[29ASR2d116]
ALAMOANA S. MULITAUAOPELE,
Appellant
v.
ARONA MAIAVA, JR., Acting
Territorial Auditor, and TERRITORIAL AUDIT OFFICE OF THE
High Court of
Appellate Division
AP No. 14-93
[1] Mandamus
will not issue unless (1) the plaintiff has a plain right to have the act
performed; (2) the defendant has a plain duty to perform it; and (3) there is
no other adequate remedy available to the plaintiff.
[2] The writ
of mandamus is one of a number of common-law writs referred to as extraordinary
writs or extraordinary remedies. The
standard for issuance does not change, regardless of what the court calls the
writ.
[3]
Determining whether an act is discretionary is a necessary incident to
determining whether the defendant has a "plain duty" to perform the
act under the second criterion of the three-part test.
[4] An
appellant has the burden of showing that the trial court erred.
[5] The mere
fact that a person has standing to bring an action does not mean that they have
a property interest at stake.[29ASR2d117]
[6] The
requirements for standing are that the plaintiff have suffered an injury in
fact, that the injury be fairly traceable to the challenged action, and that
the injury be fairly redressable by a favorable decision.
[7] Laws
which do not comply with the Constitution will be found to have no application.
Before KRUSE, Chief Justice, ALARCON,* Acting Associate Justice, UNPINGCO,** Acting Associate Justice,
TAUANU`U, Chief Associate Judge, and ATIULAGI, Associate Judge.
Counsel: For
Appellant, Alamoana S. Mulitauaopele, Pro Se
For Appellees, Cheryl A.
Quadlander, Assistant Attorney General
Opinion:
KRUSE,
C.J.:
I. Introduction
On
A. Requirements for the Issuance of a Writ of
Mandamus
[1] Appellant first contends
that the trial court erred in applying the standards for the issuance of a writ
of mandamus. The trial court held that
mandamus will not issue unless "(1) the plaintiff has a plain right to
have the act performed; (2) the defendant has a plain duty to perform it;
[29ASR2d118] and (3) there is no other adequate remedy available to the
plaintiff." Order Den. Pet. for
Writ of Mandamus at 1 (Trial Div. Aug. 2, 1993) (quoting Gifford Pinchot
Alliance v. Butruille, 742 F. Supp. 1077, 1082-83 (D. Ore. 1990). We agree that this is the correct standard,
and it is in accordance with precedent. See,
e.g., Siofele v. Shimasaki, 9 A.S.R.2d 3, 11 (Trial Div. 1988); see
also
He contends, however, that the trial court erred in
considering whether the auditor's duty was "discretionary" or
"nondiscretionary." According
to Appellant, the discretionary nature of a duty should only be considered in
an application for a "Common-Law Writ of Mandamus."
[2] Appellant's argument is
based upon the false assumption that there are two types of mandamus--extraordinary
mandamus and common-law mandamus. No
such distinction exists. The writ of
mandamus is one of a number of common-law writs referred to as extraordinary
writs or extraordinary remedies. See Dan B. Dobbs, Handbook on the Law of Remedies 111-12 (1973). Other extraordinary writs included the writs
of prohibition, habeas corpus, certiorari, and quo warranto.1
[3] Furthermore, determining
whether an act is discretionary is a necessary incident to determining whether
the defendant has a "plain duty" to perform the act under the second
criterion of the three-part test. In
fact, the Gifford Pinchot case discusses ministerial and discretionary
duties in the sentences immediately following the one in which it sets out the
three-part test which the trial court adopted and Appellant has accepted as
correct. See Gifford Pinchot Alliance,
supra at 1083.
For these reasons, Appellant is incorrect when he
claims that the trial court erred by considering the discretionary nature of
the territorial[29ASR2d119] auditor's duty.
This is a necessary part of the determination whether a writ of mandamus
should issue, and the trial court was correct in considering it.
B. Application of the
Three-Part Test
[4] The trial court held that
Appellant did not satisfy the three-part test for issuance of mandamus. On appeal, Appellant has done nothing more
than make a conclusory statement that he has satisfied the three-part
test. See Appellant's
C. Violation of Due Process
Appellant next contends that the trial court erred
in finding that his due process rights had not been violated. The trial court stated that
"[p]rocedural due process constrains government decisions which deprive an
individual of some 'property' or 'liberty' interest. . . . petitioner has
neither shown the existence of a property interest nor that his property has
been taken." Order Den. Mot. for
Recons. at 2 (Trial Div. Aug. 25, 1993).
Appellant claims that his property interest lies in the 2% annual income
tax he pays as an employee of the government.
Appellant's argument is wrongly constructed,
however. He does not challenge the
ability of the Legislature to tax him and spend the money as part of the
general fund. Rather, he challenges the refusal of the territorial
auditor to undertake an audit of the Legislature. It is this governmental action--the refusal
to undertake an audit--in which the Appellant must show a property interest. He has not done this. Regardless of whether the audit is
undertaken, Appellant will continue to be taxed at the same rate. Thus, he has shown no property interest in
the territorial auditor's refusal to audit the legislature.
[5-6] Appellant argues that his
standing to bring suit as a taxpayer necessarily shows that he has a property
interest which has been infringed. This
argument is also misplaced. The mere
fact that a person has standing to bring an action does not mean that they have
a property interest at stake. The
requirements for standing are that the plaintiff have suffered an injury in
fact, that the injury be fairly traceable to the challenged action, and that
the injury be fairly redressable by a favorable decision. Lujan v. Defenders of Wildlife, 504
In seeking mandamus, the injury Appellant is trying
to cure is the failure of the territorial auditor to audit the
legislature. He is not seeking the
return of the property he alleges has been taken--i.e., his income tax. As was stated above, Appellant has shown no
property interest in the audit itself.
There are innumerable cases in which the plaintiff, although having
standing to bring a due process challenge, is ultimately found to have no
property interest. See, e.g., O'Bannon
v. Town Court Nursing Center, 447 U.S. 773 (1980) (holding that nursing
home patients did not have a property interest in receiving care at a
particular facility); Hoopa Valley Tribe v. Christie, 805 F.2d 874, 879
(9th Cir.), modified 812 F.2d 1097 (9th Cir. 1986) (holding that a tribe
had no property interest in the continued operation of a Bureau of Indian
Affairs office on the reservation); Punikaia v. Clark, 720 F.2d 564, 566
(9th Cir. 1983) (holding that unilateral expectation of continued service at a
particular state-operated leprosy hospital did not give rise to a due process
claim).
Thus, the mere fact that Appellant has standing in
this action does not lead to the conclusion that he has been deprived of his
property without due process of law.
D. Constitutionality of the Statute Creating the
Territorial Audit Office
Appellant next contends that A.S.C.A. § 4.0401,
the statute creating the TAO and vesting the director with the discretion
whether to undertake audits, is unconstitutional. His contention is primarily based upon the
mistaken assumption that "it is also the function(s) of the Courts[] to
protect the public it serves[] from bad laws." Appellant's
[7] It is true that laws which
do not comply with the Constitution will be found to have no application. See, e.g, Marbury v. Madison, 5
We see no reason, and Appellant has given us none,
for finding A.S.C.A. § 4.0401 unconstitutional. We agree with the trial court that if
Appellant[29ASR2d121] finds the territorial auditor's discretion offensive, his
recourse is with the Legislature, not with the court.
Thus, Appellant has not shown any error in the trial
court's decision denying his petition for a writ of mandamus. The judgment of the trial court is,
therefore, AFFIRMED.
*********
* Honorable Arthur L. Alarcon, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.
** Honorable John S. Unpingco,
1 These writs were called
"extraordinary" because, unlike other writs, an extraordinary writ
"was not used to originate an action at law or to cause the sale of goods
to pay the judgment, but was in itself a coercive order, even though it issued
out of the law rather than equity court."