Kare vs. Commission on Elections

When a mayoral candidate who gathered the highest number of votes is disqualified after the election is held, a permanent vacancy is created, and the vice mayor succeeds to the position; the second placer cannot be declared the winner.

The dispute arose from the May 14, 2001 local elections in Malinao, Albay, where Salvador K. Moll ran for municipal mayor against Avelino Ceriola. After Moll won the election, questions arose regarding his eligibility due to a previous criminal conviction for usurpation of authority under Article 177 of the Revised Penal Code. The central legal issue involved determining the proper remedy when a winning candidate is disqualified post-election—whether to apply the "second placer" rule or the succession rule under the Local Government Code.

• On May 14, 2001, petitioner Salvador K. Moll and private respondent Avelino Ceriola were candidates for mayor of Malinao, Albay.
• Moll obtained the highest number of votes while Ceriola came in second, with a total of nine hundred eighty-seven (987) votes separating the two candidates.
• Petitioner Emiliana Toral Kare was elected vice mayor in the same election.
• On May 18, 2001, Ceriola filed a "Petition to Confirm the Disqualification and/or Ineligibility of Dindo K. Moll," alleging that Moll had been sentenced by final judgment to suffer the penalty of six months of arresto mayor to one year and nine months of prision correccional for the crime of usurpation of authority under Article 177 of the Revised Penal Code.
• The COMELEC First Division dismissed the petition on May 28, 2001.
• Ceriola filed a Motion for Reconsideration with the COMELEC En Banc, which set aside the dismissal on August 31, 2001 and remanded the case to the provincial election supervisor of Albay for hearing and reception of evidence.
• On March 19, 2003, the COMELEC En Banc issued the assailed Resolution disqualifying Moll and proclaiming Ceriola as mayor-elect, ruling that Moll's proclamation was void ab initio and that votes cast for him were stray votes.
• Before Ceriola's actual proclamation, Kare filed a Petition before the Supreme Court with a prayer for a Status Quo Order, which was granted on April 1, 2003.
• Moll was sentenced to suffer the penalty of six months of arresto mayor to one year and nine months of prision correccional for usurpation of authority by a judgment promulgated on May 11, 1999.
• Moll filed a "Motion to Quash the Information" on the day of promulgation, and when denied, filed a Motion for Reconsideration of the denial, but no notice of appeal was filed from the judgment of conviction itself.
• The COMELEC En Banc issued its resolution disqualifying Moll on March 19, 2003, long after the May 14, 2001 election.

• Moll (G.R. No. 157527): He argued that he cannot be disqualified because his judgment of conviction had not yet attained finality. He contended that filing a "Motion for Reconsideration" dated May 28, 1999 within the reglementary period stayed the finality of his conviction. He also claimed that the promulgation of judgment was invalid because it was done in his absence despite his counsel being present.
• Kare (G.R. No. 157526): She sought the nullification of the COMELEC Resolution insofar as it authorized the proclamation of Ceriola as mayor-elect, arguing that the vice mayor should succeed to the office instead of the second placer pursuant to Section 44 of the Local Government Code.

• COMELEC: It argued that Section 211(24) of the Omnibus Election Code constitutes a clear legislative policy allowing the second placer to be proclaimed winner when the winning candidate is disqualified by final judgment of conviction. It maintained that Moll's votes were stray and invalid, and that Ceriola, having obtained the highest number of valid votes after excluding Moll's votes, should be proclaimed mayor.
• Ceriola (Private Respondent): Supported the COMELEC position that as the second placer with the highest number of valid votes (excluding Moll's votes), he should be proclaimed mayor under the exception to the general rule established in Sunga v. Comelec.

• Procedural Issues: N/A
• Substantive Issues:
  • Whether Moll should be disqualified from running and/or holding the position of mayor based on his conviction for usurpation of authority.
  • If Moll is disqualified, who should become the mayor: Ceriola (the second placer) or Kare (the elected vice mayor).

• Procedural: N/A
• Substantive:
  • On Disqualification: The Court ruled that Moll was properly disqualified. The judgment of conviction had become final because no proper appeal was filed within the 15-day period. The Motion to Quash the Information and the Motion for Reconsideration of its denial did not interrupt the period for appeal under Section 6 of Rule 122 of the Rules of Court, as they were directed at matters extraneous to the judgment of conviction rather than the judgment itself. The promulgation of judgment was valid despite Moll's absence because his counsel was present and he received notice. Under Section 40(a) of the Local Government Code, Moll was disqualified from running for any elective local position having been sentenced by final judgment to imprisonment of more than one year.
  • On Succession: The Court ruled that Ceriola cannot be proclaimed as mayor. Section 211(24) of the Omnibus Election Code, read in relation to Section 72 thereof, applies only when the disqualification has been declared final before the election. Since Moll was disqualified only on March 19, 2003 (after the May 14, 2001 election), and the electorate voted for him believing he was qualified, their votes cannot be treated as stray, void, or meaningless. The Court rejected the "second placer" rule, stating that it substitutes the Court's judgment for the mind of the voter and disenfranchises the electorate. Instead, the disqualification of the winning candidate creates a permanent vacancy under Section 44 of the Local Government Code, and the duly elected vice mayor (Kare) succeeds to the office.

• Second Placer Rule — A candidate who placed second in an election cannot be declared the winner simply because the winning candidate was disqualified or declared ineligible after the election. To allow the defeated candidate to take over despite rejection by the electorate is to disenfranchise the voters and undermine democracy. The votes cast for the disqualified candidate are presumed to have been cast with sincere belief in his qualification and cannot be treated as stray if the disqualification was declared after the election.
• Finality of Judgment — A judgment of conviction becomes final after the lapse of the period for perfecting an appeal. The period for appeal is interrupted only by the filing of a motion for reconsideration or new trial directed at the judgment itself, not by motions attacking matters extraneous to the judgment (such as a Motion to Quash the Information).
• Permanent Vacancy — When an elective local official fails to qualify for office due to disqualification, a permanent vacancy arises, and the vice mayor (or vice governor) succeeds to the position pursuant to the Local Government Code.

• "When a mayoral candidate who gathered the highest number of votes is disqualified after the election is held, a permanent vacancy is created, and the vice mayor succeeds to the position."
• "In every election, the choice of the people is the paramount consideration, and their expressed will must at all times be given effect."
• "To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters."
• "To allow the defeated and repudiated candidate to take over the mayoralty despite his rejection by the electorate is to disenfranchise them through no fault on their part, and to undermine the importance and the meaning of democracy and the right of the people to elect officials of their choice."

• Sunga v. Comelec — Distinguished; established that votes cast for a disqualified candidate should not be treated as stray in the absence of a statute asserting a contrary legislative policy, provided the voters believed the candidate was qualified.
• Aquino v. Comelec — Cited for the principle that the second placer cannot be declared winner as it would substitute the Court's judgment for the mind of the voter.
• Codilla Sr. v. De Venecia — Cited for the principle that the choice of the people is the paramount consideration.
• Bautista v. Comelec — Cited regarding the rule that a subsequent finding of ineligibility cannot retroact to the date of election.
• Domino v. Comelec — Cited for the principle that votes cast with sincere belief in the candidate's qualification cannot be treated as stray.
• Loreto v. Brion — Cited regarding the mathematical impossibility of the second placer obtaining majority or plurality when the winner is disqualified.
• Miranda v. Abaya — Cited for the principle that the Court has no authority to compel the people to accept a candidate they rejected.

• Section 40(a) of Republic Act No. 7160 (Local Government Code) — Disqualifies persons sentenced by final judgment for an offense involving moral turpitude or punishable by one year or more of imprisonment, within two years after serving sentence.
• Section 44 of Republic Act No. 7160 (Local Government Code) — Provides for succession by the vice mayor in case of permanent vacancy in the office of the mayor.
• Section 211(24) of Batas Pambansa Blg. 881 (Omnibus Election Code) — Provides that votes cast for a candidate disqualified by final judgment shall be considered stray.
• Section 72 of Batas Pambansa Blg. 881 (Omnibus Election Code), as amended by Republic Act No. 6646 — Provides that if a candidate is not declared by final judgment before an election to be disqualified and receives the winning number of votes, the violation shall not prevent his proclamation; if declared disqualified by final judgment before election, votes cast for him shall not be counted.
• Section 7 of Rule 120 of the 2000 Rules of Criminal Procedure — States that a judgment in a criminal case becomes final after the lapse of the period for perfecting an appeal.
• Section 6 of Rule 122 of the 2000 Rules of Criminal Procedure — States that the period for perfecting an appeal shall be interrupted from the time a motion for new trial or reconsideration is filed until notice of the order overruling the motion is served.
• Section 1 of Rule 117 of the 2000 Rules of Criminal Procedure — States that a motion to quash may be filed by the accused at any time before entering a plea.