Home | Databases | WorldLII | Search | Feedback Supreme Court of the Federated States of Micronesia

Asugar v Edward [2005] FMSC 23; 13 FSM Intrm. 209 (Chk. 2005) (21 April 2005)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite case as Asugar v Edward, [2005] FMSC 23; 13 FSM Intrm. 209 (Chk. 2005)

HENRY ASUGAR,
Plaintiff,

vs.

BERNELL W. EDWARD, as National Election
Director, and KEICHIRO DAWE, as National
Election Commissioner for Chuuk State,
Defendants,

PETER SITAN,
Real Party in Interest.

______________________________________

CIVIL ACTION NO. 2005-1008

MEMORANDUM OF DECISION

Dennis K. Yamase
Associate Justice

Hearing and Order: April 20, 2005
Memorandum Entered: April 21, 2005

APPEARANCES:

For the Plaintiff:
Ben Enlet, trial counselor
P.O. Box 1650
Weno, Chuuk FM 96942

For the Defendants:
Matthew L. Olmsted, Esq.
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Real Party in Interest:
Andrea S. Hillyer, Esq.
P.O. Drawer D
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Civil Procedure - Injunctions
When the plaintiff did not name the real party in interest as a party defendant in a civil suit in which he sought a temporary restraining order, the court may include the real party in interest’s counsel in the temporary restraining order motion hearing on the supposition that no injunctive relief should, or could, be granted that would adversely affect the real party in interest without prior notice to him. Asugar v. Edward, [2005] FMSC 23; 13 FSM Intrm. 209, 211 n.1 (Chk. 2005).

Civil Procedure - Injunctions
To seek the issuance of a temporary restraining order without notice, a plaintiff must, by citing specific facts, clearly show by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party’s attorney can be heard in opposition, and the applicant’s attorney must certify to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required. Asugar v. Edward, [2005] FMSC 23; 13 FSM Intrm. 209, 211-12 (Chk. 2005).

Civil Procedure - Injunctions
When it appears that the motion for a temporary restraining order and the pleadings were not served on one or both defendants so as to give them adequate notice of the hearing and the issues to be heard and when no showing having been made that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party can be heard in opposition and no written certification having been made of the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required, the court will set a hearing on the temporary restraining order motion and issue a notice to that effect. Asugar v. Edward, [2005] FMSC 23; 13 FSM Intrm. 209, 212 (Chk. 2005).

Civil Procedure - Injunctions
The essential requirement for the issuance of a temporary restraining order is that the applicant must clearly show that immediate and irreparable injury or loss or damage would occur if the temporary restraining order is not granted. In requesting a temporary restraining order, a plaintiff must show that his damage will be irreparable, that is, that it cannot be remedied in any way except by the drastic measure of a restraining order. Asugar v. Edward, [2005] FMSC 23; 13 FSM Intrm. 209, 212 (Chk. 2005).

Civil Procedure - Injunctions; Elections
When a congressional candidate seeks the issuance of a temporary restraining order prior to balloting he will be denied since he cannot show irreparable injury because the Election Code provides an aggrieved candidate with sufficient alternate and adequate remedies. When the election law provides for remedies that have not yet been used a candidate cannot show the irreparable harm necessary for the issuance of a temporary restraining order. Asugar v. Edward, [2005] FMSC 23; 13 FSM Intrm. 209, 212 (Chk. 2005).

Civil Procedure - Injunctions; Elections - Revote
Assuming that, as a result of the revote, that the candidate seeking to enjoin the revote is not declared the winning candidate (an assumption that the court cannot make), he still has all the avenues provided by the statutory provisions governing election contests, and once the administrative remedies before the National Election Director have run their course, a candidate still aggrieved may, at that time, seek relief from the FSM Supreme Court appellate division. Since this is an adequate alternative remedy, the candidate cannot show irreparable harm. Asugar v. Edward, [2005] FMSC 23; 13 FSM Intrm. 209, 212-13 (Chk. 2005).

Civil Procedure - Injunctions
When the three factors other than irreparable injury that the court must weigh before issuing a restraining order - the relative harm to the plaintiff and to the defendant, the public interest, and the likelihood of success by the plaintiff in the underlying case - also do not favor the restraining order’s issuance because none of those factors weigh so strongly in the plaintiff’s favor so as to overcome the lack of irreparable harm, no injunctive relief can be granted. Asugar v. Edward, [2005] FMSC 23; 13 FSM Intrm. 209, 213 (Chk. 2005).

Elections
The conduct of elections is generally left to the political branches of government - the legislative and the executive - and not to the judicial branch. The primary forum in which election contests must take place is the election administrative machinery Congress created by statute. Asugar v. Edward, [2005] FMSC 23; 13 FSM Intrm. 209, 213 (Chk. 2005).

Elections
Constitutions and statutes provide, as a part of the election machinery, a procedure by which election results may be contested. Such contests are regulated wholly by constitutional or statutory provisions. The necessary steps must be strictly observed to give the court jurisdiction, and the jurisdictional facts must appear on the face of the proceedings. If these steps are not followed, courts are usually powerless to entertain such proceedings. Asugar v. Edward, [2005] FMSC 23; 13 FSM Intrm. 209, 213 (Chk. 2005).

Civil Procedure - Injunctions; Elections
The election law states the time at which the court has the right to entertain an appeal is from the National Election Director’s final action. No statutory or constitutional provision grants the court the power to interfere with the election machinery and issue injunctive relief at a point in the electoral process prior to the election officials’ completion of their responsibilities. Asugar v. Edward, [2005] FMSC 23; 13 FSM Intrm. 209, 213 (Chk. 2005).

* * * *

COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

This case was filed late in the day on April 19, 2005. The plaintiff, Henry Asugar, is the incumbent candidate for election to Congress from the First Election District in Chuuk. His Verified Complaint sought as relief an injunction preventing the defendants from conducting a revote (on April 20, 2005) for the Upper Mortlocks voting at an alternative polling place (VAAPP) box on Weno, Chuuk and an order compelling the National Election Director to certify him as the winning candidate in the March 8, 2005 election for the First Election District in Chuuk. Filed at the same time were a Motion for a Temporary Restraining Order with a supporting affidavit and a Motion for a Preliminary Injunction. Both motions sought to restrain the April 20th revote.

I.

It appears that the motion and the pleadings were not served on one or both defendants so as to give them adequate notice of the hearing and the issues raised and to be heard. Neither motion shows on its face that it was served on the defendants or on the candidate who must be considered a real party in interest^[1] or that any of these persons were given notice of the application for a temporary restraining order. To seek the issuance of a temporary restraining order without notice, a plaintiff must, by citing specific facts, clearly show "by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party’s attorney can be heard in opposition," and the applicant’s attorney must certify "to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required." FSM Civ. R. 65(b); see also Ambros & Co. v. Board of Trustees, [2003] FMSC 65; 12 FSM Intrm. 124, 127 (Pon. 2003).

[2005] FMKSC 5; [13 FSM Intrm. 214]

No such showing and certification having been made, the court set a hearing on Asugar’s temporary restraining order motion for April 20, 2005, 8:30 a.m., Chuuk time, and issued a notice to that effect. At the appointed time, trial counselor Ben Enlet appeared for the plaintiff. Matthew L. Olmsted, Assistant FSM Attorney General, appeared for the defendants. Andrea Hillyer appeared by telephone for the real party in interest, Peter Sitan. Ben Enlet’s motion to appear pro hac vice was granted for the purpose of the hearing, with the proviso that he supplement his motion before he appear further in the case. He should also provide the court a with a certificate of good standing from the Chuuk State Supreme Court. Olmsted moved orally to appear pro hac vice, stating that he had been notified that he had passed the recent FSM bar exam but that the paperwork had not yet been completed to admit him to practice before the FSM national courts. The court granted his motion.

The hearing then proceeded to arguments on the merits of the temporary restraining order motion. Shortly after conclusion of the hearing, the court issued a short order denying the motion on the ground that Asugar had not clearly shown immediate and irreparable harm and stating that the court would further explain its reasoning. This memorandum sets forth that reasoning.

II.

The temporary restraining order motion sought to halt or postpone the revote the National Election Director ordered held on April 20, 2005. The motion was denied since Asugar had not clearly shown that he would suffer immediate and irreparable harm if a restraining order were not issued.^[2]

The essential requirement for the issuance of a temporary restraining order is that the applicant must clearly show that immediate and irreparable injury or loss or damage would occur if the temporary restraining order is not granted. Kony v. Mori, 6 FSM Intrm. 28, 29 (Chk. 1993) (citing Ponape Transfer & Storage v. Pohnpei State Pub. Lands Auth., [1986] FMSC 21; 2 FSM Intrm. 272, 276 (Pon. 1986)). In requesting a temporary restraining order, a plaintiff must show that his damage will be irreparable, that is, that it cannot be remedied in any way except by the drastic measure of a restraining order. Wiliander v. Siales, [1995] FMSC 12; 7 FSM Intrm. 77, 80 (Chk. 1995). An injury is not irreparable if there is an adequate alternative remedy. Kony, 6 FSM Intrm. 28, at 29. (Chk. 1993).

Both Kony v. Mori, 6 FSM Intrm. 28 (Chk. 1993) and Wiliander v. Siales, [1995] FMSC 12; 7 FSM Intrm. 77 (Chk. 1995) are instructive. In both cases, a congressional candidate sought the issuance of a temporary restraining order prior to balloting. In both cases they were denied because the candidate failed to show irreparable injury. Irreparable injury could not be shown because the Election Code provided an aggrieved candidate with sufficient alternate and adequate remedies. Kony, 6 FSM Intrm. at 30. When the election law provides for remedies that have not yet been used a candidate cannot show the irreparable harm necessary for the issuance of a temporary restraining order. Wiliander, 7 FSM Intrm. at 80.

In this case, Asugar has the same adequate alternative remedies. The Election Code (Title 9 of the FSM Code) details methods by which he may seek relief. Assuming that, as a result of the revote, that Asugar is not declared the winning candidate (an assumption that is by no means certain and which the court cannot make), he has all the avenues provided by the statutory provisions governing election contests, 9 F.S.M.C. 901 et seq. The statute further provides that once the administrative remedies before the National Election Director have run their course, a candidate still aggrieved may, at that time, seek relief from the FSM Supreme Court appellate division. 9 F.S.M.C. 903(1). Since this is an adequate alternative remedy, Asugar could not show irreparable harm.

The other three factors that the court must weigh before issuing a restraining order - the relative harm to the plaintiff and to the defendant, the public interest, and the likelihood of success by the plaintiff in the underlying case - also did not favor the restraining order’s issuance. When none of those factors weigh so strongly in the plaintiff’s favor so as to overcome the lack of irreparable harm, no injunctive relief can be granted. Wiliander, 7 FSM Intrm. at 80. The court therefore had to deny the motion.

III.

Furthermore, the conduct of elections is generally left to the political branches of government - the legislative and the executive - and not to the judicial branch. Wiliander, 7 FSM Intrm. at 79 (elections are conducted and carried out and administered by the executive and legislative branches); Kony, 6 FSM Intrm. at 29, 30; Election Commissioner v. Petewon, [1994] FMCSC 2; 6 FSM Intrm. 491, 500 (Chk. S. Ct. App. 1994); Mathew v. Silander, [1998] FMCSC 4; 8 FSM Intrm. 560, 562 (Chk. S. Ct. Tr. 1998); Daniel v. Moses, [1985] FMPSC 1; 3 FSM Intrm. 1, 4 (Pon. S. Ct. Tr. 1985). The primary forum in which election contests must take place is the election administrative machinery Congress created by statute. Constitutions and statutes provide, as a part of the election machinery, a procedure by which election results may be contested. Such contests are regulated wholly by constitutional or statutory provisions. Wiliander v. National Election Dir., [2005] FMSC 44; 13 FSM Intrm. 199, 203 (App. 2005). The necessary steps must be strictly observed to give the court jurisdiction, and the jurisdictional facts must appear on the face of the proceedings. If these steps are not followed, courts are usually powerless to entertain such proceedings. Id.; David v. Uman Election Comm’r[1998] FMCSC 6; , 8 FSM Intrm. 300d, 300g (Chk. S. Ct. App. 1998). The election law states the time at which the court has the right to entertain an appeal is from the National Election Director’s final action. Wiliander, 7 FSM Intrm. at 79 (citing 9 F.S.M.C. 903(1)).

No statutory or constitutional provision grants the court the power to interfere with the election machinery at this point in the electoral process. There may be the rare case where it would be appropriate for a court to issue injunctive relief prior to the election officials’ completion of their responsibilities. If there is, this is not the case.

IV.

Accordingly, the motion for a temporary restraining order was denied. Asugar may request such further proceedings in this matter as he is advised.

[2005] FMSC 24; [13 FSM Intrm. 215]

* * * *

^[1] The plaintiff did not name the real party in interest as a party defendant in this civil suit. The court included his counsel in the motion hearing on the supposition that no injunctive relief should, or could, be granted that would adversely affect him without prior notice to him.
^[2] For instance, Asugar may actually be certified as the winning candidate after the revote.