Hallers v Yer [2013] FMCSC 6; 18 FSM Intrm. 644 (Chk. S. Ct. App. 2013) (15 April 2013)

CHUUK SUPREME COURT APPELLATE DIVISION

CIVIL APPEAL NO. 01-2013

ANUCHA STEPHAN HALLERS,
Petitioner,

vs.

ANADER YER and CHUUK STATE ELECTION COMMISSION,
Respondents,

HARRIS RAIN,
Real Party in Interest-Respondent.
_____________________________________________

MEMORANDUM OF DECISION AND ORDER OF DISMISSAL

Trial: April 10-11, 2013
Decided: April 11, 2013
Memorandum Entered: April 15, 2013

BEFORE:

Hon. Camillo Noket, Chief Justice, Presiding
Hon. Douglas J. Juergens, Temporary Justice*
Hon. Chinemerem U. Chukwu, Temporary Justice*

*Attorney at Law, Weno, Chuuk

APPEARANCES:

For the Petitioner: Ben K. Enlet

P.O. Box 1650

Weno, Chuuk FM 96942

Francis K. Sain

P.O. Box 323

Weno, Chuuk FM 96942

For the Respondents: Johnny Meippen, Esq.

P.O. Box 705

Weno, Chuuk FM 96942

For the Real Party in Interest: Stephen V. Finnen, Esq.

P.O. Box 1450

Kolonia, Pohnpei FM 96941

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HEADNOTES

Appellate Review; Elections - Contests
When, at the close of the petitioner's case-in-chief, the respondents move to dismiss the petitioner's case because he had not shown a right to relief, the Chuuk State Supreme Court appellate division will consider the motion to be analogous to a trial division Civil Procedure Rule 41(b) motion to dismiss although the civil procedure rules apply to the trial division and not the appellate division. Such a motion to dismiss may be made on the ground that on the facts and the law the petitioner has shown no right to relief, and the Chuuk State Supreme Court appellate division, as the trier of fact, may then determine the facts and render judgment against the petitioner or may decline to render any judgment until the close of all the evidence. Hallers v. Yer, [2013] FMCSC 6; 18 FSM Intrm. 644, 647 (Chk. S. Ct. App. 2013).

Elections - Contests
When determining whether a petitioner has shown a right to relief in an election contest appeal, the Chuuk State Supreme Court appellate division is not required to view the facts in the light most favorable to the petitioner but may draw permissible inferences, and if it determines that the petitioner has not made out a prima facie case, the real party in interest is entitled to have the case dismissed. Even if a petitioner makes out a prima facie case, the Chuuk State Supreme Court appellate division, as the trier of fact, may, in assessing the evidence on a Rule 41(b) or analogous motion, weigh the evidence, resolve any conflicts in it, and decide for itself where the preponderance of the evidence lies, and when weighing the evidence, the court may view the evidence with an unbiased eye without any attendant favorable inferences, and may sift and balance the evidence and give the evidence such weight as it deems fit, and when it renders judgment on the merits against the petitioner by granting a motion to dismiss after the close of the petitioner's case-in-chief, it must make findings of fact and conclusions of law in a manner analogous to Civil Procedure Rule 52(a). Hallers v. Yer, [2013] FMCSC 6; 18 FSM Intrm. 644, 647 (Chk. S. Ct. App. 2013).

Elections - Recount
When the tabulators, after twenty-five ballots had been tabulated, would compare their tabulations and if the tallies did not agree the tabulators would, if two tallies agreed, adopt the majority figure, and if all three were different, they would adopt the middle figure, these methods used to resolve discrepancies introduce a substantial chance of inaccurate results and these inaccurate results, depending on the closeness of the official outcome, could affect the outcome, which would entitle the petitioner to a recount. Hallers v. Yer, [2013] FMCSC 6; 18 FSM Intrm. 644, 647-48 (Chk. S. Ct. App. 2013).

Elections
The Chuuk State Supreme Court appellate division heartily approves of the method that if there were any discrepancies in tally totals at any of the twenty-five ballot checking points that the tabulating committee would recount the ballots they had counted since the last checking point and not count any further ballots until all tally counts agreed instead of using the methods that introduce a substantial chance of inaccurate results, and, although the Chuuk State Supreme Court appellate division does not require that all future elections use this tabulation method, this method will produce the most accurate result. Hallers v. Yer, [2013] FMCSC 6; 18 FSM Intrm. 644, 648 (Chk. S. Ct. App. 2013).

Elections - Contests
When there was an eighty-five vote difference between the petitioner and the real party in interest; when, weighing the evidence with an unbiased eye, the Chuuk State Supreme Court appellate division determined that the petitioner did not show that the possible tabulation inaccuracies, even in the unlikely event that they were all in the real part in interest's favor, were enough that there was a substantial chance that the election's outcome was affected; and when, even if the Chuuk State Supreme Court appellate division were to view the facts in the light most favorable to the petitioner and gave the petitioner the benefit of all reasonable inferences, it still would not have been more likely than not that if a more accurate vote count were obtained through a recount the vote totals would have changed enough so that there was a substantial chance that the election's outcome would be affected; the petitioner failed to carry his burden of proof to show that upon the facts and the law he had a right to relief and the Chuuk State Supreme Court appellate division therefore may, on motion made after the presentation of the petitioner's case-in-chief, dismiss the case. Hallers v. Yer, [2013] FMCSC 6; 18 FSM Intrm. 644, 648 (Chk. S. Ct. App. 2013).

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COURT'S OPINION

CAMILLO NOKET, Chief Justice:

The petitioner, Anucha Stephan Hallers (Steven Hallers), sought a court order requiring the respondent Chuuk State Election Commission to recount certain ballot boxes in Election Districts 2, 3, and 4 in which the tabulation was alleged to be deficient. At the close of the petitioner's case at trial, the respondent-real party in interest, Harris Rain, joined by respondent Chuuk State Election Commission and respondent Anader Yer (in his capacity as Chairman of the Election Commission), moved to dismiss the petitioner's case because he had not shown a right to relief. We granted that motion from the bench and this written order memorializes our oral dismissal. Our reasoning follows.

I. Background

In the March 5, 2013 election, there were four candidates for the two House of Senate seats for the Southern Namoneas, with the top two vote-getters being elected Senators. In the official results, candidate Nelson Stephen had the highest vote total (4,606), respondent Rain had the second highest total votes (3,785), and Hallers had the third highest total (3,700). The State Election Commission declared Stephen and Rain the winners.

Hallers petitioned the Chuuk Election Commission for a recount of all votes for Election Districts 2, 3, and 4 with the exception of the ballot boxes for Sapore, Penoir, Penienuk, the Guam special polling place and the Honolulu polling place. He alleged that there were irregularities in the tabulation of the ballot boxes for which he sought a recount. Hallers contended that when the tabulators for the challenged ballot boxes stopped to check their tallies after every twenty-five votes, if all three tabulators did not agree on the total for Rains that they choose the higher figure for Rains and that the tabulators ignored his poll watchers' objections that the tabulators' figures were inaccurate. Hallers contended that these discrepancies, which always seemed to be in Rain's favor, were enough to make it likely that he, instead of Rain, was the actual winner.

The Election Commission denied Hallers' petition because it did not have the authority to order a recount. This ruling was correct. Under the Election Law of 1996, only a court, not the Election Commission, has the authority to order a recount. Chk. S.L. No. 3-95-26, § 120 ("a recount . 0;. 6hall be conducted only only upon the order of a court of competent jurisdiction").

Hallers then filed his election contest petition in the Chuuk State Supreme Court appellate division. Hallers asked us to order a recount using the court-approved method of vote counting and asked that we issue an order securing the challenged ballot boxes until this case could be concluded. Our March 27, 2013 order secured those ballot boxes.

At the start of trial on April 10, 2013, we heard Rain's motion to dismiss this case because Hallers' April 4, 2013 amended complaint was, in his view, not specific enough for Rain to know what he had to defend. We denied that motion because the original March 21, 2013 complaint with its affidavit and supporting exhibits along with the April 4, 2013 amendment to the original complaint, gave the respondents adequate notice of the factual allegations that formed the basis of the election contest petition. The election contest then proceeded to trial as the Election Law of 1996 requires. Chk. S.L. No. 3-95-26, §§ 130-131

II. Motion to Dismiss at the Close of Hallers' Evidence

At the close of Hallers' case-in-chief, Rain, joined by Yer andChuuk State Election Commission, moved to dismiss Hallers' ers' case because he had not shown a right to relief. Although the civil procedure rules apply to the trial division and not the appellate division, we considered this motion to be analogous to a Civil Procedure Rule 41(b) motion to dismiss in the trial division. Samuel v. Chuuk State Election Comm'n, [2007] FMCSC 2; 14 FSM Intrm. 591, 594 & n.1 (Chk. S. Ct. App. 2007). Such a motion to dismiss may be made on the ground that on the facts and the law the petitioner has shown no right to relief. Id. at 595. We, as the triers of fact, "may then determine the facts and render judgment against the petitioner or may decline to render any judgment until the close of all the evidence." Id.

In determining whether a plaintiff, or in this case the petitioner, has shown a right to relief, we are not required to view the facts in the light most favorable to the petitioner but may draw permissible inferences, and if we determine that the petitioner has not made out a prima facie case, the defendant is entitled to have the case dismissed. Peter v. Jessy, [2010] FMCSC 5; 17 FSM Intrm. 163, 171 (Chk. S. Ct. App. 2010) (interpreting Civil Rule 41(b)). Even if a plaintiff (or petitioner) makes out a prima facie case, we, the triers of fact, may, in assessing the evidence on a Rule 41(b) or analogous motion, weigh the evidence, resolve any conflicts in it, and decide for ourselves where the preponderance of the evidence lies, and when weighing the evidence, we may view it with an unbiased eye without any attendant favorable inferences, and we may sift and balance the evidence and give it such weight as we deem fit. Id. And, "[w]hen we render judgment on the merits against the petitioner by granting a motion to dismiss after the close of the petitioner's case-in-chief, we must make findings of fact and conclusions of law in a manner analogous to Civil Procedure Rule 52(a)." Samuel, 14 FSM Intrm. at 595.

III. Findings of Fact and Conclusions of Law

Based on the testimony and evidence in Hallers' case-in-chief, we find that, for a number of Southern Namoneas ballot boxes tabulated on the night of March 5, 2013, the tabulators, after twenty-five ballots and been tabulated, would compare their tabulations and if the tallies did not agree the tabulators would, if two tallies agreed, adopt the majority figure, and if all three were different, they would adopt the middle figure. According to Hallers' poll-watchers who testified, some of the challenged ballot boxes did not have any discrepancies in the tally figures, while other boxes would, virtually every time, differ by one vote at the twenty-five ballot checkpoint, with Rain invariably getting one vote higher than the number Hallers' poll-watcher, by his own independent tally, thought Rain had received. Other times there was sometimes a one-vote discrepancy and sometimes all figures agreed. Hallers and his poll-watchers complained about these tabulating methods, and the next day, these tabulating methods were no longer used and Hallers does not dispute the accuracy of the tally counts and tabulations for the boxes counted from then on.

In Cholymay v. Chuuk State Election Comm'n, [2001] FMCSC 6; 10 FSM Intrm. 145, 157 (Chk. S. Ct. App. 2001), where the tabulators used the same two-of-three and middle figure methods as were used here on March 5, 2013, to resolve discrepancies between their tally counts at the twenty-five ballot checkpoints, "[w]e concluded that the methods used to resolve discrepancies introduced a substantial chance of inaccurate results, and because of the closeness of the official results (a one vote difference . . .) these inaccuratelresuoul could have affected the outcome." We therefore ordered a recount in that case. For the recount, the parties agreed that if there were any discrepancies in tally totals at any of the [y-fivlot] checking poig points tnts that instead of using the methods the court had just found to introduce a substantial chance of inaccurate results, the tabulating committee would instead recount the ballots they had counted since the last checking point and not count any further ballots until all tally counts agreed. We thanked the parties for their agreement on a method designed to achieve an accurate result, and we heartily approved of the method chosen.

Cholymay, 10 FSM Intrm. at 157. Although, when we decided Cholymay, we did not require that all future elections use the tabulation method that we "heartily approved," the Cholymay method will produce the most accurate result. We still heartily endorse that method. This is the "court-approved" method that Hallers wants used to recount the challenged ballot boxes. However, "[n]o irregularity or improper conduct . . . shall voidlection result,sult, unless such irregularity or misconduct resulted in a defendant [the real party in interest] being declared either elected or tied for election." Chk. S.L. No. 3-95-26, § 1p>

In this case, tse, there was an eighty-five vote difference between Hallers and Rain (while in Cholymay there was only a one-vote difference).hing the evidence with an unbiased eye, we determined that that Hallers did not show that the possible tabulation inaccuracies, even in the unlikely event that they were all in Rain's favor, were enough that there was a substantial chance that the election's outcome was affected - that Rain had at least eighty-five fewer votes while Hallers' total remained the same. Even if we were to view the facts in the light most favorable to Hallers and gave Hallers the benefit of all reasonable inferences in his favor, it still would not have been more likely than not that if a more accurate vote count were obtained through a recount the vote totals would have changed enough so that there was a substantial chance that the election's outcome would be affected; that is, that Hallers and Rain would have been tied or that Hallers would have been elected.

Since it was not more likely than not that the alleged irregularities or inaccuracies, if corrected by a recount, could have affected the election's outcome - could have resulted in a tie or in Hallers' election - Hallers, the election contestant, failed to carry his burden of proof to show that upon the facts and the law he had a right to relief, and we therefore may, on motion made after the presentation of the petitioner's case-in-chief, dismiss the case. Samuel, 14 FSM Intrm. at 596.

IV. Conclusion

Accordingly, we granted Harris Rain's motion to dismiss this election contest and dismissed Anucha Stephan Hallers' appeal.

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