THE SUPREME COURT OF THE FEDERATED STATES OF MICRONESIA Cite as Aten v. National Election Commissioner (III) , 6 FSM Intrm.

143 (App. 1993) [6 FSM Intrm. 143]

GERHART ATEN, Appellant, vs. NATIONAL ELECTION COMMISSIONER, CHUUK STATE and KALISTO REFALOPEI as the real party in interest, Appellees.
APPEAL CASE NO. C1-1993 OPINION Submitted: July 12, 1993 Decided: July 29, 1993 BEFORE: Hon. Andon L. Amaraich, Associate Justice, FSM Supreme Court Hon. Richard H. Benson, Associate Justice, FSM Supreme Court Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court APPEARANCES: For the Appellant: Thomas Sterling, Esq. Klemm, Blair, Sterling & Johnson 1008 Pacific News Building 236 Archbishop F.C. Flores Street Agaa, Guam 96910 Douglas J. Juergens, Esq. Chief of Litigation Division Office of the FSM Attorney General P.O. Box PS-105 Palikir, Pohnpei FM 96941 Johnny Meippen, Esq. P.O. Box 705 Weno, Chuuk FM 96942

For the Appellee:

For the Appellee: (Real Party in Interest) [6 FSM Intrm. 144]

COURT'S OPINION RICHARD H. BENSON, Associate Jutice: I. This election contest came before the court on appeal from the decision of the National Election Commissioner pursuant to 9 F.S.M.C. 903. It involves the March 2, 1993 election for the Fourth Congressional District seat in Chuuk. Our order of May 7, 1993 struck thirteen invalid votes at two polling places and ordered a revote for that seat at the Guam polling place. Our memorandum fully setting forth our reasoning followed on May 24, 1993. Aten v. National Election Comm'r (II), 6 FSM Intrm. 74 (App. 1993). On May 11, 1993 Congress seated Kalisto Refalopei, the Real Party in Interest in this matter, along with the other newly elected members of the Eighth Congress. On June 22, 1993, appellant Gerhart Aten filed an application for an order to show cause why the National Election Commissioner should not be held in contempt for failure to hold the revote at the Guam polling place as ordered. On June 24, we invited the appellant to submit a memorandum of points and authorities concerning our continued jurisdiction in this matter in light of Congress's seating of his opponent and the relevant constitutional and statutory provisions. His memorandum was filed on July 2, 1993. The National Election Commissioner's response and the Real Party in Interest's response were filed July 7 and 12 respectively. For the reasons set out below we conclude that this matter is now nonjusticiable and the appeal is therefore dismissed. [6 FSM Intrm. 145] II. REASONING Our Constitution states that "Congress shall be the sole judge of the elections and qualifications of its members." FSM Const. art. IX, 17(a). (A similar provision appears in 9 F.S.M.C. 203.) The Constitution also states that this court has original jurisdiction over cases "arising under" our Constitution and national law. FSM Const. art. XI, 6(b). Since this is a matter of first impression in the Federated States of Micronesia and since these two constitutional provisions were borrowed from the United States Constitution we may look to the U.S. courts for guidance in their interpretation. Tammow v. FSM, 2 FSM Intrm. 53, 56-57 (App. 1985). "Any bar to federal courts reviewing [Congress's decision as to membership] arises from the allocation of powers between the two branches of the Federal government (a question of justiciability), and not from [a] failure to state a claim

based on federal law." Powell v. McCormack, 395 U.S. 486, 514, 89 S. Ct. 1944, 1960, 23 L. Ed. 2d 491, 513 (1969). In the United States, although arising under U.S. law, a political question "is not justiciable in federal court because of the separation of powers provided by the Constitution." Id. at 517, 89 S. Ct. at 1961, 23 L. Ed. 2d at 514. "It is well established that the federal courts will not adjudicate political questions." Id. at 518, 89 S. Ct. at 1962, 23 L. Ed. 2d at 515. Among the formulations describing a political question is a case where there "is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; . . . or the impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government; . . . or the potentiality of embarrassment from multifarious pronouncements by various departments on one question." Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 710, 7 L. Ed. 2d 663, 686 (1962) (quoted in Powell, 395 U.S. at 518-19, 89 S. Ct. at 1962, 23 L. Ed. 2d at 515). Here, there is a textually demonstrable commitment of the issue to a coordinate branch of government. Congress is the "sole judge of the elections . . . of its members." FSM Const. art. IX, 17(a). Therefore "[w]hich candidate is entitled to be seated . . . is, to be sure, a nonjusticiable political question)a question that would not have been the business of th[e] Court even before [Congress] acted." Roudebush v. Hartke, 405 U.S. 15, 19, 92 S. Ct. 804, 807, 31 L. Ed. 2d 1, 8 (1972). Congress's "decisions about . . . who won, are not reviewable in any court." McIntyre v. Fallahay, 766 F.2d 1078, 1081 (7th Cir. 1985).1 The appellant has cited U.S. authorities where courts retained jurisdiction even though the U.S. Congress had seated one of the candidates. E.g., Roudebush v. Hartke, supra; Barry v. United States ex. rel. Cunningham, 279 U.S. 597, 615 n.1, 49 S. Ct. 452, 455 n.1, 73 L. Ed. 867, 872 n.1 (1929). In those instances, however, the U.S. Congress seated the candidate provisionally, pending the outcome of the contest. Our Congress could have chosen to seat one of the candidates conditionally. It did not. Senator Refalopei was seated in the same manner as all the other members. Therefore this matter is now nonjusticiable. [6 FSM Intrm. 146] The appellant asserts that the court may still exercise jurisdiction because he seeks only the revote at the Guam polling place, and not a determination of who Congress should seat. But the only purpose of the revote now would be to intimate how Congress should have decided the seating question even though it has already seated a member unconditionally. Faced with an analogous situation another court stated: "Because the dispute is nonjusticiable, it is inappropriate for a . . . court even to intimate how Congress ought to have decided." McIntyre, 766 F.2d at 1081. This is a salutary principle.

This appeal is accordingly dismissed. *

Footnote: 1. These cases are in harmony with our earlier exercised statutory authority in this matter. Our only authority in election matters is to hear appeals from decisions of the National Election Commissioner regarding the conduct of elections. Our power to grant relief is limited to ordering a recount or a revote. Only Congress can decide who is to be seated.