MUAVAEFA`ATASI AE AE JR. and
EUGENE PAUL BAILEY, Plaintiffs,
v.
High Court of
Trial Division
CA No. 30-99
June 20, 2000
[1] The “case or controversy” limitation contained in the statute conferring jurisdiction upon the High Court prevents the Court from issuing advisory opinions.
[2] The Court has an obligation to ensure that the parties have standing, even if they are willing to stipulate to such.
[3]
Violation of a statute can constitute a pub1ic nuisance per se.
[4] The three requirements that a plaintiff must demonstrate in order to establish standing are: (1) an injury in fact (2) caused by the subject of the suit (3) that can be redressed by the Court.
[5] In order to civilly prosecute an action for public nuisance, a plaintiff typically must allege and prove a specific injury beyond that suffered by the general public.
[6] While legislators possess standing to challenge an executive action that nullifies an opportunity to vote, they do not possess standing to challenge the executive’s failure to obey a statute.
[7] With regard to standing, an action may be brought by one who possesses a grievance shared by many persons so long as it is not common to the public as a whole.
[8] Where individual had lost substantial sums to poker machines, allowed to operate in violation of the law, he had standing to bring suit.
[9]
Article IV, Section 3 of the United States Constitution, otherwise known as the
territorial clause, provides Congress with plenary powers to legislate for the
territories.[4ASR3d185]
[10] Congress’s power to legislate for the territories is limited only by the U.S. Constitution, and not by any laws of the territories themselves.
[11]
Those territorial laws which are inconsistent with applicable
[12] Under the Johnson Act, any gambling device,
including poker machines, is illegal in the
[13] Although states and some possessions can enact laws
to exempt themselves from the Johnson Act,
[14]
The
Before KRUSE, Chief Justice, ATIULAGI, Associate
Judge, SAGAPOLUTELE, Associate Judge.
Counsel:
For Plaintiff, Katopau T. Ainu`u
For Defendant
Tauese P.F.
Sunia, Henry W. Kappel, Counsel for the
Office of the
Governor, and Toetagata Albert Mailo,
Attorney
General
OPINION AND ORDER
Plaintiffs in this case, Muavaefa`atasi Ae Ae Jr.
(“Muavaefa`atasi”) and Eugene Paul Bailey (“Bailey”), originally sued numerous
owners and operators of poker machines in addition to the governmental
defendants still involved. However,
subsequent to our denial of plaintiffs’ Motion for Summary Judgment, plaintiffs
dismissed the suit against all private defendants, leaving only a suit for
declaratory relief against the two governmental defendants American Samoa
Government and Governor Tauese P.F. Sunia (collectively “ASG”). This raised concerns of whether a justiciable
case or controversy remained before the Court, concerns that we requested
counsel for the remaining parties to address at a hearing held May 11, 2000.
Also prior to the hearing, we discovered federal law
that appeared to forbid any activity relating to poker machines in the
territory. Accordingly, we also requested counsel, at the aforementioned
hearing, to address this federal preemption question, Counsel have submitted
timely briefings on both subjects, which we have considered in rendering the
following decision.[4ASR3d186]
Discussion
A. Standing
Having dismissed the poker machine owners and
operators from the action, plaintiffs effectively dismissed any pecuniary
claims against these private parties and instead concentrated on seeking a
declaratory judgment against the government.
This raised for us the question of whether the plaintiffs, no longer
seeking redress for economic losses, still possessed a justiciable case or
controversy capable of resolution in this Court.
[1]
Justiciability comprises a collection of doctrines arising from the “case or
controversy” limitation on federal jurisdiction found in Article III, section 2
of the U.S. Constitution, language that is replicated in the statute conferring
jurisdiction on the High Court. A.S.C.A.
§ 3.0208(a). In short, this requirement prevents the court from issuing
advisory opinions. Muskrat v.
Ripeness, or bringing the case too early, is not a bar
to the present suit. Poker machines, and the statutes purportedly legalizing
them, are presently at work in the territory, and the plaintiffs allege
specific injuries as a result. Thus, we
are not faced with a case of prospective statutory application and injury. Cf. Poe v. Uliman, 367
[2]
Standing, on the other hand, presents difficulties for Muavaefa`atasi. While
both parties agree on the existence of a justiciable controversy, we have an
obligation to ensure that the parties have standing, even if the parties are
willing to concede the issue. Bender
v.
[3-4]
Plaintiffs are correct in stating that violation of a statute can constitute a
pub1ic nuisance per se. Standing,
however, must still be addressed. The
three requirements that plaintiff must demonstrate are: (1) an injury in fact
(2) caused by the subject of the suit (3) that can be redressed by the
court. Lujan v. Defenders of Wildlife,
504
[5-6]
Muavaefa`atasi cannot meet the first requirement. In order to civilly prosecute an action for
public nuisance, a plaintiff typically must allege and prove a specific injury
beyond that suffered by the general public.
See, e.g., Oppen v. Aetna Ins. Co., 485 F.2d 252, 259 (9th
Cir. 1973). Muavaefa`atasi has alleged
no special injury to himself as a [4ASR3d187]
result of ASG’s licensing of poker machines. Nor can Muavaefa`atasi sue in his official
capacity for alleged violations of the anti-gambling statute A.S.C.A. §
46.4301. Courts have held that while legislators possess standing to challenge
an executive action that nullifies an opportunity to vote, they do not possess
standing to challenge the executive’s failure to obey a statute. Goldwater v. Carter, 617
F.2d 697, 702 (D.C. Cir. 1979) (en banc), vacated on other grounds, 444
U.S. 996 (1979).
[7-8]
Bailey, on the other hand, has alleged sufficient special injury to maintain
the current public nuisance action. The
pecuniary harm suffered by Bailey as a result of poker machines differs from
that suffered by the general public, satisfying the injury requirement for his
suit. See, e.g., Phila. Elec. Co. v.
Hercules, Inc., 762 F.2d 303, 316 (3d Cir. 1985). Although Bailey is undoubtedly not the only
person who has lost significant sums to poker machines, an action may be
maintained by one who possesses a grievance shared by many persons so long as
it is not common to the public as a whole.
Ariz. Copper Co. v. Gillespie, 230
Bailey similarly meets the other standing
requirements. Poker machines would not be in operation in the territory but for
ASG’s licensing scheme, thus establishing a causal link between Bailey’s injury
and ASG’s actions. Similarly, a decision
by this Court rendering the machines illegal in the territory would likely
cause ASG to take actions to prevent any continuing harm.
Accordingly, we dismiss Muavaefa`atasi’s cause of
action for public nuisance for lack of standing, but continue with Bailey as
the sole remaining plaintiff.
B. Legality of Poker Machines in the
Territory
The Territory’s laws regarding poker machine are a muddle. The general anti-gambling statute, A.S.C.A. § 46.4301, appears to make their presence and use illegal. On the other hand, the Fono has enacted a statutory scheme the purpose of which is to derive revenue from these very same machines. A.S.C.A. § 11.0601 et. seq. ASG maintains that the licensing scheme implicitly legalized the machines, whereas Bailey argues that the licensing scheme was merely a device by which the government taxed an illegal activity. These seemingly contradictory provisions thus present a conundrum, the resolution of which would require nuanced interpretations of statutory construction and legislative intent.
[9-11]
Fortunately, we need not consider the effects of these statutes [4ASR3d188] whatsoever. Rather, we begin with Article IV, Section 3
of the United States Constitution which reads in relevant part, “Congress shall
have Power to dispose of and make all needful Rules and Regulations respecting
the Territory or other Property belonging to the
[12] The
United States Congress has legislated with respect to the machines at issue in
the case. 15 U.S.C.A. § 1171(a)(2). The Johnson Act, 15 U.S.C.A. § 1171 et seq.,
explicitly makes it unlawful to “manufacture, recondition, repair, sell,
transport, possess, or use any gambling device . . . in any Possession of the
[13]
Defendants’ arguments do not convince us otherwise. First, whereas states and some possessions
can enact laws to exempt themselves from the general rule prohibiting gambling
devices,
Second, the machines at issue are obviously “gambling
devices” as defined by section § 1171.
No attempt to mischaracterize their operation as one solely dependent on
skill can change this fact. See, e.g.,
United States v. Digger Merch. Mach., 202 F.2d 647, 651 (8th Cir. 1953)
(where a substantial element of chance is involved, fact that skill is needed
in operating machine will not suffice to take machine out of purview of §
1171); United States v. 294 Various Gambling Devices, 718 F.
Supp. 1236, 1248 (W.D. Pa. 1989) (video poker machines constitute gambling
devices for purposes of § 1171); United States v. Sixteen Elec. Gambling
Devices, 603 F. Supp. 32, 34 (D. Haw. 1984) (same result). Furthermore, ASG admits that “the operation
of poker machines is a form of gambling,” belying its argument that one’s
success in their operation depends wholly upon skill. See Stipulation of Facts.
Third, cases cited by ASG are inapplicable to poker
machines in the territory. Iowa Tribe
of Indians of Kan. and Neb. v. State of Kansas, 787 F.2d 1434 (10th
Cir. 1986), concerned state prosecution of “pull-tab cards” sold by the Iowa
Tribes. The court concluded that these
were not gambling devices as defined by § 1171, and that users were thus
amenable to prosecution because § 1175 could not apply to preempt state
regulation.
In contrast, the poker machines at issue in this case are
gambling devices under § 1171. The
Johnson Act thus applies and preempts territorial regulation.
ASG similarly misreads Citizen Band of Potawatomi
Indian Tribe of Oklahoma v. Green, 995 F.2d 179 (10th Cir.
1993). The court did not defer to state
law in prohibiting the importation of gambling devices into an Indian
Reservation located in
[14] In the
present action, we have a clearly defined case of federal preemption that
parallels the case of United States v. Blackfeet Tribe of Blackfeet Indian
Reservation, 364 F. Supp. 192 (D.C. Mont. 1973). In [4ASR3d190]
that case, the court held that ordinances authorizing gambling and
licensing gambling devices, passed by the Blackfeet Tribe on their reservation,
were in conflict with § 1175, and were therefore null and void.
Judgment will enter accordingly.
It is so ordered.
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