AG’s office files for immediate dismissal of second COVID-19 lawsuit
Pago Pago, AMERICAN SAMOA — Through the Attorney General’s Office, the defendants — Gov. Lolo Matalasi Moliga and the American Samoa Government — on June 22nd requested the High Court for “immediate dismissal” of the lawsuit by local resident Steven Jay Pincus Hunter, who alleged civil and constitution rights violation as a result of the governor’s four COVID-19 emergency declarations.
The defendants, represented by Assistant Attorney General Alexandra Zirschky, also petitioned the court to deny plaintiff’s motion for a preliminary injunction as well as denial of plaintiff’s request for declaratory and equitable relief.
Through COVID-19 declarations, the lawsuit alleges — among other things — that “defendants knowingly, willfully and intentionally violated the Plaintiff’s civil and constitutional rights of — free exercise of his religious beliefs; rights to assemble peacefully and peaceably with other individuals; and rights to peacefully and peaceably assemble and congregate with any number of people freely.”
In the government’s 18-page response motion, the defendants acknowledged that the first declaration — issued in March — “undoubtedly impacted religious worship services”, but argued that it “did not specifically mention nor target religious services in any form.”
They pointed out that the extended declarations clarified the impact on “churches” and “all public gatherings, including religious worship” but encouraged the continuation of remote religious services and in the 5th amended declaration, loosened the public gathering restrictions from 10 people to 150 people.”
The defendants accused the plaintiff of bringing a “voluminous complaint with several contradictory and unclear causes of action” relating to the first declaration and the amended ones.
Defendants described the plaintiff’s complaint as “essentially 60 pages of various statutes and High Court caselaw that offers no factual allegations.”
According to the defendants, Hueter doesn’t allege that he holds any religious beliefs or engages in any religious practice nor does he offer specific factual allegations that he ever attempted to exercise his right to exercise his right to religious practice during the elective period of the first as well as amended declarations. Nor that he was thwarted in his attempts to do so by ASG actions.
A footnote in defendants’ motion points out that the current 5th amended declaration (which loosens restrictions) does, among other things — allow public gatherings of up to 150 people, and therefore, the 5th amended declaration makes the plaintiff’s claims “largely moot”.
Defendants also points out that Hueter doesn’t allege that under the loosened restrictions in later amended declarations, he attempted to participate in public gatherings of more than 150 people and he “does not clearly allege that the restrictions harmed or targeted his religious practice or assembly rights in a manner not generally applicable to non-religious gatherings or to every tax payer.”
“Simply put, there are not factual allegations in the complaint that allow the court to find that plaintiff has a direct, immediate and substantial interest in this litigation due to an injury caused by defendants that the court can now remedy,” defendants argued.
Defendants contend that the plaintiff’s complaint must be dismissed for lack of subject-matter jurisdiction due to non-compliance with the Government Tort Liability Act.
Plaintiff had sought a temporary restraining order (TRO), which was denied by the court and a hearing is set for July 10th on plaintiff’s request for a preliminary injunction. Defendants asked the court to consolidate this hearing to include its motion for dismissal.
Samoa News notes this is also the same hearing date for the first, but similar lawsuit filed by Bryan Jackson, who is a local resident and US citizen. Jackson had also requested a TRO but was denied by the court.
SIMILAR U.S. CASES
Defendants noted that jurisdictions across U.S. have issued far more restrictive executive orders and declarations in response to COVID-19. These declarations authorized “stay at home” orders and complete closing of houses of worship.
Several of these restrictions were challenged by religious groups who sought similar preliminary injunctions against the enforcement of restrictions on religious and assembly grounds, according to the defendants.
However, the defendants said both the Seventh Circuit and Ninth Circuit courts of appeal have denied these injunctions and upheld the restrictions and the US Supreme Court has repeatedly denied review or relief.
Hueter shared with Samoa News a copy of the defendant’s motion to dismiss his lawsuit.