Doone v National Election Commissioner [2006] FMSC 33; 14 FSM Intrm. 489 (Chk. 2006) (27 November 2006)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Doone v. National Election Commissioner, [2006] FMSC 33; 14 FSM Intrm. 489 (Chk. 2006)

GILLIAN DOONE,
Plaintiff,

vs.

NATIONAL ELECTION COMMISSIONER,

CHUUK STATE,
Defendant.

CIVIL ACTION NO. 2006-1022

ORDER DENYING TEMPORARY RESTRAINING ORDER

Dennis K. Yamase
Associate Justice

Hearing: November 21, 2006
Decided: November 27, 2006

APPEARANCES:

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

For the Defendant:
Pole Atanraoi, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

[2006] FMSC 33; [14 FSM Intrm. 489]

* * * *

HEADNOTES

Civil Procedure - Injunctions
In exercising its broad discretion in considering a motion for a temporary restraining order, the court looks to four factors: 1) the possibility of the irreparable injury to the movant; 2) the balance of the possible injury as between the parties; 3) the movant’s possibility of ultimate success on the merits; and 4) the impact upon the public interest. Doone v. National Election Comm’r[2006] FMSC 33; , 14 FSM Intrm. 489, 492 (Chk. 2006).

Elections
Generally speaking, elections are conducted, carried out, and administered by the executive and legislative branches. Courts do not have a primary position in that traditional scheme. The election law states the time at which the court has the right of entertaining an appeal from the National Election Director’s final action, although there may be cases in which the court would enter a matter before the election process has been completed. Doone v. National Election Comm’r[2006] FMSC 33; , 14 FSM Intrm. 489, 493 (Chk. 2006).

Civil Procedure - Injunctions; Elections
No temporary restraining order will issue ordering the National Election Director to accept the late filing of a candidate’s nomination papers even though the candidate was misadvised as to the filing deadline. Doone v. National Election Comm’r[2006] FMSC 33; , 14 FSM Intrm. 489, 493 (Chk. 2006).

* * * *

COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

I. Background

On November 13, 2006, the plaintiff, Gillian Doone, filed an Ex-Parte Motion for Temporary Restraining Order (TRO); Points and Authorities and a Complaint for Injunctive and Declaratory Relief.

The Ex-Parte Motion for TRO alleges that plaintiff Doone’s right to be a candidate for a seat in the FSM Congress in the March 6, 2007 national election was violated when his nomination petition was rejected, where plaintiff relied to his detriment on misadvice by the Chuuk National Election Commissioner Erry Silo as to the deadline for filing nomination petitions, and where no copy of the election law and other election materials were made available to the plaintiff by the defendant.

II. TRO Hearing and Findings

Hearing on the plaintiff’s motion for a temporary restraining order was heard beginning at 10:55 a.m., Tuesday, November 21, 2006 and lasted for the duration of the day. Plaintiff Doone was represented by attorney Johnny Meippen and defendant Silo was represented by FSM Assistant Attorney General Pole Atanraoi.

The court heard arguments from both parties as to the issue of whether the court has jurisdiction over this matter and then proceeded to hear witnesses and take evidence from both parties sufficient for it to rule on the motion for TRO.

At the hearing, witness testimony by the plaintiff was offered from Chuuk National Election Commissioner Silo (Election Commissioner Silo), plaintiff himself Doone, and Frank Casiano a trial

[14 FSM Intrm. 490]

counselor employed by the Micronesian Legal Services Corporation (MLSC). The defendant’s sole witness was the defendant himself, Election Commissioner Silo.

Based upon the testimony of the witnesses and other evidence before the court the following are found:

1) On June 18, 2006, plaintiff Doone traveled from Hawai’i to Chuuk to begin campaigning for a seat in the FSM Congress in the upcoming March 6, 2007 national elections.

2) Sometime during the last week of June, 2006, the plaintiff called the Chuuk National Election Office and was informed by Election Commissioner Silo that the deadline for filing nomination papers for the FSM Congress seats was 90 days before the March, 2007 national elections.

3) After the above mentioned call, the plaintiff continued to call the Chuuk National Election Office almost every two weeks and inquired if there were any changes in the law. The response to these calls was that there were changes, but that nothing had yet been received from the National Election Office in Pohnpei.

4) The Plaintiff left Chuuk for Guam for about a two week period in early September, 2006 and returned to Chuuk thereafter.

5) About three weeks before November 6, 2006 plaintiff’s uncle passed away and plaintiff went and stayed in Fefan.

6) Public Law No. 14-76 [FSM Code Title 9] was signed into law by the President on August 14, 2006. This public law is the "Revised National Election Act of 2005" and changed the deadline for filing nomination papers for candidates for the FSM Congress from 90 days to 120 days before the March 6, 2007 national elections.

7) Election Commissioner Silo was informed of the changes in the national election law by communication with the National Election Office in Pohnpei around the end of August, 2006 and was provided with a timetable and instructions to disseminate information on the election date and other deadlines.

8) The defendant took action to disseminate election information by providing copies of the timetable to those persons who came to the Chuuk National Election Office and by posting notices at the post office and Bernie’s Store, but could not say where else notices were posted. Defendant did not have copies of the election law or regulations to disseminate and did not provide copies to the plaintiff.

9) Defendant testified that he drafted an announcement to be aired over the radio, wrote to the public affairs office, and received a response to allow announcement over the radio, but could not remember hearing any announcement broadcasted.

10) On November 7, 2006 plaintiff Doone returned to Weno from Fefan and found out that the deadline to file nomination papers for the March 6, 2007 national elections had passed. Plaintiff spoke to the defendant on the phone and was told that he would need to find out from the National Election Director in Pohnpei about whether he could still file. Plaintiff called the National Election Director in Pohnpei and asked if he could still file his nomination petition.

11) Plaintiff sent someone to the Chuuk National Election Office to pick up the nomination petition form, but because the deadline had already passed, Election Commissioner Silo only provided that person with the first page of the three page form.

[14 FSM Intrm. 491]

12) On or around November 7, 2006, plaintiff went in person to the Chuuk National Election Office for the first time to inquire on the decision of the National Election Director in Pohnpei and to pick up the nomination form. Election Commissioner Silo did not give the plaintiff the nomination form and he was informed that the National Election Director had denied plaintiff’s request for late filing.

13) Other persons did file nomination papers for the March 6, 2007 national elections in a timely manner.

III. Temporary Restraining Order

In exercising its broad discretion in considering a motion for a temporary restraining order, the court looks to four factors: (1) the possibility of the irreparable injury to the movant; (2) the balance of the possible injury as between the parties; (3) the movant’s possibility of ultimate success on the merits; and (4) the impact upon the public interest. Ponape Transfer & Storage v. Pohnpei State Public Lands Auth., [1986] FMSC 21; 2 FSM Intrm. 272, 276-77 (Pon. 1986).

A. Possible Irreparable Injury

The plaintiff Doone asserts that he will suffer irreparable injury to his right to be a candidate for the FSM Congress in the March 6, 2007 national elections since he will not be a candidate in that national election and that he has no other available remedy.

The defendant Election Commissioner Silo contends that the plaintiff did not meet the deadline for the filing of nomination papers as set by Public Law No. 14-76 and cannot be allowed to file at this time. Statutory provisions regulate and set the procedures for the filing of nomination papers and for placement of names on the ballot for the March 6, 2007 national elections and there is nothing allowing for filing of nomination papers beyond the deadline set by the law. The defendant also argued that the plaintiff could still be a write-in candidate for the office he seeks.

B. Balance of Possible Injuries

The balance of the possible injuries between the plaintiff Doone and the defendant Election Commissioner Silo is that the plaintiff’s name will not be on the ballot for him to run for an FSM Congress seat in the March 6, 2007 national elections, while the defendant will be injured in the sense that he would be violating the statutory deadline for the filing of nomination papers by accepting such papers after the deadline and that he should adhere to the deadlines set by the national election law.

[14 FSM Intrm. 492]

C. Possible Success on the Merits

With regard to plaintiff Doone’s possibility of success on the merits, the plaintiff’s assertion that he was misadvised by the information of the defendant in the last week of June, 2006 when he was informed that the deadline for the filing of nomination papers was 90 days prior to the March, 2007 national election date cannot be accepted, as this was the correct information at that time. Public Law No. 14-76 had not become effective until August 14, 2006.

The evidence before the court showed that the defendant had made efforts to inform the general public and possible candidates for office of the March 6, 2007 national election date and the deadline for filing of nomination papers. Defendant stated that he provided copies of the timetable to persons who came to the Chuuk National Election Office. Plaintiff did not personally appear at that office until after the deadline for filing nomination papers.

The defendant also posted notice of this information at the post office and Bernie’s Store. Other persons did file nomination papers in a timely manner. The defendant could have done more to disseminate essential information to the general public and potential candidates, but nowhere does Public Law No. 14-76 set forth specific requirements for the dissemination of national election information.

Generally speaking, elections are conducted, carried out, and administered by the executive and legislative branches. Kony v. Mori, 6 FSM Intrm. 28, 29 (Chk. 1993); Hethon v. Os, [2000] FMCSC 6; 9 FSM Intrm. 534 (Chk. S. Ct. Tr. 2000). Courts do not have a primary position in that traditional scheme. The election law states the time at which the court has the right of entertaining an appeal from the final action of the National Election Director. FSM Pub. L. No. 14-76, §§ 70-71 (14th Cong., 4th Spes. Sess. 2006) (to be codified at 9 F.S.M.C. §§ 804-805); cf. Kony, 6 FSM Intrm. at 29-30. There may be cases in which the court would a matter before the election process has been completed. E.g., Robert v. Mori, [1994] FMSC 7; 6 FSM Intrm. 394 (App. 1994) (appeal heard from final administrative decision of National Election Commissioner denying plaintiff place on the ballot for upcoming special election).

D. Public Interest

This situation involves the potential for significant impact on the public interest for both sides. On plaintiff Doone’s side he will not be a candidate for a seat in the FSM Congress in the March 6, 2007 national elections and his supporters will not have the opportunity to vote for him.

On defendant Election Commissioner Silo’s side, the national election deadlines should be applied equitably and fairly, and it would be unfair to other potential candidates to extend the deadline for plaintiff without doing the same for other persons desiring to be candidates. Additionally, it would not be fair to the candidates who did file their nomination papers on time to accept plaintiff’s papers late.

IV. Conclusion

Having heard the testimony of the witnesses and counsel’s arguments, all four factors for the issuance of a temporary restraining order do not weigh so strongly in the plaintiff’s favor that it would cause the court to grant the motion. Accordingly the plaintiff’s motion for a TRO is hereby denied.

The court does not rule on the jurisdictional issue although oral argument was heard on it. The court will reserve its ruling for later should the plaintiff wish to pursue his complaint in this case further. If this case will be pursued, the plaintiff and defendant are ordered to consult and recommend to the court a suitable date for further expedited proceedings to be held in this matter.

[14 FSM Intrm. 493]