THE HOUSE
OF REPRESENTATIVES OF AMERICAN SAMOA and MAILO SAOLUAGA T. NUA, in his capacity
as a member of and the Speaker of the House of Representatives, Petitioners,
v.
TAUESE P.F. SUNIA, in his capacity as the Governor of
American Samoa, and SOTOA MUASAU SAVALI, in his capacity as Secretary of Samoan
Affairs, Respondents.
High Court of
Trial Division
CA No. 03-98
[1] Under the provisions of the Revised Constitution of American Samoa,
art. IV, § 4, the Secretary of Samoan Affairs is appointed by the Governor,
serves at his pleasure, and there is no confirmation role for the Legislature
which would limit these powers.
[2] The
federal Constitution and the constitutions of various states limit executive
appointments by vesting the power of confirmation in the legislature, but
A.S.C.A. § 4.0112 is a statutory attempt to vest such power in the legislature.
[3] The
Revised Constitution of American Samoa contemplates a government patterned
after the federal tripartite system and, accordingly, the well-established
principle of separation of powers applies.
[4]
Confirmation of appointments made by the Governor is not an inherent
legislative power; it is a specific attribute of the executive power of
appointment which, in most cases, is constitutionally delegated to the
legislative branch.
[5]
The Legislature may not usurp the power of confirmation, and as the Revised
Constitution of American Samoa makes no provision for legislative confirmation
of gubernatorial appointments to the office of Secretary of Samoan Affairs,
that power is attached to the executive power of appointment and is vested
solely in the Governor.
[6]
Because A.S.C.A. § 4.0112, on its face and without constitutional
authorization, offers the Legislature, by its confirmation provisions, a
critical means of severely limiting the executive power of appointment, it is
unconstitutional to the extent that it applies to the Secretary of Samoan
Affairs. [3ASR3d124]
Before KRUSE, Chief Justice, LOGOAI, Associate Judge, and ATIULAGI,
Associate Judge.
Counsel: For Plaintiffs, Arthur Ripley, Jr., and Aumoeualogo S. Salanoa
For Respondents, Henry W.
Kappel, Assist. Attorney General
ORDER GRANTING MOTION FOR SUMMARY
JUDGMENT
On
January 6, 1998, the House of Representatives of American Samoa and House
Speaker Mailo Saoluaga T. Nua (“the House”) filed a complaint alleging that
respondent Tauese P.F. Sunia, Governor of American Samoa (“the Governor”) had
failed to comply with the statutory requirement that he submit to the Legislature
for confirmation his executive appointment for the position of Secretary of
Samoan Affairs, respondent Sotoa Muasau Savali (“the Secretary”). Cross motions
for summary judgment were filed by the respondents and the petitioners on July
22 and
Facts
The relevant facts in this case are straightforward and uncontested. By
stipulation of
Summary Judgment
Summary judgment is appropriate when there is no issue as to any
material fact and the moving party is entitled to judgment as a matter of law.
T.C.R.C.P. 56(c). As noted above, the facts in this case are undisputed,
leaving only the legal issue of whether the Governor was required by law to
submit to the Legislature for confirmation his [3ASR3d125] appointment for
the position of Secretary of Samoan Affairs. Summary judgment is appropriate in
this matter.
Discussion
We agree with the House’s contention that a plain reading of the
relevant statutes purports to require legislative confirmation for appointments
to the position of Secretary of Samoan Affairs. The Revised Constitution of
American Samoa provides that the Secretary “shall be the head of the Department
of Local Government.” Rev. Const. Am.
Sam., art. IV, § 4. Further, the Department of Local Government
is included in that statutory category of executive departments whose directors
are “subject to confirmation by the Legislature . . . by a majority vote of the
entire membership of each house of the Legislature.” A.S.C.A. §§ 4.0301,
4.0112(a).
[1] The larger issue, however, is whether the statutory confirmation
requirements of A.S.C.A. § 4.0112(a) impinge upon the Governor’s
constitutional appointment powers, thereby rendering those provisions
unconstitutional. The Revised Constitution of American Samoa sets forth the
Governor’s appointment power with respect to the Secretary of Samoan Affairs in
very simple terms: “The Secretary of Samoan Affairs shall be appointed by the
Governor from among the leading registered matais. He shall hold office during the pleasure of
the Governor....” Rev. Const. Am. Sam.,
art. IV, § 4. Nowhere in the document is there any mention of a confirmation
role for the Legislature which would limit these otherwise unrestricted powers.
[2] The
power of legislative confirmation is a familiar one in the American system of
government. The federal Constitution, of course, vests this power in the Senate
pursuant to the “advise and consent” clause of Article II.
[3] As a general matter, the Revised Constitution of American Samoa
clearly contemplates a government patterned after the federal tripartite [3ASR3d126] system and, accordingly,
the well-established principle of separation of powers applies.[2]
BHP
Petroleum South Pacific, Inc., v. American Samoa Government, 2 A.S.R.3d 10 (App. Div. 1998). Under that doctrine, each branch of
government has the “affirmative duty of exercising its own peculiar powers for
itself, and prohibits the delegation of any of those powers except in cases
expressly permitted.” 16 Am
Jur 2d—Constitutional Law, § 294 (emphasis added); Reelfoot
Lake Levee Dist. v. Dawson, 36 S.W. 1041, 1047 (
In practice, of course, a constitution cannot possibly define and
allocate all of the innumerable individual duties and powers that appertain to
each branch of government. When a conflict arises between them, the judiciary
is are called upon to determine whether a given power has been explicitly
delegated by the constitution to one branch and, if not, whether that power is
nevertheless inherently the function of either the executive, the legislature
or the judiciary. As noted above, the power of appointment to the position of
Secretary of Samoan Affairs is constitutionally vested in the Governor. Rev. Const. Am. Sam., art. IV, § 4.
Because the power to confirm that appointment is not addressed, however, this
court is now left to resolve the ultimate question of whether the process of
confirmation is, by its nature, a legislative function which may be exercised
even in the absence of an authorizing constitutional provision.
[4] We agree
with those courts which have explored the issue in finding that confirmation is
not an inherent legislative power. Rather, confirmation should properly be seen
as a specific attribute of the executive power of appointment which, in most
cases, has been constitutionally delegated to the legislative branch:
The
appointive power here involved is executive or administrative in character. The
power of the Legislature to consent or confirm executive appointments is also
executive or administrative rather than a legislative function. But the
Constitution itself transgresses the division of powers provision contained in
it and, so far as it does, the separate departments have the power
constitutionally granted.
Wittler v. Baumgartner, 144
N.W.2d 62, 71 (
[5-6]
Similarly, the court in Bradner v.
Conclusion
We note in closing that this court is not the first entity to determine
that provisions for legislative confirmation of the Secretary of Samoan Affairs
appointment should properly be included in the Constitution rather than added
subsequently by statute. As respondents point out in their brief,
then-Legislative Counsel Gata E. Gurr reached the same conclusion in 1993 (see
memorandum of
Even more interestingly, however, an attempt was made to include a
constitutional confirmation requirement for this position as early as
twenty-five years ago. On
Order
For the
foregoing reasons, petitioners’ motion for summary judgment is denied, and
respondents’ motion for summary judgment is granted. The Secretary shall retain
his position with or without the approval of the Legislature, and we hold that
A.S.C.A. § 4.0112 is unconstitutional as applied to the position of Secretary
of Samoan Affairs.
It is so
Ordered.
**********
[1] A second cause of action, related to the appointment
of a Chief Procurement Officer, has been rendered moot by the Appellate
Division’s decision in BHP
Petroleum South Pacific, Inc. v. American Samoa Government, 2 A.S.R.3d 10 (App. Div. 1998) and the
Governor’s subsequent appointment of ETC Lob Letalu Moliga to that post on
[2] Even
where no explicit provision in a constitution mandates a clear separation of
powers, such a requirement may be inferred from the organization of government
into three distinct branches: executive, legislature, and judiciary. 16 Am Jur 2d, Constitutional Law--§ 295; Springer
v. Philippine Islands, 277
[3] We
are not presented with a challenge to the confirmation requirements for any
other officials and decline to rule on the application of this decision
thereto. However, we do note an important legal distinction between the
Secretary of Samoan Affairs and all other executive officers listed in A.S.C.A.
§ 4.0301: while the former position is established in the Constitution itself
pursuant to Article IV, Section 4, all of the latter are statutory creations.
Although the legislative branch may not limit a constitutionally-granted power
of appointment absent express constitutional delegation, there is some
authority suggesting that when a legislature has itself empowered a governor to
make certain appointments, then it is free to impose such conditions and
limitations as it sees fit. 38 Am Jur 2d - Governor, § 5; State ex. rel.
Furthermore,
a critical historical distinction also places the Secretary of Samoan Affairs
in a unique position vis-à-vis all other executive appointments. Unlike the
other posts, which have been added gradually by statute over the years, the
position of Secretary of Samoan Affairs dates back to the very origins of our
modern, democratic form of government. On
One recent account of this early period places
the importance of the position in its proper historical perspective:
In the absence of government
departments and agencies, the “Samoan Affairs” office was the focus of
everything, and its head—the “Secretary”—was the man on the spot. The Governor
relied on his expertise and counsel, and the people depended on him to relay
their concerns to the Governor. Indeed, [the Secretary] was near indispensable.
[4] Note that not all statutes which present separation
of powers concerns will be declared unconstitutional. In Nixon v.
Administration of General Services, the U.S. Supreme Court enunciated the
following test for making this determination:
[T]he proper inquiry focuses on the extent to which [the statute]
prevents the Executive Branch from accomplishing its constitutionally assigned
function. Only where the potential for disruption is present [must the statute
be struck down].
433
Applying this
test in the context of a challenge to confirmation procedures, the court in Luis
v. Dennis found that even a minor alteration to the voting
requirements (requiring confirmation by a majority of all legislators rather
than merely a majority of those present) was sufficiently disruptive as to be
declared unconstitutional. 567 F.Supp.
733 (D. V.I. 1983). Certainly, the imposition of confirmation requirements in
the first place would also meet this test. By definition, the power of confirmation
carries the potential for the rejection of the Governor’s chosen appointee and
thereby gives the Legislature the ability to effectively vitiate the executive’s
constitutionally designated powers.