Selifis v Robert [2020] FMCSC 2; 22 FSM R. 569 (Chk. S. Ct. App. 2020) (11 June 2020)

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, Chairman of Uman Election Commission,
Appellees,

AKAMPO NAKASHIMA,

Real Party In Interest.
_______________________________________________

ORDER OF DISMISSAL

Argued: June 4, 2020
Decided: June 11, 2020

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.
P.O. Box 788
Weno, Chuuk FM 96942

* * * *

HEADNOTES

Constitutional Law - Chuuk - Case or Dispute - Mootness
No justiciable controversy is presented when the parties lack a legally cognizable interest in the outcome, and if an appellate court finds that any relief it could grant would be ineffectual, it must treat the case as moot. Selifis v. Robert, 22 FSM R. 569, 572 (Chk. S. Ct. App. 2020).

Constitutional Law - Chuuk - Case or Dispute - Mootness
When an appeal is dismissed as moot, the established practice is for the appellate court to reverse or vacate the judgment below and dismiss the case, but when the case below has already been dismissed, no purpose is served by vacating that dismissal and then dismissing it again. In such cases, the appellate court will make no order about dismissal addressed to the trial court. Selifis v. Robert, 22 FSM R. 569, 572 (Chk. S. Ct. App. 2020).

Constitutional Law - Chuuk - Case or Dispute
An appellate court does not sit to render decisions on abstract legal propositions or to render advisory opinions. Selifis v. Robert, 22 FSM R. 569, 572 (Chk. S. Ct. App. 2020).

Constitutional Law - Chuuk - Interpretation
Unnecessary adjudication of Chuuk constitutional questions should be avoided, if possible. Selifis v. Robert, 22 FSM R. 569, 572 (Chk. S. Ct. App. 2020).

Constitutional Law - Chuuk - Case or Dispute; Elections
The appellate court will not consider a municipal election ordinance’s validity when that ordinance’s two alleged defects may be remedied or addressed before the next municipal election. Selifis v. Robert, 22 FSM R. 569, 572 (Chk. S. Ct. App. 2020).

* * * *

COURT’S OPINION

PER CURIAM:

After briefing and hearing, we conclude that this appeal must be dismissed as moot. Our reasons follow.

I.

In November, 2016, the Uman municipal government enacted a new municipal election law. Uman mayoral elections are held the same day as the Chuuk state general election (and the FSM national midterm election). The Chuuk Attorney General’s Office, after reviewing the new Uman election law, came to the conclusion that it was invalid for several reasons, the most salient of which were that it was entirely in English although the Uman Constitution required that all Uman ordinances be enacted in Chuukese and that it created a new municipal election commission that would select an election manager while another part of the Uman law named a particular person as the election manager.

The Uman municipal election was held under the new municipal election law on March 7, 2017. Akampo Nakashima was named the winning mayoral candidate. Afterwards, the aggrieved losing mayoral candidate complained to the Chuuk Attorney General’s Office about the Uman municipal election and filed a complaint with the Chuuk State Election Commission. On March 10, 2017, the State Election Commission, after hearing, granted the aggrieved parties’ petition and ordered a special Uman municipal election to be held on April 20, 2017.

On April 19, 2017, the trial court issued an ex parte temporary restraining order barring the State Election Commission from using any Uman municipal funds to conduct an Uman municipal election. No election was held on April 20, 2017. At an April 24, 2017 hearing on the State Election Commission’s motion to vacate the temporary restraining order, the plaintiffs (herein the appellees) moved to withdraw as plaintiffs and dismiss their complaint. The trial court, on May 4, 2017, granted this motion and dismissed the, as yet unserved, complaint because Nakashima had already taken the oath of office as Uman mayor.^[1]

That order was appealed on May 16, 2017. The appellants contended that the trial court abused its discretion by granting an ex parte temporary restraining order when there was no showing of imminent irreparable harm; by continuing to exercise jurisdiction over the case after April 20, 2017, and continuing to issue orders even though the defendants had never been served a complaint and summons or motions of any kind; and by issuing orders when it never had subject matter jurisdiction over the matter.

II.

The appellants now contend that this matter is moot and should be dismissed because the state government executive branch administered the oath of office to Mayor Nakashima; because this is not an election contest properly before us since, if it were, it would come as an appeal from a State Election Commission decision, not from a trial court decision; because this case has become a political question committed to a coordinate branch of government; because the trial court action, from which it was appealed, is a complete nullity since there was no complaint filed to start the action; and because the Chuuk Constitution vested the power to conduct all elections in Chuuk in the State Election Commission and the appellees have not challenged the State Election Commission’s decisions.

The appellees also contend that the appellate matter should be dismissed but urge that we should first rule that, under article XIII, section 5 of the Chuuk Constitution, the Uman election commission is the only proper body to conduct Uman municipal elections and that only municipal elections conducted by it should be acknowledged as valid. The appellees further argue that if the current Uman municipal election law is invalid, then the previous Uman election law is still in effect, and under that law Uman municipal elections are conducted by the Uman municipal election commission.

III.

It appears that any relief we could grant would be ineffectual. This matter did not come before us as an election contest - as a dispute over how an election was conducted or over a particular election’s result. Only one of the two Uman mayoral candidates is even named as a party (Akampo Nakashima is named as the Real Party in Interest in this appeal) but that "party" has not appeared in this matter. Nor did this matter come before us as a dispute over alleged election irregularities during the casting, counting, or tabulation of ballots. It came before us as the appellants’ challenge of the trial court’s authority or power to issue what is now a long since expired ex parte temporary restraining order - issues the appellants are no longer actively pursuing since they later conducted the Uman election that the temporary restraining order had been used to temporarily restrain.

No justiciable controversy is presented when the parties lack a legally cognizable interest in the outcome, and if an appellate court finds that any relief it could grant would be ineffectual, it must treat the case as moot. Wainit v. Weno, 10 FSM R. 601, 610 (Chk. S. Ct. App. 2002). When an appeal is dismissed as moot, the established practice is for the appellate court to reverse or vacate the judgment below and dismiss the case, Nikichiw v. Marsolo, 15 FSM R. 177, 179 (Chk. S. Ct. App. 2007), but when the case below has already been dismissed, no purpose is served by vacating that dismissal and then dismissing it again. Setik v. Perman, 22 FSM R. 105, 120 (App. 2018). We will thus make no order about dismissal addressed to the trial court.

The appellees’ request that we rule on which body should, or has the authority to, conduct future Uman municipal elections (and thus also rule on the interplay and meaning of Chuuk Constitution article XII, § 4 and artiIII, § #160;5) is in the naof an a an advisory opinion. This is not the proper vehicle to decide those issues. We do not sit to render decisions on act lpropositions or to render advisory opinions. Fritz v. National Election Dir., /u>, 11 FSM R. 442, 444 (App. 2003). Furthermore, unnecessary adjudication of Chuuk constitutional questions should be avoided, if possible. See Pacific Coast Enterprises v. Chuuk, 9 FSM R. 543, 545 (Chk. S. Ct. Tr. 2000). We therefore decline consider these issues further.

Nor should we consider the validity of the Uman election ordinance. The two "defects" that the Chuuk Attorney General’s Office complained about - that the ordinance was enacted only in English and that it named an election manager while also giving that power to the Uman election commission - may be remedied or addressed before the next Uman election.

IV.

Accordingly, this appellate matter is dismissed. The parties shall bear their own costs.

* * * *

---

^[1] The State Election Commission later held an Uman municipal election without the participation of Uman voters outside the FSM. Its results differed from the March 7, 2017 election.