Setile v Chuuk State Election Commission [2013] FMCSC 3; 18 FSM Intrm. 641 (Chk. S. Ct. App. 2013) (12 April 2013)

CHUUK STATE SUPREME COURT APPELLATE DIVISION

CSSC CIVIL APPEAL NO. 002-2013

MIKE SETILE,
Petitioner,

CHUUK STATE ELECTION COMMISSION,
Respondent,

EMILIO SINEM,
Real Party in Interest.
__________________________________________

OPINION

Trial: April 4-9, 2013
Decided: April 9, 2013
Memorandum Entered: April 12, 2013

BEFORE:

Hon. Camillo Noket, Chief Justice, Presiding
Hon. Douglas J. Juergens, Temporary Justice*
Hon. Derensio Konman, Temporary Justice*

*Attorney at Law, Weno, Chuuk

APPEARANCES:

For the Petitioner: Kasio Mida, Jr.

P.O. Box 1480

Kolonia, Pohnpei FM 96941

For the Respondents: Johnny Meippen

P.O. Box 705

Weno, Chuuk FM 96942

For Real Party in Interest: Ben K. Enlet

P.O. Box 1650

Weno, Chuuk FM 96942

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HEADNOTES

Elections - Conduct
All ballots forwarded to absentee voters and not physically received by the Chuuk State Election Commission at its main office before the closing of the polls on election day must be rejected. Setile v. Chuuk State Election Comm'n, 18 FSM Intrm.641, 643 (Chk. S. Ct. App. 2013).

Elections - Conduct
Since the FSM Post Office, Chuuk branch was not the Chuuk State Election Commission's main office on March 5, 2013 and the Chuuk State Election Law's language is mandatory and not discretionary and therefore must be strictly adhered to, counting the thirteen absentee mail-in ballots that were in the post office on March 5, 2013, but that were not physically received at the Chuuk State Election Commission main office until after the closing of the polling places was improper and must be deducted from the totals. Setile v. Chuuk State Election Comm'n, 18 FSM Intrm.641, 643 (Chk. S. Ct. App. 2013).

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COURT'S OPINION

CAMILLO NOKET, Chief Justice:

This appeal arises from the Chuuk State Election Commission's March 18, 2013 denial of Appellant's written appeal.

Background

The Appellant's Complaint petitions the instant Court for declaratory judgment. Appellant claims that the Appellee, Chuuk State Election Commission, received absentee mail-in ballots at its main office after the closing of the polls on election day, and counted said votes to determine the winner of the two representative seats in Election District number nine. Appellant asserts that had Appellee, Chuuk State Election Commission applied the law correctly; Appellant would have won a seat during the election and would therefore not have instituted the instant suit.

Standard of Review

The applicable law in this instance states "All ballots forwarded to absentee voters and not physically received by the Commission at its main office prior to the closing of the polls on election day shall be rejected." Chk. S.L. No. 3-95-26, § 92.

Fer">Findings of Fact

The Court finds that on March 5, 2013, an election took place in Chuuk State. During the aforementioned, election, there were two Representative seats from Election District number nine to the Chuuk State Legislature House of Representatives. Appellant, Mike Setile and Appellee, Emilio Sinem were both candidates for the Representative seats in Election District number nine.

The Court finds that the Chuuk State Election Commission certified the election results for Election District number nine. The certified results awarded the first place 683 votes; second place, 577 votes, and third place 574 votes. Appellee, Emilio Sinem, garnered 577 votes and was certified as securing the second representative seat for Election District number nine.

The Court finds that in tabulating the results for the representative seats, thirteen absentee mail-in ballots were counted. The Court finds, by Chuuk State Election Commission's own admission, that the absentee mail-in ballots were not physically received at the main office of the Chuuk State Election Commission before the close of the polling places on March 5, 2013. The Court finds that said absentee mail-in ballots were "deemed received on time as they were post marked before election day, notwithstanding the fact that they were physically received by the Office after election day." See March 18, 2013 Letter Denying Appellant's Appeal. We find that by the Chuuk State Election Commission's own admission, the standard employed for the tabulation, of the March 5, 2013 absentee mail-in ballots, was whether the absentee mail-in ballot was 'postmarked' prior to the closing of the polling place. The Court finds that Appellant sought relief from the Chuuk State Election Commission on March 12, 2013. The Court finds that said relief was denied on March 18, 2013.

The Court finds that on March 27, 2013, Appellant filed a Complaint for Declaratory Judgment for Violation of CSL 3-95-26 (Appeal Case No. 02-2013), alleging that the counting of the absentee mail-in ballots that were not physically received at the main office of the Chuuk State Election Commission, was improper. The Court finds that Appellant and Appellee are separated by 3 votes. The Court finds that the inclusion or exclusion of the absentee mail-in ballots is sufficient to change the outcome of the election. The Court makes the following conclusions of law based upon the foregoing findings of fact.

Conclusions of Law

The Court concludes that there are no controverted facts and that the hearings and submission of briefs are sufficient to allow an application of the law to the facts in this case.

The Court concludes that Chuuk State Law No. 3-95-26, Section 92 states "All ballots forwarded to absentee voters and not physically received by the Commission at its main office prior to the closing of the polls on Election Day shall be rejected." The Court concludes that the Federated States of Micronesia - Chuuk Branch, Post Office was not the main office of the Chuuk State Election Commission on March 5, 2013. The Court further concludes that language of the Chuuk State Election Law is mandatory and not discretionary and therefore must be strictly adhered to. The Court therefore concludes that the thirteen absentee mail-in ballots, physically received at the Chuuk State Election Commission main office, after the closing of the polling places was improper. The Court concludes that with specific regards to Appellant and Appellee, the absentee mail-in ballots must be deducted from both totals. The Court finds that the result of the aforementioned calculation would be Appellant, Mike Setile garnered 572 votes and Appellee, Emilio Sinem, garnered 571 votes. Based on the foregoing findings of fact and conclusions of law, the Court enters judgment as follows.

Judgment

It is Ordered, Adjudged and Decreed that the Appellant, Mike Setile is the winner of the second representative seats from Election District number nine to the Chuuk State Legislature House of Representatives.

It is Ordered, Adjudged and Decreed that the any certificate issued to the Appellee for the same office, is hereby annulled pursuant to Chuuk State Law No. 3-95-26, Section 135.

It is further Ordered, Adjudged and Decreed that the Chuuk State Election Commission must make out and deliver, to the Chuuk State Supreme Court, a certificate of election, made out to the Appellant, by Monday, April 15, 2013 no later than 8:30 A.M. to allow for the Court to authenticate and seal the certificate pursuant to Chuuk State Law No. 3-95-26, Section 134.

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