1 MILR (Rev.) 146

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 88-03
(High Ct. Civil No. 1987-159)

TOJIO CLANTON,
Petitioner-Appellant

-v-

MARSHALL ISLANDS CHIEF ELECTORAL OFFICER SHIRO RIKLON,
Respondent-Appellee,

and

S. Ct. CIVIL NO. 88-02
(High Ct. Civil No. 1987-161)

NIEDEL LORAK, et al.,
Petitioners-Appellants,

-v-

MARSHALL ISLANDS CHIEF ELECTORAL OFFICER SHIRO RIKLON,
Respondent-Appellee.

APPEAL FROM THE HIGH COURT

AUGUST 2, 1989

ASHFORD, C.J.
KING, A.J. pro tem1, and Kobayashi, A.J. pro tem2

SUMMARY:

These appeals were from judgments of the High Court dismissing appeals to the High Court from rejections by the Chief Electoral Officer of recount petitions. The Chief Electoral Officer found petitioners had failed to show a substantial possibility of a different outcome and rejected the petitions for recount. Judgments of the High Court were affirmed.

DIGEST:

1. APPEAL TO THE HIGH COURT – Decisions of Chief Electoral Officer: Reviews by the High Court of the decisions of the Chief Electoral Officer pursuant to 2 MIRC Ch. 1, § 81(1) are performed by the High Court in the exercise of its appellate jurisdiction.

2. APPEAL AND ERROR – Decisions Reviewable – Decisions on Appeal to High Court: An appeal as of right from any final decision of the High Court in the exercise of its appellate jurisdiction will lie only if the High Court certifies that the case involves a substantial question of law as to the interpretation or effect of any provision of the Constitution.

3. APPEAL AND ERROR – Same – Same: The filing of an appeal in the manner provided by the present Rules of Appellate Procedure sufficiently invokes the power of the Court to determine whether jurisdiction lies under any of the three provisions of Article VI, § 2 of the Constitution to review a decision of the High Court made in the exercise of the High Court's appellate jurisdiction.

4. APPEAL AND ERROR – Same – Same: The Supreme Court's discretion to grant, or indeed to order up, an appeal pursuant to Article VI, § 2(2)(c) of the Constitution appears to be unfettered, but exercising discretion imports a reasoned, mature, and responsible exercise of judicial authority.

5. APPEAL AND ERROR – Questions Reviewable – Record and Proceedings Not in Record: An appeal is on the record. Neither enlargement of the grounds for complaint nor the presentation of additional evidence nor a hearing de novo is encompassed within the ordinary meaning of appeal.

6. STATUTES – Construction and Operation: Statutes are to be construed according to their plain and obvious meaning, absent some indication of legislative intent to the contrary.

7. ELECTIONS AND VOTING – Conduct of Elections – Recounts: The Chief Electoral Officer must be persuaded that there is a substantial possibility that the election result would be affected by a recount, or he must reject a petition for a recount.

8. APPEAL AND ERROR – Questions Reviewable – Asserted Below: An appellate court cannot rule on the merits of a question that was neither presented to, nor decided by, the officer, body or court appealed from.

9. EVIDENCE – Presumptions: The presumption always is that officials have done what the law requires.

OPINION OF THE COURT BY ASHFORD, C.J.

These "appeals," by candidates from Arno and Ujae who failed to be elected to the Nitijela in the 1987 election, were consolidated for briefing and argument. They arose from judgments of the High Court dismissing, on the merits, appeals to the High Court from rejections by the Chief Electoral Officer of recount petitions filed by disappointed candidates following the announcement of the unofficial results of the election. The recount petitions alleged the grounds for recount in statutory language (2 MIRC Ch. 1, § 80(1))3 and were supported by affidavits alleging that ballots were counted that had been cast by voters (five of whom were named in the affidavit concerning Ujae) who were under age or who did not reside or have land rights in the electoral district in which they voted; a ballot box was kept in a private home on Arno for two days and there were more ballots in that box than voters on Arno; and a ballot box was taken to Lukwoj for voters to cast ballots after 7 p.m. and thereafter Arno voters were allowed to cast ballots in that same box.

The Chief Electoral Officer4 responded in writing to the petitions for recount. He stated that the registration records showed the named challenged voters to be of age and residents of or holding land rights in the district in which they voted, all registered voters to be of legal age and that no comparison with registration records could be made for unnamed voters. He further stated that the ballot box kept in a private home was in safekeeping in the home of an electoral officer and did not contain more votes than registered voters in the voting ward where it was used. Finally, the Chief Electoral Officer explained that the election official did not arrive at Lukwoj until after 7 p.m. and denied that any ballots of Arno voters were cast after 7 p.m. in that box.

Noting that the election records and counting procedures were and would be the same, on any recount, as in the original tabulation, the Chief Electoral Officer found petitioners had failed to show a substantial possibility of a different outcome and rejected the petitions for recount.

Petitioners' appeals to the High Court alleged additional grounds for recounts and sought to present additional evidence, including copies of birth certificates of persons under 18 believed to have been allowed to vote. The High Court considered the facts alleged in support of the appeals and the representations of counsel, in addition to the record made by the recount petitions, affidavits and rejection rulings, but declined to allow additional evidence.

A. Jurisdiction.

[1] A threshold question is whether this Court has jurisdiction to hear these "appeals." When a petition for recount has been rejected, an appeal against the decision may be taken to the High Court. 2 MIRC Ch. 1, § 81(1). That was done by petitioners in these cases. The High Court may uphold the appeal and order a recount or dismiss the appeal. 2 MIRC Ch. 1, § 81(2). No provision for further judicial review is contained in the statute5 and the official result of the election is announced on conclusion of the judicial review. 2 MIRC Ch. 1, § 85(2).

Petitioners-Appellants nevertheless proceeded to appeal to this Court on the assumption that the appeal was authorized "as of right" by Article VI, § 2(2)(a) of the Constitution. That jurisdictional grant applies to "any final decision of the High Court in the exercise of its original jurisdiction." We are of the opinion, however, that reviews by the High Court of the decisions of the Chief Electoral Officer pursuant to 2 MIRC Ch. 1, § 81(1) are performed by the High Court in the exercise of its appellate jurisdiction. The plain language of that subsection and subsection 81(2) admit of no other conclusion.

[2] But an appeal "as of right" from any final decision of the High Court in the exercise of its appellate jurisdiction will lie "only if the High Court certifies that the case involves a substantial question of law as to the interpretation or effect of any provision of the Constitution." Constitution Article VI, § 2(2)(b). The notice of appeal does not allege that the High Court has so certified, or even that the High Court was requested to do so. Therefore, Petitioners-Appellants do not have an appeal "as of right" to this court.

[3,4] Nevertheless, pursuant to Article VI, § 2(2)(c), an appeal may still lie "at the discretion of the Supreme Court, subject to such conditions as to security for costs or otherwise as the Supreme Court thinks fit, from any final decision of any court." We note that the Rules of Appellate Procedure do not cover "appeals" directed to this discretionary power. In the absence of specific procedural requirements that track the three jurisdictional provisions of Article VI, § 2, we hold that the filing of an appeal in the manner provided by the present Rules of Appellate Procedure sufficiently invokes the power of this Court to determine whether jurisdiction lies under any of the three provisions of § 2. Accordingly, we interpret the notice of appeal which has been filed as including a request to this court to exercise its discretionary jurisdiction. The Supreme Court's discretion to grant, or indeed to order up, an appeal pursuant to Article VI, § 2(2)(c) appears to be unfettered. No qualifying words restrict the plain language. However, the word "discretion" itself imports a reasoned, mature, and responsible exercise of judicial authority.

For example, the laws of the Trust Territory of the Pacific Islands granted to the appellate division of the High Court discretion to hear appeals in matters involving the construction or validity of laws, regulations, and enactments, "if the appellate division considers that the public interest will be served thereby." 5 TTC § 54.

We are of the opinion that the issues presented in these cases are of great public interest, involving the construction and operation of election statutes which are basic to the legitimacy of the government of this Republic.

We therefore take jurisdiction of these appeals in the exercise of our discretion pursuant to Article VI, § 2(2)(c) of the Constitution.

B. Procedure on appeal to the High Court.

Appellants have complained that the lower court deprived them of the opportunity to issue subpoenas and adduce evidence, citing Beasa Peter v. Riklon, High Court Civil Action No. 1983-120 (1984), and the Marshall Islands Rules of Civil Procedure. Neither is persuasive. While the opinion in the Beasa Peter case indicates that evidence outside the record may have been considered by the High Court on an appeal from the Chief Electoral Officer's decision not to grant a recount, this Court is not bound by the procedure adopted by the High Court in that case when it believes that procedure to have been in error. Neither are the Marshall Islands Rules of Civil Procedure relevant, because they deal with civil actions which are "commenced by filing a complaint with the court." MIRCivP Rule 3. Each of these cases was commenced by filing a paper in the High Court entitled "Appeal From Rejection of Recount Petition." They were properly so titled, because the statute, 2 MIRC Ch. 1, § 81, speaks unequivocally of an appeal to the High Court, against the decision of the Chief Electoral Officer, and limits the action that may be taken by the High Court in connection with the appeal.

[5,6] As a matter of general law, it is axiomatic that an appeal is on the record. Osawa v. Ludwig, 3 TTR 594 (1966); Witters v. Wash. Dept. of Serv. For the Blind, 474 U.S. 481, 88 L. Ed. 2d 846, n.3, 106 S. Ct. 748 (1986). Neither enlargement of the grounds for complaint nor the presentation of additional evidence nor a hearing de novo is encompassed within the ordinary meaning of appeal. Nothing in 2 MIRC Ch. 1 § 81 suggests that any meaning other than the ordinary meaning of the word was intended. It is well settled that the statutes are to be construed according to their plain and obvious meaning, absent some indication of legislative intent to the contrary. United States v. Turkette, 452 U.S. 576, 69 L. Ed. 2d 246, 252, 101 S. Ct. 2524 (1981); United States v. James, 478 U.S. 597, 92 L. Ed. 2d 483, 493, 106 S. Ct. 3116 (1986).

C. Rejection of the recount petitions.

Appellants sought recounts of the Arno and Ujae votes under both subsections (a) and (b) of 2 MIRC Ch. 1, § 80(1). Candidate Clanton from Ujae trailed the winning candidate by 2 votes out of a total of 204 votes counted and Candidate Lorak from Arno was 31 votes, out of 2087 votes counted, behind the second-place winner. The results, they claim, were "so close that it would be proper to have the voting figures rechecked." 2 MIRC Ch. 1 § 80(1)(a). It is apparent that the results could be characterized as "close," both in terms of percentages of votes cast and numbers of votes; 2 votes, or 1% of those cast, in the case of Ujae and 31 votes, or 1.5% of those cast, in the case of Arno.

[7] Whether or not a petitioner for a recount under 2 MIRC Ch. 1, § 80(1)(a) must aver facts believed to justify a recount, as 2 MIRC Ch. 1, § 80(2) requires for a recount requested under 2 MIRC Ch. 1, § 80(1)(b), the Chief Electoral Officer must be persuaded that there is a "substantial possibility" that the election result would be affected by a recount or he must reject the petition. 2 MIRC Ch. 1, § 80(4). The statute sets forth no criteria to guide the Chief Electoral Officer in the exercise of his discretion, nor did the Appellants furnish information not already known to him which arguably gave rise to a substantial possibility that a recount would establish a different result. In the circumstances, we are not able to find the Chief Electoral Officer abused or erroneously exercised the discretion vested in him by the statute.

The errors urged on this appeal, to justify a recount under 2 MIRC Ch. 1, § 80(1)(b), were that the Chief Electoral Officer did not treat the ballots of voters registered at the polling place on the day of the election as challenged ballots and that there were more ballots in one box than there were people that voted.6 These grounds are somewhat different from the grounds on which the petitions for recount were based. The voters named in an affidavit supporting the Ujae candidate's petition for recount appear to have been voters registered before the election, but the unnamed, allegedly under-age voters complained of in the Arno candidate's affidavit might have been voters registered on election day. The alleged additional ballots were identified in the Arno candidate's affidavit as ballots exceeding the number of voters on Arno, not as ballots exceeding the number of voters who voted.

[8] Taking the latter ground first, we cannot rule, on an "appeal," on the merits of a question that was neither presented to nor decided by the Chief Electoral Officer. Complaint was made to him that more ballots were in a box than there were voters at that place, and he responded that for every voting ward the count showed fewer ballots than there were registered voters. Now it is contended that not so many persons voted as there were ballots in the box. This question presumably could have been raised during the public count of the vote (see 2 MIRC Ch. 1, § 78), and in any event, in the petition for recount. It cannot be raised for the first time on appeal.

[9] We turn next to the claim that the Chief Electoral Officer did not treat the ballots of voters registered at the time of voting as challenged ballots. There is no question that 2 MIRC Ch. 1, § 73(3) requires those ballots to be treated as challenged ballots. However, the record is completely devoid of any evidence to support Appellants' claim that the Chief Electoral Officer did not do what the law required him to do. The presumption always is that officials have done what the law requires.

D. Opportunities to challenge ballots.

What has been said above disposes of all points validly raised in this case, except the complaint that the High Court should not have appointed the Legislative Counsel to appear as amicus curiae. That is dealt with in the opinion on a companion case.7 However, inasmuch as the Elections and Referenda Act, 2 MIRC Ch. 1, is legislation significantly affecting the entire electorate and all candidates, the application of which previously has not been challenged in this Court, we believe a few additional observations may be in order.

The Act provides that eligible voters may cause their names to be entered in the Electoral Register prior to an election (2 MIRC Ch. 1, § 73 1(1)) or may apply for entry in the register at a polling place during the election. 2 MIRC Ch. 1, § 73(2). In the latter event, the voter must seal his ballot in an envelope provided by an election official (2 MIRC Ch. § 73(4)(a)), which the election official must seal in a second envelope, together with the voter's application for registration, and deposit in the ballot box. 2 MIRC Ch. 1, § 73(4)(b).

After voting at a polling place is completed, the ballot boxes are locked and delivered to the Chief Electoral Officer (2 MIRC Ch. 1, § 75) who, as soon as practicable, causes the boxes to be transmitted to the Counting and Tabulation Committee. 2 MIRC Ch. 1, § 77. The Counting and Tabulation Committee must publicly open the ballot boxes, determine whether any challenged ballot papers are to be accepted or rejected, and count and tally all votes properly cast. 2 MIRC Ch. 1, § 78(1). Candidates and their authorized representative are expressly entitled to be present. 2 MIRC Ch. 1, § 78(3). In order to avoid infringing the secrecy of the ballot (2 MIRC Ch. 1, § 73(5)), it is obvious that challenges to ballots must be determined before they are accepted or rejected and that, if counted, the ballots must be separated from the voter's application for registration and the envelope on which the election official endorsed the particulars of the voter and the grounds of challenge as required by 2 MIRC Ch. 1, § 73(4)(b)(ii).

Voters who apply to register at the polling place and whose qualifications a candidate seeks to challenge, as in this case, can be identified and their qualifications reviewed by the Counting and Tabulation Committee (2 MIRC Ch. 1, § 78(1)(b)) promptly following the opening of the ballot boxes and prior to the counting of their ballots. If a candidate is not satisfied with the determination of the Counting and Tabulation Committee, he has the right to require the Chief Electoral Officer to refer the question to the High Court. 2 MIRC Ch. 1, § 88(2). In this way, the eligibility of the challenged ballot to be counted, or not, can promptly and definitely be determined.

On the other hand, if the new voter's application for entry in the Electoral Register appears to be in order, no objection to counting the statutorily challenged ballot is made and the Counting and Tabulation Committee counts the ballot, it is not thereafter possible to identify that ballot. A review of the voter's qualifications thereafter is not only untimely, but also futile. Absent a sufficient number of disqualified voters to justify voiding the election, the results would be unaffected as there is no way of determining for which candidate or candidates the disqualified voters' ballots were cast.

In summary, we note that the Act provides timely, effective remedies for candidates and others to challenge the qualifications of voters, ballots cast, and irregularities in the voting process.

The judgments of the High Court are affirmed.

David Strauss for Appellants
(Dennis J. Reeder with him on the briefs);

Neil Rutledge, Assistant Attorney General, for Appellees

_____________

1The Honorable Samuel P. King, Senior United States District Judge for the District of Hawaii, sitting by Cabinet appointment.

2The Honorable Bert T. Kobayashi, Associate Justice Emeritus of the Supreme Court of Hawaii, sitting by Cabinet appointment.

3The statute in effect at the time of the election was the Elections and Referenda Act 1980, P.L. 1980-20 as amended by P.L. 1983-25. With renumbering of some sections, it is now incorporated in the Marshall Islands Revise Code as Title 2, Chapter 1, which will be cited for ease of reference.

4As used in this opinion, this term shall include the other electoral officials deputized by the Chief Electoral Officer.

5Appeals to the High Court, but no further judicial review, are provided in 2 MIRC Ch. 1, for rejection of a voter's application to amend the Electoral Register (§ 29(3)), and for rejection of a voter's application to be entered in the Electoral Register (§ 34(2)).

6The "errors" of keeping the ballot box in a private home and allowing Lukwoj voters to cast ballots after 7 p.m. were not pursued. While the Chief Electoral Officer conceded that ballots from Lukwoj were cast after 7 p.m., presumably those voters had arrived at the polling place, but had been unable to vote before 7 p.m. See 2 MIRC Ch. 1, § 70(3).

7Clantan, et al. vs. MI Chief Elec. Off., 1MILR (Rev.) 156 (Aug 2, 1989).