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FA`AMAUSILI POLA,v.AMERICAN SAMOA GOVERNMENT and THE SENATE

 

FA`AMAUSILI POLA, Plaintiff,
v.
AMERICAN SAMOA GOVERNMENT
and THE SENATE, Defendants.
High Court of American Samoa
Trial Division
CA No. 88-02
November 20, 2002

 

[1] To determine whether a case is justiciable, two determinations must
be made: First, the court must decide whether the claim presented and

the relief sought are of the type which admit of judicial resolution;
Second, the court must determine whether the structure of the
government renders the issue presented a ‘political question’—that is, a
question which is not justiciable in the High Court because of the
separation of powers.
[2] The High Court will not entertain a claim for declaratory relief which
asks the Court to declare that a person is a duly selected and sworn
Senator, as the Constitution of American Samoa reserves such matters to
the Senate, and such claims are of the type that admit of legislative,
rather than judicial, resolution.
[3] The High Court has the power to interpret the constitutional
provisions governing the exclusion and expulsion of Senators, and
whether the Senate’s actions conformed to its constitutionally mandated
powers.
[4] If the powers of any branch of the government, and even those of the
Legislature in the enactment of laws, have not been exercised in
conformity to the Constitution, the Court can properly treat such acts as
null and void.
[5] To exercise it powers under Article II, § 22, the Senate must make its
judgment before the individual or Senator is sworn-in, and the Senate
can consider only the qualifications enumerated in Article II, § 3.
[6] Once a Senator has been sworn in, his subsequent removal is an
expulsion, and the Senate’s power to act is governed by Article II, § 11,
and all the protections it affords.
[7] A Senator can only be expelled for cause, either because he has
become disqualified to serve or has committed an offense against the
Senate.
[8] Under the Due Process Clause, a Senator has a constitutionally
protected property interest in serving his term.
[9] Before an individual is finally deprived of a property interest, due
process requires at a minimum notice of the grounds and opportunity to
be heard at a meaningful time and in a meaningful manner.
Before RICHMOND , Associate Justice, SAGAPOLUTELE, Associate
Judge, and TUPUIVAO, Associate Judge.
270
Counsel: For Plaintiff, Charles V. Ala`ilima
For Defendant Senate, Robert K. Maez, Assistant Legislative
Counsel
For Defendant American Samoa Government, Fiti Sunia,
Attorney General
OPINION AND ORDER
The court is asked in this case to decide important issues of
constitutional dimensions: whether the Senate has the power to expel a
Senator, after having been duly sworn-in, because of possible
irregularities in his selection or because the Senate deemed he did not
meet the qualifications of Article II § 3 of the Revised Constitution of
American Samoa. We undertake this task with the utmost respect to the
coordinate branches of government while cognizant that we must fulfill
our mandate as the arbiter of the law of the land.
We hold that plaintiff Fa`amausili Pola (“Fa`amausili”) is a member of
the Senate as a Senator in office.
Procedural and Factual Background
On March 5, 2002, one of two Senate seats from Senate District # 11
became vacant upon the passing of Senator Fa`afetai Lefiti.
The next regular election scheduled for that seat was in November 2004.
Therefore, pursuant to Article II, § 13 of the Revised Constitution of
American Samoa, the Governor of American Samoa issued a writ of
election to fill the vacancy.2 Fa`amausili was selected.3 His selection
1 Senate District #1 is comprised of three counties on the Manu’a Island
of Ta’u: Fitiuta, Faleasao, and Ta’u. A.S.C.A. § 2.0202. A village
having the same name is located within each county. The entire
Territory of American Samoa is divided into three political districts,
Eastern, Western, and Manu`a. Am. Samoa Rev. Const. Art. V, § 10.
The Manu’a District includes the three counties on the Island of Ta’u
and the counties of Olosega and Ofu. Id. The counties of Olosega and
Ofu are on two islands in the Manu’a group bearing the same name.
2 Article II § 13 reads in its entirety:
When vacancies occur in either House, the Governor or the
person exercising the functions of Governor shall issue writs
of election to fill such vacancies except that if any such
vacancy shall occur within three months of the next regular
election, no special election shall be held and the Governor

was certified to the Governor on August 5, 2002, by the “Fa`alupega”
(“County Chiefs”) of the Counties of Fitituta, Faleasao and Ta’u.4 On
August 8, 2002, the Secretary of Samoan Affairs confirmed the selection
to the President of the Senate.5 The Governor confirmed the selection,
also on August 8, 2002, to the President of the Senate.
Fa`amausili was sworn-in as the second Senator for Senate District #1 in
a ceremony at the Senate Chambers on August 9, 2002. He assumed his
duties as a Senator and represented his district during sessions of the
Senate. While serving, Fa`amausili did not commit any offense against
the Senate during the course of conducting his duties as a Senator to
warrant any punishment or sanction.
On September 9, 2002, two chiefs from Si’ufaga and Luma, both
subvillages of the Village of Ta’u, complained to the President of the
Senate about the procedure used for Fa`amausili’s selection as Senator.
In response to this letter, on September 13, 2002, the Senate Committee
of the Whole voted to send the matter back to the three county councils
of Senate District No. 1 to conduct a new selection pursuant to Article II,
§ 4. The Committee referred the matter to the entire Senate. On
shall appoint a qualified person to fill such vacancy. Prior to
appointing such person, the Governor shall in the case of a
representative consult with the county chief or county chiefs in
the representative district concerned; and in the case of a
senator, with the District Governor and county chiefs in the
district concerned. A person elected to fill a vacancy or
appointed by the Governor to fill a vacancy shall hold office
during the remainder of the term of his predecessor.
3 The parties have spilled much ink in this case as to whether or not
Fa`amausili’s selection was in accordance with Samoan custom. But
given the relief sought, this point is irrelevant to our decision. See Part
II.A, infra.
4 County chiefs are required to certify the senatorial election results.
AM. SAMOA REV. CONST. Art. II, § 4.
5 While protocol has a role, no confirmations other than by the county
chiefs’ certifications are constitutionally or statutorily required.
Nonetheless, a return of the writ of election by the District Governor of
Manu’a to the Governor of American Samoa was also prepared
contemporaneously with Secretary of Samoan Affairs’ confirmation.
Though the return was submitted to the Governor with the County
Chiefs’ certification, it was not signed by the District Governor due to
his absence from the Territory beginning in July 2002 until September
22, 2002. Upon his return, the District Governor separately confirmed
Fa`amausili’s selection directly to the President of the Senate.

September 16, 2002, the Senate voted in favor of the Committee’s
recommendation and suspended Fa`amausili with pay.
Shortly thereafter, the Senate received another letter, this time from the
Ta’u County Chief and one of the two authors of the first letter. The
letter claimed that Fa`amausili was removed from the village council and
was no longer a recognized matai in the village. On September 30,
2002, the Senate voted to remove Fa`amausili from office principally on
the allegation in the second letter that he was not qualified to be a
Senator under Article II, § 3.6 The Senate is comprised of 18 members
under Article II, § 2, and the expulsion vote, as were the two earlier
votes, passed by less than two-thirds of the entire membership.
Fa`amausili, at all relevant times, including at the time of trial, held the
matai title “Fa`amausili,” duly registered with the Territorial Registrar of
the American Samoa Government (“ASG”). He also testified, without
any contravening evidence, that he fulfills his obligations as required by
Samoan custom in the counties from which he was selected, the second
aspect of the registered matai qualification under Article II, § 3.
Fa`amausili also alleges that all the Senate votes were taken without any
formal investigation, notice to him, or written resolution.
Fa`amausili brought this suit against both the Senate and ASG7 seeking
declaratory relief that he is the duly selected and sworn Senator from
Senate District #1 and that the various Senate votes were a nullity.
Furthermore, he seeks a writ of mandamus compelling the Senate to
accord him all the rights and privileges of a Senator. The Senate filed a
motion to dismiss the suit arguing that our review of the Senate actions
was barred by the political question doctrine. We deferred ruling on that
6 Article II, § 3 states in part:
A Senator shall--
(a) be a United States National;
(b) be at least 30 years of age at the time of his election;
(c) have lived in American Samoa at least 5 years and have
been a bona fide resident thereof for at least 1 year next
preceding his election; and
(d) be the registered matai of a Samoan family who fulfills
his obligations as required by Samoan custom in the county
from which he is elected.
. . .
7 Even though the relief sought is directed at the Senate, Fa`amausili
stated that he joined ASG as a party merely out of precaution. ASG,
represented by the Attorney General, graciously agreed to stay on and
cooperate to the fullest extent possible and appropriately participate.

motion so that we could proceed expeditiously to the merits. Trial was
held on October 18 and 21, 2002.
Discussion
A. Matters Not at Issue
We begin by noting what is not at issue in this case. There is no question
that we have jurisdiction over the subject matter. See Mauga v. Lutu, 10
A.S.R.2d 115, 118 n.1 (Trial Div. 1989); Tuitasi v. Lualemaga, 4 A.S.R.
798, 808-09 (Trial Div. 1973); Meredith v. Mola, 4 A.S.R. 773, 776-77
(Trial Div. 1973). In this respect, the only question we must address is
whether the “cause over which [we have] subject matter jurisdiction is
‘justiciable.’” Powell v. McCormack, 395 U.S. 486, 512 (1969).
The parties also suggested the need for us to elaborate on the proper
procedures and differences, if any, between the election of a Senator
under the constitutional provisions for a regular biennial election, under
Article II, § 4, and for filling a vacant Senate seat, under Article II, § 13.
Indeed, even the Attorney General, in his limited appearance, expressed
his desire that we give some guidance in this area, but as challenged by
the two chiefs, the crux of this dispute arose over whether Fa`amausili
was selected according to Samoan custom, and not whether the Governor
acted properly in fulfilling his Article II, § 13 duties. Thus, absent full
briefing, and because it is unnecessary to our decision, we leave this
matter for another day.
Finally, as previously alluded to, we need not decide whether
Fa`amausili’s selection did in fact conform with Samoan custom. We
will only decide the real question raised: whether the Senate had the
power to expel Fa`amausili from the Senate after having been duly
sworn-in. In making that decision, Fa`amausili has not asked us to
declare that the Senate’s conclusions, if any, about how he was selected
were erroneous. Additionally, the Senate, in its answer and motions, has
likewise not urged us to delve into the substance of its decision.
B. Justiciability
[1] Having concluded we have jurisdiction over this matter, we must still
determine whether the case is justiciable.
Two determinations must be made in this regard. First, we
must decide whether the claim presented and the relief sought
are of the type which admit of judicial resolution. Second, we
must determine whether the structure of [our government]
274
renders the issue presented a ‘political question’—that is, a
question which is not justiciable in [the High Court] because
of the separation of powers provided by the Constitution.
Powell, 395 U.S. at 516-517.
1. Relief Which Admits of Judicial Resolution
[2] Fa`amausil’s first claim for declaratory relief asks us to find that he is
the duly selected and sworn Senator from Senate District #1. It is clear
that our Constitution reserves to the Senate “the right to judge the
elections and qualifications of its ‘members.’” Tuitasi, 4 A.S.R. at 810.
It follows that this claim is “of the type that admit[s] of legislative
adjudication rather than judicial resolution.” Id; see also Mola, 4 A.S.R.
at 778. We cannot therefore make such a determination. However, as
will be seen, this determination is not germane to the resolution of this
controversy.
[3-4] Fa`amausili also seeks a determination that the Senate did not have
the power to expel him from the Senate by way of its votes on
September 16 and September 30, 2002. In essence, he is asking us to
interpret the constitutional provisions governing the exclusion and
expulsion of Senators, and whether the Senate’s actions conformed with
its constitutionally mandated powers. This court has the power to grant
such relief:
Especially is it competent and proper for this court to consider
whether its [the Legislature’s] proceedings are in conformity
with the Constitution and laws, because, living under a written
constitution, no branch or department of the government is
supreme; and it is the province and duty of the judicial
department to determine in cases regularly brought before
them, whether the powers of any branch of the government,
and even those of the [L]egislature in the enactment of laws,
have been exercised in conformity to the Constitution; and if
they have not, to treat their acts as null and void.
Powell, 395 U.S. at 506 (quoting Kilbourn v. Thompson, 103 U.S. 168,
199 (1881)); see also Vessel Fijian Swift v. Trial Div., 4 A.S.R. 983, 991
(App. Div. 1975) (judicial power is the power to “declare what the law
is.”); Mola, 4 A.S.R. at 778.
Finally, Fa`amausili seeks a writ of mandamus compelling the Senate
and Senate staff to accord him the rights and privileges of a Senator. A
writ of mandamus is normally issued “to compel the performance of a

ministerial act or mandatory duty where: the petitioner has a specific,
well defined legal right; the respondent has a corresponding specific,
well defined duty; and there is a want of any other appropriate and
adequate remedy.” Siofele v. Shimasaki, 3 A.S.R.2d 3, 11 (Trial Div.
1988). Nevertheless, whether or not these requirements are met, it is not
clear that we have the power to issue coercive relief against members of
the Senate and, thus, whether “protection for the right asserted can be
judicially molded.” Powell, 395 U.S. at 517 (avoiding decision of this
issue). The Senate did not present a position, one way or another, as to
the propriety of this type of relief.
At this stage, however, it is unnecessary to decide whether we can, or
even should, issue a writ of mandamus compelling the Senate to act one
way or another. It is enough to note that “the government, like everyone
else, is bound by court orders in proceedings to which it is a party.” Am.
Samoa Gov’t v. Satele, 7 A.S.R.2d 154, 156 (Trial Div. 1988). While the
Executive Branch is the contextual reference of this quote, we see no
reason why it should not be equally applicable to the Senate, an entity
which has itself sought relief from this Court in the past. See, e.g., The
Senate v. Lutali, 27 A.S.R.2d 126 (Trial Div. 1995); The Senate v. Lutali,
26 A.S.R.2d 125 (Trial Div. 1994). We are confident that the Senate
will abide by our ruling on the counts for declaratory relief.
2. Political Question
Having established that two of the counts for declaratory relief are
justiciable, we must determine whether or not they present a political
question which would bar us from reviewing them. The scope of the
political question doctrine is vast, but a full exposition of its parameters
is unnecessary. See generally Baker v. Carr, 396 U.S. 186 (1962);
RONALD ROTUNDA AND JOHN NOWAK, TREATISE ON CONSTITIONAL
LAW § 2.16 (2d Ed. 1992). The main thrust of the Senate’s argument is
that Article II § 22 of the Revised Constitution of American Samoa vests
full power in the Senate to judge the “elections, returns, and
qualifications of its own members” and that once the Senate has spoken
the Court must wholly defer to its judgment.8 Basically, the Senate is
reviving an old theme, already played out in this Court, that Article II, §
22 “is a ‘textually demonstrated constitutional commitment’ to the
Senate of the ‘adjudicatory power’ to determine the issues now before
8 Article II, § 22 reads in its entirety: “Each House of the Legislature
shall be the judge of the elections, returns, and qualifications of its own
members and shall choose its officers.” Because this provision speaks to
“each House of the Legislature,” whatever powers and duties we
attribute to the Senate applies as well to the House of Representatives.
276
us.” Mola, 4 A.S.R. at 779.
a. SCOPE OF ARTICLE II, § 22
A brief overview of the Senate’s power is relevant. We have before
elaborated on the powers committed to the various branches of
government with respect to the election of Senators. Article II, § 22
merely provides that Congress is the judge of whether its
members meet the qualifications set forth specifically in
[Article II § 3]. Additionally, the Senate is the judge when ‘all
that is at stake is a determination of which candidates attracted
a greater number of lawful ballots.’ The issues of what need
be done for the selection of a senator to conform to Art. II, § 4,
and whether those requirements were met in the matter at bar
are matters of constitutional interpretation. Such a
determination falls within the traditional role accorded courts
to interpret the law, and does not encroach on the Senate’s
power to judge specific qualifications or determine plurality of
votes.
Mola, 4 A.S.R. at 779 (citations and footnotes omitted). What we must
address now for the first time is when the Senate may invoke its Article
II, § 22 powers.
In Powell, the Supreme Court reviewed the actions of the House of
Representatives in refusing to seat the petitioner, who had been duly
elected to serve in the 90th Congress. The Court was adamant in
distinguishing between the House’s powers to exclude and their powers
to expel, noting that the distinction was not “merely one of form.”
Powell, 395 U.S. at 508. “Powell was ‘excluded’ [because] he was not
administered the oath of office and was prevented from taking his seat.
If he had been allowed to take the oath and subsequently had been
required to surrender his seat, the House’s action would have constituted
an ‘expulsion.’” Id. at 507 n.27.
The House had excluded Powell, not for reasons arising out of his
qualifications or number of votes received, but for “[m]atters of. alleged
official misconduct.” Id. at 490. The Court declared that the House’s
actions were unconstitutional because a person could only be excluded
under the United States equivalent, in Article I, § 5 of the U.S.
Constitution, of the Revised Constitution of America Samoa, Article II, §
22. Id. at 522. The House’s actions in Powell were, in a sense,
premature. The reasons the House cited, whether or not meritorious,
277
were grounds for expulsion once in office, and expulsion required a
distinct set of procedures under the United States equivalent, also in
Article I, § 5 of the U.S. Constitution, of the Revised Constitution of
American Samoa, Article II, § ll.9 Id. at 506-512. For further discussion
of the procedures constitutionally required in an expulsion hearing, see
Part II.C.2, infra.
b. TUITASI V. LUALEMAGA
[5] To be sure, there is language in Tuitasi that seemingly conflicts with
this reading of Powell. Indeed, both sides have cited Tuitasi as
supporting their claim. Tuitasi arose out of the Senate elections of 1972.
Tuitasi, 4 A.S.R. at 799. Initially, the Election Commissioner
(“Commissioner”) certified Tuitasi as the duly elected Senator for his
district. Id. Lualemaga, Tuitasi’s opponent, filed a timely petition in
this Court to order the Commissioner to certify his name instead. Id.
While the case was pending, Tuitasi was sworn in by the Senate.
When this Court took up Lualemaga’s case, the only issue before the
Court was whether the Commissioner certified the proper candidate in
conformity with Article II, § 4 of the Revised Constitution of American
Samoa. Relying on the scant evidence, the Court held that indeed
Lualemaga should have been certified and the Commissioner had no
discretion to act otherwise. See Faliu v. Fofo, CA. No. 2504-72, slip op.
at 1-2 (Trial Div. Jan. 8, 1973) (Opinion and Order). The Court ordered
the Commissioner to certify Lualemaga and, in effect, void his original
certification of Tuitasi. Id. Tuitasi moved to intervene in that matter
claiming that he had in fact received more votes than Lualemaga and,
furthermore, Lualemaga did not meet the residency requirements under
Article II, § 3. The Court denied Tuitasi’s motion to intervene because it
was untimely. See Faliu v. Fofo, CA. No. 2504-72, slip op. at 1 (Trial
Div. Feb. 9, 1973) (Memorandum and Order).
The Court also noted that the issues Tuitasi raised were not issues the
Court could decide. Id. at 2. Citing Mola and Powell, the Court
declared that whether a candidate meets the requirements under Article
II, § 3 and/or received more votes in an election were non-justiciable
issues which must be resolved by the Senate under Article II, § 22. Id.
In a footnote, the Court added that Tuitasi had already petitioned the
9 Article II, § 11 reads in part: “Each house shall keep a journal of its
proceedings and publish the same, determine its rules of procedure,
punish members for disorderly behavior, and, with the consent of twothirds
of its entire membership, may expel a member, but not a second
time for the same offense.”
278
Senate concerning the same allegations. Id. n.2. That action
strengthened the reasoning that this Court cannot be involved in such a
determination. The Senate apparently made its choice because a few
days after the Court’s order was issued, it swore-in Lualemaga.10
Tuitasi, 4 A.S.R. at 800.
Thereafter, Tuitasi brought his own motion in this Court for a
declaratory judgment declaring him the duly elected Senator of that
district. The Court again declared that it could not issue such an order
because it “would be a clear usurpation of the Legislature’s
constitutional right [under Article II, § 22].” Tuitasi, 4 A.S.R. at 810.
The analysis could have ended there, as the result was consistent with the
Court’s order on February 9, leaving the issue for the Senate. However,
the Court added: “At this point, Respondent [Laulemaga] is clearly a
‘member’ of the Senate; and, consequently, it is the Senate that has the
express constitutional right to adjudicate any dispute over his election or
qualification. Meredith v. Mola, is not inopposite [sic] to this
conclusion.” Id.
This language could be viewed as declaring the Senate can exercise its
Article II, § 22 powers to judge the qualifications of its members even
after a Senator has been sworn-in. However, we do not attribute such a
broad reading to this wording. This language was dicta. The Court had
already declared, before Lualemaga was ever sworn-in, that it did not
have the power to review Tuitasi’s claim. Logically, that result would
not change after Lualemaga had been sworn-in.
But furthermore, we think that this language was just an inartful attempt
to restate what was already explicit in Powell and implicit in Mola. In
essence, this Court’s review of Senate action is barred by the political
question doctrine only if the Senate actually renders a constitutional
judgment pursuant to its Article II, § 22 powers. To do so, the Senate
must make its judgment before the Senator is sworn-in and can consider
only the qualifications enumerated in Article II, § 3. The proper exercise
of this power renders the Senator-elect a “member” and thereby insulates
the Senate’s actions from review by the courts. See generally Morgan v.
United States, 801 F.2d 445 (D.C. Cir. 1986); State ex rel. Turner v.
Scott, 269 N.W.2d 828 (Iowa 1978); State v. Evans, 735 P.2d 29 (Utah
1987).11
10 Because of the court’s order to the Commissioner to certify Lualemaga
and void his initial certification of Tuitasi, we assume, as did the parties
in that action, that Tuitasi’s initial swearing-in was a legal nullity.
11 In any event, to the extent that our reading of Tuitasi is inaccurate, we
are not bound by another decision of the Trial Division if there is a
279
c. POWERS TO EXPEL
[6-7] The Senate claims, however, that it cannot be precluded from
judging the qualifications of a Senator even after he has been sworn-in.
The Senate argues that it is possible a Senator may lose his matai status
while in office, thereby making him ineligible to serve. If that were to
happen, the Senate urges that it would have to remove him. The Senate
did not take note that a Senator may also become ineligible in other
ways: if he becomes an employee or public officer of the Government or
if he is convicted of a felony. See AM. SAMOA REV. CONST. art. II, § 3.
To the extent that our Constitution requires a Senator to have met certain
residency requirements “at the time of,” or “preceding” his election,
similar to the qualifications relied on in Powell, we are confident that our
reading of Powell is correct: those qualifications are not reviewable by
the Senate once they have chosen to seat a Senator. Compare AM.
SAMOA REV. CONST. art. II, § 3, with U.S. CONST. art. I, § 2. But our
Constitution also mandates that a Senator be a registered matai, that he
not be a public officer, and that he cannot have been convicted of a
felony. Our Constitution places no restriction that these qualifications
are applicable only at the time a Senator is elected. Thus, we agree with
the Senate that it has continuing jurisdiction over these aspects of
qualification, even after a Senator has been sworn-in.
The issue then is which constitutional provisions and procedures are
necessary to remove a Senator, already sworn-in, for reasons arising out
of his qualifications. We have found only one case in which a court
reviewed the actions of the Senate in regards to a sitting Senator. In
Raney v. Stovail, 361 S.W.2d 518 (Ky. Ct. App. 1962), the court
reviewed whether or not a Senate resolution declaring that a sitting
Senator was duly qualified to serve, even after accepting a political
appointment, was proper. The court there said that “the right of a
legislative body to judge the qualifications of its members includes the
right to decide finally whether or not one of them has become
disqualified during his term of office, and this decision is not subject to
court review.” Id. at 521-22. But because in that case the Senate voted
to allow the Senator to continue serving, this is the first case we know of
where a court must review the procedures for removing a sitting Senator
compelling reason not to follow it. See Sw. Marina of Samoa v. S & S
Contracting, 5 A.S.R.2d 70, 74 (1987). In Tuitasi, the issue presented in
this case was not before the court and any decision regarding the present
issues was made without proper briefing. Furthermore, stare decisis is
weaker in cases involving constitutional interpretation. Id.
280
because he may have become disqualified.
Contrary to the Senate’s position, Article II, § 22 does not control.
Instead, as we have already discussed, once a Senator has been sworn-in,
his subsequent removal is an expulsion—whether he has become
disqualified or has committed an offense against the Senate. Therefore,
the Senate’s power to act is governed by Article II, § 11, and all the
protections it affords. See Powell, 395 U.S. at 506-12.
Because Fa`amausili was sworn-in, it is clear then that he was not
excluded from the Senate but rather expelled. With that in mind, we
review the Senate’s votes to determine whether they were constitutional
and whether they present a political question beyond our review.
C. Senate Votes
1. September 16th
The evidence adduced at trial clearly established that the September 16th
vote was based on the Senate’s belief that the method for selecting
Fa`amausil was not conducted in accordance with Samoan custom as
provided by Article II, § 4.12 As already noted, the power to determine
whether an election conformed with Article II, § 4 falls within this
court’s jurisdiction, not the Senate’s. See Mauga v. Lutu, 10 A.S.R.2d
115, 118 (Trial Div. 1989); Faiivae v. Mola, 4 A.S.R. 834 (Trial Div.
1975); Tuitasi, 4 A.S.R. at 809; Mola, 4 A.S.R. at 780. The Senate has
no authority to review the election process itself, whether it undertakes
to do so before or after a Senator has been sworn-in.13 The September
16 vote does not represent a political question beyond our review
because it was unconstitutional. Thus, we determine that the vote was in
effect null and void.
2. September 30th
The evidence adduced at trial established that the September 30th vote
was also principally based on the Senate’s belief that Fa`amausili was no
longer recognized as the holder of a matai title, and therefore did not
12 Article II, § 4 provides in part, “Senators shall be elected in
accordance with Samoan custom by the county councils of the counties
they are to represent …
13 If ever the Senate questions the method of election of one of its
Senator elects, it could seek a declaratory judgment from this court
before swearing him in.
281
meet the qualifications to be a Senator under Article II § 3.14 Had the
Senate complied with Article II, § 11, the substance of their decision
would have constituted a political question beyond our review. The
record is clear that the Senate did not obtain the consent of two-thirds of
its members, an explicit constitutional prerequisite for the expulsion of a
Senator. Based on this alone, the Senate’s actions on September 30th
were unconstitutional and the vote thus null and void.
The record before us shows that Fa`amausili is a registered matai who is
fulfilling his obligations under Samoan custom in the counties in Senate
District No. 1. Nonetheless, it is possible that the Senate will choose to
hold another hearing after we issue our opinion and order in this action.
We caution it now that the expulsion of a Senator would not be proper
by merely obtaining the consent of two-thirds of the Senate membership.
Article II, § 11 encompasses certain constitutional due process rights
beyond the two-thirds’ requirement. For example, “a member whose
expulsion is contemplated may as a matter of right address the House
and participate fully in debate while a member-elect apparently does not
have a similar right.15 Powell, 395 U.S. at 510 n.30. Additionally, in
certain situations a member might be “allowed to cross-examine other
members during the expulsion debate.” Id. Furthermore, any action
taken by the Legislature is always subject to review in this court for
violations of another constitutional clause. See generally Bond v. Floyd,
385 U.S. 116 (1966) (State House of Representatives’ exclusion of
member-elect violated First Amendment); see also Luse v. Wray, 254
N.W. 2d 324, 328 (Iowa 1977) (“Iowa courts have power to adjudicate
substantial claims of deprivation of federal or Iowa constitutional rights
by the houses of the Iowa General Assembly in the exercise of the
houses’ election contest powers.”).
[8-9] We also think it clear that under the Due Process Clause of the
Revised Constitution of American Samoa, Article I, § 2, a Senator can
only be expelled for cause, either because he has become disqualified to
serve or has committed an offense against the Senate. He, therefore, has
a constitutionally protected property interest in serving his term. See
14 The Senate has conceded that Fa`amausili has not committed an
offense against the Senate which would subject him to expulsion. We
therefore need not address now what would constitute an expellable
offense. The Senate has not raised any disqualification issue other than
Fa`amusili’s mataiship. As pointed out, infra at 4, that under the
evidence, Fa`amausili is a duly registered matai and fulfills his
obligations under Samoan custom in Ta`u County.
15 It is clear that Fa`amausili, not having been allowed to be present
during the vote, was denied this right.
282
Gilbert v. Homer, 520 U.S. 924, 928-29 (1997) (citing Bd. of Regents of
State Colleges v. Roth, 408 U.S. 564 (1972)). “[T]he requirements of
due process contextually vary with the circumstances and the particular
demands of the case.” Ferstle v. Am. Samoa Gov’t, 7 A.S.R.2d 26, 49
(Trial Div. 1988). However, “before an individual is finally deprived of
a property interest,” due process requires at a minimum notice of the
grounds and opportunity to be heard “at a meaningful time and in a
meaningful manner.” Id. (quoting Matthews v. Eldridge, 424 U.S. 319,
333 (1976)) (emphasis added).16 Whatever other procedures are due, we
leave for discussion and decision when the issue is squarely before us.
Conclusion and Order
Fa`amausili’s expulsion from the Senate of the Legislature of American
Samoa, after he was sworn-in as a Senator, was not constitutionally
valid. He remains a sitting Senator and is entitled to all rights and
privileges of his office, including but not limited to full pay and
allowances accruing and unpaid after he was sworn-in on August 9,
2002.
It is so ordered.