FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2009-1005

IA UEDA and TRACY SOULENG,
Plaintiffs,

vs.

CHUUK STATE ELECTION COMMISSION, ASSOCIATE JUSTICE MIDASY AISEK, SPECIAL JUSTICE SALOMON SAIMON, SPECIAL JUSTICE GEORGE ISOM, in their individual capacities and as Special Appointed Justices of the Chuuk State Supreme Court, and KITELA ANIOL, as Real Party in Interest,
Defendants.

_____________________

ORDER

Dennis K. Yamase
Associate Justice

Hearing: April 2, 2009
Decided: April 3, 2009

APPEARANCES:

For the Plaintiffs: Johnny Meippen, Esq.
P.O. Box 705
Weno, Chuuk FM 96942

For the Defendant: Joses Gallen, Esq.
(Election Comm'n) Attorney General
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

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HEADNOTES

Elections
 A case is an election contest when the relief sought may affect, change, or prevent the change of who the winning candidates are. Ueda v. Chuuk State Election Comm'n, 16 FSM Intrm. 392, 394 (Chk. 2009).

Civil Procedure  Injunctions; Elections
 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. Ueda v. Chuuk State Election Comm'n, 16 FSM Intrm. 392, 394 (Chk. 2009).

Elections
 Jurisdiction over election contests rests purely on statutory and constitutional provisions, and courts have no inherent power to determine election contests. The determination of such contests are a judicial function only when and to the extent that the determination is authorized by statute. Ueda v. Chuuk State Election Comm'n, 16 FSM Intrm. 392, 394 (Chk. 2009).

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

 On April 2, 2009, this came before the court for hearing on the plaintiffs' motion, joined by the Chuuk State Election Commission, for a temporary restraining order barring the counting of votes cast in Honolulu, Hawaii for the Northern Namoneas district in the March 3, 2009 Chuuk state election before voting was canceled after only 288 out of 1088 voters had voted. The motion is denied. The court's reasons follow.

I.

 The Chuuk State Supreme Court appellate division issued an order requiring a revote in the Honolulu, Hawaii Northern Namoneas voting place for the gubernatorial election to determine which candidates for governor are eligible for the gubernatorial runoff election, but, for the Northern Namoneas representatives in Chuuk House of Representatives, it ordered that the votes that had been cast be counted, tabulated, and included in the certified results. Both the plaintiffs herein and the Chuuk State Election Commission indicated that they have, or are, jointly filing an appeal from the Chuuk State Supreme Court appellate division to the FSM Supreme Court appellate division of the decision to count the Northern Namoneas ballots cast in Honolulu for the five representative seats from that district on the ground that the inconsistent result was contrary to Chuuk election law and violated the candidates' right to equal protection of the laws.

 The Northern Namoneas is a five-member district with the top five vote-getters elected to the Chuuk House of Representatives. See Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 150 (Chk. S. Ct. App. 2001). The plaintiffs received the fourth and fifth highest vote totals for Northern Namoneas representative and were certified as winning candidates. Real party in interest Kitela Aniol was the sixth highest vote-getter, and if the 288 votes cast in Honolulu are counted she may end up a winning candidate and one of the plaintiffs would become a losing candidate. The plaintiffs contend that if the votes from the partial election in Honolulu were counted they would be irreparably harmed regardless of the result because to permit the counting of the partial ballot box before the FSM Supreme Court appellate division had an opportunity to stay the matter and hear and decide the issue would be to allow the state court to grant a remedy not authorized by the election law or regulations for a "canceled" election in one precinct, which, in their view, is a special election for that precinct (in other words, a revote).

 This case is an election contest since the relief sought may affect, change, or prevent the change of who the winning candidates are in the Northern Namoneas. 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 Nat'l Election Dir., 15 FSM Intrm. 1, 6 (App. 2007). The plaintiffs (and the State Election Commission) are in the process of appealing the Chuuk State Supreme Court appellate division decision to the FSM Supreme Court appellate division as provided by section 138 of the Chuuk Election Law. Chk. S.L. No. 3-25-96, § 138 ("Any party aggrieved by the judgment of the Appellate Court may appeal therefrom to the Appellate Division of the FSM Supreme Court, as in other cases of appeal."). They have this one remaining part of the election appeal process available to them and they are utilizing it.

 Furthermore, jurisdiction over election contests rests purely on statutory and constitutional provisions, and courts have no inherent power to determine election contests. Nikichiw v. Petewon, 15 FSM Intrm. 33, 38 (Chk. S. Ct. App. 2007); Sipenuk, 15 FSM Intrm. at 5. The determination of such contests being a judicial function only when and to the extent that the determination is authorized by statute. Nikichiw, 15 FSM Intrm. at 38. Since this case appears to be an election contest and since the only FSM national court which is constitutionally and statutorily vested with jurisdiction over election contests in Chuuk state elections is the FSM Supreme Court appellate division, it would appear that this court would lack jurisdiction to issue the restraining order sought even if the plaintiffs were able to show irreparable harm.

II.

 Accordingly, the motion for a temporary restraining order is denied and since the matter of the court's jurisdiction has been raised over this case's subject matter, any party may, no later than April 7, 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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