[24 FSM R. 176]

On July 7, 2023, this came before the court to hear the petitioners' request for a writ of mandamus commanding the respondent National Election Director, Ausen Lambert, to count and tabulate the ballots cast in Chuuk during the July 4, 2023 special election for the nine constitutional amendment referendum questions1 and report the results. Additionally, the petitioners asked that a mandatory injunction issue compelling the National Election Director to fly in election personnel from other states to, if needed, assist in the counting and tabulating.

That the FSM Supreme Court has, under 4 F.S.M.C. 117, the general power to issue writs of mandamus is beyond dispute. Damarlane v. Santos, 6 FSM R. 45, 46 (Pon. 1993). The exercise of such power must be tempered by sober judgment, for it is equally settled that the writ of mandamus is an extraordinary remedy, the object of which is to require an official to carry out a clear non-discretionary, ministerial duty. Id.

The court denied the request without prejudice for the following reasons:

1. "The peremptory writ of mandamus should be directed to the person or body who is obligated to perform the act sought to be coerced." 52 AM. JUR. 2D Mandamus § 458, at 631 (rev. ed. 2000). The National Election Director neither counts nor tabulates nor supervises the counting and tabulating of ballots. The counting and tabulating committee in each state is responsible for counting and tabulating the ballots. 9 F.S.M.C. 306(2). And the National Election Commissioner for each state has "responsibility for the overall supervision and administration of the election within his or her State." 9 F.S.M.C. 304. Neither the Chuuk counting and tabulating committee nor the acting National Election Commissioner for Chuuk were made respondents to the petition, although that was the body and the person who have the ministerial duty to perform the acts – counting and tabulating the referendum ballots and reporting the results – sought to be coerced.

2. No summons was sought from or issued by the court clerk, and thus none was served on the respondent. This is a civil case. Civil actions are commenced with a complaint. FSM Civ. R. 3. A petition for a writ of mandamus may stand in the place of a complaint since a petition for a writ of mandamus is "deemed . . . to be a complaint for purposes of complying with Rule 3." Ishizawa v. Pohnpei, 2 FSM R. 67, 73 (Pon. 1985); See also Nix v. Ehmes, 1 FSM R. 114 (Pon. 1982) (petition for writ of mandamus allowed to start civil action); U Corp. v. Salik, 3 FSM R. 389, 393 (Pon. 1988) (petition for removal); cf. In re Iriarte (I), 1 FSM R. 239, 250 (Pon. 1983) (petition for writ of habeas corpus).

The complaint, or in this case, the petition, should be served with a summons. FSM Civ. R. 4(c); Fuji Enterprises v. Jacob, 20 FSM R. 121, 127 (Pon. 2015) (for valid service of process on a national government officer or agency, that officer or agency must be served with the complaint and summons and the FSM Attorney General must also be served). Thus, for the court to have had personal jurisdiction over the respondent, the petition probably should have been served on the respondent along with a summons. See Narruhn v. Chuuk State Election Comm'n, 18 FSM R. 16, 19 (Chk. S. Ct. Tr. 2011) (service of a petition for a writ of mandamus was defective because a summons should have been issued and served on the respondent with the petition); cf. Setik v. FSM Dev. Bank, 21 FSM R. 505, 516 (App. 2018) (for the trial court to have personal jurisdiction over a defendant, that defendant had to have been served the complaint and summons).

No summons was sought or issued or served. The court therefore lacked personal jurisdiction over the National Election Director, Ausen Lambert, unless he appeared voluntarily. See Felix v. China Rwy. Constr. Co., 23 FSM R. 596, 602 & n.3 (App. 2022) (when service of process is defective, the court may acquire personal jurisdiction over those defendants when they file their answer and do not assert insufficiency of process, thereby waiving that defense).

The court is cognizant, as argued by petitioners, of those special instances, such as an ex parte temporary restraining order under Civil Procedure Rule 65(b), where the court may act before it has obtained personal jurisdiction over the defendant or the respondent. But that is not this case. The petitioners do not seek someone to be restrained from doing something. They seek a writ compelling someone to do something. The petitioners also did not seek, and did not raise any grounds in support of seeking, an ex parte issuance of the writ. The petitioners, in fact, sought to subpoena the respondent to testify at the hearing.

"Process" can be either a summons or a writ issued in order to bring a defendant (or respondent) into court. FSM v. Itimai, 20 FSM R. 232, 233 n.1 (Pon. 2015). Thus, if the court had issued a writ of mandamus and if it was then properly served on the respondent, the court would then have had personal jurisdiction over respondent Lambert, but the fact remains that Lambert is not the person who has the responsibility to perform the acts sought to be coerced.

3. There was an inadequate factual basis. The information before the court was that, although the congressional seat election results had been reported by the Chuuk National Election Office, the referendum results had not been reported as of Friday, July 7, even though Pohnpei and Kosrae had reported all their results, and Yap had reported all but nine outer island polling places. There was also hearsay evidence that the National Election Director had been reassured that the referendum ballots were safely stored and would be counted.

There was no evidence about whether the Chuuk National Election Office was or was not actually counting the referendum ballots or what was actually happening there. There was first-hand testimony that at the special polling place on Weno for Election District #4 voters, ballots for two of the referendum questions were missing although one was found after a diligent, mid-afternoon search of that polling place. (Apparently, each of the nine referendum questions was on a separate ballot paper.) While disturbing, this lapse is not a basis to issue a writ commanding that the National Election Director count and tabulate the Chuuk referendum ballots.

4. Lastly, the petitioners' request that the National Election Director fly in out-of-state election personnel, if needed, to assist in the counting and tabulating does not fall within the scope of a writ of mandamus. While in some circumstances it might be a good idea, it is clearly not the National Election Director's non-discretionary, ministerial duty to do so.

Accordingly, the court declined to issue the writ of mandamus. This denial was without prejudice to any future petition on a sounder basis.

Footnotes:

¹ The special election results for the four-year Congress seat from Chuuk made vacant by the President's election were counted, tabulated, and reported.