Bisaram v Suta [2007] FMCSC 20; Civil Action 88-2007 (31 July 2007)

CHUUK STATE SUPREME COURT TRIAL DIVISION

CSSC CA No. 88-2007

PASIENTE BISARAM, as candidate for Mayor, July 31, 2007 Oneisom Municipal Election,
Plaintiff,

V

JOE SUTA, as Election Commissioner for Oneisom Municipality, and ORSIANA GRAHAM, as Oneisom Municipal Election Board member,
Defendants.

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CSSC CA No. 89-2007

ONGICHY SOICHY, as candidate for Deputy Mayor, July 31, 2007 Oneisom Municipal Election,
Plaintiff,

V

JOE SUTA, as Election Commissioner for Oneisom Municipality, REDLINO MIOCHY, As Candidate for Deputy Mayor of Oneisom Municipality,
Defendants.

ORDERING DENYING EX PARTE MOTIONS FOR TRO AND PRELIMINARY INJUNCTION

Camillo Noket
Chief Justice

Hearing: June 27, 2007
Decided: July 31, 2007

APPEARANCE:

For the Plaintiffs: Fredrick A. Hartman
P.O. Box 453
Weno, Chuuk FM 96942

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HEADNOTES

Civil Procedure  Injunctions
In order for the court to grant a temporary restraining order it is essential that there is a clear showing that immediate and irreparable injury or loss or damage would occur if the temporary restraining order is not granted. Irreparable injury means there is no adequate alternative remedy. Bisaram v. Suta, [2007] FMCSC 35; 15 FSM Intrm. 250, 253-54 (Chk. S. Ct. Tr. 2007).

Elections
Elections, particularly, are in the hands of the political branches. Bisaram v. Suta, [2007] FMCSC 35; 15 FSM Intrm. 250, 254 (Chk. S. Ct. Tr. 2007).

Elections
All the provisions of the Chuuk State Election Law of 1996 apply to all elections in the State of Chuuk, including municipal elections whenever applicable unless otherwise specifically provided. The Chuuk State Election Law requires that all election complaints be filed with the Chuuk Election Commissioner and that all appeals from the Election Commissioner's decision go directly to the Chuuk State Supreme Court appellate division. Bisaram v. Suta, [2007] FMCSC 35; 15 FSM Intrm. 250, 254 (Chk. S. Ct. Tr. 2007).

Civil Procedure  Injunctions; Elections
There may be cases in which the court would enter an election matter before the election process has been completed. But when, assuming the plaintiff fails to get elected, any irregularities in the election results can be addressed by filing a complaint with the State Election Commission to seek a recount or to aside the election, the plaintiff has not demonstrated that he is in danger of immediate, irreparable harm. Bisaram v. Suta, [2007] FMCSC 35; 15 FSM Intrm. 250, 254 (Chk. S. Ct. Tr. 2007).

Civil Procedure  Injunctions
A court must weigh three factors other than irreparable harm when considering injunctive relief. Those are: the relative harm to the plaintiff and to the defendant, the public interest, and the plaintiff's likelihood of success in the underlying case. When none of those factors weigh so strongly in the plaintiff's favor to overcome the lack of irreparable harm, injunctive relief will not be granted. Bisaram v. Suta, [2007] FMCSC 35; 15 FSM Intrm. 250, 254 (Chk. S. Ct. Tr. 2007).

Civil Procedure  Injunctions
Under Rule 65(b), the court cannot grant an ex parte temporary restraining order without a showing that notice should not be required or of any attempts to give notice to the opponent. When a plaintiff has not filed the required Rule 65(b) certification his motion for an ex parte temporary restraining order can be denied. Bisaram v. Suta, [2007] FMCSC 35; 15 FSM Intrm. 250, 254-55 (Chk. S. Ct. Tr. 2007).

Civil Procedure  Injunctions
Civil Procedure Rule 65(c) requires security for the issuance of a temporary restraining order. A motion for a temporary restraining order may be denied for not complying with Rule 65(c)'s requirement that the applicant give security before the issuance of a restraining order or preliminary injunction. Bisaram v. Suta, [2007] FMCSC 35; 15 FSM Intrm. 250, 255 (Chk. S. Ct. Tr. 2007).

Civil Procedure  Injunctions; Constitutional Law  Due Process; Elections
In an election dispute, the person whose right to the office is contested is the real party in interest. When a plaintiff is contesting the right of a candidate to participate in an election but fails to name the candidate as a party in the complaint, the court will deny injunctive relief because the real parties in interest are not parties to the action, since without naming the candidates as parties to this action, and giving them the benefit of due process of law, the court is unwilling and unable to adjudicate their rights in the proceeding. Bisaram v. Suta, [2007] FMCSC 35; 15 FSM Intrm. 250, 255 (Chk. S. Ct. Tr. 2007).

Elections
Chuuk courts do not have jurisdiction over disputes regarding an election until after the election and the matter has first been appealed from a decision of the Chuuk State Election Commission, and the Chuuk State Supreme Court trial division does not have any jurisdiction over election disputes even after an appeal from the Chuuk State Election Commission. That the case involves a municipal election in a municipality without a provision for contesting or challenging an election does not change the analysis. Bisaram v. Suta, [2007] FMCSC 35; 15 FSM Intrm. 250, 256 (Chk. S. Ct. Tr. 2007).

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COURT'S OPINION

CAMILLO NOKET, Chief Justice:

On June 27, 2007 the Court heard oral argument from counsel for Plaintiff Pasiente Bisaram, in CSSC CA No. 88-2007, and Ongichy Soichy, in CSSC CA No. 88-2007, on their ex parte motions for temporary restraining order filed on the same day in their respective cases. The Court also heard oral argument on Bisaram's motion for preliminary injunction. The Court denied all the motions for the reasons stated on the record and in accordance with this order.

PROCEDURAL BACKGROUND AND FACTUAL BASES OF MOTIONS

1. Plaintiff Bisaram is a candidate in the July 31, 2007 Oneisom Municipal Election for the office of Mayor of Oneisom against the incumbent Enrino Paul. Plaintiff Soichy is a candidate for Deputy Mayor of Oneisom running against Redlino Miochy.

2. On June 27, 2007, in the Chuuk State Supreme Court Trial Division, Plaintiffs filed their verified complaints for declaratory and injunctive relief, motions for temporary restraining order with points and authorities, and motions for consolidation of cases. Bisaram also filed a motion for preliminary injunction and a verified petition to exclude/disqualify Redlino Miochy from running for Deputy Mayor in the July 31, 2007 Oneisom Municipal Election, with attached exhibits.

3. In their verified complaints, Bisaram and Soichy each allege malfeasance by members of the Oneisom Election Commission and Election Board relating to the July 31, 2007 Oneisom Municipal Election.

4. Bisaram's verified complaint alleges that Defendants Joe Suta and Orsiana Graham, in their official capacities as Oneisom Municipal Election Commissioner and Oneisom Municipal Election Board member, respectively, engaged in improper conduct with respect to the July 31, 2007 Oneisom Municipal Election, including improper acceptance and certification of nomination petitions, Bisaram Complaint, paras. 12-15, 17, improper printing and casting of ballots, Bisaram Complaint, paras 18-19, 21, and refusing to provide the Master List of absentee ballots for review, Bisaram Complaint, para. 22.

5. Bisaram's verified complaint also makes factual allegations against non-parties Redlino Miochy, a candidate for Deputy Mayor, and Jayvene Johnny, a candidate for Tonokas Municipality Village Chief, who are alleged to have been illegally certified as candidates.

6. In his request for relief, Bisaram seeks:

a. a judgment that the defendants are in violation of law;

b. Redlino Miochy's disqualification from running for Deputy Mayor in the Oneisom Municipal Election of July 31, 2007;

c. Jayvene Johnny's disqualification from running for Village Chief in the Oneisom Municipal Election of July 31, 2007;

d. Joe Suta's and Orsiana Graham's disqualification from planning, conducting, and certifying the Oneisom Municipal Election of July 31, 2007; and

e. a temporary restraining order against Joe Suta and Orsiana Graham prohibiting and enjoining them from participation in the Oneisom Municipal Election of July 31, 2007 in their official capacities.

7. Bisaram's motion for preliminary injunction contains the same allegations as his ex parte motion for a temporary restraining order.

8. Soichy's verified complaint contains identical allegations to that of Bisaram with respect to Joe Suta. Soichy does not, however, name Orsiana Graham as a party or make any allegations against her. Another difference with Bisaram's complaint is that Soichy makes at least an attempt to name one of the real parties in interest, Redlino Miochy, as a defendant.[1]

9. Soichy's request for relief also mirrors that of Bisaram, except Soichy makes no request for relief relating to the conduct of Orsiana Graham.

10. According to their complaints, Plaintiffs initially filed petitions with the Chuuk State Election Commission requesting supervision over the July 31, 2007 Oneisom Municipal election, but their request was denied.

APPLICATION OF LAW

1. A Temporary Restraining Order is not Warranted because there is no Immediate, Irreparable Harm.

In order for the Court to grant a temporary restraining order it is essential that there is a clear showing that immediate and irreparable injury or loss or damage would occur if the temporary restraining order is not granted. Wiliander v. Siales, [1995] FMSC 12; 7 FSM Intrm. 77, 80 (Chk. 1995); Kony v. Mori, 6 FSM Intrm. 28, 29 (Chk. 1993). Irreparable injury means there is no adequate alternative remedy.

Elections, particularly, are in the hands of the political branches. Kony, 6 FSM Intrm. at 30. The Chuuk State Election Law of 1996 provides for remedies in election disputes. All the provisions of the Chuuk State Election Law of 1996 apply to all elections in the State of Chuuk, including municipal elections whenever applicable unless otherwise specifically provided. Chipen v. Chuuk State Election Comm'n, [1998] FMCSC 6; 8 FSM Intrm. 300n, 300o (Chk. S. Ct. App. 1998). The Chuuk State Election Law, Chk. S.L. No. 3-95-26, §§ 126, 130, requthat all elec election complaints be filed with the Chuuk Election Commissioner and that all appeals from the Election Commissioner's decision go directly to thuk State Supreme Court appellate division. Aizawa v. Chu. Chuuk State Election Comm'r, [1998] FMCSC 5; 8 FSM Intrm. 245, 247 (Chk. S. Ct. Tr. 1998). If the complainant is dissatisfied with the Chuuk State Supreme Court appellate division's decision, appeal to the FSM Supreme Court can be had. Phillip v. Phillip, [1999] FMCSC 14; 9 FSM Intrm., 226, 228 (Chk. S. Ct. Tr. 1999).

In Kony v. Mori, 6 FSM Intrm. 28 (Chk. 1993), the court faced a situation bearing some similarity to the one at bar. The plaintiffs requested a restraining order to delay the election on the day before the election, because the general registry still had not been made available to the plaintiff for inspection in violation of statutory mandate. Plaintiffs anticipated that such violation of election procedures would result in a tainted election. While the court was sympathetic to the anxiety of the plaintiffs who anticipated balloting malfeasance, the Court did not find irreparable harm. Rather, "where there is an alternative method of making complaint very specifically set out in the code, and when the code is very specific as far as the point at which the court can rule on the matter and even states the breadth of the ruling that can be reached at that point, damage is not irreparable. There are alternate and adequate remedies." Kony, 6 FSM Intrm. at 30; see also Wiliander, 7 FSM Intrm. at 80 (where the election law provides for remedies that have not yet been used a candidate cannot show irreparable harm necessary for the issuance of a temporary restraining order).

There may be cases in which the court would enter a matter before the election process has been completed. E.g., Robert v. Mori, [1994] FMSC 7; 6 FSM Intrm. 394 (App. 1994) (appeal heard from final administrative decision of National Election Commissioner denying plaintiff place on the ballot for upcoming special election). This is not such a case. Here, assuming either plaintiff fails to get elected, any irregularities in the election results can be addressed by filing a complaint with the State Election Commission to seek a recount or to aside the election. Aten v. National Election Comm'r (II), 6 FSM Intrm. 74, 82 (App. 1993). Therefore, Plaintiffs have not demonstrated that they are in danger of immediate, irreparable harm.

A court must weigh three factors other than irreparable harm when considering injunctive relief. Those are: the relative harm to the plaintiff and to the defendant, the public interest, and the likelihood of success by the plaintiff in the underlying case. Where none of those factors weigh so strongly in the plaintiff's favor to overcome the lack of irreparable harm injunctive relief will not be granted. Wiliander v. Siales, [1995] FMSC 12; 7 FSM Intrm. 77, 80 (Chk. 1995).

The Court finds that neither Plaintiff has made a sufficient showing of irreparable harm to warrant injunctive relief. Therefore, analysis of the remaining factors is unnecessary.

2. Plaintiffs must Comply with Rule 65(b) Certification Requirement.

Plaintiffs' motions were filed ex parte. Rule 65(b) sets forth the requirements for filing an ex parte request for a temporary restraining order. According to Rule 65(b), the Court cannot grant an ex parte temporary restraining order without a showing that notice should not be required or of any attempts to give notice to the opponent. Island Cable TV-Chuuk v. Aizawa, [1997] FMSC 22; 8 FSM Intrm. 104, 107 (Chk. 1997); Chk. Civ. R. 65(b) ("a temporary restraining order may be granted without written or oral notice to the adverse party or his attorney only if the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting his claim that notice should not be required").

Neither Plaintiff filed the certification required by Rule 65(b). Plaintiffs' motions for temporary restraining orders are therefore denied for the additional reason that the certification requirement set forth in Rule 65(b) were not met in this case.

3. Plaintiffs must comply with Rule 65(c) Security Requirement.

Neither Plaintiff posted security for the issuance of a temporary restraining order. Chuuk State Supreme Court Rule of Civil Procedure 65(c) requires security for the issuance of a temporary restraining order. Chk. Civ. R. 65(c); Island Cable TV-Chuuk, 8 FSM Intrm. at 105.

Plaintiffs' motions are therefore denied for the additional reason that they have not complied with Rule 65(c)'s requirement that the applicant give security before the issuance of a restraining order or preliminary injunction.

4. The Real Parties in Interest Should be Named Parties in this Action.

In an election dispute, the person whose right to the office is contested is the real party in interest. In re Nomun Weito Interim Election[2003] FMCSC 5; , 11 FSM Intrm. 461, 469-70 (Chk. S. Ct. App. 2003). In this case, the Plaintiffs are contesting the right of candidates Jayvene Johnny and Redlino Miochy to participate in the Oneisom Municipal Election. Neither Plaintiff names Jayvene Johnny as a party in their complaint and only Soichy's complaint attempts to designate Redlino Miochy as a party.

Without naming the candidates as parties to this action, and giving them the benefit of Due Process of law in this matter, the Court is unwilling and unable to adjudicate their rights in this proceeding. The Court therefore denies the motions for the additional reason that the real parties in interest are not parties to this action.

5. The Chuuk State Supreme Court Trial Division does not have Jurisdiction over this Matter.

Under Chuuk state law, 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, [1998] FMCSC 6; 8 FSM Intrm. 300d, 300h (Chk. S. Ct. App. 1998). By this action, Plaintiffs' sought to contest an election that has not yet been decided. By statute, "no [Chuuk state] court has jurisdiction over an election contest until the election is completed." Kony, 6 FSM Intrm. at 30 (quoting 26 Am. Jur. 2d Elections § 326, at 148).

Even upon completion of the election, the Chuuk State Supreme Court trial division does not have jurisdiction to hear an election contest and any election contest dispute filed in the trial division must be dismissed for lack of jurisdiction. Mathew v. Silander, [1998] FMCSC 4; 8 FSM Intrm. 560, 564 (Chk. S. Ct. Tr. 1998). Rather, an election complaint must first be filed with the Chuuk Election Commission according to statutory guidelines and procedures. Phillip, 9 FSM Intrm. at 228; Chk. S.L. No. 3-95-26, §§ 126, 130. If dissatisfied with the Election Commission ruling, the complainant may appeal the ruling to the Chuuk State Supreme Court appellate division and, if dissatisfied with the Chuuk State Supreme Court appellate division ruling, to the FSM National Court. Phillip, 9 FSM Intrm. at 228
In sum, the Chuuk State Supreme Court trial division does not have jurisdiction over this matter because 1. Chuuk courts do not have jurisdiction over disputes regarding an election until after the election and the matter has first been appealed from a decision of the Chuuk State Election Commission, and 2. the Chuuk State Supreme Court trial division does not have any jurisdiction over election disputes even after an appeal from the Chuuk State Election Commission. That this case involves a municipal election in a municipality without a provision for contesting or challenging an election does not change the analysis. See Alafanso v. Suda, [2002] FMCSC 4; 10 FSM Intrm. 553, 557 (Chk. S. Ct. Tr. 2002) (When a municipal election ordinance has no provision for contesting or challenging the election results after an election has been held, or for resolving election disputes, the state election law must apply to this phase of the election, and the proper forum to contest the municipal election is the Chuuk Election Commission.).

Therefore, the Court finds that it is without jurisdiction in this matter.

CONCLUSION

Accordingly, Plaintiffs' respective motions for an ex parte temporary restraining order and Bisaram's motion for preliminary injunction are denied and this case is dismissed for lack of jurisdiction.

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^[1]Soichy does not identify Redlino Miochy as a party in the caption of his complaint, but Redlino Miochy is identified as a party in the body of the complaint, para. 4. The Court has amended the caption to comport with Soichy’s apparent intent to include Redlino Miochy as a defendant. The Bisaram complaint does not identify Redlino Miochy as a party. Neither complaint names Jayvene Johnny as a party.