Narruhn v Chuuk State Election Commission [2013] FMCSC 5; 18 FSM Intrm. 584 (Chk. S. Ct. Tr. 2013) (1 March 2013)

CHUUK STATE SUPREME COURT TRIAL DIVISION

CSSC CA NO. 031-2013

ALEXANDER R. NARRUHN and WILLIE W3 WILLIANDER,
Plaintiffs,

vs.

CHUUK STATE ELECTION COMMISSION, Commissioner JOHN YLIAIZA, Commissioner RUFUS PETEWON, Commissioner SONDAK GIDIEON, Commissioner ANGELINO ROSOKOW, and Commissioner ANANTER YEAR,
Defendants.

_____________________________________________

ORDER GRANTING PRELIMINARY INJUNCTION

Repeat R. Samuel
Associate Justice

Hearing: February 27-28, 2013
Decided: February 28, 2013
Memorandum Entered: March 1, 2013

APPEARANCES:

For the Plaintiffs: Kasio Mida, Jr., Esq.

Ramp & Mida Law Firm

P.O. Box 1480

Kolonia, Pohnpei FM 96941

For the Defendants: Johnny Meippen, Esq.

P.O. Box 705

Weno, Chuuk FM 96942

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HEADNOTES

Civil Procedure - Injunctions
A court may issue a preliminary injunction where the following four factors are met and the exigencies of the situation demand such relief: 1) a substantial likelihood of success on the merits of the case; 2) a substantial threat of irreparable injury if the preliminary injunction is denied; 3) the benefit to the plaintiff in obtaining the injunction outweighs the harm the defendants will experience; and 4) granting the preliminary injunction will not disserve the public interest. Narruhn v. Chuuk State Election Comm'n, [2013] FMCSC 5; 18 FSM Intrm. 584, 587 (Chk. S. Ct. Tr. 2013).

Civil Procedure - Injunctions
The moving party bears the burden of proof in a motion for injunctive relief. Injunctive relief is preventative in nature and it is not necessary to wait for the actual occurrence of the injury. Narruhn v. Chuuk State Election Comm'n, [2013] FMCSC 5; 18 FSM Intrm. 584, 587 (Chk. S. Ct. Tr. 2013).

Civil Procedure - Injunctions - Likelihood of Success
When, even in the absence of a statute mandating the Election Commission's impartiality, the Commission must still be impartial, the plaintiffs have shown a likelihood of prevailing on the merits of their due process claim since the court is not persuaded by the defendants' contentions that since 2005, a "status quo" has been established in which the Commissioners have traveled to the polling places in order to conduct the election, and consequently, the this new "status quo" must remain undisturbed. Narruhn v. Chuuk State Election Comm'n, [2013] FMCSC 5; 18 FSM Intrm. 584, 587 (Chk. S. Ct. Tr. 2013).

Civil Procedure - Injunctions - Irreparable Harm
Since the deprivation of a fundamental right outweighs any threatened harm that an injunction might cause a defendant, the plaintiffs have shown that they are likely to suffer irreparable harm in the absence of a preliminary injunction when the Election Commissioners are scheduled to fly out on March 1, 2013, to conduct the March 5, 2013 elections, which is a clear demonstration of an imminent harm and the harm is actual as the harmful conduct will occur allowing for the Commissioners to bathe in the appearance of impropriety constituting irreparable harm. Narruhn v. Chuuk State Election Comm'n, [2013] FMCSC 5; 18 FSM Intrm. 584, 587-88 (Chk. S. Ct. Tr. 2013).

Elections - Conduct
The Commissioners are tasked with a duty that includes the basic administrative planning of an election. Poor planning does not constitute an emergency, and the Commissioners must plan accordingly to ensure that they are carrying out their duties as assigned. To facilitate the process, state law provides that the Commissioners appoint people to conduct the election. Narruhn v. Chuuk State Election Comm'n, [2013] FMCSC 5; 18 FSM Intrm. 584, 588 (Chk. S. Ct. Tr. 2013).

Civil Procedure - Injunctions - Balance of Injuries; Elections - Conduct
When the Commissioners' travel authorization was for travel originating in Chuuk on March 1, 2013, and therefore, any prior expenditure of funds, not directly attributable to the travel, cannot be then ascribed to a preliminary injunction's issuance; when the status quo for state government travel is to purchase full fare tickets which are therefore refundable with a minimal fee imposed and when hotel accommodations and car rentals are generally fully refundable given twenty-four hour notice and other costs associated with the election can generally be transferred to the parties that will travel in place of the Commissioners; when the Commissioners' impartiality is necessary to protect the elections' integrity while protecting the plaintiff candidates' and other individuals' fundamental rights; and when the Commissioners stated that they will attempt to be "honest" but that alone is insufficient because impartiality is required, the balance of the equities tips overwhelmingly in the plaintiffs' favor to enjoin the Commissioners' travel to supervise polling places. Narruhn v. Chuuk State Election Comm'n, [2013] FMCSC 5; 18 FSM Intrm. 584, 588-89 (Chk. S. Ct. Tr. 2013).

Civil Procedure - Injunctions - Public Interest; Elections - Conduct
Allowing the Election Commissioners to travel to conduct the elections will not serve the public interest since the commissioners' need to be physically present at the polling sites to conduct the election is a mischaracterization of the law because subordinate officers and employees are designated duties for the efficient performance of functions and duties and because the law requires impartiality, whether explicitly or implicitly, and the Commissioners' physical presence at the polling sites defeats impartiality and clouds the Election Commission with the appearance of impropriety. Consequently, an injunction will serve the public interest in a manner, which preserves the integrity of elections by ensuring that the Election Commissioners remain impartial while being available for any necessary quorums and require adequate planning for the elections. Narruhn v. Chuuk State Election Comm'n, [2013] FMCSC 5; 18 FSM Intrm. 584, 589 (Chk. S. Ct. Tr. 2013).

Elections - Conduct
State election commissioners are enjoined from traveling from Chuuk for the purposes of conducting the election at the voting sites and from appearing in person at the voting locations. Narruhn v. Chuuk State Election Comm'n, [2013] FMCSC 5; 18 FSM Intrm. 584, 589-90 (Chk. S. Ct. Tr. 2013).

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COURT'S OPINION

REPEAT R. SAMUEL, Associate Justice:

Plaintiff, Alexander R. Narruhn and Willie W3 Williander ("Plaintiffs"), filed a Complaint for Injunctive and Declaratory Relief, and applied for a Preliminary Injunction.

The preliminary injunction having been granted and the court having considered all pleadings, memoranda, declarations and other exhibits filed herein, oral motions and being fully advised in the premises, it is now ordered, adjudged, and decreed as follows:

I. Background

On February 26, 2013, Plaintiffs filed their Complaint. The thrust of Plaintiffs' Complaint is that Defendants are preparing to fly to polling places in order to conduct the election by running the polling places in violation of the Plaintiffs' due process rights. Contemporaneously with their Complaint, Plaintiffs filed a Motion for Preliminary Injunction.

The Motion expands on the Complaint themes asking the Court to issue a preliminary injunction to enjoin the Defendants from traveling abroad to actually conduct the polling places for the upcoming general election.

On February 27, 2013, the Court entertained arguments in the instant matter. At that time, the Defendants requested a continuance to secure counsel. The Court granted a thirty (30) minute recess to accommodate the request.

When court resumed, the Chuuk State Attorney General's office was present on behalf of the Defendants. At that time, Defense counsel requested a continuance. Defense argued that they were in the process of recruiting legal counsel and that despite the fact that the current budget does not allow for private counsel, a reprogramming request could be effectuated to ensure that the funding for said counsel would not prevent any further delay.

The Court granted the continuance with the condition that the Commissioners remain in the jurisdiction pending the determination of the preliminary injunction hearing.

On February 28, 2013, court resumed with the Chuuk State Attorney General's office moving to withdraw. The Court granted said motion.[1] Johnny Meippen, Chuuk State Director of Marine Resources, entered his appearance to represent the Defendants. There was no objection from Plaintiffs' counsel.[2]

II. Standard of Review

A court may issue a preliminary injunction where the following four factors are met and the exigencies of the situation demand such relief: (1) a substantial likelihood of success on the merits of the case; (2) a substantial threat of irreparable injury if the preliminary injunction is denied; (3) the benefit to the plaintiff in obtaining the injunction outweighs the harm the defendants will experience; and (4) granting the preliminary injunction will not disserve the public interest. Ponape Enterprises Co. v. Bergen, [1993] FMSC 52; 6 FSM Intrm. 286, 288 (Pon. 1993); Ponape Transfer & Storage v. Federated Shipping Co., [1987] FMSC 14; 3 FSM Intrm. 174, 177 (Pon. 1987). The moving party bears the burden of proof in a motion for injunctive relief. Injunctive relief is preventative in nature and it is not necessary to wait for the actual occurrence of the injury.

The Plaintiffs filed a motion seeking a preliminary injunction and for expedited hearing[3] in the instant case. At the time that the preliminary injunction was issued, the Court indicated that a written order would issue, and it does so now.

III. Legal Analysis

Likelihood of Success on the Merits of the Complaint

Plaintiff cites case law to bolster the contention that in the absence of a statute mandating the impartiality of the Commission, the Commission must still be impartial. The Defendants do not contend that the Plaintiffs cannot prevail in their action rather Defendants argue that since 2005, a "status quo" has been established in which the Commissioners have traveled to the polling places in order to conduct the election, and consequently, the this new "status quo" must remain undisturbed.

The Court is not persuaded by the Defendants' contentions. Judged against these principles, Plaintiffs have shown a likelihood of prevailing on the merits of their due process claim.[4]

Irreparable Harm

Courts have ruled that the deprivation of a fundamental right outweighs any threatened harm that an injunction might cause a defendant. Murphree v. Winter, 589 F. Supp. 374, 381-82 (S.D. Miss. 1984).

Plaintiffs have shown that they are likely to suffer irreparable harm in the absence of a preliminary injunction. The Commissioners are scheduled to fly out on March 1, 2013, with the elections earmarked for March 5, 2013, which is a clear demonstration of an imminent harm. Further, the harm is actual as the harmful conduct will occur allowing for the Commissioners to bathe in the appearance of impropriety constituting irreparable harm.

Benefit to Plaintiffs in Obtaining the Injunction

To demonstrate the possible injury or inconvenience to the defendant, Defense called Commissioner Rufus Petewon to the stand. Petewon testified that he is currently employed at the Chuuk State Legislature but is also an Election Commissioner. He has served as a Commissioner for over six years and assisted in the 2005 elections. He outlined what he considered to be the duties of the Commissioners as being to deliver the ballot boxes to the board members, explain the duties before and after the election, make certain that those designated individuals are adequately supervised and to ensure that in the event that something occurs on the day of the election, a suitable substitute or replacement is found.

Petewon further testified that if something were to happen to the physical polling site, for example, unpaid rent, the Commissioners must ensure that a suitable replacement site is secured. Further, were a designated employee unable to perform, the Commissioner would be responsible for securing an alternate.

On cross, Plaintiff testified that at the 2009 election, he flew to Hawaii to conduct the election, and while there, he closed the polling place at 11am instead of at 5 pm. He elaborated on what happened by mentioning that he did contact the Commissioners to inform them of the happenings prior to the closing of the polling place. Petewon further testified that although the law doesn't state that the supervisor for the poll must be a Commissioner, it has been the practice.

Elections have been conducted in Chuuk State for numerous years. Four[5] years is sufficient time for the Commissioners to plan. Additionally, in the event that a scenario such as the hypothetical illustrated by Defendant, of unpaid rent, should arise, such a problem would require the funds be routed and could be effectuated more expeditiously were the Commissioners in Chuuk. Further, contingencies should be established well in advance of the election to ensure that minimal disruptions occur. The Commissioners are tasked with a duty, and this duty includes the basic administrative planning of an election. Poor planning does not constitute an emergency, and the Commissioners must plan accordingly to ensure that they are carrying out their duties as assigned. To facilitate the process, Chuuk State Election Law No. 3-95-26 provides that the Commissioners can appoint people to conduct the election. This provision should allow for the elimination of the inconveniences cited by the Defense and should allow for the dispersal of delegable duties to free up the Commissioners for the more crucial decisions.

Defense further argued that per diem checks have already issued and a portion of the money has been expended and cannot be repaid in the event that the Commissioners are not permitted to travel. When asked to elaborate on the specific items the money had been spent on, Defense was unable to articulate, rather stated that "travel stuff" was acquired. For clarification purposes, the Court must highlight that the travel authorization was for travel originating in Chuuk on March 1, 2013 and therefore, any prior expenditure of funds, not directly attributable to the travel, cannot be then ascribed to the issuance of the preliminary injunction. Defendants further contend that there might be penalties imposed by the airlines. The Court disagrees. The status quo for Chuuk State Government travel is for the Government to purchase full fare tickets. These tickets are therefore refundable with a minimal fee imposed. Hotel accommodations and car rentals are generally fully refundable given twenty-four (24) hour notice. Other costs associated with the election can generally be transferred to the parties that will travel in place of the Commissioners.

Plaintiffs contend that they will suffer because the same Commissioners running the polling places will be the same ones to be appealed to. Further, Plaintiffs contend that a quorum will not be attainable if the injunction does not issue.

The Court finds that impartiality of the Commissioners is necessary to protect the integrity of the elections while protecting the fundamental rights of the Plaintiffs and other individuals. The Commissioners stated that they will attempt to be "honest" when impartiality is required, but that alone is insufficient. The balance of the equities tips overwhelmingly in Plaintiffs' favor.

Public Interest

The Court believes that allowing the Election Commissioners to travel to conduct the elections will not serve in the public interest.

For the Court to deny the preliminary injunction would have the effect of failing to safeguard the court's power to render a meaningful decision after a trial on the merits. Further, the movant has carried the burden of persuasion by a clear showing.

The Court inquired of the Commissioners as to how they plan to remain impartial in the event that an appeal is filed, and the Commissioner testified that they would just attempt to be "honest." The Court is not persuaded by this argument.

Significant differences exist between the Chuuk State Election Law and the conduct at issue here. Defendants contend that it is their duty to conduct and supervise all State elections, including, but not limited to, the transportation of the ballot boxes to the site, opening the polls, standing by the ballot boxes, passing out the ballots, lining people up, making sure that people are in the appropriate places, ensure that the polling place is closed and making any decisions outside the scope of the authority of the poll workers and all these duties can only be provided by the Commissioners being physically present at the polling sites. The Court finds that this is a mischaracterization of the law. As noted, Election Law Chk. S.L. No. 3-95-26, § 6, thees of allows for the the designation subordinate officers and employees for the efficient performance of functions and duties. Further, the law requires impartiality, whether explicitly, or implicitly and the physical presence of the Commissioners, at the polling sites, defeats impartiality and clouds the Election Commission with the appearance of impropriety.

The policy considerations that must be considered have already been addressed by the Court. The instant suit was filed on behalf of the Plaintiffs, however, a favorable ruling will have resounding effects on the State as a whole. Consequently, an injunction will serve the public interest in a manner, which preserves the integrity of elections by ensuring that the Election Commissioners remain impartial while being available for any necessary quorums and require adequate planning for the elections.

IV. Conclusion

For the foregoing reasons, the Court grants Plaintiffs' Motion for Preliminary Injunction. It is therefore ordered that Defendants, are hereby restrained and enjoined from:

1. Traveling from the State of Chuuk, for the purposes of conducting the election at the voting sites;

2. Appearing in person at the voting locations;

3. Security in the amount of $3,000 to cover (a) any and all fees imposed by United Airlines, in refunding the purchased tickets; (b) any and all fees imposed by the car rental company for the cancellation of the rental vehicle, if any; (c) any and all fees imposed by the hotel for the cancellation of the accommodations, must be posted by the Plaintiff.

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^[1] The Chuuk State Attorney General had issued repeated memorandums to the Election Commission asking that the Commissioners allow the Executive Director to perform the actual conduction of the elections and refrain from traveling.

^[2] Plaintiff indicated that there would be no objection solely in the interest of expediting the matter.

^[3] The Commission failed to provide a list reflecting the names of those who would be traveling to the polling sites with the requisite 30 days notice. The late publishing of the names prevented the Plaintiffs from having sufficient response time.

^[4] This is not a suggestion that the Defendants have no possibility of prevailing in this case.

^[5] Or two years, depending on the election.