CHUUK STATE SUPREME COURT APPELLATE DIVISION
Cite as In re Mid-Mortlocks Interim Election,
11 FSM Intrm. 470 (Chk. S. Ct. App. 2003)
 
[11 FSM Intrm. 470]
 
IN THE MATTER OF THE INTERIM ELECTION FOR
MID-MORTLOCKS, HOUSE OF REPRESENTATIVES,

)))))))))))))))))))))))))))))))))))))))))))))))))))))

MARCUS HENRY, in his capacity as candidate for
one of the Representative seats,
Appellant,
 
 
vs.
 
 
THE CHUUK STATE ELECTION COMMISSION, its
MEMBERS in their official capacities, the EXECUTIVE
DIRECTOR of said Commission in his official capacity,
and BARTOL WERIEY, as a real party in interest,
Appellees.
 
CSSC APPEAL NO. 03-2003
 
OPINION
 
Trial:  April 10-11, 2003
 
Decided:  April 14, 2002
 
BEFORE:
 
          Hon. Dennis K. Yamase, Temporary Justice, Presiding*
          Hon. Camillo Noket, Temporary Justice**
          Hon. Charles L. Light, Temporary Justice**
 
                      *Associate Justice, FSM Supreme Court
                      **Attorney at Law, Weno, Chuuk
 
APPEARANCES:
 
For the Appellants:                 Wesley Simina, Esq.
                                                  P.O. Box 94
                                                  Weno, Chuuk FM 96942
 
For the Appellees:                  Ready Johnny, Esq.
                                                  Chuuk Attorney General
                                                  P.O. Box 187
                                                  Weno, Chuuk FM 96942
 
[11 FSM Intrm. 471]
 
For the Real Party in Interest:    Julio M. Akapito
                                                      P.O. Box 303
                                                      Weno, Chuuk FM 96942
* * * *

HEADNOTES

Courts ) Judges
      An appellate panels composition of three temporary justices is proper in the sudden absence of the presiding Chuuk State Supreme Court justice when the other Chuuk State Supreme Court justices were disqualified and the matter could not wait for the original presiding justices recovery from illness because the court was required by statute to decide on the contested election prior to April 15, 2003 and therefore a third temporary justice had to be appointed immediately. In re Mid-Mortlocks Interim Election, 11 FSM Intrm. 470, 473 (Chk. S. Ct. App. 2003).
 
Elections
     When an election contestant has not proven that an unauthorized pollwatchers actions made the situation at the Pohnpei VAAPP such that the results from that ballot box are so unreliable that they must be discarded, those results will stand. In re Mid-Mortlocks Interim Election, 11 FSM Intrm. 470, 474 (Chk. S. Ct. App. 2003).
 
Elections
     If true, even a failed attempt to intimidate voters, especially at a polling place, would subject that person to criminal liability. In re Mid-Mortlocks Interim Election, 11 FSM Intrm. 470, 474 (Chk. S. Ct. App. 2003).
 
Elections
     A letter to the Commission, that asks that the vote be changed from 154 to 164 is not in the form of a verified complaint as required by statute. In re Mid-Mortlocks Interim Election, 11 FSM Intrm. 470, 475 (Chk. S. Ct. App. 2003).
 
Elections
     The Election Director does not have the authority to open a ballot box and to change the certification on his own. In re Mid-Mortlocks Interim Election, 11 FSM Intrm. 470, 475 (Chk. S. Ct. App. 2003).
 
Elections
     The unauthorized opening of a ballot box creates severe impediments to resolving an election contest in a manner reflecting the voters intent. In re Mid-Mortlocks Interim Election, 11 FSM Intrm. 470, 475 (Chk. S. Ct. App. 2003).
 
Elections
     An aggrieved candidate has a due process right, created by statute, to be heard on his verified complaints contentions. In re Mid-Mortlocks Interim Election, 11 FSM Intrm. 470, 475 (Chk. S. Ct. App. 2003).
 
Elections
     An aggrieved candidate should file a verified complaint, which should be heard and considered by the Election Commission before it alters or certifies the figures certified by the Overall Chairman and the Director. In re Mid-Mortlocks Interim Election, 11 FSM Intrm. 470, 476 (Chk. S. Ct. App. 2003).
 
[11 FSM Intrm. 472]
 
Elections ) Recount
     When the ballot box was obviously not in the condition it was when locked and it was not even in the condition that the Director asserted that it was in when he opened (and closed) it to retrieve the tally sheet, the possibility that the box could have been tampered with and that the ballots were not in their original condition was unmistakable. Since the court could have no confidence in the integrity of the ballots because they were so tainted that they were inadmissable as evidence of the votes cast, it would be pointless to order a recount. In re Mid-Mortlocks Interim Election, 11 FSM Intrm. 470, 476 (Chk. S. Ct. App. 2003).
 
Elections ) Recount
     If the Director had not opened the ballot box on his own, but instead waited as required by statute, for a court order to recount, the ballots integrity would, in all likelihood, be unquestioned and a recount could have been ordered which should have satisfied the parties and the public as to the true vote totals. In re Mid-Mortlocks Interim Election, 11 FSM Intrm. 470, 476 (Chk. S. Ct. App. 2003).
 
Appellate Review ) Standard of Review; Elections
     When an election contest comes before the Chuuk State Supreme Court appellate division with the best evidence of the results, the ballots, irreversibly tainted and unusable, the court is forced to consider less authoritative evidence. Since the election law mandates that a trial be held for election contests appealed to the appellate division, this requires the court to make a de novo determination of the facts as well as stating its interpretation of the law. The court therefore hears witness testimony in addition to considering documentary evidence and legal argument. In re Mid-Mortlocks Interim Election, 11 FSM Intrm. 470, 476 (Chk. S. Ct. App. 2003).
 
Elections
     When the election law was not complied with in making a certification of votes, that certification is void. In re Mid-Mortlocks Interim Election, 11 FSM Intrm. 470, 476-77 (Chk. S. Ct. App. 2003).
 
Statutes ) Construction
     A court should construe a statute as the legislature intended. Legislative intent is determined by the statutes wording. What a legislature says in the statutes text is considered the best evidence of the legislative intent or will. In re Mid-Mortlocks Interim Election, 11 FSM Intrm. 470, 477 (Chk. S. Ct. App. 2003).
 
Appellate Review ) Standard of Review; Elections
     The Chuuk election law requires a trial in the appellate division and not a normal appeal where generally only issues of law are decided and the facts as determined below are left undisturbed. In re Mid-Mortlocks Interim Election, 11 FSM Intrm. 470, 477 (Chk. S. Ct. App. 2003).
 
Appellate Review ) Standard of Review; Elections; Statutes) Construction
     The Legislature has granted the appellate division "all powers necessary to make the determination" of the contested election. The Legislatures intent when it said "all powers" was that the court could consider all relevant and admissible evidence properly offered. In re Mid-Mortlocks Interim Election, 11 FSM Intrm. 470, 477 (Chk. S. Ct. App. 2003).
 
Constitutional Law ) Chuuk; Elections
     In keeping with the Chuuk Constitution Judicial Guidance Clauses requirement that court decisions must be in conformity with "the social and geographical configuration of the State of Chuuk," parol evidence may be used to impeach a written election return that was based upon an oral communication by radio because Chuuks geographical configuration is such that the transmission of election returns from the outer islands is oral (by radio). In re Mid-Mortlocks Interim Election, 11 FSM
 
[11 FSM Intrm. 473]
 
Intrm. 470, 477 (Chk. S. Ct. App. 2003).
 
Costs; Elections
     When the election commission never properly certified anyone as the winning candidate, an appellate trials result cannot confirm a candidates election, but rather determines which of two contestants should have been declared elected. Therefore no judgment for costs will be awarded in anyones favor. In re Mid-Mortlocks Interim Election, 11 FSM Intrm. 470, 477-78 (Chk. S. Ct. App. 2003).

* * * *

COURTS OPINION

DENNIS YAMASE, Temporary Justice, Presiding:

     This election contest arises from the March 4, 2003 election for the seats assigned to represent the Mid-Mortlocks (Election District No. 9) in the Chuuk Legislature, House of Representatives, with the top two vote-getters to be elected. Marcus Henry and Bartol Weriey finished second and third in the balloting. The order of finish is, however, disputed. This contest seeks to resolve which of the two finished second, and is therefore elected. This comes before us on appeal from the Chuuk State Election Commissions rejection (ME-02; No. 03-22-2003-02)) of candidate Marcus Henrys verified complaint concerning whether the Mid-Mortlocks votes cast at Palikir [the Pohnpei VAAPP(voting at alternative polling place)] should be disregarded because of the alleged intimidation of voters by Werieys pollwatcher there and whether candidate Bartol Weriey should have been credited with receiving 154 or 164 votes in Kuttu.

I.  Preliminary Question of the Panels Composition

     Chuuk State Supreme Court Associate Justice Machime OSonis was originally assigned to preside over this panel. Justice OSonis unfortunately took ill the day before trial was scheduled. The Chief Justice appointed Attorney Charles L. Light to fill out the panel. At the call of this case, counsel questioned the propriety of the panels composition in the sudden absence of a Chuuk State Supreme Court justice presiding over the panel.

     Justice Simina was disqualified because of his relationship to one of the counsel. The other two justices had recused themselves because of conflicts, although their recusals were not in writing. This matter could not wait, as would normally be possible, for Justice OSoniss recovery because the court is required by statute to "decide on the contested election prior to the date upon which the declared winning candidates are to take office." Chk. S.L. No. 3-95-26,  131. In this case, that date is April 15, 2003.

    A third temporary justice therefore had to be appointed immediately. This situation is similar to that in Cholymay v. Chuuk State Election Commission, 10 FSM Intrm. 145, 150-52 (Chk. S. Ct. App. 2001) where the court upheld the validity of that appellate panels composition in an election contest when no Chuuk State Supreme Court justice was available before the deadline. Upon deliberation, we saw no reason to depart from that precedent and upheld the propriety of this panels composition. Trial then proceeded as scheduled.

II.  Pohnpei VAAPP

     Henry contends that the actions of Werieys pollwatcher at the Pohnpei VAAPP so tainted the

[11 FSM Intrm. 474]

votes cast there that the results of that box should be thrown out or the election there done over. Werieys pollwatcher there was not on the list of those authorized to be present there. By his own admission at trial, he did not know that he should have applied in advance to be included on the list of recognized pollwatchers. He testified that Weriey had asked him to be a pollwatcher there and he just showed up at the polls and announced that he was Werieys pollwatcher.

     Henry contends that the pollwatcher intimidated, or tried to intimidate about 25 Kuttu voters (including a poll worker) at the Pohnpei VAAPP by insisting that they should cast only one vote (for Weriey) instead of the two they were allowed, that he brought some voters in through the exit door, and that he did some electioneering and campaigning in the polling place.

     We do not find that Henry has proven that the situation at the Pohnpei VAAPP was such that the results from that ballot box are so unreliable that they must be discarded. Furthermore, a brief look at the certified results shows that the total number of votes cast for candidates was substantially (more than 10%) larger than twice the number of votes cast on the ballot question for which there was only a yes or no vote cast. This would seem to indicate that very few chose to cast only one vote for a candidate instead of the permitted two. Otherwise the total votes for candidates would probably be less than double the yes or no votes.

     This does not mean that the pollwatchers actions, if true as alleged, are acceptable. If true, even a failed attempt to intimidate voters, especially at a polling place, would subject that person to criminal liability. Chk. S.L. No. 3-95-26,  112. This matter is therefore referred to both the Chuuk Attorney General and the FSM Attorney General (because the acts took place at the national capitol where the national government can exercise criminal jurisdiction or also because of potential civil rights charges) for investigation and possible prosecution.

III.  Result from Kuttu box

A.  Background

     Henrys second contention requires more detailed analysis. This much can be gleaned from the evidence before us:

     Sometime late in the evening of Election day, March 4, 2003, the Mid-Mortlocks Regional Chairman, Benito Petrus, received a radio transmittal from Kuttu reporting the election results there. That transmission was recorded on an official election form (used for receipt of results from all the outer islands) and signed by Benito Petrus. On that form Weriey was recorded as receiving 154 votes in Kuttu. This figure was entered in the counting and tabulating committees official records by its Overall Chairman, Johnny Meippen.

     A couple of days later, Werieys wife visited Meippen and told him that her figures for her husbands total vote did not match the Election Commissions. Comparing the votes polling place by polling place, it became apparent that the difference lay in the Kuttu return. Mrs. Werieys figures had 164 votes for Weriey in Kuttu while the Commission had 154. She asked that the Commission "correct" the figure to 164. Meippen refused. He told her that he could not unilaterally change the official figures, but that there was a process by which an aggrieved candidate could obtain redress ) file a verified complaint with the Commission, which would then consider it. Mrs. Weriey apparently made repeated requests to Meippen and the Executive Director, Nickson Bossy, to "correct" the official return. They declined to do so.

     On March 8, 2003, Meippen and Bossy certified all the results of the March 4th election. That

[11 FSM Intrm. 475]

certification included only 154 Kuttu votes for Weriey. The certified vote totals for the Mid-Mortlocks election district were 785 for Henry, 780 for Weriey. That certification was transmitted to the Commission for its action and certification.

     According to the testimony of Martin Ham, the election official in charge of supervising the Mid-Mortlocks election, after the votes were counted and tabulated on Kuttu (where he was present), the counted ballots were locked in the bottom of the ballot box and the other election materials (including the counting sheets, the tally sheets, and the keys) were put in the top part of the ballot box and the box was then locked and put in police custody. He and the others then went to radio the results to Weno.

     Ham testified that one of his pollworkers, Loyola Mony, radioed the results (for him). Ham testified that after Mony radioed the result as 154 votes for Weriey, Ham and the other pollworkers told Mony that he had made a mistake and sent the wrong number for Weriey. Shortly thereafter, according to Hams testimony and to the testimony of Eric Paul (who, although an Election Commission member, was acting in his capacity as radio operator at the Disaster Coordinating Office on Weno in receiving the election result transmissions), Mony radioed a corrected figure ) 164 for Weriey ) more than once. Ham then escorted the Mid-Mortlocks ballot boxes to Weno (arriving early the morning of the 11th) where he turned the boxes over to Director Bossy.

     Director Bossy testified that once the Kuttu ballot box arrived on Weno, he opened the top part of the box, extracted the tally sheet and relocked the box, never disturbing the rest of the contents. He testified that it was his own decision, not the Commissions to open the Kuttu box. He testified that, based on that tally sheet, he changed the Kuttu vote total for Weriey to 164 and that was contained in the certificate of election the Commission signed and issued March 11, 2003. Bossy testified that he opened the Kuttu box in the presence of Benito Petrus and two other persons who he did not know and whose names he did not know, but who, he says, told him that they were the candidates representatives. None of these three were available to testify at trial. Bossy asserted that he did not open the bottom part of the ballot box where the cast ballots were deposited.

     Also dated March 11, 2003, was a letter from Weriey to the Commission, asking that his Kuttu vote be changed from 154 to 164. This letter was not in the form of a verified complaint as required by statute, Chk. S.L. No. 3-95-26,  127.

     After the Commission signed and certified the altered vote total (Weriey 790, Henry 785), Henry filed on March 14, 2003, as required by statute, a verified complaint. The complaint alleged that opening the Kuttu ballot box and checking the tally sheet was improper because only a court could order the opening of a ballot box with all parties present, and a recount taken, and asked that the first certification be reinstated because declared results cannot be altered. It also asked, for the reasons discussed above, that the Pohnpei VAAPP results be disregarded.

     On March 22, 2003, Henry was afforded a hearing before the Commission on the subject of his Pohnpei VAAPP allegations only, the Commission having announced that its determination of 164 Kuttu votes for Weriey would stand as is. The Commission issued its written denial on March 26, 2003. It is from this decision that aggrieved candidate Henry appeals to this court.

     Henry is correct that the Director did not have the authority to open the Kuttu box and to change the certification on his own. As discussed below, the opening of the Kuttu box has created severe impediments to resolving this election contest in a manner reflecting the voters intent. Henry was also deprived of his due process right (as created by statute, Chk. S.L. No. 3-95-26,  130) to be heard on his verified complaints contentions regarding the Kuttu vote total.

[11 FSM Intrm. 476]

      Weriey should have filed a verified complaint, which should have been heard and considered by the Commission before altering or certifying the figures certified by the Overall Chairman and the Director on March 8th. We therefore are of the opinion that, if the Commission had followed the procedure mandated by statute that this case would most likely have come to us as a request, by either the Commission or Weriey, for us to order a recount of the Kuttu ballot box. In opposition to Henrys appeal, Weriey asks that the court now order a recount. For the reasons below, that is no longer possible.

B.  Recount

      Believing that the best evidence of the number of Kuttu votes cast for Weriey would be the ballots themselves, we indicated in open court that we were inclined to order a recount. Before ordering a recount, we needed to be assured that the integrity of the ballots had been preserved ) that the ballots were in substantially the same condition as when they were locked into the box in Kuttu. For this reason, we ordered the Kuttu ballot box brought into court and opened in everyones presence. When unlocked and opened, the boxs top compartment was completely empty. The bottom compartment, when unlocked, was found to contain an accumulation of election papers, cast ballots, the keys, and envelopes, all jumbled together. The cast ballots were not preserved in a sealed envelope, signed by a majority of the election workers, as required by statute, Chk. S.L. No. 3-95-26,  114.

     The ballot box was obviously not in the condition it was when locked in Kuttu. Nor was it even in the condition that Director Bossy asserted that it was in when he opened (and closed) it to retrieve the tally sheet. (As mentioned above, the other persons allegedly present when Bossy opened the Kuttu box were unavailable to testify about the boxs opening or the boxs condition.) The possibility that the Kuttu box could have been tampered with and that the ballots were not in the condition they were in when they left Kuttu was unmistakable.

     Seeing that we could have no confidence in the integrity of the Kuttu ballots, we concluded that the Kuttu ballots were so tainted that they were inadmissable as evidence of the votes cast, and that it would therefore be pointless to order a recount. The boxs tally sheet, by Director Bossys testimony, was not still in the box, but in his possession. No party offered it in evidence. If the Director had not opened the Kuttu box on his own, but instead waited as required by statute, Chk. S.L. No. 3-95-26,  120, for a court order to recount, the Kuttu ballots integrity would, in all likelihood, be unquestioned and a recount could have been ordered, which should have satisfied the parties and the public as to the true Kuttu vote totals. That is not possible now.

IV.  Findings and Holdings

      This case therefore comes before us with the best evidence of the Kuttu results irreversibly tainted and unusable. We are thus forced to consider less authoritative evidence. Since the election law mandates that a trial be held for election contests appealed to the appellate division, Chk. S.L. No. 3-95-26,  131; see Cholymay v. Chuuk State Election Commn, 10 FSM Intrm. 145, 155 (Chk. S. Ct. App. 2001), we hold that this requires us to make a de novo determination of the facts as well as stating our interpretation of the law. We therefore heard witness testimony in addition to considering documentary evidence and legal argument.

     The report of the 154 vote total and its later certification by the Overall Chairman and the director are official election documents constituting official election returns. In favor of the 164 vote total was the testimony of Martin Ham, corroborated in part by Eric Paul. We found the testimony of Martin Ham and Eric Paul to be credible. The certification of 790 votes in the Mid-Mortlocks for Weriey

[11 FSM Intrm. 477]

(and thus implicitly of 164 votes for him in Kuttu) is void because the election law was not complied with in making that certification. We thus discount the March 11th "certification" as evidence.

      There is a split of authority in the United States courts over whether parol (oral) evidence can be used to overcome official election returns. See generally 26 Am. Jur. 2d Elections  443 (rev. ed. 1996); see also C.C. Marvel, Annotation, Admissibility of Parol Evidence of Election Officials to Impeach Election Returns, 46 A.L.R.2d 1385 (1956). Some courts have held that election officers testimony cannot be used to impeach the accuracy of official returns even if the ballots are not recounted. Id. "However, in some circumstances at least, the courts have held admissible parol testimony of election officials which was apparently in impeachment of official returns." Id. No court in Chuuk has ruled on which of these two principles are applicable under Chuuk state law.

     A court should construe a statute as the legislature intended. Legislative intent is determined by the wording of the statute. What a legislature says in the text of a statute is considered the best evidence of the legislative intent or will. FSM Social Sec. Admin. v. Kingtex (FSM) Inc., 8 FSM Intrm. 129, 131 (App. 1997). The Chuuk election law requires a trial in the appellate division and not a normal appeal where generally only issues of law are decided and the facts as determined below are left undisturbed. The Legislature has granted the appellate division "all powers necessary to make the determination" of the contested election. Chk. S.L. No. 3-95-26,  131. We hold that the Legislatures intent when it said "all powers" was that we could consider all relevant and admissible evidence properly offered. To the extent that we are following United States authority, we are following the decisions that allow the oral testimony to be presented to impeach the official return, at least in cases where it appears that the official return might be the result of an inadvertent error. We believe that is what the Legislature intended in enacting section 131. If we are wrong, the Legislature may correct this by amending the statute.

     Furthermore, we note that in the United States, when election returns have been held unimpeachable by parol (oral) evidence, all of those returns were put in writing by the pertinent election officials themselves. That is not the case here. In our case, the election return was made by radio transmission, not by writing. The election official on Kuttu making the return did not make the writing. The writing was made by an election official on Weno receiving a verbal communication transmitted by radio from Kuttu.

      We hold that, in keeping with the requirement of the Chuuk Constitution Judicial Guidance Clause that our decisions must be in conformity with "the social and geographical configuration of the State of Chuuk," Chk. Const. art. VII,  14, that parol evidence may be used to impeach a written election return that was based upon an oral communication. Chuuks geographical configuration is such that the transmission of election returns from the outer islands is oral (by radio). It would seem incongruous if the March 4th oral transmission could not be impeached by oral testimony.

     Weighing the evidence before us, we find that, although it is a close case, a preponderance of the evidence favors a finding that Weriey received 164 votes cast in Kuttu and that therefore Werieys vote total is 790 to Henrys 785, and that he should be declared the winner of the second Chuuk House of Representatives seat from the Mid-Mortlocks district. We therefore find that Weriey is the second-place finisher in that district.

V.  Costs

      The statute provides that in an election contest appeal if the court confirms the election in favor of the person whose election or qualification was being contested, then a judgment for costs must be rendered against the contestants. Chk. S.L. No. 3-95-26,  123, 136; see also Cholymay v. Chuuk

[11 FSM Intrm. 478]

State Election Commn , 10 FSM Intrm. 220, 222 (Chk. S. Ct. App. 2001). In the present case, since the election commission never properly certified Weriey as the winning candidate, we are not of the view that this trials result "confirmed" his election. Rather we view the trial before us as determining which of two contestants should have been declared elected. Therefore no judgment for costs will be awarded in Werieys favor.

* * * *

DISSENTING OPINION

CHARLES L. LIGHT, Temporary Justice:

I respectfully dissent.

     Today, the majority of the Chuuk State Supreme Court Appellate Division panel deciding this matter gave official sanction to the systematic abuse of the Election Law and election processes by the Executive Director of the Chuuk State Election Commission, and announced clearly that a losing candidate could become the winner, without filing any election contest as required by the Election Law, simply by finding somebody to destroy the integrity of the ballot box, and finding an election official (or indeed anybody) to testify that the official return and certification of results was in error.

     The following facts are substantially undisputed by any of the parties to this election contest:

(1) The official return from Kuttu island, made by radio from Kuttu and received and certified by Benito Petrus, Chuuk State Election Commission Chairman for the Mid-Mortlocks, was that incumbent candidate Weriey received 154 votes in Kuttu, and challenger Henry received 124 votes in Kuttu.

(2) There are two seats in the House of Representatives from Representative District 9. The returns from District 9 had incumbent Kiper Lippwe in first place, candidate Henry in second place, and incumbent Weriey in third place. The official canvass and certification both had the challenger Henry beating the incumbent Weriey by five (5) votes for the second available seat in the House of Representatives.

(3) Executive Director Bossy, and Overall Chairman of Counting and Tabulating, Johnny Meippen, both certified the overall results in District 9, including the returns from Kuttu, as correct on March 8, 2003. This certification was sent to members of the Commission, the Governor, President of the Senate, Speaker of the House of Representatives, the Chief Justice, and to every candidate and member-elect of the House of Representatives. By this transmission, the official results were declared publicly. See Chk. S.L. No. 3-95-26, 119.

(4) On March 10, 2003, without consulting Mr. Meippen, the Executive Director changed the number of votes received in Kuttu by incumbent Weriey from 154 votes to 164 votes, changing the official result of the election in District 12, and giving the second available seat in the House of Representatives to Weriey. He did this before the ballot box arrived in Weno.

(5) On March 11, 2003, at approximately 3:00 AM, the ballot box from Kuttu arrived in Weno. It was taken to the main office of the Election Commission sometime in the morning of March 11, 2003.

[11 FSM Intrm. 479]

(6) On March 11, 2003, the Executive Director, without the presence of either candidate, opened the ballot box from Kuttu, removed the official tally sheet from the ballot box and kept it in his personal possession, and then tampered with the contends of the ballot box in such a way that the best evidence of the true results of the voting in Kuttu, the ballots themselves, were rendered inadmissible and unavailable for a recount, because of the tampering of the Executive Director.

(7) On March 11, 2003, four members of the Election Commission signed a "Certification" that the results of the election, "as certified respectively by the overall chairman Mr. Johnny Meippen," were official. The original results, attached to the March 8, 2003 certification by Mr. Meippen and Director Bossy were not attached to this "Certification." Rather, the Director attached a one page "summary" of election results, with the changes in the Kuttu returns. The members of the Commission were not informed that the document that was attached to their certification did not contain the results as certified by Mr. Meippen. As a result, incumbent Weriey was named the winner of the second seat in District 12 instead of candidate Henry.

(8) Weriey never filed any contest in the form required by the Election Law, Chk. S.L. No. 3-95-26 126, 127, to the declared results of the election made by the Overall Chairman and the Director on March 8, 2003. Instead he orally prevailed upon the Executive Director to change the results and give him the seat in the House of Representatives, claiming that there had been an "error" in the transmission of the official results.

(9) Henry filed a contest of the final"certification" on March 14, 2003. His contest asserted that the official returns from Kuttu must be followed, and that he was the winner of the second seat in District 9 by virtue of the March 8, 2003 certification.

(10) On March 18, 2003, four members of the Commission met behind closed doors, with the Executive Director, and decided that it would not entertain the challenge of candidate Henry to the Kuttu results, preferring instead to accept the unilateral changes made by the Executive Director to the official returns and canvass.

     The case came to the appellate division after the Commission denied Appellant Henrys contest by written decision on March 26, 2003, after a "hearing" on the contest, held on one days notice, on March 22, 2003. The decision denying the claim states in effect that the official return certified by Benito Petrus, and the official canvass of results, certified by both Overall Chairman Meippen and Executive Director Bossy, were both in error. The Commission based this finding on "testimonies by election officials sending, verifying, and receiving such result from the Kuttu ballot box."

     Unfortunately, there is no indication in the decision rejecting Henrys contest that anyone actually testified at the hearing on March 22, 2003. In fact, the credible testimony presented at trial of this contest indicates that no hearing or testimony on candidate Henrys contest of the Kuttu results was permitted at the hearing on March 22, 2003. Therefore, to the extent the Commission made its findings upon the "testimonies by election officials," the "testimonies" denied candidate Henry his due process rights by denying him the right to cross-examine the witnesses who "testified," apparently in secret, regarding the results from Kuttu.

     The majority in its opinion does not even strongly condemn this illegal activity, and the flaunting of the election laws and processes by candidate Weriey. Instead it rewards the illegal conduct of the Executive Director, and the failure to comply with the law by incumbent candidate Weriey, by declaring

[11 FSM Intrm. 480]

the official return and canvass to be in error, based upon the oral testimony of Martin Ham, supervisor of elections in the Mid-Mortlocks, and Eric Paul, the radio operator in Weno (and a member of the Commission, who should know the laws and the rules), that the original transmission of results, as certified in the official return by Benito Petrus on March 4, 2003, was misunderstood or improperly transmitted. This testimony was objected to by Appellant Henry as hearsay, as was all testimony offered to prove that 164 votes for Weriey had actually been cast. According to my recollection, the Presiding Justice held that the statements would be admitted, but not for the truth of the matter stated.

     In its opinion, the majority ignores its evidentiary ruling, and allows inadmissible evidence to impeach and invalidate the official records of the Chuuk State Election Commission. It finds that it is required to "make a de novo determination of the facts as well as stating our interpretation of the law." It states that it determines the intent of the Legislature, in granting to the Appellate Division "all powers necessary to make a determination," to mean that the appellate panel "could consider all relevant and admissible evidence properly offered."

     Then, deciding to follow the "branch" of American authority "that allows oral testimony to be presented to impeach the official return," it finds the testimony of Martin Ham "credible," and apparently on the basis of that testimony alone concludes that the official return of the election, and the official canvass and declaration of results contained in the certification by Overall Chairman Meippen and Executive Director Bossy are impeached by Martin Hams testimony, and that 164 votes were cast for incumbent candidate Weriey. This despite the fact that the best evidence of the actual vote, the ballots themselves, were tainted by the illegal conduct of the Executive Director, apparently at the urging of the candidate himself, and despite the fact that the next best evidence, the official return certified by Benito Petrus on March 4, 2003 and the official canvass certified by Chairman Meippen and Director Bossy on March 8, 2003 both establish that incumbent candidate Weriey received 154 votes in Kuttu in the election of March 4, 2003.

     The opinion of the majority announces for all time that in elections in Chuuk State (and possibly in other states of the FSM which might rely on this ruling), the official records of the State Election Commission regarding state elections can be impeached by parol evidence of election workers. This is not the law, and it is a dangerous and potentially disastrous ruling for democracy and fair elections in Chuuk, and in the Federated States of Micronesia.

     Sadly, legal research materials are in very short supply in Chuuk State. We are not blessed with complete libraries, so that we can investigate legal matters exhaustively. However, there are sufficient materials available to determine whether parol evidence ) oral testimony by witnesses ) can be admitted into evidence for the purpose of impeaching the official returns or certification of an election. And, contrary to the facile conclusion of the majority, the simple, almost bright-line rule is that parol evidence offered by election officials or others is inadmissible to impeach the official returns of an election.

     The general rule is stated in 26 Am. Jur. 2d Elections  344 (1966).

[11 FSM Intrm. 481]

Generally, parol evidence is not admissible to impeach the election returns or to contradict the ballot. Thus, it has been held that the result of a disputed election cannot be shown by parol evidence of election officers or other witnesses to the count, even if the court refuses to count the ballots and thereby obtain the best evidence of the error, and even though the verbal testimony is supported by what purports to be an original tally sheet.

     The other major legal treatise available in Chuuk, Corpus Juris Secundum, states the same rule: "Parol testimony. While election officers will not be permitted to impeach their certificate to the returns by parol testimony, where the same officers have both signed contradictory returns, one of which must be wrong, they should be permitted to explain the discrepancy." 29 C.J.S. Elections  276, at 744-45 (1965).

     Here, the testimony was offered not to resolve a discrepancy between official returns, but was offered to contradict ) to impeach ) the official return and canvass of the election. "[E]lection officers will not be permitted to impeach their certificate to the returns by parol testimony . . . ." The rule is that the official returns and canvass can only be impeached by the ballots themselves. No other evidence is sufficient.

     A Florida Supreme Court case is reported, and other cases supporting the rule are collected in an annotation. C.C. Marvel, Annotation, Admissibility of Parol Evidence of Election Officials to Impeach Election Returns, 46 A.L.R.2d beginning at page 1381. The Florida case, Burke v. Beasley, 75 So. 2d 7, 46 A.L.R.2d 1381 (Fla. 1954), cites the Land case (note 3, supra) with approval, and quotes from it. The language of the Land decision is significant, given the virtually identical facts presented in that case when compared to the election contest before us. The Florida Supreme Court, in Burke, summarizes as follows:

In the case of Land v. Land, 244 Ky. 126, 50 S.W.2d 518, 520, an election contest suit, it was contended that "in entering the number of votes received by [contestee] on the certificate attached to the stub book a mistake of 10 votes was made. The clerk and other officers testified that there were only 18 votes cast for [contestee], and they filed with their evidence what purports to be an original tally sheet which sustains the verbal testimony. . . . Here, the contestant claims that since the court refused to count the ballots [by reason of tampering or doubtful integrity] . . . he should have accepted the verbal testimony supported by the tally sheet . . . . We cannot agree with appellants contention. The result of an election cannot be shown by parol evidence of election officers or other witnesses to the count." (Emphasis supplied.) The decision upon the facts in that case was that the regularity and presumed accuracy of the officers returns could not be overcome by such impeaching testimony. See also State ex rel. Quinn v. Lattimore, 120 N.C. 426, 26 S.E. 638, wherein it is held that election officers cannot impeach an official return by a tally sheet which was kept in a public office to which any one might have had access; and Word v. Sykes, 61 Miss. 649, which holds that testimony is inadmissible as to statements by an inspector of elections which would contradict his own return.

[Burke v. Beasley, 75 So. 2d 7, 9, 46 A.L.R.2d 1381, 1383-84 (Fla. 1954) (alterations and emphasis in original).]

[11 FSM Intrm. 482]

     These are not the only decisions which enunciate the virtual bright-line rule that parol evidence may not be used to impeach the official returns and canvass of an election. In accord are Oakes v. Finlay, 5 Ariz. 390, 53 P. 173 (1898) (the return constituted the highest evidence of the election, with the single exception of the ballots themselves, and the return could not be overturned except by a recount of the ballots); Browning v. Lovitt, 139 Ky. 480, 94 S.W. 661 (1906) ("an officer of election will not be permitted to contradict in this manner pending a contest a solemn writing signed by him at the close of an election"). See also Smith v. Rauh, 14 Ohio C.C.(n.s.) 33, 32 Ohio C.C. 515 (1910); Dittrick v. Kelly, 20 Ohio NP(n.s.) 86, 27 Ohio Dec. N.P. 500, affd, Dittrick v. Andrews, 7 Ohio App. 363.

The majority opinion states:

to the extent that we are following American authority, we are following the branch that allows the oral testimony to be presented to impeach the official return, at least in cases where it appears that the official return might be the result of an inadvertent error. We believe that is what the Legislature intended in enacting section 131.

[emphasis added].

     The majority goes far beyond its authority in reaching this conclusion. No one can tell what the Legislature meant by the adoption of Chk. S.L. No. 3-96-25 with regard to parol evidence, because there is no discussion of parol evidence anywhere in the Election Law. Furthermore, the majority decides that the Legislature intended the Chuuk State Supreme Court to adopt a specific rule of evidence inclusion, without any mention of such intent in the statute, and where no discussion of any such intent was made either in the trial or in the deliberations of the entire panel following the trial. This conclusion was in fact apparently reached by the two members of the majority, without even the courtesy of discussing it with me.

     Even if the language of 131 could be construed to permit the consideration of "all relevant and admissible evidence properly offered," the acceptance of the testimony of Martin Ham impeaching the official records of the Election Commission still requires a determination of the proper rule of evidence. The majority says it adopts the "branch" of authority which permits the impeachment of official records by parol evidence of election workers. On closer examination, one finds that there is no such "branch" on the parol evidence tree.

     The language quoted by the majority relies on the case of Stemper v. Higgins, 38 Minn. 222, 37 N.W. 95 (1888), cited in the footnote to the quoted language. Stemper is discussed in C.C. Marvel, Annotation, Admissibility of Parol Evidence of Election Officials to Impeach Election Returns, 46 A.L.R.2d 1385, 1387 (1956). Aside from the fact that Stemper is a nineteenth century case, which precedes most if not all United States authority barring the use of parol evidence to impeach the official election returns, the facts of Stemper establish that it does not vary from the rule stated and cited above.

     In Stemper, one of the grounds of the contest was that in making the return, votes cast and counted for one candidate had been by mistake assigned to another candidate. The court held that parol evidence could be received on that issue. That is not the issue addressing this court. Here, a candidate is asserting not that some of his votes were given to another candidate, but that he got more votes than the return established.

     Other than this one quote, and the case upon which it is based, the majority demonstrates no "branch" of authority in support of their newly adopted rule of evidence in election contests in Chuuk

[11 FSM Intrm. 483]

State. That is because they cannot do so. Virtually all of the cases which may have held that parol evidence can be received under certain circumstances to impeach official election returns date to before 1900, and upon close examination reveal factual differences which establish them as exceptions to the general rule. Virtually all cases which hold that parol evidence cannot be introduced to impeach official election returns were decided close to or after 1900. Clearly, the current established and accepted rule ) and the rule that was in effect when the Chuuk State Constitution was adopted, see Paul v. Celestine, 4 FSM Intrm. 205, 208 (App. 1990), regarding adoption of decisions in effect at time of adoption of Constitution) ) is that parol evidence is inadmissible to impeach election returns. If the majority is correct in interpreting the election statute ) that it can hear and consider "all relevant and admissible evidence properly offered" ) then it must as a matter of law disregard the evidence proffered by Martin Ham and Eric Paul because the evidence is inadmissible according to the great weight of the only available authority ) United States authority ) upon which the majority in great part relies.

     What I find most disturbing about the majoritys opinion is its conclusion that "It would seem incongruous if that oral transmission [of returns from the outer islands] could not be impeached by oral testimony." In reaching this conclusion, it appears to not understand the issue at all.

      It states that in this election, "the election return was made by radio transmission, not by writing." That is simply not the case. The "election return" is the Certificate of Benito Petrus, in writing, certifying that the votes for Weriey from Kuttu were 154, and the votes for Henry were 124. That is the writing, which is the official record of the election commission, upon which the official canvass of March 8, 2003 was based. In fact, the election officials in Kuttu did put the official results in writing, on the official tally sheet which Martin Ham stated he placed in the top of the ballot box before he locked it ) the same official tally sheet which Director Bossy removed from the ballot box and kept, destroying its evidentiary value.

     It is not the "oral transmission" which is being impeached by "oral testimony." What is being impeached is the official return of the election and the official canvass of the election. It is because of the potential inaccuracy of the transmission that oral testimony is and must be inadmissible. If every candidate ) who by the official return of the election has lost ) could simply ignore the statutory procedures for challenging the official result, and impose himself on election officials to tamper with the ballot box, and to declare him the winner and his opponent the loser, thus making the declared winner the loser who must contest the change without access to the ballots, then simple irregularities, and even massive fraud would be rewarded, rather than discouraged.

     Adopting the rule established in virtually all United States jurisdictions, that parol evidence is not admissible to impeach the official returns and canvass of the election, would encourage compliance with the statute. A candidate who finds himself in the position candidate Weriey found himself would know, in advance, that tampering with the election results might actually injure him. He would be precluded from the beginning from relying on oral testimony to support his claims. He would therefore be discouraged from attempting to influence election officials to tamper with the ballots, and discouraged from "imploring" election officials to testify the way he wants them to. Because he would know that the ballots themselves would be the only evidence available to prove that a mistake had been made. A candidate such as Weriey would be encouraged, by the adoption of the rule precluding parol evidence, to file a contest, in the time and form required by the statute, and to ensure that the integrity of the ballot box is protected, because he would know that the ballots, and only the ballots, would prove his contention, that the oral transmission had been in error.

     If we are to believe the evidence, candidate Weriey is being rewarded for refusing to follow the procedures set out in the Election Law for contesting the results of the election, and candidate Henry is being punished for following the law. Candidate Weriey is being rewarded for being able to convince

[11 FSM Intrm. 484]

the Director of the Election Commission to violate his duties, open the ballot box, and taint its contents so that the best evidence of the true results of the election would not thereafter be available to candidate Henry. Indeed, candidate Weriey seems to be rewarded for threatening the witness Martin Ham with arrest unless he got out of a sickbed and came to court to testify that candidate Weriey was in fact the winner. And candidate Henry seems to be punished for raising proper objections to the introduction of parol evidence the intent of which would be to impeach the official results of the election. Candidate Weriey, regardless of whether he actually received 164 votes in Kuttu, rather than the 154 contained in the official return and canvass of the election, seems to have scammed the system, and been "proclaimed" the winner, all to the detriment of the people of Chuuk State, and the democracy they seem to want to achieve.

     I also dissent from the decision of the majority to refer only Werieys poll watcher to the Chuuk State Attorney General and the FSM Secretary of Justice for investigation of his conduct in Pohnpei. I believe that sufficient, and significantly more grievous evidence was introduced to establish probable cause to believe that both the Director Bossy, and candidate Weriey, may have violated Chk. S.L. No. 3-95-26, 112 by their actions leading to the illegal opening of the ballot box and the tainting of the best evidence of the results of the election. I would refer them both, for what good it would do, to the Attorney General of Chuuk State for investigation and prosecution.

     I do not know how many votes candidate Weriey received in Kuttu. I do not know how many votes candidate Henry received in Kuttu. From the best of my ability to determine, neither of my esteemed colleagues on the appellate panel know how many votes these candidates received. The best evidence available to resolve that difficult question was destroyed by the illegal acts of the Director of the Election Commission, apparently at the sole prompting of candidate Weriey.

     Rather than follow the law virtually unanimously accepted in all jurisdictions in the United States, the majority has decided to create new law in Chuuk State, permitting losing candidates to bring cases before future appellate panels and to rely on oral testimony to impeach official election returns. In my mind, this is a sad day for democracy in Chuuk. For these reasons, I respectfully dissent from the opinion of my brethren on the panel.

* * * *

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Footnotes:

1.  I find it difficult to understand how the panel determined the Legislatures intent, when it was never discussed between all members of the panel, where no evidence or testimony was introduced regarding the intent of the Legislature in drafting that part of the statute, and where no member of the panel (or at least not this member) ever reviewed the legislative journal or any report of proceedings wherein the quoted portion of the statute was discussed.

2.  Virtually identical language appears in the latest available version of 26 Am Jur. 2d Elections 443 (rev. ed. 1996) which can be found at the FSM Supreme Court, Nepukos, Weno, Chuuk.

3.  The case cited as supporting authority for this statement is Land v. Land, 244 Ky. 126, 50 S.W.2d 518, 520 (1931).

4.  Executive Director Bossy testified that he had not been contacted by any other government official regarding this matter. In the absence of any testimony impeaching his statements, we are compelled to accept them as true.