AE AE, Jr., Plaintiff,
HOUSE OF RPRESENTATIVES OF AMERICAN SAMOA and MATAGI RAY MAILO McMOORE, SPEAKER
OF THE HOUSE, Defendants.
Court of American Samoa
 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.
 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.
government, like everyone else, is bound by court orders in proceedings to which
it is a party.
 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.
 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.
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.
 The court
has an obligation, however, to review governmental actions or laws that
conflict with, or-are limited by, constitutional provisions.
 The standard
that free speech is not absolute and may, in certain, narrow situations be
regulated, also applies to speech in the legislative process.
 Punishment of a legislator for his legislative
speech rests squarely within the Legislature and is immune from the Court’s
 The court
can review the scope of the Legislature’s punishment because other
constitutional limitations cannot be disregarded.
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.
 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.
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.
 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.
 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
Charles V. Ala’ilirna
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.
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
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
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 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 to be taken up the next
Monday, February 10, 2003.
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.
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 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,
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
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. 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
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.
“[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.
A. Powers at Issue
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
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.
(emphasis added) (quoting Joseph Story, Commentaries on the Constitution of
the United States § 419).
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.
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 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
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.”
112 F.3d at 745 (quoting David S. Bogen, The Origins of Freedom of Speech
and Press, 42 Md. L. Rev. 429,
C. Other Constitutional Restraints
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
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
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
Joseph Story, Commentaries on the
Constitution of the United States, Book III, ch. XII § 835 (emphasis
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.
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
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
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
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
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
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.
 In apparent
contradiction to House Rules which requires a Committee report to be in
writing. House Rules III(4)(A).
 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).
 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.
 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.
 Despite the
fact that the House rules allow for reconsideration of any vote. House Rules IV(7).
 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.,
 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.
 Justice Story’s
treatise may be found on-line at:
 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.