7ASR3d117

Series: 7ASR3d | Year: () | 7ASR3d117
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MUAVAEFA`ATASI

AE AE, Jr., Plaintiff,

 

v.

 

THE

HOUSE OF RPRESENTATIVES OF AMERICAN SAMOA and MATAGI RAY MAILO McMOORE, SPEAKER

OF THE HOUSE, Defendants.

 

High

Court of American Samoa

Trial

Division

 

CA

No. 13-03

 

June

26, 2003

 

 

[1] There is no

jurisdictional bar to claims that suspension of a Fono representative for his

statements: (1) was an unconstitutional restrain on free speech; (2) was an

unconstitutional taking of a property interest; and (3) is null.

 

[2] A court may grant declaratory relief

even though it chooses not to issue an injunction or mandamus.  A declaratory judgment can then be used as a

predicate to further relief, including an injunction.

 

[3] The

government, like everyone else, is bound by court orders in proceedings to which

it is a party.

 

[4] The primary

powers by which legislative bodies preserve their institutional integrity

without compromising the principle that citizens may choose their

representatives are the powers of the House granted in Am. Samoa Rev. Const. art. II § 11: the power to determine

its rules of procedure, punish members for disorderly behavior and, with the

consent of two-thirds of its entire membership, may expel a member, but not a

second time for the same offense.

 

[5] The power

of the legislature to make rules governing its own proceedings would be

nugatory unless it was coupled with a power to punish for disorderly behavior.

 

[6] Normally,

the courts must refrain from prying into matters that admit of legislative

adjudication rather than judicial resolution, such as disputes dealing solely

with internal legislative rules or functions. 

 

[7] The court

has an obligation, however, to review governmental actions or laws that

conflict with, or-are limited by, constitutional provisions. 

[8] The standard

that free speech is not absolute and may, in certain, narrow situations be

regulated, also applies to speech in the legislative process.

 

[9] Punishment of a legislator for his legislative

speech rests squarely within the Legislature and is immune from the Court’s

review.

 

[10] The court

can review the scope of the Legislature’s punishment because other

constitutional limitations cannot be disregarded. 

 

[11] Expulsion

requires a two-thirds vote and such procedure ensures a reflective and

thoughtful decision by the entire legislative body and not just the triumph, on

a whim, of a mere majority. 

 

[12] Long-term suspension contradicts

the purpose and constrictions of the expulsion clause.  It allows a simple majority to effectuate an

end-around assault on the super-majority requirement of Am. Samoa Rev. Const. art. II § 11. 

 

[13] Expulsion

of a senator provides another safeguard to the democratic process by allowing a

vacant position to be filled, thereby extending continuous representation to

the district of the barred representative. 

 

[14] The power

to punish is the primary power by which legislative bodies preserve their

institutional integrity without compromising the principle that citizens may

choose their representatives.

 

[15] The House

failed to comport with due process when it: (1) did not give the legislator

notice of the hearing where the House voted and debated on his conduct; (2)

conducted these meetings in the legislator’s absence; and (3) did not allow him

the opportunity to be heard, call witnesses or cross-examine his accusers. 

 

Before KRUSE, Chief Justice, ATIULAGI,

Associate Judge, and MAMEA, Associate Judge.

 

Counsel: For Plaintiff, Paul F. Miller

For Defendant,

Charles V. Ala’ilirna

 

OPINION

& ORDER

 

In what is perhaps becoming an all too

frequent occurrence, we are called on again to resolve a dispute originating

within the Legislative Branch.  At issue

is the extent of the House of Representatives’ power to punish its own members

and what procedures, if any, they must follow when exacting punishment.

 

I.

FACTUAL BACKGROUND

 

Based on the evidence adduced at trial,

we make the following findings: Plaintiff, Muavaefa`atasi Ae Ae Jr., (“Muavaefa`atasi”)

is the duly elected Representative for House district No. 9, Maoputasi No. 3,

encompassing the village of Pago Pago. 

On Friday, February 7, 2003, the House Committee on Parks and Recreation

met on the House floor to discuses a pending resolution that had been

introduced by Muavaefa`atasi.  The

Committee had “resolve[d] itself into a committee of the Whole,” House Rules

III(2)(C), which allows any representative to sit in on the meeting.  Thus, Muavaefa`atasi, though not a member of

that committee, was in attendance. 

 

The resolution concerned a measure for

sanitary improvements in Pago Park. 

Plaintiff’s concern was the use of the park for a number of public

events, such as cricket games, although lacking in adequate public toilet

facilities in the area.  In attendance,

therefore, at the hearing as witnesses were the Director of Public Works as

well as the Director of Parks and Recreation. 

During the hearing, Muavaefa`atasi became agitated; he felt that other

representatives were using the forum to make derisive remarks about his

village, and hence the dignity of the Maoputasi.  For example, at one point, Muavaefa`atasi had

remarked about people being forced to use the surrounding trees and bushes because

of the lack of public bathrooms.  Representative Fetu Fetui, Jr., (“Fetui”)

seized on that to facetiously ask the Director of Parks and Recreation: “poo

ni tagata soifua, vae ane, tulou le maota, poo ni ta`ifau o fa`atitipa solo (whether

it was people or, with due respect to the dignity of this meeting place, “ta`ifau

(pets or dogs) that were defecating in the park)?”  The director, quite rightly, replied that

that was not part of his department’s duties. 


 

When Muavaefa`atasi was finally given

the opportunity to speak, he attempted to refocus the dialogue.  However, he was repeatedly interrupted by

Representative Atualevao Gafatasi Afalava (“Afalava”).  Muavaefa`atasi had to request the chairman to

direct Afalava to allow him to continue. Even after the chairman had sided with

Muavaefa`atasi`s procedural position and had given the latter leave to continue

with his statement, Afalava was not to be quieted; he continued to interrupt

Muavaefa`atasi.  Whereupon, the chairman,

perhaps in exasperation, ruled: “Afioga Afalava o le a fa`auma.  Muavae, fail sau saunoaga rnulimuli o le a

fauma le tatou iloiloga (Honorable Afalava it is going to be closed.  Muavae, make your final remarks as our

hearing is going to be closed.)” 

Muavaefa`atasi then abruptly concluded his presentation but not without

suggesting to the chairman, “ae sili ona fa`atonu au ta`ifau ia, vae ane le

marnalu Ole Maota, e sill ona salapu le gutu (it would be best if you

instruct your pets or dogs, with due respect to the dignity of this meeting

place, that they should shut their mouths).” 

The audio record then reveals an ensuing heated dialogue between Afalava

and Muavaefa`atasi:

 

Afalava:     Ua tele le le mafaufau o oe.  (You have been very disrespectful.)

Muavae:     Leaga . . . nuu o matou.  Ua te-le lau tala na fai ile matou nu`u.  (Because . . . it is our village.  You have made derogatory statements about our

village.)

Afalava:     Tautala lou gutu, ae te pala`ai. Ua e

iloa.  Tautala lou gutu ae te

pala`ai.  (Your mouth speaks, but you are

cowardly. You know.  Your mouth speaks,

but you are cowardly.)

Muavae:     E te tautala e a?  (Why do you speak at all?)

 

Following an audible suggestion from

somebody that the two ought to take themselves outside, there followed a

clamorous and rowdy exchange, which is largely indecipherable.  Muavaefa`atasi had to be restrained.  Eventually, he left the House floor and went

to his office. 

 

After calm had been restored and after

the chair had excused and apologized to the witnesses, the committee continued

with their meeting and discussed, at the request of Afalava, what had just

transpired.  The committee decided to

report the incident at the next regular session of the House, which was

scheduled for 10:00am that very same morning, along with the recommendation

that Muavaefa`atasi be punished.

 

At the regular session, the committee

chairman made an oral[1] committee report to the

House with the recommendation, “[e] [t]atau ona fa`amalolo sina tasi pe lua

vaiaso ([that Muavaefa`atasi] should be suspended for a week or two.”  The report sparked a debate as to what sort

of discipline should be meted out: the possibilities ranged from forgiveness to

suspension.  The Speaker of the House,

Matagi Ray McMoore (“Matagi”), referred the matter to the House Standing

Committee on Rules and Procedures[2] to be taken up the next

Monday, February 10, 2003.[3] 

 

Two things are particularly significant

about the Friday session.  First,

Muavaefa`atasi himself was not present. 

After the committee meeting, Muavaefa`atasi took some additional time to

collect himself and he did not go to the regular session until the debate

regarding his punishment had ended. 

Thus, Muavaefa`atasi did not have actual notice of the scheduled Rules

Committee meeting for Monday.  Second,

there was never a debate as to whether Muavaefa`atasi had actually violated any

rule or law or whether he was generally disorderly.  Instead, misconduct was presumed and the

discussion simply focused on the extent of the punishment.

 

That Monday, the Rules Committee met

“of the Whole” to discuss Muavaefa`atasi’s fate.  Muavaefa`atasi was not in attendance, as he

was, according to his testimony, feeling ill that day–though it is not clear

that he even knew the meeting was taking place. 

At the hearing, the representatives in attendance discussed the

incident.  The committee voted

unanimously in favor of discipline.  At

that point, the debate turned to whether the punishment should be expulsion or

merely suspension.  The record of the

proceedings revealed that after an inquiry as to applicable law and after the

chairman, Vice Speaker Savali Talavou Ale, had advised that expulsion required

a two-third’s majority, whereas the law was silent on suspension (fa`amalolo),

Afalava moved as follows:

 

Ua le manino i afioga i ali`i

faipule.  O lo`u manatu lea sa avatu pei

ona e maua mai, amata atu nei fa`ato`ā toe fo`i mai le afioga i le ali`i

faipule pe a toe a`e le Fono ia Iulai. 

Leai se totogi, prohibit, `aua ne`i toe sau i totonu o le compound e le

fa`aaoga foi le ofisa.  `Aua ne`i toe sau

i totonu o le ofisa.  O le condition lea

o la`u lafo lea oute avatu.  Fa`afetai.  (It is not

clear to the honorable representatives. 

My opinion previously presented is that it should start now and the

honorable representative can return when the Fono reconvenes in July.  No pay, prohibit, nor may he enter into the

compound to use the office.  He may not

come to the office.  These are the

conditions of my motion I am presenting. 

Thank you.)

 

While Muavaefa`atasi garnered some

support in the form of pleas for leniency, a majority of the committee

eventually voted, nine to two, to adopt Afalava’s motion for suspension until

the July session, including forfeiture of pay, allowances, access to his office

and House grounds. 

 

Later that morning, the House convened

a regular session and took up the disciplinary matter.  A quorum was present.  By motion, the Rules Committee chairman

orally introduced the recommendation[4] of discipline adopted

earlier that morning.  Although

representative Lavea Seali`itu F. Mauga rose in an effort to further address

the issue and invite further reflection, the Speaker summarily called a vote on

the Rules Committee’s recommendation to suspend.  When the vote was called, the recommendation

passed by a vote of eleven to three. 

Eleven comprises a bare majority of the entire House Consisting of 20

voting members and 21 total members.  See

Am. Samoa Rev. Const. art. II,

§ 2.

 

Though it is unclear what sort of

notice is normally required in order to put an item on the day’s agenda, it is

obvious that no advanced notice was given that the suspension vote was going to

take place.  Furthermore, there is no

indication that any representative, at any time, paused to consider that Muavaefa`atasi

was not present at any session or committee meeting in which his suspension was

discussed.  Muavaefa`atasi obviously then

did not have an opportunity to present a defense, call witnesses, or even

speak.

 

Following the session, Matagi wrote a

letter to Muavaefa`atasi advising him of his suspension.  The letter was delivered to Muavaefa`atasi at

his residence later that evening.  For

some reason, Muavaefa`atasi did not read the letter but instead brought it with

him on Tuesday, February 11, 2003.  When

he entered the House floor that morning, Matagi inquired whether Muavaefa`atasi

had read the letter.  Affirming that he

had not, Matagi informed Muavaefa`atasi that the House had voted to suspend

him.  Muavaefa`atasi requested to address

the House but leave was denied him.[5] The Sergeant-at-Arms was

directed to escort Muavaefa`atasi out and prohibit him from even entering his

office.  Not wanting to get the

Sergeant-at-Arms in trouble, Muavaefa`atasai complied.  When he attempted to return to his office later

that week, he found that the locks had been changed.

 

The suspension is still in effect.

Since February 11, 2003, Muavaefa`atasi has not had access to his office, his

supplies, his staff, or the House generally. 

He has nonetheless tried his best to serve his district, doing what he

can outside of the legislative context. 

But, for all intents and purposes, house district No. 9, Maoputasi No.

3, has remained without representation.

 

II.   CLAIMS FOR RELIEF

 

[1]

Muavaefa`atasi urges relief on several grounds. 

He seeks three declaratory judgments: 1) that the House’s conduct is an

unconstitutional restraint on his right of free speech; 2) that the House’s

conduct is an unconstitutional taking of a property interest; and 3) due to the

House’s unconstitutional conduct, the suspension is a nullity and without

authority.  As we understand his second

and third claim, Muavaefa`atasi is challenging whether or not the House

afforded him due process of law by using the procedures, as previously

detailed, in conducting the hearings and by imposing such a severe

sentence.  The defendants seem to agree

with this interpretation.  There is no

question that, with the exceptions discussed below, these three issues are

properly before us, ripe for review, and not barred by any jurisdictional

impairment.  See, e.g.,

Agaoleatu v. Matagi, 7 A.S.R.3d 64, 68 n.3 (Trial Div. 2003) (Court should

not interfere in legislative controversies unless they present conduct

inconsistent with the Constitution); Fa`amausili v. The Senate, 6 A.S.R.3d

259, 263-64 (Trial Div. 2002); Dank v. Benson, 5 P.3d 1088, 1094-96

(Okla. 2000) (Opala, J., concurring) (impairment of a lawmaker’s access to

informed deliberation is justiciable). 

 

Muavaefa`atasi also seeks a writ of mandamus

against Matagi, as Speaker of the House: 1) granting Muavaefa`atasi all the

rights and privileges accorded any representative; and 2) affording him all the

rights and privileges guaranteed by the American Samoa Revised Constitution and

the Constitution of the United States. 

We would be apprehensive to entertain such relief because in so doing,

we would be confronted with constitutional issues concerning separation of

powers, legislative immunity, and the inherent powers of the court.  We think such a discussion is better left for

another day, when it appears wholly necessary. 

 

[2-3] Rather,

“[a] court may grant declaratory relief even though it chooses not to issue an

injunction or mandamus.  A declaratory

judgment can then be used as a predicate to further relief, including an

injunction.”  Powell v. McCormack,

395 U.S. 486, 499 (1969) (citations omitted). 

Therefore, it is sufficient for our purposes here to merely note that

“‘the government, like everyone else, is bound by court orders in proceedings

to which it is a party.’”  Fa`amausili,

6 A.S.R.3d at 265 (quoting Am. Samoa Gov’t v. Satele, 7 A.S.R.2d 154,

156 (Trial Div. 1988)).  “We are

confident that the [House] will abide by our ruling on the counts for

declaratory relief.”  Id.

 

 

III. DISCUSSION

 

A.  Powers at Issue

 

[4-5] Several

constitutional provisions are at the forefront of this case.  The most prevalent is the section granting

the House the power to “determine its rules of procedure, punish members for

disorderly behavior and, with the consent of two-thirds of its entire

membership, may expel a member, but not a second time for the same

offense.”  Am. Samoa Rev. Const. art. II, § 11.  These are the “primary power[s] by which

legislative bodies preserve their ‘institutional integrity’ without

compromising the principle that citizens may choose their

representatives.”  Whitener v.

NcWatters, 112 F.2d 740, 744 (4th Cir. 1997).  Commenting on the Federal counterpart, one

scholar noted:

 

No person can doubt the propriety

of the provision authorizing each house to determine the rules of its own

proceedings.  If the power did not exist,

it would be utterly impracticable to transact the business of the nation,

either at all, or at least with decency, deliberation, and order.  The humblest assembly of men is understood to

possess this power; and it would be absurd to deprive the council of the nation

of a like authority.  But the power to

make rules would be nugatory, unless it was coupled with a power to punish for

disorderly behavior, or disobedience to those rules.

 

Id.

(emphasis added) (quoting Joseph Story, Commentaries on the Constitution of

the United States § 419).

 

[6] We

do not take lightly the structure of the Constitution in creating this purely

legislative prerogative of disciplining its own members.  Normally, the courts must refrain from prying

into matters “that admit of legislative adjudication rather than judicial

resolution.”  Fa`amausili, 6

A.S.R.3d at 264 (quoting Tuitasi v. Lualemaga, 4 A.S.R. 798, 810 (Trial

Div. 1973)).  We should not, for example,

resolve disputes dealing solely with internal legislative rules, see Brown

v. Hansen, 973 F.2d 1118, 1121-22 (3d Cir. 1992), or purely legislative

functions, see Dank, 5 P.3d at 1092.

 

[7] We

have an obligation, however, to review governmental actions or laws that

conflict with, or are limited by, constitutional provisions.  See Fa`amausili, 6 A.S.R.3d at 260

(“We must fulfill our mandate as the arbiter of the law of the land”).  Any legislative act, whether intracameral[6] or not, must comply with

the basic tenets of due process.  See

id. at 271-72; Am. Samoa Rev.

Const. art. I § 2.  Though “due

process is a fluid concept, [and] may have diverse applications in different

situations [it encompasses the] basic principle of fair play.”  Fa`amausili v. The Senate, CA No.

88-02, slip op. at 6 n.3 (Trial Div. Jan. 31, 2003) (Order Denying Motion for

Stay of Execution).

 

B.   Free Speech

 

[8-9]

Muavaefa`atasi’s first argument is that the House’s actions violated his right

of free speech as protected by Am. Samoa

Rev. Const. art. I, § 1 and U.S. Const.

amend. I.  We disagree.  Free speech is not absolute; it may, in

certain, narrow situations be regulated.  See Konigsberg v. State Bar of Calif., 366

U.S. 36, 49-51 (1961).  Legislative

speech is no different.  The Constitution

provides that “[n]o member of the Legislature shall be held to answer before

any tribunal other than the Legislature itself for any speech or debate

in the Legislature.”  Am. Samoa Rev. Const. art. II, § 12

(emphasis added).  This provision, on the

one hand, protects legislators from having to defend their decisions,

arguments, or conduct–i.e, speech–outside of the Legislature (even against

suits by other legislators).  See

McGovern v. Martz, 182 F. Supp. 343, 346 (D.D.C. 1950).  On the other hand, this provision is “an

assertion of the legislature’s exclusive jurisdiction to punish speeches

made in the course of legislative business.” 

Whitener, 112 F.3d at 745 (emphasis in original).  It reflects a conscious balance struck by the

framers of the Territory’s Constitution. 

Thus, whether to punish a sitting legislator for his legislative speech

rests squarely with the Legislature and is immune from our review.  Contrast Bond v. Floyd, 385 U.S. 116

(1966) (Congress cannot exclude a duly qualified member-elect from being

seated on account of his political views).

 

Furthermore, assuming we could question

the Legislature’s decision, Muavaefa`atasi has not shown why his speech in this

situation should be protected. 

 

[Muavaefa`atasi] was disciplined

for his lack of decorum, not for expressing his view on policy.  We cannot conclude that the   [House] was without power to regulate uncivil

behavior . . . .  Indeed “[t]he greatest

concern over speech within a deliberative body is that members might engage in

personal invective or other offensive remarks that would unleash personal

hostility and frustrate deliberative consideration.”

 

Whitener,

112 F.3d at 745 (quoting David S. Bogen, The Origins of Freedom of Speech

and Press, 42 Md. L. Rev. 429,

436 (1963)).

 

C.   Other Constitutional Restraints

 

[10] We

do not have the power to review whether it was proper for the House to punish

Muavaefa`atasi for what he said; indeed, as noted, such power is specifically

enshrined in the legislative branch.  But

whether to punish is not the same as how, and to what extent, the Legislature

can punish.  The Legislature cannot cloak

itself in the punishment clause, art. II, § 11, and disregard other constitutional

limitations.  Accordingly, we will not

turn a blind eye to the utter lack of fairness that has cast a shadow of doubt

over Muavaefa`atasi’s suspension and left his constituents without

representation.

 

      i.    Expulsion

or Suspension

 

The House claims that it expressed

restraint by suspending Muavaefa`atasi as opposed to expelling him.  Nothing could be further from reality.  Granted, by definition, Muavaefa`atasi is

merely suspended, i.e., barred for a period of time, and not expelled, i.e.,

barred permanently.  In this case, from

Muavaefa`atasi’s standpoint, this is a distinction without a difference:

because of his complete ban on taking part in any legislative process or using

any House resources, for all intents and purposes, he has been expelled.  See Dank, 5 P.2d at 1096 (Opala, J.,

concurring) (arguing that prohibition on informed deliberation is akin to pro

tanto expulsion).[7]

 

[11] Expulsion

for a very good reason requires a super-majority vote.  Am.

Samoa Rev. Const. art. II, § 11 (two thirds vote).  This procedure ensures a reflective and

thoughtful decision by the entire legislative body and not just the triumph, on

a whim, of a mere majority.  Once again,

commenting on the federal counterpart, one scholar noted:

 

And as a member might be so lost

to all sense of dignity and duty, as to disgrace the house by the grossness of

his conduct, or interrupt its deliberations by perpetual violence or clamor,

the power to expel for very aggravated misconduct was also indispensable, not

as a common, but as an ultimate redress for the grievance.  But such a power, so summary, and at the same

time so subversive of the rights of the people, it was foreseen, might be

exerted for mere purposes of faction or party, to remove a patriot, or to aid a

corrupt measure; and it has therefore been wisely guarded by the restriction,

that there shall be a concurrence of two thirds of the members, to justify an

expulsion.

 

Joseph Story, Commentaries on the

Constitution of the United States, Book III, ch. XII § 835 (emphasis

added).[8]

 

[12] Therefore,

a suspension of Muavaefa`atasi’s magnitude, contradicts the purpose and

constrictions of the expulsion clause. 

It allows a simple majority to effectuate an end-around assault on the

super-majority requirement of art. II, § 11. 

See supra note 7.

 

[13] Expulsion

provides another safeguard to democratic values: it allows for the vacant

position to be filled by the affected constituents thereby extending continuous

representation to the district of the barred representative.  Am.

Samoa Rev. Const. art. II, § 13. 

Muavaefa`atasi has been completely prohibited from participating in the

legislative process–he could introduce no bills and could not vote on any

pending ones, he has been locked out of his office, and he has been banned from

using any House resources.  Had he been

properly expelled, these consequences would have naturally befallen him.  His constituents, however, would have been

allowed to elect a new representative to fill the vacancy.

 

Perhaps the biggest losers in this

controversy are the constituents of District No. 9, for they have now gone

almost six months without a voice in the House of Representatives.  See Agaoleatu, 7 A.S.R.3d at

66-67  (stating that the people of

American Samoa “are the true beneficiaries of the Government’s operations”); Ammond

v. McGahn, 390 F. Supp. 655, 660 (D.N.J. 1975) (“The action by the

[legislative body] in denying a Senator . . . the opportunity to attend its

deliberations deprived her constituents of the Equal Protections of the law”); Dank,

5 P.3d at 1096 (Opala, J., concurring). 

In American Samoa, where only one legislative chamber is chosen by

popular vote, representation in the House is the singular method of securing a

voice for the voters in the political process. 

Thus, Muavaefa`atasi’s suspension is in a way more pernicious than a

constitutional expulsion.

 

[14] We

reiterate that the power to punish is the “primary power by which legislative

bodies preserve their ‘institutional integrity’ without compromising the

principle that citizens may choose their representatives.”  Whitener, 112 F. 2d at 744 (emphasis

added).  The House’s actions have

compromised that principle.  See supra

note 7.

 

This is not to say, however, that a

member could never be removed from the House for disorderly conduct.  The legislative leadership needs the power to

maintain order in its proceedings, just as a court needs authority to maintain

order in its proceedings.  But the power

to remove a representative should only be exercised to the extent necessary to

restore order in the House’s proceedings.  See, e.g., House Rule II(2)(C) (if

a member “persists in his disorderly conduct he shall not be permitted to take

his seat during the remainder of the day’s session except upon satisfactorily [sic]

pledge given by him to the House for future good behavior”); Whitener,

112 F.3d at 741 (board member censured for one year and removed from standing

committees); Gewertz v. Jackman, 467 F. Supp. 1047, 1054 (D.N.J. 1979)

(Assemblyman removed from appropriations committee).  Otherwise, the unbridled power to suspend can

be always be used by a bare majority for purposes of affecting floor votes on

any issue and thereby affect a legislative agenda, but such would be the

antithesis of representative government.

 

ii.   Due Process

 

[15] Not

only did the House fail to comply with the two-thirds requirement for

expulsion, it failed to comport with due process.  It is evident that Muavaefa`atasi was not given

notice of the four different times when the House, either in committee or in

regular session, debated and voted on his conduct and punishment.  And, in his absence, the House conducted

these meetings without affording Muavaefa`atasi the opportunity to be heard: to

address the other Representatives, to possibly call witnesses on his behalf, or

to cross-examine those that testified against him.  These minimal standards are the cornerstone

of due process.  See Fa`amausili,

6 A.S.R.3d at 272; Ferstle v. Am. Samoa Gov’t, 7 A.S.R.2d 26, 49 (Trial

Div. 1988); Cf. Rideau v. Louisiana, 373 U.S. 723, 726 (1963).  “The opportunity to be heard is an

opportunity which must be granted at a meaningful time and in a meaningful

manner.”  Fa`amausili, 6 A.S.R.3d

at 272 (citing Powell, 395 U.S at 510 n.30); Ferstle, 7 A.S.R.2d

at 49 (quoting Matthews v. Eldridge, 424 U.S. 319, 333 (1976)). 

 

We can only speculate as to what would

have happened had Muavaefa`atasi been in attendance at any of these

hearings.  But given the serious nature

of the punishment, the House had a duty to postpone debate until Muavaefa`atasi

had notice or was present, even if his absence was unexcused.  As the evidence clearly shows, Muavaefa`atasi

was not afforded a meaningful opportunity to be heard and present a defense

either going to the merits of the charge against him or in mitigation of

punishment.  His offending comment was in

essence taken out of its context and placed before the House in a conclusory

fashion.  Had Muavaefa`atasi been afforded

the opportunity to be heard, his testimony could have been especially

beneficial to those members who were not present at the time of the incident

complained of.  For instance, it was

quite clear from the record of the various proceedings that the severity of the

punishment meted out was in part premised on the perception that

Muavaefa`atasi’s reference to ta’ifau was in fact a reference to all House

members.  But then Muavaefa`atasi was not

allowed the opportunity to place before the House membership the distasteful

innuendos his own interpretations of the language used by others at the time,

such as Fetui’s pregnant question to the Director of Parks and Recreation for

evidence as to defecating people or dogs in the vicinity, coupled with

representative Afalava’s determined attempts to interrupt him on the floor.

 

Moreover, the disciplinary proceedings,

as they unfolded, basically revealed that in Muavaefa`atasi’s absence, the

primary target of his verbal assault, Afalava, actively participated throughout

these disciplinary proceedings not only in the roles of instigator and

complainant, but that of being part of the prosecution team, being a part of

the fact-finding body, and being a part of the judicial and sentencing body.  It goes without saying that this sort of

scenario is totally at odds with our notions of due process and basic fair

play. 

 

Finally, the House consistently

violated its own internal rules including denying Muavaefa`atasi the right to

speak when he was finally informed of his suspension.  Standing alone, departure from internal rules

is not a denial of due process.  However,

in this case, it evinces a calculated attempt to compromise Muavaefa`atasi’s

procedural due process rights by expediting the process with minimal dissent on

the record.[9]

 

 

IV. CONCLUSION

 

On the foregoing, we conclude and

declare that Muavaefa`atasi’s suspension from the House of Representatives of

the Legislature of American Samoa as of February 10, 2003 is constitutionally

invalid.  Accordingly, we further declare

that Muavaefa`atasi remains a sitting representative for House district No. 9,

Maoputasi No. 3, entitled to all rights and privileges pertaining to his

elected office, including but not limited to voting privileges, full pay and

allowances accruing and unpaid after February 10, 2003. 

 

It is so ordered.

 



[1] In apparent

contradiction to House Rules which requires a Committee report to be in

writing.  House Rules III(4)(A).

[2] The assignment

of this matter to the Rules Committee is curious, given the scope of that

Committee’s jurisdiction.  The Rules

Committee deals with “all proposed amendments to House Rules and adjournment

resolutions.  In addition, the Committee

may provide guidelines for member travel, committee meeting rooms and committee

staff and for the introduction of bills.” 

House Rules III (1)(B)(1).

[3] The House

actually complied with its own internal rules regarding notice.  Committee meetings must be announced “at

least 3 calendar days in advance of the meeting date.”  House Rules III(3)(B).  However, it is unclear whether they also

“include[d] the meeting and agenda in the daily journal,” as further required

by that same rule.

[4] Motions may be

made orally.  House Rules IV(6)(B).  But again, committee reports, including any

findings and recommendations, must be in writing.  House Rules III(4)(A).  This recommendation was not.

[5] Despite the

fact that the House rules allow for reconsideration of any vote.  House Rules IV(7).

[6] The term,

meaning “occurring in and applicable to the internal operations of a

legislative chamber,” is taken from Dank, 5 P.3d at 1094 (Opala, J.,

concurring).

[7] To hold

otherwise would easily allow the House to slide down a slippery slope of

impermissible conduct.  What if, for

example, the House imposed the suspension until the end-of the term?  Or if they suspended a Representative for six

months, but for the six months before his term expired?  By calling it a suspension, the House would

be allowed to expel a member without complying with the constitutional

requirements of expulsion.  Therefore,

the House’s own labels cannot be dispositive of the type of punishment they

have handed down.  Instead, we must look

beyond semantics at the real effect of the punishment.  In this case, even though Muavaefa`atasi is

allowed to return, his suspension has had the same effects as an expulsion.

[8] Justice Story’s

treatise may be found on-line at:

http://www.utulsa.edu/law/classes/rice/Constitutional/Storey/story_hist_const_privilege.html.

[9] The House relies

on Mason’s Manual of Legislative Procedure to fill in the blanks when their own

published rules are wanting.  Perhaps the

Manual should have been consulted in this instance.  Had the House done so, resort may have been

had to Chapter 13, Decorum in Debate, which details how to handle an

episode such as the one that took place and requires, inter alia, the

right to address the body.