FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION  
Cite as Wiliander v Mallarme, 7 FSM Intrm. 152 (App. 1995)

IN THE MATTER OF HANS WILIANDER, 
1995 Candidate for Congress of the Federated States of Micronesia, 
District 4, Faichuk, Chuuk State,
Appellant,

vs.

MAX MALLARME, 
National Election Director,
Respondent,

And

JOHN R. PETEWON,
Real Party in Interest.

APPEAL CASE NO. C1-1995

OPINION

Argued: May 4, 1995
Order Entered: May 5, 1995
Opinion Issued: May 9, 1995

BEFORE:

Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Martin Yinug, Associate Justice, FSM Supreme Court

APPEARANCES:

For the Appellant:
John Hollinrake, Esq.
Law Offices of R. Barrie Michelsen
P.O. Box 1450
Kolonia, Pohnpei FM 96941

For the Respondent:
Carole Rafferty, Esq. (on the brief)
Robert J. Ritchie (argued)
Assistant Attorneys General
Office of the FSM Attorney General
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Real Party in Interest:
John R. Petewon (pro se)
P.O. Box 175
Weno, Chuuk FM 96942

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HEADNOTES

Elections
By statute, petitions to the National Election Director challenging the acceptablitiy of a vote or votes must be filed prior to certification of the results of the election or within one week of the election, whichever occurs first. Wiliander v. Mallarme, 7 FSM Intrm. 152, 156 (App. 1995).

Elections
By statute, absentee ballots are to be examined when received, on or before Election Day, to determine if the voter is qualified to vote absentee, and the ballot envelope deposited unopened in container, and publicly delivered to counting and tabulating committee on Election Day. Wiliander v. Mallarme, 7 FSM Intrm. 152, 156-57 (App. 1995).

Elections
Where, because election officials had not processed the absentee ballots until nine and ten days after the election thus making it impossible to file a petition concerning the acceptability of those ballots within the statutory time frame of prior to certification of the results of the election or within one week of the election, whichever occurs first, the petition will still be considered timely if it is filed before certification. Wiliander v. Mallarme, 7 FSM Intrm. 152, 157 (App. 1995).

Elections
The time frames established by statute for election petitions to the National Election Director are short. A candidate must be vigilant in asserting his rights to petition. Wiliander v. Mallarme, 7 FSM Intrm. 152, 157 (App. 1995).

Elections; Equity - Laches, Estoppel and Waiver
Where no action, or words, or silence of the National Election Director prior to the appellant's initial petition misled the appellant into untimely filing his petition after certification it does not give rise to an estoppel. The Director's later failure to raise the issue of untimeliness until his denial of the petition was appealed to the Supreme Court does not give rise to an estoppel. Wiliander v. Mallarme, 7 FSM Intrm. 152, 157-58 (App. 1995).

Administrative Law - Judicial Review; Elections
Deadlines set by statute are generally jurisdictional. If the deadline has not been strictly complied with the adjudicator is without jurisdiction over the matter once the deadline has passed. This applies equally to the National Election Director as a member of an administrative agency (executive branch) hearing an appeal as it does to a court hearing an appeal from an administrative agency. Thus the Director cannot extend statutory time frames set by Congress. When the Director had not rendered his decision within the statutorily-prescribed time limit it must be considered a denial of the petition, and the petitioner could then have filed his appeal in the Supreme Court. Wiliander v. Mallarme, 7 FSM Intrm. 152, 158 (App. 1995).

Elections
A timely received absentee ballot may be rejected if the accompanying statement is insufficient, the signatures do not correspond, the procedure for marking and returning the absentee ballot has not been complied with, the voter is not a qualified elector, or the ballot envelope has been tampered with. Wiliander v. Mallarme, 7 FSM Intrm. 152, 156 n.6, 159 (App. 1995).

Elections
The formalities involved in the absentee election process are intended to safeguard the electoral process from voter fraud. Therefore a regulation rejecting absentee ballots if the signature on the request form is different from the signature on the statement accompanying an absentee ballot is a reasonable exercise of the National Election Director's power to implement rules and regulations for absentee ballots. Wiliander v. Mallarme, 7 FSM Intrm. 152, 160-61 (App. 1995).

Elections
Since the right to vote is personal - one person's vote cannot be cast by another - one person's request to vote absentee cannot be made by another. Wiliander v. Mallarme, 7 FSM Intrm. 152, 160 (App. 1995).

Elections
Congress intended that the National Election Code be applied uniformly throughout the nation. Wiliander v. Mallarme, 7 FSM Intrm. 152, 161 (App. 1995).

Elections
Congress intended that the election appeal process be timely and expeditious. This is especially important in a year in which the newly elected Congress selects the President and Vice President of the nation from among its members. Wiliander v. Mallarme, 7 FSM Intrm. 152, 161 (App. 1995).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

One day after hearing argument we entered our order dismissing this appeal, stating we found no reason to disturb the election results and that the petition was time barred. We now explain our reasoning.

I. Issues and Holdings

1. Whether a petition challenging the acceptability of an absentee ballot filed pursuant to 9 F.S.M.C. 902, but more than one week after the election and after certification of the results is untimely.

We conclude that it is, and that no words or action of the National Election Director estop him from asserting untimeliness.

2. Whether it was improper for the election officials to reject an absentee ballot when the signature on the affidavit accompanying the ballot did not match the signature on the request for the ballot.

Applying the standard of review set forth in 9 F.S.M.C. 903(1)(a) and (b), we conclude that such rejection was not improper.

II. Background

This appeal arises out of the rejection by election officials of 169 absentee ballots cast in the 

Fourth Congressional District [Faichuk] of Chuuk. The election was held March 7, 1995. The 339 absentee ballots received for the Fourth Congressional District were reviewed by election officials on March 16, and March 17, 1995. The 169 ballots were rejected on the ground, as the appellant understood it to be, that the signature on the affidavit accompanying the ballot did not correspond with the signature on the voter's request for an absentee ballot. On March 17, 1995, the remaining absentee ballots were opened and tabulated, and the final election tally made. The National Election Director (Director) certified the election results on March 20, 1995.

On March 21, 1995, the appellant, Hans Wiliander, filed a "Notice of Appeal" with the Director. The Director, in a letter dated March 22, 1995, noted that the appellant had made an error in the Director's title and invited counsel to amend and/or refile the appeal and suggested that "the winning candidate," John Petewon, be supplied with a copy of the appeal as well so that he would have an opportunity to respond. The Director did not inform the appellant that the election had been certified. A "First Amended Notice of Appeal" was filed on March 23, 1995 [hereinafter Petition]. The appellant's petition requested that the Director "state in writing why each and every one of the approximately 160 absentee ballots was rejected." Petition at 4. On March 29, 1995, the Director gave John Petewon a copy of the appeal and informed him that he had a week to respond if he wished. It does not appear that anything was filed on his behalf.

On April 13, 1995, the Director denied the appeal and issued an opinion. The Director's decision listed the six different circumstances under which section 705(2) of Title 9 authorized rejection of absentee ballots and stated, "These were the very reasons the commissioner rejected the 169 absentee ballots." Decision of National Election Director at 4 (Apr. 13, 1995). Mr. Wiliander received a copy of the denial on April 15, 1995. He then filed an appeal from the National Election Director's decision with the appellate division of the FSM Supreme Court on April 20, 1995.

The parties agreed upon what would constitute the record on appeal, and an accelerated briefing schedule was set. Provided as a part of the record was the Director's affidavit of April 27, 1995, in which he avers that 89 (of the 169) ballots were rejected because the signatures did not correspond and that the other 80 were rejected for various other "reasons including insufficient information on the affidavit, lack of proper execution, multiple requests without explanation and/or failure to request absentee ballot." Aff. Max Mallarme, National Election Director para. 15 (Apr. 27, 1995). The Director maintained that this authority to reject absentee ballots derives from 9 F.S.M.C. 705(2).

III. Filing Time Frames

The Director's argument before us is that the petition was time barred - filed too late. The relevant statute reads:

Section 902. Filing Timeframes. A petition for a recount must be filed within 1 week of certification of the results of the election. Any other petition challenging the acceptablitiy of a vote or votes must be filed prior to certification of the results of the election or within 1 week of the election, whichever occurs first. The winning candidate shall have 1 week to respond to the petition. The National Election Director shall then have 10 days to decide whether to approve the petition. If the National Election Director decides not to approve the petition, he shall record the reasons for such decision.

Pub. L. No. 8-97, § 26 (8th Cong., 3d Reg. Sess. 1994) (to be codified at 9 F.S.M.C. 902).

A. "Acceptability of a Vote" Time Frame

The appellant's petition was filed with the Director pursuant to section 902, and is not a petition for a recount. "Any other petition [not for recount] challenging the acceptablitiy of a vote or votes must be filed prior to certification of the results of the election or within 1 week of the election, whichever occurs first." Id. No petition was filed within one week of the election.

Such a filing actually would have been impossible in this case because of the failure of the election officials to begin to process the absentee ballots received for the Faichuk Congressional District until nine days after the election.

Upon the receipt of the envelope marked 'Absentee ballot enclosed' within the period prescribed in section 704 of this title from any person voting under the provisions of this title, the national election commissioner, or his appointee, shall open it, remove the ballot envelope, and examine the statement as to its proper execution, the person's qualifications to register as an elector, and to vote. If the national election commissioner determines that the person is qualified to vote by absentee ballot, the ballot envelope shall be deposited unopened in a container retained for that purpose. . . . The national election commissioner or his appointee shall safely keep each container in his office until the day of the election and at such time he shall publicly open the container, extract and segregate the ballot envelopes and deliver such envelopes to the counting and tabulating committee.

Id. § 18(1) (to be codified at 9 F.S.M.C. 705(1)). The Code requires that this examination process to be done when the ballots are received, and before Election Day, or on Election Day if the absentee ballot is received before the close of the polls that day.

If these 169 absentee ballots had been rejected upon receipt then the appellant would have had ample opportunity to file his petition within one week of the election, or before certification, whichever came first, as required. In this case, however, these absentee ballots were not processed and rejected until March 16th and 17th, nine and ten days after Election Day. Aff. Max Mallarme, National Election Director paras. 13, 14 (Apr. 27, 1995); Aff. Herry Silo, Election Coordinator and Advisor to Chuuk Election Board para. 4 (Apr. 27, 1995); Decision of National Election Director at 1-2 (Apr. 13, 1995). By statute, March 14th (one week after the election) would have been the last day for Mr. Wiliander to appeal the rejection of the absentee ballots (assuming no certification by then). But that was two days before they were rejected. If the appellant is not to be denied his right to contest the rejection of those ballots, the petition, we believe, could have been filed before certification, March 20th, at the latest, and be considered timely. Otherwise, the election officials' failure to comply with the statute would deny Mr. Wiliander his right to due process. The statute contemplates a pre-certification petition because it states that the court's action in appeals "affecting the acceptability of a vote or votes . . . shall not halt or delay balloting or counting and tabulating." Pub. L. No. 8-97, § 27(2) (8th Cong., 3d Reg. Sess. 1994) (to be codified at 9 F.S.M.C. 903(2)).

The appellant knew of the rejected ballots on March 17. He also knew that the final results of the election would be available as soon as the valid absentee ballots were tabulated and counted on March 17. As it turned out (because the appellant did not know in advance when certification would occur), the appellant had the 18th, 19th and before certification on the 20th to file the petition. While this is a short time within which he could have petitioned, so is the time frame established by statute. A candidate must be vigilant in asserting his rights to petition.

B. Equitable Estoppel

The appellant argues that the petition of March 21st should be allowed as timely on a theory of equitable estoppel, that is, because the Director did not inform the appellant of the March 20th certification, and did not in his written decision, or in his letter of March 22nd, reject the petition on the grounds that it was untimely, the Director is now estopped from making that argument.

Under the doctrine of equitable estoppel, or estoppel in pais, a person may sometimes be precluded by his act or conduct, or silence when he has a duty to speak, from asserting a right which he otherwise would have had. However, this equitable doctrine applies only when justice demands intervention on behalf of a person misled by the conduct of the party estopped.

Etpison v. Perman, 1 FSM Intrm. 405, 417 (Pon. 1984). The appellant, in asserting estoppel, emphasizes that the Director never informed him of the certification on the 20th, that later communications from the Director were without any claim of untimeliness, and that only on appeal to this court does the Director claim untimeliness.

In finding untimeliness, we first consider whether the appellant filed before certification. He did not. We next consider whether the Director, who did not inform the appellant of certification, caused the appellant to be untimely in filing his petition March 21st. The appellant does not claim any action or inaction of the Director caused him to delay his filing to the 21st. We see no action, or words, or silence of the Director prior to the appellant's initial petition of March 21st which misled the appellant and that would give rise to an estoppel. We so hold.

C. Timeliness of the Director's Decision

We expressed concern during oral argument concerning the validity (timeliness) of the Director's decision. We need not resolve the matter now, but outline the problem as we see it. After a petition challenging the acceptability of a vote or votes is filed, the winning candidate has one week to respond, and the Director then has ten days to decide whether to approve the petition. Pub. L. No. 8-97, § 26 (8th Cong., 3d Reg. Sess. 1994) (to be codified at 9 F.S.M.C. 902).

The petition was filed March 21st and adding one week, then ten days, yields April 7th as the deadline (assuming that each party acts only on the last possible day) the Director could decide. The Director's decision of April 13th was thus out of time.

Deadlines set by statute are generally jurisdictional, that is, if the deadline has not been strictly complied with the adjudicator is without jurisdiction over the matter once the deadline has passed. We believe the holding in Charley v. Cornelius, 5 FSM Intrm. 316 (Kos. S. Ct. Tr. 1992) expresses the concept well. "[B]ecause a statutory time requirement is established by another branch of government, courts generally consider themselves without jurisdiction to hear an appeal authorized by statute unless the appeal is filed within the time prescribed by statute." Id. at 318. This applies equally to the National Election Director as a member of an administrative agency (executive branch) hearing an appeal as it does to a court hearing an appeal from an administrative agency. The statute does not authorize the Director to extend the time deadlines set by Congress. See Pub. L. No. 8-97, § 5 (8th Cong., 3d Reg. Sess. 1994) (to be codified at 9 F.S.M.C. 302) (National Election Director's duties). The National Election Director's failure to render his decision within the statutorily-prescribed time limit must be considered a denial of the petition. When the Director had not issued a decision by April 7, 1995, the petitioner, considering his petition denied, could then have filed his appeal in the Supreme Court as late as April 12, 1995.

Thus the facts of this case raise the question of the Director's jurisdiction to issue a decision on April 13th. Because the initial petition was untimely filed, the question will not be decided by us here.

IV. Merits of the Appeal

The appellant urges that we apply equitable estoppel so as to reach the merits of his appeal. The Director is not estopped from asserting on appeal the issue of timeliness of the appellant's initial petition. The appellant's arguments, however, fail on the merits.

A. Appellant's Position

The appellant's only argument on the merits is that absentee ballots should not have been rejected on the ground that the signature on the affidavit did not correspond with the signature on the voter's request for an absentee ballot. The appellant contends that since the word "signature" is mentioned in only one other place in the Election Code, the section concerning voter registration, that the only signature that the affidavit signature can be compared with to determine if it corresponds is the voter's signature on the voter registration form. He further contends that the statute does not require a signature on the request for an absentee ballot. In his petition to the Director and in his brief before us the appellant's argument emphasized that under Chuukese custom a family head may sign legal documents for family members. For that proposition he relied on O'Sonis v. Truk, 3 FSM Intrm. 516 (Truk S. Ct. Tr. 1988). At oral argument he contended that this was only one example of why the signature on the request should not be relied upon, and emphasized his point that comparison with the request signature was unauthorized by statute. It is on this ground that he requests the court to order the election certification vacated and the improperly rejected ballots counted and the new results certified.

B. Analysis

The Election Code requires the applicant's signature on the voter registration form. 9 F.S.M.C. §§ 504, 508. A registered voter seeking to vote absentee must "request the national election commissioner in writing," and include his election precinct, district, reason for absence, address to which the ballot is to be sent, and information showing "the establishment of his right to a ballot." Pub. L. No. 5-70, § 13(2) (5th Cong., 3d Spec. Sess. 1988) (to be codified at 9 F.S.M.C. 703(2)).

Each absentee ballot contains an affidavit or statement which must be executed and returned with the ballot. Pub. L. No. 8-97, § 17(1) (8th Cong., 3d Reg. Sess. 1994) (to be codified at 9 F.S.M.C. 704(1)). A timely received absentee ballot may be rejected if the accompanying statement is insufficient, the signatures do not correspond, the procedure for marking and returning the absentee ballot has not been complied with, the voter is not a qualified elector, or the ballot envelope has been tampered with. Id. § 18(2) (to be codified at 9 F.S.M.C. 705(2)).

The appellant argues that comparing the signature on the accompanying statement to the signature on the request for an absentee ballot rather than to the signature in the voter registration records, and then rejecting the ballot when the signatures did not correspond is improper. He contends that the Director's actions are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or are in excess of his statutory jurisdiction, authority or limitations, or is a denial of the appellant's legal rights.

One of the Director's duties is "to implement rules and regulations for absentee ballots." Id. § 5(7) (to be codified at 9 F.S.M.C. 302(7)). Pursuant to this duty the Director prescribed a form to be used to request absentee ballots. Aff. Max Mallarme, National Election Director para. 4 (Apr. 27, 1995). The form requires a signature. Id. Ex. 1. The Emergency Regulations adopted by the President provide that:

Absentee voters residing in countries where FSM Consulate Offices and Embassies are located can visit the office in their area and pick up an application requesting an absentee ballot, fill it out and sent [sic] it to the National Election Commissioner of their State, or write a letter to the National Election Commissioner of their State. . . . .

Emergency Regulations to Implement Provisions of the National Election Code pt. 3.1 (Feb. 21, 1995). These 169 ballots are allegedly from Faichuk voters on Guam. An FSM Consulate is present on Guam. Voters on Guam therefore could either use a form that requires their signature in order to request an absentee ballot, or write a letter to their state's National Election Commissioner including the necessary information. Id. In the normal course of events we think it would be unusual for a written request for anything to be unsigned. An ordinary person would normally expect any letter to be signed by its sender, and that that signature would be compared with the voter's signature in the voter registration records. We see no reason why any other expectation should be read into the regulation. An ordinary person would normally expect that a written request would be signed by the requester, and that in the case of a request for an absentee ballot the signature might be compared with the voter's signature in the voter registration records. There certainly is no suggestion in the Code that a request for an absentee ballot could be signed by one other than the requester.

The parties acknowledge that Congress intended that the formalities involved in the absentee election process safeguard the electoral process from voter fraud. While the Emergency Regulations were rather tardily promulgated, we find them to be a reasonable exercise of the Director's authority and consistent with the provisions of the National Election Code.

We do not find persuasive the appellant's argument concerning an alleged custom whereby a family head may sign a family member's absentee ballot request. The Truk State Court trial division's holding in O'Sonis merely allows one spouse to "prosecute or defend a civil action in which one or both spouses may be a party." O'Sonis, 3 FSM Intrm. at 518. Even if, as a general proposition, in Chuukese society the head of the household is responsible for taking care of the family's legal matters, such as signing legal documents, that holding in a state court trial case cannot extend to personal political rights created solely by national law. Since the right to vote is personal - one person's vote cannot be cast by another - one person's request to vote absentee cannot be made by another. Therefore, like other cases involving transactions or behavior that are distinctly non-customary and nonlocal, local custom is inapplicable. See, e.g., Wito Clan v. United Church of Christ, 6 FSM Intrm. 129, 132 (discussion of application of custom to legal problems), reh'g denied, 6 FSM Intrm. 291 (App. 1993). Absent any indication to the contrary we must presume that Congress intended that the National Election Code be applied uniformly throughout the nation.

We therefore conclude that comparison of the signatures on a request to vote absentee and on the affidavit accompanying an absentee ballot is a reasonable precaution against voter fraud and within the authority of the National Election Director to require.

V. Conclusion

At oral argument the parties emphasized Congress's intent that the election appeal process be timely and expeditious. This is especially important in a year in which the newly elected Congress selects the President and Vice President of the nation from among its members. Olter v. National Election Comm'r, 3 FSM Intrm. 123, 128 (App. 1987). About two months separates the election and the first meeting of the new Congress. See 9 F.S.M.C. 104 (elections in each odd-numbered year on first Tuesday after the first Monday in March); Pub. L. No. 5-47, § 1 (5th Cong., 3d Reg. Sess. 1988) (to be codified at 3 F.S.M.C. 201) (first regular session of Congress starts second Monday in May). The statute contemplates that the appeal process will be completed before then.

Unfortunately in this case, this expeditious process was severely hampered by the tardy actions of the National Election Director and other election officials. First, contrary to law, the absentee ballots were not processed when received on or before Election Day. Instead they were processed nine days after the election. Second, there was a three-day delay in certification of the election. Third, there was delay caused by the Director's concern over being addressed by the proper title. Fourth, the Director extended the time deadline authorized by Congressional statute within which he was to render his decision. Fifth, the Director's decision was vague about the reasons the ballots were rejected, and did not then state that only 89 of the 169 were rejected for signatures that did not correspond. Sixth, instead of serving the appellant's attorney with his decision the same day, the decision was delivered to the appellant two days later.

The cumulative effect of all these tardy actions brought this appeal before the court at a much later date than any election appeal should. Nevertheless we have managed to address this appeal with dispatch. We might not always be so fortunate if all appeals are so tardily brought, particularly if there were to be more than one race in which an aggrieved candidate had appealed.

We accordingly concluded that the appellant's original petition was time barred. Even had the doctrine of equitable estoppel removed the bar the appellant's substantive arguments would have failed on their merits. We therefore dismissed the appeal.

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