9 FSM Intrm.080-081

CHUUK STATE SUPREME COURT

APPELLATE DIVISION

Cite as Chipen v. Election Comm'r of Losap ,

9 FSM Intrm. 80 (Chuuk S. Ct. App. 1999)

[9 FSM Intrm. 80]

TWINIS CHIPEN, as candidate for Mayor, et al.,

Appellants,

vs.

THE ELECTION COMMISSIONER OF

LOSAP MUNICIPALITY et al.,

Appellees.

CIVIL APPEAL CASE NO. 1-99

OPINION

Keske S. Marar

Associate Justice

Decided: March 15, 1999

APPEARANCES:

For the Appellants: Wesley Simina, Esq.

P.O. Box 94

Weno, Chuuk FM 96942

* * * *

HEADNOTE

Appeal and Certiorari ) Stay; Elections

When it appears that there is no provision in the Chuuk Constitution or statutes which guarantees the right to or even permits voting by absentee ballot, the appellants have not shown a likelihood of success on appeal and their request for a stay of a trial court judgment not to deliver Losap municipal absentee ballots to voters outside of Chuuk will be denied. Chipen v. Election Comm'r of Losap, 9 FSM Intrm. 80, 81 (Chk. S. Ct. App. 1999).

* * * *

[9 FSM Intrm. 81]

COURT'S OPINION

KESKE S. MARAR, Associate Justice:

This case comes before the Court on Appellants' motion for stay or injunction pending appeal pursuant to Rule 8, CSSC Rules of Appellate Procedure and Rule 62(c) CSSC Rules of Civil Procedure.

The Appellants' motion is being made to and considered by a single Justice as an exceptional case due to the requirements of time as provided for by Rule 8(a) of the Appellate Rules.

The Appellants seek review of the decision of the Trial Division in denying injunctive relief against the Appellees which would require Appellees to ignore the provisions of Losap Municipal Ordnance No. 08-98 and deliver absentee ballots to voters outside Chuuk State.

The issue addressed by the Trial Division and that which controls in the disposition of Appellants' motion is whether absentee voting and ballots for that purpose can be constitutionally regulated or denied by municipal ordinance?

I have reviewed the decision of the Trial Division and find no error in the conclusions reached therein. Additionally, I find no provision in the Chuuk State Constitution or Statutes which guarantee the right or even permit voting by absentee ballot.

To the contrary, Article XII, § 3 provides authority for the legislature to enact laws for "the protection of voting in the State of Chuuk." And § 4 provides "for the administration of elections in the State of Chuuk." Chk. Const. art. XII (emphasis added). Also, it is clear that any such legislative enactments must yield to the mandates of Article XIII, § 5 of the Constitution, which states: "The powers and functions of a municipality with respect to its local affairs and government are superior to statutory law."

Appellants' contention that Losap Municipal Ordinance No. 08-98 was unconstitutionally enacted is without merit and of no consequence to the issues in this case in that Appellants have shown no right and cite no authority for voting by absentee ballot. The primary burden of Appellants, which they have not met, is a showing that they have a likelihood of success on the merits on appeal.

For the foregoing reasons, the Appellants' motion for Stay or Injunction is due to be denied, and it is so ordered.


	CHUUK STATE SUPREME COURT APPELLATE DIVISION Cite as Chipen v. Election Comm'r of Losap , 9 FSM Intrm. 80 (Chuuk S. Ct. App. 1999) [9 FSM Intrm. 80] TWINIS CHIPEN, as candidate for Mayor, et al., Appellants, vs. THE ELECTION COMMISSIONER OF LOSAP MUNICIPALITY et al., Appellees. CIVIL APPEAL CASE NO. 1-99 OPINION Keske S. Marar Associate Justice Decided: March 15, 1999 APPEARANCES: For the Appellants: Wesley Simina, Esq. P.O. Box 94 Weno, Chuuk FM 96942 * * * * HEADNOTE Appeal and Certiorari ) Stay; Elections When it appears that there is no provision in the Chuuk Constitution or statutes which guarantees the right to or even permits voting by absentee ballot, the appellants have not shown a likelihood of success on appeal and their request for a stay of a trial court judgment not to deliver Losap municipal absentee ballots to voters outside of Chuuk will be denied. Chipen v. Election Comm'r of Losap, 9 FSM Intrm. 80, 81 (Chk. S. Ct. App. 1999). * * * * [9 FSM Intrm. 81] COURT'S OPINION KESKE S. MARAR, Associate Justice: This case comes before the Court on Appellants' motion for stay or injunction pending appeal pursuant to Rule 8, CSSC Rules of Appellate Procedure and Rule 62(c) CSSC Rules of Civil Procedure. The Appellants' motion is being made to and considered by a single Justice as an exceptional case due to the requirements of time as provided for by Rule 8(a) of the Appellate Rules. The Appellants seek review of the decision of the Trial Division in denying injunctive relief against the Appellees which would require Appellees to ignore the provisions of Losap Municipal Ordnance No. 08-98 and deliver absentee ballots to voters outside Chuuk State. The issue addressed by the Trial Division and that which controls in the disposition of Appellants' motion is whether absentee voting and ballots for that purpose can be constitutionally regulated or denied by municipal ordinance? I have reviewed the decision of the Trial Division and find no error in the conclusions reached therein. Additionally, I find no provision in the Chuuk State Constitution or Statutes which guarantee the right or even permit voting by absentee ballot. To the contrary, Article XII, § 3 provides authority for the legislature to enact laws for "the protection of voting in the State of Chuuk." And § 4 provides "for the administration of elections in the State of Chuuk." Chk. Const. art. XII (emphasis added). Also, it is clear that any such legislative enactments must yield to the mandates of Article XIII, § 5 of the Constitution, which states: "The powers and functions of a municipality with respect to its local affairs and government are superior to statutory law." Appellants' contention that Losap Municipal Ordinance No. 08-98 was unconstitutionally enacted is without merit and of no consequence to the issues in this case in that Appellants have shown no right and cite no authority for voting by absentee ballot. The primary burden of Appellants, which they have not met, is a showing that they have a likelihood of success on the merits on appeal. For the foregoing reasons, the Appellants' motion for Stay or Injunction is due to be denied, and it is so ordered.