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Matthew v Chief Electoral Officer [2014] MHSC 1; 3 MILR 175 (7 October 2014)

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S. Ct. Case No. 2012-004
High Ct. Civil No. 2011-224

AMENTA MATTHEW, GERALD M. ZACKIOS, and ELDON NOTE,
Petitioners/Appellants

-v-

JOSEPH JORLANG, in his capacity as Chief Electoral Officer,
Respondent/Appellee

APPEAL FROM THE HIGH COURT

OCTOBER 7, 2014

CADRA, Chief Justice
SEABRIGHT[1] and KURREN,[2] Associate Justices

SUMMARY:

Petitioners appealed the decision of the Chief Electoral Officer denying a recount of the general election. The High Court dismissed the appeal. The Supreme Court declined to exercise its discretion to hear the appeal, and dismissed the appeal for lack of jurisdiction.

DIGEST:

1. COURTS - Supreme Court - Jurisdiction - The Supreme Court's discretion to grant an appeal pursuant to Article VI, § 2(2)(c) of the RMI Constitution is unfettered, but must be a reasoned, mature, and responsible exercise of judicial authority.

2. COURTS - Supreme Court - Jurisdiction - Exercising its discretion to grant an appeal pursuant Article VI, § 2(2)(c) of the RMI Constitution allows the Supreme Court to decline jurisdiction where a case concerns a straightforward application of clear statutory language.

3. COURTS - Supreme Court - Jurisdiction - Election Challenge: The Supreme Court need not accept jurisdiction in every election challenge, especially one involving only a basic application of legal principles in a statutory regime that should be strictly construed.

4. COURTS - Supreme Court - Jurisdiction - Election Challenge: There is good reason for the Supreme Court to decline further review where one level of careful appellate review has already occurred specifically in election cases, which must be decided accurately, but also without undue delay.

5. COURTS - Supreme Court - Jurisdiction: The RMI Supreme Court, in contrast to the High Court, is by nature much more deliberative, with unique administrative prerequisites before it convenes (e.g., selection and designation of Acting Associate Justices).

6. COURTS - Supreme Court - Jurisdiction - Election Challenge: Treating a second level of appeal to the Supreme Court from an appellate decision of the High Court as truly discretionary serves the goals of avoiding election uncertainty and providing a swift resolution of election contests.

SEABRIGHT, Acting Associate Justice:

INTRODUCTION
Amenta Matthew ("Matthew"), Gerald M. Zackios ("Zackios"), and Eldon Note ("Note") (collectively "Petitioners" or "Appellants") appeal a November 14, 2012 memorandum of Decision and Order of the High Court that, in turn, dismissed an appeal of a decision of Chief Electoral Officer ("CEO") Joseph Jorlang ("Respondent" or "Appellee") denying petitions seeking a recount of the November 21, 2011 general election of the Republic of the Marshall Islands ("RMI"). Based on the following, we DISMISS this appeal for lack of jurisdiction.

BACKGROUND
Petitioners were candidates in the November 21, 2011 general election, with Matthew and Zackios seeking seats in the Nitijela, and Note running for Mayor of the Kili/Bikini/Ejit local government. As found by the High Court, the unofficial results of the election were publicly announced on December 12, 2011 pursuant to the Elections and Referenda Act, 2 Marshall Islands Revised Code ("MIRC") Ch. 1, § 178(4)(b) (the "Elections Act"), which provides: "On the completion of the count, the counting and Tabulation Committee shall: (a) certify the result of the count to the Chief Electoral Officer; and (b) publicly announce the unofficial result of the election." All three Petitioners lost their respective races in those unofficial results.

Prior to the announcement of the unofficial results, on December 8, 2011, Zackios filed a petition for re-count with the CEO, challenging the tabulation process for counting of postal ballots (ballots cast by mail by Marshallese citizens residing in the United States). Matthew and Note filed similar petitions for re-count on December 14, 2011.

The re-count petitions were filed under § 180 of the Elections Act, which provides in pertinent part:

A candidate in an election may file with the Chief Electoral Officer a petition for a re-count in the electorate on the grounds that:

. . .

(b) there was an error in relation to the count, the records of the election, or the admission or rejection of ballot papers, and that he believes that a re-count will affect the result of the election.

Id. § 180(1)(b). As for timing of re-count petitions, the Elections Act requires that: "[t]he petition shall be filed within two weeks after the date of the announcement of the unofficial result of the election in accordance with [§ 178(4)(b)]." Id. § 180(3). The Elections Act further provides that:

In the case of a re-count applied for on the grounds set out in [§ 180(1)(b)], the petition shall be supported by an affidavit of the petitioner, specifying his belief and the grounds for his belief that the manner in which the count or other alleged discrepancy was believed to have been erroneous.

Id. § 180(2). The Elections Act requires the CEO to grant the petition if he "is of the opinion that there is a substantial possibility that the result of the election would be affected by a re-count," id. § 180(4), "otherwise he shall reject it." Id.

The CEO rejected the petitions, and the Petitioners filed a "Complaint for Declaratory Relief" with the High Court on December 30, 2011. See id. § 181(1) ("If the Chief Electoral Officer rejects a petition under Section 180 of this Chapter he shall advise the petitioner in writing accordingly, giving his reasons, and the petitioner may, within five (5) days after receipt of the advice appeal to the High Court against the decision."). In a November 14, 2012 Memorandum of Decision and Order, the High Court dismissed the action as to all three Petitioners. The High Court found, among other matters, that Petitioners had not met certain requirements of the Election Act, and had thus failed to exhaust administrative remedies, because (1) Zackios had filed his petition before the unofficial announcement of results (where § 180(3) states that the petition "shall be filed within two weeks after the date of the announcement of the unofficial result"), and (2) Matthew and Note had not filed proper affidavits as required by § 180(2) ("[T]he petition shall be supported by affidavit of the petitioner, specifying his belief and the grounds for his belief that the manner in which the count . . . was believed to have been erroneous."). On December 13, 2012, Petitioners filed this appeal from the High Court's decision.

ANALYSIS
Essential to this decision is the fundamental principle that this court's jurisdiction is delineated in the RMI constitution. Specifically, Article VI, §2(2) of the RMI Constitution provides:

An appeal shall lie to the Supreme Court:

(a) as of right from any final decision of the High Court in the exercise of its original jurisdiction;

(b) as of right from any final decision of the High Court in the exercise of any appellate jurisdiction, but only if the High Court certifies that the case involves a substantial question of law as to the interpretation or effect of any provision of the constitution; [or]

(c) at the discretion of the Supreme Court, subject to such conditions as to security for costs or otherwise as the Supreme Court thinks fit, from any final decision of any court.

It is undisputed that the current appeal to the Supreme Court is not based on "an exercise of its original jurisdiction" (under § 2(2)(a)), and that the High Court has not "certifie[d] that the case involves a substantial question of law" (under § 2(2)(b)). Rather, the parties agree that the appeal is brought pursuant to § 2(2)(c) ("[A]t the discretion of the Supreme court").

[1] Clanton v. Marshall Islands Chief Electoral Officer, 1 MILR (Rev) 146 (1989), teaches that "reviews by the High Court of the decisions of the Chief Electoral Officer [when a petition for re-count has been rejected] are performed by the High Court in the exercise of its appellate jurisdiction." Id. at 150. And where there is no appeal "as of right" under § 2(2)(b) of the Electoral Act - such as in this case - "an appeal may still lie 'at the discretion of the Supreme Court, subject to such conditions as to security for costs or otherwise as the Supreme Court thinks fit, from any final decision of any court.'" Id. (quoting § 2(2)(c)). "The Supreme Court's discretion to grant, or indeed to order up, an appeal pursuant to [§ 2(2)(c)] appears to be unfettered. No qualifying words restrict the plain language. However, the word 'discretion' itself imports a reasoned, mature, and responsible exercise of judicial authority." Id. Clanton, for example, "[took] jurisdiction of . . . appeals in the exercise of our discretion pursuant to
[§ 2(2)(c)]," id. at 151, in a re-count case because the particular issues were "of great public interest, involving the construction and operation of elections statutes which are basic to the legitimacy of the government of this Republic." Id.

But Clanton does not hold or even suggest that the Supreme Court always has jurisdiction in an election re-count case - that the court accepted jurisdiction under those particular circumstances has little bearing on whether the Court has jurisdiction under all other circumstances. Instead, Clanton is important for its recognition that discretion under § 2(2)(c) "appears to be unfettered" with "[n]o qualifying words restrict[ing] the plain language" of § 2(2)(c). Id. at 150. Under Clanton, the court's discretion must be a "reasoned, mature, and responsible exercise of judicial authority." Id.

[2] The present appeal does not merit acceptance of jurisdiction. Although a re-count is sought, the legal issues presented involve little more than a basic application of well-accepted principles of statutory construction. See, e.g., United States v. Turkette, [1981] USSC 152; 452 U.S. 576, 580 (1981) ("In determining the scope of a statute, we look first to its language. If the statutory language is unambiguous, in the absence of a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive." (citation and internal quotation marks omitted). The High Court applied the plain and unambiguous langue of §§ 180(2) and 180(3) of the Elections Act to undisputed facts. Even Petitioners admit that there were "minor technical defects with the actual petitions." That is, the High Court was not required to interpret the meaning of unclear or obscure words or clauses in light of legislative intent. And "reasoned, mature, and responsible" discretion certainly allows the Supreme Court to decline jurisdiction where a case concerns a straightforward application of clear statutory language.

[3] Petitioners argue that this case presents strong and compelling reasons for this Court to accept jurisdiction because an election is at stake. But the court need not accept jurisdiction in every election challenge, especially one involving only a basic application of legal principles in a statutory regime that should be strictly construed.[3] See, e.g., Willis v. Crumbly, 268 S.W.3d 288, 291 (Ark. 2007) ("Election contests are purely statutory, and 'a strict observance of statutory requirements is essential to the exercise of jurisdiction by the court, as it is desirable that election results have a degree of stability and finality.'") (quoting Tate-Smith v. Cupples, 134 S.W.2d 535, 538 (Ark. 2003)).

[4] Indeed, there is good reason to decline further review (where one level of careful appellate review has already occurred) specifically in election cases, which must be decided accurately, but also without undue delay. See Rock v. Lankford, 301 P.3d 1075, 1084 (Wyo. 2013) ("Statutes creating the right to contest elections generally impose strict, short, and mandatory deadlines for the commencement of election contests. This is for the obvious reason that government business cannot be brought to a standstill pending the outcome of a drawn-out election contest.") (citations omitted); see also Willis, 268 S.W.3d at 291 ("[T]he purpose of election contests is to aid the democratic processes upon which our system of government is based by providing a ready remedy whereby compliance with election laws may be assured to facilitate, not hinder by technical requirements, the quick initiation and disposition of such contests.") (quoting Tate-Smith, 134 S.W.2d at 538-39). As Plyman v. Glynn County, 578 S.E.2d 124 (Ga. 2003), reasons:

[The] legislature put a very short fuse on election contest cases. [The statute] requires cases contesting election results to be brought within five days of certification of the returns. This short time period reflects the legislature's strong desire to avoid election uncertainty and the confusion and prejudice which can come in its wake. Certainly, the swift resolution of election contests is vital for the smooth operation of government.

Id. at 126.

Other courts have also recognized legislative intent to decide election disputes expeditiously, with careful adherence to statutory requirements. See Petition of Jones, 346 A.2d 260, 262-63 (Pa. 1975) ("The Pennsylvania Election Code . . . reflects a clear intention of the Legislature to expeditiously dispose of objections and to provide for [prompt] certification of the vote. The integrity of the election process requires immediate resolution of disputes that prevent certification. . . . Recognizing these considerations, this Court has held that compliance with the statutorily imposed time limits is especially important in this area.") (citation omitted); Smith v. King, 716 N.E.2d 963, 969 (Ind. App. 1999) ("The right to vote and to have one's vote counted properly is at the core of our democracy, and the public has a corresponding interest in both the integrity and the finality of elections. Thus, the election contest procedures enacted by our legislature are designed to protect both the candidate and the voter but also manifest a clear legislative intent that election contests be resolved expeditiously.").

[5,6] Under the statutory provisions of the RMI code, the High Court has the structure and administrative resources to facilitate, if necessary, a relatively prompt decision in an appeal from a decision of the CEO in an election challenge. This Supreme Court, in contrast, is by nature much more deliberative, with unique administrative prerequisites before it convenes (e.g., selection and designation of Acting Associate Justices). Treating a second level of appeal to the Supreme Court from an appellate decision of the High court as truly discretionary serves these goals of avoiding "election uncertainty" and providing a "swift resolution of election contests." Plyman, 578 S.E.2d at 126. And while there certainly may be election challenges that require the Supreme Court to exercise appellate jurisdiction, this is not one of them.

CONCLUSION
For the foregoing reasons, we exercise our discretion and decline to accept jurisdiction under Section 2(2)(c) of the RMI Constitution in this straightforward case.

The appeal is DISMISSED for lack of appellate jurisdiction.

^[1] Hon. J. Michael Seabright, United States District Court Judge, District of Hawaii, sitting by designation of the Cabinet.
^[2]Hon. Barry M. Kurren, United States Magistrate Judge, District of Hawaii, sitting by designation of the Cabinet.
^[3]Petitioners argue that the Court should exercise discretion to accept the appeal (and excuse compliance with “technical” aspects of the Election Act) because it will result in a different outcome of the election. This argument, however, is circular - it assumes they will necessarily prevail on the merits and that a re-count will result in their election to office.