CHUUK STATE SUPREME COURT APPELLATE DIVISION

Cite as Kinemary v. Siver, 16 FSM Intrm. 201 (Chk. S. Ct. App. 2008)

[16 FSM Intrm 201]

STEKICHY KINEMARY,

Appellant/Petitioner

vs.

MARINO SIVER, in his official capacity as Chuuk

State Election Commissioner, CHUUK STATE

ELECTION COMMISSION, POLLE MUNICIPAL

ELECTION COMMISSIONER,

Appellees/Respondents,

NORICHI CHENI and ISIER HERAM,

Real Parties in Interest.

APPEAL CASE NO. 03-2008

ORDER OF DISMISSAL

Argued: November 13, 2008

Decided: November 28, 2008

 

BEFORE:

Hon. Camillo Noket, Chief Justice, Presiding

Hon. Ready E. Johnny, Temporary Justice *

Hon. Salomon M. Saimon, Temporary Justice **
 

* Associate Justice, FSM Supreme Court, Chuuk

** Attorney at Law, Weno, Chuuk
 

APPEARANCES:

For the Petitioner:                                                   Ben K. Enlet

                                                                               P.O. Box 1650

                                                                               Weno, Chuuk FM 96942
  

For the Respondent:                                              Charleston Bravo

(Chuuk Election Commír)                                       Assistant Attorney General

                                                                               P.O. Box 189

                                                                               Weno, Chuuk FM 96942
 

For the Real Party in Interest:                                George Hauk

             (Heram)                                                     P.O. Box 1405

                                                                               Weno, Chuuk, FM 96942

[16 FSM Intrm 202]

For the Real Party in Interest-Respondent:           Johnny Meippen

(Cheni; Polle Election Commír)                              P.O. Box 705

                                                                               Weno, Chuuk FM 96942

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HEADNOTES

Elections

    When a motion to dismiss for lack of the courtís subject matter jurisdiction is filed in lieu of an answer to an election contest complaint, the court is required to address the preliminary issues raised regarding the appellate divisionís subject matter jurisdiction before proceeding to the merits of the issue. Kinemary v. Siver, 16 FSM Intrm. 201, 205 (Chk. S. Ct. App. 2008).

Elections

    Elections belong to the political branch of the government. The court can exercise authority over election disputes only to the extent that there is a constitutional or statutory provision expressly or impliedly giving it that authority. Kinemary v. Siver, 16 FSM Intrm. 201, 205 (Chk. S. Ct. App. 2008).

Elections

    The determination of an election contest is a judicial function only so far as authorized by the statute. Even if the court is granted jurisdiction, it does not then proceed according to the course of the common law, but must rely solely on its statutorily granted authority to ascertain its powers and mode of procedure. Kinemary v. Siver, 16 FSM Intrm. 201, 205 (Chk. S. Ct. App. 2008).

Elections

    The Chuuk State Election Law of 1996, chapter 8 sets forth the procedures for contesting the results of an election. A "contestant" is someone contesting an election. A "defendant" in an election contest is one whose election or qualifications are contested. A contestant must verify a statement of contest and file it within five days after the declaration of the result of the election by the body canvassing the returns thereof, and the election commission must rule on the complaint within three days after the end of time for filing statements of contest. The Election Law imposes no deadline for appealing a ruling of the election commission to the Chuuk State Supreme Court appellate division. Kinemary v. Siver, 16 FSM Intrm. 201, 205-06 (Chk. S. Ct. App. 2008).

Elections

    Unless municipal law or constitution provides otherwise, all appeals from the Election Commissionerís decision on an election contest go directly to the Chuuk State Supreme Court appellate division. Kinemary v. Siver, 16 FSM Intrm. 201, 206 (Chk. S. Ct. App. 2008).

Administrative Law ) Judicial Review; Elections

    Although there may be no actual decision that was appealed from, an Election Commissionerís failure to act on an election contest constitutes an effective, appealable denial. In order to obtain appellate division jurisdiction over an election contest, however, the timing requirements for filing must be strictly complied with. The reason is that statutory deadlines are jurisdictional, and therefore, if a statutory deadline has not been strictly complied with, the adjudicator is without jurisdiction over the matter. Kinemary v. Siver, 16 FSM Intrm. 201, 206 (Chk. S. Ct. App. 2008).

Elections

    The election contest provisions do not do not allow for the filing of an election contest complaint before an election. Although a petitioner may file a petition after an election is declared but before it is

[16 FSM Intrm 203]

certified, there is no authority for allowing an election contest to be filed outside the framework of section 127 of the Election Law, which specifically states that a contest must be filed within five days after the declaration of the election ) the petition must be filed after declaration of the election, but no later than five days from the date of the declaration. The Chuuk State Supreme Court appellate division has no jurisdiction when over an election contest when it was not filed with the Election Commission within the deadline imposed. Kinemary v. Siver, 16 FSM Intrm. 201, 206 (Chk. S. Ct. App. 2008).

Elections

    Although it may be preferable to have the issue of a candidateís qualification addressed before the election, there is nothing to prevent a petitioner from re-filing his qualification challenge after the declaration of the results, according to the provisions for an election contest. Kinemary v. Siver, 16 FSM Intrm. 201, 206 (Chk. S. Ct. App. 2008).

Elections

Although there may be some cases where issues regarding the conduct of elections may be raised prior to an election, it seems axiomatic that an election contest only arises once the results of the election are known. Kinemary v. Siver, 16 FSM Intrm. 201, 206 (Chk. S. Ct. App. 2008).

Elections

    By filing a complaint under section 55, any person may raise with the state election commission a controversy over a violation of any of the Election Law provisions. If a candidate is found guilty of violating any election law provision, the candidate may be disqualified from office and an Independent Prosecutor or Attorney General, or both, will take whatever necessary legal action to make the disqualification from office legally effective. While there are specific timing provisions that control the filing of an election contest, there is no provision that sets a deadline for filing section 55 controversies. A disqualification resulting from a successful section 55 action may, therefore, occur either before or after a candidate takes office. Kinemary v. Siver, 16 FSM Intrm. 201, 207 (Chk. S. Ct. App. 2008).

Administrative Law ) Judicial Review; Elections

    While the Election Law explicitly grants jurisdiction to the appellate court over appeals of election contests, it is silent on the question of appellate jurisdiction over appeals from decisions made under section 55 and no other provision in the Election Law, other than those granting jurisdiction over election contests in the appellate division, expressly provides for jurisdiction in the Supreme Court appellate division. Although there is no specific reference to the jurisdiction of the trial division in the Election Law itself, it must be inferred that the trial division, and not the appellate division, has jurisdiction over criminal prosecutions sought pursuant to section 55 as well as the power to hear contempt proceedings that are certified from the Election Commission pursuant to section 8. Since the provisions in the Chuuk Constitution and Judiciary Act for trial court review over agency actions otherwise provide authority for the trial courtís jurisdiction over appeals from an election commission, the appellate court does not have jurisdiction over an appeal from the Election Commissionís denial of a petitionerís pre-election complaint regarding the qualifications of candidates for Polle municipal mayoral office. Kinemary v. Siver, 16 FSM Intrm. 201, 207 (Chk. S. Ct. App. 2008).

Elections

    The state appellate panel must decide on a contested election before the date upon which the declared winning candidates are to take office in the Senate or House of Representatives since the decision of the specific house concerned will prevail and is final. Kinemary v. Siver, 16 FSM Intrm. 201, 208 (Chk. S. Ct. App. 2008).

Elections

Except for members-elect of the Senate or House of Representatives, the court is not prevented

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from ruling on cases involving elected officials even after they have taken office. A candidate will continue to have a legally cognizable interest in whether one or more candidates is disqualified because, if one or more candidates is disqualified, then one of the others may stand to be the winning candidate. If the candidatesí qualifications are affirmed by the court, the ruling still serves a valuable function by settling a concrete dispute over the qualifications of an elected official. Kinemary v. Siver, 16 FSM Intrm. 201, 208 (Chk. S. Ct. App. 2008).

Constitutional Law ) Case or Dispute ) Mootness

    An exception to the mootness doctrine clearly applies when it appears to the court that the problem may rise again, and when a determination of the issues may have a continuing effect on future events, including future litigation. Kinemary v. Siver, 16 FSM Intrm. 201, 208 (Chk. S. Ct. App. 2008).

Elections

    The procedures for filing a challenge of a candidateís or elected officialís qualifications may be presented at any time. A properly filed petition is not rendered moot by the results of an election or the swearing in of a mayoral candidate. Kinemary v. Siver, 16 FSM Intrm. 201, 208 (Chk. S. Ct. App. 2008).

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COURTíS OPINION

CAMILLO NOKET, Chief Justice:

    This matter was filed in the appellate division of the Chuuk State Supreme Court as an appeal of petitions filed in advance of the September 9, 2008 Polle municipal election, challenging the age qualifications of two of the Polle municipal mayoral candidates. Without reaching the merits of the qualification issue, the court grants dismissal for lack of jurisdiction.

I. Background

    On September 1, 2008, petitioner Stekichy Kinemary filed a petition with the Polle Election Commissioner challenging the nominations of real parties in Interest, Norichi Cheni and Isier Heram, as mayoral candidates for the September 9, 2008 Polle municipal election on the basis that neither met the age requirement of 48 years old for mayor, as provided for by municipal ordinance. See, Polle Municipal Ordinance No. 05-95, ß 5(a). On September 3, 2008, petitioner filed a verified petition with the State Election Commission seeking the same relief as he did with his September 1, 2008 petition. Both petitions were served on the Polle Municipal Election Commissioner, the State Attorney General for the Chuuk State Election Commission, and the real parties in interest. On September 9, 2008, the Polle municipal election was held. In the official results, real party in interest Cheni garnered the most votes. Real party in interest Heram garnered the second most votes. Petitioner garnered the least votes of the three candidates. On September 10, 2008 real party in interest Cheni was certified as winner of the election and, on September 19, 2008, he was sworn in to office.

    On the same day, September 19, 2008, petitioner Kinemary filed his complaint with the appellate division of the Chuuk State Supreme Court, appealing from the pre-election petitions that were not ruled on by either the Polle or Chuuk State Election Commissions. On October 13, 2008, respondent State Election Commissioner filed a motion to dismiss contending that the case should be dismissed for lack of subject matter jurisdiction on the grounds of mootness. On October 17, 2008, respondent Polle Election Commissioner and real party in interest Cheni filed a motion to dismiss contending that the case should be dismissed for lack of subject matter jurisdiction on the grounds that the petitioner did

[16 FSM Intrm 205]

not comply with the timing requirements for filing an election contest.

    On October 20, 2008, real party in interest Heram filed an opposition to the October 13, 2008 motion to dismiss. On October 27, 2008, petitioner Kinemary filed an opposition to the October 13, 2008 motion to dismiss. No oppositions were filed to the October 17, 2008 motion to dismiss. On October 29, 2008, Polle Election Commissioner and real party in interest Cheni filed an appellate brief, which restated the argument in their October 17, 2008 motion to dismiss that the appellate court lacked jurisdiction over the matter. On November 13, 2008, each counsel presented oral argument to the appellate panel on both motions to dismiss, after which the panel took the motions under advisement.

II. Motions to Dismiss

    Before proceeding to the merits of the issue raised on this appeal, the court is required to address the preliminary issues raised regarding the appellate divisionís subject matter jurisdiction over the matter. See Murilo Election Commír v. Marcus, 15 FSM Intrm. 220, 224 (Chk. S. Ct. App. 2007) (When a motion to dismiss for lack of the courtís subject matter jurisdiction is filed in lieu of an answer to an election contest complaint, a court must address the motion before proceeding to a trial on the merits).

III. Jurisdiction over Election Contest Appeals

    Polle Election Commissioner and real party in interest Cheni argue that the appellate division is restricted to exercising jurisdiction over election contests and since this action was not filed in accordance with the timing requirements for an election contest, the court lacks jurisdiction. The court will therefore consider whether this action can be entertained under the courtís authority to hear election contests.

    Elections belong to the political branch of the government, and the court can exercise authority over election disputes only to the extent that there is a constitutional or statutory provision expressly or impliedly giving it that authority. David v. Uman Election Commír, 8 FSM Intrm. 300d, 300h (Chk. S. Ct. App. 1998); Mathew v. Silander, 8 FSM Intrm. 560, 562 (Chk. S. Ct. Tr. 1998); Phillip v. Phillip, 9 FSM Intrm. 226, 228 (Chk. S. Ct. Tr. 1999). The determination of an election contest is a judicial function only so far as authorized by the statute. Even if the court is granted jurisdiction, it does not then proceed according to the course of the common law, but must rely solely on its statutorily granted authority to ascertain its powers and mode of procedure. Mathew, 8 FSM Intrm. at 563.

    The procedures for contesting the results of an election are set forth in the Chuuk State Election Law of 1996, chapter 8. See Chk. S.L. No. 3-95-26, ß 123 et seq. Section 123 defines a "contestant" as some one contesting an election. Id. ß 123. A "defendant" in an election contest is one whose election or qualifications are contested. Id. Sections 126-129 set forth the pleading requirements for filing a complaint with the state election commission. A contestant must verify a statement of contest and "shall file it within five (5) days after the declaration of the result of the election by the body canvassing the returns thereof." Id. ß 127. The election commission must rule on the complaint within three days after the end of time for filing statements of contest. Id. ß 130.

    The appellate courtís authority to hear an election contest on appeal from an election commissionís ruling is found in Sections 130 and 131 of the Chuuk Election Code. Id., ßß 130-131. There is no deadline imposed by the Election Law for appealing a ruling of the election commission to the appellate division of the Chuuk State Supreme Court. Id.; Cholymay v. Chuuk State Election Commín, 10 FSM Intrm. 145, 157 (Chk. S. Ct. App. 2001). Unless municipal law or constitution

[16 FSM Intrm 206]

provides otherwise, all appeals from the Election Commissionerís decision on an election contest go directly to the Chuuk State Supreme Court appellate division. Murilo Election Commír, 15 FSM Intrm. at 224; Samuel v. Chuuk State Election Commín, 14 FSM Intrm. 586, 589 (Chk. S. Ct. App. 2007); Alafanso v. Suda, 10 FSM Intrm. 553, 557 (Chk. S. Ct. Tr. 2002); Cholymay, 10 FSM Intrm. at 154-55; accord Aizawa v. Chuuk State Election Commír, 8 FSM Intrm. 245, 247 (Chk. S. Ct. Tr. 1998). Here, no municipal law or constitutional provision limited the application of the appeal provisions of the Election Law of 1996 and so the appellate panel has jurisdiction over any appeal from a decision by the Election Commissioner of an election contest. Murilo Election Commír, 15 FSM Intrm. at 224.

    Although there was no actual decision that was appealed from in this case, the Election Commissionerís failure to act on an election contest constituted an effective, appealable denial. Murilo Election Commír, 15 FSM Intrm. at 225; Cholymay, 10 FSM Intrm. at 153-54; Wiliander v. Mallarme, 7 FSM Intrm. 152, 158 (App. 1995).

    In order to obtain the jurisdiction of the appellate division over an election contest, however, the timing requirements for filing must be strictly complied with. The reason is that statutory deadlines are jurisdictional, and therefore if a statutory deadline has not been strictly complied with the adjudicator is without jurisdiction over the matter. Wiliander, 7 FSM Intrm. at 158 (no estoppel of timing requirements for election contest as a result of national election commissionís failure to rule on petition); see also Kony v. Mori, 6 FSM Intrm. 28, 30 (Chk. 1993) (appellate division can only exercise jurisdiction over an election contest within the framework, including the timing provisions, so provided by statute).

    The election contest provisions do not allow for the filing of an election contest complaint prior to an election. Although this court has held that a petitioner may file a petition after an election is declared but before it is certified, see Cholymay, 10 FSM Intrm. at 153, there is no authority for allowing an election contest to be filed outside the framework of section 127 of the Election Law, which specifically states that a contest must be filed within five days after the declaration of the election. Chk. S.L. No. 3-95-26, ß 127. In other words, the petition must be filed after declaration of the election, but no later than five days from the date of the declaration. Although there may be some cases where issues regarding the conduct of elections may be raised prior to an election, it seems axiomatic that an election contest only arises once the results of the election are known. See Daniel v. Moses, 3 FSM Intrm. 1, 4 (Pon. S. Ct. Tr. 1985) (An election must be completed and the results announced before the election can be contested.).

    In this case, two petitions were filed before the election, but none was filed within five days after the declaration of the results. Although it may have been preferable to have the qualification issues addressed prior to the election, there was nothing to prevent petitioner from re-filing his qualification challenge after the declaration of the results, according to the provisions for an election contest. See Miochy v. Chuuk State Election Commín, 15 FSM Intrm. 370 (Chk. S. Ct. App. 2007) (Chuuk State Supreme Court appellate division affirmed ruling of Election Commission in timely filed election contest challenging municipal mayoral election winnerís age qualification). Petitioner did not, however, re-file his petition under the election contest provisions. The court concludes that it has no jurisdiction over this matter pursuant to sections 130 and 131 of the Election Law, because an election contest was not filed with the Election Commission within the deadline imposed by section 127 of the Election Law.

IV. Jurisdiction over Appeals of Section 55 Controversies

    Petitioner contends that even if the appellate division does not have jurisdiction over this matter as an election contest, it has jurisdiction to hear an appeal of a section 55 controversy after the Election Commission failed to act on his pre-election petition within fifteen days. See Chk. S.L. No. 3-95-26,

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ßß 8, 55. The petition challenged the age qualifications of the real parties in interest. It appears that the controversy was properly raised with the Election Commission, as the determination of whether candidates are qualified is within the ambit of the election commissionís powers. See id. ß 9 (before a personís name is placed on the ballot for an election to public office the personís qualifications to hold the office the personís qualifications must be to hold the office must be thoroughly examined and investigated by the election commission to ensure that they are in compliance with the law and the Constitution). The panel will therefore consider whether it has jurisdiction over an appeal of the Election Commissionís denial or failure to act on a section 55 controversy.

    The scope of either the appellate division or trial divisionís jurisdiction over appeals of a section 55 controversy is an issue of first impression. By filing a complaint under section 55, any person may raise with the state election commission a controversy over a violation of any of the provisions of the Election Law. Id. ß 55. According to the procedure set forth in section 55, if a candidate is found guilty of violating any provision of the election law, the candidate may be disqualified from office and an Independent Prosecutor or Attorney General, or both, will take whatever necessary legal action to make the disqualification from office legally effective. Id. ß 55. While there are specific timing provisions that control the filing of an election contest, see Olter v. National Election Commír, 3 FSM Intrm. 123, 129 (App. 1987), there is no provision that sets a deadline for filing section 55 controversies. A disqualification resulting from a successful section 55 action may, therefore, occur either before or after a candidate takes office. Id. ßß 54, 55. The Election Law is therefore explicit in providing that the Election Commission has the statutory authority and responsibility to rule on any controversy raised regarding a candidateís qualification, even if they have taken office. Id.

    While the Election Law explicitly grants jurisdiction to the appellate court over appeals of election contests, it is silent on the question of appellate jurisdiction over appeals from decisions made pursuant to section 55. Indeed, no other provision in the Election Law, other than those granting jurisdiction over election contests in the appellate division, expressly provides for jurisdiction in the appellate division of the Supreme Court.

    Although there is no specific reference to the jurisdiction of the trial division in the Election Law itself, it must be inferred that the trial division, and not the appellate division, has jurisdiction over criminal prosecutions sought pursuant to section 55 as well as the power to hear contempt proceedings that are certified from the election commission pursuant to section 8. See id. ßß 8, 55. The provisions in the Chuuk Constitution and Judiciary Act for trial court review over agency actions otherwise provide authority for the trial courtís jurisdiction over appeals from an election commission. See Chk. Const. art. VII, ß 3(c) (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); see also id. ßß 17, 18; and see Aizawa v. Chuuk State Election Commír, 8 FSM Intrm. 245, 247 (Chk. S. Ct. Tr. 1998) (Because the state judiciary act gives the state court trial division authority to review all actions of an agency of the government, the trial division has jurisdiction over an appeal from election commission if it is determined that the appellate court does not have jurisdiction over the matter.).

    The court concludes that it does not have jurisdiction over this appeal from the Election Commissionís denial of petitionerís pre-election complaint regarding the qualifications of the real parties in interest to hold the Polle municipal mayoral office.

V. Mootness

    Although the panel bases its dismissal on the argument raised in respondent Polle Election Commissioner and real party in interest Cheniís motion to dismiss, it will also comment on the argument raised by respondent State Election Commissioner in its October 13, 2008 motion to dismiss because

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of its concern as to whether complainants raising issues regarding a candidateís or elected personís qualifications will have effective avenues of relief. The Election Commission argues that this appeal was rendered moot once the election was held and a winning candidate was declared and sworn in to office.

    The argument is primarily based on the language of Section 131 of the Election Law, which states that the appellate panel "shall decide on a contested election prior to the date upon which the declared winning candidates are to take office." Chk. S.L. No. 3-95-26, ß 131. The provision next concludes that "[i]n the case of a contested election of a member-elect of the Senate or House of Representatives, the decision of the specific House concerned shall prevail and is final. Id. The mandatory language in Section 131 encompasses those cases involving the election of members to the legislature where it has been held that the swearing in of the winning candidate renders an election dispute moot. See, e.g., Aten v. National Election Commír (III), 6 FSM Intrm. 143, 145 & n.1 (App. 1993) (only Congress can decide who is to be seated and once it has seated a member unconditionally the matter is non-justiciable); see also Daniel, 3 FSM Intrm. at 4. Section 131 does not, however, prevent the court from ruling on cases involving other elected officials, even after they have taken office. Rather, for elected officials other than members elect of the Senate or House of Representatives, even when a real party in interest has already taken office, petitioner and real parties in interest continue to have a legally cognizable interest in whether one or more of the candidates is disqualified, because if one or more candidates is disqualified, then one of the others may stand to be the winning candidate. Rubin v. Fefan Election Commín, 11 FSM Intrm. 573, 580 (Chk. S. Ct. Tr. 2003). If the qualifications of the real parties in interest are affirmed by the court, the ruling still serves a valuable function by settling a concrete dispute over the qualifications of an elected official. Id.

    The prospect of an unqualified elected official holding office without any available procedure to challenge his qualifications would threaten to undermine the integrity of this and future elections, fair elections conducted in accordance with the law being the very foundation of democracy. Rubin, 11 FSM Intrm. at 580. The vesting in the trial division of jurisdiction over appeals from commission rulings provides that means under the circumstances of this case.

    Further, an exception to the mootness doctrine clearly applies when it appears to the court that the problem may rise again, and when a determination of the issues may have a continuing effect on future events, including future litigation. Rubin, 11 FSM Intrm. at 580. This case presents an issue regarding elected official qualifications that, if unaddressed by a court of competent jurisdiction, will likely arise again.

    Finally, the procedures for filing a section 55 controversy do not impose any timing requirements. A challenge of a candidateís or elected officialís qualifications may be presented at any time. A properly filed petition under ß 55 is not, therefore, rendered moot by the results of an election or the swearing in of a mayoral candidate. Chk. S.L. No. 3-95-26, ß 55. The failure of election officials to act within the time requirements provided for by statute certainly adds nothing in favor of a mootness argument. See id. ß 8 (any controversy submitted to the Commission shall be tried, heard and decided within 15 days from the date the petition is filed).

VI. Conclusion

   This case is dismissed for lack of subject matter jurisdiction.

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