Selifis v Robert [2017] FMCSC 4; 21 FSM R. 352 (Chk. S. Ct. App. 2017) (26 September 2017)

CHUUK STATE SUPREME COURT APPELLATE DIVISION

CSSC CIVIL APPEAL CASE NO. 02-2017
(CSSC Civil Action No. 029-2017)

NAHOY SELIFIS as Chairman and ANTASIO )
BISEK as Executive Director of the Chuuk State )
Election Commission, and JESSI MORI as Director )
of Department of Administrative Services, )
)
Appellants, )
)
vs. )
)
MIKE ROBERT, as Election Manager, and MOSES )
PEDRO, as Chairman of Uman Election )
Commission, )
)
Appellees, )
)
AKAMPO NAKASHIMA, )
)
Real Party in Interest. )
_______________________________________________ )

ORDER DENYING APPELLEE’S MOTION TO DISMISS

Hearing: September 14, 2017
Decided: September 26, 2017

BEFORE:

Hon. Jayson Robert, Associate Justice, presiding
Hon. Larry Wentworth, Special Temporary Justice*
Hon. Bethwell O’Sonis, Special Temporary Justice**

*Associate Justice, FSM Supreme Court
**Attorney at Law, Weno, Chuuk

APPEARANCES:

For the Appellants: Sabino S. Asor, Esq.
Chuuk Attorney General
Office of the Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

For the Appellees & Jack Fritz, Esq.
Real Party in Interest: P.O. Box 788
Weno, Chuuk FM 96942

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HEADNOTES

Appellate Review Decisions Reviewable; Constitutional Law Chuuk Case or Dispute
Chuuk courts are restricted in hearing only “live” cases, meaning the case must be one appropriate for judicial determination. A matter is appropriate for judicial determination when there is a justiciable controversy, as distinguished from a difference or dispute of a hypothetical or abstract character, or one that is academic or moot. Selifis v. Robert, 21 FSM R. 352, 353 (Chk. S. Ct. App. 2017).

Appellate Review Decisions Reviewable; Appellate Review Dismissal
A justiciable controversy may become moot subsequent to filing an appeal if certain events cause the parties to lack a legally cognizable interest in the outcome, and if an appellate court finds that any relief it could grant would be ineffectual, and, if an appellate court dismisses a case as moot, the established rule is for the appellate court to reverse or vacate the judgment below and dismiss the case. Selifis v. Robert, 21 FSM R. 352, 353-54 (Chk. S. Ct. App. 2017).

Appellate Review Dismissal
An appeal concerning a municipal election will not be dismissed as a moot or non-justiciable controversy when that municipality currently has two mayors that have been elected pursuant to two separate elections, which may be due to errors made in the trial division. Selifis v. Robert, 21 FSM R. 352, 354 (Chk. S. Ct. App. 2017).

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COURT’S OPINION

JAYSON ROBERT, Associate Justice, presiding:

I. INTRODUCTION

Appellees filed their Motion to Dismiss for Lack of Subject Matter Jurisdiction on June 29, 2017. On September 14, 2017, after hearing Appellees’ oral arguments on the motion and limited arguments from Appellants, the matter was taken under advisement. After considering written and oral arguments from the parties as well as the facts surrounding this case, this Court DENIES Appellees’ Motion to Dismiss for Lack of Subject Matter Jurisdiction

II. ISSUE PRESENTED

The question before this Court is whether or not there is a justiciable controversy underlying the facts of this appeal.

III. STANDARD OF REVIEW

The Chuuk courts are restricted in hearing only “live” cases, meaning “the case must be one appropriate for judicial determination.” Chuuk State Bd. of Educ. v. Sony, 16 FSM R. 213, 219 (Chk. S. Ct. Tr. 2008). A matter is appropriate for judicial determination when there is a justiciable controversy, as distinguished from a difference or dispute of a hypothetical or abstract character, or one that is academic or moot. Id. A justiciable controversy may become moot subsequent to filing an appeal if certain events cause the parties to “lack a legally cognizable interest in the outcome, and if an appellate court finds that any relief it could grant would be ineffectual.” Wainit v. Weno, 10 FSM R. 601, 610 (Chk. S. Ct. App. 2002). If an appeal court case is “dismissed as moot, the established rule is for the appellate court to reverse or vacate the judgment below and dismiss the case.” Id. at 611.

IV. PROCEDURAL HISTORY

Appellants filed their Notice of Appeal on May 16, 2017, as an appeal of the dismissal of Chuuk State Supreme Court Trial Division Civil Action number 029-2017. On June 29, 2017, Appellees filed their Motion to Dismiss for Lack of Subject Matter Jurisdiction. Appellees argued in their motion that this Court lacks subject matter jurisdiction because the underlying dispute is moot and there is no longer a justiciable controversy at issue. Appellants did not respond or file an opposition to Appellees’ motion to dismiss.

We convened for a hearing regarding Appellees’ motion to dismiss on September 14, 2017. During the hearing Appellees’ counsel, Jack Fritz, made oral arguments reaffirming their written motion. Appellants’ counsel, Attorney General Sabino Asor, stated that Appellants had not responded to Appellees’ motion to dismiss because the record had not been certified. The Court record showed there was a certified copy of the record, but there was no return of service showing it had been served on either party. During the hearing Appellants affirmed that they had not been served; Appellees did not confirm or deny service of the certified record upon them. The Court allowed Appellants’ counsel to argue against the motion to dismiss within the limits of the arguments that were raised their original Notice of Appeal. Appellants raised three issues in their notice regarding the trial division’s abuse of discretion in granting an ex parte TRO without adequate showing of imminent harm, in continuing the matter after the TRO had expired of its own terms without proper notice to all parties, and in trying the matter without subject matter jurisdiction. Appellants’ counsel argued that a dismissal in this matter would be warranted, however not under the terms Appellees were seeking, but rather by first addressing the issues raised in the Notice of Appeal. Appellant asked this Court to deny Appellees’ motion to dismiss, but ultimately dismiss and remand this matter to the trial division to settle the underlying issues pursuant to adequate notice to all parties. After arguments from both parties this Court took the matter under consideration.

V. ANALYSIS

Appellees’ Motion to Dismiss primarily relies on the fact that the winners of the March 7, 2017, election have been sworn into office, thereby creating no justiciable controversy regarding the underlying case and making this matter moot. What Appellees’ motion fails to take into consideration, as was addressed by the panel during oral arguments and Appellees’ counsel did not deny, is that there are currently two mayors of Uman. Appellees’s counsel informed this Court that that was a matter for the parties to raise as a separate court case, but the present case before this appellate panel is moot.

Uman Municipality currently has two mayors that have been elected pursuant to two separate elections. This is may be due to errors made in the trial division. Clearly, the underlying matter of this appeal is certainly alive and constitutes a justiciable controversy. Although the parties could file a separate matter regarding this case, it is clear that the Appellants raised certain issues that still require adjudication by this Court and clarification for the trial division. Therefore, we find a sufficient showing that there exists a justiciable controversy appropriate for judicial determination and DENY Appellees’ Motion to Dismiss for Lack of Subject Matter Jurisdiction.

VI. CONCLUSION

Therefore, based on the foregoing, Appellees’ Motion to Dismiss for Lack of Subject Matter Jurisdiction is DENIED. This appeal shall proceed under the following schedule:

1. Appellants’ Brief must be filed with this Court no later than thirty (30) days from the issuance of this Order.

2. Appellees’ Response must be filed within thirty (30) days of the filing of Appellants’ Brief.

3. Appellants may file their Reply to Appellees’ Brief within fourteen (14) days of the filing of Appellees’ Response.

4. Oral arguments shall take place on Thursday, December 7, 2017, at 10:00 a.m. at the Chuuk State Supreme Court

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