Aniol v Chuuk State Election Commission [2009] FMCSC 5; 16 FSM Intrm. 387 (Chk. S. Ct. App. 2009) (1 April 2009)

CHUUK STATE SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. 01-2009

KITELA KITAUO ANIOL,
Appellant/Petitioner

vs.

CHUUK STATE ELECTION COMMISSION,
Appellee/Respondent,

IA UEDA, TRACY SOULENG, and JOE EAS,
Real Parties in Interest.

________________________

OPINION

Trial: March 24-31, 2009
Decided: April 1, 2009

BEFORE:

Hon. Midasy O. Aisek, Associate Justice, Presiding
Hon. Salomon M. Saimon, 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 Petitioner: Ben K. Enlet
P.O. Box 1650
Weno, Chuuk FM 96942

For the Respondent: Charleston Bravo
(Election Commission) Assistant Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

For the Real Parties in Interest: Johnny Meippen
P.O. Box 705
Weno, Chuuk, FM 96942

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HEADNOTES

Elections
Under Chuuk election regulations, stopping the voting at a polling place is authorized if in a precinct board's best judgment an incident creates an imminently extreme and unpreventable danger to human beings, and the election commission's executive director confirms the closing. Aniol v. Chuuk State Election Comm'n, [2009] FMCSC 5; 16 FSM Intrm. 387, 388-89 (Chk. S. Ct. App. 2009).

Elections
The determination of whether a ballot can be counted or not is to be performed by examining the integrity of each individual ballot cast to determine if it is lost, destroyed, or defective, or whether it is capable of tabulation. Aniol v. Chuuk State Election Comm'n, [2009] FMCSC 5; 16 FSM Intrm. 387, 389 (Chk. S. Ct. App. 2009).

Elections
When the court finds that although there was damage to the ballot box, there was no evidence that any of the individual ballots had been rendered unreliable or were otherwise incapable of tabulation, the court will order the ballot box to be delivered to the election commission for a tabulation of cast votes according to the applicable Election Code provisions and election regulations. Aniol v. Chuuk State Election Comm'n, [2009] FMCSC 5; 16 FSM Intrm. 387, 389 (Chk. S. Ct. App. 2009).

Elections
Election Code sections 131 and 132 specifically provide that the Chuuk State Supreme Court appellate division is to hold a trial de novo on an appeal from the election commission, which necessarily means that the appellate division will make its own determinations of fact. The court is therefore not limited to review of the election commission's findings for an abuse of discretion, but is authorized by law to make findings of fact. Aniol v. Chuuk State Election Comm'n, [2009] FMCSC 5; 16 FSM Intrm. 387, 389 (Chk. S. Ct. App. 2009).

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COURT'S OPINION

MIDASY O. AISEK, Associate Justice, presiding:

This was an appeal from the Chuuk State Election Commission's denial of petitioner Kitela Kitauo Aniol's protest of the March 3, 2009 Chuuk state election results. Ms. Aniol was a candidate running for the Chuuk State House of Representatives from Election District No. 1. She sought an order that votes cast in the Northern Namoneas precinct polling place in Honolulu, Hawaii, which were not included in the official results, be tabulated and counted with the final election results.

I. BACKGROUND

The events that lead up to this appeal are as follows. During the March 3, 2009 election, at approximately 11:00 a.m. local time at the Northern Namoneas polling place in Honolulu, Hawaii, an incident occurred when a person was informed that he was not eligible to vote by election commission officials. The person made threatening remarks and picked up the ballot box and dropped it, causing a crack on the side of the ballot box about an inch wide. An election commission official pressed the crack closed. The same official determined to stop the voting at the polling place, which is authorized if in the best judgment of a precinct board the incident created an imminently extreme and unpreventable danger to human beings, and the executive director of the election commission confirms the closing of the poll. Election Regs. R. 11.3. The cast ballots in the ballot box were not counted. The election commission did not meet the next day to decide whether to have a special election at the affected polling place as they were required to do. Id. The unopened, damaged ballot box was returned to Chuuk in the custody of the election commission.

On March 9, 2009, the results of the House election were certified, with petitioner Aniol coming in seventh in votes, 65 votes behind the fifth place candidate. Only the top five candidates are winners. On March 13, 2009, Ms. Aniol filed her verified complaint with the election commission requesting the tabulation of the cast votes from the Northern Namoneas precinct polling place in Honolulu. She alleged that there had been 288 cast votes when the polling place was closed. The election commission denied her March 13, 2009 election complaint on the day of its filing, stating that the votes cast had been rendered unreliable. On March 18, 2009, Petitioner Ms. Aniol filed her notice of appeal of the decision and findings of fact of the Chuuk State Election Commission.

II. FINDINGS

The sole issue in this case was whether the votes cast in the Northern Namoneas polling place should be counted. The Election Code and Regulations provide for various remedies in case ballots are lost, destroyed, or defective. There may be cases where an entire set of ballots are deemed unreliable or defective, but the Election laws specify in numerous provisions that the determination of whether a ballot can be counted or not is to be performed by examining the integrity of each individual ballot cast to determine if it is lost, destroyed, or defective, or whether it is capable of tabulation. See Election Regs. pts. 9.4 (a)-(m); Chk. S.L. No. 3-95-26, §§ 50, 103-16, 108.

In this case, the election commission concluded that all of the ballots cast were incapable of tabulation as a result of the damage to the ballot box. At trial, the court found that although there was damage to the ballot box, there was no evidence that any of the individual ballots had been rendered unreliable or were otherwise incapable of tabulation.

III. CONCLUSION

The court therefore ordered the ballot box to be delivered to the election commission for a tabulation of cast votes according to the applicable Election Code provisions and Election Regulations, which tabulation was to occur as soon as possible but, in any event, was to be completed no later than April 2, 2009 at 3:00 p.m. The court retained jurisdiction solely to grant any further relief arising from its order for tabulation, including the naming of winning candidates.

The court notes that although a partial or complete revote may have been a desirable remedy in this case, such relief was not requested by any of the parties in a timely manner although they had every opportunity to do so. The court therefore fashioned its relief to accommodate what was actually sought by the parties, while bearing in mind the timing constraints for implementing relief.

Finally, the court denies the motion to stay its order for a tabulation of votes that was filed on April 1, 2009. The basis for that motion was that the court exceeded its authority by making its own findings of fact with respect to the integrity of the ballot box and the ballots cast. Sections 131 and 132 of the Election Code specifically provide that the appellate division is to hold a trial de novo on an appeal from the election commission, which necessarily means that the appellate division will make its own determinations of fact. The court was not therefore limited to review of the election commission's findings for an abuse of discretion, but was authorized by law to make findings of fact.