Court takes Save & Sandra challenge under advisement
The Appellate Division of the High Court heard oral arguments in the appeal by candidate for governor Save Liuato Tuitele and candidate for lieutenant governor Sandra King Young over the chief election officer’s decision to deny their challenge of the eligibility of four candidates for governor or lt. governor, yesterday morning.
The challenged candidates are candidates for governor Lolo Letalu Matalasi Moliga and Dr. Salu Hunkin Finau and candidates for lieutenant governor Le’i Sonny Thompson and Taufete’e John Faumuina.
The main gist of the challenge is these candidates didn’t resign from their government jobs prior to active campaigning, and points to 4.0102 Qualifications of Governor and Lieutenant Governor, subsection (f) of the American Samoa Annotated Code, which reads:
Candidates for the offices of Governor and Lieutenant Governor who are employees of the government in whatever capacity and for either the executive, or judicial branches, must resign their position with the government before commencing active campaigning. “Active campaigning” includes but is not limited to: the acceptance of a petition from the election official charged with that responsibility; any effort whatsoever that is designed to influence or obtain votes from qualified electors; and any activity that would cause a conflict of interest at the candidate’s position of employment with the government. In any event, candidates must resign no later than 60 days prior to the election date even if the events above have not occurred.
Chief Justice Kruse and the Appellate panel did not render a decision yesterday but took the petition under advisement saying the court would render a written decision at the earliest possible time.
RICHMOND RECUSES HIMSELF
Associate Justice Lyle L Richmond recused himself from the Appellate panel prior to hearing briefs filed by the challenged candidates.
Richmond told the court that he was the Chief Election Officer back in 1977 and was very much involved in the election process back when the laws were written. Richmond noted that after reading documents before the court on this matter, he decided he should recuse himself.
Remaining on the Appellate panel are Chief Justice Michael Kruse, Associate Justice John Ward II, Chief Associate Judge Logoai Siaki and Associate Judge Mamea Sala Jr.
SAVE AND SANDRA
Representing Save Liuato Tuitele and Sandra King Young was Charles Ala’ilima who told the court that the Chief Election Officer (CEO) had denied their petition claiming that he does not have the authority to make a determination of qualifications of candidates and also citing the lack of time to make a determination.
According to the brief filed before the court the petition’s appeal challenges the two reasons given by the CEO — lack of authority and lack of time — Ala’ilima said they are clearly erroneous in a view of the reliable, probative, and substantial evidence in the whole record.
Ala’ilima added that Attorney General Fepulea’i Arthur Ripley issued an opinion on August 30, 2012, which clearly states the CEO has authority to review candidate qualifications challenges, and the CEO shall determine whether the nominated candidates are eligible for election.
He noted that when Save and Sandra first filed a complaint about this issue, the CEO referred this matter to the Attorney General for advice, and the AG’s office chose to wait until August 30, 2012 to issue an opinion, which states that candidates included in statute must resign from their positions with the government in order to be eligible as candidates.
“Resignation means a voluntary separation from employment.”
He further argues that the CEO cannot use time constraints as an excuse to ignore his duty under the law.
According to Ala’ilima’s brief the CEO refused to investigate, examine or rule on the challenge brought by petitioners.
Ala’ilima in court quoted ASCA 6.0301(d), which says the CEO, shall determine the nominated candidates are eligible for election. He added the CEO cannot ignore his duties to determine eligibility just because he thinks he has insufficient time.
Further he said, the CEO’s complaints about time constraints is undermined by his failure to address the issue in the five months after Save and Sandra raised the issue with the Election office.
He noted the CEO has access to the Director of Human Resources and could easily determine the government employment status of candidates.
The brief noted there is simply no excuse for the CEO’s failure to investigate and address this issue of eligibility of the challenged candidates even under the time constraints.
Ala’ilima in his brief asked the court for future reference that the court must declare that the CEO must do his duty and address challenges to the eligibility of candidates that have been filed in a timely manner.
Ala’ilima noted in his brief there are compelling reasons for the appellate court to determine the eligibility of the challenged candidates to allow testimony and evidence to supplement the record.
According to the brief, since the denial of the petitioners’ challenges by the CEO arose from the Chief’s misapprehension of his duties under the law and not from adjudication on the merits of the challenge, the normal appellate remedy would be to remand with appropriate instructions.
Ala’ilima noted the appellate court in this action has already heard from the CEO about the necessity for a quick resolution in order to print the absentee ballots.
According to the brief, the CEO’s refusal to review these challenges if not appealed, could result in ineligible candidates appearing on the ballot.
Those voting for an ineligible candidate are disenfranchised of their right to vote for an eligible candidate, and the possible disenfranchisement of votes in that circumstance is significantly greater that those few early absentee voters.
CHIEF ELECTION OFFICER
CEO’s lawyer Henry Kappel told the court that the statute, 4.0102 subsection (f) does not refer to the CEO, but rather to government employees who wish to run in the gubernatorial race and is a matter for the employer, not the CEO.
He added that the CEO’s decision was correctly applied to the challenge and is not in violation of any law.
Kappel added that the CEO and qualified absentee voters are unduly prejudiced because of Save and Sandra’s challenge.
Deputy Attorney General Sale Alo noted that the government is not a real party-in-interest in this matter, but is named as a respondent in this issue.
He said that the AG has issued an opinion, which is that — “just an opinion”.
Alo noted the CEO could have sought and did obtain legal advice from private and other counsel rather than await the AG’s legal opinion.
He added that the petitioners hinted at a candidate eligibility letter sent back in April 4, 2012 however they filed the petition on September 10, 2012.
He said in his brief filed with the court, that it appears from the record that petitioners failed to follow up in their initial letter to the CEO or demand a hearing with the CEO of the board of registration. He told the court that the late-filed challenge threatens the rights of the American Samoa voters to vote for their selected gubernatorial team.
The Deputy AG further stated that if petitioners prevail, four of the gubernatorial teams may be eliminated from the race, and petitioners will potentially be placed in position to take the highest office of the land not by choice of the voters but by default.
Ale urged the court to consider the impact of a strict interpretation especially when it will significantly reduce the option available to the voters this November.
He added that the government wishes to point out that the practice of ASG employees campaigning prior to resignation has been the norm for many years, in consideration of the Samoan way of life, (fa’alavelave and other family financial obligations) requiring an individual to give up his job and perhaps the sole source of income for his family well in advance of an uncertain outcome is sure to discourage otherwise qualified candidates from seeking gubernatorial office.
“Perhaps this is one statute that is due for revision and updating by the fono to reflect the actual practice and customs which have developed since its enactment 35 years ago.”
The Deputy AG asked the court to deny the petition and uphold the candidate eligibility.
Attorney for Taufete’e, Fiti Sunia told the court the CEO was correct in deciding that his determination of the qualifications as candidates for the gubernatorial candidates is limited to the qualifications.
He said that ASCA 4.0102 (F) does not provide an additional qualification or eligibility requirement for candidates running for office — it is unambiguously — merely requiring the resignation of government employees before actively campaigning and that is the provision’s plain meaning. “It means’ nothing else,” said Sunia.
It’s simply a personnel policy or rule for government employees, he said.
Sunia added that if the Fono wanted to make ASCA 4.0102 (F) a situation that renders a candidate ineligible, it could easily have done so, however it did not.
The Fono limited its ineligibility enactments to provision two, where it states that a person convicted of a felony is not eligible for election, and under subsection (E) where it states that a person separated from military service under conditions other than honorable is not eligible for election.
He stated there is no doubt that the Fono did not intend for subsection (F) to be an eligibility provision.
Sunia asked the court to deny the petitioner’s claim and uphold the decision of the CEO.
Sharron Rancourt attorney for Le'i moved to adopt or echo arguments made by Sunia and noted that this appellate court lacks jurisdiction because petitioners failed to comply with the procedure for government appeals.
She stated that Civil Appeals are government statutes that require a motion for new trial, a notice of appeal. Rancourt noted that the Appellate Court rules amplify the statutes and prescribes similar requirements for filing a motion for new trial /reconsideration and notice of appeal.
She noted that the petitioners made no attempt to ask the CEO for reconsideration, and even if the appellate court were to disregard the statutory and rule requirements for filing a motion for reconsideration, petitioner still did not perfect their appeal.
In her brief, Rancourt noted that if the court reaches the merits of this case, the legal interpretation of the CEO is not erroneous.
SALU AND LOLO
Salu and Lolo’s lawyer David Vargas argued that the Appellate Division of the High Court of American Samoa is not the proper forum to establish the record for purpose of reviewing an agency decision. The record, as a matter of administrative law, needs to be established by the applicable agency from which review is being sought.
Vargas in his brief noted that the Petitioners, by chance or design, did not request a hearing to support the asserted basis for the challenge and, more importantly, made these demands at a time, which made it impossible for the challenged candidates to respond to, or meaningfully participate in a due process hearing on the merits. Additionally, the manner and timing of the challenge to the CEO on September 6, 2012 logistically precluded the creation of an adequate record for appellate review of the CEO’s decision.
Vargas noted that the decision of the CEO to deny the relief requested at the agency level was appropriate under the cited statutes involved. A fair reading of the election statutes in Title 4 and Title 6 do not require the CEO to investigate or punish any candidate believed to be involved in campaign activity while still employed with the American Samoa Government.
More importantly, Title 4 does not provide any guidance as to what the CEO is required to do when confronted with a fact situation as alleged by Petitioners.
Vargas said the ASCA §4.0102 does not provide for a disqualification process, so it would appear that the challenger must not only in a timely manner inform the CEO of the charges but, at the same time, in a timely manner request an administrative hearing to allow the challengers and the challenged an opportunity to present evidence and otherwise be afforded their due process rights with regard to the allegations.
Vargas argued that Salu was under contract with the ASG Department of Education as an Independent Contractor, as shown by her affidavit filed. Accordingly, she does not fall within the definition of a “government employee”.
Similarly, Lolo Moliga is a political appointee and does not fit within the definition of an employee. Specifically, Lolo was appointed President of Development Bank of American Samoa (DBAS) in January or early February 2009 and resigned his presidency on June 30, 2012. The appointment was made under the authority of Title 28, Development Bank of American Samoa, §28.0103 (b) and, as such, Lolo Moliga serves at the pleasure of the Governor and the DBAS board of directors.
Vargas asked the court to dismiss the petition on jurisdictional grounds and, if the matter is determined on the merits, it must be dismissed on the basis that neither Salu nor Lolo are employees within the meaning of A.S.C.A. 4.0102 (f).
Vargas noted that the court should give serious consideration that the petitioners are to make a good faith and reasonable effort to determine the specifics of the employment relationship between Parties in Interest and the American Samoa Government. In addition, Petitioners should have provided more than mere conjecture and speculative information in their original challenge to the CEO and the subsequent letter of September 5, 2012, which was fatally lacking with regard to any evidentiary support in respect of the request for disqualification.
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