FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2009-1002

MOSES NELSON,
Petitioner,

vs.

THE FSM NATIONAL ELECTION DIRECTOR,
Respondent.

_________________________

ORDER DENYING RESTRAINING ORDER AND REQUESTING BRIEFS

Ready E. Johnny
Associate Justice

Hearing: March 13, 2009
Decided: March 16, 2009

APPEARANCES:

For the Petitioner: Marstella Jack, Esq.
P.O. Box 2210
Kolonia, Pohnpei FM 96941

For the Respondent: L.M. Bacalando, Jr., Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

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HEADNOTES

Civil Procedure  Injunctions
 In exercising its broad discretion in considering a motion for a temporary restraining order, the court looks to four factors: 1) the possibility of the irreparable injury to the movant; 2) the balance of the possible injury as between the parties; 3) the movant's possibility of ultimate success on the merits; and 4) the impact upon the public interest. The threat of irreparable harm is a prerequisite to injunctive relief. Nelson v. FSM Nat'l Election Dir., 16 FSM Intrm. 356, 358 (Chk. 2009).

Elections
 A case is an election contest when the relief sought may affect or change who the winning candidate is in an election district and the plaintiff-candidate is thus an election contestant. Nelson v. FSM Nat'l Election Dir., 16 FSM Intrm. 356, 358 (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. Nelson v. FSM Nat'l Election Dir., 16 FSM Intrm. 356, 358 (Chk. 2009).

Civil Procedure  Injunctions; Elections
 When the relief sought is obtainable from the National Election Director before certification since a recount or a revote is a remedy within the National Election Director's power to order during the election contest appeal process, the plaintiff cannot show irreparable harm and his motion for a temporary restraining order may be denied on that ground alone. Nelson v. FSM Nat'l Election Dir., 16 FSM Intrm. 356, 358-59 (Chk. 2009).

Elections
 An election contest appeal must await the National Election Director's certification of the election results and the Director's subsequent denial of the candidate's timely post-certification petition. If the Director's decision on an aggrieved candidate's petition does not adequately address the candidate's concerns, the aggrieved candidate would then have five days from the receipt of the Director's decision to appeal to the FSM Supreme Court appellate division. Nelson v. FSM Nat'l Election Dir., 16 FSM Intrm. 356, 359 (Chk. 2009).

Elections
 When Congress drafted the election statute, it limited court involvement in election contests until after the issues have been narrowed to the certified result and to whether the Director should have granted a candidate's petition contesting the certified result and, if so, what relief was then appropriate. The statute also designates the FSM Supreme Court appellate division as the forum for election contest appeals. Nelson v. FSM Nat'l Election Dir., 16 FSM Intrm. 356, 359 (Chk. 2009).

Constitutional Law  Case or Dispute; Elections
 If Congress seats a candidate unconditionally an election contest becomes a non-justiciable political question. Nelson v. FSM Nat'l Election Dir., 16 FSM Intrm. 356, 359 (Chk. 2009).

Civil Procedure  Joinder, Severance and Misjoinder; Elections
 Any candidate who would be adversely affected by the relief an aggrieved candidate seeks would be an indispensable party to the action and must be joined before a court could grant any relief or a dismissal will ensue. Nelson v. FSM Nat'l Election Dir., 16 FSM Intrm. 356, 359 (Chk. 2009).

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COURT'S OPINION

READY E. JOHNNY, Associate Justice:

 On March 13, 2009, this came before the court for hearing on the petitioner's motion for a temporary restraining order. The respondent appeared telephonically. The motion is denied. The court's reasons follow.

I.

 The petitioner, Moses Nelson, is a candidate for election as congressman from the Chuuk Fifth Congressional Election District (Northwest and Hall Islands). He alleges that certain irregularities took place in reporting the results of two or three polling places that caused inaccurate figures to be included in the final district-wide totals, and that the National Election Commissioner used these inaccurate vote counts to declare another, Tony Otto, the winning candidate. Nelson further alleges that if other figures, which he has reason to believe are accurate, had been included in the final result he would have been declared the winning candidate.

 Nelson seeks a temporary restraining order enjoining the National Election Director from certifying Otto as the winning candidate and a recount or a revote for the polling places affected by the alleged reporting irregularities.

 During the hearing, the Director asserted and Nelson conceded that Nelson had filed a petition, on March 9, 2009, before the Director that the Director had not yet ruled upon. Nelson contended that since there was no agency decision, that is, no decision by the Director, the trial court could restrain the election procedure from going forward and from denying him a seat in Congress. The Director raised two points in opposition: 1) that the courts have no jurisdiction at this point because any resort to the court system is premature since the National Election Director has not rendered a decision on Nelson's petition, and 2) that, in any event, it is the appellate division, not the trial division, that is the proper venue to contest any decision, once issued, by the Director.

II.

 In exercising its broad discretion in considering a motion for a temporary restraining order, the court looks to four factors: 1) the possibility of the irreparable injury to the movant; 2) the balance of the possible injury as between the parties; 3) the movant's possibility of ultimate success on the merits; and 4) the impact upon the public interest. Doone v. National Election Comm'r, 14 FSM Intrm. 489, 492 (Chk. 2006). The threat of irreparable harm is a prerequisite to injunctive relief. Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 332, 334 (App. 1992).

 This case is an election contest since the relief sought may affect or change who the winning candidate is in Election District No. 5 and Nelson is thus an election contestant. 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 relief Nelson seeks is obtainable from the National Election Director before certification. A recount or a revote is a remedy within the National Election Director's power to order during the election contest appeal process. See Asugar v. Edward, 13 FSM Intrm. 209, 212 (Chk. 2005) (court refused to enjoin a revote ordered by Election Director). The election appeal process is available to Nelson and he is apparently also pursuing that avenue. He therefore cannot show irreparable harm. Nelson's motion for a temporary restraining order may be denied on that ground alone.

 Furthermore, an election contest appeal must await the National Election Director's certification of the election results and the Director's subsequent denial of the candidate's timely post-certification petition. Asugar v. Edward, 13 FSM Intrm. 215, 219 (App. 2005). If the Director's decision on an aggrieved candidate's petition does not adequately address the candidate's concerns, the aggrieved candidate would then have five days from the receipt of the Director's decision to appeal to the FSM Supreme Court appellate division. 9 F.S.M.C. 804(2) [formerly 9 F.S.M.C. 903(1)]. When Congress drafted the election statute, it limited court involvement in election contests until after the issues have been narrowed to the certified result and to whether the Director should have granted a candidate's petition contesting the certified result and, if so, what relief was then appropriate. Asugar, 13 FSM Intrm. at 220. The statute further designated the FSM Supreme Court appellate division as the forum for election contest appeals. 9 F.S.M.C. 804(2).

 Nelson expressed his fear that if the court does not interrupt the election machinery now to grant a recount or a revote, the matter will become a political question and the courts will not then be able to right any wrongs. Although it is true that if Congress seats a candidate unconditionally an election contest becomes a non-justiciable political question, the FSM Supreme Court appellate division has never failed to decide an election contest appeal before it by the statutorily-mandated May 11 date for the newly-elected Congress to convene. Sipenuk, 15 FSM Intrm. at 6.

 Furthermore, it would seem that any candidate who would be adversely affected by the relief Nelson seeks would be an indispensable party to this action and must be joined before a court could grant any relief or a dismissal would ensue. See Puchonong v. Chuuk, 14 FSM Intrm. 67, 69 (Chk. 2006). Otto, the real party in interest, has not been joined.

III.

 Accordingly, the motion for a temporary restraining order is denied on the ground that the movant cannot show any irreparable harm since he has not exhausted his administrative remedies in the election process. Since the matter of the court's jurisdiction has been raised over this case's subject matter, either party may, no later than March 26, 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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