Letter of the Hon. F. Michael Kruse dated May 17, 1995

May 17, 1995
To: Roy JD. Hall, Jr., Chairman
Standing Committee on Bar Admissions
Pago Pago American Samoa 96799

From: F. Michael Kruse, Chief Justice

Copy: Janet. L Skeels

John D. Huff
William H. Reardon
Standing Committee Members
Marshall Ashley, President A.S.B.A.

Ref: Bar Association Membership Residency Requirement
In re the application of Janette L. Skeels
In re the application of John D. Huff

This is to clarify the High Court Rule requiring applicants for admission to the American Samoa Bar Association to be residents of the territory.

Your committee has submitted, for my consideration, a split decision on the bar applications of Janet L. Skeels and John D. Huff ("applicants"). Both applicants are currently active bar members and residents of the State of California. They have applied for admission to the American Samoa Bar Association since their working relationship with the Law Offices of William H. Reardon will be bringing them to American Samoa periodically to practice law.

Bar Admissions Committee member Charles V. Ala'ilima dissented to the applicants' admission on the grounds that the Rules of Admission regarding residency requirements should be rewritten to clarify the High Court Rule promulgated by Acting Chief Justice Thomas Murphy dated November 13, 1981. This Rule clearly requires that an individual must be a resident of American Samoa in order to qualify for admission to the bar.

The applicants urge that such a Rule violates the privileges and immunities clause of the United States Constitution, which provides that the "Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." U.S. Const. Art. 4, Sec. 2, cl. 1. Applicants cite Thorston v. Virgin Islands Bar Association, 489 U.S. 546 (1989), for the claim that the practice of law is a privilege protected by the privileges and immunities clause of the U.S. Constitution and that a nonresident of a territory who otherwise qualifies for bar admission has an interest protected by the clause.

In Thorston, The Supreme Court found that a Virgin Islands Bar Association Rule requiring an applicant to be a resident in the territory for one year before applying for bar admission was unconstitutional under the privileges and immunities clause. Id. at 559. Although the privileges and immunities clause uses the term "citizens of each State," and not territories, the Court held that it applied to the Virgin Islands Pursuant to 42 U.S.C. Sec. 1561. Id. (emphasis added). In passing 45 U.S.C. Sec. 1561, the U.S. Congress expressly stated that the privileges and immunities clause of the U.S. Constitution "hereby extend[s] to the Virgin Islands to the extent that they have not been previously extended to that territory and shall have the same force and effect there as in the United States or in any State of the United States."

Neither the U.S. Congress nor the Legislature of American Samoa have ever passed a law, such as 49 U.S.C. Sec. 1561, that would allow extend the application of the privileges and immunities clause of the U.S. Constitution to American Samoa. Without such a mandate, the privileges and immunities clause does not apply to a territory. Anderson v. Scholes, 83 F.Supp. 681, SSY (I) (Alaska 1949) (court held that the term "citizens" used in the privileges and immunities clause has the same meaning as in the fourteenth amendment, which does not apply to the territories of the United States). American Samoans are recognized as "nationals" and not citizens of the United States. In dicta, the High Court of American Samoa has also stated that the privileges and immunities clause of the U.S. Constitution "applies to the States on its face" and not to American Samoa. Banks v. ASG, 4 A.S.R.2d 113, 128, f. 7 (Trial Div. 1987).

For these reasons, I am denying the admission of Janette L. Skeels arid John D Huff to the Bar Association of American Samoa due to their failure to satisfy the High Court Rule requiring applicants to the Bar to be residents of American Samoa. At this time, I see no compelling reason to amend this requirement. Since the privileges and immunities clause does not apply to American Samoa, it offers no protection to the applicants. Furthermore, HCR 145, which provides for Pro Hac Vice admission, has been liberally applied to off-island counsel, including practitioners from neighboring Western Samoa. If either applicant has a matter pending with the High Court, they may request the Chief Justice to grant them Pro Hac Vice status.

By copy of this letter to the President of American Samoa Bar Association, I am inviting comment from the Bar as to the desirability of a continuing residency requirement for admission to Bar membership and practice before the High Court. Some counsel, including yourself, have variously expressed the need revisit the rule's residency premise especially in those cases where off-island counsel intend to associate with local law offices. There is merit to this view, since the court can then look to the local office to secure compliance with counsel's responsibilities to the court and American Samoa public. As the High Court recently stated in American Samoa Government v. Wilson, CR No. 08-93, (Trial Div. 1993), slip op. at 2 (Order on Motion to Withdraw, issued Mar. 31, 1990), "[in] reaping the benefits as a legal profession, an attorney accepts his office cum onere." Among my concerns, are desire to ensure that the onus of the profession in a very small and very isolated Bar is fairly shouldered by all who seek admission and the benefits of practice in the territory.