v.
ROY
MOE, Defendant
High Court of
Trial Division
CR No. 53-99
October 28, 1999
[3ASR3d107]
[1] An arrest warrant must be issued by a
neutral and detached magistrate.
[2]
A magistrate impermissibly lacks neutrality where he or she is involved in law
enforcement activities, has a pecuniary interest in the outcome of his
decision, or has ‘wholly abandoned’ his judicial role.
[3]
Justice’s action in alerting Attorney General to possible violation of statutory rape law by forwarding marriage waiver form to A.G.’s attention for such action as he “may deem
appropriate” did not constitute law enforcement nor did it advocate
prosecution, and justice was not prohibited from later reviewing and granting application
for warrant of arrest of individual named in waiver form..
[4] Judges are the only officials authorized to issue
arrest warrants in
Before
Counsel: For Plaintiff, Suzanna Tiapula,
Assistant Attorney General
For Defendant, Tautai A.F. Faalevao, Public
Defender
ORDER DENYING MOTION TO DISMISS
On
Facts
Pursuant to A.S.C.A. § 42.0105, two couples, one
involving Moe, applied to this court for waivers to permit their respective
marriages to take place before the end of the 30-day waiting period usually
required after issuance of a marriage license.
Both applications revealed that the female applicants were under the age
of 16 when they had sexual intercourse with the male applicants, resulting in
the pregnancies incident to the waiver applications. The Chief Justice rejected
both applications and returned them to the Registrar of Vital Statistics with a
memorandum expressing concern over instances of statutory rape. The Chief Justice also sent copies of the
applications and memorandum to the Attorney General’s office for such action as
the Attorney General “may deem appropriate.”
The Attorney General charged Moe with rape, in
violation of A.S.C.A. § 46.3604(a)(1), by lodging a
complaint in the District Court on August [3ASR3d108]
10, 1999. On that day, a Tuesday, the District Court Judge was outside
American Samoa on official business, and the Associate Justice was presiding at
a jury trial in the High Court. The Chief Justice was handling matters before
the District Court, which included the usual heavy traffic calendar. Thus, this
prosecution was initially presented to the Chief Justice, and after reviewing
the police officer’s supporting affidavit, he signed the warrant for Moe’s
arrest.
Discussion
Moe seeks to dismiss the charges
against him on the grounds that the arrest warrant was not signed by a “neutral
and detached judicial officer” and was therefore invalid. Moe alleges that the Chief Justice’s role in
calling attention to the possible statutory rape violation rendered him unable
to be neutral and detached when approving and signing the arrest warrant.
[1] Moe states a correct
principle of law. An arrest warrant must
be issued by a “neutral and detached magistrate.” See Sheldon R. Shapiro,
Annotation, Requirement, Under Federal Constitution, that Person Issuing
Warrant for Arrest or Search be Neutral and Detached Magistrate--Supreme Court
Cases, 32 L. Ed. 2d 970, 972. Judges generally qualify as neutral and
detached magistrates.
Moe,
however, attacks the Chief Justice’s neutrality and detachment in this case
because he denied Moe’s application for a waiver of the marriage waiting period
and sent a memorandum to the Attorney General alerting him to Moe’s possible
statutory rape violation. Moe argues that the Chief Justice was thus
inextricably linked to the actions of the Attorney General’s office and police
in prosecuting and arresting Moe for statutory rape.
[2] The facts in the present
situation and legal authority indicate otherwise. “The Supreme Court has found
an impermissible lack of neutrality in cases where the particular magistrate
was also involved in law enforcement activities, had a pecuniary interest in
the outcome of his decision, or had ‘wholly abandoned’ his judicial role.”
Clearly, the Chief Justice has no pecuniary interest
in the outcome of this case, and Moe does not suggest otherwise. See Connally v.
Georgia, 429
It also cannot be reasonably said that the Chief
Justice was involved in law enforcement activities. Examples of impropriety are found in Lo-Ji Sales,
Inc. v.
Hampshire, 403
[3] In this
case, the Chief Justice was not participating as a prosecutor, investigator, or
in another law enforcement capacity when he brought the marriage waiver
application to the Attorney General’s attention. Nor was he advocating prosecution. Rather, he merely alerted the Attorney
General to a possible violation of criminal laws and left the prosecutorial
decision to the Attorney General’s discretion.
Moreover, the Chief Justice did
not abandon his judicial role in any sense.
On the contrary, as required of a judicial officer, the Chief Justice
considered the police officer’s affidavit setting forth facts constituting the
offense and, on that basis, found probable cause that Moe committed the offense
of statutory rape before he issued the arrest warrant.
[4] There is also an element
of practical necessity in this case.
Judges are the only officials authorized to issue arrest warrants in
Moe’s
contrary assertions notwithstanding, there is nothing of record that reasonably
supports any finding that as a matter of fact or appearances, the Chief
Justice’s referral to the Attorney General and later issuance of the arrest
warrant were anything but independent acts. We conclude, therefore, that the
Chief Justice performed his obligations as a neutral and detached magistrate
and properly issued the warrant for Moe’s arrest.
Order
Moe’s motion
to dismiss is denied.
It is so Ordered.
**********