IN THE SUPREME COURT OF THE
REPUBLIC OF PALAU
TRIAL DIVISION

CIVIL ACTION NO. 09-005

EDWIN MARIO,
Plaintiff,

vs.

PALAU ELECTION COMMISSION,
SANTOS BORJA, in his official
capacity as the Chairman of the Palau
Election Commission, and
CELESTINE TATUWO YANGILMAU,
Defendants.

DECISION

At 4:01 p.m. on January 14, 2009, Plaintiff Edwin Mario filed a Complaint against the Palau Election Commission (PEC), Santos Borja, in his official capacity as the Chairman of the Palau Election Commission, and Celestine Tatuwo Yangilmau. Plaintiff ran against Defendant Yangilmau for the Delegate seat of Sonsorol State in the 2008 general election. Defendant Yangilmau won the election. Plaintiff alleged that although Yangilmau was a citizen of Palau, he did not meet the residency requirements to represent Sonsorol in the Olbiil Era Kelulau (OEK), as required by the Palau Constitution at Article IX, Section 6 (4) and the relevant statutes, 23 P.N.C. '' 1102(d) and 1103. Plaintiff protested Yangilmaus victory by filing a letter of objection with the PEC on November 5, 2008, alerting the PEC to his belief that Yangilmau did not meet the residency requirements. See Plaintiff Exhibit 2. He provided a courtesy copy of this letter to the Attorney Generals Office and followed up with a letter detailing his allegations to the Attorney Generals Office on November 16, 2008. See Plaintiff Exhibit 3.

In addition to the Complaint, Plaintiff filed a motion for a Temporary Restraining Order and Preliminary Injunction at 4:30 p.m. on January 14, 2009. Plaintiff sought to restrain Defendant Yangilmau from taking the oath of office on the morning of January 15, 2009. In addition to the motion and underlying brief, Plaintiff filed five affidavits, all of the affiants stated, in essence, that Yangilmau did not live in Sonsorol in 1987 and does not currently live in Sonsorol. In an Order issued at 5:13 p.m. on January 14, 2009, the Court denied Plaintiffs motion for a Temporary Restraining Order, concluding that Plaintiff had not shown he would suffer irreparable injury if Defendant Yangilmau was sworn in. Defendant Yangilmau was sworn in to the House of Delegates as the Sonsorol Delegate on January 15, 2009.

Defendant PEC filed an answer on January 31, 2009. On March 9, 2009, Defendant Yangilmau filed a motion to dismiss the complaint. Defendant Yangilmau appended several documents to his motion: 

- the House of Delegates (HoD) Credential Committee Report, dated January 15, 2009, which recommend[ed] that a resolution be approved certifying that the credentials of the following members-elect are in order and seating them as Members of the House of Delegates of the Eighth Olbiil Era Kelulau . . . . 2. Sonsorol: Celestine Yangilmau (Attachment A);

- a transcript of the HoD Installation Session on January 15, 2009, where the Delegates adopted the above-listed Credential Committee Report, and passed House Resolution No. 8-1-I, entitled A House Resolution to confirm the results of the November 4, 2008 national election and to certify the credentials of the winning candidates to the House of Delegates and the seating of the same members of the House of Delegates of the Eighth Olbiil Era Kelulau. The transcript reflects that the Report and Resolution passed with no reservations voiced concerning the qualifications of Celestine Yangilmau (Attachment B);

- A certified copy of House Resolution No. 8-1-I, which reads in relevant part: Be it resolved, that the House of Delegates of the Eighth Olbiil Era Kelulau, Installation Session, hereby confirms the results of the November 4, 2008 national election, judges the election and qualification of its members-elect to be in order, and seats the following Delegates of the Eighth Olbiil Era Kelulau: . . . 13. Sonsorol State: Celestine Yangilmau . . . . (Attachment C); and

- The Oath of Office for Celestine Yangilmau as the Delegate for Sonsorol (Attachment D). 

Defendant points to ROP R.Civ.P. 12(b)(1) and the Sole Judge Clause to contend that the Court lacks subject matter jurisdiction, and should dismiss Plaintiffs complaint. On April 13, 2009, Plaintiff responded to Defendant Yangilmaus motion to dismiss the complaint. For the reasons detailed below, the Court agrees with Defendant Yangilmau and this case will be dismissed with prejudice.

The ability of the legislative branch to qualify its own is an oft-litigated issue in Palau. In Fransisco et al. v. Chin, 10 ROP 44 (2003), the Appellate Court clarified the boundaries of the Sole Judge Clause. In Fransisco, the Court turned to the records and committee report of the First Constitutional Convention to ascertain the meaning of constitutional language. 10 ROP at 49 (citations omitted). The Court interpreted the Committee Report to mean that while the framers intended for the Senate to determine which candidates were elected and whether those candidates were qualified, they did not intend for the Senate to pass judgment on what the eligibility requirements set forth in the constitution were. 10 ROP at 49. In that vein, the Court concluded that it was the Courts job to interpret the residency requirement set forth in Article IX, Section 6 of the Constitution, as it did in Ngerul v. Chin, 8 ROP 263 (2001), and it was the Senates job to make factual determinations concerning a Senator-elects residency based on the framework set out in Ngerul. 10 ROP at 55.

In both Ngerul, 8 ROP at 266, and Tulop et al. v. Palau Elections Commission et al., 12 ROP 100, 102 (2005), the Court determined that it had jurisdiction to decide the viability of a candidates qualifications, because the legislative body had not yet reached a final decision on who to seat. In Ngerul, the Senate Credentials Committee assigned to investigate each candidates qualifications for office recommended seating each senator-elect except [Defendant], who was to remain unseated pending a further investigation of his qualifications and the outcome of the then newly-filed Ngerul lawsuit. Fransisco, 10 ROP at 46. Similarly, the Tulop Defendant, Delegate-elect Idechong, conceded during discussions on credentials in the HoD that he would take my belongings and go home if he lost the litigation concerning his seat. 12 ROP at 103. The Acting Floor Leader of the HoD added that, although he preliminarily supported the resolution to certify Delegate-elect Idechong, if former Delegate Elia Tulop wins in court than I would like to assure him that . . . he would be seated on this floor. Id. These sentiments were reiterated by another HoD Delegate. Id.

In this case, Defendant Yangilmau has proffered the Credentials Committee Report, the Resolution, and the transcript of the session where the Credentials Committee Report and the Resolution were adopted. None of them qualify Defendant Yangilmaus appointment as the Delegate for Sonsorol. Mr. Yangilmaus situation is similar to that of Mr. Nakamura in the recently-decided case of Louis v. Nakamura, Peleliu State Legislature, Civil Appeal No. 08-035 (Filed April 10, 2009). Unlike Tulop and Ngerul where the elected member was not yet seated or seated conditionally, in the instant case the Peleliu State Legislature seated Nakamura without condition or contingency. As a result, Nakamura is a full member of the Peleliu State Legislature and protected under the literal terms of the sole judge clause from a judicial review of his qualifications. See Sato, 13 ROP at 194 (challenged member had been seated; review was inappropriate). Louis at p. 4.

Plaintiff is not asking this Court to define the residency qualifications. His Complaint cites no due process violation, and seeks no legal interpretation of a statute or the Constitution. He is solely asking the Court to make factual determinations as to whether Defendant Yangilmau has met the residency qualifications. That is a job for the Legislature, and not the Court.

In reaching this conclusion, this Court finds itself in disagreement with the trial court in Elbelau et al. v. Office of the Election Commissioner et al., 3 ROP 426, 426-432 (Tr. Div. 1993). In Elbelau, the Court denied Defendants motion to dismiss a challenge to the qualifications of a seated Delegate, and proceeded to address the merits of the allegations after trial. 3 ROP at 426. In reaching its conclusion, the Elbelau Court did not have the guidance of Ngerul, Fransisco, Tulop or Louis, however.

The Elbelau Court justified its decision to consider all matters of candidate election and qualification on its reading of the Committee Report notes, and the apparent incongruity that would stem from a different conclusion: If PEC determines that a prospective candidate is not qualified, that candidate can appeal to the Supreme Court, so why should someone who questions the bona fides of an elected candidate not have that same option? Elbelau, 3 ROP at 430. There are at least two reasons which mandate different treatment for a candidate as compared to an elected legislator: first, the plain language of the Constitution places the onus on the legislative body, and not the courts to make factual determinations concerning the qualifications of their members; second, it is not true that a complainant has no recourse after a candidate is elected, if his complaint is factual in nature it should be filed with the legislature, and if the issue requires constitutional or other legal interpretation, or raises due process concerns, then it should come to the judiciary.

For the reasons set out in this decision and further discussed in the Louis Opinion, Defendants motion is GRANTED, and this matter is dismissed with prejudice. 

April 14, 2009

_____________________________
Alexandra F. Foster
Associate Justice