Asugar v Edward [2005] FMSC 24; 13 FSM Intrm. 215 (App. 2005) (26 April 2005)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION
Cite case as Asugar v Edward, [2005] FMSC 24; 13 FSM Intrm. 215 (App. 2005)

HENRY ASUGAR,
Appellant,

vs.

BERNELL W. EDWARD, as National Election Director,
and PETER SITAN, as the real party in interest,
Appellees.

__________________________________________________

APPEAL CASE NO. C4-2005

BEFORE:

Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court

ORDER DISMISSING APPEAL

Decided: April 26, 2005

APPEARANCES:

For the Appellant:
Ben Enlet
P.O. Box 1650
Weno, Chuuk FM 96942

For the Appellee (Director):
Matthew L. Olmsted, Esq.
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Appellee (real party in interest):
Andrea S. Hillyer, Esq.
P.O. Drawer D
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Appellate Review - Dismissal
Even if an opposition to a motion to dismiss is not filed, the court still needs good grounds before it can grant the motion. Asugar v. Edward, [2005] FMSC 24; 13 FSM Intrm. 215, 218 (App. 2005).

Appellate Review - Decisions Reviewable; Elections
The applicable time frame within which an election contest appeal can be made starts with a petition to the National Election Director filed within one week of certification of the results of the election. The winning candidate then has one week to respond to the petition. The Director then has ten days to decide whether to approve the petition. If the petition is denied, then the aggrieved candidate would have five days to appeal to the FSM Supreme Court appellate division. It is at that point that the court would have jurisdiction to consider this election contest. Asugar v. Edward, [2005] FMSC 24; 13 FSM Intrm. 215, 219 (App. 2005).

Appellate Review - Decisions Reviewable; Elections
By statute, an aggrieved candidate in an election contest can appeal to the FSM Supreme Court only after the election agency has denied his petition. Asugar v. Edward, [2005] FMSC 24; 13 FSM Intrm. 215, 219 (App. 2005).

Administrative Law - Judicial Review; Appellate Review - Decisions Reviewable
An appeal from an administrative agency must be started within the established statutory time period. Asugar v. Edward, [2005] FMSC 24; 13 FSM Intrm. 215, 219 (App. 2005).

Elections
The primary forum in which election contests must take place is the election administrative machinery Congress created by statute. Asugar v. Edward, [2005] FMSC 24; 13 FSM Intrm. 215, 219 (App. 2005).

Administrative Law - Judicial Review; Appellate Review - Decisions Reviewable; Elections
Constitutions and statutes provide, as a part of the election machinery, a procedure by which election results may be contested. Such contests are regulated wholly by constitutional or statutory provisions. The necessary steps must be strictly observed to give the court jurisdiction, and the jurisdictional facts must appear on the face of the proceedings. If these steps are not followed, courts are usually powerless to entertain such proceedings. Asugar v. Edward, [2005] FMSC 24; 13 FSM Intrm. 215, 219 (App. 2005).

Appellate Review - Decisions Reviewable; Elections
An election contest appeal must await the National Election Director’s certification of the election results and the Director’s denial of a timely post-certification petition by the candidate. If the Director’s decision on the petition does not adequately address his concerns, only then would the aggrieved candidate have five days from the receipt of the Director’s decision to appeal to the FSM Supreme Court appellate division if the Director’s decision on the petition does not adequately address his concerns. Asugar v. Edward, [2005] FMSC 24; 13 FSM Intrm. 215, 219 (App. 2005).

Appellate Review - Decisions Reviewable; Elections
If the National Election Director does not issue his decision on a candidate’s post-certification petition within the statutory time frame, the candidate may appeal without waiting further for the decision. Asugar v. Edward, [2005] FMSC 24; 13 FSM Intrm. 215, 219 n.3 (App. 2005).

Appellate Review - Decisions Reviewable; Elections
Congress, when it drafted the election statute, limited the court’s involvement in election contests to until after the issues were narrowed to the certified result and whether a candidate’s petition contesting the certified result should have been granted by the Director and, if so, what relief was then appropriate. Asugar v. Edward, [2005] FMSC 24; 13 FSM Intrm. 215, 220 (App. 2005).

Appellate Review - Dismissal; Elections
An election contest appeal must be dismissed for lack of jurisdiction when it is filed too soon, at a time before the election statute confers jurisdiction on the court. Asugar v. Edward, [2005] FMSC 24; 13 FSM Intrm. 215, 220 (App. 2005).

Appellate Review - Decisions Reviewable; Elections
If an aggrieved candidate’s appeal seeks a revote, he may, once the election is certified, petition the National Election Director for a revote, and if he feels that the Director’s decision does not adequately address his concerns, then appeal that decision to the FSM Supreme Court appellate division within the statutory time limit. An earlier appeal is too soon. Asugar v. Edward, [2005] FMSC 24; 13 FSM Intrm. 215, 220 (App. 2005).

Appellate Review - Decisions Reviewable; Elections
The court would be without jurisdiction to hear an election contest appeal on the acceptability of a vote or votes when the aggrieved candidate withdrew his only timely petition on the subject. Asugar v. Edward, [2005] FMSC 24; 13 FSM Intrm. 215, 220 (App. 2005).

Appellate Review - Decisions Reviewable; Elections
If election contest issues come before the FSM Supreme Court appellate division by an appeal properly filed during the statutory time limit after the election contest machinery has run its course, the court will then consider at that time the merits of what is raised and before it. Asugar v. Edward, [2005] FMSC 24; 13 FSM Intrm. 215, 220 (App. 2005).

* * * *

COURT’S OPINION

PER CURIAM:

Henry Asugar, the incumbent candidate for the Chuuk Congressional District No. 1 (Mortlocks), filed this election appeal on April 18, 2005. The appeal is dismissed. Since it was filed prematurely, the court is without jurisdiction to consider it. Our reasoning follows.

I.

An election for two-year seats in Congress was held on March 8, 2005. On March 30, 2005, the National Election Director informed the candidates for Chuuk Congressional District No. 1 (Mortlocks) that he would conduct a revote for the Upper Mortlocks VAAPP (voting at another polling place) box on Weno, Chuuk due to irregularities in that box. On April 13, 2005, the Director notified the candidates that the revote
would be held on April 20, 2005.^[1] Then on April 14, 2005, the Director denied incumbent candidate Henry Asugar’s "cross-petition" to set aside the results of the Special Polling Place in Kolonia, Pohnpei for the Mortlocks congressional district.

Henry Asugar filed this election appeal on April 18, 2005. Attached to the notice of appeal was the Director’s March 30, 2005 ruling that a revote would be conducted for the Weno Upper Mortlocks VAAPP and the Director’s April 13th letter setting the date for the revote. The denial of Asugar’s "cross-petition" concerning the Kolonia, Pohnpei box was not attached to the notice of appeal.

II.

On April 21, 2005, the National Election Director filed a motion to dismiss. Sitan, the real party in interest, filed a response to the motion on April 22, 2005. By court order, the appellant was to file his response to the Director’s motion no later than 4:00 p.m., April 22, 2005, and he was permitted to file it by fax. No response was filed. Even if an opposition to the Director’s motion to dismiss is not filed, the court still needs good grounds before it can grant the motion. Cf. Senda v. Mid-Pacific Constr. Co., [1994] FMSC 20; 6 FSM Intrm. 440, 442 (App. 1994) (civil procedure); FSM v. Wainit, [2003] FMSC 53; 12 FSM Intrm. 201, 203 (Chk. 2003) (criminal procedure).

III.

The Director contends that this appeal is defective and premature. First, he contends that the notice of appeal is defective because, in his view, the notice does not contain information specifying which of the Director’s records are in error or that votes were cast by persons not entitled to vote. Second, the Director contends that the appeal was filed too soon because the appellant has not exhausted his administrative remedies. He asserts that Asugar cannot appeal until the election has been certified and Asugar has petitioned the Director for relief and had his petition denied. The Mortlocks congressional seat election had not been certified when the appeal was filed and would not be until some time after the April 20th revote.

The Director also contends that if this appeal challenges the acceptability of votes, it is too late because such an appeal to the FSM Supreme Court must come within five days of the Director’s decision (which may be before certification) on a timely (within one week of the election) petition and that while Asugar did file timely petitions challenging the Pohnpei box and asking for a revote in the Weno Upper Mortlocks VAAPP, those petitions were subsequently orally withdrawn and that Asugar’s later "cross-petition" concerning the Pohnpei box was made too
[2005] FMSC 45; [13 FSM Intrm. 223]

late.

The Director also contends that, if it were possible for Asugar to appeal the Director’s March 30, 2005 decision to conduct a revote in the Weno Upper Mortlocks VAAPP box, the appeal is too late as this appeal was filed more than five days after the decision.

Sitan’s April 22, 2005 response to the Director’s motion adopts the Director’s positions. It emphasizes that the court has no jurisdiction to hear this appeal because it was filed too late to be a timely appeal of the Director’s March 30th decision (and, at any rate, is moot because the revote has now been held), and, since the election has not been certified, is too soon to be a timely appeal of a denial of a post-certification petition.

IV.

The Chuuk Congressional District No. 1 election had not been certified when Asugar filed his notice of appeal. This appeal is thus premature and the court lacks jurisdiction to consider it. The applicable time frame within which an appeal can be made starts with a petition to the Director "filed within one week of certification of the results of the election." 9 F.S.M.C. 902. The winning candidate then has "one week to respond to the petition." Id. The National Election Director then has "10 days to decide whether to approve the petition." Id. If the petition is denied, then Asugar would have five days to appeal to the FSM Supreme Court appellate division. 9 F.S.M.C. 903(1). It is at that point that the court would have jurisdiction to consider this election contest.

"By statute, an aggrieved candidate in an election contest can appeal to the FSM Supreme Court only after the election agency has denied his petition." Wiliander v. National Election Dir., [2005] FMSC 44; 13 FSM Intrm. 199, 202 (App. 2005) (citing 9 F.S.M.C. 903(1); Kony v. Mori, 6 FSM Intrm. 28, 30 (Chk. 1993)). "An appeal from an administrative agency must be started within the established statutory time period." Wiliander, 13 FSM Intrm. at 203 (citing Anton v. Heirs of Shrew, [2003] FMSC 77; 12 FSM Intrm. 274, 279 (App. 2003)). This appeal was not.

The primary forum in which election contests must take place is the election administrative machinery Congress created by statute. Constitutions and statutes provide, as a part of the election machinery, a procedure by which election results may be contested. Such contests are regulated wholly by constitutional or statutory provisions. Wiliander, 13 FSM Intrm. at 203. The necessary steps must be strictly observed to give the court jurisdiction, and the jurisdictional facts must appear on the face of the proceedings. If these steps are not followed, courts are usually powerless to entertain such proceedings. Id.; David v. Uman Election Comm’r[1998] FMCSC 6; , 8 FSM Intrm. 300d, 300g (Chk. S. Ct. App. 1998).

A. Weno Upper Mortlocks VAAPP box

Asugar appealed the Director’s ruling that a revote would be held for the Weno Upper Mortlocks VAAPP ballot box for Chuuk Congressional District No. 1 (Mortlocks). This appeal is too soon (premature or unripe). As stated above, it must await the National Election Director’s certification of the Chuuk Congressional District No. 1 election results and the Director’s denial of a timely post-certification petition by the candidate. Only then, if the Director’s decision on the petition(s) does not adequately address his concerns, the aggrieved candidate would have five days from the receipt of the Director’s decision to appeal to the FSM Supreme Court appellate division.^[2] 9 F.S.M.C. 903(1); Wiliander, 13 FSM Intrm. at 202; Kony v. Mori, 6 FSM Intrm. 28, 30 (Chk. 1993) (an aggrieved candidate can appeal to the FSM Supreme Court only after his petition has been denied).^[3]

This appeal illustrates why it was wise for the statute conferring jurisdiction on the court not to allow appeals to the court until the proceedings before the Director (certification of election, candidate’s petition, and Director’s decision on the petition) have run their course. Initially, Asugar asked that the Weno Upper Mortlocks VAAPP not be counted and that it be set aside and a revote held. Then, when the count in that box, despite the irregularities, was favorable to Asugar, he changed his mind and not only did he not want a revote any longer but also wanted the box included in the certified results although the Director had excluded it due to irregularities. If the revote made him the certified winner, he might have then changed his mind again.

[13 FSM Intrm. 225]

Congress, when it drafted the election statute, limited the court’s involvement until after the issues were narrowed to the certified result and whether a candidate’s petition contesting the certified result should have been granted by the Director and, if so, what relief was then appropriate. Thus this appeal must be dismissed for lack of jurisdiction - filed too soon, at a time before the election statute confers jurisdiction on the court. Asugar may, if still dissatisfied after the election is certified, petition the National Election Director and, if the Director does not adequately address his concerns, then file a timely appeal to the FSM Supreme Court appellate division.

B. Pohnpei Special Polling Place

Asugar also appeals the National Election Director’s denial of his petition(s) to set aside the results from the special polling place in Kolonia, Pohnpei for Chuuk Congressional District No. 1, although the decision appealed from is not attached to Asugar’s notice of appeal. Thus it is unclear exactly what Asugar seeks in this appeal. Originally, he petitioned for a revote at the Kolonia, Pohnpei Special Polling Place. If Asugar’s appeal still seeks a revote, then this appeal is too soon. As stated above, he may, once the election is certified, petition the Director for a revote in the Pohnpei box, and if he feels that the Director’s decision does not adequately address his concerns, then appeal that decision to the FSM Supreme Court appellate division within the statutory time limit.

If the appeal of the Kolonia, Pohnpei Special Polling Place results were considered one that challenges the acceptability of a vote or votes, the court would also be without jurisdiction since Asugar withdrew his only timely petition on the subject. But, following Asugar’s original petition, he appears to seek a revote on Pohnpei, and his appeal is too soon for that.

V.

Because we have determined that we do not have jurisdiction to consider this appeal at this time, we do not consider the Director’s contention that notice of appeal itself was defective. Furthermore, we have issued this order dismissing the appeal promptly so that the appellant is under no illusion that this appeal would be a substitute for a post-certification petition to the Director. We issue this order now so that the appellant may, if he so chooses, timely file a post-certification petition with the Director if he has not already done so.

The appeal of both the Kolonia, Pohnpei Special Polling Place box and the Weno Upper Mortlocks VAAPP box revote is premature and the court is without jurisdiction to hear it. If either of these issues come before us by an appeal properly filed during the statutory time limit after the election contest machinery has run its course, we will then consider the merits of what is raised and before us at that time.

[13 FSM Intrm. 226]

* * * *

---

^[1] The revote was held, as scheduled, on April 20, 2005.
^[2] We would expect that, since the issues have largely already been developed, resolution of a post-certification petition before the Director would not take the full amount of time allowed by the statute.
^[3] If the Director does not issue his decision on Asugar’s post-certification petition within the statutory time frame, Asugar may appeal without waiting further for the decision. Wiliander v. Mallarme, [1995] FMSC 24; 7 FSM Intrm. 152, 158 (App. 1995) (the Director’s failure to render his decision within the statutorily-prescribed time limit must be considered a denial of the petition).