One of two lawsuits over COVID-19 Emergency Declarations is dismissed
Pago Pago, AMERICAN SAMOA — The Trial Division of the High Court has granted a defense motion dismissing one of the two lawsuits filed against Gov. Lolo Matalasi Moliga and the American Samoa Government in connection with the governor’s four COVID-19 emergency declarations since March.
The court’s 17-page decision on Oct. 19th, followed the complaint filed by local resident and US citizen, Bryan Jackson in June, alleging violation of plaintiff’s civil and constitutional rights due to the governor’s continued unlawful declarations that a state of emergency exists in American Samoa.
The lawsuit, which sued the governor in his official capacity and “personally”, was later amended although it reiterated many of the initial allegations.
As a result of the governor’s declarations, the lawsuit alleges that the plaintiff has suffered injuries consisting of:
• prohibition of the free exercise of his religious beliefs;
• deprivation of his right to peaceably assemble along with other individuals; and
• the placement of unlawful restrictions on the number of people he could freely gather together with in peaceful assembly.
These three specific alleged injuries were addressed by the court, which sided with the defendants’ five-point arguments seeking to dismiss the complaint which sought — among other things — $4 million in punitive damages.
The court sided with the defense’s argument that the complaint lacked subject matter jurisdiction on the basis of sovereign immunity or in the alternative, failure to exhaust administrative remedies under the Government Tort Liability Act (GTLA).
According to the court, the government is immune from the lawsuit under the doctrine of sovereign immunity.
A footnote in the decision points out that under the GTLA, the government “is not liable... for punitive damages, except in a case wherein death is caused ...”
In the decision, the court said any alleged facts that would allow the court to infer that the governor in his official capacity deprived plaintiff of any constitutional rights are also precluded under the doctrine of sovereign immunity.
The court explained that a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office.
The court points to its July 30th order denying plaintiff’s motion for preliminary injunction, that the governor has by statute, sweeping powers to declare a public health emergency in the event a disaster strikes American Samoa.
Therefore, plaintiff’s tort claims against the governor in his “official capacity” are dismissed under the doctrine of sovereign immunity.
FAILURE TO STATE CLAIM
Even though plaintiff styled his complaint as a suit against the governor in his “personal” capacity, the court points out that the lawsuit contains no factual allegations that the governor acted in his personal capacity to deprive plaintiff of his Constitutional freedoms.
According to the court, plaintiff failed to meet the “heightened standard of pleading” and therefore claims against the governor in his personal capacity are dismissed.
FREEDOM OF RELIGION
Defendants argued that plaintiff has alleged no specific facts with respect to an abridgment of his religious freedoms.
The court agreed, saying that plaintiff made “no claim to a religious belief, nor have any claims been alleged by plaintiff’s amended complaint particularizing any actual interference by defendants with any of his religious activities.”
According to the court, plaintiff’s freedom of religion claims are presented in “general terms” but contain no factual allegations that he suffered an “injury in fact” relating to his freedom of religion.
Plaintiff’s claim of infringement of any religious beliefs are therefore dismissed for lack of standing.
FREEDOM OF ASSEMBLY
The judges notes that the “extent of the record before us suggests that plaintiff would also lack standing in his freedom of assembly claims.”
The court points to provisions of the 4th amended declaration, which prohibits all public gatherings, except for private gatherings of no more than 10 people.
Plaintiff had complained that these public gathering restrictions prevented him “from personally attending the high school graduation of his daughter” at Pacific Horizons school in May this year.
The court took into consideration an affidavit that plaintiff filed in July from a teacher at the school, which states that the plaintiff assembled with fellow parent-spectators at the May 19th graduation ceremony in an on-campus classroom, in a separate building from the graduates, connected by live video feed.
Based on the teacher’s affidavit, the court concluded that the plaintiff “did in fact assemble with other parents at the graduation ceremony event” on the school’s grounds.
According to the court, plaintiff’s claim of injury appeared to stem from the fact that the school elected to bifurcate their graduation ceremony between graduates and spectators and the parents’ frustration with the low-quality the video feed offered by the school.
In summary, the court said that neither the government nor the governor is responsible for separating the graduates from the parents, and the low video quality feed.
Therefore, plaintiff lacks standing to pursue his freedom of assembly claims.
Plaintiff requested the court to issue a declaratory judgment stating that defendants did not and do not have the legal power or authority to abridge, cancel, nullify, suspend or otherwise violate any parts or sections of the US Constitution or the American Samoa Constitution, and that plaintiff has the right to freely enjoy his First Amendment freedoms.
Defendants argued that the request for declaratory relief is inappropriate, and that plaintiff is requesting an “overbroad and vague declaration that the defendants are generally bound to follow the Constitution, a declaration that would provide no relief or clarity beyond the plain language of the Constitution already in effect.”
“We agree,” with the defense, said the court, noting that a “declaratory judgment would have no effect on any future coercive litigation as there is no justiciable issue before the court.”
Additionally, plaintiff is requesting that any future Emergency Declarations by the defendants containing similar language be preemptively declared unconstitutional.
“We cannot speculate or declare judgment based on facts that have not yet occurred; such matters are beyond the competence of this court,” the judges said.
The court also recalled its July 30th order denying plaintiff’s motion for Preliminary Injunction citing provision of a 2003 federal decision, “[t]he protections afforded by the First Amendment... are not absolute, and we have long recognized that the government may regulate certain categories of expression consistent with the Constitution.”
According to the judges, neither the plaintiff nor the court is capable of foreseeing how the impacts of COVID-19 pandemic will unfold in the future.
“Such speculation by the court would amount to an advisory opinion on contingent events, something we will not do,” they say and denied plaintiff’s motion for declaratory judgment.
The decision was signed by Chief Justice F. Michael Kruse and Associate Judges Fa’amausili P. Pomele and Mausau T. Tofili.
Jackson, who represented himself, told Samoa News after the decision was issued that he has no plans at this time to pursue the issue further.
The other lawsuit against the defendants with similar allegations in Jackson’s complaint remains pending in court and was filed by Steven Jay Pincus Hueter.