APPELLATE COURT RULES(ACR)
TABLE OF CONTENTS
Rule 1.Title and Scope
Rule 2.Suspension of Rules
Rule 3Appeal as of Right - How Taken
Rule 4.Appeal as of Right - When Taken
Rule 7.Bond for Costs on Appeal in Civil Cases
Rule 8.Stay of Injunction Pending Appeal
Rule 9.Release in Criminal Cases
Rule 10.The Record on Appeal
Rule 11.Transmission of the Record
Rule 12.Docketing the Appeal; Filing of the Record
Rule 15.Review or Enforcement of Agency Orders How Obtained; Intervention
Rule 16.The Record on Review or Enforcement
Rule 17.Filing of the Record
Rule 18.Stay Pending Review
Rule 19.Settlement of Judgments Enforcing Orders
Rule 20.Applicability of Other Rules to Review or Enforcement of Agency Orders
Rule 21.Extraordinary Writs
Rule 22.Habeas Corpus Proceedings
Rule 23.Custody of Prisoners in Habeas Corpus Proceedings
Rule 24.Proceedings in Forma Pauperis
Rule 25.Filing and Service
Rule 26.Computation and Extension of Time
Rule 29.Brief of an Amicus Curiae
Rule 30.Appendix to the Briefs
Rule 31.Filing and Service of Briefs
Rule 33.Rehearing Conference
Rule 34.Oral Argument
Rule 36.Entry of Judgment
Rule 37.Interest on Judgments
Rule 38.Damages for Delay
Rule 40.Petition for Rehearing
Rule 41.Issuance of Mandate; Stay of Mandate
Rule 42.Voluntary Dismissal
Rule 43.Substitution of Parties
Rule 44.Cases Involving Constitutional Questions Where American Samoa Government is not a Party
Rule 45.Duties of Clerk
B. APPELLATE COURT RULES (ACR).
These rules govern procedure in appeals to the appellate division from the trial division, the land and titles division, and the district court and in proceedings in the appellate division for review or enforcement of orders of administrative agencies, boards, commissions and officers of American Samoa. When these rules provide for the making of a motion or application in the trial court, the procedure for making such motion or application shall be in accordance with the practice of the trial court. Reference to "judge" in these rules means a justice of the High Court.
RULE 2.SUSPENSION OF RULES. In the interest of expediting decision, or for other good cause shown, the appellate division may, except as otherwise provided in 26(b) ACR, suspend the requirements of provisions of any of these rules in a particular cause on application of a party or on its own motion and may order proceedings in accordance with its direction.
(a) Filing the Notice of Appeal. An appeal permitted by law as of right from the trial division, the land and titles division, or the district court to the appellate division shall be taken by filing a notice of appeal with the clerk of court within the time allowed by 4 ACR. Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the appellate division (or a single judge of the appellate division as specifically provided for in these rules) deems appropriate, which may include dismissal of the appeal.
(b) Joint or Consolidated Appeals. If two or more persons are entitled to appeal from a judgment or order of the trial division, the land and titles division, or the district court and their interests are such as to make joinder practicable, they may file a joint notice of appeal, or may join in appeal after filing separate notices of appeal, and they may thereafter proceed on appeal as a single appellant. Appeals may be consolidated by order of the appellate division upon its own motion or of a party or by stipulation of the parties to the several appeals.
(c) Content of the Notice of Appeal. The notice of appeal shall specify the party or parties taking the appeal and shall designate the judgement, order or part thereof appealed from and a request for an estimate for the transcript of the proceedings. Appellant(s) shall have five (5) days from the filing of the notice of appeal to request a estimate of the transcript from the Court Reporters. If the five (5) days has elapsed and no request for a transcript has been filed with Court or appellant(s) advises that he will not be ordering a transcript and will be submitting the matter on the balance of the record described in ACR 10. (a) and (c), the time for filing appellant(s) brief shall be thirty five (35) days from the filing of the notice of appeal. Form 1 in the Appendix of Forms to the Federal Rules of Appellate Procedure is the suggested form of a notice of appeal. An appeal shall not be dismissed for informality of form or title of the notice of appeal.
Counsel are reminded that it is their duty, not the Court Reporters, to file a copy of the receipt of payment of the transcript issued by the Court Reporters, and should familiarize themselves with High Court Appellate Court Rule 10(a) through (e).
(d) Service of the Notice of Appeal. The clerk of court shall serve notice of the filing of a notice of appeal by mailing a copy thereof to counsel of record of each party other than the appellant or by placing the notice in the Court box, if a party is not represented by counsel, by personal service on him or by mailing the notice to the party at his last known address. When appeal is taken by a defendant in a criminal case, the clerk shall also serve a copy of the notice of appeal upon him, either by personal service or by mail addressed to him. The clerk shall note on each copy served the date on which the notice of appeal was filed. Failure of the clerk to serve notice shall not affect the validity of the appeal. Service shall be sufficient notwithstanding the death of a party of his counsel. The clerk shall note in the docket the names of the parties upon whom he serves copies, with the date of service.
(e) Payment of Fees. Upon the filing of any separate or joint notice of appeal from the trial division, the land and titles division, or the district court, the appellant shall pay to the clerk of court such as established by 26 HCR.
Effective March 25, 1986
(a)Appeals in Civil Cases.
(1) In a civil case in which an appeal is permitted by law as of right from the trial division, the land and titles division, or the district court to the appellate division, a motion for a new trial as required by 43.0802 A.S.C.A. shall be filed with the clerk of court within 10 days after the date of entry of the judgment or order appealed from. The notice of appeal shall be filed within 10 days after the denial of the motion for a new trial.
(2) Except as provided in (a)(4) of this rule, a notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or ordershall be treated as filed after such entry and on the day thereof.
(3) If a timely notice of appeal is not filed by a party any other party may file a motion to dismiss the appeal and the appellate division or a single judge thereofmay consider and determine the motion.
(4) If a timely motion is filed in the trial division, land and titles division, or district court by any party under 52(b) TCRCP to amend or make additional findings of fact, the time for appeal for all parties shall run from the entry of the order granting or denying any such motion. A notice of appeal filed before the disposition of the above motion shall have no effect. A new notice ofappeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above. No additional fees shall be required for such filing.
(6) A judgment or order is entered within the meaning of this 4(a) ACR when it is entered in compliance with 58 T.C.R.C.P.
(b)Appeals in Criminal Cases. In a criminal case a motion for a new trial by a defendant as required by 43.0802 A.S.C.A. shall be filed in the trial division or district court within 10 days after the entry of the judgment or order appealed from. The notice of appeal shall be filed within 10 days after the denial of the motion for a new trial. A notice of appeal filed after the announcement of decision, sentence or order but before entry of the judgment or order shall be treated as filed after such entry and on the day thereof. If a timely motion in arrest of judgment has been made, an appeal from a judgment of conviction must be taken within 10 days after the entry of an order denying the motion. When an appeal by the government is authorized by statute, the notice of appeal shall be filed in the trial division or district court within 10 days after the entry of the judgment or order appealed from. A judgment or order is entered within the meaning of this subdivision when it is entered in the criminal docket.
RULE 7.BOND FOR COSTS ON APPEAL IN CIVIL CASES. The trial division, land and titles division or district court may require an appellant to file a bond or provide other security in such form and amount as it finds necessary to ensure payment of costs on appeal in a civil case. The provisions of 8(b) ACR apply to a surety upon a bond given pursuant to this rule.
(a)Stay Must Ordinarily Be Sought in the First Instance in Trial Court; Motion for Stay in Appellate Division. Application for a stay of the judgment or order of the trial division, land titles division, or district court pending appeal, or for approval of a supersedeas bond, or for an order suspending, modifying , restoring or granting an injunction during the pendency of an appeal must ordinarily be made in the first instance in the trial court. A motion for such relief may be made to the appellate division or to a judge thereof, but the motion shall show that application to the trial court for the relief sough is not practicable, or that the application has been denied, or has failed to afford the relief which the applicant requested, with the reasons given by the trial court for its action. The motion shall also the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported by affidavits or other sworn statements or copies thereof. With the motion shall be filed such parts of the record as are relevant. Reasonable notice of the motion shall be given to all parties. The motion shall be filed with the clerk and may be made to and considered by a single justice of the appellate division.
(b)Stay May Be Conditioned Upon Giving of Bond; Proceedings Against Sureties. Relief available under this rule may be conditioned upon the filing of a bond or other appropriate security. If security is given in the form of a bond or stipulation or other undertaking with one o more sureties, each surety submits himself to the jurisdiction of the trial court and irrevocably appoints the clerk of court as his agent upon whom any papers affecting his liability on the Bond or undertaking maybe served liability may be enforced on motion in the trial court without the necessity of an independent action. The motion and such notice of the motion as the trial court prescribes may be served on the clerk of court, who shall forthwith mail copies to the sureties if their addresses are known.
(c)Stays in Criminal Cases. Stays in criminal cases shall be had in accordance with the provisions of 38 T.C.R.CR.P.
(a)Appeals from Orders Respecting Release Entered Prior to a Judgment of Conviction. An appeal authorized by law from an order refusing or imposing conditions of release, shall be determined promptly, upon entry if order refusing or imposing condions of releasre the trial division or the district court shall state in writing the reasons for the action taken. The appeal shall be heard without the necessity of briefs after reasonable notice to the appellee upon such papers, affidavits, and portions of the record as the parties shall present. The appellate division or a judge thereof may order the release of the appellant pending the appeal.
(b)Release Pending Appeal from a Judgement of Conviction. Application for release after a judgement of conviction shall be made in the first instance in the trial division or the district court. If the trial division or the district court refuses release pending appeal or imposes conditions of the district court refuses release pending appeal or imposes conditions or release, the court shall state in writing the reasons for the action taken. Thereafter, if an appeal is pending, a motion for release, or for modification of the conditions of release, pending review may be made to the appellate division or to a judge thereof. The motion shall be determined promptly upon such papers, affidavits, and portions of the record as the parties shall present and after reasonable notice to the appellee. The appellate division or a judge thereof may order the release of the appellant pending disposition of the motion.
(c)Criteria for Release. The decision as to release pending appeal shall be made in accordance with the relevant provisions of the American Samoa Code Annotated. The burden of establishing that the defendant will not flee or pose a danger to any other person or to the community rests with the defendant.
(a)Composition of the Record of Appeal. The original papers and exhibits filed in the trial division, land and titles division, or district court, the transcript of proceedings, if any, and if ordered by either party, and a certified copy of the docket entries prepared by the clerk of court shall constitute the record on appeal in all cases.
(b) The Transcript of Proceedings; Duty of Appellate to Order; Notice to Appellee if Partial Transcript is Ordered.
(1) Within 10 days after receiving the reporter's or clerk's estimate the appellant shall order from the reporter a transcript of such parts of the proceedings not already on file as he deems necessary. The order shall be in writing and within the same period a copy shall be filed with the clerk of court and served on the appellate. If no such parts of the proceedings are to be ordered, within the same period the appellant shall file a certificate to that effect.
(2) If the appellant intends to urge on appeal that a finding or conclusions is unsupported by the evidence or is contrary to the evidence, he shall include in the record a transcript of all evidence relevant to such finding or conclusion.
(3) Unless the entire transcript is to be included, the appellant shall, within the 10 days time provided in (b)(1) of this rule, file a statement of the issues he intends to present on the appeal and shall on the appellee a copy of the order or certificate and of the statement. If the appellee deems a transcript of other parts ofthe proceedings to be necessary, he shall within 10 days after the service of the order or certificate and the statement of the appellant, file and serve on the appellant a designation of additional parts to be included. Unless within 10 days after service of such designation the appellant has ordered such parts, and has so notified the appellee, the appellee may within the following 10 days either order the parts or move in the trial division, land and titles division or district court for an order requiring the appellant to do so.
(4) At the time of ordering, a party must deposit an amount of cash equal to the estimated cost with the reporter. The deposit is subject to revision by the reporter when the transcript is completed. Counsel must file a copy of the reporter's receipt with the clerk of court. By order of the High Court, the cost may be raised to match that in the United States District Court, Honolulu, Hawaii, but in no event shall it be less than $.50 per page. Where the appellant orders the transcript and there are only two parties, the appellant must order and pay for the original and two copies of the transcript. the original will remain in the court's case file open to public inspection at the Courthouse. Appellant will deliver a copy to appellee and retain a copy. Where there is only one appellant and more than one appellee, the appellant must order and pay for a copy for each appellee. Where there is more than one appellant in a case, each must order and pay for one copy of the transcript and pay a proportionate share of the cost of the original transcript and a copy for each appellee. Costs of transcripts may be taxed in accordance with 54(d) TCRCP. If an appellant is represented by the Public Defender's Office or the Office of the Attorney General, then the estimated cost of the transcript need not be deposited as the time of ordering the transcript; rather, upon completion of the transcript, the court reporter is to transmit written notice of the cost of the transcript to the appellant's counsel, and payment of the cost is to be made as timely as practicable.
(5) The appellate division may on its own motion or motion by either party dismiss the appeal for failure of a party to comply with any of the aboveprovisions.
(c)Statement of the Evidence or Proceedings; When No Report Was Made or When the Transcript Is Unavailable. If no report of the evidence or proceedings at a hearing on report or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including recollection. The statement shall be served on the appellee, who may serve objections or propose amendments thereto within 10 days after service. There upon the statement and any objections or proposed amendments shall be submitted to the trial court for settlement and approval and as settled and approved shall be included by the clerk of court in the record on appeal.
(d)Agreed Statement As the Record On Appeal. In lieu of the record on appeal as defined in subdivision (a) of this rule, the parties may prepare and sign a statement of the case showing how the issues presented by the appeal arose and were decided below and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented. If the statement conforms to the truth, it, together with such additions as the court below may consider necessary fully to present the issues raised by the appeal, shall be approved by the court below and shall then be certified to the appellate division as the record on appeal and transmitted thereto by the clerk of court within the time provided by 11 ACR. Copies of the agreed statement may be filed as the appendix pursuant 30 ACR.
(e)Correction or Modification of the Record. If any difference arises as to whether the record truly discloses what occurred in the court below, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the court below, either before or after the record is transmitted to the appellate division, or the appellate division on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the appellate division.
Effective April 27, 1982.
(a)Duty of Appellant. After filing the notice of appeal the appellant, or in the event that more than one appeal is taken, each appellant, shall comply with the provisions of 10(b) ACR and shall take any other action necessary to enable the clerk to assemble the record.
(b)Duty of Reporter to Prepare and File Transcript; Notice to Appellate Division. Upon receipt of an order for a transcript, the reporter shall acknowledge at the foot of the order the fact that he has received it and the date on which he excepts to have the transcript completed and shall transmit the order, so endorsed, to the clerk of court. If the transcript cannot be completed within 30 days of receipt of the order the reporter shall request an extension of time from the clerk of court and the action of the clerk of court shall be entered on the docket and the parties notified. In the event of the failure of the reporter to file the transcript within the time allowed, the clerk of court shall notify the court below and take such steps as may be directed by the court below. Upon completion of the transcript the reporter shall file it with the clerk of court.
(a)Docketing the Appeal. Upon receipt of the copy of the notice of appeal the clerk of court shall thereupon enter the appeal upon the docket. An appeal shall be docketed under the title given to the action in the trial court, with the appellant identified as such, but if such title does not contain the name of the appellant, his name, identified as appellant, shall be added to the title.
(b)Filing the Record, Partial Record, or Certificate. Upon receipt of the reporter's transcript and completion of assembly of the record on appeal, the clerk of court shall file it and shall immediately give notice to all parties of the date on which it was filed.
(a)Petition for Review of Order; Joint Petition. Review of an order of an administrative agency, board, commission or officer of the American Samoa Government (hereinafter, the term "agency" shall include agency, board, commission or officer) shall be obtained by filing with the clerk of court within the time prescribed by law, a petition to the appellate division to enjoin, set aside, suspend, modify or otherwise review. The petition shall specify the parties seeking review and shall designate the respondent and the order or part thereof to be reviewed. Form 3 in the Appendix of Forms to the Federal Rules of Appellate Procedures is a suggested form of a petition for review. In each case the agency shall be named respondent. The American Samoa Government shall also be deemed a respondent if so required by statute, even though not so designated in the petition. If two or more persons are entitled to petition for review of the same order and their interests are such as to make joinder practicable, they may file a joint petition for review and may thereafter proceed as a single petitioner. Within 20 days after the petition is filed, the respondent shall serve on the petitioner and file with the clerk an answer to the petition.
(b)Application for Enforcement of Order; Answer; Default; Cross-Application for Enforcement. An application for enforcement of an order of an agency shall be filed with the clerk of court. The application shall contain a concise statement of the proceedings in which the order was entered, the facts upon which venue is based, and the relief prayed. Within 20 days after the application is filed, the respondent shall serve on the petitioner and file with the Clerk an answer to the application. If the respondent fails to to file an answer within such time, judgment will be rewarded for the relief prayed. If a petition is filed for review or an order which the appellate division has jurisdiction to enforce, the respondent may file a cross-application for enforcement.
(c)Service of Petition or Application. A copy of a petition for review or of an application or cross-application for enforcement of an order shall be served by the clerk on each respondent in the manner prescribed by 3 (d) ACR. At the time of filing, the petitioner shall furnish the clerk with a copy of the petition or application for each respondent. At or before the time of filing a petition for review, the petitioner shall serve a copy thereof on all parties who shall have been admitted to participate in the proceedings before the agency other than respondents to be served by the clerk, and shall file with the clerk a list of those so served.
(d)Intervention. A person who desires to intervene in a proceeding under this rule shall serve upon all parties to the proceeding and file with the clerk of court a motion for leave to intervene. The motion shall contain a concise statement of the interest of the moving party and the ground upon which intervention is sought. A motion for leave to intervene shall be filed within 30 days of the date on which the petition for review is filed.
(a)Composition of the Record. The order sought to be reviewed or enforced, the findings or report on which it is based, and the pleadings, evidence and proceedings before the agency shall constitute the record on review in proceedings to review or enforce the order of an agency.
(b)Omissions From or Misstatements in the Record. If anything material to any party is omitted from the record or is misstated therein, the parties may at any time supply the omission or correct the misstatement by stipulation, or the appellate division or judge thereof, may at any time direct that the omission or misstatement be corrected and, if necessary, that a supplemental record be prepared and filed.
(a)Agency to File; Time for Filing; Notice of Filing. The agency shall file the record with the clerk of court within 30 days after service upon it of the petition for review. In enforcement proceedings the agency shall file the record within 30 days after filing an application for enforcement, but the record need not be filed unless the respondent has filed an answer contesting enforcement of the order, or unless the appellate division or judge thereof otherwise orders. The court may shorten or extend the time above prescribed. The clerk shall give notice to all parties of the date on which the record is filed.
(b)Filing - What Constitutes. The agency may file the entire record or such parts thereof as the parties may designate by stipulation filed with the agency. The original papers in the agency proceeding or certified copies thereof maybe filed. Instead of filing the record or designated parts thereof, the agency may file a certified list of all documents, transcripts of testimony, exhibits and other material comprising the record, or a list of such parts thereof as the parties may designate, adequately describing each, and the filing of the certified list shall constitute filing of the record. The parties may stipulate that neither the record nor a certified list be filed with appellate division. The stipulation shall be filed with the clerk of court and the date of its filing shall be deemed the date on which the record is filed. If a certified list is filed, or if the parties designate only parts of the record for filing or stipulate that neither the record nor a certified list be filed, the agency shall retain the record or parts thereof. Upon request of the appellate division or the request of a party, the record or any part thereof thus retained shall be transmitted to the appellate division notwithstanding any prior stipulation. All parts of the record retained by the agency shall be a part of the record on review for all purposes.
RULE 18.STAY PENDING REVIEW. Application for a stay of a decision or order of an agency pending direct review in the appellate division shall ordinarily be made in the first instance to the agency. A motion for such relief may be made to the appellate division or to a judge thereof but the motion shall show that application to the agency for the relief sought is not practicable, or that application has been made to the agency and denied, with the reasons given by it for denial, or that the action of the agency did not afford the relief which the applicant had requested. The motion shall also show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported by affidavits or other sworn statements or copies thereof. With the motion shall be filed such parts of the record as are relevant to the relief sought. Reasonable notice of the motion shall be given to all parties to the proceeding in the appellate division. The court may condition relief under this rule upon the filing of a bond or other appropriate security.
RULE 19.SETTLEMENT OF JUDGMENTS ENFORCING ORDERS. When an opinion of the appellate division is filed directing the entry of a judgment enforcing in whole or in part the order of an agency, the agency shall within 14 days thereafter serve upon the respondent and file with the clerk a proposed judgment in conformity with the opinion. If the respondent objects to the proposed judgment as not in conformity with the opinion, he shall within 7 days thereafter serve upon the agency and file with the clerk a proposed judgment which he deems to be in conformity with the opinion. The appellate division or a judge thereof will thereupon settle the judgment and direct its entry without further hearing or argument.
All provisions of these rules are applicable to review or enforcement of orders of agencies, except that 3 ACR through 12 ACR and 22 ACR and 23 ACR are not applicable. As used in any applicable rule, the term "appellant" includes a petitioner and their term "appellee" includes a respondent in proceedings to review or enforce agency orders.
(a)Application for the Original Writ. An application for a writ of habeas corpus shall be made to the appellate division, the trial division or district court.
(b)Detention or Release of Prisoner Pending Review of Decision Failing to Release. Pending review of a decision failing or refusing to release a prisoner in such a proceeding, the prisoner may be detained in the custody from which release is sought, or in other appropriate custody, or may be enlarge upon his recognizance, with or without surety, as may appear fitting to the court of justice or judge rendering the decision, or to the appellate division, or to a justice of the appellate division.
(c)Release of Prisoner Pending Review of Decision Ordering Release. Pending review of a decision ordering the release of a prisoner in such a proceeding, the prisoner shall be enlarged upon his recognizance, with or without surety, unless the court or justice or judge rendering the decision, or the appellate division, or a justice of the appellate division shall otherwise order.
(d)Modification of Initial Order Respecting Custody. An initial order respecting the custody or enlargement of the prisoner and any recognizance or surety taken, shall govern review in appellate division unless for special reason shown to the appellate division or to a justice of the appellate division, the order shall be modified, or an independent order respecting custody, enlargement or surety shall be made.
(a)Leave to Proceed on Appeal in Forma Pauperis from Trial Court to Appellate Division. A party to a criminal action in the trial division or district court who desires to proceed on appeal in forma pauperis shall file in the court below a motion for leave so to proceed, together with an affidavit showing, in the detail prescribed by Form 4 of the Appendix of Forms to the Federal Rules of Appellate Procedure, his inability to pay fees and costs or to give security therefor, his belief that he is entitled to redress, and a statement of their issues which he intends to present on appeal. If the motion is granted, the party may proceed without further application to the appellate division and without prepayment of fees or costs in either court or the giving of security therefor. If the motion is denied, the court below shall state in writing the reasons for the denial.
Notwithstanding the provisions of the preceding paragraph, a party who has bee permitted to proceed in an action in the court below in forma pauperis, or who has be permitted to proceed there as one is financially unable to obtain adequate defense in a criminal case, may proceed on appeal in forma pauperis without further authorization unless, before or after the notice of appeal is filed, the court below shall certify that the appeal is not taken in good faith or shall find that the party is otherwise not entitled so to proceed, in which event the court below shall state in writing the reasons for such certification or finding.
If a motion for leave to proceed on appeal in forma pauperis is denied by the court below, or if the court below certifies that the appeal is not taken in good faith or finds that the party is otherwise not entitled to proceed in forma pauperis, the clerk shall forthwith serve notice of such action. A motion for leave so to proceed may be filed in the appellate division within 30 days after service of notice of the action of the court below. The motion shall be accompanied by a copy of the affidavit filed in the court below, or by the affidavit prescribed by the first paragraph of this subdivision if no affidavit has been filed in the court below, and by copy of the statement of reasons given by the court for its action.
(b)Leave to Proceed on Appeal or Review in Forma Pauperis in Administrative Agency, board, commission or officer who desires to proceed on appeal or review in the appellate division in forma pauperis, when such appeal or review may be had directly in the appellate division, shall file in the appellate division a motion for leave so to proceed, together with the affidavit prescribed by the first paragraph of (a) of 24 ACR.
(a)Filing. Papers require or permitted to be filed in the appellate division shall be filed with the clerk. Filing may be accomplished by mail addressed to the clerk, but filing shall not be timely unless the papers are received by the clerk within the time fixed for filing, except that briefs and appendices shall be deemed filed on the day of mailing if the most expeditious form of delivery by mail, excepting special delivery, is utilized. If a motion requests relief which may be granted by a single judge, the judge may permit the motion to be filed with him, in which event he shall not thereon the date of filing and shall thereafter transmit it to the clerk.
(b)Service of All Papers Required. Copies of all papers filed by any party and not required by these rules to be served by the clerk shall, at or before the time of filing, be served by a party or person acting from him on all other parties to the appeal or review. Service on a party represented by counsel shall be made on counsel.
(c)Manner of Service. Service may be by personal service, by placing the papers in the attorney's Court box, or by mail. Personal service includes delivery of the copy to a clerk or other responsible person at the office of counsel. Service by mail is complete on mailing.
(d)Proof of Service. Papers presented for filing shall contain an acknowledgment of service by the person served or proof of service in the form of a statement of the date and manner of service and of the names of the persons served, certified by the person who made service. Proof of service may appear on or be affixed to be filed without acknowledgment or proof of service but shall require such to be filed promptly thereafter.
(a)Computation of Time. In computing any period of time prescribed by these rules, by an order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period shall be included, unless it is a Saturday, a Sunday or a legal holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule "legal holiday" includes New Year's Day, Washington's Birthday, Flag Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Thanksgiving Day, Christmas Day, and any other day appointed as a holiday by the Governor or the fono.
(b)Enlargement of Time. The appellate division or a judge thereof for good cause shown may upon motion enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time; but neither the appellate division nor a judge thereof may enlarge the time for filing a notice of appeal, a petition for allowance, or a petition for permission to appeal. Nor may the appellate division or a judge thereof enlarge the time prescribed by law for filing a petition to enjoin, set aside, suspend, modify, enforce or otherwise review an order of an administrative agency, board, commission or officer of the American Samoa Government, except as specifically authorized by law. If there is no judge present in the Territory who is qualified to sit as a member of the appellate division on a particular case, motions for enlargement of time may be directed to the judge who rendered the decision appealed from in the trial division. His ruling may be reviewed by the appellate division or a judge thereof.
(c)Additional Time After Service by Mail. Whenever a party is required or permitted to do an act within a prescribed period after service of a paper upon him and the paper is served by mail, six (6) days shall be added to the prescribed period.
Effective July 15, 1987
(a)Content of Motions; Response; Reply. Unless another form is elsewhere prescribed by these rules, an application for an order or other relief shall be made by filing a motion for such order or relief with proof of service on all other parties. The motion shall contain or be accompanied by any matter required by a specific provision of these rules governing such a motion, shall state with particularity the grounds on which it is based, and shall set forth the order of relief sought. If a motion is supported by briefs, affidavits or other papers, they shall be served and filed with the motion. Any party may file a response in opposition to a motion within seven (7) days after service of the motion, but motions authorized by 8, 9, 18, and 41 ACR may be acted upon after reasonable notice, and the appellate division or a judge thereof may shorten or extend for responding to any motion.
(b)Determination of Motions for Procedural Orders. Notwithstanding the provisions of 27(a) ACR as to motions generally, motions of or procedural orders, including any motion under 26(b) ACR, may be acted upon at any time, without awaiting response thereto. Any party adversely affected by such action may by application to the court request consideration, vacation, or modification of such action.
(c)Power of a Single Judge to Entertain Motions. In addition expressly conferred by these rules or by law, a single justice of the appellate division may entertain and may grant or deny any request for relief which under these ruled may properly be sought by motion, except that a single justice unless otherwise provided by these rules may not dismiss or otherwise determine an appeal or other proceeding, and except that the appellate division may provide by order or rule that any motion or class of motions must be acted upon by the entire appellate division. The action of a single justice may be reviewed by the appellate division. If there is no judge in the Territory who is qualified to sit as a member of the appellate division on a particular case, motions for procedural orders may be directed to the judge who rendered the decision appealed from in the trial division. His ruling may be reviewed by the appellate division or a judge thereof.
(d)Form of Papers; Number of Copies. All papers relating to motions must be typewritten. Only an original need be filed, but the appellate division or a judge thereof may require that one or more copies be furnished.
Effective July 15, 1987
(a)Brief of the Appellant. The brief of the appellant shall contain under appropriate headings and in the order here indicated:
(1) A table of contents, with page references, and a table of cause (alphabetically arranged), statutes and other authorities cited, with references to the pages of the brief where they are cited.
(2) A statement of the issues presented for review.
(3) A statement of the case. The statement shall first indicate briefly the nature of the case, the course of proceedings, and its disposition in the court below. There shall follow a statement of the facts relevant to the issues presented for review, with appropriate references to the record (see subdivision (e)).
(4) An argument. The argument may be preceded by a summary. The argument shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on.
(5) A short conclusion stating the precise relief sought.
(b)Brief of the Appellee. The brief of the appellee shall conform to the requirements of subdivision (a) (1)-(4), except that a statement of the issues or of the case need not be made unless the appellee is dissatisfied with the statement of the appellant.
(c)Reply Brief. The appellant may file a brief in reply to the brief of the appellee, and if the appellee has cross-appealed, the appellee may file a brief in reply to the response of the appellant to the issues presented by the cross appeal. No further briefs may be filed except with leave of the appellate division or a judge thereof.
(d)References in Briefs to Parties. Counsel will be expected in their briefs and oral arguments to keep to a minimum references to parties by such designations as "appellant" and "appellee." It promotes clarity to use the designations used in the lower court or in the agency proceedings, or the actual names of parties, or descriptive terms such as "the employee," "the injured person," "the taxpayer," "the ship," "the stevedore," etc.
(e)References in Briefs to the Record. References in the briefs to parts of the record reproduced in the appendix filed with the brief of the appellant (see 30(a) ACR) shall be to the pages of the appendix at which those parts appear.
(f)Reproduction of Statutes, Rules, Regulations, Etc. If determination of the issues presented requires the study of statutes, rules, regulations, etc. or relevant parts thereof, they shall be reproduced in the brief or in an addendum at the end, or they may be supplied to the court in a pamphlet form.
(g)Length of Briefs. Except by permission of the appellate division or a judge thereof, principal briefs shall not exceed 50 pages, and reply briefs shall not exceed 25 pages, exclusive of pages containing the table of contents, tables of citations and any addendum containing statutes, rules, regulations, etc.
(h)Briefs in Cases Involving Cross Appeals. If a cross appeal is filed, the plaintiff in the court below shall be deemed the appellant for the purposes of this rule and 30 and 31 ACR, unless the parties otherwise agree or the appellate division or a judge thereof otherwise agree or the appellate division or a judge thereof otherwise orders. The brief of the appellee shall contain the issues and argument involved in his appeal as well as the answer to the brief of the appellant.
(i)Briefs in Cases involving Multiple Appellants or Appellees. In cases involving more than one appellant or appellee, including cases consolidated for purposes of the appeal, any number of either may join in a single brief, and any appellant or appellee may adopt by reference any part of the brief of another. Parties may similarly join in reply briefs.
(j)Citation of Supplemental Authorities. When pertinent and significant authorities come to the attention of a party after his brief has been filed, or after oral argument but before decision, a party may promptly advise the clerk of the court, by letter, with a copy to all counsel, setting forth the citations. There shall be a reference either to the page of the brief or to a point argued orally to which the citations pertain, but the letter shall without argument state the reasons for the supplemental citations. Any response shall be made promptly and shall be similarly limited.
A brief of an amicus curiae may be filed only if accompanied by written consent of all parties, or by leave of the appellate division or a judge thereof granted on motion or at the request of the court, except the consent or leave shall not be required when the brief is presented by the American Samoa Government, United States or an officer or agency thereof, or by a State, Territory of commonwealth. The brief may be conditionally filed with the motion for leave. A motion for leave shall identify the interest of the applicant and shall state the reasons why a brief of an amicus curiae is desirable. Save as all parties otherwise consent, any amicus curiae shall file its brief within the time allowed the party whose position as to affirmance or reversal the amicus brief will support unless the appellate division or a judge thereof for cause shown shall grant leave for later filing, in which event it shall specify within what period an opposing party may answer. A motion of an amicus curiae to participate in the oral argument will be granted only for extraordinary reasons.
(a)Duty of Appellant to Prepare and File; Content of Appendix. The appellant may prepare and file an appendix to the briefs which may contain:
(1)the relevant docket entries in the proceeding below;
(2) any relevant portions of the pleadings, charge, findings or opinion;
(3) the judgment, order or decision in question; and
(4) any other parts of the record to which the parties wish to direct the particular attention of the court. The fact that parts of the record are not included in the appendix shall not prevent the parties or the court from relying on such parts.
(f)Hearing of Appeals on the Original Record; Necessity of an Appendix. The appellate division or a judge thereof may require in specific cases an appendix or require or permit appeals to be heard on the original record.
(a)Time for serving and filing briefs. The appellant shall serve and file his brief within 40 days after the date on which the record is filed. The appellee shall serve and file his brief within 30 days after service of the brief of the appellant. The appellant may serve and file a reply brief within 14 days after service of the brief of the appellee, but, except for good cause shown, a reply brief must be filed at least 3 days before argument.
(b)Number of Copies to be Filed and Served. Five legible copies of each brief shall be filed with the clerk, unless the appellate division or judge thereof by order in a particular case shall direct a lesser number, and one copy shall be served on counsel for each party separately represented.
(c)Consequence of Failure to File Briefs. If an appellant fails to file his brief within the time provided by this rule, or within the time as extended, an appellee may move for dismissal of the appeal or appellate division or a judge thereof may on its or his own motion dismiss the appeal. If an appellee fails to file his brief, he will not be heard at oral argument except by permission of the appellate division.
The appellate division or judge thereof may direct the attorneys for the parties to appear before the appellate division or a judge thereof for a prehearing conference to consider the simplification of the issues and such other matters as may aid in the disposition of the proceeding. The appellate division or judge thereof shall make an order which recites the action taken at the conference and the agreements made by the parties as to any of the matters considered and which limits the issues to those not disposed of by admissions or agreements of counsel, and such order when entered controls the subsequent course of the proceeding, unless modified to prevent manifest injustice.
(a)In General, oral argument shall be allowed in all cases unless the appellate division, after examination of the briefs and record, shall be unanimously of the opinion that oral argument its not needed. Every party shall have an opportunity to file a statement or present to the appellate divisionthe reasons why, in his opinion oral argument should be heard.
Oral argument will be allowed unless:
(1) the appeal is frivolous; or
(2) the dispositive issue or set of issues has been recently authoritatively decided; or
(3) the facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument.
(b)Notice of Argument; Postponement. The clerk shall advise all parties whether oral argument is to be heard, and if so, of the time and place therefor, and the time to be allowed each side. A request for postponement of the argument of for allowance of additional time must be made by motion filed reasonably in advance of the date for hearing.
(c)Order and Content of Argument. The appellate is entitled to open and conclude the argument. The opening argument shall include a fair statement of the case. Counsel will not be permitted to read at length from briefs, records or authorities.
(d)Cross and Separate Appeals. A cross or separate appeal shall be argued with the initial appeal at a single argument, unless the appellate division or judge thereof otherwise directs. If a case involves cross-appeal, the plaintiff in the action below shall be deemed the appellant for the purpose of this rule unless the parties otherwise agree or the appellate division or judge thereof otherwise directs. If separate appellants support the same argument, care shall be taken to avoid duplication of argument.
(e)Non-Appearance of Parties. If the appellee fails to appear to present argument, the appellate division will hear argument on behalf of the appellant, if present. If the appellant fails to appear, the appellate division may hear argument on behalf of the appellee, if his counsel is present. If neither party appears, the case will be decided on the briefs unless the appellate division shall otherwise order.
(f)Submission on Briefs. By agreement of the parties, a case may be submitted for decision on the briefs, but the appellate division or judge thereof may direct that the case be argued.
(g) Use of Physical Exhibits at Argument; Removal. If physical exhibits other than documents are to be used at the argument, counsel shall arrange to have them placed in the court room before the appellate division convenes on the date of the argument. After the argument counsel shall cause the exhibits to be removed from the court room unless the appellate division otherwise directs. If exhibits are not reclaimed by counsel within a reasonable time after notice is given by the clerk, they shall be destroyed or otherwise disposed of as the clerk shall think best.
The notation of a judgment in the docket constitutes entry of the judgment. The clerk shall prepare, sign and enter the judgement following receipt of the opinion of the appellate division unless the opinion directs settlement of the form of the judgment, in which event the clerk shall prepare, sign and enter the judgment following final settlement. If a judgment is rendered without an opinion, the clerk shall prepare, sign and enter the judgment following instruction form the appellate division. The clerk shall, on the date judgment is entered, mail to all parties or place in the attorney's Court box a copy of the opinion, if any, or of the judgment if no opinion was written, and notice of the date of entry of the judgment.
Unless otherwise provided by law, if judgment for money in a civil case is affirmed, whatever interest is allowed by law shall be payable from the date the judgment was entered in the trial court. If a judgment is modified or reversed with a direction that judgment for money be entered in the trial court, the mandate shall contain instructions with respect to allowance of interest.
If the appellate division shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee.
(a)To Whom Allowed. Except as otherwise provided by law, if an appeal is dismissed, costs may be taxed against the appellant unless otherwise agreed by the parties or ordered by the appellate division; if a judgment is affirmed, cost may be taxed against the appellant unless otherwise ordered; if a judgment is reversed, costs may be taxed against the appellee unless otherwise ordered; if a judgment is affirmed or reversed in part, or is vacated, costs may be allowed only as ordered by the appellate division.
(b)Costs For and Against the American Samoa Government or the United States. In cases involving the America Samoa Government or the United States or an agency or officer thereof, if an award or costs against the American Samoa Government or the United States is not prohibited by law, costs may be awarded in accordance with the provisions of subdivision (a).
(c)Costs of Briefs, Appendices, and Copies of Records. The cost of producing necessary copies of briefs, appendices, and copies of records shall be taxable in the appellate division at rates not higher than those generally charged for such work in American Samoa.
(d)Bill of Costs; Objections; Cost to be Inserted in Mandate or Added Later. A party who desires such costs to be taxed shall state them in an itemized and verified bill of costs which he shall file with the clerk, with proof of service, within 14 days after the entry of judgment. Objection to the bill of costs must be filed within 10 days of service on the party against whom costs are to be taxed unless the time is extended by the appellate division or judge thereof. The clerk shall prepare and certify an itemized statement of costs taxed in the appellate division for insertion in the mandate, but the issuance of the mandate shall not be delayed for taxation of costs and if the mandate has been issued before final determination of costs, the statement, or any amendment thereof, shall be added to the mandate at the direction of the clerk of court.
(e)Costs on Appeal Taxable in the Trial Court. Costs incurred in the preparation and transmission of the record, the cost of the reporter's transcript, if necessary for the determination of the appeal, the premiums paid for cost of supersedeas bonds or other bonds to reserve rights pending appeal, and the fee for filing the notice of appeal shall be taxed in the trial court as costs of the appeal in favor of the party entitled to costs under this rule when ordered by the appellate division or a judge thereof.
(a)Time for Filing; Content; Answer; Action by Court if Granted. A petition for rehearing must be filed within 14 days after entry of judgment unless the time is shortened or enlarged by order. The petition shall state with particularity the points of law or fact which in the opinion of the petitioner the court has overlooked or misapprehended and shall contain such argument in support of the petition as the petitioner desires to present. Oral argument in support of the petition will not be permitted. No answer to a petition for rehearing will be received unless requested by the appellate division or judge thereof, but a motion for rehearing will ordinarily not be granted in the absence of such a request. If a petition for rehearing is granted the appellate division may make a final disposition of the cause without reargument or may restore it to the calendar for reargument or resubmission or may make such other orders as are deemed appropriate under the circumstances of the particular case.
(b)Service of Petition; Length. The petition shall be filed and served as prescribed by 31(b) ACR for the service and filing of briefs. Except by permission of the appellate division or judge thereof, a petition for rehearing shall not exceed 15 pages.
(a)Date of Issuance. The mandate of the appellate division shall issue 21 days after the entry of judgment unless the time is shortened or enlarged by order. A certified copy of the judgment and a copy of the opinion, if any, and any direction as to costs shall constitute the mandate, unless the appellate division directs that a formal mandate issue. The timely filing of a petition for rehearing will not stay the mandate unless otherwise ordered by the appellate division. If the appellate division has stayed the mandate in order to consider the petition and then the petition is denied, the mandate shall issue 7 days after entry of the order denying the petition unless the time is shortened or enlarge by order.
(a) Dismissal in the Trial Court. If an appeal has not been docketed, the appeal be dismissed by the trial court upon the filing in that court of a stipulation for dismissal signed by all the parties, or upon motion and notice by the appellant.
(b)Dismissal in the Appellate Division. If the parties to an appeal or other proceeding shall sign and file with the clerk of court an agreement that the proceeding be dismissed, specifying the terms as to payment of costs, and shall pay whatever fees are due, the clerk shall enter the case dismissed, but no mandate or other process shall issue without an order of the appellate division. An appeal may be dismissed on motion of the appellant upon such terms as may be agreed upon by the parties or fixed by the appellate division.
(a)Death of a Party. If a party dies after a notice of appeal is filed or while a proceeding is otherwise pending in the appellate division, the personal representative of the deceased party may be substituted as a party on motion filed by the representative or by any party with the clerk of court. The motion of a party shall be served upon the representative in accordance with the provisions of Rule 25. If the deceased party has no representative, any party may suggest the death on the record and proceedings shall then be had as the appellate division may direct. If a party against whom an appeal may be taken dies after entry of a judgment or order in the trial court but before a notice of appeal is filed, an appellant may proceed as if death had not occurred. After the notice of appeal is filed substitution shall be effected in the appellate division in accordance with this subdivision. If a party entitled to appeal shall die before filing a notice of appeal, the notice of appeal may be filed by his personal representative, or, if he has no personal representative, by his attorney of record within the time prescribed by these rules. After the notice of appeal is filed substitution shall be effected in the appellate division in accordance with this subdivision.
(b)Substitution of Other Causes. If substitution of a party in the appellate division is necessary for any reason other than death, substitution shall be effected in accordance with the procedure prescribed in subdivision (a).
(c)Public Officers; Death or Separation from Office.
(1) When a public officer is a party to an appeal or other proceeding in the appellate division in his official capacity and during its pendency dies, resigns or otherwise ceases to hold office the action does not abate and his successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.
(2) When a public officer is a party to an appeal or other proceeding in his official capacity he may be described as a party by his official title rather than by name; but the appellate division may require his name to be added.
It shall be the duty of a party who draws in question the constitutionality of any act of the Fono of American Samoa in any proceedings in the appellate division to which the American Samoa Government or any agency thereof, or any officer or employee thereof, as such officer or employee, is not a party, upon the filing of the record, or as soon thereafter as the question is raised in the appellate division to give immediate notice in writing to the court of the existence of said question. The clerk shall thereupon certify such fact to the Attorney General.
(b)The Docket; Calendar; Other Records Required. The clerk shall keep a book known as the appellate docket, in such form and style as may be prescribed by the Chief Justice of the High Court of American Samoa, and shall enter therein each case. Cases shall be assigned consecutive file numbers. The file number of each case shall be noted on the folio of the docket whereon the first entry is made. All papers filed with the clerk and all process, orders and judgments shall be entered chronologically in the docket on the folio assigned to the case. Entries shall be brief but shall show the nature of each paper filed or judgment or order entered. The entry of an order or judgment shall show the date the papers were filed. The clerk shall keep a suitable index of cases contained in the docket.
The clerk shall prepare, under the direction of the Chief Justice High Court, a calendar of cases awaiting argument. In placing cases on the calendar for argument, he shall give preference to appeals in criminal cases and to appeals and other proceedings entitled to preference by law.
The clerk shall keep such other books and records as may be required form time to time by the Chief Justice of the High Court of American Samoa.
(c)Notice of Orders or Judgments. Immediately upon the entry of an order or judgment the clerk shall serve a copy of the order of judgment by mail or by placing such in the attorney's Court box upon each party to the proceeding together with a copy of any opinion respecting the order or judgment, and shall make a note in the docket of the service. Service on a party represented by counsel shall be made on counsel.
(d)Custody of Records and Papers. The clerk shall have custody of the records and papers of the appellate division. He shall not permit any original record of paper to be taken from his custody except as authorized by the orders or instructions of the appellate division. Original papers transmitted as the record on appeal or review shall upon disposition of the case be returned to the court or agency from which they were received. The clerk shall preserve copies of briefs and appendices and other printed papers filed.