7ASR3d16

KALOLO STOWERS,

Appellant

 

v.

 

AMERICAN SAMOA

GOVERNMENT, Appellee

___________________________________

 

FAATULU SAMANA,

Appellant

 

v.

 

AMERICAN SAMOA

GOVERNMENT, Appellee

 

High

Court of American Samoa

Appellate

Division

 

AP No. 03-01

AP No. 12-01

 

March 24, 2003

 

[1] Whether a criminal defendant has a

statutory right to a jury trial is a question of law to be reviewed de novo.

 

[2] When the

legislature speaks in the form of a properly adopted statute, courts must

attempt to provide a rational interpretation.

 

[3] It is an

elementary canon of statutory construction that a law is not to be construed so

that its provisions are mere surplusage.

 

[4] Each

provision of a statute is to be given full effect.

 

[5] To determine

whether a statute presents an unconstitutional amendment by reference, courts

apply a two pronged test: (1) is the amendment such a complete act so that the

scope of the rights or duties created or affected by the legislation can be

determined without referring to any other statute or enactment; (2) is whether

“a straightforward determination of the scope of rights or duties under the

existing statutes be rendered erroneous by the new enactment.” 

 

[6] An

amendment is not incomplete or unintelligible merely because executing its

provisions requires resort to other statutes.

 

[7] A.S.C.A. §

Section 17 does not require the re-enactment and publication of an entire

statute when the amendment affects only one subsection.

 

[8] A.S.C.A. §

3.0232(b) requires all jury trials to be heard before two associate judges

sitting with either the Chief or Associate Justice, even if the jury trial is

held before the district court.

 

[9] In all

statutory construction cases, the court begins with the language of the statute

and the inquiry ceases if the statutory language is unambiguous and the

statutory scheme is coherent and consistent.

 

[10] The court

cannot substitute its policy judgments for that of the legislature.

 

[11] The court

is bound by the clear words of the statute and cannot speculate as to what the

legislators might have overlooked.

 

[12] A statute

is not absurd because it is an exception to other statutes.

 

[13] A statute

is not irrational simply because it changes the prevailing practice.

 

[14] Courts

must presume that a legislature says in a statute what it means and means in a

statute what it says there.  When the

words of a statute are unambiguous, the judicial inquiry is complete.

 

[15] Every

defendant charged with an offense carrying a maximum possible punishment of

over 6 months of imprisonment, whether appearing before the High Court or the

district court, has the right to a jury trial.

 

[16] Where a

statute is susceptible of two constructions, by one of which grave and doubtful

constitutional questions arise and by the other of which such questions are

avoided, the court’s duty is to adopt the latter.

 

[17] Courts are

not to lightly assume that the legislature intended to infringe

constitutionally protected liberties or usurp power constitutionally forbidden

it.

 

[18]

Constitutional issues should not be needlessly confronted.

 

Before

RICHMOND, Associate Justice; WALLACE,*

Acting Associate Justice; MOLLWAY,** Acting Associate

Justice; MAMEA, Associate Judge; SAGAPOLUTELE, Associate Judge.

 

Counsel:

Curtis E. Sherwood, Assistant Public Defender, for Appellants

 Kalolo Stowers and

Faatulu Samana

            Fainu`ulelei L.F. Ala`ilima-Utu,

Assistant Attorney General,

 for Appellee American

Samoa Government.

 

 OPINION AND ORDER

 

In these two

consolidated appeals, Defendants-Appellants Faatulu Samana and Kalolo Stowers

appeal from the district court’s denial of their separate motions for a new

trial.  The district court in each case

determined that neither A.S.C.A. § 3.0232 nor the American Samoa Constitution

gave the defendants a right to a jury trial in the district court.  The district court had jurisdiction under

A.S.C.A. § 3.0302.  We have jurisdiction

over this timely appeal pursuant to A.S.C.A. § 3.0309. We reverse and remand

for new trials.

 

I.

Samana and Stowers were separately charged with driving under the influence of

alcohol, a class A misdemeanor, A.S.C.A. § 22.0707, punishable by up to one

year imprisonment, A.S.C.A. § 46.2301, and/or up to a one thousand dollar fine.

A.S.C.A. § 46.2102.  Over their

objections, the cases were heard by the district judge rather than a jury.

After they were convicted, each filed a motion for a new trial, arguing he had

a statutory and constitutional right to a jury trial.  Each of these motions was denied.

 

II.

 

[1] Whether the defendants have a right

to a jury trial in the district court under A.S.C.A. § 3.0232 is a question of

law we review de novo. Anderson v.

Vaivao, 21 A.S.R.2d 95, 98 (App. Div. 1992) (questions of law are reviewed de

novo); see also Kulas v.

Flores, 255 F.3d 780, 783 (9th Cir. 2001) (the right to a jury trial is a

question of law reviewed de novo).

 

Here we are

called upon to interpret A.S.C.A. § 3.0232, which states:

 

 (a) Any person charged with an offense

carrying a maximum possible punishment of over 6 months of imprisonment shall

be tried by a jury unless he personally waives this right in writing or in open

court. The Chief Justice of the High Court may promulgate Petit Jury Rules and

Standard Jury Instructions to govern jury trials in the High Court and district

court. The petit jury shall be comprised of 6 persons. The jury verdict must be

unanimous. Voir dire of prospective jurors shall be conducted by the court.

(b) Notwithstanding any law to the

contrary, whenever petit jury trials are held as provided in subsection (a), 2

associate judges shall sit with either the Chief or Associate Justice, who acts

as presiding judge of the court. All questions of law shall be ruled upon by

the presiding judge.

 

Both the

language and the history of the statute demonstrate that A.S.C.A. § 3.0232

provides Stowers and Samana with a right to a jury trial in the district court.

 

A. 

Interpretation of the Statute

Clearly, the first sentence of Section 3.0232(a) gives them this right, and the

sentence admits of no exceptions or qualifications.  To read the right as lacking in the district

court is to read out of existence Section 3.0232(a)’s expressly allowing the

Chief Justice of the High Court to promulgate petit jury rules “to govern jury

trials in the . . . district court.”

The government presents a number of arguments against this interpretation of

the statute.  First, the government

argues that even if Section 3.0232(a) permitted jury trials in the district

court, the language of Section 3.0232(b) governing the composition of the court

somehow trumps Section 3.0232(a).  The

Chief Justice and Associate Justice preside over High Court cases, A.S.C.A. §

3.1002(a), and associate judges sit in the High Court. A.S.C.A. § 3.1005.  District court sessions, in comparison, are

conducted by “a district court judge sitting alone.” A.S.C.A. § 3.0303(a).  The government argues that subsection (b)’s

requirement of two associate judges sitting with the Chief or Associate Justice

presiding must mean that jury trials may not be conducted in the district

court, because district court proceedings are conducted by a district judge

alone.

The government errs in its reading of subsection (b) as a descriptive, rather

than a prescriptive, statement of the composition of the court in hearing jury

trials.  Subsection (b) does not simply

describe the court that hears jury trials; rather, it prescribes the

composition of the court when hearing jury trials.  Thus, subsection (b) is prefaced by the

phrase “[n]otwithstanding any law to the contrary,” to demonstrate that

subsection (b) trumps the Code provisions providing district court sessions are

to be conducted by a district court judge sitting alone.

[2] The government’s reading of the statute would make nonsense of

subsection (a)’s explicit reference to the district court.  When the legislature speaks in the form of a

properly adopted statute, courts must attempt to provide a rational

interpretation.  The government’s reading

would also make unnecessary A.S.C.A. § 3.0232(b)’s explanation that “either the

Chief or Associate Justice . . . .act[ ] as presiding judge of the court.”  If jury trials were held only in the High

Court, subsection (b)’s explanation would be redundant, because the Chief

Justice or Associate Justice preside over the High Court.  A.S.C.A. § 3.1002(a).

[3-4] The government’s textual arguments violate the elementary canon of

construction that a statute is not to be construed to render its provisions

mere surplusage.  See TRW, Inc. v. Andrews, 534 U.S. 19

(2001); Biodiversity Legal Found. v.

Badgley, 309 F.3d 1166, 1175 (9th Cir. 2002); Am. Vantage Cos. v. Table Mountain Rancheria, 292 F.3d 1091, 1098

(9th Cir. 2002); United States v.

Fiorillo, 186 F.3d 1136, 1153 (9th Cir. 1999).  Instead, each provision of a statute is to be

given full effect. See Duncan v.

Walker, 533 U.S. 167, 174 (2001); Zimmerman

v. Or. Dep’t of Justice, 170 F.3d 1169, 1177 (9th Cir. 1999); Northwest Forest Res. Council v. Glickman,

82 F.3d 825, 834 (9th Cir. 1996). 

Additionally, given the explicit language of the amendment’s preamble,

we will not pretend that the insertion of the words “district court” was a slip

of the pen.  Pub. L. No. 16-53 (1980) (“A

number of statutes are amended by substituting the words ‘district court’ for

‘trial division of the High court’ [sic] . . . to clear up inconsistencies in

the Code concerning jurisdiction of the district court and High Court.”).

Finally, the government argues that because of the placement of the jury trial

statute in the chapter entitled “High Court,” and not in the chapter entitled

“District Court,” the statute should not be interpreted to permit jury trials in

the district court.  Yet section headings

“are for the purpose of convenience only, and are not to be considered a part

of any section, or as altering or affecting in any way the provisions of any

section.” A.S.C.A. § 1.0102.  Moreover, a

more coherent interpretation of the statute would dictate that the placement of

the statute in the High Court chapter is to reflect the fact that the High

Court Justices are to preside over the jury trial, even when the trial is

conducted in the district court.

 

B. 

History of the Statute

Not only does the text of the statute support the conclusion that jury trials

are to be held in district court, but the history of the statute supports it as

well.  The jury trial provision came on

the heels of King v. Andrus, 452 F. Supp.

11, 17 (D.D.C. 1977), which held that the United States constitutional right to

a jury trial extended to the territory of American Samoa.  In response, the American Samoa Legislature

enacted legislation authorizing jury trials in felony cases.  5 A.S.C. 413(a) (Supp. 1979).  Approximately six months later, the

Legislature created the District Court system (District Court Act) and, within

a year of that, amended the District Court Act to correct inconsistencies between

it and the petit jury trial statute. Pub. L. No. 16-53 (1979).  The amendment extended the jury trial right

from felony cases to all “offense[s] carrying a maximum possible punishment of

over 6 months of imprisonment,” forming the current A.S.C.A. § 3.0232(a).

The Legislature believed that the former petit jury trial statute’s provision

for jury trials only in felony cases fell short of the requirements of Andrus. Pub. L. Pub. L. No.16-53 (1979)

(“The statute governing jury trials is amended to provide jury trials for all

offenses carrying sentences of over six months, in conformity with

constitutional requirements.”).  At that

time, though not necessarily today, this was a reasonable conclusion.  Years before Andrus, the Supreme Court held that the right to a jury applied to

all crimes carrying a maximum penalty of more than six months.  Baldwin

v. New York, 399 U.S. 66, 69 (1970) (plurality opinion); accord United States v. Rylander, 714

F.2d 996, 1005 (9th Cir. 1983).  Given

the Legislature’s likely concern with the constitutionality of denying a jury

trial to a defendant charged with an offense carrying a maximum penalty of more

than six months, it is a reasonable conclusion that the Legislature did not

intend the statutory jury trial right extend only to those defendants charged

with such crimes before the High Court, but not before the district court.

 

III.

The district court held that interpreting the statute to permit jury trials in

the district court would amount to an unconstitutional amendment by

reference.  American Samoa’s Constitution

states, “No law shall be amended or revised by reference to its title only; but

in such case the act, as revised, or section or sub-section as amended, shall

be reenacted and published at full length.” 

Am. Sam. Rev. Const. art.

II, § 17.  The district court stated that

this constitutional mandate was violated when the legislature amended the

statute because it failed to republish other subsections of the Code dealing

with district court.  Thus, the district

court concluded:

 

the Legislature may have intended, by

including by reference the “District Court” as falling under the rules to be

promulgated for petit juries in subsection (a) of A.S.C.A. § 3.0232, that the

statutory right to a jury trial be afforded to misdemeanants tried before the

District Court. Yet amendment by reference is precisely what Sec. 17, Article

II of the Revised Constitution prohibits.

 

Am. Samoa Gov’t v. Petelo Lafaele, DCCA No. 43-00, slip op. at 18

(Dist. Ct. July 13, 2000).

Several states have enacted nearly identical constitutional provisions. Ala. Const. art. IV, § 45 (“[N]o law

shall be revived, amended, or the provisions thereof extended or conferred, by

reference to its title only; but so much thereof as is revived, amended,

extended, or conferred, shall be re-enacted and published at length”); Ariz. Const. art. IV, § 14 (“No Act or

section thereof shall be revised or amended by mere reference to the title of

such Act, but the Act or section as amended shall be set forth and published at

full length”); Ill. Const. art.

IV, §8(d) (“A bill expressly amending a law shall set forth completely the

sections amended”); Tex. Const.

art III, § 36 (“No law shall be revived or amended by reference to its title;

but in such case the act revived, or the section or sections amended, shall be

re-enacted and published at length.”); Wash.

Const. art. II, § 37 (“No act shall ever be revised or amended by mere

reference to its title, but the act revised or the section amended shall be set

forth at full length”).  These states’

interpretation of provisions similar to Section 17 informs our decision.

[5] Some states employ a test asking two questions to determine whether

a statute presents an unconstitutional amendment by reference.  The first question is whether the amendment

is such a complete act so that “the scope of the rights or duties created or

affected by the legislation . . . can be determined without referring to any

other statute or enactment.” Amalgamated

Transit Union Local 587 v. State, 11 P.3d 762, 800-01 (Wash. 2001); accord State v. L.N.A.0, 811 So. 2d 637,

642-43 (Ala. Crim. App. 2001); City of

Sierra Vista v. Dir., Ariz. Dep’t of Envtl. Quality, 988 P.2d 162, 167-68

(Ariz. Ct. App. 1999); Elford v. City of

Rattle Ground, 941 P.2d 678, 683 (Wash. Ct. App. 1997) (amendment which is

virtually incomprehensible without referring to another statute is not a

complete act).  The second question is

whether “a straightforward determination of the scope of rights or duties under

the existing statutes be rendered erroneous by the new enactment.”  Amalgamated

Transit, 11 P.3d at 801; accord In re

King, 49 P.3d 854, 858-59 (Wash. 2002); L.N.A.,

811 So. 2d at 642.  If the amended

statute is sufficiently complete and does not render existing statutes

erroneous, then Section 17 is not violated. 

If the amended statute is either incomplete or renders existing statutes

erroneous, and fails to reenact and publish these preexisting statutes, then

Section 17 is violated.

[6] The amendment to the petit jury statute is complete because it can

be understood without reference to other acts. 

The amendment republished the former subsection in full, and clearly

signified what was amended and how.  An

accused misdemeanant’s right to a jury trial can be determined without

referring to any other statute.  While

the procedural nuances of the jury trial are determined only by examining

pre-existing statutes, the scope of the right created by subsection (a), an

accused misdemeanant’s right to a jury trial in the district court, can be

determined without reference to any other statute.  The amendment is not incomplete or

unintelligible merely because executing its provisions requires resort to other

statutes.  L.N.A., 811 So. 2d at 643.

[7] Moreover, though subsection (b) was not republished, this does not

amount to a violation of section 17. 

Section 17 states that if a law is amended, the “sub-section as amended,

shall be reenacted and published at full length.”  Section 17 does not require the re-enactment

and publication of an entire statute when the amendment affects only one

subsection. See, e.g., Freeman v. Purvis,

400 So. 2d 389, 392 (Ala. 1981) (the prohibition of amendment by reference

“does not necessarily require the re-enactment of an entire legislative Act

when only one section is to be amended. An amendatory Act publishing at length

the section to be amended is sufficient.”); accord L.N.A., 811 So. 2d at 640.

The second question is also satisfied: a straightforward determination of the

scope of rights or duties under the existing statutes would not be rendered

erroneous by the amendment.  Prior to the

amendment, the Code was silent as to an accused misdemeanant’s right to a jury

trial in the district court.  Though the

amended petit jury statute may impliedly affect other sections, it would

be absurd to require the legislature to identify and publish all statutes that

might be affected by every amendment.

 

[T]o say that every statute which

thus affects the operation of another is therefore an amendment of it would

introduce into the law an element of uncertainty which no one can estimate. It

is impossible for the wisest legislator to know in advance how every statute

proposed would affect the operation of existing laws.

 

Am. Lung Ass’n v. Wilson, 59 Cal. Rptr. 2d 428, 432 (Cal. Ct.

App. 1996) (quoting Hellman v. Shoulters, 44 P. 915, 920

(Cal. 1896)).  Because the amended petit

jury statute does not render erroneous the scope of rights or duties under

pre-existing statutes, the second question in the test is satisfied.  Section 17’s prohibition of amendments by

reference was not violated.

 

IV.

 

[8-10] We are bound by the explicit

language of the statute, which unequivocally requires all jury trials to be

heard before two associate judges sitting with either the Chief or Associate

Justice, even if the jury trial is held before the district court.  A.S.C.A. § 3.0232(b).  “As in all statutory construction cases, we

begin with the language of the statute . . . . The inquiry ceases if the

statutory language is unambiguous and the statutory scheme is coherent and

consistent.”  Barnhart v. Sigmon Coal Co.,

534 U.S. 438, 450 (2002) (internal quotation marks and citation omitted); accord Hughes Aircraft Co. v. Jacobson,

525 U.S. 432, 438 (1999).  Though

applying subsection (b) to jury trials held in the district court might be an

“administrative nightmare,” as the dissent suggests, we cannot substitute our

policy judgments for the legislature’s. 

We interpret statutes; we cannot rewrite them.

[11] The dissent argues that the legislature clearly intended the

District Court to be a single-judge court. 

Yet the statute expressly requires three judges in all jury trials.  A.S.C.A. § 3.0232(b).  Except for the language of the statute, there

is no clear indication of what the legislature’s intent was.  The legislators and staff might have

overlooked subsection (b) in P.L. 16-53, but we are bound by the clear words of

the statute, and we cannot speculate as to what the legislators might have

overlooked, and hypothesize what they would have done had they remembered

subsection (b).  “In analyzing a statute,

we begin by examining the text, not by psychoanalyzing those who enacted

it.”  Carter

v. United States, 530 U.S. 255, 271 (2000) (internal quotation marks and

citation omitted).

 

[12-13] The dissent argues that our

interpretation of the statute leads to an “absurd result” because it would work

a change in the way that the composition and powers of the Chief Justice,

Associate Justice, and the district court are specified in other sections of

the code.  Yet a statute is not absurd

because it is an exception to other statutes. 

A statute is not irrational simply because it changes the prevailing

practice.  Otherwise, legislatures would

be condemned to enact only those statutes that change nothing.

[14] While we understand the administrative hardship the statute may

bring, we lack the power to ignore the statute’s clear language.  “[C]ourts must presume that a legislature

says in a statute what it means and means in a statute what it says there.  When the words of a statute are unambiguous,

then, this first canon is also the last: ‘judicial inquiry is complete.’”  Barnhart,

534 U.S. at 461-62 (quoting Conn. Nat’l Bank v. Germain, 503 U.S.

249, 253-54 (1992)).  The dissent has

identified a significant and important problem. 

We do not disagree.  But the

answer to the stated problem must be found by the legislature.  It has full power to amend the statue;

separation of powers prevents us from doing so.

 

V.

[15] Thus, under A.S.C.A. § 3.0232(a), every defendant “charged with an

offense carrying a maximum possible punishment of over 6 months of

imprisonment,” whether appearing before the High Court or the district court,

has the right to a jury trial.  Even when

the jury trial is held in the district court, “2 associate judges shall sit

with either the Chief or Associate Justice, who acts as presiding judge of the

court.”  A.S.C.A. § 3.0232(b).  This right was violated by the district

court.

[16] Our interpretation of the statute is in harmony with the

well-established principle that “where a statute is susceptible of two

constructions, by one of which grave and doubtful constitutional questions

arise and by the other of which such questions are avoided, our duty is to

adopt the latter.”  United States ex rel Attorney General v. Delaware & Hudson Co.,

213 U.S. 366, 408 (1909); accord United

States v. Jin Fuev Moy, 241 U.S. 394, 401 (1916); Murray v. The Charming Betsy, 2 Cranch 64 (1804).  This centuries-old principle of judicial

restraint continues to this day.  Zadvydas v. Davis, 533 U.S. 678, 689

(2001); I.N.S. v. St. Cyr., 533 U.S.

289, 299-300 (2001); Jones v. United

States, 529 U.S. 848, 858 (2000); Glencore

Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 F.3d 1114, 1122

(9th Cir. 2002); Ma v. Ashcroft, 257

F.3d 1095, 1106 (9th Cir. 2001); United

States v. Bulacan, 156 F.3d 963, 974 (9th Cir. 1998).

[17-18] As jurisprudential considerations of advisory opinions, mootness,

ripeness, standing, and other rules of judicial self-restraint demonstrate,

judicial review is a reluctant power, exercised only when and to the extent

necessary to resolve disputes appearing before the court.  Courts are not to “lightly assume that [the

legislature] intended to infringe constitutionally protected liberties or usurp

power constitutionally forbidden it.”  St. Cyr., 533 U.S. at 300 n.12 (quoting Hooper v. California, 155 U.S. 648, 657 (1895)); accord Rust v. Sullivan, 500 U.S. 173, 191

(1991); Rescue Army v. Mun. Court of City

of Los Angeles, 331 U.S. 549, 571 (1947). 

Moreover, constitutional issues are not to be needlessly confronted, as

judicial review of legislative acts presents a grave and final act, difficult

to change and in tension with a pure democratic system.  A constitutional holding can be reversed by

other government actors only by the arduous process of constitutional

amendment.  Further, judicial restraint

is necessary because of the judiciary’s inherent limitations “arising

especially from its largely negative character and limited resources of

enforcement.”  Rescue Army, 331

U.S. at 571.  To maintain their

credibility and preserve their normative capital, courts must be diligent in

avoiding gratuitous constitutional analysis.

The statute’s text and history, as well as the canon of construction of

avoiding unnecessary but grave constitutional questions, require us to

interpret the statute as we have. 

However, if the statute were later to be amended to remove the criminal

jury trial power from the district court, the later amended statute would not

necessarily be unconstitutional.  It is

constitutional doubts, not the certainty of unconstitutionality, that is the

precondition to the canon of construction we invoke.

 

Reversed and

remanded.

It is so ordered.

______________________________

 

MOLLWAY,

Acting Associate Justice, concurring.

Although I join in the prevailing opinion, I write separately to address an

issue raised by the dissent.  As the

dissent notes, the prevailing opinion is not joined in by any judge who lives

in American Samoa.  Instead, I and my

colleague on that opinion are acting associate justices, invited to sit in

light of conflicts that preclude a full complement of justices based in

American Samoa.  I recognize that it is

the dissenters and other members of American Samoa’s bench who will have to

deal with the effects of our holding today. 

I do not, however, for that reason cavalierly join in the prevailing

opinion.  To the contrary, it is only because

I conclude that the statutes in issue demand our result that I join in it.  If I could, in good faith, reach a contrary

result true to the statutory language, I would gladly do so.

The record contains no evidence indicating that the Legislature intended

anything other than what the statutes provide. 

The dissent argues that, to those who live in American Samoa, it is

clear that the Legislature did not intend to enact what it did enact.  But when the record does not actually

establish such an error, a court, whether in American Samoa or elsewhere,

cannot rewrite legislation.  To permit

judicial redrafting would be particularly dangerous here, where the legislation

concerns the court itself.  I must trust

that, if the Legislature of American Samoa did not intend the result stated in

the prevailing opinion, it will act promptly to correct its own pronouncements.

______________________________

 

RICHMOND

Associate Justice, SAGAPOLUTELE, Associate Judge, and MAMEA, Associate Judge,

concurring in part and dissenting in part.

We join the prevailing opinion insofar as it declares that the defendants have

a right to a jury trial in the District Court. 

We disagree, however, with its conclusion that jury trials in the

District Court must be conducted by the Chief or Associate Justice of the High

Court, joined by two Associate Judges. 

We do not believe this was the intention of the Legislature.  When appropriate, we would adhere to the

principles of judicial statutory interpretation enunciated in the prevailing and

concurring opinions.  However, we believe

that these stated principles are misapplied in this case.  In our view, the prevailing opinion

unnecessarily creates a result of potentially titanic impracticality—a result

directly in conflict with various statutes regulating the composition of the

High Court and District Court, and defining the functions of the Justices and

Judges of our court system.

 

Standard of Review

In construing a statute, while we must give due weight to its explicit

language, we are not bound to interpret the statute so as to create an absurd

result.  We characterize the result as

“absurd” not in any derogative or pejorative sense but as a word of art

employed in the judicial standard applicable, in our view, to the issue before

the Court.

“It is a familiar rule, that a thing may be within the letter of the statute

and yet not within the statute, because not within its spirit nor within the

intention of its makers.”  Mova Pharm. Corp v. Shalala, 140 F.3d

1060, 1068 (D.C. Cir. 1998) (quoting Holy Trinity Church v. United States,

143 U. S. 457, 459-60 (1892)); In re

Pac.-Atl. Trading Co., 64 F.3d 1292, 1303 (9th Cir. 1995) (Court should not

“presume Congress intended an absurd result”); Bechtel Const., Inc. v. United Bd. Of Carpenters, 812 F.2d 1220,

1225 (9th Cir. 1987) (“Legislative enactments should never be construed as

establishing statutory schemes that are illogical, unjust, or

capricious.”).  When such a situation

arises, “in determining how to avoid an absurdity generated by the plain

language of a statute, a court is to look to [legislative] intent.”  In re

Investment Bankers, Inc., 4 F.3d 1556, 1564 (10th Cir. 1993).  “[T]he intention of the drafters, rather than

the strict language, controls.”  Mova Pharmaceutical Corp, 140 F.3d at

1068 (quoting United States v. Ron Pair

Enters., 489 U.S. 235, 242 (1989)).

 

Discussion

 

A.  The Prevailing Holding Will Have Absurd

Results

We acknowledge, as set forth in the prevailing opinion, that A.S.C.A.

§3.0232(a) was clearly intended to extend the right of a jury trial to the

District Court.  Further, the plain

language of A.S.C.A. § 3.0232(b) would seem to dictate that when such jury

trials are had at the District Court, they shall be presided over by the Chief

or Associate Justice of the High Court and two Associate Judges.  The prevailing opinion stops there, though,

ignoring the implications of such a construction.  The Chief Justice and Associate Justice, by

statute, are only assigned to the various divisions of the High Court.  See A.S.C.A. §§ 3.0209(a) (“The Chief

or the Associate Justice shall have power to hear and determine alone any

preliminary or supplementary matter in any case before the divisions of the

High Court”) (emphasis added), 3.1002 (“The Chief Justice and the Associate

Justice shall preside at all [the High Court’s] divisions”), 3.0220 (Appellate

Division), 3.0230 (Trial Division), 3.0240 (Land and Titles Division).  The same restriction applies to the Associate

Judges.  That is, by statute, they are

only assigned to sit on cases at the High Court.  See A.S.C.A. §§ 3.0210 (“The associate

judges shall be entitled to be heard on all questions before any division of

the High Court”) (emphasis added), 3.1004 (“There shall be no less than 5

associate judges of the High Court”) (emphasis added), 3.0220 (Appellate

Division), 3.0230 (Trial Division), 3.0240 (Land and Titles Division).

On the other hand, the District Court is composed of only District Court

Judges.  A.S.C.A. § 3.0301.  No statute envisions the Chief Justice,

Associate Justice, or any Associate Judge sitting at the District Court.

Indeed, “[a]ll sessions of the district court are conducted by a district court

judge sitting alone.”  A.S.C.A. §

3.0303 (emphasis added)

Furthermore, it makes sense that the Associate Judges are not designated to sit

at the District Court.  The District

Court does not have jurisdiction over matai titles; the High Court has

exclusive jurisdiction.  A.S.C.A. § 3.0208(b).  And it is in these cases that the Associate

Judges perform their most integral function—determining the result in matai

title controversies.  See, e.g., In re Matai Title “Tuaolo,”

28 A.S.R.2d 137 (Land and Titles Div. 1995) (if majority of the four associate

judges agree in result, presiding Justice need not even vote); compare

A.S.C.A. § 3.0241(b) (Justice’s decisional role limited to resolving a tie vote

among the Associate Judges in matai title cases), with A.S.C.A. §§

3.0221 (difference of opinion between Justices and Associate Judges in

Appellate Division), 3.0231 (difference of opinion between Justice and

Associate Judges in Trial Division), 3.0241(a) (difference of opinion between

Justice and Associate Judges in land cases).

The prevailing opinion disregards this carefully crafted organizational scheme

and implicitly declares that the Legislature, with the slip of a pen, clearly

intended to overlook the current structure of our judiciary. Nelson v. Irvine, 143 F.3d 1196, 1207

(9th Cir. 1998) (“Sections of statutes should be construed consistently with

other statutory sections whenever possible.”). 

This result is clearly absurd, inconsistent, and impractical.  To read the statute in such a way will

create, to say the least, an administrative nightmare.  The High Court has only seven authorized and

budgeted judicial positions, two Justices and five Associate Judges, and is

therefore not equipped to man both the High Court and District Court on any

regular or routine basis.  It would be

particularly and unnecessarily burdensome when jury trials are scheduled in

both courts.[1]

 

B.  The Intent of the Legislature

The prevailing opinion is not only problematic. 

We do not believe it effectuates the actual intent of the Legislature clearly

evident in the evolutionary development of A.S.C.A. § 3.0232.

The Legislature understood, when it enacted the original version of A.S.C.A. §

3.0232 (5 A.S.C. 413, the present code’s forerunner at that time), P.L. No.

15-100 (1978) that King v. Andrus,

452 F. Supp. 11 (D.D.C. 1977), required jury trials in felony

prosecutions.  Felony prosecutions were

then, and still are, only heard before the High Court. A.S.C.A. § 3.0208.  At that juncture, we think the Legislature

clearly expressed that intent in A.S.C.A. § 3.0232(a) (then 5 A.S.C. § 413 (a))

by applying the statute to the High Court. 

Moreover, A.S.C.A. § 3.0232(b) (then 5 A.S.C. § 413(b)) clearly

complemented subsection (a) as originally enacted.  Thus, the phrase “Notwithstanding any law to

the contrary,” in our understanding, had meaning only in reference to the usual

Trial Division quorum requirement of one sitting Associate Judge. A.S.C.A. §

3.0230 (then 5 A.S.C. § 408(c)).[2]

The Legislature enacted P.L. No. 16-53 (1980) 18 months later.  That act “refined” numerous provisions of the

“District Court Act of 1979,” including recognition of the constitutional

requirement of jury trials in prosecutions of offenses having potential

sentences of more than six months, and as stated in the preamble, with the

intention to eliminate statutory inconsistencies concerning the respective

jurisdictions of the High Court and District Court.

It seems clear that the author of the bill that became P.L. 16-53, and during

the legislative process, the legislators and their staff, overlooked A.S.C.A. §

3.0232(b) and thereby failed to provide clear consistency between subsections

(a) and (b) for purposes of the distinctly different and normal composition of

judges sitting on jury trials in the High Court and District Court.  The oversight, in our view, did not alter the

original and readily apparent intent of only mandating two Associate Judges

sitting on all jury trials in the High Court—a practice routinely followed. See MCI Telecomm. Corp. v. Am. Tel. &

Tel. Co, 512 U.S. 218, 228 (1994) (“[T]he most relevant time for

determining a statutory term’s meaning” is when the act became law).  We see no reason why we are compelled to

interpret subsection (b) other than the evident way the Legislature originally

intended.

 

Opinions Compared

The prevailing opinion correctly states that a “statute is not irrational

simply because it changes the prevailing practice.”  But dramatically altering not just prevailing

practice but the entire court structure is certainly a sign that such a statute

may be problematic.  When such a

situation arises, our goal as a court is to make sense of the overall statutory

scheme, to reconcile the conflicts and harmonize legislative enactments.  We should not abdicate this responsibility

simply because the plain language of a statute allows for a plausible, yet

probably unintended, result.  See Pub. Citizen v. Dep’t of Justice,

491 U.S. 440, 454-55 (1989).

It seems that the philosophy of statutory interpretation expressed in the

prevailing opinion differs from the one set forth in this separate opinion.

Both methods are reasonable, and we do not mean to discredit the prevailing

opinion’s approach.  Nonetheless, in our

view, the interpretive philosophy of the prevailing opinion is unsuitable in

this instance.  The prevailing opinion’s

claim that there is no indication of what the Legislature intended belies

reality.[3]  Though not overwhelming on the intent issue,

the timing of the amendments, existing statutes, and the structure of the

Judiciary, coupled with local practice and understanding are sufficient to

provide us with a legislative history. 

Or simply put, there is evidence of the proper context in which to view

this statute.

What is considered legislative history in stateside jurisdictions—as examples,

records of the proceedings of committee hearings, floor debates, and joint

resolutions—is still largely non-existent in this jurisdiction.  In saying what the law of this Territory

is—what a statute means—we must be cognizant of all relevant factors, of local

customs and traditions, and we must allow common sense to prevail.  Perhaps this is the most glaring divide

between the prevailing opinion and our separate opinion.

In this respect, the three local judges adhering to this separate opinion agree

on one interpretation of the statute. 

The prevailing opinion consists of the two visiting Acting Justices and

their contrary view.  Thus, while the

vote count stands at 2 to 3, the law commands that their opinion prevails.  See A.S.C.A. § 3.0221.  But this only emphasizes the divide between

our viewpoint and the reasoning of the prevailing opinion.  In putting form over substance, the

prevailing opinion expresses fidelity to a legal dogma that will create a great

burden on the Territory and the Judiciary’s resources.  In deference to local knowledge and

experience with interpreting the Territory’s legislation, we believe that our

view is the view of the Legislature.

 

Conclusion

Accordingly, while we concur in the decision stated in the prevailing opinion

that an accused is entitled to a jury trial in the District Court, we dissent

from the holding in that opinion that requires a Justice and two Associate

Judges of the High Court to sit on jury trials conducted in the District Court.

In view of the prevailing opinion, we urge the Legislature to enact clear

legislation in the immediate future stating its intention on the judicial

composition sitting on jury trials in the District Court, whether the District

Court Judge presides or otherwise.

 

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