CHUUK STATE SUPREME COURT
TRIAL DIVISION

Cite as Alafanso v. Suda
10 FSM Intrm. 553 (Chk. S. Ct. Tr. 2002)

[10 FSM Intrm. 553]

ERMES ALAFANSO, in his capacity as a
candidate for mayor of Oneisomw and as a voter
of Oneisomw, et al.,
Plaintiffs,

vs.

JOE SUDA, in his capacity as the Election
Commissioner of Oneisomw, ALL MEMBERS OF
THE ONEISOMW BOARD OF ELECTIONS, and
SANDUS SUDA, in his capacity as a candidate for
mayor of Oneisomw and as the mayor thereof,
and ONEISOMW MUNICIPALITY,
Defendants.

CSSC CA No. 132-2001

ORDER GRANTING MOTION TO DISMISS IN PART

Keske S. Marar
Associate Justice

Hearing:  March 4, 2002
Decided:  March 18, 2002

APPEARANCES:

For the Plaintiffs:	Wesley Simina, Esq.
P.O. Box 94
Weno, Chuuk FM 96942

For the Defendants:	Andrea Hillyer, Esq.
P.O. Drawer D
Kolonia, Pohnpei FM 96941

For the Defendant:	Ready Johnny, Esq.
Attorney General
Office of the Chuuk Attorney General
P.O. Box 189
Weno, Chuuk FM 96942

[10 FSM Intrm. 554]

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HEADNOTES

Jurisdiction
The question of subject matter jurisdiction can be raised at any point in the proceeding.  Alafanso v. Suda, 10 FSM Intrm. 553, 554 (Chk. S. Ct. Tr. 2002).

Civil Procedure - Injunctions
Every temporary restraining order expires by its terms within such time after entry, not to exceed 14 days, as the court fixes, unless within the time fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period.  Alafanso v. Suda, 10 FSM Intrm. 553, 556 (Chk. S. Ct. Tr. 2002).

Civil Procedure - Injunctions
When a TRO was issued June 29, 2001 and was apparently extended by stipulation only until a hearing to be held on July 23, 2001, even if the TRO had been extended for a like period of the original 14 days, it could not have been in effect after July 27, 2001.  Alafanso v. Suda, 10 FSM Intrm. 553, 556 (Chk. S. Ct. Tr. 2002).

Courts - Judges
When a special trial division justice was appointed by the Chief Justice pursuant to the procedure contained in two 1994 general court orders, the special trial division justice appeared to be a properly installed judicial officer, and even if the special trial division justice were not a lawfully appointed judicial officer, that is, a judge de jure, he was a de facto judicial officer.  Alafanso v. Suda, 10 FSM Intrm. 553, 556 (Chk. S. Ct. Tr. 2002).

Courts - Judges
The acts of a judge de facto are generally valid and not subject to collateral attack.  Alafanso v. Suda, 10 FSM Intrm. 553, 556 (Chk. S. Ct. Tr. 2002).

Elections
When a municipal election ordinance has no provision for contesting or challenging the election results after an election has been held, or for resolving election disputes and when the state election law applies to all elections in the state including municipal elections whenever applicable unless otherwise specifically provided, the state election law must apply to this phase of the election, and the proper forum to contest the municipal election is the Chuuk Election Commission.  Alafanso v. Suda, 10 FSM Intrm. 553, 557 (Chk. S. Ct. Tr. 2002).

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COURT'S OPINION

KESKE S. MARAR, Associate Justice:

This came before the court on March 4, 2002, for hearing on the defendants' Motion to Dismiss, filed November 7, 2001.  The plaintiffs' opposition was filed on January 31, 2002.  The defendants move to dismiss for lack of jurisdiction.  The question of subject matter jurisdiction can be raised at any point in the proceeding.  Chk. Civ. R. 12(h)(3).

The defendants challenge the court's jurisdiction on two grounds.  First, they contend that this 

[10 FSM Intrm. 555]

is now a post-election case and that the court has repeatedly ruled that it has no jurisdiction over election contests.  Second, the defendants contend that the second judge to sit on the case, a special trial division justice, was, in their view, ineligible to sit as a judge, both because he did not meet the qualifications for a trial division justice and because the Chuuk State Supreme Court Chief Justice does not have the authority to appoint special trial division justices.

I.

This case was filed on June 27, 2001.  It sought a declaratory judgment that certain provisions of the Wonei Municipal Ordinance No. 6-97 were constitutionally invalid and that the composition of, and certain actions by, the Oneisomw Election Board, created by Wonei Ordinance No. 6-97, were also improper.  It also sought permanent injunctive relief barring the use of those provisions and practices in Oneisomw municipal general elections.

On June 29, 2001, the plaintiffs obtained an ex parte temporary restraining order.  That order found that the plaintiffs were entitled to a TRO and that irreparable harm would result to the plaintiffs if the TRO was not granted forthwith and ex parte.  The TRO prohibited enforcing or implementing section 6(h) of Ordinance No. 6-97 requiring certain persons to pay $50 to re-register to vote; prohibited using any voters' list other than the 2001 Oneisomw Master List used in the state general election on March 6, 2001; prohibited the use of the new filing fees of $850 for mayor, $400, $300 for at-large legislator, $150 for legislator, and $50 for village chief, and reverted to the filing fees in effect for the 1999 Oneisomw general election; ordered the use of the 1999 filing deadlines of July 14, for nomination papers; barred the imposition of 50¢ fees for the registration of new voters or for VAAAP requests; barred enforcement of Ordinance No. 6-97, § 11, disqualifying persons with criminal record from voting; barred the defendants from controlling, administering, or conducting the Oneisomw general election (in part because the incumbent mayor's brother was head of the Oneisomw Election Board); and banning the use of the defendants' and their relatives' private residences and meeting halls as polling places or for election preparation and tabulation; and ordered that public facilities be used for election work.  The TRO set July 13, 2001 for a hearing on the preliminary injunction.

By stipulation, filed July 6, 2001 and approved by the court on July 10, 2001, the TRO was extended "until such date and time the hearing on the application for a preliminary injunction shall be held," and the preliminary injunction hearing was rescheduled for July 23, 2001.  On July 20, 2001, the then presiding judge, sua sponte and apparently without notice, issued an order for the Chuuk Election Commission to conduct the scheduled July 31, 2001 election in conformity with his earlier orders and to use the funds already appropriated by the Oneisomw Municipal Council for that election.

No preliminary injunction hearing was held on July 23, 2001, the day it was set for, but the plaintiffs did file a motion to disqualify certain Chuuk Election Commission staff members from participation and to amend the TRO.  The next day, the plaintiffs filed a motion asking that the case be reassigned the another justice because had to leave Chuuk and the scheduled hearing had not taken place.

On July 26, 2001, the Chief Justice, pursuant to General Court Orders 2-94 and 3-94, appointed Jerry Coe as a Special Trial Justice and assigned the case to him.  The special trial justice, by order entered the same day, granted the motion to disqualify certain election officials from participation, and "reinstated" the previously-issued TRO and ordered that all of the TRO's provisions remained in effect 

[10 FSM Intrm. 556]

until the conclusion of the July 31, 2001 Oneisomw election.  On July 29, 2001, in response to a verified ex parte motion alleging tampering with the ballot boxes for Guam and Saipan, a new TRO was issued, enjoining the delivery of Oneisomw ballot boxes to Guam and Saipan and ordering the Chuuk Election Commission to prepare new ballot boxes for those places.  Pursuant to this TRO the Chuuk state police took possession of the Guam and Saipan boxes and delivered them to the courthouse.  This order also directed the defendants to show cause why they should not be held in contempt for violating the court's orders and set the hearing on that for July 31, 2001.  On July 30, 2001, in response to a plaintiffs' motion, which alleged various violent acts and threats of force by the defendants in regard to the Oneisomw election, the special trial justice issued an order extending "the temporary restraining orders previously entered and extended, modified and clarified by the Court and further amended hereby," and continuing the TRO's "in full force and effect until such time as an election in this matter is scheduled, completed and the results certified by the Chuuk State Election Commission."  The July 30, 2001 order rescheduled the July 31st election to August 7, 2001.

Some sort of election was held in Oneisomw on July 31, 2001.  Numerous and various motions and orders were filed after this date in attempts to conduct the rescheduled election.  These motions or orders do not bear on the jurisdictional question currently before the court.

II.

The original temporary restraining order was entered on June 29, 2001.  It was extended by stipulation on July 6, 2001, until a preliminary injunction hearing scheduled for July 23, 2001.  That hearing was never held, on that or a later date.  Under the Rules of Civil Procedure every temporary restraining order "shall expire by its terms within such time after entry, not to exceed 14 days, as the court fixes, unless within the time fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period."  Chk. Civ. R. 65(b).  Therefore the June 29, 2001 TRO would have expired on July 13, 2001, if had not been extended by the July 6, 2001 stipulation.  The stipulation extended the TRO to "until such date and time as the hearing on the application for a preliminary injunction shall be held."  The stipulation could have extended it for a "like period" of fourteen days, that is, until July 27, 2001, but apparently the stipulation was intended to extend the TRO only to July 23, 2001, when the preliminary injunction hearing was to be held.  Either way, the June 29, 2001 TRO could not have been in effect after July 27, 2001.  The parties against whom it was directed certainly did not consent to it being extended after that.  In fact, on July 16, 2001, defendant Sandus Suda filed a motion to set aside the stipulation for extension because he had not agreed to it.  Therefore the June 29th TRO and its provisions were not in effect after July 27, 2001.

There was, however, a new TRO concerning the Guam and Saipan ballot boxes, which had not expired by July 31st, and which was in effect and binding.  There was also the part of the July 26, 2001 order barring certain persons from participating in the Oneisomw election, which appear to be new orders.  The defendants challenge the validity of all orders issued by the special trial justice on the grounds that the Chief Justice does not have the authority to appoint a special trial division justice, and if he does, that the special trial division justice he did appoint was ineligible for that office.

The court does not have to decide this issue.  The special trial division justice was appointed by the Chief Justice pursuant to the procedure contained in two general court orders issued in 1994.  As such, the special trial division justice appeared to be a properly installed judicial officer.  Thus, even if the special trial division justice were not a lawfully appointed judicial officer, that is, a judge de jure, he was a de facto judicial officer.  See Hartman v. FSM, 6 FSM Intrm. 293, 297 (App. 1993) (a de facto judge is "one who exercises the duties of the judicial office under the color of an appointment . . . thereto").  The acts of a judge de facto are generally valid and not subject to collateral attack.  Id. at 

[10 FSM Intrm. 557]

298-300 (temporary judge's acts valid although the person may not have been eligible for appointment as temporary judge).  The special trial justice's acts were, if not those of a de jure judge, were then those of a de facto judge, and cannot be challenged here.

III.

The matters concerning what transpired on July 31, 2001, and the validity of the acts or actions of various persons or bodies (with the exception of the TRO concerning the Guam and Saipan ballot boxes and the part of the July 26th order disqualifying certain persons, which might both concern the court and affect the outcome of the election contest) thus becomes an election contest.  Oneisomw Ordinance No. 6-97 has no provision for contesting or challenging the election results after an election has been held, or for resolving election disputes.  The Chuuk State Election Law of 1996 applies "to all elections in the State of Chuuk, including municipal . . . election whenever applicable unless otherwise specifically provided."  Chk. S.L. No. 3-95-26, § 148; see also David v. Uman Election Comm'r, 8 FSM Intrm. 300d, 300i (Chk. S. Ct. App. 1998).  Since there is no provision in the Wonei Ordinance No. 6-97 concerning election contests, protests, or certification (although there is a provision that the Oneisomw Election Board will obey all orders of the Chuuk State Supreme Court trial division, Wonei Ordinance No. 6-97, § 25), the state election law must apply to this phase of the election.  The state election law provides that elections must be contested by filing a verified written complaint with the Chuuk Election Commission.  Chk. S.L. No. 3-95-26, §§ 126, 127.

The court therefore concludes that the proper forum to contest the July 31, 2001 Oneisomw election is the Chuuk Election Commission.  This is consistent with this court's previous interpretations of the procedure mandated by the Chuuk Election Law of 1996.  See, e.g., Mathew v. Silander, 8 FSM Intrm. 560, 564 (Chk. S. Ct. Tr. 1998) (an election contest appeal in the trial division will be dismissed for lack of jurisdiction because the legislature provided that Chuuk Election Commission decisions be appealed to the appellate division).

Questions concerning the conduct and result of that election are therefore remanded to the Chuuk Election Commission, to be proceeded with there.  If any of the several very serious allegations concerning that election are proven after remand, that election may well be void and need to be redone.  The court is mindful of the statutory provision that an election contestant is required to file his verified statement of contest with the Chuuk Election Commission within five days after the declaration of the election results.  The court is of the opinion that because of this case pending in this court, and the various orders issued by the judges who have sat on it, that any such declaration, if one has been made, has been in suspension and not been in effect, until the date of the entry of this order.  Therefore, if any plaintiff intends to contest the validity July 31, 2001 Oneisomw election, he has five days from the entry of this order to file his contest before the Chuuk Election Commission, if he has not already done so.

IV.

At oral argument, the defendants conceded that this court is a proper forum for pre-election constitutional claims.  Since the plaintiffs apparently seek a permanent injunction barring certain allegedly unconstitutional practices in all future Oneisomw municipal elections and ask that the court strike down portions of Wonei Ordinance No. 6-97 as unconstitutional, this court retains jurisdiction over those claims.  Therefore, the hearing previously scheduled for 9:30 a.m., April 3, 2002, will be a status conference for the purpose of determining what issues and motions remain before the court and to set a date and time for a hearing on a permanent injunction.  Because of the likelihood that a new election may result from the plaintiffs' pursuit of their remedies under the Chuuk Election Law of 1996, the plaintiffs may move for an order sufficient Oneisomw municipal funds be set aside, and not 

[10 FSM Intrm. 558]

expended, to cover that eventuality.

It is so ordered.

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__________________________________________________________
Footnote:
1. The Wonei Constitution provides that mayoral elections will be in July while the Oneisomw Ordinance No. 6-97, § 10, provides that the election will be held on August 8.  This discrepancy is unexplained.