CHUUK STATE SUPREME COURT APPELLATE DIVISION

Cite as Murilo Election Commír v. Marcus, 15 FSM Intrm. 220 (Chk. S. Ct. App. 2007)

[15 FSM Intem. 220]

MURILO ELECTION COMMISSIONER

and PANSER PETER,

Appellants,

vs.

RAFAEL MARCUS,

Appellee.

MURILO ELECTION COMMISSIONER

and PANSER PETER,

Petitioners,

vs.

MACHIME OíSONIS, as Associate

Justice, and RAFAEL MARCUS,

Respondents.

CIVIL APPEAL NO. 08-2007

CIVIL APPEAL NO. 07-2007

OPINION

Argued:  June 14, 2007

Submitted:  July 31, 2007

Decided:  August 28, 2007

BEFORE:

Hon. Camillo Noket, Chief Justice

Hon. Benjamin Rodriguez, Temporary Justice*

Hon. Repeat Samuel, Temporary Justice**
 

*Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei

**Attorney at Law, Weno, Chuuk
 

APPEARANCES:

For the Petitioners/Appellants:    Johnny Meippen, Esq.

                                                    P.O. Box 705

                                                    Weno, Chuuk   FM   96942
 

For the Respondent/Appellee:    Fredrick A. Hartman

                 (Marcus)                     P.O. Box 222

                                                    Weno, Chuuk   FM   96942

[15 FSM Intrm 221]

For the Amicus Curiae:               Charleston L. Bravo

                                                    Assistant Attorney General

                                                    Office of the Chuuk Attorney General

                                                    P.O. Box 1050

                                                    Weno, Chuuk   FM   96942

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HEADNOTES

Appellate Review ) Briefs, Record, and Oral Argument

      The court may permit the respondents to present oral argument even though they had not answered the petition in the time previously set by the court and had thus waived their right to respond at oral argument without the courtís permission. Murilo Election Commír v. Marcus, 15 FSM Intrm. 220, 223 (Chk. S. Ct. App. 2007).

Civil Procedure ) Joinder; Elections; Judgments ) Void

     In any action where a party seeks relief that would result in that party being declared the winner of an election rather than some other person, that other person is an indispensable party whose absence would make any judgment void and subject to collateral attack. Murilo Election Commír v. Marcus, 15 FSM Intrm. 220, 224 (Chk. S. Ct. App. 2007).

Appellate Review ) Standard of Review ) Civil Cases

      When the trial judge made no rulings on motions to dismiss and for relief from judgment or order and so failed to exercise whatever discretion he may have had to rule on them, he abused his discretion since a court abuses its discretion by an unexplained failure to exercise its discretion within a reasonable time. Murilo Election Commír v. Marcus, 15 FSM Intrm. 220, 224 (Chk. S. Ct. App. 2007).

Civil Procedure ) Dismissal; Jurisdiction

      When a Rule 12(b)(1) motion to dismiss raised a preliminary issue, the courtís subject matter jurisdiction, the court had to address that before any trial on the merits could proceed or any decision on the merits could be made. The motion even had to be ruled upon before the defendants could be required to answer the complaint and thus put the case at issue on the merits. Murilo Election Commír v. Marcus, 15 FSM Intrm. 220, 224 (Chk. S. Ct. App. 2007).

Constitutional Law ) Chuuk ) Due Process; Constitutional Law ) Due Process ) Notice and Hearing

      When no court notice of the caseís hearing on the merits was ever served on the defendants, the defendantsí and the real party in interestís rights to due process of law under the Chuuk and FSM constitutions were violated because a trial court commits plain error, and violates a litigantís right to due process, when the court fails to serve the notice of a trial date and time on that litigant. Murilo Election Commír v. Marcus, 15 FSM Intrm. 220, 224 (Chk. S. Ct. App. 2007).

Judgments

     Civil Procedure Rule 52(a) requires a trial judge, after trial, to make special findings of fact and separate conclusions of law before a judgment is entered. Murilo Election Commír v. Marcus, 15 FSM Intrm. 220, 225 (Chk. S. Ct. App. 2007).

Administrative Law ) Judicial Review

     The Chuuk Constitution provides that the Chuuk State Supreme Court trial division has jurisdiction to review the actions of any state administrative agency, board, or commission, as may be provided by law, and the constitutional provision is implemented by a similar statutory provision. These

[15 FSM Intrm 222]

general provisions about appeals from agency decisions would carry weight if other, specific constitutional provisions did not, or do not, apply. Murilo Election Commír v. Marcus, 15 FSM Intrm. 220, 225 (Chk. S. Ct. App. 2007).

Constitutional Law ) Chuuk ) Interpretation

     In analyzing constitutional questions, a court should consider all provisions of that constitution, because different sections may relate to the same subject matter, giving the specific provision questioned added meaning. Murilo Election Commír v. Marcus, 15 FSM Intrm. 220, 225 (Chk. S. Ct. App. 2007).

Elections

     The Chuuk Election Law of 1996 applies to Murilo municipal elections. Sections 123-130 of that law provide for the means to contest an election in Chuuk, which is to be before, and decided by, the Chuuk Election Commission. And it is well settled that election contest appeals from the Chuuk Election Commission go directly to the Chuuk State Supreme Court appellate division. Murilo Election Commír v. Marcus, 15 FSM Intrm. 220, 225 (Chk. S. Ct. App. 2007).

Elections

     From the Election Commissionís denial in an election contest, the only proper avenue in which an aggrieved candidate can seek further review is by appeal to the appellate division. Murilo Election Commír v. Marcus, 15 FSM Intrm. 220, 225 (Chk. S. Ct. App. 2007).

Elections

     Once an aggrieved candidateís request to the Chuuk Election Commission is denied, his only recourse is to appeal to the appellate division because the trial division lacks jurisdiction over the election contest. Murilo Election Commír v. Marcus, 15 FSM Intrm. 220, 225 (Chk. S. Ct. App. 2007).

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COURTíS OPINION

CAMILLO NOKET, Chief Justice:

I.

      This case arises from the August 1, 2006 Murilo municipal election. Rafael Marcus and Panser Peter were the only candidates for the post of mayor.  Peter was the declared winner by four votes. Marcus challenged the result.  According to Marcusís counsel at oral argument, Marcus first sought relief from the Murilo Election Commission but received no response, and then sought relief from the Chuuk Election Commission, and was told by them to go to the state court trial division.

      On August 17, 2006, Marcus filed a complaint for declaratory and injunctive relief (Civil Action No. 141-2006), which alleged that all votes cast at a special polling place on Guam were on improper photocopied ballots and that there had been no master list for Guam and which sought to have all Guam votes excluded from the total results.  The Murilo Election Commission and the Murilo Election Commissioner were the only named defendants.

[15 FSM Intrm 223]

      On September 14, 2006, Panser Peter, asserting that he was a real [but unnamed in the complaint] party in interest, and the defendant Murilo Election Commissioner filed a Rule 12(b) motion to dismiss the case on the ground that the trial division lacked jurisdiction over the subject matter since the case was, in fact, an election contest case (because the relief it sought would result in Marcus, not Peter, being declared the winning mayoral candidate).  The trial judge never ruled on this motion.

     A notice of hearing, dated September 12, 2006, was issued setting a hearing in Civil Action No. 141-2006 for September 18, 2006.  No return of service was ever filed.  Neither the defendant(s), nor the real party in interest, nor their counsel appeared at the September 18th hearing.  The respondent trial judge held a trial or evidentiary hearing on that date and ruled in Marcusís favor.  That evening, defense counsel learned of the hearing and the ruling, but found no written order in the court file on the next day.

      On September 25, 2006, the Murilo Election Commissioner and Panser Peter filed a motion for relief from the oral judgment or order on the ground that their constitutional rights to due process had been violated by a trial without notice to them or their presence and an opportunity to be heard therein.  The trial judge never ruled on this motion.

     On September 27, 2006, the trial judge signed, and on September 28, 2006, a clerk entered a one-page Judgment and Order that set aside the Guam ballot box and adjudged Rafael Marcus "the New Mayor of Murilo Municipality," but which did not contain any findings of fact or conclusions of law.

     On October 3, 2006, Panser Peter and the Murilo Election Commissioner filed their petition for a writ of prohibition (Civ. App. No. 07-2006), alleging that the trial court acted without or in excess of its jurisdiction because, in their view, the trial division lacks jurisdiction to hear election contests. They also filed a notice of appeal (Civ. App. No. 08-2006), raising as issues:  1)  whether the trial court had any jurisdiction to hear election contest cases and 2)  whether the September 28, 2006 Judgment and Order was void and should be set aside because it was entered in violation of the appellantsí rights to due process and equal protection of the laws.

     Because both of these two appeal cases question the trial divisionís jurisdiction to hear municipal election contest appeals and argue whether such appeals should first go to the Chuuk Election Commission and then from there to the Chuuk State Supreme Court appellate division, we invited the Chuuk Attorney Generalís Office to submit an amicus curiae brief on the issue and on the application of Chuuk Constitution, Article XII, ß 4.  That office filed identical briefs in both cases.

     We heard argument on the writ of prohibition petition (No. 07-2007) on June 14, 2007.  We permitted the respondents to present oral argument even though they had not answered the petition in the time previously set by the court and had thus waived their right to respond at oral argument without the courtís permission.  Chk. App. R. 31(c).

[15 FSM Intrm 224]

     Since No. 08-2007 is an appeal from judgment in the same case that the writ of prohibition is sought and since the appellants state that they now only seek to pursue in No. 08-2006 the same jurisdictional issue raised in No. 07-2006, we therefore ordered that the two appeals would be consolidated unless a party to either Civil Appeal No. 07-2007 or Civil Appeal No. 08-2007 objected and showed, no later than July 30, 2007, good reason why the two should not be consolidated, and that, if no such reasons were shown, we would then proceed to decide the two appeal cases in one opinion.  No party filed a response.  Both cases were therefore considered consolidated and submitted for our decision as of July 31, 2007.

II.

     The No. 08-2006 appellants have indicated that they no longer intend to pursue their due process violation claims raised in that appeal, but only intend to pursue in that appeal the same issue raised in the writ of prohibition petition.  Nevertheless, because we find some of the actions or inactions in the trial division quite disturbing, we do not feel that they should be allowed to pass without comment.

     First, in any action where a party seeks relief that would result in that party being declared the winner of an election rather than some other person, that other person is an indispensable party whose absence would make any judgment void and subject to collateral attack.  See Ruben v. Hartman, 15 FSM Intrm. 100, 110 (Chk. S. Ct. App. 2007); Pastor v. Ngusun, 11 FSM Intrm. 281, 285 (Chk. S. Ct. Tr. 2002).  So, since Panser Peter was an indispensable party, Rafael Marcus had to name him as a defendant and serve him with the complaint and summons.  But Marcus did not.

      Second, the trial judge failed to rule on both the September 14, 2006 motion to dismiss and the September 25, 2006 motion for relief from judgment or order.  Both failures were abuses of the trial courtís discretion.  When the trial judge made no rulings on those motions and so failed to exercise whatever discretion he may have had to rule on them, he abused his discretion since a court abuses its discretion by an unexplained failure to exercise its discretion within a reasonable time.  Ruben, 15 FSM Intrm. at 109; Bualuay v. Rano, 11 FSM Intrm. 139, 147 (App. 2002); In re Certification of Belgrove, 8 FSM Intrm. 74, 77-78 (App. 1997).  Furthermore, the Rule 12(b)(1) motion to dismiss raised a preliminary issue, the courtís subject matter jurisdiction, that the court had to address before any trial on the merits could proceed or any decision on the merits could be made. Chk. Civ. R. 12(d) (Civil Procedure Rule 12(1)-(7) defenses, "whether made in a pleading or by motion . . . should be heard and determined before trial . . . unless the court orders that the hearing and determination thereof be deferred until the trial").  It even had to be ruled upon before the defendants could be required to answer the complaint and thus put the case at issue on the merits. Chk. Civ. R. 12(a)(1).  Instead, the trial court ignored it.

      Third, when no court notice of the caseís hearing on the merits was ever served on the defendants in Civil Action No. 141-2006, the defendantsí (and particularly the real party in interestís) rights to due process of law under the Chuuk and FSM constitutions were violated because a trial court commits plain error, and violates a litigantís right to due process, when the court fails to serve the notice of a trial date and time on that litigant.  Panuelo v. Amayo, 12 FSM Intrm. 365, 375 (App. 2004) (judgment vacated a case remanded for a new trial when the court failed to serve notice of trial on a defendant and trial was started without his presence).  Prior notice and an opportunity to be heard are the essence of due process of law.  Kama v. Chuuk, 10 FSM Intrm. 593, 598 (Chk. S. Ct. App. 2002); Dereas v. Eas, 14 FSM Intrm. 446, 454 (Chk. S. Ct. Tr. 2006); see also Wainit v. Weno, 10 FSM Intrm. 601, 606 (Chk. S. Ct. App. 2002) (a court hears before it condemns; while a court that has announced a decision without notice and an opportunity to be heard can always be asked to reconsider and hear argument, this opportunity is a poor substitute for the right to be heard before the decision

[15 FSM Intrm 225]

is announced).

      And fourth, the judgment was issued without the trial court first making the required findings of fact and conclusions of law.  Civil Procedure Rule 52(a) requires a trial judge, after trial, to make special findings of fact and separate conclusions of law before a judgment is entered.  Mathias v. Engichy, 15 FSM Intrm. 90, 95 (Chk. S. Ct. App. 2007).  None were made.

     We, however, do not base our decision in this consolidated case on our comments above since we dispose of the matter on the basis of the jurisdictional issue presented and argued before us.

III.

     The respondents and appellee rely on the Chuuk Constitution provision concerning appeals from agency decisions, which provides that "[t]he trial division of the State Supreme Court has jurisdiction to review the actions of any state administrative agency, board, or commission, as may be provided by law."  Chk. Const. art. VII, ß 3(c).  This constitutional provision is implemented by a similar statutory provision.  Chk. S.L. No. 190-08, ß 17(1).  These general provisions about appeals from agency decisions would carry weight if other, specific constitutional provisions did not, or do not, apply.  In analyzing constitutional questions, a court should consider all provisions of that constitution, because different sections may relate to the same subject matter, giving the specific provision questioned added meaning.  Chuuk v. Secretary of Finance, 8 FSM Intrm. 353, 363, 368, 386 (Pon. 1998).

      The Chuuk Constitution also provides that "[t]here shall be an independent Election Commission vested with powers, duties, and responsibilities, as prescribed by statute, for the administration of elections in the State of Chuuk, including voter registration and the conduct and certification of elections."  Chk. Const. art. XII, ß 4.  The Election Law of 1996 provides that "[a]ll the provisions of this Act apply to all elections in the State of Chuuk, including municipal . . . election[s] whenever applicable unless otherwise specifically provided."  Chk. S.L. No. 3-25-96, ß 148.  The parties agree, and we have found nothing to contradict this, that the Murilo election ordinance and the Murilo Constitution do not contain any provisions, either specific or general, providing a method to correct election irregularities or resolve disputes in the municipal election process, to administratively contest election results, or to address such issues. (This may well explain the Murilo Election Commissionís inaction on Marcusís request for relief.)

     The Election Law of 1996 therefore applies to Murilo municipal elections.  Sections 123-130 of that law provide for the means to contest an election in Chuuk, which is to be before, and decided by, the Chuuk Election Commission.  And it is well settled that election contest appeals from the Chuuk Election Commission go directly to the Chuuk State Supreme Court appellate division. Chk. S.L. No. 3-25-96, ß 130; Samuel v. Chuuk State Election Commín, 14 FSM Intrm. 586, 589 (Chk. S. Ct. App. Apr. 12, 2007); Cholymay v. Chuuk State Election Commín, 10 FSM Intrm. 145, 154-55 (Chk. S. Ct. App. 2001).

      Marcus did, in fact, attempt to seek relief from the Chuuk Election Commission.  He represents that the commission informed him that he should pursue his claims in the trial division.  We take the Election Commissionís response as a denial of Marcusís claims.  From the Election Commissionís denial in an election contest, the only proper avenue in which an aggrieved candidate can seek further review is by appeal to the appellate division.  Chk. S.L. No. 3-25-96, ß 130.  We are therefore of the opinion that once Marcusís request to the Chuuk Election Commission was denied, his only recourse was to appeal to the appellate division.  We further conclude that the trial division lacked jurisdiction over this election contest.

[15 FSM Intrm 226]

IV.

     Having concluded that the trial division lacked jurisdiction to hear a Murilo municipal election contest case, we hereby reverse the September 28, 2006 Judgment and Order and dismiss Civil Action No. 141-2006 with prejudice.

____________________________

Footnotes:

1.  A copy of an undated written request for relief addressed to the Chuuk Election Commission, signed by Marcus and his counsel, is in the trial court file.

2.  On September 29, 2006, Panser Peter, the Murilo Election Commissioner, and the Murilo municipal government filed a civil action (No. 2006-1020) in the FSM Supreme Court trial division, alleging due process violations and seeking injunctive relief from the enforcement of the September 28, 2006 trial court order in Civil Action No. 141-2006. That court, after notice, held a hearing on October 9 and 10, 2006, and on October 11, 2006, after weighing the relevant factors and noting the plaintiffsí likelihood of success on their FSM constitutional due process claims, issued a preliminary injunction barring the enforcement of the September 28, 2006 Civil Action No. 141-2006 Judgment and Order until the actions in the Chuuk State Supreme Court appellate division were finished.

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