Kinemary v Siver [2008] FMCSC 15; 16 FSM Intrm. 201 (Chk. S. Ct. App. 2008) (28 November 2008)

CHUUK STATE SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. 03-2008

STEKICHY KINEMARY,
Appellant/Petitioner

vs.

MARINO SIVER, in his official capacity as Chuuk State Election Commissioner, CHUUK STATE ELECTION COMMISSION, POLLE MUNICIPAL ELECTION COMMISSIONER,
Appellees/Respondents,

NORICHI CHENI and ISIER HERAM,
Real Parties in Interest.

______________________________________________

ORDER OF DISMISSAL

Argued: November 13, 2008
Decided: November 28, 2008

BEFORE:

Hon. Camillo Noket, Chief Justice, Presiding
Hon. Ready E. Johnny, Temporary Justice*
Hon. Salomon M. Saimon, Temporary Justice**

*Associate Justice, FSM Supreme Court, Chuuk
**Attorney at Law, Weno, Chuuk

APPEARANCES:

For the Petitioner: Ben K. Enlet
P.O. Box 1650
Weno, Chuuk FM 96942

For the Respondent: Charleston Bravo
(Chuuk Election Comm'r) Assistant Attorney General
P.O. Box 189
Weno, Chuuk FM 96942

For the Real Party in Interest: George Hauk
(Heram) P.O. Box 1405
Weno, Chuuk, FM 96942

For the Real Party in Interest-Respondent: Johnny Meippen
(Cheni; Polle Election Comm'r) P.O. Box 705
Weno, Chuuk FM 96942

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HEADNOTES

Elections
When a motion to dismiss for lack of the court's subject matter jurisdiction is filed in lieu of an answer to an election contest complaint, the court is required to address the preliminary issues raised regarding the appellate division's subject matter jurisdiction before proceeding to the merits of the issue. Kinemary v. Siver, [2008] FMCSC 15; 16 FSM Intrm. 201, 205 (Chk. S. Ct. App. 2008).

Elections
Elections belong to the political branch of the government. The court can exercise authority over election disputes only to the extent that there is a constitutional or statutory provision expressly or impliedly giving it that authority. Kinemary v. Siver, [2008] FMCSC 15; 16 FSM Intrm. 201, 205 (Chk. S. Ct. App. 2008).

Elections
The determination of an election contest is a judicial function only so far as authorized by the statute. Even if the court is granted jurisdiction, it does not then proceed according to the course of the common law, but must rely solely on its statutorily granted authority to ascertain its powers and mode of procedure. Kinemary v. Siver, [2008] FMCSC 15; 16 FSM Intrm. 201, 205 (Chk. S. Ct. App. 2008).

Elections
The Chuuk State Election Law of 1996, chapter 8 sets forth the procedures for contesting the results of an election. A "contestant" is someone contesting an election. A "defendant" in an election contest is one whose election or qualifications are contested. A contestant must verify a statement of contest and file it within five days after the declaration of the result of the election by the body canvassing the returns thereof, and the election commission must rule on the complaint within three days after the end of time for filing statements of contest. The Election Law imposes no deadline for appealing a ruling of the election commission to the Chuuk State Supreme Court appellate division. Kinemary v. Siver, [2008] FMCSC 15; 16 FSM Intrm. 201, 205-06 (Chk. S. Ct. App. 2008).

Elections
Unless municipal law or constitution provides otherwise, all appeals from the Election Commissioner's decision on an election contest go directly to the Chuuk State Supreme Court appellate division. Kinemary v. Siver, [2008] FMCSC 15; 16 FSM Intrm. 201, 206 (Chk. S. Ct. App. 2008).

Administrative Law  Judicial Review; Elections
Although there may be no actual decision that was appealed from, an Election Commissioner's failure to act on an election contest constitutes an effective, appealable denial. In order to obtain appellate division jurisdiction over an election contest, however, the timing requirements for filing must be strictly complied with. The reason is that statutory deadlines are jurisdictional, and therefore, if a statutory deadline has not been strictly complied with, the adjudicator is without jurisdiction over the matter. Kinemary v. Siver, [2008] FMCSC 15; 16 FSM Intrm. 201, 206 (Chk. S. Ct. App. 2008).

Elections
The election contest provisions do not allow for the filing of an election contest complaint before an election. Although a petitioner may file a petition after an election is declared but before it is certified, there is no authority for allowing an election contest to be filed outside the framework of section 127 of the Election Law, which specifically states that a contest must be filed within five days after the declaration of the election  the petition must be filed after declaration of the election, but no later than five days from the date of the declaration. The Chuuk State Supreme Court appellate division has no jurisdiction when over an election contest when it was not filed with the Election Commission within the deadline imposed. Kinemary v. Siver, [2008] FMCSC 15; 16 FSM Intrm. 201, 206 (Chk. S. Ct. App. 2008).

Elections
Although it may be preferable to have the issue of a candidate's qualification addressed before the election, there is nothing to prevent a petitioner from re-filing his qualification challenge after the declaration of the results, according to the provisions for an election contest. Kinemary v. Siver, [2008] FMCSC 15; 16 FSM Intrm. 201, 206 (Chk. S. Ct. App. 2008).

Elections
Although there may be some cases where issues regarding the conduct of elections may be raised prior to an election, it seems axiomatic that an election contest only arises once the results of the election are known. Kinemary v. Siver, [2008] FMCSC 15; 16 FSM Intrm. 201, 206 (Chk. S. Ct. App. 2008).

Elections
By filing a complaint under section 55, any person may raise with the state election commission a controversy over a violation of any of the Election Law provisions. If a candidate is found guilty of violating any election law provision, the candidate may be disqualified from office and an Independent Prosecutor or Attorney General, or both, will take whatever necessary legal action to make the disqualification from office legally effective. While there are specific timing provisions that control the filing of an election contest, there is no provision that sets a deadline for filing section 55 controversies. A disqualification resulting from a successful section 55 action may, therefore, occur either before or after a candidate takes office. Kinemary v. Siver, [2008] FMCSC 15; 16 FSM Intrm. 201, 207 (Chk. S. Ct. App. 2008).

Administrative Law  Judicial Review; Elections
While the Election Law explicitly grants jurisdiction to the appellate court over appeals of election contests, it is silent on the question of appellate jurisdiction over appeals from decisions made under section 55 and no other provision in the Election Law, other than those granting jurisdiction over election contests in the appellate division, expressly provides for jurisdiction in the Supreme Court appellate division. Although there is no specific reference to the jurisdiction of the trial division in the Election Law itself, it must be inferred that the trial division, and not the appellate division, has jurisdiction over criminal prosecutions sought pursuant to section 55 as well as the power to hear contempt proceedings that are certified from the Election Commission pursuant to section 8. Since the provisions in the Chuuk Constitution and Judiciary Act for trial court review over agency actions otherwise provide authority for the trial court's jurisdiction over appeals from an election commission, the appellate court does not have jurisdiction over an appeal from the Election Commission's denial of a petitioner's pre-election complaint regarding the qualifications of candidates for Polle municipal mayoral office. Kinemary v. Siver, [2008] FMCSC 15; 16 FSM Intrm. 201, 207 (Chk. S. Ct. App. 2008).

Elections
The state appellate panel must decide on a contested election before the date upon which the declared winning candidates are to take office in the Senate or House of Representatives since the decision of the specific house concerned will prevail and is final. Kinemary v. Siver, [2008] FMCSC 15; 16 FSM Intrm. 201, 208 (Chk. S. Ct. App. 2008).

Elections
Except for members-elect of the Senate or House of Representatives, the court is not prevented from ruling on cases involving elected officials even after they have taken office. A candidate will continue to have a legally cognizable interest in whether one or more candidates is disqualified because, if one or more candidates is disqualified, then one of the others may stand to be the winning candidate. If the candidates' qualifications are affirmed by the court, the ruling still serves a valuable function by settling a concrete dispute over the qualifications of an elected official. Kinemary v. Siver, [2008] FMCSC 15; 16 FSM Intrm. 201, 208 (Chk. S. Ct. App. 2008).

Constitutional Law  Case or Dispute  Mootness
An exception to the mootness doctrine clearly applies when it appears to the court that the problem may rise again, and when a determination of the issues may have a continuing effect on future events, including future litigation. Kinemary v. Siver, [2008] FMCSC 15; 16 FSM Intrm. 201, 208 (Chk. S. Ct. App. 2008).

Elections
The procedures for filing a challenge of a candidate's or elected official's qualifications may be presented at any time. A properly filed petition is not rendered moot by the results of an election or the swearing in of a mayoral candidate. Kinemary v. Siver, [2008] FMCSC 15; 16 FSM Intrm. 201, 208 (Chk. S. Ct. App. 2008).

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COURT'S OPINION

CAMILLO NOKET, Chief Justice:

This matter was filed in the appellate division of the Chuuk State Supreme Court as an appeal of petitions filed in advance of the September 9, 2008 Polle municipal election, challenging the age qualifications of two of the Polle municipal mayoral candidates. Without reaching the merits of the qualification issue, the court grants dismissal for lack of jurisdiction.

I. BACKGROUND

On September 1, 2008, petitioner Stekichy Kinemary filed a petition with the Polle Election Commissioner challenging the nominations of real parties in Interest, Norichi Cheni and Isier Heram, as mayoral candidates for the September 9, 2008 Polle municipal election on the basis that neither met the age requirement of 48 years old for mayor, as provided for by municipal ordinance. See, Polle Municipal Ordinance No. 05-95, § 5(a). On September 3, 2008, petitioner filed a verified petition with the State Election Commission seeking the same relief as he did with his September 1, 2008 petition. Both petitions were d on the Polle Municipal Election Commissioner, the State Aate Attorney General for the Chuuk State Election Commission, and the real parties in interest. On September 9, 2008, the Polle municipal election was held. In the official results, real party in interest Cheni garnered the most votes. Real party in interest Heram garnered the second most votes. Petitioner garnered the least votes of the three candidates. On September 10, 2008 real party in interest Cheni was certified as winner of the election and, on September 19, 2008, he was sworn in to office.

On the same day, September 19, 2008, petitioner Kinemary filed his complaint with the appellate division of the Chuuk State Supreme Court, appealing from the pre-election petitions that were not ruled on by either the Polle or Chuuk State Election Commissions. On October 13, 2008, respondent State Election Commissioner filed a motion to dismiss contending that the case should be dismissed for lack of subject matter jurisdiction on the grounds of mootness. On October 17, 2008, respondent Polle Election Commissioner and real party in interest Cheni filed a motion to dismiss contending that the case should be dismissed for lack of subject matter jurisdiction on the grounds that the petitioner did not comply with the timing requirements for filing an election contest.

On October 20, 2008, real party in interest Heram filed an opposition to the October 13, 2008 motion to dismiss. On October 27, 2008, petitioner Kinemary filed an opposition to the October 13, 2008 motion to dismiss. No oppositions were filed to the October 17, 2008 motion to dismiss. On October 29, 2008, Polle Election Commissioner and real party in interest Cheni filed an appellate brief, which restated the argument in their October 17, 2008 motion to dismiss that the appellate court lacked jurisdiction over the matter. On November 13, 2008, each counsel presented oral argument to the appellate panel on both motions to dismiss, after which the panel took the motions under advisement.

II. MOTIONS TO DISMISS

Before proceeding to the merits of the issue raised on this appeal, the court is required to address the preliminary issues raised regarding the appellate division's subject matter jurisdiction over the matter. See Murilo Election Comm'r v. Marcus, [2007] FMCSC 15; 15 FSM Intrm. 220, 224 (Chk. S. Ct. App. 2007) (When a motion to dismiss for lack of the court's subject matter jurisdiction is filed in lieu of an answer to an election contest complaint, a court must address the motion before proceeding to a trial on the merits).

III. JURISDICTION OVER ELECTION CONTEST APPEALS

Polle Election Commissioner and real party in interest Cheni argue that the appellate division is restricted to exercising jurisdiction over election contests and since this action was not filed in accordance with the timing requirements for an election contest, the court lacks jurisdiction. The court will therefore consider whether this action can be entertained under the court's authority to hear election contests.

Elections belong to the political branch of the government, and the court can exercise authority over election disputes only to the extent that there is a constitutional or statutory provision expressly or impliedly giving it that authority. David v. Uman Election Comm'r, [1998] FMCSC 6; 8 FSM Intrm. 300d, 300h (Chk. S. Ct. App. 1998); Mathew v. Silander, [1998] FMCSC 4; 8 FSM Intrm. 560, 562 (Chk. S. Ct. Tr. 1998); Phillip v. Phillip, [1999] FMCSC 14; 9 FSM Intrm. 226, 228 (Chk. S. Ct. Tr. 1999). The determination of an election contest is a judicial function only so far as authorized by the statute. Even if the court is granted jurisdiction, it does not then proceed according to the course of the common law, but must rely solely on its statutorily granted authority to ascertain its powers and mode of procedure. Mathew, 8 FSM Intrm. at 563.

The procedures for contesting the results of an election are set forth in the Chuuk State Election Law of 1996, chapter 8. See Chk. S.L. No. 3-95-26, § 123 et/i>. Section 123 d123 defines a "contestant" as some one contesting an election. Id. § 123. A "defendant" in an election contest is one whose eon or qualifications are contested. Id. Sections 126s 126-129 set forth the pleading requirements for filing a complaint with tate election commission. A contestant must verify a statemtatement of contest and "shall file it within five (5) days after the declaration of the result of the election by the body canvassing the returns thereof." Id. § 127. The election commn musn must rule on the complaint within three days after the end of time for filing statements of contest. Id. §&#10.

The appellate court's authority to hear an election contest on appeal from from an election commission's ruling is found in Sections 130 and 131 of the Chuuk Election Code. Id., §§ 130-131. Tis no deadline imne imposed by the Election Law for appealing a ruling of the election commission to the appellate division of the Chuuk State Supreme Court. ; Cholymay v. Chuuk State Election Comm'n, 10 FSM0 FSM Intrm. 145, 157 (Chk. S. Ct. App. 2001). Unless municipal law or constitution provides otherwise, all appeals from the Election Commissioner's decision on an election contest go directly to the Chuuk State Supreme Court appellate division. Murilo Election Comm'r, 15 FSM Intrm. at 224; Samuel v. Chuuk State Election Comm'n, [2007] FMCSC 1; 14 FSM Intrm. 586, 589 (Chk. S. Ct. App. 2007); Alafanso v. Suda, [2002] FMCSC 4; 10 FSM Intrm. 553, 557 (Chk. S. Ct. Tr. 2002); Cholymay, 10 FSM Intrm. at 154-55; accord Aizawa v. Chuuk State Election Comm'r, [1998] FMCSC 5; 8 FSM Intrm. 245, 247 (Chk. S. Ct. Tr. 1998). Here, no municipal law or constitutional provision limited the application of the appeal provisions of the Election Law of 1996 and so the appellate panel has jurisdiction over any appeal from a decision by the Election Commissioner of an election contest. Murilo Election Comm'r, 15 FSM Intrm. at 224.

Although there was no actual decision that was appealed from in this case, the Election Commissioner's failure to act on an election contest constituted an effective, appealable denial. Murilo Election Comm'r, 15 FSM Intrm. at 225; Cholymay, 10 FSM Intrm. at 153-54; Wiliander v. Mallarme, [1995] FMSC 24; 7 FSM Intrm. 152, 158 (App. 1995).

In order to obtain the jurisdiction of the appellate division over an election contest, however, the timing requirements for filing must be strictly complied with. The reason is that statutory deadlines are jurisdictional, and therefore if a statutory deadline has not been strictly complied with the adjudicator is without jurisdiction over the matter. Wiliander, 7 FSM Intrm. at 158 (no estoppel of timing requirements for election contest as a result of national election commission's failure to rule on petition); see also Kony v. Mori, 6 FSM Intrm. 28, 30 (Chk. 1993) (appellate division can only exercise jurisdiction over an election contest within the framework, including the timing provisions, so provided by statute).

The election contest provisions do not allow for the filing of an election contest complaint prior to an election. Although this court has held that a petitioner may file a petition after an election is declared but before it is certified, see Cholymay, 10 FSM Intrm. at 153, there is no authority for allowing an election contest to be filed outside the framework of section 127 of the Election Law, which specifically states that a contest must be filed within five days after the declaration of the election. Chk. S.L. No. 3-95-26, § 127. In other w the petitiotition must be filed after declaration of the election, but no later than five days from the date of the declarationhough there may be some cases where issues regarding the conduct of elections may be raisedaised prior to an election, it seems axiomatic that an election contest only arises once the results of the election are known. See Daniel v. Moses, [1985] FMPSC 1; 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.).

In this case, two petitions were filed before the election, but none was filed within five days after the declaration of the results. Although it may have been preferable to have the qualification issues addressed prior to the election, there was nothing to prevent petitioner from re-filing his qualification challenge after the declaration of the results, according to the provisions for an election contest. See Miochy v. Chuuk State Election Comm'n, [2007] FMCSC 42; 15 FSM Intrm. 370 (Chk. S. Ct. App. 2007) (Chuuk State Supreme Court appellate division affirmed ruling of Election Commission in timely filed election contest challenging municipal mayoral election winner's age qualification). Petitioner did not, however, re-file his petition under the election contest provisions. The court concludes that it has no jurisdiction over this matter pursuant to sections 130 and 131 of the Election Law, because an election contest was not filed with the Election Commission within the deadline imposed by section 127 of the Election Law.
IV. Jurisdiction over Appeals of Section 55 Controversies

Petitioner contends that even if the appellate division does not have jurisdiction over this matter as an election contest, it has jurisdiction to hear an appeal of a section 55 controversy after the Election Commission failed to act on his pre-election petition within fifteen days. See Chk. S.L. No. 3-95-26, §§ 8, 55. etition challenged tged the age qualifications of the real parties in interest. It appears that the controversy was properly raised with the Election Commission, as the determination of whethedidates are qualified is wiis within the ambit of the election commission's powers. See id. § 9 (before a per name is plas placed on the ballot for an election to public office the person's qualifications to hold the office the person's fications must be to hold the office must be thoroughly examined and investigated by the elhe election commission to ensure that they are in compliance with the law and the Constitution). The panel will therefore consider whether it has jurisdiction over an appeal of the Election Commission's denial or failure to act on a section 55 controversy.

The scope of either the appellate division or trial division's jurisdiction over appeals of a section 55 controversy is an issue of first impression. By filing a complaint under section 55, any person may raise with the state election commission a controversy over a violation of any of the provisions of the Election Law. Id. § 55ording to the procedure sure set forth in section 55, if a candidate is found guilty of violating any provision of the election law, the candidate may be disqualified from office and an Indepe Prosecutor or Attorney Geny General, or both, will take whatever necessary legal action to make the disqualification from office legally effective. Id. § 55. While there are speciimc timing provisions that control the filing of an election contest, see Olter v. National Election Comm'r, [1987] FMSC 16; 3 FSM Intrm. 123, 129 (App. 1987), there is no provision that sets a ine for filing section 55 c 55 controversies. A disqualification resulting from a successful section 55 action may, therefore, occur either before or after a candidate takes office. Id. §§ 54, 55. The Electiw is ther therefore explicit in providing that the Election Commission has the statutory authority and responsibility to rule on any controversy raised regardinandidate's qualification, even if they have taken office. Id.

While the Election Law explicitly grants jurisdiction to the appellate court over appeals of election contests, it is silent on the question of appellate jurisdiction over appeals from decisions made pursuant to section 55. Indeed, no other provision in the Election Law, other than those granting jurisdiction over election contests in the appellate division, expressly provides for jurisdiction in the appellate division of the Supreme Court.

Although there is no specific reference to the jurisdiction of the trial division in the Election Law itself, it must be inferred that the trial division, and not the appellate division, has jurisdiction over criminal prosecutions sought pursuant to section 55 as well as the power to hear contempt proceedings that are certified from the election commission pursuant to section 8. See id. §§ 8, 55. The provisions in the Chuuk Constitution and Judiciary Act for trial court review over agency actions otherwise provide authority for the trial court's jurisdiction over appeals from ection commission. See Chk. Const. art. VII, §&167; 3(c) (trial division of the State Supreme Court has jurisdiction to review the actions of any state administrative agency, board, or commission, as may be provided by law); see also id.7;§ 17, 18; and see zawaizawa v. Chuuk Stak State Election Comm'r[1998] FMCSC 5; , 8 FSM Intrm. 245, 247 (Chk. S. Ct. Tr. 1998) (Because the state judiciary act gives the state court trial division authority to review all actions of an agency of the government, the trial division has jurisdiction over an appeal from election commission if it is determined that the appellate court does not have jurisdiction over the matter.).

The court concludes that it does not have jurisdiction over this appeal from the Election Commission's denial of petitioner's pre-election complaint regarding the qualifications of the real parties in interest to hold the Polle municipal mayoral office.

V. MOOTNESS

Although the panel bases its dismissal on the argument raised in respondent Polle Election Commissioner and real party in interest Cheni's motion to dismiss, it will also comment on the argument raised by respondent State Election Commissioner in its October 13, 2008 motion to dismiss because of its concern as to whether complainants raising issues regarding a candidate's or elected person's qualifications will have effective avenues of relief. The Election Commission argues that this appeal was rendered moot once the election was held and a winning candidate was declared and sworn in to office.

The argument is primarily based on the language of Section 131 of the Election Law, which states that the appellate panel "shall decide on a contested election prior to the date upon which the declared winning candidates are to take office." Chk. S.L. No. 3-95-26, § 131. The provision next concludes that "[i]n the case of a contested election of a member-elect of the Senate or House of Representatives, the decision of tecific House concerned shall prevail and is final. Id. The mandatory language in Secn Section 131 encompasses those cases involving the election of members to the legislature where it has been held that the swearing in of the winning candidate renders an election dispute moot. See, e.g., Aten v. National Election Comm'r (III), [1993] FMSC 28; 6 FSM Intrm. 143, 145 & n.1 (App. 1993) (only Congress can decide who is to be seated and once it has seated a member unconditionally the matter is non-justiciable); see also Daniel, 3 FSM Intrm. at 4. Section 131 does not, however, prevent the court from ruling on cases involving other elected officials, even after they have taken office. Rather, for elected officials other than members elect of the Senate or House of Representatives, even when a real party in interest has already taken office, petitioner and real parties in interest continue to have a legally cognizable interest in whether one or more of the candidates is disqualified, because if one or more candidates is disqualified, then one of the others may stand to be the winning candidate. Rubin v. Fefan Election Comm'n, [2003] FMCSC 11; 11 FSM Intrm. 573, 580 (Chk. S. Ct. Tr. 2003). If the qualifications of the real parties in interest are affirmed by the court, the ruling still serves a valuable function by settling a concrete dispute over the qualifications of an elected official. Id.

The prospect of an unqualified elected official holding office without any available procedure to challenge his qualifications would threaten to undermine the integrity of this and future elections, fair elections conducted in accordance with the law being the very foundation of democracy. Rubin, 11 FSM Intrm. at 580. The vesting in the trial division of jurisdiction over appeals from commission rulings provides that means under the circumstances of this case.

Further, an exception to the mootness doctrine clearly applies when it appears to the court that the problem may rise again, and when a determination of the issues may have a continuing effect on future events, including future litigation. Rubin, 11 FSM Intrm. at 580. This case presents an issue regarding elected official qualifications that, if unaddressed by a court of competent jurisdiction, will likely arise again.

Finally, the procedures for filing a section 55 controversy do not impose any timing requirements. A challenge of a candidate's or elected official's qualifications may be presented at any time. A properly filed petition under § 55 is not, therefore,ered mred moot by the results of an election or the swearing in of a mayoral candidate. Chk. S.L. No. 3-95-26, § 55. The fa of election offi officials to act within the time requiremprovided for by statute cere certainly adds nothing in favor of a mootness argument. See id. § 8 (any controvsubmito the Cthe Commissionssion shall be tried, heard and decided within 15 days from the date the petition is filed).

VI. CONCLUSION

This case is dismissed for lack of subject matter juri jurisdiction.

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