Full Opinion

Board of Elections v. Superior Ct., 4 N.M.I. 111 (1994) Commonwealth of the Northern Mariana Islands Board of Elections, Petitioner, v. Superior Court, Respondent, and Lucas L. Mendiola, Vicente Manglona, Vicente M. Atalig, Frances M. Sablan, Efrain M. Atalig, Jovita Taimanao, Abraham R. Taimanao, and Joseph Inos, Real Parties In Interest. Original Action No. 94-002 Order March 18, 1994 Amended April 6, 1994 Counsel for petitioner: James S. Sirok, Saipan. Counsel for real parties in interest Lucas L. M endiola, Vicente M anglona, Vicente M . Atalig, Frances M . Sablan and Efrain M . Atalig: Daniel R. Del Priore, Saipan (Atalig, Del Priore & Gum ataotao). Counsel for real parties in interest Jovita Taimanao, Abraham R. Taimano and Joseph Inos: David A. W iseman, Saipan. BEFO RE: DELA CRUZ, Chief Justice, VILLAGOM EZ, Justice, and M ACK, Special Judge. PER CURIAM : For the second tim e in this case, we are asked to issue a writ of prohibition against the Superior Court, this tim e to prohibit the court from considering, under 1 CM C § 6421(d) of the Northern M ariana Islands Election Act (“Election Act”),1 the Board of Election’s (“BO E” or “petitioner”) “post-election activity, except for the arithm etical tabulation of votes.” 2 For the reasons discussed below, we deny the petition. JURISDICTION & STANDARD FOR ISSUANCE OF A W RIT Our extraordinary writ jurisdiction over the Superior Court stem s from our general supervisory powers.3 A writ of prohibition is a drastic remedy that will not be granted except to confine an inferior court to the 1 1 CMC § 6001 et seq. 2 Petition for W rit of Prohibition at 15. 3 See 1 CMC § 3102(b); Taimanao v. Superior Ct., 4 N.M.I. 94, 96 (1994) (citing Tenorio v. Superior Ct., 1 N.M.I. 1, 7 (1989)). exercise of its prescribed jurisdiction.4 In determ ining whether to issue a writ, we are guided by the five factors set out in Tenorio v. Superior Ct., 1 N.M .I. 1, 9-10 (1989).5 FACTS AND PROCEDURAL BACKGROUND Briefly, this election contest began on January 13, 1994, when the real parties in interest/contestants 6 (“contestants”) filed three separate complaints, which the Superior Court later consolidated. The contestants filed amended com plaints that were stricken as defective by the Superior Court in a decision and order filed February 9, 1994 (“February 9 decision”).7 In the same decision, the court denied a m otion to dism iss for lack of jurisdiction made by the real parties in interest/defendants (“defendants”).8 The defendants then petitioned this Court for a writ of prohibition, which we denied.9 The Superior Court subsequently bifurcated the claims in the election contest proceedings. First, from M arch 7, 1994, to M arch 11, 1994, the court heard the contestants’ evidence on the claim s that (1) BOE received bribes, and (2) BOE was biased against the Republican candidates. On motions of the defendants and the petitioner, the court dismissed these two claim s on M arch 10, 1994, for failure to establish a prim a facie case.10 On M arch 16, 1994, the court filed a mem orandum decision and order (“M arch 16 decision”) discussing these dismissals.11 The second phase of the bifurcated proceeding (yet to take place) relates to the contestants’ remaining claim , that BOE com m itted errors in adjudicating challenges to the qualifications of certain individual voters on Rota. 12 Of approximately 167 voter challenges, BOE denied some of the challenges and sustained the rest. BOE did count all unsuccessfully challenged votes in the final tally. BOE did not count any of the successfully 4 See Taimanao, 4 N.M.I. at 97. 5 Id. (citing Commonwealth v. Superior Ct., 1 N.M.I. 287, 294-95 (1990)). These factors are: 1. The party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief desired; 2. The petitioner will be damaged or prejudiced in a way not correctable on appeal; 3. The lower court’s order is clearly erroneous as a matter of law; 4. The lower court’s order is an oft-repeated error, or manifests a persistent disregard of applicable rules; and 5. The lower court’s order raises new and important problems, or issues of law of first impression. Commonwealth v. Superior Ct., 1 N.M.I. at 294-95 (citing Tenorio, 1 N.M.I. at 6-7). 6 The contestants who remain parties to this action are Lucas Mendiola, Vicente Atalig, Vicente A. Manglona, Frances Sablan, and Efrain Atalig. 7 See Mendiola v. Taimanao, Civ. Nos. 94-0024, 94-0025 & 94-0026 (consol.) (N.M.I. Super. Ct. Feb. 9, 1994) (Decision and Order on Motion to Reject Pleadings and Motion to Dismiss) (“February 9 decision”). 8 These individuals are Jovita Taimanao, Abraham Taimanao and Jose Inos. 9 See Taimanao, 4 N.M.I. at 96. 10 See Mendiola v. Taimanao, Civ. Nos. 94-0024, 94-0025, 94-0026 (consol.) (N.M.I. Super. Ct. Mar. 16, 1994) (Memorandum Decision on Motions to Dismiss; Order for Stay) (“M arch 16 decision”). 11 Id. at 1-20. 12 Id. at 3-4. Board of Elections v. Superior Ct., 4 N.M.I. 111 (1994) challenged votes in the final tally. 13 W hen m embers of BOE were subpoenaed on M arch 7, 1994, to testify at the election contest hearing, BOE moved to quash the subpoenas. The motion is still pending before the trial court. On M arch 8, 1994, BOE was granted perm ission to intervene. On M arch 10, 1994, the petitioner filed this application for a writ to prohibit the Superior Court “from continuing to conduct any further proceedings in these m atters under the broad standard and definition it gave to the term ‘conduct of election,’ as it is set forth in 1 CM C [§] 6421(d), under [sic] its [February 9 decision].” 14 ISSUE The issue we address is whether the Superior Court has jurisdiction under 1 CM C § 6421 of the Election Act to review the challenged votes determ ined to be illegal by BOE, but which contestants assert are legal and should be counted. DISCUSSION The legislature has “conferred jurisdiction on our Superior Court to entertain election contests to ensure fairness in the ‘conduct of elections.’” 15 There is no question that 1 CM C § 6421(c) 16 of the Election Act, by its plain language, provides for judicial review of votes alleged by contestants to be illegal, but adjudged legal by BOE. The question before us is whether the converse is true, i.e., whether 1 CM C § 6421 provides for judicial review of votes alleged by contestants to be legal, but adjudged illegal, and not tallied, by BOE. W e hold that the Superior Court has jurisdiction to review election contests based on claim s that legal votes were not counted. This jurisdiction em anates from 1 CM C § 6421(d), which allows election contests arising from BOE’s actions “in the conduct of election[s].” 17 Any reading to the contrary would “not serve the public policy of providing a means for defeated candidates and other voters to contest the outcom e of an election when they have substantial grounds to believe that that outcom e did not reflect [the] [sic] will of the m ajority of those legally voting.” 18 BOE asserts that 1 CM C § 6421(d) confers jurisdiction on the trial court to review BOE’s post-election activities only with respect to arithm etical tabulations of votes. This reading of the statute would prevent the Superior Court from hearing election contests based on claims that legal votes were not counted. Such a result would clearly frustrate the purpose of the election contest statute. The petitioner has provided us with no authority 13 Id. at 3 (citing Sablan v. Board of Elections, Civ. No. 93-1274 (N.M.I. Super. Ct. Jan. 3, 1994) (Decision and Order on Plaintiff’s Motion for Preliminary Injunction at 2). 14 Petition for W rit of Prohibition at 3. The trial court stayed the proceedings below pending the outcome of this petition. 15 Taimanao, 4 N.M.I. at 97. 16 This provision provides: “Illegal votes were cast. “Illegal votes” means any vote cast by a person who is not qualified to vote because of failure to meet age or residency requirements or has cast more than one ballot in the same election . . . .” 1 CMC § 6421(c). 17 This provision provides, in full: “The Board in the conduct of election or arithmetical tabulation of votes made errors sufficient to change the final result of the election as to any person who has been declared elected.” 1 CMC § 6421(d). 18 See February 9 decision, supra note 7, at 20. in support of its interpretation of the statute. A related concern expressed in BOE’s petition is that the trial court, in the remaining course of the election contest hearing, will som ehow delve “into the elements com prising [BOE’s] decisions on[] each of the voter’s qualifications to vote, on [BOE’s] procedural rulings, and on [BOE’s] ability to regulate the conduct of its m em ber’s [sic] through internal [BOE] rules.” 19 W e find the petitioner’s fears groundless. The harm that the petitioner asserts is speculative. The petitioner moved to quash the subpoenas served on it, but filed this petition before the Superior Court ruled on that motion. W hether the motion is granted is irrelevant, however, because BOE has failed to provide us with any concrete evidence that the trial court will perm it BOE members to be interrogated about their mental processes as they existed during the administrative hearings. The Superior Court’s decisions and orders to date indicate that the court is cognizant of protective m easures such as the “deliberative process privilege.” 20 W e deny the petition for writ of prohibition because BOE has not established cause for issuance of such a writ under any of the five factors specified in Tenorio. 21 The Superior Court has jurisdiction to review the legality of all of the approxim ately 167 challenged votes that were adjudicated by BOE in the 1993 Rota m ayoral and m unicipal council elections, and that are disputed in this action. It is hereby ORDERED that the petition for writ of prohibition is DENIED. 19 Petition for W rit of Prohibition at 13. 20 See, e.g., March 16 decision, supra note 10, at 14-16. 21 Tenorio, 1 N.M.I. at 9-10.