FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2009-1005

IA UEDA and TRACY SOULENG,
Plaintiffs,

vs.

CHUUK STATE ELECTION COMMISSION, ASSOCIATE JUSTICE MIDASY AISEK, SPECIAL JUSTICE SALOMON SAIMON, SPECIAL JUSTICE GEORGE ISOM, in their individual capacities and as Special Appointed Justices of the Chuuk State Supreme Court, and KITELA ANIOL, as Real Party in Interest,
Defendants.

_______________________

ORDER OF DISMISSAL

Dennis K. Yamase
Associate Justice

Decided: April 15, 2009

APPEARANCE:

 For the Plaintiffs: Johnny Meippen, Esq.
 P.O. Box 705
 Weno, Chuuk FM 96942

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HEADNOTES

Appellate Review  Decisions Reviewable
 Under Chuuk election law, an appeal may be taken to the FSM Supreme Court appellate division from a Chuuk State Supreme Court appellate division decision in an election contest. Ueda v. Chuuk State Election Comm'n, 16 FSM Intrm. 395, 397 (Chk. 2009).

Elections
 When a candidate seeks relief that would result either in him being confirmed the winning candidate or preventing another candidate from such a confirmation or relief could affect an election's outcome, it is an election contest. Ueda v. Chuuk State Election Comm'n, 16 FSM Intrm. 395, 397 (Chk. 2009).

Elections; Jurisdiction
 The FSM Supreme Court trial division lacks jurisdiction over an election contest in a Chuuk state election since jurisdiction over election contests rests purely on statutory and constitutional provisions, and courts otherwise have no inherent power to determine election contests, and since the determination of such contests is a judicial function only when and to the extent that the determination is authorized by statute. Ueda v. Chuuk State Election Comm'n, 16 FSM Intrm. 395, 397 (Chk. 2009).

Constitutional Law; Elections
 The only explicit right to suffrage found in the FSM Constitution is the right to "vote in national elections." So an alleged denial of a right to suffrage in a Chuuk state election would be the denial of a right under the Chuuk Constitution's suffrage provisions, and not a denial of FSM constitutional right to suffrage. Ueda v. Chuuk State Election Comm'n, 16 FSM Intrm. 395, 397 (Chk. 2009).

Elections; Jurisdiction  Arising under National Law
 A claim of denial of the right to suffrage in a state election because no revote was ordered is not a claim arising under the national constitution or law. Ueda v. Chuuk State Election Comm'n, 16 FSM Intrm. 395, 397 (Chk. 2009).

Constitutional Law  Case or Dispute; Jurisdiction
 The FSM Supreme Court's jurisdiction is constitutionally limited to actual cases and disputes thereby precluding it from making pronouncements on hypothetical, abstract, or academic issues or when the matter is moot. Ueda v. Chuuk State Election Comm'n, 16 FSM Intrm. 395, 398 (Chk. 2009).

Constitutional Law  Case or Dispute; Elections; Jurisdiction
 When the constitutional issues the plaintiffs raise are either a part of an election contest over which the court has no jurisdiction or are hypothetical, abstract, or academic, the court lacks jurisdiction over the case. Ueda v. Chuuk State Election Comm'n, 16 FSM Intrm. 395, 398 (Chk. 2009).

Elections; Jurisdiction
 The court lacks subject-matter jurisdiction over a case when, if applied, the general principle that courts should first consider any non-constitutional grounds that might resolve the issue because unnecessary constitutional adjudication ought to be avoided, would unmask the case as an election contest and the matter would accordingly be dismissed. Ueda v. Chuuk State Election Comm'n, 16 FSM Intrm. 395, 398 (Chk. 2009).

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

 On April 2, 2009, the court heard the plaintiffs' motion, joined by the Chuuk State Election Commission, for a temporary restraining order barring the counting of votes cast in Honolulu, Hawaii for the Northern Namoneas district in the March 3, 2009 Chuuk state election before voting was canceled after only 288 out of 1088 voters had voted. The court denied that motion and raised, under Civil Rule 12(h)(3), the matter of the court's jurisdiction over this case's subject matter. [Ueda v. Chuuk State Election Comm'n, 16 FSM Intrm. 392, 394 (Chk. 2009).] On April 7, 2009, the plaintiffs filed their memorandum in support of the court's jurisdiction and opposing dismissal.

 The court concludes that it lacks subject matter jurisdiction over this case and that it is hereby dismissed. The reasons follow.

I.

 In their memorandum, the plaintiffs dispute the court's characterization of this case as an election contest. They contend that this is not an election contest because not all of the relief sought may affect, change, or prevent the change of who the winning Northern Namoneas candidates are.

 The Chuuk State Supreme Court appellate division issued an order requiring a revote in the Honolulu, Hawaii Northern Namoneas voting place for the gubernatorial election to determine which gubernatorial candidates were eligible for the runoff election. But it also ordered, after trial, that the votes cast in Honolulu for the Northern Namoneas representatives in Chuuk House of Representatives be counted, tabulated, and included in the certified results. Both the plaintiffs herein and the Chuuk State Election Commission jointly filed an appeal to the FSM Supreme Court appellate division (docketed as App. No. C3-2009) from that Chuuk State Supreme Court appellate division decision as permitted by section 138 of the Chuuk Election Law. Chk. S.L. No. 3-25-96, § 138 ("Any party aggrieved by the judgment of the Appellate Court may appeal therefrom to the Appellate Division of the FSM Supreme Court, as in other cases of appeal.").

 The plaintiffs contend that they also seek declaratory relief about: 1) whether the decision to count the Northern Namoneas ballots cast in Honolulu for the five representative seats while ordering a revote in that district for the governor's race violated the candidates' FSM Constitutional rights to due process and equal protection of the laws; 2) whether, when an election was canceled after a part was completed, it was a denial of due process and equal protection to give effect to the part completed while refusing to complete the election; and 3) whether it was a denial of the right to suffrage to cancel voting and not afford a replacement. They contend that the determination of these legal issues requires the interpretation of the FSM Constitution and that this is thus clearly a case or dispute arising under the FSM national constitution and laws.

II.

 When a candidate seeks relief that would result either in him being confirmed the "winning candidate" or preventing another candidate from such a confirmation or relief could affect an election's outcome, it is an election contest. See Sipenuk v. FSM Nat'l Election Dir., 15 FSM Intrm. 1, 4 (App. 2007). Since jurisdiction over election contests rests purely on statutory and constitutional provisions, and courts otherwise have no inherent power to determine election contests, Nikichiw v. Petewon, 15 FSM Intrm. 33, 38 (Chk. S. Ct. App. 2007); Sipenuk, 15 FSM Intrm. at 5, and since the determination of such contests is a judicial function only when and to the extent that the determination is authorized by statute, Nikichiw, 15 FSM Intrm. at 38, to the extent that this case is an election contest in a Chuuk state election, this court lacks any jurisdiction.

 Turning to the declaratory relief the plaintiffs seek, which they contend is not necessarily part of an election contest, the issues they raise are all grounds based on rights found in the FSM Declaration of Rights (due process and equal protection) except the "right to suffrage." The only explicit right to suffrage found in the FSM Constitution is the right to "vote in national elections." FSM Const. art. VI, § 1. So any denial of a right to suffrage in a Chuuk state election would be the denial of a right under the Chuuk Constitution's suffrage provisions, Chk. Const. art. XII, and not a denial of FSM constitutional right to suffrage. That claim would thus not be one arising under the national constitution or law.

 But if this case, or some part of this case, is not an election contest that would or could affect an election's outcome, what would be the purpose of seeking a declaratory judgment on the plaintiffs' due process and equal protection claims? It would appear the issues would in that instance only be abstract or academic with no concrete result. The court's jurisdiction is constitutionally limited to actual cases and disputes thereby precluding it from making pronouncements on hypothetical, abstract, or academic issues or when the matter is moot. Fritz v. National Election Dir., 11 FSM Intrm. 442, 444 (App. 2003). The constitutional issues the plaintiffs raise are either a part of an election contest or they are hypothetical, abstract, or academic. Either way, this court lacks jurisdiction over this case.

 Furthermore, the general principle that courts should first consider any non-constitutional grounds that might resolve the issue because unnecessary constitutional adjudication ought to be avoided, Pohnpei v. AHPW, Inc., 14 FSM Intrm. 1, 25-26 (App. 2006); Kosrae v. Langu, 9 FSM Intrm. 243, 251 (App. 1999), would, if applied here, unmask this case as an election contest. Moreover, all the issues raised in this case, constitutional and non-constitutional, are currently before the FSM Supreme Court appellate division in the pending C3-2009 appeal.

III.

 Accordingly, this matter is dismissed for the lack of subject-matter jurisdiction.

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