Rayphand v Chuuk State Election Commission [2009] FMCSC 16; 16 FSM Intrm. 540 (Chk. S. Ct. App. 2009) (19 August 2009)

CHUUK STATE SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. 05-2009

ABRAHAM S. RAYPHAND, DOMINIC SIGBERT and LEKINIOCH ELECTION COMMISSION,
Appellants/Petitioners,

vs.

CHUUK STATE ELECTION COMMISSION,
Appellee/Respondent,

INOS WALTER,
Real Party in Interest.

__________________

ORDER OF DISMISSAL

Oral Argument: August 17, 2009
Decided: August 19, 2009

BEFORE:

Hon. Keske S. Marar, Associate Justice, Presiding
Hon. George Z. Isom, Temporary Justice*
Hon. Derensio Konman, Temporary Justice*

* Attorney at Law, Weno, Chuuk

APPEARANCES:

For the Petitioners/Appellants: George Hauk
P.O. Box 1405
Weno, Chuuk FM 96942

Sapuro J. Rayphand
P.O. Box 576
Weno, Chuuk FM 96942

For the Respondent/Appellee: Charleston Bravo
(State Election Comm'n) Assistant Attorney General
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

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HEADNOTES

Administrative law  Judicial Review; Elections
Before the appellate division proceeds to the merits of any action filed as an election contest, the court should determine if it has subject matter jurisdiction because the appellate division has jurisdiction over election contests only to the extent that a constitutional or statutory provision expressly or impliedly gives it that authority. Rayphand v. Chuuk State Election Comm'n, [2009] FMCSC 16; 16 FSM Intrm. 540, 542 (Chk. S. Ct. App. 2009).

Administrative law  Judicial Review; Elections
The appellate court's authority to hear an election contest arises when there is an appeal from the election commission's ruling on a complaint filed pursuant to section 127, which requires a contestant to file a verified statement of contest with the election commission within five days after the declaration of the election result by the body canvassing the returns thereof. For the appellate division to take subject matter jurisdiction in an election contest, the appellants must have appealed from the election commission's ruling on a complaint that was filed within five days of the declaration of an election's results. But a complaint raising issues regarding an election, but before an election result has been declared, is not an election contest. Rather, jurisdiction over appeals of agency decisions, including those of the state election commission, is vested in trial division. Rayphand v. Chuuk State Election Comm'n, [2009] FMCSC 16; 16 FSM Intrm. 540, 542 (Chk. S. Ct. App. 2009).

Administrative law  Judicial Review; Elections
When the appellants dispute the Election Commission's authority to nullify the results of a municipal mayoral election and reschedule the election, the appellants are not contesting the results of any election, especially since an appellant was the first election's declared winner; rather, the appellants dispute the state election commission's authority to nullify the first election's results and order a new election. Since the Election Law does not contemplate Appellate Division jurisdiction over disputes that arise outside the timeframe set by section 127 and since the appellants are not appealing from an election commission decision on an election complaint that was filed in compliance with section 127, the appellate court has no jurisdiction over the matter pursuant to sections 130 and 131 of the Election Law, which are the only provisions in the Election Law that provide for original jurisdiction over election matters in the appellate division. Rayphand v. Chuuk State Election Comm'n, [2009] FMCSC 16; 16 FSM Intrm. 540, 542-43 (Chk. S. Ct. App. 2009).

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COURT'S OPINION

KESKE S. MARAR, Associate Justice Presiding:

I. BACKGROUND

This matter was filed in the appellate division of the Chuuk State Supreme Court on July 23, 2009, as an appeal of the Chuuk State Election Commission's July 13, 2009 decision to nullify the result of the June 2, 2009 Lekinioch Municipal Mayoral Election and reschedule the election for August 25, 2009. Real party in interest Inos Walter previously served two terms as mayor of Lekinioch and was seeking to run for a third term in the June 2 election. Prior to the election, appellant Lekinioch Election Commission and Dominic Sigbert, in his official capacity as Lekinioch municipal election commissioner, prohibited the name of Walter from being placed on the mayoral ballot based on a determination that the Lekinioch Municipal Constitution prohibited a person from being mayor for more than two terms. The election proceeded without Walter's name on the ballot and appellant Abraham S. Rayphand was the declared winner. This appeal is from the Election Commission's ruling that a new election was necessary because Walter should have been allowed to have his name placed on the ballot.

On August 17, 2009, the court held a hearing. During the hearing, the panel raised a motion as to whether it had subject matter jurisdiction over the matter. After oral argument on the motion, the panel found that the matter was not an election contest over which it had jurisdiction pursuant to the Election Law, see Chk. S.L. No. 3-95-26, §§ 130-131.case was therefore fore dismissed the case for lack of subject matter jurisdiction.

II. DISCUSSION

Before the appellate division proceeds to the merits y action filed as an electilection contest, the court should determine if it has subject matter jurisdiction. Kinemary v. Siver, [2008] FMCSC 15; 16 FSM Intrm. 201, 205 (Chk. S. Ct. App. 2008); Murilo Election Comm'r v. Marcus, [2007] FMCSC 15; 15 FSM Intrm. 220, 224 (Chk. S. Ct. App. 2007) (in an election contest, the Appellate Division must address motions to dismiss for lack of subject matter jurisdiction before proceeding to a trial on the merits).

The Appellate Division has jurisdiction over election contests only to the extent of a constitutional or statutory provision expressly or impliedly gives it that authority. Kinemary, 16 FSM Intrm. at 205. Therefore, if the Appellate Division has original jurisdiction to decide an election matter, there must be a specific constitutional or statutory provision giving the appellate division that authority. David v. Uman Election Comm'r, [1998] FMCSC 6; 8 FSM Intrm. 300d, 300h (Chk. S. Ct. App. 1998).

The Appellate Division's subject matter jurisdiction over election contests is provided for in the Chuuk State Election Law of 1996, section 123 et seq. The appellate court's authority to hear an election contest arises when there is an appeal from the election commission's ruling on a complaint filed pursuant to section 127. See Chk. S.L. No. 3-95-26, §§ 130-131. Section 127 requires a contestant to file a verified statement of contest with the election commission within five days after the declaration of the result of the election by the body canvassing the returns thereof." Chk. S.L. No. 3-95-26, § 127. For the Appellate Division to take subject matter jurisdiction in an election contest, the appellants must therefore appeal from the election commission's ruling on a complaint that was filed within five days of the declaration of the results of an election. Chk. S.L. No. 3-95-26, § 127; Doone v. Chuuk State Election Comm'n, [2009] FMCSC 14; 16 FSM Intrm. 513 (Chk. S. Ct. App. 2009) (order of dismissal entered on July 22, 2009) (neither the state election commission nor the Appellate Division has jurisdiction over an election complaint that is not timely filed pursuant to § 127).

A complaint raising issues regarding an election, but before an election result has been declared, is not an election contest. See Kinemary, 16 FSM Intrm. at 206 ("it is axiomatic that an election contest only arises once the results of the election are known"). Rather, jurisdiction over appeals of agency decisions, including those of the state election commission, is vested in Trial Division. Kinemary, 16 FSM Intrm. at 207 (citing Chk. S.L. No. 190-08, § 18; Aizawa v. Chuuk State Election Comm'r, [1998] FMCSC 5; 8 FSM Intrm. 245, 247 (Chk. S. Ct. Tr. 1998)).

In this case, the appellants dispute the authority of the Election Commission to nullify the results of the June 2, 2009 Lekinioch Municipal Mayoral Election and reschedule the election for August 25, 2009. Appellants are not contesting the results of any election. Indeed, appellant Rayphand was the declared winner of the June 2, 2009 election. Rather, the appellants dispute the state election commission's authority to nullify the results of the June 2, 2009 election and order a new election. The Election Law does not contemplate jurisdiction in the Appellate Division of disputes that arise outside the timeframe set by section 127. There is no showing in this case that appellants are appealing from a decision by the election commission on an election complaint that was filed in compliance with section 127, and the court takes no position at this time on the issue of its jurisdiction if there was a showing that this is an appeal from a section 127 complaint.

The court concludes that it has no jurisdiction over this matter pursuant to sections 130 and 131 of the Election Law, which are the only provisions in the Election Law that provide for original jurisdiction over election matters in the Appellate Division.

III. CONCLUSION

This case was dismissed for lack of subject matter jurisdiction.

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