4ASR2d

4ASR2d

Matololo v. Penitusi


ANTONINA MATALOLO, Guardian ad Litem for
APINERU MATALOLO, a Minor, Plaintiff

v.

JACK PENITUSI, AFI VELEGA, NATIONAL PACIFIC
INSURANCE CO., and DOES I-IV, Defendants

High Court of American Samoa
Trial Division

CA No. 48-85

March 19, 1987

__________

Evidence that automobile struck a pedestrian, without more, does not constitute proof that driver was negligent.

Before REES, Chief Justice, AFUOLA, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Plaintiffs, Aviata Fa'alevao
For Defendants, Roy J.D. Hall, Jr.

Plaintiff sued as guardian of her minor child to recover for injuries suffered by the child when he was struck by defendant's vehicle. At the conclusion of the plaintiff's case, counsel for defendant moved for summary judgment. The motion was granted. Plaintiff has requested this statement of our findings of fact and conclusions of law.

FINDINGS OF FACT

The defendant's vehicle struck plaintiff's child when the child walked suddenly into the road. The child had been standing in front of a bus and could not be seen by drivers approaching from behind the bus until the moment he stepped out into the road. The other passengers who had disembarked from the bus had completely crossed the road before the child stepped into the roadway. The point of collision with defendant's vehicle was at the extreme right end of the front of the vehicle, indicating that the child stepped into the road at the last possible moment before impact. There was [4ASR2d47] no evidence of excessive speed or other negligence on the part of the driver. The child sustained a fractured jaw and superficial injuries to the head and face, all of which seemed to have healed by the time of trial.

CONCLUSIONS OF LAW

The defense of "he darted into the road at the last moment" is often asserted but seldom proved. In this case, however, the testimony of the plaintiff herself established that this was what happened. Contrary to the suggestions in the plaintiff's memorandum in support of a new trial, the mere fact that a vehicle strikes a pedestrian does not give rise to strict liability without fault, or even to a responsibility on the part of the defendant to prove that he was not. negligent. It is true that drivers who approach buses stopped on the side of the road should look out for disembarking passengers, but in this case the plaintiff's own evidence suggests that a reasonable driver would have been justified in concluding that the disembarking passengers had already crossed the road. Plaintiff failed to carry her burden of proof that the defendant was negligent, or even to present any evidence of such negligence. Even if defendant did have the burden of disproving his own negligence, the plaintiff's testimony that her child stepped out from behind the bus at the last moment would satisfy this burden.

**********

Mailo v. Soane;


MAILO ATONIO, Plaintiff

v.

IOANE SOANE and MISILAGI TI'A, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 5-87

May 13, 1987

__________

Notarization serves to assure the authenticity and validity of signatory's assent to a document, and there is a strong presumption that a notarized signature is valid.

Notarization of defendant's alleged signature on a deed, together with similarity of some characters in the signature to undisputed specimens of defendant's handwriting, was evidence that could not be overcome by defendant's assertion that the signature on the deed was forged.

Before REES, Chief Justice, TAUANU'U, Chief Associate Judge, and TUIAFONO, Associate Judge.

Counsel: Mailo Atonio pro se
For the Defendants, Asaua Fuimaono

Plaintiff Mailo brought this action against Ioane Soane, alleging that Soane was building a house on Mailo's individually owned land in Iliili. Soane, a catechist, responded that the land belonged to Ti'a and that Ti'a had given him permission to build his house there. Ti'a seconded Soane's story, and by mutual consent of the parties Ti'a was added as a defendant.

The parties agree that Ti'a sold Mailo a tract of land in Ili'ili in 1970. Mailo produced a deed from the land records in the Territorial Registrar's office containing metes and bounds of the property as well as what purported to be the notarized signature of Ti'a. Meko, a surveyor, testified that he had recently retraced the metes and bounds specified in this deed and that Soane's house was within Mailo's property. [4ASR2d141]

Ti'a admits he sold Mailo some land in Iliili, but claims it was a smaller tract. He testified that he showed Mailo the boundaries of the tract he intended to sell, that there was never any written evidence of the transaction, and that the signature on the deed was not his signature.

Mailo clearly prevails. The court has examined a number of examples of what Ti'a admits to be his signature; they vary widely in several respects. Some of the signatures are carefully executed in small and well-formed letters, others are large and carelessly executed. Sometimes Ti'a signs "Misilagi Ti'a," sometimes "Ti'a Misilagi." On the deed (as well as on several other official records filed in the registrar's office at about the time of the transaction, which Ti'a does not admit to having signed) the signature is "Misilagi T." with the initial T in print form rather than in script. Defendants' counsel emphasized this feature of the contested signatures, but other features the initial M and several peculiarities in the formation of the smaller letters ---are similar in all the examples. A forger would presumably be as capable of imitating the script T as any other letter. If there is any reason for the differences other than carelessness, it is at least as likely that Ti'a (who has conveyed this land to at least one other person besides Mailo and Soane) was trying to disguise his signature as that Mailo or someone else was trying to imitate it.

In any case, the signature was notarized. The whole point to notarizing a signature is to avoid disputes like this one. If a notary does not know someone, he must ask for proof of identity before taking that person's oath. It is possible, of course, for a notary to be deceived or even to be dishonest, but there is a strong presumption that a notarized signature is valid. In this case Mailo produced an affidavit from the notary, who has left the Territory, to the effect that he would not have notarized the signature if it had not been that of Ti'a, but this affidavit was unnecessary to create the presumption. Ti'a has not carried his burden of rebutting it.

Even without the deed, however, the evidence preponderates in favor of Mailo. He produced a copy, certified by the then-Deputy Territorial Registrar, of a map of the property resulting from a survey done in 1970. Although the survey was done at the request of Mailo in anticipation of the [4ASR2d142] sale, the surveyor attested that Ti'a Misilagi had pointed out the boundaries to him. The boundaries on the map are the same as those in the deed Ti'a says he never signed. Ti'a says this map is irrelevant because the original has been lost or stolen from the official records, but the copy is certified and shows no signs of tampering.

Ti'a also produced two maps. One purported to show that the house was outside the boundaries of the tract defined by Mailo's deed. The other purported to show the boundaries of the tract originally conveyed to Mailo, Although each was done by a licensed surveyor, it is clear that each is simply a graphic representation of information given to the surveyor by Ti'a himself rather than of any objective evidence predating the present controversy. (1)

The only evidence that would give us any reason to suspect that Ti'a's boundaries might be the correct ones is the testimony of Ti'a's surveyor that the land described by the original survey is about one acre larger than it was supposed to be. If there were any doubt at all about the actual location of the original boundaries, we would be inclined to take more evidence in order to verify or rebut this estimate. [4ASR2d143]

In 1970, however, Ti'a not only signed a deed that referred to definite boundaries, but also went to the land and showed those boundaries to a surveyor whom he knew was preparing a description of them. Those boundaries, rather than the estimate of how many acres, "more or less," they enclosed, are the best evidence of the intentions of the parties in 1970.

The defendants are permanently enjoined from possessing, occupying, or otherwise interfering with the land in question, except that Soane will have a reasonable time in which to remove his fixtures and possessions. Since there was conflicting evidence about whose plantations were destroyed by Soane's construction, no damages will be awarded.

**********

1. The surveyor who did the map of the ..true ..boundaries testified that these boundaries were based on monuments pointed out to him by Ti'a a few months ago rather than upon a deed or an earlier survey. Some of the monuments were trees and some were iron pins, According to Meko, however, there are also iron pins and concrete monuments all along the boundaries of the original deed and survey.
The surveyor who prepared Ti'a's other map was not produced in court, but this map seems to have been prepared in anticipation of the arrival of Soane and after Mailo had succeeded in evicting another minister of religion to whom Ti'a had previously sold the property. The tract it depicts is mostly outside Mailo's land, but there is no evidence (other than the testimony of Ti'a) that this is where the house was actually built. Meko, a witness whose testimony in this and other trials has always impressed the Court as honest and impartial, testified that when he retraced the original survey the house was clearly inside those boundaries.

M/V Conquest; Security Pacific National Bank v.


SECURITY PACIFIC NATIONAL BANK, Plaintiff

v.

THE M/V CONQUEST, Defendant

STAR-KIST SAMOA, Inc., and
STAR-KIST FOODS Inc., Intervenors

High Court of American Samoa
Trial Division

CA No. 17-84

April 21, 1987

__________

Trial court judgment becomes final on parties who do not appeal or who dismiss their appeals, and they cannot appear in trial court proceedings on remand after successful appeal by other parties.

When court is considering the application of judge-made rules rather than legislation or a constitution, it has the duty to consider whether changed circumstances warrant modification of such rules.

Statutes enacted in other jurisdictions, or applying to different but related subjects than those before the court, are among the factors courts should consider in applying and fashioning judge-made law.

Although a federal statute does not apply to proceedings in the High Court of American Samoa, its passage by Congress should be taken into account in determining whether changed current circumstances warrant the application of rules announced in nineteenth-century precedents.

When a rule of law has been adopted in an overwhelming majority of the jurisdictions with which forum state has contact, the rule may give rise to changed customs and usages within forum.

Unification of common law and admiralty procedure was a factor court should consider in determining whether to apply prior rule that maritime liens could only be foreclosed in admiralty and ship mortgages could only be foreclosed in courts of common law or equity. [4ASR2d60]

When Supreme Court has not had occasion to reconsider a precedent for almost a century, almost all applications of precedent have been overruled by statute, and Supreme Court has overruled similar precedents in closely related or analogous areas, lower court may conclude that the precedent no longer represents the law that would be applied by Supreme Court.

Although Ship Mortgage Act was inapplicable in High Court of American Samoa, its provisions could be applied by analogy by court in applying general law of admiralty. 46 U.S.C. §§ 911 et seq.

Under the general law of admiralty applicable in American Samoa, ship mortgage which complied with statutory requirements of a Preferred Ship Mortgage created a maritime lien enforceable in admiralty, and its priority was the same as it would have been if foreclosed in federal district court.

To allow lienholder to obtain higher priority by foreclosing in jurisdiction that does not have a federal district court, where Congress apparently intended to create uniform set of priorities and parties contracted accordingly, would give rise to unjust enrichment.

Before REES, Justice, and TAUANU'U, Chief Chief Associate Judge.

Counsel: For the Plaintiff, Roy J.D. Hall Jr. and Daniel Minteer.
For Intervenor Casamar, William Reardon, Robert W. Ayling, and April J. Rodewald
For Intervenor Star-Kist, Togiola T. Tulafono

On May 19, 1981, plaintiff Security Pacific National Bank lent $1.6 million to a corporation formed in order to purchase the M/V Conquest. The loan was secured by a "First Preferred Ship Mortgage," which was properly executed and recorded in Long Beach, California, in accordance with the Ship Mortgage Act, 46 U.S.C. §§ 911 et seq. Plaintiff never received any payments on the loan.

In 1984 plaintiff filed this action to foreclose its mortgage. The action is in rem, and [4ASR2d61] service was effected by the seizure of the ship in Pago Pago Harbor.

Soon after the seizure of the ship various suppliers of goods and services intervened, claiming maritime liens upon the Conquest and seeking the foreclosure of these liens. The corporation that owned the ship never appeared. Plaintiff moved for summary judgment, claiming that its mortgage had priority over the maritime liens in accordance with the Ship Mortgage Act. The Trial Division of the High Court initially denied summary judgment on the ground that the Act grants exclusive jurisdiction to foreclose preferred mortgages to United States District Courts. 46 U.S.C. § 951.

On plaintiff's motion for reconsideration, however, the Trial Division reversed itself. The court held that Congress intended only to deprive state courts of jurisdiction to foreclose preferred mortgages. Prior to the passage of the Act in 1920, the federal district courts had exclusive jurisdiction over admiralty cases, including suits for the foreclosure of maritime liens; but since the English common law had treated ship mortgages as "non-maritime contracts," jurisdiction to foreclose them was generally in the state courts. See Bogart v. The Steamboat John Jay, 58 U.S. (17 How.) 399 (1854). Congress enacted the Ship Mortgage Act in order to put an end to this peculiar situation and to create a uniform set of priorities among mortgages and maritime liens throughout the United States, presumably including its territories and possessions. See Smith, Ship Mortgages, 47 Tul. L. Rev. 608 (1973). Accordingly, the High Court held that where there is "lacking a United States district court to exercise its 'exclusive,' 'original' jurisdiction, the mortgage can be foreclosed in any court exercising valid admiralty jurisdiction." Security Pacific National Bank v. M/V Conquest, 4 A.S.R.2d 40, 41 (1985) (per Gardner, C.J. ) [hereinafter cited as Conquest I].

Since there is no federal district court in American Samoa, and since the High Court has admiralty jurisdiction, (1) the court foreclosed the[4ASR2d62] mortgage. The court a1so found that one intervenor, Star-Kist, had a preferred maritime lien for crew wages that took priority over plaintiff's mortgage. All other liens (including some others held by Star-Kist) were subordinate to the mortgage.

Over a year later, after the Conquest had been sold and resold, (2) the Appellate Division reversed the trial court's decision. The three-judge Appellate panel (3) agreed with Chief Justice Gardner at "the exclusive jurisdiction provision was intended to provide uniform proceedings by removing [4ASR2d63] state jurisdiction over foreclosure actions," and that "the legislative history does not suggest that Congress intended to preclude foreign countries or territories from foreclosing on mortgages." Star-Kist Samoa. Inc. v. The M/V Conquest, Ap No. 13-85, slip opinion at 9 (June 25, 1986) [hereinafter cited as Conquest II.] The apparent intention of Congress, however, was classified as a "policy consideration" which the court was precluded from considering Id. at 8-9. Rather, the appellate panel held that words mean what they say they mean and that the High Court of American Samoa "does not come within the plain meaning of 'district courts of the United States'" in 46 U.S.C. § 951. Conquest II at 4. The Appellate Division therefore remanded to the trial court "to determine the priority of [the] liens and to effect a foreclosure of the ship's mortgage under common law admiralty principles." Id. at 12. This we shall now attempt to do. (4) [4ASR2d64]

I. Determining The Applicable Law

At the outset we must observe that the scope of our assignment on remand is far from clear. Technically there are no such things as "common law admiralty principles." Indeed, the historic separation between the English courts of common law and of admiralty is what gave rise to the problem we are dealing with. G. Gilmore & C. Black, The Law of Admiralty § 1-4 (2d ed. 1975) (hereinafter cited as Gilmore & Black]. Moreover, [4ASR2d65] jurisdiction to foreclose a non-maritime mortgage was traditionally in equity rather than at common law. See Bogart v. The Steamboat John Jav, supra. We assume, however, that the Appellate Division was using the term "common law" as a generic term for all non-statutory law. Thus we are to foreclose the ship's mortgage and figure the priority of the liens by reference to whatever law may apply in the absence of jurisdiction under the Ship Mortgage Act.

Plaintiff, the mortgagee, understandably suggests a narrow reading of the appellate decision. Notwithstanding the holding that we have no jurisdiction under the Ship Mortgage Act, plaintiff urges that the substance of the Act---in this case 46 U.S.C. § 953, which assigns preferred mortgages priority over all but a few maritime liens ---is binding on us. This solution is appealing not only in its simplicity but also in its consistency with the purpose of the Act. Nor would it violate the mandate of the Appellate Division, for it does not entail the construction of the term "United States District Courts" in the jurisdictional section of the Act (section 951) to include the High Court of American Samoa.

The language of section 953, however, seems to preclude the solution suggested by plaintiff. Instead of simply establishing certain priorities among liens and mortgages, it provides that the statutory priorities come into being only "[u]pon the sale of any mortgaged vessel by order of a district court of the United States." Until that moment, which. in Samoa is a moment that never comes, the ship's mortgage and the maritime liens .have whatever priorities they would have had in the absence of the statute. Insofar as we are bound by the directive of the appellate court to interpret the Act so as to give its words their most straightforward meaning rather than in light of their context and apparent purpose, section 953 would seem to be no more applicable than section 951 to proceedings in the High Court.

Intervenors also belive our task to be an easyone. It consists solely in consulting and applying court decisions :rendered prior to the enactment of the Ship Mortgage Act in 1920. Under these decisions the holder of a ship's mortgage "sat at the end of the table and received little or nothing." Gilmore and Black §§ 9-47 at 690. [4ASR2d66]

This view, however, misapprehends the role of a common law court. When a judge is dealing with judge-made rules rather than with legislation or a constitution, his task is not to apply old doctrines blindly to facts for which they were never made. The great strength of the common law, in the eyes of some of its most prominent enthusiasts, is not that the rules never change but precisely that they do change as society changes. See e.g., B. Cardozo, The Nature of the Judicial Process (1921); E. Levi, An Introduction to Legal Reasoning (1949); G. Calabresi, A Common Law for the Age of Statutes (1982).

Nor is the evolution and eventual obsolescence of judge-made r.ules a peculiar feature of the Anglo-American common law. Although admiralty law borrowed much of its procedure and terminology from the civil law, it consists primarily of a body of judicial decisions. Moreover, although admiralty law is said to have had its beginnings on the Island of Rhodes in 900 B.C., it has changed a bit since then. The law of admiralty has been found to prescribe different rules in different times and places because judges have had to decide, as they always do, which sources and constructions of the la1 to follow, which to distinguish, and which to dLsregard. Gilmore & Black §§ 1-3, 1-4, 9-3, 9-4. As it happens, the very cases on which intervenors rely afford textbook illustrations of this point.

I. The Law Prior to 1920

Maritime Liens

"Anglo-American lien law is a 19th century creation." Gilmore & Black § 9-3 at 590. More precisely, it seems to have been created in Maine in 1831. In The Nestor, 18 Fed. Cas. 9 (C.C.D. Me. 1831), Justice Story (sitting as a trial judge rather than as a Supreme Court Justice) held for the first time that a materialman could proceed in rem against the ship although it was not in his possession.

Possessory liens, by which innkeepers, repairmen, and others could retain possession of things until they had been paid for their services in connection with those things, were known to the [4ASR2d67] common law. The only American precedents for the non-possessory maritime lien were in forfeiture cases. In the leading case Chief Justice Marshall (also sitting as a trial judge) had relied on the "personification" of the ship as a reason to allow forfeiture of a ship used in illegal activities without the knowledge or consent of its owner: since the offense had been "committed by the vessel"' it was "not unreasonable, that the vessel should be affected." The Little Charles, 26 Fed. Cas. 919 (C.C.D. Va. 1819). A few years later Justice Story had written for the Supreme Court in a forfeiture case; he had found some precedent for the notion of a thing as an offender ---in English revenue cases rather than admiralty cases ---but the Court was divided so the ship went free. The Palmyra, 25 U.S. (12 Wheat.) 1 (1827). In The Nestor, on the other hand, "we find much parade of erudition, with copious citations from the Digest [of the Roman Emperor Justinian] and Continental sources, but no insistence of the ship as 'the offender... the guilty instrument or thing.'" Gilmore & Black § 9-4 at 594. (5) [4ASR2d68]

The doctrine of a maritime lien enforceable in rem was not adopted in England until 1852. The Bold Buccleugh, 7 Moore, P.C. 267 (1852). The Privy Council "found no English precedents to rely on and had to content themselves with repeating Justice Story's general language about maritime liens in The Nestor...." Gilmore & Black § 9-6 at 595.

Ship's Mortgages

The mutability and randomness of the law are similarly demonstrated by the development of the doctrine that admiralty courts had no jurisdiction to foreclose ship's mortgages. In Bogart v. The Steamboat John Jay, supra, the Supreme Court held that federal district courts had no such jurisdiction because the English admiralty courts did not have it. This, in turn, was "because such a jurisdiction had been denied by the jealousy of the courts of the common law." Id., 58 U.S. (17 How.) at 96. This was so not because ship mortgages were thought to be important than the various transactions that give way to maritime liens, but because the English common law courts considered themselves important than the admiralty courts. The common law courts had the power to issue writs of prohibition to the admiralty courts; they used this power to develop and enforce an "absurdly narrow" construction of the statutes limiting the admiralty courts' jurisdiction to things done upon the sea, so that "contracts having a maritime subject-matter but made on land (as most were) were held outside the jurisdiction...." Gilmore & Black § 1-4 at 10. "By the end of the seventeenth century, the [4ASR2d69] [Admiralty] court was of little importance...." Id.

Accordingly, the early admiralty decisions in the United States generally rejected the narrow limits that had been imposed on English admiralty courts, believing that the statutes on which they were based had no application in the colonies. The general rule adopted was that American admiralty courts had jurisdiction over cases whose subject matter was maritime in character, regardless of whether the contract had been confected on land or sea. See Gilmore & Black § 1-9. In the leading case of De Lovio v. Boit, 7 Fed. Cas. 418, 444 (C.C.D. Mass. 1815), Justice Story stated that the jurisdiction of United States admiralty courts

comprehends all maritime contracts, torts, and injuries. The latter
branch is necessarily bounded by locality; the former extends over
all contracts (wheresoever they may be made or executed, or
whatsoever may be the form of the stipulations) which relate to the
navigation, business or commerce of the sea.

Id. at 444. Justice Story's opinion in De Lovio was endorsed by the Supreme Court in The New England Marine Insurance Co. v. Dunham, 78 U.S. (11 Wall. ) 1 (1870) :

This court has frequently declared and decided that the admiralty
and maritime jurisdiction of the United States is not limited either
by the restraining statutes or the judicial prohibitions of England,
but is to be interpreted by a more enlarged view of its essential
nature and objects....

Id. at 7. The John Jay, a two-page opinion that cited no American authority, was thus clearly inconsistent with the principles expounded in Lovio, Dunham, and numerous other cases for the determination of admiralty jurisdiction in the United States ---particularly including the cases under which materialmen's liens came to be enforceable in rem. If the general admiralty law in the United States had been defined as The John Jay defined it, by the jurisdiction of the English admiralty courts at its narrowest, then neither ship's mortgages nor materialmen's liens would be enforceable, since both are based on contracts [4ASR2d70] invariably made "upon land." If it had been defined by another standard ---by reference either to continental maritime courts or to English admiralty law before the statutory restrictions---it appears that they would both have been held enforceable. See note 5 supra. It was, in other words, an historical accident that jurisdiction over ship mortgages and maritime liens should have been lodged in separate courts. It might be put down to the single fact that the first maritime lien case was heard by Justice Story, a civil law scholar and a nationalist who believed that broad power in the federal courts was essential for the growth of commerce, whereas the ship mortgage case reached the Supreme Court a few years later when it was preoccupied with other concerns. It was in any case not the result of a principled decision by anyone; English or American, judge or legislator, that people who sell ships should have fewer rights than people who sell supplies to ships.

In 1920 Congress acted to put an end to this situation. Sixty-seven years later it has been discovered that Congress did not quite succeed. In one jurisdiction ship mortgages are still governed by "the general law of admiralty." It falls, therefore, to the courts of that jurisdiction to determine what that law is ---not what it was in 1854 or 1919, but what it is in 1987. As with any case in which a court is confronted with ancient precedents that have fallen into disuse, we must decide whether those cases were similar enough to this one to justify their application or whether new circumstances warrant new rules.

III. Developments Since 1854

The Ship Mortgage Act

Since 1854 the world of ship's mortgages has been rocked by two important events. The first of these was the passage of the Ship Mortgage Act. Although, for the reasons we have discussed, the Act neither gives us jurisdiction to foreclose a mortgage nor binds us to the order of priorities it enacted, it remains n important juridical fact in several ways.

First, it indicates the existence of a problem that was important enough for Congress to address. It suggests that the rule of The John Jay, in the phrase most often used to justify derogation from [4ASR2d71] judicial precedent, "has not stood the test of time."

Second, the Act represents an attempt by a body with some claim to expertise in discerning the needs and usages of society to formulate a solution to the problem. Any statute which reflects "a basic change in attitude toward law and toward entitlements generally" necessarily exerts a "gravitational pull" on judicial decisions in related areas; it is "a major development in those principles that must guide the common law courts in their lawmaking." G. Calabresi. supra, at 86. There is abundant precedent for the judicial practice of adopting as judge-made law the substance of statutes that are not binding on the court. For instance, the Uniform Commercial Code does not apply to contracts for the sale of real estate, but some state courts have adopted provisions of the U.C.C. by analogy as rules of property law. Similarly. many state legislatures have adopted comparative negligence statutes; in some other jurisdictions the courts. regarding this new development as a desirable one, have modified the old judge-made law to incorporate comparative negligence.

Finally, even when a court doubts the appropriateness of a new statutory rule it must. recognize that such a rule may eventually change people's behavior. This is possible not only in matters to which the rule directly applies but also in related areas. In deciding cases involving multi-jurisdictional transactions; a court must recognize that the reasonable expectations of the parties may have been shaped by the law outside the forum state.

When on rule has been adopted in an overwhelming majority of the jurisdictions with which the forum state has contact, it is quite possible that customs and usages within the forum will change as well. A conflicting judge-made rule, originally fashioned in light of what people within the jurisdiction usually do and expect others to do, will tend to lose its reason for being. This phenomenon has been recognized not only by common law judges but also in the law of nations, where it is generally held that a treaty provision can become binding as a rule of customary law even on nations that did not sign the treaty. When this happens. it is not because the treaty itself has become binding, but because the rule has in fact given rise to a custom. [4ASR2d72]

For all these reasons, the enactment of the Ship Mortgage Act and its application for sixty-seven years in the United States and in all but one of its territories and possessions militate strongly against the judicial enforcement of a conflicting set of rules in the one remaining jurisdiction. The Act is, .moreover, not the only development that suggests the obsolescence of the rules that prevailed prior to 1920.

The Unification of Admiralty and Common Law Actions

The other such event is the unification of admiralty procedure with regular civil procedure. Prior to 1966 each federal district court had two "sides," each with its own docket and rules of procedure. This division of one court into two was the major premise of the law with regard to liens and mortgages prior to 1920.

It is important to remember that the holding in The John Jay was jurisdictional rather than substantive: the Court did not hold that mortgages ought to be subordinate to materialmen's liens, but only that they must be foreclosed in different courts. The priorities emerged only because admiralty judges were more willing than common law judges to develop creative remedies. (In this respect the situation was almost exactly the opposite of that which had prevailed in England several centuries earlier, when the jurisdictional division perpetuated in The John Jay was first devised.) Since admiralty courts had personified the ship and determined that maritime liens "attached" to it, they followed it even after a common law court had foreclosed the mortgage; since common law courts continued to regard the ship as no more than an ordinary piece of personal property, the lien created by a mortgage did not survive a foreclosure of other liens. Even if the coexistence of these contradictory approaches had not been ended by the Ship Mortgage Act, its jurisdictional basis would have been undercut by the unification of common law and admiralty.

This is not to say, of course, that unification must inevitably have led the federal courts to treat ships similarly for the purposes of mortgages and of maritime liens, but only that in a unified system it would have been more difficult for courts to avoid coming to terms with the disparity. If a case such as The John Jay had been [4ASR2d73] brought not by a "libel" but by a civil complaint alleging both admiralty jurisdiction and diversity of citizenship, the federal court would have had jurisdiction regardless of whether the mortgage was classified as "maritime" or "non-maritime." If materialmen had intervened in the same case to assert their liens, the court would have been hard pressed to characterize the ship (vis a vis the mortgagee) as an ordinary piece of personal property to which obligations do not attach, and at the same time (vis a vis the materialmen) as a quasi-person festooned with immutable liens.

If the case had not arisen until after 1938, deference to state law with regard to the "non-maritime" part of the case might conceivably have required such asymmetrical reasoning. See Erie R.R. v. Tompkins, 304 U.S. 64 (1938). In fact, however, The John Jay and the maritime lien cases arose at a time when the federal courts did not hesitate to expound their own version of the common law even when it required them to contradict or overrule the state courts. See Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842). If during this period a federal court had been confronted with a case in which it clearly had jurisdiction to foreclose both a ship's mortgage and materialmen's liens, it might well have decided as a court of common law and equity to recognize a non-possessory lien in favor of the holder of a ship's mortgage (perhaps looking for precedent to the revenue cases cited by Justice Story in The Palmyra). Confronted with two rights of equal jurisprudential dignity, the court would then have proceeded to consider such factors as the expectations of the parties and the needs of maritime commerce in order to develop a fair and .rational set of priorities. (6) And if the Supreme [4ASR2d74] Court had been confronted with such a case after its decision in Erie, it might have noticed the awkwardness of regarding a transaction whose whole purpose and effect is to put a vessel on the high seas as a "non-maritime" matter to be regulated exclusively by state law. (7) [4ASR2d75]

Jurisprudential Developments

Nor did these changes in the law occur in a vacuum. The same social and economic developments that gave rise to the Ship Mortgage Act, and .the same dissatisfaction with asymmetry and anachronism that motivated the unification of common law and admiralty, brought wholesale changes in the jurisprudence of interstate and foreign commerce. During the first part of this century the United States Supreme Court had occasion to reconsider and reverse a number of its Nineteenth Century holdings on matters related or analogous to the ship mortgage question.

The rule of The John Jay ---that a ship mortgage is non-maritime because the ship has not yet been put in the water at the time it is made--bears a remarkable resemblance to the holding in United States v. E.C. Knight Co., 156 U.S. 1 (1895). That case was an antitrust action against a company that had cornered the market on sugar. Its refineries were located throughout the nation and produced 98% of the sugar refined in the United States. Although acknowledging that "[d]oubtless the power to control the manufacture of a given thing involves in a certain sense the control of its disposition," the Court held that "[c]ommerce succeeds to manufacture, and is not a part of it." The power to regulate interstate manufacturing combinations was therefore not within the [4ASR2d76] constitutional power to regulate interstate commerce.

In 1937, however, the Court announced the abandonment of this metaphysical division of the world into things that were and were not "in commerce." Although an activity "when separately viewed" might seem "local," a "close and intimate effect" on interstate commerce would bring the activity within the commerce power. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) .

The passage of the Ship Mortgage Act made judicial reconsideration of the analogous holding in The John Jay unnecessary. It also arrested the development of the law in those few cases in which the federal courts have been faced with ship mortgages that were not "preferred" within the definition of the Act. In McCorkle v. First Pennsylvania Banking: and Trust Co., 459 F.2d 243 (4th Cir. 1972), the court dismissed an action by the holder of a mortgage that had not complied with the rules of 46 U.S.C. §§ 911 et seq. for the registration of a preferred mortgage. Although the court was highly critical of the rule of The John Jay, it felt bound by a dictum in Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21 (1934) to the effect that "[i]f the mortgage is a preferred mortgage within the definition of the Act, jurisdiction is granted; otherwise not." Id. at 33. The Supreme Court in The Barlum, in turn, had relied on a broad view of congressional power to define the admiralty jurisdiction of the federal courts. See id., 293 U.S. at 48.

The decisions in Corkle and The Barlum were attempts to define the scope of jurisdiction granted to the federal district courts by Congress in the Ship Mortgage Act. As such, they seem clearly correct. Since Congress could have given the federal courts jurisdiction over all ship's mortgages, but chose instead to enact a detailed scheme involving the eight of the ship, the place of registry, the citizenship of the mortgagee. and numerous other factors, it must have intended jurisdiction of all mortgages falling outside the statute to remain outside the admiralty courts. Even if the courts had come to believe subsequent to the passage of the Act that The John Jay was wrongly decided, it would have been improper for them to take jurisdiction over a mortgage which Congress clearly intended to leave outside their jurisdiction.[4ASR2d77]

If Congress had made a similar rule with regard to the treatment of ship mortgages in the High Court of American Samoa ---either that they should be entirely outside our jurisdiction or that we should give them some particular priority in relation to maritime liens ---we would of course be bound by that rule. With respect to American Samoa, however, Congress apparently gave the matter no consideration and made no rule. The evidence of the general purpose of the Act suggests that if Congress had adverted to the Samoan question it probably would have meant for preferred mortgages to be enforceable here, and to take priority over ordinary maritime liens. See Conquest II at 5, 9-10. Unfortunately, the "plain language" of the statute, although probably intended only to exclude stat court jurisdiction, also seems to exclude the High Court of American Samoa. See Conquest II at 4, 6, 10. This means we have no jurisdiction to foreclose preferred mortgages under the Act. For us to go further, and to find that Congress inadvertently deprived us of the jurisdiction we would otherwise have had as a court of general admiralty, common law, and equity jurisdiction---or, as Intervenors suggest, that Congress inadvertently bound us to follow the very rule it was attempting to abolish with respect to priorities ---is required neither by the holdings in McCorkle and The Thomas Barlum nor by the "plain language" of the Ship Mortgage Act. The principal relevance of the post-1920 jurisprudence to this proceeding is the support it lends to the view that the courts would have overruled The John Jay if Congress had not got there first. Drawing extensively from a work by a leading authority on federal jurisdiction, the McCorkle court suggests that

the pre-1920 general exclusion of ship mortgages from admiralty
was merely an uncritical adoption of the English law as it existed in
1776. Since the jurisdiction of American admiralty courts has always
been recognized to depend on the nature of the case and not the
peculiarly limited rules of English law, Insurance Co. v. Dunham....
Professor Moore maintains that the Supreme Court's unreasoned
adoption of the English approach and its continuing adherence
thereto is unwarranted.... [4ASR2d78]

Moore argues that the English rule in the Eighteenth Century was
based not upon logic or maritime principles, but was instead
Parliament's political solution to jealousies existing between the
English law courts and the English admiralty.... Significantly, Moore
notes that at one time, before the American revolution, the English
admiralty courts did take cognizance of ship mortgages; later,
Parliament removed that jurisdiction from admiralty.... Ironically,
our federal courts still feel the effects of the now discarded limitation.
In the final analysis, argues Moore: "What is controlling is simply
whether marine mortgages are contracts which further and are
inseparably intertwined with maritime commerce and navigation."

459 F.2d at 248-49, quoting 7a J. Moore, Federal Practice par. .285[1] at 3234. See also 2 Benedict on Admiralty § 71 at 6-6.

In sum, the rule of The John Jay was an embarrassment. It was inconsistent from the beginning with the general admiralty law; economic, social, and jurisprudential developments since 1854 have made it even more so; it has been abolished by statute everywhere but in American Samoa; and if the federal courts had not been thus deprived of the opportunity, our best estimate is that they would eventually have overruled the case themselves. We should not apply it unless we are somehow compelled to do so.

IV. Arguments for Applying the pre-1920 Law

Judicial Authority

There are several reasons why a court might feel bound, in law or in justice, to apply a rule that it would otherwise believe to be incorrect or inapplicable to the case before it. The reason most frequently given is deference to the authority of a higher court.

For the reasons we have given, we do not feel bound to apply the rule in The John Jay. It is generally recognized that when a precedent is 50 old and so bad and so infrequently consulted that there is an excellent chance it would no longer be followed if it were to come before the court that [4ASR2d79] decided it, a lower court may choose to anticipate the new rule rather than to perpetuate the old one. We find ourselves in roughly the position of a state or territorial court confronted with a segregation statute fifty years after the Supreme Court's decision in Plessy v. Ferguson, 163 U.S, 537 (1896), which upheld "separate but equal" facilities, and shortly before Brown v. Board of Education, 347 U.S. 483 (1954), which effectively overruled Plessy. The analogy overstates, of course, the moral dimension of this case; but we believe it to be an accurate account of the state of the law.

Nor do we believe that the mandate of the Appellate Division, which directed us to "effect a foreclosure of the ship's mortgage under common law admiralty principles," binds us to do anything but to exercise our best judgment in deciding the case according to the general law of admiralty, the common law, and equity. The Appellate Division seemed to feel that the result originally reached by the trial court was the correct one, but that the route by which this result was reached ---the exercise of jurisdiction under the Ship Mortgage Act ---was not available. Conquest II at 6-10. If our exposition of the non-statutory law leads us to the same result the trial court reached in Conquest I, we may succeed in satisfying not only the appellate court's mandate also its view of where justice lies. (8) [4ASR2d80]

Deference to Legislative Will

We would also feel bound to apply the pre-1920 law if we believed that we were required to do so by an act of Congress or of the territorial legislature ---either by the "plain language" or by the apparent intention of those who enacted the statute. Again, this does not seem to be the case. The territorial statutes give us jurisdiction of all admiralty cases with no restrictions whatever. A.S.C.A. § 3.0208, quoted in note 1 supra. The Ship Mortgage Act, as we have tried to show, does not divest us of this jurisdiction. Rather, it creates something called a Preferred Ship Mortgage and gives exclusive jurisdiction to the United States District Courts to foreclose these.

A mortgage is not a piece of paper but a right ---a real right or a personal right, depending on whether or not one agrees wi-th the reasoning of The John Jay. It arises by contract in accordance with laws other than the Ship Mortgage Act. A mortgagee who undertakes to register his mortgage in accordance with the Act may acquire a "Preferred Ship Mortgage." This is a sort of certificate that enables the holder to foreclose in federal court [4ASR2d81] and to have priority over ordinary maritime liens. There is nothing in the Act that divests the holder of a Preferred Ship Mortgage of his underlying contractual right and the remedies it carries with it.

One remedy which the mortgagee would have in the absence of the Act is to file a civil action in the High Court of American Samoa to foreclose his mortgage (the contractual right, not the piece of paper) as an ordinary, non-preferred ship's mortgage. (Since the High Court rules, like the federal rules, provide for unified civil and admiralty procedure, the mortgagee has this right regardless of whether the mortgage is within our admiralty, common law, or equity jurisdiction.) Although the real or personal right is the same one that underlies his "Preferred Ship Mortgage," the former exists before the latter and is not extinguished by it. To assert the underlying right ---not the Preferred Ship Mortgage itself ---as the basis for a proceeding in a place where there is no federal district court surely does not violate the exclusive jurisdiction of the federal district courts to foreclose the Preferred Ship Mortgage.

The contrary result ---under which American Samoa is established as a sanctuary for defalcating shipowners unless the mortgagor was lucky enough to omit some formality in the registration of his Preferred Ship Mortgage, in which case he can still foreclose on the ordinary mortgage ---is absurd. It is not required by the language of the Act (which does not in terms divest holders of Preferred Ship "Mortgages of the remedies they would have had to enforce their underlying contractual rights (9)) and it is contrary to everything we know [4ASR2d82]about the intentions of Congress in enacting the Ship Mortgage Act.

Settled Expectations

A court may also shrink from changing a settled rule, even when it believes another rule to be better on its abstract merits, out of reluctance to penalize people who have ordered their affairs in the expectation that the old rule would continue to be enforced. In this case no such argument can be advanced for following (or, more accurately, reviving) the rule of The John Jay. On the contrary, respect for settled expectations militates in favor of the application of a rule similar to that which has been followed throughout the United States for sixty-seven years, and in American Samoa ever since the first purse seiner defaulted.

Every transaction leading up to this case occurred in a jurisdiction where the Ship Mortgage Act was enforceable (California, Washington, Guam) or was thought to be enforceable (American Samoa). To apply a contrary rule would supply a windfall to those who had every reason to believe their claims would be subordinate to the ship's mortgage. It would also punish those who provided $1.6 million in the then-reasonable belief, the very belief Congress wanted them to have when it passed the Ship Mortgage Act, that their security was good. [4ASR2d83]

This raises the related question of uniformity. If we were to revive the rule of John Jay we would apparently be the only jurisdiction anywhere in the world in which that rule applies. All fifty states and every United States commonwealth and territory but this one have federal district courts in which preferred mortgages are given priority over ordinary maritime liens. In every foreign nation where a case has been called to our attention, the priorities prescribed in the Ship Mortgage Act have been respected. See Conquest I , 2 A.S.R.2d at 41, and authorities cited therein. (The Appellate Division observes that such assumptions of jurisdiction are "under treaties or principles of comity." Conquest II at 10. But "comity" is another way of saying that the foreign court was doing as it believed Congress would have wished it to do, notwithstanding the "exclusive jurisdiction" language in 46 U.S.C. § 951.) A concern for uniformity in maritime matters ---the touchstone of the quest for a "general" law of admiralty that sent Justice Story and the others to Rhodes and Justinian's Digest in the first place ---militates strongly in favor of the application of a rule similar to that of the Ship Mortgage Act provided that it is within this court's power to apply such a rule.

V. Conclusion

Accordingly, we hold that plaintiff's ship mortgage was a maritime contract that created a property right in the ship, carrying with it the remedy of foreclosure in the High Court of American Samoa. we further hold that such a mortgage takes priority over ordinary maritime liens but is subordinate to preferred maritime liens (in this case the lien for crew wages).

Out of concern for uniformity, settled expectations, deference to Congress, and the possible implications of federal jurisprudence with regard to non-preferred mortgages, we limit our holding to mortgages that would qualify as preferred under the Ship Mortgage Act. In an action in the High Court involving a ship mortgage and maritime liens, the former will have the same priority it would have in accordance with 46 U.S.C. § 953 if it were foreclosed in a federal district court. We reiterate, however, that such an action will not be "under" the Ship Mortgage Act but will be within the general admiralty and equity jurisdiction of the High Court. [4ASR2d84]

Finally, we must recognize the possibility that an appellate court might disagree with our holding and remand the case for further proceedings. In the hope of averting Conquest V and Conquest VI, we suggest the following alternative basis for the result in this case: In any action for the foreclosure of maritime liens, the holder of a ship's mortgage may intervene to assert his interest. The Angelique, supra; Lottawanna, supra; 2 Benedict on Admiralty § 71. In order to avoid unjust enrichment, the proceeds of the sale will be subject to a constructive trust in favor of the mortgagee if his mortgage would qualify as preferred under the Ship Mortgage Act. No lienholder whose lien would be subordinate to the mortgage if foreclosed in a United States District Court may recover from the proceeds of the sale until the mortgage has been paid in full.

This alternative holding has the disadvantage of applying only in cases where the lienholder brings the action or, as in this case, intervenes to give the court admiralty jurisdiction. It entails neither an assertion of admiralty jurisdiction to foreclose a ship's mortgage nor a dramatic departure from traditional equity jurisprudence. Admiralty courts have long enforced the principles of equity in cases within their jurisdiction, including equitable limitations on recovery of money to which a party is otherwise entitled. See The Lottawanna, supra, 88 U.S. at 582-83; Swift & Co. Packers v. Compania Colombiana Del Caribe, S.A., 339 U.S. 684, 691-92 (1950); Gilmore & Black § 1-14. For all the reasons we have stated, a libellant is unjustly enriched when he acquires a priority higher than that prescribed by statute merely because he happens to find the ship in a port where there is no federal district court.

Since we find that the mortgage has the priority accorded it by the trial court in Conquest I, and since the Appellate Division expressly affirmed the trial court's findings on the priority of the liens, the judgment of the trial court will be reinstated.

**********

1. A.S.C.A. § 3.0208(a)(3) grants the High Court jurisdiction over "admiralty and maritime matters, of which the trial division shall have both in rem and in personam jurisdiction." This statute was held to be consistent with the United States Constitution and federal statutes in Meaamaile v. American Samoa 550 F. Supp. 1227 (D. Hawaii 1982) (per King, J.). Although the Appellate Division's holding in this case that we do not have jurisdiction to foreclose preferred mortgages under 46 U.S.C. § 951 may seem inconsistent with the federal court's holding in Meaamaile that 28 U.S.C. § 1333 (the general jurisdiction statute) does not deprive us of our admiralty jurisdiction, an examination of the two statutes resolves any such apparent inconsistency. See Rainwater v. The Sea Encounter , CA 96-84, 3 A.S.R.2d 87, 89-90 (1986). Judge King, who decided Meaamaile, was also the author of the Appellate Division's opinion in this case.

2. After summary judgment was granted the ship was sold at a marshal's sale. Notice of the sale was published extensively in the United States and American Samoa. The plaintiff was the high bidder. At oral, argument on remand the court was informed that the ship had been resold.

3. The panel consisted of then-Associate Justice Thomas Murphy, presiding; Judge Samuel P. King of the United States District Court for the District of Hawaii; and Associate Justice Walter M. Heen of the Intermediate Court of Appeals of the State of Hawaii. Judge King and Justice Heen were sitting pro tem as Acting Associate Justices of the High Court.

4. The appellate court assumes that we have jurisdiction to foreclose the mortgage apart from the provisions of the Ship Mortgage Act. We agree, although the question is not as simple as it looks.
Soon after deciding The John Jay, the Supreme Court relaxed the rule of that case by announcing that a mortgage holder could assert his interest by intervention in an admiralty suit brought by holders of maritime liens. Schuchardt v. The Angelique, 60 U.S. (19 How. ) 239 (1856). See also The Lottawanna, 88 U.S. (21 Wall. ) 558 (1875). Later the Court held that if the holder of a non-maritime claim brings an action over which the admiralty court finds it does not have jurisdiction, but in the meantime there has been a judicial sale to foreclose valid maritime liens, the existence of the maritime liens gives the court jurisdiction. United States v. Rizzo, 297 U.S. 530 (1936). The original plaintiff can then be treated as an intervenor and can be awarded the "surplus proceeds" of the sale after prior liens have been satisfied. The Angelique, supra; 2 Benedict on Admiralty § 71 (6th ed. 1984). All parties on remand agree that we have jurisdiction.
It is arguable, however, that the language of 46 U.S.C. § 951, granting "exclusive jurisdiction" to the federal courts to foreclose Preferred Ship Mortgages, precludes us not only from entertaining an original action to foreclose such a mortgage but also from foreclosing it incidentally in the course of foreclosing valid maritime liens. The "exclusive jurisdiction" language could also be read to deprive the High Court of the jurisdiction it would have in the absence of the Ship Mortgage Act to foreclose plaintiff's mortgage as an ordinary, non-preferred ship mortgage. See Part III, infra, at pages 21-22; Part IV, infra, at pages 26-28 & note 9. We join the Appellate Division and the parties, however, in declining to read the statute this way. Rather, we hold that the Act did not deprive us of jurisdiction to foreclose the underlying contractual mortgage that the plaintiff had acquired before he acquired his Preferred Ship Mortgage. See Parts III and IV, infra.
We do note, however, the absence of our jurisdiction to modify the trial court judgment with respect to any intervenors except Star-Kist. No other party perfected an appeal; in fact, the Appellate Division granted intervenor Casamar's motion to dismiss its own appeal. Casamar has nevertheless filed a brief and made oral argument in the proceedings on remand. In our opinion, the judgment of the trial court (including the judgment that the maritime liens were subordinate to the mortgage) became "final against all parties except those who filed and perfected their appeals. Except in rare instances where the original proceedings are tainted by fraud or its equivalent, a judgment remains final even though it is later found to be incorrect. We therefore have jurisdiction to modify the trial court judgment only among those who were appellants and appellees at the time the Appellate Division rendered its judgment.

5. It does seem to have been the practice in some maritime courts (although not. in the admiralty courts of England or the American colonies) to treat certain contracts as creating real rights in the ship. See The Underwriter, 119 F. 713, 714-18 (D. Mass. 1902), and authorities cited therein. This practice seems to have had its basis in a provision of the Digest of Justinian creating a privilege for those who had contributed to the construction of a ship, including "those who had lent money for this purpose. Dig. 42, 5, 26, 34, quoted in 119 F. at 714-15. When continental maritime courts expanded this privilege (a mere personal right against the assets of. the owner) into a lien (a property right enforceable in rem) they began by requiring an express hypothecation ---that is, a mortgage. Later, hypothecation came to be inferred in certain circumstances, reflecting the master's authority to act for the owner and/or the recognition that the owner would have been willing to pledge the ship as security under those circumstances had he been present. See id. at 715-18. The materialmen's lien, in other words, evolved as a sort of implied ship's mortgage.
Similarly, in the substantive admiralty law of England prior to the writs of prohibition the idea of a lien on the ship was based on an implied hypothecation and, except as the aptness of such an implication varied with particular circumstances, those who repaired and supplied ships were treated no differently than builders, co-owners, or moneylenders. See id. at 720-26. Subsequently, writs of prohibition against admiralty jurisdiction over contracts not "done upon the sea" divested the admiralty courts, of in rem jurisdiction over materialmen's liens as well as ship's mortgages. See id. at 726-31; 7A J. Moore, Federal Practice par. .285[1] at 3234, quoted in Part III infra.

6. The doctrine that "maritime" liens necessarily take priority over those classified as "non-maritime" liens seems to have emerged (with little or no analysis) as a corollary of the limited jurisdiction of admiralty courts rather than because of considerations having to do with the nature of the particular liens in question. See The J.E. Rumbell, 148 U.S. 1 ,1893) ("An ordinary mortgage of a vessel... is not a maritime contract. A court of admiralty, therefore, has no jurisdiction of a libel to foreclose it.... But it has jurisdiction, after a vessel has been sold by its owner, and the proceeds have been paid into the registry, to pass upon the claim of the mortgagee, as of any other person, to the fund..."). In other words, the non-maritime claimant was paid last because the court's jurisdiction to pay him did not commence until the maritime claimants had been paid. Nor does the priority of maritime over non-maritime liens flow inexorably from the supremacy of federal over state law. Indeed, the maritime lien in The J.E. Rumbell was created by a state statute, whereas according to the prevailing theory of the time the common law of contract (on which the mortgagee's right would have been based) was "general" and "federal." Swift v. Tyson, supra.

7. Gilmore & Black § 9-57 at 719 (footnotes omitted):

Under the doctrine of Swift v. Tyson the federal courts, for nearly
a century exercised an independent judgment on matters of general
commercial law. What the Swift v. Tyson doctrine meant in practice
was that the federal judges, in situations where competing and
conflicting rules had developed on the state law level, chose what
seemed to them the better rule. The announcement of a federal rule,
particularly when the announcement was made in a well-reasoned
opinion by the Supreme Court, frequently served to bring the conflict
and controversy to an end. Over a long period of time the sort of
federal synthesis of conflicting state rules which Swift v. Tyson led to
did a great deal to ensure national uniformity over a broad area of the
substantive law.

The Court's decision in Erie, by eliminating the role of the federal courts in bringing uniformity to the law even in areas constitutionally committed to the states, made it far more important that matters properly within the federal jurisdiction be so characterized. Gilmore & Black § 9-57 at 720-27. At the time The John Jay was decided, in other words, it did not present nearly the threat to maritime commerce that it would have posed after Erie if the Ship Mortgage Act had not intervened. The waning of Swift v. Tyson must therefore be tallied as yet another changed circumstance which might have forced a judicial reversal of The John Jay even if Congress had not reversed it by statute--- and which therefore militates against its present application in a jurisdiction where the statute does not apply.

8. The only thing that might lead us to doubt this is the appellate division's remark that "the best way to get rid of a bad situation is to make it worse." Conquest II at 11. This seems rather an odd thing to say tor a. court that has just got through eschewing "policy considerations." See id. at 6-10. We assume that this remark was dictum and that the appellate court did not wish, assuming that a good result can be reached in accordance with law, that we should reach a bad one anyway in order to force Congress to act. We concur, however, in the appellate court's suggestion that Congress should act as Soon as possible to clarify the scope of our jurisdiction on this and other matters.
Intervenors may, of course, appeal this decision to the Appellate Division. After that they may pursue a ruling from the United States Supreme Court on whether the 1854 holding in The John Jay is still "good law," although it is not clear just how to do so. In the absence of any statutory rule to the contrary, it is arguable that the United States Supreme Court has the power to review, by writ of certiorari or otherwise, a final judgment of the Appellate Division of the High Court on a question of federal law. See U.S. Constitution art. III § 2 ("The judicial power shall extend to all Cases, in Law and Equity, arising under.... the Laws of the United States.... In all [such] Cases... the supreme court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."); cf. King v. Morton, 520 F. 2d 1140, 1143-44 n.4 (D.C. Cir. 1975) (reserving judgment on this question) Alternatively, dissatisfied parties may choose a creative and circuitous route to the Supreme Court via the Secretary of the Interior and the district and circuit courts in Washington D.C., for which there is no visible authority in the statutes or constitutions of the United States or American Samoa, but which did work once. King v. Morton, supra.

9. As far as we know, nobody who has a Preferred Ship Mortgage has ever attempted to use the underlying right that gave rise to it as a basis for foreclosing an ordinary mortgage in a place where there is a federal district court. This would be quite disadvantageous to the mortgagee. If it were nevertheless attempted, it might well violate the exclusive jurisdiction provision of the Ship Mortgage Act. This would be true not because of the "plain language" of the Act, but because of what is known about its purpose. For the reasons given in the text, there is nothing incoherent about the existence of a contractual right that carries with it both an ordinary ship's mortgage that can be foreclosed anywhere and the right to go through certain formalities and thereby obtain a Preferred Ship's Mortgage which can only be foreclosed in federal court. Because one of the purposes of the Act was to achieve uniformity in the law, however, an inference can be drawn that Congress would have intended (if it had adverted to the prospect of somebody trying to foreclose the underlying right in state court) to divest the state court of such jurisdiction. No such inference should be drawn where there is no federal district court, since the policy of uniformity ---as well as every other policy relevant to the idea of a mortgage--- is actively disserved by making the underlying right unenforceable.

Star-Kist Samoa, Inc.; Su’a v


SUKI SU'A

v.

STAR KIST SAMOA, Inc.

High Court of American Samoa
Trial Division

CA No. 115-86

May 11, 1987

__________

Assertion of jurisdiction by the National Labor Relations Board over complaints charging unfair labor practices by employers in American Samoa precludes territorial court from exercising jurisdiction over such complaints. 29 U.S.C. § 164(c).

The distance between American Samoa and the NLRB regional office in San Francisco, and consequent expense and inconvenience of bringing complaints there, were not "interests so deeply rooted in local feeling and responsibility" that territorial court could exercise jurisdiction over complaints that would otherwise be within the exclusive jurisdiction of the National Labor Relations Board.

Before REES, Chief Justice, and AFUOLA, Associate Judge.

Counsel: For Plaintiff, Charles Ala'ilima
For Defendant, John Ward

Opinion and Order on Motion to Dismiss:

Plaintiff alleges that his employment was terminated because of his participation in unsuccessful efforts to organize a union. Defendant has moved to dismiss on the ground that the complaint falls within the exclusive jurisdiction of the National Labor Relations Board (NLRB).

The NLRB has asserted its jurisdiction over employers in American Samoa who otherwise meet its jurisdictional standards. Van Camp Sea Food Co., 212 NLRB 76 (1974). If a complaint charges an [4ASR2d136] unfair labor practice over which the NLRB has jurisdiction and if the NLRB has not declined to exercise its jurisdiction, the dispute resolution process set forth in the National Labor Relations Act and its amendments pre-empts the jurisdiction of state and federal courts. San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959); 29 U.S.C. § 164(c). The NLRB clearly has jurisdiction over complaints that an employee has been discharged for attempting to organize a union. 29 U.S.C. §§ 157, 158(a)(1). The decision by the NLRB to exercise its jurisdiction over tuna canneries and other employers in American Samoa who have the requisite impact on interstate or foreign commerce would seem to preclude the High Court from exercising jurisdiction.

Plaintiff urges, however, that the distance between American Samoa and the NLRB regional office in San Francisco, and the consequent expense and inconvenience for employees who wish to bring complaints before the NLRB, bring this action within an exception to the rule of NLRB preemption. In Garmon the Supreme Court noted that in certain cases "the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act." 359 U.S. at 244. These cases, however, involved efforts by the states to regulate conduct (usually violence) which was regarded as objectionable on some other ground than that it constituted an unfair labor practice. 359 U.S. at 244 n.2 and authorities cited therein; id. at 247. In this case, on the other hand, plaintiff asks the court to enforce the precise policy entrusted to the NLRB.

The Supreme Court has since made it clear that the "local feeling and responsibility" exception in Garmon did not give local courts the authority to define and punish unfair labor practices. Indeed, courts cannot decide cases involving conduct even arguably prohibited by the federal labor relations laws unless the labor relations aspect of the case is merely incidental. See Farmer v. United Brotherhood of Carpenters, 430 U.S. 290, 304-05:

If the charges in [the plaintiff's] complaint were filed with the
Board, the focus of any unfair labor practice proceeding
would be on whether the statements or conduct on the part
of the [4ASR2d137] Union officials discriminated or threatened
discrimination against him..... Conversely, the state-court tort
action [for intentional infliction of emotional distress] can be
adjudicated without resolution of the 'merits' of the underlying
labor dispute.....

At the same time, we reiterate that concurrent state-court
jurisdiction cannot be permitted when there is a realistic threat
of interference with the federal regulatory scheme.... Simply
stated, it is essential that the state tort be either unrelated to
employment discrimination or' a function of the particularly
abusive manner in which the discrimination is accomplished or
threatened rather than a function of the actual or threatened
discrimination itself.

Although the Court's statement in Farmer was not technically necessary to its holding, it is a statement too strong and clear for us to ignore. We recognize the logistical and financial difficulties that the assertion of jurisdiction over American Samoa must occasion for this plaintiff and others. If the NLRB were sitting in Pago Pago rather than in San Francisco, however, nobody would even think about bringing a complaint like this one in the High Court. Employment discrimination on account of union activity is perhaps the single most obvious example of conduct committed to the regulatory authority of the NLRB. We are therefore precluded from sitting in judgment of such conduct..

The action is dismissed.

**********

Taulaga v. Patea;


TAULAGA M., Plaintiff

v.

PATEA S., Defendant

High Court of American Samoa
Land and Titles Division

LT No. 38-86

June 30, 1987

__________

Land title action was barred by res judicata when ownership of same tract had been resolved between same families over same issues by earlier final judicial resolution.

Party defending against attempt to relitigate claim previously decided against claimant could recover reasonable attorney fees.

Before KRUSE, Associate Justice, TAUANU'U, Chief Associate Judge, and OLO, Associate Judge.

Counsel: For Plaintiff, Monike Failauga
For Defendant, Asaua Fuimaona

Defendant Patea S moves to dismiss, or in the alternative for summary judgment, in the above-captioned matter. Defendant asserts, inter alia, "res judicata", in that the subject matter of this case concerns lands called "Laloulu " which had already been the subject of litigation between the parties in Patea S. v. Taulaga et al., No. 270-1965, 4 A.S.R. 739 (1966).

The Court, after due consideration to the arguments of Counsel, the pleadings, affidavits, and other matters on file herein, as well as the file in the prior 1966 matter, concludes as follows:

That the lands "Laloulu " as more particularly described in the 1966 case docketed No. 270-1965, was adjudged in that case to be the communal property of the Patea family of Vatia;

That judgment rendered in the said case was a final and valid decision of this Court; [4ASR2d187]

That the same communal families before the Court today were before this Court in 1966;

That the matter before the Court today is an attempt by plaintiff to relitigate the same issues before the Court in case No. 270-1965; and

That relitigation is precluded.

Accordingly it is Ordered:

1) Defendant's motion for summary judgment is granted and the above entitled matter is dismissed;

2) Defendant is awarded reasonable attorney fees against plaintiff in an amount to be approved by the Court upon verified application by Defendant.

**********

Talili v. Satele


PETER TALILI, ELIZABETH TALILI, FILEMU TALILI,
MALAGAMALII ALIITU, and BINGHAM TALILI

v.

SATELE MOMOSEA, FRANCIS FOMA'I, and their agents.

High Court of American Samoa
Land and Titles Division

LT No. 18-86

February 20, 1987

__________

Samoa was the historical location of the actual Garden of Paradise.

Absent special circumstances, senior matai of a Samoan family must respect the right of family members who have long resided on family land to continue residing on family land.

Right of Samoan family member to occupy a particular piece of land is not absolute; senior matai of family may reallocate land within family by providing displaced family members with equivalent land.

Right of Samoan family member to use family land for economic purposes is subject to the right of family to contributions in proportion to the value of the fruits of occupancy,

Senior matai of Samoan family should not take major steps with regard to family land without prior consultation of family, and particularly of family members directly affected.

Before REES, Chief Justice, OLO, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Plaintiffs, Charles Ala'ilima
For Defendants, William Reardon

This case began about a hundred years ago. At that time there came to be two holders of the Satele title, who may at first have been rival claimants but eventually shared the title. This gave rise to the development of two quite distinct and assertive branches of the family, and [4ASR2d24] to two competing sets of claims to family lands and titles.

One of the two joint titleholders, Satele Pili, died about 1900 and from that time Satele Uga reigned alone for almost forty years. Upon the death of Satele Uga the two branches of the family disagreed over who should become Satele. The High Court awarded the title to Teutusi, the son of Satele Uga; his rival had been Faga, the son of Satele Pili. Faga v. Moso'oi, 1 A.S.R. 375 (1937).

The two branches were in court again the very next year over ownership of Tomea, the land involved in this case. The court held that Tomea had been "the matai land of Satele Pili" but that all lands formerly under the authority of either titleholder were now Subject to the authority of Satele Teutusi. Satele v. Faga, 2 A.S.R. 26 ( 1938). The court stressed, however, that "the matai does not own the family lands for his own benefit," but is "a sort of trustee in whose name the family lands are held for the benefit of the family members." Id. at 27. Since the "beneficial interest" in the land had been in the Satele Pili branch of the family, the court held Tomea to be Satele family land reserved for the use of the Satele Pili branch of the family.

In 1975 the court reaffirmed this unusually explicit judicial allocation of land to some family members over against others. In Satele v. Naea, L.T. 1544-75, the incumbent Satele (a member of the Uga branch of the family) had given his permission for a separation agreement so that part of Tomea could become the individual property of a family member. Several members of the Pili branch--- including Momosea, the defendant in the current litigation objected on the ground that the person on whose behalf the separation agreement was filed was a member of the Uga branch. The court upheld the objection, citing the 1938 decision.

In 1984, however, in a lawsuit among essentially the same parties as this one, the court held that the situation had changed. The Satele title was vacant, the most recent incumbent having been shot to death by a dissatisfied member of the family shortly after the decision was announced. Momosea and other Pili descendants sued to enjoin the construction of a house on Tomea by the some of the current plaintiffs. The court noted that since 1938 "the Faga family (descendants of Satele Pili) have allowed others to use the land for many years. [4ASR2d25] It is a little late to undo the results of this inaction on their part. The court will not prohibit anyone now on the land from remaining there." Satele v. Talili, L.T. 19-84, at page 2. The ultimate decision about the allocation of Tomea was held to be "a problem [the] new Satele must wrestle with." Id. (1)

The new Satele, as things turned out, was none other than Momosea. The court decision awarding him the title represented a dramatic shift in the fortunes of the respective branches of the family. The Pili branch, which had been excluded from the title for all but five years since 1900, would no longer need to rely on the courts to defend the frontiers of the 1938 decision against Uga ambitions. Even if Tomea had not been specially reserved for his branch of the family, Momosea would now have broad authority as sa'o to ailocate the use and the fruits of Satele property.

Peter Talili and his relatives must have presented an inviting target. Although Peter Talili's father is a blood member of the Satele family who lived on Tomea as a boy, he pad left in 1952 to join the service. Another Talili relation, Tau, had continued to occupy part of the land along with some of her relatives; but the Talili presence had increased suddenly with the return of Peter and his father to the territories in the early 19805. The defendants complain that during this time, when there was no Satele to restrain him, Peter had appropriated more and more of Tomea to his own use, treating it essentially as his individual property rather than as family land. Adding insult to injury, the Talili litigants in the 1984 case claimed that Tomea did not belong to the Satele family at all, but to a family in Futiga to which they also belong. Accordingly, in May of 1986 Peter and his family were visited by bulldozers. These had been sent by Satele Momosea to begin the process of transforming a half-acre or so of Talili breadfruits and coconuts into a house for Momosea's sister. This litigation followed.

Despite the complicated history of the case, both the facts and the law are reasonably clear. Our only difficulty is in fashioning a decree that [4ASR2d26] will encourage people who are not very closely related and who do not at present particularly like each other to live in harmony as members of a communal family. In the hope that the parties themselves could accomplish this, at the conclusion of the trial we encouraged them to meet with each other and to let the court know whether a settlement had been reached. Since the proposed meetings seem not to have taken place, we proceed to the following findings of fact, conclusions of law, and order:

FINDINGS OF FACT

1. The plaintiffs are blood members of the Satele family. It was the uncontroverted testimony of Filemu Talili that his great-grandfather was Satele Titae, a titleholder who preceded the split between the Pili and Uga branches. Oher testimony on both sides clearly established that people acknowledged by the defendants to be family members who have resided on family lands are closely related to the Talili family.

2. Various Talili relatives have long occupied part of Tomea. We need not decide whether, as the plaintiffs maintain, the land was originally given to them by their Futiga relatives ..in order to serve Satele, ..or whether they were first allowed to move onto the land by a Satele.

3. Although the Talili litigants have rendered service to Satele by making contributions to some family fa'alavelave through a Satele matai, such service has been grudging and sporadic. It may not even have come to the attention of Satele Momosa, and it does not seem to have been in proportion to the benefits Peter Talili and his family have received from Satele land.

4. Although Peter may have taken advantage of the vacancy in the Satele title to cultivate more land than had been recently cultivated by his family, there is no evidence that he appropriated any land that had been recently cultivated by other family members.

5. Peter Talili's estimate that the crops destroyed by the bulldozer were worth $300,000 was a vast overstatement. He claimed that this half acre had contained at least 60 coconut trees, 500 taro plants, 15 to 20 mature breadfruits, 100 banana trees, as well as ava, pandanus, and orange trees. Although we acknowledge that Samoa was the [4ASR2d27] actual historic location of the Garden of Paradise, we are unwilling to find the defendants guilty of having destroyed it on the basis of Mr. Talili's unsupported testimony. We find the testimony of Francis Foma'i, to the effect that the bulldozer destroyed about fifteen coconut trees, four or five breadfruit trees, and no new plantations, to be far more credible.

6. In building his own house, which was done without authorization from anyone entitled to speak for the whole Satele family, Peter cleared an area at least as large and valuable, and with plantings of approximately the same kind, as the area cleared by Satele for his sister's house.

7. The destruction of the Talili crops was authorized by Satele without consultation with the family members who were affected, and without assigning them any other land or giving any other form of compensation.

CONCLUSIONS OF LAW

1. We reaffirm the court's holding in L.T. 19-84 to the effect that the Satele Pili family must respect the right of other Satele family members who have long lived on parts of Tomea to continue to do so.

2. The right of a family member to occupya particular piece of family land, however, is not absolute. The sa'o can reallocate the land within the family provided that he provides the displaced family members \ith some other equivalent land. See, e.g., Ifopo v. Vaiao, 2 A.S.R. 472 (1949); Tiumalo v. Lio, 3 A.S.R. 176 (1955).

3. Moreover, the right of a family member to use family land for economic purposes is subject to the right of the sa'o, acting as trustee for the family, to call on all family members to render service in proportion to their ability (with particular respect to the value of the fruits of their occupancy) and to the needs of the family. See Tago v. Faleulu, 3 A.S.R. 370 (1958).

4. The sa'o of a family should not, however, take a major step with regard to family land without prior consultation with the family, and particularly with the family members directly affected. "This is the Samoan way of life---discussions, discussions, and discussions in a good [4ASR2d28] faith effort to iron out disputes." Fairholt v. Aulava, 1 A.S.R. 2d 73, 78 (1983).

ORDER

Satele shall consult with the plaintiffs before proceeding with the proposed construction. The plaintiffs shall meet with him on any reasonable terms he proposes. If (as has been reported to the court since the trial) one or more of the plaintiff's is unavailable for an extended period, the others shall meet with Satele. The parties shall attempt in good faith to reach a mutually acceptable result, bearing in mind that Satele has the ultimate right to allocate family land subject to the obligation to provide alternative land to displaced family members.

At the conclusion of such negotiations, the plaintiffs should have the right to cultivate approximately the same amount of land as they were cultivating immediately prior to the bulldozing. The right to use this land is, of course, conditional in many ways. In particular, respect and service must be rendered to Satele in full accordance with Samoan custom.

Subject to these conditions, the preliminary injunction is dissolved, the further relief in the complaint and in the counter-complaint is denied, and the action is dismissed.

**********

1. See also Momosea v. Talili, L.T. 29-77; Talili v. Foma'i, L.T. 72-79.

Tafesilafa'i; Togiola v.


TOGIOLA T.A. TULAFONO, Plaintiff

v.

TAFESILAFA'I MlKA VAESA'U,
MAUI'A (JOHN) NAFANUA TOGIOLA
TE'O TU'ITU'I MAPU, and DOES I-XX, Defendants

High Court of American Samoa
Land and Titles Division

MT No. 2-87

March 25, 1987

__________

Court may enjoin a person from holding himself out as the holder of a matai title that has been lawfully registered in the name of another person. A.S.C.A. § 43.0303.

Territorial statute makes it a crime to claim a matai title lawfully registered in the name of another person. A.S.C.A. § 1.0414.

Losing contestants in matai title dispute and their supporters who subsequently participated in a ceremony purporting to bestow the title on someone other than the person in whose name it was lawfully registered, who disrupted a meeting, and who proclaimed their intention to interfere with the decisions and acts of the lawfully registered matai had transgressed the rights of the lawful matai and would be enjoined from further transgressions.

Where court found that circumstances required expedited hearing on motion for preliminary injunction, defendants who had not had time to retain counsel could redress any injury occasioned by the short notice by retaining counsel and bringing the matter for another hearing.

Before REES, Chief Justice, TAUANU'U, Chief Associate Judge, VAIVAO, Associate Judge, AFUOLA, Associate Judge, and TUIAFONO, Associate Judge.

Counsel: Togiola T.A. Tulafono pro se
Tafesilafa'i Mika Vaesa'u pro se
Maui'a (John) Nafanua Togiola pro se
Te'o Tu'itu'i Mapu pro se [4ASR2d55]

The plaintiff and two of the defendants in this action were candidates for the Togiola title in 1985. After the death of the previous titleholder, defendant Maui'a registered the title in his own name. This registration was challenged by defendant Te'o and by the plaintiff, who was then called by the title Ufagafa. Each of these three men claimed that the Togiola family, or the greatest part of it, supported him for the Togiola title. Since the family could not resolve its differences. the controversy came before the High Court.

By the time of the trial, candidate Maui'a had removed to Hawaii and a fourth candidate had dropped out of contention, stating that he would support either Te'o or Ufagafa. It was the unanimous decision of the four Samoan Associate Judges sitting on the case that the two remaining candidates, Te'o and Ufagafa. were about equal in their hereditary right to the title. The Samoan judges also found that the family was divided among all four candidates with no candidate prevailing. The judges found that Ufagafa clearly prevailed in forcefulness, character, leadership, and familiarity with Samoan customs, and also in value to the family and community. The Court therefore decided that Ufagafa should hold the Togiola title. The Appellate Division upheld this decision.

Shortly after the Appellate Division issued its opinion, the new Togiola began preparations for his saofa'i, which was held on February 24 of this year. On February 17, however, another saofa'i was held, purporting to bestow the Togiola title on Tafesilafa'i, who had not previously been a candidate for the title. Since that time Tafesilafa'i has been holding himself out as the holder of the Togiola title, and Te'o and Maui'a have been supporting him in this claim. This action, brought by the lawful holder of the title, seeks to enjoin the defendants from continuing to hold out Tafesilafa'i as Togiola.

The laws of American Samoa clearly give the court power to enjoin someone from holding himself out as the holder of a title that has been lawfully registered in the name of another person. A.S.C. 43.0303. Indeed, the Fono has enacted a law making it a crime fbr anyone to claim a title that belongs to another person. A.S.C. 1.0414. We are most reluctant, however, to issue an order that interferes wi-th what a person chooses to call himself. If the defendants had done nothing other [4ASR2d56]than to say that Tafesilafa'i was really Togiola, we would be strongly inclined to leave it to the Togiola family and to the traditional leaders of the Territory to correct this erroneous impression.

We do, however, have the obligation to prevent people from interfering with' the rights of others. Togiola complains that the defendants have interfered with his own right to exercise the powers appurtenant to the title. The Court has also heard a statement from Paramount Chief Le'iato, for whose saofa'i preparations are currently underway, indicating that the possibility that his saofa'i will be disrupted and the harmony of the whole Eastern District fractured as a result of the present controversy is a matter of great concern to him.

The evidence establishes that at a meeting called last week for the purpose of making preparation for the Le'iato saofa'i, Tafesilafa'i came in and sat in the place traditionally reserved for Togiola. When he was asked to leave by Leota, who had called the meeting and in whose house it was, he refused. An argument ensued, and a talking chief of the Togiola family was beaten by some sons of Tafesilafa'i. At the hearing, defendants did not attempt to rebut this evidence. (1) Furthermore, Tafesilafa'i testified that he and he alone had the power to make legal decisions concerning Togiola family lands, and that he intended to actively interfere with any decision by Togiola Talalelei [4ASR2d57] Tulafono to build a house or conduct other activities on family lands. (Asked exactly what he would do to interfere, he stated that he would begin by going to court, but if he lost he would still not allow any such buildings to be built.)

The defendants believe that they are justified in their posture because they and they alone represent the blood members of the Togiola family. This has unfortunately become a standard tactic in matai title disputes: if you cannot win any other way, claim that only the members of your own clan are "true" blood members of the family. It is clear, however, that Togiola Talalelei Tulafono is descended from Togiola titleholders including the original titleholder. He presented evidence of this at the trial over the title, and Te'o did not challenge this evidence.

The defendants' attempt to portray this as a controversy between "the family" on the one hand and "the Court" on the other is particularly ironic, because the two previous titleholders--who are more closely related to the defendants than to the plaintiff, and whose administration of the family in recent years seems to be the basis for the defendants' attitude that their side of the family is the only "true" side ---were themselves chosen by the Court.

In 1952 the Court awarded the Togiola title to one Fuaga, who went on to hold it for about thirty years; the losing candidate in that case, whose membership in the family was not challenged, was the great-uncle of the plaintiff in this case, Togiola Talalelei Tulafono. On the death of Togiola Fuaga in 1982 the family again found itself unable to agree, and the Court awarded the title to Mapu, the father of defendant Te'o. When one side of the family has held the title not through family consensus but through judicial decisions, it is particularly unbecoming for that side to call foul ---much less to threaten active disobedience to Court orders ---when the Court subsequently awards the title to another side of the family.

Moreover, this title came to the Court in 1984 not because of anything the plaintiff did but because the defendants could not agree among themselves. Maui'a was the first to register the title. His claim was challenged first by another family member and then by Te'o. The plaintiff, who was ultimately awarded the title, did not file his claim until after the controversy was well under [4ASR2d58] way. A candidate who files a claim with the territorial registrar knowing that the family has not reached a genuine consensus and that his claim will be opposed by other members of the family, Who wages a court battle and then an appeal asking the Court to award him the title , is in no position to complain about "Court interference in family matters" when somebody else wins the case.

It is the judgment of the Court, therefore, that Tafesilafa'i can call himself anything he wants, although courtesy and a desire for peace within the family should militate strongly against his continuing to call himself by the title Togiola.

The defendants are enjoined, however, from interfering in any way with the right of Togiola Talalelei Tulafono to exercise the powers appurtenant to the Togiola title. This specifically includes, but is not limited to, the power to make decisions concerning family land.

The defendants are also enjoined from committing, encouraging, or countenancing any acts of violence in connection with this controversy.

The defendants are further enjoined from interfering with the conduct of the Le'iato saofa'i. Rather than spell out in detail what is forbidden by this part of the injunction, we direct the defendants to comply with the requests of Paramount Chief Le'iato and of those authorized to speak for him in connection with the saofa'i.

It is so ordered.

**********

1. The defendants conducted their own defense at the hearing on the preliminary injunction, as did the plaintiff, who is an attorney. One of the defendants called to the Court's attention the fact that the hearing was held on one day's notice and that they had therefore been unable to retain counsel. The short notice was made necessary by the imminence of the Le'iato saofa'i, preparations for which were actively disturbed last week by the defendants and their associates. The Court attempted to explain to the defendants their rights (e.g., to cross-examine the plaintiffs' witnesses and to put on their own evidence) at each stage of the proceeding. If defendants feel that they were prejudiced by the short notice, or wish to change the Court's ruling in any way, they may secure counsel and bring the matter for a hearing on the question of a permanent injunction.

Lutali; Fa`atiliga v.


FA'ATILIGA TAPUVAE, MAFA TUIKA. TU'UTAU P. FANENE, 
TIA PENITUSI. ERIC HOWLAND, LOUISULU LE'I, 
POPOALI'I UOTI, FAIVALE GA'OPO'A, ROBERT KEY, 
PASELIO LEATISUA, and NOFO VAILAAU, for 
themselves, for the AMERICAN SAMOA DEVELOPMENT 
CORPORATION (ASDC), and for shareholders of ASDC 
similarly situated, Plaintiffs,

v.

A.P. LUTALI as individual, as former Director and 
President of ASDC, and as Governor of American 
Samoa, ENI HUNKIN as individual and as Lieutenant 
Governor of American Samoa, STEVE WATSON as 
individual and as Executive Assistant to the 
Governor, J.R. SCANLAN as individual, as Assistant 
to the Governor and as Director of ASDC, 
LEULUMOEGA S. LUTU as individual and as Attorney 
General of American Samoa, JOHN SAMIA as 
individual and as Chairman of the Board of 
Directors of ASDC, FAAUUGA ACHICA as individual 
and as Secretary of ASDC, VERA ANNESLEY as 
individual and as Director of ASDC, FAIIVAE 
A. GALEA'I as individual and as Director of 
ASDC, TUIAFONO MATAUTIA as individual and as 
Director of ASDC, SILI K. SATAUA as individual 
and as Director of ASDC, AIGA TASl, Inc. , LI'A 
AFUVAI as an officer of Aiga Tasi Inc., and 
DEVELOPMENT BANK OF AMERICAN SAMOA, Defendants

High Court of American Samoa 
Trial Division

CA No. 103-86

January 20, 1987

__________

Territorial statute providing that shareholder may either cast all his votes for one candidate for corporate office or divide his votes among as many candidates as there are positions did not leave corporate management free to choose which of these two methods would be followed; rather, it required that each shareholder be given the option of choosing how to cast his votes. A.S.C.A. § 30.0142.

Where notice of corporate election was in the newspaper rather than by mail or personal delivery as required in the corporate by-laws, but where there was no testimony that any shareholder had not in fact received notice of the meeting, the [4ASR2d2] alternative method of notice was not shown to have interfered with the shareholders' right to vote.

Before REES, Chief Justice, AFUOLA, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For the Plaintiffs, Aviata Fa'alevao 
For the Defendants, Martin Yerick, Assistant Attorney General

Opinion and Order on Motion to Amend Judgment:

On December 10, 1986, at the conclusion of the plaintiffs' case, we granted the defendants' motion for summary judgment on all but three relatively minor issues. On these issues the defendants agreed to have judgment entered against them. Plaintiffs now move for various amendments to the summary judgment.

The motion is grounded on three principal contentions:

(1) The Court should have stated its conclusions of law separately from its findings of fact;

(2) The Court erred in concluding that the option contract to buy stock owned by the Development Bank of American Samoa was legal, since the Governor has no authority to act for the Development Bank in matters concerning the sale of securities;

(3) The Court neglected to address several of plaintiffs' claims concerning the selection of the present Board of Directors.

I. Findings of fact and conclusions of law.

Plaintiffs allege that "there were no findings of fact and conclusions of law" in the Court's order. This statement seems to overlook the fact that, after ruling from the bench, the Court issued a lengthy written opinion containing detailed findings of fact as well as conclusions of law. Plaintiffs correctly observe, however, that our rules of civil procedure require the Court to "state separately its conclusions of law." TCRCP Rule 52(a) (emphasis added); See TCRCP Rule 41(b). We therefore append a separate statement of our conclusions of law. [4ASR2d3]

II. The Governor's authority to negotiate the option contract.

As we pointed out in our written opinion, subsequent to the conclusion of the option contract the Board of Directors passed a resolution endorsing the sale of stock. The sale was only one feature of the contract, which also involved related undertakings by A.S.G. Obviously, the stock could never have been sold without the approval of the Board of Directors of the Development Bank. If, however, the Governor had been unsuccessful in securing the assent of the Board, the people with standing to complain would have been the other contracting parties, not the plaintiffs.

III. The selection of the directors.

Plaintiffs alleged a number of irregularities in the selection of the current directors of A.S.D.C. Although the Court addressed the allegation on which plaintiffs seemed principally to rely -- the contention that the Governor "appointed" the directors by voting the shares owned by the Development Bank -- certain other claims were not addressed.

Defendants urge that plaintiffs waived these contentions by not pressing them at trial. Plaintiffs did, however, allude to the alleged irregularities in their trial memorandum and produced evidence of them at trial. Although both the Court and opposing counsel were under the impression that" the plaintiffs' evidence concerning the January 18, 1985 meeting was directed only at their contention that the Governor "appointed" the directors, a review of the record reveals that this evidence was also relevant to the plaintiffs' other allegations. Plaintiffs did not waive some alleged irregularities simply by emphasizing others.

Three irregularities asserted by the plaintiffs were not addressed in our opinion:

(a) The plaintiffs. alleged not only that the seven directors elected at the January 18 meeting were "appointed" by the Governor, but also that three directors subsequently selected to fill vacancies were similarly "appointed." The second contention is virtually identical to the first, which we rejected in our original opinion. The only evidence for either contention is a statement by the Governor during a deposition. As he made [4ASR2d4] clear in his trial testimony, he "appointed" directors not in any technical or legal sense of the word, but only in the informal sense that he had the votes to get them elected. The evidence shows that the directors selected to fill vacancies were elected at a meeting of the ASDC Board of Directors, in accordance with the By-Laws.

(b) Plaintiffs also alleged, and produced testimony tending to show, that shareholders were not given the option of "cumulative voting" required by A.S.C. § 30.0142. This contention has merit. Although defendants urge that the statute leaves the decision on the manner of casting votes up to the corporation rather than to the individual shareholder, both the language of the statute and the history of "cumulative voting" provisions convince the Court otherwise. See H. Henn. Law of Corporations 364-66 (2d ed. 1970). Without the right of shareholders to cast their votes cumulatively, an individual or faction owning 51% of the shares in a corporation would always be able to elect 100% of the directors. If, however, each shareholder has the right to cast all his votes for one person, rather than dividing them up among a number of people equal to the number of directors, then each individual or faction will be able to elect a percentage of directors roughly equal to the percentage of shares it owns. A statute requiring the option of cumulative voting is thus an important guarantee of minority shareholders' rights.

The Court should not have granted summary judgment on this issue. On the other hand, we cannot grant a summary judgment for the plaintiffs without giving defendants a chance produce evidence that cumulative voting procedures were in fact followed. We therefore alter our previous order to deny summary judgment on the issue of cumulative voting at the January 18, 1985 meeting and set the issue for trial on March 18, when the claims by and against Aiga Tasi are already scheduled to be heard.

We must emphasize the limited scope of our ruling today. At most, the plaintiffs will be entitled to a declaratory judgment that cumulative voting procedures should have been followed at the January 18 meeting and an injunction requiring the corporation to hold a new election in accordance with such procedures. Such a judgment would not affect any other issue in the case. The Development Bank's ownership of the stock and the legality of [4ASR2d5] the option contract do not depend on the composition of the ASDC Board of Directors.

Nor can plaintiffs successfully assert the illegality of actions taken by the Board during the past two years on the ground that cumulative voting procedures were not followed in the election. There are two principal reasons for this. First, even in the unlikely event that all minority shareholders had cast their votes and had cast them for the same candidate or candidates, they could have elected only one or possibly two of the seven directors. Since plaintiffs produced no evidence at trial to prove that any action of the Board was taken by a one or two vote margin, there is no evidence that the procedures in electing the Board caused any of the Board actions of which plaintiffs complain. Even more important is the fact that the plaintiffs could have sued for an injunction requiring a new election on the day after the allegedly improper one, but instead waited over a year. While such a delay is no bar to prospective relief ---that is, to a suit directed at having an election in which proper procedures are followed--it does deprive plaintiffs of the right to complain retrospectively of actions which they might have prevented by timely action.

We reiterate, however, that we were wrong to grant summary judgment on plaintiffs' claim that cumulative voting procedures should have been followed at the January 18, 1985 election. We hereby reverse that part of our holding, and set the matter for trial on March 18. Only defendants A.S.G., Lutali, Watson, the Development Bank, and the ASDC directors are involved in this claim. All defendants are involved only in their official capacities, since no evidence was produced showing that any defendant acted in bad faith or outside the scope of his official duties. Should all defendants acquiesce in a consent judgment on this issue, or should a new election prior to March 18 render the issue moot, the issue will not be tried.

(c) Plaintiffs produced evidence that notice to shareholders of the January 18, 1985 meeting was not by mail or personal delivery as required by the By-Laws, but was instead by publication in the newspaper. Plaintiffs did not allege in any of their pleadings, however, that any of the plaintiffs did not in fact receive notice of the meeting. The one plaintiff who testified, Eric Howland, did learn of the meeting and attended it. Even if the procedure was improper, no relief can [4ASR2d6] be granted in the absence of an allegation and proof that it resulted in some palpable injury to one or more of the plaintiffs. In this case the injury that might have occurred would have been denial of the right to vote. That the alternative method of notice was not shown to have interfered with the plaintiffs' right to vote does not excuse the officers of the corporation from their failure to comply with the By-Laws, but it does prevent a court of law from rendering judgment against them. Defendants therefore prevail on this issue. (In any case, even if the plaintiffs had alleged and proven that the improper notice resulted in the denial of their right to vote, they would have been entitled only to a declaratory judgment and a new election. Unless defendants can prove that cumulative voting procedures were in fact followed at the January 18 meeting, plaintiffs will be entitled to such relief in any case.)

The order issued on December 11, 1986, is hereby amended to deny summary judgment on the question whether shareholders were given the option of cumulative voting at the election meeting. We also append a separate statement of our conclusions of law in accordance with the plaintiffs' motion. In all other respects the motion is denied.

**********

Lutali; Ah San v.


VINCENT and MANINO AH SAN, Plaintiffs

v.

GOVERNOR A.P. LUTALI, 
COMMISIONER OF REVENUE, AMERICAN 
SAMOA GOVERNMENT, Defendants

High Court of American Samoa 
Trial Division

CA No. 87-86

June 29, 1987

__________

In proceeding involving issue of fraudulent intent to evade tax, government bears burden of proof by clear and convincing evidence. 26 U.S.C. § 7454.

Normal three year statute of limitations for collection of delinquent taxes expands to six years when taxpayer failed to report over 25 percent of his includible gross income in tax return. 26 U.S.C. § 6501(e)(1)(A).

In determination whether taxpayer omitted 25 percent or more of gross income from return, in order to trigger special six-year statute of limitation, an item is not "omitted" if taxpayer did not include the item in gross income but referred to it elsewhere in the return or in an attachment in a matter sufficient to apprise the government of its nature and amount. 26 U.S.C. § 65.01 (e)(1)(A).

Where government's own documents indicate that taxpayer included allegedly omitted items on return, but simply did not include them in calculation of gross income, items were not "omitted" so as to justify special six-year limitation of actions to remedy taxpayer omissions of over 25 percent of gross income. 26 U.S.C. § 6501(e)(1)(A).

Before KRUSE, Associate Justice, OLO, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Plaintiff, Charles Ala'ilima 
For Defendants, Martin Yerick Assistant Attorney General [4ASR2d178]

Petitioners move for partial summary judgment against the assessment of certain deficiency determinations made by the respondent, American Samoa Government, involving income tax years 1980, 1981 and 1982 upon the ground that the asserted tax deficiencies were barred by the three year statute of limitation provided in the United States Internal Revenue Code, 26 U.S.C. § 6501(a), as adopted by the Territory in A.S.C.A. § 11.0401, with amendments A.S.C.A. §§ 11.0501 et. seq.

At the hearing of petitioners' motion, respondents in their memorandum supplied and filed the day before raised the "fraud" exception , provided in the enactment, whereby a tax may be assessed at any time. No showing of any sort was offered by respondent as to fraud.

Under 26 U.S.C. § 7454 it is provided that the burden of proof in any proceeding involving the issue whether the petitioner has been guilty of fraud with intent to evade tax shall be upon the respondent. The courts have held that the standard of requisite proof is "clear and convincing evidence". Kreps v. Commissioner, 351 F.2d 1 (2d Cir. 1965); Carter v. Campbell, 264 F.2d 930 (5th Cir. 1959).

Upon further briefing directed by the Court, respondent abandoned its fraud contention and further advised the Court that it was not opposing summary judgment in favor of petitioners for the year 1981. In lieu of the fraud exception to the general three-year statute of limitation, respondent invokes the six-year limitation exception provided in the Code, 26 U.S.C. § 6501(e)(1)(A). Essentially this enactment provides that in the case of a tax payer omitting from gross income an amount properly includible therein in excess of 25 percent of the amount of gross income stated in the return, the corresponding taxes may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at anytime within six years after the return was filed.

It has been held that this provision is not a penalty statute, but merely provides a longer period in which a deficiency assessment may be made whenever there is an omission of more than 25 percent of gross income stated in the return. Greiger's Estate v. Commissioner, 352 F.2d 221 (8th Cir. 1965) cert. denied 382 U.S. 1012 (1966). [4ASR2d179]

For purposes of this enactment, subparagraph (A) thereof provides that the term "gross income" means the total of the amounts received or accrued from the sale of goods or services (if such amounts are required to be shown on the return) prior to diminution by the cost of such sales or services; and in determining the amount omitted from gross income, there shall not be taken into account any amount which is omitted from gross income stated in the return if such amount is disclosed in the return, or in a statement attached thereto, in a manner adequate to apprise the government of the nature and amount of such item.

Prior to Congressional supply of this definitional or clarifying subparagraph, the Supreme Court harmoniously interpreted the language "omit from gross income any amount includible therein" as embracing only the omission from a return of an item received by or accruing to the taxpayer, and did not include an understatement of gross income arising from an error in reporting an item disclosed on the face of the return. Colony Inc. v. Commissioner of Internal Revenue, 357 U. S. 28 (1958). In other words, the enactment applied only in those instances concerning data nonexistent on the return; where the return on its face provides no clue to the existence of the omitted items, the Commissioner is at a special disadvantage in detecting errors. On the other hand, there is no disadvantage when the understatement of a tax arises from an error in reporting an item disclosed on the face of the return.

Given, therefore, legislative intendment as to the proper ambit of 26 U.S.C. § 6501(e)(1), we are of the opinion that the reliance by respondent herein on the six-year limitation provision is misplaced for the reason following. By way of explaining the various deficiency notices for years 1980, 1981, and 1982, respondents have documented as follows:

Due to your failure to submit this office with records requested 
to substantiate your profit and loss statement, we therefore 
have no alternative but used all informations as reported on 
the original returns filed with this office. (Emphasis added).

On these factual assertions by respondents provided as exhibits to the petition and admitted in the answer filed herein, we conclude that the [4ASR2d180] omissions excepted to by respondents pertained to errors disclosed on the face of the return. As a matter of law the six-year limitation provision is inapplicable, and accordingly the general three-year limitation statute governs.

The motion for summary partial judgment is granted and it is so Ordered.

**********

Leota v. Faumuina,


LEOTA FAMILY and UELE SAVALIGA, Appellants

v.

FAUMUINA MOLITAU, Appellee

High Court of American Samoa 
Appellate Division

AP No. 32-85

February 13, 1987

__________

Long occupancy of land by one family is not necessarily inconsistent with ownership by another family.

There is a strong presumption that land in American Samoa is communal rather than individual property.

Communal land given in atonement for an offense committed by a family member is presumed to become the communal property of the victim's family rather than the victim's individual property.

Before REES, Chief Justice, GARDNER*, Acting Associate Justice, KENNEDY**, Acting Associate Justice, LUALEMAGA, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Appellants Leota, Albert Mailo 
For Appellant Uele, Monike Failauga 
For the Appellee, Aviata Fa'alevao

Per KENNEDY, J. :

Leota Faagau and Savaliga Uele appeal a decision of the Land & Titles Division of the High Court of American Samoa that land known as Utusi'a is communal land of Faumuina Molitau, but that Leota and Uele may continue to live there. We affirm.

The positions of the parties are as follows. Leota claims that Utusi'a is communal land of the Leota family because it has occupied the land for many years. Uele claims that he inherited individual ownership of Utusi'a from Tialavea Eseroma. Faumuina claims that Utusi'a is communal land of the Faumuina family, acquired long ago as atonement for a crime against the family.[4ASR2d12]

Under A.S.C.A. § 43.0801(b), we review the decision of the Land & Titles Division under the clearly erroneous standard.

Faumuina testified that his family received Utusi'a to atone for the rape of a family member, all this long before the establishment of a government on Tutuila. Two witnesses substantially corroborated his testimony. Uele, an adverse party with his own claim to Utusi'a, conceded that Faumuina's family received the land to resolve the dispute after a rape. Tialavea Fa'alafu, a, senior member of the Lauatua family, conceded that his family had given Utusi'a to Faumuina's family many years ago. While other witnesses questioned Faumuina's claim to the land, the lower court's finding was not clearly erroneous in light of the supporting evidence we have cited.

Leota claims that his family has lived in Utusi'a for many years. Such an arrangement, however, is not inconsistent with Faumuina's ownership of the land. As Faumuina testified, his ancestors may simply have allowed Leota to occupy the land, much as Faumuina is willing to do today.

We turn next to the contention of Savaliga Uele, who filed a brief with certain contentions but failed to file a notice of appeal. Failure to file a notice of appeal will bar an attack on the judgment of the trial court, but in this instance we address the contentions in order to resolve the case as to all parties.

Uele agrees that the land was given in atonement but argues it was transferred to the rape victim as individual property, not to the victim's family as communal property, and that it was inherited by him. He says that atonement by transfer of land, an ifoga, after a personal offense becomes individual not family property as a matter of Samoan custom. We find no support for that proposition. A transfer of communal land, even before the enactment of statutes restricting it, was a rare event. Moreover, consistency with Samoan traditions requires a strong presumption that land so transferred remain communal land. This is true even when the transfer was due to an ifoga, or atonement. Though the victim suffers grievous personal hurt and anguish, his or her family shares the outrage. An ifoga is an expression of sorrow and apology to the family, as well as to the victim, and in this sense transcends [4ASR2d13] mere compensation. Yeh v. Pratt, 4 A.S.R. 752 (1967).

Under the decisions of this Court, a person may obtain individual ownership of land with proof of original ownership. Leuma v. Willis, 1 A.S.R. 2d 48 (1980). As the court below noted, Uele failed to present any evidence concerning original ownership of Utusi'a. This failure, along with the presumption against individually owned land, Reed v. Puailo, 1 A.S.R.2d 85 (1983), and our conclusion of the effect of the ancient transfer by ifoga, lead us to reject his claim.

The decision of the Land & Titles Division of the High Court of American Samoa is AFFIRMED.

**********

*Honorable Robert Gardner, Chief Justice Emeritus, High Court of American Samoa, serving by designation of the Secretary of the Interior.

** Honorable Anthony M. Kennedy, Judge, United States Court of Appeals for the Ninth Circuit, serving br designation of the Secretary of the Interior.

Lafaele v. Continental Ins. Co.,


OTELE LAFAELE, Plaintiff

v.

CONTINENTAL INSURANCE CO. 
and CHARLIE TAUTOLO, Defendants

High Court of American Samoa 
Trial Division

CA No. 131-85

May 7, 1987

__________

"Preponderance" standard means that if the parties' contradictory versions of the facts have equal evidentiary support and the plaintiff cannot establish superior credibility, the defendant must prevail.

Before KRUSE, Associate Justice, LUALEMAGA, Associate Judge, and OLO, Associate Judge.

Counsel: For the Plaintiff, Albert Mailo 
For the Defendants, Roy Hall

If the judicial fact finding process were a purely quantitative exercise, the effect of each party's evidence in this case would be simply to cancel the other party's evidence out. As it happens, our qualitative analysis of the evidence leads us to essentially the same conclusion.

Plaintiff testified that he was operating his vehicle in a non-negligent manner when defendant, who was approaching in his vehicle from the opposite direction, crossed the center line of the highway onto plaintiff's lane and side-swiped plaintiff's vehicle, causing sundry damage to person and property. Plaintiff had a close relative who was riding with him at the time who corroborated plaintiff's testimony to the detail.

Defendant's version was the laterally inverted image of plaintiff's case. Defendant had plaintiff crossing the center line. Like the plaintiff he produced a close relative who had been a passenger in his vehicle and who corroborated his story.

The only agreement between the parties was [4ASR2d132] that the collision occurred: on a straight stretch of the main east-west highway at or around Nu'uli; in the early hours of the morning; in conditions described by defendant to be "perfect" .

Hereafter the testimony parted in similarities. Plaintiff testified. that after the collision defendant continued on without stopping, and so he gave chase. He finally caught up with defendant in Utulei, where defendant had turned into the intersection going towards the Administration Buildings. After taking the license number of the other vehicle, plaintiff proceeded to the Police Station and filed a complaint.

On the other side, defendant testified that when he saw plaintiff's vehicle cross the center line he attempted to swerve to the curb. He was, however, limited in his actions owing to a temporary embankment of excavation dirt built up on the shoulder of his side of the road. The embankment was said to be due to Public Works having been laying pipelines. He testified that after the collision he was the one who stopped his vehicle and plaintiff was the one who drove on. Defendant then walked around his vehicle and found that his side mirror on the left was damaged. He assessed his damage as insufficient to prompt him to attempt to chase after the other vehicle at that hour in the morning. He continued eastward but made another stop off the road -to take another look at his vehicle. When asked, he testified that at this time there was no one else in sight. He resolved to make no more of the incident and continued onward to meet a friend.

Defendant testified further that on his way home he was surprised when stopped by an officer who questioned him about the earlier incident. After giving his version of the collision at the Police Station, he heard no more of the matter until plaintiff filed this suit.

The initial impression gleaned from this testimony, given the hour of darkness at which the collision occurred, could well be that one of the parties was honestly mistaken about the location of his vehicle in relation to the dividing line at that moment. The extraordinary extent to which the two stories diverge, however, makes it necessary for the Court to consider carefully the credibility of each.

In the Court's view, plaintiff's testimony was [4ASR2d133] in many instances both evasive and self serving.

When plaintiff was asked the location of defendant's vehicle at the time the chase was commenced, plaintiff readily ventured a definite location out of his sight and quite some distance away, apparently in the hope of assigning high speed to the defendant. Plaintiff's evidence would also have him undertaking the chase specifically at the posted speed limit. The testimony vascillated, however, between his initial estimate of 35 mph and a revised estimate of 25 mph, once the plaintiff was made aware that the actual posted speed limit was the latter.

When questioned about the presence of construction or excavation at the scene, plaintiff definitely denied such. It became clear to the court, however, that his responses were purposely limited to a denial that physical activity was taking place at the time the accident occurred, which was around one o'clock in the morning. He was not about to address, without some prodding, whether there was an embankment, although the Court finds it difficult to believe that he did not know that this was the question he had been asked.

Further, his testimony regarding the extent of property damage fell woefully short of being persuasive. He testified that he had received two repair damage estimates from separate mechanics. One was for $400 and the other for $500. Neither estimate was produced in court, but plaintiff stated that he opted for the $400 mechanic and allowed that repairs cost him $400.

The testimony later developed that the $400 mechanic was a' friend of plaintiff's son who worked at a certain garage. That labor with repairs was without charge.

When questioned on the elements of the $400 estimate, however, given that no labor charge was involved, plaintiff responded that the $400 was expended on material that the mechanic had told him to purchase. Except for the paint, plaintiff was unable to name what the material comprised, attempting to feign ignorance about technical labels assigned to auto parts.

The authorities are replete with statements that the onus is on plaintiff to establish by evidence of preponderating weight that it was more probable than not that the injury complained of was [4ASR2d134] caused by defendant. So as not to appear to give ritualistic veneration, to, labels such as "preponderance of the evidence" and "balance of probabilities", we quote a leading treatise:

The plaintiff must introduce evidence which affords a reasonable 
basis for the conclusion that it is more likely than not that the conduct 
of the defendant was a cause in fact of the result. A mere possibility 
of such causation is not enough; and when the matter remains one of 
pure speculation or conjecture, or the probabilities are at best evenly 
balanced, it becomes the duty of the court to direct a verdict for the 
defendant.

Prosser & Keeton on Torts § 41 at 239 (5th. 1984) (citations omitted).

In our view, the evidence presented (by plaintiff on the one hand, and by defendant on the other) in proof of causal connection is equally balanced, in that the facts are as consistent with one theory of causation as with the other. In other words, the facts in this matter lead to the conclusion that the cause of the injury "may be as reasonably attributed to an act for which the defendant is not liable as to one for which he is liable". Gedra v. Dallmer Co., 91 N.E.2d 256, 260 (Ohio 1950). In order to sustain the plaintiff's claim on the evidence presented, the needed finding of proximate cause would rest solely on possibilities and conjecture. If we believed that plaintiff's credibility was superior to that of the defendant we might still conclude that he had proven his case. For the reasons stated, we do not so conclude. The only reasonable inference that can be drawn in the circumstances is that the proximate cause of plaintiff's damage is unknown and unproved.

In these circumstances the plaintiff, as a matter of law, must fail. Judgment will enter accordingly in favor of the defendants.

**********

La`apui; In re Matai Title


VA'ALELE ALE, Appellant

v.

LEFANO FALEALILI, Appellee

[In the matter of the Matai Title "LA' APUI"
in the Village of Fitiuta]

High Court of American Samoa 
Appellate Division

AP. No. 6-86

January 22, 1987

__________

In the absence of evidence of contrary Samoan custom, appellate court would not reverse trial court judgment that candidate for matai title could cumulate two separate claims to ancestry from original titleholder in determining the degree of his blood relationship to titleholder.

Statute prescribing participation in matai title dispute of one law-trained judge, as well as four associate judges who are not lawyers but who are chosen for their familiarity with Samoan custom, did not require that the law-trained judge be present during all deliberations of the associate judges. A.S.C.A. § 3.0240.

Before REES, Chief Justice, MURPHY, Associate Justice, KENNEDY*, Acting Associate Justice, TAGO, Associate Judge, and A'AU, Associate Judge.

Counsel: For the Appellant, Aviata Fa'alevao 
For the Appellee, Malaetasi Togafau

PER CURIAM:

This is an appeal from a judgment of the Land & Titles Division of the High Court, which awarded the Matai title .'La'apui'. of the Village of Fitiuta. Title was awarded to the claimant Lefano Falealili, and a competing claimant, Va'alele Ale, now takes this appeal.

The appellant's first contention is that the trial court erred in finding that appellee has a 1/16 hereditary right to the title. The basis for this holding is that appellee is descended from the first titleholder through his mother and also [4ASR2d8] through his father. Since his relationship to the first titleholder on each side is that of a great- great-great-grandson (1/32), the trial court accepted his claim that his blood relation to the title was 1/16. This was the same relation claimed by the appellee, whose 1/16 relationship was based on his claim to be a great-great-grandson of the original titleholder. (Appellee, however, traced his ancestry to a different "original titleholder" than the one identified by appellant and some of the other candidates.) Appellee argues that it is contrary to Samoan custom for a person who is related to a title on both sides of his family to claim a greater hereditary right than if he were related on only one side.

This is apparently a case of first impression. The issue seems to be another unplanned consequence of the trial court's decision In Re Matai Title Sotoa, No. 5-82, holding that hereditary right may be traced only to the original titleholder. Since appellant does not contest that holding, but rather relies upon it and praises it, we do not have occasion to reconsider it in this case. Appellant does not, however, offer any authority ---either in the form of evidence of family tradition or Samoan custom adduced at trial, or of argument based on customs and traditions of which the court might take judicial notice for his position that a candidate may not cumulate more than one relationship to a title. Instead he offers a detailed explanation of what the trial court decided and the bare (although vigorous and repeated) assertion that the court was wrong. In the absence of a clear showing that the trial court erred either as a matter of fact or as a matter of law, we will not disturb its finding.

In any case, we are in6lined to agree with the trial court. In choosing a matai the court should strive to decide as the family itself would decide in accordance with fa'a Samoa. Barring a case in which a candidate's parents were so closely related as to suggest an impropriety, it seems quite likely that a candidate descended from two different clans of the family would be more likely to prevail than if he were descended from only one clan. We reserve any. dispositive judgment on this question, however, for a case in which the issue is properly developed through expert testimony at trial or through reasoned and supported argument about the applicable customs.[4ASR2d9]

The next issue for our determination is the appellant's contention that the procedural rules for the composition and deliberations of the Land & Titles Division were violated when the Justice of the High Court, who was the Chief Justice in this particular case, withdrew from the deliberations of the four Associate Judges, limiting his participation to presiding at the trial and preparing and signing the opinion. We find no error in the court's having chosen this manner to' conduct its deliberations. The statute itself, by allowing the Justice of the High Court to have a determining vote only if there is a division among the four Associate Judges, is directed toward producing a consensus on their part. A.S.C.A. § 3.0240. If the permanent Justice of the court deems it appropriate to withdraw from the deliberations at some point to effect that result, we find no impropriety, provided he has presided over the trial and participates in the written final judgment of the court.

Finally, the appellant argues that the Land & Titles Division was clearly erroneous in finding that neither candidate prevailed in demonstrating support of a majority or a pluralityof the clans of the family. This is a matter on which the evidence both as to the number of clans and their respective Support for the candidates was controverted, and we find no basis on this record to set aside the lower court's determination.

We hold also that the lower court was not clearly erroneous in finding that the prevailing candidate had "preference on the issue of value to the family, village, and country. We agree with the appellant that his background and accomplishments are exceptional, but note that the appellee, too, has demonstrated fidelity and loyalty to the community and a constancy that qualifies him to the award of title under the criterion of his value to the family, village, and country. The High Court noted the following in its decision:

We hasten to point out that seldom in our experience have 
we been presented with such a slate of outstanding candidates 
for a title each of whom is a credit to the family, to the village 
and to the territory. This was not an easy decision and the 
family is fortunate to have such men offering their services 
as matais. [4ASR2d10]

We concur in that observation, and note that the appellant has made a strong showing on appeal based on his excellent educational background, his employment accomplishments, his church affiliations, his civic activities, and his income capacity. Nevertheless, we find that the Land & Titles Division was not clearly erroneous in making the decision as it did. Its judgment is AFFIRMED.

Murphy, J. , concurring:

I concur that the judgment of the Trial Court be affirmed. I continue to question the usefulness of an Appellate procedure in matai cases. See AP No. 20-85 Aoelua v. Taaoa'i (March 20, 1986) (Murphy concurring); AP No. 7-86 Registration of Le'iato (December 22, 1986) (Murphy dissenting)

In this case Appellant has made an effort to raise issues of law which the majority opinion discusses. In reality they are not legal issues. Whether a family traces hereditary rights directly to the original title holder or to the last living holder of the title is not, for example, a legal issue. It is a matter of custom and tradition and should not be treated otherwise by either the judicial or legislative branch of the government.

**********

* Honorable Anthony M. Kennedy, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

Kaho v. Workmen's Comp. Comm’n,


MONTE KAHO, aka MONTY KAHO, Plaintiff

v.

RON PRITCHARD GROUND SERVICES, INC., PRITCHARD 
AIRPORT SERVICES, INC., PRITCHARD TRAVEL SERVICE, 
all American Samoa corporations, and CONTINENTAL 
AIRLINES, INC., a Nevada corporation, Defendants

MONTE KAHO aka MONTE-KAHO, Appellant-Claimant

v.

WORKMEN'S COMPENSATION COMMISSION, AMERICAN SAMOA 
GOVERNMENT, VAIMASINA CATERING, and 
AMERICAN INTERNATIONAL UNDERWRITER 
(SOUTH PACIFIC), LTD., Appellees

High Court of American Samoa 
Trial Division

CA. No. 62-81 
CA. No. 68-86

March 13, 1987

__________

Automatic stay of suits against bankruptcy petitioner does not operate to stay proceedings against solvent co-defendants. 11 U.S.C. § 362.

Trial Court had discretion to dismiss action four years after it had been filed, eighteen months after court had given notice that the case would be dismissed unless good cause to the contrary should be shown, and one year after the date that counsel estimated he would' move for trial, when no such motion had been made.

Constitutional right to due process of law is not denied when a court which has repeatedly accommodated counsel's unusual requests and overlooked procedural irregularities finally ceases to do so and dismisses the action.

Before REES, Chief Justice.

Counsel: For the Plaintiff, Fred Rohlfing 
For Defendant A.S.G. et al., Martin Yerick, Assistant Attorney General 
For Defendant A.I.U., Roy J.D. Hall, Jr. 
For Defendants Pritchard et al., Michael Kruse [4ASR2d41]

Opinion and Order on Various Motions:

I. MOTION FOR FURTHER CONTINUANCE

At the outset we address the plaintiff's motion for a further continuance of the hearing on his "Motion for Reconsideration of Order Denying Plaintiff's Second Motion to Set Aside Dismissal" in #62-81 and his motion for reconsideration in #68-86.

The informal motion to continue was contained in a handwritten note dated March 4, 1987, and received by the Clerk of Courts on March 10, the day before the scheduled hearing. The note was sent from Hawaii by plaintiff's counsel. It did not comply with the rules pertaining to the form of motions, contained no affidavit of service upon opposing counsel and had not in fact been received by opposing counsel as of the time of the scheduled hearing. It alluded to a pending settlement of the case. Obviously, a defendant in whose favor judgment has been rendered remains free to pay money to the plaintiff if he so desires. Under the circumstances, however, an allegation that this is about to happen is an insufficient basis for yet another continuance.

The appeal would have been timely but for the fact that Mr. Rohlfing, who had been a member of the American Samoa Bar Association, was no longer a member in good standing, having failed to pay his dues for 1984, 1985, and 1986. The papers were also not accompanied by the required filing fee. The Clerk of Courts, on the instructions of the then-Chief Justice, returned the papers to counsel in Hawaii. He immediately (March 25) responded by paying the three years' dues, but inexplicably did not also re-file the appeal. Instead counsel states that he consulted with various local lawyers for several months before re-filing the appeal on June 6, 1986. Even on the most liberal possible [4ASR2d42]

II. THE WORKMEN'S COMPENSATION CASE

On August 2, 1985, the Workmen's Compensation Commission made the award of which the appellant complains. A series of efforts to secure a reconsideration of the award culminated on February 24. 1986, in a final denial of a rehearing by the Commission. Counsel for the plaintiff, Mr. Fred Rohlfing of Hawaii, filed an appeal from the award in the High Court on or about March 15, 1986.

The appeal would have been timely but for the fact that Mr. Rohlfing, who had been a member of the American Samoa Bar Association, was no longer a member in good standing, having failed to pay his dues for 1984, 1985, 1986. The papers were also not accompanied by the required filing fee. The Clerk of Courts, on the instructions of the then-Chief Justice, returned the papers to counsel in Hawaii. He immediately (March 25) responded by paying the three years' dues, but inexplicably did not also refile the appeal. Instead counsel states that he consulted with various local lawyers for several months before re-filing the appeal on June 6, 1986. Even on the most liberal possible [4ASR2d43] interpretation of the statutory 30-day period for filing of appeals from Workmen's Compensation Commission awards, counsel should have filed by April 24 (30 days after he received notice that his initial attempt to appeal had been unsuccessful). As of March 25, 1986, plaintiff's counsel was a member in good standing of the American Samoa Bar and was perfectly capable of filing the very papers he had once already attempted to file. Instead he waited well over two additional months. The court was therefore correct in refusing to order the certification and transmission of a record on appeal, and in denying counsel's various attempts to secure a reconsideration of the initial refusal.

III. THE CIVIL ACTION

On October 21, 1981, the plaintiff effected service against the present defendants in a civil action arising out of the same accident that was the basis of the Workmen's Compensation Commission award. We note that the civil action was almost certainly barred by the two-year statute of limitations, since the accident had happened on or about October 2, 1919, and there is no suggestion in any of the pleadings of special circumstances that would have caused the action not to accrue until later. The statute of limitations was pleaded as an affirmative defense, but the court never had to rule on it because the case was dismissed instead for failure on the part of plaintiff's counsel to prosecute it.

The order of dismissal was rendered on December 11, 1985, pursuant to an order of June 21, 1984, that the case would be dismissed unless good cause to the contrary should be shown by July 20, 1984. Plaintiff's local counsel in American Samoa had responded with an affidavit to the effect. that "the matter should go to trial, all things being considered, in October or November of 1984." When counsel did not in fact move to set the case for trial during those months or submit any explanation whatever during the eighteen months between June 1984 and December 1985, the court dismissed the case.

Upon receiving notice of the dismissal, Mr. Rohlfing moved for a reconsideration. The basis for this motion was that Mr. Rohlfing had not been personally informed of the June 21order. Mr. Rohlfing had, however, joined local counsel who had appeared on a number of occasions on behalf of Mr. [4ASR2d43] Kaho. Notice to local counsel was therefore entirely appropriate.

As is his wont, Mr. Rohlfing also sent personal letters to the Clerk of Courts and to the trial judge. In the letter to the Clerk he apprised the Court for the first time of his contention that the case had been automatically stayed during 1984 and 1985 on account of the bankruptcy of Continental Airlines, a co-defendant along with the present defendants. (Plaintiff voluntarily dismissed the case against Continental after a settlement was reached.)

Mr. Rohlfing submitted no authority, however, for the proposition that the automatic stay of suits against parties in bankruptcy proceedings provided by 11 U.S.C. 362 also operates to stay proceedings against solvent co-defendants. The United States Courts of Appeal that have considered the question are uniformly of the opinion that it does not. See Fortier v. Dona Anna Plaza Partners, 747 F.2d 1324 (l0th Cir. 1984); Williford v. Armstrong World Indus., Inc., 715 F.2d 124 (4th Cir. 1983); Wedgeworth v. Fibreboard Corp., 706 F.2d 541 (5th Cir. 1983); Austin v. Unarco Ind , 706 F.2d 1 (1st Cir. 1983); Pitts v. Uarco Indus., Inc., 698 F.2d 313 (7th Cir. 1983); Lynch v. Johns-Manville Sales Corp., 710 F.2d 1194 (6th Cir. 1983). At any time between 1981 and 1985, therefore, Mr. Rohlfing was free to press his client's suit against the present defendants. The court was well within its discretion in dismissing the action for his failure to do so. See Link v. Wabash Ry. Co., 370 U.S. 628 (1962).

In his letter to the trial judge, Mr. Rohlfing stated that his co-counsel in American Samoa had been "principal counsel when the failure to respond to your notice of potential dismissal occurred" but was "no longer a co-counsel for the Plaintiff in this matter." He requested that the hearing on his motion for reconsideration, scheduled for February 18, 1986, "be handled by conference telephone call." Mr. Rohlfing did not explain why, if local counsel and not Mr. Rohlfing had been the client's "principal counsel," the Court should give legal effect to a dismissal of the principal counsel signed by another counsel but not by the client. (Subsequent to the February 18 hearing, a dismissal of local counsel signed by the client on March 4 was filed with the Court.) Nevertheless, the court attempted to accommodate Mr. Rohlfing: the trial judge's notes, which he inserted in the case file,[4ASR2d44] reflect that he called Mr. Rohlfing's office on February 13 and was told that Mr. Rohlfing was out of town until February 18. The judge asked Mr. Rohlfing to call back, but Mr. Rohlfing did not call on the 18th. The motion to reconsider was therefore heard on the basis of Mr. Rohlfing's written submissions and the arguments of local counsel. The motion was taken under advisement, however, pending the expected call from Mr. Rohlfing. (1)

Mr. Rohlfing subsequently communicated with the Clerk, apparently by telephone, in or around June of 1986. The Clerk told him the case had been taken under advisement. In October 1986 Mr. Rohlfing wrote another letter to the trial judge. On November 10, 1986, he filed a second motion to set aside the order of dismissal, alleging no grounds other than those already discussed. The motion was denied after a hearing on December 23. (Mr. Rohlfing asserts that he waited for the court to call him on December 23 and then attempted to call the court several times during the day. The record reflects that the judge and the other attorneys were in court for the December 23 hearing, and the present writer has been assured by court personnel that all High Court telephones were being answered at all times between 7:30 a.m. and 4:00 p.m. Although Mr. Rohlfing has asserted that he has been "victim of polynesian communications" during the course of this case, he was always free to circumvent such problems by appearing personally in court on behalf of his client, as is the general custom in American Samoa and elsewhere. In any case, his motion was so clearly without merit that oral argument could not have made a difference.) [4ASR2d45]

The Motion for Reconsideration of Order Denying Plaintiff's Second Motion to Set Aside Dismissal is denied.

CONCLUSION

Mr. Rohlfing's memoranda contain the suggestion that if the High Court does not reopen these cases his client's constitutional right to due process of law will have been denied. On the contrary, the court seems to have afforded over the years a good deal more process than was due. Although it is always advisable in any jurisdiction for a lawyer operating from another place to join local co-counsel, this court has tried to accommodate those off-island lawyers who choose not to do so. Such arrangements can work, but only if the off-island lawyer is willing to exert somewhat more than the usual diligence. In this case the client's procedural problems arose from the lawyer's unusually casual attitude toward the case.

The motions are denied.

**********

1. The transcript of the February 18, 1986, hearing reflects the judge's decision that "I'll take the thing under advisement because Rohlfing has written. We'll listen to what he has to say on the telephone and decide it." Mr. Rohlfing's letter of October 18, 1986, however, indicates that his office did give him the message that Judge Murphy had called, "but not until subsequent to the hearing date of February 18th. Accordingly, I had assumed that in due course I would receive a written order/decision on the motion." This dogged determination to regard the ball as in someone else's court is the hallmark of Mr. Rohlfing's conduct of these cases.

Kaho v. Ron Pritchard Ground Services, Inc., 4


MONTE KAHO, aka MONTY KAHO, Plaintiff

v.

RON PRITCHARD GROUND SERVICES, INC., PRITCHARD 
AIRPORT SERVICES, INC., PRITCHARD TRAVEL SERVICE, 
all American Samoa corporations, and CONTINENTAL 
AIRLINES, INC., a Nevada corporation, Defendants

MONTE KAHO aka MONTE-KAHO, Appellant-Claimant

v.

WORKMEN'S COMPENSATION COMMISSION, AMERICAN SAMOA 
GOVERNMENT, VAIMASINA CATERING, and 
AMERICAN INTERNATIONAL UNDERWRITER 
(SOUTH PACIFIC), LTD., Appellees

High Court of American Samoa 
Trial Division

CA. No. 62-81 
CA. No. 68-86

March 13, 1987

__________

Automatic stay of suits against bankruptcy petitioner does not operate to stay proceedings against solvent co-defendants. 11 U.S.C. § 362.

Trial Court had discretion to dismiss action four years after it had been filed, eighteen months after court had given notice that the case would be dismissed unless good cause to the contrary should be shown, and one year after the date that counsel estimated he would' move for trial, when no such motion had been made.

Constitutional right to due process of law is not denied when a court which has repeatedly accommodated counsel's unusual requests and overlooked procedural irregularities finally ceases to do so and dismisses the action.

Before REES, Chief Justice.

Counsel: For the Plaintiff, Fred Rohlfing 
For Defendant A.S.G. et al., Martin Yerick, Assistant Attorney General 
For Defendant A.I.U., Roy J.D. Hall, Jr. 
For Defendants Pritchard et al., Michael Kruse [4ASR2d41]

Opinion and Order on Various Motions:

I. MOTION FOR FURTHER CONTINUANCE

At the outset we address the plaintiff's motion for a further continuance of the hearing on his "Motion for Reconsideration of Order Denying Plaintiff's Second Motion to Set Aside Dismissal" in #62-81 and his motion for reconsideration in #68-86.

The informal motion to continue was contained in a handwritten note dated March 4, 1987, and received by the Clerk of Courts on March 10, the day before the scheduled hearing. The note was sent from Hawaii by plaintiff's counsel. It did not comply with the rules pertaining to the form of motions, contained no affidavit of service upon opposing counsel and had not in fact been received by opposing counsel as of the time of the scheduled hearing. It alluded to a pending settlement of the case. Obviously, a defendant in whose favor judgment has been rendered remains free to pay money to the plaintiff if he so desires. Under the circumstances, however, an allegation that this is about to happen is an insufficient basis for yet another continuance.

The appeal would have been timely but for the fact that Mr. Rohlfing, who had been a member of the American Samoa Bar Association, was no longer a member in good standing, having failed to pay his dues for 1984, 1985, and 1986. The papers were also not accompanied by the required filing fee. The Clerk of Courts, on the instructions of the then-Chief Justice, returned the papers to counsel in Hawaii. He immediately (March 25) responded by paying the three years' dues, but inexplicably did not also re-file the appeal. Instead counsel states that he consulted with various local lawyers for several months before re-filing the appeal on June 6, 1986. Even on the most liberal possible [4ASR2d42]

II. THE WORKMEN'S COMPENSATION CASE

On August 2, 1985, the Workmen's Compensation Commission made the award of which the appellant complains. A series of efforts to secure a reconsideration of the award culminated on February 24. 1986, in a final denial of a rehearing by the Commission. Counsel for the plaintiff, Mr. Fred Rohlfing of Hawaii, filed an appeal from the award in the High Court on or about March 15, 1986.

The appeal would have been timely but for the fact that Mr. Rohlfing, who had been a member of the American Samoa Bar Association, was no longer a member in good standing, having failed to pay his dues for 1984, 1985, 1986. The papers were also not accompanied by the required filing fee. The Clerk of Courts, on the instructions of the then-Chief Justice, returned the papers to counsel in Hawaii. He immediately (March 25) responded by paying the three years' dues, but inexplicably did not also refile the appeal. Instead counsel states that he consulted with various local lawyers for several months before re-filing the appeal on June 6, 1986. Even on the most liberal possible [4ASR2d43] interpretation of the statutory 30-day period for filing of appeals from Workmen's Compensation Commission awards, counsel should have filed by April 24 (30 days after he received notice that his initial attempt to appeal had been unsuccessful). As of March 25, 1986, plaintiff's counsel was a member in good standing of the American Samoa Bar and was perfectly capable of filing the very papers he had once already attempted to file. Instead he waited well over two additional months. The court was therefore correct in refusing to order the certification and transmission of a record on appeal, and in denying counsel's various attempts to secure a reconsideration of the initial refusal.

III. THE CIVIL ACTION

On October 21, 1981, the plaintiff effected service against the present defendants in a civil action arising out of the same accident that was the basis of the Workmen's Compensation Commission award. We note that the civil action was almost certainly barred by the two-year statute of limitations, since the accident had happened on or about October 2, 1919, and there is no suggestion in any of the pleadings of special circumstances that would have caused the action not to accrue until later. The statute of limitations was pleaded as an affirmative defense, but the court never had to rule on it because the case was dismissed instead for failure on the part of plaintiff's counsel to prosecute it.

The order of dismissal was rendered on December 11, 1985, pursuant to an order of June 21, 1984, that the case would be dismissed unless good cause to the contrary should be shown by July 20, 1984. Plaintiff's local counsel in American Samoa had responded with an affidavit to the effect. that "the matter should go to trial, all things being considered, in October or November of 1984." When counsel did not in fact move to set the case for trial during those months or submit any explanation whatever during the eighteen months between June 1984 and December 1985, the court dismissed the case.

Upon receiving notice of the dismissal, Mr. Rohlfing moved for a reconsideration. The basis for this motion was that Mr. Rohlfing had not been personally informed of the June 21order. Mr. Rohlfing had, however, joined local counsel who had appeared on a number of occasions on behalf of Mr. [4ASR2d43] Kaho. Notice to local counsel was therefore entirely appropriate.

As is his wont, Mr. Rohlfing also sent personal letters to the Clerk of Courts and to the trial judge. In the letter to the Clerk he apprised the Court for the first time of his contention that the case had been automatically stayed during 1984 and 1985 on account of the bankruptcy of Continental Airlines, a co-defendant along with the present defendants. (Plaintiff voluntarily dismissed the case against Continental after a settlement was reached.)

Mr. Rohlfing submitted no authority, however, for the proposition that the automatic stay of suits against parties in bankruptcy proceedings provided by 11 U.S.C. 362 also operates to stay proceedings against solvent co-defendants. The United States Courts of Appeal that have considered the question are uniformly of the opinion that it does not. See Fortier v. Dona Anna Plaza Partners, 747 F.2d 1324 (l0th Cir. 1984); Williford v. Armstrong World Indus., Inc., 715 F.2d 124 (4th Cir. 1983); Wedgeworth v. Fibreboard Corp., 706 F.2d 541 (5th Cir. 1983); Austin v. Unarco Ind , 706 F.2d 1 (1st Cir. 1983); Pitts v. Uarco Indus., Inc., 698 F.2d 313 (7th Cir. 1983); Lynch v. Johns-Manville Sales Corp., 710 F.2d 1194 (6th Cir. 1983). At any time between 1981 and 1985, therefore, Mr. Rohlfing was free to press his client's suit against the present defendants. The court was well within its discretion in dismissing the action for his failure to do so. See Link v. Wabash Ry. Co., 370 U.S. 628 (1962).

In his letter to the trial judge, Mr. Rohlfing stated that his co-counsel in American Samoa had been "principal counsel when the failure to respond to your notice of potential dismissal occurred" but was "no longer a co-counsel for the Plaintiff in this matter." He requested that the hearing on his motion for reconsideration, scheduled for February 18, 1986, "be handled by conference telephone call." Mr. Rohlfing did not explain why, if local counsel and not Mr. Rohlfing had been the client's "principal counsel," the Court should give legal effect to a dismissal of the principal counsel signed by another counsel but not by the client. (Subsequent to the February 18 hearing, a dismissal of local counsel signed by the client on March 4 was filed with the Court.) Nevertheless, the court attempted to accommodate Mr. Rohlfing: the trial judge's notes, which he inserted in the case file,[4ASR2d44] reflect that he called Mr. Rohlfing's office on February 13 and was told that Mr. Rohlfing was out of town until February 18. The judge asked Mr. Rohlfing to call back, but Mr. Rohlfing did not call on the 18th. The motion to reconsider was therefore heard on the basis of Mr. Rohlfing's written submissions and the arguments of local counsel. The motion was taken under advisement, however, pending the expected call from Mr. Rohlfing. (1)

Mr. Rohlfing subsequently communicated with the Clerk, apparently by telephone, in or around June of 1986. The Clerk told him the case had been taken under advisement. In October 1986 Mr. Rohlfing wrote another letter to the trial judge. On November 10, 1986, he filed a second motion to set aside the order of dismissal, alleging no grounds other than those already discussed. The motion was denied after a hearing on December 23. (Mr. Rohlfing asserts that he waited for the court to call him on December 23 and then attempted to call the court several times during the day. The record reflects that the judge and the other attorneys were in court for the December 23 hearing, and the present writer has been assured by court personnel that all High Court telephones were being answered at all times between 7:30 a.m. and 4:00 p.m. Although Mr. Rohlfing has asserted that he has been "victim of polynesian communications" during the course of this case, he was always free to circumvent such problems by appearing personally in court on behalf of his client, as is the general custom in American Samoa and elsewhere. In any case, his motion was so clearly without merit that oral argument could not have made a difference.) [4ASR2d45]

The Motion for Reconsideration of Order Denying Plaintiff's Second Motion to Set Aside Dismissal is denied.

CONCLUSION

Mr. Rohlfing's memoranda contain the suggestion that if the High Court does not reopen these cases his client's constitutional right to due process of law will have been denied. On the contrary, the court seems to have afforded over the years a good deal more process than was due. Although it is always advisable in any jurisdiction for a lawyer operating from another place to join local co-counsel, this court has tried to accommodate those off-island lawyers who choose not to do so. Such arrangements can work, but only if the off-island lawyer is willing to exert somewhat more than the usual diligence. In this case the client's procedural problems arose from the lawyer's unusually casual attitude toward the case.

The motions are denied.

**********

1. The transcript of the February 18, 1986, hearing reflects the judge's decision that "I'll take the thing under advisement because Rohlfing has written. We'll listen to what he has to say on the telephone and decide it." Mr. Rohlfing's letter of October 18, 1986, however, indicates that his office did give him the message that Judge Murphy had called, "but not until subsequent to the hearing date of February 18th. Accordingly, I had assumed that in due course I would receive a written order/decision on the motion." This dogged determination to regard the ball as in someone else's court is the hallmark of Mr. Rohlfing's conduct of these cases.

In re Two Minor Children (Juv. Nos. 81-86, 82-86),


In re TWO MINOR CHILDREN

High Court of American Samoa
Trial Division

JUV No. 81-86
JUV No. 82-86

February 19, 1987

__________

Where child lives with natural parents as well as prospective adopting parents and the only apparent effect of a termination of parental rights would be to enable a prospective adopting parent to obtain higher Social Security benefits, the termination will be denied.

Before REES, Chief Justice, OLO, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Petitioners, Albert Mailo

The maternal grandparents of these two children brought an action for the termination of the parental rights of the natural mother and father. The mother and father are married but separated. The natural mother and her two children have resided with the petitioners since the separation.

Both natural parents have signed "consent and waiver" forms, and both testified that they were willing to have their rights terminated. The court has a duty, however, to make whatever judgment it deems in the best interest of the children. In this case the children have been residing continuously with their natural mother since birth and regard her as their mother. The natural mother is employed. The natural father visits the children from time to time. Neither parent is unfit, and neither has in fact abandoned the children.

The principal effect of a change in legal custody of the children would be to enable their grandfather, who recently became eligible for Social Security benefits, to apply for higher benefits on account of additional dependents. This in itself would not be contrary to the interest of the children. In return, however, the children [4ASR2d22] would be divested of any right to future support from their natural parents. This cost is too high.

The petitions are denied.

**********

In re Matai Title “La'apui”,


VA'ALELE ALE, Appellant

v.

LEFANO FALEALILI, Appellee

[In the matter of the Matai Title "LA' APUI"
in the Village of Fitiuta]

High Court of American Samoa
Appellate Division

AP. No. 6-86

January 22, 1987

__________

In the absence of evidence of contrary Samoan custom, appellate court would not reverse trial court judgment that candidate for matai title could cumulate two separate claims to ancestry from original titleholder in determining the degree of his blood relationship to titleholder.

Statute prescribing participation in matai title dispute of one law-trained judge, as well as four associate judges who are not lawyers but who are chosen for their familiarity with Samoan custom, did not require that the law-trained judge be present during all deliberations of the associate judges. A.S.C.A. § 3.0240.

Before REES, Chief Justice, MURPHY, Associate Justice, KENNEDY*, Acting Associate Justice, TAGO, Associate Judge, and A'AU, Associate Judge.

Counsel: For the Appellant, Aviata Fa'alevao
For the Appellee, Malaetasi Togafau

PER CURIAM:

This is an appeal from a judgment of the Land & Titles Division of the High Court, which awarded the Matai title .'La'apui'. of the Village of Fitiuta. Title was awarded to the claimant Lefano Falealili, and a competing claimant, Va'alele Ale, now takes this appeal.

The appellant's first contention is that the trial court erred in finding that appellee has a 1/16 hereditary right to the title. The basis for this holding is that appellee is descended from the first titleholder through his mother and also [4ASR2d8] through his father. Since his relationship to the first titleholder on each side is that of a great- great-great-grandson (1/32), the trial court accepted his claim that his blood relation to the title was 1/16. This was the same relation claimed by the appellee, whose 1/16 relationship was based on his claim to be a great-great-grandson of the original titleholder. (Appellee, however, traced his ancestry to a different "original titleholder" than the one identified by appellant and some of the other candidates.) Appellee argues that it is contrary to Samoan custom for a person who is related to a title on both sides of his family to claim a greater hereditary right than if he were related on only one side.

This is apparently a case of first impression. The issue seems to be another unplanned consequence of the trial court's decision In Re Matai Title Sotoa, No. 5-82, holding that hereditary right may be traced only to the original titleholder. Since appellant does not contest that holding, but rather relies upon it and praises it, we do not have occasion to reconsider it in this case. Appellant does not, however, offer any authority ---either in the form of evidence of family tradition or Samoan custom adduced at trial, or of argument based on customs and traditions of which the court might take judicial notice for his position that a candidate may not cumulate more than one relationship to a title. Instead he offers a detailed explanation of what the trial court decided and the bare (although vigorous and repeated) assertion that the court was wrong. In the absence of a clear showing that the trial court erred either as a matter of fact or as a matter of law, we will not disturb its finding.

In any case, we are in6lined to agree with the trial court. In choosing a matai the court should strive to decide as the family itself would decide in accordance with fa'a Samoa. Barring a case in which a candidate's parents were so closely related as to suggest an impropriety, it seems quite likely that a candidate descended from two different clans of the family would be more likely to prevail than if he were descended from only one clan. We reserve any. dispositive judgment on this question, however, for a case in which the issue is properly developed through expert testimony at trial or through reasoned and supported argument about the applicable customs.[4ASR2d9]

The next issue for our determination is the appellant's contention that the procedural rules for the composition and deliberations of the Land & Titles Division were violated when the Justice of the High Court, who was the Chief Justice in this particular case, withdrew from the deliberations of the four Associate Judges, limiting his participation to presiding at the trial and preparing and signing the opinion. We find no error in the court's having chosen this manner to' conduct its deliberations. The statute itself, by allowing the Justice of the High Court to have a determining vote only if there is a division among the four Associate Judges, is directed toward producing a consensus on their part. A.S.C.A. § 3.0240. If the permanent Justice of the court deems it appropriate to withdraw from the deliberations at some point to effect that result, we find no impropriety, provided he has presided over the trial and participates in the written final judgment of the court.

Finally, the appellant argues that the Land & Titles Division was clearly erroneous in finding that neither candidate prevailed in demonstrating support of a majority or a pluralityof the clans of the family. This is a matter on which the evidence both as to the number of clans and their respective Support for the candidates was controverted, and we find no basis on this record to set aside the lower court's determination.

We hold also that the lower court was not clearly erroneous in finding that the prevailing candidate had "preference on the issue of value to the family, village, and country. We agree with the appellant that his background and accomplishments are exceptional, but note that the appellee, too, has demonstrated fidelity and loyalty to the community and a constancy that qualifies him to the award of title under the criterion of his value to the family, village, and country. The High Court noted the following in its decision:

We hasten to point out that seldom in our experience have
we been presented with such a slate of outstanding candidates
for a title each of whom is a credit to the family, to the village
and to the territory. This was not an easy decision and the
family is fortunate to have such men offering their services
as matais. [4ASR2d10]

We concur in that observation, and note that the appellant has made a strong showing on appeal based on his excellent educational background, his employment accomplishments, his church affiliations, his civic activities, and his income capacity. Nevertheless, we find that the Land & Titles Division was not clearly erroneous in making the decision as it did. Its judgment is AFFIRMED.

Murphy, J. , concurring:

I concur that the judgment of the Trial Court be affirmed. I continue to question the usefulness of an Appellate procedure in matai cases. See AP No. 20-85 Aoelua v. Taaoa'i (March 20, 1986) (Murphy concurring); AP No. 7-86 Registration of Le'iato (December 22, 1986) (Murphy dissenting)

In this case Appellant has made an effort to raise issues of law which the majority opinion discusses. In reality they are not legal issues. Whether a family traces hereditary rights directly to the original title holder or to the last living holder of the title is not, for example, a legal issue. It is a matter of custom and tradition and should not be treated otherwise by either the judicial or legislative branch of the government.

**********

* Honorable Anthony M. Kennedy, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

In re Matai Title “Fano”,


PULELEITE F.M. TUFELE, Plaintiff

v.

FA'AGAI S. FANO, EDDIE C. LISI, 
FA'ATILIGA TAPUVAE, and AVIATA F. 
FA'ALEVAO, Defendants

[In the Matter of the Matai Title "FANO"]

High Court of American Samoa 
Land and Titles Division

MT No. 4-86

May 21, 1987

__________

Where there was insufficient evidence to resolve dispute among candidates for matai title about the identity of the original titleholder, and where recent trial court opinion announcing a rule that ancestry of matai title candidates should be traced to the original titleholder had been criticized in subsequent opinions of appellate court, the trial court in a later case would attempt to calculate each candidate's ancestry both to the nearest titleholder and to the titleholder who was the nearest common ancestor of the candidates.

Before REES, Chief Justice, TAUANU'U, Chief Associate Judge, LUALEMAGA, Associate Judge, AFUOLA, Associate Judge, and TUIAFONO, Associate Judge.

Counsel: For Plaintiff, Sala Semiu 
For Defendant Fa'agai, Lutu T. Fuimaono 
For Defendant Fa'atiliga, Albert Mailo 
For Defendant Fa'alevao, Tuiasosopo Mariota 
Eddie C. Lisi pro se

Five parties claim the right to hold the title "Fano" of Faga'alu. The findings of the Court with regard to the four statutory criteria are as follows:

I. Best Hereditary Right [4ASR2d149]

The issue of ho has the best hereditary right to a title has always been fraught with uncertainties, and the decision of the Court in In re Matai Title "Sotoa", 2 A.S.R.2d 15 (1984) injected even more uncertainty into the inquiry. Prior to that decision, the Court for many years had allowed each candidate to claim his closest relationship to any holder of the title: the child of a titleholder would have a 50% or 1/2 relationship, the grandchild of a titleholder 25% or 1/4, and so on. In the Sotoa case the parties had stipulated that the blood relationship of each candidate should be figured not to the nearest titleholder but to the original titleholder. Rather than simply accept the parties' stipulation for the purposes of that case, the Court announced a rule purporting to apply to all cases. Since then, however, the Appellate Division has suggested that the Sotoa rule has caused unexpected problems particularly the difficulty of reaching agreement on who the original titleholder was--- and that it might be better for the Court to revert to the earlier rule, to adopt some other rule, or to allow for the possibility that different families may have different traditions with regard to who has the best hereditary right. In re Matai Title "Le'iato", AP No.7-86 (Dec. 22, 1986); In re Matai Title "Laapui", AP No.6-86 (January 22, 1987). Accordingly, we will rank the candidates both according to the Sotoa rule ---or, more precisely, a variation of the Sotoa rule that has been used by the parties in this case and others in which there was disagreement about who the first titleholder was and according to the prior rule.

Four of the parties trace their blood relationship to Fano Fealofani. Although all parties but Puleleite agree that there were other titleholders before Faleofani, he was the common ancestor to whom these four candidates agreed their "original" blood relationship should be calculated, and whose four children gave their names to the four most widely acknowledged clans of the family. In relation to Fano Faleofani, candidates Aviata and Fa'agai have 1/16 relationship and candidates Puleleite a 1/32 relationship.

The genealogy submitted by candidate Fa'atiliga differed markedly from those of the other four. He did not acknowledge that Fealofani ever held the title, suggesting instead that there are only two clans tracing their ancestry to the two children of Fano Leo'o. Some other candidates [4ASR2d150] disputed Fa'atiliga's membership in the family, suggesting instead that the Fa'atiliga family is a separate family which has become closely connected over the years to Fano. It is undisputed that Fa'atiliga is an orator who has an important role in Fano family events and who sometimes serves as spokesman for the Fano family, but family traditions vary with respect" to whether such orators must be blood members of the family. Even the tradition within the Fa'atiliga family or clan itself seems uncertain: Fa'atiliga testified that legal documents required to be signed by the sa'o of his family are sometimes signed by Fano and sometimes by Fa'atiliga. Assuming, however, that Fa'atiliga is a member of the Fano family and that his blood relationship should be traced to Leo'o, it is 1/32.

Accordingly, under the Sotoa formula (or the nearest equivalent to it that can be applied in this case) candidates Aviata and Fa'agai prevail.

Under the pre-Sotoa formula Fa'agai clearly prevails. His father was Fano Sailiata, which gives him a 50% relationship to the title. Under this formula candidate Ova (Eddie Lisi) has a 1/8 relationship (to Fano Tuiaimo'o), Aviata and Puleleite each have a 1/16 relationship (to Fano F'aleofani and Fano Misipaga respectively). Fa'atiliga has a 1/8 relationship to Fano Ese'ese assuming that there was a Fano Ese'ese, a proposition to which only one other candidate agrees.

II. Support of the Clans

Support of the clans is also difficult to calculate. Based on the number of signatures on each petition, the testimony at trial about the meetings that took place within the family, and the candidates' reactions to questions by opposing counsel about their own feelings regarding the other candidates, we find that Fa'agai ranks first, commanding the overwhelming support of the Fa'agai clan and widespread support within other clans; Aviata is second with the clear support of the Tautai clan and substantial support in other clans; Fa'atiliga is third with the support of his own clan (assuming that it is in fact a clan of the Fano family) and some support in other families. Puleleite and Eddie Ova Lisi did not show substantial support. [4ASR2d151]

III. Forcefulness, Character, and Knowledge of Samoan Custom

On the third criterion the leading candidates are also Fa'atiliga, Aviata, and Fa'agai. Fa'atiliga is a brave and virtuous man with a long history of dedication and service to the village, the Territory, and the United States, but his knowledge of Samoan custom was not as strong as that of some other candidates. Aviata has also demonstrated his strength and leadership ability through his distinguished service to the government as well as to the family, and he ranks second to Fa'agai in this area. We rank Fa'agai first: his long service as a matai within the family and as its spokesman on many important occasions has made him intimately familiar with Samoan custom, his unblemished record during thirty years of loyal service to the government speaks for his character, and sixty-five years of devoted service to the familyare the strongest possible evidence of his readiness to lead the family.

IV. Value to the Family and the Community

While we believe each of the candidates has shown his value to the community and the family, Aviata and Fa'agai are the clear leaders on this issue. Aviata is a leading attorney and a former Attorney General of American Samoa, and has been active in family and community affairs. The value of Fa'agai to the family and the community is, somewhat different than that of Aviata, but it is no less important. Although there is no question that the Fano family would benefit from the leadership of a man of Aviata's stature, we feel that it will benefit even more from the guidance of Fa'agai, who has demonstrated his productivity and his wisdom wihout ever leaving the bosom of the family. The difference in the ages of the two men is also important: Aviata is forty-one, while Fa'agai has acquired the knowledge and experience of sixty-five years but remains as alert and vigorous as a forty-one year old.

Conclusion

Fa'agai prevails on the second, third, and fourth issues, and either prevails or is tied with Aviata on the first issue. Accordingly, we hold that Fa'agai has the right to hold the title Fano.

**********

Fesagaiga; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT

v.

TAULAFOGA FESAGAIGA aka SAITO

High Court of American Samoa 
Trial Division

CR No. 60-86

February 23, 1987

__________

Counsel should be appointed by the court without cost to a criminal defendant only when he is genuinely unable to pay for his own lawyer.

For the purpose of determining whether a criminal defendant is unable to pay for his own lawyer, the court should consider all funds available to the defendant from all sources, not just the income from his employment.

Before REES, Chief Justice.

Counsel: For the Government, Tauivi Tuinei, Assistant Attorney General 
For the Defendant, Aviata Fa'alevao

Opinion and Order on Post-Trial Motions:

Taulafoga Fesagaiga, also known as Saito, was charged with two counts of Assault in the Second Degree. At his initial appearance before the District Court he said he could afford his own lawyer. Later, however, he told the District Court Judge he was unable to afford a lawyer and wished the court to appoint one for him. After asking him a few questions about his income and assets, the District Judge appointed a lawyer.

After a jury trial in which Mr. Fesagaiga was acquitted, the court received two documents from his lawyer. One was a request for reimbursement of attorney's fees of up to $1,840. (The court has since determined that $1,500 is a more appropriate fee.) The other document was a motion to reimburse the defendant $2,000, the amount he had posted in [4ASR2d30] cash as a bail bond. Curious about how someone could be so poor that the taxpayers should pay his legal bills and yet be able to come up with $2000 in cash on short notice, the court ordered the defendant to show cause why his attorney's fee should not be paid out of the $2000 he had posted with the court.

At the hearing on the .order to show cause, Mr. Fesagaiga testified that he had obtained the $2000 from a man he referred to as "my Korean friend." Upon questioning by the court he revealed that this benefactor was his employer, who seems to be far more generous in posting bail bonds than in paying wages. Mr. Fesagaiga testified that he earns only about $100 per month, and that no other funds are available to him either to pay his attorney's fees or to support his family.

The court took the motion under advisement in order to review a transcript of what Mr. Fesagaiga had told the District Judge. (1) This testimony, although not apparently untrue, seems highly [4ASR2d31] misleading. Asked about his monthly expenses, Mr. Fesagaiga responded:

I am the sole supporter of my family and my father's matai title. I'm 
the only one working and the only one that earns an income that goes 
to the providing and caring for the need[s] of the family.

Mr. Fesagaiga's father is Mauga. There is no higher title and no more influential family in American Samoa. Perhaps the implication that the welfare of the Mauga title and the Mauga family depend solely on Mr. Fesagaiga's $100 per month was unintended. Even if he was referring only to his father's immediate family, however, this family should not have been used as an excuse to avoid payment of attorney's fees, but as a possible source of payment.

Mr. Fesagaiga testified that he lives with his father and is actively engaged in rendering service to him. Members of his family have been actively involved in the case from the beginning; the $2000, for instance, although it may well have been provided by his employer, was brought to court by Mr. Fesagaiga's sister. Indeed, an important element of his successful defense at trial was his claim that the incident in which he was charged began with an insult to the honor of his family. His employment at Korea House ---and the alacrity with which the manager of that institution came forward with $2000 in cash for bail ---say at least as much about the respect and the resources commanded by his family as they do about his own personal qualities, although these are undoubtedly many. And yet he asks to be treated, for the purpose of determining his poverty if for no other purpose, as though he were not his father's son.

In retrospect, it seems as though Mr. Fesagaiga should not have been declared indigent without a determination of whether his family's assets were sufficient to pay his attorney's fees. In the future, at least when a defendant resides with his parents, this will be the practice. Since no evidence was taken in the original appearance concerning any assets other than those held in Mr. Fesagaiga's own name, however, and since it appears that he truthfully answered the District Judge's questions about these assets, the District Judge's finding that he is indigent will not be reversed. Although it seems unfair for Mr. Fesagaiga to charge the taxpayers for his lawyer, it would also [4ASR2d32] be unfair for the court to apply a different rule now than was applied at the beginning of the case. The $2000 will be returned to him.

We leave it to Mr. Fesagaiga's conscience and to his family whether his attorney's fees will be paid by the taxpayers or by those who are, according to Samoan tradition, primarily responsible for his needs.

Mr. Fesagaiga may have been under an honest misunderstanding, which we should clear up: the provision for appointment of an attorney for indigent defendants is not a general entitlement of all citizens. Unlike a government pension plan, it has nothing to do with anything the recipient has earned. It is not designed to enable those of us who are wealthy or moderately well-off to avoid the inconvenience of paying a lawyer when we would rather have a vacation or a new car. Rather, it is reserved for those very poor people for whom it is impossible to pay. It is a kind of public welfare program.

Many American Samoans are justly proud of the fact that the people of the Territory have rejected the introduction of federal welfare programs here, on the ground that Samoan families take care of their own needy members. Partly for this reason, the total annual budget for court-appointed attorneys is only $15,000. This money does not come from Washington but must be provided from local government funds, and in the past it has been adequate. For one/tenth of it to be used in a single case, not by a defendant who would otherwise find himself alone and friendless but by a prominent member of one of the Territory's leading families, seems morally wrong even if it is legally permissible. If Mr. Fesagaiga wishes to bring this shame on "his family the court will not prevent him from doing so. But if he should prefer to pay whatever he can afford, taking into account all of the resources available to him. he is also free to take that course.

**********

1. It should be noted that in the five working days it has taken for the court reporter to produce a transcript of Mr. Fesagaiga's appearance and for the Chief Justice to review that transcript, to decide how to rule on Mr. Fesagaiga's motion, and to write this opinion, various court employees have received telephone calls from members of Mr. Fesagaiga's family concerning the case. It is a judge's sworn duty to decide each question on its merits and not to be prejudiced against litigants even when they behave improperly. It cannot be emphasized too strongly, however, that attempts to pressure or influence the court are far more likely to backfire than to succeed. (It is true that what feels like improper pressure to one person may feel more like healthy curiosity to another. It is because of the likelihood of such misunderstandings that courts have rules requiring all communication with the court on behalf of a litigant to be through the litigant's attorney, with notice to the opposing party.)

Dellumo v. Dellumo ;


JAMES DELLUMO, Petitioner

v.

OFEIRA DELLUMO, Respondent

High Court of American Samoa 
Trial Division

DR No. 73-84

March 20, 1987

__________

Court would allow assets of corporation to be garnished to satisfy judgment owed by ex-husband to ex-wife under divorce decree, where (1) business had been jointly owned and managed by husband and wife, (2) husband had formed a corporation in which he and another person owned all the shares and had secured wife's agreement to transfer the business to the corporation a few months before husband filed for divorce, (3) evidence suggested that corporation now owned assets formerly belonging to husband and wife, and (4) the amount garnished was less than the amount of payments long overdue on a property settlement which had been ordered by the court to compensate wife for her interest in the business now owned by the corporation.

Before REES, Chief Justice, AFUOLA, Associate Judge and TUIAFONO, Associate Judge.

Counsel: For Petitioner, John Ward 
For Respondent, Aviata Fa'alevao

Opinion and Order on Post-Trial Motions:

The parties were divorced on October 29, 1984. The court gave custody of the parties' six children to respondent, Ofeira Brown Dellumo. Petitioner, James Dellumo, was ordered to pay alimony of $100 per month and child support of $50 per month per child. In late 1985 the order was modified to give custody of two children, Cathy and Angel, to petitioner, and also to require petitioner to pay $5200 (13 payments of $400 per month) to respondent in liquidation of her share in the family business. Each party now alleges that the other has violated the order in several respects. Petitioner also asks that the court quash a garnishment secured by[4ASR2d49] respondent against the corporation that now owns the family business, and that the order be modified to discontinue the payment of alimony and to reduce the amount of child support.

I. CHILD SUPPORT ARREARAGES

The total amount of payments should have been $300 per month from November 1985 through March 1985, or $3900, plus $200 per month from December 1985 through March 1987, or $3200, for a total of $7100. Petitioner has submitted evidence that he paid $4180 to respondent for "alimony and child support"; we will credit this toward child support. We will also credit the $350 he paid to the Clerk of the High Court, as well as $200 reflecting a garnishment of his personal bank account and a cash payment during February. A $100 payment made by petitioner to his attorneys, which was to have been forwarded to respondent but was ultimately returned to the petitioner, will not be credited. Two payments of $25 each of invoices on Top Shop accounts will not be credited toward child support but will be discussed later. The total amount of arrearages on child support, therefore, is $7100-($4180 + $350 + $200) or $2370.

It is unclear how much of this money is owed to the respondent and how much is owed to the Department of Social Services of the state of Hawaii, which received an assignment of child support payments in return for making AFDC payments to some of the children while they were in Hawaii, and which mayor may not still be caring for the children. The Clerk of Courts has already forwarded $350 to the State of Hawaii pursuant to a Uniform Reciprocal Enforcement of Support claim. We therefore make the following order with respect to child support arrearages: Petitioner shall pay $200 per month to the Clerk of the High Court on or before April 15th, 1987, and continuing until the entire $2370 (plus interest on the unpaid balance at the rate of 1/2% per month from March 15, 1987) has been paid. The Clerk will ascertain what amounts are owed to the State of Hawaii (including the $1603 which petitioner has already been ordered to pay) and will apply petitioner's payments to retiring this debt. If, as seems quite possible, the total debt to the State of Hawaii exceeds $2370, the balance will be satisfied out of other funds owed by petitioner to respondent. (The Court will ensure, in other words, that petitioner is not required to pay the same debt twice.) If [4ASR2d50] the debt to Hawaii should be less than $2370, the balance will be paid by the Clerk to respondent.

Since all amounts paid by petitioner as "child support and alimony" have been credited to child support, the entire amount from the date of judgment to the present remains due. $100 per month from November 1984 until March 1987 amounts to $2900. Against this amount, however, petitioner claims credit for certain items of merchandise respondent received from the family business, the price of which she agreed to have deducted from her alimony payments. We have examined the records of such receipts proffered by the petitioner, and find that only $217.10 can be charged against the alimony payments in accordance with the agreement.

Respondent agreed that "shortages or losses on any invoices from the Top Shop or Fabric Arts Printing that I have signed for merchandise that I have recieved " (sic) could be deducted. Two of the documents submitted by petitioner are pages from loose leaf notebooks which do contain what appears to be respondent's signature as well as references to items of merchandise, but the pages contain no reference to any receipt, purchase, loss, shortage, or invoice; nor are the signature and the lists juxtaposed in such a way as to give an observer any confidence at all that the person whose name is on the page has received the items in question. Two of the documents submitted seem to be records of payments on an account (apparently the same two $25 payments claimed by petitioner in his list of alimony and child support payments), and also seem to have been signed not by the respondent but by the petitioner himself. Another invoice for $88.21 contains notations indicating that all but $13.00 was paid. (We give respondent credit for this amount plus the entire amount on invoices number 7432, 7435, 2478, and 2479, although the "Not Paid" entries on these invoices are written below the petitioner's signature and in another hand.) The alimony arrearages therefore total $2900-$217.10, or $2682.90.

We will allow petitioner to postpone payment of alimony arrearages until after the payment of all child support arrearages, provided that the $200 monthly payments are made on time. After the back child support has been paid (in about fourteen months) the alimony arrearages should be paid to the Clerk of the High Court in the amount of $200 [4ASR2d51] per month on or before the 15th of each month. This monthly payment will be made until the petitioner has paid $2682.90 plus interest on the unpaid balance at 1/2% per month. The Clerk will first remit to the State of Hawaii any amounts remaining on the back child support debt, and shall remit all further amounts to the respondent.

III. THE PROPERTY SETTLEMENT

The parties agree that the petitioner has paid $2400 of the $5200 property settlement, and that , $2800 remains to be paid. The payment schedule will be discussed below.

IV. THE GARNISHMENT OF THE CORPORATE BANK ACCOUNT

Petitioner has moved to quash a writ of garnishment directed at a bank account in the name of South Pacific Clothiers, Inc. This corporation was organized in mid-1984 (a few months before the petitioner sued the respondent for divorce) and ownership of the business which had formerly been owned and run jointly by petitioner and respondent was transferred to the corporation. This was the very business in respect to which the Court ordered petitioner to pay respondent $5200 in liquidation of her share, and whose difficulties petitioner has cited as evidence of his own inability to pay alimony and child support. Petitioner is the general manager of the corporation and owns 50% of the stock. He and his new wife each draw a salary of about $400 per month from the corporation, and apparently sometimes live in the building that houses some of its operations. This is the corporation on whose account petitioner claims an offset of $1473 (of which the court has awarded $217) from his alimony payments, although he submits evidence that he repaid the corporation only $50 from his personal accounts. There is, in other words, abundant evidence that both parties have treated the corporation as the mere alter ego of the petitioner, and that it would be grossly unfair to allow him to shelter assets and income behind the corporate veil while defaulting on thousands of dollars in child support, alimony, and a property settlement whose purpose was to compensate the respondent for the loss of her share in the very business now conducted by the corporation.

On the other hand, the petitioner testified that another person, apparently unconnected with[4ASR2d52] the present litigation, owns the other 50% of the stock in the corporation. Assuming that he acquired his interest at arm's length and without notice of the circumstances giving rise to the formation of the corporation, it would be unjust to allow the assets of the corporation to be liquidated to satisfy the personal debts of his co-proprietor. Assuming that petitioner's new co-owner was not extraordinarily foolish, however, petitioner must have brought something of value into the corporation, and that something belonged mostly to the respondent and to the six children of the marriage. Balancing the inequities, we conclude that the best solution is to refuse to quash the writ and to apply the amount obtained (about $1900) to the $2800 owed by the petitioner on the property settlement. No future seizure of corporate assets will be permitted, however, without a clear prior showing that petitioner is fraudulently sheltering assets or income.

We will allow petitioner to postpone payment of the remainder of the property settlement (about $900 plus interest on the unpaid balance at the rate of 1/2% per month) until after payment of the child support and alimony arrearages has been made. He will then pay $200 per month to the Clerk of the High Court, who will forward the money to the respondent.

V. FUTURE PAYMENTS

The order will be modified to suspend future alimony payments, although respondent retains the right to ask that alimony be reinstituted if circumstances warrant.

Petitioner shall continue to pay $50 per month for each of the four children not in his custody. Within three days of the receipt of this order, counsel for respondent shall file with the Clerk of the High Court an affidavit from his client stating the whereabouts of the three children and whether she is still receiving AFDC payments from Hawaii. If they are in Samoa being cared for by respondent and her family, all child support shall be paid to the respondent. If the children are in Hawaii being cared for by the Department of Social Services, payments on their account shall be made to the Department.

VI. CUSTODY AND VISITATION

Custody of the children will remain as it is, [4ASR2d53] although each party retains the right to call to the attention of the court any circumstances warranting a change in custody. Each party is enjoined from interfering in any way with the visitation rights of the other party.

CONCLUSION

On or before the 15th of April and of every month thereafter until further notice, the petitioner shall pay $400 to the Clerk of the High Court. $200 of this amount will pay his child support obligation for the current month to the respondent and/or the State of Hawaii. The other $200 will go to repay his arrearages, in the following order: (1) child support owed to the State of Hawaii; (2) child support owed to the respondent; (3) alimony; (4) property settlement. Wilful failure to make any such payment when due will be punishable as contempt of court.

Respondent shall immediately notify the court of the present whereabouts of the three children who were formerly being cared for in Hawaii.

The motion to quash the writ of garnishment is denied. The funds obtained pursuant to the writ will be delivered to the respondent.

**********

American Samoa Gov’t; Banks v.


BARBARA BANKS, Plaintiff

v.

AMERICAN SAMOA GOVERNMENT, Defendant

High Court of American Samoa 
Trial Division

CA No.129-85

May 7, 1987

__________

Administrative board, given statutory authority to advise agency and to perform such duties as governor assigns, had no authority to issue binding personnel decisions absent explicit grant, especially when Code sets forth hiring and termination procedures that do not involve board. A.S.C.A. §§ 7.0102, 7.0206, 7.0211.

Where evidence indicated that decision to terminate probationary employee was made by appropriate executive official with governor's approval rather than by advisory board, court would not question the decision. A.S.C.A. §§ 7.0102, 7.0206, 7.0211.

Judiciary must not substitute its own judgment for that of executive branch on what is in "the best interest of the government." A.S.C.A. § 7.0211.

A government employee with no contractual or statutory right to continued employment may be fired for any reason or even "for no reason whatever" without a denial of due process; only exception is that employee cannot be terminated for a reason that itself violates some constitutional right, such as free speech or equal protection of the laws. U.S. Const. amdt. 14.

Personnel board's recommendation not to employ plaintiff was not shown to have been motivated by constitutionally impermissible gender-based discrimination when it could have resulted from past experience applicable to employees of either sex and plaintiff failed to bring evidence suggesting otherwise. U.S. Const. amdt. 14.

Personnel board's recommendation not to employ plaintiff was not shown to have been based on [4ASR2d114] allegedly unconstitutional statutory Samoan hiring preference when evidence showed overwhelmingly that Board's recommendation was a response to undue manipulation of hiring process by plaintiff's husband.

In "unincorporated" territories the federal constitution applies only insofar as its tenets restate "those fundamental limitations in favor of personal rights" that are "the basis of all free government" or insofar as Congress expressly extends a particular constitutional provision to the territory.

Although the due process clause of the federal constitution, which implicitly forbids racial discrimination by the federal government, binds the territories in at least some of its applications, it does not necessarily bind the territories in the same ways and to the same extent as in the continental United States. U.S. Const. amdt. 14.

Federal constitution would not prohibit American Samoan hiring preference, which is reasonably calculated to alleviate the difficulties that attend a government composed largely of officials with no knowledge of the local language and culture and who generally remain in the territory only temporarily.

Federal constitutional requirement that "citizens of each state shall be entitled to all privileges and immunities of citizens in the several states" applies to states and not to' unincorporated and unorganized territories. U.S. Const. art. IV § 2.

Federal civil rights laws do not operate to extend into territories those applications of the federal constitution that would not apply in the territories under the doctrine of the Insular Cases. 42 U.S.C. § 1983.

Where government attorney advised government official against retaining separate counsel in grievance procedure, but did not claim to be representing the government official, and where there was no evidence that the official's failure to employ separate counsel deprived her of any remedy that would otherwise have been available to her, the attorney's conduct did not entitle the official to recover damages against the government. [4ASR2d115]

Counsel: For Plaintiff, William Reardon 
For Defendant, Donald Griesmann, Assistant Attorney General

Before REES, Chief Justice, LUALEMAGA, Associate Judge, and VAIVAO, Associate Judge.

In May 1985 the plaintiff was hired by the American Samoa Government. In October of the same year she was discharged. The circumstances of her hiring and firing illustrate all of the major difficulties the increasing dependence of an insular people on outside resources, the frequent misunderstanding and occasional hostility between Samoans and others who have come here to live, the vagueness of the political relationship with the United States, and the consequent uncertainty about the rules by which disputes are to be resolved--- that face American Samoa today.

I. Facts and Legal Background

Barbara Banks came to American Samoa in 1984 with her husband, who had been hired by the government (hereinafter ASG) to serve as Director of Vocational Rehabilitation for a two-year term. Mrs. Banks herself had been employed in the field of vocational rehabilitation for some years. About two months after her arrival in the Territory she began looking for a job.

Mrs. Banks was assisted in her search for employment by her husband. He approached Adele Fritz. soon after her appointment as Director of Manpower Resources (the territory's chief personnel officer) to discuss two things: (1) the forthcoming creation of the position of Executive Director of a vocational rehabilitation co-ordinating committee called the Developmental Disabilities Planning Council (hereinafter DDPC); and (2) his wife's unhappiness at not working in her chosen field of vocational rehabilitation.

Shortly thereafter the hiring process for the DDPC Executive Director began. An advertisement was placed in the Government Bulletin (a daily newspaper or newsletter then published by ASG) and a number of applications were received, including one from Mrs. Banks.

Three persons were certified by the Office of Manpower Resources (OMR) as qualified for the [4ASR2d116] position. Two of these people, Mrs. Banks and Penei Sewell, were interviewed by the three-member hiring committee of the DDPC. The third candidate, James Mailo, was not interviewed, apparently because his papers were inadvertently not forwarded to the committee. On April 11, 1985, the committee suggested to the full DDPC membership that both canclidates were well qualified and that one ought to be hired as executive director and the other as a consultant to the DDPC. It was generally understood that the committee had Mr. Sewell in mind as the executive director and Mrs. Banks as the consultant.

This recommendation was opposed by the DDPC chairman, who was none other than Mr. Banks. At the next meeting he informed the DDPC members of Mr. Mailo's application, and the committee was directed to interview Mr. Mailo. The committee did so. On May 7 the committee again recommended to the full DDPC that Mr. Sewell be hired. Mr. Banks's response was, "We can't have that." The stated ground for his opposition was that since the committee had not been aware of Mr. Mailo's application until it had been called to their attention, there might be yet other qualified applicants who had not been interviewed. He also suggested that the Territory might lose federal funds if the position were not advertised more widely This was an apparent reference to regulations designed to ensure that handicapped people were informed of available positions in the field of vocational rehabilitation. The DDPC voted to readvertise the position.

At the conclusion of the May 7 meeting Mr. Banks resigned the chairmanship, citing the press of other responsibilities. He did, however, write a letter the next day to the Office of Manpower Resources requesting on behalf of the DDPC that the position be readvertised. The position was readvertised, more people applied and were interviewed, and Mrs. Banks was hired. Mr. Sewell then brought a grievance before the Personnel Advisory Board (PAB), a committee appointed by the Governor to make recommendations in personnel disputes. His grievance charged that the initial process resulting in the recommendation of his own employment had been procedurally valid; that Mr . Banks, had manipulated the process to secure the employment of Mrs. Banks; and that he, Sewell, had been discriminated against because he was a Samoan and the majority of the DDPC members who [4ASR2d117] participated in th second hiring process were non-Samoans.

The PAB rejected Mr. Sewell's claim of racial discrimination, but did find that the initial procedure had been valid, that the decision to "thwart the initial hiring process was irresponsible" and "made a mockery of career service procedures," and that Mr. Banks's involvement was "highly suspect." The PAB further concluded that Mrs. Banks was more suited to serve as a consultant than as executive director because she "was unable to inform the Board whether she will.... leave her position in 18 to 20 months when her husband's employment ends." There was also a statement in the PAB opinion that the second hiring process had "served only to deny Mr. Sewell of his right as an American Samoan to be employed." The PAB, despite its status as an advisory committee, concluded by announcing a "decision" that Mr. Sewell "shall be employed" as DDPC executive director.

The Director of Manpower Resources, Mrs. Fritz, who had been the defendant in the grievance process, filed a motion for reconsideration of the PAB decision. The motion was filed by Assistant Attorney General Phyllis Coven, who had defended Mrs. Fritz at the original hearing. It charged that the decision was beyond the statutory and regulatory authority of the PAB. The PAB denied the motion. Mrs. Fritz subsequently discussed the matter with the Governor; she testified that her conclusion from this conversation was "that this was a Board that was there to assist me to do my job "and this was the decision they made and I should support them." She then hired Penei Sewell as Executive Director and terminated the employment of Mrs. Banks.

Mrs. Banks attempted to appeal the decision of the Personnel Advisory Board to the Appellate Division of the High Court. The Appellate Division has jurisdiction to hear an appeal of an administrative agency decision from any "person who has exhausted all administrative remedies within an agency and who is aggrieved by a final decision in a contested case." A.S.C.A. § 4.1040. A special session of the Appellate Division held, however, that Mrs. Banks was not a party to the PAB procedure and that she therefore had no standing to appeal the decision. Banks v. A.S.G., 2 A.S.R.2d [4ASR2d118] 88 (1985). She subsequently filed action in this the Trial Division of the High Court. (1)

The plaintiff alleges that her termination violated numerous statutes, regulations, and constitutional provisions. Her claims are of three varieties:

(1) ASG violated its own personnel statutes, thus denying plaintiff the due process of law;

(2) ASG discriminated against plaintiff because of her race, color, sex, and/or national origin; and

(3) the Office of the Attorney General of ASG violated plaintiff's rights by giving her the impression that her interests were being represented in the PAB hearing and that she need not retain her own attorney, and by subsequently defending the PAB in her appeal from its decision.

II. Due Process and Employment Procedures

The Court agrees with plaintiff's position, which was also the position of the Office of the Attorney General in its motion for reconsideration of the Personnel Advisory Board decision, that the PAB had no authority to order her termination or the employment of Mr. Sewell. Although A.S.C.A. § 7.0102, which establishes the PAB, provides that it shall perform such duties as are from time to time assigned to it by the Governor, there is no evidence that it was ever assigned the power to hire and fire. Indeed, any such assignment would seem to violate A.S.C.A. § 7.0206, which prescribes a hiring procedure in which the sole participants are the Director of Manpower Resources and the head of the department in which the vacancy exists, and A.S.C.A. § 7.0211, which prescribes the termination [4ASR2d119] procedure for ASG employees during the initial one-year probationary period.

The evidence clearly establishes, however, that the plaintiff was fired not by the PAB but by the Director of Manpower Resources, acting on what she regarded as the suggestion of the Governor. According to her testimony, she terminated the plaintiff's employment not because she shared the PAB's misunderstanding of the nature of its own powers, but because her own immediate superior, the Governor, was satisfied with the PAB's recommendation and believed it should be carried out. The plaintiff argues that this reason is insufficient to satisfy the statutory requirement for termination: that the probationary employee's retention is not "in the best interests of the government." A.S.C.A. § 7.0211. On the contrary, we believe that this language was designed to give the executive the broadest possible discretion in terminating probationary employees. The Personnel Advisory Board believed that it was in the best interest of the government to terminate Mrs. Banks not because she was incompetent but because of the process by which she had been hired. The Governor concurred, either because he agreed with the recommendation or because he thought it in the best interest of the government to uphold the judgment of his advisors on this matter. It is not the function of a court to substitute its judgment for that of the executive branch on what is in "the best interest of the government."

There was also substantial compliance with the procedural requirements of the probationary employee termination statute. The PAB, the agency charged by law with "investigating and deciding recommendations for dismissal," made such a recommendation and put it in writing. Although A.S.C.A. § 7.0211 requires that such recommendations be made by "department heads or other authorized operating officials," the decision of the PAB satisfied this requirement inasmuch as the plaintiff was herself the top-ranking senior employee of the DDPC and the members of the PAB were in fact the officials whose reasons plaintiff needed to know in order to pursue any remedies she might have. Section 7.0211 further requires that the director of manpower resources tell the employee in writing of the date of termination, the reasons for termination, and that he has no right to a hearing. This was done. [4ASR2d120]

The Due Process Clauses of the United States Constitution and of the American Samoa Constitution add nothing to the plaintiff's statutory rights. A government employee who has no contractual or statutory right to continued employment may be fired for any reason, or even "for no reason whatever," without a denial of due process. Mount Healthy City Board of Education v. Doyle, 429 U.S. 274, 283 (1976); see Board of Resents v. Roth, 408 U.S. 564 (1972). The only exception is that the employee cannot be fired for a reason that itself constitutes a violation of some constitutional right, such as free speech or equal protection of the laws. Mount Healthy City Board of Education v. Doyle, supra; Pickering: v. Board of Education, 391 U.S. 563 (1968). We turn, therefore, to plaintiff's claim that she was fired because of her race or sex.

III. Discrimination (2)

A) Sex Discrimination

There is no evidence that Mrs. Banks was discriminated against because of her sex. There was certainly no overt discrimination, and the only conceivable evidence of "sexual stereotyping" was the concern of the PAB that Mrs. Banks might leave the Territory at the conclusion of her husband's employment contract. This concern, however, was riot shown to have been based on generalizations about women. It could just as easily have been based on the Territory's experience with the spouses of off-island contract employees, both male [4ASR2d121]

and female, or on the fact that Mrs. Banks herself had recently left a job in her chosen field to move with her husband to American Samoa.

B) Racial Discrimination

Plaintiff's principal contention is that she was terminated because of her race. Much of the evidence adduced at trial had to do with the "American Samoan preference" in government employment. This preference is required by A.S.C.A. § 7.0205(b), which provides that

Any person entering the career service shall be a resident of American 
Samoa and either an American Samoan or an American national at the 
time he enters the service. If no resident can be found who meets the 
minimum qualifications for employment established for a particular class 
of work, nonresidents may be employed.

Plaintiff argues that this is a racial classification which denies the right to equal protection of the laws guaranteed to her by the United States Constitution and by the federal civil rights laws.

The record clearly shows, however, that the plaintiff was not fired because of her race. Her termination was recommended by the PAB because it believed that her husband had manipulated the hiring process to get her the job.

Moreover, the evidence is overwhelming that Mr. Banks actually did manipulate the process from beginning to end. In his first conversation about the job with Mrs. Fritz, he suggested that the DDPC be placed under the Office of Manpower Resources rather than within his own department; although this might be taken as evidence of an unusually magnanimous attitude with regard to bureaucratic turf, the context suggests that it was an effort to evade the territorial regulation that forbids the immediate supervision of one family member by another. See American Samoa Administrative Code (A.S.A.C.) § 4.0301(5). Mrs. Fritz testified that she felt substantial pressure from Mr. Banks to find a job for Mrs. Banks in the area of vocational rehabilitation. And it is quite clear that without the intervention of Mr. Banks, Penei Sewell would have been hired at the conclusion of the first interview process. Mr. Banks's repeated [4ASR2d122] interventions in the process, the timing of his resignation as DDPC chairman, and the evidence that he continued to be the dominant influence on the DDPC during the period in which Mrs. Banks was finally hired, all support the conclusion of the PAB that the hiring of Mrs. Banks "made a mockery of career service procedures." (3)

It is also clear that the "American Samoan preference" was never applied against the plaintiff. The evidence suggests that the preference was in common use until a few months before she was hired and was put back into use a few months after her termination, but was not being used at any time relevant to this case. This was apparently because ASG officials were under the impression that it had been overridden by a change in the immigration laws. Whatever the reasons, the plaintiff's application was approved by OMR and sent on for further consideration although OMR believed that there were qualified American Samoan candidates. Mrs. Banks was hired, although she was in competition with several Samoans. And when the PAB recommended her termination, it specifically rejected the part of Mr. Sewell's claim that was based on his Samoan ancestry.

Plaintiff argues, however, that even if the American Samoan preference was not technically enforced in this instance, it is evidence of a pattern or practice of discrimination by ASG against non-Samoans and is therefore relevant to show that ASG officials acted with discriminatory [4ASR2d123] intent. Plaintiff urges that such intent is also shown by the PAB's conclusion that Mr. Sewell had been deprived of his "right as an American Samoan to be employed." There was also testimony that at the PAB hearing someone (either board members, witnesses, or counsel) used the term "papalagi," which may be regarded as a racial epithet for Caucasians. Finally, the concerns cited by the ASG officials who opposed the hiring of plaintiff--- that she was unfamiliar with the community, did not speak Samoan, and was likely to leave the Territory in a year or two could be regarded as code words for racism.

The Court is unpersuaded that this evidence shows discriminatory intent. What it does is to illustrate the difficulties that arise in any analysis of racial questions that attempts to deal with Samoa as if it were Alabama or Michigan. It is true that some Samoans use the term "papalagi" with hostility or disdain, just as some papalagi use the word "Samoan." But residents of Samoa who are not racists use these words as everyday descriptive terms: they are the only ones we have. Similarly, the substance of the PAB opinion supports the contention of the PAB chairman that his infelicitous reference to Mr. Sewell's rights ''as an American Samoan" had no racial connotation. He had just got through denouncing what he regarded as a pattern of chicanery and favoritism, and he was invoking more or less what people invoke when they refer to "the rights of Americans" or "my rights as a citizen of a free country."

It is also true that bilingualism and familiarity with Samoa could be pretexts for racial discrimination, but they could just as easily (far more easily than in the continental United States) be bona fide occupational qualifications. These concerns, and the related concern that American Samoa become as fully self-governing as is consistent with local conditions and with the continued strength of the relationship between the Territory and the United States, gave rise to the American Samoan preference in government employment. If American Samoa were an integral part of the United States, the constitutionality of the Samoan preference would depend on whether these concerns would qualify as "compelling state interests" sufficient to justify what would otherwise be an abridgement of the right to be free from racial [4ASR2d124] discrimination. (4) The courts have long employed a different standard, however, for applying the United States Constitution in the territories. Until the end of the Nineteenth Century all territories of the United States were intended for integration and assimilation with the rest of the country. At about the time of .the Spanish-American War, however, the United States acquired a number of territories about which there was no such intention, and whose cultures and legal systems differed markedly from the Anglo-American. In Insular Cases the United States Supreme Court held that in such "unincorporated" territories the [4ASR2d125] Constitution applied only insofar as its tenets restate "those fundamental limitations in favor of personal rights" that are "the basis of all free government." Dorr v. United States, 195 U.S. 138, 146 (1922); see also Balzac v. Porto Rico, 258 U.S. 298 (1922); Hawaii v. Mankichi, 190 U.S. 197 (1903); Downes v. Bidwell, 182 U.S. 244 (1901). Rights which are regarded as fundamental in the Anglo-American tradition but not in other free and civilized societies do not apply in an unincorporated territory, at least when they would tend to be destructive of the traditional culture. (5)

Although the doctrine of The Insular Cases has been criticized, it has never been repudiated by the Supreme Court and has often been reaffirmed by the lower federal courts. Most recently, the United States Court of Appeals for the Ninth Circuit (which has jurisdiction over all Pacific territories but American Samoa, and which has jurisdiction over American Samoa in connection with a few statutes unrelated to this case) applied the doctrine of The Insular Cases to determine that an unincorporated territory need not provide jury trials in all felony cases. Commonwealth of the [4ASR2d126] Northern Mariana Islands v. Atalig, 723 F.2d 682 (9th Cir. 1984). The District of Columbia Circuit, which has also asserted jurisdiction over American Samoa, reached a different conclusion but also reaffirmed the basic doctrine of The Insular Cases. King v. Morton, 520 F.2d 1140 (1975) (holding that jury trial is required in American Samoa if and only if it is consistent with the Samoan culture).

The Fourteenth Amendment, which prohibits most forms of racial discrimination, applies on its face to the states rather than to the territories or to the federal government. The Supreme Court has held, however, that the Due Process Clause of the Fifth Amendment implicitly forbids racial discrimination by the federal government. Bollin v, Sharpe, 347 U.S. 497 (1954). Although it is clear that the Due Process Clause is binding on the territories in at least some of its applications, this does not mean that it is binding in the same ways and to the same extent as in the continental United States. Commonwealth of the Northern Mariana Islands, supra, 723 F.2d at 689. Rather, it depends on whether the particular application in question is fundamental to "the basis of all free government," and on the burdens it would impose on the culture of the territory. See id.

Although some forms of racial discrimination surety transgress the limits of what most of us today would regard as a free and civilized society, it would be difficult .to sustain the proposition .that any society that uses a racial classification for any purpose is necessarily to be regarded as uncivilized or unfree. Particularly in the extension of political rights, many nations (including, for instance, Western Samoa, Fiji, Japan, Israel, and Ireland) discriminate in ways that would be forbidden in the United States. Indeed, although judges and scholars in the United States have frequently asserted that the racial quotas, goals, and timetables contained in some affirmative action plans do not constitute racial discrimination, it seems more accurate to say that such "reverse" discrimination has been deemed necessary to avoid or eliminate even worse evils.

Against this background, we cannot hold that when the chiefs of Tutuila and Manu'a ceded their territory to the United States every American automatically acquired an equal right with Samoans to participate in the administration of the American Samoa Government. On the contrary, American Samoa has remained an unincorporated [4ASR2d127] territory precisely because it was the intention of the United States to hold it in trust for American Samoans. That such an enterprise was not inconsistent with the United States Constitution was the major premise of the Treaties of Cession and the central holding of The Insular Cases. (6) Even if the Samoan preference had been applied against Mrs. Banks, therefore, we would reject her claim.

This is not to say that the Territory has carte blanche to practice any form of racial discrimination. Indeed, some statutes currently on the books ---which seem to discriminate against "half-castes" who were born and raised here and who might be thoroughgoing Samoans in every respect but that they lack a certain percentage of Samoan blood [4ASR2d128] ---present a much more difficult question than the employment preference. Strictly speaking, the American Samoan preference is not a racial classification at all: both on its face and as applied, it excludes Western Samoans who are ethnically identical to American Samoans and it includes non-Samoans who have resided here for more than twenty years. A.S.C.A. § 7.0205(b); A.S.A.C. § 4.0301(3); Appendix A to A.S.A.C. § 4.0118.

Although the preference has an obvious racial effect in that it is more difficult for an ethnic non-Samoan to secure its benefits than for an ethnic Samoan, its principal purpose and effect are to ensure self-government. Twenty years ago there were practically no Samoans in responsible government positions. Non-Samoans still occupy such positions in vast disproportion to their numbers in the general population. Almost all of these government officials have recently arrived in the Territory and will leave within a few years. Almost none speak the Samoan language, which is still the primary language of almost all Samoans. One need not be a racist (or a Samoan) to recognize the serious disadvantages of this situation. The American Samoan preference law, which is essentially a preference for permanent residents rather than for ethnic Samoans, is reasonably calculated to alleviate it. It is not unconstitutional. (7) [4ASR2d129]

IV. The Conduct of the Attorney General's Office

The plaintiff argues that her rights were further prejudiced when she was lulled into a belief that the Assistant Attorney General who represented the Office of Manpower Resources before the PAB was also "her" lawyer. At some point during the PAB proceedings it appears that plaintiff asked the Assistant Attorney General whether she should retain her own lawyer and was told that this would do her no good, since (1) the grievance was frivolous and (2) the proceeding was between Sewell and the government.

After the PAB's initial decision, the same Assistant Attorney General filed a motion for recon5ideration arguing that the PAB had no authority to order the hiring of Mr. Sewell. After the motion was denied and the Director of OMR decided to hire Mr. Sewell, a different Assi5tant Attorney General defended the PAB in Mrs. Banks's attempted appeal. He contended, as the Office of the Attorney General had contended all along, that the PAB had not fired Mrs. Banks. He argued instead that she had been fired by the Director of -- [4ASR2d130] OMR, who did have the authority to do so.

In retrospect, it might have been better for the Assistant Attorney General in the PAB proceeding to refuse to advise Mrs. Banks one way or the other on whether to retain a lawyer. Instead, she gave her honest opinion in response to an inquiry from someone with whom she had been working closely. There was no evidence, however, that she gave Mrs. Banks any reason to believe that the Office of the Attorney General was looking out for Mrs. Banks's interests and would continue to do so no matter what.

In any case, there is no evidence that Mrs. Banks was damaged by her failure to retain a lawyer. Even if the PAB had been persuaded to admit her as a "party" to its grievance procedure , the most she might have obtained was a decision on the merits from the Appellate Division of the High Court. Even if she had been a "party," it is quite possible that the Appellate Division would have rejected her appeal on the ground that she had ultimately been fired by the Director of Manpower Resources. And if the Appellate Division had reviewed her claim on the merits, the scope of judicial review would have been narrower than the review she subsequently sought and obtained in this proceeding. A.S.C.A. §§ 4.1043-44.

We have held that her rights were not violated. She has the right to appeal our decision to the Appellate Division. If the Appellate Division disagrees with us and finds that the termination violated plaintiff's rights, it can provide a remedy. If the Appellate Division finds that the termination did not violate plaintiff's rights, then there is no reason to assume that the Appellate Division would have decided differently in 1985. In either case, the plaintiff will not have been damaged by her failure to be recognized as a party to the 1985 appeal.

Moreover, the causal connection between the Assistant Attorney General's response to plaintiff's inquiry about whether she should obtain a lawyer and the Appellate Division's holding that she had no standing to appeal is far too attenuated and speculative to justify an award of damages even if there were any.

V. ORDER

Accordingly, the action is dismissed.

**********

1. Mrs. Banks subsequently accepted temporary employment with ASG, at the same salary she had made as executive director of the DDPC. Her job was -to monitor federal programs, including the Disabilities Developmental Planning program, for the Office of Manpower Resources. This employment continued until sometime in the spring of 1986. In June of 1986 Mr. and Mrs. Banks returned to the United States.

2. We address the claims of discrimination by sex and by race. The plaintiff's husband also seemed to suggest in his testimony that his wife should have received special consideration because she is handicapped. This appears to have been an afterthought. The handicap in question, a back injury, was apparently unknown to the PAB when it made its decision. This would not relieve ASG of any affirmative duties it might have to make the handicapped aware of available positions; in this case, however, the plaintiff already knew about the position, and she and her husband knew more than anyone else involved in the process about any special consideration she should have been given. In any case, the plaintiff waived any such defect in the process by not including it in her complaint

3. There is nothing wrong, of course, with believing one's spouse to be the best candidate for a job. In this case, depending on whether technical expertise and training are deemed more important than familiarity with the community for which programs are being planned, Mrs. Banks may well have been the best candidate. The PAB obviously felt, however, that Mr. Banks had a conflict of interest and should have been far less active in the hiring process. The generalized process concerns, apparently unrelated to his wife's ambitions, that Mr. Banks cited as the basis for his opposition to the initial recommendation, and his testimony in court that he really did not want her to get the job, serve only to add a whiff of deviousness to his mishandling of the situation.

4. ASG suggests, for instance, that the American Samoan preference can be justified as an affirmative action program designed to eliminate the effects of past discrimination. (Indeed, the administrative regulations designed to enforce the American Samoan preference are styled an "Equal Opportunity Affirmative Action Plan." See Appendix A to A.S.A.C. § 4.1108. ) Although we reach much the same conclusion in our discussion of Insular Cases, in the absence of these cases the constitutionality of the Samoan preference as an affirmative action plan would be problematic. The nature of the preference--- no non-Samoan can be considered until all qualified American Samoans have been employed ---is quite similar to that declared unconstitutional by the Supreme Court in Regents of the University of California v. Bakke, 438 U.S. 254 (1978). Moreover, unlike most affirmative action plans, the Samoan preference is currently administered by and for the group that constitutes the overwhelming majority within the Territory and that wields political power. Such a plan might present different constitutional problems than one in which the representatives of the majority group, in an effort to redress past discrimination by members of their own group, discriminate in favor of a relatively powerless minority. Finally, the absence of systematic efforts to employ members of non-Samoan groups that are both underrepresented and historically disadvantaged, such as Orientals and Tongans, suggests that the American Samoan preference is better defended as an American Samoan preference than as an affirmative action plan.

5. The doctrine of The Insular Cases was a middle ground between the view that all provisions of the Constitution applied of their own force in every territory, and the radically opposing view that Congress was free to extend or not to extend each provision into each territory as it saw fit. The Supreme Court has held that a constitutional provision which does not apply in a territory of its own force may nevertheless be extended to that territory by. Congress. See Torres v. Commonwealth of Puerto Rico, 442 U. S. 465 (1979), where the Court held that in approving a constitution for Puerto Rico which contained a prohibition against warrantless searches, Congress implicitly extended into Puerto Rico the similar provisions of the Fourth Amendment. In the present case it is instructive that the Revised Constitution of American Samoa which was promulgated by the Secretary of the Interior under a delegation of authority from Congress and which arguably has been ratified by a recent Act of Congress forbidding the Secretary from changing its provisions ---contains no equal protection clause.

6. Cf. Morton v. Mancari, 417 U.S. 535 (1974), upholding the constitutionality of an "Indian preference" statute for employment in the Bureau of Indian Affairs, which is charged with administration of Indian reservations and related programs. 
The purpose of these preferences, as variously expressed in the 
legislative history, has been to give Indians a greater participation 
in their own self-government, to further the Government's trust 
obligation toward the Indian tribes, and to reduce the negative 
effect of having non-Indians administer matters that affect tribal life. 
Id. at 541-42 (footnotes omitted). The Indian preference, like the American Samoan preference, "is granted to Indians, not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities whose lives are governed by the BIA in a unique fashion." Id. at 554. The Court characterized it as "political rather than racial in nature." Id. at 553 n.24. The constitutional justification for this special political arrangement was found in the fact that the United States, by acquiring control over the Indians in the exercise of the war and treaty powers, had thereby undertaken a trust obligation to them. Id. at 552. Implicit in this trust obligation was the power, ad perhaps the duty, to employ Indians wherever possible in positions related to their own governance.

7. Although plaintiff does not rely on the Privileges and Immunities Clause, art. IV, § 2, we note that if a state were to discriminate in favor of its own long-time residents, it might well violate this provision. Because this clause applies on its face only to states, and for the other reasons cited in our discussion of the Due Process, Clause, we do not believe that it makes the American Samoan preference unconstitutional. In addition to her constitutional claims, plaintiff argues that the Samoan preference violates the federal civil rights laws, particularly 42 U.S.C. § 1983. This section is essentially remedial; it creates a cause of action for violations of rights secured by the Constitution and laws of the United States. Although it applies on its face to violations committed under color of territorial (as well as state) law, it cannot be taken as a decision by Congress to extend every application of every constitutional provision into every territory. Such a construction would be radically inconsistent with Insular Cases, which were decided some years after the language of § 1983 was first enacted and which held that some constitutional provisions remained inapplicable in unincorporated territories. On the contrary, a decision by Congress to leave a territory unincorporated is an implicit decision not to extend into that territory those applications of the Constitution that are not part of the "basis of all free government" and that would be inappropriate to local conditions. See Commonwealth of the Northern Marianas, supra, 723 F.2d at 688-90. In the absence of specific evidence to the contrary, therefore, a judicial determination that a particular application of the Constitution does not apply in a territory will dispose of arguments that a parallel federal statute does apply and achieves the same result. Even if the Samoan preference had been applied against plaintiff, therefore, we would reject her statutory as well as her constitutional claims.

American Samoa Gov’t v. Agasiva,


AMERICAN SAMOA GOVERNMENT

v.

MICHAEL AGASIVA, Defendant

High Court of American Samoa 
Trial Division

CR No. 5-87

May 7, 1987

__________

Territorial statute permitting jurors who can read, speak, and understand Samoan but not English does not violate defendant's constitutional right to effective assistance of counsel. 46 A.S.C.A. § 46.1504.

Fact that jurors who speak only Samoan must receive jury instructions through translator does not violate constitutional right to due process; need for translation is inevitable in bilingual territory where many witnesses and jurors speak one language but not the other. 46 A.S.C.A. § 46.1504.

Disqualification of jurors in Samoa on basis of their inability to speak, read, or understand English would defeat concept of randomness that underlies idea of trial by impartial jury.

Before KRUSE, Associate Justice

Counsel: For the Government, Tauivi Tuinei, Assistant Attorney General 
For Defendant, William Reardon

On Motion in Limine:

This matter came on for hearing upon defendant's motion to disqualify for cause all those prospective jurors who are unable to read, speak, and understand the English language. The motion in essence seeks to challenge a significant sector of the community otherwise eligible to serve as jurors under A.S.C.A. § 46.1504. This enactment's effect also qualifies as jurors those persons who are able to read, speak and understand the Samoan language although neither literate nor conversant in English. It is this sector of the community which defendant seeks to disqualify. [4ASR2d111]

Defendant argues that his constitutional right to the effective representation of counsel, as secured by the territorial and federal constitutions, would be denied him if he were tried before a non-English speaking jury. He contends that, "A defendant in a criminal case has a right to have his case heard by jurors who understand his lawyer, the witnesses, and the judge without the necessity of an interpreter."

Central to plaintiff's claim against the status quo is the fact that the judge's instructions on legal matters will have to be interpreted to a non-English speaking jury. The concern raised is that certain legal concepts--the varying degrees of homicide, reasonable doubt, and the presumption of innocence ---do not lend themselves to adequate translation into Samoan terminology.

The first observation is that legal notions of the type referenced by defendant are of themselves difficult to formulate in layman terms even with the English language. Secondly, the Court is unable to accept as a self evident truth that English labels are more adequate than Samoan labels to convey such legal concepts in layman terms. Without some showing, the Court is not able to declare unconstitutional an enactment by the Fono, which obviously came about with cognizance of the bilingual situation in the Territory, upon the mere recitation of disagreement with the system.

Even if defendant's assumptions may be conceded, his argument is not tenable. It places emphasis, in the name of due process, upon reception by the jury of purely legal matters--- instructions by the judge ---but the effect of that is to necessarily undermine the crucial role of the jury to find the facts. Experience tells us that in the great majority of the cases, the jury receives the testimony from Samoan speaking witnesses. Therefore, with an English speaking jury, interpretation of such testimony from Samoan into English is unavoidable. The corollary of defendant's argument is the same perceived evil that gives rise to his complaint, that is, interpretation.

Further, the fact finder's role in sorting out the truth must be more meaningful when a witness speaking and thinking in Samoan is addressing a juror speaking and thinking in the same language. This is significantly the case when it comes to [4ASR2d112] those factors which lend themselves only to the intuitive process, such as demeanor, deportment and intonation.

Also, effective representation of counsel, would involve effective cross-examination of a witness. In the case of the Samoan speaking witness, the desired result of effective cross-examination must, on defendant's hypothesis, deteriorate after the interpretation of the witnesses' response to a non-Samoan speaking jury,

The question naturally follows where the system should place prominence: receipt of facts by the jury, or receipt of the law by the jury? The conclusion is that myopic pre-occupation with one aspect, of the system serves no good purpose if to displace or compromise other aspects of equal importance.

Finally, and perhaps most fundamental, it is randomness of selection from all cross-sections of the community which is at the root of jury systems. This is an integral feature with the system historically accepted as best enhancing "fairness" .

Defendant's argument, however, necessarily canvasses c, departure from randomness in favor of a tailor made and selective jury makeup, to fit a particular defendant. While the defendant has the undeniable right to trial by an impartial jury according to our notions of justice, he has never had the right to a trial by any particular jury. Our system is an adversary one, and "fairness" involves all parties, with neither having any vested right to a particular juror.

The motion is denied.

**********

American Samoa Gov’t v . Masaniai,


AMERICAN SAMOA GOVERNMENT

v.

MALESALA aka TAULAGA MASANIAI, Defendant

High Court of American Samoa 
Trial Division

CR No. 9-87

May 21, 1987

__________

Neither the rights to free speech and a free press nor a criminal defendant's constitutional right to a public trial preclude a court from excluding members of the public from the courtroom during the testimony of juvenile complaining witness in a rape case, where the court has determined after a public hearing that such exclusion is necessary to protect the witness's psychological well-being or to prevent her from being harassed and intimidated.

Where statute defines the crime of sexual abuse to include the purpose of arousing or gratifying sexual desire, such purpose can be inferred by the trier of fact from the defendant's conduct. A.S.C.A. §§ 46.3601, 46.3612.

Statute defining the crime of sodomy does not require proof that defendant committed the act with the purpose of arousing or gratifying sexual desire. A.S.C.A. § 46.3611.

That defendant's conduct was similar to pre-Christian ceremonial practices was no defense in prosecution for sexual abuse and sodomy, since territorial legislature" enacted no statutory exception for such practices. A.S.C.P.. §§ 46.3611, 46.3612.

Before REES, Chief Justice, and TAUANU'U, Chief Associate Judge:

Counsel: For the Government, William Wallace, Assistant Attorney General 
For the Defendant, Charles Ala'ilima

Defendant was convicted of Sodomy and Sexual Abuse in the First Degree. The victim was his[4ASR2d157] sixteen-year-old daughter. He asks for reconsideration of the verdict and for a new trial on the grounds that exclusion of the public from the courtroom during the testimony of the victim violated his right to public trial, and also on the ground that the government had not proved "sexual intent" in connection with the acts he performed on the girl.

I. Public Trial

The public was excluded from the courtroom only during the testimony of the complaining witness, who had requested such exclusion. The prosecutor indicated to the Court that the girl had asked that she not be required to repeat the details of the sexual acts in front of family members. The court held a public hearing, in accordance with the holding in Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982), so that members of the press and public could present any arguments they might have in favor of their being allowed to remain in the courtroom during the victim's testimony.

The only people who requested to stay were family members. Most of these people were members of the immediate family of the defendant and the victim, and they testified that they wished to be in the courtroom in order to influence their sister's testimony. The testimony of her half-brother Joe Masaniai was that he wanted to "look her in the eye" so that she would not tell the vicious lies she had been telling about their father. Taking into account the demeanor of the witnesses and the history of alleged harassment of the girl by family members, the court determined that what they really wanted was to deter her from telling her story without reference to whether it was true or not. (Subsequent events bore this out: at trial it became clear that Mr. Masaniai had coached his family in an elaborate network of lies about the victim of his crimes, in an effort to convince the court that none of the events she complained of had ever happened and that she was a pathological liar. At an earlier time, however, his strategy had been somewhat different: he had bragged to disinterested persons, two of whom testified at trial, that his "checking" of his daughter's private parts was the will of God and that the practice was the cause of his other daughters' success in life.) [4ASR2d158]

The other group of people who wished to remain in the courtroom consisted of two persons more distantly related to the defendant and the victim, who testified that they were curious about what the true facts were. Although this is the usual interest that members of the public have in a courtroom proceeding, it is outweighed in some cases both by the interest of a victim (especially a minor victim) in not becoming an object of salacious curiosity. Globe Newspaper Co., supra, 457 U.S. at 607-08 (footnotes omitted):

We agree.... that the first interest ---safeguarding the physical 
and psychological well-being of a minor--- is a compelling one
....A trial court determine on a case by case basis whether 
closure is necessary to protect the welfare of a minor victim. 
Among the factors to be weighed are the minor victim's age, 
psychological maturity and understanding, the nature of the 
crime, the desires of the victim, and the interests of parents 
and relatives.

In this case the court did its best to comply with the requirements of the Globe case ---which, incidentally, involved the public's first amendment rights rather than the sixth amendment right of a defendant. The court was (and is) convinced that exclusion of the public during the victim's testimony was necessary. The curiosity of distant relatives and other members of the public was outweighed by the need to protect her psychological well-being. The interest of the closer relatives was stronger, but so were the reasons for excluding them They were a large, forceful, and demonstrative group of people who were determined to intimidate the victim. Both her interest in not being subject to such pressure and the interest of the court and the public in enhancing the possibility that the victim would testify truthfully and thoroughly would have justified the exclusion, even if the intimate nature of her testimony had not. See, e.g., United States v. Eisner, 533 F.2d 987 (6th Cir. 1976); United States ex rel. Bruno v. Herold, 408 F.2d 125 (2d Cir. 1969).

II. Sexual Intent

The "sexual abuse" statute, A.S.C.A. § 46.3612, requires that there be a touching of the private parts without consent and "for the purpose [4ASR2d159] of arousing or gratifying sexual desire of any person." A.S.C.A. § 46.3601. Although Mr. Masaniai told his daughter that his intent was to see whether she was a virgin or not, he took several minutes to do this, and whispered to her repeatedly that she was a good girl and that he loved her. We inferred sexual intent from these circumstances and from the nature of the act.

The sodomy statute, A.S.C.A. § 46.3611, does not require any proof of sexual intent; the penetration of the genitals with the hand suffices. We decline the invitation of defense counsel to read a requirement of sexual intent into the statute.

This is not to say, as defense counsel suggests, that a doctor could be convicted for performing a gynecological examination; that was clearly not the intent of the legislature. Despite the similarity of Mr. Masaniai's act to certain ceremonies that were said to be part of the pre-Christian Samoan tradition, we emphatically do not believe the legislature intended any exemption for such acts. Indeed, there is no reason to believe that sexual pleasure was not derived from them. In any case, such acts were specifically prohibited by statute prior to the enactment of the American Samoa Code Annotated, and the statutes we have cited are broad enough to prohibit them along with what Mr. Masaniai did.

The motion is denied.

**********

Workmen's Comp. Comm’n; Kaho v.


MONTE KAHO, aka MONTY KAHO, Plaintiff

v.

RON PRITCHARD GROUND SERVICES, INC., PRITCHARD
AIRPORT SERVICES, INC., PRITCHARD TRAVEL SERVICE,
all American Samoa corporations, and CONTINENTAL
AIRLINES, INC., a Nevada corporation, Defendants

MONTE KAHO aka MONTE-KAHO, Appellant-Claimant

v.

WORKMEN'S COMPENSATION COMMISSION, AMERICAN SAMOA
GOVERNMENT, VAIMASINA CATERING, and
AMERICAN INTERNATIONAL UNDERWRITER
(SOUTH PACIFIC), LTD., Appellees

High Court of American Samoa
Trial Division

CA. No. 62-81
CA. No. 68-86

March 13, 1987

__________

Automatic stay of suits against bankruptcy petitioner does not operate to stay proceedings against solvent co-defendants. 11 U.S.C. § 362.

Trial Court had discretion to dismiss action four years after it had been filed, eighteen months after court had given notice that the case would be dismissed unless good cause to the contrary should be shown, and one year after the date that counsel estimated he would' move for trial, when no such motion had been made.

Constitutional right to due process of law is not denied when a court which has repeatedly accommodated counsel's unusual requests and overlooked procedural irregularities finally ceases to do so and dismisses the action.

Before REES, Chief Justice.

Counsel: For the Plaintiff, Fred Rohlfing
For Defendant A.S.G. et al., Martin Yerick, Assistant Attorney General
For Defendant A.I.U., Roy J.D. Hall, Jr.
For Defendants Pritchard et al., Michael Kruse [4ASR2d41]

Opinion and Order on Various Motions:

I. MOTION FOR FURTHER CONTINUANCE

At the outset we address the plaintiff's motion for a further continuance of the hearing on his "Motion for Reconsideration of Order Denying Plaintiff's Second Motion to Set Aside Dismissal" in #62-81 and his motion for reconsideration in #68-86.

The informal motion to continue was contained in a handwritten note dated March 4, 1987, and received by the Clerk of Courts on March 10, the day before the scheduled hearing. The note was sent from Hawaii by plaintiff's counsel. It did not comply with the rules pertaining to the form of motions, contained no affidavit of service upon opposing counsel and had not in fact been received by opposing counsel as of the time of the scheduled hearing. It alluded to a pending settlement of the case. Obviously, a defendant in whose favor judgment has been rendered remains free to pay money to the plaintiff if he so desires. Under the circumstances, however, an allegation that this is about to happen is an insufficient basis for yet another continuance.

The appeal would have been timely but for the fact that Mr. Rohlfing, who had been a member of the American Samoa Bar Association, was no longer a member in good standing, having failed to pay his dues for 1984, 1985, and 1986. The papers were also not accompanied by the required filing fee. The Clerk of Courts, on the instructions of the then-Chief Justice, returned the papers to counsel in Hawaii. He immediately (March 25) responded by paying the three years' dues, but inexplicably did not also re-file the appeal. Instead counsel states that he consulted with various local lawyers for several months before re-filing the appeal on June 6, 1986. Even on the most liberal possible [4ASR2d42]

II. THE WORKMEN'S COMPENSATION CASE

On August 2, 1985, the Workmen's Compensation Commission made the award of which the appellant complains. A series of efforts to secure a reconsideration of the award culminated on February 24. 1986, in a final denial of a rehearing by the Commission. Counsel for the plaintiff, Mr. Fred Rohlfing of Hawaii, filed an appeal from the award in the High Court on or about March 15, 1986.

The appeal would have been timely but for the fact that Mr. Rohlfing, who had been a member of the American Samoa Bar Association, was no longer a member in good standing, having failed to pay his dues for 1984, 1985, 1986. The papers were also not accompanied by the required filing fee. The Clerk of Courts, on the instructions of the then-Chief Justice, returned the papers to counsel in Hawaii. He immediately (March 25) responded by paying the three years' dues, but inexplicably did not also refile the appeal. Instead counsel states that he consulted with various local lawyers for several months before re-filing the appeal on June 6, 1986. Even on the most liberal possible [4ASR2d43] interpretation of the statutory 30-day period for filing of appeals from Workmen's Compensation Commission awards, counsel should have filed by April 24 (30 days after he received notice that his initial attempt to appeal had been unsuccessful). As of March 25, 1986, plaintiff's counsel was a member in good standing of the American Samoa Bar and was perfectly capable of filing the very papers he had once already attempted to file. Instead he waited well over two additional months. The court was therefore correct in refusing to order the certification and transmission of a record on appeal, and in denying counsel's various attempts to secure a reconsideration of the initial refusal.

III. THE CIVIL ACTION

On October 21, 1981, the plaintiff effected service against the present defendants in a civil action arising out of the same accident that was the basis of the Workmen's Compensation Commission award. We note that the civil action was almost certainly barred by the two-year statute of limitations, since the accident had happened on or about October 2, 1919, and there is no suggestion in any of the pleadings of special circumstances that would have caused the action not to accrue until later. The statute of limitations was pleaded as an affirmative defense, but the court never had to rule on it because the case was dismissed instead for failure on the part of plaintiff's counsel to prosecute it.

The order of dismissal was rendered on December 11, 1985, pursuant to an order of June 21, 1984, that the case would be dismissed unless good cause to the contrary should be shown by July 20, 1984. Plaintiff's local counsel in American Samoa had responded with an affidavit to the effect. that "the matter should go to trial, all things being considered, in October or November of 1984." When counsel did not in fact move to set the case for trial during those months or submit any explanation whatever during the eighteen months between June 1984 and December 1985, the court dismissed the case.

Upon receiving notice of the dismissal, Mr. Rohlfing moved for a reconsideration. The basis for this motion was that Mr. Rohlfing had not been personally informed of the June 21order. Mr. Rohlfing had, however, joined local counsel who had appeared on a number of occasions on behalf of Mr. [4ASR2d43] Kaho. Notice to local counsel was therefore entirely appropriate.

As is his wont, Mr. Rohlfing also sent personal letters to the Clerk of Courts and to the trial judge. In the letter to the Clerk he apprised the Court for the first time of his contention that the case had been automatically stayed during 1984 and 1985 on account of the bankruptcy of Continental Airlines, a co-defendant along with the present defendants. (Plaintiff voluntarily dismissed the case against Continental after a settlement was reached.)

Mr. Rohlfing submitted no authority, however, for the proposition that the automatic stay of suits against parties in bankruptcy proceedings provided by 11 U.S.C. 362 also operates to stay proceedings against solvent co-defendants. The United States Courts of Appeal that have considered the question are uniformly of the opinion that it does not. See Fortier v. Dona Anna Plaza Partners, 747 F.2d 1324 (l0th Cir. 1984); Williford v. Armstrong World Indus., Inc., 715 F.2d 124 (4th Cir. 1983); Wedgeworth v. Fibreboard Corp., 706 F.2d 541 (5th Cir. 1983); Austin v. Unarco Ind , 706 F.2d 1 (1st Cir. 1983); Pitts v. Uarco Indus., Inc., 698 F.2d 313 (7th Cir. 1983); Lynch v. Johns-Manville Sales Corp., 710 F.2d 1194 (6th Cir. 1983). At any time between 1981 and 1985, therefore, Mr. Rohlfing was free to press his client's suit against the present defendants. The court was well within its discretion in dismissing the action for his failure to do so. See Link v. Wabash Ry. Co., 370 U.S. 628 (1962).

In his letter to the trial judge, Mr. Rohlfing stated that his co-counsel in American Samoa had been "principal counsel when the failure to respond to your notice of potential dismissal occurred" but was "no longer a co-counsel for the Plaintiff in this matter." He requested that the hearing on his motion for reconsideration, scheduled for February 18, 1986, "be handled by conference telephone call." Mr. Rohlfing did not explain why, if local counsel and not Mr. Rohlfing had been the client's "principal counsel," the Court should give legal effect to a dismissal of the principal counsel signed by another counsel but not by the client. (Subsequent to the February 18 hearing, a dismissal of local counsel signed by the client on March 4 was filed with the Court.) Nevertheless, the court attempted to accommodate Mr. Rohlfing: the trial judge's notes, which he inserted in the case file, [4ASR2d44] reflect that he called Mr. Rohlfing's office on February 13 and was told that Mr. Rohlfing was out of town until February 18. The judge asked Mr. Rohlfing to call back, but Mr. Rohlfing did not call on the 18th. The motion to reconsider was therefore heard on the basis of Mr. Rohlfing's written submissions and the arguments of local counsel. The motion was taken under advisement, however, pending the expected call from Mr. Rohlfing. (1)

Mr. Rohlfing subsequently communicated with the Clerk, apparently by telephone, in or around June of 1986. The Clerk told him the case had been taken under advisement. In October 1986 Mr. Rohlfing wrote another letter to the trial judge. On November 10, 1986, he filed a second motion to set aside the order of dismissal, alleging no grounds other than those already discussed. The motion was denied after a hearing on December 23. (Mr. Rohlfing asserts that he waited for the court to call him on December 23 and then attempted to call the court several times during the day. The record reflects that the judge and the other attorneys were in court for the December 23 hearing, and the present writer has been assured by court personnel that all High Court telephones were being answered at all times between 7:30 a.m. and 4:00 p.m. Although Mr. Rohlfing has asserted that he has been "victim of polynesian communications" during the course of this case, he was always free to circumvent such problems by appearing personally in court on behalf of his client, as is the general custom in American Samoa and elsewhere. In any case, his motion was so clearly without merit that oral argument could not have made a difference.) [4ASR2d45]

The Motion for Reconsideration of Order Denying Plaintiff's Second Motion to Set Aside Dismissal is denied.

CONCLUSION

Mr. Rohlfing's memoranda contain the suggestion that if the High Court does not reopen these cases his client's constitutional right to due process of law will have been denied. On the contrary, the court seems to have afforded over the years a good deal more process than was due. Although it is always advisable in any jurisdiction for a lawyer operating from another place to join local co-counsel, this court has tried to accommodate those off-island lawyers who choose not to do so. Such arrangements can work, but only if the off-island lawyer is willing to exert somewhat more than the usual diligence. In this case the client's procedural problems arose from the lawyer's unusually casual attitude toward the case.

The motions are denied.

**********

1. The transcript of the February 18, 1986, hearing reflects the judge's decision that "I'll take the thing under advisement because Rohlfing has written. We'll listen to what he has to say on the telephone and decide it." Mr. Rohlfing's letter of October 18, 1986, however, indicates that his office did give him the message that Judge Murphy had called, "but not until subsequent to the hearing date of February 18th. Accordingly, I had assumed that in due course I would receive a written order/decision on the motion." This dogged determination to regard the ball as in someone else's court is the hallmark of Mr. Rohlfing's conduct of these cases.

Willis v. Willis


 

JOSEPH WILLIS, Plaintiff

 

v.

 

PAUL WILLIS, TONY WILLIS, LAUPATI WILLIS,
TUILAGI WILLIS, ALEXANDER WILLIS,
DORA ASUEGA, DAISY W. VEA,
and TIRESA W. PASSI, Defendants

 

JOSEPH WILLIS, Plaintiff

 

v.

 

DORA ASUEGA AND PURCILLA POYER, Defendants

 

High Court of American Samoa
Land and Titles Division

 

LT No. 44-86
LT No. 45-86

 

May 13, 1987

 

__________

 

A judgment that has become final cannot be disturbed in the absence of new evidence, fraud, surprise, or similar circumstances. T.C.R.C.P. Rule 60.

 

Territorial statute permitting court to subordinate rules of "practice or procedure" to exigencies of justice and convenience does not give the court power to overturn a final judgment in the absence of new evidence, fraud, surprise, or similar circumstances, since res judicata is a rule of substantive law and not of procedure. A.S.C.A. § 3.0242(b); T.C.R.C.P. Rule 60.

 

Judgment that disputed tract was "communal land" of a family that was not a traditional Samoan family with a matai left open the question how family was to exercise rights of ownership under land statutes presuming the existence of a senior matai, since family was prohibited by statute from creating a new matai title. A.S.C.A. §§ 1.0401, 37.1502-03.

 

Land held to belong to family members as tenants in common is "communal" insofar as each member held an undivided interest in the land by virtue of joint occupation and cultivation, but was not Samoan communal property for purpose of statutes requiring [4ASR2d145] action to be taken by a matai. A.S.C.A. §§ 37.1502- 03.

 

Tenancy in common differs from traditional Samoan land tenure in that any co-owner is entitled to a partition of the property.

 

Before REES, Chief Justice, and TAUANU'U, Chief Associate Judge.

 

Counsel: For Plaintiff, Aviata Fa'alevao
For Defendants, Togiola Talalelei Tulafono

 

Opinion and Order on Motions to Reconsider and for Attorney Fees in No. 44-86 and Motion for Default Judgment in No.45-86:

 

These actions were brought in an effort to persuade the Court to grant relief from a final judgment rendered in 1983 and upheld by the Appellate Division early in 1986.

 

Counsel for plaintiff, Joseph Willis, makes no new arguments but simply reiterates the arguments he advanced unsuccessfully in Willis v. Willis, 2 A.S.R.2d 102 (1986), and in the consolidated land, civil, and probate cases leading up to that appeal. He wants the Court to reverse the earlier judgment of the trial court and of the appellate court that a tract of land called Lepuapua belongs not to him but to the Willis family.

 

Plaintiff's reliance on Rule 60 of the Trial Court Rules of Civil Procedure is inapposite. There is no new evidence and there was no fraud, surprise, or similar circumstance in the prior proceedings. Nor does A.S.C.A. § 3.0242(b), which permits rules of "practice or procedure" to be subordinated to natural justice and convenience, give us the authority to overturn the result of a prior decision in the absence of any of the factors enumerated in Rule 60. The doctrine of res judicata is a principle of substantive law, not of practice or procedure. The court will not interfere, therefore, with the earlier court's judgment that Lepuapua was acquired by right of original occupancy by the Willises as a family, and not by deed to plaintiff or to his mother, Falesau Willis. Nor can we see the ghost of a chance that any future trial or appellate court will do so.[4ASR2d146]

 

There is, however, one matter raised by the complaint in LT 45-86 which was not before the Court in any of the earlier cases. Plaintiff alleges, and has proven by uncontroverted documents and affidavits, that defendants Asuega and Poyer have secured building and zoning permits by signing legal documents to the effect that Lepuapua is their individual property. This was contrary to the holding in Willis v. Willis, which found that Lepuapua was the communal land of the Willis family. The trial and appellate courts recognized that the Willises were not a traditional Samoan family with a matai, but attempted to finesse this problem by observing that the Willises are Samoans who have been living as a Samoan family and by ordering them to decide according to Samoan custom how the land should be used.

 

There are several unanswered questions in this part of the Court's holding, and all of them are presented by the building and zoning permits in this case. All of the statutes having to do with communal land, including those that tell the Court how to decide whether Samoan custom has been followed, assume that the family has a senior matai. In this case, for instance, plaintiff would seem at first glance to be entitled to judgment by default in LT No. 45-86, since neither Dora Asuega nor Purcilla Poyer is the senior matai of the Willis family and each has signed documents required by law to be signed by the senior matai. The problem is that the Willises not only do not have a matai but are prevented from selecting one by the law that prohibits the creation of new matai titles. And yet the court in Willis v. Willis clearly did not intend that nothing could ever be built on the property.

 

We could resolve these difficulties by construing Willis v. Willis as having declared the six Willis brothers and sisters to have become owners of Lepuapua as tenants in common. Under this construction, the land would be "communal" in the sense that each brother and sister obtained an undivided interest in the land as a result of their joint occupation and cultivation, but it would not be Samoan communal property for the purposes of any of the statutes requiring action to be taken by a matai. This seems to comport with how the Willises have been treating the land: the permits signed by defendants Asuega and Poyer, for instance, are legal if the land is held by a tenancy in common but not if it is Samoan communal property. Another respect in which a tenancy in common differs from [4ASR2d147] traditional Samoan land tenure is that any co-owner is entitled to a partition of the property.

 

The Court has a duty, imposed by the failure of defendants in No. 45-86 to file an answer or otherwise to controvert the allegations that they have treated the land as their own individual property, to dispose somehow of the loose ends left by Willis v. Willis. On the other hand, we are reluctant to announce any disposition without first giving all parties a chance to address it. Accordingly, we will reserve judgment on the motions before us in order to request any arguments or suggestions the parties might have on the following questions:

 

1) Should Willis v. Willis be construed as having declared the six Willis brothers and sisters to hold Lepuapua as tenants in common?

 

2) If not, what other construction of the decision will allow the parties to build on the land, bring actions against encroachment by non-family members, and otherwise administer it without violating the statutory restrictions on communal land?

 

No party is required to respond to these questions. If any defendant wishes to do so, he should file his response by June 12. If plaintiff Joseph Willis wishes to respond, he should do so by June 26.

 

**********

 

Willis v. Willis,


JOSEPH WILLIS, Plaintiff

v.

PAUL WILLIS, TONY WILLIS, LAUPATI WILLIS,
TUILAGI WILLIS, ALEXANDER WILLIS,
DORA ASUEGA, DAISY W. VEA,
and TIRESA W. PASSI, Defendants

JOSEPH WILLIS, Plaintiff

v.

DORA ASUEGA AND PURCILLA POYER, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 44-86
LT No. 45-86

May 13, 1987

__________

A judgment that has become final cannot be disturbed in the absence of new evidence, fraud, surprise, or similar circumstances. T.C.R.C.P. Rule 60.

Territorial statute permitting court to subordinate rules of "practice or procedure" to exigencies of justice and convenience does not give the court power to overturn a final judgment in the absence of new evidence, fraud, surprise, or similar circumstances, since res judicata is a rule of substantive law and not of procedure. A.S.C.A. § 3.0242(b); T.C.R.C.P. Rule 60.

Judgment that disputed tract was "communal land" of a family that was not a traditional Samoan family with a matai left open the question how family was to exercise rights of ownership under land statutes presuming the existence of a senior matai, since family was prohibited by statute from creating a new matai title. A.S.C.A. §§ 1.0401, 37.1502-03.

Land held to belong to family members as tenants in common is "communal" insofar as each member held an undivided interest in the land by virtue of joint occupation and cultivation, but was not Samoan communal property for purpose of statutes requiring [4ASR2d145] action to be taken by a matai. A.S.C.A. §§ 37.1502- 03.

Tenancy in common differs from traditional Samoan land tenure in that any co-owner is entitled to a partition of the property.

Before REES, Chief Justice, and TAUANU'U, Chief Associate Judge.

Counsel: For Plaintiff, Aviata Fa'alevao
For Defendants, Togiola Talalelei Tulafono

Opinion and Order on Motions to Reconsider and for Attorney Fees in No. 44-86 and Motion for Default Judgment in No.45-86:

These actions were brought in an effort to persuade the Court to grant relief from a final judgment rendered in 1983 and upheld by the Appellate Division early in 1986.

Counsel for plaintiff, Joseph Willis, makes no new arguments but simply reiterates the arguments he advanced unsuccessfully in Willis v. Willis, 2 A.S.R.2d 102 (1986), and in the consolidated land, civil, and probate cases leading up to that appeal. He wants the Court to reverse the earlier judgment of the trial court and of the appellate court that a tract of land called Lepuapua belongs not to him but to the Willis family.

Plaintiff's reliance on Rule 60 of the Trial Court Rules of Civil Procedure is inapposite. There is no new evidence and there was no fraud, surprise, or similar circumstance in the prior proceedings. Nor does A.S.C.A. § 3.0242(b), which permits rules of "practice or procedure" to be subordinated to natural justice and convenience, give us the authority to overturn the result of a prior decision in the absence of any of the factors enumerated in Rule 60. The doctrine of res judicata is a principle of substantive law, not of practice or procedure. The court will not interfere, therefore, with the earlier court's judgment that Lepuapua was acquired by right of original occupancy by the Willises as a family, and not by deed to plaintiff or to his mother, Falesau Willis. Nor can we see the ghost of a chance that any future trial or appellate court will do so.[4ASR2d146]

There is, however, one matter raised by the complaint in LT 45-86 which was not before the Court in any of the earlier cases. Plaintiff alleges, and has proven by uncontroverted documents and affidavits, that defendants Asuega and Poyer have secured building and zoning permits by signing legal documents to the effect that Lepuapua is their individual property. This was contrary to the holding in Willis v. Willis, which found that Lepuapua was the communal land of the Willis family. The trial and appellate courts recognized that the Willises were not a traditional Samoan family with a matai, but attempted to finesse this problem by observing that the Willises are Samoans who have been living as a Samoan family and by ordering them to decide according to Samoan custom how the land should be used.

There are several unanswered questions in this part of the Court's holding, and all of them are presented by the building and zoning permits in this case. All of the statutes having to do with communal land, including those that tell the Court how to decide whether Samoan custom has been followed, assume that the family has a senior matai. In this case, for instance, plaintiff would seem at first glance to be entitled to judgment by default in LT No. 45-86, since neither Dora Asuega nor Purcilla Poyer is the senior matai of the Willis family and each has signed documents required by law to be signed by the senior matai. The problem is that the Willises not only do not have a matai but are prevented from selecting one by the law that prohibits the creation of new matai titles. And yet the court in Willis v. Willis clearly did not intend that nothing could ever be built on the property.

We could resolve these difficulties by construing Willis v. Willis as having declared the six Willis brothers and sisters to have become owners of Lepuapua as tenants in common. Under this construction, the land would be "communal" in the sense that each brother and sister obtained an undivided interest in the land as a result of their joint occupation and cultivation, but it would not be Samoan communal property for the purposes of any of the statutes requiring action to be taken by a matai. This seems to comport with how the Willises have been treating the land: the permits signed by defendants Asuega and Poyer, for instance, are legal if the land is held by a tenancy in common but not if it is Samoan communal property. Another respect in which a tenancy in common differs from [4ASR2d147] traditional Samoan land tenure is that any co-owner is entitled to a partition of the property.

The Court has a duty, imposed by the failure of defendants in No. 45-86 to file an answer or otherwise to controvert the allegations that they have treated the land as their own individual property, to dispose somehow of the loose ends left by Willis v. Willis. On the other hand, we are reluctant to announce any disposition without first giving all parties a chance to address it. Accordingly, we will reserve judgment on the motions before us in order to request any arguments or suggestions the parties might have on the following questions:

1) Should Willis v. Willis be construed as having declared the six Willis brothers and sisters to hold Lepuapua as tenants in common?

2) If not, what other construction of the decision will allow the parties to build on the land, bring actions against encroachment by non-family members, and otherwise administer it without violating the statutory restrictions on communal land?

No party is required to respond to these questions. If any defendant wishes to do so, he should file his response by June 12. If plaintiff Joseph Willis wishes to respond, he should do so by June 26.

**********

In re a Minor Child (Juv. No. 95-86),


In re A MINOR CHILD

High Court of American Samoa
Trial Division

JUV No. 95-86

June 29, 1987

__________

Natural father's. parental rights cannot be terminated without compliance with statutory requirements, including that diligent efforts be made to give actual notice.

A party seeking the termination of parental rights must provide notice to the child's natural father, either by the statutorily approved method, or by publication if permitted by court order.

In assessing the best interests of a child for the purposes of a proceeding to terminate parental rights so that the child can be adopted, the court must consider the prospective adopting parents' ability to support the child until the child's majority and may therefore consider the ages of the child, of the natural parents, and of the prospective adopting parents.

The best interests of a two-year-old child would not be served by terminating the parental rights and obligations of her natural mother so that she could be adopted by her seventy-six-year-old great-grandmother.

Before REES, Chief Justice, AFUOLA, Associate Judge, and TUIAFONO, Associate Judge.

Counsel: For Petitoners, Talalelei A. Tulafono, Roger K. Hazell

We cannot grant the requested termination of parental rights. Aside from the apparent failure to serve the natural father in accordance with the court's order allowing publication or with the alternative method provided by statute, the prospective adopting parent is the child's seventy-six-year-old great-grandmother. [4ASR2d181]

Although the Court greatly admires grandparents and other relatives who provide love and shelter to the children of family members who are less well situated to take care of them, there are some cases in which a fa'a Samoa adoption would be proper but a legal adoption would not. Every child has a strong interest in having natural or adoptive parents who will be able to support him and legally obliged to do so until he reaches the age of majority. This child is only two years old. When she reaches the age of majority her natural parents will be in their thirties and the prospective adoptive parent will be ninety-two years old. We understand that other family members may be willing to take over the care of the child if her great-grandmother should become unable to care for her, but this can happen whether or not the legal rights and obligations of parenthood are shifted from the natural parents to the great-grandmother. The only question before us is whether the natural parents' legal rights and obligations should be terminated, and we conclude that they should not .

**********

In re a Minor Child (Juv. No. 68-87),


In re A MINOR CHILD

High Court of American Samoa
Trial Division

JUV No. 68-87

May 12, 1987

__________

Notwithstanding the consent of child's natural parents to the termination of their parental rights and obligations so that child could be adopted by another couple, such termination would not serve the best interests of the child where (1) the prospective adopting parents were sixty-four and fifty-eight years old, (2) the natural parents were much younger, (3) the child had lived for most of his life with his natural parents, and (4) the only apparent advantage of a legal adoption would be increased Social Security benefits for the prospective adopting parents.

In order for a child to leave his natural parents and live with another couple as their adopted child in accordance with Samoan custom, it is not necessary that the child be legally adopted or that the legal rights and obligations of the natural parents be terminated.

Before REES, Chief Justice, LUALEMAGA, Associate Judge, and TUIAFONO, Associate Judge.

Counsel: For Petitioners, Isalei Iuli

Although the natural parents have consented to this petition for the termination of their parental rights, we cannot grant the petition. The petitioners are 64 and 58 years old, and the natural parents are much younger. Although the testimony and the child service protection reports varied somewhat on how long the child had been living with the petitioners, it appears that for most of his ten years he has lived with his natural parents. (For several years the natural parents were residing with the petitioners.) The child is, of course, free to live with the petitioners, to regard them as his adoptive parents for all purposes relevant to Samoan custom, and to give them the love and respect that are owing to[4ASR2d139] parents. A voluntary "fa'a Samoa adoption" does not require the approval of the Court. The only thing that would be gained by a leal adoption would be higher Social Security benefits for the petitioners, and in return the child would have to give up all future rights of support from his adoptive parents. We do not believe this to be in the best interest of the child.

The action is dismissed.

**********

Governor of American Samoa; Tuika v.


TUIKA TUIKA, Jr., ASUEGA FITIFITI, MILOVALE SOLAITA,
IOSEFA KAPELI IULI, SAO NUA,
MIKE FUIAVA, and SAVEA NUA, Plaintiffs

v.

GOVERNOR OF AMERICAN SAMOA, GOVERNMENT OF
AMERICAN SAMOA, STAR-KIST SAMOA, Inc.,
ATAMAI MARINE, Inc., PACIFIC RESOURCES
SOUTH PACIFIC, Inc., SMALL BUSINESS
ADMINISTRATION, SPECIALIZED MARINE,
SOUTHWEST MARINE OF SAMOA, and THE
KINGDOM OF TONGA, Defendants

High Court of American Samoa
Trial Division

CA No.74-86

April 24, 1987

__________

Similarly worded constitutional and statutory provisions may be construed differently in different jurisdictions, especially where they have been adopted and applied in different circumstances.

Territorial statute providing for a "legislative veto" of leases of government land did not violate American Samoa Constitution. A.S.C.A. § 37.2030; Rev. Const'n of Am. Samoa art. II §§ 9 & 10.

Legislative resolution disapproving lease of government land, pursuant to statute giving binding effect to such resolutions, was not a "law" wi thin .the meaning of a constitutional provision requiring all laws to be enacted by bill rather than resolution. Rev. Const'n of Am. Samoa art. II § 9.

By making it easier for the legislature to supervise the quasi-legislative activities of the executive branch, a territorial statute providing for "legislative veto" enhanced the diffusion of power among the different branches of government. A.S.C.A. § 37.2030.

Under Constitution of American Samoa the legislature, and particularly the Senate which is composed of traditional chiefs chosen according to Samoan custom, has a peculiar relationship to the preservation of land and culture. Rev. Const'n of Am. Samoa art. I § 3, art. II § 4. [4ASR2d86]

Where plaintiffs had waited three years to file suit after territorial Attorney General had announced that a territorial statute was unconstitutional, and government had granted a number of leases during the intervening years that did not conform to requirements of the statute, action for declaratory judgment that the statute was unconstitutional would' be entertained but demand for the invalidation of leases signed prior to the date suit was filed was barred by laches.

Before REES, Chief Justice, LUALEMAGA, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Plaintiffs, Charles Ala'ilima
For Defendants, Donald Griesmann, Assistant Attorney General

Seven members of the territorial House of Representatives brought this action alleging that the Governor of American Samoa has entered into several leases of government land in violation of A.S.C.A. § 37.2030. That section provides that no such lease for a period of ten years or longer shall be effective until it has been submitted to the Fono. It further provides that if any such lease is disapproved by a resolution adopted by both houses of the Fono within thirty days of its submission, the lease shall not take effect.

Counsel for the Governor admits that he has not been submitting leases to the Fono. Nor, in fact, did the previous Governor do so at any time after March 2, 1984, when the then-Attorney General gave his opinion that A.S.C.A. § 37.2030 violates the American Samoa Constitution. This opinion was based on the decision of the United States Supreme Court in I.N.S. v. Chadha, 462 U.S. 919 (1983), which held that a similar federal statute violated the United States Constitution.

The government defendants have moved for summary judgment. The motion is not based on whether the plaintiffs (some of whom are no longer members of the Fono) have standing as legislators, citizens, taxpayers, or otherwise, so we do not address that question. Nor are we called upon to decide how, if at all, this court could obtain jurisdiction over the Small Business Administration and the King of Tonga. Rather, the government defendants ask for a judgment that A.S.C.A. § 37.2030 is unconstitutional. [4ASR2d87]

I. The Constitutionality of the "Legislative Veto"

The Supreme Court in Chadha construed certain provisions of the United States Constitution. It did not suggest that state or territorial courts were bound to construe similar provisions in their own constitutions in the same way. It is fairly common for similarly worded constitutional and statutory provisions to be construed differently in different jurisdictions. This is true not only because reasonable people may differ about what words mean but also because the circumstances under which a law has been adopted and applied may vary widely from place to place. Nevertheless, we regard an opinion of the United States Supreme Court as highly persuasive authority whose reasoning should be given careful consideration even when it does not directly apply to a matter before us.

Chadha held that a "legislative veto" provision in a federal statute was unconstitutional. The law in question gave the executive branch the power to grant "hardship exemptions" to immigrants who would otherwise be deported, but provided that no such exemption would be effective if either house of Congress passed a resolution disapproving it. The Court held this provision to violate two provisions of Article I, section 7 of the United States Constitution: the "presentment clauses, " under which all legislative acts must be submitted to the President for his signature or veto; and the bicameralism clause, which provide that no law can take effect without the concurrence of both houses of Congress.

Since A.S.C.A. § 37.2030 provides that both houses of 'the Fono must concur in order to disapprove a lease, this case does not give us occasion to consider whether the Court's analysis of the bicameral requirement of the United States Constitution also applies to the American Samoa Constitution. (1) Like the law struck down in Chadha, [4ASR2d88] however, the lease law in this case gives the legislature the power to bring about a certain result the ineffectiveness of a lease--- without the approval of the executive. If bringing about such a result constitutes "lawmaking" then it violates American Samoa's presentment clause, which provides that "no law shall be enacted except by bill," and that "every bill shall be presented to the Governor for his approval." Rev. Const'n of Am. Samoa art. II § 9.

The proponents of the legislative veto argue that the resolution of disapproval is not a "law." Rather, the "law" is made when the statute containing the legislative veto provision is enacted by the legislature. That law is presented to the executive, who then has a chance to sign or veto it. The resolution of disapproval is not itself a form of "lawmaking," but a subsequent condition on whose fulfilment or nonfulfillment the effects of a law will depend. It is not uncommon for laws to be enacted which delegate authority to the executive only on condition that something happen in the future. A law might delegate the President the power to impose wage and price controls if and only if the rate of inflation reaches a certain level, or to invade a country if and only if that country invades the United States. In such cases it is not the rate of inflation or the enemy generals who "make law, " even though some action of theirs is necessary to trigger the result contemplated by the law. In a law with a legislative veto provision, the delegation of authority is made dependent on the condition that a resolution of disapproval not be passed.

The United States Constitution contains a powerful answer to this argument. Such quibbling [4ASR2d89] about how a legislative action should be characterized was anticipated and dealt with by the framers of the Constitution. As the Court pointed out in Chadha,

Presentment to the President and the presidential veto were
considered so imperative that the draftsmen took special pains
to assure that these requirements could not be circumvented.
During the final debate on Art I, § 7, cl. 2, James Madison
expressed concern that it might easily be evaded by the simple
expedient of calling a proposed law a "resolution" or "vote"
rather than a "bill."... As a consequence, Art. I, § 7, cl. 3....
was added.

462 U.S. at 946-47. The second clause of Article I, section 7, provides only that every "Bill" passed by Congress shall be presented to the President. The third clause, inserted to meet Madison's concern, provides that every "Order, Resolution, or Vote" to which the concurrence of the House and Senate is necessary shall also be presented to him. Whether or not a resolution of disapproval constitutes "lawmaking," it is clearly an "order, resolution, or vote," and the failure to submit it to the President violates the federal constitution.

There is no corresponding provision in the American Samoa Constitution. Not only is the presentment clause of the territorial constitution limited to "bills, " but the very next section contemplates something called a "joint resolution" whose passage requires a majority of the members of both Houses but not the consent of the Governor. Rev. Const'n of Am. Samoa, art. II, § 10. In light of the requirement of article I, section 9, that no law shall be made except by "bill," it seems that our Constitution contemplates some legislative activity which is not "lawmaking" but which is important enough to require a constitutional majority of the legislature. Such activity might include resolutions disapproving executive actions.

The Court in Chadha did not, however, place its primary reliance on the language of the presentment clauses. Rather, it took the position that the "nature" of the action of the House in reversing the decision to let Chadha stay in the country "manifests its legislative character." 462 U.S. at 994. Since in deciding to reverse the [4ASR2d90] executive decision Congress would no doubt be motivated by the same sorts of policy considerations that influenced it to delegate the authority in the first place, the decisions are of the same kind.

Having decided that legislative vetoes were a form of lawmaking, the Court stressed the careful attention given by the framers of the United States Constitution to devising a system of "checks and balances" that would prevent the concentration of power in anyone branch of government. The Court conceded that "the 'sharing' with the Executive by Congress of its authority over aliens in this manner is, on its face, an appealing compromise." 462 U.S. at 958. It even recognized that the choice imposed on Congress if the legislative veto were unavailable ---to delegate to the executive irrevocable power to give exemptions from the immigration laws, or to delegate no power at all and consider a "private bill" for every single person requesting an exemption might "seem clumsy, inefficient, and unworkable." Id. at 959. Nevertheless,

it is crystal clear from the records of the Convention,
contemporaneous writings and debates, that the Framers
ranked other values higher than efficiency. The records
of the Convention and debates in the States preceding
ratification underscore the common desire to define and
limit the exercise of the newly created federal powers
affecting the states and the people. There is unmistakable
expression of a determination that legislation by the
national Congress be a step-by-step, deliberate and
deliberative process.

Id. at 958-59. The legislative veto provision therefore was held to violate the United States Constitution.

Our task is to determine whether these general policy concerns, which the Chadha Court found to underlie the presentment clauses of the federal constitution, are also dispositive in the interpretation of the somewhat different provisions of the American Samoa Constitution. This is [4ASR2d91] necessarily a speculative enterprise. (2) In the absence of. detailed legislative history, the language itself may be the best evidence available of the concerns that motivated its enactment. There are, however, other important differences between the two documents, many of them having to do with the fact that Samoa in 1966 was not Philadelphia in 1787.

Framers of all modern constitutions have been able to benefit not only from the ideas that generated the United States Constitution but also from the results of that experiment. Not all of these results are as the framers seem to have anticipated. It would be fatuous to describe the role of the modern executive branch as limited to the day to day execution of policies made by the legislature. In response to the bulk and complexity of the functions performed by the Twentieth Century state, the executive has come to exercise broad policy making authority. Similarly, from the very beginning the classic formula by which all legislation is supposed to be general and prospective has been riddled with exceptions. Congress often passes laws to require or forbid the construction or operation of particular highways, post offices, and dams. Indeed, the legislative veto that was struck down in Chadha as "inherently legislative" (because it involved policy making) might at least as easily have been struck down as "inherently executive" (since it involved an [4ASR2d92] attempt to enforce a policy in particular cases). (3)

A modern account of the separation of powers, rather than relying on inherent characteristics of actions to be performed by the executive and the legislature, should begin by acknowledging that the branch with immediate control' over most of the resources makes most of the policy. In most areas in which government has taken the field, the operating definition of executive authority is whatever has not been pretty clearly forbidden by the legislature. And the legislature, even if it is constantly in session, has time only to set the process in motion and to correct what it regards as the most egregious errors of its delegates. Defenders of the legislative veto insist, not without reason, that it is an important substitute for some of the checks and balances that did not turn out to be effective in preventing the concentration of power in the executive branch. By making it easier for the legislature to supervise the quasi-legislative activities of the executive, it reduces the likelihood that the executive will enforce policies actively opposed by those who were supposed to be the principal policy makers.

Whatever the abstract merit of this argument, Chadha held that it was foreclosed for the federal [4ASR2d93] government by the clear language of the Constitution and by the specific intentions of its framers. The American Samoa framers and ratifiers, however, not only wrote and enacted a different document but did so at a time when the legislative veto had become an established part of the governmental landscape. By 1983 there were over 200 federal statutory provisions of this type in areas including but not limited to national defense, international trade, energy regulation, historic preservation, and land management. Many of these provisions had been enacted prior to 1966. Although they had occasionally been criticized, mostly by members of the executive branch, each of the six Presidents who, had served between 1929 and 1966 had signed bills containing legislative veto provisions; the Justice Department under Presidents Roosevelt1 Kennedy, and Johnson had specifically defended their constitutionality. I.N.S. v. Chadha, 462 U.S. at 969 n.5 (White, J., dissenting), and sources cited therein. (4) Moreover, there is no record of any President ever having failed to honor a resolution of disapproval by Congress. In the absence of constitutional language clearly prohibiting such a device, it does not seem reasonable to attribute to a group of constitution makers in 1966 the intention of forbidding its use.

Moreover, there are differences between the federal government and that of American Samoa which suggest (contrary to the Court's analysis in Chadha of the federal system) that the legislative veto tends not toward the concentration of power within the territorial government but toward its diffusion. The Fono, which has practically no [4ASR2d94] staff and is in session only for a few weeks out of the year, seems far weaker in relation to American Samoa's executive branch (which in recent years has become the territory's largest employer) than Congress is in relation to the President. By the same token, prior to Chadha critics of the federal legislative veto argued that it facilitated policy making not by the whole legislature but by committees or even by committee staffs. In contrast, the individual members of a small legislature in a small place are far more likely to take an active interest in the resolutions brought before them. In matters of pressing current interest the Fono is nothing if not deliberative.

Perhaps the most important special circumstance in American Samoa, at least in the case of this particular legislative veto provision, is the special relationship that the Fono has always held to the preservation of Samoan customs and traditions, with particular regard to land. As it happens, the federal courts seem to be in the process of carving out an exception to the holding in Chadha, which would allow Congress to veto decisions of the Secretary of the Interior with regard to the disposition of public lands. See National Wildlife Federation v. Watt, 571 F. Supp. 1145, 1156-57 (D.D.C. 1983); cf. National Wildlife Federation v. Clark, 577 F. Supp. 825 (D.D.C. 1984); Pacific Legal Foundation v. Watt, 529 F. Supp. 982 (D. Mont. 1982). The distinction is based on the idea that in such cases Congress is acting in a "proprietary" rather than a strictly "legislative" capacity. The government defendants argue that these cases are irrelevant to this one, since the federal constitution specifically provides that Congress shall have the power to dispose of public lands. U.S. Const'n art. IV § 3. On the contrary, we believe the relationship of the Fono to land in American Samoa is at least as clearly established as that of Congress to public land in the United States.

Land is generally recognized, for reasons of culture and scarcity, as American Samoa's most precious commodity. Until the first elected Governor took office in 1978 the members of the Fono were the only native Samoan officials who had anything to say about its disposition, and they came to regard themselves as its peculiar guardians. This status is reflected in the third section of the Bill of Rights of the American Samoa Constitution, which makes it "the policy of the Government of American Samoa to protect persons of [4ASR2d95] Samoan ancestry against alienation of their lands and destruction of the Samoan way of life," authorizes "such legislation as may be necessary to protect the lands," and prohibits changes in laws regarding alienation of land without approval not only by the Governor but also by two-thirds of all the members of each house of two successive legislatures. Rev. Const'n of Am. Samoa, art. I § 3. The constitutional provisions for the election and qualifications of members of the Senate ---a Senator must be "a registered matai of a Samoan family who fulfills his obligations as required by Samoan custom," and is chosen "in accordance with Samoan custom" by county councils consisting of other matais also reflect and strengthen the traditional status of that body in ensuring "sober second thought" with regard to measures concerning land and culture.

The enactment of A.S.C.A. § 37.2030, the law providing for legislative veto of public land leases of ten years or more, was more or less simultaneous with the institution of elected governors. (5) It seems to have reflected a desire [4ASR2d96] that a lease of public land for a long period of time be regarded as an unusual event, of sufficient gravity to merit deliberation by the Fono as well as the participation of the Governor. This desire is consistent not only with the language of the territorial constitution but also with the spirit that informed it: the senior matai of a Samoan family is entitled to the same. sort of power and respect within the family that the Governor enjoys within the territory, and yet he should not make important decisions about land without consulting the whole family. (6) [4ASR2d97]

In light of all these circumstances, and also because the court has observed the general outcry that occurs against any measure (however harmless or salutary it might appear to the casual observer, and however attenuated its relationship to land law) that is even vaguely suspected of having a tendency to lead to the "Hawaiianization" of land in Samoa, we are unable to conclude that a representative group of Samoans who met twenty years ago intended to make it unconstitutional to require the submission of long-term public land leases to the Fono for deliberation and possible disapproval.

It is true, of course, that the same object could have been achieved simply by denying the executive the power to lease land for over ten years. An act of the legislature would thus be required whenever such a lease would be desired. If the language and history of the American Samoa Constitution were similar to those of the federal constitution, this would be the only permissible way to achieve the desired result. Since they are not, however, the legislature was free to give the Governor more authority without surrendering all authority. Under A.S.C.A. § 37.2030 the executive is free to enter into negotiations, which may be facilitated by the involvement of only a few people. Both the executive and the potential lessee understand that any contract they conclude is conditional ---but not upon the cumbersome and time-consuming process required for a change in the land laws. Rather, under A.S.C.A. § 37.2030 it is enough that the lease is sufficiently fair from the standpoint of the general community that both houses of the legislature do not rise up in arms against it.

A resolution of disapproval is not a "bill " and it is not a "law. " The law is A.S.C.A. § 37.2030, wherein the Governor and the legislature [4ASR2d98] agreed to the rules of the game with regard to disposal of public lands. These rules provide simply that the executive branch is not the only player. This arrangement does not violate the American Samoa Constitution (7).

II. "Joint" v. "Concurrent" Resolutions

The government contends that since A.S.C.A. § 37.2030 provides that legislative disapproval of leases shall be by "concurrent resolution," and since Article II, section 9, of the American Samoa Constitution requires that "no law shall be enacted except by bill," resolutions of disapproval must be purely rhetorical exercises that are not binding on [4ASR2d99] the executive. We have already rejected the assumption that in order to trigger a certain result, an activity of a legislature (or, for that matter, of an executive or a judge or a general) must constitute a "law." The law that binds the executive to honor resolutions of disapproval is A.S.C.A. § 37.2030, which was submitted as a "bill" and signed by the Governor.

A related problem is somewhat more troubling. Article 11, section 10 of the Constitution refers to bills and joint resolutions, but section 2030 refers to a third entity called a concurrent resolution. "Joint resolutions" and "concurrent resolutions" are used for different purposes by different legislatures. Although we have no evidence before us on this point, we take judicial notice of the fact that the Fono ordinarily proceed by concurrent resolution, requiring only a simple majority of the members actually voting in each house. We must also recognize the unfortunate practice of lifting whole statutes from the boolts of other jurisdictions with insufficient attention to whether their terminology meshes with related Provisions of American Samoan law. This may be just another instance, all too familiar to students of the American Samoa Code Annotated, of the rather sloppy use of different terms in related sections. Where the terms seem to be more or less interchangeable, the courts tend to read them in relation to each other. (8)

The American Samoa Constitution clearly contemplates that the Fono may do some things without the approval of the governor, by means of a "joint resolution." Rev. Const'n of Am. Samoa , art. 11 § 10. Since the consent of a majority of the members of each house is required for the [4ASR2d100] passage of such resolutions (id.), the effects they may have must include some important ones; one can h:irdly imagine constitution makers going to the trouble of requiring a majority of the total membership of both houses in order to commend a local sports team or thank the outgoing officers tor a job well done. If the Fono were to proceed a resolution of disapproval according to the provision of article II, section 10 requiring a majority of all the members in each house for joint resolutions, the fact that the statute would seem on its face to authorize the less rigorous procedures commonly used for a concurrent resolution would not render the resolution unconstitutional or non-binding. If, on the other hand, A.S.C.A. § 37.2030 was a deliberate attempt to authorize disapproval of leases by less than the constitutional majority required for joint resolutions, or if it is so construed in practice by the Fono, then it raises a difficult question: if such an important action can be taken without observing the requirements of article II, section 10, then to what legislative actions does the constitutional requirement apply?

For the purposes of the present motion we need not decide this question. If at some time in the future the Governor submits a proposed lease to the Fono, and the Fono rejects the lease under procedures requiring less than a majority of the entire membership of each house, then the Court might have to decide whether article II, section 10, has been violated. If the Fono chooses instead to require a majority vote of the entire membership of each house ---construing article II, section 10, to apply to all resolutions which have any legal effects, as opposed to resolutions that merely express an opinion ---then the question may never come before the court.

III. Laches

Finally, the government defendants urge that the plaintiffs are barred from attacking the particular leases at issue in this case because of laches ---that is, because they waited too long to bring their claim. This contention has merit. The former Governor stopped submitting leases to the Fono in 1984, perhaps even earlier, There was nothing secretive about the Governor's action, and nothing that showed contempt for the law: he was acting on the basis of an official legal opinion of the Attorney General which had some support in a decision of the United States Supreme Court on a [4ASR2d101] related question. If plaintiffs had brought an action for injunctive and declaratory relief in 1984, and if they had been successful, they would have prevented the conclusion of most of the leases they now attack. They would have stopped all construction and other operations on the land affected by the remaining leases. Instead they took no action until sometime after October 1985, when one of the plaintiffs introduced a resolution in the House of Representatives that threatened to file suit if the Governor entered into any future leases without submitting them to the legislature. The resolution did not pass. Its effect was to send a message to the executive branch and to lessees that it was probably all right to proceed with leases, and that in any case the leases already signed were certainly safe. Accordingly, we hold that the plaintiffs waived their right to object to any leases signed before they filed suit in June of 1986.

Conclusion

The motion is denied insofar as it applies to plaintiffs' demand for declaratory relief and other relief concerning leases signed after suit was filed.

The motion to dismiss is granted insofar as it applies to plaintiffs' demands for invalidation of the particular leases signed before their suit was filed.

**********

1. Another issue raised by the immigration law considered in Chadha, which was important to the circuit court and also to Justice Powell but not to the Supreme Court majority, was that the legislative veto provision might constitute a legislative usurpation of the authority of the judiciary. Whether an immigrant will face hardship if deported is the sort of issue that might be appealed to a court if it were not appealable to Congress. 462 U.S. at 959-67 (Powell, J., concurring); Chadha v. I.N.S., 634 F.2d 408 (1980). Since the issues likely to arise in considering the approval or disapproval of a land lease -- having overwhelmingly to do with such things as the scarcity of land, the desirability of the proposed use, and the fairness of the price -- are not legal questions in which a court would ordinarily become involved, this issue is irrelevant to the case before us.

2. It is rendered even more speculative by the fact that in 1966, when the American Samoa Constitution was adopted, the Governor was appointed by the Secretary of the Interior and had broader powers (of appointment, for instance) vis a vis the legislature than elected governors have had since 1978. It can be argued that the test of a law's constitutionality under the separation of powers provisions of the 1966 constitution is whether those who enacted it would have wished to prohibit such a law if they had anticipated the institution of an elected Governor. A better test may be to examine the understanding that prevailed in 1978 about how the 1966 Constitution was to be adapted to deal with the new constitutional arrangement. See note 5, infra.

3. See the discussion of this question by Judge Kennedy in Chadha v. I.N.S., 634 F.2d at 431-32. The government defendants in this case do argue that the legislative veto invades inherently executive functions. They cite the United States Supreme Court's opinion in Bowsher v. Synar, No. 85-1377 (decided July 7, 1986), holding the Gramm-Rudman-Hollings Budget Control Act unconstitutional insofar as its enforcement was committed to an officer removable by Congress rather than by the President. The facts of Bowsher are quite different from those in this case, and the Court's analysis of the general concerns underlying the separation of powers within the federal government relies heavily on the analysis in Chadha. We do not believe, therefore, that Bowsher adds anything to the defendants' case that is not already supplied by Chadha. For the reasons discussed in the text, final approval or disapproval of government land leases in American Samoa is not an "inherently executive" function.

4. The 1966 Constitution was "ratified and approved" by President Johnson's Secretary of the Interior after having been approved by a Constitutional Convention in American Samoa and by a majority of the voters in the 1966 territorial election. Rev. Const'n of Am. Samoa, Preamble. If the Johnson Administration believed legislative veto provisions to be constitutional even under the highly restrictive language of the United States Constitution, it hardly seems appropriate to impute to the same Administration the intention or understanding that the American Samoa Constitution would prohibit such provisions.

5. It is important to recognize that the institution of the elected Governorship was itself perhaps the most important constitutional event in the history of American Samoa. It brought with it some changes that are clearly of a constitutional nature although they are contained not in the Constitution itself but in the statutes. For instance, in 1978 A.S.C.A. § 4.0112 was amended to provide for confirmation of department heads by the Fono. The constitutional provision which had been in effect when governors were appointed by the Secretary of the Interior, under which the Governor had apparently unrestricted power to appoint such officials, was not amended and remains part of the Constitution. Rev. Const'n of Am. Samoa art. IV § 11. Despite the surface tension between the statute and the pre-existing constitutional provision, the arrangement made in 1978 has been respected. The constitutional provision referring to the governor's appointive power contains an exception for "officials whose appointment is otherwise provided for," but it is not at all clear that this refers to provisions in ordinary statutes. Rev. Const'n of Am. Samoa art. IV sec. 12. Rather, the statute seems to have been respected because it was understood by everyone that constitutional provisions enacted prior to 1978 must be construed to acknowledge and reinforce, rather than to defeat or distort, the new constitutional arrangement made in 1978. The law being challenged in this case was adopted by the same legislature and Governor who provided for confirmation of executive appointees, as part of the same arrangement for the sharing of power under the new regime.

6. Cf. National Wildlife Federation v. Watt, supra, 571 F. Supp. at 1157:

[I]t is common historical knowledge that in the years before
the Constitution was adopted (and for many years thereafter)
Congress was in session for only brief periods and in recess
for many months at a time. Public lands were matters of even
greater public and political interest than they are now. It is not
inconceivable that courts will decide from the text and context
of Article IV, Section 3, that its Framers contemplated that
Congress' proprietary power to "dispose of" public lands
included the power to dispose of public land to the Executive
as a trustee.... subject to an express and narrow condition that
a specified Committee of Congress could....suspend that
delegation.

The language of Article IV, however, contains no suggestion of an exemption from the strict provisions of the federal presentment clauses. Moreover, the contextual circumstances cited by the court in Watt apply with far greater force in American Samoa than in the continental United States. Even if the reasoning in Chadha applied to the American Samoa Constitution, therefore, the legislative veto of land leases would seem to be wi thin the "public lands exception" suggested by Watt.

7. If we had decided that the provision did violate the Constitution, we would then have to decide whether to strike down the whole statute or just the condition that leases be presented to the Fono for possible disapproval. This is a question of legislative intent: If the Fono and the Governor had known in 1978 that the legislative veto provision was unavailable, would they have decided to give the Governor the absolute right to lease public lands for more than ten years, or to deny him such a right altogether? Although this question depends on evidence not before Us--including the state of the law prior to 1978 and the specific evidence, if any, of legislative intent at the time the section was passed ---our initial reaction is that it is unlikely the Fono would have agreed to give the Governor absolute power. A.S.C.A. § 1.0109, providing that the unconstitutionality of one provision does not affect the validity of other provisions, is not to the contrary, for the general purpose of the lease law is to limit executive authority, and the remainder of the section can be given effect simply by omitting the legislative veto clause. It would then read simply, "No lease of real property owned or controlled by the government which extends for a period of 10 years may be effective." If, therefore, we found the legislative veto were unconstitutional, we might have to conclude that the Governor had no authority to lease land for ten years or more.

8. For instance, a section of the criminal statutes entitled "Culpable mental state---Definition" provides definitions of the terms "purposely," "knowingly," and "recklessly." A.S.C.A. § 46.3202. The second degree murder statute uses the last two terms, but for no apparent reason uses "intentionally" in the place where one might expect to find "purposely." A.S.C.A. § 46.3503. Rather than declare the murder law unconstitutional or "non-binding, " however, we have treated "intentionally" as the equivalent of "purposely."

Amituana'i; Tuileata v.


TUILEATA MU MANUMALEUGA, Plaintiff

v.

AMITUANA'I N. IOSEFA, TUIOLEMOTU
FA'AOPEGA, MISILAGI TI'A, and
TAUAMO FE'A, Defendants

TUIOLEMOTU FA'AOPEGA, Plaintiff

v.

MU TUILEATA, MISILAGI TI'A, and
TAUAMO FE'A, Defendants

LUPELELE LETULIGASENOA, Intervenor

High Court of American Samoa
Land and Titles Division

LT No. 48-84
LT No. 27-86

May 22, 1987

__________

Party claiming ownership of disputed tract could not establish acquisition of title through adverse possession with evidence that he alone received economic proceeds of tract, since close relatives of previous owner still inhabited tract and claimant occasionally acquiesced to references to tract as possession of previous owner.

Claimant family judicially determined to be communal owners of disputed tract could not banish other claimant who had long been assigned use of it without the extensive consultation and just compensation which are an essential part of the relationship between sa'o and members" of his family.

Before REES, Chief Justice, and TAUANU'U, Chief Associate Judge.

Counsel: For Plaintiff Tuileata, Albert Mailo
For Defendant Tuiolemotu, Aitofele Sagapolutele
For Defendant Amituana'i, Aviata Fa'alevao [4ASR2d169]
For Defendant Ti'a, Charles Ala'ilima
For Defendant Fe'a, Tuia Tuana'itau
For Intervenor, Meauta Mageo

Olovalu is a tract of land in Malaeloa. For at least eighty years the title to it has been theoretically unresolved, although in fact several families have lived together more or less peacefully. In 1907 the ancestors of most of the present parties joined in an action to assert the claims of their families to 'the land called Olovalu. Amituanai et al. v. Uo, #18-1907. The defendant in the 1907 case, Uo Sopo'aga, was apparently a famous land-grabber from Leone who had registered Olovalu at the territorial registrar's office along with substantial parts of neighboring Pava'ia'i, Futiga, and Ili'ili. When the case was finally heard in 1911, Chief, Justice Dwyer gave judgment for the plaintiffs and advised them "to distribute the land amongst themselves." This they may have done, but there is no record that they told the court or the territorial registrar about it.

The absence of official boundaries did not matter until the early 1980s when plaintiff Tuileata returned from a long period overseas, claimed the Tuileata title which had been vacant for about thirty years, surveyed nearly the whole of Olovalu along with parts of adjoining tracts, and registered it all as Tuileata land. This registration caused a chain reaction resulting in the assertion by almost everyone in the neighborhood of a boundary dispute with almost everyone else.

The Tuileata survey is almost as ambitious as the one made in 1906 by the hapless Uo. It encroaches on land that has long been occupied by everyone else, and has had the effect of uniting the other families in a desire to rid the neighborhood of Tuileata.

From the testimony at trial and from the maps and surveys presented by the parties, we conclude as follows:

1) The boundaries of Olovalu are defined by the Amituana'i and Tuiolemotu surveys, with the exception of a small portion in the southeast corner (in and around the cinder pit) that is claimed by Amituana'i, Tuiolemotu', Tuileata, Ti'a, and Ms. Letuligasenoa. Since Amituana'i, [4ASR2d170]Tuiolemotu, and Ti'a have asked the court to let them reach an agreement regarding the boundaries of this land, and since Letuligasenoa's pleadings and testimony amount only to a general plea not to let anyone take her land, we express no opinion on the overlapping parts of these parties' claims.

2) We also make no finding with regard to ownership of the area covered by the "Tuia'ana survey." It is clear that this was once owned by Tuia'ana, who also held the title Letuli. It is not clear from the evidence before us whether it was Letuli family property or the .individual property of Tuia'ana. Ti'a originally came on the land as a guest or relative of Tuia'ana, and would seem to have no claim to it at all except by adverse possession. The evidence he submitted--that he alone received the economic proceeds of the property, although close relatives. of the late Tuia'ana continue to live on it and although at some times in the past he acquiesced in references to it as Tuia'ana land "out of respect for Tuia'ana" -- would not be enough to establish adverse possession if the issue were before us. See Sialega v. Taito, LT # 18-85 (opinion rendered July 22, 1986). Since the Letuli family is not a party to this litigation, however, and since Lupelele Letuligasenoa appeared only to prevent Ti'a or anyone else from securing title to what she regards as her land, we reach no decision on this question.

3) With the exception mentioned above, the Amituana'i family owns the land included in its survey.

4) With the same exception, the Tuiolemotu family owns all the land that is included in its survey and not by the Fe'a survey.

5) The only part of Olovalu established by a preponderance of the evidence to belong to the Tuileata family is that occupied by the plantations of Fe'a. At trial Fe'a claimed that this was his individual land, inherited from his father who first cleared it from virgin bush along with other young men from Ili'ili. The evidence establishes, however, that the land owned by people from Ili'ili (including the Letuli or Tuia'ana land) is to the south and southeast of Olovalu, whereas the survey of Fe'a encompasses land entirely within the boundaries of Olovalu (as surveyed in 1906 and as resurveyed recently). We also take judicial notice of the proceedings in Tuileata v. Talivaa, #[4ASR2d171] 2-1956, in which it is made reasonably clear that Fe'a's father was occupying Tuileata family land on account of his marriage to a daughter of Tuileata (the mother of the present Fe'a).

We therefore hold that the land within Fe'a's survey that is also within the Tuiolemotu survey is communal land of the Tuileata family. It has, however, long been assigned to the use of Fe'a and his immediate family, who could not be deprived of it without the extensive consultation and just compensation that are an essential part of the relationship between a sa'o and the members of his family. See Talili v. Satele, LT # 18-86 (decision rendered February 20, 1987), and cases cited therein.

We express no opinion on who owns the western portion of the land surveyed by Fe'a, beyond the boundary of the Tuiolemotu survey.

With the exceptions noted above, the Amituana'i and Tuiolemotu families may register their surveys and the Tuileata family may register the Fe'a survey.

It is so ordered.

**********

American Samoa Power Auth.; Pene v.


SEIGAFOLAVA R. PENE,
aka ROBERT S. PENE, Plaintiff

v.

AMERICAN SAMOA POWER AUTHORITY,
ABE MALAE, Director, and VICTOR STANLEY,
Business & Finance Manager, Defendants.

High Court of American Samoa
Trial Division

CA No. 45-87

May 21, 1987

__________

Insufficient pleadings are properly attacked by motion to dismiss for failure to state a claim rather than with motion for summary judgment. T.C.R.C.P. Rule 12 (b)(6), Rule 56.

Court may treat a motion for summary judgment as a motion to dismiss for failure to state a claim when moving papers, though improperly styled, clearly state the latter. T.C.R.C.P. Rule 56, Rule 12(b)(6) .

Court may invoke T.C.R.C.P. Rule 12(b)(6) on its own motion.

A complaint sufficient to state a claim upon which relief can be granted must describe the alleged injury and set forth a basis for imposing liability on defendant; conclusory allegations will not suffice.

Court may, in its discretion, dismiss without prejudice a complaint that fails to state a claim upon which relief can be granted. T.C.R.C.P. Rule 12(b)(6).

Before KRUSE, Associate Justice.

Counsel: For Plaintiffs, Seigafolava R. Pene Pro Se
For Defendants, Enere H. Levi, Assistant Attorney General

Defendants move for summary judgment on the basis of defective pleadings. We agree that the[4ASR2d153] plaintiff's pleadings are patently insufficient, but disagree that a T.C.R.C.P. Rule 56 motion for summary judgment is the proper device for punishing incoherent or unskillful pleading. Soley v. Star & Herald Co., 390 F.2d 364 (5th Cir. 1968); Season-All Industries Inc. v. Turkiye Sise Ve Cam Fabrikalari A.S., 425 F.2d 34 (3d Cir. 1970).

The motion would be more appropriately a T.C.R.C.P. Rule 12(b) motion to dismiss, and the fact that defendants have labeled the motion as one for summary judgment does not preclude the court from treating it as 12(b) motion when such an intent is clear from the moving papers. Williams v. Bridgestone Tire Co., 84 F.R.D, 19 (E.D. Tenn. 1979). In this matter, we are confronted with a pro se complaint seriously wanting in the minimal requirements of T.C.R.C.P. Rule 8 and defendants' motion essentially speaks to the complaint's failure to sufficiently state causes for which relief may be granted. In any event the court may invoke T.C.R.C.P. Rule 12b(6) on its own motion. Dodd v. Spokane County, 393 F.2d 330 (9th Cir. 1968); Gilland v. Hydes, 278 F. Supp. 189 (E.D. Tenn. 1967), and we do so in this matter primarily for the Court's understanding of the issues.

As far as the Court can gather from the complaint and the myriad exhibits filed by the plaintiff, the lawsuit originated after defendant ASPA disconnected or threatened to disconnect plaintiff's electricity because of the latter's alleged failure to settle a past account. Plaintiff in the course of the account dispute interposed an offset, claiming retroactively that ASPA ought to pay rent monies for past use of certain communal lands in Ofu, to which plaintiff claims an interest. Settlement negotiations, to plaintiff's despair, did not meet with his expectations and a suit arose. Inasmuch as we can gather on the pleadings, the complaint purports to be fourfold: an action for damaged office machines owing to power failures and surges; an action for damages for termination of plaintiff's electricity without supplying him ten day notice; an action for damages for alleged libel to his character when defendant Stanley, by letter to plaintiff, doubted the latter's credit standing; and finally, a demand or prayer for rent without an explanation why plaintiff feels he is entitled to such rent.

As to the damaged machines claim, the complaint sets out "how" , but not "when " the alleged damage occurred for meaningful responsive [4ASR2d154] pleading, nor "why" plaintiff would be entitled to the relief sought.

On the libel action, plaintiff alludes to his name being damaged and references by incorporation a letter from defendant Stanley dated February 7, 1987, addressed to plaintiff. No publication is alleged. The offending language, in plaintiff's mind, is as follows: "However, I could discuss your credit rating with ASPA and it does not look good". This is essentially the basis for relief, although the complaint meanders on about "unethical practices contrary to courtesy and acceptable business practices," Complaint at 5, 1.2 et. seq., and reproduces verbatim the defamation enactment, A.S.C.A. § 43.5201. Conclusionary allegations may not be considered to support a claim for relief.

Plaintiff's claim for wrongful termination of electrical service is even more illusory. Plaintiff alleges a due process violation by defendants in failing to give him the ten-day statutory notice to cure, provided, presumably, under A.S.C.A. § 15.0202. On the other hand, his own complaint says otherwise.

Given the standard applicable in these motions to favorably view a pleading under Rule 12(b) attack, the referenced February 7, 1987 letter of defendant Stanley, incorporated by reference in the complaint, not only reminds plaintiff of a ten-day notice sent the, day before but is itself notice sufficient to overcome any due process deficiencies, if indeed a due process claim is contextual.

The complaint. will be dismissed, however, the court will exercise its discretion in favor of a dismissal without prejudice. See Munz v. Par, 758 F.2d 1254 (8th Cir. 1985).

Plaintiff will have ten days to refile a complaint outlining a recognized legal or equitable claim which sufficiently pinpoints the time, the place, and circumstances of the alleged occurrence. The plaintiff is also directed to desist from cluttering the record with meaningless exhibits such as the attached, which is on file.

So ORDERED.

**********

ATTACHMENT

American Samoa Gov’t v. Uo,


AMERICAN SAMOA GOVERNMENT

v.

SALE UO

High Court of American Samoa
Trial Division

CR No. 62-86

February 19, 1987

__________

When opinion of witness is admitted into evidence, court need not accept opinion as fact but must give it the weight to which the court believes it is entitled.

Police officer's uncontroverted testimony that speed limit sign had been posted because the road was near a school did not bind the court to find that the posted limit applied only during school hours.

Burden of proof beyond a reasonable doubt in criminal cases does not prohibit trier of fact from drawing inferences from the evidence.

"Proximate cause" within the meaning of homicide by vehicle statute is proven if the traffic regulation violated by the defendant was designed to prevent the sort of harm that actually occurred and the violation was a substantial factor in bringing about the accident. A.S.C.A. § 22.0706.

Before REES, Chief Justice, and OLO, Associate Judge.

Counsel: For Government, William Wallace
For Defendant, Charles Ala'ilima

The defendant was convicted of homicide by vehicle and now moves for a reconsideration of the judgment.

The statute defining the crime of homicide by vehicle, A.S.C.A. § 22.0706, prescribes three elements. It must be proved that the defendant violated a traffic law, that someone died, and that the violation of law was the "proximate cause" of [4ASR2d15] the death. In this case the two judges found that the defendant was exceeding the posted speed limit, that her vehicle struck and killed Aitofi Tusani, and that the defendant's excessive speed was the proximate cause of the death.

The defendant contends that none of the three elements was proved beyond a reasonable doubt at trial. Instead, defendant argues, the court made three inferences not supported by the evidence.

First, the defendant contends that the court was bound to find from the evidence that the speed limit was thirty miles an hour rather than twenty miles an hour, and therefore that the defendant was not speeding. This contention is based on defense counsel's cross-examination of the police officer who investigated the accident. The officer had testified that the posted speed limit where the accident occurred is twenty miles per hour. Defense counsel asked the officer if that was because this stretch of road is near the Community College, and the officer answered affirmatively. Defense counsel then asked the officer whether school was in session at the time of the accident. The officer said it was not. Since A.S.C.A. § 22.0323 establishes a thirty mile per hour limit except where otherwise posted, defense counsel urged the court to regard the speed limit as thirty miles per hour at the time of the accident. The court, however, concluded that the posted limit of twenty miles per hour was in effect at all times, and observed that in any event judicial notice could be taken of the fact that classes at the Community College are not confined to the hours kept by elementary and secondary schools. (1) [4ASR2d16]

Whether the speed limit was twenty or thirty miles per hour is a question of law. The only relevant fact in evidence was that a sign near the scene of the accident announced a twenty mile per hour limit. If the prosecution had objected to the introduction of the police officer's opinion of why the Commissioner of Public Safety had posted the sign, the objection might well have been sustained. When the opinion of a person who has not been qualified as an expert is introduced without objection, the court is not bound to accept the opinion as fact but must give it the weight to which the court believes it is entitled. Moreover, even if the court were to agree with the officer's opinion of the Commissioner's motives in causing the sign to be posted, the legal effect of such posting was to establish a twenty mile per hour limit at all times. See A.S.C.A. § 22.0323(b). Thus the observation from the bench to which the defendant now particularly objects, to the effect that a court on a small island can take judicial notice of the business hours of an important governmental institution on the same island, was not necessary to the holding that the speed limit was twenty miles per hour.

The defendant also urges reconsideration of the finding that excessive speed was the proximate cause of the victim's death. Defense counsel correctly characterizes as "speculation" the court's statement from the bench that the accident. could have been avoided if the defendant had been observing the twenty mile per hour speed limit. [4ASR2d17] Defense counsel further asserts that "the speed of the vehicle would be immaterial if, as the evidence suggests, the injury was caused by the act of braking the vehicle and the deceased falling off the braking vehicle and striking her head." Defendant's memorandum at 4.

The concept of "proximate cause" is not an easy one to describe or to apply. Some traditional formulations suggest that the determination is a metaphysical one, amounting to the selection from among the many factors that led up to an event the one that "really" or "actively" caused it. Later formulations have tended to characterize the determination as a value judgment, selecting from among many factual causes the most. culpable or socially undesirable. Indeed, the term has long fallen into disfavor with legal scholars on the ground, among others, that it tends to confuse values with facts and thereby to allow judges to make determinations that should have been made by juries and vice versa. See generally W. Prosser & P. Keeton, The Law of Torts 272-80 (5th ed. 1984). Since the term is explicitly contained in A.S.C.A. § 22.0706, however, we must do the best we can with it. In this case the problem is perhaps simplified by the absence of a jury, leaving the judges to make both the factual and the legal conclusions comprehended within the concept of proximate cause; but it is also complicated somewhat by the criminal nature of the proceeding, which dictates that the facts must be proved beyond a reasonable doubt.

There is no way to know for sure what would have happened if the defendant had been observing the speed limit. A trier of fact, however, must not insist on proof to a scientific certainty of any element in a case, least of all an element that necessarily rests on what counsel for the defense calls "speculation." If triers of fact charged with deciding what "proximately caused" an event were absolutely forbidden to draw inferences from the record evidence, based partly on their own experience of human nature and of the physical laws of the universe, then no one would ever be convicted under the homicide by vehicle statute or any similar law. (1) But this is not the test. [4ASR2d18]

Rather, we hold that the element of proximate causation comprehends two inquiries: the court must be satisfied as a matter of law that the traffic regulation which the defendant violated was intended to prevent the sort of harm that actually occurred; and the trier of fact must be satisfied beyond a reasonable doubt that the violation was a substantial factor in bringing about the accident.

The focus in each of these inquiries is not on what might have happened if things had been different, but on the relationship between the violation and the event that actually did happen. If, for instance, the defendant's violation of the law had consisted solely in not having brake lights or in having left her driver's license at home, then the violation would not have been a substantial contributing factor in the death. Speeding, on the other hand, is forbidden precisely because speeding cars tend to kill people in just the way Aitofi Tusani was killed. The law designates an authority to establish for each part of the highway a speed beyond which the likelihood of accidents is deemed unacceptably high. In this case defendant was exceeding this limit by a factor of somewhere between 25 and 125 per cent. Two girls were walking across the road to catch a bus that had stopped for them. The defendant's car hit one of the girls, who was then carried on the hood for some distance before falling to the pavement. She died a few days later, never having regained consciousness. In our capacity as judges of the law, we would regard it as a usurpation to deny the trier of fact the right to conclude from such evidence that the speeding proximately caused the victim's death. And in our capacity as triers of fact, we are morally certain that it did.

Defendant maintains that the girl entered the roadway with insufficient attention to traffic conditions and that this rendered the accident inevitable regardless of defendant's speed. If the evidence suggested that the girl had suddenly darted into the road, most formulations of the proximate cause standard would treat the victim's [4ASR2d19] act as a "supervening cause" that would prevent the defendant's violation of law from having been the proximate cause of the injury. (2) On the basis of the evidence, however, we are convinced beyond a reasonable doubt that Aitofi was walking rather than running and was well into the roadway by the time she was hit. Indeed, between the time Aitofi had entered the roadway and the time of the accident a second girl who was walking a few feet behind her had also entered the roadway. Any minimally competent driver who was observing the twenty mile speed limit and whose eyes were on the road would have been able to stop in time to avoid the accident. Since there is no evidence that the defendant was not keeping her eyes on the road, (3) we conclude that speed was the proximate cause of the accident. [4ASR2d20]

As for defendant's suggestion that the victim died when her head struck the pavement and that such an injury might just as well have been fatal if the defendant's initial speed had been twenty miles per hour as if it had been twenty-seven or forty-five, it illustrates the difficulties of analyzing situations other than the one that actually happened. For the reasons we have discussed, however, we reject the assumption that the victim would have been trapped on the hood of the moving car in the first place if defendant had been observing the speed limit.

The defendant's final contention is that there was insufficient evidence from which to conclude beyond a reasonable doubt that the injury actually caused the victim's death. Defense counsel points out that no autopsy was done, and suggests that the victim might have been suffering from a tumor. No evidence was introduced, however, to give even the vaguest support to any such alternative hypothesis. When a head injury is followed immediately by a coma and soon thereafter by death, and when there is no evidence whatever that anything else was wrong with the deceased, triers of fact invariably conclude that he died from the injury. In this case the conclusion was bolstered by the uncontested expert testimony of the attending physician. It is immaterial that something else might have been done to make the diagnosis even more certain.

The motion for reconsideration is denied.

**********

1. The court further concluded, in accordance with the testimony of all witnesses including the defendant herself, that the defendant had been traveling between twenty-five and forty-five miles per hour at the time of the accident. If the court had accepted the defendant's view that the speed limit was thirty miles per hour except when classes at the Community College were in session, it would have been necessary to make a more precise finding with regard to the speed of the vehicle. The defendant herself testified that she was proceeding at twenty-seven miles per hour just before she struck the victim. The somewhat complicated testimony of the other witness offered by the defense suggests a speed of about thirty-five miles per hour. The circumstantial evidence and the testimony f of the two prosecution witnesses suggest a t somewhat higher rate of speed. Since the court found a traffic violation that proximately caused the victim's death even on the defendant's own relatively low estimate of her speed, a more precise finding was unnecessary.
The principal factual dispute between the prosecution and the defense was not about speed but about whether the defendant was attempting illegally to pass one or more cars that had stopped to let the victim and her sister cross the road. The court found that this had not been proved beyond a reasonable doubt.

1. Ironically, the defendant's proposed substitute for the drawing of such inferences by the court is that the court should accept similar inferences drawn by the defendant's witnesses as though they were uncontroverted facts. See Defendant's Memorandum at 3 ("The court is engaging in speculation and its conclusion is not supported by the evidence presented. Defendant and her witness John Kane both testified that the accident would have occurred had the car been going twenty miles an hour.").

2. Defense counsel seems to argue not just that defendant's speeding was not the proximate cause of the victim's death, but that it was not a cause of the death at all. This, however, is almost certainly untrue, since a lower speed sustained even for a few seconds would have delivered the defendant to the point of impact at a moment when the victim had already passed. For that matter, an even higher speed would have caused the car to reach the scene before the victim did. Thus the question is not whether the trier of fact may conclude that the defendant's speed was a "cause in fact," but whether her violation of the speeding law, from among the many causes that led in fact to the accident, is the one to which the law should attribute the consequences.
If we were at all inclined to believe that the victim had darted precipitously into the road, we would acquit the defendant not because she was not negligent and not because her speed was not a cause of the accident, but because the victim's action ---an action of a kind that is at least as likely as excessive speed to create a grave risk of the type of harm that occurred here ---would prevent the defendant's action from being the legal or "proximate" cause.

3. Nor, in any case, could the defendant be exonerated from the legal effects of her violation of the law on the ground that she also committed some other sort of negligence that would have caused the accident anyway.

Judicial Memorandum No. 2-87;


JUDICIAL MEMORANDUM No. 2-87

High Court of American Samoa

June 18, 1987

__________

Statutory period for filing a motion for a new trial commences with the announcement of judgment. A.S.C.A. § 43.0802.

An order or judgment is entered for all purposes on the date any judicial writing is filed or any pronouncement made from the bench. High Court Rule 23.

The Clerk of Court will file a written entry of any judgment announced from the bench; the failure of the Clerk to do so, however, does not prevent the statutory period for filing motions for new trial from commencing with the announcement of judgment by the court. A.S.C.A. § 43.0802.

Events subsequent to the announcement of judgment, such as the issuance of a written opinion, receipt by counsel of notice of the judgment, or the correction of an error or omission in the judgment, do not extend the time for filing motions for new trial.

A correction so substantial as to create a new judgment, or a statement from the bench indicating informally what the judgment will be but reserving formal announcement of judgment until a later date, would cause the statutory period for foiling motions for new trial to begin on the date of the correction or of the formal announcement rather than on the date of the initial announcement.

Counsel uncertain of the date by which motion for new trial must be filed should request the court's guidance rather than assume the filing date has been extended.

A motion for new trial should be sufficiently thorough and specific to inform the court and opposing counsel of the particular grounds for the requested relief. T.C.R.C.P. Rule 7(b)(1).

REES, Chief Justice, and KRUSE, Associate Justice: [4ASR2d173]

In recent weeks the Court has been presented with three motions for new trial that were filed more than ten days after the announcement of judgment. In two cases the attorney argued that the filing of papers by the Court subsequent to the announcement of judgment extended the time during which a motion for new trial could be filed. In the third case the attorney stated that he did not receive a copy of the judgment in his court box until several days after it had been filed by the Clerk.

In all three of these cases the trial judge considered the motion for new trial on its merits over the objections of opposing counsel, since in each case counsel for the moving party had a plausible argument that the ten day period for filing the motion might have begun with some later event than the initial announcement of judgment. Obviously, these rulings are subject to review by the Appellate Division.

For guidance in future cases we call your attention to the following points and authorities:

1) Motions for new trial "shall be filed within 10 days after the announcement of judgment....". A.S.C.A. § 43.0802 (emphasis added).

2) Al though a judgment is not "effective" unless it is reduced to writing (TCRCP Rule 58), it may be "pronounced" either in writing or from the bench, and "the date of the entry of the order or judgment for all purposes is the filing date of any papers or the date of the pronouncement from the bench." High Court Rule 23.

3) The common practice during the last few years has been for the judge to sign a written judgment prepared by the prevailing attorney. We are willing to sign such documents whenever attorneys think they would be useful; both of us, however, have great difficulty construing the word "announcement" in A.S.C.A. § 43.0802 to mean any event subsequent to the initial announcement of a judgment.

In an effort to avoid the confusion that can result when the written entry of judgment bears a different date than the pronouncement from the bench, we have instructed the Clerk to file a written entry of every judgment announced from the bench. Such an entry should be made on the same day as the judgment is announced. (If in any case [4ASR2d174] the Clerk should fail to make such an entry, however, A.S.C.A. § 43.0802 would still seem to provide that the statutory period for filing motions for new trial begins with the announcement of judgment.)

4) Once a judgment has. been "announced, " subsequent events -- such as the reduction of an oral opinion to writing, the receipt by counsel of notice of the judgment, or a correction of an error or omission in the opinion or judgment -- do extend the time for filing motions for new trial. See T.C.R.C.P. Rule 60(a), which provides that the trial judge may correct "clerical errors.... and errors..... arising from oversight or omission" at any time prior to the docketing of an appeal, and even afterward with the consent of a judge of the appellate division. See also Fai'ivae v. Aumavae, AP No.2-76, holding that the trial court has no authority to accept a motion filed .later than ten days after announcement of judgment ---and that the Appellate Division therefore has no jurisdiction to entertain an appeal in such a case ---regardless of any arguments, equitable or otherwise, to the contrary. (1)

5) Obviously, it is possible to imagine corrections so substantial that they would amount to the announcement of a new judgment. In such a case the Court would presumably announce that it was amending its judgment pursuant to Rule 59(d) rather than merely correcting clerical errors, omissions, or oversights pursuant to Rule 60(a). In this case the time for filing motions for new trial would begin anew. Similarly, when a judge announces at the conclusion of a trial that he will issue a written opinion, findings of fact, and/or conclusions of law at a later date rather than announce his findings and conclusions from the [4ASR2d175] bench, he may also wish to delay the formal announcement of judgment in order to give the attorneys the full ten days to review his written opinion prior to filing any post-trial motion.

6) An attorney who is in doubt about the date on which a motion must be filed would be well advised to ask the Court for immediate guidance rather than to assume that the period has been extended.

7) Finally, T.C.R.C.P. Rule 7(b)(1) requires that every motion "shall state with particularity the grounds therefor." This is especially important in the case of a motion for a new trial, since the purpose of requiring such a motion before an appeal is to avoid unnecessary appeals by giving the trial judge a chance to see the error of his ways. Although a motion for new trial will obviously not be as well researched as the appeal which may follow, it should put the trial judge and the opposing party on fair notice of the particular errors that will be alleged in the appeal.

**********



1. In Fai'ivae Justice O'Connor equated "announcement" with the docketing of a judgment by the clerk. He did so in response to an argument that the ten day period might begin at some later point, such as the delivery to counsel of formal notice of the judgment. His opinion did not address the situation in which judgment is pronounced orally from the bench. In such a case, for the reasons we have stated, the statute clearly requires us to count the period from the date of the initial pronouncement rather than of the docketing or any later event.

Foma'i v. Samana,


THERESA FOMA'I, Plaintiff

v.

CHRISTINA SAMANA, MOAALI'ITELE K. TUUFULI dba
MALAMAMAISAUA CAR RENTAL, and AMERICAN
INTERNATIONAL UNDERWRITERS, Defendants

High Court of American Samoa
Trial Division

CA No. 13-86

April 29, 1987

__________

Common law concept of "bailment," which would be less likely to result in imposition of liability on a rental company that had put an automobile into the hands of a stranger than on a private individual who had lent a car to a friend, is inappropriate doctrine for the resolution of cases involving automobiles and other dangerous instrumentalities .

Rental company that puts as many vehicles as possible into the care of strangers should not be judged by less stringent standard of liability than that imposed on employer whose employees use vehicles in the course of his business.

Statute requiring the owner of a vehicle to purchase and maintain liability insurance for losses inflicted by any person using his vehicle, and related statutes forbidding the operation of uninsured vehicles on the public highway and giving an injured person the right to bring direct action against the insurer, were intended to ensure recovery in tort for victims ,injured by drivers who could not afford to pay damages, A.S.C.A. §§ 22.1001, 22.2002-03.

That a legislature has imposed a criminal sanction on certain conduct does not always mean that it also intended to give persons injured by such conduct the right to recover in tort.

Where a statute restates, reinforces, or gives rise to a community standard, and when it is reasonably foreseeable that the failure to observe this standard will cause a particular kind of harm to a particular kind of victim, such a victim can generally recover damages in tort when he suffers such harm. [4ASR2d102]

Rental company that allowed its automobile to be operated on the highway without insurance required by law was liable for damages suffered by person injured by negligent driver of company's automobile, up to the amount that would have been covered by insurance if the rental company had not breached its statutory duty to provide insurance. A.S.C.A. §§ 22.1001, 22.2002-03.

Before REES, Chief Justice

Counsel: For Plaintiff, William Reardon
For Defendant Moali'itele, John Ward
For Defendant AIU, Roy J.D. Hall Jr.

Plaintiff was a passenger in a car driven by defendant Samana and owned by defendant Moaali'itele (Malamamaisaua Car Rental), who had rented it to Samana. The car was involved in an accident which the evidence shows to have been caused by the negligence of defendant Samana. Plaintiff sued the driver, the owner, and the insurance company (AIU) which had insured the vehicle.

Defendant Samana was served with process but then removed from the Territory. She was not present at trial and has not appeared in the action through an attorney or otherwise. Defendant AIU moved for summary judgment on the ground that the insurance policy it had issued on the car had been cancelled for nonpayment of premiums. The hearing on the motion for summary judgment was held on the morning of trial. We granted summary judgment for AIU and then poceeded to trial on the claims against the other defendants.

I. The Cancellation of the Policy

We will begin by stating for the record our findings of fact and conclusion of law with regard to the cancellation of the policy.

Defendant Moaali'itele, the insured under the policy, urged that it had never been cancelled. His position was based on two grounds: (1) He had no personal recollection of the cancellation, and it was not reflected in the records of the government agencies that are supposed to keep such records.[4ASR2d103] (2) Even if AIU did attempt to cancel the policy, it failed to follow the procedure set out in A.S.C.A. § 22.2013, which requires that the insurer notify the Director of Administrative Services at least ten days before the effective date of the cancellation.

We found, however, that AIU's manager had in fact given proper notice of the cancellation. He produced copies of letters to Moaali'itele and to the Insurance Commissioner, and he testified that they had been sent after a number of demands in writing and in person that the premiums be paid. (He also produced a copy of the last such demand, threatening cancellation in two weeks and dated two weeks prior to cancellation.) AIU also produced evidence that the Insurance Commissioner at the time ---to whom the function of receiving notices of cancellation had been expressly delegated in writing by the Director of Administration--- regularly lost official documents, many of which he seems to have kept in his car.

Unfortunately, AIU's manager testified that the notices had been delivered by his secretary. He testified that he invariably used this method, that he knew his secretary to be an extremely reliable person, and that in the several years of her employment it had never come to his attention that a letter she was supposed to have delivered had not in fact been delivered. Although we recognize that this is perhaps the most common method of delivery of important documents in American Samoa, it is far better in cases such as this one to use registered mail or at least to get written receipts. On balance, however, we found it more likely that the records were lost by the government (also a sort of custom here) than that the notices were never delivered.

We further concluded that AIU had complied with the statutory notice requirement when it sent a notice of the cancellation to the Insurance Commissioner, to whom the Director of Administration had directed that all such notices be sent.

II. The Liability of the Car Rental Agency

Defendant Moaali'itele (Malamamaisaua Car Rental) argues that he cannot be held liable for the negligence of the driver just because he owned the car and rented it to her. His counsel cites authority to the effect that under the traditional [4ASR2d104] common law rule a rental agency would be considered a "bailor" that assumes no liability for the negligence of its "bailee." Orose v. Hodge Drive-It-Yourself Co., 9 N.E.2d 671 (Ohio 1937); cf. Smith v. Hertz Rent-a-Car, 377 F.2d 885, 887 (1967) (taking note, with apparent approval, of a Virgin Islands municipal court decision to this effect).

The common law concept of bailment seems a blunt and awkward instrument for the resolution of controversies such as this one. "Bailors" include the person who leaves his private automobile in a garage for repairs, the friend who lends his car to a friend, and Hertz Rent-a-Car. A rule which treats these three kinds of defendants alike, denying liability unless the defendant knew or should have known that his "bailee" was unfit to drive, will have the ironic effect of ensnaring the friend quite often, the garage client occasionally, and Hertz almost never. This is because Hertz is he only one of the three that regularly puts automobiles into the hands of people about whom it knows almost nothing. Moreover, such a rule gives car rental companies a strong incentive to continue knowing as little as possible about the people to whom they rent. It is an odd rule .

Accordingly, a number of states have enacted statutes imposing liability on the owner of a car for damages caused by the negligence of anyone who uses it with his consent. The courts of one state, Florida, have achieved the same result by application of the common law concept of "dangerous instrumentalities." See Susco Car Rental System v. Leonard, 112 So.2d 832, 836 (1959):

The principles of the common law do not permit the owner of an
instrumentality that is.... peculiarly dangerous in its operation, to
authorize another to use such instrumentality on the public highways
without imposing upon such owner liability for negligent use. The
liability grows out of the obligation of the owner to have the vehicle
....properly operated when it is by his authority on the public highway.

Cf MacPherson v. Buick Motor Co., 111 N.E. 1050, 1053 (N.Y. 1916) (per Cardozo, J.) ("This automobile was designed to go fifty miles an hour.... Precedents drawn from the days of travel by stagecoach do not fit the conditions of travel today."). Rather than treat the car rental company [4ASR2d106] as someone who has simply left an item in the care of another, the Florida Supreme Court in Susco analogized the company to an employer who has entrusted his automobile to an employee. So long as the employee is using the car for purposes that generally further the employer's business, the employer is vicariously liable for the employee's negligence. This is true even if the employer had no reason to know the employee would be negligent, and even if the employee was violating the employer's specific instructions concerning the care to be taken.

The reasoning of Susco seems persuasive, at least as applied to companies that are in the business of renting automobiles. A car that has been rented is on a business errand for its owner, just as surely as if it were being used by an employee. That it happens to serve the business purposes of a rental company to .entrust its automobiles to anyone with a driver's license and a Visa card ---indeed, that the whole point of the business is to put as many vehicles as possible into the care of strangers, and to maximize the number of hours and miles that each vehicle is OR the highway is an unpersua5ive, argument for imposing a stringent standard of liability than is imposed on the employer whose employees' use of his automobiles is occasional and incidental. (1) [4ASR2d107]

If the Fono had enacted no law applicable to this case, choosing instead to leave to the courts the development and application of common law principles, we would be strongly inclined to adopt the Florida rule. We need not reach this question, however, since we find that the defendant violated a statutory duty to the plaintiff when he allowed the vehicle to be operated on the highway without insurance.

A.S.C.A. § 22.2003 requires the owner of a vehicle to purchase and maintain liability insurance not only for losses occasioned by his own negligence, but also for those inflicted by "any other person who uses the vehicle or vehicles with [his] express or implied permission." Section 22.2018 gives an injured person the right to bring a direct action against the insurer for any damage [4ASR2d108] covered by the policy, whether or not the owner of the vehicle would be liable; and sections 22.1001 and 22.2002 forbid the operation on the public highway of any automobile that is not covered by such a policy.

Even if the defendant rental car, company was not directly liable for the damage inflicted by its negligent lessee, these statutes did impose a responsibility to see to it that no such damage would be inflicted that was not covered by insurance. Plaintiff was subjected to such a loss because the defendant company breached its statutory duty not to put an uninsured car on the road.

We recognize that courts should be cautious about defining the breach of a statutory duty as actionable negligence ---even where, as here, the statute was enacted to protect people in exactly the plaintiff's situation against the risk of the very harm that occurred. That a legislature has imposed a criminal sanction on certain conduct does not mean that it also intended to give persons injured by such conduct the right to recover in tort.

In this case, however, the very purpose of the law was to ensure recovery in tort for victims injured by impecunious drivers. If the question had been put to the enacting legislators, it is hard to imagine that they would have been surprised or disconcerted at the possibility that an owner who violates the law might be required by a court to compensate persons who suffered uninsured losses because of his violation. That the legislature enacted a criminal penalty for violation of the insurance law does not mean that it intended to exclude all other remedies. The legislature has also enacted criminal penalties for running a red light and making an illegal left turn, and has never specifically stated that these acts shall constitute negligence in civil actions. Where a statute restates, reinforces, or gives rise to a community standard about how people ought to act toward each other, it should not be regarded as in any way inferior to standards that the courts discovered on their own with no assistance from the legislature. When it is reasonably foreseeable that the failure to observe a community standard will cause a particular o kind of harm to a particular kind of victim", such a victim can generally recover when he suffers such harm. See generally Prosser & Keeton, supra, § 36. [4ASR2d109]

We hold that the defendant rental company, in allowing its automobile to be operated on the highway without the insurance required by law, violated a duty to the plaintiff. Requiring the company itself to compensate the plaintiff (in an amount not greater than would have been covered by insurance if the defendant had not breached its duty) is a remedy that seems fully consistent with the nature of the duty and with the purpose of the statutes that impose it.

Damages

The plaintiff testified that she received cuts on her face, neck, back, and arm, and that she spent "one day" in the hospital. She testified that she was unable to move her neck and arm for several weeks after the accident, that she still has some pain from the accident, and that small pieces of glass occasionally emerge from her skin where the cuts were. She did not testify that her cuts needed stitches or other medical attention. There was no expert testimony on the nature and extent of her injuries, and no medical records were introduced. Taking into account the awards customarily given in American Samoa for similar injuries, we assess her damages at $1000.

Judgment will be entered against defendants Samana and Moaali'itele, jointly and severally, in the total amount of $1000.

**********

1. The justification for master-servant liability has been put in terms of the control that the employer exercises over his employee. Prosser and Keeton on Torts § 70 at 501-02 (5th ed. 1984). Liability is regularly found, however, under circumstances where the imputation of such control is obviously fictitious. See id. at 503 ("If the other factors involved indicate that the forbidden conduct is merely the servant's own way of accomplishing an authorized purpose, the master cannot escape responsibility no matter how specific, detailed and emphatic his orders may have been to the contrary.")
There are, however, more persuasive arguments that may account for the survival of the master's liability if not for its origin. First, in the absence of vicarious liability it will be profitable for employers to choose and instruct their employees in ways which (while falling just short of actionable negligence against the employer himself) maximize the possibility that money will be made or saved for the employer regardless of the risk of harm to people outside the enterprise. Assessing the damage done in the course of the enterprise against the enterprise itself, on the other hand, tends to ensure that the total costs of the enterprise (to everyone, not just to the employer) do not exceed the benefits generated by it. In any case, considerations of cost and benefit aside, it seems unfair to let the damage resulting from a negligently executed business venture fall on a randomly selected member of the public rather than on the person who would have profited had the venture succeeded.
Arguments very similar to these have been advanced for the imposition of strict liability without fault on all business enterprises. We do not mean to make such a suggestion. The total severance of liability from fault, aside from its tendency in practice to burden some enterprises with liability not fairly attributable to their conduct, may actually have the long-term effect of encouraging some kinds of carelessness and other wrongdoing. These risks do not seem so strong when liability is imposed for indisputably culpable conduct on one who is closely connected with it and may have benefitted from it.

Ferstle v. Am. Samoa Gov’t


Territories are not "states" within meaning of fourteenth amendment, so Congress acted under its constitutional power to regulate territories when it revised civil rights statute to include territories. U.S. Const. art. IV § 3; 42 U.S.C. § 1983.

Extension of remedial civil rights statute to territories was premised initially on the concept, unjustifiable as applied to modern American Samoa, of territories as "inchoate states." 42 U.S.C. § 1983.

Applicability of remedial civil rights statute to American Samoa does not extend application in territory of any federal constitutional provisions that would not otherwise apply under the doctrine of the Insular Cases. 42 U.S.C. § 1983.

Conflict between constitutional provisions are ordinarily resolved in favor of the more recently enacted.

Absent waiver of sovereign immunity or consent to suit, action for damages under civil rights law may not be maintained against any of the several states. 42 U.S.C. § 1983.

Sovereign immunity is premised on the notion that there can be no action to enforce a right against authority that created the right.

Territorial immunity from suit may be implied from [4ASR2d161] similarities between structures of American Samoan and state governments.

American Samoa Government, immune from suit absent consent or waiver, is not a "person" for purposes of federal civil rights statute. 42 U.S.C. § 1983.

Government Tort Liability Act does not constitute waive of immunity from suit so as to give right of action against territorial government under federal civil rights law. A.S.C.A. §§ 43.1203 et seq.; 42 U.S.C. § 1983.

Territorial government is not a "person" liable under federal civil rights law for conspiracy to violate federal rights. 42 U.S.C. § 1985.

Before KRUSE, Associate Justice.

Counsel: For Plaintiffs, William Reardon
For Defendants, Martin Yerick, Assistant Attorney General

Defendant American Samoan Government, hereafter "ASG", moves for summary judgment in the above-entitled matter, asserting absolute immunity as a matter of law from suit premised on a cause of action provided under the Federal Civil Rights Act, 42 U.S.C. §§ 1983 and 1985. (1)

Section 1983 is remedial in nature and authorizes a civil action for deprivation of federal rights against a person acting under the color of state or territorial law, custom, or usage. The Supreme Court has variously explained the main purpose of this enactment as: enforcing the provisions of the Fourteenth Amendment; and interposing the federal courts between the States and the people, as guardians of the people's federal rights. Monroe v. Pape, 365 U.S 167 [4ASR2d162] (1961); Mitchum v. Foster, 407 U.S. 225 (1972); District of Columbia v. Carter, 409 U.S. 418 (1973). As a measure then to secure compliance with the fourteenth amendment, which on its face speaks only to "States", the inclusion of "Territories" within the enactment was explained in District of Columbia v. Carter, supra. The Court here noted: that section 1983 was derived from an Act of Congress of April 20, 1871, (17 Stat 13), referred to as the Klu Klux Klan Act; as originally enacted, section 1 of the 1871 Act applied only to action under color of the law of any "State"; the phrase "or Territory" was added without explanation in the 1874 codification and revision of the United States Statutes at large (Rev. Stat. § 1979); that since the territories are not "States" within the meaning of the fourteenth amendment, this addition was presumably an exercise of Congress' power to regulate the Territories under art IV, § 3, cl 2 of the Constitution. Carter, 409 U.S. 418, 424 n. 11.

Justice Brennan, writing for the Court, suggested policy reasons for this inclusion in 1874. First, the Court noted that logistical difficulties at the time did not allow, as a practical matter, effective control directly from Washington over the various territories and their officials. Accordingly, the extent of self government (albeit delegated) actually existing in the territories was nearly as broad as that enjoyed by the states. The Court further added that, given the transitional nature of territorial status ("foredained" to statehood), Congress could treat the territories, for purposes of enforcing federal rights, as "inchoate States". (2)

American Samoa as an inchoate State seems inconsistent with reality, and while 42 U.S.C. § 1983 does on its face extend to violations [4ASR2d163] committed under color of territorial law, this Court has recently stated in Banks v. American Samoan Government, 4 ASR 2d 113 (1987), that the enactment cannot be taken as a decision by Congress to extend every application of every constitutional provision into every territory. Such a construction would be radically inconsistent with The Insular Cases, which were decided some years after the language of section 1983 was first enacted and which held that some constitutional provisions remained inapplicable in unincorporated territories. Id. at 128 n.7. Cf. Tuivai v. Suiava 2 A. S. R. 2d 35 (1983).

IMMUNITY

ASG argues that the eleventh amendment to the United States Constitution effectively secures immunity from suit to an unconsenting state, and that same legal immunity is enjoyed by territories such as American Samoa.

Plaintiffs in reply make the curious observation that there is an apparent conflict between art. III § 2 of the Constitution on the one hand, and the eleventh amendment thereof on the other. Further, it is contended that while the States have been zealous in expansionism with the notion of "sovereign immunity", plaintiffs pose the question as to whether anyone could "seriously contend that a territory can't be sued because of the Eleventh Amendment, in its own courts, by its own citizens...."

If there is a conflict between these two constitutional provisions, it would appear to follow on the usual rules of construction that a succeeding amendment provision ought to prevail. Indeed, as a matter of historical fact, the eleventh amendment came about in shock reaction to the federal courts entertaining a suit against the State of Georgia instituted by a citizen of another in the case of Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793). See Monaco v. Mississippi, 292 U.S. 313 (1934).

Plaintiffs' claims herein are premised on a statute intended to enforce the fourteenth [4ASR2d164] amendment, thus the relevant conflict to look for, if any, is whether this amendment took anything away from the earlier eleventh.

The Supreme Court has held that the eleventh amendment, and therefore the doctrine of 5overeign immunity as applicable to the states, was necessarily limited by the provisions of the fourteenth amendment. Significantly, § 5 thereof empowered Congress to legislate appropriately to enforce the fourteenth amendment. Fitzpatrick v. Bitzer, 427 U.S 445 (1976). Congressional override of state immunity was therefore available, however the court has required that any Congressional intent to override must be clear and explicit. See Employees v. Dept. of Public Health &Welfare, 411 U.S. 279 (1973); Hutto v. Finney, 437 U.S. 678 (1978).

With regard to the Civil Rights Act of 1871, 42 U.S.C. § 1983, the cases are settled that Congress did not intend by the general language of the Act to overturn the eleventh amendment immunities of the several states. In Edelman v. Jordan, 415 U.S. 651 (1974), the court held that the word "person" as appearing in § 1983 did not include "states", and accordingly the enactment did not abrogate eleventh amendment immunity. This holding was subsequently reaffirmed in Quern v. Jordan, 440 U.S. 332 (1979). See also Alabama v. Pug:h, 430 U.S 781 (1978); Pennhurst State School & Hospital v. Haldeman, 465 U.S. 89 (1984); Kentucky v. Graham, 473 U.S. ___ (1985).

Accordingly, absent waiver of sovereign immunity or consent to suit, an action for damages under § 1983 may not be maintained against any of the several states.

TERRITORIAL IMMUNITY

It follows that the next question before the Court is whether the doctrine of sovereign immunity (3) is applicable to ASG, the governmental [4ASR2d165] entity of the unincorporated territory of American Samoa.

The little authority that exists on the subject favors an affirmative holding.

In Kawananakoa v. Polybank, 205 U.S. 349 (1907), the territory of Hawaii asserted its immunity from suit to being joined, without its consent, to a foreclosure action. Justice Holmes explained the source of sovereign immunity on general principles as follows:

A sovereign is exempt from suit, not because of any formal
conception or obsolete theory,,but on the logical and practical
ground that there can be no legal right as against the authority
that makes the law on which the right depends. ..As the ground
is thus logical and practical, the doctrine is not confined to powers
that are sovereign in the full sense of juridical theory but naturally
is extended to those that in actual administration originate and
change at their will the law of contract and property, from which
persons within the jurisdiction derive their rights. A suit presupposes
that the defendants are subject to the law invoked. Of course it
cannot be maintained unless they are so. But that is not the case
with a territory of the United States, because the Territory itself
is the fountain from which rights ordinarily flow.

Id. at 353.

This principle of immunity was also extended by the court to be applicable to the unincorporated territory of Porto Rico in Porto Rico v. Rosaly, 227 U.S. 270 (1912). Here the Court was concerned with interpreting § 7 of the Organic Act of Porto Rico which, included the language "to sue and be sued". The Court first noted that immunity from sui t is necessarily inferred "from a mere consideration of the nature of the Porto Rican government." Id. at 274. Secondly, to interpret § 7 of the enactment as taking away the implied [4ASR2d166] immunity would be, as the court reasoned, destructive of the system of government created by Congress for Porto Rico "with defined and divided powers, legislative, executive and judicial..." Id. at 277.

Upon general principles, .the doctrine of sovereign immunity must be implicit with the system of government existing in the Territory of American Samoa. In actuality, the territorial government in American Samoa has all those sovereign attributes to pass, amend, repeal and enforce laws from which persons within its jurisdiction derive their rights. The system of government created for the territory and deriving its ultimate authority from Congress in 48 U.S.C. § 1661(c) has defined and divided powers, legislative, executive and judicial. It possesses automony similar to those of a sovereign government or state. See also In Re Hooper's Estate, 359 F.2d 569 (3d Cir. 1966).

Upon the practical considerations stated by Justice Holmes, it is this Court's conclusion that the Territory of American Samoa possesses immunity from suit without its consent or waiver. (4)

The conclusion follows that plaintiffs' action under 42 U.S.C. § 1983 directed against ASG for monetary damages is subject to the territory's claim to immunity as asserted in its answer filed herein. From precedent established in connection with the other United States territories, American Samoa would be excluded from the term "person " as used in § 1983. U. Insular De Trabajadores v. Autoridad De Las Fuentes, 431 F. Supp 435 (D.P.R. 1975), Carreras Roena v. Camara de Comerciantes, Etc., 440 F. Supp 217 (D.P.R. 1976).

This Court is further not impressed with plaintiffs' interpretation of the Government Tort Liability Act, A.S.C.A. § 1203 et. seq., to predicate a waiver. Plaintiffs argue that the following language: ''as a private individual under like circumstances," appearing in § 43.1203(a); and [4ASR2d167] "where the government, if a private person, would be liable," appearing in § 43.1209(a), constitutes a waiver of immunity to the extent whereby "ASG" maybe then juxtaposed within the meaning of "person" as contained in 42 U.S.C. § 1983.

The suggestion at best is desperate, and we decline to give such unintended effect to the Government Tort Liability statute which particularizes the limited circumstances of sovereign consent.

42 U.S.C. § 1985 CLAIM

Plaintiffs' conspiracy claim under 42 U.S.C. § 1985 remains to be considered.

The complaint appears to be wanting in specificity and is short on the pleading requirements set out in Griffin v. Beckenridge, 403 U.S 88 (1971). Be that as it may, suffice it for us to say that the same principles applicable to the definition of a "person" under 42 U.S.C. § 1983 are also relevant to the same issue under § 1985. Thompson v. New York, 487 F. Supp 212 (N.D.N.Y. 1979). See also True v. New York State Dept. of Correctional Services, 613 F. Supp 27 (W.D.N.Y. 1984).

For the same reasons appearing above, that the meaning of the word "person in section 1983 excludes "State", qua State, (as well as excluding "Territories"), we hold that plaintiffs' claim directed against ASG under § 1985 is also subject to the territorial immunity asserted.

CONCLUSION

ASG's motion for summary judgment is granted. An action for damages pursuant to 42 U.S.C. §§ 1983 and 1985 does not lie against the entity, qua entity, American Samoa Government absent waiver of immunity or Consent to suit thereunder.

It is so ORDERED.

**********

1. Plaintiff's complaint is equivocal in setting out the basis of their claim for relief. However, in responsive Memorandum of Points & Authorities opposing an earlier ASG motion for dismissal, plaintiffs clarify their action as grounded on 42 U.S.C. §§ 1983 and 1985.

2. The case involved a § 1983 suit against the District of Columbia. The Court held that the District could not come within the meaning of "State or Territory" as appearing in the enactment. The reasoning federal control in Washington was effective and practical; and the District by its very nature could not be treated as an "inchoate State". Unlike the transitional character of a territory, the capital's makeup the governmental scheme was lasting and permanent.

3. The doctrine of sovereign immunity from suit, rooted in the ancient common law, was originally based on the monarchical, semi-religious tenet that "the King can do no wrong." In modern times, it is better explained as a rule of social policy that protects the state from burdensome interference with state funds, property, and instrumentalities. 72 Am. Jur. 2d, States, etc. § 99

4. While American Samoa differs with other territories to the extent that its territorial government is not a product of an Organic Act, this difference does not detract from its autonomy and self governing features which the Supreme Court found determinative in Kawakanakoa and Porto Rico v. Rosaly.

Faumuina; Leota v.


LEOTA FAMILY and UELE SAVALIGA, Appellants

v.

FAUMUINA MOLITAU, Appellee

High Court of American Samoa
Appellate Division

AP No. 32-85

February 13, 1987

__________

Long occupancy of land by one family is not necessarily inconsistent with ownership by another family.

There is a strong presumption that land in American Samoa is communal rather than individual property.

Communal land given in atonement for an offense committed by a family member is presumed to become the communal property of the victim's family rather than the victim's individual property.

Before REES, Chief Justice, GARDNER*, Acting Associate Justice, KENNEDY**, Acting Associate Justice, LUALEMAGA, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Appellants Leota, Albert Mailo
For Appellant Uele, Monike Failauga
For the Appellee, Aviata Fa'alevao

Per KENNEDY, J. :

Leota Faagau and Savaliga Uele appeal a decision of the Land & Titles Division of the High Court of American Samoa that land known as Utusi'a is communal land of Faumuina Molitau, but that Leota and Uele may continue to live there. We affirm.

The positions of the parties are as follows. Leota claims that Utusi'a is communal land of the Leota family because it has occupied the land for many years. Uele claims that he inherited individual ownership of Utusi'a from Tialavea Eseroma. Faumuina claims that Utusi'a is communal land of the Faumuina family, acquired long ago as atonement for a crime against the family.[4ASR2d12]

Under A.S.C.A. § 43.0801(b), we review the decision of the Land & Titles Division under the clearly erroneous standard.

Faumuina testified that his family received Utusi'a to atone for the rape of a family member, all this long before the establishment of a government on Tutuila. Two witnesses substantially corroborated his testimony. Uele, an adverse party with his own claim to Utusi'a, conceded that Faumuina's family received the land to resolve the dispute after a rape. Tialavea Fa'alafu, a, senior member of the Lauatua family, conceded that his family had given Utusi'a to Faumuina's family many years ago. While other witnesses questioned Faumuina's claim to the land, the lower court's finding was not clearly erroneous in light of the supporting evidence we have cited.

Leota claims that his family has lived in Utusi'a for many years. Such an arrangement, however, is not inconsistent with Faumuina's ownership of the land. As Faumuina testified, his ancestors may simply have allowed Leota to occupy the land, much as Faumuina is willing to do today.

We turn next to the contention of Savaliga Uele, who filed a brief with certain contentions but failed to file a notice of appeal. Failure to file a notice of appeal will bar an attack on the judgment of the trial court, but in this instance we address the contentions in order to resolve the case as to all parties.

Uele agrees that the land was given in atonement but argues it was transferred to the rape victim as individual property, not to the victim's family as communal property, and that it was inherited by him. He says that atonement by transfer of land, an ifoga, after a personal offense becomes individual not family property as a matter of Samoan custom. We find no support for that proposition. A transfer of communal land, even before the enactment of statutes restricting it, was a rare event. Moreover, consistency with Samoan traditions requires a strong presumption that land so transferred remain communal land. This is true even when the transfer was due to an ifoga, or atonement. Though the victim suffers grievous personal hurt and anguish, his or her family shares the outrage. An ifoga is an expression of sorrow and apology to the family, as well as to the victim, and in this sense transcends [4ASR2d13] mere compensation. Yeh v. Pratt, 4 A.S.R. 752 (1967).

Under the decisions of this Court, a person may obtain individual ownership of land with proof of original ownership. Leuma v. Willis, 1 A.S.R. 2d 48 (1980). As the court below noted, Uele failed to present any evidence concerning original ownership of Utusi'a. This failure, along with the presumption against individually owned land, Reed v. Puailo, 1 A.S.R.2d 85 (1983), and our conclusion of the effect of the ancient transfer by ifoga, lead us to reject his claim.

The decision of the Land & Titles Division of the High Court of American Samoa is AFFIRMED.

**********

*Honorable Robert Gardner, Chief Justice Emeritus, High Court of American Samoa, serving by designation of the Secretary of the Interior.

** Honorable Anthony M. Kennedy, Judge, United States Court of Appeals for the Ninth Circuit, serving br designation of the Secretary of the Interior.

Fano; In re Matai Title


PULELEITE F.M. TUFELE, Plaintiff

v.

FA'AGAI S. FANO, EDDIE C. LISI,
FA'ATILIGA TAPUVAE, and AVIATA F.
FA'ALEVAO, Defendants

[In the Matter of the Matai Title "FANO"]

High Court of American Samoa
Land and Titles Division

MT No. 4-86

May 21, 1987

__________

Where there was insufficient evidence to resolve dispute among candidates for matai title about the identity of the original titleholder, and where recent trial court opinion announcing a rule that ancestry of matai title candidates should be traced to the original titleholder had been criticized in subsequent opinions of appellate court, the trial court in a later case would attempt to calculate each candidate's ancestry both to the nearest titleholder and to the titleholder who was the nearest common ancestor of the candidates.

Before REES, Chief Justice, TAUANU'U, Chief Associate Judge, LUALEMAGA, Associate Judge, AFUOLA, Associate Judge, and TUIAFONO, Associate Judge.

Counsel: For Plaintiff, Sala Semiu
For Defendant Fa'agai, Lutu T. Fuimaono
For Defendant Fa'atiliga, Albert Mailo
For Defendant Fa'alevao, Tuiasosopo Mariota
Eddie C. Lisi pro se

Five parties claim the right to hold the title "Fano" of Faga'alu. The findings of the Court with regard to the four statutory criteria are as follows:

I. Best Hereditary Right [4ASR2d149]

The issue of ho has the best hereditary right to a title has always been fraught with uncertainties, and the decision of the Court in In re Matai Title "Sotoa", 2 A.S.R.2d 15 (1984) injected even more uncertainty into the inquiry. Prior to that decision, the Court for many years had allowed each candidate to claim his closest relationship to any holder of the title: the child of a titleholder would have a 50% or 1/2 relationship, the grandchild of a titleholder 25% or 1/4, and so on. In the Sotoa case the parties had stipulated that the blood relationship of each candidate should be figured not to the nearest titleholder but to the original titleholder. Rather than simply accept the parties' stipulation for the purposes of that case, the Court announced a rule purporting to apply to all cases. Since then, however, the Appellate Division has suggested that the Sotoa rule has caused unexpected problems particularly the difficulty of reaching agreement on who the original titleholder was--- and that it might be better for the Court to revert to the earlier rule, to adopt some other rule, or to allow for the possibility that different families may have different traditions with regard to who has the best hereditary right. In re Matai Title "Le'iato", AP No.7-86 (Dec. 22, 1986); In re Matai Title "Laapui", AP No.6-86 (January 22, 1987). Accordingly, we will rank the candidates both according to the Sotoa rule ---or, more precisely, a variation of the Sotoa rule that has been used by the parties in this case and others in which there was disagreement about who the first titleholder was and according to the prior rule.

Four of the parties trace their blood relationship to Fano Fealofani. Although all parties but Puleleite agree that there were other titleholders before Faleofani, he was the common ancestor to whom these four candidates agreed their "original" blood relationship should be calculated, and whose four children gave their names to the four most widely acknowledged clans of the family. In relation to Fano Faleofani, candidates Aviata and Fa'agai have 1/16 relationship and candidates Puleleite a 1/32 relationship.

The genealogy submitted by candidate Fa'atiliga differed markedly from those of the other four. He did not acknowledge that Fealofani ever held the title, suggesting instead that there are only two clans tracing their ancestry to the two children of Fano Leo'o. Some other candidates [4ASR2d150] disputed Fa'atiliga's membership in the family, suggesting instead that the Fa'atiliga family is a separate family which has become closely connected over the years to Fano. It is undisputed that Fa'atiliga is an orator who has an important role in Fano family events and who sometimes serves as spokesman for the Fano family, but family traditions vary with respect" to whether such orators must be blood members of the family. Even the tradition within the Fa'atiliga family or clan itself seems uncertain: Fa'atiliga testified that legal documents required to be signed by the sa'o of his family are sometimes signed by Fano and sometimes by Fa'atiliga. Assuming, however, that Fa'atiliga is a member of the Fano family and that his blood relationship should be traced to Leo'o, it is 1/32.

Accordingly, under the Sotoa formula (or the nearest equivalent to it that can be applied in this case) candidates Aviata and Fa'agai prevail.

Under the pre-Sotoa formula Fa'agai clearly prevails. His father was Fano Sailiata, which gives him a 50% relationship to the title. Under this formula candidate Ova (Eddie Lisi) has a 1/8 relationship (to Fano Tuiaimo'o), Aviata and Puleleite each have a 1/16 relationship (to Fano F'aleofani and Fano Misipaga respectively). Fa'atiliga has a 1/8 relationship to Fano Ese'ese assuming that there was a Fano Ese'ese, a proposition to which only one other candidate agrees.

II. Support of the Clans

Support of the clans is also difficult to calculate. Based on the number of signatures on each petition, the testimony at trial about the meetings that took place within the family, and the candidates' reactions to questions by opposing counsel about their own feelings regarding the other candidates, we find that Fa'agai ranks first, commanding the overwhelming support of the Fa'agai clan and widespread support within other clans; Aviata is second with the clear support of the Tautai clan and substantial support in other clans; Fa'atiliga is third with the support of his own clan (assuming that it is in fact a clan of the Fano family) and some support in other families. Puleleite and Eddie Ova Lisi did not show substantial support. [4ASR2d151]

III. Forcefulness, Character, and Knowledge of Samoan Custom

On the third criterion the leading candidates are also Fa'atiliga, Aviata, and Fa'agai. Fa'atiliga is a brave and virtuous man with a long history of dedication and service to the village, the Territory, and the United States, but his knowledge of Samoan custom was not as strong as that of some other candidates. Aviata has also demonstrated his strength and leadership ability through his distinguished service to the government as well as to the family, and he ranks second to Fa'agai in this area. We rank Fa'agai first: his long service as a matai within the family and as its spokesman on many important occasions has made him intimately familiar with Samoan custom, his unblemished record during thirty years of loyal service to the government speaks for his character, and sixty-five years of devoted service to the familyare the strongest possible evidence of his readiness to lead the family.

IV. Value to the Family and the Community

While we believe each of the candidates has shown his value to the community and the family, Aviata and Fa'agai are the clear leaders on this issue. Aviata is a leading attorney and a former Attorney General of American Samoa, and has been active in family and community affairs. The value of Fa'agai to the family and the community is, somewhat different than that of Aviata, but it is no less important. Although there is no question that the Fano family would benefit from the leadership of a man of Aviata's stature, we feel that it will benefit even more from the guidance of Fa'agai, who has demonstrated his productivity and his wisdom wihout ever leaving the bosom of the family. The difference in the ages of the two men is also important: Aviata is forty-one, while Fa'agai has acquired the knowledge and experience of sixty-five years but remains as alert and vigorous as a forty-one year old.

Conclusion

Fa'agai prevails on the second, third, and fourth issues, and either prevails or is tied with Aviata on the first issue. Accordingly, we hold that Fa'agai has the right to hold the title Fano.

**********

Fa'atiliga v. Lutali,


FA'ATILIGA TAPUVAE, MAFA TUIKA. TU'UTAU P. FANENE,
TIA PENITUSI. ERIC HOWLAND, LOUISULU LE'I,
POPOALI'I UOTI, FAIVALE GA'OPO'A, ROBERT KEY,
PASELIO LEATISUA, and NOFO VAILAAU, for
themselves, for the AMERICAN SAMOA DEVELOPMENT
CORPORATION (ASDC), and for shareholders of ASDC
similarly situated, Plaintiffs,

v.

A.P. LUTALI as individual, as former Director and
President of ASDC, and as Governor of American
Samoa, ENI HUNKIN as individual and as Lieutenant
Governor of American Samoa, STEVE WATSON as
individual and as Executive Assistant to the
Governor, J.R. SCANLAN as individual, as Assistant
to the Governor and as Director of ASDC,
LEULUMOEGA S. LUTU as individual and as Attorney
General of American Samoa, JOHN SAMIA as
individual and as Chairman of the Board of
Directors of ASDC, FAAUUGA ACHICA as individual
and as Secretary of ASDC, VERA ANNESLEY as
individual and as Director of ASDC, FAIIVAE
A. GALEA'I as individual and as Director of
ASDC, TUIAFONO MATAUTIA as individual and as
Director of ASDC, SILI K. SATAUA as individual
and as Director of ASDC, AIGA TASl, Inc. , LI'A
AFUVAI as an officer of Aiga Tasi Inc., and
DEVELOPMENT BANK OF AMERICAN SAMOA, Defendants

High Court of American Samoa
Trial Division

CA No. 103-86

January 20, 1987

__________

Territorial statute providing that shareholder may either cast all his votes for one candidate for corporate office or divide his votes among as many candidates as there are positions did not leave corporate management free to choose which of these two methods would be followed; rather, it required that each shareholder be given the option of choosing how to cast his votes. A.S.C.A. § 30.0142.

Where notice of corporate election was in the newspaper rather than by mail or personal delivery as required in the corporate by-laws, but where there was no testimony that any shareholder had not in fact received notice of the meeting, the [4ASR2d2] alternative method of notice was not shown to have interfered with the shareholders' right to vote.

Before REES, Chief Justice, AFUOLA, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For the Plaintiffs, Aviata Fa'alevao
For the Defendants, Martin Yerick, Assistant Attorney General

Opinion and Order on Motion to Amend Judgment:

On December 10, 1986, at the conclusion of the plaintiffs' case, we granted the defendants' motion for summary judgment on all but three relatively minor issues. On these issues the defendants agreed to have judgment entered against them. Plaintiffs now move for various amendments to the summary judgment.

The motion is grounded on three principal contentions:

(1) The Court should have stated its conclusions of law separately from its findings of fact;

(2) The Court erred in concluding that the option contract to buy stock owned by the Development Bank of American Samoa was legal, since the Governor has no authority to act for the Development Bank in matters concerning the sale of securities;

(3) The Court neglected to address several of plaintiffs' claims concerning the selection of the present Board of Directors.

I. Findings of fact and conclusions of law.

Plaintiffs allege that "there were no findings of fact and conclusions of law" in the Court's order. This statement seems to overlook the fact that, after ruling from the bench, the Court issued a lengthy written opinion containing detailed findings of fact as well as conclusions of law. Plaintiffs correctly observe, however, that our rules of civil procedure require the Court to "state separately its conclusions of law." TCRCP Rule 52(a) (emphasis added); See TCRCP Rule 41(b). We therefore append a separate statement of our conclusions of law. [4ASR2d3]

II. The Governor's authority to negotiate the option contract.

As we pointed out in our written opinion, subsequent to the conclusion of the option contract the Board of Directors passed a resolution endorsing the sale of stock. The sale was only one feature of the contract, which also involved related undertakings by A.S.G. Obviously, the stock could never have been sold without the approval of the Board of Directors of the Development Bank. If, however, the Governor had been unsuccessful in securing the assent of the Board, the people with standing to complain would have been the other contracting parties, not the plaintiffs.

III. The selection of the directors.

Plaintiffs alleged a number of irregularities in the selection of the current directors of A.S.D.C. Although the Court addressed the allegation on which plaintiffs seemed principally to rely -- the contention that the Governor "appointed" the directors by voting the shares owned by the Development Bank -- certain other claims were not addressed.

Defendants urge that plaintiffs waived these contentions by not pressing them at trial. Plaintiffs did, however, allude to the alleged irregularities in their trial memorandum and produced evidence of them at trial. Although both the Court and opposing counsel were under the impression that" the plaintiffs' evidence concerning the January 18, 1985 meeting was directed only at their contention that the Governor "appointed" the directors, a review of the record reveals that this evidence was also relevant to the plaintiffs' other allegations. Plaintiffs did not waive some alleged irregularities simply by emphasizing others.

Three irregularities asserted by the plaintiffs were not addressed in our opinion:

(a) The plaintiffs. alleged not only that the seven directors elected at the January 18 meeting were "appointed" by the Governor, but also that three directors subsequently selected to fill vacancies were similarly "appointed." The second contention is virtually identical to the first, which we rejected in our original opinion. The only evidence for either contention is a statement by the Governor during a deposition. As he made [4ASR2d4] clear in his trial testimony, he "appointed" directors not in any technical or legal sense of the word, but only in the informal sense that he had the votes to get them elected. The evidence shows that the directors selected to fill vacancies were elected at a meeting of the ASDC Board of Directors, in accordance with the By-Laws.

(b) Plaintiffs also alleged, and produced testimony tending to show, that shareholders were not given the option of "cumulative voting" required by A.S.C. § 30.0142. This contention has merit. Although defendants urge that the statute leaves the decision on the manner of casting votes up to the corporation rather than to the individual shareholder, both the language of the statute and the history of "cumulative voting" provisions convince the Court otherwise. See H. Henn. Law of Corporations 364-66 (2d ed. 1970). Without the right of shareholders to cast their votes cumulatively, an individual or faction owning 51% of the shares in a corporation would always be able to elect 100% of the directors. If, however, each shareholder has the right to cast all his votes for one person, rather than dividing them up among a number of people equal to the number of directors, then each individual or faction will be able to elect a percentage of directors roughly equal to the percentage of shares it owns. A statute requiring the option of cumulative voting is thus an important guarantee of minority shareholders' rights.

The Court should not have granted summary judgment on this issue. On the other hand, we cannot grant a summary judgment for the plaintiffs without giving defendants a chance produce evidence that cumulative voting procedures were in fact followed. We therefore alter our previous order to deny summary judgment on the issue of cumulative voting at the January 18, 1985 meeting and set the issue for trial on March 18, when the claims by and against Aiga Tasi are already scheduled to be heard.

We must emphasize the limited scope of our ruling today. At most, the plaintiffs will be entitled to a declaratory judgment that cumulative voting procedures should have been followed at the January 18 meeting and an injunction requiring the corporation to hold a new election in accordance with such procedures. Such a judgment would not affect any other issue in the case. The Development Bank's ownership of the stock and the legality of [4ASR2d5] the option contract do not depend on the composition of the ASDC Board of Directors.

Nor can plaintiffs successfully assert the illegality of actions taken by the Board during the past two years on the ground that cumulative voting procedures were not followed in the election. There are two principal reasons for this. First, even in the unlikely event that all minority shareholders had cast their votes and had cast them for the same candidate or candidates, they could have elected only one or possibly two of the seven directors. Since plaintiffs produced no evidence at trial to prove that any action of the Board was taken by a one or two vote margin, there is no evidence that the procedures in electing the Board caused any of the Board actions of which plaintiffs complain. Even more important is the fact that the plaintiffs could have sued for an injunction requiring a new election on the day after the allegedly improper one, but instead waited over a year. While such a delay is no bar to prospective relief ---that is, to a suit directed at having an election in which proper procedures are followed--it does deprive plaintiffs of the right to complain retrospectively of actions which they might have prevented by timely action.

We reiterate, however, that we were wrong to grant summary judgment on plaintiffs' claim that cumulative voting procedures should have been followed at the January 18, 1985 election. We hereby reverse that part of our holding, and set the matter for trial on March 18. Only defendants A.S.G., Lutali, Watson, the Development Bank, and the ASDC directors are involved in this claim. All defendants are involved only in their official capacities, since no evidence was produced showing that any defendant acted in bad faith or outside the scope of his official duties. Should all defendants acquiesce in a consent judgment on this issue, or should a new election prior to March 18 render the issue moot, the issue will not be tried.

(c) Plaintiffs produced evidence that notice to shareholders of the January 18, 1985 meeting was not by mail or personal delivery as required by the By-Laws, but was instead by publication in the newspaper. Plaintiffs did not allege in any of their pleadings, however, that any of the plaintiffs did not in fact receive notice of the meeting. The one plaintiff who testified, Eric Howland, did learn of the meeting and attended it. Even if the procedure was improper, no relief can [4ASR2d6] be granted in the absence of an allegation and proof that it resulted in some palpable injury to one or more of the plaintiffs. In this case the injury that might have occurred would have been denial of the right to vote. That the alternative method of notice was not shown to have interfered with the plaintiffs' right to vote does not excuse the officers of the corporation from their failure to comply with the By-Laws, but it does prevent a court of law from rendering judgment against them. Defendants therefore prevail on this issue. (In any case, even if the plaintiffs had alleged and proven that the improper notice resulted in the denial of their right to vote, they would have been entitled only to a declaratory judgment and a new election. Unless defendants can prove that cumulative voting procedures were in fact followed at the January 18 meeting, plaintiffs will be entitled to such relief in any case.)

The order issued on December 11, 1986, is hereby amended to deny summary judgment on the question whether shareholders were given the option of cumulative voting at the election meeting. We also append a separate statement of our conclusions of law in accordance with the plaintiffs' motion. In all other respects the motion is denied.

**********

Dellumo v. Dellumo;


JAMES DELLUMO, Petitioner

v.

OFEIRA DELLUMO, Respondent

High Court of American Samoa
Trial Division

DR No. 73-84

March 20, 1987

__________

Court would allow assets of corporation to be garnished to satisfy judgment owed by ex-husband to ex-wife under divorce decree, where (1) business had been jointly owned and managed by husband and wife, (2) husband had formed a corporation in which he and another person owned all the shares and had secured wife's agreement to transfer the business to the corporation a few months before husband filed for divorce, (3) evidence suggested that corporation now owned assets formerly belonging to husband and wife, and (4) the amount garnished was less than the amount of payments long overdue on a property settlement which had been ordered by the court to compensate wife for her interest in the business now owned by the corporation.

Before REES, Chief Justice, AFUOLA, Associate Judge and TUIAFONO, Associate Judge.

Counsel: For Petitioner, John Ward
For Respondent, Aviata Fa'alevao

Opinion and Order on Post-Trial Motions:

The parties were divorced on October 29, 1984. The court gave custody of the parties' six children to respondent, Ofeira Brown Dellumo. Petitioner, James Dellumo, was ordered to pay alimony of $100 per month and child support of $50 per month per child. In late 1985 the order was modified to give custody of two children, Cathy and Angel, to petitioner, and also to require petitioner to pay $5200 (13 payments of $400 per month) to respondent in liquidation of her share in the family business. Each party now alleges that the other has violated the order in several respects. Petitioner also asks that the court quash a garnishment secured by [4ASR2d49] respondent against the corporation that now owns the family business, and that the order be modified to discontinue the payment of alimony and to reduce the amount of child support.

I. CHILD SUPPORT ARREARAGES

The total amount of payments should have been $300 per month from November 1985 through March 1985, or $3900, plus $200 per month from December 1985 through March 1987, or $3200, for a total of $7100. Petitioner has submitted evidence that he paid $4180 to respondent for "alimony and child support"; we will credit this toward child support. We will also credit the $350 he paid to the Clerk of the High Court, as well as $200 reflecting a garnishment of his personal bank account and a cash payment during February. A $100 payment made by petitioner to his attorneys, which was to have been forwarded to respondent but was ultimately returned to the petitioner, will not be credited. Two payments of $25 each of invoices on Top Shop accounts will not be credited toward child support but will be discussed later. The total amount of arrearages on child support, therefore, is $7100-($4180 + $350 + $200) or $2370.

It is unclear how much of this money is owed to the respondent and how much is owed to the Department of Social Services of the state of Hawaii, which received an assignment of child support payments in return for making AFDC payments to some of the children while they were in Hawaii, and which mayor may not still be caring for the children. The Clerk of Courts has already forwarded $350 to the State of Hawaii pursuant to a Uniform Reciprocal Enforcement of Support claim. We therefore make the following order with respect to child support arrearages: Petitioner shall pay $200 per month to the Clerk of the High Court on or before April 15th, 1987, and continuing until the entire $2370 (plus interest on the unpaid balance at the rate of 1/2% per month from March 15, 1987) has been paid. The Clerk will ascertain what amounts are owed to the State of Hawaii (including the $1603 which petitioner has already been ordered to pay) and will apply petitioner's payments to retiring this debt. If, as seems quite possible, the total debt to the State of Hawaii exceeds $2370, the balance will be satisfied out of other funds owed by petitioner to respondent. (The Court will ensure, in other words, that petitioner is not required to pay the same debt twice.) If [4ASR2d50] the debt to Hawaii should be less than $2370, the balance will be paid by the Clerk to respondent.

Since all amounts paid by petitioner as "child support and alimony" have been credited to child support, the entire amount from the date of judgment to the present remains due. $100 per month from November 1984 until March 1987 amounts to $2900. Against this amount, however, petitioner claims credit for certain items of merchandise respondent received from the family business, the price of which she agreed to have deducted from her alimony payments. We have examined the records of such receipts proffered by the petitioner, and find that only $217.10 can be charged against the alimony payments in accordance with the agreement.

Respondent agreed that "shortages or losses on any invoices from the Top Shop or Fabric Arts Printing that I have signed for merchandise that I have recieved " (sic) could be deducted. Two of the documents submitted by petitioner are pages from loose leaf notebooks which do contain what appears to be respondent's signature as well as references to items of merchandise, but the pages contain no reference to any receipt, purchase, loss, shortage, or invoice; nor are the signature and the lists juxtaposed in such a way as to give an observer any confidence at all that the person whose name is on the page has received the items in question. Two of the documents submitted seem to be records of payments on an account (apparently the same two $25 payments claimed by petitioner in his list of alimony and child support payments), and also seem to have been signed not by the respondent but by the petitioner himself. Another invoice for $88.21 contains notations indicating that all but $13.00 was paid. (We give respondent credit for this amount plus the entire amount on invoices number 7432, 7435, 2478, and 2479, although the "Not Paid" entries on these invoices are written below the petitioner's signature and in another hand.) The alimony arrearages therefore total $2900-$217.10, or $2682.90.

We will allow petitioner to postpone payment of alimony arrearages until after the payment of all child support arrearages, provided that the $200 monthly payments are made on time. After the back child support has been paid (in about fourteen months) the alimony arrearages should be paid to the Clerk of the High Court in the amount of $200 [4ASR2d51] per month on or before the 15th of each month. This monthly payment will be made until the petitioner has paid $2682.90 plus interest on the unpaid balance at 1/2% per month. The Clerk will first remit to the State of Hawaii any amounts remaining on the back child support debt, and shall remit all further amounts to the respondent.

III. THE PROPERTY SETTLEMENT

The parties agree that the petitioner has paid $2400 of the $5200 property settlement, and that , $2800 remains to be paid. The payment schedule will be discussed below.

IV. THE GARNISHMENT OF THE CORPORATE BANK ACCOUNT

Petitioner has moved to quash a writ of garnishment directed at a bank account in the name of South Pacific Clothiers, Inc. This corporation was organized in mid-1984 (a few months before the petitioner sued the respondent for divorce) and ownership of the business which had formerly been owned and run jointly by petitioner and respondent was transferred to the corporation. This was the very business in respect to which the Court ordered petitioner to pay respondent $5200 in liquidation of her share, and whose difficulties petitioner has cited as evidence of his own inability to pay alimony and child support. Petitioner is the general manager of the corporation and owns 50% of the stock. He and his new wife each draw a salary of about $400 per month from the corporation, and apparently sometimes live in the building that houses some of its operations. This is the corporation on whose account petitioner claims an offset of $1473 (of which the court has awarded $217) from his alimony payments, although he submits evidence that he repaid the corporation only $50 from his personal accounts. There is, in other words, abundant evidence that both parties have treated the corporation as the mere alter ego of the petitioner, and that it would be grossly unfair to allow him to shelter assets and income behind the corporate veil while defaulting on thousands of dollars in child support, alimony, and a property settlement whose purpose was to compensate the respondent for the loss of her share in the very business now conducted by the corporation.

On the other hand, the petitioner testified that another person, apparently unconnected with[4ASR2d52] the present litigation, owns the other 50% of the stock in the corporation. Assuming that he acquired his interest at arm's length and without notice of the circumstances giving rise to the formation of the corporation, it would be unjust to allow the assets of the corporation to be liquidated to satisfy the personal debts of his co-proprietor. Assuming that petitioner's new co-owner was not extraordinarily foolish, however, petitioner must have brought something of value into the corporation, and that something belonged mostly to the respondent and to the six children of the marriage. Balancing the inequities, we conclude that the best solution is to refuse to quash the writ and to apply the amount obtained (about $1900) to the $2800 owed by the petitioner on the property settlement. No future seizure of corporate assets will be permitted, however, without a clear prior showing that petitioner is fraudulently sheltering assets or income.

We will allow petitioner to postpone payment of the remainder of the property settlement (about $900 plus interest on the unpaid balance at the rate of 1/2% per month) until after payment of the child support and alimony arrearages has been made. He will then pay $200 per month to the Clerk of the High Court, who will forward the money to the respondent.

V. FUTURE PAYMENTS

The order will be modified to suspend future alimony payments, although respondent retains the right to ask that alimony be reinstituted if circumstances warrant.

Petitioner shall continue to pay $50 per month for each of the four children not in his custody. Within three days of the receipt of this order, counsel for respondent shall file with the Clerk of the High Court an affidavit from his client stating the whereabouts of the three children and whether she is still receiving AFDC payments from Hawaii. If they are in Samoa being cared for by respondent and her family, all child support shall be paid to the respondent. If the children are in Hawaii being cared for by the Department of Social Services, payments on their account shall be made to the Department.

VI. CUSTODY AND VISITATION

Custody of the children will remain as it is, [4ASR2d53] although each party retains the right to call to the attention of the court any circumstances warranting a change in custody. Each party is enjoined from interfering in any way with the visitation rights of the other party.

CONCLUSION

On or before the 15th of April and of every month thereafter until further notice, the petitioner shall pay $400 to the Clerk of the High Court. $200 of this amount will pay his child support obligation for the current month to the respondent and/or the State of Hawaii. The other $200 will go to repay his arrearages, in the following order: (1) child support owed to the State of Hawaii; (2) child support owed to the respondent; (3) alimony; (4) property settlement. Wilful failure to make any such payment when due will be punishable as contempt of court.

Respondent shall immediately notify the court of the present whereabouts of the three children who were formerly being cared for in Hawaii.

The motion to quash the writ of garnishment is denied. The funds obtained pursuant to the writ will be delivered to the respondent.

**********

Continental Ins. Co.; Lafaele v.


OTELE LAFAELE, Plaintiff

v.

CONTINENTAL INSURANCE CO.
and CHARLIE TAUTOLO, Defendants

High Court of American Samoa
Trial Division

CA No. 131-85

May 7, 1987

__________

"Preponderance" standard means that if the parties' contradictory versions of the facts have equal evidentiary support and the plaintiff cannot establish superior credibility, the defendant must prevail.

Before KRUSE, Associate Justice, LUALEMAGA, Associate Judge, and OLO, Associate Judge.

Counsel: For the Plaintiff, Albert Mailo
For the Defendants, Roy Hall

If the judicial fact finding process were a purely quantitative exercise, the effect of each party's evidence in this case would be simply to cancel the other party's evidence out. As it happens, our qualitative analysis of the evidence leads us to essentially the same conclusion.

Plaintiff testified that he was operating his vehicle in a non-negligent manner when defendant, who was approaching in his vehicle from the opposite direction, crossed the center line of the highway onto plaintiff's lane and side-swiped plaintiff's vehicle, causing sundry damage to person and property. Plaintiff had a close relative who was riding with him at the time who corroborated plaintiff's testimony to the detail.

Defendant's version was the laterally inverted image of plaintiff's case. Defendant had plaintiff crossing the center line. Like the plaintiff he produced a close relative who had been a passenger in his vehicle and who corroborated his story.

The only agreement between the parties was [4ASR2d132] that the collision occurred: on a straight stretch of the main east-west highway at or around Nu'uli; in the early hours of the morning; in conditions described by defendant to be "perfect" .

Hereafter the testimony parted in similarities. Plaintiff testified. that after the collision defendant continued on without stopping, and so he gave chase. He finally caught up with defendant in Utulei, where defendant had turned into the intersection going towards the Administration Buildings. After taking the license number of the other vehicle, plaintiff proceeded to the Police Station and filed a complaint.

On the other side, defendant testified that when he saw plaintiff's vehicle cross the center line he attempted to swerve to the curb. He was, however, limited in his actions owing to a temporary embankment of excavation dirt built up on the shoulder of his side of the road. The embankment was said to be due to Public Works having been laying pipelines. He testified that after the collision he was the one who stopped his vehicle and plaintiff was the one who drove on. Defendant then walked around his vehicle and found that his side mirror on the left was damaged. He assessed his damage as insufficient to prompt him to attempt to chase after the other vehicle at that hour in the morning. He continued eastward but made another stop off the road -to take another look at his vehicle. When asked, he testified that at this time there was no one else in sight. He resolved to make no more of the incident and continued onward to meet a friend.

Defendant testified further that on his way home he was surprised when stopped by an officer who questioned him about the earlier incident. After giving his version of the collision at the Police Station, he heard no more of the matter until plaintiff filed this suit.

The initial impression gleaned from this testimony, given the hour of darkness at which the collision occurred, could well be that one of the parties was honestly mistaken about the location of his vehicle in relation to the dividing line at that moment. The extraordinary extent to which the two stories diverge, however, makes it necessary for the Court to consider carefully the credibility of each.

In the Court's view, plaintiff's testimony was [4ASR2d133] in many instances both evasive and self serving.

When plaintiff was asked the location of defendant's vehicle at the time the chase was commenced, plaintiff readily ventured a definite location out of his sight and quite some distance away, apparently in the hope of assigning high speed to the defendant. Plaintiff's evidence would also have him undertaking the chase specifically at the posted speed limit. The testimony vascillated, however, between his initial estimate of 35 mph and a revised estimate of 25 mph, once the plaintiff was made aware that the actual posted speed limit was the latter.

When questioned about the presence of construction or excavation at the scene, plaintiff definitely denied such. It became clear to the court, however, that his responses were purposely limited to a denial that physical activity was taking place at the time the accident occurred, which was around one o'clock in the morning. He was not about to address, without some prodding, whether there was an embankment, although the Court finds it difficult to believe that he did not know that this was the question he had been asked.

Further, his testimony regarding the extent of property damage fell woefully short of being persuasive. He testified that he had received two repair damage estimates from separate mechanics. One was for $400 and the other for $500. Neither estimate was produced in court, but plaintiff stated that he opted for the $400 mechanic and allowed that repairs cost him $400.

The testimony later developed that the $400 mechanic was a' friend of plaintiff's son who worked at a certain garage. That labor with repairs was without charge.

When questioned on the elements of the $400 estimate, however, given that no labor charge was involved, plaintiff responded that the $400 was expended on material that the mechanic had told him to purchase. Except for the paint, plaintiff was unable to name what the material comprised, attempting to feign ignorance about technical labels assigned to auto parts.

The authorities are replete with statements that the onus is on plaintiff to establish by evidence of preponderating weight that it was more probable than not that the injury complained of was [4ASR2d134] caused by defendant. So as not to appear to give ritualistic veneration, to, labels such as "preponderance of the evidence" and "balance of probabilities", we quote a leading treatise:

The plaintiff must introduce evidence which affords a reasonable
basis for the conclusion that it is more likely than not that the conduct
of the defendant was a cause in fact of the result. A mere possibility
of such causation is not enough; and when the matter remains one of
pure speculation or conjecture, or the probabilities are at best evenly
balanced, it becomes the duty of the court to direct a verdict for the
defendant.

Prosser & Keeton on Torts § 41 at 239 (5th. 1984) (citations omitted).

In our view, the evidence presented (by plaintiff on the one hand, and by defendant on the other) in proof of causal connection is equally balanced, in that the facts are as consistent with one theory of causation as with the other. In other words, the facts in this matter lead to the conclusion that the cause of the injury "may be as reasonably attributed to an act for which the defendant is not liable as to one for which he is liable". Gedra v. Dallmer Co., 91 N.E.2d 256, 260 (Ohio 1950). In order to sustain the plaintiff's claim on the evidence presented, the needed finding of proximate cause would rest solely on possibilities and conjecture. If we believed that plaintiff's credibility was superior to that of the defendant we might still conclude that he had proven his case. For the reasons stated, we do not so conclude. The only reasonable inference that can be drawn in the circumstances is that the proximate cause of plaintiff's damage is unknown and unproved.

In these circumstances the plaintiff, as a matter of law, must fail. Judgment will enter accordingly in favor of the defendants.

**********

Banks v. Am. Samoa Gov’t


Administrative board, given statutory authority to advise agency and to perform such duties as governor assigns, had no authority to issue binding personnel decisions absent explicit grant, especially when Code sets forth hiring and termination procedures that do not involve board. A.S.C.A. §§ 7.0102, 7.0206, 7.0211.

Where evidence indicated that decision to terminate probationary employee was made by appropriate executive official with governor's approval rather than by advisory board, court would not question the decision. A.S.C.A. §§ 7.0102, 7.0206, 7.0211.

Judiciary must not substitute its own judgment for that of executive branch on what is in "the best interest of the government." A.S.C.A. § 7.0211.

A government employee with no contractual or statutory right to continued employment may be fired for any reason or even "for no reason whatever" without a denial of due process; only exception is that employee cannot be terminated for a reason that itself violates some constitutional right, such as free speech or equal protection of the laws. U.S. Const. amdt. 14.

Personnel board's recommendation not to employ plaintiff was not shown to have been motivated by constitutionally impermissible gender-based discrimination when it could have resulted from past experience applicable to employees of either sex and plaintiff failed to bring evidence suggesting otherwise. U.S. Const. amdt. 14.

Personnel board's recommendation not to employ plaintiff was not shown to have been based on [4ASR2d114] allegedly unconstitutional statutory Samoan hiring preference when evidence showed overwhelmingly that Board's recommendation was a response to undue manipulation of hiring process by plaintiff's husband.

In "unincorporated" territories the federal constitution applies only insofar as its tenets restate "those fundamental limitations in favor of personal rights" that are "the basis of all free government" or insofar as Congress expressly extends a particular constitutional provision to the territory.

Although the due process clause of the federal constitution, which implicitly forbids racial discrimination by the federal government, binds the territories in at least some of its applications, it does not necessarily bind the territories in the same ways and to the same extent as in the continental United States. U.S. Const. amdt. 14.

Federal constitution would not prohibit American Samoan hiring preference, which is reasonably calculated to alleviate the difficulties that attend a government composed largely of officials with no knowledge of the local language and culture and who generally remain in the territory only temporarily.

Federal constitutional requirement that "citizens of each state shall be entitled to all privileges and immunities of citizens in the several states" applies to states and not to' unincorporated and unorganized territories. U.S. Const. art. IV § 2.

Federal civil rights laws do not operate to extend into territories those applications of the federal constitution that would not apply in the territories under the doctrine of the Insular Cases. 42 U.S.C. § 1983.

Where government attorney advised government official against retaining separate counsel in grievance procedure, but did not claim to be representing the government official, and where there was no evidence that the official's failure to employ separate counsel deprived her of any remedy that would otherwise have been available to her, the attorney's conduct did not entitle the official to recover damages against the government. [4ASR2d115]

Counsel: For Plaintiff, William Reardon
For Defendant, Donald Griesmann, Assistant Attorney General

Before REES, Chief Justice, LUALEMAGA, Associate Judge, and VAIVAO, Associate Judge.

In May 1985 the plaintiff was hired by the American Samoa Government. In October of the same year she was discharged. The circumstances of her hiring and firing illustrate all of the major difficulties the increasing dependence of an insular people on outside resources, the frequent misunderstanding and occasional hostility between Samoans and others who have come here to live, the vagueness of the political relationship with the United States, and the consequent uncertainty about the rules by which disputes are to be resolved--- that face American Samoa today.

I. Facts and Legal Background

Barbara Banks came to American Samoa in 1984 with her husband, who had been hired by the government (hereinafter ASG) to serve as Director of Vocational Rehabilitation for a two-year term. Mrs. Banks herself had been employed in the field of vocational rehabilitation for some years. About two months after her arrival in the Territory she began looking for a job.

Mrs. Banks was assisted in her search for employment by her husband. He approached Adele Fritz. soon after her appointment as Director of Manpower Resources (the territory's chief personnel officer) to discuss two things: (1) the forthcoming creation of the position of Executive Director of a vocational rehabilitation co-ordinating committee called the Developmental Disabilities Planning Council (hereinafter DDPC); and (2) his wife's unhappiness at not working in her chosen field of vocational rehabilitation.

Shortly thereafter the hiring process for the DDPC Executive Director began. An advertisement was placed in the Government Bulletin (a daily newspaper or newsletter then published by ASG) and a number of applications were received, including one from Mrs. Banks.

Three persons were certified by the Office of Manpower Resources (OMR) as qualified for the [4ASR2d116] position. Two of these people, Mrs. Banks and Penei Sewell, were interviewed by the three-member hiring committee of the DDPC. The third candidate, James Mailo, was not interviewed, apparently because his papers were inadvertently not forwarded to the committee. On April 11, 1985, the committee suggested to the full DDPC membership that both canclidates were well qualified and that one ought to be hired as executive director and the other as a consultant to the DDPC. It was generally understood that the committee had Mr. Sewell in mind as the executive director and Mrs. Banks as the consultant.

This recommendation was opposed by the DDPC chairman, who was none other than Mr. Banks. At the next meeting he informed the DDPC members of Mr. Mailo's application, and the committee was directed to interview Mr. Mailo. The committee did so. On May 7 the committee again recommended to the full DDPC that Mr. Sewell be hired. Mr. Banks's response was, "We can't have that." The stated ground for his opposition was that since the committee had not been aware of Mr. Mailo's application until it had been called to their attention, there might be yet other qualified applicants who had not been interviewed. He also suggested that the Territory might lose federal funds if the position were not advertised more widely This was an apparent reference to regulations designed to ensure that handicapped people were informed of available positions in the field of vocational rehabilitation. The DDPC voted to readvertise the position.

At the conclusion of the May 7 meeting Mr. Banks resigned the chairmanship, citing the press of other responsibilities. He did, however, write a letter the next day to the Office of Manpower Resources requesting on behalf of the DDPC that the position be readvertised. The position was readvertised, more people applied and were interviewed, and Mrs. Banks was hired. Mr. Sewell then brought a grievance before the Personnel Advisory Board (PAB), a committee appointed by the Governor to make recommendations in personnel disputes. His grievance charged that the initial process resulting in the recommendation of his own employment had been procedurally valid; that Mr . Banks, had manipulated the process to secure the employment of Mrs. Banks; and that he, Sewell, had been discriminated against because he was a Samoan and the majority of the DDPC members who [4ASR2d117] participated in th second hiring process were non-Samoans.

The PAB rejected Mr. Sewell's claim of racial discrimination, but did find that the initial procedure had been valid, that the decision to "thwart the initial hiring process was irresponsible" and "made a mockery of career service procedures," and that Mr. Banks's involvement was "highly suspect." The PAB further concluded that Mrs. Banks was more suited to serve as a consultant than as executive director because she "was unable to inform the Board whether she will.... leave her position in 18 to 20 months when her husband's employment ends." There was also a statement in the PAB opinion that the second hiring process had "served only to deny Mr. Sewell of his right as an American Samoan to be employed." The PAB, despite its status as an advisory committee, concluded by announcing a "decision" that Mr. Sewell "shall be employed" as DDPC executive director.

The Director of Manpower Resources, Mrs. Fritz, who had been the defendant in the grievance process, filed a motion for reconsideration of the PAB decision. The motion was filed by Assistant Attorney General Phyllis Coven, who had defended Mrs. Fritz at the original hearing. It charged that the decision was beyond the statutory and regulatory authority of the PAB. The PAB denied the motion. Mrs. Fritz subsequently discussed the matter with the Governor; she testified that her conclusion from this conversation was "that this was a Board that was there to assist me to do my job "and this was the decision they made and I should support them." She then hired Penei Sewell as Executive Director and terminated the employment of Mrs. Banks.

Mrs. Banks attempted to appeal the decision of the Personnel Advisory Board to the Appellate Division of the High Court. The Appellate Division has jurisdiction to hear an appeal of an administrative agency decision from any "person who has exhausted all administrative remedies within an agency and who is aggrieved by a final decision in a contested case." A.S.C.A. § 4.1040. A special session of the Appellate Division held, however, that Mrs. Banks was not a party to the PAB procedure and that she therefore had no standing to appeal the decision. Banks v. A.S.G., 2 A.S.R.2d [4ASR2d118] 88 (1985). She subsequently filed action in this the Trial Division of the High Court. (1)

The plaintiff alleges that her termination violated numerous statutes, regulations, and constitutional provisions. Her claims are of three varieties:

(1) ASG violated its own personnel statutes, thus denying plaintiff the due process of law;

(2) ASG discriminated against plaintiff because of her race, color, sex, and/or national origin; and

(3) the Office of the Attorney General of ASG violated plaintiff's rights by giving her the impression that her interests were being represented in the PAB hearing and that she need not retain her own attorney, and by subsequently defending the PAB in her appeal from its decision.

II. Due Process and Employment Procedures

The Court agrees with plaintiff's position, which was also the position of the Office of the Attorney General in its motion for reconsideration of the Personnel Advisory Board decision, that the PAB had no authority to order her termination or the employment of Mr. Sewell. Although A.S.C.A. § 7.0102, which establishes the PAB, provides that it shall perform such duties as are from time to time assigned to it by the Governor, there is no evidence that it was ever assigned the power to hire and fire. Indeed, any such assignment would seem to violate A.S.C.A. § 7.0206, which prescribes a hiring procedure in which the sole participants are the Director of Manpower Resources and the head of the department in which the vacancy exists, and A.S.C.A. § 7.0211, which prescribes the termination [4ASR2d119] procedure for ASG employees during the initial one-year probationary period.

The evidence clearly establishes, however, that the plaintiff was fired not by the PAB but by the Director of Manpower Resources, acting on what she regarded as the suggestion of the Governor. According to her testimony, she terminated the plaintiff's employment not because she shared the PAB's misunderstanding of the nature of its own powers, but because her own immediate superior, the Governor, was satisfied with the PAB's recommendation and believed it should be carried out. The plaintiff argues that this reason is insufficient to satisfy the statutory requirement for termination: that the probationary employee's retention is not "in the best interests of the government." A.S.C.A. § 7.0211. On the contrary, we believe that this language was designed to give the executive the broadest possible discretion in terminating probationary employees. The Personnel Advisory Board believed that it was in the best interest of the government to terminate Mrs. Banks not because she was incompetent but because of the process by which she had been hired. The Governor concurred, either because he agreed with the recommendation or because he thought it in the best interest of the government to uphold the judgment of his advisors on this matter. It is not the function of a court to substitute its judgment for that of the executive branch on what is in "the best interest of the government."

There was also substantial compliance with the procedural requirements of the probationary employee termination statute. The PAB, the agency charged by law with "investigating and deciding recommendations for dismissal," made such a recommendation and put it in writing. Although A.S.C.A. § 7.0211 requires that such recommendations be made by "department heads or other authorized operating officials," the decision of the PAB satisfied this requirement inasmuch as the plaintiff was herself the top-ranking senior employee of the DDPC and the members of the PAB were in fact the officials whose reasons plaintiff needed to know in order to pursue any remedies she might have. Section 7.0211 further requires that the director of manpower resources tell the employee in writing of the date of termination, the reasons for termination, and that he has no right to a hearing. This was done. [4ASR2d120]

The Due Process Clauses of the United States Constitution and of the American Samoa Constitution add nothing to the plaintiff's statutory rights. A government employee who has no contractual or statutory right to continued employment may be fired for any reason, or even "for no reason whatever," without a denial of due process. Mount Healthy City Board of Education v. Doyle, 429 U.S. 274, 283 (1976); see Board of Resents v. Roth, 408 U.S. 564 (1972). The only exception is that the employee cannot be fired for a reason that itself constitutes a violation of some constitutional right, such as free speech or equal protection of the laws. Mount Healthy City Board of Education v. Doyle, supra; Pickering: v. Board of Education, 391 U.S. 563 (1968). We turn, therefore, to plaintiff's claim that she was fired because of her race or sex.

III. Discrimination (2)

A) Sex Discrimination

There is no evidence that Mrs. Banks was discriminated against because of her sex. There was certainly no overt discrimination, and the only conceivable evidence of "sexual stereotyping" was the concern of the PAB that Mrs. Banks might leave the Territory at the conclusion of her husband's employment contract. This concern, however, was riot shown to have been based on generalizations about women. It could just as easily have been based on the Territory's experience with the spouses of off-island contract employees, both male [4ASR2d121] and female, or on the fact that Mrs. Banks herself had recently left a job in her chosen field to move with her husband to American Samoa.

B) Racial Discrimination

Plaintiff's principal contention is that she was terminated because of her race. Much of the evidence adduced at trial had to do with the "American Samoan preference" in government employment. This preference is required by A.S.C.A. § 7.0205(b), which provides that

Any person entering the career service shall be a resident of American
Samoa and either an American Samoan or an American national at the
time he enters the service. If no resident can be found who meets the
minimum qualifications for employment established for a particular class
of work, nonresidents may be employed.

Plaintiff argues that this is a racial classification which denies the right to equal protection of the laws guaranteed to her by the United States Constitution and by the federal civil rights laws.

The record clearly shows, however, that the plaintiff was not fired because of her race. Her termination was recommended by the PAB because it believed that her husband had manipulated the hiring process to get her the job.

Moreover, the evidence is overwhelming that Mr. Banks actually did manipulate the process from beginning to end. In his first conversation about the job with Mrs. Fritz, he suggested that the DDPC be placed under the Office of Manpower Resources rather than within his own department; although this might be taken as evidence of an unusually magnanimous attitude with regard to bureaucratic turf, the context suggests that it was an effort to evade the territorial regulation that forbids the immediate supervision of one family member by another. See American Samoa Administrative Code (A.S.A.C.) § 4.0301(5). Mrs. Fritz testified that she felt substantial pressure from Mr. Banks to find a job for Mrs. Banks in the area of vocational rehabilitation. And it is quite clear that without the intervention of Mr. Banks, Penei Sewell would have been hired at the conclusion of the first interview process. Mr. Banks's repeated [4ASR2d122] interventions in the process, the timing of his resignation as DDPC chairman, and the evidence that he continued to be the dominant influence on the DDPC during the period in which Mrs. Banks was finally hired, all support the conclusion of the PAB that the hiring of Mrs. Banks "made a mockery of career service procedures." (3)

It is also clear that the "American Samoan preference" was never applied against the plaintiff. The evidence suggests that the preference was in common use until a few months before she was hired and was put back into use a few months after her termination, but was not being used at any time relevant to this case. This was apparently because ASG officials were under the impression that it had been overridden by a change in the immigration laws. Whatever the reasons, the plaintiff's application was approved by OMR and sent on for further consideration although OMR believed that there were qualified American Samoan candidates. Mrs. Banks was hired, although she was in competition with several Samoans. And when the PAB recommended her termination, it specifically rejected the part of Mr. Sewell's claim that was based on his Samoan ancestry.

Plaintiff argues, however, that even if the American Samoan preference was not technically enforced in this instance, it is evidence of a pattern or practice of discrimination by ASG against non-Samoans and is therefore relevant to show that ASG officials acted with discriminatory [4ASR2d123] intent. Plaintiff urges that such intent is also shown by the PAB's conclusion that Mr. Sewell had been deprived of his "right as an American Samoan to be employed." There was also testimony that at the PAB hearing someone (either board members, witnesses, or counsel) used the term "papalagi," which may be regarded as a racial epithet for Caucasians. Finally, the concerns cited by the ASG officials who opposed the hiring of plaintiff--- that she was unfamiliar with the community, did not speak Samoan, and was likely to leave the Territory in a year or two could be regarded as code words for racism.

The Court is unpersuaded that this evidence shows discriminatory intent. What it does is to illustrate the difficulties that arise in any analysis of racial questions that attempts to deal with Samoa as if it were Alabama or Michigan. It is true that some Samoans use the term "papalagi" with hostility or disdain, just as some papalagi use the word "Samoan." But residents of Samoa who are not racists use these words as everyday descriptive terms: they are the only ones we have. Similarly, the substance of the PAB opinion supports the contention of the PAB chairman that his infelicitous reference to Mr. Sewell's rights ''as an American Samoan" had no racial connotation. He had just got through denouncing what he regarded as a pattern of chicanery and favoritism, and he was invoking more or less what people invoke when they refer to "the rights of Americans" or "my rights as a citizen of a free country."

It is also true that bilingualism and familiarity with Samoa could be pretexts for racial discrimination, but they could just as easily (far more easily than in the continental United States) be bona fide occupational qualifications. These concerns, and the related concern that American Samoa become as fully self-governing as is consistent with local conditions and with the continued strength of the relationship between the Territory and the United States, gave rise to the American Samoan preference in government employment. If American Samoa were an integral part of the United States, the constitutionality of the Samoan preference would depend on whether these concerns would qualify as "compelling state interests" sufficient to justify what would otherwise be an abridgement of the right to be free from racial [4ASR2d124] discrimination. (4) The courts have long employed a different standard, however, for applying the United States Constitution in the territories. Until the end of the Nineteenth Century all territories of the United States were intended for integration and assimilation with the rest of the country. At about the time of .the Spanish-American War, however, the United States acquired a number of territories about which there was no such intention, and whose cultures and legal systems differed markedly from the Anglo-American. In Insular Cases the United States Supreme Court held that in such "unincorporated" territories the [4ASR2d125] Constitution applied only insofar as its tenets restate "those fundamental limitations in favor of personal rights" that are "the basis of all free government." Dorr v. United States, 195 U.S. 138, 146 (1922); see also Balzac v. Porto Rico, 258 U.S. 298 (1922); Hawaii v. Mankichi, 190 U.S. 197 (1903); Downes v. Bidwell, 182 U.S. 244 (1901). Rights which are regarded as fundamental in the Anglo-American tradition but not in other free and civilized societies do not apply in an unincorporated territory, at least when they would tend to be destructive of the traditional culture. (5)

Although the doctrine of The Insular Cases has been criticized, it has never been repudiated by the Supreme Court and has often been reaffirmed by the lower federal courts. Most recently, the United States Court of Appeals for the Ninth Circuit (which has jurisdiction over all Pacific territories but American Samoa, and which has jurisdiction over American Samoa in connection with a few statutes unrelated to this case) applied the doctrine of The Insular Cases to determine that an unincorporated territory need not provide jury trials in all felony cases. Commonwealth of the [4ASR2d126] Northern Mariana Islands v. Atalig, 723 F.2d 682 (9th Cir. 1984). The District of Columbia Circuit, which has also asserted jurisdiction over American Samoa, reached a different conclusion but also reaffirmed the basic doctrine of The Insular Cases. King v. Morton, 520 F.2d 1140 (1975) (holding that jury trial is required in American Samoa if and only if it is consistent with the Samoan culture).

The Fourteenth Amendment, which prohibits most forms of racial discrimination, applies on its face to the states rather than to the territories or to the federal government. The Supreme Court has held, however, that the Due Process Clause of the Fifth Amendment implicitly forbids racial discrimination by the federal government. Bollin v, Sharpe, 347 U.S. 497 (1954). Although it is clear that the Due Process Clause is binding on the territories in at least some of its applications, this does not mean that it is binding in the same ways and to the same extent as in the continental United States. Commonwealth of the Northern Mariana Islands, supra, 723 F.2d at 689. Rather, it depends on whether the particular application in question is fundamental to "the basis of all free government," and on the burdens it would impose on the culture of the territory. See id.

Although some forms of racial discrimination surety transgress the limits of what most of us today would regard as a free and civilized society, it would be difficult .to sustain the proposition .that any society that uses a racial classification for any purpose is necessarily to be regarded as uncivilized or unfree. Particularly in the extension of political rights, many nations (including, for instance, Western Samoa, Fiji, Japan, Israel, and Ireland) discriminate in ways that would be forbidden in the United States. Indeed, although judges and scholars in the United States have frequently asserted that the racial quotas, goals, and timetables contained in some affirmative action plans do not constitute racial discrimination, it seems more accurate to say that such "reverse" discrimination has been deemed necessary to avoid or eliminate even worse evils.

Against this background, we cannot hold that when the chiefs of Tutuila and Manu'a ceded their territory to the United States every American automatically acquired an equal right with Samoans to participate in the administration of the American Samoa Government. On the contrary, American Samoa has remained an unincorporated [4ASR2d127] territory precisely because it was the intention of the United States to hold it in trust for American Samoans. That such an enterprise was not inconsistent with the United States Constitution was the major premise of the Treaties of Cession and the central holding of The Insular Cases. (6) Even if the Samoan preference had been applied against Mrs. Banks, therefore, we would reject her claim.

This is not to say that the Territory has carte blanche to practice any form of racial discrimination. Indeed, some statutes currently on the books ---which seem to discriminate against "half-castes" who were born and raised here and who might be thoroughgoing Samoans in every respect but that they lack a certain percentage of Samoan blood [4ASR2d128] ---present a much more difficult question than the employment preference. Strictly speaking, the American Samoan preference is not a racial classification at all: both on its face and as applied, it excludes Western Samoans who are ethnically identical to American Samoans and it includes non-Samoans who have resided here for more than twenty years. A.S.C.A. § 7.0205(b); A.S.A.C. § 4.0301(3); Appendix A to A.S.A.C. § 4.0118.

Although the preference has an obvious racial effect in that it is more difficult for an ethnic non-Samoan to secure its benefits than for an ethnic Samoan, its principal purpose and effect are to ensure self-government. Twenty years ago there were practically no Samoans in responsible government positions. Non-Samoans still occupy such positions in vast disproportion to their numbers in the general population. Almost all of these government officials have recently arrived in the Territory and will leave within a few years. Almost none speak the Samoan language, which is still the primary language of almost all Samoans. One need not be a racist (or a Samoan) to recognize the serious disadvantages of this situation. The American Samoan preference law, which is essentially a preference for permanent residents rather than for ethnic Samoans, is reasonably calculated to alleviate it. It is not unconstitutional. (7) [4ASR2d129]

IV. The Conduct of the Attorney General's Office

The plaintiff argues that her rights were further prejudiced when she was lulled into a belief that the Assistant Attorney General who represented the Office of Manpower Resources before the PAB was also "her" lawyer. At some point during the PAB proceedings it appears that plaintiff asked the Assistant Attorney General whether she should retain her own lawyer and was told that this would do her no good, since (1) the grievance was frivolous and (2) the proceeding was between Sewell and the government.

After the PAB's initial decision, the same Assistant Attorney General filed a motion for recon5ideration arguing that the PAB had no authority to order the hiring of Mr. Sewell. After the motion was denied and the Director of OMR decided to hire Mr. Sewell, a different Assi5tant Attorney General defended the PAB in Mrs. Banks's attempted appeal. He contended, as the Office of the Attorney General had contended all along, that the PAB had not fired Mrs. Banks. He argued instead that she had been fired by the Director of -- [4ASR2d130] OMR, who did have the authority to do so.

In retrospect, it might have been better for the Assistant Attorney General in the PAB proceeding to refuse to advise Mrs. Banks one way or the other on whether to retain a lawyer. Instead, she gave her honest opinion in response to an inquiry from someone with whom she had been working closely. There was no evidence, however, that she gave Mrs. Banks any reason to believe that the Office of the Attorney General was looking out for Mrs. Banks's interests and would continue to do so no matter what.

In any case, there is no evidence that Mrs. Banks was damaged by her failure to retain a lawyer. Even if the PAB had been persuaded to admit her as a "party" to its grievance procedure , the most she might have obtained was a decision on the merits from the Appellate Division of the High Court. Even if she had been a "party," it is quite possible that the Appellate Division would have rejected her appeal on the ground that she had ultimately been fired by the Director of Manpower Resources. And if the Appellate Division had reviewed her claim on the merits, the scope of judicial review would have been narrower than the review she subsequently sought and obtained in this proceeding. A.S.C.A. §§ 4.1043-44.

We have held that her rights were not violated. She has the right to appeal our decision to the Appellate Division. If the Appellate Division disagrees with us and finds that the termination violated plaintiff's rights, it can provide a remedy. If the Appellate Division finds that the termination did not violate plaintiff's rights, then there is no reason to assume that the Appellate Division would have decided differently in 1985. In either case, the plaintiff will not have been damaged by her failure to be recognized as a party to the 1985 appeal.

Moreover, the causal connection between the Assistant Attorney General's response to plaintiff's inquiry about whether she should obtain a lawyer and the Appellate Division's holding that she had no standing to appeal is far too attenuated and speculative to justify an award of damages even if there were any.

V. ORDER

Accordingly, the action is dismissed.

**********

1. Mrs. Banks subsequently accepted temporary employment with ASG, at the same salary she had made as executive director of the DDPC. Her job was -to monitor federal programs, including the Disabilities Developmental Planning program, for the Office of Manpower Resources. This employment continued until sometime in the spring of 1986. In June of 1986 Mr. and Mrs. Banks returned to the United States.

2. We address the claims of discrimination by sex and by race. The plaintiff's husband also seemed to suggest in his testimony that his wife should have received special consideration because she is handicapped. This appears to have been an afterthought. The handicap in question, a back injury, was apparently unknown to the PAB when it made its decision. This would not relieve ASG of any affirmative duties it might have to make the handicapped aware of available positions; in this case, however, the plaintiff already knew about the position, and she and her husband knew more than anyone else involved in the process about any special consideration she should have been given. In any case, the plaintiff waived any such defect in the process by not including it in her complaint

3. There is nothing wrong, of course, with believing one's spouse to be the best candidate for a job. In this case, depending on whether technical expertise and training are deemed more important than familiarity with the community for which programs are being planned, Mrs. Banks may well have been the best candidate. The PAB obviously felt, however, that Mr. Banks had a conflict of interest and should have been far less active in the hiring process. The generalized process concerns, apparently unrelated to his wife's ambitions, that Mr. Banks cited as the basis for his opposition to the initial recommendation, and his testimony in court that he really did not want her to get the job, serve only to add a whiff of deviousness to his mishandling of the situation.

4. ASG suggests, for instance, that the American Samoan preference can be justified as an affirmative action program designed to eliminate the effects of past discrimination. (Indeed, the administrative regulations designed to enforce the American Samoan preference are styled an "Equal Opportunity Affirmative Action Plan." See Appendix A to A.S.A.C. § 4.1108. ) Although we reach much the same conclusion in our discussion of Insular Cases, in the absence of these cases the constitutionality of the Samoan preference as an affirmative action plan would be problematic. The nature of the preference--- no non-Samoan can be considered until all qualified American Samoans have been employed ---is quite similar to that declared unconstitutional by the Supreme Court in Regents of the University of California v. Bakke, 438 U.S. 254 (1978). Moreover, unlike most affirmative action plans, the Samoan preference is currently administered by and for the group that constitutes the overwhelming majority within the Territory and that wields political power. Such a plan might present different constitutional problems than one in which the representatives of the majority group, in an effort to redress past discrimination by members of their own group, discriminate in favor of a relatively powerless minority. Finally, the absence of systematic efforts to employ members of non-Samoan groups that are both underrepresented and historically disadvantaged, such as Orientals and Tongans, suggests that the American Samoan preference is better defended as an American Samoan preference than as an affirmative action plan.

5. The doctrine of The Insular Cases was a middle ground between the view that all provisions of the Constitution applied of their own force in every territory, and the radically opposing view that Congress was free to extend or not to extend each provision into each territory as it saw fit. The Supreme Court has held that a constitutional provision which does not apply in a territory of its own force may nevertheless be extended to that territory by. Congress. See Torres v. Commonwealth of Puerto Rico, 442 U. S. 465 (1979), where the Court held that in approving a constitution for Puerto Rico which contained a prohibition against warrantless searches, Congress implicitly extended into Puerto Rico the similar provisions of the Fourth Amendment. In the present case it is instructive that the Revised Constitution of American Samoa which was promulgated by the Secretary of the Interior under a delegation of authority from Congress and which arguably has been ratified by a recent Act of Congress forbidding the Secretary from changing its provisions ---contains no equal protection clause.

6. Cf. Morton v. Mancari, 417 U.S. 535 (1974), upholding the constitutionality of an "Indian preference" statute for employment in the Bureau of Indian Affairs, which is charged with administration of Indian reservations and related programs.
The purpose of these preferences, as variously expressed in the
legislative history, has been to give Indians a greater participation
in their own self-government, to further the Government's trust
obligation toward the Indian tribes, and to reduce the negative
effect of having non-Indians administer matters that affect tribal life.
Id. at 541-42 (footnotes omitted). The Indian preference, like the American Samoan preference, "is granted to Indians, not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities whose lives are governed by the BIA in a unique fashion." Id. at 554. The Court characterized it as "political rather than racial in nature." Id. at 553 n.24. The constitutional justification for this special political arrangement was found in the fact that the United States, by acquiring control over the Indians in the exercise of the war and treaty powers, had thereby undertaken a trust obligation to them. Id. at 552. Implicit in this trust obligation was the power, ad perhaps the duty, to employ Indians wherever possible in positions related to their own governance.

7. Although plaintiff does not rely on the Privileges and Immunities Clause, art. IV, § 2, we note that if a state were to discriminate in favor of its own long-time residents, it might well violate this provision. Because this clause applies on its face only to states, and for the other reasons cited in our discussion of the Due Process, Clause, we do not believe that it makes the American Samoan preference unconstitutional. In addition to her constitutional claims, plaintiff argues that the Samoan preference violates the federal civil rights laws, particularly 42 U.S.C. § 1983. This section is essentially remedial; it creates a cause of action for violations of rights secured by the Constitution and laws of the United States. Although it applies on its face to violations committed under color of territorial (as well as state) law, it cannot be taken as a decision by Congress to extend every application of every constitutional provision into every territory. Such a construction would be radically inconsistent with Insular Cases, which were decided some years after the language of § 1983 was first enacted and which held that some constitutional provisions remained inapplicable in unincorporated territories. On the contrary, a decision by Congress to leave a territory unincorporated is an implicit decision not to extend into that territory those applications of the Constitution that are not part of the "basis of all free government" and that would be inappropriate to local conditions. See Commonwealth of the Northern Marianas, supra, 723 F.2d at 688-90. In the absence of specific evidence to the contrary, therefore, a judicial determination that a particular application of the Constitution does not apply in a territory will dispose of arguments that a parallel federal statute does apply and achieves the same result. Even if the Samoan preference had been applied against plaintiff, therefore, we would reject her statutory as well as her constitutional claims.

American Samoa Gov’ t v. Masaniai,


AMERICAN SAMOA GOVERNMENT

v.

MALESALA aka TAULAGA MASANIAI, Defendant

High Court of American Samoa
Trial Division

CR No. 9-87

May 21, 1987

__________

Neither the rights to free speech and a free press nor a criminal defendant's constitutional right to a public trial preclude a court from excluding members of the public from the courtroom during the testimony of juvenile complaining witness in a rape case, where the court has determined after a public hearing that such exclusion is necessary to protect the witness's psychological well-being or to prevent her from being harassed and intimidated.

Where statute defines the crime of sexual abuse to include the purpose of arousing or gratifying sexual desire, such purpose can be inferred by the trier of fact from the defendant's conduct. A.S.C.A. §§ 46.3601, 46.3612.

Statute defining the crime of sodomy does not require proof that defendant committed the act with the purpose of arousing or gratifying sexual desire. A.S.C.A. § 46.3611.

That defendant's conduct was similar to pre-Christian ceremonial practices was no defense in prosecution for sexual abuse and sodomy, since territorial legislature" enacted no statutory exception for such practices. A.S.C.P.. §§ 46.3611, 46.3612.

Before REES, Chief Justice, and TAUANU'U, Chief Associate Judge:

Counsel: For the Government, William Wallace, Assistant Attorney General
For the Defendant, Charles Ala'ilima

Defendant was convicted of Sodomy and Sexual Abuse in the First Degree. The victim was his[4ASR2d157] sixteen-year-old daughter. He asks for reconsideration of the verdict and for a new trial on the grounds that exclusion of the public from the courtroom during the testimony of the victim violated his right to public trial, and also on the ground that the government had not proved "sexual intent" in connection with the acts he performed on the girl.

I. Public Trial

The public was excluded from the courtroom only during the testimony of the complaining witness, who had requested such exclusion. The prosecutor indicated to the Court that the girl had asked that she not be required to repeat the details of the sexual acts in front of family members. The court held a public hearing, in accordance with the holding in Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982), so that members of the press and public could present any arguments they might have in favor of their being allowed to remain in the courtroom during the victim's testimony.

The only people who requested to stay were family members. Most of these people were members of the immediate family of the defendant and the victim, and they testified that they wished to be in the courtroom in order to influence their sister's testimony. The testimony of her half-brother Joe Masaniai was that he wanted to "look her in the eye" so that she would not tell the vicious lies she had been telling about their father. Taking into account the demeanor of the witnesses and the history of alleged harassment of the girl by family members, the court determined that what they really wanted was to deter her from telling her story without reference to whether it was true or not. (Subsequent events bore this out: at trial it became clear that Mr. Masaniai had coached his family in an elaborate network of lies about the victim of his crimes, in an effort to convince the court that none of the events she complained of had ever happened and that she was a pathological liar. At an earlier time, however, his strategy had been somewhat different: he had bragged to disinterested persons, two of whom testified at trial, that his "checking" of his daughter's private parts was the will of God and that the practice was the cause of his other daughters' success in life.) [4ASR2d158]

The other group of people who wished to remain in the courtroom consisted of two persons more distantly related to the defendant and the victim, who testified that they were curious about what the true facts were. Although this is the usual interest that members of the public have in a courtroom proceeding, it is outweighed in some cases both by the interest of a victim (especially a minor victim) in not becoming an object of salacious curiosity. Globe Newspaper Co., supra, 457 U.S. at 607-08 (footnotes omitted):

We agree.... that the first interest ---safeguarding the physical
and psychological well-being of a minor--- is a compelling one
....A trial court determine on a case by case basis whether
closure is necessary to protect the welfare of a minor victim.
Among the factors to be weighed are the minor victim's age,
psychological maturity and understanding, the nature of the
crime, the desires of the victim, and the interests of parents
and relatives.

In this case the court did its best to comply with the requirements of the Globe case ---which, incidentally, involved the public's first amendment rights rather than the sixth amendment right of a defendant. The court was (and is) convinced that exclusion of the public during the victim's testimony was necessary. The curiosity of distant relatives and other members of the public was outweighed by the need to protect her psychological well-being. The interest of the closer relatives was stronger, but so were the reasons for excluding them They were a large, forceful, and demonstrative group of people who were determined to intimidate the victim. Both her interest in not being subject to such pressure and the interest of the court and the public in enhancing the possibility that the victim would testify truthfully and thoroughly would have justified the exclusion, even if the intimate nature of her testimony had not. See, e.g., United States v. Eisner, 533 F.2d 987 (6th Cir. 1976); United States ex rel. Bruno v. Herold, 408 F.2d 125 (2d Cir. 1969).

II. Sexual Intent

The "sexual abuse" statute, A.S.C.A. § 46.3612, requires that there be a touching of the private parts without consent and "for the purpose [4ASR2d159] of arousing or gratifying sexual desire of any person." A.S.C.A. § 46.3601. Although Mr. Masaniai told his daughter that his intent was to see whether she was a virgin or not, he took several minutes to do this, and whispered to her repeatedly that she was a good girl and that he loved her. We inferred sexual intent from these circumstances and from the nature of the act.

The sodomy statute, A.S.C.A. § 46.3611, does not require any proof of sexual intent; the penetration of the genitals with the hand suffices. We decline the invitation of defense counsel to read a requirement of sexual intent into the statute.

This is not to say, as defense counsel suggests, that a doctor could be convicted for performing a gynecological examination; that was clearly not the intent of the legislature. Despite the similarity of Mr. Masaniai's act to certain ceremonies that were said to be part of the pre-Christian Samoan tradition, we emphatically do not believe the legislature intended any exemption for such acts. Indeed, there is no reason to believe that sexual pleasure was not derived from them. In any case, such acts were specifically prohibited by statute prior to the enactment of the American Samoa Code Annotated, and the statutes we have cited are broad enough to prohibit them along with what Mr. Masaniai did.

The motion is denied.

**********

American Samoa Gov’t v. Moafanua,


AMERICAN SAMOA GOVERNMENT

 

v.

ALFRED LOTUPU MOAFANUA, Defendant

High Court of American Samoa
Trial Division

CR No. 63-86

February 24 1987

__________

When each of two crimes requires proof of an element not included in the other, and when defendant sought severance of the two charges and immediately pled guilty to the less serious offense, trial on the other charge does not constitute double jeopardy.

Before REES, Chief Justice, and VAIVAO, Associate Judge.

Counsel: For Government, William Wallace, Assistant Attorney General
For Defendant, Michael Bennett, Assistant Public Defender

On Motion to Dismiss:

The defendant was charged with Manslaughter, Homicide by Vehicle, and Reckless Driving. The three counts were charged in a single information and arose from the same incident.

At the time set for the preliminary examination before the District Judge, the , defendant's counsel pointed out that Reckless Driving, unlike the other two counts, is a misdemeanor and that the government is not entitled to a preliminary examination in misdemeanor cases. He then made the following request:

Before we go into the preliminary examination I request an opportunity
to enter a plea to this charge [i.e., the Reckless Driving count] since
it's within the jurisdiction of the District Court, [4ASR2d34] not
something [to be] joined with the High Court.

The District Judge agreed that there should be no preliminary examination in connection with the Reckless Driving count and asked how the defendant would like to plead. Defense counsel responded that the defendant would enter a pea of guilty. The District Judge then said he would proceed with the preliminary examination on the other two counts, Defense counsel responded:

Before we proceed with that, are you going to take the guilty plea
from the defendant because if you do, if you accept the guilty plea,
we have an objection to the preliminary examination.

There ensued an exchange during which the District Judge attempted to reserve until later the decision on whether to accept the guilty plea. and defense counsel again requested an immediate decision. Finally the defense counsel formally objected to continuing with the examination until the judge decided whether to accept the guilty plea on the Reckless Driving count. After a short recess the judge briefly interrogated the defendant, accepted the plea, and deferred sentencing until the next week.

The court then attempted once again to proceed with the preliminary examination on the first two counts.

At this point defense counsel announced an objection "to any further proceedings" on the ground that they would subject the defendant to double jeopardy in violation of the Fifth Amendment to the United States Constitution.

The defendant's argument was that Reckless Driving was a lesser included offense within the two homicide counts, and that proceeding on the greater charges after he had been convicted on the lesser would subject him to two trials and perhaps to two penalties for the same crime. The District Court, however, denied the motion and proceeded with the preliminary examination. The judge found that there was probable cause to charge the defendant with Homicide by Vehicle, but not with Manslaughter. The defendant now renews his motion to dismiss the Homicide by Vehicle proceedings on [4ASR2d35] the ground that they subject him to double jeopardy.

We deny the motion for two reasons.

First, under the test most recently announced by the United States Supreme Court, it appears that the Reckless Driving count in this case should be regarded as a "different offense" than the Homicide by Vehicle count rather than as a lesser included part of the "same offense." In Illinois v. Vitale, 447 U.S. 410 (1980), the defendant had been charged both with a traffic offense ("careless failure to reduce speed") and with involuntary manslaughter in connection with an automobile accident. The traffic offense was charged in a citation issued by the police officer at the scene of the crime. The manslaughter charge was brought later. The defendant pled not guilty to the traffic offense and was convicted after a trial. He then moved to dismiss the manslaughter charge on the ground of double jeopardy. The Supreme Court held, however, that involuntary manslaughter and careless failure to reduce speed, were different offenses, even when they arose from the same incident, so long as "each provision 'requires proof of a fact that the other does not." Id. at 416, quoting Brown v. Ohio, 432 U.S. 421, 422 (1977). Since the defendant could be convicted under the manslaughter count without proof of a careless failure to reduce speed, and careless failure to reduce speed could be established without proof of a death, the two proceedings did not place the defendant in double jeopardy.

In this case it is clear that each count requires proof a fact which is not necessary for proof of the other count. Homicide by Vehicle, defined in A.S.C.A. § 22.0706, requires proof of a death. Reckless Driving, defined in A.S.C.A. § 22.0702, requires proof that the defendant drove his vehicle "in wilful and wanton disregard for the safety of persons or property" a fact unnecessary to proof of Homicide by Vehicle, which can be sustained by proof of the less serious charge that the defendant drove "in a careless and imprudent manner, without due regard for attending circumstances." This would constitute proof of Careless Driving, prohibited by A.S.C.A. § 22.0702. Any traffic violation shown to be the proximate cause of a death is sufficient for conviction of Homicide by Vehicle. A.S.C.A. § 22.0706. The information in this case fairly charges Careless Driving both in the statement of [4ASR2d36] the "wilful and wanton" standard quoted above (which would allow the jury to find carelessness and imprudence as a lesser included charge if they failed to find wilfulness and wantonness) and in the separate statement that defendant "failed to exercise or display proper manuevering [sic] skills to avoid hitting the minor victim." Therefore the two counts charge different offenses and the two separate proceedings do not constitute double jeopardy. (1)

Even if the Reckless Driving count were necessarily included within the Homicide by Vehicle count, however, we would deny the motion for a second reason. This has to do with the circumstances under which the alleged double jeopardy came into being. The record reflects that the government wished to subject the defendant to only one proceeding and one punishment. It was only at the specific, urgent, and repeated demand of the defendant's lawyer that the District Judge severed the one proceeding into two. The record further suggests quite strongly that defense counsel insisted on the severance for the very purpose of surprising the government and the District Judge with a double jeopardy motion the moment the guilty plea had been accepted. (2) [4ASR2d37]

Our holding on this point can be phrased in a number of ways. The one that comes most easily to mind for lawyers and judges is in terms of waiver or estoppel: the defendant, whose lawyer demanded an immediate hearing on the Reckless Driving count as a prerequisite to the hearing on the Homicide by Vehicle count, has lost whatever right he would otherwise have had to assert the former as a bar to the latter. This statement of the argument, however, does not capture the extent to which the point goes to the heart of what the Double Jeopardy Clause is about.

Insofar as it prohibits prosecution of a greater offense after conviction of a lesser, the Double Jeopardy Clause is designed to deal with two kinds of situations. The first of these is the situation in which the trier of fact may have intended a conviction of a lesser offense as an implicit acquittal on the greater charge. The record here reflects that this was clearly not the case; rather, the District Judge acquiesced in defense counsel's demand for an immediate hearing on the plea of guilty to Reckless Driving precisely in order to get on with the Homicide hearing. The second situation is that in which a defendant is "forced ...to endure the personal strain, public embarrassment, and expense of a criminal trial more than once for the same offense." Abney v. United States, 431 U.S. 651, 661 (1977). None of these elements is present here. The Reckless Driving proceeding, which consisted entirely of defendant's voluntary guilty plea and a few questions to ensure that it was knowing and voluntary, seems from the record to have taken less than a minute from start to finish. Moreover, whatever "strain, public [4ASR2d38] embarrassment, and expense" were involved were not "forced" on the defendant; he could have avoided them, and the penalty subsequently imposed (3), if his lawyer had only not demanded them.

This is, in sum, hardly the case described by Mr. Justice Black in which "the State with all its resources and power" makes repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety, and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." Green v. United States, 355 U.S. 184, 187-88 (1957). Indeed, it is very nearly the opposite: a case in which a talented Public Defender, calculating that the prosecutor and the district judge at a preliminary examination may not have charted all the nooks and crannies of double jeopardy jurisprudence, deliberately exposes his own client to a relatively mild form of jeopardy in the hope of inoculating him against the far more serious consequences the law justly attaches to the acts he is charged with committing.

We do not mean to disparage the defense counsel, who acted in the sincere belief that such efforts were part of his duty to his client. Our duty as judges, however, includes the responsibility to minimize the extent to which strategy and tactics rather than substance determine the development of doctrines and the outcome of cases. [4ASR2d39]

The motion is denied.

**********

1. During oral argument on this motion the Chief Justice stated a different version of the Vitale test: if proof of Homicide by Vehicle in this case required proof either of Reckless Driving of any lesser offense included within Reckless Driving, then the two counts would charge the same offense. The Chief Justice continues to believe that such a test would be consistent with the policies underlying the Double Jeopardy Clause. Careful study of Vitale, however, reveals that the United States Supreme Court ---whose opinions on federal constitutional questions are binding on this court ---favors instead the test stated in the text of this opinion.

2. At one point prior to th acceptance of the plea, the defense counsel did indicate that if the plea had been accepted he now had an objection to the preliminary hearing. It was not at all clear, however, that such an objection would be to the legitimacy of any further proceedings in the case, and it appears, from the record that the District Judge did not understand it as such. Moreover, defense counsel immediately thereafter requested the judge to say whether the guilty plea had been accepted "before we proceed," and reiterated a few seconds later that he "would object to continuing it [i.e., the preliminary examination] until the status of that has been entered has been resolved." The record in its totality reflects that defense counsel encouraged the District Judge to believe that the preliminary examination on the homicide counts could go forward without objection if and only if the guilty plea to Reckless Driving was immediately accepted.

3. Although we deny the motion to dismiss the Homicide by Vehicle charge, we will construe it as, an appeal from the entirety of the District Judge's ruling and will vacate the $250 fine and the one year prison sentence (suspended) imposed by the District Judge on the Reckless Driving charge. Although this is not technically required as a matter of law, since Reckless Driving and Homicide by Vehicle are not the "same offense" for double jeopardy purposes, it is within our discretion and will shield the defendant from harm similar although not identical to that prohibited by the Double Jeopardy Clause. This part of our order will be stayed pending the outcome of any appeal from our denial of the motion to dismiss.

American Samoa Gov’t v. Masaniai,


AMERICAN SAMOA GOVERNMENT

v.

MALESALA aka TAULAGA MASANIAI, Defendant

High Court of American Samoa
Trial Division

CR No. 9-87

June 29, 1987

__________

Although a defendant cannot be convicted of a crime unless the evidence establishes his guilt beyond a reasonable doubt, a conviction should not be vacated merely because at some time after the conviction the accumulation of evidence against the defendant falls slightly below this standard.

That a complaining witness in a sexual assault case later recants her testimony does not of itself require that the conviction be vacated.

Conviction of father for sex crimes against his minor daughter should not be vacated on account of later statement by the complaining witness that she had testified falsely at trial, at least where (1) other witnesses reaffirmed their testimony concerning defendant's admissions and (2) court concluded from testimony and demeanor of complaining witness that she had testified truthfully at trial and had been moved to recant only because of pressure from her family and a desire to help her father.

Before REES, Chief Justice, TAUANU'U, Chief Associate Judge, and AFUOLA, Associate Judge.

Counsel: For the Government, William Wallace, Assistant Attorney General
For Defendant, Charles Ala'ilima

On Motion to Vacate Judgment:

The prisoner, Malesala Masaniai, was convicted of Sodomy and Sexual Abuse in the First Degree. The complaining witness was his seventeen-year-old [4ASR2d184] daughter. He was sentenced to concurrent terms of five and ten years in the correctional facility, with the sentences suspended on condition that two years actually be served.

About two months after Masaniai's conviction, defense counsel moved for a reduction of sentence and proposed to call the victim as a witness at the hearing on this motion. On the day set for the hearing, defense counsel informed the Court that although the witness had originally been called for the purpose of requesting clemency for her father, counsel had just been informed that she might instead recant the testimony she gave at trial. In this case the defense would request not that the sentence be reduced but that the conviction be vacated. The court continued the matter for two weeks so that both sides could prepare for a hearing on such a motion.

At the hearing, the prisoner's daughter did recant her testimony. The government then recalled one of the witnesses at the trial, a social worker who had been assigned to investigate this and previous allegations of sexual abuse by Mr. Masaniai. This witness reiterated his earlier testimony that Masaniai had admitted performing sexual acts upon his daughter on the pretext of checking to see whether she was a virgin. The social worker also testified that the victim had recently told him of her intention to lie to the Court in order to secure her father's release.

Defense counsel argues that the victim's new testimony must at least induce a reasonable doubt about whether Masaniai committed the crime, and that his conviction must therefore be vacated. Although in light of our factual conclusion it is unnecessary for us to reach this question, we doubt that this is the test to be applied to a motion such as this one. It is one thing to say that the defendant must be acquitted even if the judge or jury believes him to be guilty unless the government has met the extraordinarily difficult burden of proving him guilty beyond a reasonable doubt. It is quite another thing to say that the record of every trial shall remain perpetually open and that the defendant must be set free ---again, even if the judge or jury still believes him guilty ---if at any future moment the accumulation of evidence against the defendant should fall slightly below the formidable standard it once met. The family and friends of every convicted criminal would have a strong incentive to effect changes in [4ASR2d185] the testimony of every witness and all the time in the world to accomplish this task.

In this case, however, even the application of such a standard would not change the result. Both judges who convicted the prisoner are still convinced beyond a reasonable doubt that he is guilty.

Several factors lead us to this conclusion: First, the testimony of the social worker to which we have already referred, as well as the unrecanted testimony of another witness who testified that Mr. Masaniai had admitted the act to her. Second, the demeanor of the complaining witness, which at trial was that of a witness who was telling the truth and at the recent hearing was that of a witness who was lying in order to protect a loved one. Third, the victim's admission ---after an initial denial that her testimony was induced in any way by her family ---that she had decided to recant after her attempts to be reaccepted as a member of her family had been rebuffed, and that when she went to visit her father in the correctional facility virtually his first words to her were that his fate was in her hands.

The Court has always clearly understood that the victim loves her family and does not wish to punish her father for what he did. We understand and sympathize with her feelings about this, and we admire her willingness to help her father although we cannot condone the means she has chosen. Under the circumstances ---including the seriousness of the crime and Mr. Masaniai's determination to evade .its consequences by lying and by getting other family members to lie for him, which effectively eliminated the alternative of family counseling--- the Court concluded that punishment was necessary. The most recent episode bolsters that conclusion.

The motions are denied.

**********

American Samoa Gov’t v. Fesagaiga,


AMERICAN SAMOA GOVERNMENT

v.

TAULAFOGA FESAGAIGA aka SAITO

High Court of American Samoa
Trial Division

CR No. 60-86

February 23, 1987

__________

Counsel should be appointed by the court without cost to a criminal defendant only when he is genuinely unable to pay for his own lawyer.

For the purpose of determining whether a criminal defendant is unable to pay for his own lawyer, the court should consider all funds available to the defendant from all sources, not just the income from his employment.

Before REES, Chief Justice.

Counsel: For the Government, Tauivi Tuinei, Assistant Attorney General
For the Defendant, Aviata Fa'alevao

Opinion and Order on Post-Trial Motions:

Taulafoga Fesagaiga, also known as Saito, was charged with two counts of Assault in the Second Degree. At his initial appearance before the District Court he said he could afford his own lawyer. Later, however, he told the District Court Judge he was unable to afford a lawyer and wished the court to appoint one for him. After asking him a few questions about his income and assets, the District Judge appointed a lawyer.

After a jury trial in which Mr. Fesagaiga was acquitted, the court received two documents from his lawyer. One was a request for reimbursement of attorney's fees of up to $1,840. (The court has since determined that $1,500 is a more appropriate fee.) The other document was a motion to reimburse the defendant $2,000, the amount he had posted in [4ASR2d30] cash as a bail bond. Curious about how someone could be so poor that the taxpayers should pay his legal bills and yet be able to come up with $2000 in cash on short notice, the court ordered the defendant to show cause why his attorney's fee should not be paid out of the $2000 he had posted with the court.

At the hearing on the .order to show cause, Mr. Fesagaiga testified that he had obtained the $2000 from a man he referred to as "my Korean friend." Upon questioning by the court he revealed that this benefactor was his employer, who seems to be far more generous in posting bail bonds than in paying wages. Mr. Fesagaiga testified that he earns only about $100 per month, and that no other funds are available to him either to pay his attorney's fees or to support his family.

The court took the motion under advisement in order to review a transcript of what Mr. Fesagaiga had told the District Judge. (1) This testimony, although not apparently untrue, seems highly [4ASR2d31] misleading. Asked about his monthly expenses, Mr. Fesagaiga responded:

I am the sole supporter of my family and my father's matai title. I'm
the only one working and the only one that earns an income that goes
to the providing and caring for the need[s] of the family.

Mr. Fesagaiga's father is Mauga. There is no higher title and no more influential family in American Samoa. Perhaps the implication that the welfare of the Mauga title and the Mauga family depend solely on Mr. Fesagaiga's $100 per month was unintended. Even if he was referring only to his father's immediate family, however, this family should not have been used as an excuse to avoid payment of attorney's fees, but as a possible source of payment.

Mr. Fesagaiga testified that he lives with his father and is actively engaged in rendering service to him. Members of his family have been actively involved in the case from the beginning; the $2000, for instance, although it may well have been provided by his employer, was brought to court by Mr. Fesagaiga's sister. Indeed, an important element of his successful defense at trial was his claim that the incident in which he was charged began with an insult to the honor of his family. His employment at Korea House ---and the alacrity with which the manager of that institution came forward with $2000 in cash for bail ---say at least as much about the respect and the resources commanded by his family as they do about his own personal qualities, although these are undoubtedly many. And yet he asks to be treated, for the purpose of determining his poverty if for no other purpose, as though he were not his father's son.

In retrospect, it seems as though Mr. Fesagaiga should not have been declared indigent without a determination of whether his family's assets were sufficient to pay his attorney's fees. In the future, at least when a defendant resides with his parents, this will be the practice. Since no evidence was taken in the original appearance concerning any assets other than those held in Mr. Fesagaiga's own name, however, and since it appears that he truthfully answered the District Judge's questions about these assets, the District Judge's finding that he is indigent will not be reversed. Although it seems unfair for Mr. Fesagaiga to charge the taxpayers for his lawyer, it would also [4ASR2d32] be unfair for the court to apply a different rule now than was applied at the beginning of the case. The $2000 will be returned to him.

We leave it to Mr. Fesagaiga's conscience and to his family whether his attorney's fees will be paid by the taxpayers or by those who are, according to Samoan tradition, primarily responsible for his needs.

Mr. Fesagaiga may have been under an honest misunderstanding, which we should clear up: the provision for appointment of an attorney for indigent defendants is not a general entitlement of all citizens. Unlike a government pension plan, it has nothing to do with anything the recipient has earned. It is not designed to enable those of us who are wealthy or moderately well-off to avoid the inconvenience of paying a lawyer when we would rather have a vacation or a new car. Rather, it is reserved for those very poor people for whom it is impossible to pay. It is a kind of public welfare program.

Many American Samoans are justly proud of the fact that the people of the Territory have rejected the introduction of federal welfare programs here, on the ground that Samoan families take care of their own needy members. Partly for this reason, the total annual budget for court-appointed attorneys is only $15,000. This money does not come from Washington but must be provided from local government funds, and in the past it has been adequate. For one/tenth of it to be used in a single case, not by a defendant who would otherwise find himself alone and friendless but by a prominent member of one of the Territory's leading families, seems morally wrong even if it is legally permissible. If Mr. Fesagaiga wishes to bring this shame on "his family the court will not prevent him from doing so. But if he should prefer to pay whatever he can afford, taking into account all of the resources available to him. he is also free to take that course.

**********

1. It should be noted that in the five working days it has taken for the court reporter to produce a transcript of Mr. Fesagaiga's appearance and for the Chief Justice to review that transcript, to decide how to rule on Mr. Fesagaiga's motion, and to write this opinion, various court employees have received telephone calls from members of Mr. Fesagaiga's family concerning the case. It is a judge's sworn duty to decide each question on its merits and not to be prejudiced against litigants even when they behave improperly. It cannot be emphasized too strongly, however, that attempts to pressure or influence the court are far more likely to backfire than to succeed. (It is true that what feels like improper pressure to one person may feel more like healthy curiosity to another. It is because of the likelihood of such misunderstandings that courts have rules requiring all communication with the court on behalf of a litigant to be through the litigant's attorney, with notice to the opposing party.)

Ah San v. Lutali,


VINCENT and MANINO AH SAN, Plaintiffs

v.

GOVERNOR A.P. LUTALI,
COMMISIONER OF REVENUE, AMERICAN
SAMOA GOVERNMENT, Defendants

High Court of American Samoa
Trial Division

CA No. 87-86

June 29, 1987

__________

In proceeding involving issue of fraudulent intent to evade tax, government bears burden of proof by clear and convincing evidence. 26 U.S.C. § 7454.

Normal three year statute of limitations for collection of delinquent taxes expands to six years when taxpayer failed to report over 25 percent of his includible gross income in tax return. 26 U.S.C. § 6501(e)(1)(A).

In determination whether taxpayer omitted 25 percent or more of gross income from return, in order to trigger special six-year statute of limitation, an item is not "omitted" if taxpayer did not include the item in gross income but referred to it elsewhere in the return or in an attachment in a matter sufficient to apprise the government of its nature and amount. 26 U.S.C. § 65.01 (e)(1)(A).

Where government's own documents indicate that taxpayer included allegedly omitted items on return, but simply did not include them in calculation of gross income, items were not "omitted" so as to justify special six-year limitation of actions to remedy taxpayer omissions of over 25 percent of gross income. 26 U.S.C. § 6501(e)(1)(A).

Before KRUSE, Associate Justice, OLO, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Plaintiff, Charles Ala'ilima
For Defendants, Martin Yerick Assistant Attorney General [4ASR2d178]

Petitioners move for partial summary judgment against the assessment of certain deficiency determinations made by the respondent, American Samoa Government, involving income tax years 1980, 1981 and 1982 upon the ground that the asserted tax deficiencies were barred by the three year statute of limitation provided in the United States Internal Revenue Code, 26 U.S.C. § 6501(a), as adopted by the Territory in A.S.C.A. § 11.0401, with amendments A.S.C.A. §§ 11.0501 et. seq.

At the hearing of petitioners' motion, respondents in their memorandum supplied and filed the day before raised the "fraud" exception , provided in the enactment, whereby a tax may be assessed at any time. No showing of any sort was offered by respondent as to fraud.

Under 26 U.S.C. § 7454 it is provided that the burden of proof in any proceeding involving the issue whether the petitioner has been guilty of fraud with intent to evade tax shall be upon the respondent. The courts have held that the standard of requisite proof is "clear and convincing evidence". Kreps v. Commissioner, 351 F.2d 1 (2d Cir. 1965); Carter v. Campbell, 264 F.2d 930 (5th Cir. 1959).

Upon further briefing directed by the Court, respondent abandoned its fraud contention and further advised the Court that it was not opposing summary judgment in favor of petitioners for the year 1981. In lieu of the fraud exception to the general three-year statute of limitation, respondent invokes the six-year limitation exception provided in the Code, 26 U.S.C. § 6501(e)(1)(A). Essentially this enactment provides that in the case of a tax payer omitting from gross income an amount properly includible therein in excess of 25 percent of the amount of gross income stated in the return, the corresponding taxes may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at anytime within six years after the return was filed.

It has been held that this provision is not a penalty statute, but merely provides a longer period in which a deficiency assessment may be made whenever there is an omission of more than 25 percent of gross income stated in the return. Greiger's Estate v. Commissioner, 352 F.2d 221 (8th Cir. 1965) cert. denied 382 U.S. 1012 (1966). [4ASR2d179]

For purposes of this enactment, subparagraph (A) thereof provides that the term "gross income" means the total of the amounts received or accrued from the sale of goods or services (if such amounts are required to be shown on the return) prior to diminution by the cost of such sales or services; and in determining the amount omitted from gross income, there shall not be taken into account any amount which is omitted from gross income stated in the return if such amount is disclosed in the return, or in a statement attached thereto, in a manner adequate to apprise the government of the nature and amount of such item.

Prior to Congressional supply of this definitional or clarifying subparagraph, the Supreme Court harmoniously interpreted the language "omit from gross income any amount includible therein" as embracing only the omission from a return of an item received by or accruing to the taxpayer, and did not include an understatement of gross income arising from an error in reporting an item disclosed on the face of the return. Colony Inc. v. Commissioner of Internal Revenue, 357 U. S. 28 (1958). In other words, the enactment applied only in those instances concerning data nonexistent on the return; where the return on its face provides no clue to the existence of the omitted items, the Commissioner is at a special disadvantage in detecting errors. On the other hand, there is no disadvantage when the understatement of a tax arises from an error in reporting an item disclosed on the face of the return.

Given, therefore, legislative intendment as to the proper ambit of 26 U.S.C. § 6501(e)(1), we are of the opinion that the reliance by respondent herein on the six-year limitation provision is misplaced for the reason following. By way of explaining the various deficiency notices for years 1980, 1981, and 1982, respondents have documented as follows:

Due to your failure to submit this office with records requested
to substantiate your profit and loss statement, we therefore
have no alternative but used all informations as reported on
the original returns filed with this office. (Emphasis added).

On these factual assertions by respondents provided as exhibits to the petition and admitted in the answer filed herein, we conclude that the [4ASR2d180] omissions excepted to by respondents pertained to errors disclosed on the face of the return. As a matter of law the six-year limitation provision is inapplicable, and accordingly the general three-year limitation statute governs.

The motion for summary partial judgment is granted and it is so Ordered.

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Agasiva; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT

v.

MICHAEL AGASIVA, Defendant

High Court of American Samoa
Trial Division

CR No. 5-87

May 7, 1987

__________

Territorial statute permitting jurors who can read, speak, and understand Samoan but not English does not violate defendant's constitutional right to effective assistance of counsel. 46 A.S.C.A. § 46.1504.

Fact that jurors who speak only Samoan must receive jury instructions through translator does not violate constitutional right to due process; need for translation is inevitable in bilingual territory where many witnesses and jurors speak one language but not the other. 46 A.S.C.A. § 46.1504.

Disqualification of jurors in Samoa on basis of their inability to speak, read, or understand English would defeat concept of randomness that underlies idea of trial by impartial jury.

Before KRUSE, Associate Justice

Counsel: For the Government, Tauivi Tuinei, Assistant Attorney General
For Defendant, William Reardon

On Motion in Limine:

This matter came on for hearing upon defendant's motion to disqualify for cause all those prospective jurors who are unable to read, speak, and understand the English language. The motion in essence seeks to challenge a significant sector of the community otherwise eligible to serve as jurors under A.S.C.A. § 46.1504. This enactment's effect also qualifies as jurors those persons who are able to read, speak and understand the Samoan language although neither literate nor conversant in English. It is this sector of the community which defendant seeks to disqualify. [4ASR2d111]

Defendant argues that his constitutional right to the effective representation of counsel, as secured by the territorial and federal constitutions, would be denied him if he were tried before a non-English speaking jury. He contends that, "A defendant in a criminal case has a right to have his case heard by jurors who understand his lawyer, the witnesses, and the judge without the necessity of an interpreter."

Central to plaintiff's claim against the status quo is the fact that the judge's instructions on legal matters will have to be interpreted to a non-English speaking jury. The concern raised is that certain legal concepts--the varying degrees of homicide, reasonable doubt, and the presumption of innocence ---do not lend themselves to adequate translation into Samoan terminology.

The first observation is that legal notions of the type referenced by defendant are of themselves difficult to formulate in layman terms even with the English language. Secondly, the Court is unable to accept as a self evident truth that English labels are more adequate than Samoan labels to convey such legal concepts in layman terms. Without some showing, the Court is not able to declare unconstitutional an enactment by the Fono, which obviously came about with cognizance of the bilingual situation in the Territory, upon the mere recitation of disagreement with the system.

Even if defendant's assumptions may be conceded, his argument is not tenable. It places emphasis, in the name of due process, upon reception by the jury of purely legal matters--- instructions by the judge ---but the effect of that is to necessarily undermine the crucial role of the jury to find the facts. Experience tells us that in the great majority of the cases, the jury receives the testimony from Samoan speaking witnesses. Therefore, with an English speaking jury, interpretation of such testimony from Samoan into English is unavoidable. The corollary of defendant's argument is the same perceived evil that gives rise to his complaint, that is, interpretation.

Further, the fact finder's role in sorting out the truth must be more meaningful when a witness speaking and thinking in Samoan is addressing a juror speaking and thinking in the same language. This is significantly the case when it comes to [4ASR2d112] those factors which lend themselves only to the intuitive process, such as demeanor, deportment and intonation.

Also, effective representation of counsel, would involve effective cross-examination of a witness. In the case of the Samoan speaking witness, the desired result of effective cross-examination must, on defendant's hypothesis, deteriorate after the interpretation of the witnesses' response to a non-Samoan speaking jury,

The question naturally follows where the system should place prominence: receipt of facts by the jury, or receipt of the law by the jury? The conclusion is that myopic pre-occupation with one aspect, of the system serves no good purpose if to displace or compromise other aspects of equal importance.

Finally, and perhaps most fundamental, it is randomness of selection from all cross-sections of the community which is at the root of jury systems. This is an integral feature with the system historically accepted as best enhancing "fairness" .

Defendant's argument, however, necessarily canvasses c, departure from randomness in favor of a tailor made and selective jury makeup, to fit a particular defendant. While the defendant has the undeniable right to trial by an impartial jury according to our notions of justice, he has never had the right to a trial by any particular jury. Our system is an adversary one, and "fairness" involves all parties, with neither having any vested right to a particular juror.

The motion is denied.

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4ASR2d175


JUDICIAL MEMORANDUM No. 3-87

High Court of American Samoa

June 24, 1987

__________

Persons who are likely to be called as witnesses should be notified as far in advance of trial as possible.

REES, Chief Justice, and KRUSE, Associate Justice:

The Court has recently received several complaints from witnesses who have received subpoenas a day or two before trial. although the attorney who sent the subpoena knew or should have known weeks or months before that he would need the witness's testimony.

This is one of the many reasons that attorneys should begin their trial preparation well in advance of the scheduled trial date. Courtesy requires that a person who is going to be required to inconvenience himself for the convenience of the Court and the parties be notified as far in advance as possible. Ordinarily such notice should be given informally shortly after the trial date has been set, and the attorney should check a couple of weeks before trial to verify the witness's availability and to find out whether a subpoena will be necessary. This is particularly important in the case of surveyors, doctors, government officials, and others who are frequently called to testify.

In some cases there will be compelling reasons to notify a witness of the need for his testimony only a day or two in advance. That the attorney only got around to serious trial preparation in the last couple of days is not a compelling reason.

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4ASR2d80


In re A MINOR CHILD

High Court of American Samoa
Trial Division

JUV No. 95-86

June 29, 1987

__________

Natural father's parental rights cannot be terminated without compliance with statutory requirements, including that diligent efforts be made to give actual notice.

A party seeking the termination of parental rights must provide notice to the child's natural father, either by the statutorily approved method, or by publication if permitted by court order.

In assessing the best interests of a child for the purposes of a proceeding to terminate parental rights so that the child can be adopted, the court must consider the prospective adopting parents' ability to support the child until the child's majority and may therefore consider the ages of the child, of the natural parents, and of the prospective adopting parents.

The best interests of a two-year-old child would not be served by terminating the parental rights and obligations of her natural mother so that she could be adopted by her seventy-six-year-old great-grandmother.

Before REES, Chief Justice, AFUOLA, Associate Judge, and TUIAFONO, Associate Judge.

Counsel: For Petitoners, Talalelei A. Tulafono, Roger K. Hazell

We cannot grant the requested termination of parental rights. Aside from the apparent failure to serve the natural father in accordance with the court's order allowing publication or with the alternative method provided by statute, the prospective adopting parent is the child's seventy-six-year-old great-grandmother. [4ASR2d181]

Although the Court greatly admires grandparents and other relatives who provide love and shelter to the children of family members who are less well situated to take care of them, there are some cases in which a fa'a Samoa adoption would be proper but a legal adoption would not. Every child has a strong interest in having natural or adoptive parents who will be able to support him and legally obliged to do so until he reaches the age of majority. This child is only two years old . When she reaches the age of majority her natural parents will be in their thirties and the prospective adoptive parent will be ninety-two years old. We understand that other family members may be willing to take over the care of the child if her great-grandmother should become unable to care for her, but this can happen whether or not the legal rights and obligations of parenthood are shifted from the natural parents to the great-grandmother. The only question before us is whether the natural parents' legal rights and obligations should be terminated, and we conclude that they should not .

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Essay