TUILEFANO M. VAELA`A, et al. Petitioners,
v.
TOETOGATA ALBERT MAILO,
Attorney General of
High Court of
Trial Division
CA No. 71-99
[1] The court has jurisdiction only over actual cases
or controversies. Under A.S.C.A. § 43.1101, in a declaratory relief action, the
parties must have adverse legal interests of sufficient immediacy and reality
to warrant issuance of a declaratory judgment.
[2] In a declaratory relief action, the court considers
the likelihood that litigation will eventually follow if such relief is not
granted.
[3] In an attorney-client relationship, the attorney
advises the client, but the client makes the ultimate decisions on how to
proceed.
[4] Under A.S.C.A. § 41.0206, the Attorney General
(AG) has the legal authority to prevent the Immigration Board (IB) from acting,
and so the AG did not act in its capacity as the Board’s attorney when it
interpreted the Immigration Act as exempting American Samoa Government employees
from IB approval and registration; therefore a decision by the court would not
be advisory.
[5] Under A.S.C.A. § 41.0206, the Immigration Board
(IB) is legally required to follow the Attorney General’s (AG) interpretation
of the law, and where it therefore canceled deportation hearings despite its
belief that the AG’s interpretation of the law was incorrect, a controversy
exists between the parties, and there is sufficient adverse interest between
them for the court to determine whether the IB must approve aliens employed by
the American Samoa Government before they may enter American Samoa.
Before KRUSE, Chief Justice, LOGOAI, Associate
Justice, SAGAPOLUTELE, Associate Justice.
Counsel: For
Petitioners, Brian M. Thompson
For Respondent, Fiti A. Sunia, Assistant
Attorney General [3ASR3d162]
ORDER DENYING MOTION TO DISMISS
On
The Attorney General has moved to dismiss the Board’s
petition arguing that that the court does not have subject matter
jurisdiction. The Attorney General
characterizes its dispute with the Board as a disagreement between an attorney
and its client, and therefore argues that petitioner is seeking a
nonjusticiable advisory opinion.
[1-2] The court has jurisdiction only over actual cases or
controversies. In a declaratory relief
action, the parties must have “adverse legal interests of sufficient immediacy
and reality to warrant issuance of a declaratory judgment.” A.S.C.A. § 43.1101; Sala v.
American Samoa Government, 21 A.S.R.2d 50, 56 (1992). In making its determination, the court
considers the likelihood that litigation will eventually follow if declaratory
relief is not granted. Sala, supra,
21 A.S.R.2d at 56.
[3] In an attorney-client relationship, the attorney
advises the client, but it is the client that makes the ultimate decisions on
how to proceed. See Model Rules of Professional Conduct
Rule 1.2(a); BNA/ABA Lawyer’s Manual on
Professional Conduct, Lawyer-Client Relationship, at 31:301-303
(1985). As a result, when the Attorney
General acts as counsel to an administrative agency, the agency has discretion
as to whether or not to adopt the Attorney General’s opinion. 2 Am.
Jur. 2d, Administrative Law § 11 (1994).
[4] Here, in contrast, the Attorney General has the legal
authority to prevent the Board from acting because it has the power to enforce
and administer the laws pertaining to the status of aliens. A.S.C.A. § 41.0206. Its determination with respect to all
immigration law is controlling. A.S.C.A.
§§ 41.0206, 41.0614; American
Samoa Government v. Falefatu, 17 A.S.R.2d 114, 137 (1990). As a result, the Attorney General did not act
in its capacity as the Board’s attorney when it interpreted the Immigration Act
as exempting American Samoa Government employees from Immigration Board
approval and registration. A decision by
this court would therefore not be advisory.
[5] Although litigation may not ensue between the parties
if this court does not provide declaratory relief, there is nonetheless a
controversy [3ASR3d163] between the
parties. The Immigration Board followed
the Attorney General’s interpretation of the law, as it was legally required to
do under A.S.C.A. § 41.0206, and canceled deportation hearings despite its
belief that the Attorney General’s interpretation of the law was
incorrect. There is a sufficient adverse
interest between the parties for the court to determine whether or not the Immigration
Board must approve aliens employed by the American Samoa Government before they
may enter
The motion to dismiss is, therefore, denied.
A hearing on the merits will be held on
It is so Ordered.
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