Court dismisses case filed by faipule vs ASEDA over use of bond revenue
Pago Pago, AMERICAN SAMOA — In a 7-page decision dated Jan. 6th, the Trial Division of the High Court dismissed the lawsuit filed by three House members against the American Samoa Economic Development Authority (ASEDA) board of directors, pointing out — among other things — that plaintiffs “lack standing” in their suit.
The court says the proper venue for the plaintiffs to address concerns regarding provisions of the ASEDA law is through the legislative process, not the court.
Focus of the lawsuit filed late September 2019 by Reps. Larry Sanitoa, Andra T. Samoa, and Vesaiai Poyer Samuelu, is the $50 million 2018 bond series issued by ASEDA, of which revenues were used for specific projects.
Plaintiffs argued that ASEDA must comply with the Budget Procedure Act and submit an Agency Program and Financial Plan for Fono approval before the funds are expended.
They further argued they have “legislative standing” to pursue this action, because ASEDA’s failure to comply with provisions of the Budget Act has effectively nullified their appropriation votes as legislators. Additionally, plaintiffs claim that this nullification of votes is not limited to them but applies to other members of the Fono, not named in the suit.
ASEDA’s motion to dismiss the lawsuit is “grounded on the submission that plaintiffs not only lack standing to pursue this action, having suffered no harm or injury” but provision of the ASEDA law exempts this government entity from the general budgetary process with bond-generated revenue, according to the court decision.
“While plaintiffs have not, and cannot, assert a particularized injury in fact in their personal capacities, they rely on the notion of ‘legislative standing’ in their official capacities,” according to the court decision signed by Chief Justice F. Michael Kruse and Associate Judge Muasau T. Tofili.
Legislative standing is dependent on a showing that an executive action nullified an opportunity for a representative to vote, the court said, and referenced two court cases — one local and another on the federal level.
The judges said, “we see no allegations made by plaintiffs of a specific legislative vote or opportunity to vote that was nullified, voided, or otherwise negated, to premise their claim of legislative standing.”
Moreover, “we see no basis for plaintiffs claiming institutional injury-in-fact as legislators through ASEDA’s failure to furnish and Agency Program and Financial Plan for prior Fono approval,” the judges point out.
The court, on the other hand upholds, as “meritorious”, ASEDA’s argument that bond-generated revenues are exempted under current law from the budget act. According to the judges, the bonding measure at issue was already approved by the votes of the plaintiffs predecessors — through two approved legislations that later became law — which do not contemplate a further appropriation role by the Fono.
The court cited two provisions of the law as approved by the Fono. One of them states in part that ASEDA “may issue its bonds hereunder from time to time without further authorization from the Legislature subject to the procedures and restrictions in this chapter.”
“These enactments clearly place funding and repayment measures contemplated under [the ASEDA] Act outside the vagaries of further political processes,” the judges wrote. “And the reason for this is self evident — investor confidence and security, without which the viability of the Act as a vehicle for economic development would be rendered quite impotent. “
In addition, “we cannot accept plaintiffs contention that the entire House of Representatives has been injured by the actions of ASEDA, notwithstanding these unnamed legislators’ supposed reluctance to join in [this] matter,” the judges continued.
“We decline to adjudicate claims involving legislators’ right not properly before the Court.”
“The Court does not issue advisory opinions,” the judges said and cited a ruling from a High Court case more than a decade ago, that “prevents the court from issuing advisory opinions.”
Plaintiffs had asked the court to define ASEDA’s role with regards to bond issuances going forward. But the judges said defining ASEDA’s role going forward “is not a present case or controversy.”
“Any conclusions to be drawn by the Court on actions ASEDA may undertake at a future time would be merely advisory.”
SEPARATIONS OF POWERS
The judges point to the Revised Constitution of American Samoa with the three separate branches of government — executive, legislative and judicial — which provides a series of checks and balances. The Court can only exercise power over matters and parties subject to its jurisdiction that have been properly before it.
According to the decision, plaintiffs, as legislators, retain the capacity to review ASEDA’s actions through the exercise of legislative oversight or through the legislative process.
“Such capacity, however, is repose in the Fono as a whole, and not in the Judiciary at the instance of individual legislators,” the judges explained. “In other words, the proper venue to address any concerns plaintiffs may have with regard to ASEDA’s implementation of the [ASEDA] Act, lies with the Fono, not the Court,” the judges said and granted ASEDA’s motion to dismiss the case.
Plaintiffs were represented by private attorney Thomas B. Jones, while Attorney General Talauega Eleasalo Ale, represented the ASEDA board.