Nua v Fuimaono [2004] ASLawRp 76; 9 ASR3d 40 (9 November 2004)

OPINIONS

OF THE

APPELLATE DIVISION

OF THE

HIGH COURT OF AMERICAN SAMOA

(2004)

MAILO SAOLUAGA NUA,
Plaintiff

v.

SOLIAI T. FUIMAONO, Election Commissioner,
Defendant.

High Court of American Samoa
Appellate Division

AP No. 10-04

November 9, 2004

[1] The Appellate Division only has original jurisdiction over election contests for cause that would produce a difference in the election result.

[2] The Appellate Division can only invalidate an election if a correct result cannot be ascertained.

[3] If election results are not challenged within the contemplation of A.S.C.A. §§ 6.0902-.0903, the issue of whether a writ of mandamus for a recount should be ordered is a matter properly heard before the Trial Division of the High Court.

Before KRUSE, Chief Justice.

Counsel: For Plaintiff Mailo Saoluaga Nua, pro se
For Defendant, David P. Vargas

ORDER OF TRANSFER (A.S.C.A. § 43.0115)

Plaintiff Mailo Saoluaga Nua, apparently member elect to the House of Representatives for District No. 1, filed his pro se complaint before the Appellate Division seeking a Writ of Mandamus commanding the Election Commissioner to: "recount the ballots for the House of Representatives Seat for District No. 1"; and "investigate the overage of one hundred fifty four votes for Candidate Mapu Puaopea Paopao from District No. 1."

[1-2] The Appellate Division only has original jurisdiction over election contests for cause that would produce "a difference in the election result." A.S.C.A. § 6.0902. Specifically, the Appellate Division can only invalidate an election "if a correct result cannot be ascertained," A.S.C.A. § 6.0903, and, therefore, it cannot be determined whether a candidate polled a majority or plurality of valid votes cast. Fuala'au v. Malepeai, 23 A.S.R.2d 48, 50 (App. Div. 1992).

[3] Here, Plaintiff does not seek to invalidate his election, rather, he simply contends that his margin of victory would be greater if his allegations are proven by a court ordered recount. In other words, the election results are not being challenged by Plaintiff within the contemplation of A.S.C.A. §§ 6.0902-.0903. Consequently, the issue of whether a writ of mandamus for a recount should be ordered is matter properly to be heard before the Trial Division of the High Court. A.S.C.A. ' 3.0208(a)(7).^[1]

Pursuant to A.S.C.A. § 43.0115, this matter is transferred to the Trial Division of the High Court upon plaintiff's payment of the appropriate filing fee. Plaintiff is granted leave to accordingly amend and file his pleadings, and to serve the defendant with a summons in accordance with applicable court rules.

It is so ordered.

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^[1] "[T]he trial division of the High Court shall have original jurisdiction of the following classes of cases and controversies: . . . (7) all writs . . . ."