Craddick Development, Inc

BHP PETROLEUM SOUTH PACIFIC, INC., Petitioner,

AMERICAN SAMOA GOVERNMENT, OFFICE OF PROCUREMENT, a duly organized agency of the American Samoa Government, TAUESE P.F. SUNIA, Governor of American Samoa, Respondents. ______

MOBIL OIL AUSTRALIA, LTD., Intervenor/Real Party in Interest.

High Court of American Samoa Appellate Division

AP No. 18-97

January 20, 1998

[1] Under A.S.C.A. § 4.1041(b) a stay of an administrative decision may be issued on appropriate terms without an evidentiary hearing.

[2] Under A.S.C.A. § 43.1303(a)(1) a preliminary injunction may be issued only after a hearing in which sufficient grounds for the issuance of such injunction has been established by a preponderance of the evidence.

[3] A quasi-judicial proceeding where a panel appointed by the governor reviews the decision of an administrative agency is governed by criteria of fair play under the Administrative Procedures Act, A.S.C.A. §4.1044, and is not governed by the standards of law, procedural rules, and evidentiary rules reserved for appellate review of judicial decisions.

Before: KRUSE Chief Justice, RICHMOND Associate Justice, WARD* Acting Associate Justice, TUAOLO Associate Judge, and SAGAPOLUTELE Associate Judge.

Counsel: For Appellant, Brian M. Thompson For Appellee American Samoa Government, Henry W. Kappel, Assistant Attorney General For Intervenor/Real Party in Interest Mobil Oil Australia, Inc., Marshall L. Ashley

* Honorable John L. Ward, II, Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior.

1 ORDER DENYING MOTION FOR RECONSIDERATION

Intervenor/Real Party In Interest Mobil Oil Australia, Ltd. (“Mobil”) moves for reconsideration of the court’s Order Staying Contract Implementation and Judicial Proceedings issued on November 18, 1997. This matter came regularly for hearing on January 8, 1998.

Mobil’s position, which is supported by appellees American Samoa Government Office of Procurement (“ASGOP”) and Governor Tauese Sunia, is that the court erred in staying the proposed ASG-Mobil contract to operate the Territory’s petroleum storage depot (“tank farm”), because the court failed to hold an evidentiary hearing before issuing a “preliminary injunction.” We disagree.

[1-2] This Court issued a stay, not a preliminary injunction. A preliminary injunction may be issued only after “there has been a hearing in which sufficient grounds for the issuance of a preliminary injunction has been established by a preponderance of the evidence.” A.S.C.A. § 43.1303(a)(1). A stay of an administrative decision, on the other hand, may be issued by the court “on appropriate terms.” A.S.C.A. § 4.1041(b). An evidentiary hearing for such a stay is not mandated by statute nor is it contemplated in the applicable court rules. See A.C.R. 18.

We issued a stay only after considering the effects of preserving the status quo upon the parties and the public at large. We also considered the likelihood of petitioner’s success upon judicial review and the apparent impracticality of appellant BHP applying for a stay from ASGOP. Although not articulated in our order, we determined that no change in the tank farm operator status should be allowed until further order of the court only after carefully weighing these factors and finding cause to issue the stay.

[3] The instant case involves a contested case, a quasi-judicial proceeding where a panel appointed by the governor reviews the decision of an administrative agency. Judicial review of these administrative proceedings is not governed by the standards of law, procedural rules, and evidentiary rules reserved for appellate review of judicial decisions. It is governed instead by the statutorily established criteria of fair play set forth under the Administrative Procedures Act, A.S.C.A. §4.1044.

We are presented with no compelling arguments to dissolve the stay or to hold any further hearings upon cause for its issuance. The stay stays. The motion for reconsideration is denied.

2 The parties have expressed concern with the pending administrative appeals process and its attendant delays. Our decision today does not foreclose any future reconsideration of our stay of judicial proceedings. Should any party believe that any issue joined in this matter is ripe for judicial review, it may file the appropriate motion.

It is so ordered.

**********

TINA KRUSE, Petitioner,

PERSONNEL ADVISORY BOARD, Respondent,

AMERICAN SAMOA GOVERNMENT, Real Party in Interest.

AP No. 13-97

April 21, 1998

[1] Under A.S.C.A. § 7.0201, career service statutes serve the enacted public purpose of establishing a personnel administration system to provide equitable treatment of employees of the ASG through a merit system regulated by a comprehensive scheme of statutes and rules.

[2] Under A.S.A.C. § 4.0403(b), compensation of classified career service employees of the ASG who are not teachers or laborers, is governed under the broad principle of “equal pay for substantially equal work.”

[3] Under A.S.A.C. § 4.0409(a), it is contemplated that a “salary step increment” will be given annually within grade increases from one step to the next step after an employee receives a satisfactory performance evaluation.

[4] Under A.S.A.C. § 4.0296, a “pay adjustment” refers to a change in

3 the rate of compensation due to revision of the salary schedules of ASG or for reasons not covered elsewhere.

[5] Under A.S.A.C. § 4.02111, a “promotion”‘ is a change of an employee from a position in one class to a position in a class having a higher salary range.

[6] Under A.S.A.C. § 4.0401-.0414 and A.S.A.C. § 2.010l-.0110, a “reclassification” is the changing of any position from one class to another class whenever warranted by significant change in position duties and responsibilities or class definition, or to correct an error.

[7] Under A.S.C.A. § 4.1044, the court may reverse, modify or remand the decision of an agency if substantial rights of a petitioner have been prejudiced by an agency’s improper or unlawful decision under this statute.

[8] Because no administrative rules have been duly adopted establishing fair procedures for implementing a “pay adjustment” process, ad hoc salary increases that result in disparate compensation rates for career service employees of similar grade and seniority in comparable positions violates the principle of equal pay for substantially equal work.

[9] Where the Department of Human Resources did not follow legally established procedures to either promote or change petitioner’s classification, but rather followed no procedures and simply awarded a six step raise in the same grade, the increase in annual salary was not valid.

[10] The definition of “pay adjustment” precludes its application to a personnel request for promotion or change in classification.

Before RICHMOND, Associate Justice, WARD, Acting Associate Justice, TUA`OLO, Associate Judge, and SAGAPOLUTELE, Associate Judge.

Counsel: For Petitioner, Charles V. Ala`ilima For Respondent and Real Party in Interest, Gwen Tauiliili- Langkilde, Assistant Attorney General

OPINION AND ORDER

This action is for judicial review of a final administrative decision, pursuant to A.S.C.A. § 4.1040 of the administrative procedures act. Petitioner Tina Kruse (“Kruse”) has petitioned for review of a decision adverse to her by respondent Personnel Advisory Board (“PAB”). PAB is an agency of real party in interest American Samoa Government

4 (ASG).

Context of the Controversy

Kruse, a career service employee, was promoted to the position of Program Director for Instructional Resources in ASG’s Department of Education on January 5, 1992. PAB Transcript, Exhibit L. This personnel action raised her position classification and pay level to Grade 15, step 2, at an annual salary of $22,755. Id. By 1996, Kruse had received two salary step increments, increasing her annual salary to Grade 15, step 4, at $24,835. PAB Transcript, Exhibit K. On November 14, 1996, Kruse’s salary was increased to $31,075, a raise of six additional steps to Grade 15, step 10. PAB Transcript, Exhibit J. Her job title, however, remained the same. Id.

On January 3, 1997, a new administration took office. On January 27, 1997, the incoming Governor of American Samoa issued General Memorandum No. 22-97, which directed the ‘roll-back’ of pay increases granted to all ASG employees on or after March 1, 1996 to salary levels in effect on February 29, 1996, excepting salary step increments. PAB Transcript, Exhibit B. On March 20, 1997, the Director of Human Resources reduced, by ‘pay adjustment,’ Kruse’s compensation level to Grade 15, step 5, effective March 9, 1997, leaving her only with a salary step increment to Grade 15, step 5. Kruse appealed her pay reduction to PAB. PAB upheld the Director’s action, and Kruse petitioned for judicial review.

Discussion

[1-2] This controversy focuses on practices affecting the compensation of ASG’s classified career service employees. The career service statutes serve the enacted public purpose of establishing a personnel administration system, which provides “equitable treatment of employees” and “a merit system based on recognized principles of appointment, promotion, termination, and other aspects of government employment.” A.S.C.A. § 7.0201.

A comprehensive scheme of statutes and rules regulates the personnel administration system. See A.S.C.A. §§ 7.0101-.1513; A.S.A.C. §§ 4.0101-.1448. Compensation of classified career service employees who are not teachers or laborers, is governed under the broad principle of “equal pay for substantially equal work.” A.S.A.C. § 4.0403(b).

The overall regulatory scheme contemplates not only that individual employees will receive fair and impartial treatment by ASG, but also that all employees may expect that all persons in like classes of position with

5 comparable, satisfactory years of service in such positions will be compensated equally. Further, all employees in the career service may expect that career advancement will be based upon merit and processed, reviewed, and authorized as provided by law.

Before proceeding further, we will first identify and define the terms and procedures commonly used to describe and prescribe increases in a career service employee’s compensation.

[3] The term “salary step increment” is not specifically defined in the government personnel rules in the administrative code, but it is substantially described as within grade increases from one step to the next step after receiving a satisfactory performance evaluation. See A.S.A.C. § 4.0409; see also A.S.A.C. § 2.0104. The rules contemplate that salary step increments will be given annually upon qualification. A.S.A.C. § 4.0409(a).

[4] The term “pay adjustment” refers to “a change in the rate of compensation due to revision of the salary schedules of ASG or for reasons not covered elsewhere.” A.S.A.C. § 4.0296. Although this term is defined, it is not used elsewhere in the administrative code.

[5] The term “promotion” is defined as “a change of an employee from a position in one class to a position in a class having a higher salary range.” A.S.A.C. § 4.02111. The procedures governing personnel demotions and other specified adverse actions are set forth under A.S.A.C. § 4.0802.

[6] Finally, the term “reclassification” is neither defined nor substantively set forth in the administrative code. The term used in the personnel rules is “classification.” A.S.A.C. § 4.0401-.0414. “Reclassification,” as that term is used when upgrading or downgrading a present position, is more precisely described in the administrative code as “the changing of any position from one class to another class whenever warranted by significant change in position duties and responsibilities or class definition, or to correct an error.” A.S.A.C. § 4.0404(4)

“Reclassification” as a bona fide personnel term may owe its currency to the Shortfall Rectification Program of 1983, embodied in the administrative code at A.S.A.C. §§ 2.0101-.0110. This chapter specifically addressed “reclassifications and promotions” at A.S.A.C. § 2.0105. Applying these terms and procedures to the facts of this case, we first note that on August 22, 1996, the Deputy Director of Education for Administrative Services recommended that Kruse be “promoted” or “reclassified” from Grade 15, step 5 to Grade 16, step 5. PAB Transcript,

6 Exhibit E.

Nonetheless, on October 18, 1996, the Acting Director of Program Planning and Budget Development advised the Director of Education in writing that the “promotion” requested for Kruse to grade 16, step 5 ($29,172 per annum) would not be approved as submitted: “We understand that Classification Division of Department of Human Resources could not actualize this action as the position itself is classified at a Grade 15 level. However, they instead chose to classify her to Grade 15, step 10 (a jump of 6 increment steps) or the equivalent of $31,075.” PAB Transcript, Exhibit D.

Subsequently the Director of Education concurred with this course of action and submitted a form to the Office of Program Planning and Budget Development deleting a vacant clerk’s position to free up $5,331.00 for funding Kruse’s salary increase. PAB Transcript, Exhibit F.

Then, in late January 1997, the newly inaugurated Governor initiated his “roll-back” program, and in March 1997, the Director of Human Resources duly reduced Kruse’s compensation back to Grade 15, step 5, leaving her with only her annual step increment to step 5 as additional compensation. This personnel action was designated a “pay adjustment.”

PAB heard this matter on July 7, 1997. On July 10, 1997, PAB issued a decision upholding the “roll back” of Kruse’s salary because Kruse’s upward “pay adjustment” was unbudgeted and thus unlawful. PAB “Finding of Facts, Conclusion of Law and Decision.” PAB also found that “if Ms. Kruse’s duties responsibilities were changed, she should be reclassified and budgeted accordingly in FY 1998.” Id., Finding of Fact No. 4.

[7] Under A.S.C.A. § 4.1044, the court may reverse, modify or remand the decision of an agency “if substantial rights of the petitioner have been prejudiced” because the agency’s decision was improper or unlawful as specified under one or more of subsections (1)-(6) of this statute. The threshold question becomes, “has Kruse demonstrated that the agency decision prejudices any of her substantial rights?” We must answer in the negative.

Kruse’s “basic salary rate,” see A.S.A.C. § 4.0217, was increased under the guise of a “pay adjustment.” As the record before the PAD reveals, the only legitimate method of increasing a classified employee’s basic salary rate (other than by annual salary step increments or special incentive awards prescribed by rule) is by a change in classification of the employee’s position or by the employee’s promotion to a higher paid

7 position. See PAP Transcript, generally at 20-23 and specifically at 32.

[8] PAP found that Kruse’s salary increase was a “pay adjustment.” Although “pay adjustment” is a defined term, no procedures have been adopted to implement its impartial use within the merit system of the career service. Until administrative rules are duly adopted establishing fair procedures for implementing a “pay adjustment” process, ad hoc salary increases that result in disparate compensation rates for career service employees of similar grade and seniority in comparable positions violates the stated principle of “equal pay for substantially equal work.”

[9] The Department of Human Resources declined the original request to either ‘promote’ Kruse or change the classification of her position to a higher grade resulting in an anticipated annual salary of approximately $29,000. Instead of following legally established procedures for a promotion or change in classification, which could have legitimately resulted in a valid increase of Kruse’s annual salary to the $29,000 level, the Department of Human Resources followed no procedures and simply awarded a six step raise in the same grade.

The Director of Program Planning and Budget Development did not object, the Director of Education did not object, and Kruse, whose maximum legal salary increase under a promotion or change in classification was planned at approximately $29,000, certainly did not object to a $31,075 annual salary.

[10] Even if this court were to seriously entertain Kruse’s argument that a “pay adjustment,” by virtue of being defined, operates as a legal basis for salary increases “for reasons not covered elsewhere” in the personnel rules, Kruse’s initial personnel action request was for a “promotion” or “change of classification” as originally requested by the Deputy Director of Education for Administrative Services. Even assuming for sake of argument that a “pay adjustment” may be validly utilized to increase compensation in certain specific cases, the definition of “pay adjustment” precludes its application to a personnel request for promotion or change in classification.

Conclusion

We note the irony of the current administration’s use of the term “pay adjustment” in PAB Transcript, Exhibit A to describe Kruse’s salary roll back because her upward “pay adjustment” was unlawful. We need not, however, reach the paradoxical conclusion that two wrongs make a right to decide this matter. We simply hold that Kruse could obtain no right (substantial or otherwise) to a compensation rate established in violation of the prescribed merit-based administrative procedures for career service employees.

8 Since we have decided that Kruse had no rights to the increased level of compensation which could have been prejudiced by PAB’s decision, we decline to further investigate the legality of the procedures whereby the Director of Human Resources corrected this unlawful compensation rate.

As PAB recognized, Kruse may well deserve a promotion or a change of classification of her position. If there are funds available and such action is justified, Kruse would be entitled to all procedural rights and safeguards in pursuing such legitimate goals, including the right to grieve and appeal adverse decisions on such lawful request. Further, if Kruse believes that she has suffered compensable damages as a result of PAB’s action in the instant matter, she may pursue her legal (or equitable) remedies in a court of general jurisdiction.

The PAB decision of July 11, 1997 is affirmed as modified by this opinion and order.

It is so ordered.

**********

BHP PETROLEUM SOUTH PACIFIC, INC., Petitioner,

AMERICAN SAMOA GOVERNMENT, OFFICE OF PROCUREMENT, a duly organized agency of the

9 American Samoa Government, TAUESE P.F. SUNIA, Governor of American Samoa, Respondents. ______

MOBIL OIL AUSTRALIA, LTD., Intervenor/Real Party in Interest.

AP No. 18-97

July 9, 1998

[1] Under A.S.C.A. §§ 3.0208(c), 4.1040-.1044 and 10.0282, the court has authority to review administrative decisions in the procurement process; the review is confined to the record, and to questions of law, not fact.

[2] It is a violation of both constitutional and statutory provisions for the Governor to act as chief procurement officer.

[3] The object of the tripartite system of government of American Samoa, and of the separation of the legislative, the executive, and the judicial departments, is basic and vital in precluding a commingling of these essentially different powers of government in the same hands.

[4] The governor has the powers, duties and responsibilities as delegated under A.S.C.A. § 4.0111 in addition to those powers conferred by article IV of the Revised Constitution of American Samoa, and the laws for which the governor is responsible for faithful execution of are established by the legislative branch.

[5] Under A.S.C.A. §§ 12.0205 and 12.0206 the Legislature created the office of procurement and the position of chief procurement officer, and specified certain credentials for such officer, who is appointed by the governor and confirmed by the Legislature.

[6] The governor does not possess the power to make appointments to public office unless it is expressly conferred by the constitution or statutes, and neither allows him to appoint himself as chief procurement officer. [7] The general supervisory power over the executive department given to the governor by Article IV, section 7 of the Revised Constitution of American Samoa does not include the power of appointment.

[8] Article IV, section 11 of the Revised Constitution of American Samoa gives the governor specifically limited power to appoint officials who are not otherwise provided for, and the chief procurement officer is otherwise

10 provided for.

[9] Under A.S.C.A. § 12.0213, the Governor has the power to make procurements himself only in an emergency as defined under A.S.C.A. 26.0105(d), and such procurement must be as competitive as possible and be accompanied by a written determination of the basis for the emergency.

[10] Under Rev. Const. Am. Samoa art. IV § 12, the Governor may not unilaterally expand the power of appointment granted to him by constitutional and statutory provisions, and is not at liberty to ignore or suspend the operation of such statutes.

[11] The American Samoa Procurement Act of 1983, A.S.C.A. §§ 12.0201-.0219, carefully proscribes a system of government purchasing so as to ensure predictability and fairness, and the integrity of this system is disturbed when the Governor acts as chief procurement officer.

[12] Where the Governor commingles the powers of separate offices, he exceeds the scope of his constitutional and legislatively granted powers, to the prejudice of substantial rights of an affected party, and a decision by the Governor acting as chief procurement officer to award a contract must be reversed.

[13] An administrative rule adopted under the Administrative Procedures Act, A.S.C.A. §§ 4.1001-.1044 has the full force and effect of law.

Before KRUSE, Chief Justice, RICHMOND, Associate Justice, WARD, Acting Associate Justice, TUAOLO, Associate Judge, and SAGAPOLUTELE, Associate Judge.

Counsel: For Petitioner, Brian M. Thompson and Roy J.D. Hall, Jr. For Respondents, Henry W. Kappel and Douglas Juergens, Assistant Attorneys General For Intervenor/Real Party in Interest, Marshall L. Ashley, E. Mason Martin and David P. Vargas

ORDER REVERSING AND REMANDING AWARD OF PROCUREMENT CONTRACT REQUEST FOR PROPOSALS 001-97

Petitioner BHP Petroleum South Pacific, Inc. (“BHP”) brought this action for judicial review of the administrative decision by respondents American Samoa Government (“ASG”), Office of Procurement, a duly organized agency of ASG (“ASGOP”), and Tauese P.F. Sunia, Governor of American Samoa (“the Governor”) to award the contract under the Request for Proposals 001-97 (“RFP 001-97”), Qualified Companies to Operate Fuel

11 Storage Facilities (“the contract”) to intervenor/real party in interest Mobil Oil Australia, Ltd. (“Mobil”). BHP seeks a permanent injunction preventing ASG from entering the contract with Mobil and requiring ASG to enter the contract with BHP.

Background

ASG issued RFP 001-97 on January 21, 1997. ASG sought to contract a terminal operator for ASG’s petroleum products storage facilities and fuel dock, and for a principal supplier of petroleum products. The contract was for the period January 1, 1998 through December 31, 1999, with an option to renew for one year. BHP, Mobil, and two other companies, Shell Fiji (“Shell”) and Global Pacific Energy (“Global”) submitted proposals.

The Governor (acting as chief procurement officer) appointed a source evaluation board (“SEB”) to evaluate the proposals. The SEB did not reach a consensus on recommending a single prospect, so it recommended both BHP and Mobil to the Governor (acting as chief procurement officer). The SEB requested that “the Governor of the Territory of American Samoa determine to whom to award the contract between these two final contenders based on the findings herein.”

On June 16, 1997, the Governor (acting both as chief procurement officer and as the governor), issued General Memorandum 78-1997, which announced the award of the contract to Mobil. BHP, Global and Shell subsequently submitted their notices of dispute to the Governor (acting as chief procurement officer). A.S.A.C. § 10.0282(b) establishes the procedures to follow in such a dispute:

(b) Requirements. All such disputes shall be submitted in writing to the procurement officer making the decision. The procurement officer shall acknowledge receipt of the dispute within 5 working days of receipt and shall render a final decision within 30 working days after receipt of the dispute.

On August 7 and 8, 1997, the Governor (acting as chief procurement officer) issued his final decision in response to Global’s and BHP’s notices of dispute. BHP then filed an appeal with the Governor (acting as governor) on either August 22 or 26, 1997 and Global did so on September 22, 1997. A.S.A.C. § 10.0282(c) establishes the procedures to be used in such an appeal:

(c) Appeals. Appeals of a procurement officer’s final decision in a dispute may be made within 60 days of the date of the decision, provided such appeal is submitted in writing to the Governor. The Governor shall appoint a board of at least three responsible persons knowledgeable of procurement to review

12 such appeals and recommend appropriate action to the Governor. None of the board members shall have participated in the action under appeal. At least one of the board members shall be a qualified attorney. Hearing procedures and documentation shall be set forth in the Administrative Procedures Act, 4.1025 A.S.C.A. et seq., and the rules.

On October 14, 1997, stating that it was doing so because the Governor (acting as governor) had not yet appointed an appeal board as required by A.S.A.C. § 10.0282(c), BHP petitioned this court for judicial review, and for a temporary restraining order, and preliminary and permanent injunctions preventing ASG from entering the contract with Mobil and requiring ASG to enter the contract with BHP. ASG, ASGOP and the Governor responded to this petition on November 7, 1997, and a show cause hearing was held on November 12, 1997. On November 18, 1997, the court stayed both implementation of the contract and further judicial proceedings. Mobil moved to reconsider this order, and the motion was denied.

On November 6, 1997, subsequent to BHP’s petition to the court, the Governor (acting as governor) appointed an appeal board. The appeal board held hearings on November 20 and 21, 1997. BHP, ASG, Mobil and Shell were present at these hearings and presented testimony and evidence. Global was not present. The appeal board issued its Findings of Fact, Conclusions of Law, and Recommendations on February 20, 1998. The board determined that the Governor had authority to act as chief procurement officer, that there was sufficient notice to prospective offerors that a competitive negotiation process would be followed, and that BHP had failed to meet its burden in showing that Mobil’s bid was not responsive. The board also concluded that there had been flaws in the procurement process, and recommended remand of the procurement to the Governor (acting as chief procurement officer) and the SEB to correct these deficiencies.

The appeal board forwarded its recommendation to the Governor (acting as governor), who objected to the findings but agreed that it would be in the best interest of all the parties to concur with the panel’s recommendation. The Governor (acting as governor) then remanded the matter to the Governor (acting as chief procurement officer) and the SEB. The Governor (acting as chief procurement officer) reconfigured the SEB by making a new appointment to the board. The SEB reviewed the original proposals, conducted discussions with the three offerors, and solicited best and final offers. The SEB then reviewed the best and final offers and forwarded its findings and recommendations to the Governor (acting as chief procurement officer) on March 30, 1998. The SEB ranked Mobil first, Shell second, and BHP third. The Governor (acting as chief procurement officer) adopted this recommendation and reissued a Notice of

13 Award on April 24, 1998 advising of his decision to award the contract to Mobil.

BHP filed a notice of dispute with the chief procurement officer on May 4, 1998. The Governor (acting as chief procurement officer) reissued his notice of final decision, upholding his award to Mobil. BHP then, pursuant to A.S.A.C. § 10.282(c), filed a timely appeal with the Governor (acting as governor), requesting that he appoint an appeal board to review the renewed final decision of the Governor (acting as chief procurement officer).

On March 9, 1998, after the original appeal board issued its Findings of Fact, Conclusions of Law, and Recommendations but before the Governor (acting as governor) took any action on the recommendations, BHP filed the motion to enter “permanent orders” that is currently before this court. We held a hearing on this motion on April 14, 1998. On April 22, 1998, a minute order was issued to require ASG to file a complete record of the procurement appeal process by May 11, 1998. On April 29, 1998, ASG issued a notice that it had completed the administrative proceedings. ASG transmitted the administrative record of the procurement appeal process to the court on May 11, 1998, and supplements to the administrative record on June 19 and 23, 1998. We held a further hearing on the motion to enter “permanent orders” on June 24, 1998.

Standard of Review

[1] The court’s authority to review administrative decisions in the procurement process is found in A.S.C.A. §§ 3.0208(c), 4.1040-.1044 and A.S.C.A. § 10.0282. We do not substitute our judgment for that of the agency on questions of fact, but it is our place to determine questions of law. A.S.C.A. § 4.1043(b). Our review is confined to the record. A.S.C.A. § 4.1043. Under A.S.C.A. § 4.1044, we may:

. . . reverse or modify the decision of the agency, or remand the case for further proceedings, if substantial rights of the petitioner have been prejudiced because the decision of the agency is: (1) in violation of applicable constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence in the whole record; (6) arbitrary, capricious or characterized by abuse of discretion.

Discussion

14 [2] BHP posits that it was the lowest reasonable, responsive, responsible bidder meeting the requirements of the invitation for bids, that Mobil’s proposal failed to meet a number of the bid specifications, and that the procurement process was replete with errors. Most importantly, BHP argues that the Governor may not act as chief procurement officer. This issue is a question of law, and thus is subject to our review. It is also preliminary to the other issues raised by BHP. The appeal board found that the Governor has the authority to act as chief procurement officer. We disagree. We find that under the facts of the procurement process for RFP 001-97, the Governor violated both constitutional and statutory provisions by acting as chief procurement officer. We therefore do not need to consider the remainder of BHP’s claims.

[3] American Samoa has a tripartite system of government. Reflecting the structure of the federal government established in the United States Constitution, the Revised Constitution of American Samoa clearly establishes three separate branches of government. The Legislature is established under article II, the Judicial Branch under article III, and the Executive Branch under article IV. “The Constitution, in distributing the powers of government, creates three distinct and separate departments—the legislative, the executive, and the judicial. This separation is not merely a matter of convenience or of government mechanism. Its object is basic and vital, namely, to preclude a commingling of these essentially different powers of government in the same hands.” O’Donoghue v. United States, 289 U.S. 516, 530, 53 S.Ct. 740, 743, 77 L.Ed 1356, ___ (1933), citation omitted. See also Loving v. United States, 517 U.S. 748, 756, 116 S.Ct. 1737, 1743, 135 L.Ed.2d 36, ___ (1996).

[4] The executive branch, as defined by the Revised Constitution of American Samoa, art. IV, includes the offices of governor, lieutenant governor, and secretary of Samoan Affairs. Some of the powers of the governor are conferred in article IV; the source of other powers are found in various sections of the statutory code. When taking office, the governor swears to “well and faithfully uphold the laws of the United States applicable to American Samoa, and the Constitution and laws of American Samoa.” Rev. Const. Am. Samoa art. V, § 6. The governor is charged with being “responsible for the faithful execution of the law,” and has the powers, duties and responsibilities as delegated to him by the American Samoa Code. A.S.C.A. § 4.0111.

The laws for which the governor is responsible for “faithful execution of” are established by a separate branch of the government, the legislative branch. Article II of the Revised Constitution of American Samoa establishes the Senate and the House of Representatives as comprising the legislative branch and confers authority to this branch to establish laws of local application.

15 [5] The system of appointment of certain officers of ASG highlights the importance of the separation of the branches of government, and the checks and balances that this separation should provide. Under this system, the office and the credentials required by the office are created by the Legislature. The Legislature grants to the executive the power to appoint the officer, but conditions this power upon confirmation of the appointment by the Legislature. Under A.S.C.A. § 12.0205, for example, the Legislature created the office of procurement and the position of chief procurement officer. The Legislature enumerated the method of appointment for this office in A.S.C.A. § 12.0206. “The Governor shall appoint and the Legislature shall confirm, a chief procurement officer.” Id. The Legislature also requires the chief procurement officer to have a certain number of years of experience in public procurement and demonstrated executive and organizational ability. Id.

[6] By appointing himself as chief procurement officer, the Governor has violated both the statutes and the Revised Constitution of American Samoa. “The power to make appointments to public office does not necessarily and inherently belong to the governor. It must be derived from the constitution or statutes; otherwise, he may not possess it. More specifically, appointing power exists only in so far as it has been expressly conferred by the constitution and laws of the state.” 38 AM. JUR. 2D, Governor § 5 (1968 & 1993 Supp.); Leek v. Theis, 539 P.2d 304, 314-21 (Kan. 1975); Buchholtz v. Hill, 13 A.2d 348, 351-52 (Md. 1940).

[7-8] Article IV, section 7 of the Revised Constitution of American Samoa states that “[t]he Governor shall have general supervision and control of all executive departments, agencies and instrumentalities of the Government of American Samoa.” This is a general supervisory power and gives the governor no power of appointment. Article IV, section 11 is the provision that gives the governor the power to appoint officials. Article IV, section 11 also indicates specific limitations of that power. The governor may freely appoint only those officials who are not elected, are not appointed by the Secretary of the Interior, or whose appointments are not otherwise provided for. The chief procurement officer is clearly an official whose appointment is “otherwise provided for.” The Governor must therefore follow the requirements established by the Legislature when appointing the chief procurement officer. A.S.C.A. § 4.0112 also discusses the governor’s appointment power. Markedly, it emphasizes that for particular positions, the governor’s power of appointment is subject to the confirmation of the Legislature.

[9] The Governor cannot expand his specifically limited power of appointment to a degree where he can appoint himself as chief procurement officer. By statute, the Governor only has the power to make procurements himself in an emergency, “when there exists a threat to public health, welfare, or safety under emergency conditions as defined under 26.0105(d)

16 ASCA.” A.S.C.A. § 12.0213. Even in an emergency situation, the procurement must be as competitive as possible, and must be accompanied by a written determination of the basis for the emergency. Id.

Although we indicated in Haleck’s West, Inc. v. Coleman, AP No. 29-84, slip op. at 3 (Appellate Div. 1984), that the governor may in certain circumstances be empowered to award a contract, we did not indicate that the governor could appoint himself as chief procurement officer or that he could assume the duties of the chief procurement officer. In Haleck’s West, the governor had submitted an appointment of chief procurement officer to the Legislature, but the Legislature had not yet confirmed that appointment. In the present case, on the other hand, the Governor has submitted no name to the Legislature for confirmation. The Governor states that he has appointed himself as chief procurement officer.

Even if the Governor could appoint himself as chief procurement officer, he would need to do so within the limits specifically established by the Legislature. The Governor would need to show that he meets the qualifications required of the chief procurement officer. A.S.C.A. § 12.0206. And the Governor would need to submit his appointment of himself for confirmation by the Legislature. Id. The Governor has not done this.

[10] The Governor thus may not unilaterally expand the power of appointment granted to him by these constitutional and statutory provisions. The Governor also is not at liberty to ignore or suspend the operation of these statutes. Rev. Const. Am. Samoa art. IV, § 12; see also, e.g. Olegario v. United States, 629 F.2d 204, 224 (2nd Cir. 1980) (“The Constitution’s grant of executive authority does not include the right to nullify legislative acts or ignore statutory directives.”); Zieske v. Butz, 412 F. Supp. 1403, 1406 (D. Alaska 1976) (holding that where Congress has established specific statutory directives, neither the judiciary nor the executive is at liberty to ignore them, even if the directives include words signifying some amount of discretion).

The Governor presents his general constitutional supervisory power set forth in article IV, section 7 of the Revised Constitution of American Samoa as justification for assuming the role of chief procurement officer. This supervisory power, however, does not allow the Governor to ignore operation of the statutes. The Governor must exercise his constitutional powers within the laws established by the Legislature, not in an attempt to avoid them. Cf. Vaela`a v. Sunia, 1 A.S.R.3d 88, 93-95 (Trial Div. 1997) (holding that the Governor, even if he were properly applying his constitutional pardon power to undocumented aliens, would still be bounded by the immigration laws and administrative rules.)

[11] When the Legislature enacted the American Samoa Procurement Act

17 of 1983, A.S.C.A. § 12.0201-.0219, it carefully proscribed a system of government purchasing which would ensure predictability and fairness to all participants. By acting as chief procurement officer, the Governor disturbs the integrity of this system. In the current case, for example, the Governor (acting as chief procurement officer) did not appoint an administrative appeal board until after BHP filed its first petition in this case with the court. Similarly, the Governor (acting as governor) did not take action on the appeal board’s February 20, 1998 Findings of Fact, Conclusions of Law and Recommendations until after BHP filed the current motion for “permanent orders”. The sequence of these events appears to be a result not of coincidence, but of one person performing two different legislated functions.

[12-13] Similarly, by acting as chief procurement officer, the Governor disturbs the dispute process legislated within the procurement act. Under the Governor’s system, offerors or other participants disputing a procurement decision are faced with making an appeal first to the Governor acting as chief procurement officer, and then to the Governor acting as governor. The administrative rules clearly envisioned the procurement appeal process to include two different individuals carrying out the responsibilities of two separate offices.1 The rules did not envision the procurement appeal process to include one individual commingling the powers of two separate offices.

We find, therefore, that the actions of the Governor in appointing himself as and acting as chief procurement officer in the procurement process for RFP 001-97, has exceeded the scope of his constitutional and legislatively granted powers, and has violated the Revised Constitution of American Samoa and the procurement provisions of the American Samoa Code Annotated and the American Samoa Administrative Code. It follows that substantial rights of BHP have been prejudiced. Under A.S.C.A. § 4.1043(b), then, we reverse the decision of the Governor to award the contract under RFP 001-97 to Mobil.

In its motion for “permanent orders”, BHP not only seeks to permanently preclude ASG from entering the contract under RFP 001-97 with Mobil, but also seeks to have the court award the contract to BHP. We find that due to the constitutional and statutory errors in the procurement process for this contract, awarding the contract to BHP is not an appropriate remedy. Instead, if the ASG, ASGOP and the Governor intend at this time to procure a terminal operator for ASG’s petroleum products storage facilities and fuel dock and a principal supplier of petroleum products, they must do so by lawfully following the constitutional, statutorily, and administratively

1 An administrative rule, adopted under the Administrative Procedures Act, A.S.C.A. §§ 4.1001-.1044, has the full force and effect of law. A.S.C.A. § 4.1009(c).

18 proscribed procurement procedures.

The Governor’s award of the contract under RFP 001-97, Qualified Companies to Operate Fuel Storage Facilities, to Mobil is reversed. In order for ASG and ASGOP to lawfully engage in future procurements, the Governor must appoint an individual other than himself as chief procurement officer and submit his or her name to the Legislature for confirmation.

BHP’s petition for the court to grant award of the contract under RFP 001- 97, Qualified Companies to Operate Fuel Storage Facilities, to BHP is denied.

We remand the procurement of the terminal operator for ASG’s petroleum products storage facilities and fuel dock, and for a principal supplier of petroleum products to ASG, ASGOP, and the Governor to initiate new procurement proceedings conducted in compliance with the constitutional, statutory and administrative procurement requirements.

It is so ordered.

**********

CRADDICK DEVELOPMENT, INC., an American Samoa Corp., EDGAR C. CRADDICK and DAVID CRADDICK, ADMINISTRATORS OF THE ESTATE OF DOUGLAS C. CRADDICK and ROBERT KERLEY, Appellants

MAGDALENE VAIVAO CRADDICK and DOES 1-20, inclusive, Appellees

AP No. 14-95 CA No. 43-89

19 July 22, 1998

[1] Except with regard to freehold lands, or in special circumstances, a Samoan cannot “alienate” any Samoan lands to persons with less than full native blood.

[2] Alienation of land means the sale, gift, exchange, or any other method of disposal of property.

[3] Where corporation held interest in land as beneficiary of trust, receiving earnings and proceeds of the property, and possessed the rights to convey title and to manage and control the property, said trust violated statutory and constitutional provisions prohibiting non-Samoan ownership of the land

[4] The land restrictions contained in the Revised Constitution of American Samoa and A.S.C.A. § 37.0204(b), while racially discriminatory, are narrowly tailored to satisfy, and do satisfy, a compelling state interest--the preservation of the Samoan culture and way of life.

[5] The alienation restriction contained in A.S.C.A. § 37.0204(b) applies to all land except freehold land.

Before: WARD,* Acting Associate Justice, GOODWIN,** Acting Associate Justice, WALLACE,*** Acting Associate Justice, SAGAPOLUTELE, Associate Judge, and TUAOLO, Associate Judge.

Counsel: For Appellants, William H. Reardon and Edward C. King For Appellees, Togiola T.A. Tulafono For American Samoa Government, Amicus Curiae, Gwen Tauiliili-Langkilde

OPINION

WALLACE, Acting Associate Justice.

* Honorable John L. Ward, II, Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior. ** Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeal for the Ninth Circuit, serving by designation of the Secretary of the Interior. *** Honorable J. Clifford Wallace, Senior Circuit Judge, United States Court of Appeal for the Ninth Circuit, serving by designation of the Secretary of the Interior.

20 Introduction

In this latest episode in a long-running land ownership dispute, we consider whether the transfer of 20-year beneficial interests in land constitutes alienation, and if so, whether provisions of the American Samoa Code that prohibit alienation of land to non-Samoans violate constitutional rights. Because we conclude that such transfer does constitute alienation but that the alienation restriction passes strict scrutiny review, we affirm.

The relevant facts of this matter are not in dispute. Douglas Craddick (Craddick), now deceased, was a United States citizen married to Magdalene Vaivao Craddick (Magdalene), a full-blooded Samoan. In 1981, Craddick formed Craddick Development, Inc. (Craddick Development) with the intent of buying land, developing it for housing, and selling the developed land to American Samoans. The arrangement was that Craddick provided funds for the purchase of land in Magdalene’s name, with the land held in two trusts, one for the benefit of Craddick Development, and the other for Craddick Development and another individual who was the trustee of an employee benefit plan. Magdalene was named as the trustee for both trusts. Both trusts were limited to 20-year periods.

Craddick chose this arrangement because an earlier attempt to acquire land directly in joint ownership with Magdalene had failed, on the ground that Craddick’s ownership of land, even individually owned land, would violate American Samoa restrictions on the alienation of land to non-Samoans. See Craddick v. Territorial Registrar of American Samoan, 1 A.S.R. 2d 10 (1980) (“Craddick I”).

Craddick died on February 18, 1986, but the trusts continued in operation for two years. On February 12, 1988, Magdalene sought to cancel the trusts and claim clear title to the trust lands, prompting Craddick Development and the other individual beneficiary to file suit in the Trial Division of the High Court of American Samoa on April 21, 1989, seeking an accounting, damages, and injunctive relief from Magdalene. Magdalene counterclaimed, alleging that she owned the lands in question in fee simple and that the trusts were void.

The Trial Division held a three day trial in April 1994 and rendered its decision on June 27, 1995, holding the trusts to be void as against the

21 non-alienation restriction.2 The Court also denied a motion for a new trial. This appeal followed.

Discussion

Craddick Development makes two main arguments on appeal. First, it contends that the trusts in this case did not constitute “alienation” under A.S.C.A. § 37.0201(a). Second, it argues that if the trusts did constitute alienation, the restriction of land to those with less than one-half native blood violates the United States Constitution (“Constitution”) and the Revised Constitution of American Samoa (“Revised Constitution”).3

It shall be the policy of the Government of American Samoa to protect persons of Samoan ancestry against alienation of their lands and the destruction of the Samoan way of life and language, contrary to their best interests. . . . No change in the

2 Without encouragement of either party, the concurrence suggests that the trial court was without jurisdiction to make its decision based on land law in addition to trust law. The trusts involved Samoan land and the trial court was required to consider both areas of Samoan law. Thus, the action was properly filed in the Trial Division of the High Court because it involved trusts, and its disposition also required application of land law. Both the Trial Division and the Land and Title Division are part of the High court. A.S.C.A. § 3.0207(a). Rather than have the case in both the Trial Division and the Land and Title division, the trial court rendered one opinion. As the concurrence admits, the same judges could decide the land issues. The trial court could have entered a perfunctory order reconstituting itself as both a Trial Division and a Land and Title division of the High Court, but what it did was the functional equivalent of such action. There was jurisdiction in the trial court to hear this case. On appeal, the Appellate Division of the High Court was constituted into a five-judge bench, and, therefore, is competent to decide trust as well as land issues, since the Appellate division has jurisdiction to hear appeals of final orders from either the Trial Division or the Land and Titles Division. See A.S.C.A. § 3.0208 (c). The question raised as to whether the notes of two justices are enough to decide the appeal is not at issue here, as the two associate judges agreed with two of the acting associate justices, and, in any event, the issue is not jurisdiction. 3 The concurrence would resolve this case not on these issued raised by the parties, but on the alleged statutory ground that Craddick Development failed to obtain the approval of the Governor to acquire an interest in land. This issue was never raised in the court below and has not been argued on appeal. To the extent it has validity, it has been waived.

22 law respecting the alienation or transfer of land or any interest therein, shall be effective unless the same be approved by two successive legislatures by a two-thirds vote of the entire membership of each house and by the Governor.

Rev. Const of Am. Samoa, Art. I, Sec. 3. Clearly, the framers of the Revised Constitution wanted to ensure that American Samoa’s land remained in the hands of native Samoans.

A. The Issue of Alienation

With this strong preference for native ownership in mind, we next turn to the relevant sections of the American Samoa Code. Section 37.0204(b) states:

It is prohibited to alienate any lands except freehold lands to any person who has less than one-half native blood, and if a person has any nonnative blood whatever, it is prohibited to alienate any native lands to such person unless he was born in American Samoa, is a descendant of a Samoan family, lives with Samoans as a Samoan, lived in American Samoa for more than 5 years and has officially declared his intention of making American Samoa his home for life.

[1] This statute applies to all land in American Samoa except for “freehold lands,” i.e., lands excluded from the general restriction on alienation of land to a person with less than one-half native blood. See A.S.C.A. §§ 37.0201(b) and 37.0204(b). Thus, with the exception of freehold lands (not applicable here), a Samoan cannot “alienate” any Samoan lands to persons with less than full native blood except in special circumstances.

[2] That leads to the question: what does “alienation” mean? The Code provides some guidance. According to section 37.0201(a), “‘[a]lienation’ means the sale, gift, exchange, or any other method of disposal of property.” (Emphasis added.) This expansive definition of alienation has an exception in A.S.C.A. § 37.0205, which provides that “[t]his regulation [restricting the alienation of land] shall not apply” to a trust for mixed-race couples or descendants as beneficiaries.

Under the statutory interpretation maxim expressio unius est exclusio alterius, we agree with the Trial Division that the limited scope of the section 37.0205 exception implies that the term “alienation” under section 37.0201, and thus the restriction of section 37.0204(b), applies to all other forms of trusts. If the legislature wanted to exempt the trusts of the type involved in this case from the sweeping language of section 37.0201, it would have passed another exception like section 37.0205.

23 This is especially true in light of Article I, section 3 of the Revised Constitution, which makes it clear that keeping American Samoa’s land in the hands of native Samoans is of critical importance.

[3] In this case, Magdalene held the trust for the benefit of Craddick Development. Obviously, as the beneficiary, Craddick Development owned an interest in the land, namely the interest in “all earnings, avails and proceeds of the Property.” The beneficiary also had “(a) the right to direct the Trustee to convey or otherwise deal with the title . . .; (b) the right to manage and control the property; and (c) the sole right to receive the proceeds and avails from rental, sale, lease, mortgage or other disposition of the Property.” Also, the Trustee only acted upon “written direction of the Beneficiary.” Clearly, as beneficiary, Craddick Development owned these interest and rights in the land, and effectively controlled how the land would be used. This “ownership” by persons with non-native blood, we hold, violates section 37.0204(b), especially when viewed in light of the Revised Constitution’s warnings against non-Samoan ownership (i.e. control) of the land.

Craddick Development argues that because the Code permits leases of 55 years, the trusts in this case are also acceptable. But like the exception under section 37.0205, the Samoan legislature expressly provided for leases under sections 37.0221-.0222. No such express legislative exception for the trusts in this case exists under the Code, and we should not manufacture one, especially in light of Article I, section 3 of the Revised Constitution. Based on the foregoing statutory interpretation, we agree with the Trial division and hold that the trusts in this case constitute illegal alienation under Samoan law.

B. The Constitutionality of the Statutory Prohibitions

Because we hold that the trusts in this case are illegal under American Samoa statutory law, we next examine whether the relevant sections of the Code violate constitutional rights applicable in American Samoa.

Amicus American Samoa Government argues that A.S.C.A § 37.0204(b)’s restrictions on the right to own certain real property is not subject to the due process or equal protection guarantees of the Constitution. On the other hand, Craddick Development refers to the due process rights guaranteed by the Revised Constitution in Article I, section 2: “No person shall be deprived of life, liberty or property without due process of law, nor shall private property be taken for public use without just compensation.” But this section must be read in conjunction with Article I, section 3, which restricts the ownership of Samoan lands to Samoan natives. Both provisions of the Revised Constitution must be given meaning.

24 The backdrop for this issue starts with the Treaty of Berlin, ratified by the United States Senate in 1890:

In order that the native Samoans may keep their lands for cultivation by themselves and by their children after them, it is declared that all future alienation of lands in the Islands of Samoa to the citizens or subjects of any foreign country, whether by sale, mortgage or otherwise shall be prohibited.

Craddick I, 1 A.S.R.2d at 13. As amicus properly asserts, the subsequent deeds joining American Samoa to the United States implement this land restriction. Because of this background, amicus argues that the law governing American Samoa is different from that of the United States in dealing with alienation of land.

Recognizing that the Constitution nevertheless has some application to American Samoa as a United States Territory, and that fundamental rights will be enforced, amicus argues that land alienation is not such a right in American Samoa. Amicus not only relies on the Treaty of Berlin, the deeds of cessation, and the Revised Constitution, but argues persuasively from Wabol v. Villacrusis, 958 F.2d 1450 (9th Cir. 1990). There, the Ninth Circuit carefully examined land alienation restrictions imposed in the Northern Mariana Islands that had been challenged under the equal protection clause of the Constitution. Recognizing that the Constitution exported protection of fundamental rights to the Territories, the court stated:

“ [F]undamental” within the territory clause are “‘those . . . limitations in favor of personal rights’ which are ‘the basis of all free government.’” In the territorial context, the definition of a basic and integral freedom must narrow to incorporate the shared beliefs of diverse cultures. Thus, the asserted constitutional guarantee against discrimination in the acquisition of long-term interests in land applies only if this guarantee is fundamental in this international sense.

Id. at 1460 (citations omitted).

Thus, amicus argues that the equal protection clause, which does not appear in the Revised Constitution, is not imported as a fundamental right as to alienation of land restricted by the Treaty of Berlin, the deeds of cessation, and the Revised Constitution.

[4] When this issue was before this court in Craddick I, we provided little analysis of this issue, and moved directly to whether such a classification, which we held was based on race, was necessary to protect a compelling state interest. Craddick I, 1 A.S.R. 2d at 11-12. We

25 applied strict scrutiny review to the land restrictions. We then concluded that: “American Samoa has demonstrated a compelling state interest in preserving the lands of American Samoa for Samoans and in preserving the Fa`a Samoa, or Samoan culture. We find the prohibition against the alienation of land to non-Samoans to be necessary to the safeguarding of these interests.” Id. at 12. Craddick I relied on the Treaty of Berlin, which expressly prohibited the alienation of land to non-Samoans, and the Revised Constitution for support.

We understand the argument by amicus on whether the Constitution’s equal protection clause applies to this case and are not unsympathetic to it. However, we need not resolve that issue in this case, because even if the equal protection clause does apply to American Samoa, the land restrictions at issue would not violate that clause.

We agree with Magdalene and amicus that the vital interest in preserving Samoan culture has not diminished since the 1980 holding of this court. Preserving Samoan culture is of primary importance to American Samoa, and we cannot imagine anything that would so fundamentally alter the nature of Samoa than permitting non-full blooded Samoans to own and control land, whether native or individually held. Such an outcome would allow non-full blooded Samoans to decide the fate of American Samoan culture and identity, something abhorrent to the Treaty of Berlin and the Revised Constitution. While strict scrutiny is a high hurdle to clear, the interest of American Samoa in retaining its national identity clears that hurdle. Thus, even if equal protection of the law applied to land alienation is a fundamental right guaranteed to citizens of American Samoa, we hold that the land restrictions are narrowly tailored to satisfy a compelling state interest. As we said in Craddick I: “It is this compelling state need to preserve an entire culture and way of life that permits the government of American Samoa to utilize a racial classification and still withstand the rigorous scrutiny of a watchful court.” Id. at 12.

C. Appellant’s Policy Arguments

Finally, we dispose of Craddick Development’s policy arguments. Craddick Development first argues that “this is not a case calling out for protection of American Samoans against overreaching land grabbing by an outsider.”

We understand this first policy argument and are not unsympathetic to it, particularly in light of the Trial Division’s finding that Magdalene assented to the trust arrangements and disavowed them when it redounded to her personal benefit and that she “appropriated trust funds for her personal use, badly abusing her position as trustee.” However, the American Samoa Code does not contain an exception for cases that

26 do not involve “overreaching land grabbing by an outsider.” While Craddick Development’s business plan might have ultimately benefited American Samoans, it is for the legislature, and not the courts, to amend the Code to allow for land transactions of the sort attempted in this case.

[5] Second, Craddick Development argues that the land in question is individually-held land, which comprises only two percent of the land of American Samoa and is therefore not subject to the same protection as native land. While individually-owned land may comprise a small fraction of all American Samoan land, the alienation restriction plainly applies to all land except freehold land. Had the legislature intended to exempt individually owned land from the alienation restriction, it could have done so as well.

AFFIRMED.

______

CONCURRING OPINION

WARD, Acting Associate Justice.

Although I concur in the result of the majority’s opinion, I do not agree that this case presents a valid claim of race-based discrimination under the land alienation statutes. The jurisdiction of the trial court in this case was based on the areas of corporate, trust, and mortgage law. It is under this narrowly defined jurisdiction and these specific areas of law that I concur that the transactions at issue in this case were of no legal effect.

Although the facts in this matter are not in dispute, neither are they in abundance. Appellant Craddick Development, Inc. is an American Samoan domestic corporation duly organized and licensed under the laws of this Territory. It later became sole beneficial owner of one of the 1985 land trusts and co-beneficial owner with the Anderson Employee Pension Fund of the second 1985 land trust. A motley assortment of earlier “Deeds of Trust” and coincidental land transfers were combined and rolled over into the two respective land trusts established in 1985. Both trusts involved individually owned lands.

Douglas Craddick is dead and his appellant estate has no discernable direct, present interest in either of these two 1985 land trusts. The legal

27 status of appellant Anderson Employee’s Pension Fund, Robert Kerley, Trustee, Honolulu, Hawaii, is nowhere evident in the record. As a legal entity ostensibly engaging in business for profit within the Territory, A.S.C.A. § 27.0202(a), for purposes of this discussion it will be presumed to be a foreign corporation: i.e., “. . . a corporation for profit organized under laws other than the laws of American Samoa.” A.S.C.A. § 30.0101(d) (entitled “General Corporation Law”).

I concur in the result of the majority’s opinion only because the result reached in this case would have been substantially the same if it had been effectively argued by counsel before a trial court of clearly competent jurisdiction over the subject matter. This case began as a corporate trust case in the trial division of the High Court. At trial it was transformed into a land matter and decided, in no small part, by the trial division upon application of a single chapter of the Territory’s land laws to the facts found at trial. Upon appeal, the majority of this Court further expanded this case to address the federal question of how to balance an individual’s fundamental constitutional rights with the admittedly race- based land alienation restriction statutes appearing in Chapter 02, Title 37 of the American Samoa Code Annotated (“the Code”). This approach has resulted in jurisdictional inconsistencies and legal inaccuracies in both the trial court’s and the majority’s opinions.

Exclusive trial court jurisdiction over “all controversies relating to land” is granted by statute to the Land and Titles Division of the High Court, A.S.C.A. § 3.0208(b)(2), not to the Trial Division of the High Court which heard and decided this case. Although the same justices and judges would sit and decide the case in either division at the trial court level, the consequences of jurisdiction become more apparent at the appellate division level. Under A.S.C.A. § 3.0221, the determination of a land case or controversy is made by a majority of the five member appellate panel. All other controversies (save for matai title cases) may be decided by any two of the justices serving on the appellate panel regardless of the vote of the remaining justice and the two Samoan judges. This statutory safeguard of local self-determination on culturally critical matters is forfeited unless the trial courts zealously guard their exclusive respective areas of subject matter jurisdiction.

The majority’s footnote #1, on page 22 indicates that the Trial Division may grant itself jurisdiction to hear land controversies. The statutes indicate a contrary conclusion in that only the Land and Titles Division may exercise both land and collateral issues in a single controversy. The Trial Division’s jurisdiction, and the consequential appellate review voting procedures are statutorily mandated and not subject to self ordered judicial expansion of prescribed subject matter jurisdiction. Regardless of the outcome of this particular case, we should diligently protect the cultural safeguards contemplated by the Legislature when so

28 carefully constructing this process, rather than altering the process to protect a questionable product.

By relying solely upon that part of the trial division’s opinion dealing with the land alienation restrictive statutes in affirming that court’s decision, the majority of this Court embraces a jurisdictional paradox. It decides a land controversy appeal from a trial court which lacks subject matter jurisdiction over such a controversy. This dilemma can and should be avoided.

My concurrence in the result of the majority’s opinion is predicated upon the belief that the Trial Division did have jurisdiction over the subject matter of this controversy because the legal issues presented were confined to the justiciable areas of corporate, trust, and mortgage law. This distinction, albeit of anorexic proportion, appears to present the only rational alternative to reversal based upon lack of jurisdiction.

The status of the parties and the legal devices selected to implement their land development schemes present dispositive legal issues short of reaching and constitutionally justifying the race-based land alienation statutes of this Territory. Understandably, because such issues received little if any attention at the trial court level, the majority is reluctant to presently consider the application of local statutes other than those raised by counsel or utilized by the trial court. Yet to avoid the nagging jurisdictional issue, we appear compelled to do so under our powers of de novo review of applicable law.

Indeed, by failing to address the existence of applicable corporate land acquisition statutes to the incorporated appellants in this matter, the majority leaves unexplained its legal conclusion that corporations are “persons with non-native blood” and that any control over lands by corporations amounts to prohibited “non-Samoan ownership of the land”. 2 A.S.R.3d at 24. Not to recognize specifically enacted corporate land acquisition statutes in a matter involving corporate parties appears violative of fundamental justice, especially in light of the severe forfeiture and penalty statutes which the trial court imposed upon these corporate appellants.

Article 1, § 3 of the Revised Constitution of American Samoa authorizes the legislature to enact legislation which “protects the land, customs, culture, and traditional Samoan family organization of persons of Samoan ancestry....” This “policy protective legislation,” duly enacted under a super-majority successive-session constitutional requirement, is integral to the overall land regulatory scheme adopted by the locally elected and selected American Samoan members of the Legislature. The policy protective legislation is codified not only in A.S.C.A. tit. 37, ch. 02, but also in other chapters of the Code. In our de novo review of the

29 law applicable to the facts of this case, it appears prudent to first inquire whether the Legislature has provided specific guidance upon the issues under consideration before we resort to case law of questionable application to the Territory of American Samoa.

Certainly with Appellant Craddick Development, Inc., and arguably with Appellant Anderson Employee’s Pension Fund, we are dealing with corporate persons subject to the local statutes which create, regulate, or authorize the legitimate use of their corporate powers. And, with the trust instruments voluntarily selected by the parties to initially legitimize their land development scheme, we are dealing with a highly regulated, artificial form of land ownership which must meet strict statutory requirements of validity or suffer nullification as a legal consequence.

Corporate land acquisition powers within the Territory are granted and regulated under A.S.C.A. § 30.0131. Unlike the Northern Marianas approach to regulating corporate land acquisition powers by allowing only certain corporations owned and directed by a majority of persons of Northern Marianas Island descent to obtain title to, or long term ownership interest in, certain lands, American Samoa has determined that for land acquisition purposes both foreign and domestic corporations within the Territory are “without race”. A.S.C.A. § 30.0131.

Further, A.S.C.A. § 30.0131 prohibits the corporate acquisition of an interest in land unless the transaction is approved in writing by the Governor and recorded by the territorial registrar. Failure to comply with these two conditions precedent upon the valid exercise of corporate land acquisition powers nullifies the transaction under the statute’s enforcement clause: “... and no such acquisition or transfer may be of any effect until so approved and recorded.” Id.

In keeping with the trial division’s subject matter jurisdiction, I would decide this matter within the confines of applicable corporate law and simply rule that the corporate appellants could not acquire any interest in land without first meeting the two conditions precedent upon the exercise of such corporate powers. This would obviate the need to discuss and decide whether such transactions were “alienations” of land or even prohibited alienations of land under the race-based restrictions of A.S.C.A. § 37.0204. As the trial court found at pages 9 and 10 of its decision, appellants failed to apply for approval of these land transactions from the Governor. That finding of fact, although determined in a slightly different context, is controlling for purposes of nullifying any of the land transactions entered into by the corporate appellants without the prior written approval of the Governor under A.S.C.A. § 30.0131.

The discretion granted to the Governor to regulate foreign and domestic

30 corporation land acquisition powers within the Territory represents part of the Legislature’s facially race-neutral corporation regulatory scheme. The second part of this scheme is found under A.S.C.A. § 30.0 103, also specifically enacted under the super-majority, successive session requirement of the Revised Constitution. This statute provides corporations with the direct right of appeal to the U.S. Secretary of Interior concerning any adverse decision made by the Governor pursuant to the General Corporation Laws of the Territory. No comparable direct appeal to the Secretary is found in other land statutes applicable to natural individuals which require the Governor’s prior approval. This appears to buttress the inference that the Legislature sought to regulate corporate individuals under a separate race-neutral classification.

Because these statutes were not raised, argued or discussed below, we need not determine today whether these statutes specifically authorize corporations to acquire title to individually-owned lands in the Territory. All that is necessary to decide this case is to find that the corporate appellants lacked the capacity to lawfully engage in these transactions until first complying with the conditions precedent upon the exercise of such corporate powers. As a consequence, these transactions were of no legal effect pursuant to A.S.C.A. § 30.0131.

The same rationale applies to the determination of the validity of the 1985 land trusts under local regulatory statutes. Both the trial court and the majority ably demonstrated that by prescribing the use of a particular type of land trust that could be utilized to convey beneficial land ownership to certain mixed marriage couples and the mixed race issue thereof, the Legislature had proscribed the use of all other forms of common law land trusts that might otherwise be formed to circumvent the protective legislative policy objectives necessary to preserve and protect the Samoan culture and land tenure system. The problem with their rationale is that the Legislature, under the successive session super majority constitutional requirement, enacted two land trust statutes, not just the mixed marriage-mixed race issue exception to the land alienation restrictive statutes. The second such land trust statute is found under A.S.C.A. § 28.1005, which reads in applicable part that a locally licensed bank may: “...acquire and hold title to land in trust for beneficial owners who are eligible under the laws of American Samoa to acquire and hold title to land,...”

Obviously, corporations that are “without race” cannot qualify as corporate beneficial owners of land under a statute restricted to mixed race marriages and offspring. Facially, however, A.S.C.A. § 28.1005 does not impose race, or blood levels of a particular race, upon the classification of persons eligible to use this type of land trust. What is specifically prescribed by this statute, however, is that any person desiring to legally acquire a valid beneficial ownership of land in trust

31 must establish such a land trust with a locally licensed, federally regulated bank as trustee. No other entity, individual or corporate, is expressly empowered to acquire and hold title to land in trust under this statute.

The wisdom of the Legislature in prohibiting all persons other than federally regulated banks from serving in such a fiduciary capacity as trustee is amply demonstrated by the facts of this controversy. Both the trial court and the majority of this Court seem to agree that Appellee Magadaline Craddick failed to faithfully discharge her responsibilities as trustee of the two 1985 land trusts. What both opinions fail to declare, however, is that she was legally not qualified to acquire or hold title to land in trust for any qualified beneficial owner of such land trusts. That role has been specifically reserved for banks. Any purported conveyance of land to Magdaline as trustee for the 1985 land trusts must fail because she lacked the specifically prescribed, statutory authority as trustee to acquire any title to lands held in trust under A.S.C.A. § 28.1005. “Any conveyance to one who is not capable of accepting title is void for want of a grantee capable of taking the estate conveyed.” Petesa Congregational Christian Church et al v. Tu`inanau, 1 A.S.R.2d 22 (1980).

With respect to deciding the issue of whether the 1985 land trusts were valid, the dispositive issue is not blood or race, but the legal capacity of the trustee selected by appellants to acquire and hold title to lands in trust. In short, appellants Craddick Development, Inc. and the Anderson Employee Pension Fund never acquired any beneficial interest in the individually owned lands because the trustee they selected lacked the legal capacity to acquire title to such lands.

The issue of the legal capacity of the trustee of the 1985 land trusts is of singular importance to the appropriate disposition of this case. Under A.S.C.A. § 28.1005 any person who is qualified to acquire and hold title to land may be a beneficial owner of a land trust administered by locally licensed, federally regulated bank as trustee. Obviously the Legislature did not intend the race-based land alienation restrictions to fully apply to this statute. Full application would prevent the initial land title transfer because the trustee bank arguably does not possess the requisite 50% Samoan blood necessary to acquire and hold title to land. The statute would be rendered meaningless by such an interpretation. Nor does the statutory restriction that the trust’s beneficial owner be qualified to acquire and hold title to land facially limit the application of this statute to persons of one-half or more Samoan blood. Arguably, corporations duly approved by the Governor or the Secretary of Interior could qualify. Apparently so would the mortgagees who foreclosed individually owned land mortgages and acquired short term title to such lands for the unexpired balance of the term of the mortgage plus ten years under

32 A.S.C.A. § 37.1110. This policy protective legislation enacted after this Court decided Craddick I, specifically authorizes such mortgagees, regardless of race or blood, to acquire short term ownership of individually owned lands upon mortgage foreclosure, provided such lands are ultimately reconveyed to individuals possessing the requisite Samoan blood.

By deciding this controversy on the applicable corporate powers and land trust statutes specifically enacted by the Legislature to address these very issues, this Court could avoid the apparent legal inaccuracies contained in the majority’s opinion. I am left with the distinct impression that the majority has concluded, without explanation, that any corporation is a “non-Samoan” and therefore statutorily prohibited from acquiring any interest in individually owned lands regardless of whether or not it has validly complied with the corporate land acquisition statutes. Although the application of such a holding to the parties to this controversy may present justice of sorts, the larger application of this opinion to those domestic corporations organized under the laws of this Territory and owned and directed by persons of varying degrees of Samoan ancestry is alarming.

As I understand the trial court’s and majority’s opinion, every leasehold, easement, assignment of rents, license for use or any other interest in such lands conveyed to a corporation may now be voided at will by the owner of such individually owned lands. Not only may such conveyances apparently be voided as illegal “alienations” of “control” or “ownership” of individually owned land interests, but any improvements to such lands made by the occupying corporate entities would be forfeited to the owner of such lands under the penalty and forfeiture section (A.S.C.A. § 37.0230) of Chapter 02, Title 37 of the Code.

The forfeiture clause of this section applies only to that class of persons statutorily defined as “nonnatives,” being: “... any person who is not a full-blooded Samoan” ASCA § 37.0201(e). This penalty section dates back to one of the earliest Naval Regulations promulgated to prohibit, at that time, any “native” (full-blooded Samoan as defined under A.S.C.A. § 37.0204(c)), from alienating land to any “nonnative.” Gradually this clear cut distinction was statutorily altered to allow Samoan land owners to alienate their lands to “nonnatives” who possessed at least 3/4ths Samoan blood. Currently, the land alienation blood restriction is one- half or more Samoan blood.

The Legislature has enacted a separate penalty clause specifically applicable to corporate land transactions under A.S.C.A § 30.0131 which voids all transactions undertaken without the requisite approval of the Governor and proper recordation. If the Legislature had clearly intended the 90 year old penalty provision for violating the race-based land

33 alienation laws of Chapter 02, Title 37, to apply to corporations who are without race, there would have been no reason to additionally create the separate, specific corporate penalty that nullifies non-conforming corporate land acquisition transactions. Nor is it plausible that the Legislature would authorize the regulated corporate acquisition of land or interests therein under Title 30 of the Code only to allow such transactions to be voided at will under Title 37 of the Code because such corporations are “non-Samoans.”

The majority’s opinion is made unclear by its repeated misuse of statutorily defined terms, such as “native” (i.e., a full-blooded Samoan) and “nonnative” (i.e., a person of less than full Samoan blood) and its use of undefined terms such as “Samoan,” “Samoan lands” and “non- Samoan.” This leads the majority into erroneous legal premises such as, “A Samoan cannot ‘alienate’ any Samoan lands to persons with less than full native blood”. 2 A.S.R.3d at 24. But under A.S.C.A. § 37.0204(b), a native or nonnative person owning individually owned lands is free to alienate such lands to any other nonnative who possesses the requisite one-half or more native blood. Even when dealing with the far more regulated land category of “native lands” (i.e., communally owned family lands under the control of the family’s senior matai), the statutes provide that such lands may, with the prior approval of the Governor, A.S.C.A. § 37.0204(a) & (b), be alienated to certain qualified nonnatives.

The majority’s conclusion that the beneficial ownership of land in trust by appellants “violates Section 37.0204(b)” because it could have resulted in land “. . . ownership by persons with non-native blood. . .” at page 24 is equally unclear. The majority fails to explain how it apparently concluded that foreign and domestic corporations are legally determined to be “non-Samoan or “persons with non-native blood.”

By statute corporate persons are without race and corporate land interest acquisition powers exercisable on a case by case basis at the sound discretion of the governor, subject to review by the Secretary of Interior. The majority’s holding vitiates that corporate regulatory scheme, but supplies no alternative tool for deciding how to determine the “native blood” in corporate persons. Is it calculated by the Samoan ancestry levels of the corporate board of directors, the stockholders, or even the individuals who organize it? Clearly the Legislature opted to avoid these requisite blood measurement devices by declaring corporations without race. If the majority must set this approach aside, it appears incumbent upon them to explain how native blood is calculated when dealing with corporate land interest acquisitions.

Nor can I understand the statement on page 26 expressing the sentiment that: “... we cannot imagine anything that would so fundamentally alter

34 the nature of Samoa . . .” as allowing such “. . . non-full blooded Samoans to own and control land. . .” Yet it appears this is precisely what was intended by the Legislature when enacting A.S.C.A. § 37.1110 which specifically authorizes such persons as I think the majority means by “non-full blooded Samoans” to acquire a short term “ownership (i.e., control)” of individually owned lands, regardless of race.

The generally adverse legal consequences of expanding and misapplying the defined terms associated with the land alienation laws of this Territory simply to decide this case far outweigh the need to do so in the manner chosen by the majority. This approach not only judicially alters the carefully enacted regulatory scheme of the Legislature but also stamps this case as a “controversy relating to land” which the trial court lacked jurisdiction to hear and decide. This case can, and should be, decided upon consideration of applicable policy protective legislation specifically enacted to address the issues of law applicable to land trusts law and corporate land acquisition powers. The legal results would be essentially the same; the trusts are void and the interests in land attempted to be acquired by Appellants nullified. Jurisdiction would be preserved and both the majority of this Court, and the trial court when finally assessing damages, would be free to address the equities, rather than force application of a penalty and forfeiture section of law not clearly intended to apply to corporate land transactions otherwise voidable under the General Corporation Law of this Territory.

Obviously I do not agree with the majority that appellants have demonstrated any injuries attributable to discriminatory race-based governmental actions. Appellants’ injuries were self-inflicted, within areas of the law dealing with corporate powers and the legal capacities of land trust trustees, under statutes either facially race neutral or expressly so. Yet if we must address the issue of fundamental rights raised by appellants, it would appear we might do better than the majority’s approach of simply posing, at page 26 that: “... even if the equal protection clause does apply to American Samoa, the land restrictions at issue would not violate that clause.” The balance of page 26 of the majority’s opinion similarly exhibits laudable and genuine sentiment for preserving the Samoan culture and way of life, but only by way of subjecting the Territory’s race-based policy protective legislation to judicial strict scrutiny to decide if the Territory can demonstrate a compelling government interest in preserving its centuries old culture and communal land tenure system.

This controversy relates to interests in individually owned lands, not native lands (i.e., communally owned family lands under the control of the family’s senior matai). Individually owned lands of the species at

35 issue here, are of recent and judicial origin. Unlike traditional life upon native communal lands where the family member’s entitlement to use of the property is conditioned upon that person’s continuing obligation to render services to his family’s senior matai, individually owned lands are outside of the direct control of the senior matai. A family member on communal land who refuses to contribute to family cultural rituals may quickly find himself evicted from such lands, but a person residing upon his or her own individually owned lands has clear title to such property superior against any other person. Individually owned lands are freely alienable, subject only to one-half or more Samoan blood requirement in the vendee. Such lands are also mortgageable, and subject to involuntary alienation upon mortgage foreclosure.

The calm assurances of the majority notwithstanding, I remain unpersuaded that some future Appellate Division panel or even a U.S. District Court in Washington, D.C., when applying strict scrutiny to the race-based land alienation restrictions applicable to individually owned lands, will always find the government’s argument compelling that the only way to preserve a culture founded upon communally owned lands under the control of a senior matai, is to similarly restrict ownership of individually owned lands not subject to a senior matai’s control, based upon race.

By treaty, the Deeds of Cession, and public laws duly enacted under the “needful Rules and Regulations” clause of Article IV, section 3 of the United States Constitution, the United States Congress has shielded the intertwined lands and culture of the Samoan people from the full application of federal law that might destroy the Fa`a Samoa. Not unlike the rights afforded Native Americans to preserve their tribal customs and lands, Congress has provided a similar opportunity of cultural self- determination to the people of this Territory. This concern was indicated even when Congress first dealt with the Territory’s Deeds of Cession. Under 48 U.S.C. 1661(b), Congress specifically prohibited the application to the Territory of “. . . existing laws of the United States relative to public lands . . .” With this caveat, Congress then delegated its authority over the administration of the Territory to the President, who first used the Navy, then the Department of Interior, to directly administer the Territory while fostering the gradual development of a self-governing Territory.

The Revised Constitution of American Samoa was approved by the Secretary of Interior in the exercise of his powers over the Territory as delegated by Congress. The “policy protective legislation” section of the Revised Constitution, when first approved, reflected a delicate balancing of Samoan self-determination with federal oversight. The American Samoan Legislature was granted the conditioned authority to enact laws

36 that its American Samoan members believed necessary to protect and preserve the Samoan culture and native lands that are so much a part of that culture and way of life. Balanced against these local powers of self determination, when the Revised Constitution was first adopted, was the clear retention of federal oversight powers exercised by the federally appointed Governor of the Territory through his legislation veto powers. Indeed, unless it is recognized that this federal oversight was part of the policy protective section when initially adopted, the clause in the first sentence of that section “. . . contrary to their best interests admits to no application. This clause represented the last vestige of the United States’ direct power to dictate what was or was not in the Samoans’ best interests, notwithstanding that two successive sessions of the local legislature by a 2/3rds or greater majority had declared what protective laws they thought were necessary to preserve the Samoan culture and land tenure system.

When the federally appointed Governor was replaced by amendment to the Revised Constitution providing for a locally elected Governor, commencing in 1977, the Secretary of Interior effectively granted to the American Samoan Legislature and Governor, the unfettered power to decide for themselves what changes in the land alienation laws could or should be enacted. Congress completed this process in 1983 by enacting 48 USC 1662a, which prohibits any amendment to or modification of the Revised Constitution except by Act of Congress.

The United States initially decided that to protect the Samoan culture, the fundamental right of Samoans to alienate their lands must be abridged. At that time the Samoans lacked the political power to protect their culture and lands from foreign encroachment. Gradually the United States fostered the development of Samoan self-government and self- determination and slowly returned the exclusive power to preserve the Samoan culture, lands, and way of life to those persons best qualified to decide such matters, the Samoan people, their locally elected Governor and House of Representatives and their ranking matais who serve in their Senate. Although achieved by different means, Congress has provided, by needful rule or regulation, American Samoans with the rights to manage their lands and preserve their customs similar to those rights of Native Americans to control their tribal lands and customs.

Although I disagree that this Court need reach the fundamental rights issue raised by appellants in order to decide this case, if we must do so, we should first determine whether Congress has insulated the locally enacted policy protective legislation statutes from those sections of the United States Constitution whose full application might result in reimposing federal control over the Samoan culture, land tenure system and way of life. Fundamental rights unquestionably extend to the general laws of the Territory of American Samoa. Whether such rights apply

37 with full force to areas of law reserved by Congress for the exclusive regulation by this unincorporated territory’s locally elected Legislature and Governor is no longer settled law in this Territory.

The majority’s Opinion at page 26 indicates little analysis was conducted on the issue of whether the equal protection clause (by virtue of the 5th Amendment), applied to the Territory by this Court in Craddick I. Yet, it appears Craddick I dealt entirely with that constitutional issue. The Court first declared unequivocally that “. . . the constitutional guarantees of due process and equal protection are fundamental rights which do apply in the Territory of American Samoa. . .” Craddick I, 1 A.S.R. 2d 10, 12 (App. Div. 1980). Secondly, that Court held the blood restricted land alienation statute “. . . does create a classification based on race. . .” Id. Further, that Court held “. . . that statutes discriminating on the basis of race are subject to the strictest judicial scrutiny. . .” Id. The balance of pages 13 and 14 of the Craddick I decision is devoted to demonstrating a compelling state interest sufficient to justify the race based land alienation statute notwithstanding the Territorial application of the equal protection clause.

The opinion of the majority in the present matter appears to slightly retreat from the holding in Craddick I by prefacing its discussion with “. . . even if the equal protection clause does apply to American Samoa. . .”. Nonetheless, the majority then proceeds with applying the compelling state interest test, a judicial statutory construction device reserved only for determining whether a particular government public policy objective can only be achieved at the expense of an individual’s constitutional right to equal protection under the laws. Implicitly, the application of the compelling state interest test presupposes the determination that the equal protection clause applies to the Territory’s policy protective statutes. There can be no other legal explanation for the majority’s use of this test. As a consequence, this Court continues to subject the race- based policy protective legislation of this Territory to the disturbingly difficult burden of justification under the compelling government interest test.

Since at least 1917, race-base government restrictions upon an individual to freely alienate his or her lands have been viewed as unreasonable infringements upon recognized property and liberty interests protected by the due process clause of the 14th Amendment. Buchanan v Warley, 245 U.S. 60 (1917). For nearly 100 years both the executive branch and the Congress of the United States have clearly indicated that such 14th Amendment rights do not apply to the local laws applicable to the Samoan culture and land tenure system of this Territory. Congress has directly used and indirectly allowed the use of its Article IV powers to carefully preserve for the Samoan people the exclusive right to determine by local statute how their culture and land tenure system will

38 be regulated. It appears overdue for the judicial branch to do likewise.

The majority’s opinion is also disturbing in its apparent reliance upon such documents as the Treaty of Berlin to judicially evaluate the present exercise of exclusive powers to enact policy protective legislation by the Legislature and Governor. Although benignly used by the majority herein, I question whether this Court, or any other court, may set aside locally enacted policy protective legislation based upon its inconsistency with the 100 year old expressed interests of the colonial powers subject to that Treaty. For example, the Legislature has duly enacted A.S.C.A. § 37.1110 authorizing mortgagees other than persons of one-half or more Samoan blood to acquire short term title to mortgaged individually owned lands upon foreclosure. Since the Treaty of Berlin contains a blanket prohibition against alienation of lands in the Islands of Samoa to foreign nationals by sale, mortgage or otherwise, it appears that under the majority’s opinion at pages 25-27 this Court could judicially void the Territory’s land mortgage statutes if it determined such statutes were “abhorrent to the Treaty of Berlin...”

This approach seems to resurrect powers of the United States Government to decide whether a particular piece of policy protective legislation is valid based upon whether the Court views the statute as being contrary to the Samoans’ best interests. It may prove ultimately correct, but it presently appears at variance with the historical development of self-government of this Territory and recently enacted Acts of Congress and the Territory’s Legislature.

American Samoa is not destined for statehood. Within the currently evolving political status of the Territory, it appears more reflexive than reflective to judicially impose rigorous constitutional standards and tests to areas of law solely of local application which Congress appears to have insulated from such challenges. It appears more consistent with the apparent new order of things to at least consider the legal implications of 48 U.S.C. 1662a while addressing the appellants’ fundamental rights arguments. It would certainly simplify our consideration of such issues to determine whether this act of Congress legally transformed the policy protective legislation section of the Revised Constitution into one of Congress’s “needful Rules and Regulations respecting the Territory or other Property of the United States,” pursuant to its inherent powers exercisable under Article IV, Section 3 of the United States Constitution. If Congress has already decided that race-based policy protective legislation is a “Needful Rule” for this unincorporated, no longer quite unorganized, territorial possession of the United States, our task is made much easier.

I concur with the result of the majority that the race-based policy protective legislation restricting the alienation of individually owned

39 lands to persons of one-half or more native blood as enacted by the Legislature is constitutional. I do not agree that to so find, that this Court must apply the compelling government interest test to this policy protective legislation, nor compare it for compliance with the Treaty of Berlin.

I concur solely because it appears Congress has resolved the fundamental rights issue in favor of the American Samoan people. Until and unless Congress amends or modifies the Revised Constitution, the exclusive power to determine the nature and scope of race-based policy protective legislation rests with the Legislature and Governor, subject to judicial review based upon a reasonableness test. I would so hold.

**********

TE`O J. FUAVAI, Petitioner,

DISTRICT COURT OF AMERICAN SAMOA, Respondent.

AP No. 15-98

October 15, 1998

[1] There is no right to appeal judgment of contempt. However, a contempt judgment may be contested by filing a writ of certiorari.

[2] Certiorari is a discretionary form of review, not one of right.

[3] A party should file a writ seeking extraordinary relief, such as a writ for certiorari, in a timely fashion. If the law does not specify the time limit for filing the particular writ, the filing should occur within a reasonable time.

[4] Review under certiorari is limited to whether a judicial body acted within the scope of its authority, and does not address errors of law or fact committed by an inferior tribunal within the limits of its jurisdiction.

[5] Where rules did not provide time limit for filing a writ of certiorari to the High Court, the analogous rule for review of an agency’s decision under

40 the Administrative Procedures Act (30 days) would be used due to the similarities between the review of an agency’s decision under the APA and the High Court’s review of a District Court’s judgment of contempt.

Before KRUSE, Chief Justice, RICHMOND, Associate Justice, LOGOAI, Associate Judge, and ATIULAGI, Associate Judge.

Counsel: For Petitioner, Arthur Ripley, Jr. For Respondent, Elvis R.P. Patea, Deputy Attorney General

ORDER GRANTING MOTION TO DISMISS OR QUASH ALTERNATIVE WRIT OF CERTIORARI

On May 1, 1998, petitioner Teò J. Fuavai (“Teò”) was judged guilty of contempt of court by respondent District Court of American Samoa (“District Court”). Teò filed a motion for rehearing or reconsideration on May 11, 1998, which the District Court heard and denied on June 3, 1998. On July 23, 1998, Teò petitioned for a writ of certiorari or for extraordinary relief in the Trial Division of the High Court. That same day, the Trial Division issued an order granting an alternative writ of certiorari. In response, the District Court filed a motion to quash an alternative writ of certiorari. On August 10, 1998, the Trial Division heard the motion and ruled that the matter should be transferred to the Appellate Division of the High Court. That same day, the Appellate Division issued an order granting an alternative writ of certiorari. The District Court now moves to dismiss or quash the alternative writ of certiorari. For the reasons stated below, this motion will be granted.

[1-2] Under H.C.R. 119, no right to appeal a contempt judgment exists. Although certiorari is not a substitute for appeal, In re Johnson’s Adoption, 110 S.E. 2d 377, 379 (W.Va. 1959), a contempt judgment may be contested by filing a writ of certiorari. H.C.R. 119. The writ brings before the court for inspection the record of the proceedings of an inferior tribunal in order that a superior court may determine from the face of the record whether the inferior court has exceeded its jurisdiction or has not proceeded according to the essential requirements of law. Wall v. Superior Court Yavapai County, 89 P.2d 624, 628 (Ariz. 1939). Certiorari is a discretionary form of review, and is not one of right. Felton v. Barnett, 912 F.2d 92, 94 (4th Cir. 1990).

[3] A writ of certiorari is available for extraordinary relief, and, as such, the petitioner should file a writ in a timely fashion, commensurate with the degree of relief requested. When a statute does not prescribe the time within which the right to review must be exercised, such right must be exercised within a reasonable time. State v. Board of Trustees of Wisconsin Retirement Fund, 140 N.W.2d 301, 303 (Wis. 1966); City of Bothell v. King County, 723 P.2d 547, 549 (Wash. App. 1986).

41 This court has not directly addressed the issue of when a writ of certiorari to review a contempt judgment must be filed. Te`o failed to offer any analysis on when an appropriate deadline should be set. Rather, Te`o asserts that the time for filing the writ of petition was “reasonable and not dilatory” since no statute or rule sets out time limits on when a writ must be filed. The District Court, on the other hand, proffers that the time limit should be set at 10 days, equating the time period by analogy with the time period for filing an appeal. As an initial matter, we acknowledge that no express time limit exists for filing a petition for writ of mandamus or other extraordinary writs in the rules. H.C.R. 119; F.R.A.P. 21; 9 J. Moore, MOORE’S FEDERAL PRACTICE, § 221.03 (2d ed. 1996 & Supp. 1996-97). Common law, however, has applied either a laches argument or an analogy to the time for filing an appeal to deny a writ of certiorari. In federal courts, a lapse of time and a material change in a defendant’s status is cause to deny a writ of certiorari. United States v. Olds, 426 F.2d 562, 566 (3rd Cir. 1970) (writ denied after three month delay in seeking relief); United States v. Carter, 270 F.2d 521, 524 (9th Cir. 1959) (four month lag in filing mandamus as well as substantial hardship to defendant resulted in denial of mandamus).

Although laches is applied in state courts, the statutory period for filing an appeal may also be employed to determine the time period. Gibson v. Pizzino, 266 S.E.2d 122, 124 (W.Va. Ct. App. 1980); Board of Trustees, 140 N.W.2d at 303.

Where the case arises in the courts, or in judicial proceedings, where the direct notice of the pendency thereof to the parties is jurisdictional, or where the decision of a nonjudicial body is judicial in nature, certiorari must be brought within the time allowable for an appeal as prescribed by statute or court rule. If more than one appeal period is analogous, then the longer appeal period should be applied.

City of Bothell, 723 P.2d at 551 (internal citations and quotations omitted). For federal courts, the statutory time period for appeals is not controlling but is persuasive. Olds, 426 F.2d at 566.

[4] Because of the court’s interest in the finality of judgments, Reid v. Tavete, 23 A.S.R.2d 101, 104 (Land & Titles Div. 1993), a time limit, in this instance, is necessary, regardless of whether there has been a material change in Te`o’s status. Reasoning by analogy, the time period for reviewing an administrative hearing under the Administrative Procedures Act (“APA”) is persuasive here. Both review under certiorari and review of an administrative hearing are limited to whether a judicial body acted within the scope of its authority. Review under certiorari does not correct errors of law or fact committed by an inferior tribunal within the limits of

42 its jurisdiction. Berryman v. Howell, 149 P.2d 505, 506 (Ok. 1944). Rather a writ of certiorari brings up for review the sole question of whether the inferior tribunal kept within or exceeded the jurisdiction conferred upon it. Id.

Review of an administrative hearing is also limited. Administrative review is limited to whether a reasoning mind could reasonably reach the same factual conclusions as did the agency. Continental Insurance Co. v. Workmen’s Compensation Commission of American Samoa, 8 A.S.R.2d 152, 155 (Appellate Div. 1988) (citation omitted). Review of an agency decision does not include “judicial fact-finding or a substitution of judicial judgment for agency judgment.” Id.

[5] Although the scope of review for agency decisions is not the same as review under a writ of certiorari, the similarities persuade us to use the APA statutory time limit for review. Under the APA, judicial review of an agency decision must be instituted within 30 days after the issuance of the decision. A.S.A.C. § 4.1041; see also In re Westerlund v. Scanlan, 4 A.S.R. 998, 1003 (Appellate Div. 1975) (judicial review of a worker’s compensation award must be instituted within 30 days of the date of filing of the award).

By his own admission, Teò acknowledges that he filed his petition in the Trial Division 82 days after being convicted of contempt, 49 days after the denial of the motion for rehearing or reconsideration, and 37 days after the receipt of the June 3 hearing transcript. The relevant time period here is the number of days Teò filed his petition after the denial of the motion for rehearing or reconsideration. Teò actually filed his petition 50 days after that denial, exceeding by 20 days the reasonable time limitation now set by this court. Therefore, the District Court’s motion to dismiss or quash the alternative writ of certiorari is granted.

It is so ordered.

**********

AMATA COLEMAN, Petitioner,

SOLIAI T. FUIMAONO, Chief Election Officer, Respondent.

43 AP No. 20-98

October 21, 1998

[1] A.S.C.A. § 6.0301(d), providing for the Chief Election Officer to determine candidate eligibility, does not provide for appeals from such determinations. [2] Review of candidate eligibility determinations is appropriate in the Trial Division for the limited purposes of determining whether the decision was reached as a result of fraud, corruption, abuse of discretion or unauthorized action so as to constitute a denial of due process of law or as a result of a clear disregard of statutes or court determinations.

[3] The Appellate Division may construe an action as a petition for judicial review pursuant to the provisions of the Administrative Procedure Act, A.S.C.A. §§ 4.1001 et seq., under which a prospective candidate may petition directly with the Appellate Division for review of a determination of the Chief Election Officer as an official government agency decision.

[4] Under A.S.C.A. § 4.1044, the standard of review in the Appellate Division of a determination by the Chief Election Officer under these circumstances is similar to that employed by the Trial Division.

[5] Under A.S.C.A. § 4.1043(a) and (b), the Appellate Division is authorized to hear testimony and receive evidence, and in reviewing an agency’s determination, must give appropriate weight to the agency’s experience, technical competence, and specialized knowledge.

[6] Under A.S.C.A. § 6.0301(a) and (f), candidates for the office of Delegate to the United States House of Representatives must be nominated by petitions signed by at least 300 registered voters, and all candidates for the office of Delegate to the United States House of Representatives are entitled to a list of all qualified electors in the Territory within 10 days after the close of registration for the Territory, which is the 30th day prior to each election, and it is within the discretion of the Chief Election Officer to withhold the list of qualified electors until it is required to be provided by law.

[7] Although not provided with the most current list of qualified electors, and although not having the prior list which other candidates have, a candidate is not unduly prejudiced where it appears that the candidate could have taken reasonable action to ensure that the candidate’s petition contained a sufficient number of signatures of qualified electors.

[8] Where a candidate asserts that her petition was subjected to a higher degree of scrutiny than were those of her competitors, she must

44 demonstrate that the Chief Election Officer acted in an unlawful, arbitrary or capricious manner with respect to her petition.

[9] Where the Chief Election Officer (CEO) invited but then refused to consider the testimony of witnesses to verify their signatures on a candidate’s petition, but where the candidate failed to take an opportunity to present such testimony directly to the Court, it will not be held that the CEO’s action rose to the level of arbitrary and capricious behavior.

Before KRUSE, Chief Justice, RICHMOND, Associate Justice, AFUOLA, Associate Judge, and ATIULAGI, Associate Judge.

OPINION AND ORDER

This petition for writ of mandamus arises from a dispute regarding the eligibility of petitioner Amata Coleman (“Coleman”) as a candidate for the office of Delegate to the United States House of Representatives in the upcoming November 1998 election. By letter of September 2, 1998, Coleman was informed by respondent Chief Election Officer Soliai T. Fuimaono (the “CEO”) that she had failed to meet certain requirements for candidates as set forth by statute, and that she therefore would not appear on the ballot as a candidate for that office. Following unsuccessful negotiations with the CEO and his staff, discussed in further detail infra, Coleman filed this petition with the Appellate Division of this Court.

Standard of Review

At the evidentiary hearing held before the Appellate Division on October 16, 1998, Coleman argued that, because there was no trial record or documentation from any other such intervening proceeding in this case, the Court should review the evidence on appeal de novo. Before proceeding to an analysis of the merits of this case, the threshold issue confronting the Court involves determining the proper forum in which it should be heard. In evaluating the statutes, it appears that there are two possible avenues of judicial review open to a prospective candidate who wishes to challenge the findings of the CEO.

A. Trial Division

[1] Although A.S.C.A. § 6.0230 provides for a direct appeal from the board of registration to the Appellate Division, that provision applies only to matters involving voter registration. With respect to candidates,

45 A.S.C.A. § 6.0301(d) says simply that, “The chief election officer shall determine whether the nominated candidates are eligible for election, and shall cause ballots to be printed for each district bearing the names of all qualified nominees.” The statute otherwise remains silent regarding a prospective candidate’s right to appeal such determinations.

[2] Nevertheless, in the very case cited by Coleman in her memorandum, the Trial Division held under analogous circumstances that review would be appropriate for the limited purposes of determining “whether the decision was reached as a result of fraud, corruption, abuse of discretion or such arbitrary and capricious or unauthorized action as to constitute a denial of due process of law or as a result of a clear disregard of statutes or court determinations.” Lolotai v. Mockler, C.A. 2853-74 (Trial Div. 1974). Similarly, in another pre-election candidate eligibility case, the Trial Division again held that petitioner must demonstrate he had been subject to “arbitrary treatment and caprice on the part of the election office.” Siofele v. Shimasaki, 9 A.S.R.2d 3, 12 (Trial Div. 1988). Moreover, pursuant to T.C.R.C.P. 87-102, petitions for extraordinary writs seeking judicial review of executive or administrative acts or failure to act, such as the writ of mandamus prayed for in the instant case, should properly be filed in the Trial Division, where that tribunal is accustomed to conducting evidentiary hearings and taking live testimony.

B. Appellate Division

[3-5] This case, however, was filed in the Appellate Division. Although a petition for writ of mandamus to review an executive or administrative act and/or omission properly lies with the Trial Division, we nevertheless construed the action as a petition for judicial review pursuant to the provisions of the Administrative Procedure Act, A.S.C.A. §§ 4.1001 et seq., and granted petitioner’s request for a hearing on the matter.4

Under this alternative method of appeal available to prospective candidates, a petitioner may file directly with the Appellate Division for review of official government agency decisions. A.S.C.A. § 4.1041. Although in a different forum, however, the standard of review under these circumstances is similar to that employed by the Trial Division in

4 The Appellate Division conducted an evidentiary hearing in this case on October 16, 1998. Although such hearings are more familiar to the Trial Division, the Appellate Division is also authorized by statute to hear such testimony: “Upon motion of any party, the court may, in its discretion, receive any evidence necessary to supplement the record.” A.S.C.A. § 4.1043(a). Further, the Appellate Court Rules also provide, at the discretion of the Court, for the creation of a supplemental record. A.C.R. Rule 16(b).

46 the cases cited above:

The court may reverse or modify the decision of the agency, or remand the case for further proceedings, if substantial rights of the petitioner have been prejudiced because the decision of the agency is: (1) in violation of applicable constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence in the whole record; (6) arbitrary, capricious or characterized by abuse of discretion.

A.S.C.A. § 4.1044. In addition, the Court must give “appropriate weight to the agency’s experience, technical competence, and specialized knowledge.” A.S.C.A. § 4.1043(b). Given that this case is now before the Appellate Division, it is therefore these standards which will guide our analysis below.

Discussion

In her memorandum and at the evidentiary hearing, Coleman set forth three grounds upon which she claimed that the CEO had denied her right to due process under the law. First, she claimed that among the field of candidates, she alone was wrongfully denied access to a list of registered voters which was essential in completing the paperwork necessary for her candidacy. Second, she argued that her petition was subjected to a more rigorous standard of scrutiny by the CEO’s staff than were those of her competitors. Finally, she alleged that the CEO refused to consider additional evidence which she presented at his office with respect to the disputed information.

A. Denial of a List of Registered Voters

[6] The fundamental dispute in this case arises under A.S.C.A. § 6.0301(a), which requires that candidates for the office of Delegate to the United States House of Representatives be nominated by “petitions . . . signed by at least 300 registered voters of the Territory” (as amended in 1996 by Public Law No. 24-16). As the testimony revealed, this task is often complicated by the fact that such petitions require not only signatures, but also at least purport to require voter registration numbers, which prospective signatories typically do not have committed to memory and do not often carry on their persons.

47 To facilitate this process, therefore, the CEO has in past years made former voter registration lists available to candidates who requested such lists. This year, however, it appears that no list was made available to Coleman before the September 1, 1998 deadline for filing candidate petitions. Candidates Faleomavaega Eni (“Faleomavaega”) and Seigafolava Pene (“Seigafolava”), on the other hand, did have access to the 1996 voter registration list. Coleman claims that the availability of the outdated 1996 lists to the other two candidates raises two fundamental questions which the Court must resolve: a) was she entitled by law to receive a voter list, and b) if not, was her campaign nevertheless materially and unfairly prejudiced by not having the older list while her competitors benefited from its assistance?

1. Legal Right to a Voter Registration List

On this matter, the statute is plain and unambiguous. A.S.C.A. § 6.0301(f) provides that all candidates for the office of Delegate to the United States House of Representatives “are entitled to a list of all the qualified electors in the Territory within 10 days after the close of registration for the Territory” (as amended in 1996 by Public Law No. 24-16). The close of registration is established by statute as the 30th day prior to each election. A.S.C.A. § 6.0222.

For the November 1998 election, therefore, no candidate was entitled to a 1998 voter registration list until early October, well after the September 1 deadline for submitting candidate petitions. Indeed, regardless of the more lenient practices of prior years, no candidate received such a list this year, and we hold that it was within the discretion of the CEO to withhold the 1998 list until such time as it was required to be provided by law.

2. Unfair Prejudice Nevertheless Resulting

[7] Coleman’s claim to unfair prejudice was not borne out by the evidence. Faleomavaega did indeed have early access to a copy of the 1996 voter registration list, but it was a copy which his office had kept from the previous election. Faleomavaega’s representative Alex Godinet testified that while he did seek a copy of the voter registration list from the Election Office, he did so after Faleomavaega’s petition had been filed, which was about a week before the statutory deadline. He also testified that he was given, in response to his request, a copy of the 1996 voter registration list which they already had in their possession. Although the evidence also alluded to Seigafolava’s having access to a 1996 voter registration list, the circumstances as to how Seigafolava obtained a copy of that list was not made clear to us.

48 Moreover, we are convinced on the evidence presented that no candidate received the old list without specifically requesting it. Coleman’s brother, acting as her liaison with the Election Office, by his own testimony admitted that he had requested a “current” list, and was denied what the Election Office staff apparently understood to mean a 1998 list. In this way, any prejudice resulting from not having the old list cannot be blamed on the CEO or his staff, but rather only on the fact that Coleman’s representative specifically asked not for the 1996 list, but for unreleased “current” information.

Furthermore, we are far from persuaded that attaining the 1996 list would have altered the unsuccessful outcome of Coleman’s petition. Although Coleman’s staff obtained the petition in early July, the testimony revealed that her volunteers did not begin turning in signatures until the days immediately prior to the deadline for submitting the petition, with the last coming in on the very day that candidate petitions were due. There is no evidence to suggest that possessing the 1996 voter list would have permitted Coleman to acquire additional signatures; rather, it may simply have helped her to verify those that were already collected.

At best, therefore, possession of the old voter list would have informed Coleman more clearly that she was not on pace to obtain the requisite 300 signatures. Still, the Court believes that Coleman should nevertheless have been able to ascertain this status on her own. The petitions of the other two candidates reveal that even with access to the 1996 voter list, they still had a fairly high percentage of signatures rejected by the CEO; the difference between those petitions and that of Coleman was simply that they turned in a greater aggregate number of signatures.5 If Coleman was concerned about not having the old voter list, she could have begun her collection effort earlier and made certain to obtain enough signatures to provide a comfortable buffer against those undetermined number which would ultimately be rejected. Indeed, after her petition was denied on September 1, Coleman was able within a matter of days to collect an additional 150 signatures to supplement her petition; had such a concerted effort been launched only one week earlier, Coleman’s petition may very well have been

5 The documents presented at the evidentiary hearing show that Faleomavaega’s petition included a total of 483 names, with 375 accepted (77.6%) and 108 rejected (22.3%). Seigafolava’s petition included a total of 398 names, with 335 accepted (84.2%) and 63 rejected (15.8%). Coleman’s petition included just 336 names. To achieve the goal of 300 valid signatures, she would have needed 89.3% of her total to be accepted by the Election Office, a rate significantly above that achieved by either of the candidates who allegedly “benefited” from the possession of the 1996 voter registration list.

49 successful.6

Even viewing the numbers in a light most favorable to Coleman and assuming the validity of those affidavits tentatively accepted by the CEO, Coleman still has a total of only 263 out of the required 300 valid signatures.7 Moreover, at the hearing she did not even make the contention that she could prove the validity of the 37 necessary additional signatures out of the 73 which remain unverified. Because we reject the notion that possession of the old voter list would have resulted in a greater aggregate number of signatures on her petition, and since she has now had ample time with the assistance of such list —as well as an opportunity to present evidence directly to this Court —to prove the validity of those signatures which were submitted in a timely fashion, we conclude that Coleman was not unduly disadvantaged by being deprived of the 1996 voter registration list.

B. Scrutiny Applied to Coleman’s Petition

[8] Coleman further argues that her petition was subjected to a higher degree of scrutiny than were those of her competitors. As discussed above, however, as the petitioner in this case, Coleman must demonstrate that the CEO acted in an unlawful, arbitrary or capricious manner with respect to her petition. Except for vague references in the testimony to possible situations where other candidates submitted multiple signatures that may have been signed by the same person, the record is bare with regard to these allegations. Although Coleman elicited testimony about the review of her own petition, she failed to produce any evidence regarding the process that was followed with respect to the petitions of her competitors. Reviewing once again the numbers set forth in footnote 2, supra, each of the other two candidates appear to also have had a substantial number of their submitted signatures rejected. At this point, over 78% of Coleman’s signatures have been accepted, a higher rate than that of Faleomavaega. Given these figures and the paucity of evidence to the contrary, we are not prepared to conclude that the review of Coleman’s petition by the CEO was in any way extraordinary.

6 The Court agrees with the CEO that he was under no legal obligation to include in his count these 150 supplemental signatures which were submitted after the deadline. 7 Of the 336 signatures submitted on September 1, the CEO and his staff originally accepted only 180. After further review, an additional 54 signatures were verified, bringing the total to 234. The testimony at the hearing indicated that recently the Election Office had tentatively accepted another 29 signatures based on affidavits provided by Coleman.

50 C. The CEO’s Refusal to Consider Additional Evidence

[9] The Court recognizes that Coleman and her staff have gone to great lengths during the past six weeks to attempt to bolster her petition by providing the CEO with further signatures, affidavits, and other evidence. At one point, the CEO even allegedly instructed Coleman to bring in live witnesses to verify their signatures, and then subsequently refused to consider their testimony. While we are sympathetic to the frustrations which such actions may have caused, Coleman nevertheless had the opportunity to present directly to the Court any evidence allegedly not considered by the CEO. Having failed to do so, we decline to now rule that the CEO’s refusal to consider such evidence rose to the level of arbitrary and capricious behavior.

For the foregoing reasons, the petition is denied.

It is so ordered.

**********

FALATEA POROTESANO LEATAPO SALANOA, Appellant

AUMOEUALOGO SOLI, Appellee

AP No. 04-98 MT No. 08-96

November 9, 1998

[1] Appellant’s ability to demonstrate compliance with appellate procedures held immaterial where Court’s original ruling, highlighting alleged procedural deficiencies, also contained alternate, substantive basis for denial of stay.

51 [2] The Court looks at four factors in making its determination whether to grant a stay of execution pending appeal: (1) likelihood that the appellant would prevail in the appeal; (2) irreparable harm to the appellant if a stay is not granted; (3) irreparable harm to appellees if a stay is granted; and (4) whether the public interest would be affected by a stay.

Before KRUSE, Chief Justice.

Counsel: For Appellant, Katopau T. Ainu`u For Appellee, Aumoeualogo Soli appearing pro se

ORDER DENYING APPELLANT’S MOTION FOR RECONSIDERATION OF ORDER DENYING MOTION TO STAY EXECUTION OF JUDGMENT PENDING APPEAL

Appellant Falatea Porotesano Leatapo Salanoa, unsuccessful claimant in Matai Titles Case No. 08-96, now comes before the Appellate Division seeking reconsideration of its October 28, 1998, Order Denying Motion to Stay Execution of Judgment Pending Appeal.

Discussion

A. Alleged Procedural Infirmities of Appellant’s Appeal

In its previous order denying appellant’s motion to stay, the Court noted appellant’s alleged failure to timely file his opening appellate brief in this matter. Order Denying Motion to Stay Execution of Judgment Pending Appeal, AP No. 04-98, slip op. at 2 (App. Div. October 28, 1998). Appellant claimed, in the instant motion, that such brief had in fact been timely filed on September 17, 1998, and purported to attach the brief as Exhibit “A”. Motion for Reconsideration of Order Denying Motion to Stay Execution of Judgment Pending Appeal, at 1. Although appellant appears to have inadvertently attached the Court’s own order as Exhibit “A”, rather than his brief, a copy of appellant’s brief has since been located in the Clerk’s office, timely filed as appellant claims, but unfortunately placed elsewhere by the Clerk and not within the file given to the Court at the time of this motion.

[1] Notwithstanding, appellant’s motion for reconsideration must be denied. Appellant seriously misreads the Court’s order, though, in asserting that “appellant’s alleged failure to [timely] file his Opening Brief . . . was a major factor in the court’s decision to deny appellant’s Motion.” Motion to Reconsider, supra, at 1. Indeed, we did note that the alleged failure to perfect his appeal would “weigh heavily against him.” Order Denying Motion, supra, at 2. That statement, however,

52 should properly be read only to suggest that, in the event of a finding which would otherwise have been in appellant’s favor, his alleged procedural deficiencies might nevertheless have dictated a ruling against him on the motion to stay. As it turned out in this decision, however, the substantive analysis on its own actually resulted in a ruling against appellant, procedural issues aside.8 Obviously, a lack of procedural infirmity, or mere compliance with the Court’s rules, should not logically be used to overcome a substantive ruling against a party.

B. Review of Substantive Analysis

[2] In the second prong of his motion for reconsideration, appellant vaguely challenges the Court’s findings without citing any new legal or factual contentions. As we noted in our prior order, the Court looks at four factors in making its determination whether to grant a stay of execution pending appeal:

(1) likelihood that the appellant would prevail in the appeal; (2) irreparable harm to the appellant if a stay is not granted; (3) irreparable harm to appellees if a stay is granted; and (4) whether the public interest would be affected by a stay.

Asifoa v. Lualemana, 17 A.S.R.2d. 100, 102 (App. Div. 1990); 7 J. Moore, MOORE’S FEDERAL PRACTICE ¶ 62.05 (2d ed. 1996). As necessary, we briefly address appellant’s arguments on each of these factors below.

1. Likelihood that appellant would prevail in the appeal

Appellant seems to believe that, having now been afforded an opportunity to review his opening brief, the Court must now find in his favor on this factor. We do not. Appellant still bases his appeal primarily on the discovery of “new evidence” which was nevertheless readily available prior to trial and which may or may not ultimately be deemed to be material to the outcome of this case. While appellant succeeds in at least making a colorable argument in his brief, we continue to evaluate, for purposes of this motion to stay, his chances of prevailing on appeal as extremely slight.

2. Irreparable harm to the appellant if a stay is not granted

Appellant did not challenge the Court’s finding that any harm resulting from denying a stay would not be “irreparable” in this case, due to

8 That analysis, set forth at pages 2-6 of the Court’s order, stands as independent and adequate grounds supporting the decision therein. Order Denying Motion, supra.

53 appellant’s remaining recourse in the courts for any subsequent wrongful action on the part of appellee.

3. Irreparable harm to appellees if a stay is granted

In its order, the Court identified the delay in installation of appellee as matai as prospective harm suffered by appellee in the event that a stay of execution was granted. Appellant failed to raise this issue in the instant motion.

4. Whether the public interest would be affected by a stay

Appellant asserts in his motion that he is not using this appeal as a “delay tactic.” Motion for Reconsideration, supra, at 2. This Court has never suggested, however, that appellant in this particular case had anything but honorable motives for filing his motion to stay. In its discussion of the final factor regarding the public interest, the Court simply articulated a countervailing concern that the broad application of a rigid rule calling for stays to be granted in virtually all matai cases could encourage future abuse of the system. That concern remains, and appellant’s protests about his own reasons for seeking a stay are irrelevant to this ongoing policy consideration.

Conclusions and Order

Although the alleged procedural infirmities of appellant’s appeal do not exist, we hold that the substantive analysis of the four Asifoa factors remains largely unchanged and weighs against granting a stay.

For the foregoing reasons, Appellant’s Motion for Reconsideration of Order Denying Motion to Stay Execution of Judgment Pending Appeal is denied.

It is so ordered.

**********

TE`O J. FUAVAI, Petitioner

DISTRICT COURT OF AMERICAN SAMOA, Respondent

54 High Court of American Samoa Appellate Division

AP No. 15-98

November 12, 1998

Before KRUSE, Chief Justice, RICHMOND, Associate Justice, LOGOAI, Associate Judge, and ATIULAGI, Associate Judge.

[1] A petition for rehearing must specify with particularity the points of law or fact which in the opinion of the petitioner the court has overlooked or misapprehended.

[2] The court may deny a petition for rehearing where the grounds for said petition are new arguments, raised only for the first time on review.

[3] The mere fact that a Justice presides over a similar matter involving the same party, does not in itself create bias or prejudice against the litigant.

[4] Where party had every opportunity to raise due process argument at initial hearing, his failure to do so then constituted lack of diligence, and such was proper grounds for denying petition when argument later raised.

ORDER DENYING PETITION FOR REHEARING

On October 29, 1998, Petitioner Teò J. Fuavai (“Teò”) filed a petition for rehearing. Teò sought a rehearing to contest this court’s order granting a motion to dismiss or quash the alternative writ of certiorari previously issued by this court. Teò utilized the extraordinary writ of certiorari process to contest the judgment of contempt against him entered by the District Court on May 1, 1998. Due to the dilatory manner in which Teò filed the petition for writ of certiorari, this court dismissed or quashed the alternative writ of certiorari on October 15, 1998. Teò now petitions this court to rehear his case.

Standard of Review

[1] Under A.C.R. 40, a petition for rehearing must contain “with particularity the points of law or fact which in the opinion of the petitioner the court has overlooked or misapprehended.” The function of a rehearing

55 is to correct errors of law or fact, leading to material errors. Fanene v. Fanene, 20 A.S.R.2d 115, 116 (App. Div. 1996) (citations omitted). A rehearing will not be granted merely for the purpose of reargument of issues which have already been fully briefed, argued, and decided. Fanene, at 118 (citation omitted); Tuaolo v. Fruean, 1 A.S.R.3d 40, 41 (App. Div. 1997). Nor will a rehearing be granted for issues raised for the first time in a petition for rehearing. Kale v. Combined Ins. Co., 924 F.2d 1161, 1169 (1st Cir. 1991); Costo v. U.S., 922 F.2d 302, 302-303 (6th Cir. 1990). The granting of a rehearing is at the discretion of the appellate court. Tuaolo at 41.

Discussion

Te`o moves for a rehearing on two grounds: 1) the Chief Justice should have recused himself from the hearing due to bias and prejudice and 2) Te`o’s due process rights were violated by imposing a 30-day time limit.

[2] Both arguments are new arguments, raised for the first time in Teò’s petition for rehearing. On this ground alone, the court may deny Teò’s petition. See Holley v. Seminole Cty. School Dist., 763 F.2d 399 (11th Cir. 1985) (questions that had not been briefed or argued on the appeal would not be entertained when presented for the first time in a petition for rehearing); Costo, 922 F.2d at 302-303 (arguments that defendant misrepresented facts could not be raised for the first time in a petition for rehearing). Nor does Teò contend that the court based its opinion on errors of law or fact, leading to material errors. Nevertheless, the court finds Teò’s arguments desperate at best.

[3] During December 1997, the Chief Justice presided in another contempt proceeding involving Teò before the High Court, in an entirely separate matter, involving an entirely different set of factual circumstances. This very act, contends Teò, creates an appearance that the Chief Justice harbors personal animosity against Teò. The mere fact that a Justice presides over a similar matter involving the same party, however, does not in itself create some sort of bias or prejudice towards a litigant.

Teò next contends that the appellate court erred in imposing a 30-day time limit. By imposing a 30-day time limit, Teò claims that his due process rights were violated by the imposition of a retroactively applied 30-day time limit. In support of this argument, Teò applies the statute of limitations doctrine by analogy. Teò also asserts that Teò has a right to petition for a writ of certiorari.

Teò is only correct in the contention that Teò has a right to petition for a writ of certiorari. This court, however, acknowledged that the right to petition for a writ of certiorari must be exercised within a reasonable time. Teò v. Dist. Court of Am. Samoa, 2 A.S.R.3d 41, 42 (App. Div. Oct. 15,

56 1998). The court applied by analogy the period for filing an appeal under the Administrative Procedures Act because the scope of review is similar. Both review under a writ of certiorari and review of an administrative hearing are limited to whether a judicial body acted within the scope of its authority. Id. As such, a 30-day time limit was applied.

[4] Teò, notably, does not contend that the court committed an error of law or fact by applying the 30-day time limit. Rather, Teò again puts forth a new issue that was not presented in its initial brief. “Issues that were not presented in the initial briefs and argument will seldom be considered when presented for the first time by a petition for rehearing.” 16 C. Wright & A. Miller, FEDERAL PRACTICE PROCEDURE § 3986 (1st ed. 1977 & Supp. 1996). Teò had every opportunity to espouse his due process argument at the initial hearing. His lack of diligence in raising this argument is not grounds for a rehearing.

Te`o’s failure to raise arguments at the appropriate time warrants denial of his motion for rehearing. Therefore, Te`o’s petition for rehearing is denied.

It is so ordered.

**********

AMERICAN SAMOA GOVERNMENT, Plaintiff,

ABE SAMANA, Defendant.

High Court of American Samoa Trial Division

CR No 26-97

January 9, 1998 [1] A new trial may be granted to a criminal defendant him if required in the interests of justice.

[2] The court should set aside a guilty verdict only if the evidence weighs heavily enough against the verdict that a miscarriage of justice may have occurred, not merely because the court might have reached a different result.

57 [3] Although other individuals occupied premises, where evidence substantiated conclusion that defendant was in charge and control of the searched premises and its contents, including the substantial quantity of growing and harvested marijuana there, the evidence was sufficient to find beyond a reasonable doubt that the defendant produced the seized marijuana.

[4] Where government’s case is based on more than just a defendant’s presence, and the jury is properly instructed on all elements of the crime, then a ‘mere presence’ instruction is unnecessary.

[5] An evidentiary hearing to review probable cause for a search warrant is only mandated where a defendant alleges deliberate falsehood or reckless disregard for the truth, and can support those allegations with an offer of proof.

[6] Where defendant sought an in camera hearing to test the reliability of the government’s confidential informant, he was required to make a substantial preliminary showing that (1) the affiant deliberately or recklessly included a false statement in the affidavit submitted in support of the search warrant, and (2) the fallacious statement was material to the issuing judge’s finding of probable cause.

[7] The presumption of the validity of an affidavit supporting a search warrant cannot be overcome by a self-serving statement purporting to refute the affidavit.

Before RICHMOND, Associate Justice, TAUANU`U, Chief Associate Judge, and ATIULAGI, Associate Judge.

Counsel: For Plaintiff, John W, Cassell, Assistant Attorney General For Defendant, Loretta Townsend, Assistant Public Defender

ORDER DENYING MOTION FOR NEW TRIAL AND MOTION FOR RECONSIDERATION OF ORDER VACATING IN CAMERA HEARING

On October 7, 1997, the jury in this prosecution convicted defendant Abe Samana (“Samana”) of the crimes of production of the controlled substance of marijuana and possession of the controlled substance of marijuana, and acquitted him of the crime of assault in the first degree. On October 17, 1997, Samana moved for a new trial. This motion was made before the judgment or sentence was announced and thus was premature under A.S.C.A. § 46.2402(a). Samana was sentenced on November 21, 1997. He was adjudicated guilty of the offenses for

58 which he was convicted and sentenced concurrently to imprisonment for thirty years for the crime of production of marijuana and five years for the crime of possession of marijuana. On December 1, 1997, we heard the motion for a new trial, considering the motion to be filed in accordance with the statute.

On September 24, 1997, Samana filed a renewed motion to quash the search warrant issued in connection with this prosecution and to suppress the marijuana and other items seized as evidence under the search warrant. We heard this motion on September 29, 1997 and, taking into account her affidavit concerning any confidential informant’s presence at the searched premises, received the testimony of Samana’s wife, Abigail Samana (“Abigail”). Because the trial was scheduled to begin the following day, we took the motion under advisement. On October 10, 1997, following the jury’s conviction of Samana, and predicated on Abigail’s testimony, we issued an order for an in camera hearing with the confidential informant. However, on October 27, 1997, after further consideration of Abigail’s testimony, we vacated the order for an in camera hearing. On October 31, 1997, Samana moved for reconsideration of the vacating order, which we also heard on December 1, 1997.

Discussion

A. Motion for New Trial

Samana argues in support of his motion for a new trial that: (1) no rational trier of fact could have found him guilty of the crime of production of marijuana; and (2) the court improperly instructed the jury.

[1] T.C.R.Cr.P. 33 states that “[t]he court on motion of a defendant may grant a new trial to him if required in the interest of justice.” This motion is not one that is granted lightly. See, e.g., United States v. Morales, 902 F.2d 604, 605 (7th Cir. 1990)(“A jury verdict in a criminal case is not to be overturned lightly, and therefore a Rule 33 motion is not to be granted lightly.”)

1. Sufficiency of the Evidence

[2] When a motion for new trial is based on the sufficiency of the evidence, the court should weigh the evidence and consider the credibility of the witnesses. We should set aside the verdict only if the evidence weighs heavily enough against the verdict that a miscarriage of justice may have occurred, not merely because the court might reach a different result. United States v. Lanier, 838 F.2d 218, 284 (8th Cir. 1988); United States v. Martinez, 763 F.2d 1297 (11th Cir. 1985)

59 [3] Abigail and Samana’s daughter, Julia Samana (“Julia”), together with Samana, were residents of the searched premises and may also have culpability. However, the trier of fact could readily conclude from the evidence that Samana was in charge and control of the searched premises and its contents, including the substantial quantity of growing and harvested marijuana there. The evidence in this case was sufficient for the jury to find beyond a reasonable doubt that Samana produced the seized marijuana.

2. Jury Instruction

[4] Samana requested that the court instruct the jury that the mere presence at a place where marijuana is found, without more, is not enough to convict. He based this request on People v. Negrete- Gonzales, 966 F.2d 1277 (9th Cir. 1992). However, in Negrete- Gonzales, the court stated, “[i]f the government’s case is based on more than just a defendant’s presence, and the jury is properly instructed on all elements of the crime, then a ‘mere presence’ instruction is unnecessary.” Id. at 1282; see also United States v. Garcia-Cruz, 978 F.2d 537, 540 (9th Cir. 1992).

The Government’s case was built on evidence of Samana’s control of the searched premises and the marijuana there. The mere presence instruction was not appropriate, and the jury was properly instructed on all elements of the crime.

B. Motion for Reconsideration of Order Vacating In Camera Hearing

The Government used information from a confidential informant to obtain the search warrant that led to the seizure of the marijuana and other items, and then Samana’s prosecution. Samana wants an in camera hearing to test the confidential informant’s reliability.

[5] As we stated in the Order Denying Motion for In Camera Hearing, issued on July 28, 1997, “[a]n evidentiary hearing to review probable cause for a search warrant, whether in camera or otherwise, is only mandated where a defendant alleges ‘deliberate falsehood’ or ‘reckless disregard for the truth,’ and can ‘support those allegation with an offer of proof.’” Id. at 2 (citing Franks v. Delaware, 438 U.S. 154, 171, 57 L.Ed.2d 667, 682 (1978)).

[6] Samana was required to make a substantial preliminary showing that (1) the affiant deliberately or recklessly included a false statement in the affidavit submitted in support of the search warrant, and (2) the fallacious statement was material to the issuing judge’s finding of probable cause. See United States v. Motz, 936 F.2d 1021, 1023 (9th Cir.

60 1991) (applying Franks v. Delaware, 438 U.S. 154 (1978)).

[7] We find that the affidavits submitted by Samana in support of the present motion are not a substantial preliminary showing of these factors and that they do not warrant an in camera hearing with the confidential informant. Samana now offers new affidavits by Abigail and Julia. We find these affidavits self-serving, even less credible than Abigail’s earlier affidavit and testimony, and wholly insufficient to meet the level of proof required for a Franks hearing. See United States v. McDonald, 723 F.2d 1288, 1292-94 (7th Cir. 1984) (holding that the Franks presumption of the validity of an affidavit supporting a search warrant cannot be overcome by a self-serving statement which purports to refute the affidavit). For example, Abigail and Julia both state in their affidavits, “During any period in which there were any visitors in my house I saw no evidence of any illegal substance in my house.” These statements are ludicrous given the search that followed a short time later and the large quantities of marijuana found on the premises.

The affidavits, submitted at this late date, do not alter our previous reasoning or conclusions regarding the propriety of holding an in camera hearing with the confidential informant.

1. The motion for a new trial is denied.

2. The motion for reconsideration of the order vacating in camera hearing is also denied.

**********

MANAIA SIVA PEARSON, Defendant.

CR No. 48-97

January 9, 1998

61 [1] The standard of proof to show a valid Miranda waiver is preponderance of the evidence, and a heavier burden of proof does not shift to the prosecution simply because a defendant asserts that he was in a “fragile state” due to intoxication and sleep deprivation, and so unable to properly waive his Miranda rights, where he was still able to engage in meaningful dialogue.

[2] Because Fourth Amendment rights are personal, where police exceeded the bounds of a person’s consent to search her premises, such violation of that person’s rights does not necessarily transmute to another person.

[3] The personal rights of the Fourth Amendment may be asserted either through a privacy right, which attaches to a person who has an actual an actual subjective socially recognized expectation of privacy in the place searched, or a possessory interest in the place searched.

[4] Neither a reasonable expectation of privacy, nor a possessory interest exists in a motel room where the person was found the lobby, nor in the premises of another where he did not regularly stay, and did not stay on the night at issue, and where the person subjectively knew he did not have permission to stay on the premises.

[5] Although a third party’s rights may be compromised where he is commanded to surrender a person’s gun, the rights of that person are not implicated.

[6] Mere categorical denials of a person’s culpability by third parties are not exculpatory such that they must be preserved by the police and are not Brady material.

[7] Although Brady applies to evidence with cross-examination value, evidence may not be proffered where it is known to be untruthful, and such proffer would be professional misconduct by an attorney.

Before: KRUSE, Chief Justice, TAUANU`U, Chief Associate Judge, and LOGOAI, Associate Judge.

Counsel: For Plaintiff, Frederick J. O'Brien, Assistant Attorney General For Defendant, Loretta Townsend, Assistant Public Defender

ORDER DENYING MOTION TO SUPPRESS EVIDENCE AND MOTION TO DISMISS

62 Introduction

Manaia Siva Pearson (“Pearson”) is charged with Burglary in the First Degree (A.S.C.A. § 46.4030), Stealing (A.S.C.A. § 46.4103), Unlawful Use of a Weapon (A.S.C.A. § 46.4203), two counts of Possession of an Unlicensed Firearm (A.S.C.A. § 46.40221), and Assault in the First Degree (A.S.C.A. § 46.3520).

On October 23, 1997, Pearson filed a motion to suppress evidence, alleging constitutional violations of his rights and, on November 10, 1997, filed a motion to dismiss, alleging destruction of evidence. Pearson seeks to suppress evidence obtained from his cousin, Albert Pearson (“Albert”), evidence found on the premises of his aunt, Evalani Viena (“Viena”), as well as his own statements made during custodial interrogation at the police station in Fagatogo. This court consolidated and heard both Pearson's motions on November 25, 1997, with counsel for both sides present.

On July 19, 1997 at about 4:17 a.m., a shooting at a house across the street from the High Court in Pago Pago was reported to police. Detective Richard Sua`ava of the Department of Public Safety (“DPS”) investigated this incident and obtained information from Albert and others that Pearson had been involved in the shooting incident. Police also learned that Pearson had broken into and stolen several items from a Toyota pickup truck owned by Kuo Fu Sheng (“Sheng”).

At about 6:00 a.m. on July 19, 1997, police brought a number of witnesses to the DPS station in Fagatogo for questioning. Officers were told that Pearson possessed ammunition, a .38 caliber revolver, and an M1 carbine. After learning that Albert had Pearson's .38 caliber revolver at his home, Captain Mageo directed Albert to bring the revolver back to the station which Albert did.

Police officers then went to the Motu o Fiafiaga Motel (“Motel”) at about 9:00 a.m. that same morning where they found Pearson asleep in the lobby. They took Pearson into custody and brought him to the Fagatogo station. After being given his Miranda warnings, Pearson admitted to Captain Fotu Leuta that he had broken into Sheng's pickup truck. Police officers went back to the Motel at about 11:00 a.m. that day and asked the owner, Viena, to search the outside grounds of the motel.9 After Viena consented to this limited search, officers found

9 Viena testified that she gave police permission to “look outside of my yard right next to the Motel and by the club, and that was all.” That is, only “outside where I can see [the police].” She answered in the

63 Pearson's M1 carbine and sweater inside Viena's residence behind the motel, in a room later identified by Viena's daughter as belonging to Pearson.

Discussion

A. Motion to Suppress Defendant's Statement

Pearson seeks to exclude the incriminating statement which he had made to Officer Leuta, about his breaking into a parked vehicle. Pearson claims that police violated his constitutional rights by failing to abide by the requirements of Miranda.10

[1] The evidence revealed that prior to questioning by officer Sua`ava, officer Fotu Leuta had presented and read to Pearson, DPS's pre-printed form containing a largely verbatim recital of the Miranda warnings as formulated by the Supreme Court. This form was also signed by Pearson in front of Officer Leuta. Pearson, however, argues that his Miranda waiver was defective because of his inebriated and fatigued condition. He claims that his state of intoxication and lack of sleep at the time impaired his senses to so great a degree that he was unable to “voluntarily, knowingly and intelligently” waive his rights as required under Miranda. Miranda v. Arizona, 384 U.S. 436 (1966). Because of his “fragile state,” he claims that the burden should shift to the government to show a proper waiver of rights by the accused, a burden that Pearson contends was not met.

We disagree. The Miranda court suggests that the government should carry a “heavy” burden of proof to show a valid waiver of Miranda negative when asked by defense counsel whether she gave police permission to search her residence. 10 Miranda v. Arizona, 384 U.S. 436 (1966). The Supreme Court held that: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self incrimination. . . . [P]rior to any questioning, the [defendant] must be warned that he has the right to remain silent, that any statement he does make may be used as evidence against him, that he has the right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently. 384 U.S. at 444

64 rights in certain instances when the rights of the accused may be jeopardized. Id. at 475. However even if burden-shifting were appropriate, the proper standard by which to judge the validity of the defendant's Miranda waiver is merely preponderance of evidence, the lowest standard and one that we find was easily met in this instance. Colorado v. Connelly, 479 U.S. 157 (1986). Here, the evidence shows that even though Pearson was under the influence of alcohol and sleep deprived, his state of mind was not fragile enough to nullify the validity of his waiver. During the questioning at the police station, he was capable of engaging in meaningful dialogue with the officers and had the presence of mind to immediately ask police to explain the reason for his detention. Pearson was able to tell us exactly which officers were at the station when he was taken in and testify in great detail about his conversation with the officers.11 Indeed, his memory of the events surrounding his questioning seems astonishingly clear for someone who was, in his words, “pretty drunk,” ostensibly too drunk to understand the extremely elemental rights that Miranda affords and properly discharge them.

Even more curious than his ability to recall in minute detail the substance and chronology of his interaction with police is the diametric variance of his version of events with that of the police officers. It seems that when Pearson does not directly contradict the testimony of the officers, his memory fails him—inexplicably, conveniently, and completely. For example, he has lost all memory of signing the waiver form even when he had the essence of the waiver explained to him and his signature appears on the form.

In essence, Pearson claims that he would not have signed the form had he understood it and—so the argument goes—he was incapable of

11 Pearson's testimony on direct examination by Public Defender, Loretta Townsend, in which he relays his interchange with police may itself best underscore this point: I remember saying I didn't know what I was being brought in for. And I asked [the officer], “What was I brought in for?” And they had mentioned something about a shooting. And then I had told them, “I don't know of any shooting.” And then they said, . . . “I should come clean and tell others the truth.” . . . And they had said something along the lines, “You should feel remorse for what you had done.” . . . And I said, “I really didn't know what they were talking about and how could I feel remorse for something I had no remorse for.” Question by Loretta Townsend: But you don't really recall making a statement about a burglary? Pearson's response: “No I do not.”

65 understanding the waiver when it was presented to him. We find his claim to be unable to knowingly, voluntarily and intelligently waive his rights to be simply unbelievable. Pearson struck us as a person of above average intelligence, a graduate of a top-ranked university. Moreover, nothing on the record exists to suggest overbearance or excessiveness on the part of the officers, much less any hint of coercion. The motion for suppression will, therefore, be denied.

B. Motion to Suppress M1 Carbine and Sweater

[2] Even though police may have exceeded the bounds of Viena's consent to search her premises and thus may have violated Viena's constitutional rights, the violation of Viena's rights in this instance does not transmute to Pearson. Alderman v. United States, 394 U.S. 165, 174, (1969), holds that a Fourth Amendment right is a “personal right” which may not be vicariously asserted by another. The Supreme Court affirmed this position in Rakas v. Illinois, 439 U.S. 128 (1978), stating that “it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule's protections.” Id. (emphasis added). Put another way, “the Fourth Amendment protects people, not places.” Katz v. United States, 389 U.S. 347, 351 (1967).

[3] This “personal right” may be asserted one of two ways: through a privacy right or a possessory interest. In the seminal Fourth Amendment case of Katz, Justice Harlan wrote that privacy rights attach only to those who have “an actual subjective expectation of privacy,” one that “society is prepared to recognize as 'reasonable.'“ Katz, 389 U.S. at 361; see Rawlings v. Kentucky, 448 U.S. 98, 104 (1980).

In the alternative, the accused must hold a possessory interest in the area searched. United States v. Jacobsen, 466 U.S. 109, 113 (1984)(holding that the Fourth Amendment is implicated “when there is some meaningful interference with an individual's possessory interest in that property.”) See also Boyd v. United States, 116 U.S. 616, 630 (1886) (emphasizing the importance of property rights, holding that an “invasion of private property, be it ever so minute, is a trespass.”) (quoting Entick v. Carrington, 19 How.St.Tr. 1029 (C.P. 1765). This court reiterated these doctrines in American Samoa Government v. Atafua, 1 A.S.R.3d 174, 175 (Trial Div. 1997), and American Samoa Government v. Prince Dunham, 1 A.S.R.3d 176, 177-78 (Trial Div. 1997), by holding that Article I, § 5 applies only to defendants who have a “legitimate expectation of privacy” or a “property or possessory interest.”

[4] Here, Pearson had neither a possessory right nor any other “reasonable and legitimate expectation of privacy” in the room where police discovered the sweater and M1 Carbine. The police found him

66 sleeping in the motel lobby, not the room searched. Viena testified that Pearson did not stay at her residence on any regular or consistent basis. She had not known that Pearson had been on her premises, much less that he had slept there on the night in question. Instead, Albert, Pearson's “blood brother,” testified that Pearson often stays at his house, coming over there “whenever he likes.” Moreover, since Pearson apparently dropped off the sweater and M1 Carbine in one of the rooms and then went to sleep in the lobby, Pearson himself acted as if he subjectively knew that he did not have permission to stay inside Viena's home. All of these facts, singularly or combined, cast great doubt that Pearson held a possessory interest in the room where the evidence was found. Furthermore, Pearson's decision to sleep in an area open to many people, including at a minimum the guests of the motel and their guests, further leads us to believe that Pearson did not have a subjective and reasonable “expectation of privacy” as required under Katz for his Fourth Amendment protections to attach. Katz v. United States, 389 U.S. at 351, 19 L.Ed. at 582. In light of this evidence, we cannot suppress the evidence found by the police on Viena's premises.12

C. Motion to Suppress .38 Caliber Revolver

[5] No cognizable personal rights of Pearson were violated by Captain Mageo's command to Albert, a third party, to surrender Pearson's gun to police. Even if the rights of Albert were compromised, the rights of Pearson were not necessarily compromised. See Id.; Rakas, 439 U.S. at 131; Alderman, 394 U.S. at 174. Therefore, for the same reasons as discussed above, we deny defendant's motion to exclude the .38 caliber revolver.

D. Motion to Dismiss

[6] We find Pearson's contention that the obvious lies his allies told police should be considered “statements with exculpatory value” to be

12 We must note, however, that we look upon the actions of the police in this instance with great disfavor. The officers clearly exceeded the scope of Viena's consent. She gave permission to search the lobby and outside grounds of the motel, but not the inside of the building. If evidence had been found that implicated Viena in a crime, the improper conduct of the police would have compromised its admissibility. Accordingly, we would like to admonish and caution the officers involved here regarding the manner in which they carry out their duties. Overzealousness, no matter how well intentioned, can trample a citizen’s fundamental rights and obviate the good it seeks to achieve, serving as a force counterproductive to its primary goals.

67 preposterous. These witnesses, defendant's friends and family, initially offered the police nothing more than categorical denials of the defendant's culpability in the charged crimes. The initial statements were apparently conflicting, confused, and consisting of very little, if any, truth.

As a matter of practice, we will concede that it is probably best that police retain any and all statements given them, however ludicrous, sketchy, and unhelpful such statements may be. But even if this were the optimal course of police conduct, we find defendant's assertion of a Brady violation in the case at hand to be utterly devoid of any legal substance or merit. Brady v. Maryland, 373 U.S. 83 (1963) (holding that suppression of evidence favorable to a defendant who has requested it violates due process where the evidence is material either to guilt or punishment). We do not see how the fabrications told to DPS rise to the level of Brady violations.

[7] Defense goes on to argue, desperately we may add, that even if the witnesses' statements were not exculpatory, they have value as material for cross-examination. See United States v. Bagley, 473 U.S. 667 (1985) (extending the holding in Brady to evidence with cross-examination value). In fact, under the American Bar Association Model Rules of Professional Conduct (1984) (“Model Rule”), as adopted in this jurisdiction under High Court Rule 104 in 1993, counsel would be under an affirmative duty to withhold from or advise the court of any testimony or evidence which is known to be untruthful, whether intended for direct or cross examination. See American Bar Association Model Rules of Professional Conduct, Rule 3.3.13 To do otherwise would mean “that the lawyer cooperate in deceiving the court, thereby subverting the truth- finding process that the adversary system is designed to implement.” Id.14 Moreover, Model Rule 8.4 (d) states: “It is professional misconduct to engage in conduct that is prejudicial to the administration of justice.”15 Model Code DR 7-102(A)(6) requires that a lawyer shall not “participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false.” Most of the substance of the statements initially presented to the police, therefore, could not have been admitted in court in the first place. Accordingly, and with no further discussion, we deny Pearson's ill-founded motion to dismiss.16 13 Rule 3.3 states, “When evidence that a lawyer knows to be false is provided by a person who is not a client, the lawyer must refuse to offer it regardless of the client's wishes.” 14 Rule 1.2(d) states that “a lawyer shall not . . . engage or assist a client in conduct that the lawyer knows is criminal or fraudulent.” 15 Moreover, Model Code DR 1-102(A)(5) directs that a lawyer not “[e]ngage in conduct that is prejudicial to the administration of justice.” 16 Counsel would be well advised to take note that a violation of the

68 Conclusion and Order

Defendant's motions are accordingly denied as provided herein.

It is so ordered.

**********

AMERICAN SAMOA GOVERNMENT, Plaintiff

CHRISTIAN AMANI, Defendant. ______

JOHNNY O’BRIEN, Defendant ______

SENATI AUAU (a.k.a. SNAG), Defendant

CR No. 13-98 CR No. 20-98 CR No. 16-98

March 24, 1998

Rules of Professional Conduct which govern the American Samoa Bar will result in disciplinary action against the attorney. Model Rule 8.4 (a) states: “It is professional misconduct to violate or attempt to violate the rules of professional conduct.” See 155(a) HCR which incorporates Model Rule 8.4 (a) into this jurisdiction. We caution, therefore, that counsel think twice before treading this line again.

69 Before KRUSE, Chief Justice, TAUANU`U, Chief Associate Judge, and SAGAPOLUTELE, Associate Justice.

Counsel: For Plaintiff, Lionel Riley, Assistant Attorney General For Defendant, Christian Amani, Tautai A.F. Fa`alevao, Public Defender For Defendant, Johnny O’Brien, Loretta Townsend, Assistant Public Defender Senati Auau (a.k.a. Snag), Mitzie J. Folau, Assistant Public Defender.

[1] The representation of more than one accused by the same attorney is not per se violative of the Sixth Amendment’s constitutional guarantee of effective assistance of counsel.

[2] No bright-line rules exist with respect to situations involving conflicts of interest in a criminal case; the court must look at the particular facts to determine whether a Sixth Amendment violation is present.

[3] The Sixth Amendment does not guarantee an accused the right to perfect representation, but merely adequate and fair representation.

[4] In order to prove that a Sixth Amendment violation exists, the defendant must show both that: (1) counsel’s performance was deficient, having made errors so serious that counsel was not truly functioning as “counsel”; and (2) the deficient performance prejudiced the defendant’s defense.

[5] The United States Supreme Court defines the standard for judging attorney performance as that of reasonably effective assistance considering all the circumstances.

[6] A potential conflict of interest does not rise to the level of a constitutional violation; an actual present conflict of interest must exist to trigger judicial review.

[7] Where Deputy Public Defender was closely related to co-defendant and client-defendant asserted co-defendant, not he, was the culpable party, zealous representation of client would be directly averse to the interests of relative and therefore conflict of interest existed which foreclosed representation by Deputy Public Defender.

[8] Where court directed Public Defender’s Office to assign a separate, single attorney for each defendant, but to assign them in such fashion as the office preferred, conflict of interest which was subsequently created

70 was an artificial one and the result of office mismanagement.

[9] Assignment of attorneys to criminal defendants within the Public Defender’s Office, when imprudent and resulting in an “artificial” conflict of interest can be cause for sanctions.

ORDER GRANTING AND DENYING MOTIONS TO WITHDRAW AS COUNSEL

Introduction

Co-defendants, Christian Amani (“Amani”), Senati Auau a.k.a. Snag (“Auau”), and Johnny O’Brien (“O’Brien”) are charged with violations of A.S.C.A. § 46.4003(a) (Robbery in the Second Degree), A.S.C.A. § 46.4103(b) (Stealing), and A.S.C.A. § 46.3522 (Assault in the Third Degree). These crimes were part of the same incident. Attorneys, Loretta Townsend, Mitzie J. Folau, and Tautai A. F. Fa`alevao of the Public Defender’s office brought a motion in the District Court, before the Honorable John L. Ward II, to withdraw as counsel because of a perceived inability to provide adequate counsel to Christian Amani and his co-defendants. Counsel believe that a potential conflict of interest may occur because they work in the same office. The government even joined in the motion.

The District Court Judge denied the motion. Counsel then sought a civil writ of mandamus from the High Court to compel the District Court Judge to grant the motion to withdraw and assign counsel from the private bar, at further public expense, to two of the defendants. See Amani v. American Samoa Government, CA No. 17-98. However, before the writ application was heard, the defendants were bound over to the High Court to answer the referenced charges against them.17 The withdrawal motions are properly before this court.

For purposes of this hearing, the facts, as may be gleaned from the file and record before us, are that: Mr. Flinn Curren (“Curren”) reported an attack which occurred on December 15, 1997. He told police that, as he was walking along the road near Freddy’s beach, he saw three Samoan men drinking in the back of a silver pick-up truck. One of the men asked him for money. He said that he did not have any and kept walking. Two of the men climbed out of the pick-up and again asked for money. After Curren repeated that he had no money, he was attacked by these two

17 O’Brien was bound over following a preliminary examination before the District Court Judge, while his co-defendants were bound over after waiving their right to a preliminary examination.

71 men. They punched him, and the more heavy-set of the two began kicking him in the head. One of the two men took his briefcase, and both men ran back to the pick-up. After they climbed in, the third man drove the truck away.

The next day, police officers interviewed the three defendants but received conflicting versions of events from them. Amani admitted his involvement in the incident, stating that he and a “Jerry Faga” attacked a “white man” near Freddy’s Beach. Amani said that Auau also was involved in the incident (although he did not specify in what way). The other two co-defendants stated, however, that no person by the name of “Jerry Faga” was present during the incident. Amani also showed Captain Te`o and Officer Pese where the contents of Curren’s briefcase was dumped. (Affidavit in Support of Arrest Warrant, dated January 27, 1998, p. 2.) Auau admitted his presence during the incident, but then stated that “he had nothing to do with it,” possibly meaning the actual beating. (Affidavit in Support of Arrest Warrant, dated January 27, 1998, p. 2, ¶ 3.) O’Brien admitted that he, Amani, and Auau were involved in the attack on Curren. He alleged that he punched Curren in self-defense because Curren was reaching for a rock. (Affidavit in Support of Arrest Warrant, dated January 27, 1998, p. 2.)

Discussion

[1-2] The Public Defender’s Office believes that these defendants’ constitutional rights are compromised because of a conflict of interest. However, the representation of more than one accused by the same attorney is not per se violative of the Sixth Amendment’s constitutional guarantee of effective assistance of counsel. United States v. Waldman, 579 F.2d 649 (First Circuit, 1978). No bright-line rules exist with respect to situations involving conflicts of interest; the court must look at the “facts of the particular case” to determine if a Sixth Amendment violation is present and that these acts must be assessed according to an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 690 (1984). See also Glasser v. United States, 315 U.S. 60, 86 L.Ed 680, 62 S.Ct.457 (1942) (holding that the issue of a conflict of interest is a highly fact-specific one).

[3-5] At the same time, the court must also bear in mind that an accused is not constitutionally guaranteed the right to “perfect representation,” but merely adequate and fair representation. See Strickland, 466 U.S. at 687, holding that defendant must meet both prongs of a two-part test for a Sixth Amendment violation to exist, usually a difficult showing to make.18 The United States Supreme Court defines the standard for

18 The Strickland court forwarded a two-part test, both prongs of which

72 judging attorney performance as that of reasonably effective assistance considering all the circumstances. Id. at 687. See also Trapnell v. United States, 725 F.2d 149, 151-52 (2nd Cir., 1983); Cuyler v. Sullivan, 446 U.S. 335 (1980).

“ [T]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial court cannot be relied on as having produced a just result,” a rather high bar to hurdle for one claiming ineffective assistance of counsel. Strickland, 466 U.S. at 686. Moreover, the Strickland court ruled that when a defendant forwards such a claim, the reviewing court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689. That is, “judicial scrutiny of counsel’s performance must be highly deferential,” a requirement that would be further likely to thwart most defendants’ cries of ineffective assistance of counsel. Id.

Furthermore, in the instant case, the Public Defender’s argument of ineffective assistance of counsel is further attenuated since each defendant will in fact have his own attorney, albeit within the same office. This situation distinguishes it from cases cited in defendants’ motion such as Holloway v. Arkansas, 435 U.S. 475, in which a single assistant public defender represented the three defendants at trial.

We understand the constraints and limited resources facing the Public Defender’s Office. Although we empathize with this plight,19 the need for flexibility is simply a fact of life here in American Samoa. Quite obviously, there is no such thing as unlimited resources, and we must explore ways in which to work within the strictures of these constraints. At first glance, we note that, while perhaps inconvenient, many internal accommodations can easily be made by the Public Defender’s Office in order to remedy this problem, an initiative that would have altogether obviated the need for the court’s intervention. We are confident that, upon further reflection, the Public Defender’s Office could find even more ways to promote the interests of their clients. Having stated the must be met to show a constitutional violation. “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial . . .” Strickland, 466 U.S. at 687. 19 The Public Defender’s Office does not have a monopoly on stretched resources.

73 obvious, we in turn examine each of the reasons forwarded by the Public Defender’s Office that a conflict exists.20

First: Weekly Office Meetings

We do not believe it is necessary to discuss these particular cases at the weekly meetings. While weekly discussion generally may be a good learning device, suspension of this practice in one instance would not be likely to wreak havoc with the entire workings of the Public Defender’s office—and would probably present a minimal inconvenience at the very worst. Most law offices hold weekly meetings so that lawyers have the opportunity to apprise colleagues of their caseload. But in many situations, such as with cases involving sensitive issues or potential conflicts of interest, lawyers routinely refrain from the free discussion of information. The legal profession as a whole is very conscious of risk management and firms, when necessary, are adept at cordoning off its lawyers to limit their access to information by erecting an imaginary wall between its lawyers.21

Second: Current Approval Procedure regarding Plea Bargains

We cannot see how the Public Defender’s procedure of signing off on

20 In searching through the record, we find five reasons cited by the three attorneys for a potential conflict of interest as follows: current practice of weekly attorney meetings; shared support staff—secretary and investigators, and small shared office; current practice of the Public Defender’s signing off on plea negotiations; Ms. Folau’s inexperience in criminal law; and defendants’ conflicting versions of events. We will address each in turn. 21 This is an accommodation that is routinely implemented so that a firm may meet the needs of its clients, without jeopardizing the interests of other clients or harshly penalizing its own attorneys. See American Bar Association Model Rules of Professional Responsibility, Rule 1.9 (which regards the conduct of a lawyer who has formerly represented a client in a matter and whether that lawyer may represent another client in the same or substantially similar matter.) A lawyer wishing to move from the public sector to the private sector would be “unhirable,” essentially frozen in place, if the law did not make an accommodation for him and the basket of potential conflicts of interest he likely brings with him. Therefore, for the policy reason of wanting to encourage attorneys to work in the public sector, the law allows an artificial or imaginary wall to be placed between her and her colleagues. The law freely allows this accommodation to minimize any conflicts of interest and uphold the integrity of the legal system and not unfairly penalize its lawyers.

74 plea bargains necessarily constitutes a conflict of interest. First of all, Ms. Townsend has had regular experience in this area already, and we could easily see how the Public Defender would feel confident enough in her judgment to allow her to independently negotiate and finalize a plea offer. Alternatively, preapproved plea bargains may help minimize any potential conflicts. The Public Defender easily could hold a meeting with his associates to discuss what would constitute an acceptable plea offer in advance of an actual plea negotiation. The Attorney General’s Office may be able to extend plea offers to all defendants at the same time and set the same deadline for their acceptance.

Third: Shared Resources

We do not believe that sharing a secretary among three lawyers is necessarily problematic, or indeed worrisome enough to necessitate constitutional review. Elsewhere, secretaries in law offices often support more than one attorney, however this arrangement seldom produces a problem. Members of the support staff are expected to maintain professionalism, discretion, and confidentiality. Even if the Public Defender secretary grasps the legal nuances of cases she may handle, we see no reason for her to discuss the case of one lawyer with another lawyer. So too with the investigators. Support staff need only answer to the individual assigning the task.

Fourth: Inexperience of Ms. Folau in Criminal Law

Even though Ms. Folau is the newest member of the Public Defender’s office, we trust that she is a competent attorney. We understand that she has had prior exposure to criminal law, having served as a judicial law clerk, and, therefore, has experience in researching and arguing points of law. If it is necessary for her to consult with another attorney in this matter for more specialized direction, other members of the American Samoa Bar who have expertise in criminal law are available for her to consult outside of the Public Defender’s Office.22

Fifth: Conflicting Stories

Counsel appear distraught that the defendants’ versions of events conflict. That a defendant’s story will differ with that of another co- defendant or change depending on the time of day is a reality of criminal

22 Lawyers often effectively consult with their colleagues regarding point of laws without compromising their client’s confidentiality, for example. Lawyers do this all the time—speaking in terms of generalities, hypotheticals, past cases. We have confidence in our attorneys’ flexibility and adaptability.

75 defense. We are simply unable to grasp how this truism translates into a conflict of interest.

The court offers this listing of suggestions. With each suggestion given, other possibilities to minimize potential conflicts surely exist. While they may be inconvenient for counsel, they are not impossible to ferret out and implement. We, therefore, direct the Public Defender to explore additional ways in which to minimize any potential conflicts of interest, including working with the Attorney General’s office. We also note that Mr. Riley has already been informed of his duty to conduct himself in a manner that would not exacerbate the potential for a conflict.23

[6] Furthermore, the above discussion assumes—rather generously—that a conflict indeed exists. However, we are in fact dealing with a potential conflict.24 In this order, we essentially have been indulging the Public Defender’s evanescent spectre of the sheer possibility of a conflict. Notwithstanding our willingness to entertain this argument, the fact still remains that a potential conflict of interest does not rise to the level of a constitutional violation. United States v. Lovano, 420 F.2d 769 (Second Circuit, 1970). An actual present conflict of interest must exist to trigger judicial review. United States v. Johnson, 569 F.2d 269 (Fifth Circuit, 1978). In this case, we see nothing here that would either presently compromise these attorneys’ ability to provide their clients with effective representation or would constitute a violation of the American Bar Association Model Rules of Professional Responsibility, Rule 1.7, the general rule regarding conflicts of interest. If a conflict ever arises, we can cross that bridge when and if we get to it.

We have assessed the Public Defender’s arguments using an objective standard of reasonableness according to the facts of this specific situation and agree with the District Court’s findings regarding the representation of O’Brien and Amani. We do not believe a risk exists that these defendants will be deprived of their Sixth Amendment right to effective counsel.25 The reasons presented to us by the Public Defender’s Office with respect to these two defendants are wholly

23 See District Court Transcript of Proceedings, February 13, 1998, p. 3, ¶¶ 15-19. 24 The Public Defender himself probably best assessed the situation: “[the conflict] is something that has not yet taken place, but [is only] a potential conflict here.” District Court Transcript of Proceedings, February 13, 1998, p. 5, ¶¶ 13-14. 25 See Transcript of Proceedings, February 13, 1998, p. 4, ¶¶ 20-22, in which Judge Ward aptly encapsulates the standard for representation. “[A] defendant is not guaranteed the absolute perfection. A defendant is guaranteed effective counsel. That’s reasonably effective counsel. There’s no perfection. There’s no perfect trial. There’s a fair trial.”

76 unconvincing, and certainly none compelling enough to justify the expenditure of funds for each of these defendants. A continuum exists between that which is clearly proscribed and that which, while not ideal, is acceptable.

In sum, inconvenience, while not pleasant, is a fact of life, especially in a small territory with financial limitations. It does not translate, however, into justification for the independent assignment of counsel. Moreover, the wise allocation of resources militates against this superfluous request.

Ms. Folau’s Relationship to O’Brien

[7] Ms. Folau informs this court that she and O’Brien are closely related. Because Auau is pointing a finger at his co-defendant, O’Brien, Ms. Folau contends that her ability to represent Auau is compromised, constrained by her family loyalties. The zealous representation of her client would be directly adverse to the interests of her relative, O’Brien. As she promotes one defendant’s interests she damages those of the other. Given her relationship to O’Brien, her access to privileged and confidential information of her client, Auau, could easily be perceived to color her representation of him. We, therefore, find that the effective representation of Auau by Ms. Folau is not possible and a conflict of interest exists as defined under the American Samoa Bar Association Rules of Professional Conduct and the standard of effective counsel as set forth in Strickland.

[8] We feel it necessary, however, to note the role the Office of the Public Defender itself had in the orchestration of this conflict, a fact upon which we look with great disfavor. This conflict of interest was artificially created by defense counsel. The defendants were assigned by the District Court to the Public Defender’s Office one defendant to one attorney “however they liked.” The District Court in no way specified which attorney was to be assigned to which defendant. In fact, lest an iota of confusion exists, Judge Ward made it exceedingly clear that the way in which this allotment would be made was solely a prerogative of the Public Defender’s office stating: “As previously directed, each defendant shall be represented by a separate, single . . . attorney from the Office of the Public Defender.” Notice of Motion to be Relieved as Counsel, February 12, 1998. See also Reporter’s Transcript of Proceedings in the District Court, February 13, 1998.26 At another time,

26 Tautai: “. . . I don’t know which counsel I represent. The Court has ordered specifically -- says I represent who?” The District Court: “Counsel, it’s my understanding you represent O’Brien, I believe.” Tautai: “Can we have a choice?”

77 the court wrote: “The math is fairly simple—one client per one attorney of the Public Defender’s Office. The Court did not appoint one attorney to represent all three defendants.” District Court Order, February 10, 1998. (Note: emphasis was added by the District Court.) The conflict of interest, therefore, arose as a result of the mismanagement of the Public Defender’s Office—and could easily have been avoided.

We cannot say with certainty who is at fault for this artificially-created conflict—whether Ms. Folau failed to inform others in the office of the conflict of interest she has with Mr. O’Brien, whether Mr. Tautai knew about the conflict before the confidentiality of the cases was breached and would have been in the position to have stopped the conflict, or whether Ms. Townsend simply took the case at random without inquiring into the possibility of a conflict of interest.27 What we do know for certain is that this “conflict” could easily have been short-circuited with the assignment of O’Brien’s case to Ms. Folau. Why that was not done can only remain a matter of speculation. However, the waste of resources that this mistake has caused is clearly fact.

[9] The fund allocated the court in the current financial year for pro bono legal defense is limited and seriously depleted. The conflict and its attendant public expense are unnecessary. The Public Defender would do well to heed the realities of a very limited pro bono legal defense fund and employ better case management. Future mistakes entailing needless and additional public expenditure may well attract sanctions.

Conclusion

Counsel Townsend and Tautai’s motion to withdraw is denied.

Counsel Folau’s motion to withdraw is granted.

Townsend: “Well, I just picked him.” The Court: “Counsel, it’s my understanding that you were representing the defendant seated behind you.” Tautai: “Who’s that? I don’t know which of the defendants I’m representing and that’s why I’m inquiring.” The Court: “I did not specify it. When the Public Defender’s Office was appointed to represent these individuals, I directed counsels to take one defendant per one attorney however they may be allocated.” District Court Reporter’s Transcript of Proceedings, February 13, 1998; 11:5-18. 27 During the hearing in support of counsel’s motion to withdraw, counsel Ms. Townsend stated that she “just picked [O’Brien].” District Court Reporter’s Transcript of Proceedings, February 13, 1998; 11:11

78 It is so ordered.

MEALOFA TAUOA, Defendant

CR No 74-97

April 28, 1998

Before RICHMOND, Associate Justice, TUA`OLO, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Plaintiff, John N. Cassell, Assistant Attorney General For Defendant, Tautal A.F. Faalevao, Public Defender

[1] Individuals have a constitutional expectation of privacy in their “persons, houses, papers, and effects,” and generally, law enforcement officers must obtain a warrant to search these areas or for these things.

[2] The special protection accorded by the Fourth Amendment against unreasonable searches is not extended to open fields.

[3] The curtilage of the home is considered part of the home for Fourth Amendment purposes.

[4] Four useful factors in determining whether the area in question is part of the curtilage of the home are: (1) the proximity of the area to the home, (2) whether the area is included within an enclosure surrounding the home, (3) the nature of the uses to which the area is put, and (4) the steps taken by the resident to protect the area from observation by people passing by.

[5] The Fourth Amendment does not protect the merely subjective expectation of privacy, but only expectations that society is prepared to

79 recognize as reasonable.

[6] An area need not be “open” or a “field” to fall under the “open field” exception to the Fourth Amendment.

[7] There is no societal interest in protecting the privacy of cultivation of crops that occur in open fields. [8] Where clearing, located on side of mountain, could not be seen from the defendant’s home, was not enclosed, was used only for crop cultivation, and where no steps had been taken to protect it from observation, said clearing would not be considered part of the “curtilage” of the defendant’s home.

[9] Where officers came upon marijuana-growing operation and suspect spontaneously admitted to owning the growing marijuana, said officers had reasonable grounds to believe suspect had committed a felony and were justified under either A.S.C.A. § 46.0805(1) or § 46.0805(3) in conducting a warrantless arrest thereafter.

AMENDED ORDER DENYING MOTION TO SUPPRESS

Plaintiff American Samoa Government (“ASG”) has charged defendant Mealofa Tauoa (Tauoa) with unlawful production of the controlled substance of marijuana and with unlawful possession of the controlled substance of marijuana. Tauoa now moves to suppress evidence on the basis that such evidence was the product of an unreasonable search and seizure and an unlawful arrest.

Early in the afternoon of November 22, 1997, Special Agent David Snow (“Snow”) of the Drug Enforcement Unit within ASG’s Department of Public Safety received a telephone call from Ponapati Poleki (“Poleki”) , the pulenu`u (or mayor) of the village of Fagaitua. Poleki had discovered what he believed to be marijuana plants, growing in styrofoam cups, on the mountainside near his home. He had taken two of the cups from the mountain and had them in his possession.

Snow met Poleki at his home in Fagaitua about an hour later. They were joined by Special Agent Eteuati Leiato (“Leiato”), also a Fagaitua resident. Poleki showed the two cups to the agents and said that there were 48 more up on the mountainside. The agents recognized the young plants in the cups as marijuana plants and decided to take a look at the area Poleki had described. They did not attempt to obtain a search warrant for the area.

Poleki led the agents along a trail leading from his house to a ridge on

80 the mountainside. This walk took them about 15 minutes. They continued just beyond the ridge and entered a clearing in the brush. The clearing was about 15’ x 15’ and contained a shelf or table made from tree branches and wood. On the table the agents observed 48 more styrofoam cups containing what they recognized as juvenile marijuana plants. The agents also observed a five gallon bucket of fresh water, fertilizer, and a tray wrapped with screening material.

As they were observing this scene, the agents and the pulenu`u heard a person coming up the hill through the brush. The person was approaching the clearing opposite the side from where they had entered. Leiato recognized the person as Tauoa and called out to him. Tauoa admitted to Leiato that the plants and other items in the clearing were his property, but he then denied to Snow any personal connection to these items. Tauoa was then arrested without an arrest warrant, and the plants and other items were taken as evidence.

Tauoa resides in a house 180 to 200 feet downhill from the clearing where the evidence was seized. He lives there with his father, mother, a brother, and a sister, her husband and their three minor children. No structures are visible from the clearing, and the house can only be seen after coming downhill about 10 to 15 yards. Tauoa’s father holds the Muagututia matai (or chief) title, and both the house and clearing are located on the Muagututia family’s communal land. The family uses the area within and about the clearing only for agricultural purposes. The six adult members of the household tend to the communal land surrounding the house and can authorize others to enter the land.

Discussion

Article I, § 5 of the Revised Constitution of American Samoa guarantees the right of individuals “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” This provision mirrors the Fourth Amendment of the United States Constitution. The Revised Constitution of American Samoa also provides that “[e]vidence obtained in violation of this section shall not be admitted in any court.”

[1] Thus, individuals have a constitutional expectation of privacy in their “persons, houses, papers, and effects,” and generally, law enforcement officers must obtain a warrant to search these areas or for these things. Snow and Leiato seized the evidence without a search warrant. There are, however, established exceptions to the warrant requirement. ASG contends that the evidence is admissible because it was discovered under the “open fields” exception to the constitutional restriction on search and seizure. Tauoa argues that the clearing was within the curtilage of his home, and thus falls within the protections against unlawful search and seizure.

81 [2-3] In Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), the Supreme Court first recognized the open fields doctrine. “[T]he special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects,’ is not extended to the open fields. The distinction between the latter and the house is as old as the common law.” Id. at 59. The Court later defined the distinction between “curtilage” and “open fields” and emphasized that curtilage has been considered part of the home itself for Fourth Amendment purposes. Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 2735, 80 L.Ed.2d 214, 225 (1984). “At common law, the curtilage was ‘the area to which extends the intimate activity of a man’s home and the privacies of life.’” Id., quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886).

[4-5] The Supreme Court has developed a four part test for determining the extent of curtilage, but has emphasized that the test should not be a bright line rule. The four factors instead should be considered under the umbrella of the general principles of the Fourth Amendment. The four factors are: (1) the proximity of the area to the home, (2) whether the area is included within an enclosure surrounding the home, (3) the nature of the uses to which the area is put, and (4) the steps taken by the resident to protect the area from observation by people passing by. United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 1139, 94 L.Ed.2d 326, 334-35 (1987). “[T]hese factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration—whether the area in question is so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” Id., 480 U.S. at 301. The overriding general principle is whether government intrusion into the area in question infringes upon both the personal and societal values of privacy protected by the Fourth Amendment. “The Amendment does not protect the merely subjective expectation of privacy, but only expectation[s] that society is prepared to recognize as reasonable.” Oliver, 466 U.S. at 177, quoting Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L.Ed.2d 576, 588 (1967) [inner quotes omitted].

[6] The Supreme Court has made it clear that an “open field” does not have to be “open” or a “field.” In Oliver, for example, the Court found that a thickly wooded area may be an open field as that term is used in construing the Fourth Amendment. Oliver at 180, 225 n. 11, citing United States v. Pruitt, 464 F.2d 494 (9th Cir. 1972) and Bedell v. State, 521 S.W.2d 200 (Ark. 1975). In addition, steps taken to protect the privacy of an area do not necessarily mean that the expectation of privacy is a legitimate one. For example, in United States v. Burton, 894 F.2d 188 (6th Cir. 1990), a search in open fields was upheld, even though the police passed “no trespassing” signs and climbed over a fence

82 and locked gate, because the defendant did not have a reasonable expectation of privacy, protected by the Fourth Amendment, in open fields.

This court has not previously examined the distinction between curtilage and open fields. We have, however, addressed motions to suppress evidence in similar fact situations. In companion cases, American Samoa Gov’t v. Atafua, 1 A.S.R.3d 174 (Trial Div. 1997), and American Samoa Gov’t v. Dunham, 1 A.S.R.3d 176 (Trial Div. 1997), the defendants sought to suppress evidence of plants believed to be marijuana that were seized from bush land. The court found that the defendants had neither asserted nor demonstrated that they personally had property or possessory interests in the bush land on which the marijuana plants were discovered. Lacking sufficient information of the defendants’ legitimate expectation of privacy in the searched area, the court concluded that the defendants’ constitutional rights had not been violated and denied the motions to suppress the evidence.

We find that the land at issue, where the marijuana and related items were seized, is not within the curtilage of Tauoa’s home. The clearing instead falls within the definition of an open field and thus does not come within the special protections of Article I, § 5. Tauoa had no legitimate expectation of privacy in the area where the evidence was seized. We reach this conclusion by applying the four factors outlined in Dunn and the general overriding principles of Article I, § 5 to the area of land at issue, in light of the custom and norms of American Samoa.

The first factor in the Dunn curtilage test is the proximity of the area to the home. Testimony shows that the clearing is about 180 to 200 feet from the home where Tauoa lived. More importantly, however, the clearing cannot be seen from the home, nor the home from the clearing. It is not apparent when standing in the clearing to whom the land belongs.

The second factor in the test is whether the area is included within an enclosure surrounding the home. The clearing is accessible from several directions and is not within any enclosure surrounding the home. In Suani v. American Samoa Gov’t, 1 A.S.R.3d 28, 31 (App. Div. 1997), the court stated, “American Samoa’s habitable land is largely composed of communally held real property without fences or rigid boundaries.” Given this nature of land in American Samoa, the second factor of the Dunn test may even have less significance here in defining curtilage than it would elsewhere. The issue in Suani was whether the evidence was sufficient to establish the defendant possessed the marijuana, not whether the police were properly upon the land in question, or whether the police could seize the marijuana without a warrant. If anything,

83 “communally held real property without fences or rigid boundaries,” would give rise to a lesser expectation of privacy than when the property is under the control of an individual person.

[7] The third factor in the test is the nature of the uses to which the area is put. Tauoa asserts that the clearing, being situated within the tuamaota or tualaoa (or the extension of the home for family uses), is integral to Samoan custom and thus is so connected with the house as to fall within the definition of curtilage. Tauoa’s argument, however, is not persuasive as to why playing a particular role in Samoan custom gives rise to a societal expectation of personal privacy for that type of land, especially considering the communal aspects of Samoan society. The clearing has been used only for cultivation. Cultivation, even of crops integral to traditional Samoan culture, is not a use that has a reasonable societal expectation of privacy. “There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops that occur in open fields.” Oliver, 466 U.S. at 179.

The fourth factor in the test is the steps taken by the resident to protect the area from observation by people passing by. Other than locating the clearing in the bush on the mountainside, Tauoa did not take any steps to protect the area from observation. Snow and Leiato were able to reach the clearing in just over 15 minutes from another individual’s home, along a path that had no connection to Tauoa’s home. Tauoa’s father had given authority to the five other adult residents of his household, including Tauoa, to give permission for outsiders to enter the land.

Finally, we look at the totality of these four factors under the overriding general principle of whether government intrusion into the clearing infringes upon the personal and societal standards of privacy protected by Article I, § 5. We find that the clearing where the evidence was seized is not the type of area where individuals would reasonably expect to be free from government intrusion.

[8] Considering all of these factors, the land at issue is not curtilage. Thus, the clearing does not fall within the definition of “houses” in Article 1, § 5 of the Revised Constitution of American Samoa, and is not afforded the special protections of that section. The law enforcement officers’ intrusion into the clearing and the resulting seizure of evidence in the clearing did not violate Tauoa’s constitutional rights.

[9] Tauoa also seeks to suppress the evidence on the grounds that Tauoa was unlawfully arrested without an arrest warrant. A.S.CA. § 46.0805 provides that:

A police officer is authorized, and it is his duty, to make an arrest without a warrant, in the following cases: (1) when a

84 felony is committed in his presence . . . (3) of persons found near the scene of a felony and suspected of committing it, where such suspicion is based on reasonable grounds and the arrest follows the crime by a short time; . . .

Snow and Leiato were witnessing what they had reasonable grounds to believe was the unlawful production of the controlled substance of marijuana. Production of marijuana is a felony. Tauoa came upon the scene and spontaneously admitted, when asked immediately prior to his arrest, to owning the growing marijuana. Snow and Leiato had reasonable grounds to suspect Tauoa of committing a felony. Thus, Snow and Leiato could, under either A.S.C.A. § 46.0805(1) or § 46.0805(3), lawfully arrest Tauoa without a warrant. See American Samoa Gov’t v. Gotoloai, 23 A.S.R.2d 65, 66-69 (Trial Div. 1992); American Samoa Gov’t v. Taylor, 19 A.S.R.2d 105, 106-07 (Trial Div. 1991). We need not go further with this analysis. The seizure of evidence was not tainted, and this evidence will not be suppressed, on account of Tauoa’s warrantless arrest.

Tauoa’s constitutional rights under Article I, § 5 of the Revised Constitution of American Samoa were not violated either by the law enforcement officers’ intrusion into the clearing and seizure of evidence there without a search warrant, or by their arrest of Tauoa without an arrest warrant. The motion to suppress evidence is therefore denied.

It is so ordered.

**********

MEALOFA TAUOA, Defendant.

CR No. 74-97

April 28, 1998

[1] Open fields do not give rise to an expectation of privacy, do not

85 constitute “curtilage” and are not afforded the special protections of Article I, § 5 of the Revised Constitution of American Samoa.

[2] With regard to the Dunn four factor test for determining whether land is part of the “curtilage” of one’s home, no singular factor is controlling.

[3] The intimate activity of one’s home, not the protection of property rights, is the gauge of an expectation of privacy.

[4] The fact an area is held as communal land is not determinative with regard to its characterization as “curtilage” or “open fields.”

Before RICHMOND, Associate Justice, TUA`OLO, Associate Judge, and AFUOLA, Associate Judge.

Counsel:For Plaintiff, John W. Cassell, Assistant Attorney General For Defendant, Tautai A. F. Faalevao, Public Defender

ORDER DENYING MOTION FOR RECONSIDERATION OF ORDER DENYING MOTION TO SUPPRESS

On December 16, 1997, plaintiff American Samoa Government (“ASG”) charged defendant Mealofa Tauoa (“Tauoa”) with unlawful production and possession of the controlled substance of marijuana. On January 30, 1998, Tauoa moved to suppress evidence on the basis that such evidence was the product of an unreasonable search and seizure and an unlawful arrest. The motion was denied. Tauoa now moves for reconsideration, stating that the court incorrectly characterized the area where the evidence was found as an open field and not curtilage. Tauoa does not contest the court’s decision as to the suppression of evidence in conjunction with the legality of his arrest.

Discussion

Individuals in American Samoa are guaranteed the right to be secure in their houses against unreasonable searches and seizures.

[1] Revised Constitution of American Samoa, Article I, § 5. This right extends to areas so closely connected with the use of the home such that they give rise to the same expectation of privacy. These areas are defined as curtilage and fall within the definition of houses in Article I, § 5. Open fields, on the other hand, do not give rise to this expectation of privacy. They therefore are not curtilage and are not afforded the special protections of Article I, § 5.

In denying the motion to suppress, we looked to the four part test of United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 1139-40, 94

86 L.Ed.2d 326, 334-35 (1987), to determine the extent of curtilage. More importantly, however, we also looked to the overriding general principle of whether government intrusion into the area in question infringes upon the personal and societal standards of privacy protected by Article I, § 5. We found that the clearing where the evidence was seized is not the type of area so closely associated with the ‘intimate activity of a man’s home and the privacies of life,’ Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214, 225 (1984), quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886), that it gives rise to a personal expectation of privacy. At page 9 of the order we stated:

Considering all of these factors, the land at issue is not curtilage. Thus, the clearing does not fall within the definition of “houses” in Article 1, § 5 of the Revised Constitution of American Samoa, and is not afforded the special protections of that section. The law enforcement officers’ intrusion into the clearing and the resulting seizure of evidence in the clearing did not violate Tauoa’s constitutional rights.

[2] Tauoa claims that the court erroneously applied the four part test enumerated in Dunn because we did not apply the test with unique Samoan circumstances and customs in mind. He states that we overlooked High Chief Muagututi’s testimony of this area as the tuamaota, and instead used the description given by law enforcement officers. He reiterates that the distance from the clearing to the house is 180-200 feet and emphasizes that the house is a high chief’s residence. The court did give heed to High Chief Muagututi’s testimony when applying the Dunn four part test. High Chief Muagututi, for example, gave a thorough description of the use made of the land and the type of crops cultivated there and in surrounding areas. We must emphasize, however, that no singular element of the Dunn test is controlling. All four parts are to be considered together, and, more importantly, under the umbrella of both the defendant’s subjective and society’s objective expectation of privacy of the area in question. A single factor such as the distance from the clearing to the house, therefore, is not a determinative element.

[3] Tauoa also contends that we failed to account for a uniquely Samoan expectation of privacy of the land in question. Although Tauoa states that definition of the land as the tuamaota means that it is accorded privacy, Tauoa does not indicate why this is so. Tauoa refers to the “importance,” “value,” and “respect,” placed on the tuamaota by Samoan society. The significance of communal land and due respect for a matai and his residence are important values in the Samoan culture. However, Tauoa’s reference to these matters misses the mark. The intimate activity of one’s home, not the protection of property rights, is

87 the gauge of an expectation of privacy. See Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576, 583 (1967). Protection is afforded to people, not places. Id. at 356, 88 S.Ct. at 514, 19 L.Ed.2d at 582. It was plain from the evidence presented at the hearing that the nature of the clearing, whether or not it is within the tuamaota, is not the same as that of Tauoa’s home. The location, character, use, accessibility, and general nature of the clearing clearly do not give rise to such an expectation of privacy for Tauoa as to bring it within in the definition of “houses” under Article I, § 5.

[4] Finally, Tauoa argues that our order denying the motion to suppress makes Article I, § 5 protection unavailable to communal land in Samoa. This argument is incorrect. We found that the clearing is not curtilage and thus does not fit within the definition of “houses” under the Revised Constitution of American Samoa. This finding does not rest at all on characterization of this land as communal property. Therefore, nothing in our order would preclude Article I, § 5 protection in relation to communal land for which an individual had a reasonable expectation of privacy.

The clearing where evidence was seized is correctly characterized as an “open field” and not “curtilage.” The clearing therefore does not fit under the definition of “houses” in Article I, § 5 of the Revised Constitution of American Samoa. The motion for reconsideration is denied and the evidence seized by law enforcement officers from the clearing will not be suppressed.

It is so ordered. **********

NIKOLAO ALO, Defendant.

CR No. 67-97

May 5, 1998

[1] In construing statutes, it is assumed that the legislature intended to enact an effective law.

[2] Statutory interpretation requires that two statutes be read harmoniously where possible.

[3] In deciding on whether statutes are non-contradictory, the court must focus on their plain meaning.

[4] A.S.C.A. § 46.2204(a)(1), which provides limitations on the terms during which probation may remain conditional, and A.S.C.A. §46.2206(2), which makes provisions for terms of detention during probation, are in pari materia but are not in contradiction; the former governs the length of time during which a defendant’s probation may be revoked, and the latter limits the duration of incarceration during a defendant’s probation, and so these statutes are non-contradictory, harmonious, and therefore valid.

Before: KRUSE, Chief Justice, and TUAOLO, Associate Judge.

Counsel: For Plaintiff, John Cassell, Assistant Attorney General For Defendant, Loretta Townsend, Assistant Public Defender

ORDER DENYING MOTION TO AMEND SENTENCE

Introduction

Nikolao Alo (“Alo”) pled guilty to a charge of Unlawful Distribution or Delivery of a Controlled Substance (methamphetamine). Alo was sentenced to a 20-year term of imprisonment. Execution of sentence was suspended and Alo was placed on probation on certain conditions which included an 80-month term of detention at the Correctional Facility. Alo filed a motion to “correct his sentence.” He asserts that the court exceeded the scope of its authority in effectively reducing the period of

89 his confinement by only 160 months. Instead, he argues, that his sentence should have been reduced to a maximum five-year term if the court were to place conditions on his sentence at all. That is, Alo avers that A.S.C.A. § 46.2204(a)(1) somehow limits the court's authority in the way in which it may modify a defendant's sentence.

Discussion

Essentially, defendant's argument hinges on an analysis of statutory construction and interpretation. Alo claims that a tension arises between the statutory construction of the in pari materia statutes of A.S.C.A. §§ 46.2204(a)(1) and 46.2206(2) and, consequently, that this tension nullifies the court's ability to issue to him a term of confinement of over five years.

[1-3] In construing statutes, the court starts with the assumption that the legislature intended to enact an effective law. 73 AM. JUR. 2D, Statutes, § 249 at 422 (1974).

An interpretation should, if possible, be avoided, under which the statute or provision being construed is defeated, or as otherwise expressed, nullified, destroyed, emasculated, repealed, explained away, or rendered insignificant, meaningless, inoperative, or nugatory.

Id. Statutory interpretation requires that two statutes be read harmoniously if it is possible. U.S. v. Borden Co., 308 U.S. 188 (1939). In reading these statutes and deciding whether they are non- contradictory, the court must focus on their plain meaning. United States v. Turkette, 452 U.S. 576 (1981) (holding that absent contrary legislative intention, a statute should be interpreted according to its plain language).

[4] We look to whether these two statutory provisions may be read together in a non-contradictory manner.

A.S.C.A. § 46.2204(a)(1) reads in relevant part:

. . . the terms during which probation shall remain conditional and be subject to revocation are: a term of years not less than 1 year and not to exceed 5 years for a felony.

A.S.C.A. § 46.2204(a)(1) (emphasis added).

The second statute, A.S.C.A. §46.2206(2), reads in relevant part: . . . when probation is granted, the court . . . may require as a condition of probation that the defendant submit to a period of

90 detention in an appropriate institution at whatever time or intervals within the period of probation, consecutive or nonconsecutive, the court shall designate.

In felony cases, the period of detention . . . may not exceed one third of the maximum prescribed term of imprisonment for the crime of which the defendant has been convicted . . .

A.S.C.A. § 46.2206(2).

If we read these statutes side by side—looking to the plain meaning of the words—we find that they are not contradictory. Defendant is mistaken in his interpretation of the statutes and the tension he perceives between them. Although these statutes are in pari materia, they speak to different specific issues and neither governs the court's ability to modify a defendant's probationary sentence. While, neither statute refers specifically to the maximum length of probation that the court is authorized to order, the latter statute does contemplate detention periods as a condition of probation in excess of five years. Indeed, where the maximum prescribed term is life imprisonment, A.S.C.A. § 46.2206(2) authorizes the sentencing court to impose up to a 15-year period of detention as a condition of probation. This enactment would be rendered nugatory if defendant's reading of A.S.C.A. § 46.2204(a)(1)—that probationary periods are limited to five years—prevailed. The five-year maximum under A.S.C.A. § 46.2204(a)(1) refers merely to the length of time during which the probationary period is subject to revocation (i.e. is “conditional”). The key words in this statute are “terms during which probation shall remain conditional.” A.S.C.A. § 46.2204(a)(1), therefore, does not limit the length of probation that may be ordered, but rather governs the length of time the defendant is in peril of having his probation revoked.

A.S.C.A. § 46.2206(2), in comparison, refers to the period of time a defendant may be incarcerated as a condition of his probation. Again, A.S.C.A. § 46.2206(2) does not limit the length of probation that the court may order. Rather, it limits the defendant's length of incarceration to a term that may be fulfilled within the defendant's period of probation and gives the court authority to incarcerate the defendant during his entire term of probation, if necessary. The key concept in this statute is “period of detention [as a] condition of probation.”

This reading allows A.S.C.A. §§ 46.2204(a)(1) and 46.2206(2) to stand on their own as non-contradictory, harmonious, and therefore valid, statutes. Conclusion and Order

Defendant's motion is, therefore, denied.

**********

TALOFA SEFO, Defendant. ______

KELEMETE PUNEFU, Defendant.

CR No. 10-98 CR No. 11-98

May 6, 1998

[1] Under Article I, § 5 of the Revised Constitution of American Samoa, which mirrors the Fourth Amendment of the United States Constitution, individuals are protected against unreasonable searches and seizures, and search or seizure warrants may not be issued without a showing of probable cause, and evidence obtained in violation of this section may not be admitted in any court.

[2] Under A.S.C.A. § 46.0805, an arrest made without a warrant is authorized when a felony is committed in an officer’s presence, or if the person arrested is found near the scene of a felony, is reasonably suspected of committing it, and the arrest comes shortly after the crime. [3] Probable cause is more than bare suspicion and less than absolute certainty, and the existence of probable cause is determined from the totality of the circumstances; it can arise from witnessing the apparent purchase of drugs.

[4] When a valid arrest is made, officers may make a full search of both

92 the suspect and the area within his immediate control for weapons and evidence, and where police have probable cause to arrest a suspect, a search may precede a formal arrest.

[5] Where the totality of the circumstances surrounding an in-custody interrogation reveal that the suspect voluntarily, knowingly, and intelligently waived his rights to remain silent and to an attorney, any statement made by him is admissible.

Before: KRUSE, Chief Justice, ATIULAGI, Associate Judge, and SAGAPOLUTELE, Associate Judge.

Counsel: For Plaintiff, John W. Cassell, Assistant Attorney General For Defendants, Loretta Townsend, Assistant Public Defender

ORDER DENYING DEFENDANTS' MOTION TO SUPPRESS

Defendants Talofa Sefo (“Sefo”) and Kelemete Punefu (“Punefu”) are charged with unlawful possession of the controlled substance of marijuana, in violation of A.S.C.A. §§ 13.1022 and 13.1006. Sefo and Punefu both entered pleas of not guilty on February 4, 1998. On March 20, 1998, the court granted American Samoa Government's (“ASG”) motion to consolidate the cases for trial.

On March 17, 1998, Sefo and Punefu moved to suppress evidence seized by law enforcement officers on the basis that such evidence was discovered as the result of an illegal detention or arrest of the defendants. ASG contends that the evidence is admissible because the defendants voluntarily accompanied the law enforcement officers to the police station and consented to the search or, alternatively, that the law enforcement officers had probable cause to believe that defendants had committed a crime in their presence and thus were entitled to search defendants and containers within their immediate control. Sefo and Punefu also seek to suppress written statements on grounds that such statements were not voluntarily, knowingly and intelligently made. ASG claims that the statements were taken when the defendants were lawfully detained, and were preceded by Miranda warnings and valid waivers thereof.

The motion came for hearing on April 9, continued on April 14, and concluded on April 20, 1998.

Background

In the afternoon of January 23, 1998, Special Agent Va`a Sunia (“Agent Sunia”) and Special Agent Moleli Tavai (“Agent Tavai”) went to the

93 Fagatogo marketplace for the purpose of locating Sefo. They intended to question Sefo about a robbery of poker machines. They arrived at the marketplace about 3:30 p.m. and spotted Sefo near the back of the Tedi of Samoa building. He was accompanied by two other individuals, Punefu and his brother A`asa Punefu (“A`asa”).

The officers left their vehicle and watched the three individuals. They observed a fourth individual, known as Soli, approach the three and begin talking with them. Sefo, Punefu, and Soli began walking toward the Iseula longboat shed. Punefu was wearing a backpack, was walking slightly behind the other two, while looking up and down the area. Sefo and Soli walked toward the public toilets across the street while Punefu remained on the street corner with his back to the other two and continuing to scan the area.

Agent Sunia told Agent Tavai that he suspected they were witnessing a marijuana purchase. Agent Tavai left to get the police vehicle and Agent Sunia moved his position so that he could continue to watch the three individuals. He observed Punefu on the street corner, continuing to keep a lookout of the area. He saw Soli hand money to Sefo. Sefo then pulled what appeared to be a ziplock plastic bag from the crotch area of his lavalava and handed it to Soli. Agent Sunia saw Soli and Sefo exchange a few words, then saw Soli hand the plastic bag back to Sefo, who replaced it in the crotch area of his lavalava. Soli left. Sefo and Punefu then walked towards each other and Agent Sunia approached them.

Agent Sunia asked Sefo and Punefu how they were doing and what they were doing there. They indicated they were waiting for the Iseula crew practice. Agent Sunia found this to be an odd response since Agent Sunia was a member of the crew team and knew that the defendants were not. He asked Sefo and Punefu if they would come to the police station so that he could ask them some questions about a robbery. They agreed. By that time, Agent Tavai had brought the police vehicle around, and the defendants got inside. Before getting in the vehicle, Punefu called to A`asa to take his backpack, but A`asa declined.

Once they were at the police station in Fagatogo, the officers took the defendants to an office. The defendants were advised that they were free to leave at any time. Agent Sunia asked them about the robbery and both Sefo and Punefu said that they knew nothing. Agent Sunia then asked Punefu if he had any drugs and if he had been trying to sell drugs in the marketplace. Punefu answered no to both questions. Agent Sunia then asked if he could search Punefu's backpack. Punefu said yes. Agent Sunia asked Punefu if he would open the bag, but Punefu told Agent Sunia to do it. Agent Sunia found two twenty dollar bills and, inside a Christmas stocking, eleven plastic bags of what appeared to be

94 marijuana.

Agent Sunia then turned to Sefo and asked if he had any drugs on his person. Sefo said no. Agent Sunia asked if he had any drugs in his lavalava. Sefo again said no, but pulled out a plastic bag of what appeared to be marijuana. He then took off his lavalava and pulled out from either his shorts or his lavalava three more plastic bags of what appeared to be marijuana.

Agent Sunia conducted a field test of the substance in the plastic bags and confirmed that it was marijuana. The officers then advised Sefo and Punefu of their constitutional rights. The defendants each initialed and signed a Miranda form written in Samoan and signed a waiver of these rights. They were then formally placed under arrest. The defendants gave verbal statements which were documented in the officers' investigative report.

Sefo and Punefu were transferred to the west police substation. At the substation they both gave written statements. Both Sefo and Punefu dictated their statements to Agent Sunia. Agent Sunia recorded the statements, in Samoan, on a police form used for such purposes. When each statement was completed, Agent Sunia read the statement back to the defendant and each defendant signed his statement.

Discussion

A. Suppression of Marijuana and Other Evidence

[1] Article I, § 5 of the Revised Constitution of American Samoa guarantees the right of individuals “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Article I, § 5 also requires that warrants for searches or seizures be issued only upon a showing of probable cause. These provisions mirror the Fourth Amendment of the United States Constitution. The Revised Constitution of American Samoa also provides that “[e]vidence obtained in violation of this section shall not be admitted in any court.”

[2] Under the constitution, therefore, the government generally must obtain a warrant before seizing a person. If the government makes a seizure, or arrest, without a warrant, the arrest must either come under an established exception to the warrant requirement or be based on probable cause. See American Samoa Govt v. Luki, 12 A.S.R.2d 82, 83 (Trial Div. 1992) (“Generally, an arrest whether with or without a warrant must be supported by probable cause.”); Carroll v. United States, 267 U.S. 132, 155-56 (1925) (probable cause is the “reasonableness” standard for warrantless searches and seizures). A.S.C.A. § 46.0805 provides that:

95 A police officer is authorized, and it is his duty, to make an arrest without a warrant in the following cases: (1) when a felony is committed in his presence; ... (3) of persons found near the scene of a felony and suspected of committing it, where such suspicion is based on reasonable grounds and the arrest follows the crime by a short time; ...

Sefo and Punefu claim that when they accompanied Agent Sunia and Agent Tavai to the police station in Fagatogo, they were subject to an illegal arrest, and that the search of their persons and effects which produced the marijuana and other evidence at issue was therefore a violation of their constitutional rights. They claim that the arrest was illegal because it was based neither on probable cause nor the requirements of A.S.C.A. § 46.0805. They also claim that they did not voluntarily accompany Agent Sunia and Agent Tavai to the police station. We do not need to reach the consent issue because we find that both probable cause and the requirements of A.S.C.A. § 46.0805 were met.

[3] Probable cause is more than bare suspicion and less than absolute certainty. See Mason v. Godinez, 47 F.3d 852, 855 (7th Cir.), cert. denied, 116 S.Ct. 125 (1995).

The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusion about human behavior; jurors as factfinders are permitted to do the same—and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

American Samoa Govt v. Napoleone Loia, 16 A.S.R.2d 1, 4 (Trial Div. 1990), quoting Texas v. Brown, 460 U.S. 730, 742 (1983); Illinois v. Gates, 462 U.S. 213, 231-32 (1983); United States v. Cortez, 449 U.S. 411, 418 (1981). The existence of probable cause is determined from the totality of the circumstances. Gates, 462 U.S. at 230-32. Agent Sunia witnessed a man named Soli as he approached Sefo and Punefu. He witnessed the three individuals walking down the street, with Punefu lingering behind the other two. He watched Soli and Sefo walk toward the public bathroom while Punefu stood on the street corner and looked up and down the area. He saw Soli hand money to Sefo and he saw Sefo reach into his lavalava, pull out a plastic baggie and hand it to Soli. He saw Soli hand the plastic baggie back to Sefo. And, he observed Sefo and Punefu walk towards each other again. Agent Sunia testified that his observation of these actions led him to believe Sefo and

96 Punefu were engaged in selling drugs.

Probable cause can arise from witnessing the apparent purchase of drugs, see, e.g., United States v. Taylor, 997 F.2d 1551, 1553-54 (warrantless search where police discovered cocaine in defendant's pant pocket valid because probable cause existed where police observed defendant's apparent purchase of drugs); United States v. White, 655 F.2d 1302, 1303-04 (D.C.Cir.1981) (per curiam) (police had probable cause after observing suspect in a high narcotics area exchange currency for small object), especially when the law enforcement officer witnessing the event has specialized training in narcotics surveillance and apprehension. See, Napoleone Loia, 16 A.S.R.2d at 5-6; Florida v. Rodriguez, 469 U.S. 1, 6 (1984). Agent Sunia has considerable training in narcotics surveillance and apprehension, and worked as an undercover agent for a number of years in American Samoa, masquerading as a member of the drug subculture. We find that Agent Sunia had probable cause to arrest defendants without a warrant. In addition, the requirements of A.S.C.A. § 46.0805 were met because the possession of marijuana, or other controlled substances, is a felony. A.S.C.A. §§ 13.1006, 13.1022.

The fact that Agent Sunia or Agent Tavai did not arrest defendants on the street near the Iseula boat shed does not vitiate the existence of probable cause. Agent Sunia testified that he chose to obtain the defendants' consent to go to the station because there were other people in the marketplace area, including associates of the defendants, and because A`asa had once before tried to assault him with a rock. Sunia chose to use questioning Sefo and Punefu about the robbery as the means of obtaining this consent. Sefo and Punefu claim that they did not consent, but were instead forced into the police vehicle. We do not find this testimony particularly credible, but even if they did not give consent, probable cause to arrest still existed. Because Agent Sunia had probable cause to arrest, the issue of whether, or why, Sefo and Punefu consented to go to the station is irrelevant. See United States v. Delgado, 4 F.3d 780, 788 (9th Cir. 1993).

[4] When law enforcement officials have made a valid arrest, they may make a full search of both the suspect and the area within his immediate control for weapons and evidence. Taylor, 997 F.2d at 1553 (D.C.Cir. 1993) (“If the police have probable cause for arrest, an otherwise lawful warrantless arrest and a search of the arrestee and the area within his immediate control does not violate the Fourth Amendment.”). Sefo and Punefu claim that their consent to search was not voluntary because they were being held illegally and because they were not told that they were free to leave. Sefo and Punefu's detention, if not voluntary, was based on probable cause, and thus was not illegal. Additionally, Agent Sunia testified that he did tell the defendants that they were free to leave at any time. The testimony given at the hearing indicates that Sefo and Punefu

97 consented to a search. However, because the officers were entitled to search both defendants incident to a valid arrest, the issue of whether, or why, Punefu consented to a search of his backpack and whether, or why, Sefo consented to a search of his lavalava and shorts pockets is irrelevant.

It also is not relevant that the search preceded the formal arrest. A search can be conducted immediately prior to arrest if the police had probable cause to arrest the suspect before conducting the search. “Where the formal arrest followed quickly on the heels of the challenged search of petitioner's person, we do not believe it particularly important that the search preceded the arrest or vice-versa.” Rawlings v. Kentucky, 448 U.S. 113, 111, 100 S.Ct. 2556, 2564 (1980).

In conclusion, then, we find that although Sunia and Tavai did not arrest Sefo and Punefu in the marketplace, they had probable cause to do so. The search of their persons and effects, whether or not done with Sefo's and Punefu's consent, was a search incident to a valid arrest and therefore did not violate their constitutional rights. The marijuana, money, Christmas stocking, and other evidence produced in the search will not be suppressed.

B. Suppression of Written Statements

Defendants also seek to suppress written statements on grounds that the statements were not written by themselves and that they were ordered to sign the statements. Defendants claim that the statements were thus not voluntary and that they did not voluntarily waive their rights against self- incrimination.

[5] Any confession or statements given to the police must comply with the standard as established in Miranda v. Arizona, 384 U.S. 436, 444 (1966), with certain elements that have been modified or clarified over the years. “In essence, if a suspect 'voluntarily, knowingly, and intelligently' waives his right to remain silent and to an attorney, a statement made by a suspect who is in custody is admissible.” American Samoa Govt v. Gatoloai, 23 A.S.R.2d 65 (Trial Div. 1992), citing Miranda, 384 U.S. at 444. The relinquishment of rights must be voluntary in the sense of being a free and deliberate choice, and knowing and intelligent in the sense of having an awareness of the nature of the right and the consequences of waiving it. Moran v. Burbine, 475 U.S. 412, 421 (1986). “Only if the ‘totality of the circumstances surrounding the interrogation’ reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” Id., citing Fare v. Michael C. 442 U.S. 707, 725 (1979). See also Colorado v. Spring, 479 U.S. 564, 573 (1987).

98 Sefo and Punefu both made written statements regarding their activities in the marketplace earlier that day. They made these statements about two hours after they had been formally, and validly, arrested. Sunia verbally advised them of their constitutional rights. Sefo and Punefu both signed a Miranda form, written in Samoan, which listed each of their rights, and wrote their initials next to each enumerated right. On the same forms, they signed a waiver of these rights. All of these actions took place prior to the time they made their statements. We find that the totality of the circumstances surrounding these actions show that Sefo and Punefu made an uncoerced choice and had the requisite level of comprehension of the choice they were making.

Sefo and Punefu made their statements at the west police substation. They had been transferred there from the Fagatogo police station after their arrest. Both Sefo and Punefu made their statements by dictating to Sunia, who recorded their words on a police form typically used for that purpose. At the beginning of each written statement is a sentence indicating that the statement was recorded by the law enforcement officer, not the defendants themselves. After each statement was recorded, Sunia read the statement back to Sefo and Punefu so that they would know what had been recorded and they could make any needed changes. Both Sefo and Punefu signed their respective written statements.

Nothing in these actions indicates to us that the defendants' statements were anything less than voluntary. It is not unusual for the police to record a statement for defendants, especially when they indicate that although willing to make a statement, they are either not able or are not willing to record it themselves.

We find, therefore that the written statements were not made in violation of Sefo's or Punefu's constitutional rights. The statements will not be suppressed. Conclusion and Order

On the foregoing, defendants' motion to suppress is denied. It is so ordered. **********

MANAIA SIVA PEARSON, Defendant.

99 CR No. 48-97

August 17, 1998

[1] For Fourth Amendment search protections to apply, a person must have either a possessory interest or privacy right in the area searched.

[2] A Fourth Amendment right is a personal right which may not be vicariously asserted by another.

[3] Where a defendant has a subjective expectation of privacy in a room searched at another’s residence, the onus is on the defendant to raise such issue at trial.

[4] Except under special circumstances, the rules of criminal procedure do not allow a defendant to continually raise new arguments after others fail, and where a motion is styled as one for reconsideration, but actually seeks a de novo hearing to present new evidence, it goes beyond the bounds of a motion for new trial/reconsideration.

[5] A motion for new trial/reconsideration is designed to give the trial court the opportunity to correct errors and make appropriate changes, if necessary, in order to obviate unnecessary appeals.

[6] As a houseguest, a person has a reasonable expectation of privacy, but where the person is only an occasionally visitor, and does not spend the night with the host’s knowledge, he is not considered a houseguest; an overnight guest is one who is in the host’s home with the explicit knowledge and permission of the host.

[7] The twelve factors set out in Minnesota v. Olson, 495 U.S. 91 (1990), are used in determining whether a person has standing as a houseguest.

[8] Where a defendant's father is a joint owner of a house, such is not dispositive of whether the defendant himself had a property interest in it or an expectation of privacy. Before: KRUSE, Chief Justice, TAUANU`U, Chief Associate Judge, and LOGOAI, Associate Judge.

Counsel: For Plaintiff, Frederick J. O'Brien, Assistant Attorney General For Defendant, Loretta Townsend, Assistant Public Defender

ORDER DENYING MOTION FOR RECONSIDERATION

Introduction

100 Following a shooting incident in Pago Pago implicating the defendant Manaia Siva Pearson (“Pearson”), the police seized an M1 Carbine Rifle obtained from the home of Mrs. Evalani Viena (“Viena”), Pearson's aunt. Pearson filed a number of motions to suppress, inter alia, the rifle. With regard to the rifle, Pearson argued that the police search was in violation of Article 1, Section 5, of the Revised Constitution of American Samoa (the Territory’s counterpart to the Fourth Amendment of the United States Constitution).

[1-2] We denied the motion, concluding that the evidence failed to show that police action had violated Pearson's constitutional rights. The evidence presented at the suppression hearing showed that:

Pearson did not stay at [Evalani’s] residence on any regular or consistent basis. [Evalani] had not known that Pearson had been on her premises, much less that he had slept there on the night in question. Instead . . . Pearson often stays at [Albert Pearson’s] house, coming over there “whenever he likes.” Moreover, since Pearson apparently dropped off the sweater and M1 Carbine in one of the rooms and then went to sleep in the lobby, Pearson himself acted as if he subjectively knew that he did not have permission to stay inside Viena's home.

American Samoa Govt v. Pearson, 2 A.S.R.3d 63, 68 (Trial Div. 1998). From the evidence the court concluded that:

All of these facts, singularly or combined, cast great doubt that Pearson held a possessory interest in the room where the evidence was found. Furthermore, Pearson's decision to sleep in an area open to many people, including at a minimum the guests of the motel and their guests, further leads us to believe that Pearson did not have a subjective and reasonable “expectation of privacy” as required under Katz for his Fourth Amendment protections to attach.

Id. For Fourth Amendment protections to apply, Pearson must have either a possessory interest or privacy right in the area searched. Katz v. United States, 389 U.S. 347, 351; United States v. Jacobsen, 466 U.S. 109, 113 (1984). Even though police may have violated Viena's constitutional rights, Pearson's rights were not trampled. Alderman v. United States, 394 U.S. 165, 174, holds that a Fourth Amendment right is a “personal right” which may not be vicariously asserted by another.28

28 The Supreme Court affirmed this position in Rakas v. Illinois, 439 U.S. 128 (1978), stating that “it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the

101 Discussion

[3-4] Pearson's newly propounded argument may have been “on point,” even compelling had it been proven. If Pearson had a subjective expectation of privacy in the room searched at the residence of Evalani Viena (“Viena”), the onus was on him to forward his own cause. He did not. We agree with the government that the defendant cannot keep coming back with different arguments when one fails. The court is not like a department store in which you spend as long as you want trying on different outfits. If one argument does not quite fit, simply come back through the revolving door to try another one. The rules of criminal procedure allow “one bite at the apple” except under certain, special circumstances. Such circumstances do not exist here.

[5] There is another flawed aspect to the Pearson's motion. Although styled as one for “reconsideration,” the motion does not seek reconsideration. Rather, it seeks a de novo hearing to allow Pearson to furnish a whole new evidentiary picture to “rebut” findings of the court that are substantially based on the record. This is very evident with the proffered affidavits by Pearson and Viena.

A motion for new trial/reconsideration is designed to give the trial court the opportunity to correct any errors and make appropriate changes, if necessary, in order to obviate unnecessary appeals. See e.g., American Samoa Govt v. Falefatu, 17 A.S.R.2d 114 (Trial Div. 1990); Judicial Memorandum No. 2-87, 4 A.S.R.2d 172 (1987). Pearson's motion, however, seeks to go beyond the bounds of a motion for a new trial/reconsideration, essentially seeking, with the benefit of hindsight, another bite at the judicial apple.

[6-7] Even assuming arguendo that a rehearing is appropriate, Pearson still fails to present any strong evidence to support his newly-presented claim. He now argues that he was a “houseguest” of Viena and cites Olson v. Minnesota, 495 U.S. 91 (1990), in support of this contention. As a houseguest, Pearson would have “a reasonable expectation of privacy,” the standard used in Katz, 389 U.S. at 351, to judge whether Fourth Amendment protections apply.

The testimony and evidence before us, however, indicate that Pearson rule’s protections.” Id. (emphasis added); and this court reiterated these doctrines in American Samoa Gov’t v. Atafua, 1 A.S.R.3d 174, 175 (Trial Div. 1997), and American Samoa Gov’t v. Dunham, 1 A.S.R.3d 176, 177 (Trial Div. 1997), by holding that Article I, § 5 applies only to defendants who have a “legitimate expectation of privacy” or a “property or possessory interest.” Id.

102 was not staying at Viena's residence as a houseguest. Viena testified at the suppression hearing that she did not even know Pearson was staying at her residence or anywhere on her property.29 We weighed the testimony of Viena, the owner of the property and one in a better position to evaluate the concept of possessory interest, against that of Pearson's 17-year-old peer30 and found Viena's testimony to be more persuasive. It was also more consistent with the rest of the evidence when looked at as a whole. Defendant's cousin, Albert Pearson, testified that defendant often sleeps at his house and is allowed to come over “whenever he likes.” If Pearson was living at the home of Viena, we think it reasonable to conclude that his aunt might at least know that fact or that Pearson would not need an open invitation to stay at another relative's home. The Supreme Court in Olson considers an overnight guest to be one who is in the owner's home with the explicit knowledge and permission of the host. Olson, 495 U.S. at 98-99. Even if Pearson was legitimately on Viena's premises, this is not enough to demonstrate a legitimate expectation of privacy. See Olson, 495 U.S. at 97 (citing Rakas, 439 U.S. at 142-48).

As discussed in our earlier order, Pearson's own actions and testimony also support our conclusion. Pearson did not come into the house until the early hours of the morning, well past the time everyone would be in bed. He evidently dropped the M1 Carbine and sweater off in the room and then went down to the public motel lobby to sleep. Most “houseguests” do not sneak into their host's home to drop contraband off and then tip-toe out again to sleep in another building. It is also reasonable to infer from the fact that Pearson dropped off incriminating evidence in Viena’s house that he himself thought of it as a former, not current, residence and thus a place the police might not search. Moreover, Pearson’s decision to sleep in a public place, leads us to believe that Pearson was not consciously seeking to invoke Fourth Amendment privacy protections. Last, we cannot help but notice that Pearson was not discovered by police in a house—the place where one is most likely to find a houseguest.

But even if we reconsider Pearson’s claim, taking into account the new

29 The prosecutor, Frederick O'Brien, asked Viena, “Manaia [Pearson] was staying at your place [around the time of the arrest], isn’t that correct?” Viena responded, “Manaia was not staying at my place at that time. Mr. O’Brien then asked, “He didn't spend the night there?” Viena replied, “No, in fact I didn't even know Manaia was there.” 30 We can only guess that Katherine Viena told police officers that the room in which they found incriminating evidence belonged to Pearson because he once lived in it, information that was not given to this court the first time around. His past ownership, however, does not translate into present property rights.

103 facts contained in the affidavits of Viena and Pearson, we still arrive at the same conclusion. The new evidence proposed is intrinsically fraught with credibility problems. We cannot help but glance askance at the striking changes in Pearson's story. But even with the nebulous assertions of ownership and privacy interests in defendant's latest motion, we cannot cull sufficient justification to reverse our decision. Not only are these assertions vague, conflicting, and tainted with questions of unreliability, but they do not indicate the proprietary interest necessary to trigger Pearson's Fourth Amendment protections.

In his motion for reconsideration, Pearson cites an impressive array of cases in which the defendant was found to have a reasonable expectation of privacy31 and gives us a detailed discussion of the facts used by these courts to draw this conclusion. Unfortunately, Pearson provides us with scant additional support regarding his case, and the facts which he does provide contradict earlier testimony, thus, negativing the persuasiveness of his claims.32 Not enough information is given to the court to decide in favor of Pearson, even if we take into account the 12 factors used by the Olson court, 495 U.S. at 97, n.4.33

31 See United States v. Robertson, 660 F.2d 853 (9th Cir. 1978); Minnesota v. Olson, 495 U.S. 91 (1990); United States v. Bulman, 667 F.2d 1374 (11th Cir. 1982); Jones (no citation given); United States v. Harwood, 470 F.2d 322 (10th Cir. 1972); United States v. Davis, 932 F.2d 752 (9th Cir. 1991). 32 The additional information is contained in two affidavits recently submitted by Viena and Pearson, dated January 12 and 13, 1998 respectively. Pearson avers that “[his] father is a joint owner of the property searched. The Samoan communal ownership of land . . . makes it even more likely that [he] could reasonably anticipate that this area would be private.” 33 The 12 factors used in Olson are: (1) the visitor has some property rights in the dwelling; (2) the visitor is related by blood or marriage to the owner or lessor of the dwelling; (3) the visitor receives mail at the dwelling or has his name on the door; (4) the visitor has a key to the dwelling; (5) the visitor maintains a regular or continuous presence in the dwelling, especially sleeping there regularly; (6) the visitor contributes to the upkeep of the dwelling, either monetarily or otherwise; (7) the visitor has been present at the dwelling for a substantial length of time prior to the arrest; (8) the visitor stores his clothes or other possessions in the dwelling; (9) the visitor has been granted by the owner exclusive use of

104 [8] That defendant's father is a joint owner of Viena’s home is not dispositive of Pearson himself having any property interest or expectation of privacy in the room searched. In United States v. Davis, 932 F.2d 752, 757 (1991), it was the defendant himself who paid a portion of the rental payments, not his father. The defendant took affirmative steps to ensure his privacy by the taking the precaution of storing items in a locked safe.34

Viena apparently seeks to neutralize this contradistinction by stating in her affidavit that her home is a “family home.” She argues that “all of the members of the family can . . . reasonably expect that their privacy will be respected and that items left in the home will be secure from outsiders.” But this court takes issue with the credibility of this characterization since it differs so starkly from Viena's original testimony. And even with it, Pearson has failed to demonstrate a legitimate expectation of privacy in Viena's house, as an “overnight guest” or otherwise.35

The standard used in Katz is one in which an individual has “an actual, subjective expectation of privacy.” But, this expectation must be one which “society is prepared to recognize as reasonable.” Katz, 389 U.S. at 351. We do not believe that society, including Samoan society, would be prepared to recognize such a broad, unfettered expectation of privacy —that is, a personal privacy right in any and all residences owned by one's aiga. It is reasonable to infer from Pearson's statement that even now that he does not sleep there often, if at all. Viena's prior testimony on the witness stand was that Pearson was not staying at her home. See

a particular area of the dwelling; (10) the visitor has the right to exclude other persons from the dwelling; (11) the visitor is allowed to remain in the dwelling when the owner is absent; and (12) the visitor has taken precautions to develop and maintain his privacy in the dwelling. 34 In examining the facts of the Davis case, the Supreme Court found it “significant that Sonnie Davis paid at least a portion of the rent for Andrews' apartment. Having assumed an ongoing obligation to pay the rent, Sonnie Davis exercised partial or joint control over the premises.” United States v. Davis, 932 F.2d 752, 757 (1991). In contrast, here, Pearson did not exercise control over Viena's property. 35 Ms. Townsend asked Viena, “Could you describe this residence. . .?” Viena replied, “I live there where my business is at. Ms. Townsend asked, “O.K. Could you describe it?” Viena replied, “That's my home.” Previously, Viena had testified that “Manaia was not staying at my place at that time.

105 supra note 2. Viena's recent affidavit reads that he sleeps there about “twice a month.”36 This contention that the Samoan communal property arrangement should give those with Samoan blood an ostensibly automatic reasonable expectation of privacy in all Samoan homes— whether or not they actually stay there on a regular, frequent, and consistent basis—would completely reconstruct the essence and meaning of the Fourth Amendment.

Notwithstanding consideration of Pearson's newly presented arguments and facts, a sufficient basis to warrant a reversal of our original order does not exist, and our finding that Pearson's Fourth Amendment rights were not violated stands. We already carefully examined whether Pearson's rights were violated and determined that they were not; we see no reason to reverse our ruling.

Conclusion and Order

Defendant's motion for reconsideration is, therefore, denied.

It is so ordered.

**********

LEI VE`AVE`A, Defendant

CR No. 34-98

36 Viena's affidavit and Pearson's affidavit again differ on this point. Viena's reads that defendant “stays” in the room “at least twice a month.” Pearson's states that he stays there “at least once a week.” We do not know what either of them means by the word “stay.” Does he sleep over; visit with his aunt for a little while during the day every month; drop by to say hello and then leave, walking through this room on the way out; or briefly visit the room when he needs to find a stored item? We can only guess what “at least twice a month” means. Two times, three times, 26 times?

106 August 19, 1998

Before RICHMOND, Associate Justice, Tauanu`u, Chief Associate Judge, and ATIULAGI, Associate Judge.

Counsel: For Plaintiff, John W. Cassell, Assistant Attorney General For Defendant, Tautai A.F. Fa`alevao, Public Defender

[1] The Fourth Amendment of the U.S. Constitution is identical in relevant content to Article I, Section 5 of the Revised Constitution of American Samoa, and cases interpreting the Fourth Amendment provide appropriate guidance in applying this provision of the territorial constitution.

[2] The Fourth Amendment does not require that every search be made pursuant to a warrant, but only prohibits unreasonable searches and seizures.

[3] The test of the validity of a warrantless search is whether the search was reasonable under all the circumstances. [4] A search incident to a lawful arrest is an exception to the requirement of a search warrant.

[5] Consent obviates the need for a search warrant.

[6] Anyone who has a reasonable expectation of privacy in the place being searched may consent to a warrantless search.

[7] Determination of consent to enter is judged by an objective standard. [8] The test for determining whether consent to search has been given is whether the facts available to the officer at the moment of entry warrant a man of reasonable causation in the belief that the consenting party had authority over the premises.

[9] The scope of a consent search is determined by how a reasonable person would have understood the conversation between the officer and the person when consent was given.

[10] An inventory search is an exception to the warrant requirement.

[11] In determining whether an inventory search is proper, the court views the particular circumstances of the case and weighs the governmental interests advanced against the privacy interests invaded.

[12] Inventory search was proper where police bore responsibility for defendant’s personal property in vehicle, where possession of vehicle

107 had been obtained by defendant without owner’s permission, where vehicle would soon be returned to person with adverse interests to individual and where search performed pursuant to standard, established procedures.

[13] Individuals possess a diminished expectation of privacy with respect to automobiles.

ORDER DENYING MOTION TO SUPPRESS EVIDENCE

Background

Plaintiff American Samoa Government (“ASG”) is charging defendant Lei Veàveà (“Veàveà”) in this action with one count of possession of the controlled substance methamphetamine and one count of possession of the controlled substance marijuana.

On July 1, 1998, Veàveà moved to suppress evidence seized from a 1996 Nissan pickup (“the pickup”) on May 12, 1998. The evidence consisted of marijuana, 15 packages of methamphetamine, a scale of the type used for weighing methamphetamine, additional packaging materials, and identification in Veàveà’s name. The hearing on the motion was held on July 27, 1998.

This case arose from a complaint of domestic abuse against Veàveà. The alleged victims were his wife Monica Veàveà (“Monica”) and his minor son. Monica and several of her children moved to a shelter operated by the Division of Social Services (“DSS”) of ASG’s Department of Human Resources after this alleged abuse incident. Special Agent Moleli Tavai (“Tavai”) and Det. Sgt. Solovaà Mageo (“Mageo”) of ASG’s Department of Public Safety (“BPS”) investigated the case.

On May 6, 1998, at DPS’ central police station in Fagatogo, Monica asked Tavai for help in recovering the pickup from Veàveà. She asserted that Veàveà took the pickup without her consent. She brought a copy of the vehicle registration, which showed that Monica was the sole registered owner of the pickup. Monica returned on May 8 to again request Tavai’s help in securing return of the pickup.37

On May 12, 1998, Tavai and Mageo obtained a warrant from the District

37 Monica testified at the motion hearing that she did not request Tavai’s help to recover the pickup at the central police station and only did so indirectly through her social caseworker. Clearly, in any event, Monica conveyed to Tavai her desire for his assistance to repossess the pickup from Ve`ave`a.

108 Court to arrest Veàveà on one count of felony assault and two counts of misdemeanor assault. Tavai and Mageo were informed that Veàveà was scheduled to be at the DSS office in Utulei that afternoon and arrived there at about 3:45 p.m. to execute the warrant. The pickup was parked outside the DSS, occupied in the passenger seat by Carlos Dutra (“Dutra”), a friend of both Veàveà and Monica. Shortly thereafter, Veàveà exited the building and was arrested. The arrest was approximately 36 to 40 feet from the pickup.

Veàveà asked Tavai to let Dutra take the pickup. However, with Veàveà in custody, Tavai decided to impound the pickup until it was returned to Monica. Tavai directed Sgt. Ellis Asuega to drive the pickup to the police substation in Tafuna, nearby the correctional facility. Dutra went to the substation in the pickup. Tavai and Mageo took Veàveà to the same substation to process the arrest paperwork before taking him to the correctional facility.

All arrived at the substation about 4:30 p.m. Sgt. Asuega locked the pickup and gave the keys to Tavai. While processing the arrest, Tavai called Monica’s social caseworker and learned that Monica was on her way to the substation to recover the pickup. Concerned about a possible confrontation between Veàveà and Monica, Tavai took Veàveà to the correctional facility and waited for Monica.38

Tavai planned to inventory the personal property in the pickup in accordance with standard, though unwritten, police procedure. He was taught to follow this procedure at the Police Academy and later at continuing education sessions. An inventory of the contents of an impounded vehicle, in the owner’s presence if possible, is designed to protect the owner’s property in the vehicle and to guard the police against later false loss claims.

When Monica arrived at the substation, Tavai informed her of the inventory procedure and asked her for permission to conduct the search. She responded “very well” in Samoan.39 Mageo began the search at

38 Monica testified that she was at the shelter at the time of the arrest and that when her social caseworker called to inform her of Ve`ave`a’s arrest, she told the caseworker to advise Tavai that she wanted the pickup released to Dutra and to tell Dutra to bring the pickup to the substation where she would pick up the vehicle. Tavai testified that the caseworker did not pass on this message to him. However, even if caseworker had done so, he would not, after the pickup was impounded, release the pickup until after a standard inventory search of its contents was made in Monica’s presence. 39 Monica testified that she consented to the inventory search by saying “okay.”

109 about 5:10 p.m. Tavai and Monica watched him. Mageo found a pouch under the driver’s seat. The main zipper was open,40 and Mageo saw green leafy material in a plastic baggie just inside the pouch. As Mageo brought out the pouch, Tavai also observed the material. Monica said the pouch belonged to Veàveà. Based on his training and certification in identifying controlled substances, Tavai believed the material appeared to be marijuana. Further inside the pouch, the officers found 15 packages of what appeared to be methamphetamine, a scale of the type used for weighing methamphetamine, additional packaging materials, and identification in Veàveà’s name.

Discussion

We hold that the police officers conducted a valid search and seizure.

Article I, Section 5 of the Revised Constitution of American Samoa provides, in relevant part, that:

The right of the people to be secure in their persons, houses, papers and effect, against unreasonable searches and seizures, shall not be violated and no warrant shall issue, but upon probable cause. . .

[1] Because the Fourth Amendment of the U.S. Constitution is identical in relevant content, cases interpreting the Fourth Amendment provide appropriate guidance in applying Article I, Section 5 of our Constitution.

[2] The Fourth Amendment does not require that every search be made pursuant to a warrant. The Fourth Amendment prohibits only unreasonable searches and seizures. South Dakota v. Opperrnan, 428 U.S. 364, 372-3, 96 S. Ct. 3092, 3099, 49 L.Ed.2d 1000 (1976).

[3] The test of the validity of a warrantless search is, therefore, whether the search was reasonable under all the circumstances. United States v. Lawson, 487 F.2d 473 (8th Cir. 1973) cited in United States v. Mays, 982 F.2d 319 (8th Cir. 1993).

[4] Ve`ave`a initially argues that the search was unreasonable because it was not incident to a lawful arrest. A search incident to a lawful arrest is

40 Monica testified that the main zipper was closed. Tavai testified that even if the pouch was zipped, he and Mageo would have opened the pouch in the normal course of inventorying vehicle contents, because closed containers like the pouch commonly hold valuables. We believe, however, that the pouch was unzipped.

110 an exception permitting a warrantless search. However, because ASG justifiably relies on two grounds that are independent of this exception to validate the search of the pickup, we do not reach this issue.

Two distinct grounds support our conclusion that a reasonable search and seizure occurred. First, the search of the pickup was based on the valid consent of the person who had, or who the police officers reasonably believed had authority over the pickup. Second, the search of the vehicle was within the lawful bounds of an inventory incident to the impounding of the vehicle following the arrest of the person who had immediate control of it.

A. Consent to the Search

1. Monica’s Authority

[5] Consent to a search is another exception which obviates the need for a warrant. United States v. Patrone, 948 F.2d 813, 815 (1st Cir. 1991). The Supreme Court recognized the right to consent when it stated that:

[T]he community has a real interest in encouraging consent, for the resulting search may yield necessary evidence for the solution and prosecution of crime, evidence that may ensure that a wholly innocent person is not wrongly charged with a criminal offense.

Schneckloth v. Bustamonte, 412 U.S. 218, 243 (1973).

[6] Permission to conduct a search need not only come from the suspect. Anyone who has a reasonable expectation of privacy in the place being searched may consent to a warrantless search. United States v. Eldridge, 984 F.2d 943, 948 (8th Cir. 1993) (valid consent by driver to search car because car was in his immediate possession and control)

[7-8] Determination of consent to enter must:

be judged against an objective standard: would the facts available to the officer at the moment . . . warrant a man of reasonable caution in the belief that the consenting party had authority over the premises? Terry v. Ohio, 392 U.S. 1, 21-22 (1969). If not, then warrantless entry without further inquiry is unlawful unless authority actually exists. But if so, the search is valid.

Illinois v. Rodrigues, 497 U.S. 177, 188-189, 110 S. Ct. 2793, 111 L.Ed.2d 148 (1990).

111 In this instance, Tavai properly obtained consent from Monica, the registered owner of the pickup. Veàveà was in possession and using the pickup. Monica gave Tavai a copy of the registration of the pickup showing Monica as the sole registered owner, and sought Tavai’s assistance to recover the pickup on at least two occasions within days of Veàveà’s lawful arrest.41 The pickup was parked in the immediate vicinity of Veàveà’s arrest. Shortly after the arrest, Tavai was informed that Monica was on her way to the substation to recover the pickup. As the registered owner of the pickup, Monica clearly had a “sufficient relationship to the premises or effects sought to be inspected.”42 Matlock, 415 U.S. at 171. Moreover, Tavai certainly had reasonable grounds to impound the pickup, to have it moved to the substation, see United States v. Nays, 982 F.2d 319, 322 (8th Cir. 1993), and to believe that Monica had authority to consent to the search of it.

2. Scope of the Consent

[9] The scope of a consent search is determined by how a reasonable person would have understood the conversation between the officer and the person when consent was given. Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 114 L.Ed.2d 297 (1991) (consent to search vehicle includes implicit authorization to open paper bag found on floorboards). Here, Tavai performed a search within the scope of the consent. Tavai specifically asked Monica whether the car could be searched. The request was a general one. Monica consented to a general search of the vehicle when she responded “very well” or “okay.”

B. Inventory Search

[10-11] The second independent ground validating the search is the inventory search itself. Inventory searches are “now a well-defined exception to the warrant requirement of the Fourth Amendment.” Colorado v. Bertine, 479 U.S. 367, 371, 107 S. Ct. 738, 93 L.Ed.2d 739 (1987). Again, the Fourth Amendment’s reasonableness standard is used in analyzing the constitutionality of inventory searches. Nays, 982 F.2d

41 Veàveà does not contest the validity of his arrest pursuant to the arrest warrant issued by the District Court. 42 Even if we assume that Veàveà had authority over the pickup by reason of his spousal relationship with Monica or by his possession of the pickup immediately before his arrest, consent of one having common authority over premises or effects is valid as against the absent nonconsenting person with whom that authority is shared. Frazier v. Cupp, 394 U.S. 731, 740, 89 S. Ct. 1420, 22 L.Ed.2d 684, 693 (1969); United States v. Matlock, 315 U.S. 164, 171, 94 S. Ct. 988, 993, 39 L.Ed.2d 242 (1974); United States v. Baldwin, 644 F.2d 381 (5th Cir. 1981).

112 at 321. The court “weigh[s] the governmental interests advanced by an inventory search against the privacy interests invaded in light of the particular circumstances of the case.” United States v. Wilson, 636 F.2d 1161, 1163 (8th Cir. 1980).

1. ASG’s Interests

ASG’s interest in an inventory search includes protecting the public and the police from potential danger. Colorado, 479 U.S. 367, 373. In the interest of public safety, the police must often take a caretaking role, which includes the protection of the owner’s property while it is in police custody. Opperman, 428 U.S. at 368; Colorado, 479 U.S. at 372. [12] In this situation, the police knew that Monica wanted the pickup returned to her. Tavai also knew that Monica was coming to the police substation to take rightful possession of the pickup. At the same time, DPS would be responsible for any of Veàveà’s possessions in the pickup. Tavai made an informed and reasonable decision to search the pickup and exercise their custodial duty immediately under these circumstances. It was highly appropriate and reasonable for Tavai and Mageo to conduct the inventory search of the pickup to ensure that Veàveà’s property in the pickup would be properly returned to him before Monica received the pickup.

Moreover, Tavai was operating under standard, established procedures. Under Opperman, the Supreme Court held that inventory searches conducted pursuant to standard police procedures are reasonable. 428 U.S. at 372. “[R]easonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment . . . .” Bertine, 479 U.S. at 374. These procedures are established, in part, to ensure that the owner’s property is adequately accounted for and that potential ownership disputes over lost or stolen property may be minimized. Opperman, 428 U.S. at 369.

It was distinctly probable that the pickup would be released to Monica within a short time and any property Veàveà had inside it was likely to fall into hands that were then hostile to him. The need to safeguard Veàveà’s property was compelling.

2. Privacy Interests

[13] On the other hand, Veàveà’s privacy interests are extremely low. A diminished expectation of privacy already exists with respect to an automobile. Cardwell v. Lewis, 417 U.S. 583, 590, 94 Ct. 2464, 2469, 41 L.Ed.2d 325 (1974). Given that a violent domestic confrontation between Veàveà and Monica had been reported and that Veàveà had possession of Monica’s pickup for some time without her consent, Veàveà’s privacy interests are even more diminished. ASG’s interests

113 in the inventory search, therefore, significantly outweigh Ve`ave`a’s privacy interests.

For the reasons given, Ve`ave`a’s motion to suppress evidence is denied.

It is so ordered.

**********

JAMES A. STEPHENS aka JIMMY STEPHENS, Defendant.

CR No. 42-98

November 10, 1998

[1] 18 U.S.C.A. § 3148 (concerning bail) contains no provision specifying its application to American Samoa.

[2] Bail may be revoked if the reviewing court is satisfied that conditions of bail have been violated, and that the defendant is unlikely to abide by conditions of release.

[3] That a person is unlikely to abide by conditions of release may be established by a preponderance of the evidence.

[4] Bail decisions rest on predictions of a defendant's future behavior, and a defendant's past violations of a release order barring contact with the complainant shed light on this issue.

[5] A defendant’s submission that he is no longer a danger to the complainant since she has left American Samoa will not be accepted where his intimidation and harassment of her caused her to flee to Boise, Idaho where he has called her at her current place of employment, and his motion for reconsideration of bail revocation will be denied.

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

114 Counsel: For Plaintiff, Lionel M. Riley, Asst. Attorney General For Defendant, David P. Vargas

ORDER DENYING MOTION FOR RECONSIDERATION OF BAIL REVOCATION

The defendant James A. Stephens is charged with the crimes of Felonious Restraint, in violation of A.S.C.A. § 46.3532(a), a Class C felony; Assault in the First Degree, in violation of A.S.C.A. § 46.3520(2), a Class B felony; and Assault in Third Degree, in violation of A.S.C.A. § 46.3522(a)(1), a Class A Misdemeanor. The police affidavit in support of the warrant of arrest alleges, among other things, that the defendant lured the complainant, his ex-wife, into a motel room and after accusing her of affairs with other men, viciously beat, as well as tortured, the complainant repeatedly while keeping her restrained against her will in the motel room over a period of many hours.

The District Court admitted the defendant to bail in the sum of $40,000. He was subsequently released from pre-trial detention upon his posting a security bond and upon the condition that he not have “any contact, direct or indirect,” with the complainant. We expressly adopted in open court on June 24, 1998, the District Court’s bail and release order.

On November 2, 1998, the government filed an expedited application to revoke the defendant's bail status on the grounds that the defendant had repeatedly violated his bail condition of “no contact” with the complainant. In plaintiff's affidavit in support of its expedited application, Assistant Attorney Lionel Riley deposed that he had contacted the complainant who had informed him that she had moved off-island “tired of the defendant Jimmy Stephens . . . constantly pestering her.” We granted the expedited hearing request and heard the government's motion to revoke bail on November 5, 1998.

At the hearing, the defendant stipulated to having violated conditions of bail, however, we heard testimony at the government's request from several of the complainant's former co-workers. These co-workers all testified about frequent telephone calls and visits by the defendant to the complainant at her place of employment, three to four times a week; that arguments frequently ensued between the defendant and the complainant at these encounters with the defendant often accusing the complainant of having affairs with other men. Further, that the defendant, in order to make a point with one of the witnesses, rang the complainant at her current place of employment in Boise, Idaho. The testimony also revealed that the defendant even contacted some of the government's bail-hearing witnesses, prior to the hearing, to accuse them of simply wanting him in jail.

115 On the evidence received, we revoked defendant's bail status43 rejecting his argument that he could no longer be considered a danger to the complainant since she has left the jurisdiction of this court.

On the same day, November 5, 1998, defendant filed his motion to reconsider our order revoking bail and remanding him to the Territorial Correctional Facility pending trial on November 17, 1998. The motion for reconsideration is denied.

[1] The defendant urges this court to apply 18 U.S.C.A. § 3148 (1993 & Supp. 1994) (the “statute”) in fashioning an appropriate punishment for his violating this court's release orders. However, nowhere in the text of the statute is there a provision specifying its application to American Samoa. Had Congress wished that this section apply to the territories, Congress would have so specifically stated.

[2-3] Even if this statute was applicable, we would still conclude that the defendant's motion is without merit. In his memorandum of points and authorities in support of reconsideration, the defendant cites to only a portion of the statute. Another part of the statute, which the defendant failed to cite, provides that bail may be revoked if the reviewing court is satisfied that conditions of bail has been violated, and that

(B) the [defendant] is unlikely to abide by any condition or combination of the conditions of release.

18 U.S.C.S. § 3148. That a person is unlikely to abide by any condition or combination of the conditions of release may be established by a preponderance of the evidence. United States v. Gotti, 794 F.2d 773, 778 (2nd Cir. 1986).

[4-5] The defendant's past violations of this court's release order shed considerable light on his motive, capacity and propensity to commit certain acts while free on bail. See Gotti, 794 F.2d at 779 (all bail decisions rest on predictions of a defendant's future behavior). The defendant has freely admitted to violating this court's order by contacting the victim. His motives for these contacts, as revealed on the evidence, continue to be his infatuation with his ex-wife's perceived affairs with other men. Less than three weeks after the conditions of defendant's release were issued, the defendant made numerous harassing contacts with the complainant, frequently intimidating the complainant at her place of employment. As a result of the defendant's intimidation, the complainant fled to the mainland.

43 Although took under advisement the issue of bond forfeiture.

116 Under these circumstances, we are certainly not about to accept the bootstrap logic behind the defendant's submission that he is no longer a danger to the complainant since she has left the island, when it was the defendant's campaign of intimidation and harassment, in clear defiance of this court's bail order, that drove the complainant off-island in the first place. Moreover, despite the complainant's leaving American Samoa, the court is unconvinced that the defendant will not make yet other attempts to contact her. At the same time, we are satisfied that the complainant, fearing for her safety, is unlikely to return to the territory on her own free will, as long as the defendant is released on bail free to make further contacts with her. And the complainant has every reason to fear for her safety. In view of the factual allegations of her criminal complaint and the nature of the offenses alleged in the information, the sad fact remains that even the weight and authority of an order of this court proved to be of no assurance whatsoever to the complainant, in terms of keeping the defendant and his jealous moods away from her. Finally, we are convinced that the defendant will not abide by future court orders.

The motion for reconsideration is denied.

It is so ordered.

**********

TAGAIMAMAO MASANIA`I, Plaintiff,

APOUA TEDRICK and BILL TEDRICK d.b.a. THE COUNTRY CLUB, ASUELU TIUMALU, SAMOA ALEFOSIO and ROBERT FAIRHOLT, Defendants.

CA No. 121-95

January 9, 1998

[1] A land possessor is not an insurer of the safety of its invitees against the acts of third persons, but it has duty to exercise reasonable care in providing them protection, and there being a sufficient history of violence at drinking establishments in American Samoa to warrant

117 adequate security, the defendant, as such an establishment, owed a duty to the plaintiff to provide a reasonable number of security personnel to afford patrons reasonable protection.

[2] A drinking establishment would be vicariously liable for the negligence of its employees only if it discovers, or in the exercise of reasonable care should discover, an impending or occurring accidental, negligent, or intentionally harmful act of a third person.

[3] Security guard employees of a drinking establishment have a duty to act reasonably under the circumstances, but do not have a duty to risk their lives, or a duty to act perfectly; for liability to attach, the evidence must show that they acted unreasonably in trying to prevent a fight, to protect a patron, or in rendering aid to the patron.

[4] Under A.S.C.A. § 27.0531 (a) and (f), a drinking establishment has a duty to refuse entry and service to an intoxicated person, and this duty is breached when alcohol is served to a person who, by his staggering, slurred speech, spitting while talking, glazed eye, and not making sense, is obviously intoxicated, and should have been reasonably discernible to the establishment’s employees.

[5] Negligent conduct is the legal cause of harm to another if the conduct is a substantial factor in bringing about the harm, but the negligent serving of alcohol to a person is not a substantial factor in that person’s injuries where no evidence shows that he drank it.

[6] A drinking establishment breaches its duty under A.S.C.A. § 27.0531(f) when its employees allow an intoxicated person to enter its premises.

[7] Allowing an intoxicated person to enter a drinking establishment increases the foreseeable and predictable risk that the person will be involved in a drunken altercation, and the establishment is not excused from liability when that person suffers injuries during such an altercation with employees and other patrons, and the establishment is therefore liable for its proportionate share of those injuries.

[8] A plaintiff seeking damages for injuries has the burden of proving by a preponderance of the evidence that a defendant acted to cause harmful contact with him.

[9] Judicial notice may be taken of the court's records in the criminal cases involving the same incident as the civil case, and those records may be sufficient to support a default where the defendants fail to appear at the civil trial.

118 [10] Under A.S.C.A. § 43.5101, contributory negligence is not a bar to recovery in actions brought for personal injuries; rather, damages are diminished by the court in proportion to the amount of negligence attributable to the person injured, and a person who voluntarily consumes alcohol to the point of intoxication is at least partially responsible for his own injuries.

[11] Where a battery by the defendants is not the superseding cause of the plaintiff’s injuries, but was the principal cause of his harm, they are jointly and severally liable for their share of the damages to the plaintiff.

[12] Recovery of punitive or exemplary damages are not denied merely because the wrongful act on which the action is based may be criminally punished; punitive damages are awarded for the sake of example and by way of punishment, and are not unreasonable double punishment.

[13] For punitive or exemplary damages to be awarded, there must exist circumstances of aggravation or outrage which includes malicious conduct, and where a beating exhibited a callous disregard for the value of human life, such damages are appropriate.

Before KRUSE, Chief Justice, TAUANU`U, Chief Associate Judge, and SAGAPOLUTELE, Associate Justice.

Counsel: For Plaintiff, Jennifer L. Joneson For Defendants Apoua and Bill Tedrick d.b.a. The Country Club, Brian M. Thompson

OPINION AND ORDER

Sometime in the early afternoon of February 24, 1994, plaintiff (“Masaniaì”), then a Marine Patrol Officer with the Department of Public Safety, began drinking alcohol with some fellow officers after spending a morning cleaning one of their Marine Patrol vessels. Masaniaì continued to drink a large quantity of alcohol throughout the day and into the early evening. He eventually ended up at the home of one of his fellow officers, and continued drinking solidly until approximately 8 p.m. He left, and then after colliding with a parked vehicle, drove to the Solaita Field where he slept for a few hours. Upon awakening, he drove to the Country Club, a restaurant/nightclub located next to the Iliìli Golf Course. He walked to the front entrance after being told that the back door was locked. Upon reaching the front entrance, Masaniaì was denied entry because of his improper attire (a tank top). Masaniaì initially tried to persuade the security guard at the door, Tavita Kisena (“Kisena”), and the manager Fiona Alama,

119 (“Alama”) to let him in, but they would not. Masania`i walked back to his car, put on a police jacket marked “Marine Patrol,” and was then allowed into the club.

After entering the Country Club, Masaniaì tried to order a drink but had no money. He then persuaded two or three different people to buy him drinks. The cashier sat these drinks in front of Masaniaì, but testified that she did not see Masaniaì actually drink them.

After approximately one hour, Masaniaì approached a table to speak with Lena Sevaaetasi (“Sevaaetasi”). Robert Fairholt (“Fairholt”), Sevaaetasi's uncle, was sitting at the table with her. At some point during the conversation, Masaniaì made an offensive comment either to or about Sevaaetasi, whereupon Fairholt began yelling at Masaniaì. Some of Fairholt's friends came over to the table, including Robert Schwenke (“Schwenke”) who began to push Masaniaì. At this point, two Country Club security guards, Kisena and Hercules, noticed the commotion and intervened by separating the parties. During the separation of the parties, another man, Samoa Alefosio (“Alefosio”), punched Masaniaì in the head. As Hercules faced the young men involved in the altercation (Schwenke, Alefosio, and Tiumalu), Kisena asked Masaniaì if he wanted to leave. At the behest of Masaniaì's nephew, Danny Pau (“Pau”), Masaniaì agreed to leave. Kisena and Pau both proceeded to escort Masaniaì to his car. During this initial altercation, the police were called by a Country Club employee, Violet Ah Kiong, at the instruction of Alama.

As Kisena, Pau, and Masaniaì were walking down the front walkway toward the parking area, they passed another security guard Adam Vitale (“Vitale”). As Vitale neared the front entrance, he noticed Schwenke head out of the entrance and pick up a beer bottle. Vitale asked Schwenke where he was going, and Schwenke told Vitale that he was Masaniaì's brother. As Schwenke passed Vitale, he threw the beer bottle, hitting Masaniaì in the head and covering Kisena with shattered glass and beer. As Masaniaì fell to the ground, Kisena tried to catch and prevent him from hitting his head on the ground. The blow from the beer bottle rendered Masaniaì unconscious.

Immediately after the bottle hit Masaniaì, other young men ran outside. Schwenke immediately grabbed Masaniaì and dragged him from where he fell in between cars into the open parking lot. Schwenke, Alefosio, and Tiumalu then began beating and kicking Masaniaì. There is contradictory evidence as to who helped stop the fight but it appears that Kisena, Pau and Vitale all tried, to some extent, to protect Masaniaì. Apparently the beating lasted less then a minute and then stopped abruptly, with Schwenke, Alefosio and Tiumalu returning into the Country Club.

Immediately after the attack, Kisena brought Masaniaì ice and a towel and Vitale cleared Masaniaì's bloody nose so he could breathe. When the police arrived a short time later, Kisena and Vitale helped place Masaniaì in the patrol car for transport to the hospital.

Discussion

Masania`i brings this action to recover the damages he suffered that evening. His action against the Tedricks and the Country Club (referred to jointly as the “Country Club”) is based upon three theories: first, that the Country Club breached its duty to provide reasonable security; second, that the Country Club is vicariously liable for the negligent acts of its employees; and, third, that the Country Club breached its statutory duty to refuse to allow admittance to an intoxicated individual and to serve alcohol to an intoxicated individual, violations of A.S.C.A. §§ 27.0531(a) and (f) respectively.

Masania`i also sues Asuelu Tiumalu, Samoa Alefosio, and Robert Fairholt for battery.

A. The Country Club

1. Negligence

[1] First, Masania`i alleges the Country Club breached the duty a land possessor owes an invitee. While a land possessor is not an insurer of the safety of its invitees against the acts of third persons, it has duty to exercise reasonable care in providing them protection. RESTATEMENT (SECOND) TORTS § 344, cmt. d.44

The Country Club is a drinking establishment. The evidence presented at trial suggests that a sufficient history of violence exists at this, and other drinking establishments in American Samoa, to warrant adequate security. The evidence at trial, however, showed that the Country Club provided a reasonable level of security. On the night in question, at least three security guards and various other staff members were on duty.

We conclude that the Country Club, as a drinking establishment in American Samoa, owed a duty to Masania`i to provide a reasonably

44 The Country Club argues that it does not own the parking lot and is not responsible for any injury that occurred there. Substantial evidence showed that the Country Club exercised exclusive dominion and control over the parking lot during evening hours. Moreover, the fight outside was a continuation of the fight that began inside. See also Holiday Inns v. Shelborne, et. al., 576 So. 2d 322 (Fla.Dist.Ct.App. 1991).

121 sufficient number of security personnel in order to afford its patrons reasonable protection. RESTATEMENT (SECOND) TORTS § 344, cmt. f. The evidence shows that the Country Club provided an adequate number of security personnel. Whether those security personnel adequately performed their duties is another question, however. 2. Vicarious Liability

[2] Masania`i also argues that the employees of the Country Club acted negligently and that the Country Club would therefore be vicariously liable for their negligence. Masania`i argues that the Country Club employees had a duty to act reasonably in rendering aid to him and that they failed to do so. As stated above, this duty arises only if the land possessor or his employee discovers, or in the exercise of reasonable care should discover, an impending or occurring accidental, negligent, or intentionally harmful act of a third person. Gould v. Taco Bell, 722 P.2d 511, 515 (Kan. 1986); RESTATEMENT (SECOND) OF TORTS § 344(b).

Specifically, Masania`i argues that the security guards acted negligently in removing him from the premises without adequately insuring that the assailants remained inside the establishment until he was out of danger.

As stated above, the security guards immediately broke up the fight inside the Country Club, separated the combatants, and escorted Masania`i outside. Vitale, however, had no idea that an altercation had occurred inside when Schwenke ran past him. Before Vitale could adequately inform himself, Schwenke had already thrown the bottle. At that time, many other people came running out of the Country Club and an immediate, vicious beating ensued which was over as fast as it began. During this very short period of time, the security guards did their best to protect Masania`i, risking serious harm to themselves in the process.

[3] The employees had a duty to act reasonably under the circumstances. The employees did not have a duty to risk their lives, and they did not have a duty to act perfectly. It is true that the security guards could have acted differently, and had they done so, Masaniaì may not have been injured as much. However, the evidence is insufficient to show that any employee of the Country Club acted unreasonably in trying to prevent the fight, protect Masaniaì, or in rendering aid to Masaniaì after the beating was over.

We, therefore, find that none of the employees of the Country Club acted negligently in rendering aid to Masania`i, and thus no employee negligence exists for which the Country Club can be held vicariously liable.

3. Violation of A.S.C.A. § 27.0531

122 [4] Masania`i also argues that the Country Club breached its statutory duty to refuse entry and service to an intoxicated person. See A.S.C.A. §§ 27.0531 (a) and (f).

Both Kisena and Alama testified at trial that they could discern that Masaniaì had been drinking but, based on their experience, he did not appear to them to be intoxicated. They also testified that it is the policy of the Country Club to deny access to any person who appears intoxicated. We find, however, that Masaniaì was intoxicated and his condition should have been visibly apparent to Kisena and Alama, as it was to others. Pau testified that when Masaniaì first approached him inside the Country Club, Masaniaì was obviously intoxicated. Pau cited to his staggering, his slurred speech, his spitting while talking, his glazed eye, and his just not making sense. Also, Fairholt testified that Masaniaì appeared intoxicated when he joined them at their table, citing to plaintiff's conduct and demeanor, the way he stumbled around, the manner of his speech, and his inability to engage in normal conversation. These observations by Pau and Fairholt are bolstered by the credible evidence offered by Department of Safety Officer Kim Morris, Ben Solaita, and Masaniaì. The combined testimony of all these witnesses show that Masaniaì had been involved in a protracted drinking binge and that when he arrived at the Country Club, he was noticeably intoxicated. We conclude that plaintiff's intoxicated state should have been reasonably discernible to the Country Club's employees. a. Prohibited Service

A.S.C.A. § 27.0531(a) prohibits the service of alcohol to intoxicated individuals. It is clear from the testimony that although Masania`i did not purchase alcohol for himself, he was indeed served alcohol while he was intoxicated. As such, we find that the Country Club breached its statutory duty to deny service to intoxicated persons. The next question, however, is whether that breach was the proximate cause of Masania`i's injuries.

[5] An actor's negligent conduct is the legal cause of harm to another if his conduct is a substantial factor in bringing about the harm. RESTATEMENT (SECOND) TORTS § 431(a). Because no evidence suggests that Masaniaì drank the beers that were served to him, we cannot find that the County Club's breach of its statutory duty to refrain from serving alcohol to Masaniaì while he was intoxicated was a substantial factor in bringing about Masaniaì's injuries. b. Prohibited Admission

[6] A.S.C.A. § 27.0531(f) prohibits a licensee from allowing intoxicated persons to enter the premises. As stated above, we find that Masania`i

123 was intoxicated upon entering the Country Club. Since the Country Club’s employees allowed Masaniaì entrance, the Country Club breached its duty under A.S.C.A. § 27.0531(f). [7] Again, causation turns on whether the Country Club's breach of its statutory duty to deny Masaniaì entrance into the club when he was intoxicated was a substantial factor in bringing about the harm Masaniaì suffered. In order to be a legal cause of another's harm, it is not enough that the harm would not have occurred had the actor not been negligent. RESTATEMENT (SECOND) TORTS § 431 cmt. a. The negligence must be a substantial factor in bringing about the harm. See Id.

We hold that one of the harms § 27.0531(f) was designed to prevent is harm to intoxicated individuals and patrons of a licensed drinking establishment. It is clear that intoxicated individuals have an increased tendency to be drawn to altercations.45 Drunken behavior is highly unpredictable; slight irritations, whether real or imagined, readily lead to aggressive and irrational behavior on the part of the inebriates. 46 As such, we find that the conduct of the Country Club in allowing Masaniaì to enter the club while he was intoxicated increased the foreseeable and predictable risk that Masaniaì would be involved in an altercation. Since the harm that Masaniaì received was indeed the result of a drunken altercation, we find that this harm was well within the scope of the risk created by the Country Club's inexcusable failure to refuse entry to Masaniaì as mandated by statute. See RESTATEMENT (SECOND) TORTS § 442B. We look upon the Country Club's statutory breach with grave disapprobation. Accordingly, we find that the actions of Schwenke, Tiumalu, and Alefosio does not excuse the Country Club from liability

45 There can little argument that there is a relationship between alcohol and aggression. The High Court's criminal case files reveal that the bulk of violent crimes committed in the territory are alcohol-related, and that a significant number of aggravated assaults occur in bars or among drinking companions. 46 These are factors that would clearly have been in the Fono's contemplation when it enacted A.S.C.A. § 27.0531(f), an enactment that provides some ameliorative measures to the territory's alcohol-related problems by imposing on liquor establishments the duty to, inter alia, refuse entry to intoxicated individuals. Moreover, this community's alcohol per capita consumption is staggering, lending even more reason for alcohol related caution. According to the most current published statistics from the Research and Statistics Division, of the Economic Planning Development Office, the territory's population in 1995 was estimated at 56,000, while the value of its beer imports alone for the preceding year 1994 was given at $1.6 million. These statistics are even more striking when compared to our very minimal tourism industry. A mere 7,337 tourists visited the territory in 1995.

124 and that the Country Club's negligence in allowing entrance to Masania`i was a substantial factor in bringing about his injuries. Therefore, we find that the Country Club is liable for its proportionate share of those injuries. We will address the apportionment of liability below.

B. Robert Fairholt

[8] Fairholt was initially charged with assault and battery, but was acquitted at the criminal trial. Masania`i has offered little evidence to suggest that Fairholt participated in the beating. Although some testimony was offered by Pau as to the possibility that Fairholt participated, several other witnesses testified that Fairholt was not a participant in the assault. The burden is upon Masania`i as plaintiff to prove by a preponderance of the evidence that Fairholt acted to cause a “harmful contact” with him. See RESTATEMENT (SECOND) TORTS § 13. He failed to meet that burden.

C. Asuelu Tiumalu and Samoa Alefosio

[9] Both Tiumalu and Alefosio failed to appear at trial. We take judicial notice of the court's records in CR Nos. 03-95 and 06-95 (Trial Div. 1995), in which these defendants were found guilty of assault and battery against Masania`i. We find sufficient evidence presented at trial to enter a default civil judgment against these two defendants for committing battery upon Masania`i. See RESTATEMENT (SECOND) TORTS § 13.

D. Comparative Fault

[10] In this jurisdiction, contributory negligence is not a bar to recovery in actions brought for personal injuries. See A.S.C.A. § 43.5101. Rather, damages shall be diminished by the court in proportion to the amount of negligence attributable to the person injured. Id. (emphasis added). Substantial evidence was presented to suggest that Masaniaì's own actions contributed to his injuries. Masaniaì voluntarily consumed an inordinate amount of alcohol. He drove his automobile while intoxicated, went to the Country Club, and while there, engaged in loud, obnoxious and incendiary conduct. At some point, Masaniaì made a highly offensive comment to Fairholt's niece, in the presence of Fairholt. This remark incited a reaction and instigated the subsequent altercation.

As we stated in our Order on the Motion to Dismiss, CA No. 121-95, slip op. at 6 (Trial Div. March 4, 1997), we believe that a person who voluntarily consumes alcohol to the point of intoxication is at least partially responsible for his own injuries. Although we obviously do not believe that Masania`i deserved the injuries that he received or that violence is the appropriate reaction to offensive language, we do believe that Masania`i's own actions contributed to his injuries and must hold

125 him accountable for his actions at least to some extent.

E. Liability

[11] We find that the battery by Schwenke, Alefosio, and Tiumalu, while not the superseding cause of Masania`i's injuries, was the principal cause of his harm. Since Schwenke is now deceased and his estate was not joined in this action, we hold that Alefosio and Tiumalu are jointly and severally liable for 50 percent of the damages sustained by Masania`i.

We hold that Masania`i's own actions contributed to the cause of his injuries by 25 percent.

We find that the Country Club's breach of its statutory duty under A.S.C.A. § 27.0531(f) reflected 25 percent of the cause of Masania`i's injuries.

F. Damages

Masaniaì claims he has suffered substantial injuries and continuing damages. Overwhelming evidence shows that Masaniaì indeed sustained substantial injuries and continues to suffer as a result of those injuries. Prior to his injuries, Masaniaì was a healthy 42-year-old athletic person. He had had 10 years of employment with the Department of Public Safety having made the rank of Watch Commander within the department's Marine Patrol Division. Masaniaì is reduced to a pathetic figure beset by severe bouts of melancholy because his injuries have left him debilitated: partially paralyzed, and bereft of sensory faculties, motor skills and muscular control.

The head trauma sustained from the beating resulted in the loss of his visual acuity, blurring of his sight, and “tunnel vision,” the substantial constriction of one's field of vision. Moreover, he has lost his spatial judgment, leaving him prone to bumping into things. Nerve damage from shattered bone fragments in his face has resulted in facial paralysis and the loss of his sense of taste and smell. Masania`i is also unable to close his eyelids properly, which required his undergoing a surgical insertion of gold weights in his eyelids. He now has to continuously use eye drops (as artificial tears) to lubricate his eyes. He has difficulty speaking and eating, because he has lost some control of his mandibular muscles. Consequently, he has difficulty in not only chewing his food but even keeping it in his mouth. This has also left him facially disfigured, a source of constant embarrassment to him to the extent that he avoids contact with other people. He also suffers post-traumatic hearing impairment, tinnitus, severe headaches, and bouts of dizziness.

1. Future Wages

126 Masania`i is permanently disabled economically. We find Mr. Daniel R. King's, J.D., C.P.A. projections of plaintiff's lost future earnings to be reasonable. We accordingly find that plaintiff's projected lost wages from the date of his injury through the date of his expected retirement at age 65 are $288,527.

In addition, the discounted present value of plaintiff's projected lost retirement benefits from the date of his retirement at age 65 over his projected life span of 82.6 years47 reduced by the amount of medical retirement benefits that he is due to receive is $31,468.00.

Therefore, total lost wages and retirement benefits that the plaintiff is owed as a result of his injuries are $317,995.

2. General Damages

In consideration of plaintiff's past and present circumstances, his bleak prognosis, uncertain future, and his multiple debilitating injuries, we fix general damages, including pain and suffering, in the amount of $100,000.

3. Punitive Damages Against Alefosio and Tiumalu

[12] The majority of states hold that recovery of punitive or exemplary damages will not be denied merely because the wrongful act upon which the action is based may be or has been criminally punished. 22 AM. JUR. 2D, Damages § 757. The minority view would bar recovery on the basis of double jeopardy. Id. at § 758. American Samoa appears to have adopted the majority view. See Newton v. Taleka, 30 A.S.R.2d 86, 89 (Trial Div. 1996). There the court noted:

[P]unitive damages are principally awarded for the sake of example and by way of punishment. Viewed from this perspective when a defendant has been criminally prosecuted and sentenced, punitive damages are not unreasonable double punishment.

47 The Country Club argues that the life expectancy for a Polynesian man is lower than the life expectancy for a Caucasian man. In 1980, the life expectancy for a Samoan was 75.3 years. Vai Filiga and Michael J. Levin, Population Profile of American Samoa (1980 census) p. 43 (August 1988). We have no current updated information regarding the life expectancy of a Samoan male. Since defendant failed to proffer such evidence, we can only look to the testimony of plaintiff's expert on this issue. Although we can imagine that a Samoan male's life expectancy is less then 82.6 years, we are without evidence to support this intuition.

127 Id. (Citations omitted). Punitive or exemplary damages are awarded in addition to full compensation to punish the defendant and deter him and others from similar future misconduct. Id. In addition though, there must exist circumstances of aggravation or outrage which includes “malicious conduct.” Letuli v. Lei, 21 A.S.R.2d 77, 86 (Land & Titles Div. 86 1991). “'Malice' includes conduct which is intended to cause injury; or which is despicable by nature, that is, blatantly vile or loathsome to ordinary decent people, and carried on with willful and conscious disregard for the rights or safety of others.” Id.

[13] The beating plaintiff suffered at the hands of Schwenke, Alefosio, and Tiumalu exhibited a callous disregard for the value of human life. Indeed, these defendants' actions would have ended in death had it not been for the intervention of Kisena and others. The actions of these defendants may be characterized as an abominable savagery and cowardice that shocks the conscience. Vitale the security guard openly wept on the stand as he recounted in disbelief the sheer horror of the evening's events that he witnessed in the Country Club's parking lot.

We conclude that punitive or exemplary damages against Alefosio and Tiumalu are appropriate and accordingly award such damages in the amount of $100,000.

Conclusion

Defendants Alefosio and Tiumalu are jointly and severally liable for 50 percent of all damages as follows: $158,997 for future earnings, $50,000 for general damages including pain and suffering and $100,000 in punitive damages. Total damages being $308,997.

Defendants Bill and Apoua Tedrick d.b.a. the Country Club are liable for 25 percent of the damages as follows: $79,499 for future wages and $25,000.00 for pain and suffering, damages which total $104,499.

Judgment will enter accordingly.

It is so ordered.

**********

RUTA FOU and TOGAIIA FOU, P1aintiffs

128 TALOFA, INC. dba TALOFA VIDEO, Defendant.

CA No. 62-97

February 9, 1998

Counsel: For Plaintiff, Katopau T. Ainu`u For Defendant, Aitofeie T.Sunia

[1] Statements which would typically be considered slander constitute libel when said in association with a libelous act.

[2] Libel may occur where a defamatory writing is read aloud.

[3] Posting defamatory material so that it is viewable by third persons constitutes publication.

[4] Publication of a defamatory statement can be done intentionally or negligently.

[5] A communication is defamatory if it so harms the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.

[6] Where store posted a patron’s properly drafted, but out-of-state, check for its employees to see as “unacceptable”, where check was placed in public view, and where store employees told others that it was posted because of its “unacceptable” nature, the obvious implication was that the drafter had drawn the check on insufficient funds and thus such actions constituted libel.

[7] A written or printed imputation of any crime of moral turpitude or punishable by confinement is libelous per se.

[8] Where libel per se is shown, actual damages need not be proven. OPINION AND ORDER

Plaintiffs Ruta Fou (“Ruta”) and Togaiia Fou (collectively “the Fous”) brought suit against defendant Talofa, Inc. dba Talofa Video (“Talofa

129 Video”) to obtain damages for defamation. The trial was held on October 24, 1997 with both counsel present.

On August 11, 1996, Ruta paid $15 by check to Talofa Video for video rental fees. The check was drawn on the Fous’ joint account. The check was deposited, and the depository bank credited Talofa Video’s account accordingly. Talofa Video, however, subsequently displayed this check on a post near the store’s front counter for its employees to see as an example of an “unacceptable” check, one that is drawn on an off-island bank. The check had remained there for some time when one of the employee’s turned it over to jot telephone numbers on the backside. In doing so, the check was placed in public view. When family and friends of the Fous asked why the check was displayed, Talofa Video’s employees told them that it was there as a reminder that the check was no longer acceptable at their store.

Ruta learned of this situation from a friend at another store several months after she originally tendered the check. She immediately contacted Talofa Video, and an employee confirmed that the check was still displayed. Ruta retrieved the check and, through counsel, demanded an explanation and apology from Talofa Video. Talofa Video’s manager, Lo Shi-Kai, explained in his letter of March 27, 1997 that the check was not being posted because of insufficient funds, but rather “as a reminder to [Talofa Video’s] employees that only local checks could be accepted.” Despite the fact that the check was in plain view for the public to see, he denied that the check was on “public display.”

Discussion

Defamation by means of libel is statutorily defined:

Defamation is effected by: (1) libel which is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye which exposes any person to hatred, contempt, ridicule, or obloquy which causes him to be shunned or avoided or which has a tendency to injure him in his occupation.

[1-5] A.S.C.A. § 43.5201. Oral words which would typically be considered slander constitute libel when said in association with a libelous act. “[I]t is generally held that it is a publication of a libel to read a defamatory writing aloud. This might suggest that the distinction is one of embodiment in some more or less permanent physical form,

130 and is frequently so stated.” W.L. Prosser & W.P. Keeton, The Law of Torts 786-87 (5th ed. 1984). Posting defamatory material to be viewable by third persons constitutes publication. Publication of defamatory matter is its communication intentionally or by negligent act to one other than the person defamed. See RESTATEMENT (SECOND) OF TORTS § 577(1). The form of the statement is not important, so long as the defamatory meaning is conveyed. Prosser, supra, at 776. “A communication is defamatory if it so harms the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” RESTATEMENT (SECOND) OF TORTS § 559.

Talofa Video asserts that it posted the check as a “teaching device” to its employees not to accept off-island checks. We view this rationalization to be less than compelling, and certainly not exculpatory of Talofa Video’s actions. A clearly worded notice to its employees not to accept a check drawn on an off-island bank could have easily sufficed.

Worse perhaps, Talofa Video shirked its responsibility to issue an apology. Instead of assuming accountability for its actions, Talofa Video insulted the Fous’ intelligence by its rather dismissive explanation of its actions, terming them “a misunderstanding.” First, Talofa Video seemed to suggest that its wrongdoing was Ruta’s fault for having written a check on an “off-island” bank.48 Second, Talofa Video implied that its actions were justified because of financial inconveniences associated with accepting an “off-island” check.49 Third, Talofa Video contended that its actions were reasonable because even though the Fous’ check was displayed to the public it was not displayed for the public. Moreover, Talofa Video could have easily mitigated the harm at anytime by taking the check down after it was flipped over or by refraining from telling patrons that the check was “unacceptable.”

Talofa Video then essentially dismissed the Fous’ grievance by suggesting that the Fous misconstrued its benign motives. Talofa Video excused its conduct by stating that “there was never a question of [the check’s] not being ‘good,’ only of having been off-island.” But we cannot look into the mind of Taiofa Video’s manager and neither could

48 Manager La Shi-Kai wrote “Talofa Video, like most businesses in American Samoa, does not accept off-island checks . . . . [Ruta], unfortunately, presented [an off-island] check to our employees who should not have accepted it.” Talofa Video’s letter of March 27, 1997. 49 Manager Lo Shi-Kai claimed “Talofa Video, like most businesses in American Samoa, does not accept off-island checks, the foremost reason being that they are held by the banks until they clear Stateside, often a period of several weeks.” Talofa Video’s letter of March 27, 1997.

131 the public. The court must use a reasonable person standard to assess Talofa Video’s actions. Patrons who saw the check on display would have probably have thought that the Fous’ check was returned due to insufficient funds. This is the logical conclusion, one which Talofa Video reaffirmed when telling customers who inquired that the check was displayed as an example of an “unacceptable” check. No notation was on the check referring to its “off-island” status, and it is not clear to the court that the employees themselves were sure exactly why the check was posted. Apparently, the check had been displayed for a lengthy period before an employee finally flipped it over to post telephone numbers on the backside.

Talofa Video seeks to draw the specious distinction between the check’s being displayed for the public, not to the public. Again, this excuse rings hollow. Others cannot look into a defendant’s mind to discern intent, and so we must look to an external standard to judge a defendant’s action. Even if the check was not intended “for the public,” it was still in plain view for the public to see. Even though Talofa Video claims that it “was never a question of [the check’s] having been ‘good,’” this is still the implication given.

[6] We conclude that Talofa Video’s conduct of posting the check, in conjunction with the check’s written nature and its employees stating that “the check is unacceptable,” constitutes libel.

[7-8] Since the implication was that Ruta committed a crime—the writing of a bad check—the libel per so rule applies in this case. “[A] written or printed imputation of any crime [of moral turpitude or punishable by confinement] is libelous [per se]. RESTATEMENT (SECOND) OF TORTS § 569 comment d. Even though we could easily infer harm to the Fous’ reputation, we need not be concerned with proof of actual harm.

The record is devoid of evidence of any privilege or other defense. Thus, for the reasons stated above, we conclude that Talofa Video’s actions were libelous and damage to the Fous need not be proved. We hold Talofa Video liable to the Fous for its defamatory conduct in the amount of $6,000.

Talofa Video shall pay $6,000 in damages plus actual costs suit to the Fous.

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ATLANTIC, PACIFIC, MARINE, INC., Plaintiff,

PAUL CLARKE, Defendant

CA No. 155-94

February 23, 1998

Before: KRUSE, Chief Justice, LOGOAI, Associate Judge, and ATIULAGI, Associate Judge.

Counsel: For Plaintiff, William H. Reardon For Defendant, E. Mason Martin

[1] Trial court rules should be construed liberally to effectuate service, especially when the defendant receives actual notice of the suit.

[2] For purposes of Trial Court Rule 4(d)(1), a person can have more than one dwelling house or usual place of abode.

[3] Where defendant had lived away from his usual residence for a substantial period of time prior to action being filed, aboard boat he owned and operated, and was actually residing there at time service was made, said vessel constituted a “dwelling house or usual place of abode” for purposes of T.C.R.C.P. 4(d)(1).

[4] A vessel can qualify as a dwelling house or usual place of abode.

[5] A crew member aboard a private vessel serves a gate keeping function and constitutes a person “residing therein” under Rule 4(d)(1).

[6] Where guest had spent at least one night aboard vessel and evidence suggested many more, he was properly considered “residing therein” for purposes of T.C.R.C.P. 4(d)(1).

133 [7] Where court granted motion for reconsideration, vacating order denying motion to quash service of process, court’s actions did not dismiss or alter answer previously filed by defendant, even though said answer was filed after the court’s original order on motion to quash service.

ORDER DENYING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT, DEFENDANT’S MOTIONS TO DISMISS OR QUASH SERVICE OF SUMMONS

Introduction

On February 12, 1997, the court granted defendant Paul Clarke’s (“Clarke”) motion for reconsideration on grounds that, due to family ties, the justice presiding at the trial should have disqualified himself from the case. The court had found Clarke civilly liable for breach of an at-will employment contract with plaintiff Atlantic, Pacific, Marine, Inc. (“APM”) and had awarded APM $8,665.00 in damages. In addition to granting the motion for reconsideration, the court vacated its November 8, 1994 order denying Clarke’s motion to quash service of process, and its October 24, 1996 opinion and order awarding judgment to APM.

Subsequently, on August 18, 1997, APM moved for default judgment, stating that Clarke has not answered or otherwise appeared in the action. Clarke responded, on September 12, 1997, with a motion to dismiss the complaint, or in the alternative, to quash the service of summons. Clarke claims that the service of the summons and complaint was not valid, and that the court therefore does not have jurisdiction over Clarke. The motions were heard on January 22, 1998. Both counsel were present.

Discussion

A. Defendant Clarke’s Motion to Dismiss the Complaint or Quash Service of Summons

The Marshal’s Certificate of Service indicates that the summons and complaint were served upon Clarke at his yacht, the M/V Pegasus (“the Pegasus”), in the Pago Pago Harbor, through an individual named Awry

Webb (“Webb”). The Marshal notes that Webb is a crew member of the vessel.

The issue is whether this was proper service under T.C.R.C.P. 4(d)(1), which states that service shall be made:

upon an individual other than an infant or an incompetent

134 person, by delivering a copy of the summons and of the complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.

[1] It is well settled that the trial court rules should be construed liberally to effectuate service, especially when the defendant receives actual notice of the suit. In addition, interpretation should be natural rather than artificial and each case turns upon its own factual situation. Blackhawk Heating & Plumbing Co. v. Turner, 50 F.R.D. 144, 145 (D.Ariz. 1970).

1. “Dwelling house or usual place of abode.”

[2] Cases construing “dwelling house or usual place of abode” have not come up with any “hard and fast definition.” 2 J. Moore, MOORE’S FEDERAL PRACTICE, ¶ 4.10[3.-2] at 4-162 (2d ed. 1996). “Indeed these quaint terms are now archaic and survive only in religious hymns, romantic sonnets, and unhappily, in jurisdictional statutes.” National Development Co. v. Triad Holding Corp., 930 F.2d 253, 256 (2nd Cir. 1991). Despite the lack of a clear definition and the inconsistency among jurisdictions, the modern trend is that for purposes of Rule 4(d) (1), a person can have more than one dwelling house or usual place of abode. 4A C. Wright & A. Miller, FEDERAL PRACTICE AND PROCEDURE § 1096, at 79-80 (2d. ed 1987)(“[I]n a highly mobile and affluent society, it is unrealistic to interpret Rule 4(d)(1) so that the person to be served has only one dwelling house or usual place of abode at which process may be left.”)

In National Development Co. v. Triad Holding Corp., 930 F.2d 253 (2nd Cir.), cert denied, 502 U.S. 968, 112 S.Ct. 440, 116 L.Ed.2d 459 (1991), the court held that the defendant, a citizen and domiciliary of Saudi Arabia, was properly served at his apartment complex in New York City even though he had lived there only thirty-four days of the calendar year. “[A] person can have two or more ‘dwelling houses or usual places of abode,’ provided that each contains sufficient indicia of permanence.” Id. at 257. The court noted that the defendant owned the apartment, furnished it, and spent a considerable amount of money remodeling it to fit his lifestyle. “[S]ervice there on that day was, if not the most likely method of ensuring that he received the summons and complaint, reasonably calculated to provide actual notice of the action. Surely, with so itinerant a defendant [...], plaintiff should not be expected to do more.” Id. at 258 (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)).

135 Similarly, in 131 Main Street Associates v. Manko, 897 F. Supp. 1507 (S.D.N.Y. 1995), the court found that service of process at an apartment in New York City was valid even though defendant’s presence was “episodic rather than constant.” Id. at 1524. The defendant did not own the penthouse, did not pay rent, and for 14 years had maintained a residence in Florida, at which he had spent most of his time in the previous years. Id. But, the court found, the defendant used the penthouse as his place to stay in New York City, and he visited New York City with considerable frequency and regularity during the 1980’s and 1990’s. Id. Service at the penthouse was therefore proper. The defendant’s residence in Florida did not detract from the court’s holding. “And while it is true that [defendant] had at least one long-standing residence outside of New York City, it cannot be said that the permanence [he] enjoyed at 425 E. 63rd was lessened by the fact that he enjoyed permanence elsewhere.” Id.

The defendant in In re Premium Sales Corp, 182 B.R. 349 (Bkrtcy.S.D.Fla. 1995), resided at condo units sporadically throughout the year, from one to four weeks each time. Security reports and phone records showed that defendant and his wife were residing at the condo when service was attempted. Id. at 351. The court found that based on this evidence and actual notice, the defendant’s visits to the condo units were sufficiently regular for them to constitute his dwelling house or usual place of abode. Id. The court also echoed the holding in National Development Co. that a person can have more than one dwelling house or usual place of abode where service of process may be left. Id.

[3] Clarke primarily contends that service aboard the Pegasus was not proper because his dwelling house or usual place of abode is in California. The existence of an abode in California, however, does not preclude the opportunity for Clark to have other residences which will meet the requirements of T.C.R.C.P. 4(d)(1). Clarke was away from his California residence for a substantial period before this action was filed. He lived aboard the Pegasus for at least several months while he was in American Samoa and neighboring islands. Clarke owns and operates the vessel and always has access to his living quarters there. In addition, Clarke was actually residing aboard the Pegasus, and was not in California, when service of the summons and complaint was made. These facts show that at the time process was served, the Pegasus was Clarke’s “dwelling house or usual place of abode” for purposes of T.C.R.C.P. 4(d)(1).

[4] The fact that Clarke’s living quarters were aboard a vessel, the Pegasus, and not in an apartment, penthouse, condo, or other land-based dwelling does not change our analysis. A vessel can qualify as a dwelling house or usual place of abode. In Hanna v. U.S. Lines, 151 F.

136 Supp. 122 (S.D.N.Y. 1957), the court found that a sea captain could not be served by leaving copies of the summons and complaint with the first officer of another vessel upon which the captain was temporarily present. Id. at 123. However, the court indicated that in some circumstances a vessel could qualify as a dwelling house. “Of course a situation might arise, i.e., residence upon a houseboat, or permanent residence by a so- called barge captain upon a scow, which might compel a different conclusion.” Id. Clarke’s presence upon his own vessel, the Pegasus, is a circumstance where a vessel qualifies as a dwelling house.

2. “Some person of suitable age and discretion then residing therein”

The remaining question is whether leaving copies of the summons and complaint with Webb was service upon “some person of suitable age and discretion then residing therein.” Clarke states that he picked up Webb in Fiji and gave him a ride to American Samoa aboard the Pegasus. Webb was either a crew member or a guest for this time. There is not any disagreement that Webb is “of suitable age and discretion.” APM and Clarke do disagree, however, whether Webb was “residing therein.”

[5] Although courts have at times held that service upon some non-live in employees is not proper under Rule 4(d)(1), Polo Fashions, Inc. v. B. Bowman & Co., 102 F.R.D. 905, 908 (S.D.N.Y. 1984); Franklin America Inc. v. Franklin Cast Products, 94 F.R.D. 645, 647 (E.D. Mich. 1982), courts have also held that some non-live in employees, such as doormen, can be construed as “residing therein.” See, e.g., Hartford Fire Ins. Co. v. Perinovic, 152 F.R.D. 128, 131 (N.D.Ill. 1993) (holding that the doorman of a high-security, restricted-access condominium building, authorized to receive packages and letters for residents, who received service was “residing therein” for purposes of Rule 4(d)(1)); Churchill v. Barach, 863 F. Supp. 1266, 1271 (D.Nev. 1994) (holding that leaving copies of the summons and complaint with the doorman of the defendant’s apartment building satisfied the definition of leaving them at defendant’s “usual place of abode with some person of suitable age and discretion then residing therein.”). The fact that a doorman controls access to individual dwelling places supports a finding of “residing therein.” A crew member aboard a private vessel like the Pegasus would provide a similar gate keeping function. “[W]here, as here, the process server is not permitted to proceed to the actual apartment by the doorman or some other employee, the doorman becomes all the more ‘suitable’ as a repository of the paper because he is in effect the only accessible party.” 131 Main Street Associates, 897 F. Supp. at 1525.

[6] Even if Webb was not a crew member of the Pegasus, but was merely a guest, he was properly residing therein for purposes of T.C.R.C.P. 4(d) (1). Webb was not merely visiting the Pegasus for a few hours, or even

137 the day. He spent at least one night aboard the Pegasus, and presumably many more. “Rule 4(d)(1) is broad enough to include a student returning home from college to stay at least overnight at her parents’ residence.” M. Lowenstein & Sons, Inc. v. Austin, 430 F. Supp. 844, 845 (S.D.N.Y. 1977).

A liberal, but natural and not artificial construction of T.C.R.C.P. 4(d)(1) provides that Clarke received proper service of the summons and complaint. Service of Clarke upon his vessel the Pegasus, through Awry Webb meets the “dwelling house or usual place of abode” and “some person of suitable age and discretion then residing therein” requirements of T.C.R.C.P. 4(d)(1).

B. Plaintiff APM’s Motion for Default Judgment

[7] APM is incorrect in stating that Clarke has not answered or otherwise appeared in the action. APM filed a complaint against Clarke on August 22, 1994 and Clarke filed an answer and counterclaim on November 15, 1994. When the court granted Clarke’s motion for reconsideration of the trial opinion, it vacated both its opinion and order awarding judgment to APM and its order denying the motion to quash service of process. The court did not dismiss or otherwise alter Clarke’s answer and counterclaim, even though they were filed after the court’s order denying the motion to quash service of process.

The vacated orders allow the parties to visit anew the issue of valid service of process, and to retry the causes of action, but other aspects of the case remain as originally presented. Cf. Marmon v. Hodny, 287 N.W.2d 470, 479 (N.D. 1980) (holding that local civil practice Rule 26, based on F.R.Civ.P. 26, “does not contemplate de novo discovery at retrials, trials anew, or new trials” except as to whether certain material will be omitted or new material will be presented at the trial).

The motion for default judgment is therefore denied.

1. APM’s motion for default judgment is denied. 2. Clarke’s motion to dismiss the complaint or in the alternative to quash service of process is denied.

It is so ordered.

**********

138 TAGAIMAMAO MASANIA`I, Plaintiff,

APOUA AND BILL TEDRICK d.b.a. THE COUNTRY CLUB, ASUELU TIUMALU, SAMOA ALEFOSIO and ROBERT FAIRHOLT, Defendants.

CA No. 121-95

March 4, 1998

[1] Where different defendants each played a role in the harm suffered by the plaintiff, but the conduct of the defendants was not jointly linked, and the harm is not indivisible and the tortfeasors were not acting in concert as part of one inextricable, continuous act, the strictures of joint and several liability do not apply.

[2] Where it is possible to apportion liability, the need to invoke joint and several liability is negated.

[3] A.S.C.A. § 43.5101 abolishes the contributory negligence bar to recovery, but because it is silent on the appropriate application of the principles of joint and several liability or comparative fault in a multiple tortfeasor situation, the court must decide on the proper standard to apply.

[4] Where it is possible to estimate and assign fault, it is a more equitable and fitting approach than automatically deeming liability “joint and several.”

[5] A.S.C.A. § 27.0531(f) was enacted to make establishments that directly benefit financially from the consumption of alcohol accountable to the public, but it was not intended to unfairly penalize businesses, and it is unfair to invoke joint and several liability where it is possible to apportion fault to the parties involved.

[6] Operationally, A.S.C.A. § 43.5101 functions as a comparative fault mechanism, and this court has previously affirmed the doctrine of comparative fault in our jurisdiction.

139 [7] Where a party timely submits a motion for new trial on grounds that the court abused its discretion in an evidentiary finding, but fails to timely file its brief and arguments, the motion will not be considered.

Before: KRUSE, Chief Justice, TIUANU`U, Chief Associate Judge, and SAGAPOLUTELE, Associate Justice

Counsel: For Plaintiff, Jennifer L. Joneson For Defendants Apoua and Bill Tendrick d.b.a. The Country Club, Mason Martin

ORDER DENYING MOTION FOR A NEW TRIAL

Introduction

Masania`i sued Bill and Apoua Tedrick d.b.a. the Country Club (referred to jointly as the “Country Club”) and Asuelu Tiumalu (“Tiumalu”) and Samoa Alefosio (“Alefosio”) to recover the damages suffered on the evening of February 24, 1994. A contested trial was held with counsel for both sides present. On January 9, 1998, we found that the Country Club breached its statutory duty to refuse to allow admittance to an intoxicated individual, thereby violating A.S.C.A. § 27.0531(f). We also found Tiumalu and Aiefosio liable for battery.

We found the Country Club liable for 25 percent of the damages as follows: $79,499 for future wages and $25,000.00 for pain and suffering. Total damages accorded these defendants were $104,499.

We ordered Alefosio and Tiumalu jointly and severally liable for 50 percent of all damages as follows: $158,997 for future earnings, $50,000 for general damages including pain and suffering and $100,000 in punitive damages. Total damages accorded these defendants were $308,997.

On January 20, 1998, Masania`i brought a motion for a new trial, arguing that the court mistakenly neglected to apply joint and several liability to all defendants. On January 18, 1998, the Country Club also brought a motion for a new trial, alleging that insufficient evidence existed for the court’s finding that the Country Club breached its statutory duty under A.S.C.A. § 27.0531(f).

Discussion

A. Apportionment of Fault and Liability

The first issue presented to us by plaintiff deals with the apportionment of fault and liability. Plaintiff argues that “but for his admittance onto the

140 premises of the Country Club, he would not have been hurt”—and, therefore, joint and several liability should apply. Plaintiff posited an alternative argument—that “it is impossible to say how much damage is apportioned to which actor.” (Oral Argument, February 17, 1998.)

[1-2] We find that although each actor may have played a role in the harm suffered by Masaniaì, the conduct of each was not jointly linked. Masaniaì would not have been hurt had he not been out there seeking and inciting trouble. But, on the other hand, he would not have suffered had others, including Tiumalu and Alefosio, not acted on their compulsions, conduct which served as the supervening cause of his harm. These actions serve as disparate links in the harm suffered by Masaniaì and these parties did not act in concert as part of one inextricable, continuous act. We, therefore, do not believe that they fall within the intended strictures of joint and several liability, a remedy which is invoked when the harm is considered indivisible or the tortfeasors were acting in concert.50 We also believe that it is possible to apportion liability in this case, a fact which negates the need to invoke joint and several liability. This court has apportioned damages in the past and believes that the allocation of fault is fitting here.

[3] Legislatures enacted comparative liability statutes for a simple reason: to eliminate the harsh result of the complete bar to recovery that would result when the plaintiff himself may have been partially at fault.

This statutory and judicial51 departure to the common law served to achieve greater fairness in situations in which even the most minor contributory negligence may have barred any sort of recovery. By enacting A.S.C.A. § 43.5101, the Fono clearly abolishes the contributory negligence bar to recovery, but remains silent on the appropriate application of the principles of joint and several liability or comparative fault in a multiple tortfeasor situation. The court, therefore, must decide on the proper standard to apply.

In the past, we have diverged from strictly adhering to the common-law

50 See W. PROSSER AND F. KEETON ON THE LAW OF TORTS, Fifth Edition, St. Paul: West Publishing, 459 (1984); RESTATEMENT (SECOND) OF TORTS § 875, “Contributing Tortfeasors—General Rule” and § 876 “Persons Acting in Concert (1979); United Airlines Employee Credit Union v. M/V Sans End, 15 A.S.R.2d 95, 106 (1990); Saufo`i v. American Samoan Gov’t, et al., 14 A.S.R.2d 15 (1990); aff’d 19 A.S.R.2d 54 (App. Div. 1991); Interocean Ships, Inc. v. Samoa Gases, 23 A.S.R.2d 76; Cf. Eute v. Etimani, 24 A.S.R.2d 139 (1993). 51 See e.g. Bradley v. Appalachian Power Company, 256 S.E. 2d 879 (W.Va. 1919).

141 rule of joint and several liability when we find it is possible to ascertain and allot comparative liability to the parties involved.52 While it is true that this course is one that only a minority of jurisdictions have adopted, we feel it the most just position to take. And moreover it is under our purview to adopt this albeit minority position, but one which marks the emerging trend in the common law.

The fundamental goals of fairness and equity underlied the Fono’s statutory divergence from the common law and they similarly motivate us here. Oliver Wendell Holmes observed, “The law should be stable, but should never stand still.”

[4-5] Just as comparative negligence is a more equitable outcome than contributory negligence, so is the apportionment of liability according to fault. If it is possible to estimate and assign fault, this would be a more equitable and fitting approach than automatically deeming liability “joint and several.”53

Moreover, we disagree with plaintiff’s argument that we should diverge from the common law in one instance (i.e. to grant him relief notwithstanding his own contribution to his injuries) and invoke the common law in another (i.e. to grant joint and several liability to all defendants) for ostensibly no reason other than to afford him the greatest award of damages. We can come to no other conclusion since the rationale and logic underlying these arguments counter, and thus negate, each other.

Abrogating the harshness of contributory negligence doctrine was the intention of the Fono when they passed A.S.C.A. § 43.5101. This statutory modification served as a legal departure from the common law that more equitably apportioned liability according to culpability. Although not explicitly stated in the statute, this statute operationally functions as a comparative fault mechanism.

[6] This court has previously affirmed the doctrine of comparative fault in our jurisdiction. In United Airlines Employee Credit Union v. M/V

52 See supra note 1. 53 The Fono enacted statute A.S.C.A. § 27.0531(f) to make those establishments that directly benefit financially from the consumption of alcohol accountable to the public. Along with profit and gain come social and legal responsibility, especially in an area that carries such a high potential for harm. But this statute was not intended to unfairly penalize businesses. It would be unfair to invoke joint and several liability when we find it is possible to apportion fault to the parties involved. The Country Club should not be made to bear the burden of damages alone in the event that indemnification is not possible.

142 Sans End, 15 A.S.R.2d 95, 106 (1990), the court relied upon the rule enunciated by the United States Supreme Court: “liability for such damage is to be allocated among the parties proportionately to the comparative degree of their fault.” United States v. Reliable Transfer Co., 421 U.S. 397, 411 (1975). See also Hercules, Inc. v. Stevens Shipping Co., 765 F.2d 1069, 1075 (11th Cir. 1985) (in which the court refused to allow the doctrines of intervening negligence and last clear chance to circumvent the concept of proportional fault).54

In Saufo`i v. American Samoan Gov’t, 14 A.S.R.2d 15 (1990); aff’d 19 A.S.R.2d 54 (App. Div. 1991), the court found plaintiffs themselves liable for a portion of the damages and allocated a percentage of the damages to each of the parties involved. Id. at 20. The court in Interocean Ships, Inc. v. Samoa Gases, 23 A.S.R.2d 76, also relied upon the comparative fault doctrine. Cf. Euta v. Etimani, 24 AS.R.2d 139 (1993).

For the aforementioned reasons, we find that the Country Club should not be held jointly and severally liable. This court is not prepared to allow plaintiff to escape all blame for his own conduct under the cloak of this doctrine.

B. Untimely Filing

[7] Second, the Country Club seeks a new trial on grounds that the court abused its discretion in finding that Masania`i was intoxicated when he was allowed entry onto the club’s premises. Unfortunately, although defendant submitted this motion in a timely manner, it failed to meet the deadline for the submission of its brief and arguments. As a result, we decline to consider defendant’s motion on procedural grounds.55 Our order and opinion with respect to this second issue stands without modification.

54 The Hercules court ruled that: Under a “proportional fault” system . . . complete apportionment between the negligent parties, based on their respective degree of fault, is the proper method for calculating and awarding damages.

55 We note, however, that a great amount of evidence was presented to the court to show that Masania`i was intoxicated when he entered the Country Club, We carefully weighed the evidence and found that the Country Club breached its statutory duty, under A.S.C.A. § 27.0531(f), to refrain from allowing intoxicated patrons onto the premises. (See Masaniai v. The Country Club, 2 A.S.R.3d 120, 128 which reads, “Masania`i voluntarily consumed an inordinate amount of alcohol.”)

143 Conclusion

Both plaintiff’s and defendant’s motions for a new trial are denied.

It is so ordered,

**********

MSM VILLAGE STORE, Plaintiff

GMP ASSOCIATES, INC., Defendant

CA No. 69-97

April 14, 1998

[1] To constitute a valid contract, there must be an offer, acceptance, and consideration.

[2] A valid contract requires mutual assent, whether subjective, or objective.

[3] Where plaintiff alleged an oral contract for services, but did not provide sufficient evidence of when the agreement was formed, by whom it was formed, what promises were made, what performance was required, or what the mutual understanding was between the parties, Court found that no legal contract existed.

144 [4] The court can find an implied contract from the conduct of the parties.

[5] An implied contract has the same requirements as an express contract, including mutual assent.

[6] Where express agency contract existed between defendant and party closely related to plaintiff, covering same type of service which was the subject of the unproven but alleged contract, payments made by defendant were not considered evidence of the alleged agreement.

[7] Where evidence was clear that services had been provided benefiting defendant, plaintiff was entitled to recover the reasonable value of such services based upon the doctrine of quantum meruit.

Before RICHMOND, Associate Justice, AFUOLA, Associate Judge, and LOGOAI, Associate Judge.

Counsel: For Plaintiff, Katopau T. Ainu`u For Defendant, Aumoeualogo S. Salanoa OPINION AND ORDER

On June 9, 1997, plaintiff MSM Village Store (“MSN”) filed a complaint against GMP Associates, Inc. (“GMP”) seeking payment of $7,000. MSM claims this is the remaining balance on a verbal agreement whereby MSM rendered services for GMP in acquiring a government contract. GMP filed an answer on June 20, 1997, stating that it has not had any contractual relationship with MSM, and that it does not owe any money to MSM. This matter came to trial on February 3, 1998.

Discussion

A. Contract between MSM and GMP

The evidence does not support the finding of a contract between MSM and GMP. GMP, a Hawaii corporation, performed work in American Samoa on an airport resurfacing project in 1996. MSM claims that there was an oral contract between itself and GMP whereby GMP would pay MSM a finder’s fee and charges for other services in connection with the airport project (“services contract”). The amount of the airport project was $120,000, and MSM claims that its compensation under the alleged services contract was $20,000. MSM states that $13,000 of this compensation has been paid and seeks payment for the remaining $7,000.

145 [1-2] MSM provides no evidence that would lead us to believe a services contract was formed between MSM and GMP. “To constitute a valid contract, there must be offer, acceptance, and consideration.” Bernston v. Cheney, 815 F. Supp. 1145, 1147 (N.D. Ill. 1993). There also must be mutual assent, whether subjective, see, e.g., Beck v. Reynolds, 903 P.2d 317, 319 (Okl. 1995) (“In order to have a valid contract there must be mutual consent, or a meeting of the minds.”), or objective, see, e.g., City of Canby v. Rinkes, 902 P.2d 605, 610 (Or. App. 1995) (holding that the objective theory of contract does not depend on whether “minds met,” but “whether the parties agreed to the same, express terms of the agreement, and on whether those terms constitute an enforceable agreement.”).

[3] There is no written agreement which shows these contractual elements. MSM claims an oral contract, but does not provide sufficient evidence of when that agreement was formed, by whom it was formed, what promises were made, what performance was required, or what the mutual understanding was between the parties. MSM does present an invoice containing the finder’s fee amount and amounts for other services, but the invoice was prepared after initiation of this lawsuit. MSM and GMP had neither a “meeting of the minds” nor an agreement to the same express terms. We find, therefore, that there was no express oral services contract between MSM and GMP.

[4-5] It is possible for the court to find an implied contract from the conduct of the parties. Ginsu Products, Inc. v. Dart Industries, Inc., 786 F.2d 260, 265 (7th Cir. 1986). However, an implied contract still has the same requirements as an express contract, including mutual agreement. Matter of Penn Cent. Transp. Co., 831 F.2d 1221, 1228 (3rd Cir. 1987) (“An implied-in-fact contract is a true contract arising from mutual agreement and intent to promise, but where the agreement and promise have not been verbally expressed. The agreement is inferred from the conduct of the parties. The elements necessary to form an implied-in- fact contract are identical to those required for an express agreement.”); Dr. Franklin Perkins School v. Freeman, 741 F.2d 1503, 1515 (7th Cir. 1984) (quoting In re D. Federico Co., Inc., 8 B.R. 888, 897 (Bankr. ID. Mass. 1981)). MSM has shown that they provided office space, janitorial services, truck rental, license renewal, phone and fax services, and store advances to GMP. These activities show that there was regular interaction between the parties for some period of time. These activities, however, do not satisfy the elements required for a contract and do not provide evidence of a mutual agreement. Therefore, there is no implied services contract between MSM and GMP.

[6] MSM claims that GMP has already paid $13,000 of the $20,000 services contract. Payments made by GMP are not, however, evidence of such a services contract. In December of 1995, GMP and Moru Mane

146 (“Moru”), doing business as MYL Incorporated, entered into a written agency contract. Sallie S. Mane is the licensee doing business as MSM and is Moru’s wife. Under the agency contract, Moru was to perform certain services for GMP for compensation of $1,000.00 per month, including following up, with new requests for proposals or other contract procurement of the American Samoa Government. GMP presented evidence of payments they made to Moru. GMP paid Moru $5,000 on November 11, 1996, and $2,000 on November 22, 1996. We believe these payments and the remainder of the $13,000 that MSM claims was paid under an oral contract were actually payments to Moru under the written agency contract. The payments, therefore, do not provide evidence of a contract for a finder’s fee or other services between MSM and GMP. There is an express agency contract between GMP and Moru covering activities that would be performed in a finder’s fee arrangement. It is therefore unlikely that an implied contract covering the same subject exists between GMP and MSM. See Matter of Penn Cent., 831 F.2d at 1229-30.

B. Quantum Meruit Recovery

[7] Even though no services contract was formed, MSM is entitled to quantum meruit recovery for the benefits they conferred upon GMP. See, e.g., Fealofa`i v. Reid, 14 A.S.R.2d 57, 60 (Trial Div. 1990) (finding ‘that if a lease did not amount to a binding agreement, each party would nevertheless be entitled to quantum meruit recovery for any benefits conferred upon’ the other party); Hardco Inc. v. Lutali, 14 A.S.R.2d 1, 12 (Trial Div. 1990) (holding that where parties did not attempt to reach agreement on the price of modifications to a building under construction, there was no contract and the court must apply the doctrine of quantum meruit to award the contractor the value of the benefit conferred on the buyer). It is evident that MSM provided office space, janitorial services, truck rental, license renewal, phone and fax services, and store advances to GMP. MSM is therefore entitled to recover the reasonable value of these services.

Evidence at trial showed that GMP used MSM’s premises for approximately five months, May to September 1996. MSM’s statement of September 23, 1996, provides a reasonable basis for calculating the reasonable value of the services provided by MSM to GMP during this five-month period. These services and their monthly value in the September 23 statement include office space and janitorial services— $550, telephone and fax charges—$331.40, and store advances— $157.98, a total of $1,039.38. This total amount multiplied by five months equals $5,196.90, which is a reasonable total valuation for these

147 services. MSM is also entitled to recover the value of providing a truck rental for two days—$100, and reimbursement for payment of the renewal fee for GMP’s 1996 business license—$25. The total reasonable value of the services MSM conferred on GMP, under the evidence, is, then, $5,321.90. MSM is therefore entitled to judgment against GMP in the amount of $5,32l.190.

1. No oral contract, either express or implied, exists between MSM and GMP. MSM recovers nothing against GMP on a contractual basis.

2. MSM has conferred services of value upon GMP and is entitled to recover the reasonable value of these services under a theory of quantum meruit. MSM recovers damages of $5,321.90 against GMP on a quantum meruit basis, costs of suit, and post-judgment interest at the rate of 6% per annum on the total amount of the damages and costs. Each party shall pay their own attorney’s fees.

Judgment shall enter accordingly. It is so ordered. RUTA FOU and TOGAIIA FOU, Plaintiffs,

TALOFA, INC. dba TALOFA VIDEO, Defendant.

CA No. 62-97

June 26, 1998

[1] Under A.S.C.A. § 43.5202(3), a communication published without malice is conditionally privileged when the publisher reasonably believes that the defamatory matter communicated affects a sufficiently important interest of the publisher and the recipient’s knowledge of this information serves to lawfully protect the publisher’s interest.

[2] The conditional privilege provided under A.S.C.A. § 43.5202(3) is lost if the publisher abuses the privilege.

[3] Article I, § 1 of the Revised Constitution of American Samoa has the same free speech and press provisions as in the First Amendment to the United States Constitution, under which there can be no liability without fault on the publisher of defamatory matter injurious to a private person.

148 [4] The posting of a check only to employees serves legitimate business purposes and is conditionally privileged under A.S.C.A. § 43.5202(3), and the immunity from liability continues when the check is publicly displayed unless the conditional privilege is lost through malicious abuse, and malice is present when a publisher either knows that the published matter is false and defamatory or acts in reckless disregard as to its truth or falsity.

[5] A business loses its conditional privilege as a publisher under A.S.C.A. § 43.5202(3) when it is not necessary to publicly post a check to convey to employees an off-island bank policy, and, without justification, fails to return the check to a hidden position and ignores the consequences of the public display; such actions manifest a reckless disregard of the truth or falsity of the defamatory character of the publicly posted check.

[6] Where a publicly displayed check clearly imparts that the idea that the person had passed a bad check, a criminal act, the posted check is libelous while visible to the public, and is actionable per se without proof of actual damages under the common law applicable in situations involving private concerns of a defamed private person.

[7] Under A.S.C.A. § 43.0802(a), a motion for new trial must be filed within 10 days after the announcement of the judgment, and a late filing is not excused on the ground that the meaning of the judgment was not made clear until later.

[8] Under A.S.C.A. § 43.0101, the “costs” of a suit usually includes filing fees, process and other service fees, and similar costs which are fixed by law and are necessarily paid to the court or its officers, and a prevailing party is entitled to recover costs as a matter of course, in the absence of a different provision by statute, court rule, or court order.

[9] Recovery of attorney’s fees and recovery of costs of suit are unrelated issues; in the absence of a contractual, statutory, or other legal basis, attorney’s fees are not recoverable - the usual rule is that each party bears its own burden of this expense.

[10] Although defamation law is relatively complex, where the fact situation is simple, and the prospective damages are not monetarily great, charging defamation plaintiffs an hourly rate, in place of the usual one-third contingent fee arrangement in a tort action, can result in fee calculations substantially overstated in value.

[11] Simply because a business is reasonably successful, it is not necessarily appropriate to apply a “deep-pocket” theory of recovery, and

149 it is appropriate to consider that the injury to the plaintiffs’ reputation and their consequential emotional distress is not lasting.

Counsel: For Plaintiffs, Katopau T. Ainu`u For Defendant, Aitofele T. Sunia

ORDER DENYING EACH PARTY’S MOTION FOR RECONSIDERATION OR NEW TRIAL

Plaintiffs Ruta Fou (“Ruta”) and Togaiia Fou (collectively “the Fous”) brought suit against defendant Table, Inc. dba Talofa Video (“Talofa Video”) for defamation in connection with posting a copy of the Fous’ check at Talofa Video’s place of business. The trial was held on October 24, 1997 with counsel for both sides present. On February 9, 1998, we held Talofa Video liable for defamation by libel and awarded the Fous $6,000 in damages, plus ‘actual costs of suit.”

On February 19, 1998, Talofa Video timely moved for reconsideration or new trial. This motion was heard on March 23, 1998. On March 2, 1998, the Fous’ counsel flied an affidavit setting forth $4,072.50 in attorney’s fees as the Fous’ claim for “actual costs of suit.” We advised the Fous’ counsel at the March 23 hearing that “actual costs of suit” does not include attorney’s fees. On March 25, 1998, the Fous moved for reconsideration or new trial on the issues of recovering their attorney’s fees and the adequacy of the damages awarded to them.

Discussion

A. Talofa Video’s Motion

Talofa Video essentially raises three issues in its motion. First, it maintains that two of the court’s factual findings are against the weight of the evidence: (a) that the posted check was publicly displayed and (b) that the posted check conveyed a bad check message. Second, it claims that the posted check was a privileged communication. Third, it argues that, in any event, the posted check could not be libel per se, and the Fous must therefore prove special damages.

1. Fact Findings a. Public Display

Talofa Video claims that the check was continuously posted at a location outside of the view of anyone except its employees. It attacks the

150 credibility of the Fous’ witness, the customer who testified that she saw the check in plain view at Talofa Video’s store. We found that by the action of one of Talofa Video’s employees, the Fous’ check became visible to the general public as well as to Talofa Video’s employees. We made this finding after carefully weighing all the testimony, including the customer’s demeanor while testifying, and other evidence. We are not now persuaded in any degree to change this finding. b. Bad Check Message

Talofa Video insists that even if an employee told the testifying customer that the check was unacceptable,56 the Fous’ check was not necessarily unacceptable as a bad check (a check passed without sufficient funds or without an account). However, the customer, a storekeeper herself, testified that bad checks are commonly posted by retail stores in American Samoa to remind sales clerks not to accept any more checks from the drawers, and that she thought the Fous’ check was a bad check when she saw it. The bad check perception is clear under the evidence, with or without the employee’s unacceptability statement. We stand by this finding.

2. Privilege

Originally, we summarily concluded that the evidence did not present any genuine privilege issue. While Talofa Video did little, if anything, to advance and develop the privilege issue during the trial, we will address it in appropriate depth now.

Talofa Video asserts that the posted check was a privileged communication under A.S.C.A. § 43.5202, which in relevant part reads:

A privileged publication is one made: (3) in a communication without malice to a person interest[ed] therein by one who is also interested or by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication [is] innocent or who is requested by the person interested to give the information;

Talofa Video argues that it posted the Fous’ check as a business management measure to inform its employees of its policy not to accept checks drawn on banks in business outside of American Samoa. It

56 Talofa Video also suggests that this employee’s statement is inadmissible hearsay. Talofa Video did not object to this evidence at the trial. Moreover, the statement was not offered for the truth of the matter asserted and thus is not hearsay. See T.C.R.Ev. 801(c).

151 claims that the posting for this purpose was a conditionally privileged communication under § 43.5202(3) and thus was exempted from defamation liability.

[1-2] Under the concept enunciated by § 43.5202(3), a communication published without malice is conditionally privileged when the publisher reasonably believes that the defamatory matter communicated affects a sufficiently important interest of the publisher and the recipient’s knowledge of this information serves to lawfully protect the publisher’s interest. See RESTATEMENT (SECOND) OF TORTS § 594 (1977). The common law used the conditional privilege as a means of “balancing the interest of the defamed person in the protection of his reputation against the interests of the publisher, of third persons and of the public in having the publication take place.” Id. § 594 cmt. b. The conditional privilege is lost if the publisher abused the privilege. Id. § 599.

[3] The law concerning conditional privilege abuse in cases of defamation of private persons was dramatically impacted by Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L.Ed.2d 789 (1974). Essentially, the Supreme Court held that under the provisions protecting free speech and press in the First Amendment to the United States Constitution, the states cannot impose liability without fault on the publisher of defamatory matter injurious to a private person. Id., 418 U.S. at 344, 94 S. Ct. at 3009, 41 L.Ed.2d at 809. Article I, § 1 of the Revised Constitution of American Samoa has the same free speech and press provisions.

We conclude that the later posting of the Fous’ check in public view was not privileged. Members of the public were not among the particular recipients of information who needed to know Talofa Video’s off-island check policy. The public’s knowledge of a check conveying the appearances of a bad check did not protect Talofa Video’s licit interests. See discussion in RESTATEMENT (SECOND) OF TORTS Chapter 25, Topic 3, Special Note on Conditional Privileges and the Constitutional Requirement of Fault.

[4] We agree, however, that the initial posting of the Fous’s check to only Talofa Video’s employees served its legitimate business purposes and was conditionally privileged at that point under A.S.C.A. § 43.5202(3). Assuming for discussion that the privilege continued when the check was publicly displayed because the off-island check policy was still conveyed to the employees, Talofa Video remained immune from liability unless the conditional privilege was lost through malicious abuse.

Gertz defined malice as present when the publisher either knows that the published matter is false and defamatory or acts in reckless disregard as

152 to its truth or falsity. Id., 418 U.S. at 330-32, 94 S. Ct. at 3002, 41 L.Ed.2d at 799-801. The RESTATEMENT adopts this standard of malice as the level of abuse resulting in loss of the conditional privilege. RESTATEMENT (SECOND) OF TORTS § 600. We will apply the same standard in the present case.

[5] It was not necessary to post the check to convey Talofa Video’s off- island check policy to its employees. The employees could have been easily instructed on this policy by either an oral or written directive. The check could have been displayed with an appended notation of this policy. Talofa Video’s ill-advised action was manifested when the check became public information. Talofa Video failed, without showing any justification, to return the check to its hidden position and ignored the consequences of the public display. In sum, at the very least, Talofa Video acted in reckless disregard of the truth or falsity of the defamatory character of the publicly posted check.

Therefore, we further conclude that Talofa Video lost the benefit of any conditional privilege that may have been afforded by A.S.C.A. § 43.5202(3) through its malicious conduct.

3. Damages

[6] Talofa Video declares that the posted check did not imply that Ruta had committed a criminal act and, thus, the defamatory act, if any, was not libel per se. This argument is without merit. While it was publicly displayed, the posted check clearly imparted the idea that Ruta had passed a bad check, a criminal act under the laws of American Samoa. A.S.C.A. § 46.4118. We applied the common law correctly in our initial discussion. Thus, the posted check was libelous while it was visible to the general public and was actionable per se without proof of actual damages. RESTATEMENT (SECOND) OF TORTS § 569. The Supreme Court preserved the common law in situations, like the present one, involving private concerns of a defamed private person. Dun & Bradstreet, 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985).

Accordingly, Talofa Video’s motion for reconsideration or new trial will be denied.

B. The Fous’ Motion

The Fous address two issues in their motion. First, they assert that the court erred because the Fous’ recovery did not include their attorney’s fees. Second, they claim that the $6,000 awarded as damages for the harm to their reputation and their emotional distress was not adequate compensation. A threshold question on the timeliness of the Fous’ motion is also present.

153 1. Timeliness of the Motion

[7] The Fous’ motion was filed on March 25, 1998, 44 days after the court’s opinion and order was entered on February 9, 1998. A motion for a new trial must be filed within 10 days after the announcement of the judgment. A.S.C.A. § 43.0802(a). The Fous seek to excuse the late filing of their motion, claiming that the meaning of the court’s award of “$6,000 in damages plus actual costs of suit” on February 9 was not made clear to them until the hearing on Talofa Video’s motion for reconsideration or new trial on March 23, 1998.

We will discuss this excuse further and other aspects of the Fous’ motion below to edify the parties. However, we hold here that this excuse is without merit, and that the Fous’ motion was filed untimely. The Fous’ motion will, therefore, be denied on this jurisdictional point alone.

2. Costs of Suit and Attorney’s Fees

[8] “Costs of suit,” “court costs,” and “costs” are exchangeable terms which are specific and narrow in scope. Usual costs include filing fees, process and other service fees, and similar costs which are fixed by law and are necessarily paid to the court or its officers. A.S.C.A. § 43.0101. A prevailing party is entitled to recover costs as a matter of course, in the absence of a different provision by statute, court rule, or court order. T.C.R.C.P. 54(d). The modifier “actual” does not in any sense expand the scope either of the meaning of these terms or of the recoupment of costs.

[9] Recovery of attorney’s fees and recovery of costs of suit are separate and unrelated issues. The usual rule on attorney’s fees is that each party bears the burden of this expense. See Samoa v. Gibbons, 3 A.S.R.2d 121, 123 (Trial Div. 1986). In the absence of a contractual, statutory, or other legal basis, attorney’s fees are not recoverable. See Samoa Products, Inc. v. Pereira, 3 A.S.R.2d 45, 46 (Trial Div. 1986); Black’s Law Dictionary 312 (5th ed. 1979). American Samoa has not allowed reimbursement of attorney’s fees in defamation actions by statute. The Fous have neither pled nor proven any other legal basis to obligate Talofa Video to pay this litigation expense.

[10] The Fous’ counsel must have known, or certainly should have known, these elemental precepts of costs and attorney’s fees when he undertook the Fous’ representation.57

57 Attorney’s fees in this case are a matter of agreement between the Fous and their counsel at this point. However, we have several criticisms about the detailed statement of the attorney’s fees filed by

154 3. Adequacy of the Damages

[11] We have taken another look at the $6,000 in damages that we initially awarded the Fous. We do not agree with the Fous’ contention that this is an appropriate case for application of a “deep-pocket” theory of recovery simply because Talofa Video is a reasonably successful business. We believe that the injury to the Fous’ reputation and their consequential emotional distress is not lasting. The $6,000 awarded is an adequate measure of the damages, both compensatory and exemplary, and will not be modified.

1. Talofa Video’s motion for reconsideration or new trial is denied

2. The Fous’ motion for reconsideration or new trial is also denied.

It is so ordered

**********

AMERICAN SAMOA GOVERNMENT, Petitioner,

AMERICAN SAMOA WORKMEN'S COMPENSATION COMMISSION, Respondent ______

LAFULAFU LEMAPU, Real Party in Interest.

CA No. 25-98

July 10, 1998

[1] A.S.C.A. § 7.1441(c)(2) unambiguously proscribes the payment of early retirement benefits together with the payment of worker's compensation benefits (double dipping) brought on by same disabling condition at work.

155 [2] Where a disabled employee continues to receive retirement benefits, and there is a substantial likelihood that petitioner will prevail on the merits, and there is likelihood of great injury to the petitioner, a preliminary injunction against payment of permanent disability benefits is warranted under A.S.C.A. § 43.1301(j), while payments are continued to be paid into the registry of the Court.

Before KRUSE, Chief Justice, LOGOAI, Associate Judge, and ATIULAGI, Associate Judge.

Counsel: For Petitioner, Elvis R. P. Patea, Assistant Attorney General For Respondent, Mason Martin For Real Party in Interest, Afoa L. Su`esu`e Lutu

ORDER GRANTING PETITIONER'S MOTION FOR INTERLOCUTORY INJUNCTIVE RELIEF

Introduction

On February 10, 1998, the American Samoa Workmen's Compensation Commission (“Commission”) ordered the American Samoa Government (“ASG”) to pay Lafulafu Lemapu (“Lemapu”) worker's compensation total permanent disability benefits in addition to the retirement benefits he already receives. ASG, in its role as employer, filed for judicial review, by way of injunctive relief pursuant to A.S.C.A. § 32.0652, seeking to enjoin the continuation of Lemapu's worker's compensation benefits. Additionally, ASG petitions, apparently on behalf of the ASG retirement office, declaratory relief under A.S.C.A. § 7.1441(c), seeking

156 reimbursement of the retirement benefits Lemapu has already received.58

Discussion

In these matters we are guided by A.S.C.A. § 43.1301(j). For the issuance of a preliminary injunction, this enactment requires a showing that (1) a substantial likelihood that the applicant will prevail at the trial on the merits and that a permanent injunction will be issued; and that (2) the applicant will suffer great or irreparable injury before a full and final hearing on the application for a permanent injunction can be held regarding.

Petitioner contends that Lemapu's attempt at “double dipping” from the coffers of the ASG Retirement Fund and the Workmen's Compensation Fund is impermissible. The Commission on the other hand argues the absence of “double dipping” because retirement benefits and compensation benefits are separately based and, therefore, not duplicative. That is, retirement benefits compensate “service to government” while worker's compensation benefits compensate “inability to work.”

The Commission's contention finds support in a number of cases that have upheld double recovery of worker's compensation benefits with non-disability benefits. For example, in Rhodus v. American Employers Ins. Co., 9 So.2d 821, 825 (La. 1942), the court upheld a claimant's right to both pension benefits and his worker's compensation award resulting from the same injury, on the reasoning that no connection exists between the entitlements. Similarly, a California case, Todd Shipyards Corp. v. Landy, 239 F.Supp. 679, 680 (Calif. 1965), held that the receipt of benefits under the Longshoremen's and Harbor Worker's Compensation Act for the period during which the claimant received California state unemployment compensation benefits did not constitute illegal double recovery. See Longshoremen and Harbor Worker's Compensation Act § 1 et seq., 33 U.S.C.A. § 901 et seq. The Landy court predicated its decision on the plaintiff's failure to show that Congress intended the federal Worker's Compensation Act to be read in conjunction with state unemployment acts.

[1] Here, however, the Fono has unambiguously proscribed the payment of early retirement benefits together with the payment of worker's compensation benefits brought on by some disabling condition at work. The American Samoa Government Employees Retirement Act, A.S.C.A. § 7.1441(c)(2), reads in relevant part:

A member [of the American Samoa Government Employees' Retirement Fund] who has not attained his early retirement date and who has contributed to the fund for at least 5 years may be

157 separated and entitled to immediate unreduced retirement annuity . . . provided, the member is not eligible for workmen's compensation for the condition causing the separation.

[Emphasis added.] Quite clearly then, the opportunity for “double dipping” exists here. We are not persuaded with a suggestion that the Workmen's Compensation Act need not be implemented harmoniously with the Retirement Act. Accordingly, we are not impressed with the submission from both the Commission and the Real Party in Interest that we must focus, myopically, on the provisions of the American Samoa Workmen's Compensation Act alone. The logical extension of this argument is that we not only ignore the clear legislative “double dipping” proscription enunciated in the Retirement Act, but that we disregard altogether any rights that the retirement office might have to intervene.

[2] In terms then of A.S.C.A. § 43.1301(j), we conclude (1) a substantial likelihood that the ASG will prevail on the merits; and (2) the likelihood of great injury to ASG, or more precisely to the ASG retirement office, if provisional and interlocutory relief is not made available to petitioner. As we understand it, the Real Party In Interest continues to receive retirement benefits pending final disposition hereof. Therefore, the urgency for an immediate award of compensation to a disabled employee is greatly alleviated here.

The motion for preliminary injunction is granted. The payment of permanent disability benefits to the Real Party In Interest is stayed, but shall continue to be paid by ASG into the registry of the Court.

It is so ordered.

********** MEAFATU ALA, Plaintiff,

AMERICAN SAMOA GOVERNMENT, Defendant

CA No. 133-95

August 18, 1998

Before RICHMOND, Associate Justice, and LOGOAI, Associate Judge.

158 Counsel: For Plaintiff, Jennifer L. Joneson For Defendant, Gwen F. Tauiliili-Langkilde, Assistant Attorney General

[1] Sovereign Immunity protects the American Samoa Government from any claim based upon the exercise or performance of, or the failure to exercise or perform, a discretionary function or duty on the part of an officer or employee, whether or not the discretion involved is abused.

[2] Governmental conduct at the planning stage should usually be considered discretionary, while the actions government specifically undertakes to carry out its programs and policies should usually be considered operational.

[3] Routine cleaning or maintenance is not a discretionary governmental function but is operational in nature.

[4] When sovereign immunity is waived, the government is liable in the same manner and to the same extent as a private individual under like circumstances.

[5] In American Samoa, a land occupant’s duty of care is not governed by abstract classifications of those persons who enter the land such as invitee, licensee, and trespasser; but is instead based on ordinary principles of negligence.

[6] The owner of land is under a duty to exercise ordinary care in the maintenance of these premises in order to avoid exposing persons to an unreasonable risk of harm caused by unsafe conditions on its premises.

[7] Ordinary care is that care which persons of ordinary prudence would use to preclude injury to themselves or others under these or similar circumstances.

[8] When an unreasonable and foreseeable risk is the product of a dangerous condition existing on land, the duty of ordinary care is breached if the owner had knowledge of the dangerous condition or if the condition existed for such a length of time that the owner, by using reasonable care in inspecting the premises, would have discovered the condition in time to remedy it or to give warning before the injury occurred.

[9] Knowledge of a dangerous condition acquired by an owner’s employee in the course and scope of his or her employment is imputed to the owner from the time the employee created or discovered, or should have discovered, the condition.

159 [10] Where floor was wet and dirty from water, human waste, and debris, and maggots were present, it was properly inferred that a dangerous, slippery condition had existed for a substantial period of time.

[11] A legal cause of an injury is something that is a substantial factor in bringing about an injury.

[12] American Samoa follows the comparative negligence doctrine.

[13] When a plaintiff’s own negligence is a contributing cause in bringing about his injury, damages must be reduced by the percentage of fault attributable to his actions and recovery may even be eliminated in an appropriate case.

[14] Where dangerous, slippery condition was obscured by dim lighting and where plaintiff approached and entered room cautiously, he was not contributorily negligent.

[15] Although a plaintiff may not recover damages for preexisting conditions and disabilities, he or she is entitled to recover for the exacerbation of such attributable to a subsequent fall.

OPINION AND ORDER

Plaintiff Meafatu Ala (“Ala”) filed this action for damages against defendant American Samoa Government (“ASG”) resulting from a slip and fall accident on ASG’s premises on April 28, 1995. ASG claimed sovereign immunity in a motion for summary judgment. The court denied the motion without prejudice to develop this defense further at trial. The trial began on April 9 and concluded on April 14, 1998.

The premises at issue is a restroom in Lions Park (“the restroom”), a public park managed by ASG’s Department of Parks and Recreation (“DPR”). ASG designed and installed the restroom. The restroom is of concrete block construction. It has two separate toilet rooms accessible by a single front entrance, which is closed by a steel bar door when

160 locked.59 The two separate toilet rooms are windowless. They do not have electric light and are illuminated only by daylight around the eaves and above the block wall immediately behind the front entrance. The two separate toilet rooms are not marked with “men” and “women” signs.

DPR maintains the restroom, along with the restrooms at the golf course, baseball field, public market, and four other public parks. The crewmen, usually two, are scheduled to open and clean the restrooms daily, beginning between 5:30 and 6:00 a.m., and to close them, between 5:00 and 6:00 p.m. The crewmen normally start at either the most easterly or westerly facility and move in the order of locations to the other end. However, if a location is reserved by a particular group for use at a particular time, the crew will adjust the schedule to accommodate the group. The cleaning routine includes sweeping, hosing, and scrubbing the restroom floors. Supervisors check the restrooms, as their schedules permit, and, if necessary, require the crew to return to clean them. When the restrooms are closed for an extended time, checks are also sporadically made to ensure that the restrooms remain locked. This maintenance program is apparently not formalized in writing.

The lead crewman testified that on Friday, April 28, 1998, the date of the incident, the crew did the maintenance work at the restroom in question at about 10:30 a.m. and the light inside was sufficient to see the floor. The maintenance routine, however, was not logged. A written statement concerning the incident was prepared in November 1995 for the lead crewman to sign. The statement essentially described the cleaning routine and provided that the lead crewman saw no evidence of an accident. By signing the statement, the lead crewman also fixed the incident date, apparently suggested to him, as Thursday, April 27. These factors, coupled with his demeanor as a witness, clearly demonstrated that the lead crewman did not have truly independent recollection of his workday events or activities in late April 1995 and specifically on April 28.

The restrooms at Lions Park were also occasionally vandalized during the time period of the incident. Locks and lock chains are sometimes broken or destroyed and taken, leaving the restrooms open until repairs are made.

On April 28, 1995, between 10:30 and 11:00 a.m., the restroom was unlocked and open. Ala stopped to use the restroom on his way home from a customary Friday golf game. He hesitated at the initial entrance to look for “men” and “women” signs. Seeing none, he entered one of the two toilet rooms. The floor in this toilet room was wet and dirty from water, human waste, and debris. The human waste odor was very strong. Ala, however, did not see the slippery condition of the concrete

161 floor or take special note of the odor before he entered the toilet room and fell. Ala’s eyes probably had not adjusted to the reduced lighting in the unlit room before he fell. He slipped at his second step inside and fell to the floor, striking his left side. He was rendered unconscious for a time from the fall.

Ala’s wife was waiting in their vehicle for him. Concerned at the length of time Ala remained in the restroom, his wife went into the restroom to check on him. She found Ala on the floor, unconscious, wet with water and urine, and smeared with excrement containing crawling maggots. When he regained consciousness, Ala could not move his left arm. He was in severe pain. His wife assisted him to stand and took him home. Because of the intense pain from the swelling and abnormal position of his left arm, Ala could not remove his shirt by himself. His wife and son cut off the shirt and cleaned Ala’s body. Later, his son and another man pulled Ala’s arm into place. Ala visited a Samoan fofo that day and went to ASG’s LBJ Tropical Medical Center (“LBJ”) the next day.

Ala dislocated and broke his left shoulder in the fall. He also injured his back and neck. The testimony given by both Ala and Dr. John H. Bannister (“Bannister”) clearly shows that these injuries resulted from the fall.

ASG sought to disqualify Bannister as an expert witness. At the time of the trial, Bannister was chief of surgery at LBJ. He received his medical degree in Australia in 1964 and a fellowship in surgery (“F.R.C.S.”) in England in 1972. In 1992, however, an appointed medical tribunal of New South Wales investigated six complaints against Bannister, and found him “guilty of professional misconduct” with respect to surgical care in two cases in 1986 and for “improper or unethical conduct” and being “not of good character” for charging “phantom visits” from 1985 to 1990. The medical tribunal considered a reprimand sufficient punishment for the surgical cases, but based on his unethical charging practices, the tribunal directed that Bannister be deregistered from the practice of medicine in Australia. Since then, Bannister has not been registered in Australia but has practiced medicine in Saudi Arabia and in American Samoa. Bannister applied for an American Samoa license but, as of the time of this trial, had not yet been issued a license.

We admitted Bannister’s expert testimony on the diagnosis and treatment of Ala’s injuries, subject to thorough review of his background. Bannister has the prescribed medical education as well as lengthy experience in orthopedic practice. Since his deregistration was principally based on lack of good character in management matters, we do take his testimony, along with Ala’s testimony, into account.

Ala still experiences stiffness and pain in his left shoulder and pain and

162 numbness in his left arm. He has difficulty lifting heavy objects and cannot move his left arm more than 60 degrees above horizontal. He has degenerative conditions in the cervical spine, neck pain with related pain in both arms, and neck movement limited to 50% of the normal range. He has disc pathology at the site of the pain in his lumbar spine, a sciatica condition with associated pain in the lower back, left hip, and down his left leg. Spinal mobility, related to the diseased disc, some spinal deformity, and lower back pain, is also restricted to about 50% of the normal range. Bannister examined Ala in August 1997 and found all these medical conditions attributable to Ala’s fall in 1995.

Ala will suffer from these conditions permanently. He gains some temporary relief from manipulation of his back and shoulder. In August 1997, Bannister administered back manipulation and a depomedral injection in Ala’s spine under general anesthesia. This treatment provided relief from the sciatica condition. However, the pain caused by this condition was recurring at the time of the trial. Surgical removal of the diseased disc and spinal fusion may be necessary to achieve long- term relief from the sciatica condition.

Ala was not free from preexisting conditions at the time of the fall. His left shoulder was injured in a vehicular accident in 1968. He suffered a stroke in 1991 with temporary left-side paralysis. In 1993, Ala may have fallen in a bathtub or shower accident, striking his left side, but he apparently does not recall this incident now. Left shoulder pain was recorded by LBJ in 1969 and four times in 1991, and lower back pain in 1990 and 1994. During a Social Security medical disability examination in 1994, the examining physician noted Ala’s mild stroke; diabetes; left shoulder, hip and leg pains; restricted left shoulder movement; about 30% decreased strength in his left hand; walking imbalance due to a very mild left-foot drop; lower back tenderness; and disc pathology at the same spinal location presently at issue with other associated degenerative changes.

Bannister opined, giving reasons, that these earlier events and preexisting medical findings were either unrelated to or consistent with his medical findings in 1997. He believes that Ala’s injuries from the vehicular accident in 1968 were sustained when Ala’s chest struck the steering wheel and are essentially unrelated to Ala’s injuries from the fall in 1995. He seems to ignore, however, the LBJ notation in 1991 of a left shoulder injury from this accident. He also believes that Ala’s several left shoulder complaints in 1991 were related to Ala’s stroke or his plantation work, and are different in nature from Ala’s complaints after the fall in 1995. He further believes that since Ala’s complaints in 1990 and 1994 included chest pain as well as lower back pain, these symptoms were more likely caused by viral infections. Finally, he believes that Ala’s preexisting medical conditions recorded in the 1994 examination

163 do not contradict the effects of the fall in 1995.

Discussion

A. Sovereign Immunity

[1] ASG reasserts governmental sovereign immunity as a first line of defense. ASG essentially argues that Ala’s claim is based on alleged deficiencies in the design, construction, and maintenance of the restroom, which are discretionary functions excepted in A.S.C.A. § 43.1203(b)(2) from the waiver of sovereign immunity by the “Government Tort Liability Act.” A.S.C.A. § 43.1203(b) (2) reads:

(b) The provisions of this chapter do not apply to: . . . . (2) any claim based upon the exercise or performance of, or the failure to exercise or perform, a discretionary function or duty on the part of an officer or employee, whether or not the discretion involved is abused;

[2] The major United States Supreme Court decision in this area, Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 19 L.Ed. 1427 (1953), held that government conduct at the planning stage should usually be considered discretionary, while the actions government specifically undertakes to carry out its programs and policies should usually be considered operational. See also Savage v. Am. Samoa Gov’t, 1 A.S.R.2d 103, 105 (Trial Div. 1983); Hansen v. City of Audubon, 378 N.W.2d 903, 904-05 (Iowa, 1985). The Supreme Court later held that only governmental action based on considerations of public policy is considered discretionary. Berkowitz v. United States, 486 U.S. 531, 546- 47, 108 S. Ct. 1945, 100 L.Ed.2d 531, 546-47 (1988).

[3] ASG mischaracterizes Ala’s claim. The claim is not based on either the design or construction of the restroom. Design features are part of the relevant fact mix but not the basis of the alleged liability. The absence of “men” and “women” door signs was a minor factor, and the lack of electrical lighting was a significant factor. However, the claim does not involve the design decision on these matters. Rather, the claim is based simply and solely on improper cleaning maintenance of the toilet room. Restroom cleaning does not involve any executive decision making at ASG’s policy or program level. It is an operational, non- discretionary function of ASG to carry out on a daily or other similarly frequent routine.

We hold that sovereign immunity is not a viable defense for ASG in this action.

164 B. ASG’s Tort Liability

1. Liable to Same Extent as Private Parties

[4] We next address the tort liability issue. When sovereign immunity is waived, ASG “is liable . . . in the same manner and to the same extent as a private individual under like circumstances.” A.S.C.A. § 43.1203(a). ASG is responsible for the negligent act or omission of any ASG employee who is acting in the course and scope of his office or employment. A.S.C.A. § 43.1209(a). Restrooms under DPR’s management must be properly maintained for public use. A.S.C.A. § 18.0213. Except for this general statutory direction and DPR’s informal restroom maintenance program, American Samoa is without relevant statutory or administrative direction, whether alike or different, on the tort liability of public and private possessors of land. Thus, in essence, non-statutory principles of tort liability for either public or private possessors of land are applicable and determinative in this case.

2. Strained Common Law Classifications

The common law categorized persons injured while on another’s land as invitees, licensees, or trespassers and adopted particular rules on the duty of care owed to each group in the analysis of imposing tort liability for the injury on the possessor of the land. See Rowland v. Christian, 443 P.2d 561, 564-65 (Cal. 1968).

The conceptual distinctions between these three classifications and the duty owed to each group were originally clear cut. Id. at 565. The difference between licensees and invitees, however, became blurred, confused, strained, and complex over time, as courts dealt with situations where the possessor of land should be obligated, for humanitarian and other social reasons, to exercise due care for the protection of persons on the land who did not neatly fit into the rigid concepts of the traditional licensee or invitee categories. Id. at 565-69.

Ala would not be a classical invitee, because he was not a business visitor “invited or permitted to enter or remain [in the restroom] for a purpose directly or indirectly connected with business dealings” with ASG. Rowland, 443 P.2d at 565; see also RESTATEMENT (SECOND) OF TORTS § 332 (3). He might be a public invitee, because he was a person “invited to enter or remain [in the restroom] as a member of the public for a purpose for which [the restroom was] held open to the public.” See RESTATEMENT (SECOND) OF TORTS § 332(2). This class is one of the modern-day adaptations of the classical invitee concept created to fit particular fact situations. See O’Keefe v. South End Rowing Club, 414 P.2d 830, 836 (Cal. 1966)

165 He might also be a traditional licensee, because he was a person who was not a business invitee but was “privileged to enter or remain [in the restroom] by virtue of [ASG’s] consent.” See Rowland, 443 P.2d at 565; see also RESTATEMENT (SECOND) OF TORTS § 330.

It is conceivable, even if only barely, that he might even be considered a trespasser, because he was a person who was without any privilege to enter or remain in the restroom. See Rowland, 443 P.2d at 565; see also RESTATEMENT (SECOND) OF TORTS § 329.

The difficulty in this case with applying a non-occupant label on Ala stems from the lack of credible direct evidence on the precise way the front entrance to the restroom happened to be unlocked and open on April 25, 1995, between 10:30 and 11:00 a.m. DPR employees may have routinely opened the entrance that morning and have either not cleaned the toilet room or not cleaned it properly. DPR employees may have opened the entrance the day before or several days before April 25, with or without proper cleaning, and not closed and locked the entrance at day’s end. In any of these scenarios, Ala would be a non-traditional public invitee. A vandal may have broken the lock and left the entrance open that morning or at some earlier time, in which case Ala could be either a public invitee or a licensee.

[5] We agree with the Rowland court that the classifications of invitee, licensee, and trespasser have little direct bearing on such tort law considerations as

the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.

Rowland, 443 P.2d at 564. A land occupant’s duty of care should be based on ordinary principles of negligence. See Id. at 568-69.

3. Duty of Ordinary Care

[6] When a reasonably prudent person under the same or similar circumstances should have foreseen the risk, ASG as the owner of Lions Park and the restroom is under a duty to exercise ordinary care in the maintenance of these premises in order to avoid exposing persons to an unreasonable risk of harm caused by unsafe conditions on its premises.

166 See CALIFORNIA JURY INSTRUCTIONS—CIVIL (8th ed.), BAJI No. 8.01 (1997 Revision). Breach of this duty is negligence, giving rise to ASG’s liability for damages for injuries proximately caused by the breach. See BAJI No. 8.00.

On April 25, 1995 between 10:30 and 11:00 a.m., Ala as a member of the public, was greeted with an open-door invitation, or at least permission, to enter the restroom. The floor in the toilet room within the restroom where Ala fell was then in a perilous, slippery condition. The risk of harm from this condition to persons entering the toilet room could be readily remedied by ASG’s employees and was thus unreasonable. See BAJI No. 8.02. The risk of harm to such persons was certainly foreseeable. ASG had the duty to exercise ordinary care to prevent injury to these persons.

[7-9] Ordinary care is that care which persons of ordinary prudence would use to preclude injury to themselves or others under these or similar circumstances. See BAJI No. 8.01. When the unreasonable and foreseeable risk is the product of a dangerous condition, the duty of ordinary care is breached if the owner had knowledge of the dangerous condition or if the condition existed for such a length of time that the owner, by using reasonable care in inspecting the premises, would have discovered the condition in time to remedy it or to give warning before the injury occurred. See BAJI No. 8.20; see also Bridgman v. Safeway Stores, Inc., 348 P.2d 696, 698 (Cal. 1960). Knowledge of a dangerous condition acquired by an owner’s employee in the course and scope of his or her employment is imputed to the owner from the time the employee created or discovered, or should have discovered, the condition. See BAJI No. 8.21; see also Hatfield v. Levy Brothers, 117 P.2d 841, 845 (Cal. 1941).

[10-11] The floor in the toilet room where Ala fell was wet and dirty from water, human waste, and debris. Maggots were present. Given these circumstances, this dangerous, slippery condition existed for a substantial period of time. DPR employees either created the condition by failing to clean or properly clean the floor, or they had ample time to discover and correct the condition before Ala was injured. Thus, ASG breached its duty of ordinary care to avoid endangering Ala from harm. A legal cause of an injury “is something that is a substantial factor in bringing about an injury.” BAJI No. 3.76. Ala would not have been injured but for ASG’s negligent breach of its duty to him.

We conclude that ASG is liable in damages to Ala for his injuries from the fall.

C. Contributory Negligence

167 [12] ASG maintains that even if it is liable to Ala, Ala was so contributorily negligent that he is entirely barred from recovery of damages under the comparative negligence doctrine. American Samoa adopted this doctrine by statute. A.S.C.A. § 43.5101; see Masania`i v. Tedrick, 2 A.S.R.3d 142, 144-145 (Trial Div. 1998).

[13] When a plaintiff’s negligence is a contributing cause in bringing about the injury, the plaintiff can only recover damages in an amount proportionate to the defendant’s negligence. A.S.C.A. § 43.5101; see also BAJI No. 3.50. The damages must be reduced in this manner and may even be eliminated in an appropriate case.

[14] ASG argues that Ala was contributorily negligent, because the slippery floor was an obvious condition that Ala could, and should, have discovered by the ordinary use of his senses. We disagree. The slippery floor was obscured by the dim natural lighting in the toilet room, especially compared to the daylight outside. Ala did not rush into the toilet room where he fell but approached and entered the room cautiously. Ala was not contributorily negligent.

We conclude that Ala’s damages will not be diminished under the comparative negligence rule.

D. Damages

Ala is entitled to reasonable compensation for the substantial pain, discomfort, fears, anxiety, and other mental and emotional distress that he suffered, and will likely still experience, as a result of the injuries he sustained to his neck, lower back, and left shoulder in his fall on April 28, 1995.

[15] Clearly, Ala had medical conditions and partial disabilities with respect to his neck, lower back, and left arm and side that existed before his fall. Unmistakenly, however, he suffered additional injuries from the fall that aggravated these preexisting conditions and disabilities. While he may not recover damages for preexisting conditions and disabilities, he is entitled to recover damages for the exacerbation of them attributable to the fall. See BAJI No. 14.65; see also Ng v. Hudson, 75 Cal. App.3d 250, 255, 142 Cal. Rptr. 69, 72 (1977) We set Ala’s damages for pain and suffering resulting from the fall in the sum of $35,000.

ASG shall pay Ala $35,000 in damages, plus usual costs of suit.

**********

TAIMANE JOHNSON, Plaintiff,

AMERICAN SAMOA GOVERNMENT, AMERICAN SAMOA COMMUNITY COLLEGE, BOARD OF HIGHER EDUCATION, LAND GRANT PROGRAM, DEPARTMENT OF PUBLIC SAFETY, TRUDIE IULI, ROBERT B. COULTER, PAPALII DR. FAILAUTUSI AVEGALIO, SALA HUNKIN, and DOES 1 through 10, inclusive, Defendants.

CA No. 52-98

September 16, 1998 [1] Under T.C.R.C.P. 12(b)(6), review of a motion to dismiss is limited to whether the claimant is entitled to offer evidence to support the claims regardless of the likelihood of recovery, and in reviewing a motion to dismiss, the pleadings should be construed in favor of the claimant, and the burden of demonstrating that there is no claim is upon the party moving to dismiss.

[2] A complaint will be dismissed for failure to state a claim only where it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

[3] Under T.C.R.C.P. 12(b)(6), a defense of immunity is a proper basis for granting a motion to dismiss, and a government entity is immune from suit unless it consents to suit through legislation or by acting in a non-governmental capacity.

[4] Under A.S.C.A. § 43.1201 (the Government Tort Liability Act (GTLA)), the ASG is subject to a limited waiver of its immunity from suit for actions based in tort.

[5] The ASG waives its immunity when it acts in a proprietary fashion, such as when it establishes and operates a bank or acts as a landlord, but immunity is specifically preserved under A.S.C.A. § 43.1203 for claims arising out of assault, battery, false imprisonment, false arrest, malicious

169 prosecution, abuse of process, libel, slander, misrepresentation, deceit or interference with contract rights.

[6] Under A.S.C.A. § 43.1211, a plaintiff may seek recourse against ASG employees individually for false arrest, and a claim for tortious conduct may be pursued against such employees who acted out of their own negligent conduct while acting within the scope of their employment or who acted outside of the scope of the employment.

[7] A.S.C.A. § 43.1203(b) does not exclude all intentional torts from the Government Tort Liability Act (GTLA), and a claim for intentional infliction of emotional distress is a proper claim against ASG under the GTLA, and exclusion from the Government Tort Liability Act is limited to the torts specifically enumerated.

[8] Under A.S.C.A. § 43.1211, an ASG employee may not be sued when a plaintiff elects to pursue a claim under the Government Tort Liability Act, but where a plaintiff chooses not proceed under the Government Tort Liability Act, she is not precluded from suing the employee for negligence.

[9] Under A.S.C.A. §§ 16.2002, 16.2003-.2004, and A.S.C.A. § 4.0301(a)(9), the American Samoa Community College may sue and be sued, the Board of Higher Education is an agency of the ASG that may not sue or be sued, the Land Grant Program is a program and not an agency, and may not sue or be sued, and the Department of Public Safety, as an agency of ASG established under and not being able to sue or be sued, it is not a proper named party under the Government Tort Liability Act.

[10] Police officers, as individual employees of ASG, are not proper defendants while a party is pursuing a claim against ASG under the Government Tort Liability Act.

Before RICHMOND, Associate Justice, and AFUOLA, Associate Judge.

Counsel: For Plaintiff, David P. Vargas For Defendants American Samoa Government, American Samoa Community College, Land Grant Program, and Department of Public Safety, Gwen F. Tauiliili-Langkilde, Assistant Attorney General For Defendants Board of Higher Education, Robert B. Coulter, and Salu Hunkin, Brian N. Thompson For Defendant Trudie Iuli, Katopau T. Ainuu

ORDER GRANTING IN PART AND DENYING IN PART

170 DEFENDANTS’ MOTION TO DISMISS FOURTH, FIFTH AND SIXTH CAUSES OF ACTION

Background

Plaintiff Taimane Johnson (“Johnson”) filed a complaint on May 29, 1998 and an amended complaint on June 9, 1998 against defendants American Samoa Government (“ASG”), American Samoa Community

171 College (“ASCC”), Board of Higher Education (“BOHE”),60 Land Grant Program (“LGP”), Department of Public Safety (“DPS”), Trudie Iuli (“Iuli”), as the acting president of BOHE, Robert B. Coulter (“Coulter”), as the chairman of BOHE, Salu Hunkin (“Hunkin”), as the President of ASCC, Papalii Dr. Failautusi Avegalio (“Avegalio”), as the former President of ASCC, and Does 1 through 10 alleging six causes of action. The first three causes of action in this complaint are breach of contract claims arising from an agreement concerning the use of Johnson’s land under the LGP and from two settlement agreements entered into after conflicts arose under the original contract. The fourth cause of action is a claim of false arrest, and the fifth and sixth causes of action are claims of intentional and negligent infliction of emotional distress.

On June 29, 1998, ASG, ASCC, BOHE, LGP, DPS, and Coulter moved to dismiss the fourth, fifth, and sixth causes of action under T.C.R.C.P. 12(b)(6) for failure to state a claim upon which relief can be granted. On July 21, 1998, Hunkin joined in the motion. The motion came for hearing on July 23, 1998. Johnson, ASG, ASCC, BOHE, LGP, DPS, Coulter, Hunkin, and Iuli were represented by counsel. Iuli also then joined in the motion. Avegalio did not appear.

On July 24, 1998, pursuant to T.C.R.C.P. 41(a)(ii), the parties stipulated to dismiss Coulter from the action. Thus, any references below to defendants exclude Coulter.

Discussion

A. T.C.R.C.P. 12(b)(6)

[1] Our review of the motion to dismiss under T.C.R.C.P. 12(b)(6) is limited. “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is unlikely but that is not the test.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90, 96 (1974). The pleadings should be construed in favor of the claimant, Beaver v. Cravens, 17 A.S.R.2d 6, 8 (Trial Div. 1990), and the burden of demonstrating that there is no claim is upon the party moving to dismiss. Johnsrund v. Carter, 620 F.2d 29, 33 (3d. Cir 1980).

[2] “[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Moeisogi v. Faleafine, 5 A.S.R.2d 131, 134 (Land and Titles Div. 1987). A defense of immunity is one example of a proper basis for granting a motion to dismiss under T.C.R.C.P. 12(b)(6). See, e.g., 5A C. Wright & A. Miller, FEDERAL PRACTICE AND PROCEDURE § 1357, at 355 (2d ed. 1990); 2A J.

172 Moore, MOORE’S FEDERAL PRACTICE, ¶ 12.07[2.--5] (2d ed. 1991) (“A motion under 12(b)(6) should also be granted if an affirmative defense or other bar to relief is apparent from the face of the complaint, such as the official immunity of a defendant, or the statute of limitations.); Coplin and Assoc., Inc. v. U.S., 814 F. Supp. 643 (W.D. Mich. 1992) (upholding the trial court’s grant of a Rule 12(b)(6) motion to dismiss where the United States had sovereign immunity); Hinnen v. Kelly, 992 F.2d 140 (7th Cir. 1993) (upholding district court’s dismissal of a civil suit against a special agent for the Drug Enforcement Administration who had qualified immunity).

Additionally, it is proper to use a Rule 12(b)(6) motion to challenge the sufficiency of part of a complaint, such as a single cause of action. 5A C. Wright & A. Miller, FEDERAL PRACTICE AND PROCEDURE § 1358, at 422 (2d ed. 1990 & Supp. 1994).

B. Government Immunity

[3] At common law, a sovereign was absolutely immune from suit. This doctrine of absolute immunity, although criticized by some as “feudal and monarchist,” Savage v. Gov’t of American Samoa, 1 A.S.R.2d 102, 106 (Trial Div. 1983), citing William L. Prosser, LAW OF TORTS § 131 (4th ed. 1978), was adopted in the United States at both the national and state level. Id. Currently, a government entity is immune from suit unless it consents to suit through legislation or by acting in a non- governmental capacity. This concept of sovereign immunity is said to protect the state from “burdensome interference with state funds, property, and instrumentalities.” Ferstle v. American Samoa Gov’t, 4 A.S.R.2d 160, 164, n. 3 (Trial Div. 1987)

[4] “[T]he Territory of American Samoa possesses immunity from suit without its consent or waiver.” Ferstle, 4 A.S.R.2d at 166. Under Chapter 12 of the A.S.C.A., the Legislature has provided a limited waiver of ASG’s immunity from suit for actions based in tort. This legislation is known as the Government Tort Liability Act (“GTLA”). A.S.C.A. § 43.1201. Johnson alleges that she filed an administrative claim under A.S.C.A. § 43.1205, satisfying a jurisdictional prerequisite to GTLA judicial proceedings. She thus elected to proceed with her tort claims in the fourth, fifth, and sixth causes of action under the GTLA. The GTLA, then, governs these three causes of action and frames our analysis and ruling on the motion to dismiss.

[5] Previous decisions of this court have also established that ASG waives its immunity when it acts in a proprietary fashion, such as when it establishes and operates a bank or acts as a landlord. See, e.g., Fa`atiliga v. Lutali, 3 A.S.R.2d 139, 143 (Trial Div. 1986) (holding that a motion to dismiss claims against ASG on the theory that the suit was

173 not based in tort should not be granted where AEG had created a bank, made loans, took mortgages, and engaged in related business activities); Savage, 1 A.S.R.2d at 106 (holding that a landlord-tenant relationship exists between ASG and the occupants of the Tafuna governmental housing tract, and finding ASG responsible for the stray dog problem in the housing area and liable for a dog bite to the child of a tenant). C. The Fourth Cause of Action—False Arrest

In her fourth cause of action, Johnson claims that she was falsely, maliciously, and with no probable cause, accused of committing the crime of felony theft, and thus charges all defendants with false arrest.

1. Agency and Program Defendants

Although ASG’s immunity from suit is waived for some torts under the GTLA, it is specifically preserved for others. The GTLA states that:

(b) The provisions of this chapter do not apply to: . . . (5) any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit or interference with contract rights.

A.S.C.A. § 43.1203. A claim of false arrest is therefore not a viable claim under the GTLA. See also, Rakhshan v. American Samoa Gov’t, 20 A.S.R.2d 1, 10 (Trial Div. 1991) (“In terms of an action based on the notion of false arrest or false imprisonment, the government remains immune from suit.”)

Because ASG’s immunity remains intact for claims of false imprisonment, Johnson’s fourth cause of action fails to state a claim upon which relief can be granted. The motion to dismiss the fourth cause of action under T.C.R.C.P. 12(b)(6) will therefore be granted as to all agency and program defendants.

2. Individual Defendants

[6] Although Johnson may not proceed against the agency and program defendants, Johnson may still seek recourse against ASG’s employees individually for false arrest. A.S.C.A. § 43.1211 does not bar suits against individual ASG employees. Rather, dismissal of the fourth cause of action as to the agency and program defendants enables the suit to be maintained against the individual defendants. A.S.C.A. § 43.1211 states that a suit against ASG under the GTLA “shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against the employee whose act or omission gave rise to the claim, or his estate.”

174 Because the fourth cause of action will be dismissed as to the agency and program defendants, a claim for tortious conduct may now be pursued against the individual defendants who are ASG employees. See Moana v. American Samoa Gov’t, CA No. 133-85, Decision and Order at 5 (Trial Div. Nov. 12, 1986) (plaintiff may sue employee for negligence if plaintiff elects or fails to pursue a claim under the GTLA); Henderson v. Bluemark, 511 F.2d 399, 404 (D.C. Ct. App. 1974) (Although a few exceptions exist, “there is no statutory protection for federal employees from personal liability arising out of their own negligent conduct while acting within the scope of their employment.”). Furthermore, even if an employee acts tortiously outside the scope of employment, the employee may still be sued individually. Tevaseu v. American Samoa Gov’t, 5 A.S.R.2d 10, 12 (Trial Div. 1987) (“[S]uit against the individual government employees before the Court is available if it is the case that the said employees’ acts or omissions complained of were made outside of the scope of the employment.”). Because the agency and program defendants will be dismissed from this fourth cause of action, the action may still be maintained against the individual defendants who are ASG employees. See Aga v. U.S. Secretary of Interior, 3 A.S.R.2d 130, 132 (Trial Div. 1986).

D. The Fifth Cause of Action--Intentional Infliction of Emotional Distress

In her fifth cause of action, Johnson claims that the defendants, except DPS and Does 5 through 9, intentionally and maliciously harassed her, publicly ridiculed her, and defamed her without legal excuse or reason.

1. The Claim of Intentional Infliction of Emotional Distress

[7] A.S.C.A. § 43.1203(b), quoted above, lists a number of torts for which ASG remains immune. Although often referred to as the intentional torts exception to the GTLA, this section of the act does not exclude all intentional torts from the GTLA’s waiver of immunity. Exclusion from the GTLA’s waiver of immunity, or more simply, preservation of immunity, is instead limited to the torts specifically enumerated in A.S.C.A. § 43.1203(b).

175 In Gross v. United States, 676 F.2d 295 (8th Cir. 1982),61 the plaintiff was a farmer whose intentional infliction of emotional distress was based on the conduct of a county agricultural stabilization and conservation service committee in denying the plaintiff participation in a feed grain program. The court held that “courts should not read exceptions into the Federal Tort Claims Act beyond those provided by Congress” and that a claim of intentional infliction of emotional distress is a viable action under the Federal Tort Claims Act. Id. at 303-04 (citations omitted). The plaintiff’s claim for damages was therefore not barred by the intentional torts exception to the Federal Tort Claims Act. Id.

We find this reasoning persuasive. We decline to read into the GTLA exceptions beyond those specifically listed by the Legislature. Johnson’s claim for intentional infliction of emotional distress, then, is a proper claim against ASG under the GTLA. Intentional infliction of emotional distress is a claim upon which relief can be granted and thus the intentional nature of the claim does not provide a basis for granting the motion to dismiss.

We next examine whether a claim of intentional infliction of emotional distress may be maintained against the defendants Johnson has named.

2. The Individual Defendants

Iuli, Hunkin, and Avegalio, the named individual defendants, are or were ASG’s employees. The GTLA addresses the propriety of suits against individual ASG employees.

[8] A.S.C.A. § 43.1211, quoted above, states an ASG employee may not be sued when a plaintiff elects to pursue a claim under the GTLA. Aga v. U.S. Secretary of Interior, 3 A.S.R.2d at 131-32 (“. . . so long as Plaintiff is proceeding under the [Government Tort Liability] Act, she can only sue A.S.G.”); Moana v. American Samoa Gov’t, CA No. 133- 85, Decision and Order at 5 (holding that a suit can only be maintained against ASG and not the individual defendants when a plaintiff proceeds under the GTLA).

However, a plaintiff is not entirely without recourse against an individual ASG employee. A plaintiff can, for example, choose to not proceed under the GTLA. “It would seem that when a tort victim either by election or ignorance fails to pursue a claim under the Government Tort Liability Act, there is no prospect for a judgment against the government as contemplated by 43.1207[.] He is not therefore precluded from suing the employee for negligence.” Moana, CA No. 133-85, Decision and Order at 6.

Because Johnson has chosen to proceed under the GTLA, she has no

176 valid claim against the individual employees. They are immune from suit while the claim against ASG proceeds. The fifth cause of action against Iuli, Hunkin, and Avegalio, therefore, fails to state a claim upon which relief can be granted and will be dismissed as to these defendants.

3. The Agency and Program Defendants

In addition to the individual defendants, Johnson has also named ASG, ASCC, BORE, and LGP as defendants for the fifth cause of action.

It is proper for Johnson to maintain a claim against ASG because, as explained above, ASG has waived its sovereign immunity for certain claims by enacting the GTLA.

[9-10] The Legislature may also establish governmental entities, within ASG’s organizational structure, and give those entities the power to sue and be sued. ASCC is one such entity. A.S.C.A. § 16.2002 establishes ASCC’s powers and duties and clearly states that ASCC “may sue and be sued.” See also, Deleeuw v. Internal Revenue Service, 681 F. Supp. 402, 403 (E.D. Mich. 1987) (“An executive department of the United States or one of its agencies may only be sued in its own name if the authority to be sued has been expressly been [sic] conferred by Congress.”); Koziokowski v. Delaware River Port Authority, 397 F. Supp. 1115, 1120 (D.N.J. 1975) (holding that the “sue and be sued” clause in a congressionally approved bistate compact operated as a waiver of any claim of immunity from suit in a negligence action against the agency for design, construction, maintenance and control of a bridge). Johnson, then, may maintain a claim against ASCC under the GLTA.

BOHE and LGP, on the other hand, are not parties against whom a claim can be maintained. Although established under the same chapter of the A.S.C.A. as ASCC, BORE is an agency of ASG that has not been given the power to sue and be sued. A.S.C.A. § 16.2003-.2004. The LGP is also recognized in statute, primarily for the purpose of complying with federal laws. A.S.C.A. § 16.2011. It also has not been given the capacity to sue and be sued. The LGP is not even an agency; it is a program. BOHE and LGP, therefore, are not proper named parties for claims brought under the GTLA. See, e.g., Scheimer v. National Capital Region, National Park Service, 737 F. Supp. 3, 4 (D.D.C. 1990) (for actions under the Federal Tort Claims Act, “[a] government agency may not be sued in its own name.”); Calderon v. United States Dept. of Agriculture, 756 F. Supp. 181, 183-84 (D.N.J. 1990) (holding that the United States itself is the only party which may be sued under the

177 Federal Tort Claims Act); Carib Gas Corp. of St. Thomas v. Delaware Valley Industrial Gases, Inc., 660 F. Supp. 419, 420-21 (D.V.I. 1987) (dismissing a cause of action against the Department of Transportation and holding that only the United States could be a named defendant under the Federal Tort Claims Act); Hagebush v. United States, 657 F. Supp. 675, 678 (D. Neb. 1986) (“The claims of the plaintiffs in this action based upon the alleged tort actions of the named agencies may be brought only against the United States and not against the agencies in their name.”).

Of the governmental defendants, then, only ASG and ASCC are proper named parties for claims under the GTLA. The fifth cause of action therefore fails to state a claim upon which relief can be granted as to BORE and LGP, and the motion to dismiss as to these defendants will be granted. The fifth cause of action remains as a claim only against ASG and ASCC, and Does 1 through 4, provided that they are not ASG employees.

E. The Sixth Cause of Action—Negligent Infliction of Emotional Distress

In her sixth cause of action, Johnson charges DPS and Does 5 through 9, designated as police officers, with negligent infliction of emotional distress by failing to perform their duties in a prudent and professional manner.

1. The Claim of Negligent Infliction of Emotional Distress

On its face, negligent infliction of emotional distress is a viable claim under the GTLA. Therefore, we again turn to whether such a claim is viable against the named defendants.

2. The Individual Defendants

Johnson indicates that Does 5 through 9 are police officers whose names are yet to be ascertained. According to our previous analysis, individual employees of ASG are not proper defendants while a party is pursuing a claim against ASG under the GTLA. A.S.C.A. § 43.1211. The sixth cause of action as to Does 5 through 9 will therefore be dismissed.

3. The Agency Defendant

DPS is an agency of ASG established under A.S.C.A. § 4.0301(a)(9). It has not been given the power to sue and be sued. As analyzed above, ASG’s agencies of this nature are not proper named parties under the GTLA. The sixth cause of action as to DPS will therefore be dismissed. It remains only against ASG.

178 Order

1. The motion to dismiss the fourth cause of action, the claim of false imprisonment, is granted in part and denied in part. The fourth cause of action is dismissed as to ASG, ASCC, BOHE, LGP, and DPS. The fourth cause of action remains as to Iuli, Hunkin, and Avegalio. 2. The motion to dismiss the fifth cause of action, the claim of intentional infliction of emotional distress, is granted in part and denied in part. The fifth cause of action is dismissed as to Iuli, Hunkin, and Avegalio and as to BOHE and LGP. The fifth cause of action remains as to ASG and ASCC, and Does 1 through 4, provided that they are not ASG employees.

3. The motion to dismiss the sixth cause of action, the claim of negligent infliction of emotional distress, is granted in part and denied in part. The sixth cause of action is dismissed as to DPS and Does 5 through 9. The sixth cause of action remains as to ASG.

It is so ordered.

**********

TUAVAO NEUFELDT, guardian ad litem for ANNJANETTE NEUFELDT, Plaintiff

LEE DAE DON and ROSALIA DON, Does I-X, Defendants

CA No. 16-98

September 18, 1998

[1] The law in American Samoa prohibits anyone from possessing a live vicious animal.

[2] The owner of an animal is under a legal obligation to keep the animal under his control and to guard innocent parties from harm by the animal.

[3] Where evidence failed to demonstrate malice, a prayer for punitive

179 damages was properly denied.

[4] Where defendants owned multiple, unrestrained dogs which possessed proclivity for harassing passersby and at least one of which had a known disposition towards attacking and biting small children, permanent injunctive relief was proper. Before KRUSE, Chief Justice, TAUANU`U, Chief Associate Judge, and ATIULAGI, Associate Judge.

Counsel: For Plaintiff, Charles V. Ala`ilima For Defendants, Malaetasi M. Togafau

OPINION AND ORDER

This action is grounded on dog-bite injuries suffered by the minor plaintiff Annjanette Neufeldt (the “minor”), a five year old child at the time. Plaintiff Tuavao Neufeldt (“Tuavao”) is the father of the minor and, as guardian ad litem for his daughter, has filed suit against the defendants Lee Dae Don and Rosalia Don (the “defendants”), the owners of the offending animal.

The parties are neighbors and live across the street from one another. In the late afternoon of March 7, 1997, Tuavao was out in the yard raking leaves by the roadway, with the minor nearby attempting to help him. Petelo Tuli (“Tuli”), another neighbor, was also in Tuavao’s yard sitting in a hammock with a view of the road. Shortly, Mr. Lee’s car pulled up. As it came to a stop, two dogs ran out from the defendants’ yard across the road to Annjanette. One of the dogs, large and reddish in color, bit Annjanette on the calf area of her right leg. This dog belongs to the defendants and the incident was witnessed by both Tuavao and Tuli.

Tuavao then took the minor to the hospital where she was treated and discharged with antibiotics. A few weeks after the incident, the minor was examined by Dr. Aloiamoa Anesi, who noted tenderness on the wound area. Although a 1 cm scab had formed, the wound was still sensitive to pressure. The minor was also referred to Dr. Malaefou Elisaia of the Mental Health Clinic for evaluation of the parents’ complaints about the minor having nightmares, a fear of dogs and showing “avoidance behavior.” Dr. Elisaia felt that the minor had recovered from the experience and noted no “significant abnormalities” of a permanent nature as a result of the dog attack.

[1] The evidence shows that the dog in question is quite clearly a

180 “vicious animal,” as that term is defined in A.S.C.A. § 25.161610(b).62 This animal had previously bitten another young child in the neighborhood, witness Tuli’s niece. The vicious nature of this dog is known to the defendants, who have been keeping six additional animals as a deterrent to would-be intruders since they fell victim to a prior burglary. The defendants’ dogs are also well known in the area for charging at passersby on the roadway, who have to arm themselves with stones and other missiles to ward off the dogs. The law in the Territory is that “[n]o person may . . . possess . . . a live vicious animal.” See A.S.C.A. § 25.1610(a). Defendants are in violation of this legal duty.

[2] Additionally, this court in Gebauer v. Gates, CA No. 206-94, held that when a person is bitten by a dog, a rebuttable presumption arises

181 that the owner is at fault.63 Slip Op. at 3. (Trial Div. 1995) (citations omitted). “The owner of an animal is under a legal obligation to keep the animal under his control and to guard innocent parties from harm by the animal. Failure to do so entitles the injured party to recover from the animal’s owner.” Id. (citations omitted). See also Leaea v. Sale, CA No. 79-97, slip op. at 11-12 (Trial Div. 1998).

Here, the defendants made no attempt to rebut the presumption of liability save to unconvincingly attempt to disown the offending animal that they had previously licensed with the authorities. We conclude that the defendants are liable to the minor plaintiff for her injuries.

[3] We find, however, that the evidence does not rise to the level of “malice” on the part of defendants such as would warrant a deterrent judgment in damages. See Letuli v. Le`i, 21 A.S.R.2d 77, 86 (Land & Titles Div. 1991). Plaintiff’s prayer for punitive damages is denied.

[4] Lastly, we recognize that the legal remedy of damages is inadequate without a multiplicity of suits. The harm caused by the dog is such that the minor would be required to bring repeated suits to effectuate her legal remedy unless the defendants are permanently enjoined from allowing their animals to roam unrestrained outside the confines of their own yard. In light of the animals’ notorious proclivity for harassing passersby on the roadway and the large reddish dog’s known disposition to attack and bite small children, injunctive relief is very appropriate. Plaintiffs’ prayer for injunctive relief is, therefore, also granted.

Accordingly, considering the nature of the minor’s injuries and awards we have given in similar circumstances, we fix damages in the amount of $5,000.

At the same time, defendants and each of them, their servants, agents, family members, and those in active concert with them are hereby enjoined from allowing any dogs, either owned by them or in their temporary possession and control, to roam unrestrained unless within a securely fenced area.

Judgment will enter accordingly.

It is so ordered.

**********

ALAI`ASA FILIFILI MAILEI, Plaintiff,

182 v.

LEPOPOLE FAUMUINA and FANENE AIPOPO LAULU for the FANENE FAMILY, Defendants. ______

ALAI`ASA FILIFILI for the ALAI`ASA FAMILY, Claimant,

TUIAÀNA MOI for the TUIAÀNA FAMILY, MOEAÌ UILIATA for the MOEAÌ FAMILY, and SEIGAFO E. SCANLAN, Objectors. ______ALAIÀSA FILIFILI MAILEI, Plaintiff,

FANENE AIPOPO LAULU, FONOTI TAFAÌFA, TUIAÀNA MOI, MOEAÌ FAMILY, and TAUILIILI PEMERIKA, Defendants. ______

ALAI`ASA FILIFILI M., Claimant,

TUITOGA PUAILOA FANENE, FANENE A. LAULU for FANENE FAMILY MEMBERS, TUIA`ANA MOI, ISEULAOLEMOANA S. SOTOA, Legal Representative of the ESTATE OF SALOFI R. SOTOA, PEMERIKA TAUILIILI, LAUMA VALOAGA V. MOANANU, and FONOTI TAFA`IFA, Objectors.

LT No. 12-90 LT No. 76-90 LT No. 77-90 LT No. 78-90 LT No. 14-96 LT No. 25-96

January 15, 1998

[1] Under A.S.C.A. § 43.0802(a), a motion for reconsideration must be filed within 10 days after the announcement of the judgment, and where a late filing is not excusable, the court lacks jurisdiction to consider it.

183 [2] Under T.C.R.C.P. 62(d), a trial court may stay a judgment or order while an appeal is pending, but where no appeal is pending a motion to stay is premature.

[3] Under A.S.C.A. § 43.0802(b) and A.C.R. 4(a)(1) a notice instituting an appeal of a judgment or order of the Land and Titles Division cannot be filed until, and must be filed within ten days after, the court denies a motion for reconsideration or new trial.

[4] Under T.C.R.C.P. 11, sanctions sufficient to deter repetition of such conduct or comparable conduct by others similarly situated may be imposed upon an attorney who signs a pleading in violation of Rule 11, and upon a client in appropriate circumstances.

[5] T.C.R.C.P. 11 sanctions are appropriate where causes of action challenge previously adjudicated land ownership, are without merit ab initio, cause clouds on owner’s titles, disparage court decisions, disrupt the order of the land tenure system, waste judicial resources, and cause landowners considerable distress and expenditure of substantial time and money in defending their titles.

[6] Rule 11 is applicable to land actions, which are civil proceedings and do not lose that characteristic simply because a separate organizational division of the trial court is established by A.S.C.A. § 3.0208 to hear land and matai title controversies. [7] Where counsel submits and advocates legal contentions unwarranted by existing law, or are frivolous arguments for the modification or reversal of existing law or the creation of new law, counsel may be held in violation of T.C.R.C.P. 11(b)(2), and appropriate sanctions for a party’s violation of T.C.R.C.P. 11(b)(1), and for counsel’s violation of T.C.R.C.P. 11(b)(2) may include holding the party and counsel personally responsible, and jointly and severally liable, for the payment of reasonable attorney’s fees and costs.

Before RICHMOND, Associate Justice, and ATIULAGI, Associate Judge.

Counsel: For Plaintiff/Claimant Alaiàsa Filifili Mailei for the Alaiàsa Family, Tautai A.F. Faalevao For Defendant/Objector Fanene Aipopo Laulu for the Fanene Family, Defendant Lepopole Faumuina, Defendant/Objector Tauiliili Pemerika, and Objectors Iseulaolemoana S. Sotoa, Legal Representative of the Estate Salofi R. Sotoa, and Tuitoga Puailoa Fanene, Charles V. Alaìlima For Defendant/Objector Tuiaàna Moi for the Tuiaàna Family,

184 Asaua Fuimaono For Objectors Moeaì Uiliata for the Moeaì Family and Lauma Valoaga V. Moananu and Defendant Moeaì Family, Aumoeualogo Salanoa Soli For Objector Seigafo E. Scanlan, Pro Se For Defendant/Objector Fonoti Tafaìfa, Afoa L. Suèsuè Lutu

ORDER DISMISSING MOTION FOR RECONSIDERATION, DENYING MOTION TO STAY AWARD OFATTORNEY’S FEES AND COSTS, SETTING AMOUNTS OF ATTORNEY’S FEES AND COSTS, AND IMPOSING SANCTIONS UNDER T.C.R.C.P. 11

On August 5, 1997, the court’s opinion and order was entered in these actions. In essence, we dismissed these actions, pursuant to T.C.R C.P. 41(b), as they relate to claims by plaintiff/claimant Alaiàsa Filifili Mailei (“Alaiàsa Filifili”) for the Alaiàsa Family (collectively “the Alaiàsa”) to certain lands awarded by this court in Tuutau v. Fanene, Case No. 1-1931 (1932) (“Case No. 1-1931”) to defendant/objector Fanene Aipopo for the Fanene family (collectively “the Fanene”), and in Fanene v. Magalei, LT Nos. 64-77, 74-77, 54-77, 61-74, 60-77, 66-77, 73-77, 1090-70, 62-77, and 72-76 (Land & Titles Div. 1980) (“the 1977 actions”) to the Fanene, defendant/objector Fonoti Tafaìfi for the Fonoti family (collectively “the Fonoti”), defendant/objector Tauiliili Pemerika (“Tauiliili”), objector Iseulaolemoana S. Sotoa, Legal Representative of the Estate of Salofi R. Sotoa (“Sotoa”) and defendant/objector Tuiaàna Moi for the Tuiaàna Family (collectively “the Tuiaàna”).

The court ordered attorney’s fees and costs to be paid by the Alaiàsa to the Fanene, the Fonoti, Tauiliili, Sotoa, and the Tuiaàna. In addition, the court ordered Alaiàsa Filifili and the Alaiàsa’s counsel to show cause why either or both of them should not be sanctioned for violations of T.C.R.C.P. 11(b)(1), (2), or (3) in prosecuting these actions. We scheduled hearings on the amount of the awarded attorney’s fees and costs and on the order to show cause on the Rule 11 sanctions for August 18, 1997.

On August 18, 1997, the court, at the Alai`asa’s request, continued the hearings on the amount of the attorney’s fees and costs and the order to show cause on Rule 11 sanctions to September 4, 1997. The court also established a deadline of August 22, 1997, for the Fanene, the Fonoti, Tauiliili, Sotoa, and the Tuia`ana to submit verified statements on the

185 amount of their claims for attorney’s fees and costs.64 Later, on August 18, 1997, the Alai`asa moved for reconsideration of the opinion and order, and to stay the award of attorney’s fees and costs and the imposition of Rule 11 sanctions. The hearing on these motions was also scheduled for September 4, 1997.

The court heard these pending matters on September 4, 1997. All counsel were present.

Discussion

A. Motion for Reconsideration of the Opinion and Order

[1] A.S.C.A. § 43.0802(a) states:

Before filing a notice of appeal, a motion for a new trial shall be filed within 10 days after the announcement of the judgment. . .

The opinion and order was entered on August 5, 1997. The tenth day later, Friday, August 15, 1997, was a court work day. The motion for reconsideration was not filed until Monday, August 18, 1997, thirteen days after entry of the opinion and order. Filing a motion for a new trial after the tenth day is excusable, but only if the tenth day falls on a Saturday, a Sunday, or a holiday. T.C.R.C.P. 6(a); Pal Air Int’l, Inc. v. Samoa Aviation, Inc., 1 A.S.R.3d 1, 2 (Appellate Div. 1997).

Since the filing was late and the delay was not excusable under Rule 6 (a), this court does not have jurisdiction to consider Alai`asa’s motion for reconsideration. Therefore, the motion for reconsideration will be dismissed.

B. Motion to Stay Award of Attorney’s Fees and Costs and Imposition of Rule 11 Sanctions

The Alai`asa are requesting the court to stay, pending appeal, the award of attorney’s fees and costs and imposition of sanctions pursuant to T.C.R.C.P. 11.

[2-3] The trial court has the power to stay a judgment or order while an appeal is pending. T.C.R.C.P. 62(d). Indeed, an application for a stay pending appeal is properly brought before the trial court in the first instance. A.C.R. 8(a). However, a stay pending appeal necessarily assumes that an appeal is pending. A notice instituting an appeal of a judgment or order of the Land and Titles Division cannot be filed until, and must be filed within ten days after, the court denies a motion for reconsideration or new trial. A.S.C.A. § 43.0802(b); A.C.R. 4(a)(1).

186 Since no appeal is pending in this action, the present motion for a stay pending appeal is premature. Therefore, the motion to stay the award of attorney’s fees and costs and the imposition of Rule 11 sanctions will be denied.

C. Amount of Reasonable Attorney’s Fees and Costs Awarded

We establish reasonable attorney’s fees for this action at $125 per hour for trial time and $100 per hour for office and other court time. Based on the clerk’s minutes of the trial, we will apply the trial rate for attorney’s fees to 2.0 hours. We will use the time submitted by counsel to calculate the amount of attorney’s fees for office and other court time. Costs will also be based on counsel’s submissions.

Using these standards, we determine the amounts of reasonable attorney’s fees and costs awarded in this action as follows:

1. For the Fanene (former counsel Malaetasi Togafau)

Attorney’s fees

Trial time, 20 hours at $125 per hour: $2,500.00 Office and other court time, 15 hours at $100 per hour: 1,500.00 Sub total 4,000.00

Costs 2,050.00 Total $6,050.00

2. For the Fonoti (counsel Afoa L. Su`esu`e Lutu)

Attorney’s fees

Trial Time, 20 hours at $125 per hour: $2,500.00 Office and other court time, 18.8 hours at $100 per hour: 1,880.00 Sub-total 4,380.00

Costs 250.00 Total $4,630.00

3. For Tauiliili and Sotoa (counsel Charles V. Ala`ilima)

Attorney’s fees

Trial time, 20 hours at $125 per hour: $2,500.00 Office and other court time,

187 13.9 hours at $100 per hour: 1,390.00 Sub-total 3,890.00

Costs 590.50 Total $4,480.50

The Alai`asa should pay the established amounts of reasonable attorney’s fees and costs incurred in this action directly to the respective counsel, as listed, for the Fanene, the Fonoti, and Tauiliili and Sotoa. Each counsel should properly distribute the funds among his cost providers, his clients, and himself.

D. Rule 11 Sanctions Imposed

The standards established by T.C.R.C.P. 11(b) state in relevant part:

(b) Representations to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney . . . is certifying that to the best of the person’s knowledge, information, and belief, formed after inquiry reasonable under the circumstances, -- (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of law; (3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; . . . .

Rule 11(c) provides:

If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may . . . impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) . . . .

[4] The sanction imposed “shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated” and may require “payment to the movant of some or all of the reasonable attorney’s fees and other expenses incurred as a result of the violation.” T.C.R.C.P. 11(c)(2). Even though it is the attorney whose

188 signature violates Rule 11, sanctions may be imposed on a client in appropriate circumstances. See Browning Debenture Holders Committee v. DASA, 560 F.2d 1078 (2d Cir. 1977). Monetary sanctions may not be imposed on a represented party for a violation of Rule 11(b)(2), T.C.R.C.P. 11(c)(2)(A), but may be imposed for a violation of Rule 11(b)(1), (3), or (4).

[5] The Fanene, the Fonoti, Tauiliili, and Sotoa requested payment of their attorney’s fees and costs in their respective motions to dismiss. In our opinion and order of August 5, 1997, we advised Aliaiàsa Filifili and Tautai A.F. Faaleavao, counsel for Alaiàsa and the Alaiàsa (“counsel”), that the court would consider whether the prosecution of these actions constituted violations of Rule 11(b)(1), (2), or (3). We further provided Alaiàsa Filifili and counsel the factual basis for considering the imposition of Rule 11 sanctions:

The Alai`asa have initiated litigation by these consolidated actions challenging the previously adjudicated ownership of large parcels of land. Most of the owners awarded these lands have also registered title to their lands. The Alai`asa causes of action were without merit ab initio. They have created clouds on the owners’ titles and disparaged the court’s decisions, at least for the duration of this litigation. Their actions have seriously disrupted the order intended under our land tenure system. They have wasted judicial resources. They have caused the landowners considerable and enduring emotional distress and expenditure of substantial and unnecessary time and money in defending their titles.

The undesirable effects of relitigating claims are unnecessary. They are readily avoidable if attorneys and their clients thoroughly research and clearly think through the issues. We need to send a message to attorneys and their clients that this kind of litigation is inappropriate and will bring serious consequences.

We gave Alai`asa Filifili and counsel opportunity to respond at an order to show cause hearing. They replied by a written memorandum filed on September 3, 1997 and reiterated the substance of the points made in this document at the hearing on September 4, 1997. None of their arguments are persuasive.

[6] First, Alai`asa and counsel erroneously contend that Rule 11 is inapplicable to land actions, because the rule was not specifically adopted for proceedings in the Land and Titles Division. Land cases are civil proceedings and do not lose that characteristic simply because a separate organizational division of the trial court is established by

189 A.S.C.A. §3.0208 to hear land and matai title controversies. Though Rule 11 is found in the civil procedure rules, the rule and the ethical standards set forth judicial enforcement historically. See West’s Federal Civil Judicial Procedure and Rules at 63-65, Advisory Committee Notes, 1983 Amendment (1996). The court is expressly exempted from the APA’s application. A.S.C.A. § 4.1001(a).

[7] Alai`asa Filifili and counsel have unduly harassed the Fanene, the Fonoti, Tauiliili, and Sotoa by the prosecution of these actions and caused them needless legal expense to defend their land titles. Accordingly, we hold Alai`asa Filifili and counsel in violation of T.C.R.C.P. 11(b)(1). In addition, counsel has submitted and advocated legal contentions that are unwarranted by existing law, or are frivolous arguments for the modification or reversal of existing law or the creation of new law. Thus, we also hold counsel in violation of T.C.R.C.P. 11(b) (2).

The appropriate sanctions in these actions, for Alaiàsa Filifili’s and counsel’s violations of T.C.R.C.P. 11(b)(1) and for counsel’s violation of T.C.R.C.P. 11(b)(2), to deter repetitious conduct or comparable conduct by others similarly situated are to hold Alaiàsa Filifili and counsel personally responsible for the payment of the reasonable attorney’s fees and costs awarded to the Fanene, the Fonoti, Tauiliili, and Sotoa. Thus, Alaiàsa Filifili, the Alaiàsa’s saò, and their counsel, Tautai A.F. Faalevao, will be jointly and severally liable for payment of the attorney’s fees and costs set by this order to the Fanene, The Fonoti, Tauiliili, and Sotoa.

E. Clerical Corrections

Several clerical mistakes in the opinion and order of August 5, 1997, have come to the court’s attention for correction under T.C.R.C.P. 60(a).

1. Page 2, list of counsel: objector Lauma Valoaga V. Moananu is deleted as party represented by counsel Charles V. Ala`ilima, and is listed as a party represented by counsel Aumoeualogo Salanoa Soli.

2. Page 5, line 4 of third full paragraph: delete “a member of the Fanene but” in the parentheses after the name Tuitoga Puailoa Fanene.

3. Page 7, line 3 of the first full paragraph: change “1090-90” to “1090- 70.”

4. Page 24, line 5 of the second full paragraph: change the list of names to read “the Fanene, the Fonoti, Tauiliili, Sotoa, and Tuia`ana.

190 1. The Alai`asa’s motion for reconsideration is dismissed.

2. The Alai`asa’s motion to stay pending appeal the award of attorney’s fees and costs and the, imposition of sanctions under T.C.R.C.P. 11 is denied.

3. The Alai`asa shall pay directly to the respective counsel of each party the following attorney’s fees and costs:

Atty’s Fees Costs Total To the Fanene: $4,000.00 $2,050.00 $6,050.00 To the Fonoti: $4,380.00 $250.00 $4,630.00 To Tauiliiii and Sotoa: $3,890.00 $590.50 $4,480.50

The respective counsel for the Fanene, the Fonoti, and Tauiliili and Sotoa shall promptly and properly distribute these funds among their cost providers, their clients, and themselves.

4. Alai`asa Filifili and counsel are in violation of T.C.R.C.P 11(b)(1) in the prosecution of these actions. Counsel is also in violation of T.C.R.C.P. 11(b)(2). As sanctions, Alai`asa Filifili and counsel are jointly and severally liable for payment of the attorney’s fees and costs set forth in paragraph 3 of this order.

5. The clerical mistakes in the opinion and order are corrected as set forth in part E of the discussion in this order and shall be incorporated in the published report of this decision.

It is so ordered.

**********

LEAPAGATELE KESI, for himself and on behalf of the PAEPAEULI and LEAPAGATELE FAMILIES, Plaintiff/Counterdefendant,

ISUMU LEAPAGATELE AND CHILDREN, FELETI KISONA, TUSIGA MAILOTO, MATT LE`I, SESILIA VOLLRATH, SEIGFRIED VOLLRATH, JR., GISELA VOLLRATH, TELESIS ESPOSO, FAYE PUNOUAI DIONNE, LA`AULI I. TUALATAMALELAGI, AMERIKA SAMOA BANK,

191 DEVELOPMENT BANK OF AMERICAN SAMOA, AFEIFEI AUÙPU ISUMU, FILOITUMUA ISUMU, ESETA ISUMU, SIMATI LEALIÌEÈ, TALIA TOA, FAÀSALELE NEÈMIA, TUMEMA ROSELYN KIM, ALEXANDER KIM, IRENE KIM, TUVAELAGI VAIVAO JEONG, SAU CHOI, VAIGA LOGO, AMERICAN SAMOA GOVERNMENT, TERRITORIAL REGISTRAR, and DOES I-X, Defendants.

SALFAIA KIRKLAND, MATAVAI SUANI, AKE HALA, PENELOPE TOETU, VASEGA SEUALUGA, NOFOAIGA SEUALUGA, and LAGIULA KALEUATI, Defendants/Counterclaimants. ______

TUMEMA KIM, ROSELYN KIM, ALEXANDER KIM, IRENE KIM, VAIGA LOGO, and LAGIULA KALEUATI, Cross-Claimants

TERRITORIAL REGISTRAR, AMERICAN SAMOA GOVERNMENT, and ISUMU LEAPAGATELE AND CHILDREN, Cross-Defendants ______

SESILIA VOLLRATH, SEIGRIED VOLLRATH, JR., and GISELA J. VOLLRATH, Cross-Claimants

TERRITORIAL REGISTER, AMERICAN SAMOA GOVERNMENT, and ISUMU LEAPAGATELE AND CHILDREN, Cross-Defendants ______

TUMEMA KIM, for herself and on behalf of her CHILDREN, Plaintiff

PALAIA SUA MULIPOLA, FELENI SUA MULIPOLA, and DOES I-IV, Defendants ______

TUSIPASI TIAPULA, SAVALIGA MASUNU,

192 and KOLOPA P. TUAISOSOPO for themselves and for the PAEPAEULI and LEAPAGATELE FAMILIES, Plaintiffs

TUMEMA KIM and DOES I-V, Defendants

High Court of American Samoa Land and Titles Division

LT No. 10-91 LT No. 33-95 LT No. 35-95

January 16, 1998 Before RICHMOND, Associate Justice, and AFUOLA, Associate Judge.

Counsel: LT No. 10-91 For Plaintiff, Gata B. Gurr For Defendants/Cross-Defendants Isumu Leapagatele and children, Defendants/Counterclaimants/Cross-Claimants Tumema Kim, Roselyn Kim, Alexander Kim, Irene Kim, and Lagiula Kaleuati, and Defendant/Cross-Claimant Vaiga Logo, Afoa L. Suèsuè Lutu For Defendants/Cross-Claimants Sesilia Volrath, Seigfried Volirath, Jr. and Glade Vollrath, Marie A. Lafae1e For Defendants/Counterclairnants Salafaia Kirkland, Matavi Sauni, Abe Hala, Penelope Toetu, Vaseqa Seualuga, and Nofoalga Seualuga, Tuanaìtau Tuia, L.P, For Defendant Amerika Samoa Bank, William H. Reardon For Defendant Development Bank of American Samoa, Malaetasi M. Togafau For Defendants/Cross-Defendants American Samoa Government and Territorial Registrar, Gwen F. Tauiliili- Langkilde, Assistant Attorney General For all other Defendants, Pro Se

LT No. 33-95: For Plaintiff, Afoa L. Su`esu`e Lutu For Defendants, Gata B. Gurr

LT No. 35-95: For Plaintiffs, Gata B. Gurr For Defendants, Afoa L. Su`esu`e Lutu

[1] Where a party dies during the pendency of a case and such death is

193 formally suggested upon the record, said action shall be dismissed as to the deceased party if a motion for substitution is not made within 90 days of the formal suggestion.

[2] The parties’ actual knowledge of another party’s death, or mention of the death in court proceedings or pleadings is not sufficient to trigger the running of the ninety day period for substitution under T.C.R.C.P. 25(a) (1).

[3] Where no formal suggestion of death had been made upon the record prior to the parties’ motion to dismiss for failure to timely substitute, said motion triggered the ninety-day substitution period.

[4] The defense of lack of subject matter jurisdiction is properly asserted under Rule 12(b)(1), not Rule 12(b)(6). [5] The High Court is conferred with exclusive trial jurisdiction over actions under the Government Tort Liability Act.

[6] A claimant must first present his claim to the Attorney General and receive a final denial before he may bring an action under the Government Tort Liability Act.

[7] Once the issue of subject matter jurisdiction is raised, the burden of establishing it always rests on the party asserting jurisdiction.

[8] Where Court lacked subject matter jurisdiction it would not consider defense of expiration of the statute of limitations.

[9] The Attorney General’s failure to make a final disposition of a claim within three months after it is filed may be deemed, at the option of the claimant, a final denial of the claim.

[10] A Motion for Judgment on the Pleadings should be granted only when the merits can be determined.

ORDER DENYING MOTION TO DISMISS COMPLAINT, GRANTING MOTION TO SUBSTITUTE PARTIES, GRANTING MOTION TO DISMISS CROSS-CLAIM, DENYING MOTION TO DISMISS CROSS-CLAIM, DENYING MOTION FOR JUDGMENT ON THE PLEADINGS BUT DISMISSING CLAIM, AND SEPARATING ISSUE FOR TRIAL

This order rules on several pending motions and directs a separate trial on the underlying land title issue. The motions were heard on September 15 and 22, 1997.

194 I. Motion to Dismiss Complaint and for Substitution of Parties

On July 25, 1997, defendant/counterclaimant/cross-claimants Tumema Kim, Roselyn Kim, Alexander Kim, and Irene Kim (“Kims”) moved to dismiss LT No. 10-91 on the grounds that no motion for substitution was made within ninety days after plaintiff Leapagatele Kesi’s death, pursuant to T.C.R.C.P. 25(a)(1). On August 8, 1997, Tusipasi Tiapula, Savaliga Masunu, and Kolopa P. Tuiasosopo, plaintiffs in LT No. 35-95, moved to substitute themselves as plaintiffs in place of plaintiff Leapagatele Kesi in LT No. 10-91.

[1] T.C.R.C.P. 25(a)(1) provides the means by which another party, or the deceased party’s successors or representatives, may substitute proper parties for a deceased party in pending litigation and the consequences of non-substitution. Rule 25(a)(1), in part, states:

Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.

The ninety day time limit for the filing of a motion for substitution begins after the death is suggested upon the record.

[2] As the rule states, the fact of death is suggested upon the record by the formal process used for service of the motion itself. The parties’ actual knowledge of the death, or mention of the death in court proceedings or pleadings is not sufficient to trigger the running of the ninety days. See, e.g., Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994) (reversing district court dismissal based on failure to file timely motion to substitute plaintiff’s estate and holding that a party must formally suggest the death upon the record and serve other parties and nonparty successors and representatives of the deceased with a suggestion of death in the same manner as required for service of the motion in order to trigger the running of the ninety days); 3B J. Moore, MOORE’S FEDERAL PRACTICE ¶ 25.06 [3] (2d ed. 1996) (“a formal suggestion of death is absolutely necessary to trigger the running of the ninety days”).

[3] No formal suggestion of death was made upon the record prior to the Kims’ motion to dismiss. This motion triggered the ninety-day substitution period. However, the motion for substitution by Tusipasi Tiapula, Savaliga Masunu, and Kolopa P. Tuiasosopo was timely filed within the ninety-day period.

The Kims’ motion to dismiss to dismiss LT No. 10-91 will be denied.

195 The motion by Tusipasi Tiapula, Savaliga Masunu, and Kolopa P. Tuiasosopo to substitute themselves as plaintiffs in place of plaintiff Leapagtele Kesi in LT No. 10-91 will be granted.

II. Motion to Dismiss Cross-Claim of Sesilia Vollrath, Siegfried Vollrath, Jr., and Gisela J. Vollrath

On August 21, 1997, defendants/cross-defendants Territorial Registrar (“Registrar”) and American Samoa Government (ASG”) moved in LT No. 10-91 to dismiss the cross-claim of defendants/cross-defendants Sesilia Vollrath, Siegfried Vollrath, Jr., and Gisela J. Vollrath (“Vollraths”) for failure to state a claim upon which relief can be granted, pursuant to T.C.R.C.P. 12(b)(6). The Registrar and ASG contend that the Vollraths have failed to exhaust administrative remedies and thus have not satisfied jurisdictional requirements to bring the claims, and that the two-year statute of limitations in which to bring their cross-claim action against the Registrar and ASG has expired. The Vollraths counter, in part, that the Registrar and ASG submitted to the court’s jurisdiction and waived the exhaustion requirement by answering the original complaint in 1991.

Some T.C.R.C.P. 12 defenses are waived if they are neither asserted by motion under Rule 12, nor included in a responsive pleading or an amendment to such pleading. T.C.R.C.P. 12(h)(1). A defense of failure to state a claim upon which relief can be granted, however, “may be made in any pleading permitted or ordered under 7(a) TCRCP, or by motion for judgment on the pleadings, or at the trial on the merits.” T.C.R.C.P. 12(h)(2). Similarly, a defense of lack of subject matter jurisdiction may be made at any time. T.C.R.C.P. 12(h)(3).

[4] Lack of subject matter jurisdiction is appropriately asserted under Rule 12(b)(1), not Rule 12(b)(6). Because dismissal for failure to state a claim under Rule 12(b)(6) is an adjudication of the merits of the action, the court must possess subject matter jurisdiction in order to grant that relief, 2A J. Moore, MOORE’S FEDERAL PRACTICE ¶ 12.07[2.-5] (2d ed. 1996).

[5-6] The Vollraths’ cross-claim against the Registrar and ASG seeks money damages for injury to or loss of property caused by the “negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment.” Civil actions of this nature are regulated by the Government Tort Liability Act. A.S.C.A. §§ 43.1201-.1213. The High Court is conferred with exclusive trial jurisdiction over such actions. A.S.C.A. § 43.1209. However, “[a]n action may not be instituted upon a claim against the government for money damages for damage to or loss of property, . . . unless the claimant has first presented the claim to the Attorney General and his

196 claim has been finally denied by the Attorney General . . .” A.S.C.A. § 43.1205. See Mataipule v. Tifairnoana Partnership, Ltd., 14 A.S.R.2d 100, 101 (Trial Div. 1990) (“As a prerequisite to jurisdiction, the American Samoa statutory scheme requires that a prerequisite administrative claim be made and either denied or ignored for three months, at which time it is deemed denied.”). The administrative claim prerequisite also applies to counterclaims, cross-claims, and third-party complaints. Bryant v. Southwest Marine of Samoa, Inc., 22 A.S.R.2d 88, 89 (Trial Div. 1992).

[7] “Once the existence of subject matter jurisdiction is challenged, the burden of establishing it always rests on the party asserting jurisdiction,” 2A J. Moore, MOORE’S FEDERAL PRACTICE ¶ 12.07[2.-1] (2d ed. 1996). See also, e.g., Moir v. Greater Cleveland Regional Transit Auth., 895 F.2d 266 (6th Cir. 1990) (plaintiff bore burden of establishing the existence of subject matter jurisdiction). The Vollraths did not file the

197 mandatory administrative claim with Attorney General.65 We conclude, therefore, that this court does not yet have jurisdiction over the Vollraths’ cross-claim against the Registrar and ASG.

[8] Because we do not have subject matter jurisdiction, we decline to rule on the Rule 12(b)(6) aspect of the Registrar’s and ASG’s motion to dismiss, which asserts the defense of expiration of the statute of limitations. Ehin v. National R.R. Passenger Corp., 732 F.2d 1250, 1257 (5th Cir. 1984), cert. denied, 469 U.S. 982, 105 S. Ct. 387, 83 L.Ed.2d 322 (1984) (holding that dismissal premised upon both Rule 12(b)(1) and (b)(6) is fatally inconsistent, because if the court lacks subject matter jurisdiction, it cannot proceed to decide the merits of the action).

Since the Vollraths did not comply with the administrative claim prerequisite, the court does not have subject matter jurisdiction over their cross-claim at this time. The Registrar’s and ASG’s motion to dismiss will therefore be granted for lack of subject matter jurisdiction.

III. Motion to Dismiss Cross-Claim of the Kims, Vaiga Logo, and Laguila Kaleuati

On August 18, 1997, the Registrar and ASG moved in LT No. 10-91 to dismiss the cross-claim of the Kims, Vaiga Logo and Laguila Kaleuati for failure to state a claim upon which relief can be granted, pursuant to T.C.R.C.P. 12(b)(6). Again, the Registrar and ASG contend that the Kims, Vaiga Logo and Laguila Kaleuati failed to exhaust administrative remedies and thus have not satisfied jurisdictional requirements to bring the claims, and that the two-year statute of limitations in which to bring their cross-claim action against the Registrar and ASG has expired. The Kims, Vaiga Logo and Laguila Kaleuati argue, in part, that their cross- claim is based in equity as well as under the Tort Claims Act, and thus is still under the jurisdiction of this court. In addition, the Kims, Vaiga Logo and Laguila Kaleuati presented their claim to the Attorney General on August 20, 1997.

Again, lack of subject matter jurisdiction is appropriately asserted under Rule 12(b)(1), not Rule 12(b)(6). Because dismissal for failure to state a claim under Rule 12(b)(6) is an adjudication of the merits of the action, the court must possess subject matter jurisdiction in order to grant that relief. 2A J. Moore, MOORE’S FEDERAL PRACTICE ¶ 12.07[2.-5] (2d ed. 1996).

[9] As noted previously, “[a]n action may not be instituted upon a claim against the government for money damages for damage to or loss of property, . . . unless the claimant has first presented the claim to the Attorney General arid his claim has been finally denied by the Attorney General . . . .” A.S.C.A. § 43.1205. On August 18, 1997, when the

198 Registrar and ASG filed their motion to dismiss, the Kims, Vaiga Logo and Laguila Kaleuati had not yet filed their administrative claim. However, on August 20, 1997, the Kims, Vaiga Logo and Laguila Kaleuati fulfilled the filing prerequisite by submitting their claim to the Attorney General. The Attorney General’s failure to make a final disposition of a claim within three months after it is filed may be deemed, at the option of the claimant, a final denial of the claim. A.S.C.A. 13 43.1205(a). Because three months have passed since the Kims, Vaiga Logo and Laguila Kaleuati filed their claim, without the Attorney General acting of record on it, the court’s jurisdiction over the action is apparently perfected. See Mataipule, 14 A.S.R.2d at 107 (Trial Div. 1990) (“While a jurisdictional defect was present when this suit was originally filed, that defect was cured by denial of the claim.”).

We conclude, therefore, that the Kims, Vaiga Logo and Laguila Kaleuati met the requirements of A.S.C.A § 43.1205, which give this court jurisdiction over their cross-claim. On this basis, the Registrar’s and ASG’s motion to dismiss will be denied. If the Registrar and ASG wish to bring their motion again, based on the statute of limitations issue, they may. If this motion is filed, we will consider the parties’ arguments concerning the statute of limitations at that time. In this regard, the parties should consider the application of the recent decision in Bradcock v. American Samoa Gov’t, 1 A.S.R.3d 42 (Appellate Div. 1997) to the facts in LT No. 10-91.

IV. Motion for Judgment on the Pleadings

On August 21, 1997, ASG moved in LT No. 10-91 for a judgment on the pleadings, pursuant to T.C.R.C.P. 12(c), and dismissal with prejudice of the claim against ASG by plaintiff Leapagatele Kesi, for himself and on behalf of the Paepaeiili and Leapagatele families (“Leapagateles”). As with the Registrar’s and ASG’s motions to dismiss, discussed above, ASG declares as grounds for a judgment on the pleadings that the Leapagateles have failed to state an actionable claim. ASG argues that the Leapagateles failed to exhaust administrative remedies and therefore have not satisfied jurisdictional requirements to bring the suit, and that the two-year statute of limitations in which to bring an action has expired.

[10] The Leapagateles also did not effect the administrative claim requirements of A.S.C.A. § 43.1205(a). As discussed above, therefore, the court lacks subject matter jurisdiction over the Leapagateles’ claim against ASG at this time. Without subject matter jurisdiction, the court is unable to determine the merits of the claim and to make a judgment on the pleadings. “Judgments on the pleadings should be given only when the merits can be determined in that manner. . . .” 2A J. Moore,

199 MOORE’S FEDERAL PRACTICE ¶ 12.15 (2d ed. 1996). See also Collins v. Bolton, 287 F. Supp 393, 396 (N.D.Ill. 1968) (holding that where the defendant alleges only jurisdictional grounds for dismissal, the proper course is to consider the motion as one to dismiss for lack of subject matter jurisdiction because a motion for judgment on the pleadings is a motion for judgment on the merits).

Therefore, ASG’s motion for a judgment on the pleadings will be denied. However, because the court does not have subject matter jurisdiction over the claim, the Leapagateles’ claim against ASG will be dismissed.

V. Separate Trial on the Underlying Land Title Issue

The court, on its own motion, pursuant to T.C.R.C.P. 42(h), will separate the trial on the underlying issue of whether the land at stake in these consolidated actions was, and still is, the Paepaeuli and Leapaqatele families’ communal land or was defendant/cross-defendant Isumu Leapagatele’s individually owned land prior to the transfer of portions of the land to any of the other parties to these actions as Isumu Leapagatele’s successors in interest. The remaining parties, both the individuals and banking institutions, have claims to the land which are dependent on the validity of Isumu Leapagatele’s claim of title to the land.

When the amended complaint in LT No. 10-91 was filed on June 19, 1997, the parties and issues in these actions became too numerous and unwieldy for a single trial. Hence, we believe that an initial trial of the underlying land title issue would be more convenient for the parties and may reach the ultimate resolution of these actions in a more expeditious and economical manner. All parties may, of course, attend and participate in this initial trial. They may present admissible evidence on the underlying land title issue and cross-examine the witnesses on this issue.

1. The Kims’ motion to dismiss LT No. 10-91 is denied.

2. The motion by Tusipasi Tiapula, Savaliga Masunu, and Kolopa P. Tuiasosopo to substitute themselves as plaintiffs in place of Leapagatele Kesi in LT No. 10-91 is granted.

3. The motion by the Registrar and ASG to dismiss the Vollraths’ cross- claim in LT No. 10-91 is granted.

4. The motion icy the Registrar and ASG to dismiss the cross-claim by the Kims, Vaiga Logo and Laguila Kaleuati’s in LT No. 10-91 is denied.

200 5. ASG’s motion for a judgment on the pleadings in LT No. 10-91 is denied. However, the Leapagatele’s claim against ASG in LT No. 10-91 is dismissed.

6. Trial of the underlying land title issue is separated from all other issues. The trial on this issue will be held first. Any party may move for the trial setting on this issue at any time.

It is so ordered.

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HC TULIFUA TINI P. LAM YUEN, Senior Matai of the Tulifua Family for himself and on behalf of the TULIFUA FAMILY, Plaintiff

TALAE TUITELE and HEIRS OF UAINE TUITELE, TOM HO CHING, and PATRICIA HO CHING, Defendants

LT No. 10-93

July 13, 1998

Before RICHMOND, Associate Justice, and LOGOAI, Associate Justice.

Counsel: For Plaintiffs, Afoa L. Su`esu`e Lutu For Defendants, Gata E. Gurr

201 [1] When certain land has a valid title registration, the law conclusively presumes either that the procedures for alienation of communal land were followed or that the land was not communal.

[2] When the title to land is properly registered, all other claims of ownership are forever precluded.

[3] The court will engage in a de novo review of the Territorial Register’s compliance with statutory requirements only when there is a facially defective record of the registration, proof of a fraudulent registration, or other compelling grounds.

[4] The proponent of a title registration must submit a properly performed survey with the offer of registration.

[5] When litigation arises out of an objection to an offer for registration of title to land, lapse of time between the survey and the registration offer raises a question of fact whether rival claimants to the particular and adjacent lands received fair notice of the intended survey.

[6] A concluded registration proceeding carries a presumption of finality.

[7] Where certificate of registration of title was not facially invalid, Court could conclusively presume that notice of intended survey was properly given and that the survey was performed contemporaneously and in accordance with A.S.C.A. § 37.0102.

[8] Where affidavit of posting mentioned “Administration building” instead of courthouse, described only one public place posting in village nearest the land, was attested to at beginning of posting period, not end, and where jurat was never signed by Territorial Registrar, it was facially defective.

[9] Because Territorial Registrar is obligated to register a land title only when all the statutory requirements are met, Court could not conclude that required notices were not properly given where evidence consisted of witnesses simply testifying that they had never seen the notices.

[10] Once land is registered as individually owned land, the court cannot treat the land as communal land simply because the family group associated with the land occupies the land communally.

[11] Heirs of individually owned land, own the land as tenants in common.

[12] A tenant in common possesses an undivided possessory interest in the entire area of the land and an equal say in the uses of the land.

202 [13] A lease of land held by tenants in common is not valid unless each of the owners either consented to, gave the lessor express or apparent authority to enter, or ratified the lease transactions.

OPINION AND ORDER

Plaintiff HC Tulifua Tini P. Lam Yuen (“Tulifua”) brought this action to determine whether certain land is communal land of the Tulifua family or is individually owned land of defendant Heirs of Uaine Tuitele (“the heirs”). Both Tulifua and defendant Talae Tuitele (“Talae”), on behalf of the heirs, base their claims on original and continuous occupancy. Tulifua also objected to registration of a proposed lease of a portion of the land by Talae to defendants Tom Ho Ching and Patricia Ho Ching (“the Ho Chings”). The case was tried on December 18 and 19, 1997. Tulifua and Talae were present with their counsel throughout the trial.

Discussion

The land at issue (“the land”) is located in the Village of Taputimu, American Samoa. The land is named “Nonuaimoa” and contains approximately 14.18 acres. On July 13, 1989, the Territorial Registrar issued a certificate of registration of the title to the land as the individually owned land of the “Heirs of Uaine Tuitele.”

[1-3] The evidence in the record could support either a claim of communal land or a claim of individually owned land at the time of the title registration. However, if the title registration is valid, there is no need to reach this issue. When certain land has a valid title registration, “the law . . . conclusively presumes either that the procedures for alienation of communal land were met or that the land was not communal.” Ifopo v. Siatu`u, 21 A.S.R.2d 24, 27 (Appellate Div. 1989). Therefore, we will first resolve the issue of whether the title registration was valid. The overriding policy of the statutory registration process is to permanently secure titles to land. Id. at 28. When the title to land is properly registered, “all other claims of ownership are forever precluded.” Id. at 26. The court must assume that the Territorial Registrar registered a title in compliance with the law. The court will engage in a de novo review of compliance only when there is a facially defective record of the registration, proof of a fraudulent registration, or other compelling grounds. Id. at 28.

[4] Tulifua challenges the Territorial Registrar’s record of the registration in two facial respects. First, Tulifua cites the 18-year delay after the land was surveyed before Talae offered the land for registration on May 10, 1989. The proponent of a title registration must submit a properly performed survey with the offer of registration. A.S.C.A. §

203 37.0102(a), (b). The surveyor and pulenu`u (or “the mayor”) of the village where the land is located, or nearest to where the land is located, must verify, by a certificate accompanying the survey, that the pulenu`u gave public oral notice in the village at a meeting of the chiefs of the village of the time and place of the intended survey. A.S.C.A. § 37.0102(c). The purpose of this notice is to give interested landowners opportunity to be present at the survey. Id.

The record of the registration shows that the surveyor certified in June 1971, and that the American Samoa Government’s lands and survey manager certified on June 18, 1974, that the survey of the land was conducted in conformance with the laws and regulations pertaining to surveys. On May 18, 1987, the same surveyor and the pulenu`u at the time of the survey in 1971 certified that on June 5, 1971, the pulenu`u gave public oral notice of the time and place of the intended survey at a meeting of the Taputimu village chiefs.

[5-7] When litigation arises out of an objection to an offer for registration of title to land, lapse of time between the survey and the registration offer raises a question of fact whether rival claimants to the particular and adjacent lands received fair notice of the intended survey. Lualemaga v. Asifoa, 9 A.S.R.2d 85, 87 (Land & Titles Div. 1988).

204 Lualemaga was an ongoing disputed registration proceeding.66 This case, however, concerns a concluded registration proceeding which carries a presumption of finality. Ifopo v. Siatu`u, 10 A.S.R.2d 66, 73 (Land & Titles Div. 1989). The present certificate is not facially invalid. Thus, we conclusively presume that in 1971 notice of the intended survey was given and that the actual survey was performed contemporaneously and in accordance with A.S.C.A. § 37.0102.

Next, Tulifua claims that the Territorial Registrar’s record shows that the notice given for the proposed title registration of the land was defective. On May 10, 1989, when Talae offered the land for registration, the law required that notice of the proposed registration be posted for 60 days on the bulletin board at the courthouse in Fagatogo and at two public places in the village in which or nearest to which the land is situated. A.S.C.A. § 37.0103(a) (1981) (amended May 22, 1989). The purpose of this notice is to afford persons claiming interests in the land adverse to the applicant opportunity to object to the title registration. A.S.C.A. § 37.0103(b). If no adverse claims are filed in this 60-day period, and all other requirements are met, the Registrar is mandated to register the title in the applicant’s name. A.S.C.A. § 37.0103(c) (1981) (amended May 22, 1989; current version at A.S.C.A. § 37.0103(d)). After legally proper registration, all other claims of ownership are barred forever. Ifopo, 12 A.S.R.2d at 26.

[8] The notice for the proposed registration affirmatively states that the notice was posted from May 10, 1989 to July 10, 1989, a period of 62 days. The affidavit of posting in the record only confirms the posting for the same period on the bulletin board at the “Administration building” in

205 Fagatogo67 and on one telephone pole in Taputimu. The affidavit fails to record any posting of the notice at a second public place in Taputimu. The affiant also signed the affidavit on May 10, 1989, when he could not actually have verified posting for 60 days. Finally, the jurat on the affidavit calls for the Territorial Registrar’s signature on May 10, 1989 but was not executed on that or any other date.

[9] Clearly, the affidavit of posting is facially defective. However, on May 10, 1989, A.S.C.A. § 37.0103 (1981) (amended May 22, 1989) did not require that the posting of the notice at the two public places in the appropriate village be evidenced by an affidavit or any other particular form of evidence. See Vaimoana v. Tuitasi, 13 A.S.R.2d 76, 82 (Land & Titles Div. 1989). The notice of the proposed registration itself shows that the notice was posted for 62 days. Moreover, the Territorial Registrar is obligated to register a land title only when all the statutory requirements are met, and the court should not assume that the Registrar did not carry out this responsibility. Ifopo, 12 A.S.R.2d at 28. The court cannot conclude that the required notices were not properly given simply

206 because witnesses testify that they never saw the notices. Id.68

In 1989, the notice requirements in the land registration laws were supplemented, effective on May 22, 1989. P.L. No. 21-1 (codified as amended at A.S.C.A. § 37.0103). One amendment adds the element of publication in a local newspaper at least once each 30 days during the 60-day notice period. A.S.C.A. § 37.0103(a). The other substantive change requires the registration applicant to submit notarized statements from the pulenu`u, newspaper, and clerk of the court that the required notices have been given before the Territorial Registrar can register the land title. A.S.C.A. § 37.0103(c).

The notice of the proposed registration of the land was not published in a local newspaper. An affidavit from a newspaper was thus not filed with the Registrar. Moreover, the evidence of the courthouse posting comes not from the Clerk of the Court but only in the unsworn statement by the Registrar’s staff member. Talae’s application for registration of the land was, however, filed 12 days before the effective date of the 1989 amendments requiring proof of the required notice by various affidavits. The 1989 amendments do not have retroactive effect, and this registration is therefore governed by the registration laws as they existed on May 10, 1989, not as they were amended on May 22, 1989. Ambrosino v. Rodman & Renshaw, Inc., 635 F. Supp. 965, 974 (N.D. Ill. 1986); Franklin v. New Mexico, ex rel. Dep’t of Human Resources, 730 F.2d 86, 87 (10th Cir. 1984).

Lastly, Tulifua alleges that the heirs procured the title registration as their individually owned land by fraud. Uaine Tuitele was a member of the Tuitele family of Leone. He was also a member of the Tulifua family of Taputimu. He occupied the land at least as far back as 1929. After his death, the heirs continued to occupy and use the land, virtually exclusive of occupancy and use by any other member of the Tulifua family.

Tulifua believes that Uaine Tuitele and the heirs after his death were on the land as Tulifua family members and representatives of the Tulifua family’s communal interests. Based on the evidence, however, we find that Uaine Tuitele and the heirs openly asserted that the land was their individually owned land.

Memories among other members of the Tulifua family may have faded over time during the successive reigns of the Tulifua titleholders. It is also true that the Tulifua title was vacant when the land was surveyed in 1971 and was registered in 1989. Nonetheless, members of the Tulifua family were aware of both the survey and registration processes and failed to timely object to the registration process. We do not find any evidence of fraud by Talae or others among the heirs in offering the land

207 for registration as the heirs’ individually owned land.

Since the registration of the title to the land was properly carried out of record, and since there is no evidence of fraud or other grounds to set aside the title registration, we conclude that the heirs own the land as their individually owned land. We cannot, however, direct the Territorial Registrar to record the lease to the Ho Chings.

Talae is regarded as the head of the heirs. In this capacity, he has undertaken a primary role in transactions concerning the land. The transactions in evidence include the Ho Chings’ lease. Patricia Ho Ching is one of the heirs. The other transactions in evidence are agreements purportedly separating residential structures from the land to Silimusa M. and Taifita S. Solomona and to Edmund and Mary Pereira. Silimusa Solomona and Mary Pereira are also members of the heirs.

[10] Talae has acted in the manner of the sa`o (or “senior chief”) of a Samoan family exercising pule (or “power”) over the family’s communal land. He has achieved an apparent consensus among the heirs in support of his actions regarding the land. Indeed, the separation agreements describe the land as communal land of the Uaine Tuitele family or of Uaine Tuitele. Traditionally, however, the Tuitele family is a Leone, not a Taputimu, family. No evidence was presented that Uaine Tuitele is a traditional family of either village. Moreover, once land is registered as individually owned land, the court cannot treat the land as communal land simply because the family group associated with the land occupies the land communally. See Roberts v. Sesepasara, 7 A.S.R.2d 139, 141- 42 (Land & Titles Div. 1988)

[11-13] As owners of individually owned land, the heirs own the land as tenants in common. Uaine Tuitele’s children inherited the land in this manner. A.S.C.A. § 40.0202(a). His children received equal undivided interests in the land, and the issue of each deceased child succeeded to those interests, per stirpes. A.S.C.A. § 40.0204. The successors are also tenants in common. Coulson v. Hillmer, 612 S.W.2d 124, 126 (Ark. App. 1981). As a tenant in common, each heir has an undivided possessory interest in the entire area of the land and an equal say in the uses of the land. Wagman v. Carmel, 601 F. Supp. 1012, 1015 (D. Pa. 1985). The lease to the Ho Chings is thus not valid unless each of the heirs either consented to, gave Talae express or apparent authority to enter, or ratified the lease transactions. None of these alternatives is established by the evidence.

1. The title registration of the land in the name of the Heirs of Uaine

208 Tuitele as their individually owned land is valid.

2. The lease to the Ho Chings is invalid and shall not be registered by the Territorial Registrar.

3. The Clerk of the Court shall submit certified copies of this opinion and order and the judgment entered in this action to the Territorial Registrar.

It is so ordered.

**********

ULUFALEILUPE SAFUE, Plaintiff,

UIAGALELEI IONA, Defendant.

LT No. 31-91 LT No. 46-92 LT No. 17-94 LT No. 17-95

June 4, 1998

[1] Traditional boundary markers can be used to corroborate boundary lines.

[2] Continuing open use and occupation of a disputed area can be used to support a land claim.

[3] Land disputes are decided by a preponderance of the evidence.

Before WARD, Acting Associate Justice, TUAOLO, Associate Judge, and PESE, Associate Judge.

Counsel: For Plaintiffs, Gata Gurr, Esq. For Defendant, Charles V. Alalilima, Esq.

OPINION AND ORDER

209 Procedural History

These consolidated cases were brought, by and large, to quiet title in certain communal lands in the village of Futiga by the Ulufale and Uiagalelei families. These neighboring, but not particularly neighborly, families have a history of disputing their common boundaries, (see LT. No. 24-85 and LT. No. 59-90, AP. No. 15-92). The first of the four cases consolidated here is LT. No. 31-91 (wherein Ulufaleilupe attempted to register approximately one-half of an acre of land adjacent to the Leone-Pavaiai main highway and bisected by the road leading to the Futiga landfill). Uiagalelei duly objected to this proposed land registration. This parcel, or more precisely, that half of this parcel on the eastern side of the landfill road, was the subject property in the previous eviction case brought by Uiagalelei against members of the Ulufale family who constructed a residence thereon during the early 1990s (LT. No. 59-90 & AP. No. 15-92).

The second of the consolidated cases is LT. No. 45-92, a case brought by Ulufaleilupe against Uiagalelei for injunctive relief against the latter’s actions of bulldozing land claimed by the former.

The third of the consolidated cases is LT. No. 17-94 in which Uiagalelei et al objected to a proposed registration of approximately 10 acres of communal land known as “Lepapa, by Ulufaleilupe.

The fourth and final consolidated cases is LT. No. 17-95 in which Ulufaleilupe objected to the proposed registration of approximately 10 acres of communal land known as “Vaipapa, Leififaapae, Lalogatae, and Fonomaitu,” by Uiagalelei. All cases were consolidated for trial.

After several continuances granted to the Ulufale family due to the intervening death of their senior matai, this matter proceeded to trial on May 19, 1998, with a continuing vacancy in that office. The parties previously stipulated that the crops planted or growing on the disputed, overlapping areas of communal land would be awarded to the prevailing party. The Court heard testimony, admitted various exhibits into evidence, and after 2 ½ days of trial, recessed to view the subject lands and directed counsel to submit closing arguments in writing, which were duly filed.

Findings of Fact

During the several pre-trial hearings on motions filed by counsel, the Court indicated that those areas of each respective survey situated outside of any overlapping claims did not appear at issue in these controversies since only the two parties before the Court had objected to

210 the proposed land registrations—no other families had flied any such objections. It became apparent, however, from counsel’s opening statements that these three overlapping surveys did not represent the sum total of lands claimed in Futiga by these respective families. This decision will, therefore, address the overlapping areas and all extensions beyond those areas. We are persuaded from the arguments of counsel and the testimony presented that no, or at most harmless, error occurred at trial as a result of the earlier pronouncement by the Court.

For purposes of this section the Court will rely upon Exhibit 3, a composite map showing both of the 10 acre parcels claimed by the respective families, and reference our remarks to the survey boundaries and monuments appearing thereon. We will leave for later discussion the one-half acre parcel at issue in LT. No. 31.

Testimony for the Ulufale family with respect to their claimed 10 acre parcel was primarily given by Ms. A`asa, a 58 year old resident of Futiga and a member of the Ulufale family. She testified that the contested overlapping portions of the surveys, (3.83 acres-Exhibit 3), were Ulufale land and her family had grown crops on the land without objection from the Uiagalelei family for years. Even though the Ulufale family had no houses within the area of dispute, the Uiagalelei family dwellings located there were built with Ulufale`s permission after the hurricane of 1996. On cross-examination she admitted that the name “Lepapa” means solid rock, but in the contested area there was good soil for growing crops. Further, she admitted to being served with a restraining order during the burial of her late brother near her home in April 1994. That grave appears on Exhibit 3 slightly inside the southern boundary of the Uiagalelei survey in the southwest corner. No other Ulufale family members are buried in that location or on the disputed area of land. Mrs. A`asa, although forthright in her recollection of events, did become somewhat confused when asked by counsel to locate specific areas, such as the communal pigsty, using Exhibit 3.

The second witness testifying about the Ulufale survey of the 10 acres was Salele`a Tuiolemotu who admitted to being an unlicensed surveyor who did work for licensed surveyors and who was the “surveyor” of the Ulufale parcel. No previous survey of this property existed. He also acknowledged that his starting point in the north east corner of the survey was directed by the late Ulufale Safue who instructed him to divide the church in two. No monument was found for that point of beginning, although to the east, there were a row of coconuts and a hedge close to the houses located there. As to the balance of the survey, no monuments were found or used, he simply plotted the metes and bounds as directed by the Ulufale people accompanying him.

As to the Uiagalelei testimony, the testimony was given by Uiagalelei

211 Iona, the present senior matai of that family, age 53. His testimony concerning the land includes his personal involvement in previous litigation with the Ulufale family and includes his recollection of what his late father, the previous senior matai of the family, showed and told him about the land. His testimony was that the point of beginning for his survey was a coconut tree on the north side of the highway from which the survey then proceeded south along a defined hedge then up a ridge and along the crown of that ridge as marked by a row of coconut trees and stopping at a stone wall, the remaining southern boundary of the old communal pig sty. The survey then proceeded westerly along that rock fence until its end then northerly in an arc around Mrs. A`asa’s family homes, then westerly to the landfill road. From there the survey proceeds northerly along the landfill road to the main highway then east to the point of beginning. He testified that the point of beginning, the coconut tree, had been agreed upon between the two families at the conclusion of the previous land case over the grave site on the north side of the highway. Further, he testified that the area claimed contained, until recently, only his family’s crops, residence and graves. Further, that the pig sty area was mostly on his family’s lands although it did formerly extend to the east onto Ulufale lands. The houses of his family on the disputed area of land were built with his father’s approval and duly approved by the village pulenu`u, who was a member of the Ulufale family.

Uiagalelei Iona also testified that the church site had been selected by his father well with the family’s lands and the then Ulufale senior matai was of a different denomination and did not provide any land for the church. Although evasive at times, his testimony was by and large credible as to boundary monuments and historic as well as recent use and control of the disputed area.

Discussion

[1] When reviewing the property the Court found that the monuments, family houses, graves, pig sty wall and other traditional boundary markers corroborated the testimony of Uiagalelei.

There is a clearly defined boundary of coconut trees, hedges, and walls east of the church at the survey line submitted by Uiagalelei. The ridge line is also defined by coconuts and that north-south boundary line ends at the pig sty rock wall, then turns and runs west the full course of that wall to a point where the wall begins to curve northerly. Although the arc around Mrs. A`asa’s houses is less defined, there is no indication, by houses or graves, (other than the recent 1994 grave of Mrs. A`asa’s brother), that the area northerly of this survey has been cultivated or used by anyone other than the Uiagalelei family.

212 The Ulufale survey does not rely upon any ascertainable monuments. It includes houses and graves of the Uiagalelei family, and, as per the direction of the previous Ulufale senior matai, it bisects the church. Nor does it appear that the Ulufale survey was conducted, as required by law, by a licensed surveyor. [2-3] The continuing open use and occupation of the disputed area by the Uiagalelei family, the rather fertile low lying ground which could not conceivably bear description as “stony ground,” and the aged, visible monuments conforming to the Uiagalelei survey lead us to the conclusion that the Uiagalelei survey of this 10 are parcel accurately reflects communal land owned by that family, by a clear preponderance of the evidence.

Nothing prevents the Ulufale family from registering all lands claimed by their survey east of the clearly defined (north-south) eastern boundary of the Uiagalelei property, but any lands claimed west of that line have not, by a preponderance of the evidence presented, been proven to be owned by the Ulufale family. Of course this may require a re-survey by a licensed surveyor prior to any such registration.

To clarify, we deny the Ulufale`s claim for injunctive relief and crop damages under LT. 46-92. The area bulldozed is immediately south of Uiagalelei Iona’s residence and to the central northerly part of the disputed area, which we have held is Uiagalelei family land.

Further, as to LT. No. 17-94, the Ulufale family may register, (assuming full compliance with surveyor verification), only that part of their proposed survey east of the Uiagalelei survey’s eastern boundary running north to south.

Finally, as to LT. No. 17-95, the Uiagalelei survey of approximately 10 acres, shall be duly registered based upon our decision herein. As per previous agreement of counsel all crops growing on this parcel are declared to be owned by the Uiagalelei family, the prevailing party in this dispute.

We are left with LT. No. 3 1-91 to which we now return. Counsel for the Ulufale family has repeatedly moved this Court to find for his clients based upon res judicata, (the previous failure of the Uiagalelei family to prevail in an eviction action concerning a portion of that disputed property in LT. No. 59-90 and App. No. 15-92). As the Appellate Division clearly stated however, that action did not decide title to the property. This case, filed early in 1991 was not consolidated with LT. 59-90 before it was decided in July 1992, for reasons best known to the parties. As clearly stated by the Appellate Division, however, title to the

213 land was not decided in LT. No. 59-90. This issue of title to this property remains unresolved and must be addressed here.

Findings of Facts

Each side presented only one witness as to the parcel in LT. No. 31-91. For the Ulufale family, Fuimaono Fili Faasuamalie testified he was 66 years old and had resided in Futiga his whole life except for off-island military service from 1954-1970. He described the land as “Lepapa,” a portion of the Ulufale communal land. He stated both he and his father had worked this land early in his life and in 1947 built a fale on the western half of this property which was still there when he left island in 1954. When he returned in 1970 the fale was not there, but in its place was a palagi style house.

Later, he constructed a house on the eastern portion of this parcel which was the subject matter of the dispute in LT. No. 59-90. He also stated that no previous Uiagalelei had ever objected to his sisters living on the western portion of this property. Previously the eastern portion had been used as a site for a fale for the village aumaga.

On cross-examination this witness stated that this parcel is surrounded by Uiagalelei land, house, and stores. He also acknowledged that a certain Tuft was married into the Ulufale family and her oldest sister Fau, from a previous relationship of her mother, Maga, was related to the Uiagalelei family.

As to Uiagalelei Iona’s testimony, he stated the parcel of land was historically Uiagalelei family land and that his father’s sister, Fau, had been assigned the western portion by his father for a residence. She built a samoan fale there around 1953 and finally a more permanent structure before moving to another village with her husband. Fau’s half-sister and her mother, Maga, remained on the land in the house and the half-sister, Tuft, married a certain Tietie, the brother of the Ulufale witness in this matter, and this was how the Ulufale family came to live on the land. Uiagalelei stated that the use by Fau’s relatives of the western portion of this property (the west side of the bisecting landfill road) has not been disturbed because she was a sister to his father, but the recent building of a house by Faasuamalie on the eastern portion of the property far exceeded the previous assignment to Fau.

Discussion

The testimony offered herein is similar to the previous testimony offered by the parties in LT. No. 59-90. That Court decided that it would be highly unusual for a senior matai to allow persons rendering service to

214 another family’s senior matai to reside on their communal lands. Therefore that Court held that the entire parcel was the land “Lepapa” belonging to the Ulufale family. As we have decided earlier, however, the Ulufale communal land known as “Lepapa” does not extend to this area. This parcel of land is totally surrounded by Uiagalalelei land and buildings. We find that although it might be unusual to see members of the Ulufale family live on Uiagalalei lands while they continued to render services to the Ulufale senior matai, it is far more unusual to find a small island of Ulufale communal land, with the same name as the bulk of Ulufale lands well to the east of this parcel, within a sea of Uiagalalelei land and houses. The most plausible explanation for this agreeably unusual occurrence is that the Ulufale family came to the land with the permission of the Uiagalalelei family, through Fau, the aunt of the present Uiagalalei. By a preponderance of the evidence, we find that the Uiagalelei family prevails as to the title to the eastern portion of this particular one-half acre parcel which is included in the 10 acre parcel of Uiagalelei land decided above.

Conclusion

With respect to LT. No. 31-91, we hold that the proposed registration of the one-half acre parcel of the land claimed by the Ulufale family as the land “Lepapa” be denied. Such portion of this disputed property as lies within the 10 acre survey of Uiagalalei land, (that portion east of the landfill road), shall be included in that registration. Uiagalelei has not filed any survey embracing the western portion of this parcel and has indicated that the present use and occupancy of that portion by the Ulufale family members may continue. We leave that matter for later resolution between the parties, which we may hope could be conducted in other than a courtroom setting.

With respect to the residence of Faasuamalie constructed on the eastern side of the road upon a portion of Uiagalelei land, we find this structure to be the property of Faasuamalie. The parties may either negotiate a lease, purchase, or rendering of services arrangement to prevent a forfeiture of this residence. Should the parties be unable to resolve this matter through good faith negotiations and compromise, either party may petition this Court for such relief as is proper and just under the circumstances.

So Ordered, Adjudged and Decreed.

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215 HC TULIFUA TINI P. LAM YUEN, Senior Matai of the Tulifua Family for himself and on behalf of the TULIFUA FAMILY, Plaintiff

TALAE TUITELE and HEIRS OF UAINE TUITELE, TOM HO CHING, and PATRICIA HO CHING, Defendants

LT No. 10-93

July 13, 1998

Before RICHMOND. Associate Justice, and LOGOAI, Associate Judge.

Counsel: For Plaintiffs, Afoa L. Su`esu`e Lutu For Defendants, Gata E. Gurr

[1] When land is properly registered according to the law, the record owner holds title against all other claims of ownership, and subsequent judicial inquiry into the validity of the title is precluded.

[2] In the absence of compelling proof to the contrary, the court must conclude that the Registrar registers title to land when there has been compliance with the title registration statutes.

[3] A title registration will be set aside only when the evidence compels the conclusion that it was procured without the mandated notices and other procedures or by fraud.

[4] The testimony of witnesses that they did not hear the notice of an intended survey, or see posted notices of a proposed title registration, is not sufficient to overcome the presumption that public officials complied with their statutory duties or the vesting of the title to land by the official registration.

[5] A.S.C.A. § 37.0103(a) does not require the continuous presence of all three notices of proposed land title registration, so long as the Registrar waits the full 60 days before registering the title, especially when at least one responsible member of the principal family adversely impacted is

216 aware of the proposed registration.

[6] Plaintiff could not prove title was fraudulently procured where title holder and his heirs after him openly claimed the land, occupied and used the land virtually exclusively, and where no evidence of deception existed.

[7] Title registration is a procedural device which precludes others from attacking the validity of the record owner’s title, it is not a mode of land alienation.

[8] The constitutional policy of shielding Samoans from alienation of their lands does not prevent the creation of forms of land ownership other than communal land.

[9] A.S.C.A. § 3.0209(h)’s requirement that land and title decisions be rendered within 60 days is without any sanctions and does not nullify or otherwise penalize any party to a land or title action in which the court issues a statutorily late decision.

ORDER DENYING MOTION FOR RECONSIDERATION OR NEW TRIAL

This action principally concerns the ownership of about 14.18 acres of land, known as “Nonuaimoa,” in the Village of Taputimu, American Samoa (“the land’), claimed by plaintiff Tulifua Tini P. Lam Yuan (“Tulifua”) to be the Tulifua family’s communal land and by defendants Talae Tuitele (“Talae”) and Heirs of Uaine Tuitele (“the heirs”) to be the individually owned land of the heirs. On April 24, 1998, the court held that the existing registration of the title to the land in the name of the heirs was valid. The court also held that the lease of a portion of the land by Talae to defendants Tom Ho Ching and Patricia Ho Ching was invalid and shall not be registered by the Territorial Registrar.

On May 4, 1998, Tulifua moved for reconsideration or new trial on the issue of the validity of the registration of the title to the land. The motion was heard on June 4, 1998.

Discussion

Tulifua essentially urges the court to grant his motion for four reasons. First, he maintains that the registration is invalid because the required notice of the proposed registration was not posted for 60 days at two public places in the village in which or nearest to which the land is located. Second, he claims that the registration was fraudulently procured. Third, he argues that the court has failed to protect the Tulifua family from the unlawful alienation of its communal land. Fourth, he

217 insists that the court’s decision is null and void, and without legal effect, because it was not rendered within the mandated 60-day time frame.

A. Registration Notice

[1-3] When the process is conducted in accordance with A.S.C.A. §§ 37.0101-.0103, the Territorial Registrar’s registration of land records title in the applicant’s name which is good against the world; the record owner then holds title protected against all other claims of ownership, precluding later judicial inquiry into the validity of the title. Ifopo v. Siatu`u, 12 A.S.R.2d 24, 26 (Appellate Div. 1989); Vaimoana v. Tuitasi, 13 A.S.R.2d 76, 79 (Land & Titles Div. 1989). In the absence of compelling proof to the contrary, the court must conclude that the Registrar registers title to land when there is compliance with the title registration statutes. Ifopo at 28. A title registration will be set aside only when the evidence compels the conclusion that it was procured without the mandated notices and other procedures or by fraud. Id.

Tulifua places great emphasis on his witness Maeva Pio Maae, who lived in Taputimu as an untitled person when the survey was conducted in 1971 and as the Tulifua talking chief Maae when the land was registered in 1989. In essence, Maeva Maae testified that he did not hear any announcement or discussion about the intended survey of the land at any village council meeting in 1971 and did not see any notice of the proposed title registration posted in Taputimu in 1989. Tulifua also heavily relies on the patently defective “affidavit” of notice posting in 1989. This document was prepared on the initial posting date rather than after the 60-day posting period, makes literal reference to only one rather than two posting locations in Taputimu, and is unsworn.

[4] The testimony of witnesses that they did not hear the notice of an intended survey, required by A.S.C.A. § 37.0102(c), or see posted notices of a proposed title registration, required by A.S.C.A. § 37.0103(a), is not sufficient to overcome the presumption that public officials complied with their statutory duties or the vesting of the title to land by the official registration. See Meafu v. Taliu, 13 A.S.R.2d 13, 17- 18 (Land & Titles Div. 1989). The certificate of record in this case by the surveyor and pulenu`u that oral notice of the intended survey was given at a meeting of the village chiefs is regular. A properly completed affidavit of posting was not a required method of proving the posting when this registration process was initiated. Tulifua disregards or discounts the direct testimony of Uatisone Tauanuu, which we found and still find credible, that he posted the notice at two specific locations in

218 Taputimu.69 Tulifua does raise a questionable legal point. The evidence clearly showed that about one week after the posting of the notice of proposed registration, Au Maae, who was the pulenu`u in 1971, took down the notice posted adjacent to the land and brought it to the Territorial Registrar’s Office. Pelema Kolise, the Registrar then in office, told Au Maae to submit in writing any objection he had to the registration within the 60-day posting period. Neither Au Maae, who is also a member of the Tulifua family, nor any other member of the family filed an objection. Pelema Kolise instructed Uattsone Tauanuu to replace the notice, but this was not done. However, the Registrar’s contemporaneous practice was apparently to let the posting period run for at least 60 days before titles were registered, with or without routine checks on continuous existence of the posted notices.

[5] Literally read, A.S.C.A. § 37.0103(a) contemplates the notices at the courthouse and two places in the appropriate village would remain constantly in place throughout the 60-day period. Uatisone Tauanuu testified to the ongoing practical problems of maintaining the posted notices in the villages where the notices can be easily removed by persons or destroyed by weather. Thus, we hold that 37.0103(a) does not require the continuous presence of all three notices, so long as the Registrar waits the full 60 days before registering the title, especially when, as in this case, at least one responsible member of the principal family adversely impacted is aware of the proposed registration.

B. Fraudulent Procurement

On this issue, Tulifua essentially relies on his history of the land. He claims that the land is the Tulifua family’s communal land by reason of original occupancy and use. The Tulifua matai title is attached to Taputimu, where the land is located. The Tuitele matai title is associated with the Village of Leone. Uaine Tuitele was a member of both the Tulifua and Tuitele families, and his father Tulifua Penitila held the Tulifua title, beginning in 1906. As the Tulifua sa`o, Tulifua Penitila controlled and was obligated to protect the family’s communal land,

219 including the land at issue.70 Thus, Tulifua argues, since Uaine Tuitele and the heirs occupied and used the land as members of the Tulifua family, the heirs, represented by Talae, violated their responsibilities to the Tulifua family and fraudulently deprived the family of its communal ownership of the land when they had the land registered as the heir’s individually-owned land.

[6] Tulifua mistakenly states that we erroneously found the land to be the heirs’ individually owned land before the 1989 title registration. If original registration was the contest in this case, we would necessarily be required to determine whether the land was the Tulifua family’s communal land or was the heirs’ individually-owned land owned before we could order registration of the title. However, in this case, we did not make any finding in the pre-registration title. The importance of the histories of the land presented by Tulifua and Talae lies in the unrefuted evidence that Uaine Tuitele and the heirs after him openly claimed the land, coupled with virtually exclusive occupancy and use of the land, since 1929. The only significant exception to this exclusivity was in 1968 when Tulifua’s brother built a house on the land and then removed it upon Talae’s objection.

Uaine Tuitele and the heirs did not deceive other members of the extended Tulifua family. Those other members were aware of the position taken by Uaine Tuitele and the heirs on the ownership of the land and failed to object either before or during the title registration process in 1989. We are not persuaded to reverse or, except as expanded in this discussion, otherwise add to our ultimate, initial finding that Talae and the heirs did not commit fraud when Talae offered the land for registration as the heirs’ individually owned land.

C. Unlawful Alienation

Tulifua chastises the court for failing in its duty to uphold the constitutional policy of shielding Samoans from alienation of their lands. See Am. Samoa Rev. Const. art. I, § 3. This public policy is foundational and has endured uninterrupted throughout the 98-year history of American Samoa. See Cession of Tutuila and Aunuu, April 17, 1900, Chiefs of Tutuila-United States, and Cession of Manu`a Islands, July 16, 1904, King and Chiefs of Manu`a-United States. The Legislature of American Samoa has currently embodied the policy in A.S.C.A. tit. 37, particularly in ch. 37.01, Titles to Land, and ch. 37.02, Alienation of Land. [7] Unlike the Legislature, Tulifua does not clearly distinguish the substantive and procedural restrictions applicable to land title registrations in A.S.C.A. ch. 37.01 and those applicable to land alienation and registrations of deeds or other supporting documents in A.S.C.A. ch. 37.02. “‘Alienation’ means the sale, gift, exchange, or any

220 other method of disposal of property.” A.S.C.A. § 37.0201(a). Title registration is a procedural device giving rise to a form of estoppel precluding others from ever again attacking the validity of the record owner’s title. Vaimoana, 13 A.S.R.2d at 79. Title registration is not a mode of land alienation.

[8] Even if title registration is broadly construed to be a means of alienation, the constitutional policy statement does not prevent the creation of forms of land ownership other than communal land, and equally entitles the Samoan owners of individually owned lands and family communal lands to protection against the loss of their land. See Alai`asa v. Fanene, LT No. 12-90, Order Granting or Deferring Motions to Dismiss at 17 (Land & Titles Div. August 5, 1997).

D. Untimely Decision

[9] We do not take lightly the direction of A.S.C.A. § 3.0209(h) to render land and title decisions within 60 days. However, it is far more important for the court to carefully deliberate on these decisions. We will not be hurried to meet an artificial deadline. Moreover, the statutory requirement is aimed at the court and is without any sanctions. It does not, and should not, nullify or otherwise penalize any party to a land or title action in which the court issues a statutorily late decision.

Tulifua’s motion for reconsideration or new trial is denied.

It is so ordered.

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221 AGATHA TA`IFI LEASIOLAGI SASA, and FALEMALAMA L. VAESA`U for and on behalf of the “TAMASA” clan of the LEVU family, Plaintiffs

AIFOÌ TAGATA LEVU, FAÀLILIU TAGATA LEVU and SEUI LAÀU, Defendants

High Court of American Samoa

Fous’ counsel for the court’s review and approval. We are surprised that the Fous’ counsel has charged them attorney’s fees based on hourly rates. Tort actions are generally undertaken on a contingent fee arrangement providing the attorney a percentage of the client’s recovery. One-third of the recovery awarded after trial is the common standard. When the court is properly called upon to approve hourly fees, we usually apply a standard of $100 per hour for out of court services and $125 per hour for in court services. The Fous’ counsel is using a rate of $150 per hour for in court services. The Fous’ counsel states that he spent 2.3 hours drafting the complaint and summons, 2.9 hours drafting a request for admissions, .45 hour drafting a motion to set the trial date and the hearing notice, 5.7 hours on legal research, and 10.95 hours drafting a trial memorandum, a total of 22.3 hours on these matters among other out of court services. Defamation law is relatively complex and has seen significant change in recent years. However, in this case, the fact situation is simple, and the prospective damages were not monetarily great. We think that even if counsel devoted this number of hours to these office matters, the resulting fee calculations substantially overstate their value to his clients. The Fous’ counsel also states that he spent 1.3 hours in court at two trial setting hearings, which took a total of three minutes according to the clerk’s minutes. He further states that the trial required 4.65 hours, while the clerk’s minutes reflect that the trial lasted one hour and 25 minutes, including a recess. Counsel may spend some unproductive time traveling to and from court and waiting in court to be heard on a matter. However, ordinarily clients cannot be justifiably charged for this time. We do not think that attorney’s fees for in court services are reasonably based on anywhere near 5.95 hours in this case. The Fous’ counsel has charged $4,072.50 for his services in this case. We think that the reasonable value of those services is approximately $1,500 and certainly no more than $2,000. 58 The Attorney General, representing the retirement office, has perhaps jumped the gun by filing for declaratory relief at the outset. Technically, the retirement office should have separately intervened in this proceeding, just as the Real Party in Interest has done so in order to

222 Land and Titles Division

LT No. 09-98

October 16, 1998

Before KRUSE, Chief Justice, AFUOLA, Associate Justice, and ATIULAGI, Associate Justice. secure his interests. However, given the liberality of notice pleading in this jurisdiction, and the retirement office’s cognizable claim to an interest in the fund on deposit with the court, we will treat the retirement office's claim as properly before us. 59 The entire building has four separate toilet rooms. The two rooms involved occupy the mauga side of the building. The other two toilet rooms occupy the sami side of the building, towards the tennis courts. These second two toilet rooms have separate entry doors and are maintained by the American Samoa Tennis Association. 60 The caption on the amended complaint identifies BORE as the Department of Higher Education. The court, on its own motion, has amended the caption to reflect that BOHE is the entity identified in the body of the complaint. 61 Federal cases interpreting the Federal Tort Claims Act can aid in the interpretation of a state or territorial tort claims act with similar provisions. Hoctel v. State, 343 N.W.2d 832, 833 (Iowa 1984). 62This enactment provides: . . . a vicious animal is one which, without provocation: (1) has made an attack on a person whether or not the attack resulted in any injuries to the person; (2) bitten any person; or (3) displays snarling, snapping, growling, clawing or other behavior which tends to intimidate, frighten or subdue a person 63 This presumption can be overcome by an affirmative showing on the part of the defendant that the harm was caused by the fault of the plaintiff, the fault of a third person for whom the defendant is not responsible, or by an independent cause. Gebauer, slip op. at 3 (citations omitted). 64 The Tuiaàna’s counsel was not present at the hearing on August 18, 1997. However, Tuiaàna Moi was in the audience and was specially instructed on the deadline for submitting a certified statement on the amount of the Tuiaàna’s claim for attorney’s fees and costs. The Fanene, The Fonoti, Tauiliili, and Sotoa filed timely claims. The Tuiaàna have not filed any claim to this date. 65 The Vollraths’ argument that the Registrar and ASG waived the administrative claim prerequisite is without substance. They cite Pago

223 Counsel: For Plaintiffs, Katopau T. Ainu`u For Defendants, Malaetasi M. Togafau

[1] A.S.C.A. § 43.1309(b) is not unconstitutional in all circumstances, but only when it prevents a family member from seeking an injunction against his sa`o under circumstances where the sa`o jeopardizes that person’s constitutionally protected property rights.

[2] Although sa`o is only authorized person under A.S.C.A. § 43.1309(b) to bring an action regarding disputes over communal land, where plaintiffs, not sa`o, brought action, the early posture of the case together

Petroleum Products, Inc. v. American Samoa Power Authority, 10 A.S.R.2d 75, 81-86 (Appellate Div. 1986) for the proposition that the jurisdictional requirement of exhaustion of administrative remedies may be waived. As the court in Pago Petroleum pointed out, however, an essential element of subject matter jurisdiction, such as the administrative claim mandated by the Government Tort Liability Act, cannot be waived. Id. at 81-82. Moreover, ASG was not a party defendant to the original complaint filed in 1991, and the Registrar only faced a demand to deregister the individually owned land title registrations at issue. The Registrar was not defending a tort claim when answering that complaint. 66 Tulifua also cites Maugututia v. Savea, 4 A.S.R. 483 (Trial Div. 1964). Maugututia was likewise a contested registration proceeding and also involved a facially defective certificate by the surveyor and pulenu`u. The survey was first conducted in 1946 by one surveyor and was retraced in 1963, 17 years later, by another surveyor. The court stated that the certificate executed in 1963 was invalid because it related to the 1946 survey, not the 1963 survey. The court noted the 17 year time lag between the survey and the notice, not because of the length of this time, but because the survey predated the notice. In the current case, the time lag is between the survey and the offer of registration, not between the notice and the survey. Further, in the current case, neither the survey nor the proposed title registration predates the requisite notice. 67 Tulifua argues, at least collaterally, that posting the notice on the administration building in Fagatogo should vitiate the registration. Designation of the “Administration building” in the affidavit of posting is not grounds for invalidating a land title registration because A.S.C.A. § 37.0103(a) (in effect on May 10, 1989, and as amended, effective May 22, 1989) was amended in 1979 to describe the location as the “courthouse.” Vaimaona v. Tuitasi, 13 A.S.R.2d 76, 82-83 (Land & Titles Div. 1989). The Territorial Registrar merely neglected to change the affidavit form. Id. Moreover, the courthouse and administration shared the same building in Fagatogo and were commonly associated by reference for many years. Id.

224 with the fact that the sa`o was not adverse to plaintiffs’ claim mandated against dismissal.

[3] A certificate of irreconcilable dispute is not a prerequisite to instituting a communal land case where the plaintiff seeks injunctive relief.

ORDER DENYING PLAINTIFFS’ MOTION FOR RECONSIDERATION AND DENYING DEFENDANTS’ MOTION TO DISMISS

I. Plaintiffs’ Motion for Reconsideration

Plaintiffs bring before this court a motion for reconsideration of an order denying application for temporary restraining order and order to show cause. For the reasons given below, this motion for reconsideration is denied.

Plaintiffs base their motion for reconsideration on an erroneous

68 Tulifua presented witnesses who testified that they did not see any second notice posted in Taputimu. One of them also stated that he removed one notice in the village near the land and took it to the Territorial Registrar’s Office. This witness also declared that the village chiefs met at some point in June 1971 but that the pulenu`u did not give any oral notice of the intended survey at that time. Talae provided witnesses, including the Territorial Registrar in office in 1989 and his staff member who signed the affidavit of posting. They affirmed that two notices were posted in the village. They also admitted that despite the Registrar’s direction to replace the notice torn down, a new notice was not posted at the same or another location during the 62- day period. 69 Tulifua was allowed, over objection, to cross-examine Tauanuu on the reason for his resignation from his position at the Territorial Registrar’s Office. The innuendo planted was that Tauanuu had engaged in some scheme of wrongdoing pertaining to title registrations. However, whether the objective was to establish planned misconduct somehow related to the posting in this case or to impeach Tauanuu’s character for truthfulness, Tulifua utterly failed to make the relevant connection. Similarly, Tulifua now suggests in his memorandum supporting the present motion, wholly and improperly without any evidentiary basis, that the Territorial Registrar in 1989, Pelema Kolise, who also testified in this case, was likewise guilty of registration misdeeds. 70 According to the Territorial Registrar’s official record of Taputimu matai, Tulifua Sianini co-held the title with Tulifua Penitila in 1906. Thus, both sa`o shared in these responsibilities during their joint tenure.

225 interpretation of Fairholt v. Aulava, 1 A.S.R.2d 73 (Lands & Titles Div. 1983). Plaintiffs assert that the court in Fairholt held A.S.C.A. § 41.1309(b)71 unconstitutional as violating the due process clause of both the United States Constitution as applied to American Samoa and the due process clause of the American Samoa Revised Constitution.

[1] Plaintiffs’ interpretation of Fairholt, however, is too broad. Fairholt does not provide that A.S.C.A. § 43.1309(b) is unconstitutional in all circumstances. Rather, A.S.C.A. § 43.1309(b) is unconstitutional only if a family member is prevented court access to enjoin a saò from jeopardizing a family member’s constitutionally protected property rights. Otherwise, the saò should be given the opportunity to act as the family matai before family members intervene. As we earlier stated in our order denying plaintiffs’ ex parte application for a temporary restraining order, the legislative design behind A.S.C.A. § 43.1309(b) clearly must be to ensure that the saò is not totally displaced by the judicial process. Plaintiffs’ motion for reconsideration, therefore, is denied.

II. Defendants’ Motion to Dismiss

A. A.S.C.A. § 43.1309(b)

[2] Defendant’s motion to dismiss is also denied. Although A.S.C.A. § 43.1309(b) does provide that the saò is the only authorized person under this Act to bring an action regarding disputes or controversies over communal or aiga land, the early posture of this case does not warrant dismissal of this case, regardless of the saò’s failure to bring this action initially. In addition, the complaint alleges that the saò is not adverse to plaintiffs’ claim of entitlement. Joinder of the saò, therefore, may be necessary if the saò fails to come forth.

B. A.S.C.A. § 43.0302(a)

Defendants also argue dismissal of complaint for non-compliance with the mandates of A.S.C.A. § 43.0302(a). This enactment provides that “[b]efore any action relating to controversies over communal land . . . may be commenced in the land and titles division, each party shall file with his complaint a certificate [of irreconcilable dispute] signed and attested by the Secretary of Samoan Affairs . . .” Defendants’ reliance on this subsection is misplaced.

[3] Plaintiffs’ complaint is one for injunctive relief. A.S.C.A. §

71 Under certain exceptions, A.S.C.A. § 43.1309(b) requires that the sa`o be the only authorized person under this Act to bring an application for injunction pertaining to communal land within his own family.

226 43.0302(b) provides that the certification requirement of subsection (a) is not a prerequisite requirement to the issuance of a temporary restraining order. Tupua v. Faleafine, 5 A.S.R.2d 131, 133 (Land & Titles Div. 1986). Additionally, A.S.C.A. § 43.0303(a)(1-3) authorizes either the Chief Justice or Associate Justice to issue interlocutory orders, upon ex parte application, to restrain certain enumerated activity before the commencement of proceedings before the lands and titles division.

Therefore, plaintiffs’ motion for reconsideration is denied, and defendants’ motion to dismiss is also denied.

It is so ordered.

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ARONA GABRIEL and SULI GABRIEL, Plaintiffs

FA`ANUNUMI PIPILI and THE ESTATE OF FALEFIA ENE, Defendants

LT No. 12-97

October 29, 1998

Before KRUSE, Chief Justice, ATIULAGI, Associate Judge, and SAGAPOLUTELE, Associate Judge.

Counsel: For Plaintiffs, Afoafouvale L. Suèseè Lutu For Defendant Faànunumi Pipili, Virginia L. Sudbury For Defendant Estate of Falefia Ene, Charles V. Alaìlima

[1] Buyer-plaintiffs entitled to specific performance of property where written contract executed and buyer-plaintiffs fully performed, despite fact that deed never signed nor delivered prior to seller’s death.

[2] In American Samoa, contracts for the sale of real property are required to be evidenced in writing.

227 [3] Under American Samoa’s Descent and Distribution Statute, court approval is required for the conveyance of any real property belonging to the estate.

[4] Where spouse of deceased attempted to convey deceased’s real property in violation of Statute of Frauds and Descent and Distribution Statute, transaction had no force or effect against the estate but spouse obligated to refund purchase monies received.

OPINION AND ORDER

Plaintiffs Arona Gabriel and Suli Gabriel (“The Gabriels”) brought this action against Fa`anunumi Pipili (“Pipili”) and the Estate of Falefia Ene to retain title to two pieces of property located in Tafuna. Trial for this action began on October 9, 1998.

Discussion

A. First Half Acre

Findings of Fact

On November 2, 1993, the Gabriels entered into an agreement of sale with Falefia Ene (“Ene”) for approximately .526 acres of “Tiatuloto” for $40,000. This agreement is part of the record marked Exhibit “1.” Before Ene died on or about July 29, 1996, the Gabriels paid the full purchase price to Ene. A deed of conveyance, however, was yet to be signed and delivered to the Gabriels. Despite the absence of a deed, the court finds that a written agreement for sale and purchase was concluded between Ene and the Gabriels. In addition, the court finds that the Gabriels fully performed their part of the bargain by paying the $40,000 purchase price.

Conclusions of Law

[1] We, therefore, decree specific performance directing the Estate of Falefia Ene to issue a deed to the Gabriels in accordance with the parties agreement for sale and purchase marked Exhibit “1.” The court notes that the deed Pipili purported to issue to the Gabriels to these ends is of no effect against the estate since Pipili had no title to convey.

B. Second Half Acre

Findings of Fact

The Gabriels base their claim for the additional $10,000 half acre on an

228 alleged oral contract between Ene and themselves. The Gabriels claim that Ene offered to them the additional half-acre for the sum of $10,000. The Gabriels claim acceptance of the offer by paying the requisite $10,000 to Ene’s wife, Pipili, after Ene’s unexpected death. Pipili subsequently executed a warranty deed.

Conclusions of Law

[2] The court holds that any oral contract between the Gabriels and Ene is unenforceable. Under American Samoa’s Statute of Frauds, parole contracts are unenforceable. A.S.C.A. § 37.021172, requires contracts for the sale of real property to be evidenced in writing.

[3] Although the court finds that Pipili asked for and received from the Gabriels the sum of $10,000 which she acknowledged at the insistence of the Gabriels as payment of the second half acre, this subsequent transaction is a nullity against the estate. Under this territory’s Descent and Distribution Statute, court approval is required for the conveyance of any estate real property. A.S.C.A. § 40.0323(a).

[4] Pipili had no such court authorization. As such, Pipili’s attempt to deal in estate lands is of no force and effect whatsoever against the estate. We reject any claim by the Gabriels for full performance by the estate on the basis of Pipili’s unauthorized action. The court, therefore, denies specific performance.

Pipili, however, did attempt to provide a warranty deed for lands which she had no title. Judgment, therefore, will enter against Pipili in favor of the Gabriels for $10,000. C. Right Of Way

The Estate concedes an easement by necessity and plaintiff has stipulated in open court that this issue has been settled with the estate.

The Clerk will enter judgment herein, to be prepared by counsel for the estate, in accordance with the foregoing.

72 A.S.C.A. § 37.0211 provides that: No agreement for the sale of real property or of any interest therein is valid unless the same, or some note or memorandum thereof, be in writing and subscribed by the party to be charged or his agent thereunto authorized in writing but this does not abridge the power of the court to compel the specific performance of any agreement fort he sale of real property in case of part performance.

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FAGAOALI`I LALOULU TAGOILELAGI, Claimant,

ULIMASAO SITALA SITALA, JR., FAÀSEFULU TOGIAÌ, LOTOMAU PEAU, ALOALIÌ TAPU TAGALOA, and TOFAU PALAIE GAOTEOTE, Counterclaimants.

Registration of Matai Title TAGOILELAGI of the Village of Vatia

MT No. 01-96

September 21, 1998

[1] Under A.S.C.A. § 1.0404(a), a person is eligible to claim or object to the succession to a matai title if he has resided in American Samoa for one calendar year immediately preceding the date of objection.

[2] The court’s evaluation of the four criteria set forth in A.S.C.A. § 1.0409(c) is decisive in awarding matai titles in contested registration actions.

[3] Where candidates for a matai title disagree over the identities of the original titleholder and most of the subsequent titleholders, the court follows the traditional rule for determining the best hereditary right by examining each candidate’s closest relationship to a previous titleholder.

[4] The results of family meetings held to deliberate on and select the successor to a matai Tagoilelagi title are far more important to the clan wish issue under A.S.C.A. § 1.0409(C)(2) than the number and names of the clans.

[5] Where a matai title dispute involves multiple family clans, the support of the majority or plurality of the clans may be considered in evaluating the family support of a candidate.

[6] Where the achievements and leadership abilities of candidates for a

230 matai title are comparable, the candidate who has more intimate daily contacts with the family and the village has the advantage in the category of value to family, village, and country.

[7] In deciding a matai title dispute, the court gives greater weight to each criterion in their statutory order in accordance with A.S.C.A. § 1.0409(c), and it assesses the candidates’ relative advantage in each criterion, and stronger rankings in certain criteria may outweigh a better hereditary right.

Before RICHMOND, Associate Justice, TAUANU`U, Chief Associate Judge, LOGOAI, Associate Judge, ATIULAGI, Associate Judge, and SAGAPOLUTELE, Associate Judge.

ATIULAGI, Associate Judge, dissenting.

Counsel: For Claimant Fagaoaliì Laloulu Tagoilelagi, Aitofele T. Sunia For Counterclaimant Ulimasao Sitala Sitala, Jr., Afoa L. Suèsuè Lutu For Counterclaimant Fa`sefulu Togiaì, Roy J.D. Hall, Jr. For Counterclaimant Lotomau Peau, Pro Se For Counterclaimant Aloaliì Tapu Tagaloa, Albert Mailo For Counterclaimant Tofau Palaie Gaoteote, Pro Se

OPINION AND ORDER

Trial for the registration of the matai title “Tagoilelagi” began on July 9 and concluded on July 13, 1998. Prior to trial, counterclaimant Fa`sefulu Togiaì withdrew his candidacy. Counterclaimants Tofau Palaie Gaoteote, Aloaliì Tapu Tagaloa, and Lotomau Peau withdrew their candidacies at the beginning of the trial. The trial thus proceeded with claimant Fagaoaliì Laloulu Tagoilelagi (“Fagaoaliì”) and counterclaimant Ulimasao Sitala Sitala, Jr. (“Ulimasao”) as the two remaining candidates for the title.

Discussion

A. Eligibility

[1] As an initial matter, Fagaoali`i questions whether Ulimasao meets the one-year residency requirement for registration eligibility set forth in A.S.C.A. § 1.0404(a). Section 1.0404 (a) provides that, with certain exceptions inapplicable in this instance, “no one is eligible to claim or object to the succession to a matai title unless he has resided in American Samoa for one calendar year immediately preceding the date of objection.”

231 Ulimasao filed his counterclaim to the title “Tagoilelagi” with the Territorial Registrar in September 1994. Before then, he resided outside of American Samoa for substantial periods of time, as further detailed in the selection criteria discussed below. However, he returned to reside permanently in American Samoa in June 1993, more than one year earlier. Thus, we conclude that Ulimasao meets the one-year residency requirement of section 1.0404(a).

B. Selection Criteria

[2] The court’s evaluation of the four criteria set forth in A.S.C.A. § 1.0409(c) is decisive in awarding matai titles in contested registration actions. We discuss the criteria in the order of their priority.

1. Best Hereditary Right (A.S.C.A. § 1.0409(c)(1))

Presently, two factions exist in the Tagoilelagi family, each having different histories with respect to the original and subsequent titleholders and family clans. The two contestants do agree, however, that “Tagomailelagi” was the original spelling of the title.73 Fagaoali`i considers Tagomailelagi Tagaloalagi to be the first titleholder. Ulimasao names Tagomailelagi Uitualagi as the first titleholder.

Both candidates do recognize Tagomailelagi Uitualagi to be Tagaloalagi’s son. They materially differ, however, on the origin of the Tagoilelagi title, placing particular importance on the first titleholder’s birthplace. According to Fagaoali`i’s legend, Tagaloalagi, a heavenly chief, married Sina of Vatia. Tagaloalagi bestowed the title “Tagomailelagi” upon their son Tagaloalagi, who was born in Vatia. Under Ulimasao’s legend, Tagaloalagi was the issue of an immortal being and came from Manu`a to marry Sina of Vatia. He then bestowed the title “Tagomailelagi” upon their son Uitaulagi, who was born in Vatia. Except for one titleholder, Tagomailelagi Vaiga, each candidate also presents a completely different list of the titleholders after Tagomailelagi Ultaulagi until the last three Tagoilelagi titleholders, Solomona or Leota, Taua, and Elia.

[3] Because the candidates disagree over the identities of the original titleholder and most of the subsequent titleholders, we follow the traditional rule for determining the best hereditary right by examining each candidate’s closest relationship to a previous titleholder. See Misaalefua v. Hudson, 1 A.S.R.3d 23, 25 (Appellate Div. 1997). Fagaoali`i is the son of the last titleholder, Tagoilelagi Elia, and thus, by this method, has 50% Tagoilelagi blood. Ulimasao is five generations

73 The specific time of and reason for the changed spelling is not in evidence and is not important to our decision.

232 removed from Tagomailelagi Meleisea (who is not recognized as a titleholder by Fagaoali`i) and thus has 1/32 or 3.125% Tagoilelagi blood. This substantial difference in the two candidates’ blood connections to the title emphasizes the recent dominance of Fagaoali`i’s side of the family in the selection of the titleholders.74

We do note, however, that according to their respective pedigrees, Fagaoaliì is nine generations removed from the candidates’ common ancestral titleholder, Tagomailelagi Uitaulagi, and 10 generations from Fagaoaliì’s original titleholder, Tagomailelagi Tagaloalagi, while Ulimasao is 10 generations removed from their common ancestral and his original titleholder and 11 generations after Fagaoaliì’s original titleholder. If we disregard the candidates’ substantial disagreement over the identities and order of the previous titleholders for discussion purposes and apply the more equitable Sotoa rule of tracing blood lines back to the original or a common ancestral titleholder, In re Matai Title “Sotoa”, 2 A.S.R.2d 15 (Land & Title Div. 1984), the candidates’ hereditary rights to the title “Tagoilelagi” are much closer to each other, only a generation apart.

However, under either the traditional rule or the Sotoa rule, Fagaoali`i prevails over Ulimasao with the better hereditary right to the title.

2. Wish of the Majority or Plurality of the Family’s Customary Clans (A.S.C.A. § 1.0409(c)(2))

Following the custom of identifying family clans by the names of the original titleholder’s children, Fagaoali`i recognizes two clans, Uitualagi and Silaulelei, Tagomailelagi Tagaloalagi’s son and daughter. The daughter did not have children. Thus, he claims that the Uitualagi clan is the Tagoilelagi family’s only “living” clan. Ulimasao uses the same tradition. However, even though Tagomailelagi Uitaulagi had five children, he names only four clans, Falemalama (son), Sulufaiga (son), Sina (daughter), and Sa`a (son). Ulimasao disregards the fifth child, Tuiasosopo (son), because there is no family record of his descendants or their participation as a clan in the affairs of the Tagoilelagi family.

Since Fagaoali`i and Ulimasao acknowledge Tagomailelagi Uitualagi as a common ancestor, we believe that both candidates essentially recognize the same persons as the present descendants of the Tagoilelagi family’s traditional clans. Thus, regardless of the candidates’ differences in the number and names of the clans, based on distinct family traditions,

74 Fagaoali`i’s father Elia and Ulimasao’s father Sitala were contestants for the title in 1961. See In re Matai Title “Tagoilelagi”, MT No. 58- 1961 (Trial Div. 1961). Perhaps this rivalry initiated, as Fagaoali`i suggests, or intensified the current factionalism in the family.

233 it matters little in this case whether the present family members descend from, or are identified with, Fagaoali`i’s single clan or one of Ulimasao’s four clans.

[4] The results of the family meetings which were held to deliberate on and select the successor to the Tagoilelagi title are far more important to the clan wish issue than the number and names of the clans.

The family clan or clans first met in February 1994. Ulimasao and another tulafale (or “talking chief”) of the family were nominated. The discussions were peaceful and harmonious in accordance with Samoan customs. Although Ulimasao appeared to have more support, the selection was postponed until a later time. The second meeting was held in May 1994. Again, the same persons were nominated. After the discussions, Ulimasao was still the apparent favorite for the title, but the family clan or clans decided that yet another meeting would be held in an effort to achieve a true consensus.

Fagaoaliì nominated Ulimasao’s competitor and was not himself nominated during the first two meetings. However, on July 20, 1994, he filed his claim for the title “Tagoilelagi” with the Territorial Registrar. His action prompted the five original counterclaimants to oppose Fagaoaliì’s claim and seek the title. When the third meeting of family clan or clans was held, considerable displeasure was expressed over Fagaoaliì’s offer to register the title, and Ulimasao continued to have the most support to be the next titleholder. However, Fagaoaliì and his supporters would not join a consensus for Ulimasao. Thus, the family clan or clans met a fourth time. Ulimasao still retained his previous support at the fourth meeting. However, to maintain peace and harmony, the family clan or clans decided that Fagaoaliì and Ulimasao would jointly hold the title. Both Fagaoaliì and Ulimasao were given the traditional kava cup ceremony that day, but with the understanding that Fagaoaliì would withdraw his offer to register the title. However, the Village Council of Vatia never met to record the family’s decision, and Fagaoaliì did not withdraw his registration offer.

[5] The events of these four meetings clearly show that Ulimasao enjoyed the majority support of the Tagoilelagi family’s clan or clans. If the Uitualagi clan is the family’s only clan, as Fagaoaliì presents, this clan as a whole still supports Ulimasao’s candidacy. If, on the other hand, the family has four clans, Falemalama, Sulufaiga, Sina, and Saà, as named by Ulimasao, Fagaoaliì may have the support of his clan, Sulufaiga, but Ulimasao clearly has the support of the other three clans.

Ulimasao prevails over Fagaoali`i on the clan wish issue.

3. Forcefulness, Character, Personality, and Knowledge of Samoan

234 Customs (A.S.C.A. § 1.0409(c)(3))

Fagaoali`i and Ulimasao had very similar formative years, including their educational experience through high school. From that point forward, each took a divergent but successful path from the other.

Fagaoali`i is a professional educator. Beginning in 1962, he extensively pursued formal higher education and, in 1983, earned his doctorate. From 1966 until now, he steadily progressed as a teacher and administrator in the public school system of American Samoa. He now holds the highly responsible position of Director of Education for the entire system. Through the years, Fagaoali`i has also been very active and held important positions in the Church of Jesus Christ of Latter Day Saints. He has also held his present matai title in the Tagoilelagi family for 22 years.

Ulimasao is a skilled technician. After community college stateside, he served in the United States Army for 10 years, specializing in the communications field. Then, after two years with the Public Works Department of the American Samoa Government (“ASG”), he successfully competed for employment with the Federal Aviation Administration (“FAA”). For the last 19 years, Ulimasao has held various technical positions and is now a maintenance operation specialist with the FAA. During both careers, he took advantage of numerous educational opportunities at military and civilian schools as well as at the FAA Academy. Ulimasao serves as a deacon at the Congregational Christian Church of American Samoa in Vatia. He has held his present matai title in the Tagoilelagi family for 21 years.

Evaluating their upbringing, education, careers, religious activity, and demeanor in court, it is evident that both Fagaoali`i and Ulimasao are forceful persons with characters of strength and integrity. Each has an appealing personality. Both Fagaoali`i and Ulimasao have also held matai titles for more than 20 years. Each is thus also well-versed in Samoan customs.

Accordingly, we conclude that Fagaoali`i and Ulimasao are equally matched and neither prevails over the other in the category of forcefulness, character, personality, and knowledge of Samoan customs.

4. Value to Family, Village, and Country (A.S.C.A. § 1.0409(c)(4))

Fagaoali`i is an education and church leader. As a result of his public service role, he has also been, and continues to be, actively involved in various ASG boards, commissions, committees, and conferences. Fagaoali`i regularly participates in the affairs of the Tagoilelagi family and the Village of Vatia. He holds a family matai title. However, he

235 spent periods during childhood in the Village of Fagasa as well as Vatia. Fagaoali`i also presently lives, and for most of his adult life has lived, in the Village of Aua.

As a soldier and federal employee, Ulimasao has principally devoted his service to country directly to the United States rather than the Territory of American Samoa. Because of his service to the nation, Ulimasao has also lived outside of American Samoa for 22 years. However, throughout childhood and when he has been in American Samoa during adulthood, Ulimasao resided, and presently resides, in the Village of Vatia. Thus, when here, Ulimasao participates daily and regularly in the affairs of the Village of Vatia and the Tagoilelagi family. Ulimasao is also the principal spokesperson for the Tagoilelagi title as a high talking chief in the family.

[6] We do not discount achievements and leadership abilities of either candidate. However, because of his more intimate daily contacts with the Tagoilelagi family and the Village of Vatia, we conclude that Ulimasao has the superior advantage over Fagaoali`i in the category of value to family, village, and country.

C. Priority of the Four Criteria

[7] We give greater weight to each criterion in their statutory order in accordance with A.S.C.A. § 1.0409(c). We also assess the candidates’ relative advantage in each criterion. In re Matai Title Tauala, 15 A.S.R.2d 65, 69 (Land & Titles Div. 1990).

The best hereditary right receives the highest priority. Fagaoaliì has the decided advantage here under the traditional measure, but the difference appears to be less pronounced when the distance from the original titleholder is the yardstick. Ulimasao, in our view, enjoys majority support among the Tagoilelagi family’s clans, whether there is the single clan advocated by Fagaoaliì or the four clans identified by Ulimasao. Ulimasao is the clear winner in the second priority criterion of the wish of the family clans. Fagaoaliì and Ulimasao are equally qualified under the third priority criterion of forcefulness, character, personality, and knowledge of Samoan customs. Ulimasao, however, has distinct eminence in the fourth priority criterion of value to family, village, and country.

In our analysis, Ulimasao’s stronger rankings on the second and fourth criteria outweigh Fagaoali`i’s better hereditary right. We will, therefore, award the title “Tagoilelagi” to Ulimasao.

236 The title “Tagoilelagi” is awarded to Ulimasao Sitala Sitala, Jr. The Territorial Registrar shall register the title in Ulimasao’s name, provided that he has resigned from and is not registered as holding any other matai title.

It is so ordered. ______

DISSENT

ATIULAGI, Associate Judge.

I would award the title “Tagoilelagi” to Fagaoali`i.

Fagaoali`i clearly has the superior hereditary right to the title. I interpret the evidence of the family meetings as resulting not in majority clan support for Ulimasao but in no decision for either candidate, and would therefore find a draw on the clan wish criterion.

On the third and fourth criteria, I believe that based on his education and career achievements, Fagaoali`i is a more forceful person and a stronger leader. Moreover, unlike Ulimasao, Fagaoali`i has lived in American Samoa his entire life except when attending college. In addition, he also has held a family matai title for many years, longer than Ulimasao has held his present title.

Since I would find that Fagaoaliì prevails over Ulimasao on the first, third, and fourth criteria, I believe that the title “Tagoilelagi” should be awarded to Fagaoaliì. FOLAU IÀULUALO, Claimant,

PULE SITAIAI MA`ILEOI, and TUASIVI S. I`AULUALO, Counter-claimants.

Registration of the Matai Title I`AULUALO of the village of Afono

MT No. 08-97

September 24, 1998

[1] A.S.C.A. § 1.0409(c) provides that in a matai title dispute, the

237 criteria to be considered are the best hereditary right; clan support; forcefulness, character and personality, and knowledge of Samoan customs; and value to family, village, and country.

[2] Where all candidates for a matai title have a harmonious family history, the court applies the Sotoa rule in calculating the best hereditary right and looks to the earliest generation descendant.

[3] Under A.S.C.A. § 43.0302, where a matai title candidate insists on his position that the matter be taken to court, meetings must first be held at the Office of Samoan Affairs.

[4] Where claimants’ candidacies in a matai title dispute are not presented to the assembled family for consideration, they can lay no claims to family support, but where a claimant’s candidacy is presented to the family and is unanimously endorsed by family consensus, such candidate will prevail on the issue of clan support.

[5] In evaluating forcefulness, character and personality, and knowledge of Samoan customs in a matai title dispute, the court will consider a candidate’s age, work history, prominence in the community, personality, leadership ability, and health.

[6] In evaluating value to family, village, and country in a matai title dispute, the court will consider a candidate’s ability to make peace, connection to the community, service to the family by contribution to fa`alavelave and village obligations, and family following. Before KRUSE, Chief Justice, TAUANU`U, Chief Associate Judge, TUAOLO, Associate Judge, LOGOAI, Associate Judge, and SAGAPOLUTELE, Associate Judge.

Counsel: For Claimant, Katopau T. Ainuù For Pule Sitaiai Maìleoi, Afoa L.S. Lutu For Tuasivi S. Iàulualo, Tuanaìtau F. Tuia, LP

OPINION AND ORDER

The matai title Iàulualo has been vacant for many years. Among other things, a longstanding history of factional rivalry within the Iàulualo extended family has existed between the immediate families of candidate Folau Iàulualo and candidate Tuasivi S. Iàulualo.75 The Iàulualo family has since been divisive on the issue of matai succession, an issue which has been before this court earlier but remanded back to the family after the court found that none of the candidates then vying for the title

75 Some insight into this rivalry may be found in I`aulualo v. Siofaga, 10 A.S.R.2d 26 (Land & Titles Div. 1989).

238 were legally eligible to succeed. See Aoelua v. Iàulualo, 25 A.S.R.2d 116 (Trial Div. 1994), aff`d Siofaga v. Iàulualo, AP No. 06-94 (App. Div. 1995). Once again, this dispute is before the court. Contesting succession at this time are Folau S. Iàulualo (“Folau”), Tuasivi S. Iàulualo (“Tuasivi”), and Pule Sitaiai Maìleoi (“Pule”).

[1] In these matters we look to the four statutory criteria set out in A.S.C.A. § 1.0409(c), namely; (1) best hereditary right, (2) clan support, (3) forcefulness, character and personality, and knowledge of Samoan customs, and (4) value to family, village, and country.

Discussion

A. Best Hereditary Right

[2] We find that all three candidates are blood heirs to the matai title Iàulualo. We further find that all three candidates descended from the first title-holder established in Afono, Iàulualo Tuua. Family history records the first titleholder as having three issue: Siliì (female); Taualoa (female); and Solo (male). The three candidates before the court are all descended from Taualoa. In these circumstances where family history is harmonious, we apply the Sotoa rule in calculating best hereditary right. See In re Matai Title “Misa,” AP No. 09-95 (App. Div. 1997); In re Matai Title “Lolo,” 25 A.S.R.2d 175, 176 (Land and Titles Div. 1994); In re Matai Title “Sotoa,” 2 A.S.R.2d 15 (Lands and Titles Div. 1990).

We find that Folau is sixth generation descendant; Tuasivi is sixth generation descendant; and Pule is fifth generation descendant. Since Pule is a generation ahead of Folau and Siofaga, we conclude that Pule prevails on the issue of best hereditary right.

B. Clan Support

No dispute on the evidence exists as to clan makeup and number. There are three traditional clans in the Iàulualo family, namely, the Siliì, Taualoa, and Solo clans. The evidence further shows that the Iàulualo family met on several occasions to select a matai. Three meetings were initially convened in Afono. Then there were two meetings held before the Office of Samoan Affairs, and a short discussion took place in Iliìli. While Folau did not attend any of the family meetings at Afono, his uncle Maave attended for Folau's side of the family.

The family failed to reach a consensus at the first and second meetings at Afono; however, a settlement or compromise was arrived at during the third meeting. Here, the whole family agreed that Maave would hold the family's other vacant chiefly title “Laupola,” while its orator title “I`aulualo” would be co-held by Pule and Siofaga Faleseu, the father of

239 Tuasivi. Faleseu, on other hand, withdrew from contention and that left Pule as the sole appointee. At the conclusion of this conciliatory effort by the assembled family, Maave gave a speech praising and thanking the family for its tofa (the wisdom of its judgment [in appointing he and Pule to the family's two vacant titles]). He then advised the gathering that he would personally convey the family's decision to Folau, whom he referred to as “his son.”

[3] With Folau unyielding on his position that the matter be taken to court, there were two subsequent, and requisite, meetings at the Office of Samoan Affairs pursuant to the requirements of A.S.C.A. § 43.0302. Folau did not attend the first meeting, although he attended the second only after he was directed by Samoan Affairs to participate. At the latter meeting, Folau advised the family that the matter would be taken to court as he had already offered the title for registration with the Territorial Registrar. Folau's registration application attracted the objection of Pule and Tuasivi.

[4] On the foregoing, we find that neither the candidacy of Folau nor the candidacy of Tuasivi were presented to the assembled family for its consideration. Therefore, they can lay no claims to family support. On the other hand, we find that Pule's candidacy was not only presented to the family but was unanimously endorsed by family consensus. Accordingly, we hold that Pule prevails on the issue of clan support.

C. Forcefulness, Character and Personality, and Knowledge of Samoan Customs

[5] Folau is 53 years of age and presently resides in Ili`ili. He left the territory at the age of 16 and, after graduating from high school in San Francisco, he joined the construction industry in the mainland and worked his way to general foreman. He returned to American Samoa with a mainland contractor that was contracted by the American Samoa Government to construct the Afono road project. Folau has since remained in the territory, working first with the Department of Public Works, and then with TEMCO, coordinating territorial disaster programs with local government officials. He has also served as a member of the Flag Day Committee during various administrations.

Within his church, Folau's service has gained him prominence. He has held the office of failautusi aoao (secretary general) and he has also served on numerous church development committees.

Pule is 59 years of age and also resides in Ili`ili. He has had a varied work history. After high school, he joined the government working first as a school teacher and then with the Department of Public Works for

240 one year, before leaving to work with the private sector. After two years working at the fish canneries, he went back to government to the Department of Agriculture (“DOA”) where he remained for twenty-three years until he was medically discharged. While employed with the DOA, he represented the department at various off-island seminars and workshops. He is also a member of the Territorial Humanities Council, a government body commissioned with promoting awareness of the native culture.

Tuasivi is 27 years of age and currently resides in Afono. After high school, he attended Community College and then spent some time in Hawaii working at a variety of jobs, including driving a food delivery truck and dancing in a polynesian entertainment show. He recently returned home to serve the family in Afono and is currently employed with the Department of Port Administration as a security officer on the main docks. Tuasivi also helps out with the family business in Afono.

Under this heading, Folau prevails on the forcefulness factor. He has the more impressive work history. He is aggressive, but to a fault in some serious respects. He seems less amenable to counsel and rather headstrong in his quest to become the next titleholder. Being unsuccessful with the family in his bid to become the I`aulualo, he has singularly forced the issue of matai succession to the courts.

On the other hand, we rate Pule ahead of both Folau and Tuasivi on the consideration of character, personality, and knowledge of Samoan customs. Having observed his demeanor on the stand and evaluated his responses to the various questions fielded by him, we rate him ahead on the issue of knowledge of Samoan customs. At the same time, he impressed us as being a humble, composed, and level-headed individual, traits that no doubt weighed with the family when they attempted to give the title to him. In our view, he best fits the bill as peacemaker within a very discordant family. Although we had some initial reservations with his health which prompted his early retirement, we find that Pule has not slowed down in retirement and that his life has not been one of leisure. Besides a history of progressive leadership assignments within his church, Pule continues to work, supplementing the family income with crop farming and a small store he operates in Ili`ili.

Tuasivi's youth weighs against him; his comparatively brief history to date merely bespeaks the fact that he is only just starting out in life. He is, however, a confident and promising young man that the I`aulualo family can certainly look to in the future. Service to the family and village are very much a part of his future goals, as is evident by his participation in various community chores under the direction of the pulenu`u and his attendance at the youth activities of his church at

241 Afono. While his side was prepared to accept the family's decision reached at Afono, his candidacy was an afterthought prompted by the realization that the issue of matai succession would be pursued beyond the family's decision, and his immediate family's desire for representation in a judicial proceeding.

Overall, we find Pule to prevail on this consideration.

D. Value to Family, Village, and Country

[6] As we stated above, Tuasivi shows potential as a prospective leader. Apart from the fact that he lives in the village and is thus more in daily contact with village and family responsibility, Tuasivi is immediately disadvantaged because he does not have the history of family, village, and country, commitments that the other candidates exhibit.

Both Folau and Pule have both served the family by contribution to fa`alavelave and village obligations. They both demonstrate adequate resources available if selected to undertake the responsibilities of the titleholder. They have both rendered service to the people and government of American Samoa beyond their respective positions of employment by serving on government commissions. However, the scales must also tilt here in favor of Pule on the factor we alluded to above; that is, the best potential for restoring peace and harmony to a family that has been divided for too long. Unlike Folau, Pule enjoys a significant measure of family following. Unlike Folau, he does not belong to either of the factions that have plagued the family with rivalry. He is thus in a unique position to best serve the immediate needs of the I`aulualo family. Pule prevails also on this consideration.

Based on the foregoing, we hold that Pule is qualified to hold the title Iàulualo as he prevails on all four statutory criteria. The Territorial Registrar shall, in accordance with A.S.C.A. § 1.0409(b), register the matai title Iàulualo, attached to the village of Afono, in candidate Pule Sitaiai Maìleoi.

It is so ordered.

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