Motion denied for CJ and associates to disqualify in lawsuit against Gov
Pago Pago, AMERICAN SAMOA — The Trial Division of the High Court has denied a motion by local resident Steven Jay Pincus Hueter for the Chief Justice and two Associate Judges to disqualify themselves from presiding over his lawsuit against the governor and the American Samoa Government in connection with the governor’s COVID-19 emergency declarations.
The court, in a written order last week, stayed all proceedings in this case, pending final resolution in Hueter’s separate lawsuit — filed last month — alleging several claims against the Chief Justice that stem from the plaintiff’s lawsuit against the governor and ASG.
DISQUAIFICATION/ RESUCAL MOTION
In his June lawsuit, Hueter accused the governor and ASG of knowingly, willfully and intentionally violating the Plaintiff’s civil and constitutional rights of the — right to 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.” (See Samoa News edition June 17th for details.)
This case was presided over by Chief Justice F. Michael Kruse, along with Associate Judges Fa’amausili P. Pomele and Muasau T. Tofili.
The plaintiff alleged in his Aug. 5th motion for disqualification of the Chief Justice and Associate Judges that the “Judiciary received upwards of $500,000 of $2 million allocated by the defendants of the federal CARES Act funds for the demolition and construction of a new court house in Fagatogo”, according to the court’s Sept. 30th order, denying Hueter’s disqualification request motion.
Plaintiff claims “this gives rise to the appearance of impropriety and personal bias on [the part of] the Chief Justice and Associate Judges” presiding over this case, according to the court’s order which describes the plaintiff’s argument as “ludicrous”.
The court explained that the governor “did not give” the judges CARES Act money; he allocated a share of such federal funding to the judiciary.
“There is no personal gain on the part of the judicial panel to indicate bias,” the order states, noting that the “logical extension of this delusional claim [by plaintiff] is illustrated by the fact that judges would have to recuse themselves in any case involving the Fono because the Fono appropriates money for judiciary’s operations.”
The court explained that the Judicial branch relies on the Executive branch for a number of services from day to day such as infrastructure needs and maintenance by Public Works Department to ASG Treasury’s keeping track of its expenditures.
“Are judges precluded from therefore sitting on matters involving the Executive branch when a light or plumbing fixture needs to be fixed or changed at the courthouses or when court staff’s pay checks are expected to be timely processed?” the court asked.
The plaintiff’s “appearance” argument of bias “is abject nonsense founded on conspiracy based assumptions,” according to the order, which notes that the plaintiff “can only surmises that the Chief Justice has personal knowledge of the facts concerning the CARES Act process.
Plaintiff’s accusations against the judges “range from scandalous, to outlandish, to patently false” and the court finds that plaintiff’s motion is “clearly fueled by his hopes to secure a more favorable outcome from another arbiter,” the order states.
“This smacks of judge shopping,” which the court explains — citing a quote from a federal case — as “a practice that abuses the integrity of the judicial system by impairing public confidence in the impartiality of judges.”
According to the court’s order, plaintiff raising collateral issues about courthouse construction and personal lawsuits he intends to bring against the Chief Justice is “nothing but a pitiful, contrived effort to bolster his arguments for recusal and disqualification.”
A hearing on plaintiff’s disqualification motion was held several weeks ago. And during that hearing, plaintiff had indicted his intention to file a lawsuit against the Chief Justice in his personal capacity for action taken in his official capacity, which plaintiff claims warrants recusal.
“Threatening to sue the Chief Justice” for his role in carrying out his assigned duties as a presiding judge, borders on “tampering with a judicial proceeding... with purpose to influence the official action of a judge,” according to the court, quoting from a provision of local law.
Consistent with plaintiff’s “conspiracy slur are his scurrilous accusations” that Associate Judges Fa’amausili and Muasau “are biased” in favor of the defendants — the governor and ASG — by way of their being “potentially” appointed by defendant Gov. Lolo.
“These accusations are verifiable false,” said the court, which points out that the two associate judges were appointed by former Gov. Togiola T. Tulafono.
Therefore plaintiff’s motion to “disqualify the chief justice and the associated judges is denied,” the order states.
Last week Wednesday, the court issued a separate order saying proceedings in this case are pending final resolution to Hueter’s lawsuit — filed Sept. 8th — against the chief justice.
The court further ordered that the parties shall refrain from making filings in the instant matter, and all motions currently on file will be held in abeyance.
LAWSUIT AGAINST CHIEF JUSTICE
Hueter, in his 280-page lawsuit — including exhibits — filed Sept. 9th, alleged a multitude of claims against the Chief Justice. Practically all of the claims Hueter asserts are centered on allegations of violations to plaintiff’s constitutional and statutory rights stemming from orders the Chief Justice issued in Hueter’s lawsuit against the governor and ASG.
Among those orders, is the court’s denial of plaintiff’s request for a preliminary injunction, which seeks to allow him and others to attend church service 9p.m to 5a.m. the following day — which is one of the restrictions under the governor’s COVID-19 emergency declaration.
In his lawsuit, Hueter asserts that American Samoa is COVID-19 free, and that the plaintiff is not a carrier of the coronavirus and does not in any way represent a danger to public safety by going to church after 9 PM or before 5 AM, or by exercising his constitutional rights to freedom of religious expression and his constitutional rights to freedom of peaceful and peaceable public assembly after 9 PM or before 5 AM.
Plaintiff argued that there’s “no compelling governmental interest to deprive plaintiff from exercising his constitutional rights with other coronavirus free individuals within the borders of Coronavirus Free American Samoa.”
Plaintiff further made an accusation against the chief justice for “accepting CARES Act funds” allocated by the governor to the judicial branch including $500,000 to the Judicial branch — the same amount given to the Fono — for remote working from home.
“One potential way to avoid the appearance of impropriety is for the Chief Justice, to simply return the funds immediately, (allocated) for the demolition of the old ASTCA building, and to renounce the new Courthouse as being improperly paid for by in-part Plaintiff’s Taxpayer CARES Act Funds,” the lawsuit alleges.
(Plaintiff, who is originally from New York, claims several times in his lawsuit and other motions filed in court last month that the CARES Act Funds are in-part Plaintiff’s taxpayer CARES Act funds.)
In a 42-page Sept. 28th response, the Chief Justice — who is represented by the court’s legal counsel Jon A.G. Clemens — asked the Trial Division to deny plaintiff’s claims in the lawsuit, which is described by the defendant as “frivolous and vexations”.
The defense also argued that the defendant has “qualified immunity” and that the lawsuit is “not justiciable” and “lacks standing”. The defense will be filing a separate detailed response to Hueter’s lawsuit.