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Public comments made by former DHS head found in violation of AS constitution

fili@samoanews.com

The Trial Division of the High Court has found that public comments made by Mike Sala, former Homeland Security Department director, regarding former ASG official, Birdsall Alailima “were clearly malicious and intended to harm Birdsall’s reputation” and therefore violate provisions of the American Samoa Constitution.
 
For this violation, Sala’s judgement totaled $45,000: $15,000 as general damage for emotional distress and $30,000 as punitive damages that Birdsall suffered from Sala’s “intentionally malicious acts in violation of Birdsall’s constitutional right to individual dignity.”
 
The 15-page court decision issued Aug.15 followed a two-day bench trial in March this year over a lawsuit filed in 2009 by Birdsall and his minor daughter against the ASG, Sala, former deputy attorney general Fredrick O’Brien and Hawaiian Airlines.
 
The original lawsuit had seven counts against the defendants but the court dismissed the following year, four of the counts, including those against Hawaiian Airlines for violating the plaintiff’s constitutional right to travel, when they were denied boarding the plane in 2007.
 
The bench trial centered on the plaintiffs’ count two — alleging an unconstitutional search and seizure of plaintiff's luggage that was already checked in with Hawaiian Airlines; count three — alleging that statements made by Sala and O’Brien to the media (mainly Samoa News) were defamatory regarding Birdsall; and count six — alleged violation of Birdsall’s protected right to the dignity of an individual under provision of the American Samoa Constitution.
 
The case went back to March of 2007 when Birdsall and his daughter were denied boarding by Hawaiian Air at the Tafuna airport. Birdsall was leaving the territory to seek employment after he was terminated as Homeland Security Advisor to the Governor’s Office. When he was terminated, under a reshuffling of the newly established ASDHS due to the lack of funding, Birdsall was also director of the Territorial Office of Homeland Security.
 
The following day, after Birdsall was denied boarding, O’Brien, who was Acting Attorney General at the time, told the local media that Birdsall had been stopped from leaving the territory based on a request from the Federal Bureau of Investigation and that probable cause existed that Birdsall had committed a felony, according to the lawsuit. 
 
Sala allegedly told O’Brien to issue the stop order at the FBI’s request because the FBI believed Birdsall was in possession of government files, the court decision states. It further notes O’Brien later allegedly admitted that, upon further investigation, he discovered the FBI had not made such a request.
 
According to the plaintiffs, neither O’Brien nor Sala acknowledged their errors in issuing the stop order or their false statement regarding Birdsall, said the judges, who pointed out Sala insisted he had not stated the FBI requested a stop order.
 
Rather, Sala argued he believed Birdsall was attempting to leave the territory while in possession of government files and he was trying to retrieve them, the decision said.
 
It also noted Sala was quoted in the Mar. 29, 2007 edition of Samoa News saying Birdsall had placed the territory’s homeland security program in a dire position, further exacerbating ASG’s difficult financial situation.
 
According to the decision, defendants were cleared of count two and three. Samoa News will report later on details of these two counts, as well as background on this case and total monetary judgement sought by the plaintiffs against all of the defendants.
 
It is on count six where the court sided with plaintiffs regarding comments made by Sala about Birdsall, but cleared ASG and O’Brien.
 
COUNT SIX
 
Plaintiffs contend the defendants violated a provision of the local constitution by failing to respect Birdsall’s dignity and making him suffer through unjustifiable attacks on his honor and reputation. Plaintiffs argued that in the Samoan culture, it is of utmost importance to publicly avoid offending or demeaning others.
 
Plaintiffs further argued that statements made by O’Brien and Sala to the public regarding Birdsall’s “competence and trustworthiness were a clear affront to his dignity and the dignity of his family.”
 
According to the plaintiffs, these actions by O’Brien and Sala in the course of their duties as ASG employees require a finding of constitutional violation.
 
“We agree,” the judges said and noted that the comments made by Sala “were clearly inappropriate and maliciously motivated.”
 
Sala may have believed that he was preventing Birdsall from leaving the island with official government documents, but the “clumsy way in which the stop order was requested and executed only put Birdsall through a humiliating ordeal which called his reputation into question,” the judges said.
 
“This was compounded by Sala’s comments blaming Birdsall for ASG’s financial problems,” the judges pointed out.  “While we found that Sala’s comments stating his opinions were not defamatory, they were clearly malicious and intended to harm Birdsall’s reputation.”
 
“The damage to Birdsall’s dignity and reputation is evidenced by his failure to find steady employment in the years following this incident,” according to the judges, who found that Sala’s comments amounted to a violation of Article I, Section Four, of the American Samoa Constitution protecting Birdsall’s “dignity as an individual”.
 
(Section 4, subtitle, ‘Dignity of the individual’, stated, “The dignity of the individual shall be respected and every person is entitled to protection of the law against malicious and unjustifiable public attacks on the name, reputation, or honor of himself or of his family.”)
 
“Our decision should not be interpreted as a finding that every instance of a person being insulted or criticized constitutes a loss of dignity in violation of the American Samoa Constitution,” the judges point out.
 
“We believe that the circumstance in the case at bar are unique and warrant a finding of a constitutional violation, given the public nature of the incident and Birdsall’s inability to find employment after the incident,” they said.
 
The decision was signed by Associate Justice Lyle L. Richmond and associate judges Mamea Sala Jr., and Muasau T. Tofili. Assistant attorneys general Michael Iosua and Eleasalo Ale represented the defendants.
 
Plaintiffs’ attorney, Charles Alailima, who is also Birdsall’s brother, told Samoa News that “Birdsall is pleased that the court has assigned responsibility to Sala for his malicious public statements. He does, however believe the court was “perhaps too protective of ASG in allowing it to escape responsibility for allowing this to happen.”
 
Calls to Sala’s cell phone went to voice mail and he didn’t immediately reply to email requests for comments yesterday morning. However, Samoa News learned yesterday afternoon that Sala is off-island.
 
The Attorney General’s Office says Ale and Iosua are both off island. Email questions were sent to Ale seeking comments but there was no immediate response. Email inquires sent to Iosua, resulted in an auto reply that he is on leave of absence until later this year and won’t have access to his email.
 
Deputy attorney general Mitzie Jessop didn’t immediately respond to email or telephone messages seeking comments on the case.



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