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Bien v Marshall Islands Chief Electoral Officer [1997] MHSC 3; 2 MILR 94 (30 January 1997)

2 MILR 94

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S. Ct. CIVIL NO. 96-01

(High Ct. Civil No. 1996-390)

KEJJO BIEN,
Petitioner,

-v-

JOSEPH JORLANG, in his official capacity as Acting Chief Electoral Officer, Electoral Division, Ministry of Interior and Outer Island Affairs, Republic of the Marshall Islands,
Respondent.

APPEAL FROM THE HIGH COURT

JANUARY 30, 1997

FIELDS, C.J.
DANZ, A.J. pro tem,¹ and PLASMAN, A.J. pro tem²

SUMMARY:

This appeal is from a judgment by the High Court dismissing an appeal of the Chief Electoral Officer's denial of a petition for a recount. Postal ballots that Appellant sought to be counted were not post marked on or before the date of election as required by statute. The judgment of the High Court is affirmed.

DIGEST:

1. APPEAL AND ERROR - Chief Electoral Officer: The Supreme Court will not to substitute its judgment for that of the Chief Electoral Officer based on the information submitted to him unless his decision is a clear departure from statutory requirements, is fraudulent or in bad faith, arbitrary, capricious, without basis in the evidence, or his decision is one which no reasonable mind could have reached.

2. ELECTIONS AND VOTING - Presumptions: Every reasonable presumption will be indulged in favor of the validity of an election.

3. EVIDENCE - Presumptions: The law presumes that election officers perform their duty honestly and faithfully.

4. APPEAL AND ERROR - Chief Electoral Officer: If the record supports the Chief Electoral Officer's decision, it is conclusive upon the court and the respondent's action must be sustained and will not be disturbed by the court.

5. APPEAL AND ERROR - Questions Reviewable - Record and Proceedings Not in Record: It is well settled that an appeal is on the record which existed at the time the appeal was taken.

6. STATUTES - Construction and Operation: Courts should give great deference to the interpretation given statutes and regulations by the officials charged with their administration.

7. ELECTIONS AND VOTING - Presumptions: The voters are presumed to know the law.

OPINION OF THE COURT BY FIELDS, C.J.

On November 20, 1996 [sic 1995?], the election for the Senator for the Mili Atoll was held in the Marshall Islands. The unofficial results showed Petitioner received 10 votes less than Tadashi Lometo.

The Petitioner filed a petition for recount with the Chief Electoral Officer. The petition was denied. An appeal to the High Court was denied on March 7, 1996. Thereafter an appeal was filed in the Supreme Court.

Petitioner alleges in his opening brief filed with this court, that the record in front of the Chief Electoral Officer when the petition was denied "consisted solely of the petition for recount and the letter from the Chief Electoral Officer denying the recount." (Pages 2 and 3). Petitioner then submits and argues other documents to support his position that the Chief Electoral Officer erred in not counting ballots from Honolulu and Guam, all admittedly postmarked after the election on November 20, 1995. A document titled "Affidavit of Kejjo Bien" filed with appellant's brief purportedly was signed before a notary. The copy filed with this court does not contain the signature of the notary or clerk of the Court. Thus, without such signature, it could not be an "Affidavit." This court in an attempt to determine what record was actually before the Chief Electoral Officer at the time of his rejection reviewed the file of the High Court as well as the original file of the Chief Electoral Officer. No original document was located nor was any copy showing a signature of a notary on the alleged affidavit. While these facts are not dispositive of this case they reaffirm the necessity of upholding the mandatory directions of Title 2 MIRC, Ch. 1, Section 162(3):

The covering reply envelope must be placed in the mail and be postmarked on or before the date of the election.... (Emphasis added)

The Nitijela, in their infinite wisdom, has clearly used the word "must" which connotes the mandatory, unless some compelling reason indicates a contrary intent. The Nitijela clearly wanted an election that was free from any impropriety or appearance of such. A democracy can only flourish with free elections untainted by any questionable conduct.

The appeal filed by appellant on December 29, 1995, again makes reference only to the petition for recount and the rejection by respondent. No mention is made of any other documents subsequently filed by appellants with his opening brief as Exhibits "A" 2 through 9.

This court is to determine whether the Chief Electoral Officer abused or erroneously exercised his discretion vested by 2 MIRC 180(4). Clanton v. MI Chief Elec. Off. (No. 1), 1 MILR (Rev.) 146, 152 (Aug 2, 1989).

[1] This court is not to substitute its judgment for that of the Chief Electoral Officer based on the information submitted to him unless his decision is a clear departure from statutory requirements, is fraudulent or in bad faith, arbitrary, capricious, without basis in the evidence, or his decision is one which no reasonable mind could have reached. See 2 Am Jur 2d, Administrative Law § 676.

[2,3] Every reasonable presumption will be indulged in favor of the validity of an election. The law presumes that election officers perform their duty honestly and faithfully. 29 C.J.S. Elections § 274.

The court has the duty to uphold the election if possible.

It is a primary principle of law as applied to election cases that it is the duty of the court to validate the election if possible. That is the election must be held valid unless plainly illegal. Rideout v. City of Los Angeles. 197 P. 74; and cited in Wilkes v. Mouton, 722 P. 2d 187 (1986).

[4] If the record supports the respondent's decision, it is conclusive upon the court and the respondent's action must be sustained and will not be disturbed by the court, 2 Am Jur 2d, Administrative Law § 679.

[5] This appeal is to be considered on the record which existed at the time the Chief Electoral Officer rejected the petition for recount. It is well settled that an appeal is on the record which existed at the time the appeal was taken. The Supreme Court in Clanton v. MI Chief Elec. Off. (No. 1), supra, at 151, specifically set forth the procedure on an appeal from the decision of the Chief Electoral Officer:

As a matter of general law, it is axiomatic that an appeal is on the record (citations omitted). Neither enlargement of the grounds for complaint nor the presentation of additional evidence nor a hearing is encompassed within the ordinary meaning of appeal. Nothing in 2 MIRC Chapter 1, Section 81 suggests that any meaning other than the ordinary meaning of the word is intended.

The record as of the time this appeal was filed consisted of (1) The petition for recount and (2) The letter rejecting the petition by the Chief Electoral Officer. In accordance with the clear directives of Clanton (No. 1) the court must limit its consideration to the record as it existed at the time this appeal was filed. The court does not consider various other documents attempted to be introduced post hoc by petitioner.

The Administrative Procedure Act is not applicable to the Chief Electoral Officer in deciding a petition for re-count. The Nitijela has set forth a specific procedure to be followed in election cases. The Elections and Referenda Act sets forth a specialized procedure to be followed by the Chief Electoral Officer in deciding a petition for recount. This specialized procedure is clearly distinct from the procedure for deciding "contested cases under the Administrative Procedure Act. For example, in deciding a petition for recount, the Elections and Referenda Act (2 MIRC, Ch. 1, Sec. 180(4)) requires the Chief Electoral Officer to consider only the petition and any written evidence submitted with it." No hearing is contemplated by statute. On the other hand, 6 MIRC, Ch. 1, Sec. 11 requires that "in a contested case, all parties shall be afforded an opportunity for hearing." The Elections and Referenda Act merely requires the Chief Electoral Officer to set forth his "reasons" for rejection the petition. There is no requirement of factual findings or reference to underlying evidence on which he based his "reasons," as required under the Administrative Procedure Act. (See 6 MIRC, Ch. 1, Sec. 14).

Title 2, MIRC, Sec. 181(1) provides:

If the Chief Electoral Officer rejects a petition under Section 180 of this Chapter he shall advise the petition in writing accordingly, giving his reasons....

The Chief Electoral Officer sufficiently complied with his duty to set forth his "reasons" for rejecting the petition. Assuming the Chief Electoral Officer had before him the reasons, now advanced by petitioner, it is obvious that the Chief Electoral Officer strictly construed Section 162(3) giving a, mandatory meaning to the word "must." That statute states:

The covering reply envelope must be placed in the mail and be postmarked on or before the date of the election.... (Emphasis added)

The Nitijela, by use of the words "must," created a mandatory requirement that postal ballots be postmarked, at the latest, on the date of the election. There is nothing in the statute indicating the Nitijela intended to give any discretion to accept late postmarked ballots.

[6] Courts should give great deference to the interpretation given statutes and regulations by the officials charged with their administration. Blanding v. Dubose, [1982] USSC 1; 454 U.S. 393 (1982).

The court concludes that the interpretation given the statute, by the Chief Electoral Officer, was reasonable and not an abuse of discretion. Absent an abuse of discretion, the court is not to substitute its judgment for that of the Chief Electoral Officer. The court finds the interpretation of the statute is mandatory.

[7] The voters are presumed to know the law, that is that "The ballots must be placed in the mail and be postmarked on or before the date of election." Their reliance on actions or words of a third party does not excuse their actions.

The decision of the High Court rejecting petitioner's appeal is HEREBY AFFIRMED.

James Plasman, Justice Pro Tem, participated in the oral arguments and discussions thereafter, but withdrew from the case in order to avoid the appearance of any impropriety. (The motion to confirm Plasman's appointment to the Nuclear Claims Tribunal was made by Respondent herein).

Therefore this Decision is filed by the remaining two Justices.

By Order of Chief Justice Allen P. Fields.

Dated: January 30, 1997.

_________________

¹Honorable Gregory J. Danz, Member of the Nuclear Claims Tribunal, sitting by designation by the Cabinet.

²Honorable James Plasman, Member of the Nuclear Claims Tribunal, sitting by designation by the Cabinet.