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Temporary injunction request on COVID-19 declaration turned down — again

American Samoa High Court building
Jackson hopeful for a ruling soon on his preliminary injunction request

Pago Pago, AMERICAN SAMOA — In seeking a preliminary injunction against the governor and the ASG over the governor’s COVID-19 declaration, plaintiff Bryan Jackson pointed out a specific provision of the Sixth Amended Declaration — proposing to enjoin the defendants from carrying them out.

Oral arguments were heard last Friday on Jackson’s preliminary injunction motion, which was taken under advisement by the Trial Division of the Court. Jackson made clear at the outset of his arguments that this case is not about opening the borders.

But with the borders closed, “where is the threat” of COVID-19 to American Samoa, which currently has no confirmed case, he said and argued there is “no basis” for issuance of the Six Amended declaration, adding that provisions under the Code-Blue threat are causing — among other things — economic harm to the community.

Under the preliminary injunction motion filed July 7th, Jackson requested that the defendants, including police and Health Department, “not take, conduct, or effectuate any activity intended to enforce” specific provisions of the current declaration, issued July 1st including:

• all public gatherings, including religious worship are open from 5a.m to 9p.m. The public is advised that failure to obey this restriction will be prosecuted as a Class A Misdemeanor” under local law.

• All businesses will only be allowed to operate from 5am. to 9 p.m.

• All public transportation services will also operate from 5a.m. to 9p.m daily. During hours of operation, buses and taxis “must institute social distancing practice” and “each bus and taxi may only operate at half the seating capacity.”

Before any future declarations are issued for COVID-19, which contains the same or similar provisions that violate or otherwise restrict the fundamental rights of the people of American Samoa, Jackson asked that the defendants be required to first appear before the court and produce sufficient evidence of a compelling governmental interest that such a declaration is needed.

Jackson argued that unless the court issues a preliminary injunction to prevent ASG from enforcing the unneeded, useless, ineffective and unconstitutional provisions in the governor’s “latest illegal disaster emergency declaration”, the people of American Samoa — including himself — will continue to suffer further harm from violations of their fundamental constitutional rights.

Assistant Attorney General Alexandra Zirschky, who represented the defendants strongly objected to Jackson’s arguments.

Meanwhile, the court last Friday afternoon denied Jackson’s motion for a temporary restraining order (TRO) enjoining the defendants from enforcement of the governor’s declaration. The court’s decision signed by Chief Justice Michael Kruse came a few hours after oral arguments were heard that Friday morning.

According to the court’s decision, Jackson filed a TRO request on June 11 which was denied the same day. Plaintiff then filed an amended complaint June 15, asking for identical relief in the form of a TRO.

At last Friday’s hearing on plaintiff’s request for a preliminary injunction referenced in the amended complaint, plaintiff indicated that his renewed request for a TRO is in regard to the Sixth Amended declaration currently in force, according to the court decision.

Jackson’s second request for a TRO appears to be essentially identical to that in this original compliant, thus, after considering the oral aspects of the motion on July 10th, plaintiffs request for TRO is denied, the decision states.

Jackson told Samoa News on Wednesday that it was his understanding that the last Friday’s hearing was on his preliminary injunction request. And this was also Samoa News’ interpretation of Friday’s hearing based on what Jackson stated in court.

The plaintiff is hopeful that the court will rule soon on his request for a preliminary injunction.