Cite as Doone v. Chuuk State Election Comm'n,16 FSM Intrm. 459 (Chk. S. Ct. App. 2009)

[16 FSM Intrm. 459]

APPEAL CASE NO. 04-2009

Hearing: May 22, 2009
Decided: May 28, 2009

BEFORE:

Hon. Camillo Noket, Chief Justice, Presiding
Hon. Salomon M. Saimon, Temporary Justice*
Hon. George Z. Isom, Temporary Justice**

*Attorney at Law, Micronesian Legal Services Corporation, Weno, Chuuk
**Attorney at Law, FSM Public Defender's Office, Weno, Chuuk

APPEARANCES:

HEADNOTES

Attorney and Client – Disqualification of Counsel

Model Rule of Professional Conduct 1.9(a) prohibits an attorney who has represented a person

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from representing another person in a same or substantially related matter in which that person's interests are materially adverse to the former client's interests unless the former client consents after consultation. Doone v. Chuuk State Election Comm'n, 16 FSM Intrm. 459, 461 (Chk. S. Ct. App. 2009).

Attorney and Client – Disqualification of Counsel

An attorney is not disqualified from representing the real parties in interest in a 2009 state election contest brought by a former client who he had represented in the former client's attempt to be added to the ballot for the 2006 FSM congressional race since the issues are not the same or substantially related to the attorney's former representation. Doone v. Chuuk State Election Comm'n, 16 FSM Intrm. 459, 461 (Chk. S. Ct. App. 2009).

Elections – Contests

The timing provisions for the election commission to rule on an election contest provide that once the state election commission begins a special session, it has two days to reach a determination of the contest. The court reads the two-day deadline as directory, not mandatory. Because the deadline is directory, an election contest is not effectively denied if the election commission fails to reach a determination within two days, so long as the commission is taking reasonable steps to determine the contest as quickly as possible. Doone v. Chuuk State Election Comm'n, 16 FSM Intrm. 459, 462 (Chk. S. Ct. App. 2009).

Administrative Law

Cases involving effective denials by administrative bodies generally arise where the administrative body fails to take steps to provide an administrative remedy. Doone v. Chuuk State Election Comm'n, 16 FSM Intrm. 459, 462 (Chk. S. Ct. App. 2009).

Elections – Contests

A court cannot conclude that there was an effective denial of an election petition until there is a determination as to what, if any, substantive action to determine the contest was taken by the election commission. Doone v. Chuuk State Election Comm'n, 16 FSM Intrm. 459, 463 (Chk. S. Ct. App. 2009).

Elections – Contests

If an election complaint was not timely filed with the election commission, then neither the election commission nor the court have jurisdiction over the election contest. Because statutory filing deadlines are generally mandatory, whether the complaint was timely filed is a jurisdictional question and therefore potentially dispositive of a contest. That determination is initially the election commission's to make, as it involves factual questions going to its own jurisdiction. Doone v. Chuuk State Election Comm'n, 16 FSM Intrm. 459, 463 (Chk. S. Ct. App. 2009).

Elections – Contests

Until the election commission determines the election contest, or there is otherwise an appeal from a final order or a determinate effective denial, administrative remedies have not been exhausted and such an election contest will, therefore, be remanded to the election commission for further proceedings. Doone v. Chuuk State Election Comm'n, 16 FSM Intrm. 459, 463 (Chk. S. Ct. App. 2009).

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COURT'S OPINION

CAMILLO NOKET, Chief Justice, presiding:

I. INTRODUCTION

On May 22, 2009 the panel orally delivered its ruling remanding for a second time this election contest to the election commission for further proceedings. With that order the court indicated that it was unable to determine whether administrative remedies had been exhausted through an effective denial by the election commission. Therefore, it was unable at that time to take up the other issues regarding the court's jurisdiction or proceed to the merits of petitioner Doone's appeal from the election commission. The court also noted that in its last order of remand, it had stated that the election commission could make a determination of the contest, if it was timely filed. Since the court's first remand, however, the election commission still had not made a determination on the timeliness of the complaint, or made a determination on the merits of the contest. This order summarizes the rationale for the court's May 22, 2009 oral order.

II. BACKGROUND

In the court's written order of May 1, 2009, the court referred this election contest back to the election commission to make a ruling on the merits of the complaint if it was timely. [Doone v. Chuuk State Election Comm'n, 16 FSM Intrm. 407, 411-12 (Chk. S. Ct. App. 2009).] On May 18, 2009, the court issued an order setting a hearing for May 22, 2009 to determine the status of the proceedings at the election commission since the court's April 20, 2009 order of remand. By that order, the court also invited the parties to supplement their previously submitted briefs and to specifically address the posture of the contest before the election commission.

At the May 22, 2009 hearing, the election commission informed the court that since the court's remand, it had conducted an investigation of the allegations of the election contest. It scheduled a hearing for May 13, 2009 at which time a report was to be submitting on the findings of the investigation. Doone appeared at the hearing, but refused to participate, believing that the election commission had already effectively denied the complaint. On the same day, May 13, 2009, Doone filed a notice of appeal from the election commission's purported effective denial. The next day, May 14, 2009, the election commission dismissed the contest for failure to prosecute, apparently based on Doone's refusal to participate in the May 13, 2009 hearing.

III. MOTION TO DISQUALIFY

The court first heard argument on Doone's May 21, 2009 motion to disqualify attorney Meippen from representing the real parties in interest. The authority for the motion is Model Rule of Professional Conduct 1.9(a), which prohibits an attorney who has represented a person from representing another person in a same or substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation. MRPC 1.9(a). The factual basis for the motion was that Meippen had represented Doone in Doone's attempt to be added to the ballot for the 2006 FSM congressional race (Doone v. National Election Comm'r, 14 FSM Intrm. 489 (Chk. 2006)).

Since the issues here are not the same or substantially related to Meippen's former representation of Doone in FSM Civil Action 2006-1022, the court denied the motion.

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IV. MOTIONS TO DISMISS

The court next heard argument on the election commission's motion to dismiss. The first basis for dismissal was the failure to exhaust administrative remedies. According to the commission, it had been taking steps to determine the contested election since the court's April 30, 2009 remand. Therefore, Doone's May 13 appeal from the commission's purported effective denial of the contest was premature. The second basis was that the contest is non-justiciable because the court was constitutionally and statutorily required to issue its decision of the contested election before the declared winning candidates took office.

The real parties in interest joined the election commission's motion to dismiss and made additional arguments for dismissal, including an argument, raised for the first time, that the complaint at the election commission was not timely. The real parties in interest contended that the results of the elections were declared between April 9 and 11, 2009. Doone's complaint was filed with the election commission on April 17, 2009. Because it was not filed within five days of the declaration of the results, see Chk. S.L. No. 3-95-26, § 127, the real parties in interest assert that Doone's complaint was untimely.

In response to the commission's argument that administrative remedies had not been exhausted, Doone argued that the commission had effectively denied the complaint by not ruling on it within the deadlines imposed by the Election Law. Doone also argued that the Election Law contemplates that election contests continue to be justiciable even after declared winning candidate takes office. With respect to the argument that the complaint was untimely filed, Doone contended that the results became official and were made public on April 13, 2009, when the official results were certified, and not between April 9 and April 11, 2009, as the real parties in interest asserted, when unofficial results at polling places were announced. Therefore, Doone's April 17 filing of his complaint was timely.

V. THE PANEL'S RULING

A. The Exhaustion of Administrative Remedies

The panel was unable to determine whether there was an effective denial of the contest by the election commission that could be appealed from. The timing provisions for the election commission to rule on an election contest, Chk. S.L. No. 3-95-26, ' 130, provide that once the commission begins a special session, it has two days to reach a determination of the contest. The court reads the two-day deadline as directory, not mandatory. See Buruta v. Walter, 12 FSM Intrm. 289, 293 (Chk. 2004) (A statutory or constitutional provision that requires things to be done without prescribing the result that should follow if those things are not done, is directory in character, not mandatory). Because the panel interprets section 130 of the Election Law as containing a directory deadline, an election contest is not effectively denied if the election commission fails to reach a determination within two days, so long as the commission is taking reasonable steps to determine the contest as quickly as possible. Cases involving effective denials by administrative bodies generally arise where the administrative body fails to take steps to provide an administrative remedy, see Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 153-54 (Chk. S. Ct. App. 2001) (where election commission's failure to meet within three days of the filing of an election contest was an effective denial), or where a statute prescribes a negative result if steps are not taken by a set deadline, Wiliander v. Mallarme, 7 FSM Intrm. 152, 158 (App. 1995) (noting that under national election code, failure to rule within statutory deadline would be effective denial, where there was statutory deadline for filing appeal from denial).

Here, Doone does not contend that commission failed to act, only that it failed to rule within the statutorily imposed deadlines. The commission stated that since the court's remand it had conducted

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an investigation of the contest allegations and a report had been prepared for presentation at the May 13, 2009 hearing. There was no evidence presented as to the substance of the investigation or the report of the investigation, but neither was there any evidence presented to dispute the assertions of the election commission that they had been investigating the contest allegations since the court's last remand order. The court cannot conclude that there was an effective denial until there is a determination as to what, if any, substantive action to determine the contest was taken by the commission after the remand.

B. The Panel's Jurisdiction over the Merits of the Appeal

With respect to the arguments made regarding the panel's jurisdiction to rule on the merits of the contest, as explicated in the court's last order of remand, the panel has not yet reached that issue. [Doone, 16 FSM Intrm. at 411.] Although the commission persists with arguments on the parameters of the court's jurisdiction, it may be better served by limiting itself to a determination of its own jurisdiction and to its obligation to reach an expeditious determination of the contest, as it is statutorily directed to do.

C. The Timeliness of the Complaint to the Election Commission

The court agrees with the real parties in interest that if the complaint was not timely filed, then neither the election commission nor the court have jurisdiction over the contest. Whether the complaint was timely filed is, unlike the timing provisions for the election commission's determination of the contest, a jurisdictional question and therefore potentially dispositive of this contest. The reason is that statutory filing deadlines are generally mandatory. Wiliander, 7 FSM Intrm. at 156-57; cf. Aten v. Chuuk State Election Comm'n, 16 FSM Intrm. 390 (Chk. S. Ct. App. 2009) (where last day for filing under section 130 fell on a weekend, appeal was timely filed the following Monday because election commission offices were not accessible for filing on weekend). As part of its investigation, the election commission apparently made no determination as to whether the election complaint was timely filed. The court leaves that determination initially to the election commission to make, as it involves factual questions going to its own jurisdiction.

VI. CONCLUSION

Until the election commission determines the election contest, or there is otherwise an appeal from a final order or a determinate effective denial, administrative remedies have not been exhausted. The contest was, therefore, remanded back to the election commission for further proceedings.