FSM SUPREME COURT TRIAL DIVISION

Cite as Nelson v. FSM Nat'l Election Dir., 16 FSM Intrm. 356 (Chk. 2009)

[16 FSM Intrm 356]

MOSES NELSON,

Petitioner,

vs.

THE FSM NATIONAL ELECTION DIRECTOR,

Respondent.

CIVIL ACTION NO. 2009-1002

ORDER DENYING RESTRAINING ORDER AND REQUESTING BRIEFS

Ready E. Johnny

Associate Justice

Hearing: March 13, 2009

Decided: March 16, 2009
 

APPEARANCES:

For the Petitioner:                Marstella Jack, Esq.

                                             P.O. Box 2210

                                             Kolonia, Pohnpei FM 96941
 

For the Respondent:            L.M. Bacalando, Jr., Esq.

                                             Assistant Attorney General

                                             FSM Department of Justice

                                             P.O. Box PS-105

                                             Palikir, Pohnpei FM 96941

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[16 FSM Intrm 357]

HEADNOTES

Civil Procedure ) Injunctions

    In exercising its broad discretion in considering a motion for a temporary restraining order, the court looks to four factors: 1) the possibility of the irreparable injury to the movant; 2) the balance of the possible injury as between the parties; 3) the movantís possibility of ultimate success on the merits; and 4) the impact upon the public interest. The threat of irreparable harm is a prerequisite to injunctive relief. Nelson v. FSM Natíl Election Dir., 16 FSM Intrm. 356, 358 (Chk. 2009).

Elections ) Contests

    A case is an election contest when the relief sought may affect or change who the winning candidate is in an election district and the plaintiff-candidate is thus an election contestant. Nelson v. FSM Natíl Election Dir., 16 FSM Intrm. 356, 358 (Chk. 2009).

Civil Procedure ) Injunctions ) Irreparable Harm; Elections ) Contests

    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 through which he could properly seek redress. Nelson v. FSM Natíl Election Dir., 16 FSM Intrm. 356, 358 (Chk. 2009).

Civil Procedure ) Injunctions ) Irreparable Harm; Elections; Elections ) Contests

    When the relief sought is obtainable from the National Election Director before certification since a recount or a revote is a remedy within the National Election Directorís power to order during the election contest appeal process, the plaintiff cannot show irreparable harm and his motion for a temporary restraining order may be denied on that ground alone. Nelson v. FSM Natíl Election Dir., 16 FSM Intrm. 356, 358-59 (Chk. 2009).

Elections ) Contests

    An election contest appeal must await the National Election Directorís certification of the election results and the Directorís subsequent denial of the candidateís timely post-certification petition. If the Directorís decision on an aggrieved candidateís petition does not adequately address the candidateís concerns, the aggrieved candidate would then have five days from the receipt of the Directorís decision to appeal to the FSM Supreme Court appellate division. Nelson v. FSM Natíl Election Dir., 16 FSM Intrm. 356, 359 (Chk. 2009).

Elections ) Contests

    When Congress drafted the election statute, it limited court involvement in election contests until after the issues have been narrowed to the certified result and to whether the Director should have granted a candidateís petition contesting the certified result and, if so, what relief was then appropriate. The statute also designates the FSM Supreme Court appellate division as the forum for election contest appeals. Nelson v. FSM Natíl Election Dir., 16 FSM Intrm. 356, 359 (Chk. 2009).

Constitutional Law ) Case or Dispute; Elections

    If Congress seats a candidate unconditionally an election contest becomes a non-justiciable political question. Nelson v. FSM Natíl Election Dir., 16 FSM Intrm. 356, 359 (Chk. 2009).

Civil Procedure ) Joinder, Severance and Misjoinder; Elections ) Contests

    Any candidate who would be adversely affected by the relief an aggrieved candidate seeks would be an indispensable party to the action and must be joined before a court could grant any relief or a dismissal will ensue. Nelson v. FSM Natíl Election Dir., 16 FSM Intrm. 356, 359 (Chk. 2009).

[16 FSM Intrm 358]

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COURTíS OPINION

READY E. JOHNNY, Associate Justice:

    On March 13, 2009, this came before the court for hearing on the petitionerís motion for a temporary restraining order. The respondent appeared telephonically. The motion is denied. The courtís reasons follow.

I.

    The petitioner, Moses Nelson, is a candidate for election as congressman from the Chuuk Fifth Congressional Election District (Northwest and Hall Islands). He alleges that certain irregularities took place in reporting the results of two or three polling places that caused inaccurate figures to be included in the final district-wide totals, and that the National Election Commissioner used these inaccurate vote counts to declare another, Tony Otto, the winning candidate. Nelson further alleges that if other figures, which he has reason to believe are accurate, had been included in the final result he would have been declared the winning candidate.

    Nelson seeks a temporary restraining order enjoining the National Election Director from certifying Otto as the winning candidate and a recount or a revote for the polling places affected by the alleged reporting irregularities.

    During the hearing, the Director asserted and Nelson conceded that Nelson had filed a petition, on March 9, 2009, before the Director that the Director had not yet ruled upon. Nelson contended that since there was no agency decision, that is, no decision by the Director, the trial court could restrain the election procedure from going forward and from denying him a seat in Congress. The Director raised two points in opposition: 1) that the courts have no jurisdiction at this point because any resort to the court system is premature since the National Election Director has not rendered a decision on Nelsonís petition, and 2) that, in any event, it is the appellate division, not the trial division, that is the proper venue to contest any decision, once issued, by the Director.

II.

    In exercising its broad discretion in considering a motion for a temporary restraining order, the court looks to four factors: 1) the possibility of the irreparable injury to the movant; 2) the balance of the possible injury as between the parties; 3) the movantís possibility of ultimate success on the merits; and 4) the impact upon the public interest. Doone v. National Election Commír, 14 FSM Intrm. 489, 492 (Chk. 2006). The threat of irreparable harm is a prerequisite to injunctive relief. Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 332, 334 (App. 1992).

    This case is an election contest since the relief sought may affect or change who the winning candidate is in Election District No. 5 and Nelson is thus an election contestant. 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 through which he could properly seek redress. Sipenuk v. FSM Natíl Election Dir., 15 FSM Intrm. 1, 6 (App. 2007).

    The relief Nelson seeks is obtainable from the National Election Director before certification. A recount or a revote is a remedy within the National Election Directorís power to order during the

[16 FSM Intrm 359]

election contest appeal process. See Asugar v. Edward, 13 FSM Intrm. 209, 212 (Chk. 2005) (court refused to enjoin a revote ordered by Election Director). The election appeal process is available to Nelson and he is apparently also pursuing that avenue. He therefore cannot show irreparable harm. Nelsonís motion for a temporary restraining order may be denied on that ground alone.

    Furthermore, an election contest appeal must await the National Election Directorís certification of the election results and the Directorís subsequent denial of the candidateís timely post-certification petition. Asugar v. Edward, 13 FSM Intrm. 215, 219 (App. 2005). If the Directorís decision on an aggrieved candidateís petition does not adequately address the candidateís concerns, the aggrieved candidate would then have five days from the receipt of the Directorís decision to appeal to the FSM Supreme Court appellate division. 9 F.S.M.C. 804(2) [formerly 9 F.S.M.C. 903(1)]. When Congress drafted the election statute, it limited court involvement in election contests until after the issues have been narrowed to the certified result and to whether the Director should have granted a candidateís petition contesting the certified result and, if so, what relief was then appropriate. Asugar, 13 FSM Intrm. at 220. The statute further designated the FSM Supreme Court appellate division as the forum for election contest appeals. 9 F.S.M.C. 804(2).

    Nelson expressed his fear that if the court does not interrupt the election machinery now to grant a recount or a revote, the matter will become a political question and the courts will not then be able to right any wrongs. Although it is true that if Congress seats a candidate unconditionally an election contest becomes a non-justiciable political question, the FSM Supreme Court appellate division has never failed to decide an election contest appeal before it by the statutorily-mandated May 11 date for the newly-elected Congress to convene. Sipenuk, 15 FSM Intrm. at 6.

Furthermore, it would seem that any candidate who would be adversely affected by the relief Nelson seeks would be an indispensable party to this action and must be joined before a court could grant any relief or a dismissal would ensue. See Puchonong v. Chuuk, 14 FSM Intrm. 67, 69 (Chk. 2006). Otto, the real party in interest, has not been joined.

III.

    Accordingly, the motion for a temporary restraining order is denied on the ground that the movant cannot show any irreparable harm since he has not exhausted his administrative remedies in the election process. Since the matter of the courtís jurisdiction has been raised over this caseís subject matter, either party may, no later than March 26, 2009, file a brief on whether this case ought to be dismissed for lack of subject matter jurisdiction. FSM Civ. R. 12(h)(3).

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