Aten v National Election Commissioner [1993] FMSC 28; 6 FSM Intrm. 143 (App. 1993) (29 July 1993)

[1993] FMSC 28; 6 FSM Intrm. 143 (App. 1993)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. C1-1993

GERHART ATEN,

Appellant,

vs.

NATIONAL ELECTION COMMISSIONER, CHUUK STATE
and KALISTO REFALOPEI
as the real party in interest,
Appellees.

OPINION

Submitted: July 12, 1993
Decided: July 29, 1993

BEFORE:

Hon. Andon L. Amaraich, Associate Justice, FSM Supreme Court
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court

APPEARANCES:

For the Appellant: Thomas Sterling, Esq.
Klemm, Blair, Sterling & Johnson
1008 Pacific News Building
236 Archbishop F.C. Flores Street
Agaña, Guam 96910

For the Appellee: Douglas J. Juergens, Esq.
Chief of Litigation Division
Office of the FSM Attorney General
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Appellee: Johnny Meippen, Esq.
(Real Party in P.O. Box 705
Interest) Weno, Chuuk FM 96942

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HEADNOTES

Constitutional Law - Case or Dispute; Constitutional Law - Judicial Powers; Constitutional Law - Legislative Powers; Separation of Powers
Where there is in the Constitution a textually demonstrable commitment of the issue to a coordinate branch of government, such as Congress being the sole judge of the elections of its members, it is a nonjusticiable political question not to be decided by the court because of the separation of powers provided for in the Constitution. Aten v. National Election Comm'r (III), [1993] FMSC 28; 6 FSM Intrm. 143, 145 (App. 1993).

Constitutional Law - Case or Dispute; Elections
While the court has statutory authority to hear appeals regarding the conduct of elections, its power to grant relief is limited to ordering a recount or a revote. Only Congress can decide who is to be seated and once it has seated a member unconditionally the matter is nonjusticiable. Aten v. National Election Comm'r (III), [1993] FMSC 28; 6 FSM Intrm. 143, 145 & n.1 (App. 1993).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

I.

This election contest came before the court on appeal from the decision of the National Election Commissioner pursuant to 9 F.S.M.C. 903. It involves the March 2, 1993 election for the Fourth Congressional District seat in Chuuk. Our order of May 7, 1993 struck thirteen invalid votes at two polling places and ordered a revote for that seat at the Guam polling place. Our memorandum fully setting forth our reasoning followed on May 24, 1993. Aten v. National Election Comm'r (II), 6 FSM Intrm. 74 (App. 1993).

On May 11, 1993 Congress seated Kalisto Refalopei, the Real Party in Interest in this matter, along with the other newly elected members of the Eighth Congress.

On June 22, 1993, appellant Gerhart Aten filed an application for an order to show cause why the National Election Commissioner should not be held in contempt for failure to hold the revote at the Guam polling place as ordered.

On June 24, we invited the appellant to submit a memorandum of points and authorities concerning our continued jurisdiction in this matter in light of Congress's seating of his opponent and the relevant constitutional and statutory provisions. His memorandum was filed on July 2, 1993. The National Election Commissioner's response and the Real Party in Interest's response were filed July 7 and 12 respectively.

For the reasons set out below we conclude that this matter is now nonjusticiable and the appeal is therefore dismissed.

II. REASONING

Our Constitution states that "Congress shall be the sole judge of the elections and qualifications of its members." FSM Const. art. IX, § 17(a). (A similar provision appears in 9 F.S.M.C. 661.) The Constitution also states that this court has original jurisdiction over cases "arising under" our Constitution and national law. FSM Const. art. XI, § 6(b).

Since this is a matter of first impression in the Federated States of Micronesia and since these two constitutional provisions were borrowed from the United States Constitution we may look to the U.S. courts for guidance in their interpretation. Tammow v. FSM, 2 FSM Intrm. 53, 56-57 (App. 1985).

"Any bar to federal courts reviewing [Congress's decision as to membership] arises from the allocation of powers between the two branches of the Federal government (a question of justiciability), and not from [a] failure to state a claim based on federal law." Powell v. McCormack, [1969] USSC 154; 395 U.S. 486, 514[1969] USSC 154; , 89 S. Ct. 1944, 1960, 23 L. Ed. 2d 491, 513 (1969). In the United States, although arising under U.S. law, a political question "is not justiciable in federal court because of the separation of powers provided by the Constitution." Id. at 517, 89 S. Ct. at 1961, 23 L. Ed. 2d at 514. "It is well established that the federal courts will not adjudicate political questions." Id. at 518, 89 S. Ct. at 1962, 23 L. Ed. 2d at 515.

Among the formulations describing a political question is a case where there "is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; . . . or the impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government; . . . or the potentiality of embarrassment from multifarious pronouncements by various departments on one question." Baker v. Carr, [1962] USSC 42; 369 U.S. 186, 217[1962] USSC 42; , 82 S. Ct. 691, 710[1962] USSC 42; , 7 L. Ed. 2d 663, 686 (1962) (quoted in Powell, 395 U.S. at 518-19, 89 S. Ct. at 1962, 23 L. Ed. 2d at 515).

Here, there is a textually demonstrable commitment of the issue to a coordinate branch of government. Congress is the "sole judge of the elections . . . of its members." FSM Const. art. IX, § 17(a). Therefore "[w]hich candidate is entitled to be seated . . . is, to be sure, a nonjusticiable political question-a question that would not have been the business of th[e] Court even before [Congress] acted." Rouh v. Hartke, 405 U.S. 1.S. 15, 19[1972] USSC 38; , 92 S. Ct. 804, 807[1972] USSC 38; , 31 L. Ed. 2d 1, 8 (1972). Congress's "decisions about . . . who won, are not reviewable in any court." McIntyre v. Fallahay, [1985] USCA7 571; 766 F.2d 1078, 1081 (7th Cir. 1985).¹

The appellant has cited U.S. authorities where courts retained jurisdiction even though the U.S. Congress had seated one of the candidates. E.g., Roudebush v. Hartke, supra; Barry v. United States ex. rel. Cunningham[1929] USSC 98; , 279 U.S. 597, 615 n.1[1929] USSC 98; , 49 S. Ct. 452, 455 n.1[1929] USSC 98; , 73 L. Ed. 867, 872 n.1 (1929). In those instances, however, the U.S. Congress seated the candidate provisionally, pending the outcome of the contest. Our Congress could have chosen to seat one of the candidates conditionally. It did not. Senator Refalopei was seated in the same manner as all the other members. Therefore this matter is now nonjusticiable.

The appellant asserts that the court may still exercise jurisdiction because he seeks only the revote at the Guam polling place, and not a determination of who Congress should seat. But the only purpose of the revote now would be to intimate how Congress should have decided the seating question even though it has already seated a member unconditionally. Faced with an analogous situation another court stated: "Because the dispute is nonjusticiable, it is inappropriate for a . . . court even to intimate how Congress ought to have decided." McIntyre, 766 F.2d at 1081. This is a salutary principle.

This appeal is accordingly dismissed.

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