High Court denies preliminary injunctions against COVID-19 declarations
Pago Pago, AMERICAN SAMOA — In a 15-page decision last Thursday, the Trial Division of the High Court denied separate applications by plaintiffs Bryan Jackson and Steven Jay Pincus Hueter for a preliminary injunction, enjoining the governor and ASG from enforcing certain provisions of the COVID-19 declarations.
“We are not persuaded that either plaintiff has demonstrated likelihood of success on the merits, nor that great or irreparable harm will result, absent the issuance of a preliminary injunction,” according to the decision, signed by Chief Justice F. Michael Kruse and associate judges Fa’amausili P. Pomele and Muasau T. Tofili.
The court also referred to a recent U.S. Supreme Court ruling, which guided its decision on the two local cases pertaining to freedom of religion.
“Our denial of plaintiffs applications is informed by the Supreme Court’s recent rejection of interlocutory relief” sought against California Gov. Newsom’s COVID-19 related executive order, aimed at limiting the spread of the coronavirus, according to the judges, referring to the South Bay United Pentecostal Church case against Newsom.
The local court cited Supreme Court Justice Roberts:
• The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts “the safety and the heath of the people” to the politically accountable officials of the States “to guard and protect”.
• Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected... judiciary”, which lacks the background, competence, and expertise to assess public health and is not accountable to the people.
“Unlike the defendants, the courts are less equipped with the competence and expertise to assess matters of public health and scientific uncertainties,” the local court decision points out. “As such, we decline to second-guess Territorial officials on such matters.”
Jackson was the first to file his complaint, challenging the defendants’ COVID-19 declarations, alleging four counts of violation of his civil and Constitutional rights with respect to his First Amendment freedoms of religion and assembly. Hueter later filed his complaint, which outlined similar allegations.
LIKELIHOOD OF SUCCESS ON THE MERITS
Jackson claims the defendants’ public gathering restrictions have already caused him to suffer irreparable harm because his daughter’s recent high school graduation ceremony did not allow for in-person attendance and provided a low-quality live videocast as the only alternative.
He argued that if the defendants are not enjoined, he will be irreparably harmed by being prohibited from attending a similar graduation ceremony for another daughter who is currently in middle school.
Hueter complained that the numerical and time limitations placed by the emergency declarations on public and private and public gatherings violated his rights to peaceably assemble and freedom of religion.
In his motion for preliminary injunction, the court said Hueter argued that it’s “reasonably self-evident that there is irreparable harm that cannot be simply and immediately reduced to a financial or pecuniary value for the violation of [his] civil and constitution rights by the defendants,”
The court however, disagrees, saying that “Hueter has not articulated nor pled any factual allegations that demonstrated a continuing harm, and we disagree that any future harm he may suffer is ‘reasonably self-evident’.”
The judges recalled the July 10th hearing where Hueter complained of not being able to attend a religious meeting with a pastor and family after hours (referring to time restrictions placed on public gatherings provisions of the COVID-19 declarations).
Hueter also complained of the time restrictions placed on taxi operations affecting his ability to come and go. “Access to taxi service, however, can hardly be seen as a Constitutional right,” according to a footnote in the decision. “Perhaps to the taxi driver, but clearly not to Hueter.”
Although the emergency declarations place restrictions on the right to peaceably assemble and limiting the number of individuals who can gather at places of worship, the defendants’ note that “inordinate challenges exposes... American Samoa to epic vulnerabilities subjecting all its residents to unprecedented health, economic and social risk,” the court recalled defendants argument.
According to the judges, the emergency declarations have evolved over time and appear to have been re-calibrated depending on the situation at the time of issuance. Additionally, the defendants point to numerous factors as basis for the emergency declaration — such as limited number of test kits, limited availability of hospital beds, potential for medication and health supply shortages, and asymptomatic nature of this disease.
“The global COVID-19 pandemic has created a situation on the ground that is changing on a day-to-day basis, limited only to the speed at which we can receive information from off-island and from the scientific and medical communities in American Samoa,” the judges said.
They also referred to a daily tally released by John Hopkins University, which states that the U.S broke its previous record with the number of daily COVID-19 cases diagnosed four times between July 7 and July 16.
Therefore, while the declarations’ restrictions on public gatherings appear to curtail plaintiffs’ individual freedom to be physically present at a religious service or public gathering, “protecting a living community from preventable death is undoubtedly a compelling government interest,” the judges wrote in their decision.
“Given that such measures have in no way prevented religious organizations from broadcasting their services to followers via the internet and over television, such measures are narrowly tailored,” they say.
“Any infringement of plaintiffs’ freedoms pales when compared to the threat COVID-19 poses to the Territory’s residents,” according to the judges, who point out that in the context of the pandemic, the people’s safety and health is properly left to those “politically accountable officials” to safeguard and not the courts by way of provisional injunctive relief.
“With the rapidly evolving situation on the mainland, we are not persuaded that plaintiffs have shown ‘substantial likelihood of success’ on the merits,” the judges said.
According to the decision, the underlying premise to both plaintiffs’ applications is the submission that territorial boarders are/have been closed longer than the two-week incubation period for COVID-19 and thus, American Samoa is COVID-19 free.
Plaintiffs contend that the territory’s status as COVID-19 free renders the public gathering restrictions unconstitutional and that irreparable harm therefore follows as a matter of course.
“This submission is, however, faulty, grounded on an invalid premise and simplistic deduction,” the judges said, and noted that while Hawaiian Airlines’ two weekly flights have been cancelled since the first declaration, “this fact alone should not be conflated with complete Territorial isolation.”
They pointed out that there’s no apparent shortage of food, fuel, medicinal and other essential imports on-island. Furthermore, the Territory’s largest private employer continues with its operations — importing raw and exporting finished product — in accordance with the declarations.
“At the same time, we continue with the ad-hoc flow of people and goods between the two Samoas,” the judges said, adding that there’s also continued air cargo service to and from the territory.
“Absent a vaccine, or until we have in place capacity for an interim and comprehensive testing program, the call as to whether or not the territory is COVID-free is... best left to those tasked with public health and epidemiological assessments on behalf of the public at large,” they said.
“As such, contentions that the Territory is under an effective and absolute quarantine, however passionately and emotively voiced, are without merit,” according to the judges, who note that emergency declarations are not without “historical context to the Samoan people” - pointing to the deadly 1918 Spanish Influenza epidemic, during which American Samoa closed its borders while Western Samoa — as was its official name at the time — failed to implement any comparable programs.
Some 4,000 deaths were recorded there, while American Samoa didn’t register one-fatality. The court noted some of the preventive measures taken by the Naval Government in 1918 to protect local borders.
When compared to the emergency measures implemented by the Naval Government in 1918, the court said, ASG’s declarations “are relatively less demanding but, so far, proving just as effective in terms of keeping the Territory free of any COVID-19 related fatalities.”
“Weighing therefore the community’s interest in preserving its health and well-being against the individual freedoms of two individuals, the equities are glaringly against plaintiffs,” the court concluded.
Late Friday afternoon Samoa News received documents showing Steven Jay Pincus Hueter had filed a Motion to Reconsider.