Doone v Chuuk State Election Commission [2009] FMCSC 14; 16 FSM Intrm. 513 (Chk. S. Ct. App. 2009) (22 July 2009)

CHUUK STATE SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. 04-2009

GILLIAN DOONE and RITIS HELDART,
Appellants/Petitioners,

vs.

CHUUK STATE ELECTION COMMISSION,
Appellee/Respondent,

WESLEY SIMINA and JOHNSON ELIMO,
Real Parties in Interest.

________________________

OPINION

Trial: June 30, 2009
Decided: July 22, 2009

BEFORE:

Hon. Camillo Noket, Chief Justice, Presiding
Derensio Konman, Temporary Justice*
Hon. George Z. Isom, Temporary Justice**

*Attorney at Law, Micronesian Legal Services Corporation, Weno, Chuuk
**Attorney at Law, FSM Public Defender's Office, Weno, Chuuk

APPEARANCES:

For the Petitioners: Gideon K. Doone
P.O. Box 882
Weno, Chuuk FM 96942

For the Respondent: Joses R. Gallen
(Election Commission) Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

For the Real Parties in Interest: Wesley Simina
P.O. Box 94
Weno, Chuuk FM 96942

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HEADNOTES

Constitutional Law  Due Process; Elections
An election contest petitioners' failure to name all real parties in interest in their pleadings can subject the court's rulings to being later challenged by the real parties in interest as a violation of their due process rights to defend their interest in the action. Doone v. Chuuk State Election Comm'n, [2009] FMCSC 14; 16 FSM Intrm. 513, 516 n.1, 517 (Chk. S. Ct. App. 2009).

Administrative law  Judicial Review; Elections
Absent a showing that the election commission had failed to take meaningful action on their complaint since the court's remand, the court could not take jurisdiction over the remanded election contest since, if the court had taken jurisdiction over the merits of the case before administrative remedies had been exhausted, it would have circumvented the power vested in the election commission to have primary jurisdiction over election contests and the court's rulings would have been subjected to appeal for lack of jurisdiction when administrative remedies had not yet been exhausted. Doone v. Chuuk State Election Comm'n, [2009] FMCSC 14; 16 FSM Intrm. 513, 517 (Chk. S. Ct. App. 2009).

Administrative law  Judicial Review; Elections
Matters of statutory interpretation are issues of law that the court reviews de novo. Doone v. Chuuk State Election Comm'n, [2009] FMCSC 14; 16 FSM Intrm. 513, 518 (Chk. S. Ct. App. 2009).

Administrative law  Judicial Review; Elections
In an election contest appeal in the Chuuk State Supreme Court appellate division, the court will hold a trial on an issue of fact. Doone v. Chuuk State Election Comm'n, [2009] FMCSC 14; 16 FSM Intrm. 513, 518 (Chk. S. Ct. App. 2009).

Elections
In an election contest trial in the appellate division, a respondent may, after presentation of the petitioner's case, move for dismissal on the ground that the petitioner has not carried his burden of proof for the relief sought. The court will consider this as a motion analogous to a Civil Procedure Rule 41(b) motion in the trial division. The motion may therefore be made on the ground that upon the facts and the law the petitioner has shown no right to relief, and the appellate court, as the trier of facts, may then make findings of fact and conclusions of law and render judgment against the petitioner. Doone v. Chuuk State Election Comm'n, [2009] FMCSC 14; 16 FSM Intrm. 513, 518 (Chk. S. Ct. App. 2009).

Elections
Whether an election complaint is timely filed is a matter of great importance in election contests, as an untimely complaint will prevent an adjudicator from ruling on the contest for lack of jurisdiction since an adjudicator's jurisdiction over election contests is limited to the constitutional or statutory provision expressly or impliedly giving it that authority. Doone v. Chuuk State Election Comm'n, [2009] FMCSC 14; 16 FSM Intrm. 513, 518 (Chk. S. Ct. App. 2009).

Elections
Under the Chuuk Election Law, initially, an election contestant must file a verified complaint with the election commission within five days after the declaration of the election result by the body canvassing the returns. This deadline for filing a complaint with the election commission is mandatory, and, if the complainant fails to strictly comply with the deadline for filing a verified complaint, the complaint will be dismissed for lack of jurisdiction. Doone v. Chuuk State Election Comm'n, [2009] FMCSC 14; 16 FSM Intrm. 513, 518 (Chk. S. Ct. App. 2009).

Elections
An election contestant must file a verified complaint. An oral complaint does not satisfy the requirements of a verified complaint, which is a written complaint sworn to under oath. Doone v. Chuuk State Election Comm'n, [2009] FMCSC 14; 16 FSM Intrm. 513, 519 (Chk. S. Ct. App. 2009).

Elections
The public announcement of the results, not the date of certification, is the date for determining an election contest filing deadline under the Chuuk Election Law. Doone v. Chuuk State Election Comm'n, [2009] FMCSC 14; 16 FSM Intrm. 513, 519 (Chk. S. Ct. App. 2009).

Elections; Evidence  Burden of Proof
In an election contest, the court makes findings of fact based on the total record in the case. The petitioner has the burden of proof to prove his case by a preponderance of the evidence. The petitioner satisfies his burden of proof if his evidence is more convincing to the court than that of the respondents. Thus, the petitioners must establish facts in support of their claim by evidence at least sufficient to overbalance any weight of evidence produced by the other parties. Doone v. Chuuk State Election Comm'n, [2009] FMCSC 14; 16 FSM Intrm. 513, 519 (Chk. S. Ct. App. 2009).

Elections; Evidence  Burden of Proof
When there was no evidence to contradict the election commission's finding of the dates that the election results were announced, the petitioners cannot prove by a preponderance of the evidence that the declaration of the election was after April 11, 2009, which, if it had been, would have made their petition timely and the panel would have remanded the contest to the election commission for a third time. Doone v. Chuuk State Election Comm'n, [2009] FMCSC 14; 16 FSM Intrm. 513, 519 (Chk. S. Ct. App. 2009).

Elections
Neither the election commission nor the court can take jurisdiction over an election contest when it is not timely filed. Doone v. Chuuk State Election Comm'n, [2009] FMCSC 14; 16 FSM Intrm. 513, 519 (Chk. S. Ct. App. 2009).

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COURT'S OPINION

CAMILLO NOKET, Chief Justice, presiding:

I. INTRODUCTION

This is an appeal from the election commission's denial as untimely of petitioners' contest of the April 9, 2009 Chuuk state gubernatorial run-off election. The court finds that petitioners did not carry their burden to prove that the election complaint was timely filed with the election commission. The contest is therefore dismissed.

II. BACKGROUND

This is petitioners' third appeal from the election commission of its contest of the run-off election. Petitioners Gillian Doone and Ritis Heldart are the governor and lieutenant governor candidates who ran against the real parties in interest, incumbent governor Wesley Simina and incumbent lieutenant governor Johnson Elimo. The incumbents were declared and certified as winners and, on April 14, 2009, were sworn in to office for second terms. On April 17, 2009, petitioners filed their verified complaint with the election commission contesting the result of the election.

On April 20, 2009, the election commission issued an order dismissing the complaint for improper pleading and lack of jurisdiction. On April 27, 2009, petitioners filed a first notice of appeal with the Chuuk State Supreme Court. On April 30, 2009, a three judge panel found that the election commission's dismissal of the complaint was improper. It found that the election complaint was properly pled and that the commission's ruling on jurisdiction was improperly based on its belief that the appellate division would not have jurisdiction over a hypothetical appeal.[1] The panel therefore remanded the contest back to the commission with directions to reach a ruling on the merits if the complaint was timely filed. [Doone v. Chuuk State Election Comm'n, [2009] FMCSC 9; 16 FSM Intrm. 407 (Chk. S. Ct. App. 2009).]

On May 13, 2009, petitioners filed their second notice of appeal from a purported effective denial of the complaint, which allegedly resulted from the election commission's failure to timely rule on the contest. At trial, the Attorney General stated that the commission had since the court's remand order been investigating the allegations of the contest, prepared a report of its findings, and had noticed a hearing for the presentation of its findings. Petitioners presented no evidence to contradict the Attorney General's assertions, and did not dispute that they had been notified but refused to participate in the hearing. The panel ruled as a matter of law that section 130, which requires the election commission to rule on an election contest within two days of commencement of its special session, was a directory, not a mandatory, requirement. [Doone v. Chuuk State Election Comm'n, [2009] FMCSC 10; 16 FSM Intrm. 459 (Chk. S. Ct. App. 2009).] As a result, the election commission's failure to reach a ruling within the statutory timeframe did not deprive the election commission of jurisdiction so long as the commission was taking reasonable, meaningful steps to decide the contest. Since petitioners offered no evidence to show that the election commission had failed to take meaningful action on their complaint since the court's remand, the panel found that petitioners, who carried the burden of proof, did not prove that administrative remedies had been exhausted. Absent such a showing, the court could not take jurisdiction over the contest. Indeed, if the court had taken jurisdiction over the merits of the case before administrative remedies had been exhausted, it would have circumvented the power vested in the election commission to have primary jurisdiction over election contests. The court wished to avoid having its rulings subjected to appeal for lack of jurisdiction when administrative remedies had not yet been exhausted.

During the trial on the second appeal, the panel also ordered the real parties in interest to be named as parties. The reason for this was that the petitioners did not comply with the court's previous order to name them in its pleadings. Since the court wished to avoid have its rulings later challenged for violating the due process rights of real parties in interest, it raised the issue on its own motion.

Upon completion of trial on the issue of whether there had been an effective denial by the election commission, the court again referred the matter back to the election commission for a ruling on the merits if the complaint was timely filed. Because it did not find that there had been an effective denial giving it jurisdiction over the merits, the court did not address the bases for dismissal raised by the respondents, including the real parties in interest argument that the petitioners had not timely filed a verified complaint with the election commission.

The contest came back to the court for a third time on petitioners' appeal of the election commission's dismissal for lack of jurisdiction based on its finding that a verified complaint had not been filed within five days from the declaration of the result, according to the mandatory deadline set by § 127 of the Election Law.me=name="fnB2" href="#fn2">[2] The court notified the parties that it would hold a trial on the issue of whether the complaint had been timely filed at the election commission. At trial, petitioners produced one witness who offered no testimony to contradict the election commission's finding that the precinct results were tabulated and announced by radio on April 9, 10, and 11. Neither side disputed that petitioners filed their verified complaint on April 17, 2009. After petitioners closed their case-in-chief, respondents moved for dismissal on various grounds and the court set a briefing schedule.

III. ISSUES

Although respondents moved for dismissal on various grounds, the panel finds the issue of whether a complaint was filed with the election commission to be dispositive and therefore need not address the other grounds. Section 127 of the Election Law requires that a verified complaint must be filed within five days after the declaration of the result of the election by the body canvassing the returns. Chk. S.L. No. 3-95-26, § 127. The election commissoun found that the declaration of the result of the election was on April 9, 10, or 11, or all three and therefore petitioners' ied complaint filed on April 17 was untimely.

Petitioners make three argumentsments on appeal from the election commission's dismissal of the complaint for untimeliness. The first is that other complaints had been orally made prior to the written complaint that was filed on April 17. Thus, the same issues that were in the written complaint had been before the election commission within the deadline. Petitioners also contend that the declaration of the result should not be based on the radio announcements of April 9, 10, and 11, but on the certification made on April 13. Finally, petitioners argue that the winner was not declared until April 13, because the final polling numbers from the Saipan precinct were not declared during the April 9, 10 and 11 announcements. Although alleged in their brief, there was no proof of this at trial and it was not disputed that the reason the Saipan results were not declared was because Simina had already achieved an insurmountable margin of victory by the time the Saipan results were tabulated.

IV. ANALYSIS

The first two issues are matters of statutory interpretation, which are issues of law that the court reviews de novo. Farek v. Ruben, [2008] FMCSC 13; 16 FSM Intrm. 154 (Chk. S. Ct. App. 2008). The third issue is an issue of fact, which the court held a trial on. Chk. S.L. No. 3-95-26, § 131.

he issues ares are before the court on a motion to dismiss filed after petitioners closed their case-in-chief. In an election co trial in the appellate division, a respondent may, after presentation of the petitioner's er's case, move for dismissal on the ground that the petitioner has not carried his burden of proof for the relief sought. The court will consider the motion as one analogous to a Civil Procedure Rule 41(b) motion in the trial division. The motion may therefore be made on the ground that upon the facts and the law the petitioner has shown no right to relief. The appellate court, as the trier of facts, may then make findings of fact and conclusions of law and render judgment against the petitioner. Samuel v. Chuuk State Election Comm'n, [2007] FMCSC 2; 14 FSM Intrm. 591, 594-95 (Chk. S. Ct. App. 2007).

Whether an election complaint is timely filed is a matter of great importance in election contests, as an untimely complaint will prevent an adjudicator from ruling on the contest for lack of jurisdiction. An adjudicator's jurisdiction over election contests is limited to the constitutional or statutory provision expressly or impliedly giving it that authority. Phillip v. Phillip, [1999] FMCSC 14; 9 FSM Intrm. 226, 228 (Chk. S. Ct. Tr. 1999); Mathew v. Silander, [1998] FMCSC 4; 8 FSM Intrm. 560, 563 (Chk. S. Ct. Tr. 1998); 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). A strict observance to the steps necessary to give jurisdiction is required, and the jurisdictional facts must appear on the face of a proceeding. Mathew, 8 FSM Intrm. at 563; David, 8 FSM Intrm. at 300g.

Under the Chuuk Election Law, initially, an election contestant must file a verified complaint with the election commission within five days after the declaration of the result of the election by the body canvassing the returns. Chk. S.L. No. 3-95-26, § 127. The deadline for f a cg a complaint with the election commission is mandatory. If the complainant fails to strictly comply with the deadline for filing a verified complaint, the aint will be dismissed for lack of jurisdiction. Kinemarnemary v. Siver, [2008] FMCSC 15; 16 FSM Intrm. 201, 206 (Chk. S. Ct. App. 2008); cf. Aten v. Chuuk State Election Comm'n, [2009] FMCSC 6; 16 FSM Intrm. 390, 392 (Chk. S. Ct. App. 2009) (extending the deadline for filing election complaints beyond five days when it was shown the election commission did not take steps to ensure petitioners could file their complaint on a weekend); see also Kony v. Mori, 6 FSM Intrm. 28, 30 (Chk. 1993) (appellate division can only act within the framework, including the timing provisions, so provided by statute); and see Wiliander v. Mallarme, [1995] FMSC 24; 7 FSM Intrm. 152, 158 (App. 1995) (no estoppel of timing requirements for election contest as a result of national election commission's failure to rule on petition).

Petitioners' first argument is that oral complaints were made before April 13, 2009 when they filed their written, verified complaint. Petitioners contend that these oral complaints were made by voters and election personnel at various polling places during the election and during the tabulation of the results. Section 127 of the Election Law explicitly states that an election contestant must file a verified complaint. Chk. S.L. No. 3-95-26, § 127. An oral complaint dot not satisfy the requirements of a verified complaint, which is a written complaint sworn to under oath. See Black's Law Dictionary 1732-33 (rev. 4th ed. 1968). It was undisputed that the only verified complaint was the one filed on April 17. The petitioners' first argument must therefore be rejected as a matter of law.

Petitioners' second argument, that the certification on April 13, 2007 was the relevant date from which to count the filing deadline, also ignores the explicit language of section 127 stating that a verified complaint must be filed within five days of the declaration of the result. Chk. S.L. No. 3-95-26, § 127. According e unambiguouiguous language of the statute, the pertinent date for calculating the filing deadline is the date the result of the election is declared, not when it is certified. In Cholymay uuk State Election Comm'n[2001] FMCSC 6; , 10 FSM Intrm. 145, 153 (Chk. S. Ct. App. 2001), it was held that the declaration of election result is when the results are made known to the public. The public announcement of the results, not the date of certification, is therefore the date for determining an election contest filing deadline under the Chuuk Election Law. Id. The petitioners' second argument must therefore also be rejected as a matter of law.

Petitioners' last argument, that the results were not actually announced until after April 11, is an issue of fact, which the court held a trial on. In an election contest, the court makes findings of fact based on the total record in the case. Cholymay v. Chuuk State Election Comm'n, [2001] FMCSC 6; 10 FSM. Intrm. 145, 156 (Chk. S. Ct. App. 2001); cf. Chipen v. Chuuk State Election Comm'n, [1998] FMCSC 6; 8 FSM Intrm. 300n, 300p (Chk. S. Ct. App. 1998) (election commission findings of fact relative to the residence, age and location of electors are generally not disturbed). The petitioner has the burden of proof to prove his case by a preponderance of the evidence. Miochy v. Chuuk State Election Comm'n, [2007] FMCSC 42; 15 FSM Intrm. 370, 372 (Chk. S. Ct. App. 2007); In re Lot No. 014-A-21[2003] FMCSC 1; , 11 FSM Intrm. 582, 588-89 (Chk. S. Ct. Tr. 2003). The petitioner satisfies his burden of proof if his evidence is more convincing to the court than that of the respondents. Miochy, 15 FSM Intrm. at 372. Therefore, the petitioners must establish facts in support of their claim by evidence at least sufficient to overbalance any weight of evidence produced by the other parties. Id.

We searched the record for any evidence to contradict the election commission's finding that the election results were announced on April 9, 10, and 11. Petitioners produced none. The court therefore finds that petitioners cannot prove by a preponderance of the evidence that the declaration of the election was after April 11, 2009. Had the panel been persuaded that the declaration was after April 11, it would have remanded the contest back to the election commission for a third time. But whatever its merits, neither the election commission nor the court can take jurisdiction over an election contest when it is not timely filed.

On the facts and the law, petitioners have not shown that they complied with the filing requirements set by Section 127 of the Election Law.

V. CONCLUSION

All appeals of the contest are dismissed. Judgment will be entered in favor of the respondents.

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^[1]In its written order of remand, issued on May 1, [Doone v. Chuuk State Election Comm’n[2009] FMCSC 9; , 16 FSM Intrm. 407 (Chk. S. Ct. App. 2009)] the court explained that although the complaint to the election commission was sufficiently pled it did not name all the real parties in interest. The court ordered petitioners to name all real parties in interest in their pleadings. The reason for this was that the court wanted to avoid any of its rulings being later challenged by the real parties in interest as a violation of their due process rights to defend their interest in the action.
^[2]The court notes that in their briefings, petitioners made various assertions regarding conflicts of interest of counsel for the respondents and of panel members. During all of the proceedings arising from this election contest, however, the only motion raising the issue of a conflict of interest was a motion to disqualify attorney Johnny Meippen from representing the real parties in interest. That motion was denied for the reasons set forth in the court’s written order of May 28, 2009. [Doone v. Chuuk State Election Comm’n, 16 FSM Intrm. 428 (Chk. S. Ct. App. 2009).] The court is aware, however, that the Attorney General’s representation of the election commission under the current system raises an issue with the public as to whether the commission’s rulings will be impartial. The reason is that the continuing employment of some or all members of the Attorney General’s office may depend on an incumbent governor winning the election. This is not the fault of the members of the Attorney General’s office, but an independent counsel would obviously be preferable so that any concerns about conflicts of interest, whether founded or unfounded, may be completely avoided. Although there may be financial constraints limiting the Legislature’s ability to assign an independent counsel to represent the election commission, the speedy and impartial resolution of election disputes may warrant such an appropriation for future elections, and may indeed reduce the final costs to the state and to the parties that arise from prolonged election contests such as this one.