FSM SUPREME COURT TRIAL DIVISION
Cite as Sigrah v. Moses 24 FSM R. 341 (Pon. 2023)
YOSLYN G. SIGRAH, JASON F. SIGRAH, MARUKO
T. SIGRAH and FIONA AULIVIA HEIN,
Petitioners,
vs.
ESMOND MOSES, in his official capacity as the
Speaker of the FSM Congress, THE TWENTY-THIRD
CONGRESS OF THE FEDERATED STATES OF
MICRONESIA, and AUSEN LAMBERT, Election
Director,
Respondents.
CIVIL ACTION NO. 2023-018
AMENDED ORDER GRANTING INJUNCTIVE RELIEF, REASONS FOR ISSUANCE, ACTS ENJOINED
Dennis L. Belcourt
Associate Justice
Hearing: November 14-15, 2023
Decided: November 16, 2023
Amended: November 17, 2023
APPEARANCES:
For the Petitioners:
Kathleen M. Burch, Esq.
P.O. Box 1365
Koror, Palau PW 96940
For the Respondents:
T. Lam Dang, Esq.
(Speaker & Congress)
Legislative Counsel
Yolanda Rondon, Esq.
Congress Staff Attorney
P.O. Box PS-3
Palikir, Pohnpei FM 96941
For the Respondent:
Leonito Bacalando, Jr., Esq.
(Lambert)
Josephine Leben James, Esq.
Assistant Attorneys General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941
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The President's grant of statutory authority to postpone an election is neither exclusive nor comprehensive as the President may only delay a special election, in the event a natural disaster or other event that precludes holding an election on the appointed date. Sigrah v. Moses, 24 FSM R. 341, 344 (Pon. 2023).
The Election Code, does not address circumstances where an election might need to be canceled because a vacancy was erroneously announced, but to the extent the suit concerns administration of an FSM statute, the FSM has legislatively granted permission for injunction proceedings against it since the FSM has waived its sovereign immunity for suits seeking to prevent the improper administration of FSM statutes and for injunctions to prevent that improper administration. Sigrah v. Moses, 24 FSM R. 341, 344 (Pon. 2023).
When, because a member-elect is entitled to seated, there is no vacancy to fill, the carrying out of an election to fill that seat is unlawful and is an improper administration of Title 9. Injunctive relief to enjoin the conduct of an election to fill that supposed vacancy is authorized by statute, and is therefore not barred by separation of powers or sovereign immunity. Sigrah v. Moses, 24 FSM R. 341, 344-45 (Pon. 2023).
Injunctive relief is barred in election contests when relief is available under the Election Code. Sigrah v. Moses, 24 FSM R. 341, 345 (Pon. 2023).
Rule 65 provides for issuance of temporary restraining orders and preliminary injunctions pending the court's final decision, but the rule itself does not set forth standards for injunctive relief. Sigrah v. Moses, 24 FSM R. 341, 345 (Pon. 2023).
In exercising its broad discretion in deciding a motion for injunctive relief, the court applies the long established standard, a four-part test where it considers four factors. These are: 1) the likelihood of success on the merits of the party seeking injunctive relief; 2) the possibility of irreparable injury to the moving party; 3) the balance of possible injuries or inconveniences to the parties which would result from granting or denying relief; and 4) any impact on the public interest. Injunctive relief can be granted if three of the four factors favor the granting of the preliminary injunction. Sigrah v. Moses, 24 FSM R. 341, 345 (Pon. 2023).
A preliminary injunction's object is to preserve the status quo pending litigation on the merits, and its issuance is largely a matter of the facts of each situation and thus a matter for the trial judge's discretion. Sigrah v. Moses, 24 FSM R. 341, 345 (Pon. 2023).
When the court has already concluded that Congress's refusal to seat a member-elect was unconstitutional and void, the member-elect's likelihood of success on the merits weighs heavily in her favor. Sigrah v. Moses, 24 FSM R. 341, 346 (Pon. 2023).
The party seeking a preliminary injunction must be faced with irreparable harm before the litigation's end and there must be a clear showing that immediate and irreparable injury would otherwise occur, and there must be no other adequate remedy. Sigrah v. Moses, 24 FSM R. 341, 346 (Pon. 2023).
When a member-elect is the undisputed winner, she should not have to undergo a challenge in the form of a second election, whose purpose, effect, or both, would be to undo the member-elect's election. The possibility that she could win the second election is beside the point because the conduct of a second election, with or without her as a candidate, is irreparable injury that she will incur if the court does not enjoin it. Sigrah v. Moses, 24 FSM R. 341, 346-47 (Pon. 2023).
The balance of injuries or inconveniences weigh in favor of granting an injunction when it would alleviate the movant's irreparable harm; when the injunction will not issue against Congress but against election officials; when an injunction would not damage either side's reputation; and when the overall effect of the respondents' faithful adherence to an injunction preserving the status quo should be positive. Sigrah v. Moses, 24 FSM R. 341, 347 (Pon. 2023).
When the effect of the public interest is substantially speculative and the other factors favor injunctive relief, the court will favor preserving the status quo. Sigrah v. Moses, 24 FSM R. 341, 347 (Pon. 2023).
When the likelihood of injury as the result of an erroneous injunction is minimal due to the heavy weight against seeking a reversal and when it is a case of first impression and the voters' public interest is served by having the appellate court review the case while the status quo is maintained, a $10 bond is appropriate. Sigrah v. Moses, 24 FSM R. 341, 348 (Pon. 2023).
Further necessary or proper relief (including injunctive relief) based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment, and injunctions may be enforced by contempt proceedings, provided that enforcement is required to prevent irreparable injury or multiple damage to the winning party's interests and is otherwise in the interests of justice. Sigrah v. Moses, 24 FSM R. 341, 349 (Pon. 2023).
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DENNIS L. BELCOURT, Associate Justice:
On November 14-15, 2023, this Court held a hearing on injunctive relief.1 Yoslyn Sigrah was represented by Kathleen Burch who appeared virtually from Palau. Esmond Moses, in his official capacity as Speaker of the 23rd Congress, ("Congress") was represented by Staff Attorney Yolanda Rondon and Legislative Counsel T. Lam Dang. Ausen Lambert, in his official capacity as Director of the Office of National Elections, ("National Election Director") was represented by Attorney General Josephine Leben James.
The court addressed several preliminary matters including: 1) Request by Counsel Bacalando Jr. to appear virtually,2 2) a renewed request for clarification,3 and 3) Congress's motion to stay proceedings pending appeal, which was taken under advisement and which will be addressed by a separate order of this court. In the course of the proceedings, Petitioners moved for introduction of Exhibits 6, 7, 9, and 10. After objections and argument (including a motion in ltmine filed the day before), this Court granted limited admission of exhibits 7 and 9.
The Court, having previously received briefs from the parties on Petitioners' request for injunctive relief, heard from all parties regarding the motion for injunctive relief. I grant the preliminary injunction to halt the November 21, 2023, election. My reasons follow.
A. Authority for Injunctive Relief
Congress contends that this Court lacks authority to halt the special election scheduled for November 21, 2023, because the President is given the authority, under 9 F.S.M.C. 106(2), to postpone a special election during natural disasters and other events hindering the election. Congress is interpreting that grant as exclusive, and therefore authority to halt the election is not available to this Court by injunction.
However, the grant of authority to postpone an election in 9 F.S.M.C. 106(2) is neither exclusive nor comprehensive. Under 9 F.S.M.C. 106(2), the President may delay a special election, in the event a natural disaster or other event precludes holding an election on the appointed date. Title 9, the Election Code, does not address circumstances where an election might need to be cancelled because a vacancy was erroneously announced, as with the upcoming November 21, 2023 election. Congress stated in oral argument that this gap in the law can be addressed by the Speaker withdrawing the notice of vacancy.
I find no prohibition in the Election Code for the sort of judicial action that Petitioners are requesting. Moreover, Congress, in contending that only the President or it has authority to delay or cancel a special election, overlooked an important area of judicial authority. To the extent the suit concerns administration of an FSM statute, the FSM has legislatively granted permission for injunction proceedings against it:
[T]he FSM has waived its sovereign immunity for suits seeking to prevent the improper administration of FSM statutes and for injunctions to prevent that improper administration. 6 F.S.M.C. 702(2);4 Udot Municipality v. FSM, 10 FSM R. 354 (Chk. 2001), aff'd, 12 FSM R. 29 (App. 2003); Dorval Tankship Pty, Ltd. v. Department of Finance, 8 FSM R. 111, 115 (Chk. 1997).
Marsolo v. Esa, 18 FSM R. 59, 64 (Chk. 2011) (footnote added).
This Court has already found that the notification of the Election Director of a vacancy, which set the machinery for the November 21, 2023 election in motion, was based on the unconstitutional failure to seat member-elect Sigrah. Since there is no vacancy to fill, because member-elect Sigrah is entitled to seating, the carrying out of title 9 of the FSM Code for an election is unlawful and is an improper administration of title 9. I conclude that injunctive relief against the National Election Director, the National Election Commissioner for Kosrae and election board members for Kosrae to enjoin the conduct of the November 21, 2023 election is authorized by statute, 6 F.S.M.C. 702(2). It is therefore not barred by separation of powers or sovereign immunity. Nor, for that matter, is it in conflict with the express language of 9 F.S.M.C. 106(2), which does not purport to govern halting or restraining an election when there is no actual vacancy.
Congress argues further this Court has declined to consider injunctive relief in the context of election contests. Examination of the caselaw supporting Congress's position suggests that the narrow carveout from injunctive relief for election contest is based on the availability of relief under the Election Code., which availability negates the injunction criterion of irreparable harm. Nelson v. FSM Nat'l Election Dir., 16 FSM R. 356, 358-59 (Chk. 2009); See also Decision of Nat'l Election Dir., 22 FSM R. 221, 223 (App. 2016). Since the Election Code does not prescribe any remedies (revote or recount) in circumstances such are present here, this caselaw does not rule out an injunction relating to the November 21, 2023, election, where appropriate.5
B. Authority for Injunctive Relief
FSM Rule of Civil Procedure 65(d) provides:
Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.
(emphasis added). FSM Civil Rule 65 "provides for issuance of temporary restraining orders and preliminary injunctions pending final decisions by the Court. The rule itself does not set forth standards for injunctive relief." Ponape Transfer v. Pohnpei State Public Lands, 2 FSM R. 272, 275 (Pon. 1986).6
In exercising its broad discretion in deciding on the motion for injunctive relief, the Court applies the long-established standard, a four-part test where it considers four factors. The four factors include: 1) the likelihood of success on the merits of the party seeking injunctive relief; 2) the possibility of irreparable injury to the moving party; 3) the balance of possible injuries or inconveniences to the parties which would result from granting or denying relief; and 4) any impact on the public interest.
In re Gross Revenue Tax, 22 FSM R. 124, 128 (Pon. 2018) (emphasis added); Ruben v. Petewon, 13 FSM R. 383, 386 (Chk. 2005) (citing Ponape Enterprises Co. v. Bergen, 6 FSM R. 286, 288 (Pon. 1993)). "Injunctive relief can be granted if three of the four factors favor the granting of the preliminary injunction." In re Gross Revenue Tax, 22 FSM R. at 128; see Carlos Etscheit Soap Co. v. Epina, 9 FSM R. 155, 164 (Pon. 1997). "The object of a preliminary injunction is to preserve the status quo pending the litigation on the merits." In re Gross Revenue Tax, 22 FSM R. at 127 (citations omitted). "The issuance of a preliminary injunction is largely a matter of the facts of each situation and thus a matter for the discretion of the trial judge." Id. (citations omitted).
1. Likelihood of Success on the Merits
Member-elect Sigrah succeeds because Congress clearly violated her right to be seated. It violated her rights because it accepted that she met all the qualifications set forth in the text of Article IX, section 9 of the FSM Constitution and in statute, namely 9 F.S.M.C. 201, but still refused to seat her. It refused to seat her on grounds––character and fitness concerns––which, whether or not well founded in fact, were not "qualifications" in Article IX, section 9 or 17(a) and therefore could not form a basis for Congress's exercise of its authority as sole judge of her qualifications. Congress's exclusion of her, which occurred when it adopted the credential committee report that recommended she not be seated, exceeded the scope of its authority and is void under the Supremacy Clause. FSM Const. art. II, § 1. ("An act of the Government in conflict with this Constitution is invalid to the extent of conflict"). Accordingly, she is entitled to be sworn in and seated at the next session of Congress.
The Election Director reiterates its argument that member-elect Sigrah gave up on her right to challenge Congress's refusal to seat her when she put her name in nomination for the November 21, 2023. The Election Director fails to state a basis in fairness for deeming her to have given up her right to contest Congress's failure to seat her. I do not find that the Election Director's argument carries weight in my assessment of the likelihood of success.
The likelihood of success weighs heavily in favor of Petitioners.
2. Irreparable Injury to the Movant
Impaled on the horns of a dilemma, whether to rely solely on a court challenge to Congress's exclusion of her from its membership or to also participate in the November 21, 2023 election, member-elect Sigrah chose to pursue both routes. The fact that she did so has been determined by this Court not to constitute an abandonment or waiver of her right to pursue her relief through this proceeding. However, the fact that she could prevail in the November 21, 2023 election raises the issue whether she is facing irreparable injury that would be remedied or averted by injunctive relief.
The party seeking a preliminary injunction must be faced with irreparable harm before the litigation's end and there must be a clear showing that immediate and irreparable injury would otherwise occur, and there must be no adequate remedy. Decision of Nat'l Election Dir., 22 FSM R. at 223.
In Decision of National Election Director, the movant, Yosiwo George sought to enjoin the revote ordered by the National Election Director. As to irreparable harm, he contended that the revote (of Kosraean voters in Pohnpei) could cause "him to lose his traveling voters" and therefore lose the election. Id.
The appellate division denied the injunction based on the lack of irreparable harm, stating that "[a] 'winning' candidate cannot show that a vote constitutes irreparable harm because, after the revote is held, that candidate may still be declared and certified as the winning candidate—the revote might not alter the ultimate outcome." Id.
Member-elect Sigrah argues that "[a]ny Special Election to fill that seat is an irreparable injury because it is an to oust (her) from her seat in Congress." Pet'rs' Br. in Support of Their Request for Declaratory and Inj. Relief at 9 (Oct. 31, 2023).
Further, when queried on distinguishing Decision of National Election Director, member-elect Sigrah pointed to the differences in posture of the two cases. Mr. George was the "winning candidate," (emphasis on quotation marks) in an election where it was understood that a revote was a potential remedy prescribed under the Election Code. Member-elect Sigrah, on the other hand, is the undisputed winner. She should not have to undergo a challenge in the form of a second election, whose purpose, effect, or both, would be to undo the July 4, 2023 election.
Thus, the possibility that she would win on November 21, 2023 is beside the point. The conduct of a second election, with or without her as a candidate, is irreparable injury that she will incur if this Court does not enjoin it.
3. Balance of Injuries or Inconveniences to the Parties on Granting or Denying Relief
It was represented at hearing that the money appropriated for the November 21, 2023 election is gone—presumably spent or at least obligated. No evidence was presented that there would be a net additional expenditure to discontinue the processes. A possible expense would occur if Respondents prevail on appeal and a new election would need to be conducted, which this Court assesses to be an unlikely event.
Additionally, there are individuals, non-parties, who have prepared for the November 21, 2023 election, perhaps understanding the uncertainty of such an unusual election (or not),and who may go uncompensated in the event of cancellation. They include the other candidates and their supporters and families.
In the context of its stay motion, Congress asserts that it will incur reputational injury in the event of a decision on the civil rights claim. At hearing, Congress asserted the same in the event that an injunction issued. The injunction will not issue against Congress.
This Court recognizes the importance of reputation, and would add that it should include reputation for fairness, transparency, and adherence to the rule of law. It is not clear that an injunction holding off on the November 21, 2023 election until the appeal is resolved would damage either sides' reputation. The overall effect of Respondents' faithful adherence to an injunction preserving the status quo should be positive. As this Court assesses likelihood of success in favor of Respondents, it also finds that the balance weighs in favor of Petitioners. Adding the alleviation of Petitioners' irreparable harm by virtue of the injunction, the balance of injuries or inconveniences weigh in favor of granting an injunction.
4. Impact on the Public Interest
Both Petitioners and Respondents have held forth in their briefs and oral argument on what the impact of issuing versus not issuing injunctive relief would be on the public interest. Failure to enjoin the election might lead to the mooting of issues and loss of public confidence in the effectiveness of legal remedies, and, from Kosrae's perspective, a loss of a sense of national unity, if Congress goes ahead and seats a different candidate than was elected in the July 4, 2023 election. On the other hand, as suggested by the Election Director, there is the possibility that an injunction might lead to a constitutional crisis. A further downside of an injunction would be that it would further delay the State of Kosrae having full representation in the FSM Congress.
Recognizing the above as substantially speculative, this Court weighs in favor of preserving the status quo, which is not holding an election while any appeals proceed through the Appellate Division or, if Congress meets and in its deliberative processes revisits its decision to exclude member-elect Sigrah.
Pursuant to FSM Civil Rule 65(c),
No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum, if any, as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of the Federated States of Micronesia or of any officer or agency thereof.
(emphasis added).
Due to the heavy weight against the Government in seeking a reversal, the likelihood of injury as a result to an erroneous injunction is a minimal risk. Additionally, this is a case of first impression in the FSM and the public interest of the voters is served by having this case reviewed by the appellate court, while maintaining the status quo. Therefore, the Court requires from Petitioners a bond of $10, paid to the FSM Supreme Court Clerk within ten days of this order.
Upon CONSIDERATION of the arguments presented, the court finds that the balance of the four factors weighs in favor of injunction and that it is necessary to maintain the status quo, pending the appeal.
ACCORDINGLY, the Court hereby ENJOINS the National Election Director, the National Election Commissioner for Kosrae, election board members, and all those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise from:
1)Opening any polling place for the special election on November 21, 2023;
2)Supervising or managing any polling place for the special election on November 21, 2023;
3)Using any public property as a polling place for the special election on November 21, 2023;
4)Giving any instructions to any person, whether directly employed or not, to conduct the Special Election on November, 21, 2023;
5)Registering any voter or accepting any voter identification to register any person to vote in the special election on November 21, 2023;
6)Counting, tabulating, or otherwise accepting any ballot cast in the special election on November, 21, 2023, whether by absentee ballot or not;
7)Reviewing or recording the sufficiency of the affidavits submitted along with the ballots for the special election on November 21, 2023.
8)Receiving, preserving, or maintaining ballot boxes, locks, maps, cards of instructions, equipment, or any other supplies to conduct the special election on November 21, 2023;
9)Spending any further money towards the special election on November 21, 2023, except expenses associated with cancelling the election;
10) Broadcasting, making any press release, or making any other announcement, or publishing on any digital media, specifically including the National Election Office website,7 or printing and posting any notice, that the special election will be held on November 21, 2023;
This preliminary injunction shall take place immediately and remain in place pending for entirety of the review by the FSM Appellate Division. Following that decision, this Court will make permanent, modify, or release the injunction, as required. Nothing in this injunction should be construed so as to prohibit the National Election Director or Congress from exercising their authority to announce the cancellation or suspension of the election.
Pursuant to 6 F.S.M.C. 1503, "[f]urther necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment."
Pursuant to 6 F.S.M.C. 1403(1) injunctions may be "enforced by contempt proceedings; provided, that enforcement at such time is required to prevent irreparable injury or multiple damage to the interests of the winning party and is otherwise in the interests of justice."8
_______________________________Footnotes:
1 The Court had previously held a hearings on a motion to dismiss (see Amended Order denying Motion to Dismiss [Sigrah v. Moses, 24 FSM R. 316 (Pon. 2023)], dated October 31, 2023) and an evidentiary hearing on both declaratory and injunctive relief, on November 1, 2023. After the latter hearing, this Court issued an "Order Granting Declaratory Relief, Setting Status Conference," dated November 2, 2023. [Sigrah v. Moses, 24 FSM R. 327 (Pon. 2023).] As part of the latter order, this Court denied Election Director's motion to reconsider the order denying the motion to dismiss.
2 Granted without objection from any party. Counsel was in Fiji and was only able to attend the outset of the hearing.
3 Included in Respondent Election Director's Brief on Pending Matters Relating to Injunction on the Conduct of the Special Election on 21 November 2013. This is answered by this Order Granting Injunctive Relief.
4 6 F.S.M.C. 702 reads in pertinent part: "Actions upon the following claims may be brought against the Federated States of Micronesia. . . . (2) Claims for damages, injunction, or mandamus arising out of alleged improper administration of statutory laws of the Federated States of Micronesia, or any regulations issued pursuant to such statutory laws . . . ."
5 Nevertheless, irreparable harm needs to be addressed and is discussed below.
6 Pursuant to 6 F.S.M.C. 1501, this Court has the statutory authority to issue injunctive relief in this case: "Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment."
7 The court recognizes that some publications have already been made to this order, however, ongoing publications such as the website, but not limited to the website, need to cease without unnecessary delay from the date of this order.
8 Pursuant to 6 F.S.M.C. 1403(2), "[u]pon a finding of contempt, the person against whom the judgment has been rendered may be fined or imprisoned at the discretion of the Court until he or she complies with the judgment or is released by the Court or has been imprisoned more than six months whichever happens first."
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