FSM SUPREME COURT APPELLATE DIVISION
Cite as Asugar v. Edward, 13 FSM Intrm. 215 (App. 2005).

[13 FSM Intrm. 215]

HENRY ASUGAR,

Appellant,

vs.

BERNELL W. EDWARD, as National Election Director,

and PETER SITAN, as the real party in interest,

Appellees.

APPEAL CASE NO. C4-2005

ORDER DISMISSING APPEAL

Decided: April 26, 2005

BEFORE:

           Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court

           Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court

           Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court

APPEARANCES:

For the Appellant:   Ben Enlet

                                     P.O. Box 1650

                                     Weno, Chuuk   FM   96942

For the Appellee:   Matthew L. Olmsted, Esq.

                                   (Director) FSM Department of Justice

                                   P.O. Box PS-105

                                   Palikir, Pohnpei   FM   96941

[13 FSM Intrm. 216]

For the Appellee:   Andrea S. Hillyer, Esq.

                                   (real party in interest) P.O. Drawer D

                                   Kolonia, Pohnpei   FM   96941

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HEADNOTES

Appellate Review ) Dismissal

     Even if an opposition to a motion to dismiss is not filed, the court still needs good grounds before it can grant the motion. Asugar v. Edward, 13 FSM Intrm. 215, 218 (App. 2005).

Appellate Review ) Decisions Reviewable; Elections

     The applicable time frame within which an election contest appeal can be made starts with a petition to the National Election Director filed within one week of certification of the results of the election. The winning candidate then has one week to respond to the petition. The Director then has ten days to decide whether to approve the petition. If the petition is denied, then the aggrieved candidate would have five days to appeal to the FSM Supreme Court appellate division. It is at that point that the court would have jurisdiction to consider this election contest. Asugar v. Edward, 13 FSM Intrm. 215, 219 (App. 2005).

Appellate Review ) Decisions Reviewable; Elections

     By statute, an aggrieved candidate in an election contest can appeal to the FSM Supreme Court only after the election agency has denied his petition. Asugar v. Edward, 13 FSM Intrm. 215, 219 (App. 2005).

Administrative Law ) Judicial Review; Appellate Review ) Decisions Reviewable

     An appeal from an administrative agency must be started within the established statutory time period. Asugar v. Edward, 13 FSM Intrm. 215, 219 (App. 2005).

Elections

     The primary forum in which election contests must take place is the election administrative machinery Congress created by statute. Asugar v. Edward, 13 FSM Intrm. 215, 219 (App. 2005).

Administrative Law ) Judicial Review; Appellate Review ) Decisions Reviewable; Elections

     Constitutions and statutes provide, as a part of the election machinery, a procedure by which election results may be contested. Such contests are regulated wholly by constitutional or statutory provisions. The necessary steps must be strictly observed to give the court jurisdiction, and the jurisdictional facts must appear on the face of the proceedings. If these steps are not followed, courts are usually powerless to entertain such proceedings. Asugar v. Edward, 13 FSM Intrm. 215, 219 (App. 2005).

Appellate Review ) Decisions Reviewable; Elections

     An election contest appeal must await the National Election Directorís certification of the election results and the Directorís denial of a timely post-certification petition by the candidate. If the Directorís decision on the petition does not adequately address his concerns, only then would the aggrieved candidate have five days from the receipt of the Directorís decision to appeal to the FSM Supreme Court appellate division if the Directorís decision on the petition does not adequately address his concerns. Asugar v. Edward, 13 FSM Intrm. 215, 219 (App. 2005).

[13 FSM Intrm. 217]

Appellate Review ) Decisions Reviewable; Elections

     If the National Election Director does not issue his decision on a candidateís post-certification petition within the statutory time frame, the candidate may appeal without waiting further for the decision. Asugar v. Edward, 13 FSM Intrm. 215, 219 n.3 (App. 2005).

Appellate Review ) Decisions Reviewable; Elections

     Congress, when it drafted the election statute, limited the courtís involvement in election contests to until after the issues were narrowed to the certified result and whether a candidateís petition contesting the certified result should have been granted by the Director and, if so, what relief was then appropriate. Asugar v. Edward, 13 FSM Intrm. 215, 220 (App. 2005).

Appellate Review ) Dismissal; Elections

     An election contest appeal must be dismissed for lack of jurisdiction when it is filed too soon, at a time before the election statute confers jurisdiction on the court. Asugar v. Edward, 13 FSM Intrm. 215, 220 (App. 2005).

Appellate Review ) Decisions Reviewable; Elections

     If an aggrieved candidateís appeal seeks a revote, he may, once the election is certified, petition the National Election Director for a revote, and if he feels that the Directorís decision does not adequately address his concerns, then appeal that decision to the FSM Supreme Court appellate division within the statutory time limit. An earlier appeal is too soon. Asugar v. Edward, 13 FSM Intrm. 215, 220 (App. 2005).

Appellate Review ) Decisions Reviewable; Elections

     The court would be without jurisdiction to hear an election contest appeal on the acceptability of a vote or votes when the aggrieved candidate withdrew his only timely petition on the subject. Asugar v. Edward, 13 FSM Intrm. 215, 220 (App. 2005).

Appellate Review ) Decisions Reviewable; Elections

     If election contest issues come before the FSM Supreme Court appellate division by an appeal properly filed during the statutory time limit after the election contest machinery has run its course, the court will then consider at that time the merits of what is raised and before it. Asugar v. Edward, 13 FSM Intrm. 215, 220 (App. 2005).

* * * *

COURTíS OPINION

PER CURIAM:

     Henry Asugar, the incumbent candidate for the Chuuk Congressional District No. 1 (Mortlocks), filed this election appeal on April 18, 2005. The appeal is dismissed. Since it was filed prematurely, the court is without jurisdiction to consider it. Our reasoning follows.

I.

     An election for two-year seats in Congress was held on March 8, 2005. On March 30, 2005, the National Election Director informed the candidates for Chuuk Congressional District No. 1 (Mortlocks) that he would conduct a revote for the Upper Mortlocks VAAPP (voting at another polling place) box on Weno, Chuuk due to irregularities in that box. On April 13, 2005, the Director notified

[13 FSM Intrm. 218]

the candidates that the revote would be held on April 20, 2005.Then on April 14, 2005, the Director denied incumbent candidate Henry Asugarís "cross-petition" to set aside the results of the Special Polling Place in Kolonia, Pohnpei for the Mortlocks congressional district.

     Henry Asugar filed this election appeal on April 18, 2005. Attached to the notice of appeal was the Directorís March 30, 2005 ruling that a revote would be conducted for the Weno Upper Mortlocks VAAPP and the Directorís April 13th letter setting the date for the revote. The denial of Asugarís "cross-petition" concerning the Kolonia, Pohnpei box was not attached to the notice of appeal.

II.

     On April 21, 2005, the National Election Director filed a motion to dismiss. Sitan, the real party in interest, filed a response to the motion on April 22, 2005. By court order, the appellant was to file his response to the Directorís motion no later than 4:00 p.m., April 22, 2005, and he was permitted to file it by fax. No response was filed. Even if an opposition to the Directorís motion to dismiss is not filed, the court still needs good grounds before it can grant the motion. Cf. Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 442 (App. 1994) (civil procedure); FSM v. Wainit, 12 FSM Intrm. 201, 203 (Chk. 2003) (criminal procedure).

III.

     The Director contends that this appeal is defective and premature. First, he contends that the notice of appeal is defective because, in his view, the notice does not contain information specifying which of the Directorís records are in error or that votes were cast by persons not entitled to vote. Second, the Director contends that the appeal was filed too soon because the appellant has not exhausted his administrative remedies. He asserts that Asugar cannot appeal until the election has been certified and Asugar has petitioned the Director for relief and had his petition denied. The Mortlocks congressional seat election had not been certified when the appeal was filed and would not be until some time after the April 20th revote.

     The Director also contends that if this appeal challenges the acceptability of votes, it is too late because such an appeal to the FSM Supreme Court must come within five days of the Directorís decision (which may be before certification) on a timely (within one week of the election) petition and that while Asugar did file timely petitions challenging the Pohnpei box and asking for a revote in the Weno Upper Mortlocks VAAPP, those petitions were subsequently orally withdrawn and that Asugarís later "cross-petition" concerning the Pohnpei box was made too late.

     The Director also contends that, if it were possible for Asugar to appeal the Directorís March 30, 2005 decision to conduct a revote in the Weno Upper Mortlocks VAAPP box, the appeal is too late as this appeal was filed more than five days after the decision.

     Sitanís April 22, 2005 response to the Directorís motion adopts the Directorís positions. It emphasizes that the court has no jurisdiction to hear this appeal because it was filed too late to be a timely appeal of the Directorís March 30th decision (and, at any rate, is moot because the revote has now been held), and, since the election has not been certified, is too soon to be a timely appeal of a denial of a post-certification petition.

[13 FSM Intrm. 219]

IV.

     The Chuuk Congressional District No. 1 election had not been certified when Asugar filed his notice of appeal. This appeal is thus premature and the court lacks jurisdiction to consider it. The applicable time frame within which an appeal can be made starts with a petition to the Director "filed within one week of certification of the results of the election." 9 F.S.M.C. 902. The winning candidate then has "one week to respond to the petition." Id. The National Election Director then has "10 days to decide whether to approve the petition." Id. If the petition is denied, then Asugar would have five days to appeal to the FSM Supreme Court appellate division. 9 F.S.M.C. 903(1). It is at that point that the court would have jurisdiction to consider this election contest.

     "By statute, an aggrieved candidate in an election contest can appeal to the FSM Supreme Court only after the election agency has denied his petition." Wiliander v. National Election Dir., 13 FSM Intrm. 199, 202 (App. 2005) (citing 9 F.S.M.C. 903(1); Kony v. Mori, 6 FSM Intrm. 28, 30 (Chk. 1993)). "An appeal from an administrative agency must be started within the established statutory time period." Wiliander, 13 FSM Intrm. at 203 (citing Anton v. Heirs of Shrew, 12 FSM Intrm. 274, 279 (App. 2003)). This appeal was not.

     The primary forum in which election contests must take place is the election administrative machinery Congress created by statute. Constitutions and statutes provide, as a part of the election machinery, a procedure by which election results may be contested. Such contests are regulated wholly by constitutional or statutory provisions. Wiliander, 13 FSM Intrm. at 203. The necessary steps must be strictly observed to give the court jurisdiction, and the jurisdictional facts must appear on the face of the proceedings. If these steps are not followed, courts are usually powerless to entertain such proceedings. Id.; David v. Uman Election Commír, 8 FSM Intrm. 300d, 300g (Chk. S. Ct. App. 1998).

A. Weno Upper Mortlocks VAAPP box

     Asugar appealed the Directorís ruling that a revote would be held for the Weno Upper Mortlocks VAAPP ballot box for Chuuk Congressional District No. 1 (Mortlocks). This appeal is too soon (premature or unripe). As stated above, it must await the National Election Directorís certification of the Chuuk Congressional District No. 1 election results and the Directorís denial of a timely post-certification petition by the candidate. Only then, if the Directorís decision on the petition(s) does not adequately address his concerns, the aggrieved candidate would have five days from the receipt of the Directorís decision to appeal to the FSM Supreme Court appellate division. 9 F.S.M.C. 903(1); Wiliander, 13 FSM Intrm. at 202; Kony v. Mori, 6 FSM Intrm. 28, 30 (Chk. 1993) (an aggrieved candidate can appeal to the FSM Supreme Court only after his petition has been denied).

     This appeal illustrates why it was wise for the statute conferring jurisdiction on the court not to allow appeals to the court until the proceedings before the Director (certification of election, candidateís petition, and Directorís decision on the petition) have run their course. Initially, Asugar asked that the Weno Upper Mortlocks VAAPP not be counted and that it be set aside and a revote held. Then, when

[13 FSM Intrm. 220]

the count in that box, despite the irregularities, was favorable to Asugar, he changed his mind and not only did he not want a revote any longer but also wanted the box included in the certified results although the Director had excluded it due to irregularities. If the revote made him the certified winner, he might have then changed his mind again.

     Congress, when it drafted the election statute, limited the courtís involvement until after the issues were narrowed to the certified result and whether a candidateís petition contesting the certified result should have been granted by the Director and, if so, what relief was then appropriate. Thus this appeal must be dismissed for lack of jurisdiction ) filed too soon, at a time before the election statute confers jurisdiction on the court. Asugar may, if still dissatisfied after the election is certified, petition the National Election Director and, if the Director does not adequately address his concerns, then file a timely appeal to the FSM Supreme Court appellate division.

B. Pohnpei Special Polling Place

     Asugar also appeals the National Election Directorís denial of his petition(s) to set aside the results from the special polling place in Kolonia, Pohnpei for Chuuk Congressional District No. 1, although the decision appealed from is not attached to Asugarís notice of appeal. Thus it is unclear exactly what Asugar seeks in this appeal. Originally, he petitioned for a revote at the Kolonia, Pohnpei Special Polling Place. If Asugarís appeal still seeks a revote, then this appeal is too soon. As stated above, he may, once the election is certified, petition the Director for a revote in the Pohnpei box, and if he feels that the Directorís decision does not adequately address his concerns, then appeal that decision to the FSM Supreme Court appellate division within the statutory time limit.

     If the appeal of the Kolonia, Pohnpei Special Polling Place results were considered one that challenges the acceptability of a vote or votes, the court would also be without jurisdiction since Asugar withdrew his only timely petition on the subject. But, following Asugarís original petition, he appears to seek a revote on Pohnpei, and his appeal is too soon for that.

V.

     Because we have determined that we do not have jurisdiction to consider this appeal at this time, we do not consider the Directorís contention that notice of appeal itself was defective. Furthermore, we have issued this order dismissing the appeal promptly so that the appellant is under no illusion that this appeal would be a substitute for a post-certification petition to the Director. We issue this order now so that the appellant may, if he so chooses, timely file a post-certification petition with the Director if he has not already done so.

     The appeal of both the Kolonia, Pohnpei Special Polling Place box and the Weno Upper Mortlocks VAAPP box revote is premature and the court is without jurisdiction to hear it. If either of these issues come before us by an appeal properly filed during the statutory time limit after the election contest machinery has run its course, we will then consider the merits of what is raised and before us at that time.