FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. C3-2009

CHUUK STATE ELECTION COMMISSION, IA UEDA, TRACY SOULENG, and JOE EAS,
Petitioners,

vs.

CHUUK STATE SUPREME COURT APPELLATE DIVISION,
Respondent,

KITELA KITAUO ANIOL,
Respondent.

_______________

ORDER DENYING MOTION TO DISMISS

Decided: November 12, 2009

BEFORE:

Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court

APPEARANCE:

For the Petitioner: Joses R. Gallen, Esq.
(Election Comm'n) Chuuk Attorney General
Office of the Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

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HEADNOTE

Elections; Jurisdiction
 Chuuk Election Code, section 138 clearly contemplates that the FSM Supreme Court appellate division may exercise jurisdiction over a Chuuk state election contest even after the candidates that have been declared the winners have been sworn in. Chuuk State Election Comm'n v. Chuuk State Supreme Court App. Div., 16 FSM Intrm. ---, --- (App. 2009).

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COURT'S OPINION

PER CURIAM:

 On September 7, 2009, petitioner Chuuk State Election Commission filed its motion to dismiss this appeal on the ground that this court lost jurisdiction over this election contest when petitioners Ia Ueda and Tracy Souleng, who had been declared the winning candidates by the election commission took their oath of office and were seated in the Chuuk Legislature. For this proposition the Chuuk State Election Commission relies on Section 131 of the Chuuk Election Code, which reads, "[t]he Appellate Division of the Chuuk State Supreme Court shall . . . decide on the contested election prior to the date upon which the declared winning candidates are to take office. In the case of a contested election of a member-elect of the Senate or House of Representatives, the decision of the specific House concerned shall prevail and is final." Chk. S.L. No. 3-95-03, § 131.

 The court must deny the motion on the ground that it asserts because section 138 of the Chuuk Election Code provides:

 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. During the pendency of proceedings on appeal, and until final determination thereof, the person declared elected by the State Appellate Court shall be entitled to the office in like manner as if no appeal had been taken.

Chk. S.L. No. 3-95-03, § 138. Section 138 clearly contemplated that the FSM Supreme Court appellate division may exercise jurisdiction over a Chuuk state election contest even after the candidates that have been declared the winners have been sworn in.

Accordingly, the motion to dismiss is denied.

If the petitioners now wish not to pursue their appeal and seek to dismiss the matter, they must pursue some other avenue, such as compliance with Appellate Rule 42(b).