Wiliander v National Election Director [2005] FMSC 44; 13 FSM Intrm. 199 (App. 2005) (15 April 2005)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION

Cite as Wiliander v National Election Director, [2005] FMSC 44; 13 FSM Intrm. 199 (App. 2005)

WILLY (W-3) WILIANDER,
Appellant,

vs.

NATIONAL ELECTION DIRECTOR, and TWITER
ARITOS, as the real party in interest,
Appellees.

CASE NO. C2-2005

ORDER DISMISSING APPEAL

Decided: April 15, 2005

[2005] FMSC 44; [13 FSM Intrm. 199]

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

APPEARANCES:

For the Appellant:
Johnny Meippen, Esq.
P.O. Box 705
Weno, Chuuk FM 96942

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

For the Appellee:
Twiter Aritos, pro se (real party in interest)
P.O. Box 2
Weno, Chuuk FM 96942

* * * *

HEADNOTES

Appellate Review - Dismissal; Elections
A prematurely filed election appeal must be dismissed. By statute, an aggrieved candidate in an election contest can appeal to the FSM Supreme Court only after the Election Director has denied his petition or after his petition has been effectively denied because the time has run out for the Director to issue a decision on the petition. Wiliander v. National Election Dir., [2005] FMSC 44; 13 FSM Intrm. 199, 202 (App. 2005).

Administrative Law - Judicial Review
An appeal from an administrative agency must be started within the established statutory time period. This has the salutary effect of permitting resolution by the administrative agency, which may either satisfy the aggrieved party or address his concerns, thus conserving scarce judicial resources. Wiliander v. National Election Dir., [2005] FMSC 44; 13 FSM Intrm. 199, 203 (App. 2005).

Administrative Law - Judicial Review
An exception to the requirement of exhausting administrative remedies first is if to do so would be futile. Wiliander v. National Election Dir., [2005] FMSC 44; 13 FSM Intrm. 199, 203 n.2 (App. 2005).

Administrative Law - Judicial Review; Elections
The primary forum in which election contests must run their course is the election administrative machinery created by Congress. Constitutions and statutes provide, as a part of the machinery of elections, a procedure by which election results may be contested. Such contests are regulated wholly by the constitutional or statutory provisions. A strict observance to the steps necessary to give jurisdiction is required, and the jurisdictional facts must appear on the face of the proceedings. If these steps are not followed, courts are powerless to entertain such proceedings. Wiliander v. National Election Dir., [2005] FMSC 44; 13 FSM Intrm. 199, 203 (App. 2005).

Appellate Review - Decision Reviewable; Elections
An election contest appellant has not strictly observed the steps necessary to give the court jurisdiction when he has not filed his appeal within the time frame permitted by statute. Wiliander v. National Election Dir., [2005] FMSC 44; 13 FSM Intrm. 199, 203 (App. 2005).

Elections - Revote
The time frame for an aggrieved candidate to seek a revote is the same as that to seek a recount. It must be filed within one week of certification of the election results. The winning candidate has one week to respond to the petition. The National Election Director then has 10 days to decide whether to approve the petition. If he decides not to approve the petition, he must record the reasons for the decision. Wiliander v. National Election Dir., [2005] FMSC 44; 13 FSM Intrm. 199, 203 (App. 2005).

Elections - Revote
When election irregularities cannot be corrected by recount, a candidate may petition for an election to be set aside and done over, either in a district as a whole or in the part where the irregularities took place. The procedures for the filing a revote petition, action thereon, and appeal of its denial are the same as those for a recount petition. Wiliander v. National Election Dir., [2005] FMSC 44; 13 FSM Intrm. 199, 203 n.3 (App. 2005).

Elections
The election results certification, the signing of it, and notifying the public and the candidates should all be done at the same time, promptly on the same day. That an intervening day was celebrated as a holiday by many is no excuse. The date of certification is an important starting date in the election contest process. The statutory scheme contemplates that these steps are taken promptly. Wiliander v. National Election Dir., [2005] FMSC 44; 13 FSM Intrm. 199, 203-04 (App. 2005).

Constitutional Law - Due Process; Elections
When there are multiple dates upon which an election result was certified, the date of making the certification public and notifying the candidates would comport best with due process as the certification starting point for election contests. Wiliander v. National Election Dir., [2005] FMSC 44; 13 FSM Intrm. 199, 204 (App. 2005).

Appellate Review - Decision Reviewable; Constitutional Law - Case or Dispute - Ripeness; Elections
The court lacks jurisdiction to hear an election appeal filed too soon because the statute does not grant the court jurisdiction over election cases until the administrative steps and time frames in 9 F.S.M.C. 902 have been adhered to. Such an appeal is therefore dismissed as premature (unripe). Wiliander v. National Election Dir., [2005] FMSC 44; 13 FSM Intrm. 199, 204 (App. 2005).

Appellate Review - Motions
A motion filed pro se in the appellate division can be denied on the basis that it was filed pro se without leave of court. In the appellate court, unlike the trial court, a party does not have an automatic right to appear pro se and must seek permission. Wiliander v. National Election Dir., [2005] FMSC 44; 13 FSM Intrm. 199, 204 n.4 (App. 2005).

Appellate Review - Notice of Appeal; Elections
The five-day time limit to appeal an election to the FSM Supreme Court does not start when the Director certifies the election, but rather when the aggrieved candidate receives the Director’s decision on the candidate’s petition or until the time has run out for the Director to issue a decision on the candidate’s petition. Wiliander v. National Election Dir., [2005] FMSC 44; 13 FSM Intrm. 199, 204 (App. 2005).

Appellate Review - Dismissal; Elections
An election contest appellant’s failure to specify which statutory standard of review he thinks applies to his appeal should not, by itself, be fatal to his appeal. Wiliander v. National Election Dir., [2005] FMSC 44; 13 FSM Intrm. 199, 204 (App. 2005).

* * * *

COURT’S OPINION

PER CURIAM:

This election appeal was filed on March 29, 2005. On April 5, 2005, the National Election Director filed a motion to dismiss. By court order, the appellant filed a statement of the issues on April 6, 2005. On April 13, 2005, the Director filed his Objections to Appellant’s Statement of Issues, claiming that two of the "issues" were too vague to specify what the appellant deemed was error.

On April 5, 2005, the National Election Director filed a motion to dismiss. The ground for this motion is that, since, in his view, the appeal seeks either a recount or a revote as a remedy, it is premature as the National Election Director’s decision on Wiliander’s petitions to him had not been issued yet and the deadline for its issuance had not yet passed. Wiliander filed his response to the Director’s motion to dismiss on April 12, 2005. The Director filed his reply to the response on April 13, 2005.

Also on April 5, 2005, the real party in interest, Twiter Aritos, acting pro se, filed his motion to dismiss. The ground for the motion is that the appeal was filed too late, is untimely, and therefore must be dismissed.

The Director’s motion to dismiss is granted and the real party in interest’s motion is denied on the ground it relied on. This appeal is dismissed. Our reasoning follows.

I. The National Election Director’s Motion

The National Election Director contends that this appeal was filed prematurely and should be dismissed on that ground. He characterizes the relief Wiliander seeks as either a recount or a revote or both. The Director contends that either way, Wiliander cannot appeal to the court until he has issued his decision which, he contends he could not legally have issued before the date on which the notice of appeal was filed. The Director contends that he had until 17 days after he certified the election on March 28, 2005 (that is, until April 14, 2005) to make his decision and that he had not done so even by the time he filed his motion to dismiss.

Wiliander’s response concedes that his appeal was filed two days too early. He contends that since he does not seek a recount his petition to the Director had to be filed within one week of the March 8, 2005 election (relying on 9 F.S.M.C. 902), his first petitions were filed on March 14 and 15, the other candidate had until March 22 to respond, at which point the Director had ten days (until April 2, 2005) to issue his decision and when he had not, it would be deemed a denial of the petition and Wiliander could appeal. Wiliander contends that since, in his view, he was in "substantial compliance" with the statute and that a premature appeal should not be treated as unfavorably as a late appeal, this appeal should go forward on the merits.

The Director, in reply, contends that Wiliander ignores the part of section 902 that applies to his appeal and that his (now-issued) April 11, 2005 decision[1] is timely and that it is from that point the time to appeal starts to run.

A prematurely filed election appeal must be dismissed. 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, 9 F.S.M.C. 903(1); Kony v. Mori, 6 FSM Intrm. 28, 30 (Chk. 1993), or after his petition has been effectively denied because the time has run out for the Director to issue a decision on the petition, Wiliander v. Mallarme, [1995] FMSC 24; 7 FSM Intrm. 152, 158 (App. 1995) (when the Director has not rendered his decision within the statutorily-prescribed time limit it must be considered a denial of the petition, and the petitioner can then file his appeal in the Supreme Court).

An appeal from an administrative agency must be started within the established statutory time period. Anton v. Heirs of Shrew, [2003] FMSC 77; 12 FSM Intrm. 274, 279 (App. 2003). This has the salutary effect of permitting resolution by the administrative agency, which may either satisfy the aggrieved party or address his concerns, thus conserving scarce judicial resources.[2] The primary forum in which election contests must run their course is the election administrative machinery created by Congress. Constitutions and statutes provide, as a part of the machinery of elections, a procedure by which election results may be contested. Such contests are regulated wholly by the constitutional or statutory provisions. A strict observance to the steps necessary to give jurisdiction is required, and the jurisdictional facts must appear on the face of the proceedings. If these steps are not followed, courts are powerless to entertain such proceedings. David v. Uman Election Comm’r[1998] FMCSC 6; , 8 FSM Intrm. 300d, 300g (Chk. S. Ct. App. 1998).

Wiliander has not strictly observed the steps necessary to give the court jurisdiction. He has not filed his appeal within the time frame permitted by statute. Wiliander seeks a revote in Honolulu, Hawaii because of irregularities not correctable by a recount - voters who had properly applied to vote at an alternative polling place being denied the right to vote - and a recount in Saipan, CNMI and other places. The time frame for an aggrieved candidate to seek a revote is the same as that to seek a recount. 9 F.S.M.C. 906;[3] Aten v. National Election Comm’r (I), 6 FSM Intrm. 38, 39 (App. 1993). The applicable statute requires that:

A petition for a recount must be filed within one week of certification of the results of the election. Any other petition challenging the acceptability of a vote or votes must be filed prior to certification of the results of the election or within one week of the election, whichever occurs first. The winning candidate shall have one week to respond to the petition. The National Election Director shall then have 10 days to decide whether to approve the petition. If the National Election Director decides not to approve the petition, he shall record the reasons for such decision.

9 F.S.M.C. 902. Therefore 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." The winning candidate then has "one week to respond to the petition." 9 F.S.M.C. 902. The National Election Director then has "10 days to decide whether to approve the petition." Id.

When this time period started is unclear. The certification is dated March 22, 2005. The Director in his affidavit says he signed it March 24, 2005. The certification itself says March 25, 2005. And the Director’s affidavit and motion state that he made it public and informed the candidates on March 28, 2005. This is disturbing. There should not be multiple dates to choose from for an election certification. The certification, the signing of it, and notifying the public and the candidates should all be done at the same time, promptly on the same day. That March 25, 2005, was celebrated as a holiday by many is no excuse. One reason for this is apparent from this case. The date of certification is an important starting date in the election contest process. The statutory scheme contemplates that these steps are taken promptly.
However, using any of those dates (we adopt the date of making it public and notifying the candidates as that would comport best with due process) as a starting point, the appeal was filed too early. The Director’s motion to dismiss is therefore granted. This appeal was premature (unripe). The court lacks jurisdiction to hear it because the statute does not grant the court jurisdiction over election cases until the administrative steps and time frames in 9 F.S.M.C. 902 have been adhered to. The appeal is therefore dismissed.

II. Twiter Aritos’s Motion

Aritos contends that since the Director certified the election results on March 22, 2005 (attached to the motion is a certification of the election dated March 22, 2005, and signed by the National Election Director Edward W. Burnell on March 25, 2005), Wiliander had until March 27, 2005 to file an appeal in the FSM Supreme Court and that therefore this appeal is two days late, leaving the court with no jurisdiction to hear the appeal. He relies on 9 F.S.M.C. 903, which gives an aggrieved candidate five days to appeal to the FSM Supreme Court. He also alleges that the appeal is defective because Wiliander does not specify which of the four grounds for reversal by the court listed in 9 F.S.M.C. 903(1) he is relying upon.

Aritos’s motion to dismiss is denied.[4] As should be apparent from the discussion above on the Director’s motion, Aritos misreads the statute. An aggrieved candidate has "five days after receipt of the decision of the National Election Director, appeal his case to the Appellate Division of the Supreme Court." The five-day time limit to appeal does not start when the Director certifies the election, but rather when the aggrieved candidate receives the Director’s decision on his petition, Kony, 6 FSM Intrm. at 30 (an aggrieved candidate in an election contest can only appeal to the FSM Supreme Court after his petition has been denied), or until the time has run out for the Director to issue a decision on the candidate’s petition, Wiliander, 7 FSM Intrm. at 158 (when the Director has not rendered his decision within the statutorily-prescribed time limit it must be considered a denial of the petition, and the petitioner can then file his appeal in the Supreme Court). This appeal is not too late. It is too soon.

Secondly, the grounds listed in 9 F.S.M.C. 903(1) are the standards of review that the court must use when reviewing an appeal from the National Election Director. An appellant’s failure to specify which he thinks applies to his appeal should not, by itself, be fatal to an appeal.

III. Conclusion

Accordingly, the real party in interest’s motion to dismiss is denied and the National Election Director’s motion to dismiss is granted. This appeal is dismissed.

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^[1] A copy is attached to his reply. Wiliander has not appealed the April 11, 2005 decision.

^[2] An exception to the requirement to exhaust this remedy first is if to do so would be futile. See, e.g., Dorval Tankship Pty, Ltd. v. Department of Finance, [1997] FMSC 24; 8 FSM Intrm. 111, 115 (Chk. 1997); Chuuk v. Secretary of Finance, [1996] FMSC 59; 7 FSM Intrm. 563, 566 n.4 (Pon. 1996). There is no basis for this exception to apply here.

^[3] "In the event of election irregularities which cannot be corrected by recount, a candidate may petition for an election to be set aside and done over, either in a district as a whole or in the portion thereof where the irregularities took place. The procedures for the filing of such petition, action thereon, and appeal of its denial shall be the same as such procedures for a petition for recount. . . ." 9 F.S.M.C. 906.

up>^[4] Besides the reasons stated, this motion could also be denied on the basis that s filed pro se without leave of court. In the appellate court, unlike the trial court, a p, a party does not have an automatic right to appear pro se and must seek permission. See Kephas v. Kosrae, [1987] FMSC 10; 3 FSM Intrm. 248, 252 (App. 1987) (only attorneys admitted to practice before the FSM Supreme Court or trial counselors supervised by an attorney admitted to practice may appear before the FSM Supreme Court on appeals); Alaphonso v. FSM, [1982] FMSC 22; 1 FSM Intrm. 209, 230 n.13 (App. 1982) (in absence of express appellate division permission to appear without supervision of an attorney, the court will require all appellate level briefs and other documents to be signed by an attorney authorized to practice before the FSM Supreme Court; any appellate submission not so signed will be rejected); see also FSM App. R. 46(a); 31(d). The time schedules usually present in election appeals are tight and an attorney cannot always be found quickly. We thus do not rely on this ground to deny the motion in this case.