supreme Court trial division, which was docketed as Civil Action No. 250-2005. This action named Tolensom Election Commissioner Reswith Nikichiw and the Tolensom Election Commission as the respondents or defendants, and was filed as a collateral attack in equity on the judgment(s) in Civil Actions No. 132-2004 and 146-2004. Kisauo Esa and Lorenso Farawey, defendants in Civil Actions No. 132-2004 and 146-2004, were not named as parties and they were not served.

Associate Justice Petewon assigned Civil Action No. 250-2005 to himself. He set a hearing on the petition of Marsolo and Karen for December 28, 2005, which was well before the thirty days permitted for a responsive pleading, Chk. Civ. R. 12(a), had expired (which would have been January 12, 2006). Nikichiw attended the hearing and asked for more time so that he and the Commission could obtain counsel. Justice Petewon reset the hearing for January 2, 2006, on which, since it was a legal holiday, no hearing was held then although Nikichiw was in attendance. The hearing was held the next day, without further notice to, or the attendance of, Nikichiw and the Commission. On January 4, 2006, Justice Petewon ordered the Civil Actions No. 132-2004 and 146-2004 judgment(s) set aside; made his own findings of fact and conclusions of law about the September 28, 2004 Tolensom election; threw out the results from two polling places; declared Amanto Marsolo and Makkasa Karen to be the winning candidates; ordered the Chuuk State Election Commission to issue certificates of election to Marsolo and Karen; and ordered the Chuuk state government executive branch to assist the new Tolensom government.

[15 FSM Intrm. 37]

On January 13, 2006, Nikichiw and the Tolensom Election Commission, acting "pro se," filed an opposition to Marsolo’s and Karen’s petition and moved to set aside Justice Petewon’s January 4, 2006 order and asked for more time in order to file a motion to disqualify Justice Petewon on the ground he had previously been disqualified in Civil Actions No. 132-2004 and 146-2004. On January 16, 2006, Justice Petewon set a hearing on that motion for January 17, 2006. On January 17, 2006, he signed, and, on January 18, 2006, the clerk entered an order denying the motion to set aside the January 4, 2006 order and denying the request for more time. On February 5, 2006, Marsolo and Karen filed a motion to join Kisauo Esa and Lorenso Farawey as parties to Civil Action No. 250-2005, asserting that by inadvertence or mistake, Marsolo and Karen had failed to name Esa and Farawey as parties and that since Esa and Farawey were indispensable parties, the January 4, 2006 order should be stayed until Esa and Farawey were joined and had an opportunity to respond. No action was taken on the motion. This petition for a writ of prohibition then came before us.

II.

The general requirements for the issuance of an extraordinary writ of prohibition are that a court or an officer is about to exercise judicial or quasi-judicial power, that the exercise of such power is unauthorized or the inferior tribunal is about to act without or in excess of jurisdiction which may or will result in damage or injury for which there is no plain, speedy or adequate legal remedy. Nikichiw v. O’Sonis, [2005] FMCSC 1; 13 FSM Intrm. 132, 138 (Chk. S. Ct. App. 2005); Election Comm’r v. Petewon[1994] FMCSC 2; , 6 FSM Intrm. 491, 497, 1 CSR 5, 9 (Chk. S. Ct. App. 1994). We will usually not issue such a writ unless the petitioner has objected in the lower court to that court’s exercise of jurisdiction. O’Sonis, 13 FSM Intrm. at 138; Petewon, 6 FSM Intrm. at 497, 1 CSR at 9. Nikichiw’s January 13, 2006 filing contains just such an objection. We have the power to issue writs of prohibition in the appropriate case. Chk. S.L. No. 190-08, § 4; Chk. R. 21. A court that that has the power to issue writs of prohibition may only do so if the petitioner has met its burden to show that its right to the writ is clear and indisputable. Ting Hong Oceanic Enterprises v. Supreme Court, 8 FSM Intrm. 1, 4 (App. 1997).

III.

The petitioners and real parties in interest contend that 1) Justice Petewon never had jurisdiction to act in Civil Action No. 250-2005 because another justice had jurisdictional priority over the parties and the issues since that other justice had been assigned Civil Actions No. 132-2004 and 146-2004; 2) that no trial court justice had any jurisdiction to consider an independent action in equity for relief; 3) that no trial court had any jurisdiction to hear any of the cases filed by Marsolo and Karen because under Chuuk State Law No. 3-95-26, an election contest should be appealed first to the Chuuk State Election Commission and from there to the Chuuk State Supreme Court appellate division. They ask that the writ issue and that we quash the order entered by Justice Petewon in Civil Action No. 250-2005.

Marsolo and Karen respond that, in their view, Justice Petewon was never properly disqualified from hearing Civil Actions No. 132-2004 and 146-2004 (and thus from 250-2005); the rule of jurisdictional priority did not properly apply because 250-2005 was a post-judgment Rule 60(b) remedy and the special trial justice in 132-2004 and 146-2004 was no longer available; Justice Petewon had the authority to himself because the other justices were absent; that Justice Petewon had the authority to overturn the 132-2004 and 146-2004 judgment(s) under the court’s general equity powers; and that Justice Petewon should have remanded the case to the Chuuk State Election Commission because, under the Chuuk Election Code, the Chuuk State Supreme Court has no jurisdiction over election contests. At oral argument, Marsolo and Karen contended that Civil Action No. 250-2005 was not an election contest but an action to correct a judicial irregularity and urged us to overturn only that part of Justice Petewon’s decision installing them in office and to uphold his decision to overturn the 132-2004 and 146-2004 judgment(s). Marsolo and Karen assert that those cases should then be remanded to the Chuuk State Election Commission.[3]

[15 FSM Intrm. 38]

IV.

The Chuuk Election Code provides that for elections it applies to, election complaints must first be filed with the Chuuk Election Commission and that all appeals from the Election Commission’s decision go directly to the Chuuk State Supreme Court appellate division. Chk. S.L. No. 3-95-26, §§ 126, 130. Both the petitioners and respondents Marsolo and Karen now contend that the Chuuk State Supreme Court trial division could not have had any jurisdiction over any of the Tolensom election contest cases filed thep>

However, the cure current election statute only gives the Chuuk State Election Commission the power to conduct municipal elections, "if so provided by law or municipal constitutions." Aizawa v. Chuuk State Election Comm’r[1998] FMCSC 5; , 8 FSM Intrm. 245, 247 (Chk. S. Ct. Tr. 1998) (quoting Chk. S.L. No. 3-95-26, § 8). There is nothing e us t us to indicate whether the Chuuk State Election Commission has been authorized to conduct Tolensom municipal elections by law or municipal constitution othan the fact that the September 28, 2004 municipal electioection was conducted by the Tolensom Election Commission and not the Chuuk State Election Commission.[4] We therefore cannot say that, on this ground, the petitioners’ right to a writ of prohibition is clear and undisputable.

V.

The right to the writ of prohibition is clear and undisputable on another ground. Civil Action No. 250-2005 was brought as an independent action in equity to seek relief from the Civil Actions No. 132-2004 and 146-2004 judgment(s). No matter how artfully Marsolo and Karen attempt to frame the issue and assert that Civil Action No. 250-2005 was only an attempt to correct a judicial irregularity, Civil Action No. 250-2005 was an election contest - an attempt to either continue or to revive the previous election contest(s) with the ultimate end result to install Marsolo and Karen in office in the place of Esa and Farawey.

We have previously held that jurisdiction over election contests rests purely on statutory and constitutional provisions; that the courts have no inherent power to determine election contests; and that 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[1998] FMCSC 6; , 8 FSM Intrm. 300d, 300g (Chk. S. Ct. App. 1998). "The jurisdiction of courts exercising general equity powers does not include election contests." Id. Courts of equity are thus without jurisdiction to enforce purely political rights in election cases. Petewon, 6 FSM Intrm. at 500, 1 CSR at 12. A writ of prohibition is therefore proper to prevent a trial court from exercising equity jurisdiction in an election case. Id. Since relief from judgment, either in an independent action or under a Rule 60(b) motion seeks the exercise of a court’s equitable powers, Id. at 499, 1 CSR at 11, and since courts of equity have no jurisdiction in election contests, Justice Petewon, and any other justice sitting in the trial division, was without jurisdiction to hear Civil Action No. 250-2005 or to issue any substantive orders in that case other than to dismiss it for want of jurisdiction.

[2007] FMCSC 8; [15 FSM Intrm. 39]

VI.

Our duty is to issue this extraordinary writ with great caution, but we are also mindful that it is "especially important to exercise the writ in those cases where it is necessary to confine a lower court to its proper function." Petewon, 6 FSM Intrm. at 497, 1 CSR at 9. This is such a case. Thus, the writ of prohibition ordering Justice Petewon or any other justice sitting in the trial division to refrain from exercising jurisdiction over Civil Action No. 250-2005 or the subject matter thereof will issue herewith. Justice Petewon’s substantive order of January 4, 2006 was therefore issued without any jurisdiction and is thus void.

* * * *

Footnotes:

---

[1].Nor did any party try to appeal the special trial justice’s December 15, 2004 Statement of the Case; Findings of Fact; Conclusions of Law; and Judgment, which, although it did not comply with Civil Procedure Rule 58 concerning the entry of judgments, could have been considered a final order and thus appealable.

[2].The FSM Supreme Court later ruled the Lt. Governor’s proclamation invalid. Esa v. Elimo, [2006] FMSC 39; 14 FSM Intrm. 262, 265-66 (Chk. 2006).

[3].It is difficult to see what benefit Marsolo and Karen expect to obtain from this since it would leave the Esa and Farawey November 8, 2004 certificates of election in place and the time for the Chuuk State Election Commission to consider an election contest and for a possible further appeal to the appellate division has long since expired. Chk. S.L. No. 3-95-26, §§ 130, 131.

name="fn4" hn4" href="#fnB4">[4].The court is also aware of the argument that Article XII, section 4, of the Chuuk Constituvests the responsibility for the administration, including the conduct and certification ofon of, all elections in the State of Chuuk in the State Election Commission, which would make the provisions in municipal ordinances and constitutions for municipal election commissions unconstitutional under Article XII, section 4. That contention is not before us.