In re Decision of National Election Director [2019] FMSC 26; 22 FSM R. 221 (App. 2019) (9 April 2019)

FSM SUPREME COURT APPELLATE DIVISION
APPEAL CASE NO. P8-2019

IN RE: MARCH 27, 2019 DECISION OF THE
NATIONAL ELECTION DIRECTOR ORDERING A
REVOTE AT THE POHNPEI SPECIAL POLLING
PLACE FOR KOSRAE AT-LARGE
CONGRESSIONAL SEAT,

YOSIWO P. GEORGE,
Petitioner,

vs.

TONY OTTO, in his official capacity as the FSM
National Election Director,
Respondent,

AREN B. PALIK,
Real Party in Interest.
_____________________________________________

ORDER DENYING INJUNCTION

Decided: April 9, 2019

BEFORE:

Hon. Dennis K. Yamase, Chief Justice, FSM Supreme Court
Hon. Beauleen Carl-Worswick, Associate Justice, FSM Supreme Court
Hon. Larry Wentworth, Associate Justice, FSM Supreme Court

APPEARANCE:

For the Petitioner: Salomon M. Saimon, Esq.
P.O. Box 911
Kolonia, Pohnpei FM 96941

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HEADNOTES

Appellate Review - Stay - Civil Cases; Civil Procedure - Injunctions
Under Appellate Rule 8(a), the appellate court may grant an injunction during the pendency of an appeal. An injunction during the pendency of an appeal is a preliminary injunction. In re Decision of Nat’l Election Dir., 22 FSM R. 221, 223 (App. 2019).

Appellate Review - Stay - Civil Cases; Civil Procedure - Injunctions
When ruling on a request for an injunction pending appeal, an appellate court engages in the same inquiry as when it reviews the grant or denial of a preliminary injunction. In making this inquiry, the court considers four factors: 1) the likelihood of success on the merits of the party seeking injunctive relief, 2) the possibility of irreparable injury to the movant, 3) the balance of possible injuries or inconvenience to the parties that would flow from granting or denying the relief, and 4) any impact on the public interest. In re Decision of Nat’l Election Dir., 22 FSM R. 221, 223 (App. 2019).

Appellate Review - Stay - Civil Cases; Civil Procedure - Injunctions - Irreparable Harm
One who seeks an injunction pending appeal must show irreparable injury. The party seeking a preliminary injunction must be faced with irreparable harm before the litigation’s end and there must be a clear showing that immediate and irreparable injury would otherwise occur, and there must be no adequate alternative remedy. In re Decision of Nat’l Election Dir., 22 FSM R. 221, 223 (App. 2019).

Appellate Review - Stay - Civil Cases; Civil Procedure - Injunctions - Irreparable Harm; Elections - Revote
A "winning" candidate cannot show that a revote constitutes irreparable harm because, after the revote is held, that candidate may still be declared and certified as the winning candidate - the revote might not alter the ultimate outcome. In re Decision of Nat’l Election Dir., 22 FSM R. 221, 223 (App. 2019).

Appellate Review - Stay - Civil Cases; Civil Procedure - Injunctions - Irreparable Harm
Since irreparable harm before the litigation’s end is a prerequisite to preliminary injunctive relief, when irreparable harm does not exist, a preliminary injunction should be denied. In re Decision of Nat’l Election Dir., 22 FSM R. 221, 223 (App. 2019).

Appellate Review - Stay - Civil Cases
When an appellant seeking a stay cannot show irreparable harm, the court need not consider his likelihood of success on the merits. In re Decision of Nat’l Election Dir., 22 FSM R. 221, 224 (App. 2019).

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COURT’S OPINION

PER CURIAM:

On April 5, 2019, the petitioner filed his Motion for Preliminary Injunction, in which he seeks to enjoin the April 18, 2019 revote that the National Election Director ordered at one polling place for the Kosrae at-large Congressional seat. That motion is denied for the following reasons.

I.

The petitioner, Yosiwo P. George, and the respondent, Aren B. Palik, were both candidates for the Kosrae four-year, at-large congressional seat in the general election held March 5, 2019. On March 8, 2019, National Election Director Tony Otto certified George as the winning candidate with a ten-vote margin of victory. Palik complained that there were various election irregularities at two special polling places and sought certain relief from the election officials. On March 27, 2109, Director Otto ordered a revote to be held on April 18, 2019, at the Pohnpei special polling place for the Kosrae at-large congressional seat. No further relief was ordered. On April 1, 2019, George filed this appeal from Director Otto’s decision, and on April 5, 2019, he moved for a preliminary injunction halting the revote until after the court has heard and decided his appeal.

II.

"Under Appellate Rule 8(a), we may grant an injunction during the pendency of an appeal. An injunction during the pendency of an appeal is a preliminary injunction." Berman v. Pohnpei, 18 FSM R. 418, 420 (App. 2012). When ruling on a request for an injunction pending appeal, an appellate court "’engage[s] in the same inquiry as when it reviews the grant or denial of a preliminary injunction.’" Id. at 421 (quoting Walker v. Lockhart, [1982] USCA8 353; 678 F.2d 68, 70 (8th Cir. 1982)).

In making this inquiry, we consider four factors: 1) the likelihood of success on the merits of the party seeking injunctive relief, 2) the possibility of irreparable injury to the movant, 3) the balance of possible injuries or inconvenience to the parties that would flow from granting or denying the relief, and 4) any impact on the public interest. Berman, 18 FSM R. at 421 (citing FSM v. GMP Hawaii, Inc., 17 FSM R. 555, 593 (Pon. 2011)).

George contends that most likely he will prevail on the merits because, in his view, Palik’s election petition failed to follow the prescribed form; because the relief that Director Otto granted was not the relief Palik sought; because George did not receive copies of Palik’s March 7, 2019 letter or Palik’s March 13, 2019 administrative petition until a half hour before his response was due on March 21, 2019; because the election regulations that require disputes to be settled in an expedient manner at the polling place were not followed as no steps appear to have been taken to remedy the ballot shortage problem at the Pohnpei special polling place; and because the Director’s logic in granting the revote relief was faulty and the remedy devised was not workable and will cause greater harm than the status quo.

George contends that, if the revote is not enjoined and the status quo preserved, he "may suffer harm that is truly irreparable" if the revote causes him to lose his traveling voters and Palik is elected." Mot. for Prelim. Inj. at 11 (Apr. 5, 2019). George further contends that Palik will not suffer any injury if the revote is enjoined until after George’s appeal is decided on the merits and that this is in the public interest.

III.

"’One who seeks an injunction pending appeal must show irreparable injury.’" Berman, 18 FSM R. at 421 (quoting Classic Components Supply, Inc. v. Mitsubishi Elecs. Am., Inc., [1988] USCA7 128; 841 F.2d 163, 164 (7th Cir. 1988)). The party seeking a preliminary injunction must be faced with irreparable harm before the litigation’s conclusion and there must be a clear showing that immediate and irreparable injury would otherwise occur, and there must be no adequate alternative remedy. Nena v. Saimon, 19 FSM R. 317, 328 (App. 2014); Berman, 18 FSM R. at 421.

A "winning" candidate cannot show that a revote constitutes irreparable harm because, after the revote is held, that candidate may still be declared and certified as the winning candidate - the revote might not alter the ultimate outcome. See Asugar v. Edward, 13 FSM R. 209, 212 & n.2 (Chk. 2005). George thus cannot show that he will suffer irreparable harm. He can only show that he might end up losing an election that had seemed he had already won.

Since irreparable harm before the litigation’s end is a prerequisite to preliminary injunctive relief, when irreparable harm does not exist, a preliminary injunction should be denied. Nena v. Saimon, 19 FSM R. 317, 329 (App. 2014); Sipenuk v. FSM Nat’l Election Dir., 15 FSM R. 1, 6 (App. 2007); Mwoalen Wahu Ileile en Pohnpei v. Peterson, 20 FSM R. 546, 550-51 (Pon. 2016); Luen Thai Fishing Venture, Ltd. v. Pohnpei, 18 FSM R. 563, 567 (Pon. 2013); GMP Hawaii, Inc., 17 FSM R. at 593; Ueda v. Chuuk State Election Comm’n, 16 FSM R. 392, 394 (Chk. 2009); Nelson v. FSM Nat’l Election Dir., 16 FSM R. 356, 358 (Chk. 2009); Ponape Transfer & Storage v. Pohnpei State Public Lands Auth., 2 FSM R. 272, 276 (Pon. 1986). Furthermore, the public interest (in fair and accurate elections) and the balance-of-injuries factors favor neither George nor Palik. Because George cannot show irreparable harm, we need not, at this point, consider how likely he is to succeed on the merits. See Pohnpei Port Auth. v. Pohnpei, 15 FSM R. 563, 567 (Pon. 2008).

IV.

Accordingly, petitioner Yosiwo P. George’s Motion for Preliminary Injunction is denied.

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