[31 ASR2d 169]
LEASAU L.K. ESEROMA,
Plaintiff
v.
PAOPAO FARESA (
High Court of
Trial Division
CA No. 5-97
February 27, 1997
[1] Though Article II, Section 22 of
the Revised Constitution grants the Senate exclusive authority to determine the
results of an election, the court has jurisdiction to determine whether an
election occurred according to constitutional requirements. Thus, the court examines the narrow
questions of (1) whether an election of senators was held “by the county
councils of the counties they are to represent,” and (2) “in accordance with
Samoan custom.”[31 ASR2d
170]
[2] For anyone from the
[3] Permissible methods of electing
Senators include, but are not limited to “voice vote, written ballot,
computation of number of speakers for each candidate, and consensual
agreement.” Meredith v. Mola, 4 A.S.R. 773, 781 (Trial Div.
1973). Impermissible methods
of electing Senators include, but are not limited to appointment of the Senator
by one powerful matai, and delegation of the decision to a subdivision of
the deliberative body constitutionally assigned the responsibility of electing
senators. Mauga v. Lutu, 10 A.S.R.2d 115, 120 (Trial Div.
1989).
[4]
A decision reached “in accordance with Samoan custom” need not
receive unanimous support.
Before
Counsel:
For Plaintiff, Marshall Ashley
For Defendant Paopao Faresa, Henry W. Kappel, Assistant
Attorney General
For Defendants Lutu Fuimaono and Lefiti
Fa`afetai, Arthur Ripley, Jr.
Opinion and Order:
On
January 9, 1997, plaintiff Leasau L.K. Eseroma ("Lesasau") brought this action
for a declaration that he is the duly elected Senator from Ta`u County and an
injunction enjoining defendants Paopao Faresa ("Paopao"), Lutu Fuimaono
("Fuimaono"), and Lefiti Fa`afetai ("Lefiti") from allowing Lefiti to serve as
the Senator from Ta`u County. On
February 11, 1997, this court, pursuant to T.C.R.C.P. 65(a)(2), consolidated the hearing on Leasau's application for a
temporary injunction with the trial on the merits. The trial began on February 12 and was
completed on February 18, 1997.
Ta`u
County is located on the
Leasau and Lefiti are matai or
"titled chiefs" from Ta`u County and Village. On December 7, 1996, some but not all of
the matai from Ta’u County and Village met in Ta`u Village to discuss the
election of a senator from Ta’u County to the next Senate of the Legislature of
American Samoa for the four-year term from 1997 to 2000. Ta`u County Chief Nua To’atolu (“Nua”)
called the meeting. Lefiti and
other high-ranking matai from Ta’u County and Village were not notified
of the meeting, because Nua believed that the Ta’u County Council had “ousted”
or “ostracized” these matai.
Those matai invited to the December 7 meeting discussed at length
the matter of the Senate election and ultimately agreed to support Leasau's
candidacy.
On
December 14, 1996, the County Councils of Fitiuta, Faleasao and Ta’u Counties
met in Fitiuta to discuss the election of senators to represent the three
counties. The Fitiuta to`oto`o
or "Manu`a orators" presided at this meeting. Present were Ta’u County and Village
matai who had voiced support for Leasau at the December 7 meeting, as
well as Lefiti and other allegedly “ousted” Ta’u County and Village
matai. At one juncture, a
matai in attendance suggested that Lefiti should hold one of Senate
seats. Nua objected, claiming that
the “true” Ta’u County Council had selected Leasau at the December 7 meeting,
and that Leasau must therefore be elected to the Senate seat traditionally
reserved for Ta’u County. However,
those present at the December 14 meeting continued to “share ideas” regarding
the election of Senators.
Toward the end of the meeting, to`oto`o Laapui from Fitiuta
Village and County announced his perception that the three counties had decided
to send Lefiti and Moaali`itele Tu`ufuli, a matai from Fitiuta County and
Village, to the Senate. Nua,
Leasau, and their supporters then left the meeting in protest over Lefiti's
election. The remaining council
members discussed the matter further for a short period of time, and then Laapui
reiterated his statement that the three counties favored Lefiti and Moali`itele
as their Senators. Paopao, as the
Fitiuta County Chief, was directed to certify to the Senate that Lefiti and
Moali`itele had been elected by the three counties of Ta’u island. He was the only county chief who was
present throughout the meeting.1
When
Leasau later learned that Lefiti was preparing to take the Senate seat, Nua
lodged objections with the Secretary of Samoan Affairs. Later, Leasau protested to Lutu, as the
President of the Senate, and the members[31 ASR2d 172] of the Senate, with Nua
and the Faleasao County Chief declaring Leasau's election as the Senator from
Ta`u County. Lutu, however,
accepted Lefiti’s certification and placed Lefiti's name on the Senate
roll.
On the
opening day of the Senate, Leasau arrived to take the Senate seat that he
believed he possessed, but the Senate did not allow him to assume the seat that
Lefiti occupied. This action
followed.
[1] Article II, § 4 of the Revised Constitution of American
Samoa (“Revised Constitution”) prescribes the manner in which individuals are to
be elected to the Senate of the Legislature of American Samoa. This section provides that “Senators
shall be elected in accordance with Samoan custom by the county councils of the
counties they are to represent, the number of senators from a county or counties
to be as indicated: Fitiuta, Faleasao, and Ta’u, two senators; . . .” Though Article II, Section 22 of the
Revised Constitution grants the Senate exclusive authority to determine the
results of an election, this court has jurisdiction to determine whether an
election occurred according to constitutional requirements. See Meredith v. Mola, 4 A.S.R. 773, 780 (Trial Div. 1973). Thus, we examine the narrow questions of
(1) whether an election of senators was held on December 14, 1996, “by the
county councils of the counties they are to represent,” and (2) “in accordance
with Samoan custom.”
[2] First, the Revised Constitution states that two senators shall
represent the counties of Fitiuta, Faleasao, and Ta’u. The Revised Constitution does not
allocate one senator to Ta’u County and another senator to Fitiuta and
[3] Second, while the Revised Constitution does not specify those
Samoan customs that govern the election of Senators, and the courts have been
reticent to outline a single constitutionally permissible method for electing
Senators, this Court has provided some guidelines for distinguishing methods
that are consistent with Samoan custom from those methods that are inconsistent
with Samoan custom.
Permissible methods of electing Senators include, but are not limited
to “voice vote, written ballot, computation of number of speakers for each
candidate, and consensual agreement.”
Meredith, 4 A.S.R. at 781. Impermissible methods of electing
Senators include, but are not limited to appointment of the Senator by one
powerful matai, id., and delegation of the decision to a
subdivision of the deliberative body constitutionally assigned the
responsibility of electing senators.
Mauga, 10 A.S.R.2d at 120.
[4] The preponderance of evidence at the trial indicated that at
the December 14 meeting, many matai voiced their thoughts and opinions on
the issue of who should represent the three counties in the Senate. Both parties agree that extensive
“sharing of ideas” is a crucial component of the fa’a
Therefore, we reject Leasau’s claims that the election on
December 14 was unconstitutional, and instead conclude that the election
resulted[31 ASR2d 174] from a
decision of the three county councils of Fitiuta, Faleasao and Ta’u Counties on
the next senators to represent the three counties that was reached “in
accordance with Samoan custom.” We
further hold that Paopao, as the Fitiuta County Chief, simply carried out his
ministerial duty of certifying the results of that election. Art. II, § 4 Rev.
Const. Only the Senate,
however, can judge the results of the election. Art. II, § 22 Rev.
Const.; Meredith, 4 A.S.R. at 780.
In
contrast, Leasau’s claim of entitlement to a Senate seat relies on the
proposition that the Ta’u County Council has a “customary” right to meet
independent of the Fitiuta and Faleasao County Councils and to elect a senator
to represent all three counties.
First, we find as a factual matter that the Fitiuta and Faleasao County
Councils never expressly or impliedly agreed to allocate indefinitely to the
Ta’u County Council the authority to select one of the two senators from the
the contention . . . that the customary decision-making process, as
spoken of in the Constitution, includes an ability in the county to delegate
completely that decision making to a mere sub-division of the county is simply
untenable. The logical consequence
of such an argument is that a new custom -- nay even a bad habit or ill
conceived practice -- inconsistent with the requirements of the Constitution, will have the practical ability of repealing
explicit and unambiguous provisions of the Constitution.
After
careful review of the text of the Revised Constitution of American Samoa,
relevant case law, and the evidence presented at trial, we declare that on
December 14, 1996, the County Councils of Fitiuta County, Faleasao County, and
Ta’u County held an election of the two senators to[31 ASR2d 175] represent the three
counties in accordance with Article II, § 4 of the Revised Constitution. We further declare that Paopao properly
certified the results of that election.
The Senate, however, is the exclusive and final judge of the results of
that election.
Leasau’s prayer for declaratory and injunctive relief is
denied.
It is
so ordered.
1
The Faleasao County Chief did
not attend the meeting. Nua left
the meeting before it concluded.
2
Since both of the Ta’u county
council factions had an opportunity to participate meaningfully in the December
14 meeting, we need not determine the membership of the “true” Ta’u County
Council. Nevertheless, we feel
compelled to note that the deep rift between the respective camps of
matai is a profound tragedy, and a sad commentary on the current state of
the fa’a Samoa in the greater Village of Ta`u. We concur in the opinion expressed in
Meredith, that Senate election disputes generally should “be settled by
the county councils according to the prevailing custom without litigation” and
that “[w]hen the Court is compelled to intervene, . . . county harmony is dashed
and further disunity fueled.” 4
A.S.R. at 783.
3 In support of our assertion that Samoan custom does not demand universal approval, we note that in Meredith, the court authorized election by “voice vote, written ballot, [and] computation of number of speakers for each candidate”--methods of decision making that require the support of more than one but less than all. 4 A.S.R. at 781.