FSM SUPREME COURT APPELLATE DIVISION

Cite as Sipenuk v. FSM Natíl Election Dir., 15 FSM Intrm. 1 (App. 2007)

[15 FSM Intrm. 1]

SIMIRAM SIPENUK,

Appellant,

vs.

FSM NATIONAL ELECTION DIRECTOR and

JOE N. SUKA, as the Real Party in Interest,

Appellees.

APPEAL CASE NO. C2-2007

ORDER DISMISSING APPEAL

Decided:  April 30, 2007

Entered:  May 2, 2007

BEFORE:

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

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

Hon. Ready E. Johnny, Associate Justice, FSM Supreme Court

APPEARANCES:

For the Appellant:  Snyder H. Simon, Esq.

                               P.O. Box 1017

                              Tofol, Kosrae FM 96944

 

For the Appellee:   Matthew L. Olmsted, Esq.

      (Director)         FSM Department of Justice

                              P.O. Box PS-105

                              Palikir, Pohnpei FM 96941

 

For the Appellee:  Andrea S. Hillyer, Esq.

         (Suka)          P.O. Drawer D

                              Kolonia, Pohnpei FM 96941

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HEADNOTES

Elections

      When a candidate seeks as relief either that the results from certain ballot boxes be nullified, leaving him with a plurality thus making him the "winning candidate" or a revote, it is thus an election contest in which a candidate alleges that fraud or errors affected the electionís outcome and challenges the certification of another as the "winning candidate." Sipenuk v. FSM Natíl Election Dir., 15 FSM Intrm. 1, 4 (App. 2007).

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Elections

      The applicable time frame within which an election contest appeal can be made starts with a petition for a recount or a revote filed with the Election Director within one week of certification of the results of the election; the "winning candidate" is then given seven days to respond; and the Director then has fourteen days to decide whether to approve petition. Sipenuk v. FSM Natíl Election Dir., 15 FSM Intrm. 1, 4 (App. 2007).

Appellate Review ) Decisions Reviewable; Elections

      A prematurely-filed election contest appeal must be dismissed because, by statute, an aggrieved candidate in an election contest can only appeal to the FSM Supreme Court after his petition has been denied. Sipenuk v. FSM Natíl Election Dir., 15 FSM Intrm. 1, 4 (App. 2007).

Administrative Law ) Judicial Review

      An appeal from an administrative agency must be started within the established statutory time period. This has the salutary effect of permitting resolution by the administrative agency, which may either satisfy the aggrieved party or mollify his concerns, thus conserving scarce judicial resources. The only exception to the requirement to exhaust this remedy first is if to do so would be futile. Sipenuk v. FSM Natíl Election Dir., 15 FSM Intrm. 1, 5 n.2 (App. 2007).

Elections

      The primary forum in which election contests must run their course is the election administrative machinery created by Congress. Constitutions and statutes provide, as a part of the machinery of elections, a procedure by which election results may be contested. Such contests are regulated wholly by the constitutional or statutory provisions, and a strict observance to the steps necessary to give jurisdiction is required, and the jurisdictional facts must appear on the face of the proceedings. If these steps are not followed, courts are powerless to entertain such proceedings. The statute conferring jurisdiction on the court does not 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. Sipenuk v. FSM Natíl Election Dir., 15 FSM Intrm. 1, 5 (App. 2007).

Appellate Review ) Decisions Reviewable; Elections

      If a losing candidate wanted to appeal the National Election Directorís April 3, 2007 decision rejecting his petition, he would have had to file a notice of appeal from that decision after it was issued on April 3, 2007. When he did not, and when if he had, then that appeal would have been docketed and filed separately as a different case, the court lacks jurisdiction to consider the appeal from the Directorís alleged non-decision, filed before the Directorís April 3, 2007 decision, and must dismiss the appeal. Sipenuk v. FSM Natíl Election Dir., 15 FSM Intrm. 1, 5 (App. 2007).

Elections

      The only relief that the Election Code authorizes the FSM Supreme Court to grant is a recount or a revote. It does not authorize the court to restrain the Election Director from acts such as swearing in another candidate or to order a ballot box declared invalid (thus disenfranchising all of the many qualified voters who properly cast their ballots in that box) and thereby declaring another candidate the winner. Sipenuk v. FSM Natíl Election Dir., 15 FSM Intrm. 1, 6 (App. 2007).

Elections

      The Election Code does not authorize ex parte court hearings. Sipenuk v. FSM Natíl Election Dir., 15 FSM Intrm. 1, 6 (App. 2007).

Appellate Review; Civil Procedure

      Civil Rule 65 and the Civil Procedure Rules in general apply to civil proceedings in the trial

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division, not to appellate division proceedings. Sipenuk v. FSM Natíl Election Dir., 15 FSM Intrm. 1, 6 (App. 2007).

Civil Procedure ) Injunctions; Elections

      An election contestant cannot show irreparable harm, a necessary prerequisite to the issuance of a temporary restraining order and a major factor to be weighed before granting a preliminary injunction, when he has the election appeal process available to him within which he could properly seek redress, and although it is true that if Congress seats a candidate unconditionally the election contest becomes non-justiciable, not once has the court failed to decide an election contest appeal before the statutorily-mandated May 11 date for the newly-elected Congress to start. Sipenuk v. FSM Natíl Election Dir., 15 FSM Intrm. 1, 6 (App. 2007).

Appellate Review; Attorney and Client ) Appearance

      Generally, only attorneys admitted to the FSM Supreme Court can file papers in the appellate division. Sipenuk v. FSM Natíl Election Dir., 15 FSM Intrm. 1, 6 (App. 2007).

Appellate Review ) Parties; Elections

      A candidateís supporters are not properly part of an election contest. Only the election contestant(s), the National Election Director, and the "winning candidate" are proper parties to an election contest appeal. Sipenuk v. FSM Natíl Election Dir., 15 FSM Intrm. 1, 6 (App. 2007).

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COURTíS OPINION

MARTIN G. YINUG, Associate Justice:

     This election appeal was filed on March 30, 2007. On April 2, 2007, the National Election Director moved to dismiss this appeal on the ground that the court lacked jurisdiction to consider it because it had been untimely filed. The motion is granted. Our reasons follow.

I.   Background

      Simiram Sipenuk and Joe N. Suka were two of the four congressional candidates on the March 6, 2007 national election ballot for Chuuk Election District No. 3 (Southern Namoneas). On March 13, 2007, candidate Sipenuk filed a petition with the National Election Director alleging a number of election irregularities, including the failure to open and close the polls on schedule, failure to provide the candidates with copies of the master list of registered voters, and turning away eligible voters while allowing ineligible voters to cast ballots. On March 15, 2007, the Director certified the election results. Suka was declared the winning candidate, with Sipenuk trailing him by 319 votes.

      On March 30, 2007, Sipenuk, acting pro se, filed his notice of appeal in the FSM Supreme Court appellate division, as an appeal from the Directorís non-decision or non-action on his election petition.  Sipenuk also filed a Verified Complaint for Declaratory and Injunctive Relief and a Motion for an Exparte [sic] TRO.  Sipenuk seeks to exclude the Kuchua, Tonoas and Nechap, Tonoas ballot boxes from any certified result for the Southern Namoneas congressional seat and to have the National Election Director "penalized for the violations of the FSM Election Regulations, FSM Election Laws."  Alternatively, Sipenuk seeks an order that the Southern Namoneas election is void and an order that it, or at least the part for the Macheweichun (Fefan, Parem, and Siis islands) region, the VAAPP (voting at an alternative polling place) box on Weno, and the special polling places on Guam and in Honolulu be done again. Sipenuk, relying on Civil Procedure Rule 65, also seeks an ex parte restraining order and a preliminary

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injunction to prevent the Director from verifying or including the Southern Namoneas election results in the election certification or from certifying those results and to enjoin anyone from taking the oath of office.

      On April 2, 2007, the Director moved to dismiss this appeal on the grounds that the court lacks jurisdiction to hear it and that Sipenukís filings contained other defects.  The Director contended that 1)  the appeal is premature as the National Election Directorís decision on Sipenukís election petitions had not been issued yet and that the deadline for its issuance had not yet passed, thus leaving the court without jurisdiction to hear this appeal; 2)  Sipenukís motion for an ex parte restraining order failed to certify his efforts to give opposing parties notice or the reasons why such notice should not be required; 3)   the injunctive relief sought is not available as a matter of law; 4)  Sipenuk did not seek leave of court to appear pro se; and 5)  Sipenuk lacked standing to appeal on behalf of his supporters. Suka orally joined the Directorís motion during a April 5, 2005 telephonic conference and by written notice filed April 9, 2007.

      Sipenuk filed his response to the motion on April 24, 2007. Suka filed a reply on April 27, 2007.

II.   Timeliness

      Sipenuk contends that his petition was timely filed because, in his view, his petition should be considered a "request concerning the overall acceptability of the votes cast" Response at 4, and that, since a voteís acceptability can be challenged before a winning candidate has been certified, he had only to wait 14 days for the Directorís decision and when he had not received one by March 27, 2007, he could appeal from the Directorís non-decision.

      Sipenukís argument is disingenuous.   Sipenuk seeks as relief either that the results from certain ballot boxes be nullified, leaving him with a plurality thus making him the "winning candidate" or a revote.  This is thus an election contest, in which a candidate (Sipenuk) alleges that fraud or errors affected the electionís outcome and challenges the certification of another as the "winning candidate."  The applicable time frame within which an election contest appeal can be made starts with a petition for a recount or a revote filed with the Director "within one week of certification of the results of the election."  FSM Pub. L. No. 14-76, ß 68(1) (to be codified at 9 F.S.M.C. 802(1)), 14th Cong., 4th Spec. Sess. (2006).  The "winning candidate" is then given seven days to respond. Id. ß 68(3) (to be codified at 9 F.S.M.C. 802(3)). When Suka did not, the Director then had fourteen days "to decide whether to approve [Sipenukís] petition." Id. ß 68(4) (to be codified at 9 F.S.M.C. 802(4)).  The Director thus had until at least April 3, and possibly April 5, 2007, to issue its decision.

      Sipenukís March 30, 2007 notice of appeal is thus too early.  A prematurely-filed election contest appeal must be dismissed because, by statute, an aggrieved candidate in an election contest can only appeal to the FSM Supreme Court after his petition has been denied.  Asugar v. Edward, 13 FSM Intrm. 215, 219 (App. 2005); Asor v. National Election Dir., 13 FSM Intrm. 205, 206 (App.

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2005); Wiliander v. National Election Dir., 13 FSM Intrm. 199, 204 (App. 2005); Kony v. Mori, 6 FSM Intrm. 28, 30 (Chk. 1993).

The primary forum in which election contests must run their course is the election administrative machinery created by Congress. Constitutions and statutes provide, as a part of the machinery of elections, a procedure by which election results may be contested. Such contests are regulated wholly by the constitutional or statutory provisions. A strict observance to the steps necessary to give jurisdiction is required, and the jurisdictional facts must appear on the face of the proceedings. If these steps are not followed, courts are powerless to entertain such proceedings.

Wiliander, 13 FSM Intrm. at 203. The statute conferring jurisdiction on the court does not "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." Asugar, 13 FSM Intrm. at 219. The time for the National Election Director to issue a decision had not yet run its course when Sipenuk filed this appeal on March 30, 2007. Although the Director did later timely issue a decision, Sipenuk did not appeal that decision by filing a notice of appeal from that decision.

      If Sipenuk wanted to appeal the National Election Directorís April 3, 2007 decision, he would have had to file a notice of appeal from that decision after it was issued on April 3, 2007.  He did not. If he had, then that appeal would have been docketed and filed separately as a different case.  This appeal, App. No. C2-2007, is from the Directorís alleged non-decision, not from the Directorís April 3, 2007 decision.  We therefore lack jurisdiction to consider this matter and hereby dismiss this appeal.

III.  Other Grounds Raised

     Since we dismiss this appeal for the lack of jurisdiction we do not need to address the Directorís other grounds for dismissal.  However, we feel that discussing the Directorís other grounds would be useful guidance for future candidates.

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      The only relief that the Election Code authorizes us to grant is a recount or a revote.  FSM Pub. L. No. 14-76, ß 70(3) (to be codified at 9 F.S.M.C. 804(3)).  It does not authorize us to restrain the Director from the acts that Sipenuk sought to restrain him, such as swearing in another candidate. Nor does it authorize us to order a ballot box declared invalid (thus disenfranchising all of the many qualified voters who properly cast their ballots in that box) and thereby declaring another candidate the winner.  Sipenuk showed no grounds justifying being heard ex parte, and the Election Code does not authorize ex parte hearings.  (Civil Rule 65 and the Civil Procedure Rules in general apply to civil proceedings in the trial division, not to appellate division proceedings.)

       Moreover, Sipenuk cannot show irreparable harm, a necessary prerequisite to the issuance of a temporary restraining order and a major factor to be weighed before granting a preliminary injunction.  He has the election appeal process available to him within which he could properly seek redress.  Sipenukís response contends that he faces irreparable harm if he is not granted injunctive relief by May 11, when the new Congress is seated, because if Congress unconditionally seats another on that date, Sipenukís claims become non-justiciable.  It is true that if Congress seats a candidate unconditionally the election contest becomes non-justiciable. Aten v. National Election Commír (III), 6 FSM Intrm. 143, 145 (App. 1993). However, not once have we failed to decide an election contest appeal before the statutorily-mandated May 11 date, 3 F.S.M.C. ßß 107, 201, for the newly-elected Congress to start. We have always rendered election appeal decisions promptly. See Braiel v. National Election Dir., 9 FSM Intrm. 133 (App. 1999); Wiliander v. Mallarme, 7 FSM Intrm. 152 (App. 1995); Aten v. National Election Commír (II), 6 FSM Intrm. 74 (App. 1993); Olter v. National Election Commír, 3 FSM Intrm. 123 (App. 1987); see also Asugar v. Edward, 13 FSM Intrm. 215 (App. 2005); Asor v. National Election Dir., 13 FSM Intrm. 205 (App. 2005); Wiliander v. National Election Dir., 13 FSM Intrm. 199 (App. 2005); Fritz v. National Election Dir., 11 FSM Intrm. 442, 444 (App. 2003).  There is thus no basis to even suggest that we would not act as promptly in 2007 as we have in the past.

      Sipenuk filed this appeal and accompanying motions pro se.  Generally, only attorneys admitted to the FSM Supreme Court can file papers in the appellate division.  See Kephas v. Kosrae, 3 FSM Intrm. 248, 252 (App. 1987); Alaphonso v. FSM, 1 FSM Intrm. 209, 230 n.13 (App. 1982).  Because of the short time frame for election appeals, the court may accept the initial filing (the notice of appeal) pro se.  But this case is a good example of why, generally, an admitted attorney must sign appellate division filings.  Sipenuk filed too soon.  He sought relief (injunctions barring Sukaís swearing in, the Directorís certification, the Directorís "penalizing," etc.) that the election statute does not authorize us to grant, and he may have sought to appear on behalf persons, "his supporters," who were not properly part of this election contest.  Only the election contestant(s), the National Election Director, and the "winning candidate" are proper parties to an election contest appeal. (Sipenukís response concedes that his "supporters" are not proper parties and correctly asserts that their inclusion in the caption is a technical defect that was not fatal and could be remedied.)

IV.  Conclusion

      Accordingly, this appeal is dismissed because the court lacks jurisdiction to hear it.

______________________________

Footnotes:

1.  When the time period started is somewhat unclear. The Directorís certification is dated March 15, 2007. Sipenuk filed his petition on March 13, 2007 and the Director, using that as his starting point, added seven days for the winning candidate to respond (he did not) and then 14 days for the Director to issue his decision, making April 3, 2007 the Directorís deadline to issue his decision on Sipenukís petition. Since, in the Directorís view, Sipenukís petition was filed early, he might have considered it filed as of March 15, 2007, the date the election was certified, which would have given the Director until April 5, 2007 to decide whether to grant Sipenukís petition.

2.  An appeal from an administrative agency must be started within the established statutory time period. Anton v. Heirs of Shrew, 12 FSM Intrm. 274, 279 (App. 2003). "This has the salutary effect of permitting resolution by the administrative agency, which may either satisfy the aggrieved party or mollify his concerns, thus conserving scarce judicial resources." Wiliander v. National Election Dir., 13 FSM Intrm. 199, 203 (App. 2005). The only exception to the requirement to exhaust this remedy first is if to do so would be futile. See, e.g., Dorval Tankship Pty, Ltd. v. Department of Finance, 8 FSM Intrm. 111, 115 (Chk. 1997); Chuuk v. Secretary of Finance, 7 FSM Intrm. 563, 566 n.4 (Pon. 1996). There is no basis for this exception to apply here.

3.  Sipenuk, in this case, refiled his TRO and preliminary injunction motions on April 3, 2007. He did not file a notice of appeal then or later. Sukaís reply notes that the justice presiding over the April 4, 2007 telephonic conference, at which Sipenuk was present, advised the parties that April 9, 2007 was the deadline for filing an appeal from that decision.

4.   If Sipenuk had waited until the Director issued his decision to appeal he may have chosen not to appeal because the Directorís decision may have convinced him that his chances were poor since an election contestant must prove by a preponderance of the evidence that "it is more likely than not that the fraud or error complained of could have resulted in the election of a candidate who would not have won had the fraud or error not occurred," FSM Pub. L. No. 14-76, ß 69(2) (to be codified at 9 F.S.M.C. 803(2)) and 319 votes is a large deficit to overcome. Or Sipenuk may have chosen to narrow or focus the grounds asserted on appeal.

5.   Although the Olter court issued its memorandum fully explaining its ruling after the May 11 date, its order requiring a recount was timely issued on April 21, 1987. Olter, 3 FSM Intrm. at 127.

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