AMERICAN SAMOA SLIP OPINIONS

2013 Decisions

Covering Certain Opinions From the Divisions of the High Court of American Samoa From January to December 2013

Collected and Disseminated by the High Court of American Samoa Pago Pago, American Samoa 96799

Edited by: Jon Clemens, Staff Attorney Lisa Yun, Law Clerk Brian George, Law Clerk Zachary Berne, Law Clerk Kelly Davis, Law Clerk

July 11, 2014

As part of an ongoing effort to keep the local bar current with court decisions, the High Court of American Samoa selected and disseminated a number of decisions that it issued in 2013. The Court selected only those decisions that contributed to the development of law in the Territory.

The decisions selected for this slip opinion compilation are from the Appellate Division, Trial Division, Land and Titles Division, and Family Drug and Alcohol Division. However, the Court has also included a supplemental section containing two decisions filed in 2012 that are missing from both sets of the 2012 Slip Opinions.

Bear in mind, some of the lower court orders and opinions may yet be appealed. Consequently, attorneys cite the contained lower court decisions at their own peril.

The formatting style for the 2013 Slip Opinions follows the style used in the second set of the 2012 Slip Opinions. The format closely matches the American Samoa Reports. The purpose for such conformity is strictly internal—to simplify the process for editing and formatting the slip opinions when they are eventually published in the American Samoa Reports.

Considering that citing to slip opinions may be new for some members of the bar, there is a gray box preceding every slip opinion indicating how that slip opinion ought to be cited. Moreover, the headnotes are pin-cited. This should make the transition to slip opinion citation more endurable. More slip opinion compilations like these may appear in the near future while we wait on the publication of the American Samoa Reports.

The slip opinions are organized by court division and are listed in chronological order within the court division grouping. There are no page numbers in this volume. All of the page numbers on the individual slip opinions are indicated by bracketed and starred numbers, e.g., “[**2**].” The numbers in each individual slip opinion correspond to the numbers on the physical orders and opinions filed with the Clerk of Courts.

Please take note, the slip opinions that appear herein are not official published versions of those orders and opinions. Readers are directed to the American Samoa Reports for official published versions of the High Court’s orders and opinions.

TABLE OF CONTENTS

Appellate Division Am. Samoa Veterans Ass’n v. Am. Samoa Gov’t, AP No. 08-11 (App. Div. Jan. 4, 2013)

Faumuina v. Fraser, AP No. 13-10 (App. Div. Jan. 14, 2013)(order den. pet. for reh’g)

Masui v. Am. Samoa Gov’t, AP No. 19-10 (App. Div. Jan. 16, 2013)

Wall v. Governor, AP No. 09-08 (App. Div. Jan. 18, 2013)

Am. Samoa Veterans Ass’n v. Am. Samoa Gov’t, AP No. 01-12 (App. Div. Mar. 12, 2013)

Pago Pago Yacht Club v. Am. Samoa Gov’t, AP No. 04-12 (App. Div. Apr. 24, 2013)

Agasiva v. Am. Samoa Gov’t, AP No. 06-12 (App. Div. July 11, 2013)

Ava v. Corp. of Presiding Bishop, AP No. 10-11 (App. Div. Aug. 5, 2013)

Leautu v. Nu`utai, AP No. 11-11 (App. Div. Aug. 7, 2013)

Tamaseu Distrib. v. Am. Samoa Gov’t,, AP No. 03-12 (App. Div. Aug. 22, 2013)

Segi v. Am.Samoa Gov’t, AP No. 07-12 (App. Div. Aug. 22, 2013)

Trial Division Leota v. Dawn, CA No. 16-12 (Trial Div. Jan. 2, 2013) (order on pl.’s mot. for protective order)

Fa’asala v. O’Brien, CA No. 08-11 (Trial Div. Jan. 15, 2013)(order dism’l with prej.)

Am. Samoa Gov’t v. Ioramo, CR No. 49-12 (Trial Div. Jan. 23, 2013)(order grant. def.'s mot. to suppress test.)

Faletogo v. Pese, CA No. 54-12 (Trial Div. Jan. 29, 2013)

Brunt v. Am. Samoa Gov’t, CA No. 107-07 (Trial Div. Feb. 1, 2013)

Am. Samoa Gov’t v. Siaumau, CR No. 53-09 (Trial Div. Feb. 11, 2013)(order den. mot. for recon.)

Am. Samoa Gov’t v. Tinitali, CA No. 35-12 (Trial Div. Mar. 13, 2013)(order on mot. for stay pending rev.)

Kepaoa Dev. Corp. v. Stevensons Trucking, Inc., CA No. 18-09 (Trial Div. Mar. 20, 2013)(order grant. def.’s mot. for summ. j.)

Am. Samoa Gov’t v. Galea’i, CR No. 54-12 (Trial Div. Mar. 20, 2013)(order den. def.’s mot. to dismiss count two)

Am. Samoa Gov’t v. Ripley, CR Nos. 117-09 & 119-09 (Trial Div. May 7, 2013)(order den. jt. mot. to dismiss)

Pulu v. Nat’l Pac. Ins. Co., Ltd., CA No. 27-11 (Trial Div. May 10, 2013)

Am. Samoa Gov’t v. Tinitali, CA No. 35-12 (Trial Div. May 14, 2013)(order den. mot. to dismiss)

Am. Samoa Gov’t v. Barlow, CR No. 26-12 (Trial Div. May 30, 2013)(order den. def.’s mot. to dismiss)

Sene v. Molinga, CA No. 13-13 (Trial Div. July 8, 2013)

Togiai v. Hawaiian Airlines, Inc., CA No. 101-06 (Trial Div. July 24, 2013)(order den. def.’s mot. to dismiss but imposing sanctions)

Ala’ilima, et al. v. Am. Samoa Gov’t, et al., CA No. 22-09 (Trial Div. Aug. 15, 2013)

Pulu v. Nat’l Pac. Ins. Co., Ltd., CA No. 27-11 (Trial Div. Aug. 15, 2013)(order den. mot. for recon.)

Notoa v. Am. Samoa Power Auth., CA No. 81-06 (Trial Div. Sep. 10, 2013)

Am. Samoa Gov’t v. Malae, CR No. 100-13 (Trial Div. Oct. 22, 2013)(order den. def.’s mot. for bill of particulars and mot.. to sever)

Land and Titles Division Ioapo v. Aviata, MT No. 02-02 (Land & Titles Div. Jan. 15, 2013)(order on mot. to intervene)

Loloaso v. Satala Land Trust., LT No. 9-11 (Land & Titles Div. Feb. 1, 2013)

Amani v. Ta’amu, MT No. 01-12 (Land & Titles Div. Feb. 7, 2013)

Schuster, v. Afoa, LT No. 20-07 (Land & Titles Div. Apr. 3, 2013)(order den. pl.’s mot. for recon. or new trial)

Amani v. Ta’amu, MT No. 01-12 (Land & Titles Div. Apr. 29, 2013)(order den. mot. for new trial)

Am. Samoa Gov’t v. Avamua, LT No. 10-08 (Land & Titles Div. May 1, 2013)

Hunkin v. Mapu, MT No. 06-01 (Land & Titles Div. May 3, 2013)

Iuli v. Poloa, MT No. 02-12 (Land & Titles Div. May 7, 2013)

Steffany v. Saulo, LT No. 03-10 (Land & Titles Div. June 27, 2013)

Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09 (Land & Titles Div. July 19, 2013)(order grant. in pt. and den. in pt. parties’ several mots. for summ. j.)

Am. Samoa Gov’t v. Avamua, LT No. 10-08 (Land & Titles Div. July 22, 2013)(order on mot. for new trial)

In re Estate of Ah Hing, LT Nos. 21-11 & 22-11 (Land & Titles Div. July 22, 2013)

Atofa’i v. Fau, LT No. 35-81 (Land & Titles Div. July 23, 2013)(order den. pl.’s mot. to rescind and dismiss and defer ruling, and on def.’s mot. to den. just comp.)

Alai’asa v. Fa’aolataga, MT No. 06-12 (Land & Titles Div. Sep. 9, 2013)(order dismiss. action for lack of juris. without prej.)

Ioapo v. Aviata, MT No. 02-02 (Land & Titles Div. Oct. 16, 2013)

Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09 (Land & Titles Div. Oct. 29, 2013)(order den. def’s. mot. for recon.)

Family Drug and Alcohol Division In Re a Minor Child, FDAJR No. 40-12 and 58-12 (Fam. Drug & Alcohol Div. May 28, 2013)

Supplemental—2012 Slip Opinions Fa’asala v. O’Brien, CA No. 08-11 (Trial Div. Feb. 21, 2012)(order grant. def. mot. compel)

Ripley v. Am. Samoa Gov’t, CA No. 12-08 (Trial Div. July 3, 2012)(order den. mot. summ. j.)

SLIP OPINIONS

OF THE

APPELLATE DIVISION

OF THE

HIGH COURT OF AMERICAN SAMOA

(2013)

Cite As: Am. Samoa Veterans Ass’n v. Am. Samoa Gov’t, AP No. 08-11, slip op. at [page number] (App. Div. Jan. 4, 2013)

AMERICAN SAMOA VETERANS ASSOCIATION, Appellant,

v.

AMERICAN SAMOA GOVERNEMENT, Appellee.

The High Court of American Samoa Appellate Division

AP No. 08-11

January 4 2013

[1] The Appellate Division reviews questions of law de novo.

[2] The Land and Titles Division of the High Court has exclusive jurisdiction over all controversies relating to land.

[3] The Trial Division has jurisdiction over all proceedings to recover possession of premises.

[4] Any case in the High Court may, in the interests of justice and for the conveniences of the parties, be transferred by order of the Chief Justice or Associate Justice to any court in which it might have been brought originally.

[5] When a summons is mislabeled with the wrong division case caption is a harmless or clerical error, or both, the remedy is to correct the errant case caption, not dismiss the underlying action.

[6] Arbitration provision of an expired contract did not apply where there was no indication that the parties intended for the provision to apply after expiration of the contract.

[7] Res judicata bars the relitigation of legal and factual issues that were settled between the same parties in a prior litigation.

[8] Res judicata may apply to issues that could have been raised but were not raised in the prior litigation.

[9] Res judicata applies when (1) there has been a final judgment on the merits (2) in a prior action involving the same parties or their privies (3) and the prior action concerns the same claim.

High Court of American Samoa Slip Opinions (2013)

Before: WARD, Associate Justice; PATEA*, Acting Associate Justice; MAMEA, Associate Judge; and MUASAU, Associate Judge.

Counsel: For Appellant, Mark F. Ude For Appellee, Assistant Attorney General Sarah Everett

OPINION AND ORDER

Background

On June 2, 1977, the American Samoa Government (―ASG‖) entered into a 30-year lease agreement with the American Samoa Veteran‘s Association (―ASVA‖). The lease, which by its own terms ended on June 2, 2007, contained a provision for unilateral termination by ASG upon 30 days written notice to ASVA, and it also contained an arbitration provision. On April 25, 2011, the Governor of American Samoa issued a letter to ASVA to vacate the premises, noting that the lease had long expired and ASVA had 30 days to comply. [**2**]

ASVA instead filed a petition for injunction on May 19, 2011 with the Land and Titles Division of the High Court. On August 4, 2011, ASG filed its Answer and Counterclaim for Summary Recovery of Possession. The court transferred the summary recovery counterclaim to the Trial Division on August 29, 2011.

ASG‘s Counterclaim sought a judgment for possession of the premises pursuant to A.S.C.A. § 43.1401, et seq., which was granted by the Trial Division on September 1, 2011. ASVA filed a ―motion for reconsideration‖1 on September 12, 2011, which the Trial Division denied on October 20, 2011. ASVA timely filed its Notice of Appeal on October 28, 2011.

Standard of Review

[1] The questions raised in ASVA‘s appeal, i.e. that the trial court lacked jurisdiction and followed improper procedure, involve questions of law. The Appellate Division reviews questions of law de novo. Roman Catholic Diocese of Samoa Pago Pago v. Avegalio, 20 A.S.R.2d 70, 73 (App. Div. 1992).

* Honorable Elvis R. Pila Patea, Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior. 1 ASVA‗s ―motion for reconsideration‖ was actually a motion for new trial or motion to amend judgment. See T.C.R.C.P. 59.

High Court of American Samoa Slip Opinions (2013)

Discussion

ASVA raises four issues on appeal. First, ASVA argues that its original petition for injunctive relief was brought in the Land and Titles Division because matters involving land are [**3**] within the exclusive jurisdiction of the Land and Titles Division. ASVA claims that the trial court erred in allowing ASG to move for summary eviction because ASG improperly brought its Answer and Counterclaim for Summary Eviction in the Land and Titles Division. ASVA asserts that ASG‘s filing was improper because ASG sought relief under A.S.C.A. § 43.1401 et seq., which states that the Trial Division has jurisdiction over summary proceedings to recover possession of premises.2 ASVA essentially argues that ASG should not have been allowed to file a counterclaim in the Land and Titles Division because the relief sought was exclusively within the jurisdiction of the Trial Division, and, accordingly, the trial court did not have jurisdiction to grant summary eviction.

[2][3][4] The Land and Titles Division of the High Court has exclusive jurisdiction over all controversies relating to land. A.S.C.A. § 3.0208(b)(2). The Trial Division has jurisdiction [**4**] over all proceedings to recover possession of premises. A.S.C.A. § 43.1402. Any case in the High Court may, in the interests of justice and for the conveniences of the parties, be transferred by order of the Chief Justice or Associate Justice to any court in which it might have been brought originally. A.S.C.A. § 43.0115.

2 The Fono enacted Public Law 18-27 in 1984 to provide for expedited civil proceedings for a landlord to promptly recover leased or let premises from a tenant holding over or in arrearages on rental payments. We note that similar statutes have been enacted in the several States, most of which confer jurisdiction over such proceedings upon their district courts or other tribunals with limited jurisdiction. Public Law 18-27 conferred jurisdiction upon the Trial Division of the High Court, ostensibly because the justices and judges of that division routinely sit in the Land and Titles Division of the High Court, which has exclusive jurisdiction over civil actions involving real property or matai title issues. All cases filed in the Land and Titles Division, however, must first be presented for resolution by the Office of Samoan Affairs before the court acquires jurisdiction to hear and decide that action. The Fono obviously balanced its desire to provide landlords with a prompt recovery method to re-acquire rented premises versus the prolonged pre- trial administrative hearings that prevail in Land and Titles cases, and decided that conferring special jurisdiction upon the Trial Division to hear such proceedings was the best option to achieve its intent when enacting Public Law 18-27.

High Court of American Samoa Slip Opinions (2013)

ASVA‘s contention that the trial court improperly allowed ASG to proceed with its counterclaim for summary eviction is without merit. The presiding Justice properly transferred this case to the Trial Division pursuant to a statutory mandate. See A.S.C.A. § 43.1402. The trial court had clear statutory authority to transfer this case to the Trial Division. See A.S.C.A. § 43.0115. We further note that ASVA made no attempt below to demonstrate that the summary proceeding‘s judgment was barred pursuant to A.S.C.A. § 43.1408.3 Upon reviewing the record and the applicable statutes, we hold that the lower court did not err in transferring and deciding the matter in the Trial Division. [**5**]

Second, ASVA contends that the trial court acted in conjunction with ASG and issued a summons for the summary eviction proceeding on August 17, 2011, but the summons was incorrectly issued under the Land and Titles case caption. ASVA further argues that the court erred by proceeding with the summary eviction on August 29, 2011, before the hearing on ASVA‘s motion to dismiss ASG‘s counterclaim.

[5] The fact that the summons was mislabeled with a Land and Titles case caption instead of a Trial Division civil case caption was, in the case below, mere harmless, or a clerical, error, or both, the remedy for which was correcting the errant case caption, not dismissing the underlying action. See, generally, T.C.R.C.P. 60 and 61.4 ASVA also

3 A.S.C.A. § 43.1408 provides: A judgment for possession of the premises for an alleged termination of tenancy may not be entered against a defendant if one or more of the following is established: (1) the alleged termination was intended primarily as retribution for a lawful act arising out of the tenancy; (2) the plaintiff attempted to increase the defendant‘s obligations under the lease or contract as a penalty for a lawful act and that the defendant‘s failure to perform the additional obligations was the primary reason for the alleged termination of tenancy; or (3) the plaintiff committed a breach of the lease which excuses the payment of rent if possession is claimed for nonpayment of rent. 4 Although there exists trial court case law (e.g. Diocese of Samoa Pago Pago v. KMST, Inc., 15 A.S.R.2d 20 ( Land & Titles Div. 1990)), indicating that jurisdictional, rather than clerical, errors can also be corrected by simply recaptioning a particular case to reflect the appropriate division of the High Court to hear and decide that case, our recent holding in Faumuina v. Fraser, AP No. 13-10, slip op. (App. Div. December 3, 2012), tacitly overruled that approach. It is foreseeable that an action brought for summary re-possession of leased premises under A.S.C.A. § 43.1401 et seq., could include prayers for ancillary relief that

High Court of American Samoa Slip Opinions (2013)

makes no claim that it was prejudiced by the mislabeled summons or that the summons failed to properly notify it of the summary eviction proceedings. In fact, the record is clear that ASVA not only appeared but also vigorously defended at the proceedings. ASVA [**6**] relies on an insignificant technicality, and we outright reject such a claim.

Furthermore, ASVA‘s claim that the hearing on its motion to dismiss ASG‘s counterclaim should have been heard before the summary eviction hearing is utterly without any merit. ASCA §43.1410(b) requires that trial in an action to recover possession of premises must occur within 10 days of issuance of the summons, unless extended by the court. The summons was issued on August 17, 2011. The tenth day (August 27, 2011) fell on a Saturday, and the next business day for the court was Monday, August 29, 2011. ASVA could have requested the trial court to extend the trial date, pursuant to ASCA § 43.1410(b), beyond the 10-day setting until ASVA‘s motion to dismiss ASG‘s counterclaim was heard. This was not done. We hold that the trial court did not err in complying with the statutory mandate to hear ASG‘s action, to recover possession of premises, on August 29, 2011.

Third, ASVA claims that the trial court did not have jurisdiction to hear the matter because there was an arbitration clause in the lease. According to ASVA, the case should have gone to arbitration and should have not been subject to the summary eviction proceeding.

[6] Here, the lease was signed in 1977 for a 30-year term. While the lease may have contained an arbitration provision in [**7**] it, the 30- year term expired in 2007, well before the summary eviction proceedings. There is no evidence in the record that the parties intended for the arbitration clause to survive the lease. See Korody Marine Corp. v. Minerals & Chemicals Philipp Corp., 300 F.2d 124, 125 (2nd Cir. 1962) (holding that arbitration provision of an expired contract did not apply where there was no indication that the parties intended for the provision to apply after expiration of the contract). Therefore, since the lease expired in 2007, the arbitration provision also expired at that time, and the trial court had proper jurisdiction over the matter.

Finally, ASVA argues that res judicata applies to the case at bar. In an earlier case, Tauilili v. Fue, et al., HCCA 08-06, the court stated that the lease in the instant case expires in 2017. ASVA claims that res judicata

could exceed the Trial Division‘s jurisdiction to adjudicate. In the instant matter, however, the court below had clear, exclusive jurisdiction to hear and adjudicate the summary re-possession issue. The miscaptioned summons was a simple error, not a fatal, jurisdictional flaw.

High Court of American Samoa Slip Opinions (2013)

applies and the lower court therefore erred in finding that the lease ended in 2007.

[7][8][9] Res judicata bars the relitigation of legal and factual issues that were settled between the same parties in a prior litigation. Am. Samoa Gov’t v. Meredith, 1 A.S.R. 3d 14, 15 (App. Div. 1997). It also may apply to issues that could have been raised but were not raised in the prior litigation. Meredith, 1 A.S.R. 3d at 15. Res judicata applies when (1) there has been a final judgment on the merits (2) in a prior action involving the same parties or their privies (3) and the [**8**] prior action concerns the same claim. Alai’asa v. Te’o, 5 A.S.R. 3d 266, 267 (Land and Titles Div. 2001).

Here, the requirements of res judicata have not been met. ASG was not a party to the prior Tauilili case. Nor was it in privity with any of the parties in that case. Therefore, res judicata does not apply. Additionally, while ASVA certainly does not explain the context of that statement in Tauilili, it appears that the statement by the Tauilili court that the lease expired in 2017 was mere dicta because it does not appear to relate to the merits of that particular case, which concerned the operation of bingo games at the ASVA clubhouse. Accordingly, ASVA‘s res judicata argument fails.

Order

For the reasons stated above, the judgment appealed from is AFFIRMED. It is so ordered.

High Court of American Samoa Slip Opinions (2013)

Cite As: Faumuina v. Fraser, AP No. 13-10, slip op. at [page number] (App. Div. Jan. 14, 2013)(order den. pet. for reh‘g)

FAUMUINA TAGISIAALI’I, Appellant,

v.

TITILUA FRASER, LUSI FRASER, and VOLENTINA MOANANU, Appellees.

High Court of American Samoa Appellate Division

AP No. 13-10

January 14, 2013

[1] A rehearing is not a matter of right, but it is a privilege at the direction of the appellate court.

[2] The court may refuse to hear a case where its declaration or determination is not necessary or where another adequate remedy is provided.

[3] Where the Trial Division lacked jurisdiction to hear and decide a case in the first instance, it also lacked jurisdiction upon remand to take any remedial action.

Before WARD, Associate Justice; PATEA, Acting Associate Justice; SU‘APAIA, Associate Judge; and SATELE, Associate Judge.

Counsel: For Appellant, Tautai A. F. Faalevao For Appellees, Fiti Sunia

ORDER DENYING PETITION FOR REHEARING

On December 3, 2012, the Appellate Division issued an Opinion and Order (―Opinion‖), finding that the trial court‘s decision exceeded its statutory authority when it exercised jurisdiction over this case. The Appellate Division expressed that this matter should have been heard and decided in the Land and Titles Division in the first instance, under both A.S.C.A. §§ 3.0208(b) and 3.0202(b), as the dispute involved

 Honorable Elvis R. Pila Patea, Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior.

High Court of American Samoa Slip Opinions (2013)

communal land. Accordingly, the Appellate Division vacated the decision below and dismissed it without prejudice. [**2**]

On December 17, 2012, Appellees Titilua Fraser, Lusi Fraser, and Volentina Moananu (together, ―Appellees‖) filed a Petition for Rehearing of that Opinion. For the reasons stated below, the Petition for Rehearing is denied.

Discussion

[1]-[2] ―A rehearing is not a matter of right, but it is a privilege at the direction of the appellate court.‖ Fanene v. Fanene, 30 A.S.R.2d 115, 116 (App. Div. 1996). Here, Appellees argue that the Appellate Division misconstrued the nature of the dispute that began as one involving claims of individual ownership. However, the Opinion did not reach the merits of the case. The Opinion was confined to the subject matter jurisdiction of the Trial Division to hear and adjudicate substantive land and title issues in a declaratory relief action. The purpose of declaratory relief actions is to provide relief from uncertainties and controversies that might result in future litigation. In re High Chief Title Mauga, 4 A.S.R. 132, 136 (Land & Titles Div. 1974). The court may refuse to hear a case where its declaration or determination is not necessary or where another adequate remedy is provided. A.S.C.A. § 43.1102. Because declaratory relief actions are limited in scope and in subject matter jurisdiction, the Trial Division‘s opinion was required to be vacated. [**3**]

Appellees also argue that the Appellate Division does not have the authority to dismiss this case. Although the Appellate Division generally does not dismiss underlying actions, our Opinion clearly held that the case below was not within the trial court‘s discretionary declaratory relief jurisdiction provided by A.S.C.A. §§ 43.1101, et seq.1 Therefore, declaratory relief was not an appropriate judicial remedy for Petitioner‘s cause of action below and the Trial Division lacked subject matter jurisdiction to afford any relief.

Because the Trial Division lacked jurisdiction to hear and decide this case in the first instance, it would therefore lack jurisdiction upon remand to take any remedial action contemplated by A.S.C.A. § 43.0801(a). Under such unique circumstances, a dismissal of the underlying case without prejudice is warranted. [**4**]

1 The Declaratory Relief Act, A.S.C.A. §§ 43.1101, et seq., neither grants nor expands the subject matter jurisdiction to the Trial Division. A.S.C.A. § 43.1101; In re High Chief Title Mauga, 4 A.S.R. 132, 136 (Land & Titles Div. 1974).

High Court of American Samoa Slip Opinions (2013)

Order

Accordingly, the Petitioner for Rehearing is denied. Petitioners may renew their cause of action by filing an appropriate action with a division of the High Court having jurisdiction to hear and decide the legal issues raised therein.

It is so ordered.

High Court of American Samoa Slip Opinions (2013)

High Court of American Samoa Slip Opinions (2013)

Cite As: Masui v. Am. Samoa Gov’t, AP No. 19-10, slip op. at [page number] (App. Div. Jan. 16, 2013)

ASOVALE MASUI, Appellant,

v.

AMERICAN SAMOA GOVERNMENT, Appellee.

The High Court of American Samoa Appellate Division

AP No. 19-10

January 16, 2013

[1] Any errors or irregularities at trial which does not affect substantial rights shall be disregarded.

[2] There may be some constitutional errors in a particular case which are so unimportant and insignificant that they may be deemed harmless and do not require the automatic reversal of the conviction.

[3] Constitutional error is harmless only when it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.

[4] Where the error involves a non-constitutional matter, such error is deemed harmless unless it is more probable than not that the error did not materially affect the verdict.

[5] The Territory‘s ―rape-shield‖ rule generally provides that in a criminal case in which the defendant is accused of rape or assault with intent to commit rape, reputation or opinion evidence of the past sexual behavior of an alleged victim of such rape or assault is not admissible.

[6] The purpose of rape-shield statutes is to protect rape victims from the embarrassing disclosure of the details of their private lives, to encourage reporting of sexual assaults, and to prevent wasting time on distracting collateral and irrelevant matters.

[7] Evidence of a victim‘s past sexual behavior may be admissible if it is evidence of past sexual behavior with persons other than the accused, and it is offered on the issue of whether or not the accused was the source of the semen or injury, but only upon a determination that the

High Court of American Samoa Slip Opinions (2013)

probative value of such evidence outweighs the danger of unfair prejudice.

[8] Generally, hearsay is not admissible into evidence, but there are exceptions to this rule.

[9] Statements made for medical treatment and describing medical history, past or present symptoms, or the inception or general character of the cause of symptoms are admissible.

[10] Reports of acts, events, conditions, opinions or diagnoses may be admitted as evidence of those matters if the writing: (a) was made at or near the time of the acts, events, condition, opinions, or diagnoses recorded; (b) was made by, or from information transmitted by, a person with knowledge; (c) was kept in the course of regularly conducted activity; and (d) was made as the regular practice of that activity.

Before RICHMOND, Associate Justice; WARD, Associate Justice; PATEA*, Acting Associate Justice; SATELE, Associate Judge; and MUASAU, Associate Judge.

Counsel: For Appellant, Assistant Public Defender Leslie Cardin For Appellee, Assistant Attorney General Marian M. Rapoza

OPINION AND ORDER

Background

On November 12, 2009, Appellant Asovale Masui (―Masui‖) was charged with multiple counts of rape, incest, and assault in the third degree. It was alleged that Masui had sexual intercourse with his sixteen-year old daughter (―Complainant‖) on multiple occasions during the period of April 2008 through August 2008.

Prior to trial, Masui brought a motion pursuant to T.C.R. Evid. 412 to introduce evidence of five prior instances of sexual activity between Complainant and four individuals other than Masui during the period of June 2006 through August 2008. [**2**] Masui asserted that this evidence was to be used to rebut the anticipated testimony of Dr. John Ah-Ching, an obstetrician-gynecologist at LBJ hospital who examined Complainant, that Complainant had experienced sexual intercourse prior to his examination of her. Masui reasoned that such evidence would show that Complainant had engaged in sexual intercourse with persons other than Masui. Masui proffered the testimony of one individual who

* Honorable Elvis R. Pila Patea, Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior.

High Court of American Samoa Slip Opinions (2013)

would testify that he had observed Complainant engage in intercourse on multiple occasions with different partners prior to her examination by Dr. Ah-Ching. The trial court refused to allow this testimony.

Additionally, shortly before trial, Larry Samatua (―Samatua‖) was convicted of the rape of Complainant in an unrelated trial. During Samatua‘s trial, Dr. Ah-Ching testified, identically to the present trial, that he had performed a physical examination of Complainant, and the condition of Complainant‘s hymen was consistent with prior sexual intercourse. Prior to trial in the instant case, the prosecution filed a motion asking the court to take judicial notice of Samatua‘s rape conviction and named Samatua on its witness list. Masui objected to any reference to Samatua at trial because Samatua was related (through marriage) to Masui and had a negative reputation following his conviction. The court barred any reference to Samatua at trial.

[**3**] At trial, Complainant testified that Masui is her biological father. She testified that in April 2008, after a church youth gathering, Masui grabbed her by the hair, dragged her to her grandmother‘s house and spanked her with an extension cord. Masui then took her into a closet, wrapped the extension cord around her neck, and threatened to hang her. He took her to a bedroom, removed her clothes, and forced his penis inside her vagina. Complainant testified about another incident where she was at Masui‘s home when he took her to the bedroom, pulled out a gun, and forced sexual intercourse upon her. Complainant then testified that she went to live with Masui in the summer of 2008 because her grandmother (with whom she lived) left the island for health reasons. She testified that she was forced to have sexual intercourse with Masui everyday during this time. She was not allowed to leave Masui‘s home; however, she was able to leave his house occasionally during these months.

Dr. John Ah-Ching testified at trial that he performed a sexual assault examination on Complainant on August 28, 2008, and contemporaneously documented his findings in a report that he submitted to Social Services. He testified that Complainant‘s vaginal entrance looked normal but observed a discontinuation in the hymen ring. Dr. Ah-Ching concluded that Complainant had had previous sexual intercourse. Dr. Ah-Ching also testified that no bleeding or fresh injuries were seen at [**4**] the time of this examination. Rather, he found an old tear and admitted that there are many causes of hymenal discontinuation. He admitted that he did not know what caused the hymenal discontinuation or when the discontinuation occurred. At the conclusion of Dr. Ah-Ching‘s testimony, the report he had filled out during the examination, entitled ―Suspected Child Abuse or Neglect Form,‖ was admitted into evidence over Masui‘s objections. Masui was given the opportunity to redact portions of the form, but declined.

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The jury convicted Masui of four counts of rape, four counts of incest, and one count of assault in the third degree. On September 16, 2010, Masui was sentenced to a prison term of 60 years.

Masui‘s motion for acquittal based on insufficient evidence was denied on November 15, 2010, and Masui‘s motion for a new trial was denied on November 16, 2010. Masui timely filed his notice of appeal on November 23, 2010. We heard oral arguments on this matter on October 25, 2012.

Standard of Review

[1][2][3][4] ―Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.‖ T.C.R.Cr.P. 52(a). This rule preserves convictions from being set aside for small errors or defects, which have little chance, if any, in changing the result of the trial. See, generally, Chapman v. [**5**] California, 386 U.S. 18, 22 (1967). ―There may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may . . . be deemed harmless, not requiring the automatic reversal of the conviction.‖ Id. Constitutional error is harmless only when it looks ―beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.‖ Id. at 23-24. ―Review of harmless error requires not only an evaluation of the remaining incriminating evidence in the record, but also the most perceptive reflections as to the probabilities of the effect of error on a reasonable trier of fact.‖ United States v. Bishop, 264 F.3d 919, 927 (9th Cir. 2001). Where the error involves a non-constitutional matter, such error is deemed harmless unless ―it is more probable than not that the error did not materially affect the verdict.‖ See United States v. Seschillie, 310 F.3d 1208, 1214 (9th Cir. 2002). Discussion

Masui presents the following issues on appeal: (1) whether the trial court erred by refusing to permit Masui to use evidence of Complainant‘s past sexual behavior under T.C.R. Evid. 412; (2) whether the prosecutor deprived Masui of due process of law and a fair trial by presenting allegedly misleading and deceptive evidence to the jury; and (3) whether [**6**] the trial court erred by accepting the hospital form into evidence.

I. Evidence of past sexual behavior

Masui contends that the trial court‘s refusal to allow him to present evidence of Complainant‘s past sexual activity was erroneous, prejudicial, and denied him a fair trial. Masui argues that Dr. Ah-Ching

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was allowed to testify about his examination of Complainant and opine that Complainant had had sexual intercourse in the past. Masui concludes that this clearly left the jury with the mistaken impression that the only person Complainant had sexual intercourse with was Masui, when in fact he could produce evidence that Complainant had engaged in sexual intercourse on multiple prior occasions with four different individuals.

[5][6][7] The Territory‘s ―rape-shield‖ rule generally provides that in a criminal case in which the defendant is accused of rape or assault with intent to commit rape, ―reputation or opinion evidence of the past sexual behavior of an alleged victim of such rape or assault is not admissible.‖ T.C.R.Evid. 412(a). The purpose of rape-shield statutes is to protect rape victims from the embarrassing disclosure of the details of their private lives, to encourage reporting of sexual assaults, and to prevent wasting time on distracting collateral and irrelevant matters. United States v. Torres, 937 F.2d 1469, 1472 (9th Cir. 1991). [**7**] However, evidence of a victim‘s sexual behavior other than opinion or reputation evidence is admissible where constitutionally required. T.C.R.Evid. 412(b)(1). Evidence of a victim‘s past sexual behavior may also be admissible if it is evidence of past sexual behavior with persons other than the accused, and it is offered on the issue of whether or not the accused was the source of the semen or injury, but only upon a determination that the probative value of such evidence outweighs the danger of unfair prejudice. T.C.R.Evid. 412(b)(2)(A), (c)(3); Torres, 937 F.2d at 1473.

In the instant case, the record is sparse and inconclusive regarding what constitutes an ―injury‖ suffered by Complainant. We do not reach, and therefore forego any discussion on, the issue of ―injury‖, and instead will focus our analysis on whether the probative value of Masui‘s proposed evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury. See T.C.R.Evid. 403.

Here, Masui proposed to introduce testimony by one individual who would testify as to five alleged instances of sexual intercourse between Complainant and four other individuals other than Masui during the period of June 2006 through early August 2008. Masui claims that this evidence was necessary to challenge Dr. Ah-Ching‘s testimony regarding tears [**8**] he found in Complainant‘s hymen because the evidence of Complainant‘s past sexual behavior provided an alternative explanation for the source of said ―injury‖.

In support, Masui cites to three federal cases. These cases, Tague v. Richards, 3 F.3d 1133 (7th Cir. 1993), United States v. Begay, 937 F.2d 515 (10th Cir. 1999), and Lajoie v. Thompson, 217 F.3d 663 (9th Cir. 2000), involve situations where the defendants were accused of sexually

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abusing victims of the ages of eleven, eight, and seven, respectively. In all these cases, treating physicians testified that a physical examination of the victims demonstrated that the victims all had some sort of genital injury and had engaged in sexual activity in the past. And in all these cases, the reviewing courts held that it was error for the trial court to bar evidence of prior sexual abuse suffered by the victims because the jury was left to infer that the defendants were the only possible source of the injuries.

The three cases that Masui relies on are distinguishable from the case at bar. Those cases involved seven, eight, and eleven-year-old victims. The evidence of prior sexual history in those cases was allowed because of the victims‘ young ages and their susceptibility to other influences. In fact, the Tague court noted that the prosecution would not have introduced physical evidence indicating that the victim was not a virgin if [**9**] the victim was a thirty-five-year old woman as opposed to an eleven-year-old girl. Tague, 3 F.3d at 1138-39. Further, the probative value of the evidence of prior sexual activity outweighed the prejudicial effect of any embarrassment or public denigration the victims‘ may have potentially experienced. The young girls in the three cases were victims of prior sexual abuse; they were not sexually-active mature minors. Here, Complainant was a sexually-mature minor. The testimony of the proffered witness concerning five separate instances of sexual intercourse by Complainant would only serve to suggest that Complainant is sexually promiscuous, and would therefore unduly prejudice the jury. We hold that the trial court did not err in refusing to allow evidence of Complainant‘s past sexual behavior.

Moreover, at oral arguments, counsel for Masui undercut their own argument by conceding that they did not take issue with the trial court barring the proffered testimony (―I don‘t really take any issue with the court‘s ruling as to that particular point. There was discussion of both Dr. Ah Ching‘s testimony and the situation involving another witness, and I don‘t think the – I don‘t think the appellant is strongly urging that second part.‖ (App. Tr., p. 39, Oct. 25, 2012)). Counsel instead argued that the trial court‘s Rule 412 ruling prevented the defense from cross- examining Dr. Ah-Ching regarding the [**10**] prior rape by Samatua as a past sexual activity which was a possible alternate source of Complainant‘s ―injuries‖.

Masui misinterprets the trial court‘s Rule 412 ruling. The trial court‘s Rule 412 ruling addressed the proffer prior to trial of the testimony of a sole individual concerning five alleged instances of sexual intercourse by Complainant. The court‘s ruling did not address what Dr. Ah-Ching could have testified to regarding the prior rape of Complainant by Samatua. In fact, at trial, it was Masui‘s defense counsel who filed a

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motion to exclude any reference to Samatua. Defense counsel also objected to the prosecution‘s motion to admit Samatua‘s rape conviction.

Further, during oral arguments, counsel for Masui admitted that the defense could have cross-examined Dr. Ah-Ching regarding his previous testimony in the prior Samatua rape case involving the same victim (―it would have been entirely possible to cross-examine the Doctor about the fact that he had testified in a previous case involving the same complainant without necessarily getting into the identity of who that person was and what that case was.‖ (App. Tr., p. 35, Oct. 25, 2012)). Trial Counsel chose not to do so. If he misunderstood the trial court‘s Rule 412 ruling, or if there was any confusion regarding the court‘s ruling, it was incumbent upon defense counsel to receive clarification from the trial court concerning its [**11**] ruling. The fact remains that the trial court‘s ruling addressed only what was presented at the pre-trial hearing: a single witness testifying regarding five alleged instances of sexual intercourse by Complainant. Accordingly, the trial court did not err in disallowing such testimony, and Masui‘s first claim must be rejected.

II. Evidence presented to the jury

Masui next contends that the prosecution used misleading and deceptive evidence during the trial. Specifically, Masui claims that Dr. Ah-Ching testified to the same exact testimony during the present case as he did during Samatua‘s rape trial. Masui states that the prosecution knew this evidence was misleading because the jury was given the impression that Masui was the only possible cause of Complainant‘s hymen stretching when, in fact, Samatua had been already convicted for a prior rape of Complainant.

During oral arguments, counsel for Masui conceded that this issue was subsumed by the first issue. (App. Tr., p. 39-40, Oct. 25, 2012)). In any event, our review of the record shows that the trial court‘s Rule 412 ruling did not prevent the defense from cross-examining Dr. Ah-Ching about his prior testimony in the Samatua trial. The trial court merely barred the testimony concerning the alleged five witnessed occasions of sexual intercourse by Complainant because this was the only [**12**] testimony proffered by Masui during the pre-trial hearing. As previously discussed in the foregoing section, if defense counsel was confused regarding the trial court‘s ruling, then it was defense counsel‘s obligation to seek clarification of the ruling. We therefore hold that Masui‘s claim that misleading evidence was presented to the jury is without merit.

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III. Evidence of the hospital form

Finally, Masui contends that the court erred by admitting the ―Suspected Child Abuse or Neglect Form,‖ which Dr. Ah-Ching completed, into evidence. Masui states that the form was hearsay, and it was not admissible under the hearsay exception contained in Rule 803(4), which allows for the admission of statements for the purpose of medical treatment and diagnosis. Masui alleges that the form contained no such statements because the only statements made by Complainant on the form are biographical, such as her name and age. Masui argues that the form does not contain observations and notes made by Dr. Ah-Ching of his examination, but, rather, amounts to the written report of an expert witness that should not have been admitted into evidence.

[8][9][10] Generally, hearsay is not admissible into evidence. T.C.R.Evid. 802. However, there are several exceptions to the hearsay rule. Statements made for medical treatment and describing medical history, past or present symptoms, or the [**13**] inception or general character of the cause of symptoms are admissible. T.C.R.Evid. 803(4). Additionally, reports of acts, events, conditions, opinions or diagnoses may be admitted as evidence of those matters if the writing: (a) was made at or near the time of the acts, events, condition, opinions, or diagnoses recorded; (b) was made by, or from information transmitted by, a person with knowledge; (c) was kept in the course of regularly conducted activity; and (d) was made as the regular practice of that activity. T.C.R.Evid. 803(6); Amerika Samoa Bank v. Groves, 24 A.S.R. 2d 77, 80 (Trial Div. 1993).

The hearsay exception applies to the hospital form at issue here. The form explicitly states that the explanation of Complainant‘s condition was given to Dr. Ah-Ching by Complainant herself. Complainant‘s explanation of her condition obviously falls within the Rule 803(4) hearsay exception. Moreover, while the biographical information that Masui points to might not contain information that is explicitly related to medical treatment, it was still helpful to Dr. Ah-Ching in formulating a treatment plan, especially considering the fact that the Complainant‘s condition was related to her father‘s sexual abuse of her.

Furthermore, the report satisfies the requirements of Rule 803(6). The report contained information documenting Complainant‘s physical condition and Dr. Ah-Ching‘s diagnosis [**14**] and findings. Dr. Ah- Ching testified that it was filled out contemporaneously to the time of his examination of Complainant. He also testified that it was the regular practice at the hospital to document findings on the form during a sexual assault examination. Masui argues that Rule 803(6) does not apply because the report is actually created by Child Protection Services for

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their own use. This argument ignores the fact that the report was ―created‖ by Dr. Ah-Ching at the hospital in the hospital‘s regular business activity in the sense that he filled out all of the information in it based on his observations. Masui does not explain why it should matter if the form itself was actually provided by Child Protection Services for doctors to fill out in the regular course of their hospital activities. Masui also states that Rule 803(6) only refers to commercial or other business records. However, nowhere in its language does Rule 803(6) limit itself to records of purely commercial activities. In fact, Rule 803(6) states that ―business‖ includes a ―business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.‖ T.C.R.Evid. 803(6). A hospital would certainly qualify as a business under this definition.

After reviewing the record below, we hold that it was not error for the trial court to admit the form in question. It is also worth noting that the trial court gave defense counsel the [**15**] opportunity to redact those portions of the form that he found objectionable, but counsel declined to do so. (Trial Tr., p. 37, June 15, 2010). Counsel‘s failure to redact the hospital form when given the opportunity constitutes a waiver of Masui‘s current challenge to the form.

Order

For the reasons stated above, we affirm Asovale Masui‘s convictions. It is so ordered.

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Cite As: Wall v. Governor, AP No. 09-08, slip op. at [page number] (App. Div. Jan. 18, 2013)

ESTHER WALL, Appellant,

v.

THE HONORABLE GOVERNOR TOGIOLA TULAFONO, THE LAND COMMISSION, THE TERRITORIAL REGISTRAR, and AMERICAN SAMOA GOVERNMENT, Appellees.

High Court of American Samoa Appellate Division

AP No. 09-08

January 18, 2013

[1] The Governor is an agency for APA purposes whenever he approves a lease regarding communal lands, and therefore the court has the authority to review the Governor‘s decision under A.S.C.A. § 4.1040.

[2] In reviewing an agency‘s interpretation of evidence, its factual inferences, and its conclusions of law, the court shall give appropriate weight to the agencies experience, technical competence, and specialized knowledge.

[3] The Court may reverse or modify an agency‘s decision if substantial rights of the claimant have been prejudiced, pursuant to A.S.C.A. § 4.1044.

[4] In reviewing the Land Commission‘s actions, the court reviews for violations of due process.

[5] When it comes to the alienation of land, the Governor is afforded broad discretionary authority, and therefore the court is limited to determining whether the Governor‘s decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

[6] Due process only requires notice before a final decision is made; any deviations from the notice requirements in A.S.C.A. §4.1031 is inapposite to, and did not affect, the Governor‘s ultimate decision.

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[7] Where Appellant admitted to participating intimately with the Appellees in proceedings and agency decisions for over a year prior to the issuance of the decision, Appellant was given a meaningful opportunity to be heard.

[8] Under current law, the Governor is under no obligation to absolutely bar the conveyance of land in circumstances where the matai has not consulted with family members prior to the conveyance of communal land.

Before RICHMOND, Associate Justice; WARD, Associate Justice; MAMEA, Associate Judge; and SATELE, Associate Judge.

Counsel: For Appellant, Mark F. Ude For Appellees, Michael L. Iosua, Assistant Attorney General

OPINION AND ORDER

The Appellant, Esther Wall (hereinafter ―Wall‖), is a member of the Fonoti family; specifically, an heir of Fonoti Vili. Wall appealed from a decision by Governor Togiola Tulafono (―Governor‖) approving the alienation of Fonoti family communal land. The question for decision is whether Wall‘s claims amount to reversible error under the standards of review applied to Appellees‘ actions. We hold that the claims do not amount to reversible error and will affirm.

Background

The Fonoti family has had continuing disputes concerning, inter alia, the administration and management of Fonoti communal [**2**] land. These issues have spilled into courtrooms, administrative agencies, and elsewhere. Apparently, during the course of these years-long disputes, the Fonoti family agreed to subdivide and assign the Fonoti communal lands to three different clans within the Fonoti family for a term of years: one section to the heirs of Fonoti Vili (from which Wall traces her lineage), another to the heirs of Aufata Fonoti (from which the current Fonoti title-holder, Fonoti Tafa‘ifa, traces her lineage), and the final section to Fofo Lokeni and heirs. The Territorial Registrar formalized this subdivision and assignment in the Territorial Registrar of Titles, Vol. LT, pages 634-39. During the years of 2006 and 2007, Fonoti Tafa‘ifa, the senior matai of the Fonoti family, attempted to alienate and trifurcate the entirety of the Fonoti communal lands, some 66 acres, in recognition of this subdivision-assignment agreement. However, on March 21, 2007, Governor Togiola Tulafono wrote a letter denying the request, finding that alienating and converting the entirety of the Fonoti communal lands into three individually-owned parcels was inappropriate

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as it would eliminate the communal status of the land and the Fonoti matai title.

During this 2006-2007 period, Fonoti Tafa‘ifa also purportedly sold and transferred nearly five acres of communal lands via deed, ―conveying‖ three plots amounting to nearly four-and-a-half acres to Florence Vaili Saulo, and one quarter-[**3**] acre plot to Failoa Parungo. These four parcels are the lands in dispute in this appeal. The American Samoa Code Annotated (―A.S.C.A.‖) sections 37.0203 and 37.0204(a) prohibits the alienation of communal lands unless the matai, the custodian of those lands, complies with this process: the matai petitions the Land Commission to hold a meeting concerning the property, whereupon the Land Commission holds said meeting in compliance with its own internal procedures and later issues a recommendation to the Governor either for or against the alienation; the Governor then disapproves the proposed conveyance or approves the alienation by signing a warranty deed over to the proposed owner, which the Territorial Registrar formally registers.

In late 2007, Fonoti Tafa‘ifa petitioned the Land Commission to hold a meeting concerning the disputed parcels. In anticipation of the Land Commission meeting, the Office of the Territorial Registrar and the Land Commission posted notices of the impending meeting and alienation on the bulletin board outside the Administrative Building and the Courthouse from December 2007 to March 2008, for at least 60 days. Additionally, newspaper bulletins and radio announcements were issued mentioning the parcels of land in dispute and requesting members of the Fonoti family to attend the meeting set for March 7, 2008 (including a specific request for Wall‘s presence). [**4**]

On January 15, 2008, Wall and some members of her family wrote to the Land Commission and the Territorial Registrar, voicing their disapproval of Fonoti Tafa‘ifa‘s pending alienation of communal land. On February 5, 2008, the Land Commission received another letter from Wall objecting to the alienation.

On March 7, 2008, the Land Commission held its public hearing regarding the alienation of the disputed parcels, which Fonoti Tafa‘ifa and Wall attended. At the hearing, the Land Commission noted the trifurcated status of the Fonoti communal land, and all of the parties‘— including Wall‘s—objections. The Land Commission also noted that the Fonoti Vili clan, of which Wall is a member, did not currently maintain the disputed parcels of property. Finally, the Land Commission noted that none of the other clans seemed to object to the alienation of the disputed parcels. Accordingly, the Land Commission recommended

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alienation, committed the recommendation to writing, and sent it to Governor Tulafono on March 20, 2008.

Shortly thereafter, Wall wrote to the Governor, again, maintaining her disapproval of the land-alienation. Despite her protestation, the Governor authorized the alienation of the four disputed parcels of land via four warranty deeds on April 25, 2008. The Territorial Registrar registered the same on May 21, 2008. [**5**]

Through her own efforts, Wall discovered the warranty deeds. On June 16, 2008, and within 30 days of the Registrar‘s filing, Wall filed a Petition for Review of Agency Decision and a Notice of Appeal. On July 17, 2008, the American Samoa Government (―ASG‖) responded with a Motion to Dismiss and an Answer. This Court refused to dismiss Wall‘s appeal in an order issued on October 27, 2010.

Wall filed a Brief on December 7, 2010. Subsequently, on March 14, 2011, the Appellees (ASG, Governor Tulafono, the Land Commission, and the Territorial Registrar) filed a Brief. In turn, Wall filed a Reply Brief on March 28, 2011.

While this process lumbered along, the new ―owners‖ of the alienated parcels began developing those parcels, allegedly, upon the Territorial Registrar‘s consent. In response, on April 28, 2011, Wall requested a stay so that the development could not proceed. This Court ultimately denied the requested stay on July 13, 2011. Regardless, this matter came on for oral arguments on February 23, 2012, counsel appearing.

Jurisdiction

[1] In Moetoto v. Savusa, 28 A.S.R.2d 144, 146 n.1 (Land & Titles Div. 1995), the court found the Governor to be an ―agency‖1 for APA purposes whenever he approved a lease regarding [**6**] communal lands. Because the Governor can be considered an ―agency‖ and has determined the outcome of a contested land matter, this Court has the authority to review the Governor‘s decision under A.S.C.A. § 4.1040.2 Additionally, there is a sufficient amount of authority to justify this Court‘s review of the Land Commission‘s actions.

1 An ―agency‖ is defined as inter alia an ―officer of the government other than the legislature or the courts, authorized by law to make rules or to determine contested cases.‖ A.S.C.A. § 4.1001(a). 2 A.S.C.A. § 4.1040(a) states, ― A person who has exhausted all adminis- trative remedies available within an agency and who is aggrieved by a final decision in a contested case shall be entitled to judicial review under this section and 4.1041 through 4.1044.‖ Id.

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Standard of Review

[2]-[3] ―In reviewing the agency‘s interpretation of the evidence, its factual inferences, and its conclusions of law, the court shall give appropriate weight to the agencies experience, technical competence, and specialized knowledge.‖ A.C.S.A. § 4.1043. Furthermore, the Court may reverse or modify an agency‘s decision if substantial rights of the claimant have been prejudiced, pursuant to A.S.C.A. § 4.1044.3 Here, the final decision came to fruition via a two-part process: the Land Commission submitted a recommendation to the Governor based on a public hearing, and based on that recommendation, the Governor issued his final decision. Therefore, we will review the Land [**7**] Commission‘s actions to determine whether Wall had been prejudiced by an unlawful process; and we will review the Governor‘s decision to determine whether it was arbitrary, capricious, or an abuse of discretion.

[4] In reviewing the Land Commission‘s actions, we review for violations of due process. The requirements of due process vary with the circumstances of the case and generally require something less than a full evidentiary hearing. Faumuina v. Am. Samoa Gov’t Emp. Ret. Fund, 1 A.S.R.3d 112, 118 (Trial Div. 1997). The ―only constant factor apparent with the Court in the review of prior decisions is ‗that some sort of hearing is required before an individual is finally deprived of a property interest.‘‖ Ferstle v. Am. Samoa Gov’t, 7 A.S.R.2d 26, 49 (Trial Div. 1988) (citing Mathews v. Eldridge, 424 U.S. 319, 334 (1976))(emphasis added). Accordingly, the core requirements of due process are due notice and a reasonable opportunity to be heard. REV. CONST. AM. SAMOA art. I §2; Ferstle, 7 A.S.R.2d at 49. If these requirements have been met, the individual has been afforded adequate procedural due process. Faumuina, 1 A.S.R.3d at 118 (citing Cleveland Board of Ed. V. Loudermill, 470 U.S. 532, 546, 84 L.Ed.2d 494, 506 (1985)).

[5] When it comes to the alienation of land, this Court acknowledges that the Governor is afforded broad discretionary authority—authority that may be traced back to the early 1900s [**8**] when the Governor held

3 A.S.C.A. § 4.1044 states that a petitioner‘s rights are violated when an agency‘s decision 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; or (6) arbitrary, capricious or characterized by abuse of discretion.‖ Id.

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the powers of all three branches of government. See, e.g., Codification of the Regulations & Orders for the Government of Am. Samoa § 40 (1917). Because the Fono has not changed that authority, the Appellate Division is very limited in its powers of review under the Administrative Procedures Act (―APA‖). Accordingly, we are limited to determining whether the Governor‘s decision was ―arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.‖ A.S.C.A. § 4.1044(6). The arbitrary and capricious standard is narrow and does not permit a court to substitute its judgment for that of an administrative body or agency. See Nat’l Pac. Ins. Co., Ltd. v Comm’r, 5 A.S.R.3d 183, 189 (Trial Div. 2001).

Discussion

Because our review is limited, it is not necessary for us to pass upon all of the issues raised in this appeal. In determining whether Wall‘s due process rights were violated, we must determine whether the Appellees have complied with the certain statutory procedures pursuant to A.S.C.A. §§ 37.0203-37.0204. See Magalei v. Atualevao, 19 A.S.R.2d 86 (1991). We find that all of the statutorily prescribed requirements were met before Governor Tulafono approved the transfer of Fonoti communal land.4 The Land Commission held a public hearing, which [**9**] Wall and the current Fonoti title-holder, Fonoti Tafa‘ifa, attended. After the hearing, the Land Commission made its recommendation to the Governor in a letter dated March 20, 2008. The Land Commission noted the three objections filed during the posting of the deeds, including Wall‘s objection, and determined that one clan should not interfere with another clan‘s plans for their assigned portion of land. After receiving this recommendation, the Governor approved the four warranty deeds for the transfer of Fonoti communal land and filed a written approval with the Territorial Registrar for each of the four warranty deeds.5

4 See A.S.C.A. § 37.0203 regarding the duties of the Land Commission in connection with instruments affecting title to land. 5 Wall argues that compliance with the administrative procedures was deficient in that the Governor did not provide a written finding of fact regarding the four warranty deeds. However, for each of the four warranty deeds, Governor Tulafono stated that he had considered the representations of the parties and the recommendation of the Land Commission. Although the Governor‘s letter did not provide a detailed explanation for his decision, the Governor‘s reasoning may be discerned by his reference to the Land Commission‘s recommendation. Nonetheless, the statutorily prescribed procedures that govern the issuance of decisions under A.S.C.A. § 4.1030 are ancillary to the statutes that govern transfers of communal land under A.S.C.A. § 37.0203; any deviation from the procedures under A.S.C.A. § 4.1030, if

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[6] Wall argues that she was not given sufficient notice of the Governor‘s decision approving the four warranty deeds that converted Fonoti communal land to individually owned land. However, due process only requires notice before a final decision is made; any deviations from the notice requirements in [**10**] A.S.C.A. §4.10316 is inapposite to, and did not affect, the Governor‘s ultimate decision. Wall was given sufficient notice of the Land Commission proceedings, which were conducted before Governor Tulafono rendered his decision. In fact, Wall and some members of her family wrote to the Land Commission, Governor Tulafono, and the Territorial Registrar—on more than one occasion—prior to the proceeding, voicing their opinions regarding the land matter. Indeed, Wall was given the opportunity to solicit support and prepare her objections to the proposed alienation of Fonoti communal land well in advance. Therefore, the notice requirement of due process has been met.

[7] Now that we have determined Appellees have complied with the notice requirement, we must also determine whether Wall was afforded a meaningful opportunity to be heard. We believe that she was. Wall attended the Land Commission proceeding where she was identified as a member of the Fonoti family on March 7, 2008. Moreover, Wall, herself, admits to ―participat[ing] intimately with the Respondents in proceedings and agency decisions of the Executive Branch for over a year prior to the issuance of the decision.‖ Brief of Petioner-Appellant, filed, AP No. 09-08 (App. Div. 2010). Accordingly, we conclude that [**11**] the Land Commission‘s proceedings fully complied with due process requirements.

We next turn our attention to the Governor‘s decision. The main issue that affects this Court‘s determination of whether the Governor‘s decision was arbitrary and capricious, or otherwise not in accordance with law, is whether a family meeting or consultation is a necessary prerequisite for the alienation of communal lands. In Vaimaona v. Tuitasi, 13 A.S.R.2d 88 (App. Div. 1991), where a matai alienated communal land to another member of the communal family, the Appellate Division opined that Samoan custom dictates a family formally meet prior to the alienation of communal land, but contended that the custom is in conflict with the land laws contained in A.S.C.A. §§ 37.0203-37.0204. The court ultimately held that neither the Land any, could not have affected the Appellees‘ decision-making process, which is at the crux of our review. 6 Pursuant to A.S.C.A. §4.1030, a ―final decision or order adverse to a party in a contested case shall be in writing and stated in the record‖ and ―shall include findings of fact and conclusions of law.‖

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Commission nor the Governor is ―required by law to withhold the approval [of alienation] for failure to consult [with family], where it has not found the conveyance to be ‗improvident.‘‖ Id. at 89, 91.

On the other hand, in Pen v. Lavata’i, 30 A.S.R.2d 10 (App. Div. 1996), where a matai attempted to lease a piece of communal land that was initially assigned to a family member to a non-family member, the Appellate Court mentioned, in dicta, that were it to decide whether alienation of communal land required a family meeting, it would hold them necessary, which would, in [**12**] effect, overturn Vaimaona or at least relegate Vaimaona‘s holding to its facts. Id. at 17.

[8] Ostensibly, it appears that there is a dichotomy between the two decisions. On the one hand, Vaimaona held that it was not required by law to withhold an approval for alienation of communal land for failure to consult with family. While on the other hand, the Pen court expressed that it would require a family meeting if it were to address whether alienation of communal land required such a meeting. However, the Pen court deliberately chose not to render a decision on that matter. Thus, under current law, the Governor is under no obligation to absolutely bar the conveyance of land in circumstances where the matai has not consulted with family members prior to the conveyance of communal land. A.S.C.A. § 37.0203(c); Vaimaona v. Tuitasi, 18 A.S.R.2d 88 (1991). Accordingly, we do not find that the Governor acted in an arbitrary or capricious manner, or otherwise not in accordance with law, when he rendered his decision without requiring a family meeting.

Based on the foregoing, we do not find that Appellant was denied due process; nor do we find that the Governor‘s decision was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. [**13**]

Order

Appellant has failed to demonstrate any grounds for reviewing the Governor‘s approval of the conveyances, and we therefore affirm the decision below. It is so ordered.

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Cite As: Am. Samoa Veterans Ass’n v. Am. Samoa Gov’t, AP No. 01-12, slip op. at [page number] (App. Div. Mar. 12, 2013)

AMERICAN SAMOA VETERANS ASSOCIATION, Appellant,

v.

AMERICAN SAMOA GOVERNMENT, Appellee.

The High Court of American Samoa Appellate Division

AP No. 01-12

March 12, 2013

[1] The Appellate Division reviews questions of law de novo.

[2] A case is moot when the issues are no longer ―live‖ or the parties lack a legally cognizable interest in the outcome.

[3] A court cannot hear cases that are moot.

[4] A preliminary injunction may be issued by a court after there has been a hearing in which sufficient grounds has been established.

Before WARD, Associate Justice; PATEA*, Acting Associate Justice; MAMEA, Associate Judge; and MUASAU, Associate Judge.

Counsel: For Appellant, Mark F. Ude For Appellee, Assistant Attorney General Marian M. Rapoza

OPINION AND ORDER

Background

The lease in dispute here was also the subject of the appeal in Am. Samoa Veterans Association v. Am. Samoa Gov’t., AP No. 8-11 (January 4, 2013). Briefly restated, the American Samoa Government (―ASG‖) entered into a 30-year lease agreement with the American Samoa Veterans Association (―ASVA‖). The lease, which by its own terms ended on June 2, 2007, contained a provision for unilateral termination

* Honorable Elvis R. Pila Patea, Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior.

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by ASG upon 30 days written notice to ASVA. On April 25, 2011, the Governor of American [**2**] Samoa issued a letter to ASVA to vacate the premises, noting that the lease had long expired and ASVA had 30 days to comply.

ASVA instead filed a petition for injunctive relief on May 19, 2011 with the Land and Titles Division of the High Court. On August 4, 2011, ASG filed its Answer and Counterclaim for Summary Recovery of Possession. The court transferred the summary recovery counterclaim to the Trial Division on August 29, 2011.

ASG‘s Counterclaim sought a judgment for possession of the premises pursuant to A.S.C.A. § 43.1401, et seq. The Trial Division ruled in ASG‘s favor in a September 1, 2011 opinion, finding that the lease ended on June 2, 2007 and that ASG was entitled to possession of the premises. Upon appeal, we upheld the Trial Division‘s decision. Am. Samoa Veterans Association v. Am. Samoa Gov’t., AP No. 8-11 (January 4, 2013).

After the Trial Division‘s ruling in ASG‘s favor, the Land and Titles Division eventually dismissed ASVA‘s petition for injunctive relief as moot. ASVA then filed a motion for reconsideration1 on November 28, 2011, which the court denied in a December 22, 2011 order. ASVA timely filed its Notice of Appeal on January 2, 2012. [**3**]

Standard of Review

[1] The question raised in ASVA‘s appeal, whether the Land and Titles Division properly dismissed ASVA‘s petition for injunctive relief as moot, involves a question of law. The Appellate Division reviews questions of law de novo. Roman Catholic Diocese of Samoa Pago Pago v. Avegalio, 20 A.S.R.2d 70, 73 (App. Div. 1992); see also In re Di Giorgio, 134 F.3d 971, 974 (9th Cir. 1998).

Discussion

The sole issue2 that ASVA raises on appeal is whether the Land and Titles Division properly dismissed ASVA‘s petition for injunctive relief

1 ASVA‗s ―motion for reconsideration‖ was actually a motion for new trial or motion to amend judgment. See T.C.R.C.P. 59. 2 ASVA frames this single issue on page 1 of Appellant‘s Brief, and then proceeds to present four separate arguments in support of its position. Two of those arguments and a variation of a third argument are duplicative of the arguments raised and already decided by this Court in Am. Samoa Veterans Association v. Am. Samoa Gov’t, AP No. 8-11

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as moot after the Trial Division granted ASG‘s counterclaim for summary recovery of possession of the premises.

[2][3] A case is moot when the issues are no longer ―live‖ or the parties lack a legally cognizable interest in the outcome. Senate of the Legislature of Am. Samoa v. Lutali, 26 A.S.R.2d 125, 129 (Trial Div. 1994). A court cannot hear cases that are moot. Island’s Choice v. Am. Samoa Gov’t., 5 A.S.R. 3d 3, 5 (App. Div. 2001). [**4**]

The record is clear that while ASVA‘s petition for injunctive relief was still pending in the Land and Titles Division, the Trial Division conducted a hearing on ASG‘s counterclaim for summary recovery of possession, and, after examining all the evidence, determined that ASG was entitled to possession of the premises. When the Land and Titles Division subsequently took up ASVA‘s injunctive relief request, it took notice of the Trial Division‘s ruling in the summary recovery of possession proceedings and found that ASVA‘s petition for injunctive relief was moot, and accordingly dismissed the petition.

[4] A preliminary injunction may be issued by a court after there has been a hearing in which ―sufficient grounds‖ has been established. A.S.C.A. §43.1303(a)(1). ―Sufficient grounds‖ means:

(1) there is a substantial likelihood that the applicant will prevail at trial on the merits and that a permanent injunction will be issued against the opposing party; and

(2) great or irreparable injury will result to the applicant before a full and final trial can be fairly held on whether a permanent injunction should issue.

A.S.C.A. §43.1301(j).

The issue presented by the parties to the Trial Division and the Land and Titles Division was the same: was ASG entitled to recover possession of the premises or should ASVA continue to [**5**] remain on the premises. The Trial Division had conducted a full hearing and ruled as a matter of law on the merits in favor of ASG. Under the specific facts of this dispute, the resolution of the issue by the Trial Division necessarily meant that ASVA would not prevail at trial on the merits in its injunctive relief action. Thus, the issue before the Land and Titles Division (i.e. whether ASG should be prevented from interfering with ASVA‘s

(January 4, 2013). We see no need to address them again. The remaining argument addresses the dismissal directly.

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continued possession of the premises) was no longer ―live‖. We therefore hold that the Land and Titles Division properly dismissed ASVA‘s petition as moot. See Lutali, 26 A.S.R.2d at 129.

Order

For the reasons stated above, the judgment appealed from is AFFIRMED. It is so ordered.

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Cite As: Pago Pago Yacht Club v. Am. Samoa Gov’t, AP No. 04-12, slip op. at [page number] (App. Div. Apr. 24, 2013)

PAGO PAGO YACHT CLUB, Appellant,

v.

AMERICAN SAMOA GOVERNMENT, Appellee.

The High Court of American Samoa Appellate Division

AP No. 04-12

April 24, 2013

[1] The Appellate Division reviews questions of law de novo.

[2] Unjust enrichment has both a substance and a remedial aspect. The substantive question is whether the plaintiff has a right at all, that is, whether the defendant is unjustly enriched by legal standards. The remedial aspect often takes the form of restitution.

[3] The goal of restitution is to prevent unjust enrichment of the defendant by making him give up what he wrongfully obtained from the plaintiff.

[4] Before proceeding to the damages phase of a trial, the plaintiff must first establish liability on the defendant‘s part.

Before: RICHMOND, Associate Justice; WARD, Associate Justice; PATEA*, Acting Associate Justice; MAMEA, Associate Judge; and MUASAU, Associate Judge.

Counsel: For Appellant, Mark F. Ude For Appellee, Deputy Attorney General Eleasalo V. Ale

OPINION AND ORDER

* Honorable Elvis R. Pila Patea, Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior.

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Background

On February 1, 1994, a lease (―the Lease‖) was executed between the American Samoa Government (―ASG‖), as lessor, and the Pago Pago Yacht Club (―PPYC‖), as lessee. The Lease concerned a parcel of land in Utulei and provided for PPYC‘s lease of the land and a building located on the land for a period of 30 years, starting on July 1, 1994 and ending June 30, 2024. The Lease further provided a rental rate of $1.00 per month with the understanding that PPYC would make investments necessary to construct improvements on the premises within three [**2**] years after the original term of the Lease‘s commencement, with the minimum investment being $50,000.

The Lease also contained the following provision:

Notwithstanding the above and pursuant to Section 37.2030 American Samoa Code Annotated (ASCA) this lease will be submitted to the Fono for review. Should the Fono fail to approve the lease under the method provided for in Section 37.2030 ASCA, this lease shall be void, unless LESSEE exercises, in writing and within thirty (30) days of Fono disapproval, an option which is hereby granted to lease the premises for one day less than ten (10) years.

The Lease was subsequently submitted to the Fono for approval pursuant to A.S.C.A. § 37.2030. In April 1994, the Fono disapproved the Lease.

After the Fono‘s disapproval, ASG and PPYC executed another document titled ―First Amendment to Lease Agreement Between American Samoa Government and Pago Pago Yacht Club‖ (―the Amendment‖). The Amendment was executed on May 31, 1994. The Amendment noted that the Fono had rejected the original Lease on or about April 27, 1994. The Amendment further stated that it amended the Lease to adjust the term of the Lease to ―one day less than ten (10) years.‖ The Amendment also provided that all other terms of the February 1994 lease agreement, except as amended, remained in force.

From 1994 to 2009, PPYC occupied and operated the subject premises. According to PPYC‘s complaint, in 2009 ASG made it [**3**] known that it wished to take over the premises and informed PPYC that it must be out by January 15, 2010. In response, PPYC filed a complaint for damages and for injunctive relief. PPYC made two claims in its complaint: 1) a claim for good faith improver/unjust enrichment, and 2) a claim for breach of contract. The trial court denied the preliminary injunction in a March 17, 2010 order.

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The matter came to trial on the merits on October 14, 2011. Prior to trial, during a August 18, 2011 hearing, the Court stated that it would bifurcate the trial and try the issue of the existence of a lease separate from any damages issues. The court instructed the attorneys to submit a written order, regarding bifurcation, for the court‘s approval. The record is void as to the existence of such an order. After trial, the court issued a January 12, 2012 Opinion and Order in ASG‘s favor. In its order, the court noted that the original lease had been rejected by the Fono and was thus void. The court reasoned that the Amendment amounted to nothing more than an inappropriate attempt to nullify a legislative act of the Fono. Therefore, the court ruled in ASG‘s favor that there was no valid lease agreement. The court further ruled on PPYC‘s claim for ―good faith‖ improvements and found that there was no unjust enrichment because PPYC received access to the premises for the term of the Amendment (February 1, 1994 to February 1, 2004) [**4**] plus an additional seven years of holdover occupation for a nominal rent. The trial court concluded that PPYC received more than they bargained for in the contract.

PPYC filed a one-page motion for reconsideration citing two alleged errors made by the court. On February 21, 2012, the court denied the ―motion for reconsideration‖ on the ground that PPYC‘s motion failed to meet the particularity requirements of T.C.R.C.P. 7(b)(1).1

After PPYC filed its notice of appeal, ASG filed a motion to dismiss PPYC‘s appeal, arguing that PPYC‘s motion for reconsideration failed to meet the particularity requirements of T.C.R.C.P. 7(b)(1), and consequently, the Appellate Division was without jurisdiction. In a June 1, 2012 order, the Appellate Division granted in part and denied in part ASG‘s motion. This appeal was allowed to proceed on one issue only: whether the trial court‘s bifurcation order entitled PPYC to a subsequent hearing on damages.

Standard of Review

[1] The question raised in PPYC‘s appeal, whether it was proper for the trial court to make a determination on a claim for unjust enrichment in the liability phase of a bifurcated proceeding, involves a question of law. The Appellate Division [**5**] reviews questions of law de novo. Roman Catholic Diocese of Samoa Pago Pago v. Avegalio, 20 A.S.R.2d 70, 73 (App. Div. 1992); see also In re Di Giorgio, 134 F.3d 971, 974 (9th Cir. 1998).

1 PPYC did not particularize any grounds that specifically challenged the trial court‘s findings that there was no valid lease agreement and that ASG was not unjustly encriched.

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Discussion

The sole issue on appeal is PPYC‘s contention that the trial court should have proceeded to a subsequent hearing to allow PPYC to introduce evidence of damages. PPYC maintains this position despite the court‘s finding that there was no contract and there was no unjust enrichment.

The trial court bifurcated the trial into two phases: a liability phase and a damages phase. PPYC claims that such bifurcation prohibited PPYC from introducing evidence of damages at the liability phase of the trial, and therefore PPYC did not pursue its unjust enrichment claim during this first phase. Essentially, PPYC argues that the trial court should not have determined the unjust enrichment claim during the liability phase of the trial, and committed error by finding that PPYC failed to show unjust enrichment during the liability phase.

[2][3] It is clear to us that PPYC‘s reasoning is flawed, and exhibits a misunderstanding of ―unjust enrichment.‖ ―Unjust enrichment has both a substance and a remedial aspect. The substantive question is whether the plaintiff has a right at all, that is, whether the defendant is unjustly enriched by [**6**] legal standards.‖ Dobbs, Dan D., Law of Remedies § 4.1(1) (2d ed. 1993). The remedial aspect often takes the form of restitution. The goal of restitution ―is to prevent unjust enrichment of the defendant by making him give up what he wrongfully obtained from the plaintiff.‖ Dobbs, Dan D., Law of Remedies § 1.1 (2d ed. 1993).

[4] Before PPYC could proceed to the ―damages‖ phase of the trial to determine damages and/or restitution, it had to first establish liability by showing that there was a valid lease and/or that ASG was unjustly enriched by legal standards. When the liability phase of the trial concluded, the court found that the lease was void, and there was no showing of unjust enrichment. The single issue in PPYC‘s poorly- drafted ―motion for reconsideration‖ that survived on this appeal did not challenge the trial court‘s finding on unjust enrichment. PPYC instead focused on the court‘s bifurcation order and PPYC‘s perceived entitlement to a subsequent ―damages‖ phase of the trial. We hold that the trial court, having ruled against PPYC on the issue of liability, did not err in finding that PPYC was not entitled to a subsequent hearing on damages and/or restitution.

Our review of the record also revealed that the trial court noted in its February 21, 2012 order denying PPYC‘s ―motion for reconsideration‖ that PPYC alluded in its pre-trial brief to the [**7**] issues of ―good faith improvement‖ and compensation for ―unjust enrichment,‖ and PPYC presented evidence at trial as to claimed improvements. Clearly,

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the court‘s bifurcation order did not prevent PPYC from presenting any evidence to support its unjust enrichment claim. Rather, PPYC presented evidence on good faith improvements, and the court simply did not accept PPYC‘s arguments. And when PPYC failed to raise as error the court‘s specific finding on unjust enrichment in its ―motion for reconsideration‖, it failed to preserve the issue for appeal.

PPYC‘s further argument, during oral arguments, that the bifurcation order prevented PPYC from addressing the unjust enrichment claim not only contradicts what it actually presented during the liability phased of the trial, but also highlights PPYC‘s confusion as to what the court bifurcated. If there was any confusion as to the meaning of the court‘s bifurcation order or as to what evidence was to be presented during each phase of the trial, it was incumbent upon PPYC‘s counsel to seek clarification. He failed to do so. In sum, PPYC‘s claim fails. [**8**]

Order

For the reasons stated above, the judgment appealed from is AFFIRMED. It is so ordered.

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High Court of American Samoa Slip Opinions (2013)

Cite As: Agasiva v. Am. Samoa Gov’t, AP No. 06-12, slip op. at [page number] (App. Div. July 11, 2013)

MICHAEL AGASIVA, Appellant,

v.

AMERICAN SAMOA GOVERNMENT, Appellee.

High Court of American Samoa Appellate Division

AP No. 06-12

July 11, 2013

[1] A constitutional error is harmless when it looks beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Where the error is non-constitutional, it is harmless unless it is more probable than not that it did not materially affect the verdict.

[2] A trial court‘s choice between two permissible views of the weight of evidence is not clearly erroneous where the evidence would support a conclusion either way. The question that must be determined is whether the trial court‘s findings of fact were illogical, implausible, or lack support in the record.

[3] A dangerous instrument is any instrument, article, or substance, which under the circumstances in which it is used, is readily capable of causing death or serious physical injury.

[4] A serious physical injury is defined as a physical injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.

[5] Whether an instrument is a ―dangerous instrument‖ within the meaning of the statute does not require that the actor concurrently intend to cause actual serious physical injury while wielding the instrument.

[6] Striking an individual with an 18-inch blade, which is designed to cut through wood or tough vegetation can potentially cause serious bodily injury or death.

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[7] It is well-established that in a bench trial, a trial judge, as the trier of fact, will disregard any inadmissible evidence and improper argument.

[8] The U.S. Supreme Court two-prong standard that a petitioner must show in order to prevail on a claim for ineffective assistance of counsel is: (1) the defendant must show that counsel‘s performance was deficient; (2) the defendant must show that the deficient performance prejudiced the defense.

[9] Under prong one of the test for ineffective assistance of counsel, the court must take into account the ―strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.

[10] It is well-settled that a party may not raise an issue for the first time in a motion for new trial that could have been properly raised at trial.

[11] In criminal cases, a motion for new trial shall be filed within 10 days after the announcement of judgment or sentence. Thus, errors of law not raised within 10 days of judgment or sentence are waived, at least insofar as they concern the right to appeal.

[12] The statute of limitations is not a jurisdictional prerequisite; but rather, it is an affirmative defense and the failure to assert the statute before or at trial will constitute a waiver.

Before KRUSE, Chief Justice; PATEA*, Acting Associate Justice; SU‘APAIA, Associate Judge; and SATELE, Associate Judge.

Counsel: For Appellant, Sharron I. Rancourt For Appellee, Camille Philippe, Assistant Attorney General

PATEA, Acting Associate Justice:

OPINION AND ORDER

Background

On September 29, 2009, Sea Seafa, also known as ―Lomi‖ (―Seafa‖), Amuia Foma‘i (―Foma‘i‖), and Pakalike Mate (―Pakalike‖), got together to drink beer under a tree in the village of Amaluia. Appellant Michael Agasiva (―Appellant‖) joined the group of men and later directed Pakalike to retrieve fish from his house, which he intended to cook for the group. Appellant instructed Foma‘i to retrieve a cooking pot from

* Honorable Elvis R. Pila Patea, Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior.

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his house. Appellant and Seafa were then alone. Seafa was sitting [**2**] on a large rock facing the ocean while Appellant was standing to Seafa‘s right side. The trial court found that Appellant struck Seafa‘s bare chest several times with the flat side of the approximately 18-inch blade of a machete, leaving bloodied marks. The court also found that Appellant then punched Seafa in the face several times and knocked him unconscious. The attack was stopped when Foma‘i and Pakalike returned and intervened.

On September 30, 2010, a criminal complaint was filed against Appellant for Assault in the Second Degree, in violation of A.S.C.A. § 46.3521(a)(1), and Public Peace Disturbance, in violation of A.S.C.A. § 46.4501. A bench trial was held on September 6 and 7, 2011, where Appellant testified that he punched Seafa three times, but denied hitting Seafa with a machete. On September 15, 2011, the trial court entered a guilty verdict against Appellant for committing the crimes of Assault in the Second Degree and Public Peace Disturbance.

After Appellant was sentenced on December 6, 2011, he timely filed a Motion for Reconsideration or New Trial. At the hearing on the Motion on January 6, 2012, Appellant was represented by appellate counsel. Appellant argued that (1) there was insufficient evidence to convict Appellant, and the court erred in determining that the machete was used in a manner that rendered it a ―dangerous instrument‖; (2) the prosecutor [**3**] made improper comments during closing argument that amounted to burden shifting; (3) the court abused its discretion by imposing upon Appellant an excessive sentence under the circumstances; (4) counsel was ineffective because critical witnesses were not subpoenaed for trial; and (5) cumulative errors during trial resulted in a prejudicial and fundamentally unfair trial.

On April 4, 2012, the trial court issued an Order denying Appellant‘s Motion for Reconsideration or New Trial. The court determined that (1) a machete is a dangerous instrument when a person uses it to strike another individual, whether or not the broad side of the machete is used; (2) the prosecutor‘s comments may have been improper, however, the court did not impose any burden upon the Appellant to prove that a third- party committed the crime; (3) Appellant‘s sentence was not excessive based on the charges that were brought against him and his criminal history; (4) Appellant‘s trial counsel adequately defended him at trial; and (5) Appellant failed to list any errors that rendered his trial prejudicial or fundamentally unfair. This appeal followed.

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Standard of Review

[1] ―Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.‖ T.C.R.Cr.P. 52(a). ―This rule preserves convictions from being set aside for small errors or defects, which have little chance, if any, [**4**] in changing the result of the trial.‖ Samatua v. Am. Samoa Gov’t, AP No. 06-10 and 15-10, slip op. (App. Div. Sept. 21, 2012) (citing Chapman v. California, 386 U.S. 18, 22 (1967)). There may be constitutional errors that are so minor and insignificant that they may be deemed harmless, not requiring automatic reversal of the conviction. Chapman, 386 U.S. at 22. When it looks ―beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained,‖ the constitutional error is harmless. Id. at 23-24. Where the error is non-constitutional, the error is deemed harmless unless ―it is more probable than not that the error did not materially affect the verdict.‖ United States v. Seschillie, 310 F.3d 1208, 1214 (9th Cir. 2002).

Discussion

On appeal, Appellant argues that (1) there was insufficient evidence that he hit the victim with a machete, and that the machete was used in a manner that rendered it a dangerous instrument; (2) the prosecutor made improper comments that amounted to burden shifting; (3) trial counsel was ineffective for failing to request a continuance, and failing to cross examine the government‘s witnesses concerning the defense theory; (4) the court lacked jurisdiction over the Public Peace Disturbance (―PPD‖) charge because the prosecution on PPD was [**5**] commenced beyond the applicable limitations period; and (5) cumulative errors rendered Appellant‘s trial unfair.

I. Sufficiency of the Evidence

A. Assault in the Second Degree

Appellant argues that the testimonies of the government witnesses were inconsistent, that one other witness‘s testimony supported Appellant‘s version of events, and that there was no corroboration that the marks on the victim‘s chest were from a machete. Appellant essentially urges this Court to reweigh the evidence, with the balance of credibility in favor of the Appellant and one other witness.

[2] It is well-settled that the weight of the evidence and the credibility of witnesses is a determination primarily for the trier of fact because the trier of fact is in the best position to observe the character and demeanor of each witness‘s testimony. Chatman v. Warden, Ross Corr. Inst., 2013

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U.S. Dist. LEXIS 42425, *14-16 (S.D.Oh. 2013); People v. Koch, 248 Ill.App.3d 584, 592, (Ill. App. Ct. 1993) (―In a bench trial, the court has the responsibility of weighing the credibility of the witnesses.‖). Furthermore, ―[f]indings of fact may not be set aside by the appellate division unless clearly erroneous.‖ A.S.C.A. § 46.2403(b). Notably, a ―trial court‘s choice between two permissible views of the weight of evidence is not clearly erroneous where the evidence would support a conclusion either [**6**] way.‖ United States v. Hinkson, 585 F.3d 1247, 1259 (9th Cir. 2009). Thus, the question that must be determined is whether the trial court‘s findings of fact were illogical, implausible, or lack support in the record. Id. at 1264.

Here, despite some inconsistencies with the witness testimonies, the trial court believed them and not Appellant. In addition, photographs of Seafa‘s injuries were introduced into evidence and the trial court was able to observe the nature of the injuries depicted. We have reviewed the entire record, and we hold that the record amply supports the trial court‘s findings. Accordingly, such findings were not clearly erroneous.

B. Dangerous Instrument

Furthermore, Appellant argues that there was insufficient evidence that the machete was used in a manner that rendered it a dangerous instrument. Appellant argues that the individual who used the machete, used it in a manner deliberately intended not to cause serious physical injury.

[3]-[5] Under A.S.C.A. § 46.3111(7), a dangerous instrument is ―any instrument, article, or substance, which under the circumstances in which it is used, is readily capable of causing death or serious physical injury.‖ A serious physical injury is defined as a ―physical injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted [**7**] loss or impairment of the function of any bodily member or organ.‖ A.S.C.A. § 46.3111(24). Therefore, the determination of whether an instrument is a ―dangerous instrument‖ within the meaning of the statute does not require that the actor concurrently intend to cause actual serious physical injury while wielding the instrument. Rather, the proper inquiry is whether, under the circumstances in which the machete was used (hitting the victim across the chest), the machete was readily capable of causing death or serious bodily injury.

[6] Here, Appellant struck Seafa across his chest with the broad side of a machete. Striking an individual with an 18-inch blade, which is designed to cut through wood or tough vegetation—whether it is old, new, sharp, or dull—can potentially cause serious bodily injury.

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Although Appellant used the broad side of the machete to whack Seafa across his bare chest, a slight turn of the wrist or a sudden jolt in movement by either the Appellant or Seafa could have caused the blade of the machete to deeply puncture Seafa‘s body, including vital organs, resulting in grave injuries. After a review of the record, we hold that the trial court did not err in finding that under the circumstances that the machete was used, it was readily capable of causing death or serious physical injury. [**8**]

II. Prosecutor’s Comments

Appellant asserts that the prosecutor improperly commented during closing argument upon Appellant‘s failure to call a witness to testify, which thereby impermissibly shifted the burden of proof to Appellant:

None of them [the witnesses] are related to Pakalike Mate, and it‘s very convenient that the one person that was off-island is the one who‘s getting the finger pointed at. He was here and while the defense was never required to put on any testimony, they have the same subpoena power that the people or the government does, and he was here and has been here on this island.

(Trial Tr. 31, Sept 7, 2011.)

[7] This appeal involves a bench trial. It is well-established in such circumstances that a trial judge, as the trier of fact, ―will disregard any inadmissible evidence and improper argument.‖ Moore v. United States, 609 A.2d 1133, 1136 (D.C. 1992) (citing Singletary v. United States, 519 A.2d 701, 702 (D.C. Cir. 1987)); Koch, 248 Ill.App.3d at 592 (―the trial judge, as the trier of fact, is presumed to know the law and to have considered only competent evidence in reaching its determination on the merits in a bench trial.‖); Johnson v. United States, 636 A.2d 978, 981 (D.C. App. 1994) (―a trial judge is presumed to know of the proper use of evidence.‖); see Harris v. Rivera, 454 U.S. 339, 346 (1981).

[**9**] Here, the trial court considered the evidence and determined that it was convinced beyond a reasonable doubt that Appellant was guilty of committing the crimes for which he was charged. Furthermore, the trial court made clear that it did not shift the burden of proof to the Appellant. Based on our review of the record, there is no error.

III. Ineffective Assistance of Counsel

Appellant argues that defense counsel at trial was ineffective for failing to subpoena Pakalike and another individual for trial, failing to cross

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examine government witnesses concerning whether Pakalike hit Seafa with the machete, and failing to request a continuance to properly serve Pakalike with a subpoena.

[8] ―The accused is entitled to a reasonably competent attorney whose advice is within the range of competence demanded of attorneys in criminal cases.‖ United States v. Cronic, 466 U.S. 648, 655 (1984). The Supreme Court articulated a two-prong standard that a petitioner must show in order to prevail on a claim for ineffective assistance of counsel:

First, the defendant must show that counsel‘s performance was deficient. This requires showing 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 the counsel‘s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. [**10**] Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064 (1984).

A. Defense Counsel‘s Performance

[9] The first prong focuses on the reasonableness of counsel‘s challenged conduct, considering all the circumstances. Id. at 2066. To determine the reasonableness of defense counsel‘s conduct, we must take into account the ―strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.‖ Id.

Defense counsel‘s decision to continue with trial despite being unable to subpoena Pakalike1 and one other person cannot constitute ineffective assistance of counsel where there is nothing in the record to indicate the substance of the absent witnesses‘ testimony. It is pure conjecture that these individuals would have offered favorable testimony for Appellant. The record, on the other hand, clearly shows that Appellant has failed to overcome the strong presumption in favor of trial counsel‘s conduct falling within the wide range of reasonable professional assistance. Accordingly, we hold that trial counsel‘s performance was not deficient. [**11**]

1 In the aftermath of the tsunami that struck American Samoa on September 29, 2009, there were reports of looting from stores that were damaged by the destructive waves. Defense counsel insinuated that Pakalike was probably avoiding the witness stand because of allegations that he took beer from a store that was damaged by the tsunami.

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B. Prejudice

The second prong requires that the defendant ―show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the results of the proceeding would have been different.‖ Strickland, 104 S. Ct. at 2068. Having held that trial counsel‘s performance was not deficient, we need not address whether any prejudice resulted.

IV. Statute of Limitations Defense

Appellant argues that the trial court lacked jurisdiction to try the Public Peace Disturbance charge because ASG filed the charge beyond the one year statute of limitations. Notably, Appellant did not raise the statute of limitations defense in a pretrial motion to dismiss or during trial on September 6 and 7, 2011. The statute of limitations defense was first raised orally on December 6, 2011, during sentencing. Moreover, although Appellant subsequently filed a motion for reconsideration or new trial, he did not raise the issue in his written motion.

[10]-[11] It is well-settled that a party may not raise an issue for the first time in a motion for new trial that could have been properly raised at trial. Am. Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114, 119 (Trial Div. 1990); see Am. Samoa Gov’t v. Pearson, 2 A.S.R.3d 102, 104 (Trial Div. 1998). In criminal cases, ―a motion for new trial shall be filed within 10 days [**12**] after the announcement of judgment or sentence.‖ A.S.C.A. § 46.2402(a). Thus, ―errors of law not raised within ten days of judgment or sentence are waived, at least insofar as they concern the right to appeal.‖ See A.S.C.A. § 46.2402(a); Falefatu, 17 A.S.R.2d at 119.

Here, the statute of limitations defense was not raised either before or at trial, nor in the statutorily-required motion for new trial. Therefore, the issue was not adequately preserved for appellate review.2

V. Cumulative Errors

Appellant asserts perfunctorily that the cumulative effect of errors rendered his trial unfair, but failed to identify any errors for our review. Therefore, we discern no cumulative error requiring reversal. [**13**]

2 [12] Furthermore, the statute of limitations is not a jurisdictional prerequisite; but rather, it is an affirmative defense and the failure to assert the statute before or at trial will constitute a waiver. See, e.g., Randall v. Am. Samoa Govt., 19 A.S.R.2d 111, 119-20 (Trial Div. 1991).

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Order

Based on the foregoing, we affirm the Trial Division‘s judgment of conviction. It is so ordered.

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Cite As: Ava v. Corp. of Presiding Bishop, AP No. 10-11, slip op. at [page number] (App. Div. Aug. 5, 2013)

AVA LUFILUFI PENEUETA, Appellant,

v.

CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS, Appellee.

High Court of American Samoa Appellate Division

AP No. 10-11

August 5, 2013

[1] The T.C.R.C.P. do not apply to proceedings before the Land and Titles Division. Special rules governing the proceedings before that Division have also been adopted.

[2] The Legislature has clearly prohibited any application of The Federal Rules of Civil Procedure, Title 28, U.S.C., to proceedings before the land and titles division. The Chief Justice is required to prescribe rules and forms to govern the conduct of proceedings before that division of the High Court.

[3] The T.C.R.L.T. and applicable statutes create a special, expedited, judicial resolution process for communal land and matai title disputes so that such disputes may be promptly resolved once filed in court, and the underlying inter or intra family tensions or feuding thereby minimized or avoided.

[4] The Governor has historically exercised broad discretionary powers over regulating the leasing of, or alienation of title to, communal lands within the Territory, as well as the limits upon judicial review of his discretionary powers.

[5] The Appellate Division has the authority under the Administrative Procedures Act to judicially review the proceedings before the Land Commission for compliance with due process requirements and to conduct a limited review of the Governor‘s approval or denial of communal land leases or alienation as an ―agency‖ decision in a contested case.

High Court of American Samoa Slip Opinions (2013)

Before KRUSE, Chief Justice; WARD, Associate Justice; PATEA,* Acting Associate Justice; FAAMAUSILI, Associate Judge; and, MUASAU, Associate Judge:

Counsel: For Appellant, Charles V. Alailima** For Appellee, Sharron I. Rancourt

WARD, Associate Justice:

OPINION AND ORDER

The appeal in the above-referenced matter came on for oral arguments on May 30, 2013, both parties appearing through counsel. Appellant Ava Lufilufi Peneueta (―Ava‖) waived oral arguments and submitted the matter on the briefs after orally moving the Court to find the trial court lacked jurisdiction due to an allegedly facially defective Certificate of Irreconcilable Dispute (―CID‖) issued by the Office of Samoan Affairs and filed with the trial court.

[**2**] Appellee Corporation Of The Presiding Bishop of the Church of Jesus Christ of Latter Day Saints (―LDS Church‖), orally argued the CID was legally sufficient to confer jurisdiction upon the trial court and that the trial court‘s decision should be affirmed.

Procedure on Appeal from the Land and Titles Division

[1] Trials heard before the Land and Titles Division and appeals therefrom, are conducted under different statutes, rules, and procedures than those that prevail in other High Court Divisions and the District Court. The Trial Court Rules of Civil Procedure do not apply to proceedings before the Land and Titles Division. A.S.C.A. § 3.0242. Special rules governing the proceedings before that Division have also been adopted. T.C.R.L.T. Rules 1-8. The role of Associate Judges is also enlarged in these proceedings at trial and on appeal. A.S.C.A. §§ 3.0221, 3.0241. The jurisdiction of the Land and Titles Division to generally hear and decide Samoan customary land or titles disputes is also contingent upon the filing of a CID from the Secretary of Samoan Affairs.1 This process affords [**3**] broad discretionary powers to the

* The Honorable Elvis R. Pila Patea, Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior. ** Counsel Toetasi Tuiteleleapaga appeared for Appellant at Oral Arguments. 1 A.S.C.A. § 43.0302 states:

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Justices and Associate Judges of the Land and Titles Division to hear and decide cases under special rules of procedure and evidence. It is within this context that this Court exercises its appellate review powers over matters appealed from that Division, to which we apply our general standards of review, infra.

Standard of Review

The Appellate Division of the High Court reviews questions of law de novo. Roman Catholic Diocese of Pago Pago v. Avegalio, 20 A.S.R.2d 70, 73 (App. Div. 1992). In the judicial appeals context, de novo review acknowledges an appellate court owes no formal adherence or deference to the reasoning or conclusions of law a lower court proffers; indeed, de novo review allows the appellate court to entertain and determine an issue of law anew. See Salve Regina College v. Russell, 499 U.S. 225, 231-32 (1991).

[**4**] With far more deference, the Appellate Division reviews findings of fact under the ―clearly erroneous‖ standard. A.S.C.A. § 43.0801(b). A finding of fact is erroneous when the entire record produces the definite and firm conviction that the court below committed a mistake, according particular weight to the trial judge‘s assessment of conflicting and ambiguous facts.‖ TCW Special Credits v. F/V

(a) Before any action relating to controversies over communal land or matai titles may be commenced in the Land and Titles Division, each party shall file with his complaint a certificate signed and attested by the Secretary of Samoan Affairs or his deputy, in which the Secretary or his deputy affirms and states: (1) that on at least 2 occasions, the parties have appeared personally before him and 2 persons designated by him, without an attorney or counsel, and that an attempt was made to resolve the controversy; (2) that all parties to the controversy received at least 20 days notice for each of the 2 required appearances; (3) the date and hour of the beginning and conclusion of each appearances; (4) the findings and conclusions of the Secretary or his deputy and the 2 designees with respect to the controversy heard before them, including a statement of the reason why the controversy could not be resolved. (b) The certification mentioned in subsection (a) may not be required prior to the issuance of a temporary restraining order issued by the Chief Justice or an Associate Justice to prevent the occurring of irreparable damage.

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Kassandra Z, 7 A.S.R.3d 3, 7 (App. Div. 2003) (internal quotations omitted).

Preliminary Rulings

Before addressing the issues pleaded and responded to by the parties in this action, we briefly take up the matter raised by Ava at oral argument. Although Ava‘s counsel submitted the matter for decision on the briefs filed, counsel further stated that the CID from the Office of Samoan Affairs was similar to the CID filed in Fagaima v. Am. Samoa Gov’t, AP. No. 01-10, slip Op. Nov. 15 2012, (the ―Fagaima Case‖), in which the Court ordered a limited remand to the trial court to ascertain whether the statutory Samoan dispute resolution preconditions to commencing litigation had been met. Ava has filed no motion pursuant to ACR Rule 27 for the Court to address in this matter. Even if the statement by counsel at oral argument could be construed as a request for this Court to exercise its jurisdictional gate-keeping authority, we are [**5**] presented with no grounds upon which to, sua sponte, raise this issue.2

In the absence of a timely written motion or other grounds to support a review of this issue, we decline to act thereon.

Jurisdiction

This matter was duly filed in and heard before the Land and Titles Division. A.S.C.A. § 3.0240. After trial, the trial court issued its Opinion and Order on May 11, 2011. The Appellant timely filed a

2 It is no secret that the CIDs filed with the Court by the Secretary of Samoan Affairs have historically been only marginally compliant with the statutory mandates. Under TCRLT Rule 4(a) (at page 291 then at 293 of the Rules), the CID is required to be ―substantially in the form mandated by statute‖. Under the statute, A.S.C.A. § 43.0302(a), the commencement of any Land and Titles case is prohibited unless ―each party shall file with his complaint…‖ a CID. The parties can and should raise such issues before the trial court during initial proceedings there. Although this court has exercised its jurisdictional gate-keeping responsibilities in some recent cases, our actions were triggered by much more than the appearance of a minimally conforming CID having been filed. In those cases, multiple land parcels, later intervention of new parties, or the recital in a filed CID that a prohibited counsel of record appeared at the hearing before Samoan Affairs, presented compelling reasons to raise and address jurisdictional concerns. This case presents no such special circumstances.

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Motion for New Trial/Amended Judgment and then the Notice of Appeal within the mandated 10-day period; this action is therefore properly before the Appellate Division.

Background

In 1976, Ava Vili, the former sa‘o of the Ava family, executed a deed to Appellee LDS Church for 0.7 acres of land in [**6**] Pava‘ia‘i known as ―Paepaeala‖, which was approved by the Governor and duly registered. The registered survey of the 0.7 acres was conducted by surveyor Gordon Randall and is hereinafter referred to as the ―Randall survey‖. The LDS Church built a church on the 0.7 acre land, and in 1988, secured a deed for an additional 0.22 acres of Ava communal land, to the east and south of the original 0.7-acre deed to cover any potential encroachments. In 1985, surveyor Meko Aiumu (―Meko‖) retraced the area occupied by the LDS Church by using the fence surrounding the church as the basis of his .22-acre survey, assuming that the actual boundary line of the LDS Church property ran along the perimeter of the fence. The 0.22-acre deed was signed by Ava Vili and included a statement of consent, which was purportedly signed by Lafoia Ava, the father of Appellant Ava.

In 1989, the deed was duly noticed and posted from February 17, 1989 to March 20, 1989. There were no objections from the Ava family. The deed was reviewed by the Land Commission and submitted to the Governor for approval. On October 26, 1990, the Acting Governor issued a form entitled ―Governor‘s Approval of Lease of Native Land‖ (―approval form‖) for the 0.22-acres of land. Subsequently the 0.22-acre deed was registered in the Territorial Registrar‘s Office, without objection, on October 30, 1990.

[**7**] In 1991, Appellant Ava who had left American Samoa in 1966 and is the current sa‘o of the Ava family, moved back to American Samoa to live on Paepaeala next to the LDS Church property. In or around 1996, the LDS Church removed part of the perimeter fence and constructed a concrete parking lot on the western side of the church. Ava alleges that she attempted to halt the parking lot ―trespass‖ in 1996. Around 2000-2004, the LDS Church undertook renovations on the east side of the church, including leveling and filling up the parking area and resurrecting a retaining wall on the inside of the church fence. When the work was being conducted, Appellant did not lodge any objections or complaint with the court. (Trial Tr. 82-83.)

After the former sa‘o Ava Vili passed away in 2003, Appellant Ava won the Ava title in MT. No. 09-01. During 2003-2004, Roy Willis, a contractor for LDS, constructed a parking lot and new fencing on the

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eastern side of the church. Ava did not lodge any complaints during this time. However, on November 20, 2005, Ava filed for injunctive relief and trespass. Ava requested the court to invalidate the 1988 deed conveying 0.22 acres of land to the LDS Church, and claimed damages for trespass. The trespass claim concerns the LDS Church‘s use of the area immediately west of the church‘s fence on that side of the 0.7 acres for parking. Subsequently, surveyor L.P. French (―French‖) was obtained to resurvey the areas deeded to LDS. [**8**] Initially, French expressed in a 2005 letter that LDS may be encroaching on Ava land.

Trial was held on November 1-4, 2010. The Court issued its Opinion and Order on May 11, 2011, finding, inter alia, that (1) a family consultation is not required prior to a conveyance of communal land; (2) the approval form is not a contract and therefore the 0.22-acre deed is valid as registered; and (3) the survey presented by French was properly conducted, and therefore the church‘s activities do not encroach upon Ava communal lands. Subsequently, Appellant moved for a new trial or amended judgment, which the court denied on November 4, 2011. This appeal followed.

Discussion

Ava raises six issues on appeal. Issues 1 and 2 address related topics. Issues 3, 4, & 5 address related topics. Issue 6 stands alone. We now address the two groups of issues and the single remaining issue.

I. Assignment of Error ─ Issues 1 and 2.

Ava assigns error to the trial court in allowing the LDS Church to change its position concerning the Randall survey immediately before trial, which Ava asserts was in violation of TCRCP Rule 36, and in finding the testimony of French credible during trial. Ava contends that TCRCP Rule 36 admissions made by the LDS Church in early 2006 and filed with the court were [**9**] controlling and the trial court was precluded by TCRCP Rule 36 from relying upon trial testimony and exhibits contrary to such admissions. LDS Church argues that its position at trial was not contrary to the limited scope of its 2006 admissions and that Ava did not object during trial to the testimony and exhibits of French that showed his reconfiguration of prior surveys.

Ava also argues that French‘s testimony at trial was not credible in light of his previous professional opinions that the LDS Church improvements had encroached upon Ava communal lands. The LDS Church argues, to the contrary, that French‘s reconfiguration of the original 0.7 acre parcel and the .22 acre parcel at issue in this matter was based upon the finding of pins and markers in the field which evidenced the more likely position

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of the LDS Church property‘s boundaries with respect to adjoining Ava lands.

Ava‘s reliance upon a strict interpretation of TCRCP Rule 36 is misplaced. Contrary to Ava‘s assertion that the Land and Titles Rules (―TCRLT‖) Rule 1, adopts the Trial Court Rules of Civil Procedures, (―TCRCP‖), as generally applicable to proceedings within that Division of the High Court, TCRLT Rule 1 actually references ―The American Samoa Rules of Civil Procedures.‖

[2] [**10**] Pursuant to A.S.C.A. § 43.0201, civil practice in High Court shall conform as closely as practicable to the practice provided for in the Federal Rules of Civil Procedure, Title 28 of the United States Code (―U.S.C.‖). The Legislature, however, has clearly prohibited any application of The Federal Rules of Civil Procedure, Title 28, U.S.C., to proceedings before the land and titles division. A.S.C.A. § 3.0242(a). Under this subsection, the Chief Justice is required to prescribe rules and forms to govern the conduct of proceedings before that division of the High Court. Further, subsection (b) of A.S.C.A. § 3.0242 provides broad discretionary powers for the Land and Titles Division to exercise in the conduct of its proceedings, stating specifically:

(b) In any matter of practice or procedure not provided for, or where the strict compliance with any rule of practice or procedure may be inequitable or inconvenient, the land and titles division may act in each case in such manner as it considers to be most consistent with natural justice and convenience.

A.S.C.A. § 3.0242(b).

The Rules of Court, which include the Rules of the High Court, Appellate Court, Trial Court, District Court, and Village Court Rules, were established by Court Order dated September 23, 1981, effective October 1, 1981. Pursuant to that Order ―. . . said rules shall supersede all previous rules of the Court . . .‖

[**11**] The eight rules and one form of the TCRLT, (not including the 1993 Supplemental Rules addressing the National Park Lease Rent procedures), are set forth in mispaginated fashion at pages 290-300 of the Rules of Court.3

3 In lieu of extensive pre-trial motions and expansive discovery practices, which are authorized by rule and statute in other courts, the mispaginated TCRLT Rules 4 and 6 establish different procedures and practices for the Land and Titles Division. Those rules contemplate an extensive pre-trial

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[3] The TCRLT and applicable statutes create a special, expedited, judicial resolution process for communal land and matai title disputes so that such disputes may be promptly resolved once filed in court, and the underlying inter or intra family tensions or feuding thereby minimized or avoided. Although special circumstances in a particular case might allow a Justice sitting in the Land and Titles Division to allow and enforce in that case practices and procedures similar to those provided in the TCRCP, the record in this case reveals no such ruling. In the absence thereof, Ava‘s arguments for strict compliance with TCRCP Rule 36 are in direct conflict with the statute that prohibits the use of the TCRCP in that court.

With respect to Ava‘s arguments that French‘s testimony was not credible or that other evidence supported her position that the boundaries of the 0.7 acre parcel, and [**12**] consequentially the boundaries of the .22 acre parcel, were different than the trial court determined, the record reveals the trial court weighed and considered all of the testimony given and exhibits admitted at trial. Ava‘s arguments are not persuasive. ―Whether or not a dissatisfied litigant had himself presented substantial evidence is not ... the test for clear error. Rather, the question is whether there was substantial evidence to support the trial court‘s conclusions.‖ J.M. GeBauer, Inc. v. Am. Samoa Power Auth, AP No. 05-02, slip op. (App. Div. Apr. 12, 2004)(quoting Moea’i v. Alai’a, 12 A.S.R.2d 91, 93 (App. Div. Sept. 11, 1989); see Roman Catholic Diocese of Samoa Pago Pago, 20 A.S.R.2d at 73 (―The reviewing court accords particular weight to the trial judge‘s assessment of conflicting and ambiguous facts.‖); Am. Samoa v. Makuati, 1 A.S.R. 663, 664 (App. Div. May 24, 1938)(―[I]t is not the province of the appellate court to determine the credibility of conflicting evidence.‖) (citations omitted).

II. Assignment of Error - Issues 3, 4, and 5

Ava asserts that the trial court‘s decision validating the Acting Governor‘s approval of the alienation of the .22 acres of Ava lands to the LDS Church was contrary to law and custom, as well as in excess of the trial court‘s jurisdiction or authority. Ava specifically contends that because the Acting Governor approved the underlying Deed on a form reserved for [**13**] approving communal land leases, the conveyance conference be conducted to: (i) thrash out disputed factual issues and points of law; (ii) determine trial exhibits and witnesses; and (iii) identify persuasive or controlling case law of prior litigation. The Court then issues orders to control the subsequent proceedings at trial.

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was void ab initio and must be set aside. The LDS Church, on the other hand, argues that although the Acting Governor signed the wrong form, he affirmatively approved the underlying conveyance of title of Ava communal land to the LDS Church.

[4]-[5] We recently reviewed and decided similar issues in Wall v. Governor, AP No. 09-08 (App. Div. Jan. 18, 2013). In that matter, we discussed the broad discretionary powers the Governor has historically exercised over regulating the leasing of, or alienation of title to, communal lands within the Territory, as well as the limits upon judicial review of his discretionary powers. Our Opinion therein may be summarized as holding the Appellate Division has the authority under the Administrative Procedures Act (APA), A.S.C.A. § 4.1001 et seq., to judicially review the proceedings before the Land Commission for compliance with due process requirements and to conduct a limited review of the Governor‘s approval or denial of communal land leases or alienation as an ―agency‖ decision in a contested case. We further held that under current law the Governor‘s broad discretionary powers to approve or deny leases of, or alienation of title to, communal lands were not barred in [**14**] circumstances where the matai has not consulted with family members prior to the conveyance.4

Our holding in Wall determines the issues raised by Ava concerning the legality of the 1989 Deed of Ava Vili to the LDS Church for the .22-acre parcel. The record reveals compliance with the statutory requirements of notice (posting), Land Commission hearings, approval by the Acting Governor, and subsequent recordation. The limited alienation of communal lands to a recognized religious society is specifically authorized by statute, A.S.C.A. § 37.0204(d), and this statutorily conforming conveyance cannot, therefore, be determined to be void ab initio as seriously offending either law or public policy at its inception. For similar reasons, the compliance of the parties to this conveyance with the statutory provisions prevents this transaction from being found voidable under A.S.C.A. § 37.0320.

4 Even as the most casual reader of the Revised Constitution of American Samoa (―R.C.A.S.‖) would note, Ava‘s arguments that the Court may impose a family meeting precondition upon the statutorily prescribed communal land alienation restrictions determined by the Legislature, (A.S.C.A. § 37.0201 et seq.) lacks any constitutional support. Article I, Section 3 of the R.C.A.S. prohibits changes in the land alienation laws unless enacted under two successive legislatures by at least a two-thirds vote of each house‘s membership and signed by the Governor. These Branches of Government, not the Judiciary, have the expressed constitutional powers to make the law reflect what Ava advocates.

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The only defect in this transaction raised by Ava is the approval form used by the Acting Governor. Under Wall, that [**15**] issue could have been raised by the timely filing with this Court a petition to review the Acting Governor‘s decision pursuant to the APA. That time has long expired and Ava has presented no plausible legal arguments supporting any present cause of action to set aside this 23 year old sale of communal lands consummated in substantial conformance with statutory requirements.

III. Assignment of Error - Issue 6

Ava argues that the trial court erred in holding that no trespass occurred upon Ava communal lands by the LDS Church. Ava asserts there was sufficient evidence introduced at trial, including the maps drawn by French submitted by the LDS Church at trial to show encroachment upon Ava communal land. Although Ava is correct that certain LDS Church exhibits introduced at trial, e.g. Defendant‘s Exhibit 42, indicate small slivers of Ava land that may be within existing markers or fences currently separating the lands of the LDS Church from Ava communal land, the drawing also shows LDS Church land approximately three times as large as those combined sliver areas currently outside of those boundaries. Further, Exhibit 42 clearly states that as to the sliver areas, that ―... area is outside of the 0.70 acres and the 0.22 acres that the Church is using . . . .‖

As we discussed earlier, and consistent with our Standards of Review, Ava has not met her burden of showing the [**16**] lower court‘s finding of facts in support of its holding on the issue of trespass was clearly erroneous.

Order

For reasons set forth above the May 11, 2011 Opinion and Order issued by the Land and Titles Division is AFFIRMED. So ordered.

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Cite As: Leautu v. Nu`utai, AP No. 11-11, slip op. at [page number] (App. Div. Aug. 7, 2013)

LEAUTU SEGILA VAEAO, Appellant

v.

NU`UTAI SONNY THOMPSON, Appellee.

[In re Matai Title "LE`I" of the Village of Ofu, Manu`a]

High Court of American Samoa Appellate Division

AP No. 11-11

August 7, 2013

[1] A.S.C.A. § 43.0302(a)(2) requires the Office of Samoan Affairs to serve the parties with notice of hearings at least 20 days prior to conducting such hearings.

[2] Under A.S.C.A. § 1.0406(b), any petition for matai registration must certify that a family meeting was called and held for the purpose of selecting a successor to the family‘s matai title, according to the traditions of the family.

[3] A family meeting must have been held for the purpose of selecting a successor matai, according to the traditions of the family, prior to filing a claim to succeed to a vacant matai title. Accordingly, where a family has not met to consider the issue of matai succession, there is no disputed claim before the High Court.

[4] The trial court lacked subject matter jurisdiction to determine a matai title controversy after the court had found that a proper family meeting had not taken place in the first instance on Tutuila.

[5] The appropriate action for the Land and Titles Division to undertake after determining the family meeting was improperly conducted is to dismiss the case without prejudice and to direct the Clerk of Courts to provide that Order to the Territorial Registrar so that all existing claims, counter-claims and objections to the title may be administratively set aside.

High Court of American Samoa Slip Opinions (2013)

Before KRUSE, Chief Justice; WARD, Associate Judge; PATEA,* Acting Associate Justice; FA`AMAUSILI, Associate Judge; and MUASAU, Associate Judge.

Counsel: For Appellant, Sharron I. Rancourt For Appellee, Matailupevao Leupolu, Jr.

KRUSE, Chief Justice:

OPINION AND ORDER

Background

This case concerns competing succession claims to the matai title "Le`i" of the village of Ofu, Manu`a. On November 21, 2009, the Le`i family held a meeting on the island of Tutuila at a family member's home for the specific purpose of selecting a successor to the vacant Le`i title. Notice of the meeting was publicly aired 10 days prior, beginning on November 11, 2009, and then repeatedly given thereafter. The meeting was attended by representatives of all the customary clans and after three hours of family deliberation, the attendees ultimately chose Appellee [**2**] Nu`utai Sonny Thompson ("Thompson") to be the next Le`i titleholder. An `ava (kava) ceremony was then undertaken and Thompson was presented the customary first `ava cup to symbolize his selection as the next Le`i titleholder. Following the meeting, Thompson on November 23, 2009, offered the Le`i title for registration with the Territorial Registrar.

Subsequently, Appellant Leautu Segila Vaeao ("Vaeao") filed with the Territorial Registrar his timely objection to Thompson's offer and thereby intervened with his own counter-claim to title succession.1 Pursuant to statute, meetings were then scheduled for the candidates before the Office of Samoan Affairs ("OSA"). The first meeting was held on February 17, 2010, and the second was convened on March 12, 2010. Because Vaeao failed to appear on both occasions, the Secretary of Samoan Affairs issued a certificate of irreconcilable dispute ("CID"), pursuant to A.S.C.A. § 43.0302, and the matter was thereafter referred to the High Court's Land and Titles Division for hearing and determination as a "disputed claim." A.S.C.A. § 1.0409.

* The Honorable Elvis R. Pila Patea, Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior. 1 Porotesano Tuiolosega had also filed his objection to Thompson's registration claim but he later withdrew his objection and claim at the Territorial Registrar.

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Before the Land and Titles Division, Vaeao challenged the propriety of the family's matai selection meeting because of its Tutuila venue and because it was convened on such short notice, significantly to the detriment of those family members who reside in Manu`a. The Land and Titles Division agreed, finding fault not only with Thompson's selection at a meeting that was not [**3**] convened in accordance with family tradition, requiring that such meetings be held in Ofu, but also with the relatively short notice period of ten days that was given to family members to prepare for and participate in the matai selection process. The trial court thus concluded that "the meeting held did not provide a meaningful family decision to select the successor to the Le`i title in conformance with Le`i family tradition, as contemplated and required by A.S.C.A. § 1.040[9](c)(2)." In re Matai Title Le`i, LT No. 1-10, slip op. at 3, (Land & Titles Div. Aug. 27, 2010) (Orders Denying Motions To Dismiss and For Summary Judgment and Providing Family Opportunity To Meaningfully Deliberate At The Traditional Meeting Site on Ofu On Selection of the Successor Titleholder).2 The Court then remanded the matter back to the family to "meaningfully discuss the selection of a successor," at a family meeting to be held on Ofu. Moreover, the Court effectively limited family consideration and discussion to just the candidacies of Vaeao and Thompson by suspending "substantive proceedings in this action" and "not reopen[ing] the period for filing new claims to register the title." Id. at 3-4.

Following remand, the Le`i family next convened on Ofu, at [**4**] the family's traditional guesthouse site, on October 1, 2010. With ample notice, a substantial number of Le`i family members attended this gathering, including Vaeao. At the meeting, the attendees discussed the selection of a matai successor and a consensus was also here reached for Thompson to be the next Le`i titleholder.

Vaeao, nonetheless, did not withdraw his objection or counter-claim filed with the Territorial Registrar. Trial on the cross claims for registration of the matai title "Le`i" took place on June 7-9 and 14, 2011. After consideration of the evidence and arguments, the Land and Titles Division in its order issued on October 3, 2011, "dismissed" the action

2 See also In Re Matai Title Taliaaueafe, 3 A.S.R.3d 225, 229, fn. 4 (Land & Titles Div. 1999) ("It is equally important to ascertain whether or not a meeting was called according to family tradition. The Court in In re Matai Title Misa`alefua, 28 A.S.R.2d 106 (Land & Titles Div. 1995), had occasion to comment disparagingly about party claims to clan support based on the practice of private meetings in private homes by individual candidates and their immediate supporters. Family meetings entail appropriate notice to the family's clans with venue at an appropriately neutral setting such as the family's guest house.")

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and "authorized" the registration of the Le`i matai title in the name of Claimant Sonny Thompson.

On October 13, 2011, Vaeao timely filed his motion for a new trial. A.S.C.A. § 43.0802(a). In his motion, Vaeao argued that the trial court erred (i) in determining that a family meeting had been appropriately held; (ii) in determining that the Le`i communal clans were Pule, Isumama and To`afala; and (iii) in dismissing the action because there is no authority to dismiss a contested matai case when only one of the four statutory criteria are determined to be in favor of one candidate.

On November 30, 2011, the trial court issued its order denying the motion for a new trial. The Court opined that the evidence it received during the trial of this action left no doubt that the Le`i family met twice for the specific purpose of [**5**] selecting the successor to hold the vacant Le`i title and ultimately chose Thompson, who the Court determined met the statutorily required qualifications to hold the title. However, the court did not discuss all four statutory criteria for determining matai qualifications.3 This appeal followed.

Discussion

After a review of the record, we hold that the trial court erred when it retained jurisdiction over the instant case after specifically finding that there had not been a meaningful family meeting prior to Thompson's filing of his petition for matai registration. Therefore, our opinion will be limited to discussing the issue of jurisdiction thus presented.4 [**6**]

3 Cf. A.S.C.A. § 1.0409(d) ("The court [in determining matai title disputes] shall issue a written decision that must contain findings of facts and conclusions of law on each of the [four] criteria listed in A.S.C.A. § 1.0409(c)(1)-(4); In re Matai Title Laolagi, AP No. 07-04, slip op. (App. Div. Oct. 16, 2006) ("The trial court's obligation to issue written findings of fact and conclusions of law on each of the four criteria is mandatory."); In re Matai Title Faumuina, 26 A.S.R.2d 1, 3 (App. Div. 1994)(citing In re Matai Title Gaoteote, AP No. 103-75 (App. Div. 1975)). The language of A.S.C.A. § 1.0409(d) is clear--the trial court shall issue a decision that covers each factor enumerated in A.S.C.A. § 1.0409(c). Use of the word "shall" has traditionally and consistently been interpreted as a mandatory direction. See Faumuina, 26 A.S.R.2d at 3. 4 [1] A separate jurisdictional issue is indicated on the record below based on Vaeao's claim to deficient A.S.C.A. § 43.0302 proceedings before OSA. We recently held in Fagaima v. American Samoa Gov't., AP No. 01-10, slip op. (App. Div. Nov. 15, 2012) and Koko v. Kneubuhl, AP No. 11-09, slip op. (App. Div. Nov. 30, 2011) that prior compliance with the requirements of section 43.0302 is a prerequisite to the Land

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[2] "A fundamental feature of `the customs, culture, and traditional Samoan family organization' is that a Samoan family selects its matai, or titular head." In re Matai Title Taliaaueafe, 3 A.S.R.3d 225, 227 (Land & Titles Div. 1999); see In re Matai Title Laolagi, AP No. 07-04, slip op. at 6 (App. Div. Oct. 16, 2006). Thus, under A.S.C.A. § 1.0406(b), "any petition for matai registration `must' certify `that a [family] meeting was called and held for the purpose of selecting a successor to the [family's matai] title, according to the traditions of the family.'" Id. at 228 (quoting A.S.C.A. § 1.0405(b)).

[3] It is important to note that "a candidate seeking the matai title cannot displace or supplant the Samoan family's role in matai selection merely by complying with the statutory requirements of registration." In re Matai Title Laolagi, AP No. 07-04, slip op. at 7. A family meeting must have been held for the purpose of selecting the successor, according to the traditions of the family, prior to filing a claim to succeed to a vacant matai title. In re Matai Title Letuli, 4 A.S.R. 273, 275 (Land & Titles Div. 2000). Accordingly, where a family has not met to consider the issue of matai succession, there is no disputed claim before the High Court. In re Matai Title [**7**] Taliaaueafe, 3 A.S.R.2d at 229 ("There is no matai title dispute for certification to the Land and Titles Division [unless a family meeting had been called and held for the purpose of selecting a matai according to the traditions of the family]"); Lualemaga v. Toia, MT No. 03-03, slip op. (Land & Titles Div. Mar. 30, 2004) (Order on Motion to Dismiss) (where family meetings were not properly conducted, the court dismissed the case without prejudice); In re Matai Title Levu, MT No. 06-04 (Land & Titles Div. Jan. 30, 2006); see also In re Matai Title Asoau, MT No. 02-04, slip op. (Land & Titles Div. Sept. 5, 2006) (Order on Motion for Reconsideration).

Here, the trial court found that Thompson's selection at the Tutuila family meeting was procedurally wanting because it was neither and Titles Division's proper assertion of jurisdiction over controversies relating to communal land or matai titles. Here, the trial court asserted jurisdiction without addressing Vaeao's apparently uncontested claim to insufficient § 43.0302(a)(2) notice given him by OSA. A.S.C.A. § 43.0302(a)(2) requires OSA to serve the parties with notice of hearings at least 20 days prior to conducting such hearings. Vaeao testified at trial that he was served with notice only one day before the first OSA hearing and only three days before the second hearing. Consequently, the resulting OSA proceedings as well as the Secretary of Samoan Affair's ensuing CID is at least rendered suspect. But for the result we have reached, this would have necessitated remand to determine whether statutory notice had in fact been met.

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convened in accordance with family tradition nor was it adequately noticed. But after concluding that the meeting as convened did not provide a meaningful family decision, as contemplated by statute, the trial court rather than dismissing the judicial proceedings (without prejudice) in deference to traditional family sway and control, nonetheless retained jurisdiction by remanding the matter to the family to hold another meeting in Ofu to select a matai from either Vaeao or Thompson. By doing so, the trial court effectively stifled any further opportunity for unfettered clan input on the issue of matai nominations. Thus, those family members who were not able to attend the prior and inadequately noticed Tutuila meeting, were effectively curtailed unduly from "meaningful" participation [**8**] in the selection process, because they had no say whatsoever as to nominations for family discussion. The trial court undeniably injected its process into the Le`i family's meeting by delimiting the agenda.

In our view, the trial court's purported retention of jurisdiction was in error because

[u]nless and until a family has had a meaningful opportunity to thoroughly confront the issue of matai succession and to decide for itself whether or not it can select a new titleholder, the Land and Titles Division really has no business entertaining matai title cases.

In re Matai Title Taliaaueafe, 3 A.S.R.3d at 228-29. Although the Le`i family did subsequently convene as a family at the neutral setting of the family's traditional guesthouse site in Ofu, the family nonetheless was convened, not according to its customary protocols, but under direct supervision and control of the Land and Titles Division as to whom the clans were authorized to consider as the next matai. Under these circumstances,

there can be nothing "meaningful," from the point of view of Samoan custom, about family meetings convened subsequent to registration offers that necessarily place the nomination of matai candidates beyond the family's traditional direction and control. The court is not in the premature matai-selection business, especially from among a slate of candidates that did not evolve from customary clan and family action.

In re Matai Title Asoau, MT No. 02-04, slip op. (Land & Titles Div. Sept. 5, 2006) (Order on Motion for Reconsideration).

[4]-[5] We hold that the trial court lacked subject matter jurisdiction to determine this controversy after it had found that a proper family meeting had not taken place in the first [**9**] instance on Tutuila. At

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this point in time, there is no "disputed claim" for the Lands and Titles Division "to determine," within contemplation of A.S.C.A. § 1.0409.5 In re Matai Title Taliaaueafe, 3 A.S.R.3d at 228 ("Hence, the statutorily defined role of the Court `to hear and determine any disputed claim,' A.S.C.A. § 1.0409, is exercised only when a family cannot reach agreement over who should hold the title.") The appropriate action for the Land and Titles Division to undertake after determining the family meeting was improperly conducted is to dismiss the case without prejudice and to direct the Clerk of Courts to provide that Order to the Territorial Registrar so that all existing claims, counter-claims and objections to the title may be administratively set aside. Such a course will result in a clean slate, and will be conducive to providing the Le`i family with a meaningful opportunity for family discussion on the selection of a successor titleholder.

Order

Based on the foregoing, we vacate all the orders issued below and remand this matter for further proceedings consistent with this opinion and order. [**10**]

It is so ordered.

5 However, the Land and Titles Division is separately empowered under A.S.C.A. § 43.0303 to make such orders in anticipation of "likely" litigation to essentially preserve the status quo. Id. Such orders may issue "at any time before the commencement of proceedings," upon application made ex parte or otherwise before a single justice, to restrain any Samoan from "holding or using any Samoan name or title," A.S.C.A. § 43.0303(a)(2), or from "exercising any right or doing any act, matter or thing concerning or affecting any . . . Samoan name or title," A.S.C.A. § 43.0303(a)(3).

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Cite As: Tamaseu Distrib. v. Am. Samoa Gov’t,, AP No. 03-12, slip op. at [page number] (App. Div. Aug. 22, 2013)

TAMASEU DISTRIBUTOR, Appellant,

v.

AMERICAN SAMOA GOVERNMENT and GLEN LEFITI, Appellees.

High Court of American Samoa Appellate Division

AP No. 03-12

August 22, 2013

[1] Under A.S.C.A § 27.1043, upon discovery that imported goods have been received or sold without the proper excise tax having been paid, the customs division may impose back taxes, penalties and interest upon such goods.

[2] Under A.S.C.A § 27.1045, if a consignee of imported goods owes any delinquent excise taxes, fees, or penalties, the chief customs officer may refuse to release any goods to the consignee until the delinquent account is settled.

[3] Customs officers enforce the statutes prohibiting the import or export of contraband, undeclared merchandise, or falsely declared merchandise.

[4] Special due process procedures have been established for the seizure and forfeiture of illegal commodities under A.S.C.A § 27.1042. The importer or exporter is given written ―Notice of Seizure‖ by the customs officer and is afforded judicial review to contest the seizure by filing a complaint in the High Court within 30 days from receiving the Seizure Notice.

[5] The Administrative Procedures Act, A.S.C.A. § 4.1001 et seq., mandates that judicial review of Executive Branch agency decisions be conducted by the Appellate Division of the High Court, except in any proceeding for which, or by any person for whom, the law specifically provides other adequate means of judicial review.

[6] A.S.C.A. § 27.1042 confers specific jurisdiction upon the Trial Division to conduct a due process hearing with respect to the seizure and

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forfeiture of contraband or goods illegally imported into the Territory by false declaration or non declaration.

[7] Review of the Chief Customs Officer‘s excise tax assessments and administrative detention of legally imported goods are ultimately reserved for the Appellate Division to hear and decide pursuant to the Administrative Procedures Act, A.S.C.A. § 4.1040(b).

Before WARD, Associate Justice; PATEA Acting Associate Justice; SATELE, Associate Judge; and MUASAU, Associate Judge.

Counsel: For Appellant, Mark F. Ude For Appellee, Asaua Fuimaono, Assistant Attorney General

WARD, Associate Justice:

OPINION AND ORDER

Background

Appellant Tamaseu Distributor (―Tamaseu‖) imports Glacier Flavored Sparkling Water (―GFSW‖) into the [**2**] Territory. On customs and shipping forms filed by Tamaseu with the American Samoa Government (―ASG‖) Customs Office, Tamaseu declared GFSW to be canned juice or glacier water, which was subject to a 5% of value excise tax pursuant to A.S.C.A. § 11.1002(a) (7). Eventually, during the customs inspection process, a customs officer discovered that GFSW appeared to be a carbonated beverage which, pursuant to A.S.C.A § 11.1002(a) (6), is taxed at a higher rate of 15 cents per 12 fluid ounces.

In a letter dated December 1, 2010 to Tamaseu‘s counsel, Glen Lefiti (―Lefiti‖), the Chief of the Customs, Border Protection, and Excise Tax Division at the time, assessed Tamaseu for the additional excise taxes that it owed and advised that unless the additional tax was paid, any future goods imported by Tamaseu would not be released by Customs pursuant to A.S.C.A § 27.1045.

After this assessment, Tamaseu petitioned the High Court for injunctive relief (HCCA 94-10), and ASG responded by filing its opposition. At the hearing on the petition, the Court instructed the parties to brief an issue that was raised during the proceedings. After ASG failed to brief the issue as instructed, the Court granted Tamaseu interim relief by

 Honorable Elvis R. Pila Patea, Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior.

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enjoining ASG from withholding release of the [**3**] GFSW shipment then being held by Customs pursuant to A.S.C.A § 27.1045.

Later, Tamaseu also filed a new petition for injunctive relief (HCCA 48- 11), seeking release from Customs of additional container(s) of GFSW at the 5% rate. A temporary restraining order was granted by the Justice in that case. The Court then consolidated the new matter (HCCA 48-11) with the original matter (HCCA 94-10).

During the discovery process, in its response to ASG‘s Request for Admissions, Tamaseu admitted that GFSW contained carbon dioxide as a listed ingredient. ASG filed a motion for judgment on the pleadings on July 21, 2011. Hearing on the motion was held on August 19, 2011, and the Court treated the motion for judgment on the pleadings as a motion for summary judgment, which was granted in its September 19, 2011 order. The Court dismissed Tamaseu‘s tort causes of action because the Government Tort Liability Act, waiving sovereign immunity, specifically excludes such claims; and the court also dismissed Tamaseu‘s constitutional claims regarding vagueness and due process violations. The Court further ruled that no genuine issues of material fact existed with respect to any of Tamaseu‘s claims, and that the only matter that remained unresolved [**4**] for trial on the merits concerned ASG‘s counterclaim for the additional excise taxes.

After trial on ASG‘s counterclaim, the Court rendered judgment in favor of ASG. Tamaseu‘s subsequent motion for a new trial was denied by the Court. Tamaseu timely filed its notice of appeal.

Standard of Review

The Appellate Division reviews questions of law de novo. Roman Catholic Diocese of Pago Pago v. Avegalio, 20 A.S.R.2d 70, 73 (App. Div. 1992. The factual findings of the Trial Division of the High Court may not be set aside by the Appellate Division unless clearly erroneous. A.S.C.A. § 43.0801(b). A finding of fact is clearly erroneous when ―the entire record produces the definite and firm conviction that the court below committed a mistake, according particular weight to the trial judge‘s assessment of conflicting and ambiguous facts.‖ TCW Special Credits v. F/V Kassandra Z, 7 A.S.R.3d 3, 7 (App. Div. 2003).

Discussion

We decide this matter on the issue of jurisdiction, which we raise sua sponte, as a matter of law. Because we reverse the Trial Court‘s decision for lack of subject matter jurisdiction, we neither reach nor decide the issues raised on appeal. [**5**]

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I. Customs Regulations

[1]-[2] Under A.S.C.A § 27.1043, upon discovery that imported goods have been received or sold without the proper excise tax having been paid, the customs division may impose back taxes, penalties and interest upon such goods. Under A.S.C.A § 27.1045, if a consignee of imported goods owes any delinquent excise taxes, fees, or penalties, the chief customs officer may refuse to release any goods to the consignee until the delinquent account is settled.

[3]-[4] Separate and apart from excise tax assessment and collection procedures, customs officers also enforce the statutes prohibiting the import or export of contraband, undeclared merchandise, or falsely declared merchandise. A.S.C.A. §§ 27.1033-27.1034. Special due process procedures have been established for the seizure and forfeiture of such illegal commodities under A.S.C.A § 27.1042. The importer or exporter is given written ―Notice of Seizure‖ by the customs officer and is afforded judicial review to contest the seizure by filing a complaint in the High Court within 30 days from receiving the Seizure Notice. A.S.C.A. §§ 27.1042(a)-27.1042(b). If no complaint is timely filed or if the Court issues a final judgment in favor of the government, the illegal [**6**] commodities are forfeited and transferred to the government. A.S.C.A § 27.1042(c).1

II. Subject Matter Jurisdiction

We last discussed the limited jurisdiction of the Trial Division to judicially review Executive Branch agency decisions in Am. Samoa Gov’t. vs. Samoa Shipping, AP No 09-09 (App. Div. November 11, 2011). In that case, the shipping company was fined by the Attorney General for allegedly transporting foreign nationals into the Territory without proper entry permits, in violation of the Territory‘s Immigration laws. The company then filed a declaratory relief action with the Trial Division to protest the fine and order its return to the company, which the Trial Division ultimately ordered in that matter.

[5] When the matter was appealed, we held the Trial Division lacked subject matter jurisdiction to judicially review the decision by the Attorney General to impose this immigration law violation penalty. This holding was largely based upon the Administrative Procedures Act,

1 Under A.S.C.A. § 27.1032, as well as under A.S.C.A. § 43.1203(b)(3) of the Government Tort Liability Act, the Legislature has expressly granted Customs officers and employees immunity in the course of their official actions.

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(―APA‖), A.S.C.A. § 4.1001 et seq., which mandates that judicial review of Executive Branch agency decisions be [**7**] conducted by the Appellate Division of the High Court, except in ―any proceeding for which, or by any person for whom, the law specifically provides other adequate means of judicial review.‖ (Emphasis added) A.S.C.A. § 4.1040(b).

Comparing the jurisdictional issues apparent in the record of these two consolidated cases on appeal with those raised and discussed in Samoa Shipping, marked similarities emerge. In Samoa Shipping, the fined company sought Trial Division relief from an administrative agency decision under a statute reserved exclusively for A.S.G to enforce such fines by libeling the vessel involved. A.S.C.A. § 41.0604(d). In that case, the company attempted to invoke the Trial Division‘s jurisdiction via a Declaratory Judgment action. In the two matters presently before us, the company‘s legally imported goods were detained by Customs because of excise tax delinquencies, and Tamaseu sought relief from the Trial Division under a statute reserved exclusively to determine due process issues for goods Customs had seized and were subject to forfeiture as contraband, non-declared, or wrongly declared goods. A.S.C.A. § 27.1042. In these cases, Tamaseu attempted to [**8**] invoke the Trial Division‘s jurisdiction by way of a petition for injunctive relief.2

In Samoa Shipping, we held the company was required to first exhaust its administrative remedies by filing an appeal of the Attorney General‘s decision with the Office of the Administrative Law Judge pursuant to A.S.C.A. § 4.0604(h). After that administrative appellate review by the Administrative Law Judge, if still aggrieved, Samoa Shipping could then timely petition the Appellate Division for judicial review under the A.P.A.

Tamaseu faces the same avenue of administrative remedies and, ultimately, judicial review by this Court pursuant to its exclusive jurisdiction to hear and review this category of administrative decisions.

2 Injunctive relief may only issue from a court competent jurisdiction against a party subject to the personal jurisdiction of that court. A.S.C.A. § 43.1301. Yet, even in those cases where the Trial Division has been granted clear jurisdiction to hear and decide matters involving the Executive Branch (such as American Samoa Income Tax disputes under A.S.C.A. § 11.0401), the Trial Division has granted injunctive relief only after careful consideration of its consequences upon the Executive Branch. See, Klauk v. Am. Samoa Gov’t., 13. A.S.R.2d 52 (1989). See also T.C.R.C.P. 87-102 (Extraordinary Writs).

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[6] A.S.C.A. § 27.1042 confers specific jurisdiction upon the Trial Division to conduct a due process hearing with respect to the seizure and forfeiture of contraband or goods illegally imported into the Territory by false declaration or non declaration. The issues heard and [**9**] decided by the Trial Division in these cases involved the excise tax rate on legally imported goods, which the Trial Division has no specific statutory authority to hear and decide.

Conclusion

[7] The Trial Division of the High Court is a court of general jurisdiction, ―with the power to hear any matter not otherwise provided by statute.‖ (Emphasis added) A.S.C.A. § 3.0208. As Samoa Shipping makes clear, the A.P.A. statutorily empowers the Appellate Division to hear and judicially review administrative agency final decisions unless the law specifically provides otherwise. A.S.C.A. § 4.1040(b). The statutes utilized by the parties below, both to initiate and perpetuate the Trial Division‘s judicial review of the Chief Customs Officer‘s excise tax assessments and administrative detention of legally imported goods, do not specifically confer jurisdiction to the Trial Division to hear such matters. These matters are ultimately reserved for the Appellate Division to hear and decide pursuant to the A.P.A. The assertion of jurisdiction and the exercise of ancillary equitable relief via Temporary Restraining Orders and Preliminary Injunctions by the Trial Division in these cases exceeded its lawful authority.

[**10**] Accordingly, we vacate all orders issued in these cases by the Trial Division and REVERSE for lack of subject matter jurisdiction. It is so ordered.

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Cite As: Segi v. Am.Samoa Gov’t, AP No. 07-12, slip op. at [page number] (App. Div. Aug. 22, 2013)

LOUIE SEGI, Petitioner/Appellant,

v.

THE AMERICAN SAMOA GOVERNMENT, Respondent/Appellee.

High Court of American Samoa Appellate Division

AP No. 07-12

August 22, 2013

[1] The High Court is authorized by the Legislature to review certain Executive Branch decisions and actions pursuant to the Administrative Procedures Act, A.S.C.A. § 4.1001 et seq.

[2] The High Court may not substitute its judgment for that of an agency as to the weight of evidence on questions of fact, and must afford appropriate weight to the agency‘s experience, technical competence, and specialized knowledge when reviewing the agency‘s interpretation of evidence, factual inferences, and conclusions of law.

[3] Under the first of three steps to remove a career service employee for cause: An employee is notified of the specific charges against him and the recommended action (A.S.C.A. § 7.0803; A.S.A.C. §§ 4.0801-0802); The employee has three days to respond (A.S.A.C. § 4.0802); The agency gives written notice to the employee of its proposed action (A.S.A.C. § 4.0802); Then, the director of the department may send a written recommendation for removal along with supportive evidence to the Director of the Department of Human Resources (A.S.C.A. § 7.0803).

[4] Under the second and third of three steps to remove a career service employee for cause, the Director of the Department of Human Resources reviews the request submitted by the department head for reasonableness. If approved, the Director of the Department of Human Resources notifies the employee in writing of the charges, that he will be removed from the career service in 30 days, and that he may request a hearing before the Personnel Advisory Board within 10 days.

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[5] The Administrative Law Judge‘s broad authority to conduct hearings on administrative appeals of decisions from other agencies contrasts with the Administrative Law Judge‘s more limited role when serving as a hearings officer of a particular agency pursuant to the Administrative Procedures Act.

[6] When an Administrative Law Judge hears an administrative appeal of another agency‘s final decision pursuant to Section 4.0603, the Administrative Law Judge may use the High Court‘s rules of procedure and evidence as a guide or may adopt supplemental or additional administrative rules to govern such proceedings.

[7] When conducting original proceedings as a hearings officer, an Administrative Law Judge conducts those proceedings consistent with Administrative Procedures Act.

[8] Pursuant to the language in the Administrative Law Judge Act of 1998, only the ―responsibilities‖ of the Personnel Advisory Board to hear and decide government employee controversies are transferred to an Office of the Administrative Law Judge; all other statutory functions of the Personnel Advisory Board remain unchanged.

[9] Where an Administrative Law Judge acts under the Personnel Advisory Board‘s authority and not under separate administrative appellate review powers and authority of the Office of the Administrative Law Judge, the Administrative Law Judge must release his or her decision within the 30-day authority of the Personnel Advisory Board.

Before KRUSE, Chief Justice; WARD, Associate Justice; PATEA,* Acting Associate Justice; SATELE, Associate Judge; and, MUASAU, Associate Judge.

Counsel: For Petitioner, Mark F. Ude For Respondent, Bensy Benjamin, Assistant Attorney General

OPINION AND ORDER

WARD, Associate Justice:

[1] In this case we review for legal sufficiency the Executive Branch actions and decisions concerning the removal of a Department of Education employee from the American Samoa Government (―ASG‖)

* The Honorable Elvis R. Pila Patea, Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior.

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Career Service. This Court is so authorized by the Legislature to review certain Executive Branch decisions and actions pursuant to the Administrative Procedures Act (―A.P.A.‖), A.S.C.A. § 4.1001 et seq. Both judicial restraint and the Doctrine of Separation of Constitutional Powers require [**2**] strict construction of such statutes to avoid Judicial Branch encroachment upon Executive Branch powers and duties. (See: ASG v. Samoa Shipping, AP No. 09-09, Slip op 10 November 2011).

Our review of the administrative record filed herein reveals that the clear statutory and administrative rule requirements for removing a career service member from government employment were not followed in this matter. We therefore cannot and do not reach whether this particular career service member‘s actions warranted his removal. We hold only that it was done illegally and remand the matter for further Executive Branch action.

Standard of Review

[2] Pursuant to statute, we judicially review the record filed by the agency of government issuing the final decision in a contested case. A.S.C.A. § 4.1040 and 4.1043. This Court may not substitute its judgment for that of the agency as to the weight of evidence on questions of fact, and must afford appropriate weight to the agency‘s experience, technical competence, and specialized knowledge when reviewing the agency‘s interpretation of evidence, factual inferences, and conclusions of law. A.S.C.A. § 4.1043. Upon deciding the substantial rights of the petitioner have been prejudiced because the agency‘s decision is: [**3**]

(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; or (6) arbitrary, capricious or characterized by abuse of discretion, the Court may reverse or modify the agency‘s decision or remand it back for further proceedings. A.S.C.A. § 4.1044.

Background

Segi was a career service Department of Education (―D.O.E.‖) employee in his 11th year of teaching High School Science during the 2010-2011 school year. In an ill-conceived attempt to discipline and motivate

High Court of American Samoa Slip Opinions (2013)

students failing to complete homework assignments, Segi would mark or write on the students‘ faces, fine them $1.00, or in some cases, post photos of the marked students on his Facebook page with comments.

The then current Director of the Department of Human Resources (―D.D.H.R.‖), who oversees the government‘s career service, learned of Segi‘s actions and contacted the D.O.E. through the D.D.H.R.‘s staff attorney. The then current D.O.E. Director was temporarily off-island and a Deputy Director undertook the investigation in this matter. The D.O.E. Deputy Director sent a detailed written notice of charges and grounds supporting the recommendation of removal to Segi on December 9, [**4**] 2010. Segi responded orally and in writing contesting some of the charges and attempting to explain his actions. On December 14, 2010, the D.O.E. Deputy Director sent Segi written notice that after considering his response and letters of support submitted on his behalf, the original recommendation that he be removed from career service for cause would be sent to the D.D.H.R. for review. Both of these letters of the D.O.E. Deputy Director were copied to the D.D.H.R. and the D.D.H.R. Staff Attorney.

On January 5, 2011, the D.D.H.R. sent Segi a letter, nearly identical to the notices from D.O.E., informing Segi he would be removed from the career service effective February 5, 2011, and advised Segi that he could ―appeal‖ the removal decision to the Administrative Law Judge (―A.L.J.‖) within ―ten (10) days of receiving this letter.‖ Segi then attempted to ascertain when and how to ―appeal‖ to the A.L.J., eventually going to the Office of the Administrative Law Judge (―O.A.L.J.‖) where, according to the record, he was told to ―find a lawyer so motions would be properly filed‖ and ―… was given a telephone number…‖ for a lawyer. A formal ―appeal‖ was subsequently filed with the O.A.L.J. on January 19, 2011 by Segi‘s attorney.

The proceedings before the A.L.J. were conducted as a trial with ASG being a named defendant. This action involved over 13 months of protracted discovery, motions for summary [**5**] judgment, continuances, stays, and orders, finally resulting in a hearing on the merits and an ―Order Adopting Findings of Fact and Conclusions of Law And For Termination‖ issued by the A.L.J. on February 23, 2012. Because the A.L.J. had ordered a ―stay,‖ which reinstated Segi as a career service employee on April 5, 2011, the final Order of February 23, 2012 also terminated Segi‘s career service employment effective 5 days thereafter. Segi then filed a ―Notice of Appeal‖ with this Court on April 30, 2012.1

1 Notices of Appeal are statutorily prescribed to be timely filed to preserve appeals from a final decision of a Judicial Branch Officer sitting

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Discussion

I. Statutory and Administrative Rule Overview

[3-4] [**6**]The statutes and administrative rules governing the procedures for removing a career service employee for cause contemplate a three-step process. Under A.S.C.A. § 7.0803 and Rules A.S.A.C. § 4.0801 and 4.0802, an employee is notified of the specific charges against him and the recommended action for his removal. The employee has three days to respond and his response must be considered. A.S.A.C. § 4.0802. The agency then gives written notice to the employee of its proposed action. A.S.A.C. § 4.0802. A director of a department (department head) may, when such director considers it appropriate, then send a written recommendation along with supportive evidence to the D.D.H.R. for the removal of a career service employee of that department. A.S.C.A. § 7.0803. Second, the D.D.H.R. reviews the request submitted by the department head for reasonableness, and, if approved, the D.D.H.R. notifies the employee in writing of the charges, that he will be removed from the career service in thirty calendar days, and that he may request a hearing before the Personnel Advisory Board in a Division of the High Court or in District Court. A.S.C.A. § 43.0802, 46.2402. Technically, these are the only cases which are ―appealed‖ to the Appellate Division. This action involves the right of a person aggrieved by a final action of an Executive Branch agency to seek limited judicial review of that decision. Under both A.S.C.A. § 4.1041 and A.C.R. Rules 15-20, a Petition for Review is required to be filed with the Court and served upon the agency and parties of record. The agency then files an Answer within 20 days. The administrative record is then filed with the court. Unlike appeals of decisions within our branch of government, different statutory requirements as to briefing and oral argument prevail for judicial review of agency decisions. A.S.C.A. § 4.1041. After the record is filed unless a party so requests, no further briefing or oral arguments occur. The Court may immediately proceed to review the record, Petition, and Answer to determine if the petitioner‘s substantial rights were prejudiced because the agency‘s decision violated one or more of the prohibited acts set forth in A.S.C.A. §§ 4.1044 (1)-(6). The American Samoa Government is not a party respondent ―agency‖ to this matter. No Answer has been filed in this case. Likewise no request was filed with the Court for further briefing or argument. We therefore strike all briefs filed in this matter from the record on appeal. It is only by the most liberal construction of Segi‘s ―Notice of Appeal‖ as a minimally conforming petition for judicial review that we find jurisdiction to hear this matter.

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(―P.A.B.‖) within 10 calendar days following receipt of the written notice (the third step). If the employee does not timely request a hearing, the D.D.H.R.‘s removal decision becomes final. If the P.A.B. is timely requested to conduct a hearing, it must hear and decide the matter within the [**7**] 30-day notice period and its decision then becomes final. A.S.C.A. § 7.0803.2

All career service employees are entitled to this three-step removal process, which must be conducted pursuant to statute and the applicable administrative rule requirements to ensure that the employee‘s removal is for cause, the employee is protected from arbitrary or capricious action, like penalties for like offenses are imposed, and the employee‘s right to contest the proposed removal is promptly heard and decided by the P.A.B. (A.L.J.).3

II. The Role of the A.L.J. in Career Service Removal Cases

The O.A.L.J. is, in actuality, an office of administrative hearings and review. The A.L.J. is authorized to [**8**] serve as a hearings officer in

2 The Administrative Rules setting forth the P.A.B.‘s detailed hearing procedures and regulations are found under Rules A.S.A.C. § 4.0901- 4.0902. When the Administrative Law Judge Act of 1998 was enacted, that bill included a specific statutory amendment to the P.A.B.‘s statutes, A.S.C.A. § 7.0104. This section requires that government employee grievances and other matters ―shall be referred to the A.L.J. for hearing and disposition in accordance with the regulations of the American Samoa Government.‖ Similar language, stating the A.L.J. was delegated the P.A.B.‘s hearing ―responsibilities,‖ was also included with the O.A.L.J. statutes at A.S.C.A. § 4.0604(b). 3 We note that in 1962 when the career service was established by the Legislature, the American Samoa Government, then referred to as the ―Government of American Samoa,‖ was much different from its present state. The Governor was appointed by the Secretary of Interior and the Executive Branch consisted of a few departments and other units of government engaged in government or proprietary operations, which had been established by law or Executive Order. The Executive Branch Officers in charge of such departments or other governmental units were generally contract specialists from the United States. Employees of G.A.S. were by and large local residents. The career service statutes struck a balance between a merit-based politically insulated workforce and the supervisory powers of Directors and Officers necessary to promote governmental efficiency. Officials were granted the authority to sanction, demote, or remove employees, provided the procedures protecting the employees from unreasonable or arbitrary action were followed.

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original proceedings before government agencies, and, separately, the A.L.J. is empowered to conduct more formal hearings when decisions made by other government agencies have been appealed to the O.A.L.J. for the A.L.J.‘s administrative review, as is more fully discussed below.

[5] The record of the hearings conducted by the A.L.J. in this matter reflect considerable confusion by the participants as to whether the A.L.J. was conducting an original hearing for the P.A.B. under A.S.C.A. § 4.0602 (a) and (b) or conducting an administrative appellate review of the D.D.H.R.‘s decision under A.S.C.A. § 4.0603, 4.0607 and 4.0608. The confusion over the status of Segi‘s proceedings before the P.A.B. (A.L.J.) highlights the failure of the participants to recognize the distinctions between the A.L.J.‘s broad authority to conduct hearings on administrative appeals of decisions from other agencies and the A.L.J.‘s more limited role when serving as a hearings officer of a particular agency pursuant to the A.P.A. and such rules and regulations adopted by that agency for such proceedings.

[6] Sections 4.0607 and 4.0608 of the Administrative Law Judge Act of 1998 refer specifically to proceedings in which the A.L.J. is hearing an administrative appeal of another agency‘s final decision pursuant to Section 4.0603 of the Act. In that [**9**] capacity, the A.L.J. conducts a hearing on the evidence and issues that had been originally presented to the decision-making agency, supplements the record with permissible new evidence, and preserves the record for appeal. A.S.C.A. § 4.0607 and 4.0608. Within this administrative appellate review authority, the A.L.J. may use the Court‘s rules of procedure and evidence as a guide or may adopt supplemental or additional administrative rules to govern such proceedings. A.S.C.A. § 4.0607(b).

[7] When conducting original proceedings as a hearings officer for an agency, the A.L.J.‘s role is vastly different. The A.L.J. conducts those proceedings consistent with A.P.A. §§ 4.1025-4.1037. A.S.C.A. § 4.0602 (a) and (b). In Segi‘s contested case hearing before the P.A.B., the A.L.J.‘s duty was to literally step into the shoes of the Board members, who previously conducted such hearings and to timely fulfill those ―responsibilities.‖

The statute that grants a career service employee the right to contest his pending removal before the P.A.B. uses the term ―hearing.‖ A.S.C.A. § 7.0803 (c). Under A.S.C.A. § 7.0104, all such contested government employee matters before the P.A.B. shall be transferred to the A.L.J. for:

hearing and disposition in accordance with the regulations of the American [**10**] Samoa Government.

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[8] Pursuant to the language in the Administrative Law Judge Act of 1998, only the ―responsibilities‖ of the P.A.B. to hear and decide such government employee controversies are transferred to the O.A.L.J.; all other statutory functions of the P.A.B. remain unchanged. A.S.C.A. § 4.0604 (b).

Segi‘s hearing before the P.A.B., conducted by the A.L.J., was therefore a contested case before a government agency in which Segi‘s legal rights, duties, and privileges were to be decided under the A.P.A. A.S.C.A. § 4.1001 (b). Because the A.L.J. may only exercise the P.A.B.‘s ―responsibilities‖ in such cases, and those responsibilities are set forth in the statutes, administrative rules and regulations of the P.A.B., as well as controlled generally by the A.P.A., Segi‘s P.A.B. hearing was an original proceeding, not an appeal to the O.A.L.J.4 Because the participants apparently overlooked or misapprehended the function of the A.L.J. in this matter, Segi was denied his right to a contested case hearing and decision [**11**] conducted and decided within the statutorily mandated 30-day suspension notice period. A.S.C.A. § 7.0803.5

Summary

As we have discussed above, Segi‘s administrative hearing was a contested case in which Segi‘s legal rights and privileges as a career service employee were to be determined. A.S.C.A. § 4.1001 (b). General procedures governing contested cases are set forth in the A.P.A., Sections 4.1025 through 4.1037. More specifically, applicable procedures governing the filing, notice, record inspection, and hearing

4 The questionable use of the term ―appeal‖ in the administrative rules and regulations governing the contested case hearing procedures before the P.A.B. may have further muddied the waters. But the controlling statutes specify that a ―hearing,‖ not an ―appeal,‖ be conducted by the P.A.B. The A.L.J. is also statutorily prohibited from conducting administrative appellate review proceedings of ―those matters specifically exempted [herein or] by statute.‖ (A.S.C.A. § 4.0604 (h)). 5 Upon review of the record, other questions also arise. Was D.O.E.‘s recommendation to the D.D.H.R. statutorily flawed because it was not submitted in writing by the Director of D.O.E.? Further, was the review of that request for removal independently evaluated for reasonableness by the D.D.H.R. as contemplated by the statutes and Administrative Rules? Upon remand, the P.A.B. may wish to address and answer these questions based upon the Board‘s administrative experience with these specialized areas of government employee law.

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practices of a career service employee‘s removal contest have been established by the P.A.B. and set forth in A.S.A.C. § 4.0901-0902.

[9] The respondent agency in this matter is properly the P.A.B. The P.A.B. hearing in this contested case was conducted by the A.L.J. as a hearings officer of the P.A.B., as required by A.S.C.A. § 7.0104. The February 23, 2012 agency decision under review was issued by the A.L.J. under the P.A.B.‘s authority, not under separate administrative appellate review [**12**] powers and authority of the Office of the Administrative Law Judge.

As revealed in the record, when the A.L.J. adopted the Proposed Findings of Fact and Conclusions of Law submitted by ASG and issued it as an agency decision on February 23, 2011, the 30-day authority of the P.A.B. to act had long expired. Any actions undertaken by the A.L.J. after the February 5, 2011 removal deadline were therefore null and void.

Because we decide this matter solely upon the agency‘s lack of authority to issue the agency decision now under review, we do not reach or decide the constitutional separation-of-powers issues lurking in the record as to how this contested case was heard and decided within the Executive Branch apparently pursuant to powers, rules, and practices reserved to the Judicial Branch.6 It is clear in this matter, however, that [**13**] neither the career service employee nor the Departments

6 Under the modern view of the Separation of Powers, as we recently held in ASG v. Ripley, AP No. 7-10, slip op., March 22, 2011, one branch of Government may engage in the limited use of powers delegated under the Constitution to another Branch if so authorized by statute. The conduct of the ALJ in this matter, in apparent reliance upon his Executive Branch Agency‘s statutory authority, raises concerns as to whether core Judicial Branch constitutional powers are being used by an officer of the Executive Branch. In this matter the A.L.J. conducted what must be viewed as a 13-month civil action between the named parties of Segi and ASG, each represented by counsel. Subpoenas were issued bearing O.A.L.J. staff signatures above the title of ―Court Clerks.‖ Motions were made pursuant to High Court Rules and heard under strict rules of evidence. The Judicial power to stay an administrative decision under A.S.C.A. § 4.1041 was also exercised by the A.L.J. The parties also freely conducted discovery during the course of this action. This matter culminated in the issuance of a final order of the A.L.J. terminating Segi‘s career service employment, a power reserved exclusively to the Director of Human Resources under the statutes. The statutorily intended simplicity and timeliness of such hearings are nowhere to be found in this record.

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involved received a timely administrative hearing and decision. As a result, access to this Court‘s judicial review powers was also unnecessarily delayed. Assuming the O.A.L.J. was created to facilitate this process, not impede it, we urge the return of a timely, statutorily conforming administrative hearing in such cases. We view with concern the use of core judicial powers by the A.L.J., as demonstrated in this matter.7

Conclusion

The final agency decision under review in this contested case is the February 23, 2012 Order of the P.A.B., heard and decided by the A.L.J. Segi‘s protected rights to his career service employment status were prejudiced by both the questionable procedure utilized by D.O.E. and the D.D.H.R. [**14**] leading up to his notice of removal and by the prolonged, unlawful proceedings conducted under the P.A.B.‘s authority. For reasons set forth above we hold the agency‘s February 23, 2012 Order void as a matter of law.

We are left, however, with no clear authority under our limited judicial review powers to direct the Executive Branch Departments and Board involved in Segi‘s removal to review his employment status. Segi‘s right to a timely conducted contested case hearing before the P.A.B. has long expired. The decision by the D.D.H.R. to remove Segi for cause may well have become final on February 5, 2011 as a matter of law. Although we have held from our review of the record that proper procedures were apparently not followed in that decision, we do not have

7 Notwithstanding the amendments made by the Legislature to the Administrative Law Judge Act of 1998 in 2004, this Act still remains in tension with the A.P.A., and, as this matter reveals, has created the mistaken belief that the A.L.J. is a Judge who conducts trials. The terms used in the Act, (e.g. ―court of record,‖ ―Judge,‖ ―jurisdiction,‖ and ―appeal‖), which have specific application within the Judicial Branch, only add to this confusion. We further note the internal inconsistencies of the Act‘s text, its administrative appellate review standards that conflict with this Court‘s administrative agency review criteria under A.S.C.A. § 4.1044, and the lack of any equivalent 30-day period in which an agency decision may be appealed to the A.L.J. With all due respect for the A.L.J.‘s professionalism and legal acumen, we believe he has been beguiled by both the broad statutory language creating his office and by poor practices of attorneys appearing before him into exceeding his authority. We do not reach or decide herein the constitutional implications of such actions; we simply raise these issues for consideration by our co-equal Branches of Government.

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that decision before us to reverse or remand. We therefore remand this matter to the P.A.B., for the Board to exercise its retained powers and authority to investigate personnel problems within the government. A.S.C.A. § 7.0102(a). The Executive Secretary of the P.A.B., the current Director of Human Resources, is also to assist the P.A.B. in such investigations. A.S.C.A. § 7.0110 (5). This will provide not only an avenue for an investigation and review of Segi‘s removal, but also an opportunity for the P.A.B. to review and address the current career service grievance, suspension, and [**15**] removal hearing practices and procedures being utilized by the A.L.J.

Order

IT IS HEREBY ORDERED that this case is REMANDED to the Personnel Advisory Board for further investigation and review consistent with this Opinion.

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High Court of American Samoa Slip Opinions (2013)

SLIP OPINIONS

OF THE

TRIAL DIVISION

OF THE

HIGH COURT OF AMERICAN SAMOA

(2013)

Cite As: Leota v. Dawn, CA No. 16-12, slip op. at [page number] (Trial Div. Jan. 2, 2013)(order on pl.‘s mot. for protective order)

FINEASO LEOTA, Plaintiff,

v.

F/V LEAH DAWN, also known F/V ALBACORE 1, its Gear, Nets and Appurtenances, Defendant in Rem,

TIMOTHY JONES, and DOES I-X, Defendants in Personam.

High Court of American Samoa Trial Division

CA No. 16-12

January 2, 2013

[1] Upon motion by a person responding to a discovery request, and for good cause shown, we may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.

[2] For discovery purposes, income records are relevant to calculating future lost wages insomuch as they address what the plaintiff's income would probably have been, how long it would have lasted, and all the contingencies to which it was liable.

[3] While tax returns are not privileged, courts are reluctant to order their routine disclosure as part of discovery. Disclosure often requires satisfaction of a two prong test: (1) the returns must be relevant to the subject matter of the action; and (2) there is a compelling need for the returns because the information contained therein is not readily obtainable.

[4] Under the collateral source rule if an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor.

[5] The collateral source rule has been applicable in virtually all tort cases, including admiralty cases. Federal admiralty law also makes clear that the ship owner is required to pay for health care expenses related to the injury in addition to maintenance and cure.

High Court of American Samoa Slip Opinions (2013)

Before KRUSE, Chief Justice; LOGOAI, Chief Associate Judge; and FA`AMAUSILI, Associate Judge.

Counsel: For Plaintiff, M. Talaimalo Uiagalelei For Defendant, Mark F. Ude

ORDER ON PLAINTIFF'S MOTION FOR PROTECTIVE ORDERS PURSUANT TO T.C.R.C.P. 26(c)

Background

On August 6, 2012, Defendant Timothy Jones ("Defendant") served Plaintiff Fineaso Leota ("Plaintiff") with his First Request for Production of Documents ("RFP"). Subsequently, Plaintiff filed a Motion for Protective Order Pursuant to T.C.R.C.P. Rule 26(c). Plaintiff stated in his motion that he does not object to Defendant's requests other than requests numbers 4, 6, 7, and 8.

Requests numbers 4, 6, 7, and 8 are as follows:  Request for Production No. 4: Please produce all cancelled checks and/or other pay slips, tax forms and receipts for [**2**] any and all income received by Plaintiff from January 2000 to the present date.  Request for Production No. 6: Please produce all cancelled checks and/or other receipts for any medical treatment received by Plaintiff from January 2000 to the present date.  Request for Production No. 7: Please produce all applications to immigration for residency and authorization received by Plaintiff from January 2000 to the present date.  Request for Production No. 8: Please produce all of your tax returns for the past twelve years.

On October 29, 2012, Defendant Jones filed his Opposition to Plaintiff's Motion for Protective Orders. A hearing was held on this matter on November 19, 2012, counsel appearing.

Discussion

[1] Upon motion by a person responding to a discovery request, and for good cause shown, we may "make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . ." T.C.R.C.P. 26(c).

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I. RFP No. 4 and 8:

Plaintiff argues that furnishing tax records and pay slips dating back to 2000 is unreasonable. Defendant argues that such documents are necessary to calculating lost future wages.

[2] Here, we find that Plaintiff's income records are relevant to calculating future lost wages; however, the scope of discovery [**3**] requested by Defendant is overbroad in that the time period extends all the way back to 2000. In calculating lost future wages, we consider "what the plaintiff's income would probably have been, how long it would have lasted, and all the contingencies to which it was liable." See Clifton v. Voyager Inc., 29 A.S.R.2d 80, 95 (Trial Div. 1995) (quoting 22 AM. JUR. 2D Damages ' 157 (1988)). Therefore, the focus in calculating the value of loss is on the wages that Plaintiff would continue to make had the injuries not occurred. Accordingly, income information from one year from the date of the injury should be sufficient to calculate lost future wages.

[3] Moreover, "[w]hile tax returns are not privileged, courts have been reluctant to order their routine disclosure as part of discovery." See Haleck v. TRT, Inc., 7 A.S.R.3d 164, 170 (Trial Div. 2003)(quoting S.E.C. v. Cymaticolor Corp., 106 F.R.D. 545, 547 (S.D.N.Y. 1985)). A disclosure of tax returns often require satisfaction of a two prong test: (1) the returns must be relevant to the subject matter of the action; and (2) there is a compelling need for the returns because the information contained therein is not readily obtainable. Id.

Defendant has not shown a compelling need for Plaintiff's tax records, as demanded by Haleck. We are satisfied that Defendant will be able to calculate lost future wages by examining pay slips and/or receipts for income earned by Plaintiff in the last year. Accordingly, we will grant [**4**] Plaintiff's Motion for Protective Order for RFP number 8, and number 4 to the extent that Defendant's requests seek tax records. We will further limit RFP number 4 to the extent that it seeks information beyond one year from the date of Plaintiff's injury.

II. RFP No. 6:

Plaintiff argues that RFP number 6 places a heavy burden on him to search for documents and receipts dating back 12 years that are not relevant. Defendant claims that cancelled checks and/or other receipts for any medical treatment received by Plaintiff from January 2000 to the present is relevant because he believes Plaintiff is receiving free medical care in the Independent State of Samoa.

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[4]-[5] Defendant's argument fails in light of the well-established collateral source rule. Interocean Ships, Inc. v. Samoan Gases, 24 A.S.R.2d 108, 109 (Trial Div. 1993). Under the collateral source rule "if an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor." Id. at 109-10 (quoting Berg v. First State Ins. Co., 915 F.2d 460, 467 (9th Cir. 1990)). The collateral source rule has been applicable in virtually all tort cases, including admiralty cases. Interocean Ships, 24 A.S.R.2d at 110. Furthermore, federal admiralty law makes clear that the ship owner is required to pay [**5**] for health care expenses related to the injury in addition to maintenance and cure. TCW Special Credits v. F/V Kassandra Z., 5 A.S.E.3d 104, 115 (Trial Div. 2001).

Accordingly, we will not consider benefits made to Plaintiff other than those made by the Defendant. Whether Plaintiff was treated in the Independent State of Samoa free of charge is beside the point. The key issue is that the full cost of negligent behavior is imposed on the tortfeasor. Thus, we will grant Plaintiff's Motion for Protective Order on RFP number 6.

III. RFP No. 7:

Plaintiff argues that immigration records are confidential, irrelevant, and have already been addressed in his responses to Defendant's First Set of Interrogatories. Defendant argues that immigration status is relevant because the Territory requires a legal status to engage in lawful employment. We do not find the relevance in furnishing Plaintiff's immigration documents to Defendant in this case. Plaintiff has already addressed the issue of immigration in his responses to Defendant's First Set of Interrogatories. Therefore, we grant Plaintiff's Motion for Protective Order on RFP number 7.

Order

For the foregoing reasons, we grant Plaintiff's Motion for Protective Order for RFP numbers 6, 7, and 8. We grant a protective order in part for RFP number 4 to the extent that it seeks tax records, and limit the scope of the discovery for pay [**6**] slips and/or receipts to one year from the date of injury.

It is so ordered.

High Court of American Samoa Slip Opinions (2013)

Cite As: Fa’asala v. O’Brien, CA No. 08-11, slip op. at [page number] (Trial Div. Jan. 15, 2013)(order dism‘l with prej.)

NIKOLAO FA’ASALA, ADRIENNE D. FA’ASALA, and ALTON H. FA’ASALA, Plaintiffs,

v.

CLIFF U. O’BRIEN, and AMERICAN SAMOA GOVERNMENT, Defendants.

High Court of American Samoa Trial Division

CA No. 08-11

January 15, 2013

[1] Where Plaintiffs‘ counsel failed to comply with discovery rules and Court‘s order, case was dismissed pursuant to T.C.R.C.P. Rule 37(b)(2)(C).

[2] A case may be dismissed with prejudice if the record shows a pattern of discovery abuses.

[3] In order to be covered under the Service Members Civil Relief Act, which allows a stay of civil court proceedings for active duty service members, a party must file a motion to stay and follow the procedures for effectuating a stay, as delineated by the SCRA.

[4] Where Plaintiffs‘ conduct indicated intent to pursue litigation against Defendants without giving Defendants a meaningful opportunity to defend their case, the court dismissed the case with prejudice.

Before KRUSE, Chief Justice; LOGOAI, Chief Associate Judge; FA‘ASUA, Associate Judge.

Counsel: For Plaintiffs, Fiti A. Sunia, substituted by Mark F. Ude For Defendant American Samoa Government, Kevin Kornegay, Assistant Attorney General, substituted by Daniel M. Woods, Assistant Attorney General, substituted by Michael Iosua, Assistant Attorney General

ORDER DISMISSAL WITH PREJUDICE

High Court of American Samoa Slip Opinions (2013)

Background

On January 16, 2009, Defendant Cliff O'Brien ("O'Brien"), then Fire Chief of American Samoa, allegedly crashed a government vehicle into a vehicle owned by Plaintiffs Nikolau Fa`asala, Adrienne Fa`asala, and Alton Fa`asala (collectively, "Plaintiffs") all of whom were present in the vehicle at the time of the crash. Plaintiffs filed the present action on January 19, 2011 against O'Brien and the American Samoa Government ("ASG"). This Order, however, does not implicate the claims for relief requested in the complaint, but rather concerns the third set of [**2**] discovery requests that were propounded on Plaintiffs.

At the outset, we note that we have previously issued a direct contempt order on February 21, 2012, holding Plaintiffs' counsel in contempt for: (1) including this Court in an unwarranted discovery-dispute; (2) disobeying a court-order compelling the production of evidence; and (3) flagrantly attempting to mislead this Court about a previous court-order that Plaintiffs' counsel knew or should have known about. The contempt order concerned the second set of discovery requests filed on September 27, 2011. For more than four months, Plaintiffs' counsel avoided providing ASG with the requested relevant documents. At a hearing conducted on November 21, 2011, Plaintiffs' counsel informed the Court that they could provide the requested documents by November 28, 2011. However, Plaintiffs' counsel failed to produce those documents and denied in open court that we ever issued such an order. ASG filed a Motion to Compel on January 13, 2012, and the Court issued an Order Granting Defendant ASG's Motion to Compel (which included the direct contempt order) and warned Plaintiffs' counsel with threats of more severe sanctions, including dismissal with prejudice.

Nevertheless, Defendant ASG's second Motion to Compel filed on October 9, 2012, avers issues that are vexingly similar to the issues stated in its first Motion to Compel. ASG issued its third set of discovery requests, including four requests for production of documents ("RFP(s)") and eight interrogatories, on [**3**] July 18, 2012. On August 22, 2012, Plaintiffs requested an extension, and ASG agreed to extend the deadline to September 21, 2012. On September 21, 2012, Plaintiffs requested another extension until September 24, 2012, which ASG granted. On September 24, 2012, Plaintiff Adrienne responded to the interrogatories, but provided no responsive documents. Plaintiffs Nikolao and Alton did not provide any answers to interrogatories or responsive documents. Plaintiffs' counsel claimed that Plaintiff Alton was not required to serve any responses because he is in the military and protected by the Servicemembers Civil Relief Act ("SCRA"). On October 1, 2012, Plaintiffs' attorney discovered Nikolao's interrogatory responses in his possession. ASG allowed Plaintiffs additional time to

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serve the responses so that Plaintiffs could provide complete written responses and documents. However, Plaintiffs' attorney served Plaintiff Nikolao's interrogatory responses anyway, and did not provide any responsive documents. Furthermore, Plaintiffs untimely objected to the RFPs, and furnished ASG with HIPAA authorization forms.

Discussion

[1] Based on the foregoing record, this Court finds that Plaintiffs have woefully failed to respond to the third set of discovery requests. Therefore, Plaintiffs' case is hereby dismissed pursuant to T.C.R.C.P. Rule 37(b)(2)(C) for unreasonably failing to comply with discovery rules and for Plaintiffs' counsel's flagrant disregard for this Court's order. [**4**]

[2] Furthermore, the dismissal shall be with prejudice for the following reasons. The record in this case shows a pattern of discovery abuses by Plaintiffs' counsel, some of which are highlighted in the contempt order previously issued by this Court. Not only did Plaintiffs' counsel request extension after extension while failing to produce responsive documents and responses to interrogatories, Plaintiffs' counsel continued its pattern of disobeying the Court's orders. See Hr'g Tr. At 5-6 (Feb. 2, 2011); Order Granting Defendant's Motion to Compel (Feb. 21, 2012). The Court previously made clear that when a named defendant requests relevant medical and psychiatric bills that are within the plaintiff's control, the plaintiff must produce the actual documents, not a HIPAA consent or authorization form. Nevertheless, Plaintiffs' counsel again furnished ASG with a copy of a HIPAA consent form in lieu of actual requested documents.

[3] In addition, although Plaintiff Alton may conceivably be covered under the SCRA, which allows a stay of civil court proceedings for active duty servicemembers, Plaintiffs' counsel did not file a motion to stay proceedings and did not follow the procedures for effectuating a stay, as required by the SCRA. Specifically, Plaintiffs' counsel: (1) failed to file an application for a stay; (2) failed to provide the Court with any correspondence from Plaintiff Alton's commanding officer verifying that his military duty prevents appearance and that military leave is not authorized; and (3) failed to provide the Court with verification that Plaintiff Alton is indeed covered by [**5**] the SCRA, e.g. that he is indeed on active duty with the uniformed services. See 50 U.S.C. App. § 522.

[4] The foregoing conduct makes it clear that Plaintiffs intended to pursue litigation against Defendants without giving Defendants a meaningful opportunity to defend their case. Again, we find our resources being wasted in having to deal with Plaintiffs' counsel's defiant

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posture toward discovery rules. Accordingly, we have no qualms in dismissing the case with prejudice.

Order

For the reasons set forth above, this Court dismisses this case with prejudice. It is so ordered.

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Cite As: Am. Samoa Gov’t v. Ioramo, CR No. 49-12, slip op. at [page number] (Trial Div. Jan. 23, 2013)(order grant. def.'s mot. to suppress test.)

AMERICAN SAMOA GOVERNMENT, Plaintiff,

v.

IORAMO IORAMO, Defendant.

High Court of American Samoa Trial Division

CR No. 49-12

January 23, 2013

[1] There is no federal due process right to a pre-trial taint hearing to examine whether a child's interview was unduly suggestive, however, such hearings have been deemed necessary in other contexts.

[2] It is the Court's decision to determine whether a child is competent to testify pursuant to T.C.R.Ev. Rule 104(a).

[3] The decision regarding admissibility of a child's testimony rests primarily with the trial judge, who sees the proposed witness, notices his manner, and his apparent possession or lack of intelligence.

[4] The Court can exclude unreliable child testimony and prevent a child witness from testifying at trial if it finds that the child is not competent to testify.

[5] Where, in view of the totality of circumstances, the child witness‘s responses were more the result of incessant questioning and coercive atmosphere, the child is neither competent nor reliable as a witness to testify.

Before KRUSE, Chief Justice; LOGOAI, Chief Associate Judge; and FA‘AMAUSILI, Associate Judge.

Counsel: For Plaintiff, Mitzie J. Folau, Deputy Attorney General For Defendant, Sharron I. Rancourt

ORDER GRANTING DEFENDANT‘S MOTION TO SUPPRESS TESTIMONY

High Court of American Samoa Slip Opinions (2013)

The defendant asks this Court for a pretrial "taint" hearing determination about the competency of a child witness and whether certain inculpatory statements (video recorded) attributed to her were reliable or simply the product of interviewing techniques. We ordered, without objection from the government, a pre-trial "taint" hearing to this effect, invoking T.C.R.Ev. 104,1 to determine whether the complainant child witness is competent to make statements reflective of personal knowledge pursuant to T.C.R.Ev. Rule 602.

[1] Although there is no federal due process right to a pre-trial taint hearing to examine whether a child's interview was unduly suggestive, such hearings have been deemed necessary in [**2**] other contexts. See e.g., United States v. Wade, 388 U.S. 218 (1967) (holding that a hearing was necessary to determine whether witnesses' in court identification should be excluded due to the taint of an unconstitutional line-up); see also Idaho v. Wright, 497 U.S. 805, 826-27 (1990) (finding that although the Constitution does not impose any fixed set of procedural safeguards on the interview process, the totality of the circumstances surrounding a child's responses to an examining physician's questions are not sufficiently trustworthy to qualify as hearsay exception in view of leading questions, manipulation, and prompting by the interrogator).

[2]-[3] Nevertheless, it is the Court's decision to determine whether a child is competent to testify pursuant to T.C.R.Ev. Rule 104(a). The Supreme Court opined that the decision regarding admissibility of a child's testimony "rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligations of the oath." Turner v. American Sec. & Trust Co., 213 U.S. 257, 261-62 (1909); see also Webster v. Peyton, 294 F.Supp. 1359, 1360 ("It is the duty of the trial judge to determine competency of a child to testify. The determination rests largely within his discretion and his exercise of such discretion will not be disturbed unless the error is plain.").

[4] Accordingly, we conclude that this Court can exclude [**3**] unreliable child testimony (the video) and prevent the child witness from testifying at trial if we find that the child is not competent to testify.

1 The Court can make the preliminary decision whether the child is qualified to be a witness pursuant to T.C.R.Ev. Rule 104(a).

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Findings

Upon review of the record, a video recorded interview, we find the complaining witness to be a very young child of tender years who was neither articulate nor assertive. Consequently, the child was very much non-responsive to the very narrow range of questions fielded repeatedly to her, and we are satisfied that her inability to respond has a lot to do with her maturity level comparable to her very young age. The interview technique employed by the two adults involved, whom we gather from the video were a police officer and the child's father, was essentially asking the child repeatedly whether grandpa had touched her and where grandpa had touched her. These questions rather quickly segued to grandpa after focusing the child to a traumatic event of her being injured while playing on the grave; the child's agreement that an injury had occurred to her "pee," was elicited after repeated (and leading) questioning.

The video shows that the child's isolated responses--that can be construed as implicating the defendant--can hardly be said to have been the product of spontaneous recall. Rather, in our view of the totality of the circumstances, the child's responses were more the result of incessant questioning by the officer and her father, which we have previously mentioned focused principally on whether and where "grandpa" had touched her. [**4**] Throughout most of the interview, the child was unresponsive to the questions whereby the examining adults would repeatedly ask the same over and over again, even over instances whereby the child was clearly reacting negatively (by shaking her head) in a fashion which could also be construed as exculpatory.

In addition, we find that the atmosphere and tone of the questioning was unmistakably coercive to the child; she was close to tears, if not crying, at one point during the interview. Because the child was mostly unresponsive, the officer managed to very clearly impress upon the visibly reluctant child that she could go home only if she would show where grandpa had touched her, while at another point in the interview, her father verbalized his increasing anger with her, quite clearly due to her continuing reticence. Moreover, her father quite clearly articulated at another time that he would not "sasa" (administer corporal punishment) her. These veiled warnings, coupled with the drawn out interview process all added up to a threatening and intimidating environment to the child.

[5] We conclude in the circumstances that the child is neither competent nor reliable as a witness and, therefore, grant the motion to suppress any testimony by the child.

It is so ordered.

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High Court of American Samoa Slip Opinions (2013)

Cite As: Faletogo v. Pese, CA No. 54-12, slip op. at [page number] (Trial Div. Jan. 29, 2013)

FALETOGO TAFAVALU TALILOA, Plaintiff,

v.

LEFITI PESE, AFUOLA NANAI KALASA, and AMERICAN SAMOA GOVERNMENT, Defendants.

FALETAGOA’I IATI TUIOLEMOTU and THE SENATE OF AMERICAN SAMOA.

High Court of American Samoa Trial Division

CA No. 54-12

January 29, 2013

[1] A meeting to decide on the Lealataua senate seat must comprise of the entire Lealataua County Council, not merely of one subdivision alone, or else the decision reached is not an election result of the Lealataua County in accordance with the requirements of Art. II, Sec. 4 of the Revised Constitution of American Samoa.

[2] The village council of Fagamalo is only one constituent of the Tapuaiga. Fagamalo is not the Tapuaiga.

[3] A meeting between Fagamalo matai and select matai and lower ranking matai of the Samatua does not constitute an election by the Lealataua County Council in accordance with Art. 11, Sec. 4 of the Revised Constitution of American Samoa.

[4] Where the Department of Local Government convened a meeting to resolve county opinion regarding conflicting certifications for senate seat, the decision by the DLG made pursuant to an ad hoc process usurped the function of the Senate as the exclusive ―judge‖ of its election results, pursuant to Art. II, Sec. 22 of the Revised Constitution of American Samoa, and the court's judicial function to determine, in an election contest, whether a county election had in fact occurred, in accordance with Art. 11, Sec. 4.

Before KRUSE, Chief Justice; LOGOAI, Chief Associate Judge; and FA‘AMAUSILI, Associate Judge.

High Court of American Samoa Slip Opinions (2013)

Counsel: For Plaintiff, Marcellus T. Uiagalelei For Defendants, Elesalo V. Ale, Deputy Attorney General For Faletagoa‘i, Fiti A. Sunia

OPINION AND ORDER

Introduction

Article II, Section 2, of the Revised Constitution of American Samoa provides for six senate seats from the Western District. Article II, Section 4, allocates one of those six seats to the Senate District County of Lealataua. This dispute concerns the competing claims by Plaintiff Faletogo T. Taliloa ("Faletogo") and Real-Party-in-Interest Faletagoa`i I. Tuiolemotu ("Faletagoa`i") to the Lealataua senate seat. Both claim to be the duly elected senator.

Under the Revised Constitution, Senators are to be "elected in accordance with Samoan custom by the county council" and "[t]he decision of the members of the county council . . . [**2**] shall be certified by the county chief of such council." REV. CONST. AM. SAMOA, art II, Sec. 4; See also A.S.C.A. § 2.0203. Where, however, an election result is contested, Art. II, Sec. 22 vests in the Senate, not the judicial branch, the exclusive jurisdiction to determine the results of a senate election. Notwithstanding, this Court has exclusive jurisdiction to determine the threshold issue of whether an election had in fact occurred, in accordance with the requirements of Art. II, Sec. 4. See Pulefa`asisina v. Liua, CA No. 109-04, Slip op. 2 (Trial Div. 2005) (citing Mauga v. Lutu, 10 A.S.R.2d 115, 118 (Trial Div. 1989) (citing Meredith v. Mola, 4 A.S.R. 773, 776-77 (Trial Div. 1973); Leasau v. Paopao, 31 A.S.R.2d 169, 172 (Trial Div. 1997); Mulitauaopele v. Tuiafono, 31 A.S.R.2d 175, 176 (Trial Div. 1997).

The matter came on for trial on January 25, 2013, upon Faletogo's Petition for Declaratory Relief. The Court having heard the testimony and examined the proofs offered, finds as follows:

Findings

1. The Lealataua County is divided into two subdivisions: (i) the Samatua, incorporating the villages of Amaluia, Asili, Afao, Nua ma Se`etaga to Failolo and Agagulu, and (ii) the Tapuaiga which comprises the villages of Agagulu ma Failolo, Amanave, Poloa, Fagaali`i, Maloata, and Fagamalo. Lealataua County has adopted the practice of alternating it's senate seat between the two subdivisions. [**3**]

2. On December 1, 2013, the entire County Council, both the Tapuaiga and the Samatua, convened in the Village of Fagamalo for the

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purpose of electing its Senator. Following the traditional opening of the gathering, and before any discussion on the agenda of the day, High Talking Chief Liua of Poloa and the Tapuaiga requested the Samatua to excuse themselves from the deliberation, because it was the Tapuaiga's turn to furnish the next sitting senator. The Samatua acceded and accordingly retired from the meeting. The meeting, however, was abruptly continued, again at the behest of Liua, after Faletagoa`i, a High Chief of Poloa, and Faletogo, a High Talking Chief of Fagamalo, had each made known his respective candidacy.

3. On December 3, 2012, the Tapuaiga was convened in Amanave to resume deliberations. At this meeting, Liua announced his own candidacy. This meeting reached the consensus, over Faletogo's unyielding objection, that Faletagoa`i serve as Lealataua's next Senator.

4. Apparently non-receptive to the Tapuaiga's Amanave decision to seat Faletagoa`i, the County Chief, Taliloa Faipea Faipea, Jr., subsequently noticed yet another election meeting, at the behest of Faletogo, who also happened to be his maternal uncle. This subsequent meeting was held on December 8, 2012, at Fagamalo, and was attended by some matai of the Samatua along with Faletogo. The remainder of the Tapuaiga did not attend, with some making known that an election decision had already been made. [**4**]

Those who attended this meeting apparently accepted Faletogo's candidacy without regard to the Tapuaiga's decision previously concluded in Amanave. Consequently, the County Chief (and nephew) certified Faletogo as the next Senator, and accordingly advised the Secretary of Samoan Affairs (the "Secretary"), utilizing a standard form issued for these purposes by the Department of Local Government ("DLG").

5. Two days later, an additional DLG certification form, hand- carried by HC Amituana`i of the Samatua, was filed with the DLG. This form purported to certify the County Council's selection of Faletagoa`i as the Senator, and it was subscribed to by a significant number of the County's leading matai, both of the Tapuaiga and the Samatua. This version, however, was not signed by the County Chief.

6. On December 18, 2012, DLG convened a gathering of the Lealataua county council at the Secretary's office. Notice was merely given by word of mouth through the various Lealataua matai employed by DLG as Samoan Affairs officials. This meeting was well attended and was conducted in the presence of the Secretary, his Deputy Secretary, and the Governor of the Western District. It also included both of the party candidates.

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DLG's purpose in convening the meeting, as unabashedly acknowledged on the witness stand by the Deputy Secretary, was to resolve county opinion given the conflicting certifications supplied by the County Chief on the one hand, and by leading county matai on the other. [**5**]

7. While DLG's purpose for convening the meeting was admirable,1 the proceedings did not, unfortunately, pan out as an Lealataua County election. Rather, the procedure employed by DLG was more akin to a factfinding exercise of a quasi judicial nature undertaken primarily to gauge the weight of county opinion. The testimony also quite clearly showed that the DLG leadership in attendance unwittingly influenced the process with the injection of their own personal views as to "Samoan custom."

From this meeting, the Secretary determined that Faletagoa`i's certification more accurately reflected County Council opinion, and so advised the Senate.

Conclusion

1. The meeting of December 1, 2012, was the only gathering which comprised the entire Lealataua County Council, both the Tapuaiga and the Samatua. The meeting did not arrive at any sort of decision on Lealataua's senate seat.

[1] 2. The meeting of December 3, 2012, while it concluded in a consensus regarding the filling of Lealataua's senate seat, the decision that was reached was merely that of the Tapuaiga alone. As such, and in the absence of the Samatua, the decision reached was not an election result of the Lealataua County in accordance with the requirements of Art. II, Sec. 4. Pulefa`asisina v. Liua, CA No. 109-04, slip op. 2 (Trial Div. 2005). [**6**]

[2]-[3] 3. The meeting of December 8, 2012, at Fagamalo did not constitute an election meeting of the Lealataua County. The village council of Fagamalo is only one constituent of the Tapuaiga. Fagamalo is not the Tapuaiga. A meeting between Fagamalo matai and select matai and lower ranking matai of the Samatua does not constitute an election by the Lealataua County Council in accordance with Art. 11, Sec. 4. See Pulefa`asisina v. Liua, CA No. 109-04, Slip op. 2 (Trial Div. 2005) (citing Mauga v. Lutu, 10 A.S.R.2d 115, 118 (Trial Div. 1989) (citing Meredith v. Mola, 4 A.S.R. 773, 776-77 (Trial Div. 1973);

1 Lealataua County's history of senate election contests in this court is legend. The co-opting of the certifying county chief's alliance, the strategic staging of meeting venues, the maneuvering of meeting process, such as abruptly calling continuances, is becoming rather hackneyed tactics.

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Leasau v. Paopao, 31 A.S.R.2d 169, 172-73 (Trial Div. 1997); Mulitauaopele v. Tuiafono, 31 A.S.R.2d 175, 178 (Trial Div. 1997).

[4] 4. The meeting of December 18, 2012, convened by DLG did not constitute an election by the Lealataua County Council, pursuant to the requirements of Art. II, Sec. 4. Rather, the decision of December 18, 2012 was a decision by the DLG made pursuant to an ad hoc process that usurped the function of: (i) the Senate as the exclusive "judge" of its election results, pursuant to Art. II, Sec. 22, and (ii) this court's judicial function to determine, in an election contest, whether a county election had in fact occurred, in accordance with Art. 11, Sec. 4.

5. As of date, Lealataua County, the Tapuaiga and Samatua, has as yet to elect its senator. Wherefore, the senate seat allocated to Lealataua County by Art. II, Sec. 4, remains vacant.

We so declare, adjudge, and decree.

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High Court of American Samoa Slip Opinions (2013)

Cite As: Brunt v. Am. Samoa Gov’t, CA No. 107-07, slip op. at [page number] (Trial Div. Feb. 1, 2013)

JOHN BRUNT and LYNN BRUNT, Plaintiffs,

v.

AMERICAN SAMOA GOVERNEMENT, Defendant.

The High Court of American Samoa Trial Division

CA No. 107-07

February 1, 2013

[1] The High Court has exclusive original jurisdiction over all judicial proceedings in American Samoa with respect to the American Samoa Income Tax.

[2] The court‘s jurisdiction properly attaches when a notice of deficiency is mailed to the taxpayer, and the taxpayer files an action contesting the deficiency within 90 days.

[3] If it is determined that there is a deficiency with respect to any tax liability, a notice of deficiency may be sent to the taxpayer,.

[4] A notice of deficiency regarding any tax liability sent to the taxpayer‘s last known address is sufficient.

[5] The statute of limitations for assessment of any additional income taxes, penalties, or interest is three years after the tax return is filed.

[6] If a taxpayer produces credible evidence with respect to any factual issue relevant to their tax liability, the burden shifts to ASG with respect to such issue.

[7] The burden of proof shifting with respect to factual issues relevant to tax liability only applies when (1) the taxpayer has complied with the requirements to substantiate any item, (2) the taxpayer has maintained all records required under this title and has cooperated with reasonable requests for information, and (3) in case of partnerships, corporations, or trusts, further special requirements are met.

Before RICHMOND, Associate Justice; and MAMEA, Associate Judge.

High Court of American Samoa Slip Opinions (2013)

Counsel: For Plaintiff, Mark F. Ude For Defendant, Jay Sayles, Assistant Attorney General

OPINION AND ORDER

Plaintiffs John and Lynn Brunt brought this action against the American Samoa Government (―ASG‖) alleging that ASG improperly assessed income taxes against Plaintiffs and caused them to overpay their taxes. Trial was held on May 18, 2012. The Court, having heard testimony and considered the evidence, holds that ASG correctly assessed Plaintiffs income tax liability.

Background

Plaintiffs filed a joint American Samoa income tax return for the tax year 2000 and the tax year 2001 prior to leaving the territory. In 2000, their filed tax return indicated a tax liability of $2,820.60 and in 2001, their filed tax return indicated a tax liability of $2,430.09. These tax returns were prepared by their accountant, Richard Ames. The 2000 return was filed in June 2001, past the April 15, 2001 deadline date. On their 2001 tax return, Plaintiffs claimed a child tax credit in the amount of $1,200.00.

After Plaintiffs filed their returns and left the island, ASG determined that Plaintiffs had incorrectly calculated and paid their taxes for 2000 and 2001. ASG maintains that Plaintiffs had not fully paid their 2000 tax year liability; and that Plaintiffs incorrectly calculated their business income and the child tax credit to which they were entitled on their 2001 tax return. ASG‘s Tax Office determined that Plaintiffs owed $502.32 for the 2000 tax year and $2,700.00 for the 2001 tax year.

The Tax Office sent multiple notices to Plaintiffs regarding their outstanding tax liability. The first notice of tax liability was sent to Plaintiffs on June 3, 2005. A second notice was sent on June 23, 2005. Another notice was sent on July 25, 2005, and a final notice was sent on November 15, 2005. Another final notice was sent in March 2006. These notices were apparently sent to Plaintiffs‘ former residence in Utah, the last known address to ASG. After determining their current address, ASG sent a final notice dated September 11, 2007 to Plaintiffs‘ correct address in Idaho. In 2007, Plaintiffs issued a check for $3,202.32 to ASG in order to pay their outstanding tax liability. Plaintiffs still owed money to ASG for the accrual of interest and penalties on their outstanding tax liability, which Plaintiffs eventually paid in full in 2010.

On December 12, 2007, Plaintiffs filed a complaint against ASG, alleging that they had overpaid their taxes and were entitled to a refund. After voluntarily dismissing the case in December 2008, Plaintiffs filed

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their amended complaint on February 27, 2008. Plaintiffs alleged that ASG improperly sent out letters of assessment to the wrong address and after the statute of limitations expired. Plaintiffs claim they are entitled to a refund of the money they allegedly overpaid in taxes. ASG filed its answer on March 19, 2008, generally denying the allegations contained in Plaintiffs‘ amended complaint. A trial on this matter was held on March 18, 2012.

Discussion

[1][2] American Samoa has adopted the income tax rules in force in the United States on December 31, 2000 as the tax rules for the territory. A.S.C.A. § 11.0403(a). The High Court has exclusive original jurisdiction over all judicial proceedings in American Samoa with respect to the American Samoa Income Tax. A.S.C.A. § 11.0408. The court‘s jurisdiction properly attaches when a notice of deficiency is mailed to the taxpayer, and the taxpayer files an action contesting the deficiency within 90 days. Boral Gas of American Samoa v. Iaulualo, 6 A.S.R.3d 232, 233 (Trial Div. 2002); 26 U.S.C. § 6213(a).

[3][4][5] If it is determined that there is a deficiency with respect to any tax liability, a notice of deficiency may be sent to the taxpayer. 26 U.S.C. § 6212(a). A notice of deficiency sent to the taxpayer‘s last known address is sufficient. 26 U.S.C. § 6212(b). The statute of limitations for assessment of any additional income taxes, penalties, or interest is three years after the tax return is filed. Boral Gas of American Samoa, 6 A.S.R.3d at 234; 26 U.S.C. § 6501(a). When the tax assessment has properly been made within the applicable period of limitation, such tax may be collected by levy or court proceeding within 10 years after the assessment of the tax. 26 U.S.C. § 6502(a).

[6][7] If a taxpayer produces credible evidence with respect to any factual issue relevant to their tax liability, the burden shifts to ASG with respect to such issue. 26 U.S.C. § 7491(a)(1). This burden shifting only applies when (1) the taxpayer has complied with the requirements to substantiate any item, (2) the taxpayer has maintained all records required under this title and has cooperated with reasonable requests for information, and (3) in case of partnerships, corporations, or trusts, further special requirements are met. 26 U.S.C. § 7491(a)(2).

Here, Plaintiffs maintain that ASG incorrectly determined that they owed outstanding taxes, interest, and penalties for the tax years of 2000 and 2001. Citing to Dameworth v. Am. Samoa Gov’t, 6 A.S.R.3d 242 (Trial Div. 2002), Plaintiffs claim that the child tax credit still applies to the territory, and they were entitled to deductions for the child tax credit which ASG mistakenly disallowed. They argue that ASG‘s recalculation of their taxes created the false appearance that Plaintiffs had not paid

High Court of American Samoa Slip Opinions (2013)

their tax liability in full and resulted in them having to overpay their taxes and the accrual of interest and penalties, for which Plaintiffs seek reimbursement.

Plaintiffs mistakenly rely on Dameworth in support of their argument. In Dameworth, ASG argued that the child tax credit was not applicable in American Samoa at all because the Governor had ordered an end to the recognition and payment of any child tax credit claims. Dameworth, 6 A.S.R.3d at 244. In making its decision, the Dameworth court noted that, in 2001, the Legislature froze the automatic adoption of congressional changes in the Internal Revenue Code to those in effect on December 31, 2000. The court stated that the basic child tax credit was the law of American Samoa prior to this freeze, and it therefore was the law of American Samoa. Dameworth, 6 A.S.R.3d at 245-46.

Here, unlike in Dameworth, ASG does not argue that the child tax credit does not apply to American Samoa. Rather, they argue that Plaintiffs incorrectly applied the child tax credit to their tax returns. In 2001, the United States Congress amended the tax code and increased the child tax credit to $600 per child. 107 P.L. 16. This is the child tax credit that Plaintiffs mistakenly applied to their 2001 tax return. The amount of the credit claimed did not apply to American Samoa because the Legislature had frozen the American Samoa Tax Code to the pre-2001 version of the U.S. tax code, which changed the tax liability stated in Plaintiffs‘ 2001 tax return. Accordingly, Plaintiffs have failed to meet their burden of producing evidence that their tax assessment was incorrectly calculated by ASG.

Plaintiffs next contend that ASG failed to give them proper notice of their outstanding tax liability. Plaintiffs argue that they never received most of the notices of tax deficiency from ASG because they were sent to the wrong address. Only when ASG finally sent the notice to the correct address in Idaho did Plaintiffs receive it, and by this time ASG had issued its final notice of tax due. Plaintiffs claim that ASG improperly gave notice of tax deficiency and collected taxes from Plaintiff outside of the statutorily allowable time period.

Here, Plaintiffs 2001 tax return is signed by Plaintiffs and dated August 15, 2002. The first notice of assessment for outstanding tax liability for the 2001 tax year was sent June 3, 2005 by ASG. This notice was sent within the statutory three-year limitation period. See Boral Gas of American Samoa, 6 A.S.R.3d at 234; 26 U.S.C. § 6501(a). Plaintiffs‘ contention that the first notice is invalid because it was allegedly sent to the wrong address is without merit. The notice of deficiency sent to the allegedly incorrect Utah address was sent to Plaintiffs‘ last known address, and was thus sufficient. See 26 U.S.C. § 6212(b); see also DeWelles v. United States, 378 F.2d 37, 39-40 (9th Cir. 1967) (holding

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that a notice of deficiency sent to the plaintiff‘s last known address was sufficient even though the plaintiff allegedly had changed addresses at the time the notice was sent out). Subsequent attempts were made to contact Plaintiffs until a notice of deficiency was finally sent to Plaintiffs at their Idaho address. The fact that previous notices were sent to an allegedly incorrect address, however, does not automatically make them invalid, and ASG‘s prior assessments for outstanding tax liability are therefore within the statutory time period. See DeWelles, 378 F.2d at 39- 40.

Finally, Plaintiffs claim that ASG acted in a retaliatory manner by seeking to have Plaintiffs pay its outstanding liability during litigation. Plaintiffs claim that this attempt to collect funds while the amounts owed were in dispute was improper and motivated by vindictiveness.

Again, Plaintiffs‘ claim is without merit. Plaintiffs make only general allegations against ASG in this regard without providing a coherent, logical argument supporting any claims of malice on the part of ASG. Again, Plaintiffs did not meet their burden to produce evidence showing that ASG improperly assessed and collected outstanding taxes from them. Accordingly, Plaintiffs claim of retaliatory acts by ASG fails.

Order

Judgment shall be entered for Defendant American Samoa Government. It is so ordered.

High Court of American Samoa Slip Opinions (2013)

High Court of American Samoa Slip Opinions (2013)

Cite As: Am. Samoa Gov’t v. Siaumau, CR No. 53-09, slip op. at [page number] (Trial Div. Feb. 11, 2013)(order den. mot. for recon.)

AMERICAN SAMOA GOVERNMENT, Plaintiff,

v.

ELIOTA SIAUMAU, Sr., Defendant.

High Court of American Samoa Trial Division

CR No. 53-09

February 11, 2013

[1] A.S.C.A. § 46.0919 provides language requiring the Court to declare a bond forfeited for non-appearance, but does not limit forfeiture to non- appearance in any way.

[2] Although this Court has not adopted a multi-factor test to determine whether to set aside bond forfeitures, the Court looks to a variety of considerations, such as deterrence, and makes its decision based on the totality of circumstances.

[3] This Court is not tethered to any one set of factors when reviewing bond forfeiture cases.

[4] It is in the interest of justice to prevent injury to the public in cases where the defendant is charged with multiple serious crimes and to make reasonably certain that such individuals are released into society with an incentive to comply with the terms of release.

[5] Where defendant flagrantly disregarded bond conditions, voluntary appearance was not enough for the Court to set aside bond forfeiture and exonerate bond.

[6] Bond conditions must be strictly construed.

[7] When court recited bond conditions, Defendant was put on notice that bond would be forfeited if any of the terms and conditions of his release were violated.

[8] It is defense counsel's responsibility to make certain that their clients understand the conditions of release and to consult with them regarding the terms of release after they had been set.

High Court of American Samoa Slip Opinions (2013)

Before KRUSE, Chief Justice; and MAMEA, Associate Judge.

Counsel: For Plaintiff, Mitzie J. Folau, Deputy Attorney General For Defendant, Sharron I. Rancourt

ORDER DENYING MOTION FOR RECONSIDERATION

Background

On May 8, 2009, Defendant Eliota Siaumau Sr. (hereinafter "Defendant") was bound over to the High Court on eleven counts consisting of class D felonies and misdemeanor violations. Defendant was released on bail in the amount of $100,000, pursuant to the following terms: (1) Remain a law-abiding citizen; (2) make all court appearances; (3) shall maintain contact with counsel; (4) not leave, or attempt to leave, the territory without prior written court approval; (5) surrender certificate of identity, prior to release, to counsel; (6) Defendant shall not initiate any contact (direct or indirect) with the complaining witness, or any government witnesses; and (7) shall not possess any firearms or deadly weapons.

During his release, Defendant (1) violated his release [**2**] condition to remain a law-abiding citizen;1 (2) circumvented his release condition to surrender his certificate of identity; and (3) violated the condition not to leave the Territory on six different occasions. Plaintiff American Samoa Government (the "Government") consequently filed a motion to revoke bail on March 29, 2011. On April 21, 2011, the Court granted the Government's motion and revoked bail.

Subsequently, Defendant moved this Court to set aside forfeiture and exonerate the bond. However, on October 10, 2012, the Court denied the motion ("Order Denying Defendant's Motion") on the grounds that, inter alia, (i) a majority of jurisdictions have held that forfeiture of bond is appropriate for violations of conditions other than nonappearance; (ii) Defendant completely disregarded the terms of his release; and (iii) it was in the interest of justice to prevent injury to the public when defendants are released on bail pending resolution of serious charges. Defendant filed a Motion to Reconsider Order Denying Motion to Set Aside Forfeiture and Exonerate the Bond ("Motion to Reconsider").

1 On December 31, 2010, Defendant was arrested for Resisting Arrest by Vehicle (a class D felony) and Driving Under the Influence (a class A misdemeanor), leading to DCCR 81-11/HCCR 27-11. Defendant also violated his travel restrictions in DCCR 81-11/HCCR 27-11.

High Court of American Samoa Slip Opinions (2013)

Discussion

[1] Defendant argues that the Court should have given more weight to the fact that he voluntarily appeared to all of his [**3**] hearings, and asserts that A.S.C.A. § 46.0919 limits forfeiture to conditions of non- appearance.2 However, Defendant's interpretation of A.S.C.A. § 46.0919 is misleading. Section 46.0919 does not limit forfeiture to conditions of non-appearance. Section 46.0919 states, "If the prisoner is admitted to bail and fails to appear and surrender himself according to the condition of his bond, the High Court by proper order shall declare the bond forfeited; and recovery may be had thereon in the name of the Territory as in the case of other bonds or undertakings given by the accused in criminal proceedings within this Territory." The statute only provides language requiring the Court to declare a bond forfeited for non- appearance, but does not limit forfeiture to non-appearance in any way. Nevertheless, this statute is irrelevant in the instant case because Defendant appeared at his hearings and the Court denied Defendant's motion on other grounds.

Defendant further argues that the Court should have given [**4**] more weight to the fact that the Government suffered no delay, prejudice or costs as a result of Defendant's breach. However, Defendant is sorely mistaken to assume that the Government suffered no harm from Defendant's actions. Not only was the Government inconvenienced by having to request a bail revocation hearing, subpoena witnesses, and conduct six different movement profiles, the Court was also inconvenienced by Defendant's inability to comply with its order.

Furthermore, Defendant argues that the Court erred in determining that it was not in the interest of justice to set aside the forfeiture. Specifically, Defendant argues that the court did not address the cases raised by Defendant and instead focused on deterrence factors. In particular, Defendant states that the cases cited in a footnote of the Court's Order Denying Defendant's Motion are not applicable to the instant case. The

2 The Defendant argues that the Court did not evaluate any of the forfeiture factors enumerated in Nebraska v. Hernandez, 511 N.W.2d 525 (Neb. St. App. 1993). Notwithstanding the fact that this Court has not adopted any multi-factor test regarding bond forfeiture, the Court did not cite Hernandez for its criteria. The Court cited to Hernandez as part of a series of string cites to illustrate that other jurisdictions have held that forfeiture of bond is appropriate for violations of bond conditions other than non-appearance. Apparently that proposition was not clear enough to Defendant, and thus posits reiteration: Forfeiture of bond is appropriate in situations other than non-appearance. The instant case is one such example of a situation that warrants bond forfeiture, as Defendant's breach was clearly willful and inconvenienced both the Court and the Government.

High Court of American Samoa Slip Opinions (2013)

footnote that Defendant discusses for the majority of his "interest of justice" argument states the following in its entirety:

Deterrence is an important factor to be considered. See, e.g., United States v. Gambino, 17 F.3d 572, 575 (2nd Cr. 1994); Jeffers v. United States, 588 F.2d 425, 427 (4th Cir. 1978) ("[I]f the violation of a condition of release is more than technical, the court may require a substantial forfeiture to deter not only the defendant but others from future violations."); see State v. Hedrick, 514 S.E.2d 397, 407 (W.Va. 1999); United States v. Agueci, 379 F.2d 277, 278 (2d Cir. 1967).

As is apparent, the cases in the footnote were cited only for its proposition that deterrence is an important factor to consider in [**5**] determining whether to set aside bond forfeiture. Defendant himself notes that the Jeffers case states that the need to deter similar violations warranted the forfeiture; the Gambino case made clear that deterrence was a factor to consider; and finally, Defendant concedes that the cases mentioned in the footnote held that deterrence is a factor to consider.

[2]-[3] Although this Court has not adopted a multi-factor test3 to determine whether to set aside bond forfeitures, the Court looks to a variety of considerations, such as deterrence, and makes its decision based on the totality of circumstances. Accordingly, this Court is not tethered to any one set of factors when reviewing bond forfeiture cases.

[4]-[5] As mentioned in our prior Order, we believe it is in the interest of justice to prevent injury to the public in cases where the defendant is charged with multiple serious crimes and to make reasonably certain that such individuals are released into society with an incentive to comply with the terms of release.4 Thus, voluntary appearance is not enough for the [**6**] Court to set aside bond forfeiture and exonerate bond in light of Defendant's flagrant disregard for bond conditions.

3 The multi-factor test to determine whether to set aside bond forfeiture is not followed by all jurisdictions, nor required to be followed in all of the jurisdictions that do apply the multi-factor test, as the language used by such jurisdictions is merely precatory. 4 Defendant points out in footnote 1 of his Motion to Reconsider that rather than stating $100,000 was a large amount of money, he argued in support of his Motion to Set Aside Forfeiture and Exonerate Bond that the "large amount of the bond had the intended statutory effect of securing his appearance." Even so, the "large amount of the bond" must not have been large enough to have the intended effect of ensuring compliance with each and every bond condition.

High Court of American Samoa Slip Opinions (2013)

[6] In addition, Defendant argues that the Court erred by comparing his release order to a bond contract because there was no language in the release order stating that the bond would be forfeited if Defendant breached the conditions. Defendant asserts that the Court's reliance on United States v. Vaccaro, 51 F.3d 189, 193 (9th Cir. 1995), which states that a "bond is a contract . . . [that] should be `strictly construed in accordance with the terms contained therein,'" is misplaced. However, we did not rely on Vaccaro in deciding to deny Defendant's motion. Vaccaro simply reiterated this Court's position that bond conditions should be strictly construed, as it is surely not the case that this Court pontificates upon bond conditions in its release orders for the sheer delight of filling up white paper space.

[7]-[8] Finally, Defendant argues that he was not put on notice that the bond would be forfeited if any of the terms and conditions of his release were violated. Such arguments are rather peculiar since making all court appearances was just one of seven conditions of Defendant's release. This posits the question of whether Defendant truly believed that the court recited the other six conditions arbitrarily, as it seems rather axiomatic that bonds do not apply exclusively to the term of appearance. If the concept of a bond was too difficult for Defendant to comprehend, it was his counsel's responsibility to make certain that he [**7**] understood the conditions of his release before he walked out into society otherwise unrestricted. Defendant's Counsel had an obligation as an attorney to consult with him regarding the terms of release after they had been set. However, it seems that Defendant's counsel failed to do so judging by the arguments posited in the Motion to Reconsider.

Order

Accordingly, Defendant's Motion to Reconsider Order Denying Motion to Set Aside Forfeiture and Exonerate the Bond is denied. It is so ordered.

High Court of American Samoa Slip Opinions (2013)

High Court of American Samoa Slip Opinions (2013)

Cite As: Am. Samoa Gov’t v. Tinitali, CA No. 35-12, slip op. at [page number] (Trial Div. Mar. 13, 2013)(order on mot. for stay pending rev.)

AMERICAN SAMOA GOVERNMENT, Petitioner,

v.

WORKER’S COMPENSATION COMMISSIONER, and PETER TINITALI, Respondents.

High Court of American Samoa Trial Division

CA No. 35-12

March 13, 2013

[1] Without a copy of the Administrative Law Judge order that has been properly filed with the Office of the Workmen‘s Compensation Commission, as mandated by A.S.C.A. § 32.6050, there is no effective order for the court to review.

[2] In the absence of an effective order from the Workmen‘s Compensation Commission for review, Respondent‘s motion to stay is necessarily premature.

Before KRUSE, Chief Justice; LOGOAI, Chief Associate Judge.

Counsel: For Petitioner, Michael L. Iosua, Assistant Attorney General For Respondent Workmen‘s Compensation Commissioner, Sharron I. Rancourt For Respondent Peter Tinitali, Roy J.D. Hall, Jr.

ORDER ON MOTION FOR PROOF OF FILING ADMINISTRATIVE LAW COURT RECORDS AND STAY PENDING REVIEW WITH THE COURT SETTING BOND

Background

This matter concerns a worker's compensation claim filed by respondent Peter Tinitali ("Tinitali"), with the Workmen's Compensation Commissioner ("WCC") under A.S.C.A. §§ 32.0601 et seq. At all relevant times, Tinitali was an American Samoa Government ("ASG") employee who became ill while on a business trip to the mainland. The WCC referred Tinitali's claim pursuant to A.S.C.A. § 32.0629 for hearing before the Administrative Law Judge ("ALJ"). The ALJ

High Court of American Samoa Slip Opinions (2013)

determined that Tinitali had indeed suffered a compensable "injury," A.S.C.A. § 43.0502(i),1 while [**2**] on the job, and awarded Tinitali a total of $153,532.36 in benefits, being the total cost of Tinitali's off- island medical expenses associated with his "work-related injury" (some form of pneumonia).

ASG took exception with the ALJ's determination of "injury," and initially sought judicial review before the Appellate Division of the High Court in American Samoa Gov't. v Tinitali, AP No. 02-12.2 However, the Appellate Division dismissed ASG's challenge, without prejudice, noting, inter alia, that worker's compensation appeals are to be had at first instance before the Trial Division, not the Appellate Division, of the High Court, by way of injunctive relief proceedings as provided under A.S.C.A. § 32.0652. Following dismissal, ASG filed this action in the Trial Division.

Discussion

[1] Now before us is a motion filed by Tinitali to require ASG to file proof of transfer of the ALJ record to the High Court and file proof of filing for stay. However, we note that the transcripts of the ALJ proceedings were included as part of the Appellate record filed in American Samoa Gov't v. Tinitali, AP No. 02-12. Accordingly, we do not find it necessary to require the ALJ to refurnish the transcripts in the instant case. However, having said as much, we cannot say that the record as [**3**] assembled and filed AP No. 02-12 is complete. As the Appellate Division noted in its Order of Dismissal:

Here, proper procedure is not reflected in the record. Tinitali filed his claim with the WCC; the WCC sent that claim to the ALJ; the ALJ issued a workmen's compensation order. However, there is nothing in the record indicating the ALJ has filed his workmen's compensation order with the Office of the Commissioner. A.S.C.A. § 32.0650. Once the ALJ's order is filed with the Office of the Commissioner, the order becomes effective and, after 30 days of non-activity, final. A.S.C.A. § 32.0651. However, if within 30 days of the order's filing, a party seeks injunction proceedings in the Trial Division of the

1 "`Injury' means any harmful change in the human organism arising out of and in the course of employment, including damage to or loss [of] a prosthetic appliance, but does not include any communicable disease unless the risk of contracting the disease is increased by the nature of the employment." A.S.C.A. § 43.0502(i). 2 ASG's position is that pneumonia cannot come within the statutory definition of "injury."

High Court of American Samoa Slip Opinions (2013)

High Court, the order is not final and must undergo the limited judicial review envisioned by statute before becoming so.

AP No. 02-12, slip op. at 5 (App. Div. Aug. 3, 2012) (Order Dismissing Appeal For Lack of Subject Matter Jurisdiction). Thus without a copy of the ALJ order that has been properly filed with the Office of the WCC, as mandated by A.S.C.A. § 32.6050, there is no effective order before us for review.

[2] Additionally, and in the absence of an effective order for review, we find in the circumstances that Tinitali's motion to stay is necessarily premature.

Order

Respondent's motion for proof of filing administrative law court records and stay pending review with the Court setting bond is denied. The Clerk of Courts shall cause a copy of this order to be additionally served upon the Office of the Administrative Law Judge.

It is so ordered.

High Court of American Samoa Slip Opinions (2013)

High Court of American Samoa Slip Opinions (2013)

Cite As: Kepaoa Dev. Corp. v. Stevensons Trucking, Inc., CA No. 18- 09, slip op. at [page number] (Trial Div. Mar. 20, 2013)(order grant. def.‘s mot. for summ. j.)

KEPAOA DEVELOPMENT CORPORATION, Plaintiff,

v.

STEVENSONS TRUCKING, INC., BP SOUTH-WEST PACIFIC, LTD., ANZ-AMERIKA SAMOA BANK, and JOHN DOES I through X, jointly and severally, Defendants.

High Court of American Samoa Trial Division

CA No. 18-09

March 20, 2013

[1] Only disputes over facts that might affect the outcome of the suit under the governing law are material, and such a dispute is genuine only where the evidence is such that a reasonable factfinder could return a verdict for the nonmoving party.

[2] A person or entity is liable for trespass if he intentionally enters land in the possession of another, remains on the land, or fails to remove something from the land which he is under a duty to remove.

[3] Consent is a defense to the tort of trespass.

RICHMOND, Associate Justice; MAMEA, Associate Judge; and MUASAU, Associate Judge

Counsel: For Plaintiff, Mark F. Ude For Defendant, Billie L. Evans

ORDER GRANTING DEFENDANT ANZ-AMERIKA SAMOA BANK‘S MOTION FOR SUMMARY JUDGMENT

Pending is Defendant ANZ-Amerika Samoa Bank‘s (―ANZ‖) Motion for Summary Judgment. Plaintiff Kepaoa Development Corporation (―Kepaoa‖) opposed. For the following reasons, we grant ANZ‘s Motion for Summary Judgment.

High Court of American Samoa Slip Opinions (2013)

Background

In 2008, Kepaoa leased a warehouse in Utulei to Stevensons Trucking, Inc. (―Stevensons‖). The lease contained a provision stating that Stevensons was permitted to sublease the premises upon prior written approval of Kepaoa. Shortly thereafter, Kepaoa learned that Stevensons had subleased the premises to BP South-West Pacific and ANZ without Kepaoa‘s permission.

[**2**] On March 4, 2009, Kepaoa filed its Complaint against Defendants alleging, inter alia, conversion and trespass by ANZ. On August 10, 2010, ANZ filed a motion to dismiss and motion for summary judgment. In a September 27, 2010 order we denied ANZ‘s motion to dismiss, granted ANZ summary judgment on the conversion count, but denied summary judgment on the trespass count.

After engaging in discovery, ANZ filed the instant motion for summary judgment on October 31, 2012. Kepaoa filed its opposition on January 9, 2013. We heard the matter on January 14, 2013.

Discussion

ANZ contends that Kepaoa‘s trespass claim fails because Kepaoa was not in possession of the property. In support, ANZ argues that a landlord turns over possession of property when he grants a lease, and because Kepaoa leased the land to Stevensons, they were no longer possession of the premises, and trespass, by definition, cannot apply. Because ANZ had permission from Stevensons, who was in possession of the premises at the time of the sublease, ANZ argues that Kepaoa‘s trespass claim fails and summary judgment should be granted.

In response, Kepaoa argues that ANZ was not allowed to sublease the premises because there was no consent on Kepaoa‘s part. Stevensons had no legal authority to sublease the [**3**] premises, and Kepaoa argues that ANZ may not hide behind ―willful ignorance‖ in failing to determine whether Stevensons has this authority.

[1] ―The [summary] judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law.‖ T.C.R.C.P. 56(c). When the moving party sets out a prima facie case for summary judgment, the burden shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." T.C.R.C.P. 56(e). "Only disputes over facts that might affect the outcome of the suit under the governing law" are "material," and such a dispute is "genuine" only where the

High Court of American Samoa Slip Opinions (2013)

evidence is such that a reasonable factfinder could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court must resolve any factual issues in a controversy in favor of the nonmoving party, but conclusory, non- specific allegations are not sufficient to survive a motion for summary judgment, and missing facts will not be presumed. Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990).

[2]-[3] A person or entity is liable for trespass if he intentionally enters land in the possession of another, remains [**4**] on the land, or fails to remove something from the land which he is under a duty to remove. RESTATEMENT (SECOND) TORTS § 158. Consent is a defense to the tort of trespass. RESTATEMENT (SECOND) TORTS § 892A. Here, all parties appear to agree that Stevensons lawfully possessed the premises at the time they entered into the sublease with ANZ. As sublessee ANZ obtained permission to enter and occupy the premises from Stevensons. Although Kepaoa maintains Stevensons did not have the authority to enter into this type of contract, ANZ did not know this. Where a party in lawful possession authorizes entry onto land, a valid trespass claim does not exist. See Hulda Schoening Family Trust v. Powertel/Kentucky, Inc., 265 F.Supp. 2d 781, 786 (W.D. Ky. 2003) (amended on other grounds) (stating that a claim of trespass does not exist against the defendant sublessee where sublessee entered into a sublease that lessee was not authorized to make without the plaintiff owner‘s permission). Accordingly, Kepaoa does not have a valid claim of trespass against ANZ, and ANZ‘s motion for summary judgment shall be granted.

Order

ANZ‘s Motion for Summary Judgment is granted. It is so ordered.

High Court of American Samoa Slip Opinions (2013)

High Court of American Samoa Slip Opinions (2013)

Cite As: Am. Samoa Gov’t v. Galea’i, CR No. 54-12, slip op. at [page number] (Trial Div. Mar. 20, 2013)(order den. def.‘s mot. to dismiss count two)

AMERICAN SAMOA GOVERNMENT, Plaintiff,

v.

FOLASA GALEA’I, Defendant.

High Court of American Samoa Trial Division

CR No. 54-12

March 20, 2013

[1] An offense is necessarily included in another offense when the elements of the lesser offense are a subset of the elements of the greater offense. If the lesser offense requires an element that is not required for the greater offense, it is not a lesser included offense.

[2] Whether one crime is a lesser included offense of another depends on the elements required to prove each crime. Thus, an argument that one crime is not a lesser included offense of another based on the sentencing structure of the two offenses is without merit.

[3] It is within the District Court‘s authority to find probable cause for an uncharged offense that is a lesser included offense of a charged offense for which there was not probable cause.

Before RICHMOND, Associate Justice; MAMEA, Associate Judge; and MUASAU, Associate Judge

Counsel: For Plaintiff, Julie Pasquale, Assistant Attorney General

For Defendant, Sharron I. Rancourt

ORDER DENYING DEFENDANT‘S MOTION TO DISMISS COUNT 2

Defendant Folasa Galea‘i (―Defendant) was initially charged with unlawful possession of a controlled substance (methamphetamine) with intent to distribute (Count 1) and unlawful possession of a controlled substance (marijuana) with intent to distribute (Count 2). At the preliminary examination held at the District Court on June 5, 2012, the Court found probable cause with respect to Count 1. However, with

High Court of American Samoa Slip Opinions (2013)

respect to Count 2, the Court found that Plaintiff American Samoa Government (―ASG‖) failed to establish sufficient probable cause that there was intent to distribute. However, the Court stated that the count was not dismissed. Rather, the Court bound over the Count 2 as a charge of the lesser included offense of [**2**] unlawful possession of a controlled substance (marijuana). ASG filed the information alleging the two charges as bound over.

Defendant now moves to dismiss the charge of unlawful possession of a controlled substance (marijuana). Defendant filed his motion to dismiss on December 7, 2012, and ASG filed its response on January 10, 2013. We heard the matter on January 10, 2013. For the following reasons, we deny Defendant‘s motion.

Discussion

In his motion, Defendant first contends that Count 2 must be dismissed because unlawful possession of marijuana is not a lesser included offense of possession with intent to distribute marijuana. Defendant claims that unlawful possession is actually a more serious crime than possession with intent to deliver and therefore cannot be a lesser included offense. Defendant points out that the American Samoa Code (―Code‖) requires that a person convicted of unlawful possession of a controlled substance shall serve a mandated sentence of imprisonment of 5 years minimum and 10 years maximum, or a mandated fine of $5,000 minimum and $20,000 maximum, or both. Meanwhile, the Code provides that a person convicted of unlawful possession with intent to distribute is subject to a prison term of not more than 20 years, or a fine of not more than $20,000, [**3**] or both. However, because there is no mandatory penalty, a person convicted of unlawful possession with intent to distribute is eligible for probation. Defendant argues that a person convicted of unlawful possession of a controlled substance could potentially serve a longer prison sentence than a person convicted of unlawful possession with intent to distribute, and therefore, it is not a lesser included offense, and Count 2 must be dismissed.

[1] An offense is necessarily included in another offense when the elements of the lesser offense are a subset of the elements of the greater offense. Schmuck v. United States, 489 U.S. 705, 716 (1989). If the lesser offense requires an element that is not required for the greater offense, it is not a lesser included offense. Id.

We can determine whether unlawful possession is a lesser included offense by looking at the Code. A conviction of unlawful possession with intent to distribute requires: (1) possession of a controlled substance with (2) the intent to deliver said substance. A.S.C.A. § 13.1020. A conviction of unlawful possession of a controlled substance solely

High Court of American Samoa Slip Opinions (2013)

requires possession of a controlled substance. A.S.C.A. § 13.1022. Clearly, the elements of possession of a controlled substance are a subset of the elements of possession of a controlled [**4**] substance with intent to deliver. Accordingly, possession of a controlled substance is a lesser included offense.

[2] Defendant‘s argument that the sentencing structure of the two offenses demonstrates that possession of a controlled substance is not a lesser included offense is without merit. First, Defendant‘s argument ignores the fact that we look at the elements of the two crimes to determine if one offense is necessarily included in a greater offense, and as stated above, it is clear that possession of a controlled substance is necessarily included in the offense of possession with intent to deliver. Moreover, Defendant‘s argument does not acknowledge that a person convicted of possession with intent to deliver is subject to a prison sentence of up to 20 years, far more than the maximum for a conviction of mere possession of a controlled substance.

[3] Defendant next contends that the District Court exceeded its authority by finding probable cause on possession of a controlled substance, a charge that was not in the original complaint against Defendant. Defendant argues that once the District Court found there was no probable cause to sustain the unlawful possession with intent to distribute charge, it was required to dismiss the charge. Defendant maintains that the [**5**] Court exceeded its authority by dismissing the charge and holding Defendant accountable for an uncharged offense.

We hold that Defendant‘s argument to be without merit. The American Samoa Rules of Criminal Procedure provide that ―[i]f from the evidence it appears that there is probable cause to believe than an offense has been committed and that the defendant committed it, the district court judge shall forthwith hold him to answer in the High Court.‖ T.C.R.Cr.P. 5.1(a). That is exactly what happened here: the District Court found probable cause to support a charge of the lesser included offense of an unlawful possession of a controlled substance and held Defendant to answer the charge in High Court. Defendant provides inadequate authority to support his contention that the District Court acted improperly when it reduced the charge against him, as any grand jury might do.

Order

Defendant‘s Motion to Dismiss Count 2 is denied. It is so ordered.

High Court of American Samoa Slip Opinions (2013)

High Court of American Samoa Slip Opinions (2013)

Cite As: Am. Samoa Gov’t v. Ripley, CR Nos. 117-09 & 119-09, slip op. at [page number] (Trial Div. May 7, 2013)(order den. jt. mot. to dismiss)

AMERICAN SAMOA GOVERNMENT, Plaintiff,

v.

MARIE T. RIPLEY, Defendant. ______

AMERICAN SAMOA GOVERNMENT, Plaintiff,

v.

MICHAEL UPUIA FUIAVA, Defendant.

High Court of American Samoa Trial Division

CR No. 117-09 CR No. 119-09

May 7, 2013

[1] The Independent Prosecutor Act (A.S.C.A. §§ 4.0801-4.0809) provides the general rules and procedures for the appointment of an independent prosecutor to investigate and prosecute crimes against public officials.

[2] Under certain circumstance, the Appointing Division of the High Court may expand the jurisdiction of an existing independent prosecutor

[3] If the independent prosecutor learns about possible criminal activity, the independent prosecutor may submit such information to the Attorney General, who shall then conduct a preliminary investigation of the information which shall not exceed 30 days from the date such information is received.

[4] If 30 days after the Attorney General learns of possible criminal activity from the independent prosecutor elapses without a notification to the High Court that no further investigation is warranted, the Appointing Division of the High Court shall expand the jurisdiction of the appropriate independent prosecutor to include the matters involved or shall appoint another independent prosecutor to investigate such matter.

High Court of American Samoa Slip Opinions (2013)

[5] In cases where the Attorney General has a conflict of interest, recusal is required.

[6] The Appointing Division of the High Court does not have unlimited discretion to determine an independent prosecutor‘s jurisdiction; the jurisdiction decided upon must be demonstrably related to the factual circumstances that gave rise to the Attorney General‘s investigation in that particular case.

Before RICHMOND, Associate Justice; and MAMEA, Associate Judge.

Counsel: For Plaintiff, M. Talaimalo Uiagalelei, Independent Prosecutor For Defendant Marie T. Ripley, David P. Vargas For Defendant Michael Upuia Fuiava, Sharron I. Rancourt

ORDER DENYING JOINT MOTION TO DISMISS

Defendants Marie T. Ripley (―Ripley‖) and Filifaatali Michael Fuiava (―Fuiava‖) (collectively ―Defendants‖) jointly move to dismiss the criminal informations filed against them by Plaintiff American Samoa Government (―ASG‖). For the reasons set forth below, we deny Defendants‘ joint motion to dismiss.

Background

On January 12, 2009, upon application from the Attorney General‘s Office, the Appointing Division of the High Court appointed an independent prosecutor, Fa‘amomoi Masaniai, Jr. (―Masaniai‖), pursuant to the Independent Prosecutor Act (―IP Act‖) (A.S.C.A. §§ 4.0801- 4.0809). This initial appointment involved the investigation of employees of the Attorney General‘s Office accused of theft of money used to purchase certificates of identification (―CIs‖) and not Defendants in this case.

During the course of the investigation of the CIs, additional related wrongdoing concerning suspect forms of identification, including driver‘s licenses, came to light. Specifically, information was discovered concerning Rosemarie Huni, a woman who was allegedly in possession of a fraudulent driver‘s license. The investigation revealed that Ripley, the Director of the Office of Motor Vehicles, allegedly forged driver‘s licenses in exchange for money. Ripley is the wife of Fepulea‘i Arthur Ripley, the Attorney General at the time (―Attorney General Ripley‖). Further investigation revealed that Fuiava, the Acting Commissioner of the Department of Public Safety at the time, allegedly tampered with evidence relating to the Huni case by taking a forged driver‘s license from investigating officers and allegedly attempted to

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hinder the investigation and prosecution of the case by ordering investigators to delay investigation of the forged driver‘s license.

Masaniai received information concerning alleged criminal acts of Defendants and notified the Attorney General‘s Office. According to Masaniai, he had several meetings with Assistant Attorneys General concerning the case, including a meeting on May 26, 2009. During one meeting with Deputy Attorney General Frederick O‘Brien, Masaniai stated that he was informed that O‘Brien would be his liaison with the Attorney General‘s Office concerning the case. Masaniai also had conversations in April 2009 with Commissioner Tuaolo Fruean (―Commissioner Fruean‖) of the Department of Public Safety regarding the case.

At the same time, perhaps even slightly after his May 26, 2009 meeting, Masaniai sent a letter to O‘Brien wherein he requested that the Huni case be referred to the Independent Prosecutor‘s Office. In this letter, Masaniai noted that Attorney General Ripley had professional and personal conflicts relating to the matter. Masaniai also wrote a May 27, 2009 letter to Commissioner Fruean stating that he had already asked that the Ripley case be transferred to his office and suggesting that the Fuiava case be transferred to the Department of Homeland Security. This letter specifically noted that Fuiava had tried to have investigators close the matter instead of referring it for prosecution. Commissioner Fruean sent a May 29, 2009 letter to the Director of the Department of Homeland Security requesting assistance in investigating the instant case. The letter referenced a briefing Commissioner Fruean had with Defendant Fuiava on the status of the case.

Upon receiving no response from the Attorney General‘s Office, Masaniai petitioned the Appointing Division of the High Court, pursuant to the IP Act, to expand his jurisdiction to cover Defendants. On September 28, 2009, the Appointing Division expanded the independent prosecutor jurisdiction to include Defendants, resulting in the Informations pending against them. Those Informations were dismissed by the Trial Division in a May 18, 2010 order, after the Trial Division found the IP Act unconstitutional on its face. In a March 22, 2011 opinion, the Appellate Division of the High Court found the IP Act to be constitutional, reversed the dismissal of the Informations against Defendants, and remanded the matter to the Trial Division for further proceedings.

After the case was remanded, Defendants filed separate motions on August 4, 2011 to disqualify Masaniai, arguing that he had conflicts requiring his recusal. On August 5, 2011, Fuiava additionally filed a separate motion to dismiss. The Court determined, with Defendants‘ and Masaniai‘s concurrence, to first rule on the disqualification motions.

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The hearing on these motions was delayed to accommodate Defendants‘ certain discovery requests and coordinate the evidentiary hearing all parties considered appropriate on this issue. The evidentiary hearing was held on December 6, 7, and 8, 2011, in which Masaniai testified about his relationship and history with the case.

On March 13, 2012, after Masaniai resigned as the appointed independent prosecutor in order to pursue other employment opportunities outside of American Samoa, the Appointing Division appointed Marcellus Uiagalelei (―Uiagalelei‖) as the independent prosecutor to proceed with the present prosecutions. Then, on April 23, 2012, the Court denied the motions to disqualify as rendered moot by Masaniai‘s resignation and Uiagalelei‘s appointment.

Proceedings on Fuiava‘s dismissal motion were then actively renewed. On September 13, 2012, Ripley joined Fuiava‘s motion to dismiss. Uiagalelei filed response to Defendants‘ joint dismissal motion on October 11, 2012, and the Court heard this motion on October 17, 2012.

Discussion

As an initial matter, Defendants raise a question as to whether the September 28, 2009 Order of Appointment was a referral of their cases to the independent prosecutor or an expansion of the independent prosecutor‘s authority. Defendants state that it is unclear because documents and the Appellate Division‘s order refer to a ―referral,‖ which is governed by A.S.C.A. § 4.0804(e), but the September 28, 2009 Order of Appointment references A.S.C.A. § 4.0803(c)(2), which governs the expansion of authority.

The Appellate Division of this court, in its March 22, 2011 opinion, found that the independent prosecutor petitioned the Appointing Division to expand his jurisdiction, and that the Appointing Division did so in its September 28, 2009 order. See Am. Samoa Govt. v. Ripley, AP 7-10, p. 3-4 (March 22, 2011). Support for this finding can be found in Masaniai‘s testimony during the hearing on Defendants‘ motions to disqualify, where he testified that he first became aware of the investigation of Defendants during the investigation of another matter involving the Attorney General‘s Office. As will be explained more fully below, Defendants‘ prosecution was related to another investigation over which Masaniai already had jurisdiction, and the Appointing Division‘s September 28, 2009 order was merely an expansion of his existing jurisdiction. Furthermore, the September 28, 2009 order explicitly states that the independent prosecutor was being appointed jurisdiction pursuant to A.S.C.A. § 4.0803(c)(2), which governs the expansion of jurisdiction. Accordingly, it is clear that the September 28,

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2009 Order of Appointment was an expansion of the independent prosecutor‘s authority.

I. Compliance with Statutory Requirements for the Independent Prosecutor’s Expanded Jurisdiction

Defendants contend that the September 28, 2009 order expanding the independent prosecutor‘s jurisdiction was in excess of the Appointing Division‘s statutory authority. Defendants specifically argue that Masaniai failed to comply with the requirements of A.S.C.A. § 4.0803(c)(2), which outlines the procedure for the expansion of the independent prosecutor‘s jurisdiction.

[1] The IP Act (A.S.C.A. §§ 4.0801-4.0809) provides the general rules and procedures for the appointment of an independent prosecutor to investigate and prosecute crimes against public officials. The IP Act is nearly identical to the federal ―Ethics in Government Act of 1978‖ 28 U.S.C. §§ 591-599 (―federal Ethics Act‖), with minor changes to reflect local distinctions.

[2][3] The IP Act provides that the Appointing Division may expand the jurisdiction of an existing independent prosecutor. A.S.C.A. § 4.0803(c)(1). The IP Act also states:

If the independent prosecutor discovers or receives information about possible violation of criminal law by persons...who are not covered by the prosecutorial jurisdiction of the independent prosecutor, the independent prosecutor may submit such information to the Attorney General. The Attorney General shall then conduct a preliminary investigation of the information...except that such preliminary investigation shall not exceed 30 days from the date such information is received.

A.S.C.A. § 4.0803(c)(2)(A).

[4] The IP Act additionally provides:

If the 30-day period referred to in subparagraph (A) elapses without a notification to the division of the court that no further investigation is warranted, the division of the court shall expand the jurisdiction of the appropriate independent prosecutor to include the matters involved or shall appoint another independent prosecutor to investigate such matter.

A.S.C.A. § 4.0803(c)(2)(C)(i).

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[5] In cases where the Attorney General has a conflict of interest, recusal is required. A.S.C.A. § 4.0801(e). Specifically, the IP Act states that if the Attorney General receives information involving a person with whom he has a personal or financial relationship, he must recuse himself and designate the most senior Assistant Attorney General assigned as a prosecutor to perform the Attorney General‘s duties. A.S.C.A. § 4.0801(e)(1)(B). After determining that recusal is necessary, the Attorney General must set forth this determination in writing, identifying the facts considered and reasons for the recusal. A.S.C.A. § 4.0801(e)(2).

Defendants first claim that Masaniai failed to comply with the terms of the IP Act by making an ex parte application for jurisdiction to the Appointing Division. Defendants argue that this is a violation of the IP Act because the IP Act does not allow for a Motion to Appoint Jurisdiction or for any ex parte applications for jurisdiction by the independent prosecutor.

Defendants are mistaken in their claim. The facts of the case clearly indicate that Masaniai, during his time as independent prosecutor, provided information to the Attorney General‘s Office regarding potential criminal activity by Defendants here. The Attorney General‘s Office failed to take any action within the 30-day time period prescribed in the IP Act, and the Appointing Division made its order expanding Masaniai‘s jurisdiction thereafter. The September 28, 2009 order was made pursuant to the mandate contained in A.S.C.A. § 4.0803(c)(2)(C)(i) that the Appointing Division ―shall‖ expand the jurisdiction of the independent prosecutor, whether or not Masaniai made any motion for expansion of jurisdiction, as Defendants mistakenly claim.

Defendants next claim that that Masaniai violated the IP Act by failing to submit information to the Attorney General himself, as opposed to members of the Attorney General‘s Office, which Masaniai apparently did in this case. Defendants argue that the Attorney General, not the Assistant Attorneys General, is personally responsible for conducting the initial investigation after receiving information from the independent prosecutor and determining whether further investigation is required. According to Defendants, Masaniai‘s submission of information to Assistant Attorneys General instead of the Attorney General constituted a violation of the IP Act, and the expansion of the independent prosecutor‘s jurisdiction is therefore invalid.

We find Defendants‘ argument that Masaniai bypassed the Attorney General misguided. Attorney General Ripley had both personal and professional conflicts with Defendants here. Attorney General Ripley is married to Defendant Ripley, an obvious personal conflict, and Attorney

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General Ripley clearly worked closely with Defendant Fuiava, as the Acting Commissioner of Public Safety, who is accused of attempting to cover up any wrongdoing on his and Ripley‘s part. See A.S.C.A. § 4.0801(e)(1)(B). Attorney General Ripley‘s relationship with his wife and the Acting Commissioner of Public Safety required that he recuse himself from the instant case. See A.S.C.A. § 4.0801(e). Attorney General Ripley‘s failure to formally set forth his recusal in writing will not serve an obstacle to the investigation and prosecution of this matter. As Masaniai stated during his December 7, 2011 testimony on Defendants‘ motion to disqualify, he met several times with Assistant Attorneys General regarding the case at bar. During a January 2009 meeting with Deputy Attorney General O‘Brien, he was told that O‘Brien would be the Attorney General‘s liaison with Masaniai and the Attorney General would not be dealing directly with Masaniai. Masaniai‘s meetings with the Deputy Attorney General and Assistant Attorneys General were sufficient to satisfy the requirements of the IP Act, especially given the fact that he was given information that Attorney General Ripley would not be taking part in the investigation of this matter, which he could reasonably assume was based on Attorney General Ripley‘s conflicting relationships with Defendants.

Defendants still assert that Attorney General Ripley, and not the Attorney General‘s Office, was required to personally investigate this matter and make a determination despite his conflicts of interest. In support, Defendants cite to A.S.C.A. § 4.0804(a), which states that the independent prosecutor shall have the investigative and prosecutorial functions and powers of the Office of the Attorney General, except the Attorney General shall exercise control as to those matters that specifically require the Attorney General‘s personal action. Defendants‘ assertion is without merit because the investigation of a matter where the Attorney General has an obvious conflict can be adequately performed by the Attorney General‘s Office and is not a matter that requires the Attorney General‘s personal attention. To hold otherwise would completely defeat the purpose of the recusal requirement contained in the IP Act.1

Finally, we note that nowhere in their motions to dismiss do Defendants assert that Attorney General Ripley was unaware of the claims against Defendants. Masaniai sent a letter dated May 26, 2009 to the Attorney General‘s Office, admittedly addressed to Deputy Attorney General Frederick O‘Brien, requesting a referral of the Rosemarie Huni case, the

1 We note that we are not making a determination at this time as to whether the investigation of a case and determination as to whether it should be referred to an independent prosecutor is a matter that requires the Attorney General‘s personal action, even if the Attorney General has no conflict.

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case associated with the present case. The letter noted that the matter involved forging of documents and was a conflict for the Attorney General‘s Office because Attorney General Ripley had both a personal and professional conflict. Additionally, during his December 7, 2011 testimony on Defendants‘ motion to disqualify, Masaniai stated that he met with Assistant Attorney General Lisa Teesch-Maguire and Deputy Attorney General Frederick O‘Brien on multiple occasions regarding the case. There is no evidence that this information was hidden from Attorney General Ripley or that Attorney General Ripley attempted to become involved with the case, further supporting Masaniai‘s belief that Attorney General Ripley had recused himself and allowed Deputy Attorney General O‘Brien to act as the liaison on the case.

Defendants finally claim that Masaniai did not comply with the requirements of the IP Act because he failed to wait the required 30 days prior to making his application for expansion of jurisdiction. They argue that based on the letters that Masaniai wrote to Commissioner Fruean and Commissioner Fruean‘s letter to the Department of Homeland Security in May 2009, it is clear that Defendants were not under suspicion of wrongdoing. After the Department of Homeland Security became involved, additional interviews and investigation took place through September 2009. Because the investigation was ongoing as of September 2009, Defendants claim it was impossible for anyone in the Attorney General‘s Office to have received a completed report 30 days prior to the issuance of the Appointing Division‘s September 28, 2009 order of appointment, as statutorily required.

Defendants wrongly rely on the date of the police report‘s completion in support of their claim. The IP Act states that when the Attorney General receives information of wrongdoing from the independent prosecutor, the Attorney General shall conduct an investigation of the information, which is not to exceed 30 days from the date such information was received. A.S.C.A. § 4.0803(c)(2)(A). The Appointing Division is then charged with expanding the jurisdiction of the independent prosecutor if this 30-day period elapses without notification to the court that no further investigation is warranted. A.S.C.A. § 4.0803(c)(2)(C)(ii). Here, the question is not when the police report was completed or when the Attorney General‘s Office received a completed police report. Rather, the question is when did the Attorney General‘s Office receive information regarding potential wrongdoing by Defendants, and there is overwhelming evidence that Masaniai provided the Attorney General‘s Office this information far before the 30-day period prior to the issuance of the September 28, 2009 order expanding jurisdiction. The May 26, 2009 letter from Masaniai to [Deputy Attorney General] O‘Brien asked that the [Rosemarie] Huni case be referred to him and specifically referenced Attorney General Ripley‘s personal and professional conflicts with the case. Moreover, Masaniai testified that he spoke on multiple

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occasions with Assistant Attorneys General regarding the case months before the September 28, 2009 order expanding jurisdiction. Defendants have failed to prove that the Appointing Division expanded the independent prosecutor‘s jurisdiction less than 30 days after the Attorney General‘s Office received information concerning possible criminal behavior by Defendants from Masaniai.

Accordingly, we find and conclude that the Appointing Division‘s September 28, 2009 order expanding the independent prosecutor‘s jurisdictional authority complied with statutory requirements.

II. Constitutionality of the Appointing Division’s Order Expanding Jurisdiction

Defendants next contend that the Appointing Division‘s September 28, 2009 Order expanding the independent prosecutor‘s jurisdiction was unconstitutional. Defendants argue that in order for the Appointing Division‘s expansion of jurisdiction to be incidental to its constitutional power to appoint, the jurisdiction granted in its September 2009 order had to be demonstrably related to the facts that gave rise to the Attorney General‘s investigation and request for appointment of an independent prosecutor that resulted in the original January 2009 grant of jurisdiction. Defendants state that Masaniai originally received his authority from a January 12, 2009 order from the Appointing Division to investigate employees of the Attorney General‘s Office regarding the theft of money used to purchase CIs. However, the Attorney General did not authorize the application to prosecute the present Defendants. Rather, Defendants claim that Masaniai acted on his own behalf in seeking jurisdiction over the current case and that the September 28, 2009 order impermissibly granted overly broad jurisdiction to the independent prosecutor. According to Defendants, the facts of the current case are not demonstrably related to the facts that gave rise to the January 2009 order, and thus, the Appointing Division acted not in a ministerial manner, but rather in a discretionary manner. Defendants claim that this alleged discretionary action by the Appointing Division was unconstitutional.

[6] In Morrison v. Olson, 487 U.S. 654 (1988), the United States Supreme Court analyzed the constitutionality of the federal Ethics Act, which as noted above, is nearly identical to the IP Act. In determining that the federal Ethics Act was constitutional, the Court noted that the duty to appoint inferior officers, such as independent prosecutors, when required by law is a constitutional duty of the courts. The Supreme Court stated that it not impermissible for Congress to vest the power to appoint an independent prosecutor in a specifically created federal court. Morrison, 487 U.S. at 676. Moreover, the Court stated that the judiciary was a logical place to put appointment authority given concerns over potential conflicts of interest when the Executive Branch is faced with

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investigating its own high-ranking officials. Morrison, 487 U.S. at 677. The Court did note that although the IP Act was constitutional, appointing courts do not have unlimited discretion to determine an independent prosecutor‘s jurisdiction; the jurisdiction the court decided upon must be demonstrably related to the factual circumstances that gave rise to the Attorney General‘s investigation in that particular case. Morrison, 487 U.S. at 679.

Here, the question is whether the jurisdiction over Defendants granted by the Appointing Division‘s September 2009 order was demonstrably related to the facts that gave rise to the original grant of jurisdiction in the January 2009 order. Masaniai was first appointed independent prosecutor on January 12, 2009, to investigate and prosecute employees of the Attorney General‘s Office accused of stealing money used to procure CIs. As the investigation progressed, more information and alleged wrongdoing was revealed, including the case of the fraudulent driver‘s license belonging to [Rosemarie] Huni. During the course of the Huni investigation, it was discovered that Defendant Ripley allegedly forged the driver‘s license in exchange for money. Further investigation revealed that Fuiava allegedly tampered with evidence relating to the case and allegedly attempted to hinder the investigation and prosecution of the case. It appears that the allegations against Defendants of forgery, tampering with evidence, and hindering prosecution all stemmed from the initial investigation of the Attorney General‘s Office employees who allegedly stole money to procure CIs. The Appointing Division did not provide jurisdiction over the instant case to the independent prosecutor out of thin air. Rather, as the investigation of the employees of the Attorney General‘s Office expanded, so did the jurisdiction of the independent prosecutor to include the current related case. Defendants here have failed to prove that the September 28, 2009 expansion of jurisdiction was not demonstrably related to the initial investigation of the fraudulent procurement of the CIs. Moreover, any claim that Defendants are not covered by the IP Act is without merit because Defendants are clearly public officials as contemplated by the IP Act. See A.S.C.A. § 4.0801(b).

Defendants try to emphasize that the original January 2009 appointment of the independent prosecutor was properly made pursuant to a request of the Attorney General, but the September 2009 expansion of jurisdiction was improper because it was not specifically requested by the Attorney General. Accepting Defendants‘ argument would defeat the purpose of the IP Act. The IP Act provides for an independent prosecutor in instances when the Attorney General‘s Office may be unable to impartially investigate and prosecute a matter. Additionally, as discussed above, the IP Act requires the Attorney General to recuse himself in instances of a personal or financial conflict. Requiring the Attorney General to make a personal request for an independent

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prosecutor in all instances would defeat the IP Act‘s provision for an independent prosecutor in cases of a conflict of interest with the Attorney General.

We hold the Appointing Division‘s September 28, 2009 expansion of jurisdiction to be constitutional.

Order

Defendants‘ joint motion to dismiss is denied. It is so ordered.

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Cite As: Pulu v. Nat’l Pac. Ins. Co., Ltd., CA No. 27-11, slip op. at [page number] (Trial Div. May 10, 2013)

PULU AE AE JR., Plaintiff,

v.

NATIONAL PACIFIC INSURANCE COMPANY, LTD., Defendant.

High Court of American Samoa Trial Division

CA No. 8-11

May 10, 2013

[1] The doctrine of res ipsa loquitur applies when an accident‘s nature is such that past experience has shown that it probably resulted from someone‘s negligence and that the defendant is probably responsible.

[2] Res ipsa loquitur is applicable when (1) the event is of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it was caused by an agency or instrumentality within the exclusive control of the defendant; (3) it was not due to any voluntary action or contribution on the part of the plaintiff.

[3] The doctrine of res ipsa loquitur, when applicable, merely establishes a permissive inference of negligence which the fact finder is not required to adopt.

[4] Destruction of property by fire generally does not raise the presumption of negligence for res ipsa loquitur purposes, either in the management of the fire or in the alleged kindling.

Before: RICHMOND, Associate Justice; and MAMEA, Associate Judge.

Counsel: For Plaintiff, Charles Ala‘ilima For Defendant, David Vargas

OPINION AND ORDER

Plaintiff Pulu Ae Ae Jr. (―Pulu‖) filed the instant action against Defendant National Pacific Insurance Company, Ltd. (―NPI‖) after a fire destroyed Pulu‘s residence. Trial was held on July 9-10, 2012.

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Background

On the morning of May 29, 2009, a fire broke out on the second floor of David (Tavita) Pereira‘s (―Pereira‖) family home in Pago Pago. At the time of the fire, Pereira‘s son, David Pereira, Jr. (―David, Jr.‖), and Pereira‘s nephew, Miracle Ae (―Miracle‖), were inside the home. A nearby resident made the call for emergency assistance, and police officers arrived on the scene shortly thereafter.

[**2**] David Jr. stated to authorities that he remembered smelling something similar to burning rubber, and so he stepped outside and looked upstairs where he saw that the second floor of the house was on fire. Pereira and his daughter, Serah Pereira, were the only people who had the key to the upstairs portion of the building, so David Jr. initially had difficulty gaining entry to the second floor. David Jr. eventually attempted to put out the fire with water but was unable to do so. Miracle told the authorities that he thought he smelled gas before he went upstairs and tried to help David Jr. extinguish the flames.

Serah Pereira (―Serah‖) testified at trial that the conditions on the second floor of the Pereira building were not good, specifically noting termite damage and exposed wiring upstairs. She allegedly may have told her father of these problems prior to the fire, but he never remedied them.

Pereira himself testified and stated that Serah never mentioned electrical or other problems with the upstairs portion of the building.

Agava‘a Afalava (―Afalava‖), a former fireman, testified that he could not pinpoint the exact source of the fire. Mr. Afalava did believe that the fire originated near the rear portion of the second floor. Fred Niedo (―Niedo‖), an electrical engineer, also testified that he could not determine [**3**] a cause of the fire. Niedo stated that he could not conclusively state that the fire was electrical in origin.

The Pulu communal family home was located directly behind the Pereira home at the time the fire started. The Pulu home suffered extensive damage as a result of the spreading fire from the Pereira home. Pulu testified as to the damages incurred by his family‘s communal home, as well as his belief that the fire started because of electrical problems on the second floor of Pereira‘s building.

At the time of the fire, Pereira was the named insured under a policy issued by NPI. The NPI policy insured Pereira for fire damage to his home and included liability protection which covered him for up to $100,000 on claims made upon him as a result of accidents at the house which cause property damage. Pulu brought this action against NPI directly as a third-party beneficiary of Pereira‘s contract, seeking to

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recover for damages incurred by his family‘s communal home as a result of the fire that started in the Pereira building.

Discussion

Pule claims that there were no eyewitnesses to the beginning of the fire, and the fire itself destroyed much of the evidence of the fire‘s cause. Accordingly, Pule contends that res ipsa loquitur applies to the instant case, creating an inference of Pereira‘s negligence. Pule then goes on to argue [**4**] that he presented sufficient evidence of the fire‘s cause to infer Pereira‘s negligence, and thus, NPI‘s liability. David Jr. stated that before he discovered the fire he noticed the smell of burning rubber coming from upstairs. He was unable to initially enter the upstairs portion of the building because he did not have a key for immediate access. Serah, one of two people with access to the upstairs portion of the building, testified that the second floor was in poor condition. She specifically stated that the upstairs was termite-damaged and that there was exposed wiring present. Even though fire and engineering officials were unable to pinpoint the exact cause of the fire, Pulu argues that the evidence presented at trial is sufficient for the doctrine of res ipsa loquitur to apply and for an inference of Pereira‘s negligence to be created. Pulu claims that the upstairs wiring, rotting walls and floor, and the smell of burning rubber strongly indicate that the fire was electrical in origin. According to Pulu, Pereira knew of these conditions, and his negligence in failing to remedy them was the cause of the fire, and ultimately, the damage to the Pulu communal family residence.

[1][2][3] The doctrine of res ipsa loquitur applies when an accident‘s nature is such that past experience has shown that it probably resulted from someone‘s negligence and that the defendant is probably responsible. Seva`aetasi v. Am. Samoa [**5**] Power Authority, 5 A.S.R.3d 91, 93 (Trial Div. 2001). Res ipsa loquitur is applicable when (1) the event is of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it was caused by an agency or instrumentality within the exclusive control of the defendant; (3) it was not due to any voluntary action or contribution on the part of the plaintiff. Lang v. Am. Samoa Gov’t, 1 A.S.R.3d 148, 152 (Trial Div. 1997). The doctrine of res ipsa loquitur, when applicable, merely establishes a permissive inference of negligence which the fact finder is not required to adopt. Seva`aetasi, 5 A.S.R.3d at 93.

[4] In the matter at bar, there is insufficient evidence to create the inference of negligence sought by Pulu. Destruction of property by fire generally does not raise the presumption of negligence for res ipsa loquitur purposes, either in the management of the fire or in the alleged kindling, on the part of Defendant. See Appalachian Insurance Co. v. Knutson, 242 F.Supp. 226, 239 (W.D. Mo. 1965); see also Blair v.

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Saguaro Lake Development Co., 49 P.2d 512, 516 (Ariz. App. 1972)(holding that fire is not the type of accident which results only from someone‘s negligence). The fact that there may have been exposed wiring and termite damage on the second floor does not create a presumption of negligence on Pereira‘s part. Even if there was exposed wiring on the second floor, Pulu fails to adequately demonstrate how such exposed wiring would lead to the start of a fire on the second floor. And assuming that the problem was indeed caused by an electrical problem, this Court fails to see how such an electrical problem was Pereira‘s fault. An electrical problem could have caused the fire without any negligence on Pereira‘s part. In any event, it is unnecessary for this Court to provide alternate theories on the fire‘s origin. See Blair, 495 P.2d at 516. Pulu has failed to establish that res ipsa loquitur applies to the instant case, and judgment must be entered in NPI‘s favor.

Order

Judgment shall be entered for Defendant National Pacific Insurance Company, Ltd. It is so ordered.

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Cite As: Am. Samoa Gov’t v. Tinitali, CA No. 35-12, slip op. at [page number] (Trial Div. May 14, 2013)(order den. mot. to dismiss)

AMERICAN SAMOA GOVERNMENT, Petitioner,

v.

WORKER’S COMPENSATION COMMISSIONER, PETER TINITALI, Respondents.

High Court of American Samoa Trial Division

CA No. 35-12

May 14, 2013

[1] All statutory construction cases begin with the language of the statute. The inquiry ceases if the statutory language is unambiguous and the statutory scheme is coherent and consistent.

[2] The Workmen‘s Compensation statute does not contain language that precludes a party from filing a complaint for injunctive relief after the Administrative Law Judge renders a decision but before the original of the ALJ‘s order is filed with the Workermen‘s Compensation Commission.

[3] Allowing premature filings while retaining jurisdiction is not unusual, as courts generally seek to avoid dismissals based on technicalities.

[4] In other jurisdictions, a premature appeal taken from an order that is not yet final but which is followed by a final order, ripens into an appealable order in the absence of a showing of prejudice to the opposing party.

[5] A complaint for injunctive relief filed after the Administrative Law Judge issues its decision, but before the original order is filed with the Workmen‘s Compensation Commission, ripens once the original order is filed with the Commission.

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Before PATEA, Acting Associate Justice; and LOGOAI, Chief Associate Judge.

Counsel: For Petitioner, Michael L. Iosua, Assistant Attorney General, and Marian Rapoza, Assistant Attorney General For Respondent Tinitali, Roy J.D. Hall, Jr. For Respondent Commissioner, Sharron Rancourt

ORDER DENYING MOTION TO DISMISS

Background

Respondent Peter Tinitali (―Tinitali‖) filed a workmen‘s compensation claim with the Workmen‘s Compensation Commission (the ―Commission‖), which was referred to the Administrative Law Judge (the ―ALJ‖). On November 16, 2011, the ALJ determined that Tinitali suffered an injury pursuant to A.S.C.A. § 32.0502(i), and rendered judgment in favor of Tinitali. That same day, a copy of the compensation order was filed with the Commission. [**2**]

On August 27, 2012, the ALJ filed the same compensation order with the Commissioner, after Tinitali brought to the ALJ‘s attention that the compensation order had to be filed with the Commissioner in compliance with A.S.C.A. § 32.0650.

On September 17, 2012, the Petitioner (―ASG‖) filed a verified complaint for injunctive relief to enjoin enforcement of the ALJ order. It was later discovered that the compensation order that was filed with the Commissioner on August 27, 2012 was also a copy. The original of the ALJ‘s compensation order was finally filed with the Commissioner on January 8, 2013.

Discussion

Respondent Tinitali moves this court to dismiss this action on the ground that the Court lacks jurisdiction under A.S.C.A. §§ 32.0650-0652, which directs compensation orders to be filed with the Office of the Commissioner, inter alia. Tinitali argues that ASG prematurely filed its complaint for injunctive relief and failed to re-file or amend the complaint within 30 days after the ALJ filed the original order with the Commission.

[1] ―As in all statutory construction cases, we begin with the language of the statute . . . . The inquiry ceases if the statutory language is

 Honorable Elvis R. Pila Patea, Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior.

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unambiguous and the statutory scheme is coherent and consistent.‖ Stowers v. Am. Samoa Gov’t, 7 A.S.R.3d 16, 24 (App. Div. 2003) (quoting Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002)). Furthermore, ―[a]bsent a [**3**] clearly expressed legislative intent to the contrary, the language must ordinarily be regarded as conclusive.‖ Am. Samoa Gov’t v. Williams, 4 A.S.R.3d 140, 141 (Trial Div. 2000) (quoting Kaiser Aluminum v. Bonjorno, 494 U.S. 827, 835 (1990)).

[2] Upon review of A.S.C.A. § 32.0650 et seq., we find no language in the statute that precludes a party from filing a complaint for injunctive relief after the ALJ renders a decision but before the original of the ALJ‘s order is filed with the Commission. Specifically, A.S.C.A. § 32.0651 states that ―[a] compensation order becomes effective when filed, in the Office of the Commissioner and, unless proceedings for the suspension or setting aside of such order are instituted, becomes final at the expiration of the thirtieth day thereafter.‖ A.S.C.A. § 32.0651. The statute discusses when an order becomes effective and when it becomes final; however, it does not contain any language requiring a complaint for injunctive relief to be filed only after the original compensation order is filed. Moreover, A.S.C.A. § 32.0652 allows any party in interest to challenge ―...a compensation order...through injunction proceedings... instituted in the High Court...‖ A.S.C.A. § 32.0652. Once again, the statute does not contain any language requiring a complaint for injunctive relief to be filed only after the original compensation order is filed. [**4**]

[3] In addition, we are cognizant that allowing ―premature filings‖ while retaining jurisdiction is not unusual, as courts generally seek to avoid dismissals based on technicalities. See Randall v. Am. Samoa Gov’t, 28 A.S.R.2d 70, 72 (Trial Div. 1995) (finding it improper to allow a technicality to deny substantive rights). Notably, the Appellate Division of the High Court avoids such frowned-upon dismissals by allowing notices of appeals to be filed ―after the announcement of a decision or order but before the entry of the judgment or order appealed from.‖ A.C.R. 4(a)(2). The advisory committee notes (―ACN‖) for the federal counterpart of A.C.R. 4(a)(2) makes clear that the rule was amended to avoid the loss of the right to appeal due to the premature filing of a notice of appeal. See Fed. R. App. Pro. 4 advisory committee‘s notes. The ACN further highlights the fact that courts of appeals have generally held premature appeals effective. Id; see e.g. In re Grand Jury Impaneled January 21, 1975, 541 F.2d 373, 376-77 (3d Cir. 1976) (although appeal was filed prior to the entry of the court‘s written order and ―technically premature,‖ the court‘s order was appealable); Hodge v. Hodge, 507 F.2d 87, 89 (3d Cir. 1976) (―So long as the order is an appealable one and the non-appealing party is not prejudiced by the prematurity, however, the court of appeals should proceed to decide the

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case on the [**5**] merits, rather than dismiss on the basis of such a technicality.‖).

[4] Furthermore, other jurisdictions have held that a premature appeal taken from an order that is not yet final but which is followed by a final order, ripens into an appealable order in the absence of a showing of prejudice to the opposing party. See United States v. Hashagen, 816 F.2d 899, 902 (3d Cir. 1987); Richerson v. Jones, 551 F.2d 918, 922 (3d Cir. 1977) (finding a premature appeal becomes operative upon entry of final order and in absence of prejudice to the opposing party); Eason v. Dickson, 390 F.2d 585, 588 (9th Cir.), cert. denied, 392 U.S. 914 (1968). In Khan v. AG of the United States, 691 F.3d 488, (3d Cir. 2012), the court maintained jurisdiction and denied a motion to dismiss a petition for review, where the petition was filed in anticipation of the agency‘s decision. The court reasoned that because the movant did not suffer prejudice and because the court had not yet taken action on the merits of the appeal, the premature petition for review ripened once the agency issued a final order. Id. at 493. The Khan court also stated that ―[w]e see no reason to treat premature petitions for review from final orders of [an agency] . . . differently than we have treated premature notices of appeal in other types of cases.‖ Id. at 494. [**6**]

[5] Based on the plethora of case law in other jurisdictions finding premature appeals effective, and finding no prejudice to Respondents,1 we too decline to elevate a mere technicality above the more substantive issues involved, as well as the right of the parties to have their dispute resolved on the merits. See Lazy Oil Co. v. Witco Corp., 166 F.3d 581, 585 (3d Cir. 1999). Accordingly, we rule that the complaint for injunctive relief filed after the ALJ issued its decision, but before the original order was filed with the Commission, ripened once the original order was filed with the Commission. Therefore, this court has jurisdiction over the ripened complaint for injunctive relief.

Order

Based on the foregoing, Respondent Tinitali‘s motion to dismiss is denied. It is so ordered.

1 Respondents did not allege or argue that they suffered any prejudice. Nor is there anything in the record to suggest prejudice.

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Cite As: Am. Samoa Gov’t v. Barlow, CR No. 26-12, slip op. at [page number] (Trial Div. May 30, 2013)(order den. def.‘s mot. to dismiss)

AMERICAN SAMOA GOVERNMENT, Plaintiff,

v.

JAMES BARLOW, Defendant.

High Court of American Samoa Trial Division

CR No. 26-12

May 30, 2013

[1] Trial judges have wide discretion in determining whether an accused's speedy trial right has been abridged.

[2] The Court may consider the following factors articulated by the U.S. Supreme Court: (i) length of pretrial delay; (ii) reason(s) for delay; (iii) defendant's assertion of his speedy trial right; and (iv) the degree of prejudice to the defendant.

[3] In determining whether a delay is presumptively prejudicial when considering a defendant‘s speedy trial rights, courts take into consideration the nature and complexity of the crime or crimes alleged.

[4] Unintentional delays caused by overcrowded court dockets or understaffed prosecutors are among the factors to be weighed less heavily than intentional delay, calculated to hamper the defense, in determining whether the Sixth Amendment has been violation, but . . . they must nevertheless be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.

[5] When determining the reasons for delay, the court will also review delays brought on by the defendant's pretrial motions, requests for continuances, and discovery requests.

[6] The appropriate time to assert the right to a speedy trial is usually at the time the trial date is set.

[7] Courts will not entertain deprivation of speedy trial claims in situations where the defendant could have prevented the delay from occurring but did not do so.

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[8] There are three interests which the speedy trial right was designed to protect: (i) oppressive pretrial incarceration; (ii) anxiety and concern of the accused; and (iii) the possibility that the defense will be impaired.

[9] To establish a prosecutorial misconduct violation under Brady, the claimant must demonstrate (1) that the prosecution suppressed evidence (2) that was favorable to the appellants or exculpatory and (3) that the evidence was material.

[10] The government is not obligated under Brady to furnish a defendant with information which he already has or, with any reasonable diligence, he can obtain himself.

[11] The government is not required to disclose information that it does not possess or of which it is not aware.

Before KRUSE, Chief Justice; and LOGOAI, Chief Associate Judge.

Counsel: For Plaintiff, Julie Pasquale, Assistant Attorney General For Defendant, Mark F. Ude

ORDER DENYING DEFENDANT‘S MOTION TO DISMISS

Defendant James Barlow ("Defendant") filed a motion to dismiss with prejudice for violation of constitutional rights and prosecutorial misconduct. For the reasons set forth below, Defendant's motion is denied.

Background

Defendant was charged in a 19-count Information, including two counts of Sodomy with a Child, one count of Deviate Sexual Assault with an Incapacitated Person, two counts of Deviate Sexual Assault with a Child, two counts of Sexual Abuse in the First Degree with a Child, three counts of Furnishing Pornographic Materials to a Minor, three counts of Aiding a Child to Possess or Consume Alcohol, three counts of Endangering the Welfare of a Child, one count of Driving While Under the Influence of Alcohol, one count of Careless Driving, and one count of Non-Possession of Driver's License. The Information was [**2**] filed with the High Court on March 16, 2012. Defendant's arraignment took place on March 19, 2012, where the Court explicitly informed the parties that the deadline for filing pretrial motions would be May 7, 2012. On April 4, 2012, Defendant submitted discovery requests to the American Samoa Government ("ASG" or the "government"). On May 7, 2012, Defendant moved to continue the pretrial conference set for that day. The Court granted the continuance on the condition that Defendant

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file a waiver of a speedy trial. Despite the Court's granting of the continuance in reliance of Defense counsel's assent, Defendant has yet to file a waiver of a speedy trial.

The matter then lay dormant for over eight months until January 23, 2013, when the government finally moved to set this matter for pretrial conference. About one month later, on February 20, 2013, Defendant filed a motion for sanctions for alleged discovery violations. A pretrial conference was held on February 22, 2013, where the prosecutor, Deputy Attorney General Mitzie J. Folau ("DAG Folau"), addressed Defendant's motion for sanctions and contended that she emailed the discovery to Defendant's counsel in May 2012. The matter was then set for trial on November 18, 2013, neither party objecting.

Defendant's motion for sanctions came on for hearing March 20, 2013, which the Court ultimately denied. At the hearing, DAG Folau explained that she handed defendant's counsel a hardcopy of the police report when it came to her attention that he did not receive the report via email. DAG Folau also expressed her [**3**] willingness to allow Defendant's counsel to view all of the documents she had on file relating to the instant matter. At the proceeding, the Court reminded the parties that trial had been set for November 18, 2013; again, neither party objected to the trial date.

That same day, Defendant filed a motion to dismiss in which he first brought up the issue of speedy trial rights. The motion also urged dismissal on grounds of prosecutorial misconduct. The parties appeared for hearing on the instant motion on April 29, 2013, both counsel appearing.1

Discussion

Defendant is charged with multiple felonies and misdemeanors involving minor victims, most of which are sexual in nature. Defendant was unable to post bail, which was set at a reasonable amount of $100,000 for a 19-count Information inclusive of multiple serious sexually-related charges involving minor victims, and has been in pretrial confinement since then.

I. Sixth Amendment Right to Speedy Trial

Based on what we can surmise from Defendant's motion, Defendant contends that his Sixth Amendment right to speedy trial has been violated due to the government's failure to promptly provide him with

1 Assistant Attorney General Julie Pasquale appeared on behalf of DAG Folau.

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requested discovery and its failure to reschedule a pretrial conference within a reasonable time.

[1]-[2] Pursuant to the Sixth Amendment of the American Samoa [**4**] Constitution, "In all criminal prosecutions, the accused shall have the right to a speedy and public trial. . . ." REV. CONST. AM. SAMOA amend. VI.; see also A.S.C.A. § 45.0502(8). Trial judges have wide discretion in determining whether an accused's speedy trial right has been abridged. See United States v. Smith, 576 F.3d 681, 689 (7th Cir. 2009); United States v. Carruthers, 458 Fed. Appx. 811, 816 (11th Cir. 2012). This determination is made on an ad hoc basis. Am. Samoa Gov't v. Majhor, 7 A.S.R.3d 147, 148 (Trial Div. 2003). The Court may consider the following factors articulated by the U.S. Supreme Court: (i) length of pretrial delay; (ii) reason(s) for delay; (iii) defendant's assertion of his speedy trial right; and (iv) the degree of prejudice to the defendant. Id. (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). No one factor is conclusive, but the least compelling is the length of delay. State v. Parker, 116 Ariz. 3, 8 (1977) (citing State v. Wright, 113 Ariz. 313, 553 P.2d 667 (1976)). Moreover, based on the draconian remedy of dismissing all charges against an accused due to speedy trial rights, seriousness of the charges alleged is another consideration within the speedy trial calculus. See discussion infra.

A. Length of the Delay

[3] "A threshold showing that the length of delay is presumptively prejudicial to the defendant usually triggers the need to consider the remaining factors." Majhor, 7 A.S.R.3d at 148 (citing Barker, 407 U.S. at 530). In general, a one year [**5**] delay has been viewed as presumptively prejudicial. Doggett v. United States, 505 U.S. 647, 652 n.1 (1992). However, in determining whether a delay is presumptively prejudicial, courts take into consideration the nature and complexity of the crime or crimes alleged. Cain v. Smith, 686 F.2d 374, 381 (6th Cir. 1982); United States v. Baumgarten, 517 F.2d 1020, 1024 (8th Cir.) cert. denied, 423 U.S. 878 (1975); Barker, 407 U.S. at 531 ("delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.").

Here, Defendant was arrested on March 8, 2012. On May 7, 2012, which was the deadline for filing pretrial motions, Defendant requested a continuance to allow the government more time to provide the defense with discovery. The continuance was for an uncertain duration based on the government providing the requested discovery. In such situations, the date that the continuance is ordered to the first date for which trial is subsequently set is generally excluded from the period of delay. State v. Pomeroy, 18 Wash.App. 837, 842 (1977). Other jurisdictions make clear that when defendants or their counsel request a continuance, the time

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limitations on the speedy trial rule are no longer applicable. Llano v. State, 271 So.2d 34, 35 (Fla. Dist. Ct. App. 1972); State ex rel. Butler v. Cullen, 253 So.2d 861, 863 (Fla. 1971) ("When the continuance was granted, [**6**] the time limitations in the rule were no longer applicable").2 Taking into consideration Defendant's request for a continuance and the serious nature of the charges against him, the delay is less considerable.

B. Reasons for the Delay

[4] "Unintentional delays caused by overcrowded court dockets or understaffed prosecutors are among the factors to be weighed less heavily than intentional delay, calculated to hamper the defense, in determining whether the Sixth Amendment has been violation, but . . . they must nevertheless . . . be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant." Strunk v. United States, 412 U.S. 434, 438 (1973).

We recognize that Defendant's request for a continuance stemmed from the prosecutor's delay in providing requested discovery documents. We further recognize that it was the prosecutor's responsibility to put this matter back on calendar for a pretrial conference. However, we believe that the delay caused by the government was unintentional, albeit irresponsible and negligent. The prosecutor's negligent delay weighs against the government and is part of our consideration.

[5] When determining the reasons for delay, the court will also review delays brought on by the defendant's pretrial motions, [**7**] requests for continuances, and discovery requests. See United States v. Avalos, 541 F.2d 1100, 1114 (5th Cir. 1976); State v. Pomeroy, 18 Wash.App. 837, 842 (1977); State v. Yudichak, 151 Vt. 400, 405 (1989) (excluding from computation the delays attributable to pretrial motions made by defense). Delays brought on by motions to dismiss for lack of a speedy trial will also be reviewed. See Id.; State v. French, 152 Vt. 72, 76-77 (1989), overruled on other grounds by State v. Brillon, 183 Vt. 475 (2008).

Here, the record of proceedings from May 7, 2012, clearly indicates that defendant intended to waive his right to a speedy trial. At the hearing, Defendant requested a continuance in order to permit the government more time to provide him with requested discovery. The Court granted the continuance on the condition that he files a waiver of his speedy trial

2 This is not to say that the government is relieved of its burden in affording a defendant a speedy trial. The government always has a duty of insuring defendant's speedy trial rights. Barker, 407 U.S. at 527.

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right. Defendant's counsel agreed3 and the continuance was granted. The Court then directed the government to put the pretrial conference back on calendar after it provided the requested discovery.4 [**8**] Subsequently, there was no activity in this case for a period of about eight months until the government finally motioned to put this matter back on calendar. Defendant did not file any motions for approximately nine months--not even a motion to set this matter for pretrial conference or even a motion to compel documents which was allegedly withheld by prosecution and the basis for Defendant's request for continuance.

C. Assertion of Speedy Trial Right

[6] The Supreme Court opined that "[t]he defendant's assertion of his speedy trial right . . . is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right." Barker, 407 U.S. at 531-32. The appropriate time to assert the right to a speedy trial is usually at the time the trial date is set. Steward, 168 Mont. at 391; Am. Samoa Gov't v. Togiailua, 3 A.S.R.3d 78, 80-81 (Trial Div. 1999) (where defendant did not object to trial date at original trial setting and where defendant's homicide related offense required substantial trial preparation, defendant's speedy trial rights had not been abridged).

[7] In practice, most courts have declined to dismiss charges against a defendant based on speedy trial deprivation unless the [**9**] defendant has taken affirmative action to obtain a speedy trial. See Carruthers, 458 Fed. Appx. at 817 (opining that a defendant has some responsibility to assert a speedy trial claim, but defendant did not assert speedy trial rights until the clock expired). In other words, courts will not entertain deprivation of speedy trial claims in situations where the defendant could

3 Despite agreeing to the court's condition, Defendant's counsel has yet to file a written waiver of Defendant's speedy trial right. 4 Subsequently, after this case lay dormant for approximately nine months, Defendant argued that he did not waive his speedy trial rights and that a continuance had not been granted, notwithstanding the fact that Defendant's counsel conceded at the May 3, 2013 hearing that the pretrial conference set for May 2012 was taken off calendar. Such arguments lead us to believe that Defendant is attempting to capitalize on the delay caused, in part, by his own motion and inaction, as part of a trial tactic. Most courts refuse to permit the defense to take advantage of delay generated by its pretrial motions. See e.g., Llano v. State, 271 So.2d 34, 35 (Fla. Dist. Ct. App. 1972) ("There is no doubt that the constitutional right to a speedy trial may be waived by conscious decisions of trial strategy."); Zerschausky v. Beto, 396 F.2d 356, 359 (5th Cir. 1968) ("Constitutional rights may be waived by conscious decisions of trial strategy."); State v. Luck, 336 So.2d 464 (Fla. Dist. Ct. App. 1976).

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have prevented the delay from occurring but did not do so. Compare State v. Steward, 168 Mont. 385, 391 (1975) ("The general rule remains that an accused must take some affirmative action to obtain a trial to be entitled to a discharge for delay."), and Barker, 407 U.S. at 530 (noting that the failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial), with Smith, 686 F.2d at 384 (defendant "forcefully raised" speedy trial rights on at least five different occasions and "displayed dogged persistence" in reasserting his rights, placing prosecutor and court on notice of his desire for a speedy trial even before arraignment). Thus, it is incumbent on the defendant to assert his right to a speedy trial early in the proceedings; otherwise, it will militate against the claim that his rights have been abridged. See Smith, 686 F.2d at 384 ("The timeliness, vigor, and frequency with which the right to a speedy trial is asserted are probative indicators of whether a defendant was denied needed access to a speedy trial over his objection."); United States v. Netterville, 553 F.2d 903, 914 (5th Cir. 1977); McDavid v. State, 57 Ala. App. 64, 66 (Ala. Crim. App. 1976) (no demand for speedy trial had been made [**10**] until trial and therefore the court did not apply Barker).

In Avalos, one appellant Castrillon first raised the issue of speedy trial in his motion to dismiss almost eleven months after his arrest. Id. at 1115. The second appellant first raised the issue by adopting Castrillon's motion some months later. Id. Neither appellant had demanded an immediate trial. Id. Accordingly, the court stated that "the record does not show that . . . the appellants aggressively asserted that desire for speedy trial which they now urge has been thwarted. That fact will militate against a claim that a speedy trial had been denied." Id. Similar to Avalos, Defendant did not assert his speedy trial right until he filed the instant motion to dismiss on March 20, 2013, more than one year after the case was filed in the High Court.5 Furthermore, the record shows that Defendant was not overly anxious to assert his speedy trial rights. Not only did Defendant express willingness to file a waiver of the right in open court, Defendant waited approximately nine months before asserting his speedy trial rights by way of the instant [**11**] motion to

5 It is important to note that a motion to dismiss is not akin to a demand. State v. Recor, 150 Vt. 40, 43 (1988). The right to a speedy trial should be asserted in the form of a (timely) demand, as opposed to a motion to dismiss (especially one that is filed beyond the reasonable period for which a defendant should be brought to trial). Otherwise, a cunning defendant could move to dismiss without themselves being prepared for trial. State v. Unwin, 139 Vt. 186, 196 overruled on other grounds State v. Brillon, 183 Ct. 475 (2008). Moreover, a demand would give the government the opportunity to timely set a trial date, and would also prevent the prolonged incarceration of the defendant. Id.

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dismiss.6 Furthermore, when the trial date was set at a hearing held on February 22, 2013, Defendant did not assert any objections.7 In addition, at the hearing on March 20, 2013, the Court reminded the parties that trial was set for November 18, 2013. Again, Defendant did not assert any objections. Defendant's lack of vigor and long delay in asserting his right to a speedy trial weighs heavily against him and makes his showing of prejudice a rather difficult one.

D. Prejudice

[8] Although prejudice is often considered the most important factor, it is also one that is difficult to prove. Barker identified three interests which the speedy trial right was designed to protect: (i) "oppressive pretrial incarceration"; (ii) "anxiety and concern of the accused"; and (iii) "the possibility that the defense will be impaired." Barker, 407 U.S. [**12**] at 532. Barker opined that the last consideration was the most important. Id.

During oral argument and in the motion to dismiss, Defendant indicated that the delay was prejudicial for the following reasons: he is unable to earn an income, he has been subjected to abuse and assault while in custody, and that the "parties" memories of the alleged event have now faded." (Def.'s Mtn. to Dismiss, March 20, 2013). Inability to earn income during pretrial detention is an unfortunate but necessary fact of life when criminal charges are laid. This consideration, along with other countervailing considerations, is properly a matter to be had within the context of bail determinations. The extent of Defendant's pretrial detention does not of itself dilute the importance of all other countervailing considerations taken into account when setting bail. Given the nature and seriousness of the charges against Defendant, loss

6 See Jones v. Morris, 590 F.2d 684, 687 (7th Cir. 1979) (the fact that defendant asserted the right to a speedy trial some twenty months after the first indictment and more than three months after the second indictment did not weigh heavily in his favor); State v. Roy, 151 Vt. 17, 37 (1989), overruled on other grounds by State v. Brillon, 183 Vt. 475 (2008) (court declined to give weight to defendant's assertion of his right to speedy trial because he did not raise the issue until over five months after arraignment); Recor, 150 Vt. at 43 (finding that defendant failed to demand a speedy trial because his motions to dismiss began over twelve months after he was charged); State v. Unwin, 139 Vt. 186, 196 overruled on other grounds State v. Brillon, 183 Ct. 475 (2008) (the fact that the only time defendant asserted his right to a speedy trial was five months after his arrest when he moved to dismiss militated against a claim for speedy trial). 7 Defendant argues in his brief that he requested a trial date on January 23, 2012; however, this case was not filed in the High Court until March 16, 2012.

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of employment would be expected if bail conditions are not met. In addition, the allegation of assault by other prisoners is an issue for proceedings collateral to the criminal prosecution before us. As to whether Defendant would be prejudiced due to impairment of his defense, Defendant did not make a showing that any of the witnesses are now unavailable due to the delay. Nor did Defendant make a specific showing of lapsed memories. The mere possibility that parties' memories have "faded" is not sufficient. The same general observation may be made of the prosecution's witnesses. We are reluctant to specifically find [**13**] serious prejudice merely on general observations.

E. Balancing the Factors

The one year delay was not excessively long given the circumstances. As we noted above, detention is a consequence every citizen must deal with when facing criminal charges. Every accused has the right to bail. Here, Defendant was admitted to bail in the amount of $100,000, which is not unreasonably high in light of the nature and seriousness of the charges and the status of the complainants. Thus, the fact that Defendant could not meet bail set is immaterial to finding whether there was excessive delay.

In addition, while the prosecutor may have been laggard in putting this matter back on the Court's calendar, the same could well be said of Defendant. This only adds to the dubiousness of Defendant's claim that his constitutional rights have been abridged.

Furthermore, the record strongly indicates that Defendant expressed no desire for a speedy trial until he sought to take advantage of the delay by seeking a dismissal of the charges. It was the Court that first expressed concerns about Defendant's speedy trial rights when Defendant requested a continuance. Accordingly, Defendant expressly agreed in open court to file a waiver of his speedy trial rights, albeit he failed to do so. Now Defendant is attempting to use his own motion and failure to follow through on his undertaking to bootstrap his way into getting this case dismissed due to an alleged violation of his [**14**] speedy trial right. We find no undue prejudice and conclude that Defendant was not deprived of his right to speedy trial.

II. Prosecutorial Misconduct

Defendant argues that DAG Folau violated Brady v. Maryland, 373 U.S. 83 (1963), by withholding exculpatory evidence from Defendant.8

8 The Court recognizes DAG Folau may have been wanting with regard to promptly providing the defense with the requested police report. However,

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According to Defendant's counsel, the victims in this case, who are also defendants in a separate juvenile matter for underage drinking, made statements to their defense attorneys denying that anything sexual had occurred with Defendant. Defendant's counsel argued that the government received this information, but failed to provide the exculpatory evidence to the defense. The prosecutor, who was filling in for DAG Folau, responded that she thoroughly reviewed DAG Folau's file and did not find any discoverable evidence. Furthermore, the prosecutor stated that she was not previously aware that the victims in the instant case had made statements to their defense counsel in their separate juvenile proceedings regarding this case.

The main issue we must determine is whether the prosecutor had a Brady violation for failure to disclose information of statements made between the victims in this case and their public defenders in separate juvenile proceedings. The government [**15**] contends that it did not have knowledge of the statements, which may be protected under the attorney- client privilege, and that cases from juvenile proceedings may not be discoverable.

[9]-[10] To establish a Brady violation, the claimant must demonstrate "(1) that the prosecution suppressed evidence (2) that was favorable to the appellants or exculpatory and (3) that the evidence was material." United States v. Blasco, 702 F.2d 1315, 1327 (11th Cir. 1983). However, "the government is not obligated under Brady to furnish a defendant with information which he already has or, with any reasonable diligence, he can obtain himself." United States v. McMahon, 715 F.2d 498, 501 (11th Cir. 1983) (quoting Untied States v. Prior, 546 F.2d 1254, 1259 (5th Cir. 1977); accord United States v. Brown, 628 F.2d 471, 473 (5th Cir. 1980) ("In no way can information known and available to the defendant be said to have been suppressed by the Government."); United States v. Davis, 787 F.2d 1501, 1505 (11th Cir.), cert. denied 479 U.S. 852 (1986) ("the Brady rule does not apply if the evidence in question is available to the defendant from other sources."); United States v. Wilson, 901 F.2d 378, 381(4th Cir. 1990) (Brady is not available where information was available to defendant); United States v. Grossman, 843 F.2d 78, 85 (2d Cir. 1988) ("Brady does not require the government to turn over exculpatory evidence 'if defendant knew . . . the essential facts . . .'"); Lugo v. Munoz, 682 F.2d 7, 9-10 (1st cir. 1982).

[11] Furthermore, the government is not required to disclose information that it does not possess or of which it is not aware. [**16**] United as addressed in our earlier motion for sanctions, Defendant should have filed a motion to compel, which if the government was indeed withholding discoverable evidence, would have been successful. (See Order Den. Def's Mot. for Sanctions, March 22, 2013.)

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States v. Tillem, 906 F. 2d 814, 824 (2d Cir. 1990); see also United States v. Quinn, 445 F.2d 940, 943-44 (refusing to charge U.S. Attorney with knowledge of a sealed indictment); Pina v. Henderson, 757 F.2d 47, 49-50 (2d Cir. 1985) (refusing to impute knowledge of parole officer to the prosecutor); Cf. United States v. Morell, 524 F.2d 550, 555 (2d Cir. 1975) (treating DEA agent as an "arm of the prosecutor" because the agent actively participated in the investigation and sat by the prosecutor's side during most of the trial).

Here, defense counsel admitted in open court that he received the statements made by the victims to their public defenders in separate juvenile proceedings. After the hearing on this issue, we found that prosecution was not aware of these statements. The knowledge of the public defenders cannot be imputed to the government. Therefore, there was no Brady violation.

Order

For the foregoing reasons, Defendant's Motion to Dismiss is denied. It is so ordered.

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High Court of American Samoa Slip Opinions (2013)

Cite As: Sene v. Molinga, CA No. 13-13, slip op. at [page number] (Trial Div. July 8, 2013)

ALEKI SENE, Sr,, FAOA AITOFELE SUNIA, FANENE MORRIS SCANLAN, and MAGALEI LOGOVI`I, as Trustees of the American Samoa Government Employees' Retirement Fund, Board of Trustees, and as Members of the American Samoa Retirement Fund, Plaintiffs,

v.

LOLO MATALASI MOLIGA, Governor of American Samoa, Defendant.

High Court of American Samoa Trial Division

CA No. 13-13

July 8, 2013

[1] The Supreme Court has explained that where there is an office to be filled and one acting under color of authority fills the office and discharges its duties, his actions are those of an officer de facto.

[2] When one claims a right as an officer by virtue of his office he must show that he is legally entitled to act; that he is an officer de jure as well as de facto. The acts of the former are valid and effectual everywhere, for he is clothed with all the power and authority appertaining to the office, and his acts, within the limits of his authority, cannot be questioned anywhere. The acts of a de facto officer are valid only so far as the rights of the public, or of third parties having an interest in such acts, are involved.

[3] A right cannot be asserted and enforced on behalf of one who acts merely under color of office, as a de facto officer, without legal authority, as if he were an officer de jure.

[4] Under A.S.C.A. § 7.1410(b), there is no doubt that de jure Trustees enjoy certain tenure protection in the form of a fixed five-year term of office with removal by Governor for cause only. Conversely, such protection does not apply to holdover de facto Trustees.

[5] The court will not adopt a rule of statutory construction that urges interpretation of statutes according to cultural notions of consultation.

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[6] The "just cause" limitation to the Governor's removal authority under the A.S.C.A. § 7.1410 (concerning the American Samoa Government Employees Retirement Fund Board) does not in any way bind the Governor to unwillingly retain de facto Trustees who seek reappointment.

Before KRUSE, Chief Justice; FA`AMAUSILI, Associate Judge; and MUASAU, Associate Judge.

Counsel: For Plaintiff, M. Talaimalo Uiagalelei For Defendant, Elesalo V. Ale, Deputy Attorney General, and Michael L. Iosua, Assistant Attorney General

OPINION AND ORDER

Background

The American Samoa Government Employees Retirement Fund (the "Fund" or "ASGERF") was established by the Fono (Legislature) in 1971 with the enactment of A.S.C.A. § 7.1401 et seq., (the "Act"). The Act provides for a five-member board of trustees ("Trustees" or "Board") tasked with "[t]he proper administration of the fund and the direction of its policies." A.S.C.A. § 7.1410(a).

Plaintiffs Aleki Sene, Sr., Faoa Aitofele Sunia, Fanene Morris Scanlan, and Magalei Logovi`i, (together "Plaintiffs") are four serving members of the five-member Board. Plaintiffs were [**2**] duly appointed by the Governor and confirmed by the Legislature pursuant to A.S.C.A. § 7.1410(a). In accordance with the Act, each Plaintiff served a five-year staggered term of office, which expired in 2000, 2001, 2002, and 2004, respectively. However, Plaintiffs have remained on the Board and functioned as Trustees, under A.S.C.A. § 7.1411, for many years after the expiration of their respective terms.1

Apparently prompted by circulating news media accounts regarding the Defendant's filling of ASGERF board vacancies, Plaintiffs, as the Board, sent a letter dated February 13, 2013 and under signature of Plaintiff Aleki Sene, Sr., as ASGERF Chair, to Governor Lolo Moliga (the "Governor") submitting, inter alia, their list for replacement appointments to the new Board. The letter nominated the reappointment

1 Notwithstanding the Act's mandatory language requiring replacement appointments at the expiration of a board member's five-year term, prior Governors, for reasons unknown to our record, failed to so implement the Act by making replacement appointments for forwarding to previous Legislatures. See § 7.1410(b).

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of Plaintiffs, together with an unnamed individual to replace Plaintiff Magalei Logovi`i, whom we assume is not seeking reappointment. The latter's replacement was apparently made known earlier and separately to the Governor.

In a reply letter addressed to Plaintiff Sene and dated February 15, 2013, the Governor advised that he would be retaining Brant Judy and appointing four other individuals as new Trustees. On February 25, 2013, the Governor accordingly [**3**] forwarded for confirmation to the Fono his list of new appointees to the ASGERF Board, under A.S.C.A. § 7.1410(b).

Subsequently, Plaintiffs filed suit against the Governor for a preliminary injunction2 to enjoin his new appointees3 from assuming Board duties, and for declaratory relief as to Plaintiffs' status as ASGERF Trustees. Plaintiffs assert two main arguments: (i) the Governor has no just cause for removing Plaintiffs as Trustees, and (ii) the Governor's appointees are invalid because he did not "consult" with the Plaintiffs, as the Board, pursuant to A.S.C.A. § 7.1410(a). Trial was held on June 19, 2013, counsel appearing.

Discussion

Plaintiffs submit that despite the expiration of their respective terms of office, their status remain de jure pursuant to A.S.C.A. § 7.1410(b). As such, they construe § 7.1410(b) as not only mandating their being consulted by the Governor on the question of replacement board members, but that § 7.1410(a) also impels the Governor to act favorably upon Plaintiffs' nominations. Moreover, Plaintiffs seem to argue that because the Governor's removal power under § 7.1410(b) is limited to cause, his not accepting Plaintiffs' nominations and his proposed appointment of others as replacement trustees would be ultra [**4**] vires and tantamount to an unauthorized removal of Plaintiffs without cause.

I. De Jure vis a vis De Facto Status

[1]-[2] Plaintiffs' claims are entirely dependent on their threshold claim that they are each de jure ASGERF Trustees. They are not. Contrary to Plaintiffs' assertion, they each became de facto, as opposed to de jure,

2 At an inter partes hearing held June 4, 2013, we denied Plaintiffs' application for preliminary injunction, being rendered moot by a stipulation entered by Defendant. We also denied Defendant's Motion To Dismiss in favor of a fuller exposition of the facts upon trial on the merits. 3 None of whom were joined as parties herein.

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Trustees after their respective terms had ended. The Supreme Court has explained that "where there is an office to be filled and one acting under color of authority fills the office and discharges its duties, his actions are those of an officer de facto." McDowell v. United States, 159 U.S. 596, 602 (1895). See also Toilolo v. Poti, 24 A.S.R.2d 1, 2-3. Generally,

when one claims a right as an officer by virtue of his office he must show that he is legally entitled to act; that he is an officer de jure as well as de facto. The acts of the former are valid and effectual everywhere, for he is clothed with all the power and authority appertaining to the office, and his acts, within the limits of his authority, cannot be questioned anywhere. The acts of a de facto officer are valid only so far as the rights of the public, or of third parties having an interest in such acts, are involved.

Sullivan v. Weber, 86 Ill. 283, 284-85 (1877) (expressing that a de facto officer cannot claim anything for himself, and that his title may be inquired into when he is suing in his own right); accord Winstanley v. Weber, 89 Ill. 347, 348 (1878) ("where a party sues or defends in his own right as a public officer, it is not sufficient that he be merely an officer de facto . . . As an officer de facto he can claim nothing for himself."); Romero v. United States, 24 Ct. Cl. 331, 336 (1889).

[3] [**5**] Thus, a de facto officer may be protected in the good faith discharge of the duties of his office, and his acts as a public officer will be held as valid as to third-parties and the public. Dorsey v. Smyth, 28 Cal. 21, 25 (1965). However, while

[p]ublic interests require that acts of public officers, who are such de facto, should be respected and held valid as to third persons who have an interest in them, and as concerns the public, in order to prevent a failure of justice . . . it does not follow that a right can be asserted and enforced on behalf of one who acts merely under color of office without legal authority, as if he were an officer de jure.

Id. While de facto status assures Plaintiffs a defense or shield against law suits questioning their usurpation of Trustee authority, their de facto status cannot, however, serve as a sword "to secure the fruits of the usurpation and the incidents to the office." Id. In a word, Plaintiffs as de facto officers lack standing to sue.

II. Tenure

[4] Under the Act, there is no doubt that de jure Trustees enjoy certain tenure protection in the form of a fixed five-year term of office with

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removal by Governor for cause only. A.S.C.A. § 7.1410(b). Conversely, such protection does not apply to holdover de facto Trustees since the Act emphatically provides that board members' term of office "shall be five years" only, and "[a]s their terms expire, new members shall be appointed to fill vacancies." Id. This is clearly limiting language forcefully couched in the imperative. Statutory text leaves no room for Plaintiffs' contention that they somehow remain de jure [**6**]officers beyond their statutorily fixed terms.4

III. Failure to Consult

Plaintiffs argue that the Governor's appointees, even if confirmed by the Fono, are invalid because the Governor failed to consult with the Board pursuant to A.S.C.A. § 7.1410(a). Under A.S.C.A. § 7.1410(a), which governs the term of office for the Retirement Fund's Board of Trustees, "[t]he Governor, in consultation with the board will decide upon suitable candidates to fill any Board vacancy or vacancies. The Governor will choose his appointee(s) from among those individuals and send the name(s) to the Legislature for confirmation." Plaintiffs contend that the Governor is bound by the enactment's wording to appoint from the Board's recommendations.

[5] We find these arguments to be unavailing. First, we reject Plaintiffs' novel rule of statutory construction urging us to interpret statute according to cultural notions of consultation. We likewise reject Plaintiffs' urging to read the Act consistent with Plaintiff Sene's parole (and hearsay) rendition of legislative history as to then Governor Lutali's purpose behind the 1983 amendments to § 7.1410. Rather, we employ the familiar [**7**] "ordinary meaning" rule of construction as mandated by statute5 and accordingly construe the enactment for what it unequivocally and emphatically says: a trustee's term of office shall be five years, and a replacement shall be appointed to fill any vacancies. The Act clearly contemplates the consultative process to involve de jure Trustees--those whose terms have not yet lapsed--since the Act speaks only to vacancies arising with the lapsing of a staggered term. Conversely, the statute clearly did not contemplate a consultative process entailing the involvement of an entire cast of de facto board members

4 Cf. A.S.C.A. § 15.0103(b) which governs the terms of the American Samoa Power Authority board of directors. This enactment includes the holdover clause: "Incumbents may continue to serve after the expiration of a term until a successor is appointed and confirmed." The ASGERF statute does not include similar holdover language. See generally A.S.C.A. § 7.1410. 5 Cf. A.S.C.A. § 1.0106 ("Words are to be understood in their ordinary sense, except that words defined or explained are to be understood as so defined or explained.")

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arising by reason of a total failure or omission to implement the Act's provisions regarding the mandatory filling of staggered vacancies occurring from year to year.6 Second, and as alluded to above, the de facto officer doctrine centers on protecting the actions of the officer against third-party attack challenging the status of the officer. See also Burke v. Elliot, 26 N.C. 355 (1844). Here, the matter before us has nothing to do with any third-party challenges to Plaintiffs' de facto administration of the Fund. Thus, as de facto officers, Plaintiffs may not be heard "to [**8**] secure the fruits of the usurpation and the incidents to the office." Dorsey v. Smyth, 28 Cal. at 25.

[6] Therefore, we conclude that the Governor's proposal to fill Board vacancies with third-party replacements, is not in anyway curtailed by the contrary wants of Plaintiffs, serving as holdover de facto Trustees. Accordingly, the Governor's appointees forwarded to the Fono are not invalid simply by reasons of his not consulting with Plaintiffs.7 Moreover, the "just cause" limitation to the Governor's removal authority under the Act does not in anyway bind the Governor to unwillingly retain de facto Trustees who seek reappointment. Accordingly, any gubernatorial replacement appointments now pending before the Fono, shall, upon A.S.C.A. § 7.1410(b) confirmation, take office as de jure Trustees.

Order

We so declare and judgment shall enter accordingly. It is so ordered.

6 In this unique situation where the entire Board is made up of holdover Trustees, construing the Act as requiring the Governor to consult and select replacement Trustees based upon the desires of the de facto incumbents, would necessarily give unintended expansive control over the tenure of Board membership. If this practice were followed, the holdover Trustees could essentially bootstrap and conceivably keep their positions for substantial, indeed indefinite, periods of time. 7 As events unfolded, however, the Governor did in fact take into account Plaintiffs' viewpoint, as evident from the Governor's prompt February 15, 2013 letter response to Plaintiffs' missive of February 13, 2013.

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Cite As: Togiai v. Hawaiian Airlines, Inc., CA No. 101-06, slip op. at [page number] (Trial Div. July 24, 2013)(order den. def.‘s mot. to dismiss but imposing sanctions)

LISA TUATO’O TOGIAI, APOMATIGA TUATO’O, TAUTALASI TUATO’O, FA’AFETAI TUATO’O, and MOEGALAGO FAUMUINA, Plaintiffs,

v.

HAWAIIAN AIRLINES, INC., HAWAIIAN HOLDINGS, INC. and DOES I through, jointly and severally, Defendants.

High Court of American Samoa Trial Division

CA No. 101-06

July 24, 2013

[1] Rule 41(b) of the Trial Court Rules of Civil Procedure provides, in part, that for failure of the plaintiff to prosecute or comply with the rules of civil procedure or any order of court, a defendant may move for dismissal of an action or of any claim against him.

[2] Dismissal for failure to diligently prosecute is a drastic measure. In determining whether to dismiss for lack of prosecution, the facts of each individual case are important. The court must consider competing policies, such as the court‘s need to manage its docket, the public interest in expeditious resolution of the litigation and the risk of prejudice to defendants from any delay versus the law‘s strong bias in favor of disposition of claims on their merits.

[3] The five-factor test to assess the propriety of dismissal for failure to prosecute is: (1) duration of plaintiff‘s failures or a history of dilatoriness; (2) willful or bad faith conduct; (3) notice that further delays would result in dismissal; (4) prejudice to the defendant from further delay; (5) the efficacy of lesser sanctions.

[4] Where the plaintiff willfully delays prosecution for reasons other than bad faith, the proper inquiry is whether such delay is reasonably excusable in light of the circumstances. The burden is on the plaintiff of providing a reasonable excuse for the delay.

[5] Dismissals are rarely granted without adequate notice and opportunity to be heard.

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[6] Prejudice from failure to diligently prosecute comes in many forms and does not necessarily refer to irreparable harm.

[7] Involuntary dismissal of a case is a drastic measure to be used only in the most extreme circumstances. A court has the responsibility to look at whether lesser alternative sanctions will satisfy the interests of justice.

Before RICHMOND, Associate Justice; and MUASAU, Associate Judge.

Counsel: For Plaintiff, Billie L. Evans III For Defendant, Mark F. Ude

ORDER DENYING DEFENDANT‘S MOTION TO DISMISS BUT IMPOSING SANCTIONS

Before the Court is Defendants Hawaiian Airlines, Inc. and Hawaiian Holdings, Inc. (collectively ―Defendants‖) motion to dismiss for failure to prosecute, pursuant to T.C.R.C.P. 41(b). We heard the matter on April 4, 2013. For the foregoing reasons, Defendants‘ motion to dismiss is denied; however, we impose sua sponte lesser sanctions.

Background

A more detailed statement of facts can be found in this court‘s previous June 3, 2008 order granting partial summary judgment. Briefly restated, in December 2006 Plaintiffs Lisa [**2**] Tuato‘o Togiai (―Lisa‖), Apomatagi Tuato‘o (―Apomatagi‖). Tautalatasi Tuato‘o (―Tautalatasi‖), and Moegalafo Faumuina (―Moegalafo‖) (collectively ―Plaintiffs‖) filed this action against Defendants for injuries allegedly stemming from a December 15, 2004 incident in which Defendants refused Tautalatasi permission to board their airplane. The action alleged multiple claims of breach of contract, negligent infliction of emotional distress, and claims for negligence and disability discrimination.

In April 2008, Defendants moved for summary judgment. After Plaintiffs filed their opposition brief, this court issued a June 2008 order granting summary judgment on Lisa‘s breach of contract claim, Tautalatasi‘s discrimination claim, and the negligent infliction of emotion distress claims asserted by Defendants. Summary judgment was denied on Tautalatasi‘s, Fa‘afetai‘s, and Moegalafo‘s breach of contract claims and Tautalatasi‘s negligence claim.

On July 29, 2011, Defendants moved to dismiss for Plaintiffs‘ failure to prosecute their claims. After Plaintiffs filed their opposition brief, we issued an October 25, 2011 order denying dismissal but imposing

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sanctions against Plaintiffs. In this October 2011 order, the court stated that the case had been languishing for approximately five years and [**3**] that Plaintiffs had been the main cause of most of the case‘s significant delays. This Court also noted that there had been two years of inactivity after the death of Tautalatasi in September 2009. However, we ultimately decided that dismissal of the case with prejudice was too drastic a measure that was not justified by the circumstances. Therefore, we denied dismissal but awarded Defendants reasonable attorney‘s fees and costs associated with the dismissal motion. The court further ordered that Plaintiffs were to move to set a trial date or initiate their discovery requests no later than 30 days after entry of the order. If Plaintiffs initiated discovery requests within the 30-day time frame, then Plaintiffs were ordered to move to set a trial date no later than 30 days after Defendants submitted their response to Plaintiffs‘ discovery requests.

Plaintiffs issued their first set of interrogatories to Hawaiian Airlines, Inc. on November 25, 2011. These interrogatories went unanswered by Hawaiian Airlines, Inc. until January 28, 2013.

On March 7, 2013 Defendants filed another motion to dismiss for failure to prosecute. Plaintiffs filed their motion to set a trial date on March 12, 2013. Plaintiffs filed their opposition to Defendants‘ motion to dismiss on April 1, 2013. [**4**] We heard this matter on April 4, 2013, where we also set a trial date of August 5 and 6, 2013.

Discussion

In their motion, Defendants give a history of Plaintiffs‘ delays in the case at bar and specifically point to Plaintiffs‘ non-compliance with this Court‘s October 25, 2011 denying Defendants‘ initial dismissal motion. Plaintiffs filed their discovery requests on November 25, 2011, and these requests were answered on January 28, 2013. However, Plaintiffs failed to file a motion to set the trial date within 30 days of receiving an answer, in violation of the Court‘s October 2011 order. Defendants also claim that Plaintiffs have failed to pay the attorney fees mandated by the Court‘s October 2011 order. Defendants argue that this delay and defiance of the Court‘s order requires dismissal for want of prosecution.

[1] Rule 41(b) of the Trial Court Rules of Civil Procedure provides in relevant part, ―[f]or failure of the plaintiff to prosecute or comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him.‖ T.C.R.C.P. 41(b).

[2] Dismissal for failure to diligently prosecute is a drastic measure. Nat’l Credit Union Admin. Bd. v. Gurr, AP 08-05, slip op. at 6 (App. Div. Aug. 30, 2006). In determining whether to [**5**] dismiss for lack

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of prosecution, the facts of each individual case are important. Ace Novelty Co. v. Gooding Amusement Co., 664 F.2d 761, 763 (9th Cir. 1981). The court must consider competing policies, such as the court‘s need to manage its docket, the public interest in expeditious resolution of the litigation and the risk of prejudice to defendants from any delay versus the law‘s strong bias in favor of disposition of claims on their merits. Nat’l Credit Union Admin. Bd., AP 08-05, at 6. The pertinent question is whether there has been delay and prejudice to the defendant sufficient to justify a dismissal with prejudice. Mir v. Fosburg, 706 F.2d 916, 918 (9th Cir. 1983).

[3] The five-factor test that this Court has adopted to assess the propriety of dismissal is as follows:

(1) the duration of plaintiff‘s failures or a history of dilatoriness; (2) whether conduct of plaintiff was willful or in bad faith; (3) whether plaintiff had received notice that further delays would result in dismissal; (4) whether defendant was likely to be prejudiced by further delay; and (5) the efficacy of lesser sanctions.

Nat’l Credit Union Admin. Bd., AP 08-05 at 6. We will now consider these factors as they apply to the instant case. [**6**]

I. Duration of Plaintffs’ Failures or History or Dilatoriness

As noted in our October 25, 2011 order, this case has been languishing in the pre-trial stages for approximately seven years now. Plaintiffs have consistently delayed moving this case forward (a more detailed recounting of Plaintiffs‘ history of delays can be found in this Court‘s October 25, 2011 order). After Tautalatasi passed away in September 2009, there was approximately two years of inactivity by Plaintiffs. Moreover, after this Court issued its order denying Defendants‘ initial motion to dismiss, it ordered Plaintiffs to file a motion to set the trial date within 30 days of receiving answers to any discovery it propounded upon Defendants. Plaintiffs failed to do so, and apparently also have failed to reimburse Defendants for attorney‘s fees as mandated in this Court‘s previous order. It is evident that Plaintiffs have been the cause of the majority of this case‘s delays, and still continue to delay this case to this very day.

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II. Presence of Willful or Bad Faith Conduct to Delay on Plaintiffs’ Part

[4] Where the plaintiff willfully delays prosecution for reasons other than bad faith, the proper inquiry is whether such delay is reasonably excusable in light of the circumstances. The burden is on the plaintiff of providing a reasonable excuse [**7**] for the delay. See Laurino v. Syringa Gen. Hosp., 279 F.3d 750, 753 (9th Cir. 2002).

Here, we previously found that Plaintiffs‘ failure to timely respond to discovery requests were inexcusable and that the death of Tautalatasi did not justify the significant delays on Plaintiffs‘ counsel‘s part. However, we did not find evidence that Plaintiffs willfully delayed this case out of any malice or bad faith effort to obstruct Defendants‘ case. Plaintiffs continued delays after our October 25, 2011 again do not appear to be motivated out of any bad faith. Plaintiffs filed their motion to set a trial date approximately 40 days after receiving the answers to their discovery requests, instead of 30 days as ordered by this Court. This delay appears to have occurred more as a result of Plaintiffs‘ counsel‘s carelessness and inattention, which has been on full display throughout this litigation, as opposed to any desire to confound Defendants‘ case.

III. Notice to Plaintiffs That Further Delay Would Result in Dismissal

[5] Dismissals are rarely granted without adequate notice and opportunity to be heard. Link v. Wabash R.R. Co., 370 U.S. 626, 632 (1962). As we stated in our previous order, there was no indication that Defendants previously warned Plaintiffs of their intention to seek dismissal for failure to prosecute. However, [**8**] Plaintiffs were certainly on notice that dismissal was a possibility for their continued failure to prosecute after this Court‘s previous order. We therefore find that Plaintiffs were adequately notified of the possibility of dismissal in this case.

IV. Prejudice to Defendants

[6] ―Unreasonable delay creates a presumption of prejudice to defendant‘s case.‖ Estate of Pua’auli v. LBJ Tropical Medical Center, 4 A.S.R.3d 103, 105 (Trial Div. 2000). Prejudice comes in many forms and does not necessarily refer to irreparable harm. Andrews v. Gov’t of the Virgin Islands, 132 F.R.D. 405, 412 (D.V.I. 1990). We previously found that Plaintiffs‘ willful delay prejudiced Defendants because the death of Tautalatasi prevented Defendants from being able to cross- examine him at trial. However, we did not believe that the harm suffered irredeemably compromised Defendants‘ case. The same holds true now. While Plaintiffs‘ delays have certainly prejudiced Defendants, we fail to

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see how their delay in filing the motion to set a trial date has irreparably harmed Defendants‘ case.

V. Efficacy of Lesser Sanctions

[7] Involuntary dismissal of a case is a drastic measure to be used only in the most extreme circumstances. Sturgeon v. Airborne Freight Corp., 778 F.2d 1154, 1160 (5th Cir. 1985). A [**9**] court has the responsibility to look at whether lesser alternative sanctions will satisfy the interests of justice. Sturgeon, 778 F.2d at 1159.

As noted above, while Plaintiffs‘ delays prejudiced Defendants‘ case, it did not irreparably harm it. Dismissing the matter with prejudice would be an extreme measure, and it would not further the interests of justice. However, as we noted in our previous order, it is in the public interest that the judiciary remain efficient and effective. Therefore, instead of dismissing this matter, we believe that justice would be better served by imposing the lesser sanctions set forth below.

Order

Defendants‘ Motion to Dismiss is denied. However, we again award sua sponte against Plaintiffs reasonable attorney‘s fees and costs incurred by Defendants in connection to this dismissal motion. Defendants shall provide proof by affidavit of such fees and costs for payment by Plaintiffs.

It is so ordered.

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Cite As: Ala’ilima, et al. v. Am. Samoa Gov’t, et al., CA No. 22-09, slip op. at [page number] (Trial Div. Aug. 15, 2013)

BIRDSALL ALA’ILIMA, for himself and his minor daughter MARLENE ALIA ALA’ILIMA, Plaintiffs,

v.

AMERICAN SAMOA GOVERNMENT, MIKE SALA, FREDERICK O’BRIEN, HAWAIIAN AIRLINES and DOES I-XX, Defendants.

High Court of American Samoa Trial Division

CA No. 22-09

August 15, 2013

[1] In a civil case, an allegation that the plaintiff‘s sister had her luggage searched and that there was a ―stop order‖ placed on loading any of the plaintiff‘s luggage on to an airplane constituted circumstantial evidence that was insufficient to find a violation of the 4th Amendment to the U.S. Constitution.

[2] Defamation requires: (1) a false and defamatory statement concerning the plaintiff; (2) that is unprivileged; (3) made to a third party; (4) with fault amounting to at least negligence by the publisher; (5) and actionability of the statement irrespective of special harm or because of the existence of special harm caused by publication.

[3] Slander is a false and unprivileged publication, other than libel, that a person is charged with a crime or has been indicted, convicted or punished for a crime, which tends to injure him in respect to his profession or causes actual damage.

[4] As concerns slander and defamation, a communication made in the proper discharge of an official duty is considered to be a privileged publication.

[5] Comments to a newspaper that could be interpreted as blaming a single individual for American Samoa‘s financial problems constituted an opinion that was not meant to be taken seriously and were therefore not slanderous. The average person would not believe the comments.

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[6] Comments that were not defamatory but were nonetheless malicious and damaged the plaintiffs dignity as an individual – as evidenced by his subsequent failure to secure employment – Article I, Section Four of the American Samoa Constitution.

[7] Punitive damages may be appropriate where malicious comments damaged the dignity of the individual pursuant to a violation of Article I, Section Four of the American Samoa Constitution.

[8] The Government Tort Liability Act (―GTLA‖) only provides for limited waiver of immunity, and specifically preserves immunity in several instances where a governmental employee acts without due care. Therefore, where an ASG employee was liable for a violation of Article I, Section Four of the American Samoa Constitution, for damaging comments made about the plaintiff, ASG was not liable for the employee‘s actions under the GTLA.

Before RICHMOND, Associate Justice; MAMEA, Associate Judge; and MUASAU, Associate Judge.

Counsel: For Plaintiff, Charles V. Ala‘ilima For Defendants, Michael Iosua and Eleasalo Ale, Assistant Attorneys General

OPINION AND ORDER

Plaintiffs Birdsall Ala‘ilima (―Birdsall‖) for himself and on behalf of Marlene Alia Ala‘ilima (―Marlene‖), his minor daughter, filed a Complaint against Defendants American Samoa Government (―ASG‖), Mike Sala (―Sala‖) and Frederick O‘Brien (―O‘Brien‖) (collectively ―Defendants‖), as well as Hawaiian Airlines (―Hawaiian‖) in April 2009, alleging a variety of bases for recovery of money damages.

Birdsall was a former ASG employee as the Homeland Security Advisor in the Governor‘s Office. Plaintiffs alleged that Birdsall arranged a flight for himself and Marlene on Hawaiian [**2**] leaving American Samoa for March 25, 2007 to seek employment and enroll Marlene in school outside the territory. While Plaintiffs waited for their flight at Pago Pago International Airport, it is alleged that a private citizen informed Birdsall that police were waiting for him onboard the airplane and would escort him off if he boarded the plane. Plaintiffs left the airport in order to avoid further humiliation and allege that their luggage was removed by the Hawaiian‘s personnel and given to ASG agents for inspection.

Plaintiffs further allege that the next day O‘Brien, then the Acting Attorney General of ASG‘s Attorney General‘s Office, told members of

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the local news media that Birdsall had been stopped from leaving the territory based on a request from the Federal Bureau of Investigation (―FBI‖) and that probable cause existed that Birdsall had committed a felony. Sala, who was the director of OTICIDE, a criminal investigation agency, allegedly told O‘Brien to issue the stop order at the FBI‘s request because the FBI believed Birdsall was in possession of government files. O‘Brien later allegedly admitted that upon further investigation, he discovered the FBI had not made such a request. According to Plaintiffs, neither O‘Brien nor Sala acknowledged their errors in issuing the stop order or their false statements regarding Birdsall. Sala insisted that he had not stated that the FBI requested a stop order. Rather, Sala [**3**] argued that he believed that Birdsall was attempting to leave the territory while in possession of government files, and that he was trying to retrieve them. Additionally, in the March 29, 2007 edition of the Samoa News, Sala was quoted as saying that Birdsall had placed the territory‘s homeland security program in a dire position, further exacerbating ASG‘s financial situation. Plaintiffs eventually left the territory on March 29, 2007.

In their Complaint, Plaintiffs alleged several recovery theories resulting from Defendants‘ actions. Count One alleged violation of their constitutional right to travel. Count Two alleged an unconstitutional search and seizure of their luggage. Count Three alleged Sala‘s and O‘Brien‘s defamatory statements about Birdsall. Count Four alleged that an unconstitutional stop order had been issued against Birdsall. Count Five alleged that Sala and O‘Brien failed to follow stop order procedures. Count Six alleged violation of Birdsall‘s protected right to the dignity of the individual under the American Samoa Constitution. Count Seven claimed Birdsall‘s wrongful termination.

In an August 17, 2009 order on Defendants‘ motion to dismiss, this Court dismissed Count One regarding the right to travel against Hawaiian and ASG, Count Four regarding the unconstitutional stop order, Count Five regarding the failure to follow stop order procedures, Count Six regarding the dignity of the individual violation, and Count Seven concerning Birdsall‘s [**4**] alleged wrongful termination. In a subsequent February 4, 2010 order on Plaintiffs‘ motion to reconsider, this Court reinstated Counts Six and Seven of Plaintiffs‘ Complaint, with the wrongful termination claim stayed pending an Administrative Law Judge‘s (―ALJ‖) determination on the matter.1

Plaintiffs‘ action against Hawaiian was dismissed without prejudice on March 12, 2020, based on Airlines and Plaintiffs‘ stipulation. Trial on Count 2 (unwarranted search and seizure), Count 3 (slander), and Count

1 Count Seven of Plaintiffs‘ Complaint was eventually rendered moot as the ALJ upheld the termination of Birdsall‘s employment.

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6 (violation of Birdsall‘s constitutional right to dignity) with ASG, Sala, and O‘Brien as the remaining Defendants, was held on March 12-13, 2013.

Discussion

Plaintiffs contend in support of Count 2 that the removal of Birdsall‘s and Marlene‘s luggage from the Hawaiian flight constituted an unconstitutional search and seizure. They argue that there was evidence that the luggage may have been searched because luggage belonging to Birdsall‘s sister Marie Ala`ilima, who was also on the March 25, 2007 Hawaiian flight, was allegedly tampered with. Plaintiffs claim that this, and the fact that there was allegedly an order to remove all ―Ala‘ilima‖ luggage from the flight, is sufficient evidence to justify a finding of a constitutional violation.

[**5**] The Fourth Amendment of the United States Constitution protects the right of people to be secure from unreasonable searches and seizures. U.S. CONST. art. IV. The Constitution also provides that no person shall be deprived of life, liberty, or property without due process of law. U.S. CONST. art. V.

[1] Here, this is simply not enough evidence to support Plaintiffs‘ unreasonable search and seizure claim. Plaintiffs do not point to any evidence that ASG actually searched or tampered with Birdsall‘s and Marlene‘s luggage. Plaintiffs rely on the fact that Birdsall‘s sister, Marie Ala`ilima, allegedly had her luggage searched and the fact that there was allegedly a stop order placed on all ―Ala‘ilima‖ luggage on the March 25, 2007 Hawaiian flight. This purely circumstantial evidence is insufficient to support a finding of a constitutional violation by ASG.

Plaintiffs contend in support of Count 3 that O‘Brien and Sala both defamed Birdsall. Plaintiffs argue that O‘Brien made defamatory statements against Birdsall by issuing a written stop order charging him with conspiracy and by repeating accusations against Birdsall to the local media. Plaintiffs claim that Sala slandered Birdsall by telling O‘Brien that a stop order should be issued for Birdsall due to alleged criminal activity and by later making statements to the newspaper in which he accused [**6**] Birdsall of contributing to the local government‘s financial woes.

[2-4] In order to establish liability for defamation, there must be: (1) a false; (2) and defamatory; (3) statement concerning the plaintiff; (4) that is unprivileged; (5) made to a third party; (6) with fault amounting to at least negligence on the part of the publisher; (7) and actionability of the statement irrespective of special harm or because of the existence of special harm caused by the publication of the statement. Matamua v.

High Court of American Samoa Slip Opinions (2013)

Carribean Fishing Co., 4 A.S.R.3d 126, 131 (Trial Div. 2000). Defamation is affected by slander which is a false and unprivileged publication other than libel that a person is charged with a crime or has been indicted, convicted or punished for a crime, which tends to injure him in respect to his profession, or by natural consequence causes actual damage. A.S.C.A. § 43.5201. A communication made in the proper discharge of an official duty is considered to be a privileged publication. A.S.C.A. § 43.5202. A communication is considered defamatory if it so harms the reputation of the individual as to lower him in the estimation of the community or to deter others from associating with him. Fou v. Talofa Video, 2 A.S.R.3d 132, 134 (Trial Div. 1998).

O‘Brien clearly made statements regarding Birdsall and alleged wrongdoing on his part. However, we cannot detect any [**7**] malice on the part of O‘Brien in making his statements. The evidence has established that O‘Brien was operating under the impression provided by Sala that the FBI had requested that a stop order be issued because of an alleged felony committed by Birdsall. Additionally, O‘Brien issued the stop order pursuant to his duties working in the Attorney General‘s Office. Any comments he made to the newspaper were regarding the process of issuing stop orders during the course of his duties. These communications were made in the proper discharge of his duties, and are therefore privileged. See A.S.C.A. § 43.5202. Plaintiffs may argue that O‘Brien was not authorized to issue stop orders, but even if this is true, he was clearly acting pursuant to his job when his statements were made. Moreover, the comments made by O‘Brien to the local newspaper were notably restrained, as he refrained from commenting on the specifics of the stop order and merely stated that stop orders are issued in felony cases and that the individual identified in the order ―may have been involved.‖ While it can be argued that O‘Brien should have investigated the allegations being made against Birdsall before going public with them or acting upon them, it should be noted that O‘Brien was acting with time constraints because Birdsall‘s departure from the island was imminent. Birdsall‘s slander claim against O‘Brien thus fails.

Clearly, O‘Brien issued the stop order based on a [**8**] conversation with Sala. What is less clear, however, is what actually was said during this conversation. Sala denies telling O‘Brien that the FBI wanted a stop order placed on O‘Brien, and states that he could have requested the stop order himself. Moreover, he claims that he tried for quite some time to retrieve government documents from Birdsall, but to no avail, so when he found out that Birdsall was leaving the territory, he tried to prevent the loss of these documents. Unbeknownst to him, Birdsall was no longer in possession of these documents, but Sala claims that this was Birdsall‘s fault because he was completely unresponsive to Sala‘s previous requests for the return of the documents. Sala‘s version of events is plausible, even if the manner in which the stop order was

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created was done haphazardly. If Sala believed that Birdsall was in possession of the documents for more than a month, he definitely should have made more of an effort to retrieve them instead of requesting the stop order at the last minute. However, we cannot say that the last- minute nature of the stop order made Sala‘s request defamatory. Moreover, Sala‘s statements to O‘Brien regarding the stop order appear to have been made in the proper discharge of his duties, and are thus privileged. See A.S.C.A. § 43.5202. Again, while Plaintiffs may argue that Sala was not authorized to issue a stop order, there is evidence we cannot ignore that he was acting in good faith pursuant to his [**9**] job when he spoke with O‘Brien. Accordingly, Plaintiffs have failed to prove Sala‘s statements to O‘Brien were defamatory.

[5] Regarding Sala‘s comments to the newspaper about Birdsall‘s supposed responsibility for ASG‘s financial troubles, we believe that Sala was merely expressing his opinions to the newspaper. Sala‘s comments, while malicious, were not meant to be taken as a serious accusation that the entirety of ASG‘s financial troubles was caused by one man. We do not believe that the average person hearing these hyperbolic comments would actually blame Birdsall for the territory‘s financial situation, and therefore we hold that Sala‘s comments regarding Birdsall‘s responsibility for ASG‘s financial problems were not defamatory. See Matamua, 4 A.S.R.3d at 131 (holding that in determining whether a statement is defamatory, the court must look to the impression it would produce in the average person).

Plaintiffs finally contend in support of Count 6 that Defendants violated Article I, Section Four of the American Samoa Constitution by failing to respect Birdsall‘s dignity and making Birdsall suffer through unjustifiable attacks on his honor and reputation. Plaintiffs argue that in Samoan culture, it is of the utmost importance to publicly avoid offending or demeaning others. Plaintiffs argue that the statements made by O‘Brien and Sala to the public regarding Birdsall‘s competence and trustworthiness were a clear affront to his dignity and the [**10**] dignity of his family. According to Plaintiffs, these actions by O‘Brien and Sala in the course of their duties as ASG employees require a finding of a constitutional violation.

[6] We agree. While we do not find that the statements made by O‘Brien and Sala technically amounted to defamation, the comments made by Sala were clearly inappropriate and maliciously motivated. Sala may have believed that he was preventing Birdsall from leaving the island with official government documents, but the clumsy way in which the stop order was requested and executed only put Birdsall through a humiliating ordeal which called his reputation into question. This was compounded by Sala‘s comments blaming Birdsall for ASG‘s financial problems. While we found that Sala‘s comments stating his opinions

High Court of American Samoa Slip Opinions (2013)

were not defamatory, they were clearly malicious and intended to harm Birdsall‘s reputation. The damage to Birdsall‘s dignity and reputation is evidenced by his failure to find steady employment in the years following this incident. We therefore hold that Sala‘s comments amounted to a violation of Article I, Section Four of the American Samoa Constitution protecting Birdsall‘s dignity as an individual.

Our decision should not be interpreted as a finding that every instance of a person being insulted or criticized constitutes a loss of dignity in violation of the American Samoa Constitution. We believe that the circumstances in the case at [**11**] bar are unique and warrant a finding of a constitutional violation, given the public nature of the incident and Birdsall‘s inability to find employment after the incident.

As far as damages are concerned, Defendants have not persuasively countered Birdsall‘s damage claims. Birdsall seeks $36,000 per year for the past six years that he has been unable to find gainful employment following his terminated employment with ASG. Birdsall states that this $36,000 is equal to the difference between the $40,000 annual salary he earned as an ASG employee and the $4,000 he has annually earned since the incident. He also asserts that he is entitled to $70,000 for the loss of his land and $40,000 for loss of his residence on the land in foreclosure, because he was unable to make timely mortgage payments due to the loss of his ASG employment. Birdsall also requests $500,000 in general damages for emotional distress and $1,000,000 in punitive damages.

The measure of damages is a question of fact. Clifton v. Voyager, Inc., 31 A.S.R.2d 12, 24 (Trial Div. 1996). The trier of fact enjoys substantial discretion in determining damages and is not required to calculate damages with mathematical precision. Id.

We find that Birdsall has not proven damages for lost wages resulting from this incident. Birdsall states that because of the termination of his ASG employment at approximately $40,000 [**12**] per year, he was only able earn $4,000 per year for the next six years. We are not persuaded without more specific information that Birdsall‘s termination significantly prevented his reemployment in the U.S. mainland. Birdsall‘s self-serving, generalized testimony lacks details about his job searching. The evidence does not tell us the actual number, locations, and employer identities of Birdsall‘s specific job applications, and for each application the scope of work scope and required qualifications, the actual rejection reasons, and the number and qualifications of competing applicants. In short, the evidence does not preponderate to establish that Birdsall was denied comparable $40,000 per year employment principally due to his ASG termination rather than his qualifications based on educational background, long-term territorial work experience, or other factors. We therefore decline to award Birdsall lost wages

High Court of American Samoa Slip Opinions (2013)

damages. Similarly, the evidence does not persuasively convince us that his foreclosure losses, $70,000 for the loss of his land and $40,000 for the loss of his residence, were unavoidable principally from his inability to make the mortgage payments following his ASG employment termination.

[7] However, we award Birdsall general damages in the amount of $15,000 for the emotional distress he suffered as the resulting of Sala‘s acts violating Birdsall‘s constitutional right to individual dignity. Finally, because Sala‘s actions were [**13**] malicious, and intended to cause Birdsall humiliation, we award Birdsall punitive damages in the amount of $30,000. Punitive damages appropriate serve as an example and discourage similar behavior from ASG employees in the future. See Newton v. Taleka, 30 A.S.R.2d 86, 89 (Trial Div. 1996) (punitive damages are awarded for the sake of example and by way of punishment). Accordingly, we find Birdsall is entitled to damages totaling $45,000.

Citing to the Government Tort Liability Act (―GTLA‖) (A.S.C.A. § 43.1201-.1225), Birdsall asserts that ASG is not immune from suit in this case, and should be held liable for any damages awarded. Specifically, Birdsall argues that because A.S.C.A. § 43.1203(b) specifically exempts ASG from any act of a governmental employee exercising due care in the execution of a statute or regulation, the converse must be true, and ASG must be liable for the acts of an employee that does not exercise due care.

[8] We disagree. The Territory of American Samoa generally possesses immunity from suit, except in some limited circumstances. See Johnson v. Am. Samoa Gov’t, 3 A.S.R.3d 173, 177 (Trial Div. 1998). Additionally, there is no evidence that the GTLA even applies to this case. The GTLA only provides limited waiver of immunity, and specifically preserves immunity in several instances where a governmental employee acts without [**14**] due care. See A.S.C.A. § 43.1203(b). The liability we attribute here is based upon a violation of Article I, Section Four of the American Samoa Constitution, and has nothing to do with the GTLA. As Birdsall concedes, Article I, Section Four of the American Samoa Constitution is a provision unique to this Territory and does not have an analogous provision in the United States Constitution. We cannot say that any causes of action against ASG for violations of the United States Constitution are applicable here precisely because Article I, Section Four of the American Samoa Constitution is so unique to the Territory. We do not believe that there is evidence to support a finding that ASG has waived its general immunity from suit in this circumstance. Accordingly, ASG is not held liable for the damages awarded in this case.

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Order

Judgment shall enter for Birdsall against Sala in the amount of $45,000, $15,000 as general damages for emotional distress and $30,000 as punitive damages that Birdsall suffered from Sala‘s intentionally malicious acts in violation of Birdsall‘s constitutional right to individual dignity. Judgment shall enter in favor of ASG and O‘Brien on Birdsall‘s individual dignity claim, and in favor of ASG, Sala and O‘Brien on Birdsall‘s claimed search and seizure violation and his claimed defamation. [**15**]

It is so ordered.

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High Court of American Samoa Slip Opinions (2013)

Cite As: Pulu v. Nat’l Pac. Ins. Co., Ltd., CA No. 27-11, slip op. at [page number] (Trial Div. Aug. 15, 2013)(order den. mot. for recon.)

PULU AE AE JR., Plaintiff,

v.

NATIONAL PACIFIC INSURANCE COMPANY LTD., Defendant.

High Court of American Samoa Trial Division

CA No. 27-11

August 15, 2013

[1] The doctrine of res ipsa loquitur applies when an accident‘s nature is such that past experience has shown that it probably resulted from someone‘s negligence and that the defendant is probably responsible.

Before RICHMOND, Associate Justice; MAMEA, Associate Judge; and MUASAU, Associate Judge.

Counsel: For Plaintiff, Charles V. Ala‘ilima For Defendant, David P. Vargas

ORDER DENYING MOTION FOR RECONSIDERATION OR NEW TRIAL

Plaintiff Pulu Ae Ae Jr. (―Pulu‖) brought this action against Defendant National Pacific Insurance Company, Ltd. (―NPI‖) to recover monetary damages after a fire destroyed a Pulu family residence. After a trial held on July 9-10, 2012, this Court ruled in NPI‘s favor.

In his complaint, Pulu asserted that his communal family home suffered extensive damage as a result of a fire spreading from his neighbor David Pereira‘s (―Pereira‖) house. At the time of the fire, Pereira was the named insured under a policy issued by NPI. The policy included liability protection on claims made upon Pereira as a result of accidents at his residence which caused property damage.

[**2**] At trial, Pereira‘s son, David Pereira, Jr., testified that on the morning of the fire, he was in the Pereira family residence when he smelled what he thought was burning rubber. When David, Jr. stepped outside he saw that the second floor of the house was on fire.

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Pereira‘s daughter, Serah, was the only person other than Pereira himself who had a key to the upstairs portion of the building. She testified that the second floor of the building was in disrepair and that there was extensive termite damage and exposed wiring on the second floor. She allegedly may have told her father of these problems prior to the fire. Pereira testified that he was unaware of any electrical or other problems on the second floor of the building. Fire and engineering officials were unable to pinpoint the exact cause of the fire.

Pulu asserted that because there were no eyewitnesses to the cause of the fire, res ipsa loquitor applied to the instant case, creating an inference of negligence on Pereira‘s part. He claims that the evidence of termite damaged walls and exposed wiring in the second floor of the building, as well as David, Jr.‘s testimony that he smelled burning rubber indicate that the fire was electrical in origin. Pulu argued that Pereira knew of the unsafe conditions on the second floor, and his negligence in [**3**] failing to remedy them was the cause of the fire which damaged the Pulu communal family residence.

In our May 10, 2013 order, we noted that destruction of property by fire generally does not raise the presumption of negligence for res ipsa loquitor purposes. We declined to hold that the alleged presence of exposed wiring and termite-damaged walls on the second floor created a presumption of negligence on Pereira‘s part. Moreover, Pulu failed to explain how the conditions of the second floor could cause the fire and how any alleged electrical problem was Pereira‘s fault. We ultimately ruled that even if there was an electrical problem, it could have caused the fire without any negligence on Pereira‘s part and held that res ipsa loquitor did not apply.

Pulu filed his motion for reconsideration and/or new trial on May 20, 2013. NPI filed its response on June 6, 2013. We heard this matter on August 5, 2013. For the reasons stated below, we deny Pulu‘s motion.

Discussion

Reconsideration is appropriate if the court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law. TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R. 3d 225, 229 (Trial [**4**] Div. 2000). A party moving for reconsideration must do more than merely reiterate the trial court‘s reasons and then blindly assert that the court was incorrect. G.M. Meredith and Associates v. Blue Pacific Management Corp., 28 A.S.R. 2d 204, 206 (Trial Div. 1995). The decision whether to grant a motion for reconsideration is within the broad discretion of the trial court. Pulu v. Pulu, 8 A.S.R. 3d 230, 231 (Land & Titles Div. 2004).

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[1] The doctrine of res ipsa loquitur applies when an accident‘s nature is such that past experience has shown that it probably resulted from someone‘s negligence and that the defendant is probably responsible. Seva`aetasi v. Am. Samoa Power Authority, 5 A.S.R.3d 91, 93 (Trial Div. 2001). Res ipsa loquitur is applicable when (1) the event is of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it was caused by an agency or instrumentality within the exclusive control of the defendant; (3) it was not due to any voluntary action or contribution on the part of the plaintiff. Lang v. Am. Samoa Gov’t, 1 A.S.R.3d 148, 152 (Trial Div. 1997).

In his motion, Pulu contends that there was sufficient evidence to raise a presumption of negligence for res ipsa loquitor purposes. Again, Pulu points to evidence adduced at [**5**] trial of the poor state of the second floor of the building, as well as the testimony that David Jr. smelled burning rubber, an indication that the fire was electrical in nature. Pulu further points to decisions in other jurisdictions where courts found that res ipsa loquitor applied to cases where there was a fire of unknown origin.

Pulu largely restates the rulings in this Court‘s February 1, 2013 Opinion and Order and asserts that these rulings were erroneous simply because he disagree with the Court‘s reasoning. This is insufficient to prevail on a motion for reconsideration and/or new trial. As we previously stated, the fact that there may have been exposed wiring and termite damaged walls in the second floor is insufficient to raise an inference of negligence on Pereira‘s part. Moreover, Pulu states with certainty that Pereira was aware of the condition of the second floor of the building and was negligent in failing to remedy it. However, we note that Serah Pereira merely stated that she may have informed Pereira of the second floor‘s condition. This, along with Pereira‘s testimony denying that he was so informed leads us to believe that Pereira was unaware of the second floor‘s alleged condition. There were many possible causes of the fire, and it is unnecessary for us to list the possible causes of the fire at Pereira‘s residence. See Blair v. Saguaro Lake Development Co., [**6**] 495 P.2d 512, 516 (Ariz. App. 1972). We do not believe that Pulu has sufficiently established that the fire probably resulted from someone‘s negligence and that Pereira is probably responsible. Accordingly, Pulu‘s motion for reconsideration and/or new trial is denied.

Order

Pulu Ae Ae, Jr.‘s motion for reconsideration and/or new trial is denied. It is so ordered.

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High Court of American Samoa Slip Opinions (2013)

Cite As: Notoa v. Am. Samoa Power Auth., CA No. 81-06, slip op. at [page number] (Trial Div. Sep. 10, 2013)

UTISONE and ROWENA NOTOA, Plaintiffs

v.

AMERICAN SAMOA POWER AUTHORITY, Defendant.

High Court of American Samoa Trial Division

CA No. 81-06

September 10, 2013

[1] The court is not required to credit the testimony of an expert with significant formal education over the opposing testimony of an expert with minimal education. The court is the finder of fact in a civil action and determines the credibility of expert witnesses.

[2] Courts apply a variety of standards to measure recoverable damages in building destruction incidents. Where plaintiffs replaced their destroyed house and its contents, the reasonable cost of replacing the destroyed house and contents to the substantially same condition they were in prior to destruction, plus loss of use, was the appropriate measure of damages.

[3] It is not necessary that plaintiffs present receipts for damages. The Court has substantial discretion in determining damages, and damages need not be calculated with mathematical precision.

RICHMOND. Associate Justice; and MAMEA, Associate Judge.

Counsel: For Plaintiffs, Charles V. Ala`ilima For Defendant, Billie Evans III and Richard DeSaulles

OPINION AND ORDER Utisone Notoa (―Utisone‖) and Rowena Notoa (―Rowena) (collectively ―Plaintiffs‖) filed this action against Defendant American Samoa Power Authority (―ASPA)‖ after a fire destroyed Plaintiffs‘ residence. Trial was held on February 21, 22 and 25, 2013.

High Court of American Samoa Slip Opinions (2013)

Background

During the morning of September 29, 2005, two ASPA employees disconnected the power at Plaintiffs‘ home due to an unpaid utility bill. Shortly thereafter Rowena made arrangements to have the utility bill paid and the power reconnected later that day. Her husband Utisone was in the house when the power was disconnected, and remained there until approximately 4:00 p.m. that day.

[**2**] According to Plaintiffs, ASPA personnel returned to their home later that day, after Utisone left the house, in order to reconnect the power. Plaintiffs claim that no one was home when ASPA employees reconnected the power, in violation of ASPA policy, and soon after reconnection, an air conditioning unit exploded in the back of the house. Dennis Spencer (―Spencer‖), Rowena‘s son, testified that on that day, he heard the refrigerator working, indicating that the power had been reconnected, and discovered the fire in the back of the house. The house and its contents were eventually destroyed by the fire. Plaintiffs claim that ASPA employees improperly reconnected the power to the house, causing the fire. According to Plaintiffs‘ expert, Tolo Tolo, Jr. (―Tolo‖), ASPA employees improperly reconnected the electrical meter at Plaintiffs‘ house, causing a buildup of heat in the air conditioning unit and eventually, the explosion which burned down the house.

ASPA denies that the power was ever reconnected prior to the fire. Two ASPA employees, John Su‘a (―Su‘a‖) and Aitkan Ieremia (―Ieremia‖), testified at trial that when they arrived at Plaintiffs‘ home in the evening, the house was already on fire and they did not reconnect the power. Two other ASPA employees, Jimmy Burgess (―Burgess‖) and Faleniko Fetoa‘i (―Faleniko‖), testified that they were called to the scene to disconnect the power from the power line after the fire started. [**3**] They stated that they never turned on the power to Plaintiffs‘ home. Plaintiffs‘ expert, Siva Kumar (―Kumar‖) testified that Tolo‘s theory that a low flow of current to the air conditioning unit caused by an improper reconnection was the source of the explosion and fire was incorrect. Kumar rejected the theory that an overheating motor in the unit caused the explosion. Rather, Kumar posited that the cause of the air conditioner explosion, if such an explosion actually did occur, was that the air conditioner was engulfed by flames in the bedroom that started as a result of some other cause.

Discussion

Plaintiffs state that they have established that ASPA employees improperly reconnected the power to their house, causing the fire which destroyed their house. According to Plaintiffs, the evidence at trial establishes that the power was turned off, and improperly turned on

High Court of American Samoa Slip Opinions (2013)

while nobody was at home. Plaintiffs reject ASPA‘s claim that the power was never reconnected, pointing to Spencer‘s testimony that he heard the refrigerator running at the time he discovered the fire, which would indicate that the power had been reconnected to the house. Plaintiffs argue that the testimony of Tolo, their expert, establishes ASPA‘s liability because the improper reconnection caused overheating in the air conditioning unit, ultimately [**4**] causing the explosion of the air conditioner and destruction of the house.

In order to establish a cause of action for negligence a party must prove duty, causation, and damages. Lang v. Am. Samoa Gov’t., 1 A.S.R.3d 148, 150 (Trial Div. 1997). It is the function of the finder of fact to determine the credibility of witnesses, resolve evidentiary conflicts and draw reasonable inferences from proven facts. See Am. Samoa Gov’t. v. Tauala, 25 A.S.R.2d 179, 180 (Trial Div. 1994).

Here, the main issue for resolution is whether the power was reconnected by ASPA prior to the fire at Plaintiffs‘ home. ASPA claims that the consistent testimony of all its employees is that the power was never reconnected to the house and that the house was already on fire when they arrived on scene. Plaintiffs seem to believe that because their employees gave the exact same testimony, their credibility cannot be questioned, and their testimony should be simply accepted at face value. We decline to do so. During trial, ASPA employees provided identical testimony, which actually raised this court‘s suspicion. In this court‘s opinion, the testimony was identical to the point of being rehearsed. We simply do not believe ASPA employee testimony that they all arrived after the fire started and did not reconnect the power. Spencer‘s testimony that he arrived at the house and could hear the refrigerator working is [**5**] more credible than ASPA‘s seemingly rehearsed testimony. Spencer‘s testimony supports a finding that the power was in fact reconnected to Plaintiffs‘ home prior to the fire.

The parties also disagree as to whether a reconnection of the power was the ultimate cause of the explosion and fire. Both parties presented the testimony of expert witnesses. Tolo, Plaintiffs‘ expert, explained that during reconnection, a plastic insulator sleeve was left off a terminal on the electrical meter at Plaintiffs‘ residence. This failure to attach the sleeve caused a flow of current to the air conditioning unit in the back of the house to overheat and eventually explode. We find Tolo‘s testimony to be credible and persuasive. We find it hard to believe that the fire and explosion that occurred at Plaintiffs‘ home shortly after the power was reconnected was merely a coincidence and not the result of improper work by ASPA employees. Given the circumstances of the fire and the fact that Tolo actually examined the meter shortly after the fire, we find Tolo‘s testimony to be credible and persuasive and accordingly find that

High Court of American Samoa Slip Opinions (2013)

ASPA‘s negligence in reconnecting the power to Plaintiffs‘ home caused the explosion.

[1] ASPA argues that the testimony of Kumar, its expert, is more persuasive and credible, in part, because he has more educational and formal training than Tolo. While Kumar may have [**6**] an impressive resume, this court is the finder of fact and does not have to accept Kumar‘s opinions uncritically merely because he is an expert. See Kennedy v. Collagen Corp., 161 F.3d 1226, 1230-31 (9th Cir. 1998).

[2] As far as damages are concerned, courts apply a variety of standards to measure recoverable damages in building destruction incidents. 22 AM. JUR. 2D DAMAGES §§ 415-426 (1988). In light of Plaintiffs‘ replacement of the destroyed house and its contents, the reasonable cost of replacing the destroyed house and contents to the substantially same condition they were in prior to destruction, plus loss of use, is the appropriate measure of damages in this case. Id. at §§ 418, 420, 422.

Plaintiffs have certainly proven that their house and its contents were destroyed as a result of ASPA‘s negligence, as well as incidental costs while living with other family members until the house was rebuilt afterwards. The destroyed house cost approximately $60,000 to build in 1988. Plaintiffs acquired it in 2002 and expended approximately $15,000 to renovate it. Considering both contemporary inflation and depreciation factors, $75,000 is the reasonable value of the house in 2005 just prior to the fire. The $76,000 cost to replace the house is likewise a reasonable value of the replacement house after the fire. Plaintiffs‘ cost of $20,955 to refurnish the house after the fire, compared to the original [**7**] furnishing costs of $49,827, is modest and reasonable. Their costs utility and other costs incurred while living with relatives during the reconstruction period are also reasonable. These amounts total $99,949.09.

[3] ASPA did not present evidence to contradict Plaintiffs‘ damage evidence. ASPA points out, however, that Plaintiffs did not present receipts at trial in support of the monetary amounts of damages they incurred. It is not necessary, however, that Plaintiffs present receipts. The Court has substantial discretion in determining damages, and damages need not be calculated with mathematical precision. See Clifton v. Voyager, Inc., 31 A.S.R.2d 12, 24 (Trial Div. 1996). Accordingly, given the fact that Plaintiffs lost their residence and all their worldly possessions as a result of ASPA‘s negligence, we award Plaintiffs damages in the total amount of $99,949.09.

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Order

Judgment shall be entered for Plaintiffs Utisone and Rowena Notoa and against Defendant American Samoa Power Authority in the principal amount of $99,949.09.

It is so ordered.

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High Court of American Samoa Slip Opinions (2013)

Cite As: Am. Samoa Gov’t v. Malae, CR No. 100-13, slip op. at [page number] (Trial Div. Oct. 22, 2013)(order den. def.‘s mot. for bill of particulars and mot.. to sever)

AMERICAN SAMOA GOVERNMENT, Plaintiff,

v.

HANIPALE MALAE, Defendant.

High Court of American Samoa Trial Division

CR No. 100-13

October 22, 2013

[1] A Bill of Particulars is not required as long as a defendant has enough information to adequately prepare a defense, avoid surprise at trial, and protect him against a second prosecution for an inadequately described offense; as such, a defendant is required to look at all of the government's sources and not simply the information formally charging him with the crime.

[2] Forcible compulsion requires only that the act was consummated with sufficient force to overbear the protests of the woman.

[3] The Information need not set forth all facts and evidentiary details of the prosecutor‘s case to be sufficient, nor must the prosecutor divulge the precise manner in which the defendant committed the crimes or preview the government‘s evidence or legal theories.

[4] Under T.C.R.Cr.P. 8(a), counts pertaining to the same defendant may be joined if they are of the same or similar character, even if the offenses are distinct and unrelated. This rule is to be interpreted broadly, and judicial economy and public interest favors joinder. A defendant must show strong or substantial prejudice flowing from joinder to warrant the court to separate the counts.

Before KRUSE, Chief Justice; LOGOAI, Chief Associate Judge; and FA`AMAUSILI, Associate Judge

Counsel: For Plaintiff, Mitzie J. Folau, Deputy Attorney General For Defendant, Sharron Rancourt

High Court of American Samoa Slip Opinions (2013)

ORDER DENYING DEFENDANT‘S MOTION FOR BILL OF PARTICULARS AND MOTIONS TO SEVER

Background

On May 31, 2013, Defendant was charged with 12 counts against three alleged victims, F.P., who is 16 years of age or less, S.S., who is 20 years old, and F.S, who is 27 years old. All alleged victims were domestic workers from Independent Samoa residing with Defendant. The charges against Defendant for alleged crimes against F.P. and S.S. are for sexual- based offenses while the charges against Defendant for alleged crimes against F.S. are for simple assault.

On July 8, 2013, Defendant moved the High Court for a Bill of Particulars regarding Count 2 of the Information, which [**2**] charges the Defendant with rape for sexual intercourse with S.S. ―without her consent or by the use of forcible compulsion.‖ Rape is statutorily defined in relevant part as sexual intercourse without ―consent by the use of forcible compulsion.‖ A.S.C.A. § 46.3604 (emphasis added). Additionally, on August 19, 2013, Defendant moved the High Court to sever the counts based on alleged victims.

These motions came to hearing on October 16, 2013, during which the parties stipulated to an amended Information striking the word ―or‖ from Count 2. The motion for a Bill of Particulars and motions to sever remained in dispute.

Discussion

I. Motion for Bill of Particulars

Defendant seeks a Bill of Particulars regarding Count 2 to explicate the forcible compulsion element of the rape charge. This is unnecessary.

[1]-[2] A Bill of Particulars is not required as long as a defendant has enough information to adequately prepare a defense, avoid surprise at trial, and protect him against a second prosecution for an inadequately described offense; as such, a defendant is required to look at all of the government's sources and not simply the information formally charging him [**3**] with the crime. Am. Samoa Gov't. v. Wilson, 24 A.S.R.2d 26 (Trial Div. 1993). In the instant case, Defendant claims ignorance of what act could constitute forcible compulsion. However, in the Preliminary Hearing Testimony, the detective testified that S.S. was pulled onto the bed by Defendant and was afraid and crying. Forcible compulsion requires only that the act was consummated with sufficient force to overbear the protests of the woman. Taukoko v. Am. Samoa Gov’t. (1977). The woman is not required to resist ―tooth and nail.‖ Id.

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[3] Additionally, the Government has provided Defendant with over 150 pages of discovery, including the police report, crime scene photographs, and witness interview transcripts. The Information need not set forth all facts and evidentiary details of the prosecutor‘s case to be sufficient, Am. Samoa Gov't. v. Afamasaga, 17 A.S.R.2d 145, 150 (Trial Div. 1990), nor must the prosecutor divulge the precise manner in which the defendant committed the crimes or preview the government‘s evidence or legal theories, United States v. Ojeikere, 299 F. Supp. 2d 254, 260 (S.D.N.Y. 2004).

We therefore find that Defendant has sufficient information to adequately prepare a defense and deny the motion for a Bill of Particulars. [**4**]

II. Motions to Sever

Defendant next seeks to sever Count 11 from Counts 1-10 and 12; Counts 1,3,5,7,8,10, and 12 from Counts 2,4,6,9, and 11; and Counts 2, 4, 6, 9, and 11 from Counts 1, 3, 5, 7, 8, 10, 11, and 12 so that Defendant‘s charges are tried separately for each alleged victim. We also find this unnecessary.

[4] Under T.C.R.Cr.P. 8(a), counts pertaining to the same defendant may be joined if they are of the same or similar character, even if the offenses are distinct and unrelated. Am. Samoa Gov’t. v. Antonio, 28 A.S.R. 2d 165 (Trial Div. 1995). This rule is to be interpreted broadly, and judicial economy and public interest favors joinder. Id.

Joinder in this case is proper. Although the charges for alleged acts against F.P. and S.S. are for sexual-based offenses and the charges for alleged acts against F.S. are for simple assault, the counts are of the same or similar character. All alleged victims were domestic workers residing in Defendant‘s home, the victims are witnesses to offenses against the other victims, and the accused crimes were discovered together. A defendant must show strong or substantial prejudice flowing from joinder to warrant the court to separate the counts. Id. Defendant has failed to make such a showing. We therefore deny the motions to sever. [**5**]

Order

Defendant‘s motion for Bill of Particulars and motions to sever are hereby DENIED. It is so ordered.

High Court of American Samoa Slip Opinions (2013)

High Court of American Samoa Slip Opinions (2013)

SLIP OPINIONS

OF THE

LAND AND TITLES DIVISION

OF THE

HIGH COURT OF AMERICAN SAMOA

(2013)

Cite As: Ioapo v. Aviata, MT No. 02-02, slip op. at [page number] (Land & Titles Div. Jan. 15, 2013)(order on mot. to intervene)

TAUA`I IOAPO JR., Claimant,

v.

AVIATA FANO FA`ALEVAO, Counter-claimant

[In re Matai Title “PAPALAUENA” of the Village of Olosega]

High Court of American Samoa Land and Titles Division

MT No. 02-02

January 15, 2013

[1] For a period of 60 days immediately following the posting of notice of a claim to a vacant matai title, any interested person may file a counterclaim or objection.

[2] After the 60-day period during which an interested person may object or file a counterclaim to a matai title filing, the law does not permit a substitute candidate for the original objector under any circumstances, including death.

[3] A.S.C.A. § 1.0407(a) admits no exception to the substantive 60-day statutory limitations period, even on overriding considerations of equity or convenience.

Before KRUSE, Chief Justice; LOGOAI, Chief Associate Judge; and MAMEA, Associate Judge

Counsel: For Claimant, Matailupevao Leupolu, Jr. For Counter-claimant, Pro Se For Intervenor Tui Levao, M. Talaimalo Uiagalelei

ORDER ON MOTION TO INTERVENE

This outstanding matter concerns the competing succession claims of Taua`i Ioapo Jr., ("Taua`i") and counter-claimant, Aviata F. Fa`alevao ("Fa`alevao"), to the matai title Papalauena attached to the Village of Olosega. Fa`alevao, however, subsequently became ill and had to seek medical treatment off-island. Consequently, Tui Levao ("Levao") filed

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on December 12, 2012, a motion for substitution or intervention seeking to take over Fa`alevao's role as the counter-claimant.

The motion came on for hearing January 10, 2013, with movant Levao appearing with counsel M. Talaimalo Uiagalelei and Taua`i appearing in opposition to the motion, with his counsel Matailupevao Leupolu Jr. The question before the Court is [**2**] whether Levao can substitute/intervene on behalf of Fa`alevao due to the latter's illness, beyond the 60 days statutory limitations period in which objections to a claim for registration are permitted?

Discussion

[1] For a period of 60 days immediately following the posting of notice of a claim to a vacant matai title, any interested person may file a counterclaim or objection. A.S.C.A. § 1.0407(a).1 In 1980, the Land and Titles Division stated that the "manifest intent of this language is that at some definitive point in time all candidates and objectors can be ascertained so that the dispute may proceed to a timely resolution." In re Matai Title "Maga," 1 A.S.R.2d 39 (Land & Titles Div. 1980). However, the Maga court also allowed that it did not find that "strict compliance with the 60 day claim filing provisions is an absolute requisite to candidacy" and held that "failure to comply with the 60 day claim filing provisions precludes candidacy for matai title succession unless there are overriding considerations of equity or convenience." Id. at 40. The Court further expressed that if an individual that has failed to properly establish his [**3**] candidacy desires to be a candidate, then the Court should allow or disallow him to be a candidate based on equitable and convenience considerations. Id.

[2] Subsequently in In re Matai Title "Mulitauaopele," 29 A.S.R.2d 169 (Land & Titles Div. 1996), the Court also stated that the law does not permit a substitute candidate after the 60 day period under any circumstances, including death. Id. at 172-73 (citing In re Matai Title "Leaeno" MT No. 02-89, Bench Order Mot. Subst. (Land & Titles Div. May 6, 1991) (Court disallowed substitution of a younger, on-island family member for an elderly, off-island candidate)).

1 The enactment provides: 1.0407 Counterclaims and objectionsCSupporting documents. (a) For a period of 60 days immediately following the posting of notice required in 1.0406, any interested person may file a counterclaim or objection. If the sixtieth day falls on a Saturday, Sunday, or holiday, the next regular business day for the purpose of the section, is considered as the sixtieth day. The Territorial Registrar may not accept any counterclaims or objections filed after the sixtieth day as defined herein.

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[3] After looking at these seemingly contradictory holdings, we are inclined to reject the analysis in Maga and follow the holding in Leaeno and Mulitauaopele; that is, statute admits no exception to the substantive 60-day statutory limitations period on "overriding considerations of equity or convenience," Maga, 1 A.S.R.2d at 40. The Maga court reasoned:

. . . the statutes do not expressly address substitution. In this legislative lacuna, as provided for in 5 ASC 412(b),2 the Court "may act . . . in such [**4**] manner as it considers most consistent with natural justice and convenience."

Id. The fallacy behind this reasoning however is clear; the Maga court has resorted to a procedural rule to essentially overrule a substantive rule, namely, a 60-day limitations period. See Ape v. Puagele, 3 A.S.R.2d 109, 110 (App. Div. 1986) ("A.S.C.A. ' 3.0242 gives the court [] flexibility with regards only to rules of procedure, not to substantive law"). Indeed, a logical extension of this sort of reasoning would, for example, make any limitations period prescribed by statute amenable to nullification simply on a court's conclusion of "natural justice and convenience."

For reasons given infra, Levao's application for intervention/substitution is untimely under A.S.C.A. ' 1.0407(a), and is therefore denied.

It is so ordered.

2 Recodified as A.S.C.A. § 3.0242. The enactment reads: 3.0242 Land and titles divisionCRules. (a) The Chief Justice shall, by order, prescribe rules and forms to govern the conduct of proceedings before the land and titles division. The Federal Rules of Civil Procedure, Title 28, U.S.C., shall have no application to proceedings before the land and titles division. (b) In any matter of practice or procedure not provided for, or where the strict compliance with any rule of practice or procedure may be inequitable or inconvenient, the land and titles division may act in each case in such manner as it considers to be most consistent with natural justice and convenience.

High Court of American Samoa Slip Opinions (2013)

High Court of American Samoa Slip Opinions (2013)

Cite As: Loloaso v. Satala Land Trust., LT No. 9-11, slip op. at [page number] (Land & Titles Div. Feb. 1, 2013)

LOLOASO WIGHTMAN, Plaintiff,

v.

SATALA LAND TRUST, Defendant.

The High Court of American Samoa Land and Titles Division

LT No. 9-11

February 1, 2013

[1] Reconsideration is appropriate if the court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.

[2] A party moving for reconsideration must do more than merely reiterate the trial court‘s reasons and then blindly assert that the court was incorrect.

[3] The decision whether to grant a motion for reconsideration is within the broad discretion of the trial court.

[4] Evidence that a person or family exercised any acts of authority over land is an indication that it may be communal land.

[5] The High Court‘s approval of a land transfer creates a presumption that the transfer was valid and proper.

Before: RICHMOND, Associate Justice; and MAMEA, Associate Judge.

Counsel: For Plaintiff, Charles Ala‘ilima For Defendant, David Vargas

OPINION AND ORDER

On June 21, 2010, Plaintiff Loloaso Wightman (―Wightman‖) filed her complaint against Defendant Satala Land Trust (―the Land Trust‖). On February 15, 2012 the Land Trust filed its Motion for Summary Judgment, which this Court granted in a September 21, 2012 order. On October 1, 2012, Wightman filed her motion to reconsider. We heard

High Court of American Samoa Slip Opinions (2013)

this matter on November 9, 2012. We deny Wightman‘s motion for the reasons set forth below:

Background

A detailed statement of facts concerning this action can be found in this Court‘s September 21, 2012 Order. Briefly restated, the transfer of land in question was the subject of an earlier High Court decision in Groves v. Pike, 1 A.S.R. 104 (1903). As stated in Groves, the land in dispute, ―Satala‖, was [**2**] vested in a trustee for the benefit of Sunui Groves (―Sunui‖) and her children. Groves, 1 A.S.R. at 106. The transfer was approved by both the Commandment under the Native land Regulation and the High Court. Groves, 1 A.S.R. at 107. Satala was subsequently granted by trust deed to William Groves (―William‖) to hold in fee simple for the use of his wife Sunui. Sunui passed away without ever appointing by deed any of her children to use the remainder. The Land Trust is currently managed by Charles V. Ala‘ilima (―Ala‘ilima‖) as trustee.

Wightman‘s complaint alleged that the trust failed because Sunui did not comply with the terms of the trust when she failed to appoint by deed any of her children to use the remainder. Wightman asserted that this alleged failure reverted Satala back to its communal status in the Loloasa family.

We granted the Land Trust‘s motion for summary judgment, noting that the transfer of Satala was previously litigated in Groves v. Pike, 1 A.S.R. 104 (1903), and approved by the High Court. We further noted that Wightman had confused the failure of a trust with the failure to exercise the power of appointment. Moreover, the deed of gift clearly transferred Satala in fee simple, defeating any claims that Wightman might have that Satala was communal land. Finally, we stated that it appeared that all the facts presented supported a finding of adverse possession in favor of the Land Trust. [**3**]

Analysis

[1][2][3] Reconsideration is appropriate if the court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law. TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R.3d 225, 229 (Trial Div. 2000). A party moving for reconsideration must do more than merely reiterate the trial court‘s reasons and then blindly assert that the court was incorrect. G.M. Meredith and Associates v. Blue Pacific Management Corp., 28 A.S.R. 2d 204, 206 (Trial Div. 1995). The decision whether to grant a motion

High Court of American Samoa Slip Opinions (2013)

for reconsideration is within the broad discretion of the trial court. Pulu v. Pulu, 8 A.S.R.3d 230, 231 (Land & Titles Div. 2004).

Here, Wightman first contends that this Court incorrectly assumed the validity of the underlying trust deed. Wightman argues that there is a dispute as to whether the inception of the trust deed was fraudulent because Sunui was not a daughter of either grantor, as required by law. Wightman posits that the Samoan chief grantors of Satala may not have understood the legal requirements of a transfer because of their inability to speak or read English, and thus, a trial on the merits is required.

[**4**] Wightman‘s first claim of fraud is without merit. Wightman fails to provide any evidence of such fraud. As the Land Trust notes, the requirement that the transfer of land be made to a son or daughter of the grantor is found in A.S.C.A. § 37.0205, which traces its history to 1949, after the date of the present transfer. Here, as stated above, the transfer of Satala was the subject of litigation in 1903, and the High Court approved of the transfer, creating a presumption that the transfer was proper. See Ifopo v. Siatu’u, 12 A.S.R.2d 24, 27 (App. Div. 1989). Wightman has failed to present newly discovered evidence, demonstrate that this court made a clear error in its initial decision, or present evidence of an intervening change in controlling law. Accordingly, Wightman‘s first claim must be rejected.

Wightman next contends that there is a dispute as to whether Satala is communal versus individually-owned land and that this court erroneously assumed that Satala was held in fee simple. According to Wightman, the land was communal when transferred in 1903, and the trustee was merely instructed to hold the land in fee simple after the conveyance. Thus, it was error to conclude that Satala was not communal land at the time of the conveyance.

[4][5] Again, Wightman merely relies on speculation in support of her argument. Wightman is making her challenge over 100 years [**5**] after the 1903 transfer, and as stated in our September 21, 2012 order, there is no evidence that she or her family exercised any acts of authority over Satala during this time period, an indication that Satala may be communal land. See Tiumalu v. Mailo, 1 A.S.R. 434, 438 (1931). Further, this Court‘s approval of the 1903 transfer creates a presumption that the transfer was valid and proper. See Ifopo, 12 A.S.R.2d at 27. Wightman again fails to present newly discovered evidence, demonstrate that this Court made a clear error in its initial decision, or present evidence of an intervening change in the controlling law, a requirement for this court to reconsider its September 21, 2012 order. We therefore reject Wightman‘s second claim.

High Court of American Samoa Slip Opinions (2013)

Wightman finally claims that this Court erroneously found that an adverse possession claim by the Land Trust would succeed. Wightman asserts that determining an adverse possession claim is a factually intense undertaking, and it was inappropriate for this court to make such a determination at the summary judgment stage of litigation.

As stated by the Land Trust in its opposition to Wightman‘s motion to reconsider, the adverse possession analysis found in our September 21, 2012 Order merely states that it appears that, even if the 1903 registration was held to be invalid, Wightman would be unable to defeat any potential adverse possession claim. This Court made its ruling based on the fact that the [**6**] registration and transfer of Satala was valid, and Wightman has failed to demonstrate that this ruling was erroneous. Accordingly, we reject Wightman‘s final claim.

Order

Defendants‘ Motion to Reconsider is denied. It is so ordered.

High Court of American Samoa Slip Opinions (2013)

Cite As: Amani v. Ta’amu, MT No. 01-12, slip op. at [page number] (Land & Titles Div. Feb. 7, 2013)

TAVITA AMANI, Claimant,

v.

TA’AMU IAKOPO, Objector.

[In re Matai Title “SAVEA” of the Villages of Matu’u and Faganeanea]

High Court of American Samoa Land & Titles Division

MT No. 01-12

February 7, 2013

[1] The Land and Titles Division's jurisdiction to determine a matai title dispute is footed on prior compliance with the requirements of A.S.C.A. § 43.0302.

[2] Where failure to attend scheduled meetings at the Office of Samoan Affairs was willful and deliberate, the Court declined to assert jurisdiction over objector‘s claim.

[3] A.S.C.A. § 43.0302 requires a party to attend the prescribed meetings before such a party's succession claim is ripe for adjudication.

[4] A party‘s deliberate failure to attend scheduled meetings at the Office of Samoan Affairs is akin to deliberate default, where the standard of natural justice and convenience demands that the non-defaulting party should eventually get his day in court.

[5] A family‘s day-to-day interaction can result in the evolution of distinct sub-clans.

[6] The suggestion of two co-titleholders runs afoul of the law and if implemented, would not only impact the dignity and prestige of the title, but also promote unnecessary divisiveness that necessarily comes with duel (or dueling) leadership.

High Court of American Samoa Slip Opinions (2013)

Before KRUSE, Chief Justice; LOGOAI, Chief Associate Judge; SU‘APAIA, Associate Judge; SATELE, Associate Judge; and MUASAU, Associate Judge.

Counsel: For Claimant, Matailupevao Leupolu, Jr., For Objector, Fiti A. Sunia

OPINION AND ORDER

Introduction

This matter concerns the vacant matai title Savea, attached to Matu`u and Faganeanea in the Eastern District. On February 9, 2011, the claimant, Tavita Amani ("Amani"), offered to register the Savea family's title with the Territorial Registrar, pursuant to the provisions of A.S.C.A. §§ 1.0401 et seq. His application attracted a timely objection and "counterclaim," A.S.C.A. § 1.0407, from Ta`amu Iakopo ("Ta`amu"). Consequently, the Territorial Registrar referred the dispute to the Office of Samoan Affairs ("OSA") for conciliation proceedings required by A.S.C.A. § 43.0302.

By memorandum dated November 28, 2011, the Secretary of Samoan Affairs certified an "irreconcilable dispute," § 43.0302, [**2**] for determination by the Lands and Titles Division as a "disputed claim," A.S.C.A. § 1.0409. See Certificate of Irreconcilable Dispute, Serial:288- 2011, Nov. 25, 2011 ("CID").

This matter eventually came on for trial October 18, 2012, with both parties appearing with counsel and presenting evidence. Upon conclusion of the evidence, we directed the parties for final written arguments to specifically include submissions as to this Court's subject matter jurisdiction.

Jurisdiction

[1] In these matters, the Land and Titles Division's jurisdiction to determine a matai title dispute is footed on prior compliance with the requirements of A.S.C.A. § 43.0302. See Fagaima v. American Samoa Gov't., AP No. 01-10, Slip op. (App. Div. Nov. 15, 2012) and Koko v. Kneubuhl, AP No. 11-09, Slip op. (App. Div. Nov. 30, 2011). Section 43.0302 provides in pertinent part:

(a) Before any action relating to controversies over communal land or matai titles may be commenced in the Land and Titles Division, each party shall file with his complaint a certificate signed and attested by the Secretary of Samoan Affairs or his

High Court of American Samoa Slip Opinions (2013)

deputy, in which the Secretary or his deputy affirms and states:

(1)that on at least 2 occasions, the parties have appeared personally before him and 2 persons designated by him, without an attorney or counsel, and that an attempt was made to resolve the controversy; (2)that all parties to the controversy received at least 20 days notice for each of the 2 required appearances;

(3)the date and hour of the beginning and conclusion of each appearance;

(4)the findings and conclusions of the Secretary or his deputy and the 2 designees with respect to the controversy heard before them, including a statement of the reason why the controversy could not be resolved.. . . [**3**]

Here, the evidence shows that: 1) OSA scheduled two separate section 43.0302 meetings for August 3, 2011 and August 24, 2011; 2) OSA duly gave notice to both parties accordingly; 3) while Amani and his supporters responded to the notice and appeared at OSA on both occasions, Ta`amu did not; 4) Ta`amu had previously indicated to Tavita that he would not be attending the scheduled meetings and his failure to show was deliberate; 5) then Secretary of Samoan Affairs Tufele Li`amatua presented himself as facilitator on both of these occasions, however, the resulting CID was issued under signature of his successor Secretary Lefiti F. Pese; 6) the CID concludes that "the matter could not be resolved among the parties. However, the Objector Ta`amu Iakopo failed to appear on both scheduled hearings."

[2] For reasons discussed infra, we assert jurisdiction to determine Amani's succession claim, but not Ta`amu's. Notwithstanding the non-happening of an inter-partes conference at OSA, as statute contemplates in the normal course, we nonetheless conclude jurisdiction to entertain the merits of Amani's succession claim. He filed a section 43.0302(a) conforming pleading (complaint plus CID); he duly attended the OSA noticed meetings; he was ready and willing to "attempt," § 43.0302(a)(1), conciliation; the proceedings concluded with the issuance of a CID containing a finding averring to Ta`amu's failure to appear on both occasions and a conclusion of irreconcilable dispute referred for judicial review. CID at 2.

[3] We hold that Amani has satisfied the requirements of § [**4**] 43.0302, for initiating a claim that can be entertained by this Court,

High Court of American Samoa Slip Opinions (2013)

while Ta`amu has not. In so holding, we construe § 43.0302 as requiring a party to attend the prescribed meetings before such a party's succession claim is ripe for adjudication. The legislative purpose manifested by the enactment of § 43.0302 is an extra- judicial opportunity for parties to "attempt" a resolution themselves, and case authorities have accordingly given effect to requirements of § 43.0302 as a prerequisite to judicial review. See Fagaima; Koko. Here, however, Ta`amu had no intention whatsoever of complying with § 43.0302 since his failure to attend the OSA scheduled meetings was clearly wilful and deliberate. See also CID at 2.

[4] In asserting jurisdiction to hear Amani's claim, we necessarily distinguish Fagaima v. American Samoa Gov't., and Koko v. Kneubuhl, AP No. 11-09 (Nov. 30, 2011). The factual circumstances under review by the Appellate Division in both these matters concerned an institutional wanting on the part of OSA to ensure that § 43.0302 meetings were not allowed to become "merely perfunctory in nature and not in any way a serious exercise to satisfy the aims of A.S.C.A. § 43.0302(a); viz, `an attempt . . . to resolve the controversy.'" (citing the enactment). Id. slip op. at 4. The circumstances before us however, are quite different. Here, we are dealing with a situation not akin to institutional failure to comply with statutory process, but party failure akin to deliberate default. Under the circumstances, we are reminded in Ava v. Moe, 8 [**5**] A.S.R.2d 95, 96 (Land & Titles Div. 1988), that the standard of "natural justice and convenience," as provided in A.S.C.A. § 3.0242,1 demands, among other things, that the non defaulting party should eventually get his day in this Court. Guided, therefore, by the standard of natural justice and convenience, as well as the analogous Trial Court Rules of Civil Procedure dealing with party default, see T.C.R.C.P. Rule 55, we proceed without further delay to consider the merits of Amani's succession claim.

Findings

The evidence shows, and we so find, that Amani is eligible and qualified to succeed to the Savea family's senior matai title, giving due regard to the eligibility requirements prescribed by A.S.C.A. §

1 A.S.C.A. § 3.0242(b) reads: In any matter of practice or procedure not provided for, or the strict compliance with any rule of practice or procedure maybe inequitable or inconvenient, the land and titles division may act in each case in such manner as it considers to be most consistent with natural justice and convenience.

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1.0403. We are satisfied that Amani is more than one-half Samoan blood, that he was born in American Samoa, that he satisfies the prescribed residency requirements, that he enjoys the support of his family for the title, and that he has lived with Samoans as a Samoan.

Moreover, in light of the criteria prescribed by A.S.C.A. § 1.0409(a)-(d) for determining disputed claims, we additionally find as follows: a) Hereditary Right

[**6**] We find that Amani descends from a former titleholder Savea Taigaafi, his great, great grandfather. We are satisfied that Amani is entitled to hold the matai title Savea. b) Clan Support

[5] The evidence suggests that in the absence of a family matai, the day- to-day responsibilities of the Savea family has devolved to those family members who actually reside in Matu`u and Faganeanea (the lotoifale). Within the lotoifale, the family's day-to-day interaction has resulted in the evolution of four distinct sub-clans; namely Puapuaga, Laufoli, Mafina, and Faasoo. With regards to meetings of the lotoifale, the evidence shows that Amani has the overwhelming support of the majority of the sub-clans, to wit; Mafina, Puapuaga, and Laufoli. However, a meeting of the extended family, including those who reside outside of Matu`u and Faganeanea, resolved inconclusively.

We conclude that Amani's candidacy is well supported by the family's clans. c) Forcefulness, Character, Personalty and Knowledge of Samoan Customs

Amani is 64 years of age. His formal educational background was geared toward a pastoral career. He completed his studies at the Kananafou Theological Seminary and he also obtained a Bachelor of Divinity degree from the Pacific Theological College in Fiji. Subsequently, he was ordained and later held for many years the position of General Secretary of the Christian Congregational Church in American Samoa. Amani has also held secular employment positions with the American Samoa Government [**7**] (Public Works, Tax Office, House of Representatives), as well as with the private sector (Amerika Samoa Bank). He also has rental income.

High Court of American Samoa Slip Opinions (2013)

From his employment history and the success he has enjoyed with his educational endeavors, from his demeanor on the witness stand and his responses to direct examination and cross examination, we are satisfied that Amani has demonstrated the personal qualities, to which this statutory criterion speaks, sufficient to sustain his claim to capable family leadership. d) Value to Family, Village and Country

[6] Amani has primarily lived with and rendered traditional service to the family in Matu`u and Faganeanea. In the absence of a matai, he has been in the forefront of family affairs and cultural obligations. On many occasions, he has served as family spokesperson. He is well versed in family matters. Also telling, in terms of value to the family, is Amani's steadfast rejection of the unprecedented suggestion by Ta`amu that the family's title have two co-holders. Not only does such a suggestion run afoul of the law, see A.S.C.A. § 1.0414, but if implemented would not only impact the dignity and prestige of the Savea title, but also promote the sort of unnecessary divisiveness that necessarily comes with dual (or dueling) leadership. (Incidentally, this is a factor that also speaks to "character." supra.)

In terms of value to village and country, Amani has acquitted himself commendably in terms of beneficial service to [**8**] Matu`u and Faganeanea as a church official and lesser matai of the Savea family, and to the American Samoa Government as an employee.

Conclusion and Order

From the foregoing, we hold:

1. The non-conforming petition/counter-claim filed herein by Ta`amu be and is hereby dismissed on jurisdictional grounds; and

2. Amani is both eligible and qualified to hold the matai title Savea and we so certify to the Territorial Registrar. We direct that a certificate of succession to the matai title Savea, appertaining to the Village of Matu`u and Faganeanea, be issued to claimant Tavita Amani.

It is so ordered.

High Court of American Samoa Slip Opinions (2013)

Cite As: Schuster, v. Afoa, LT No. 20-07, slip op. at [page number] (Land & Titles Div. Apr. 3, 2013)(order den. pl.‘s mot. for recon. or new trial)

SALOTE S. SCHUSTER, TAESALI SAM MATAGI, SEUFAGAFAGA, VEA TAUAESE, and RUTH MATAGI- TOFIGA, Plaintiffs/Counter-Defendants,

v.

AFOA L.S. LUTU, Defendant/Counterclaimant, and FASHION BOAT, Defendant.

High Court of American Samoa Land and Titles Division

LT No. 20-07

April 3, 2013

[1] Reconsideration or new trial is appropriate if the court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.

RICHMOND, Associate Justice; and MAMEA, Associate Judge.

Counsel: For Plaintiffs, Fiti A. Sunia For Defendant Afoa L.S. Lutu, Sharron I. Rancourt For Defendant Fashion Boat, Pro Se

ORDER DENYING PLAINTIFFS‘ MOTION TO RECONSIDER OR FOR NEW TRIAL

Background

A detailed statement of facts is provided in this Court‘s October 9, 2012 Opinion and Order. Briefly restated, Plaintiffs initiated this action to determine the status of the communal land named Asila (―Asila‖). After a trial on the matter, the Court was required to resolve (1) which family owned Asila and (2) who presently controlled the occupancy and use of Asila.

After extensively examining the evidence and past case law, we determined that Asila, including the guesthouse and Pritchard building structures on the land, was the Afoa, Lutu, Taesali and [**2**] Tupua

High Court of American Samoa Slip Opinions (2013)

family‘s communal land. Additionally, the Lutu family possessed Asila pursuant to a mutual agreement within the Afoa, Lutu, Taesali and Tupua families. We also determined that the incumbent holder of the Lutu title controls the Lutu family‘s possession of Asila in matters of immediate concern to Lutu family members. However, when there are vacancies in the Lutu title, the incumbent holder of the Afoa title exercises that control. Afoa, as the sa‘o of the Lutu family during the present vacancy, therefore had the authority to handle these matters. We further found that holders of the Afoa, Lutu, Taesali and Tupu titles jointly control Asila in matters of principal concern to the larger Afoa, Lutu, Taesali and Tupua family.

On October 19, 2012, Plaintiffs filed their Motion to Reconsider or for New Trial. We heard this matter on January 24, 2013. For the reasons stated below, we deny Plaintiffs‘ motion.

Discussion

[1] A motion to reconsider or for new trial should be based upon manifest error of law or mistake of fact, and a judgment should not be set aside except for substantial reasons. Am. Samoa Gov’t v. South Pacific Island Airsystems, Inc., 28 A.S.R.2d 170, 171 (Trial div. 1995). Reconsideration or new trial is appropriate if the court (1) is presented with newly [**3**] discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law. TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R. 3d 225, 229 (Trial Div. 2000). A party moving for reconsideration or new trial must do more than merely reiterate the trial court‘s reasons and then blindly assert that the court was incorrect. G.M. Meredith and Associates v. Blue Pacific Management Corp., 28 A.S.R.2d 204, 206 (Trial Div. 1995). The decision whether to grant a motion for reconsideration is within the broad discretion of the trial court. Pulu v. Pulu, 8 A.S.R.3d 230, 231 (Land & Titles Div. 2004).

In their Motion to Reconsider or for New Trial, Plaintiffs do not present newly discovered evidence or direct the Court to an intervening change in controlling law. Rather, Plaintiffs insist that the Court was mistaken in its October 2012 opinion.

Plaintiffs first contend that the Court erroneously vested Afoa with Lutu‘s sa‘o authority. Plaintiffs argue that there is no law that authorizes the Court to vest Afoa, the sa‘o of the Afoa family, with the authority of a sa‘o over the Lutu family when the Lutu title is vacant. Plaintiffs claim that allowing Afoa this authority runs counter to the traditional Samoan way of life. Plaintiffs state that instead of vesting this authority in Afoa, all matters relating to the communal land of the [**4**] Lutu family

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should be referred to the larger Lutu, Afoa, Taesali and Tupua family during a vacancy of the Lutu title.

We disagree. As stated in our October 2012 opinion, in Afoa Molioo v. Lutu and Faagata, 1 A.S.R. 121 (Trial Div. 1905), the Court determined that the Afoa titleholder had the authority to appoint the successor to Lutu title when the title is vacant. This holding was affirmed by the Court in Faagata and Lauvale v. Afoa, 1 A.S.R. 524 (Trial Div. 1935). While this selection method was later replaced by a statutory selection process, the previous findings by the Court concerning the powers of the Afoa titleholder are consistent with our finding that the incumbent holder of the Afoa title has pule over Asila when the Lutu title is vacant. Plaintiffs have failed to prove any manifest error on the Court‘s part, and their claim must therefore be denied.1

Plaintiffs next contend that the Court failed to rule on the issue of how rent from the Pritchard building should be distributed. Plaintiffs claim that because the Court found the Pritchard building was the communal property of the larger Lutu, Afoa, Taesali, and Tupua family, then the Court should also rule that the rent collected from the Pritchard building is communal property of the larger family.

[**5**] Contrary to Plaintiffs‘ contention, we determined in our October 9, 2012 Opinion and Order that during a vacancy in the Lutu title when the Afoa titleholder controls the occupancy and use of Asila, the incumbent Afoa‘s authority over Pritchard building on Asila includes control over the rentals and other management matters pertaining to that building. Plaintiffs have not provided any persuasive reason to change that holding.

Plaintiffs finally contend that the Court mistakenly refers to Afoa, Lutu, Taesali and Tupua as the larger extended family in our October 9, 2012 Opinion and Order. Plaintiffs claim that the family has been traditionally referred to as the Lutu, Afoa, Taesali and Tupua family and asks that the Court amend its order in this regard. We stated the four names in alphabetical order only for purposes of the Opinion and Order. Any different traditional use in the order of the names was neither persuasively established by the evidence nor significant to deciding the issues before us.

Conclusion

1 Plaintiffs ended their argument with the claim that the current Afoa titleholder is ineligible to legitimately hold said title because he was born in Western Samoa. Our task in this litigation was to determine who controlled the occupancy and use of Asila. We have done so, and we therefore decline to address the specifics of Plaintiffs‘ claim.

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Plaintiffs must show that the Court committed clear error or that the decision was manifestly unjust in order for this Court to amend its judgment or grant a new trial. Plaintiffs have failed to do so, and we therefore deny Plaintiffs‘ motion. [**6**]

Order

Plaintiffs‘ Motion to Reconsider or for New Trial is denied. It is so ordered.

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Cite As: Amani v. Ta’amu, MT No. 01-12, slip op. at [page number] (Land & Titles Div. Apr. 29, 2013)(order den. mot. for new trial)

TAVITA AMANI, Claimant,

v.

TA’AMU IAKOPO, Objector.

[In re Matai Title “SAVEA” of the Villages of Matu’u and Faganeanea]

High Court of American Samoa Land & Titles Division

MT No. 01-12

April 29, 2013

[1] A.S.C.A. § 43.0302 mandates that each party, individually, is responsible for attending the prescribed meetings.

[2] One party‘s dereliction with section 43.0302 requirements will not be held adversely against another party by unduly delaying the timely adjudication of the latter‘s succession claim.

[3] If a party deliberately opts to willfully ignore statutorily mandated conciliation proceedings, set forth in A.S.C.A. § 43.0302, that party's "default" prevents this Court from asserting jurisdiction over his or her claims.

[4] One party cannot take advantage of a party-opponent's compliance with statutory requirements nor can a party preclude a party-opponent's access to the Court.

[5] The procedure in the Land and Titles Division is guided by the standard of natural justice and convenience.

[6] Pursuant to the standard of natural justice and convenience, a party who complies with A.S.C.A. § 43.0302 should not be prevented from seeking his day in court by an opposing party that deliberately refuses to comply with jurisdictional prerequisites.

[7] Where one party deliberately refuses to comply with jurisdictional prerequisites, the court will only assert jurisdiction over the party-

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opponent‘s claim, assuming that the party-opponent has complied with jurisdictional requirements.

[8] Although the Court declined to assert jurisdiction over one party‘s claims due to unsatisfied statutory prerequisites, the nature of the matter did not then evolve into an "undisputed," matter; the matter became unquestionably disputed when a counter-claim was filed with the Territorial Registrar and the section 43.0302 proceedings having been to no avail.

[9] Notwithstanding the fact that only one party‘s succession claim was ripe for adjudication, that party still had to meet his burden to prove that he is not only eligible, A.S.C.A. § 1.0404, but also qualified, A.S.C.A. § 1.0409, to hold the important office of matai.

Before KRUSE, Chief Justice; LOGOAI, Chief Associate Judge; SU‘APAIA, Associate Judge; SATELE, Associate Judge; and MUASAU, Associate Judge.

Counsel: For Claimant, Matailupevao Leupolu, Jr., For Objector, Fiti A. Sunia

ORDER DENYING MOTION FOR NEW TRIAL

This matter involves the vacant matai title Savea attached to the village of Matu`u and Faganeanea. At trial on the merits, we took cognizance of claimant Tavita Amani's claim to succession, while dismissing counter- claimant Ta`amu Iakopo's claim for want of jurisdiction.

By way of backdrop, on February 9, 2011, claimant Tavita Amani ("Amani"), offered to register the Savea family's title with the Territorial Registrar pursuant to A.S.C.A. §§ 1.0401 et seq. His application attracted a timely objection and counter-claim by Ta`amu Iakopo ("Ta`amu"), pursuant to A.S.C.A. § 1.0407. As a result, the Territorial Registrar referred this matter to the Office of Samoan Affairs ("OSA") for conciliation proceedings [**2**] as required by A.S.C.A. § 43.0302.

OSA scheduled two separate section 43.0302 meetings for August 3, 2011 and August 24, 2011, and duly gave notice to the parties for both meetings. While Amani and his supporters attended the scheduled meetings at OSA, Ta`amu failed to appear on both occasions. The evidence showed that Ta`amu's failure to appear was deliberate. Despite Ta`amu's absence, OSA issued a Certificate of Irreconcilable Dispute ("CID") dated November 28, 2011, certifying an "irreconcilable dispute." The CID noted Ta`amu's conspicuous non-participation. See Certificate of Irreconcilable Dispute, Serial: 288-2011, Nov. 25, 2011.

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This matter came on for trial October 18, 2012, with both parties appearing with counsel. Upon the conclusion of the evidence, we directed the parties to submit arguments as to this Court's subject matter jurisdiction. On February 7, 2013, we issued an Opinion and Order, holding that while Amani satisfied the requirements of A.S.C.A. § 43.0302, Ta`amu did not. Thus, we asserted jurisdiction over Amani's succession claim, but declined to so assert with Ta`amu's because of his deliberate non-compliance with the requirements of A.S.C.A. § 43.0302, and his inability, therefore, to file his initiating pleading with an accompanying CID, as contemplated by statute for each party. In so holding, we construed § 43.0302 as requiring a party to attend the prescribed meetings before such a party's succession claim is ripe for adjudication. Subsequently, Ta`amu filed the present motion for reconsideration or new trial. [**3**]

Discussion

[1]-[2] Ta`amu argues that the Court erred by inserting a "default" provision into A.S.C.A. § 43.0302(a) because courts do not have the authority to legislate. However, this argument is flawed because rather than inserting a default provision into the statute, we merely construed the statute [a judicial rather than legislative function] and analyzed the meaning of the language therein employed by the legislature. Specifically, A.S.C.A. § 43.0302(a) states that "[b]efore any action relating to controversies over . . . matai titles may be commenced in the Land and Titles Division each party shall file with his complaint a certificate signed and attested by the Secretary of Samoan Affairs or his deputy . . . " A.S.C.A. § 43.0302(a) (emphasis added). We construed section 43.0302 to mean that each party, individually, is responsible for attending the prescribed meetings. Based on the statutory language, we further determined that the Fono could not have intended to allow Ta`amu's dereliction with section 43.0302 requirements to be held adversely held against Amani by unduly delaying the timely adjudication of latter's succession claim until Ta`amu was willing to participate in OSA hearings.

[3]-[4] The issue before us, therefore, is a jurisdictional issue; in order to have matai succession claims heard by the court, certain statutory requirements must be satisfied. If a party deliberately opts to willfully ignore statutorily mandated conciliation proceedings, set forth in A.S.C.A. § 43.0302, that [**4**] party's "default" (which we use in the generic sense to signify non-appearance) prevents this Court from asserting jurisdiction over his or her claims. Otherwise, the whole statute could simply be rendered nugatory. In other words, one party cannot take advantage of a party-opponent's compliance with statutory requirements nor can a party preclude a party-opponent's access to the Court.

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[5]-[7] Moreover, the procedure in the Land and Titles Division is guided by the standard of "natural justice and convenience." A.S.C.A. § 3.0242(b).1 Here, pursuant to the standard of natural justice and convenience, a party who complies with A.S.C.A. § 43.0302 should not be prevented from seeking his day in court by an opposing party that deliberately refuses to comply with jurisdictional prerequisites. Accordingly, we seasonably asserted jurisdiction to entertain Amani's claim, consistent with the principles of natural justice and convenience, while declining to assert jurisdiction over Ta`amu's claims for his non- compliance with A.S.C.A. § 43.0302. Fagaima v. American Samoa Gov't., AP No. 01-10, Slip op. (App. Div. Nov. 15, 2012); Koko v. Kneubuhl, AP No. 11-09, Slip op. (App. Div. Nov. 30, 2011) (The Land and Titles Division's jurisdiction to determine a matai title dispute is footed on prior compliance with the [**5**] requirements of A.S.C.A. § 43.0302).

[8]-[9] Although we declined to assert jurisdiction over Ta`amu's claims due to unsatisfied statutory prerequisites, the nature of the matter did not then evolve into an "undisputed," matter; the matter became unquestionably disputed when Ta`amu filed a counter-claim with the Territorial Registrar and the section 43.0302 proceedings having been to no avail. Even though Amani was the only claimant that (i) filed a section 43.0302 conforming pleading (complaint plus CID), (ii) attended two OSA meetings, and (iii) was ready and willing to "attempt" section 43.0302(a)(1) conciliation, the Court did not err in asserting jurisdiction to hear only Amani's claim. Notwithstanding the fact that Amani's was the only succession claim ripe for adjudication, Amani still had to meet his burden to prove that he is not only eligible, A.S.C.A. § 1.0404, but also qualified, A.S.C.A. § 1.0409, to hold the important office of matai of the Savea family. In our view, Amani presented substantial evidence to discharge that burden.

Ta`amu also argues that the Court denied him due process because he had no notice of the default situation, and that he should have been given the opportunity to explain why he did not attend the meeting at OSA. This is but a variant of Ta`amu's flawed "default" argument we above addressed and dismissed. Ta`amu like Amani (and the rest of the world), had notice of A.S.C.A. § 43.0302 and its requirements. Like Amani, and everybody else, Ta`amu had notice that "each" party's prior compliance [**6**] with the requirements of A.S.C.A. § 43.0302 is a necessary

1 "In any matter of practice or procedure not provided for, or where the strict compliance with any rule of practice or procedure may be inequitable or inconvenient, the land and titles division may act in each case in such manner as it considers to be most consistent with natural justice and convenience." A.S.C.A. § 3.0242(b).

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condition to entry into the courthouse, and a judicial remedy. Unlike Amani, Ta`amu took it upon himself to simply ignore the law and the threshold requirement section 43.0302. Moreover, Ta`amu had every opportunity to meet any and all evidence presented by Amani during the trial. Ta`amu's claim, therefore, to somehow being deprived of the opportunity to explain why he did not attend OSA meetings, is more accurately a lost opportunity of his own making. Trial strategy after all is his alone.

Order

For the foregoing reasons, Defendant's motion for reconsideration or new trial is denied. It is so ordered.

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Cite As: Am. Samoa Gov’t v. Avamua, LT No. 10-08, slip op. at [page number] (Land & Titles Div. May 1, 2013)

AMERICAN SAMOA GOVERNMENT, Plaintiff,

v.

AVAMUA DAVE HALECK, et al., Defendants.

High Court of American Samoa Land & Titles Division

LT No. 10-08

May 1, 2013

[1] Undeveloped bushland is the antithesis of "individually-owned" land, as that notion was interstitially developed by caselaw.

[2] Where there is compelling evidence that someone has procured a registration of land in individual ownership on the basis of an outright misrepresentation of fact, namely, that the subject land had been cleared, cultivated, and occupied, the Court cannot assume that the Territorial Registrar recorded title only after complying with its obligations under the law.

[3] Where there was clear evidence that the disputed area was indeed a rainforest, the defendant‘s individual land ownership claim was simply not sustainable on the facts.

[4] An individual cannot obtain title to lands as his or her individually- owned land simply by registering title with the Territorial Registrar.

[5] It is the initial occupation of virgin bush land and continued and effective use thereof which gives rise to individual title as a matter of law, NOT registration.

[6] The registration statute, A.S.C.A. §§ 37.0101 et seq., does not create individually-owned title to land.

[7] Where defendant‘s predecessor had not obtained lawful individually- owned title to a primary forest, no individual title rights could be acquired by defendants in the land at issue.

[8] Since the enactment of the American Samoa Coastal Management Act of 1990, A.S.C.A. §§ 24.0501-0510, there can be no more willy-

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nilly self help to bush land on the Islands of American Samoa, its foreshore and attendant seabed areas.

[9] Any attempts by individuals to acquire bush land through initial clearing, cultivation and occupation, shall be subject to prior compliance with the provisions of the ASCMA.

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

Counsel: For Plaintiff, Eleasalo V. Ale, Deputy Attorney General For Defendants, Roy J.D. Hall, Jr.

OPINION AND ORDER

On January 17, 2013, following a 4-year hiatus, this matter finally came on for trial upon Plaintiff's outstanding application for injunctive relief; the American Samoa Government, Department of Commerce, and American Samoa Coastal Management Program ("ASG") sought to enjoin Defendants' threatened destruction of what remains of the Tafuna plain's lowland rainforest ("Rainforest"). Essentially the issue for determination is whether a previously issued provisional injunction should be permanently rendered.

After hearing the parties' presentation of evidence, we directed post-trial briefings on, inter alia, the Territory's land registration law. Now having considered all of the evidence thus presented throughout by the parties,1 together with the [**2**] parties' briefings and various submissions, and from our observation of the disputed area consequent to a site visit in connection with an earlier contempt citation proceeding, we grant ASG's petition for permanent injunctive relief.

Background

To recapitulate, ASG initiated action on April 11, 2008, seeking a preliminary and permanent injunction against the defendants Avamua Dave Haleck ("Haleck") and unnamed persons of interest (collectively "Defendants"). We only learned the identities of the unnamed defendants, indirectly, during trial when a colored aerial imagery of the Rainforest outline, collected in 2012, was presented in court as "Exhibit 2." The area was shown with subdivision markings delineating seven named individuals of the Haleck family, as confirmed by Haleck, together with one of these individual's successor-in-interest, the

1 For factfinding purposes, we considered the consolidated record herein including the evidence received at the preliminary proceedings, in accordance with T.C.R.C.P. Rule 65.

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Congregational Christian Church of American Samoa.2 ASG petitioned to enjoin a perceived, and publicly avowed, threat by Haleck to clear and destroy the remaining lowland rainforest area in Tafuna purportedly owned by Defendants. [**3**]

On April 22, 2008, we issued ex parte a Temporary Restraining Order pursuant to A.S.C.A. §§ 43.0303-04. See Am. Samoa Gov't. v. Haleck, LT No. 10-08, (Land & Titles Div. Aug. 13, 2008) (Interim Order). Following an inter partes hearing, we granted provisional relief to ASG on August 14, 2008, maintaining the status quo by enjoining Defendants from clearing or developing the Rainforest without first obtaining a Land Use Permit under the American Samoa Coastal Management Act, A.S.C.A. §§ 24.0501-24.0510, ("ASCMA"). This Act prohibits actions that may adversely affect coastal resources without a land use permit. A.S.C.A. §§ 24.0501-0510; see Am. Samoa Gov't v. Haleck, LT No. 10- 08, (Land & Titles Div. Aug. 13, 2008) (Order on Pl.'s Mot. for Prelim. Inj. Relief). Moreover, we raised sua sponte what seemed to us to be the "glaring illogicality" of Haleck's claim to "individually-owned" title to the subject matter of the dispute, namely, some 26 acres of "rainforest." The terms are incompatible; whereas the rainforest is virgin bushland, void of human settlement and occupation, individually-owned land takes its very essence from the very fact of human encroachment. Thus, we earlier noted:

[I]ndividually-owned land is land that has been: `(1) cleared in its entirety or substantially so from the virgin bush by an individual through his own initiative and not by, for or under the direction of his aiga or the senior matai, (2) cultivated in its entirety or substantially so by him, and (3) occupied by him or his family or agents continuously from the time of the clearing of the bush.' Leuma v. Willis, 1 A.S.R.2d 48, 54 (Land & Titles Div. 1980) (emphasis added), (citing Fanene v. Talio, slip op. LT No 64-77 (1977)). However, land which remains to be rainforest is, to overstate the obvious, forested--

2 This fact also raises an interesting aside. In Craddick v. Territorial Registrar of Am. Samoa, 1 A.S.R.2d 10, 14 (App. Div. 1980), the Appellate Division confirmed, as an incident of individually-owned land, a racial restriction in ownership to persons of 50% Samoan blood content. The question as to how a church organization fits into such a racial class, is an issue for another day. Cf. A.S.C.A. § 37.0204(d) (allowing the transfer of "native [as opposed to individually-owned] land," upon approval of the governor, "of sufficient land for the erection thereon of a church, or dwelling house for the pastor, or both; provided, that the reconveyance and retransfer of such land shall be to native Samoans only" as the governor may approve).

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a diametrically [**4**] opposed set of defining characteristics to land that has been cleared, cultivated, and occupied.

The land at issue is allegedly individually-owned and as such must have been cleared, cultivated, and continuously occupied--the hallmarks of human habitation, but this is apparently not the case. A proposition that rainforest land can be individually-owned is plainly nonsense; the two are logical contradictions.

Id., slip op. at 4.

After the interlocutory proceedings, the parties filed on September 29, 2008, a stipulated motion to continue the hearing of a pending reconsideration motion filed by Haleck, in order "to allow the parties to discuss a resolution of the issues in the above-entitled matter." As events have unfolded, however, extrajudicial resolution was either unsuccessful or not at all pursued. The matter then lay dormant for a period of time, without either party moving to advance the case forward to final disposition on the merits. It later became apparent, however, that Haleck had sought, in the interim, to have the United States Secretary of the Interior intervene in the matter.3

The paper chronology in the Clerk's file reveals that on September 20, 2011, the Court received a copy of a letter from [**5**] the Office of Insular Affairs, Department of the Interior ("DOI") dated September 9, 2011, and ostensibly addressed to Haleck's off-island lawyer, advising that DOI has a strong commitment to promoting self-government in American Samoa including respect for its courts' authority to operate within its jurisdiction and authority. Consequently, DOI declined Haleck's apparent request to "direct the American Samoa Government to pay compensation for the Ottoville Lowland Forest and instruct the High Court of American Samoa to vacate its August 13, 2008 decision in American Samoa Government v. Haleck."

This matter was eventually placed on the Court's calendar for trial on the merits earlier this year. At issue is whether the preliminary injunction should either be terminated or made permanent. At trial, we heard from

3 American Samoa is an unorganized and unincorporated territory of the United States. As an unorganized territory, Congress has, in the exercise of its plenary power, merely delegated to the executive branch "all civil, judicial, and military powers," over American Samoa, until such time as Congress shall provide organic legislation. See 48 U.S.C. §1161(c). The current repository of that delegated authority for the administration of civil government in American Samoa, is the Secretary of the Interior. See EXECUTIVE ORDER NO. 10264 (June 29, 1951).

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two witnesses called by ASG: Adam C. Miles, a wildlife biologist employed by ASG's Department of Marine and Wildlife, as well as from Haleck.

Discussion

I. Individually-Owned Rainforest

[1] The rather brief evidentiary presentation given at trial has only served to confirm our initial impressions garnered at the interlocutory proceedings: namely, the disputed land area is indeed undeveloped bushland. Defendants' claim to the disputed land area is individually- owned land. By definition, a rainforest is the antithesis of "individually- owned" land, as [**6**] that notion was interstitially developed by caselaw.4

[2] Defendants argue that the Court must assume--absent compelling evidence to the contrary--that the Territorial Registrar recorded title only after complying with its obligations under the law. The immediate problem we have with Defendants' submission is that the Land and Titles Division cannot simply overlook and ignore something that smacks as palpable fraud. Our concern does not implicate the Territorial Registrar and his obligations under the law, but rather the actions of the registrant- -Defendants and/or their predecessor-in-interest. With the many land registration disputes that have come before this division, we take judicial notice of the fact that every application to register title to land in American Samoa is made on a standard form supplied by the Territorial Registrar. This form contains a jurat which effectively requires [**7**]

4 The Fono has only supplied definitions for two categories of land in American Samoa. "Freehold lands" is defined in A.S.C.A. § 37.0201(b) "as those lands included in court grants prior to 1900. . ." An incident of ownership of freehold land, as is familiar in every common law jurisdiction, is that it is freely alienable. "Native land," on the other hand, is defined as meaning "communal land." A.S.C.A. § 37.0201(d). This category is not freely alienable. See A.S.C.A. §§ 37.0201-30. However, title to such land may be individualized by way of transfer to "native" Samoans, if the governor approves. Moreover, native land may be transferred to the United States or Territorial government for "governmental purposes." Subject to gubernatorial approval, "sufficient [native] land for . . . a church and pastor" may also be transferred to an "authorized, recognized religious society." "Individually-owned" lands, as developed by caselaw, is a category of landholding that recognizes personal "native" effort to settle and occupy virgin bush land, independent of any communal ties. How this landholding category fits into the Samoan customary scheme of things, to the exclusion of any "non native" effort, remains a muddled work in progress.

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an applicant to declare under oath that all the factual recitations in the application are indeed correct. With regard to the matter at bar, the pertinent recitation of facts supplied to the Territorial Registrar would have included the registrant's declaration under oath that the land proposed to be registered is his individually-owned holding. However, there is compelling evidence before us that someone has procured a registration of land in individual ownership on the basis of an outright misrepresentation of fact; namely, that the subject land had been "(1) cleared in its entirety or substantially so from the virgin bush by an individual through his own initiative and not by, for or under the direction of his aiga or the senior matai, (2) cultivated in its entirety or substantially so by him, and (3) occupied by him or his family or agents continuously from the time of the clearing of the bush." Leuma, 1 A.S.R.2d at 54.

Moreover, the record before us, which includes adverse admissions by Haleck, cannot be ignored. On January 13, 2009, and following a complaint by ASG alleging violations of the preliminary injunction on Haleck's part, we visited the interior of the disputed forested area, which was hidden from the main public thoroughfare. Upon observation, it was very evident that Haleck had been in the process of clearing and cutting native vegetation in an effort to stake out a new access way in the midst of the bush. We first observed at the periphery of the verdant growth, and hidden from the main road, large areas of recently cleared bush-- with scattered remnants of old growth in [**8**] the way of towering banyan trees--that had been levelled and landscaped with cinder fill. Additionally, we observed new residential homes built and being built on the clearing, surrounded by the stark contrast of the flora. A consequence of this piecemeal clearing, according to wildlife biologist Miles, is fragmentation of the forest and disturbance of the microclimate and natural habitat within it. In the jargon, clearing promotes "edge effects," which reduces the value of the primary forest to wildlife.

Away from the clearings, toward the interior of the Rainforest, our visual inspection revealed native growth or virgin bush as yet untrammeled by human activity. As virgin bush, the Rainforest with its unique ecological implications, appeared undisturbed--even free of the hardy coconut tree-- notwithstanding nearby and concentrated human habitation. Mr. Miles, who has been extensively involved with studying the Territory's terrestrial wildlife, is a bat specialist who has been primarily looking into the relationship between the two large fruit bat species on-island and the forest resources that is their habitat. During trial, he identified three native trees that are dominant only in the lowland--as opposed to ridge-- forest and are important to bat life. The Rainforest is the remaining refuge of these trees which were once plentiful and abundant across the Tafuna plains. But like much of the native plant life that once flourished in the lowland, the numbers of [**9**] these native trees has given way

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to forest clearing and haphazard5 human settlement. Indeed, Mr. Miles adverted to one native tree in particular, a stinging nettle variety, as being found only in the disputed area. He further stressed in his testimony the importance of the Rainforest as a unique ecosystem because it contains one of the top three bat roosts--and possibly the largest roost--on the island. Moreover, Miles testified that development of the Rainforest would displace the bats and birds, including the manuma (many colored fruit dove) the manutagi (purple cap fruit dove) and the lupe (Pacific pigeon) that have sought refuge in the lowland. There are no other primary forests in the lowland area.

[3] In view of the irrefutable and clear evidence that the disputed area is indeed a rainforest, and given what we observed on site, we find that Haleck's ownership claim is simply not sustainable on the facts. The disputed rainforest bears no signs of human habitation, development, or continuous occupation.

At best for Defendants, their submission might appear to be [**10**] urging this Court to apply a Torrens title system of land registration in American Samoa, as is implemented in countries such as Australia and New Zealand. However, we can find no local statute on the books evincing any attempt by the Fono to adopt a Torrens system of land registration, whereby indefeasible title to a registered interest in land is guaranteed by the state.

[4]-[6] As explained in our earlier order, an individual cannot obtain title to lands as his or her individually-owned land simply by registering title with the Territorial Registrar. Sese v. Leota, 9 A.S.R.2d 136, 137 (Land & Titles Div. 1988) (stating that the registration enactments do not confer title, but merely estop title claims, provided that the registrant has complied with the requirements of the enactment). "[I]t is the initial occupation of virgin bush land and continued and effective use thereof which gives rise to title as a matter of law, NOT registration." Id. (emphasis added); Leuma v. Willis, 1 A.S.R.2d 48, 54 (Land & Titles

5 See e.g. Sese v. Leota, 9 A.S.R.2d 25, 26-27 (Land & Titles Div. 1988) ("Hodgepodge land development [in the Tafuna plain area]" calling for "the Fono to take a hand in . . . overall land development, by regulating subdivisions and coordinating individual development efforts against some territorial planning standards"); Fania v. Atualevao, 14 A.S.R.2d 70, 72 (Land & Titles Div. 1990) ("The Tafuna plain . . . opened up . . . to real estate speculation . . . in such muddled fashion that it is now perhaps timely to consider appropriate land development criteria"); see also Manoa v. Jennings, 21 A.S.R.2d 23, 24 (Land & Titles Div. 1992) ("This is yet another dispute in the seemingly unending series of land disputes in the Iliili-Airport vicinity--the legacy of unregulated subdivision developments").

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Div. 1980); Fanene v. Magalei, LT No. 64-77 (1977) (defining individually-owned land as cleared, cultivated and continuously occupied).

The Court has said on a number of occasions that there is a single question in a Registration case where the request is for individually-owned land, and that is, has the applicant actually cleared, cultivated and used all of the property . . . [I]f it is established that all of the land has not been so used, it shall be denied in Toto. The fact that a portion of the land may have been used as a plantation by the applicant is of no importance.

Mase v. Noa, 9 A.S.R.2d 39, 46 (Land & Titles Div. 1988) (quoting Fonoti v. Malufau, LT No. 1406-74 (1975)). To be clear, the [**11**] registration statute, A.S.C.A. §§ 37.0101 et seq., does not create individually-owned title to land.

[7] Finding that the Rainforest is indeed a primary forest that was never cleared or continuously occupied, we also find and conclude that Defendants' predecessor had done nothing to obtain lawful individually- owned title to the Rainforest. Therefore, no individual title rights could be acquired by Defendants in the land at issue.

II. Governmental Regulations on Development

[8] We refer to earlier our discussion in Am. Samoa Gov't v. Haleck, LT No. 10-08, (Land & Titles Div. Aug. 13, 2008), slip op. at 5-8, (Order on Pl.'s Mot. for Prelim. Inj. Relief), concerning future bushland development in American Samoa in light of the American Samoa Coastal Management Act of 1990, A.S.C.A. §§ 24.0501-0510 ("ASCMA"). Since this enactment--declaring, among other things, the Islands of American Samoa and its foreshore and attendant seabed areas as the Coastal Zone Management area of American Samoa, subject to regulation by the ASCMA--there can be no more willy-nilly self help to bush land. Id. slip op. at 5; see also Congregational Church of Jesus in Samoa v. Am. Samoa Gov't, 31 A.S.R.2d 122, 139-143 (Land & Titles Div. 1993) (ASCMA and regulations promulgated thereunder are neither repugnant to the Revised Constitution of American Samoa nor inconsistent with Samoan customs). There is thus no unfettered native right to bushland access, without a prerequisite land use permit under the [**12**] provisions ASCMA.6

6 "Coastal resources" or land subject to regulation under the ASCMA include: "pristine ecosystems, . . . areas of scientific interest, . . . undisturbed native vegetation, and critical habitat." A.S.A.C. § 26.0204(G).

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[9] Therefore, any attempts by Defendants to acquire the Rainforest through initial clearing, cultivation and occupation, Leuma, 1 A.S.R.2d at 54, shall be subject to prior compliance with the provisions of the ASCMA.

Conclusion and Order

In view of the foregoing, we find no qualms in granting ASG's request for permanent injunction. The court may issue a permanent injunction only after full and final trial on the merits has been conducted. Constr. Services of Samoa v. Poasa, 5 A.S.R.2d 140, 147 (Trial Div. 2001); A.S.C.A. § 43.1302. To obtain a permanent injunction, a plaintiff must show: "(1) an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction." eBay v. MercExchange, LLC., 547 U.S. 388 (2006).

Here, there is a strong potential for irreparable injury, which cannot be remedied by a legal remedy. The evidence revealed the uniqueness of the Rainforest and quite obviously, clearing any portion of the same would irreparably harm the Rainforest in ways which cannot be undone. [**13**]

The balance of hardships weigh most certainly in favor of Plaintiff, as Defendants cannot be said to be the owners of a primary forest and have no right to development of land to which they hold no lawful title. Furthermore, the public's interest will not be disserved by preservation of the lowland's sole primary forest that contains many of this island's unique species of trees, birds and bats. In fact, the public's interest would only be furthered by the protection of the Rainforest.

For the reasons set forth above, this Court grants ASG's application for permanent injunction. Judgment accordingly. It is so ordered.

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Cite As: Hunkin v. Mapu, MT No. 06-01, slip op. at [page number] (Land & Titles Div. May 3, 2013)

MATAIO P.M. HUNKIN, Petitioner, v. LANU MAPU, Respondent.

[In re Matai Title “TUATAGALOA” of the Village of Vailoatai]

High Court of American Samoa Land and Titles Division

MT No. 06-01

May 3, 2013

Before WARD, Associate Justice; and SALA, Associate Judge

ORDER

A review of this case file prompted by the recent filing of a self-styled Motion To Intervene by Atapana Tu‘ufuli reveals that this matter was initiated by the title claimant, Mataio P.M. Hunkin, by filing his petition in court on Oct. 10, 2001, with the objector/claimant, Lanu Mapu, also filing with the Court on the 29th of October 2001, each contesting for the matai Title ―Tuatagaloa‖ of the village of Vailoa. A trial date of June 27, 2002 was set, upon motion, by the Court on 14 February 2002 at a hearing attended by the parties‘ attorneys of record.

At a status hearing on 25 June 2002, attended by the parties‘ attorneys of record, the trial was continued and a pre-trial hearing established for 25 September 2002. At [**2**] that hearing, the attorneys of record for the parties submitted a stipulation To Continue and To Remand The Matter For Further Family Deliberation, which was granted by the Court.

Some four and one-half years later, during routine pending case file review, the Court issued an Order For Dismissal, based upon the lack of any action taken by the parties since September 2002. That Order, (a copy attached hereto), gave the parties ten days to show good cause why the matter should not be dismissed. The file does not reveal either party filing any such responsive brief, (or anything else, for that matter), since its issuance on 8 March 2007.

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Therefore, now, nunc pro tunc for 26 March 2007, this case is dismissed with prejudice. The Clerk of Courts shall file a copy of this order with the Registrar. So ordered.

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Cite As: Iuli v. Poloa, MT No. 02-12, slip op. at [page number] (Land & Titles Div. May 7, 2013)

IULI ALEXANDER GODINET, Claimant,

v.

POLOA M. L. TULILOA, Objector.

[In re Matai Title “FAIIVAE” of the Village of Leone]

High Court of American Samoa Land & Titles Division

MT No. 02-12

May 7, 2013

[1] A variant of the Sotoa rule, which adopts as the heredity yardstick the closest relationship to the parties' nearest common ancestor, is only viable under certain factual scenarios where all of the candidates are closely related.

[2] The remoteness of ancestry evident with party pedigree does not lend itself to tenable assessment under the traditional rule.

[3] When measuring blood right, the court will rely on ascertainable evidence rather than myth and family lore.

Before KRUSE, Chief Justice; LOGOAI, Chief Associate Judge; MAMEA, Associate Judge; and MUASAU, Associate Judge.

Counsel: For Claimant, Fiti A. Sunia For Objector, Charles V. Ala‘ilima

OPINION

Following a series of Faiivae family meetings convened at Pouono (family's guesthouse), claimant Iuli Alexander Godinet ("Iuli") offered the matai title Faiivae, of Leone, for registration with the Territorial Registrar ("Registrar") pursuant to A.S.C.A. § 1.0405. Counter-claimant Poloa M.L. Tuliloa ("Poloa") timely objected by filing his own succession claim to the title in accordance with A.S.C.A. § 1.0407. In accordance with the requirements of A.S.C.A. § 43.0302, the Registrar

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referred the parties to the Secretary of Samoan Affairs ("Secretary") for mandated conciliation meetings.

The statutory meetings were duly convened; however, the parties were not able to reach any sort of resolution before the Secretary. In accordance with § 43.0302(a), the Secretary issued a Certificate of Irreconcilable Dispute, dated January 25, 2012, [**2**] thereby referring the matter as a "disputed claim," A.S.C.A. § 1.0409, for judicial determination. In due course, the Registrar transmitted his file to the Clerk of Court, in accordance with TCRLT 3, thereby initiating the proceedings now before us.

Discussion

I. Jurisdiction

The Secretary having duly certified an irreconcilable dispute, we note subject matter jurisdiction. A.S.C.A. § 43.0302; see Fagaima v. American Samoa Gov't., AP No. 01-10, Slip op. (App. Div. Nov. 15, 2012) and Koko v. Kneubuhl, AP No. 11-09, Slip op. (App. Div. Nov. 30, 2011).

II. A.S.C.A. § 1.409(c)

On the evidence presented, we make the below findings with regard to the four statutory criteria under A.S.C.A. § 1.409(c):

A. Best Hereditary Right

Iuli traces his ancestry, and hence claim of hereditary entitlement, to Faiivae Sooto. According to Iuli, his ancestor Sooto was the very first Faiivae titleholder.1

Poloa bases his hereditary claim as a descendant of Faiivae Niulaititi. Poloa's version of family history maintains that Sooto was not the first, but the second title holder; and, that his ancestor Niulaititi, an issue of the original holder that preceded Sooto, was the third Faiivae. [**3**]

Even with the variation in party versions, each candidates' ancestral Faiivae would appear to have been from an age of bygone mythical times. As given on the evidence, family history as to the Faiivae title's origins was explained in allegorical reference: the title emanated with/from a being who apparently wavered between the physical and

1 In an early land case, party descendants of Sooto similarly avowed that Sooto was the Faiivae Leo`o, or original titleholder. See Vili v. Faiivae, 1 A.S.R. 138, 139 (Trial Div. 1907).

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spirit worlds. Consequently, our factfinding task is, under the circumstances, made rather interesting, to say the least.

With the pedigrees supplied, we consider each candidate's hereditary right from literal reference. Until 1984, the issue of best hereditary right was decided on the basis of closest relationship to any former titleholder. This manner of measure was a convenient rule to apply. It promoted some measure of certainty, and it also (conveniently) avoided having to deal with the vicissitudes of oral history, traditions, and gafa (genealogies) handed down through the ages by word of mouth.

The rule was not without criticism. In effect, it was clearly inequitable because of its flagrant bias in favor of the candidate who is fortunate enough to have had a parent, or other close ancestor, who was a past titleholder. Moreover, the rule invariably worked capriciously in favor of the progeny of any winning candidate who himself might have been quite remotely entitled under the rule.2 Thus, this Court in In re Matai Title [**4**] Sotoa, 2 A.S.R.2d 15 (Land & Titles Div. 1984) suddenly announced a new rule for assessing hereditary right by focusing the inquiry not on a candidate's closest relationship to a past titleholder but to the original titleholder. This new measure became known as the Sotoa rule, which was thought to be less arbitrary as "[e]very new title holder does not start a new line of heredity." Id.3

Be that as it may, the Sotoa rule was soon found to be laden with its own peculiar baggage of difficulties: many a matai case, like the matter here before us, would also be immersed in bitter disagreement as to the

2 For instance, two brothers vying for a title and whose closest relationship to a titleholder is their grandfather would, under the traditional rule, be deemed to be equally 25% in heredity right. The children of the winning brother, however, are thereby fortuitously elevated in heredity ranking to 50%, under the rule, while their first cousins who descend from the losing brother would be 12.5%. In the Samoan reference, this must make little, if any, sense. 3 This, however, is not a proposition of general application. Indeed, some Samoan families with ancient titles have accepted the development of collateral bloodlines through adoption and heroic tautua (traditional service). See e.g. In re Matai Title Mauga, 5 A.S.R.3d 270, (Land & Titles Div. 2001). [1] In another scenario where the original titleholder's bloodline had died out, two unrelated descent groups have given rise, over the ages, to the establishment of two separate and unrelated family factions, with separate (split title) matai. In re Matai Title Mulitauaopele, 17 A.S.R.2d 75, (Land & Titles Div. 1990); aff'd Mulitauaopele v. Mulitauaopele, 25 A.S,R.2d 43 (App. Div. 1993).

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identity of the founding titleholder, See In re Matai Title Fano, 4 A.S.R.2d 148, 149 (Land & Titles Div. 1987). Moreover, when dealing with gafa going back through the generations, the opportunity for ready mischief--and a better score on the heredity scale--was available (and availed) by presenting pedigree sans a few generational steps in the genealogical ladder. Consequently, a variant of the Sotoa rule [**5**] soon came into use, adopting as the heredity yardstick the closest relationship to the parties' nearest common ancestor. Id. But then again, this variation of the Sotoa rule was only viable under certain factual scenarios where all of the candidates are closely related.

[2]-[3] The evidence here highlights the extent to which this statutory criterion has been fraught with difficulty in the Court's attempts to measure blood right, to the Samoan institution of matai, by resorting to what are essentially imported notions of primogeniture.4 In the very matter before us, the genealogies presented can neither plausibly identify the original titleholder nor a common ancestor unconnected to myth and family lore. Moreover, the remoteness of ancestry evident with party pedigree presented here, simply does not lend itself to tenable assessment under the traditional rule.

Therefore, in terms of Faiivae family history as corroborated by previous Faiivae family disputes before this Court,5 all that can be said, with any measure of assurance, is that the descendants of Faiivae Sooto have, long before the establishment of the American Samoa Government, dominated the title over many generations. At the same time, case history from 1910, 1960 and 1972 also show that Niulaititi's descendants have [**6**] been persistent in their efforts to assert for the record their entitlement as Faiivae heirs.6

On the evidence before us, therefore, all that the Court can ascertain, with any measure of confidence, and we so find, is that candidates are heirs (suli) to the matai title Faiivae. On the extent of their respective proofs and from review of past case history, we rank the parties as equally entitled under the heading of best hereditary right.

4 It may well be time for the Fono to revisit the entitlement issue of heredity in matai disputes. 5 See Tupua v. Aumavae, 1 A.S.R. 231 (Trial Div. 1910); Tago v. Hunkin, 3 A.S.R. 427 (Trial Div. 1960); In re Matai Title Faiivae, 4 A.S.R. 71 (Land & Titles Div. 1972). 6 In the 1960 proceedings, Tago Leti withdrew his candidacy during the course of trial, and in 1972, candidate Agaese Tago's entitlement was upheld, although his bid was ultimately unsuccessful.

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B. Clan7 Preference

[**7**] The weight of the evidence presented suggests that the Faiivae family has in recent times customarily organized itself along four distinct descent lines known as: Saitosua, Fatumala, Niulaititi, and Tuitagivale. We accordingly find that the family has four clans.

The evidence further shows that the assembled family had painstakingly met repeatedly, under the able direction of Chief Taeleifi, in its attempts to select a matai. At the outset, each clan had its own candidate presented for consideration before the assembled family. Iuli was nominated by the Fatumala clan while Poloa was the favored son of the Niulaititi clan. Over the course of extended family debate, three of the clans agreed on Iuli. Saitosua and Tuitagivales' candidates were subsequently withdrawn, with these clans throwing in their support for Iuli. Poloa remained steadfast and unyielding in his bid for the family's title. We find that Iuli has garnered majority clan support.

7 The term "clan," as employed in A.S.C.A. § 1.0409(a)(2), has also been a vexing source of difficulty in matai title cases. The term is not legislatively defined; however, the term does contemplate variable and flexible treatment, in that the Fono has alluded to "those clans of the family as customary in that family." Id. As a result, litigants have tended to supply in matai title cases a myriad of variations on the notion of clan as would best advance one's case for clan support. Thus in In re Faiivae, 4 A.S.R. at 74, we noted the following at the immediately preceding Faiivae matai dispute: The Legislature of American Samoa, either in its wisdom or as a result of an oversight, failed to define the word "clan." There are different theories as to what a clan means. Some argue that the number of clans in the family is determined by the number of offsprings of the original holder of the title, and that each of the children constitutes a clan, no matter how long the title has been in existence or how many different families there are. Another theory is that there are as many clans in the families as there have been holders of the title, each holder of the title giving origin to another clan. Still another theory is that the number of clans depends on the number of families of the different title holders with the restriction that when two or more brothers or sisters hold the title consecutively, it should count only as one clan. Not unlike the candidates in the earlier dispute, we see here a variation of clan definition presented by the parties, not only in their responses to Questionnaire but also refined on the witness stand. It may also be timely for the Fono to revisit the notion of "clan," as employed in A.S.C.A. § 1.0409.

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C. Forcefulness, Character, Personality and Knowledge of Samoan Customs

Under this heading, we find in favor of Iuli. In terms of knowledge of Samoan customs, Poloa himself conceded on the stand that Iuli was better at ease in this regard. In terms of forcefulness, we find both to be equal in this regard. We note that each has risen from modest circumstances, showing personal [**8**] initiative, drive, and gumption; they both have enjoyed success in their respective career choices. With regard to character and personality, we find for Iuli; he is personable and engaging in nature, whereas Poloa is self centered and more inward looking as evident with family meetings. Moreover, we find that Iuli's more outgoing disposition is consistent with his more extensive record of community service; it is a trait which bespeaks his cooperative nature. Finally, in terms of character, we the evidence favors Iuli. All things being equal, we note that Poloa has a record with this Court, albeit made during his youth, which weighs against him in any sort of comparative character assessment. We conclude in favor of Iuli.

D. Value to Family, Village, and Country

The matai title Faiivae is an important title, "a name of high rank in the Western District, and particularly in the village of Leone." Tupua v. Faiivae, 1 A.S.R. 231 (Trial Div. 1910). We are satisfied that Iuli's life of service to the family has better prepared him for the responsibilities of holding the Faiivae title. Iuli's active role within the family began when he was appointed as the last Faiivae holder's sa`o aumaga, Vaotupu, a position he held for many years until assuming the Iuli matai title. With his early involvement as sa`o aumaga, together with his continuing role in family affairs, Iuli has become well-versed in the demands of office, not only at the family level, but at the village and county level as well. [**9**] Significantly, he has popular family following, indicative of his tautua, and obviously a very important advantage to anyone tasked with family leadership. Additionally, we find that Iuli possesses the sort financial wherewithal necessary to assist him in handling family affairs. Also, as we noted above, Iuli's familiarity with Samoan customs is to the family's advantage, naturally serving to promote the title's prestige.

In terms of value to the village, we find that Iuli's service to the village has been more active, even in matters beyond his matai competence. Among other things, he has been entrusted with keeping village funds, as Treasurer; he chairs the village coalition group which partners with government agencies tasked with drug related programs for the youth at the county level; and he has contributed his personal (business) resources toward various village and church functions. Poloa's contribution to the village activity, on the other hand, has been less pronounced. His village

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involvement has only lately become apparent since his recent retirement and relocation to the village. Iuli prevails on this factor.

In terms of value to the government, the evidence shows that Poloa has retired from the military after 20 years of meritorious service to the nation, and that he had also worked for the territorial government as a JROTC instructor, before his retirement. Iuli's value to country and government is equally impressive, not only in terms of his long standing service with the Congressman's office, but also in regard to the many [**10**] government commissions and boards he has been asked to serve on. We rate the candidates equally on value to country. Overall, we also find for Iuli under this heading.

Conclusion and Order

On the foregoing, we conclude that Iuli is qualified to hold the matai title Faiivae attached to the village of Leone. While the parties are equal on the hereditary right, Iuli prevails over Poloa on the second, third, and fourth criteria. The Territorial Registrar shall, in accordance with A.S.C.A. § 1.0409(b), register the matai title Faiivae in candidate Iuli Alexander Godinet. It is so ordered.

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High Court of American Samoa Slip Opinions (2013)

Cite As: Steffany v. Saulo, LT No. 03-10, slip op. at [page number] (Land & Titles Div. June 27, 2013)

MARIA STEFFANY, WILLIAM STEFFANY, ANETEREA PULETASI, ELIZABETH PULETASI, and SUNI FELISE, Plaintiffs,

v.

FLORENCE SAULO and PAULO SAULO, Defendants, jointly and severally,

and,

AMERICAN SAMOA GOVERNMENT and CORNERSTONE CHURCH, joined party-defendants.

High Court of American Samoa Land and Titles Division

LT No. 03-10

June 27, 2013

Before WARD, Associate Justice; MAMEA, Associate Judge

Counsel: For Plaintiffs, Sharron I. Rancourt For Defendants, Marcellus Uiagalelei For Defendant American Samoa Government, Eleasaro Ale For Defendant Cornerstone Church, Marie Alailima

ORDER

Pursuant to a Notice of Status Hearing and Order issued by the Court in this matter on 6 June 13 and served on counsel of record in this matter, and with notice given to counsel of record in HCCA 51-2007 (A.S.G. v Saulo), a hearing on the procedural and jurisdictional issues raised in that Notice was conducted on 21 June 13, with the above-named counsel in attendance.

[**2**] As to the jurisdiction issue raised in the Notice concerning the Court‘s oral approval of Plaintiffs‘ Motion To Join Parties and Consolidate HCLT (sic) 51-2007 on 20 Aug 2010, no persuasive arguments were made to demonstrate that the Land and Titles Division had jurisdiction over that case, (more correctly identified as HCCA 51- 2007). We so hold. Having no jurisdiction to hear and decide this civil

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offense case, the Order approving its consolidation with the instant matter is set aside and the underlying motion denied nunc pro tunc.

As to the Court‘s Order of 27 April 11, issued in the then-consolidated cases of HCCA 51-07 and LT No. 03-10, by the Trial Division, counsel also presented arguments as to whether that Order which, inter alia granted Defendants‘ Motion To Amend Pleadings and Join Parties, should also be set aside. Plaintiffs asserted that they did not sue the parties joined as Defendants to this action by the 27 April 11 Order and do not intend to pursue any cause of action in this matter against the joined parties. Defendants‘ Saulo argued that joining the additional defendants so all matters could be resolved in a single action would be in the interests of justice.

As the case file reveals, the ill-conceived and inaccurate motion by Plaintiffs to consolidate an American Samoa Government regulatory civil offense case then pending in the Trial Division with this action filed in the Land and Titles [**3**] Division resulted in the Trial Division Order of 27 April 2011 denying motions filed by ―Defendants‖ A.S.G. and Cornerstone Church, before the Court actually joined them as party defendants, all of which was done pursuant to Trial Court Rules of Civil Procedure. This questionable jurisdictional approach was compounded by the recusal of the sitting Justice in this matter due to his close family relationship with Counsel for Defendants Saulo, whose legal positions were generally upheld by that Order.

For reasons set forth above and pursuant to the discretionary powers of this division to ―proceed in such a manner as it considers to be most consistent with natural justice and convenience,‖ (A.S.C.A. § 3.0242(b)), we hold that the Court‘s Order of 27 April 2011 shall be set aside and that this case be returned to its original status as a case or controversy before the Land and Titles Division involving Plaintiffs Steffany et al vs. Defendants Saulo. Defendants‘ Saulo‘s underlying Motion To Amend Pleadings and Join Parties is denied nunc pro tunc.

Defendants Saulo are free to initiate any appropriate legal proceedings against the formerly joined party defendants they deem to be in their interests to separately pursue. They have also pleaded affirmative defenses in this matter which, if proven at trial, would offer protection against being found [**4**] liable for the acts or omissions of others causing or contributing to any damages Plaintiffs prove at trial.

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Pursuant to Rule 4(d), TCRLT, this matter shall be set for a pre-trial conference pursuant to Rule 6, TCRLT.1 A notice of such hearing will be issued as soon as permitted by this Court‘s calendar.

Order

The Court‘s Order of 20 August 2010 consolidating this case with HCCA 51-2007, ASG v Saulo, is hereby set aside and vacated. The underlying motion is denied. The Clerk of Courts shall notify the Chief Justice of this Order so that HCCA 51-2007 may be assigned to a Justice of the High Court and placed on the Trial Division‘s calendar for a status hearing.

The Court‘s Order of 27 April 2011 is hereby set aside and vacated. The underlying motion by Defendants‘ Saulo to amend pleadings and join party defendants is denied. The parties to this action are Plaintiffs Steffany et al and Defendants Saulo as set forth in Plaintiff‘s complaint filed on 11 February 2010.

A notice of a pre-trial hearing pursuant to Rule 6, TCRLT shall timely issue. [**5**]

So ordered.

1 (Note: The TCRLT were mispaginated when reissued in 1981 and still remain so. Rule 4 begins on page 291 and skips then to page 293. Rule 6 begins on page 292 then skips to the top of page 294 for its concluding, subsection (c)).

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High Court of American Samoa Slip Opinions (2013)

Cite As: Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09, slip op. at [page number] (Land & Titles Div. July 19, 2013)(order grant. in pt. and den. in pt. parties‘ several mots. for summ. j.)

CHARLES V. ALA’ILIMA, as trustee for the ESTATE OF LEFAGA SOLIAI BEAVER, Plaintiff,

v.

TERRITORIAL REGISTRAR, ALBERT MAILO, SAM KUPA and NANCY KUPA, VIENA TIATIA and ATUMAUGA TIATIA, LUANI LU’UGA, FEO LAGAFUAINA, as administrator of the ESTATE OF LAGAFUAINA LAISENE, and DOES I-XX, Defendants. ______

FEO LAGAFUAINA, as administrator of the ESTATE OF LAGAGUAINA LAISENE, Cross-Plaintiff,

v.

ALBERT MAILO, Cross-Defendant. ______

SAM and NANCY KUPA and VIENA and ATUMAUGA TIATIA, Cross-Plaintiffs,

v. ALBERT MAILO, Cross-Defendant.

High Court of American Samoa Land & Titles Division

LT No. 02-09

July 19, 2013

[1] Laches is an equitable defense that bars an action where an unreasonable delay in one party‘s assertion of its rights results in another party‘s undue prejudice. The court determines the applicability of laches on a case by case basis.

[2] There are too many unknown facts surrounding the delay in filing suit to grant summary judgment on the ground of laches. More evidence must be presented before it becomes clear whether laches should apply.

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[3] The defendant failed to prove adverse possession where the plaintiff consented to the his occupancy of the land, he had not met the 30 year statutory possession period, and he could not avail himself of tacking because he was not related to the individual who deeded him the subject land.

[4] There is no conflict of interest where an attorney presently serving as the administrator of an estate and representing the estate and himself pro se previously represented a third party in an unsuccessful claim to a portion of land included in the estate that is the subject of the current litigation.

[5] Where a defendant warranted to subsequent purchasers of parcels of his land that he had the authority and right to sell those parcels, he is required to defend the subsequent purchasers title against all other claims to their parcels and is required to indemnify the subsequent purchasers for any costs they incur defending the action.

[6] Once title to land is registered, there is a prohibition against further registrations according to a policy favoring finality in title registrations that have been properly completed. A landowner cannot register title to land which has been previously registered. [**2**]

Before RICHMOND, Associate Justice; MAMEA, Associate Judge; and FA‘AMAUSILI, Associate Judge.

Counsel: For Plaintiff Charles V. Ala‘ilima as trustee for Estate of Lefof, pro se For Defendant/Cross-Defendant Albert Mailo, Roy J.D. Hall, Jr. For Defendants/Cross-Plaintiffs Sam Kupa and Nancy Kupa, and Viena Tiatia and Atumauga Tiatia, Richard Desaulles For Defendant/Cross-Plaintiff Feo Lagafuaina as administrator of Estate of Lagafuaina, Marie A. Ala‘ilima

ORDER GRANTING IN PARTAND DENYING IN PART THE PARTIES‘ SEVERAL MOTIONS FOR SUMMARY JUDGMENT

Background

This lawsuit involves disputed land in Malaeimi. According to the complaint of Plaintiff Estate of Lefaga Soliai Beaver (―Beaver‘s Estate‖), Laisene Lagafuiaina (―Lagafuaina‖) sold one acre of his individually owned land in Malaeimi to Lefaga Beaver (―Beaver‖), which transfer was recorded with the Territorial Registrar in 1971. In 1991, after Lagafuaina‘s death, Talanoa Lagafuaina (―Talanoa‖), Lagafuaina‘s son, transferred approximately six acres of land of

High Court of American Samoa Slip Opinions (2013)

Defendant/Cross-Plaintiff Estate of Lagafuaina (―Lagafuaina‘s Estate‖) in Malaeimi to Defendant/Cross-Defendant Albert Mailo (―Mailo‖), which transfer recorded with the Territorial Registrar. Beaver‘s Estate alleges that Talanoa was not the administrator of Lagafuaina‘s estate at the time of this land transfer and [**3**] that the land transferred from Talanoa to Mailo overlapped a significant portion of Beaver‘s one-acre parcel.

In 1989, after a legal challenge to Lagafuaina‘s ownership of land, the High Court ruled in Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54 (Land and Titles Div. 1989) that 60 acres of land in Malaeimi, allegedly including the land conveyed to Mailo and Beaver, belonged to Lagafuaina. The Appellate Division affirmed that Lagafuaina‘s heirs and assigns owned the land in Puailoa v. Estate of Lagafuaina, 19 A.S.R.2d 40, 41 (App. Div. 1991).

In 1992, Mailo sold a quarter acre lot of his Malaeimi land to Defendants/Cross-Plaintiffs Sam and Nancy Kupa (―the Kupas‖), which transfer was recorded with the Territorial Registrar. This land allegedly overlaps Beaver‘s one-acre lot. In 1997, Mailo sold a quarter acre lot of his Malaeimi land to Defendants/Cross-Plaintiffs Vienna and Atumauga Tiatia (―the Tiatias‖), which transfer was recorded with the Territorial Registrar. This land also allegedly overlaps Beaver‘s one-acre lot.

According to the Beaver Estate, Beaver advised Mailo, the Kupas, and the Territorial Registrar about the alleged overlaps in deeds on her land, but to no avail. Beaver allegedly advised [**4**] Defendants [???] about this overlap as well. In its Complaint, Beaver‘s Estate seeks to have Mailo‘s deed, the Kupas‘ deed, and the Tiatias‘ deed all declared void to the extent they overlap with the land conveyed from Lagafuaina to Beaver.

On October 27, 2011, Mailo, the Kupas, and the Tiatias moved for summary judgment. In their motion, they argued that they were entitled to the property because they had been on the land for a long time, and that Beaver consented to their occupancy, so adverse possession thus applied. They also argued the doctrine of laches applied because they made significant improvements to the land, and they also argued that Beaver‘s Estate‘s complaint was barred by the statute of limitations.

Beaver‘s Estate responded in November 2011 with its opposition to the October 27, 2011 summary judgment motion and its own motion for partial summary judgment. In its motion, Beaver‘s Estate argued that partial summary judgment was proper because Beaver merely permitted Mailo, the Kupas and the Tiatias to stay on the land but never transferred ownership of the land to them. According to Beaver‘s Estate, the 1971 transfer of land to Beaver was properly recorded, and subsequent

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improper transfers of land to Mailo, the Kupas and the Tiatias must be [**5**] voided to the extent that they overlap with land belonging to Beaver‘s Estate.

In November 2011, Beaver‘s Estate filed its amended complaint, adding Defendant Luani Lu`uga (―Lu`uga‖) and Lagafuaina‘s Estate, and alleging that in 2003, Mailo improperly sold another overlapping quarter-acre of land to Lu`uga. Beaver‘s Estate alleged that this deed was void to the extent that it overlapped with Beaver‘s Estate‘s land.

In December 2011, Lagafuaina‘s Estate answered and cross-claimed against Mailo. In its cross-claim, the Estate alleged that Mailo was compensated with land for services performed for the Lagafuiana family. Lagafuaina‘s Estate further alleged that it was Mailo‘s responsibility to hire and pay for the surveyor and conduct a title search for the land he was given. Mailo apparently conducted a title search negligently, resulting in the overlapping survey. Lagafuaina‘s Estate stated that Mailo was solely liable to Beaver‘s Estate for any overlapping of surveyed property.

In February 2012, Beaver‘s Estate filed a supplemental submission to its motion for partial summary judgment. The supplement contained the affidavit of professional surveyor Lawrence French (―French‖, who surveyed the relevant land in [**6**] Malaeimi. French stated that the Mailo survey, and the surveys of the deeds from Mailo to the Kupas, Tiatias, and Lu‘uga encroached upon the registered Beaver survey.

In February 2012, Lafafuaina‘s Estate responded to Mailo‘s summary judgment motion. In its response, Lagafuaina‘s Estate asserted that there was no genuine dispute as to the overlap of the deed issued to Beaver and the deed issued to Mailo. Because the deed to Beaver was recorded first, it was valid.

In April 2012, the Kupas and Tiatias filed their answer and cross- claimed against Mailo. In their cross-claims, they asserted that they acquired their land from Mailo via a deed containing warranties requiring Mailo to defend their title against all other claims and that Mailo was liable for any costs incurred by them defending this action. Mailo responded that Lagafuaina‘s Estate is liable to the Kupas and Tiatias and also for any costs associated with the defense of this action.

In July 2012, Mailo filed a supplemental memorandum in support of summary judgment in which he argued that Beaver‘s Estate was not entitled to have any of [Defendants‘] deeds declared void. According to Mailo, the Appellate Division previously affirmed that the land belonged to Lagafuaina‘s heirs and assigns, and therefore title to all 60 acres in Malaeimi [**7**] vested in Lagafuaina‘s heirs, including the land

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deeded in 1971 to Beaver. Therefore, Talanoa was entitled to deed portions of the land to Mailo. Morever, Mailo claims that Beaver never objected to the registration of deeds by Mailo or any of the other [Defendants]. Mailo also argued that the doctrine of laches applied because significant improvements had been made upon the land by [Defendants], and voiding their deeds would prejudice them greatly. Mailo again argued that adverse possession applied as well, and that Beaver‘s Estate‘s claims were time-barred by the statute of limitations. Mailo also argued that Plaintiff Charles V. Ala‘ilima (―Beaver‘s Estate Trustee‖ or ―Ala`ilima‖) should be disqualified from representing Beaver‘s Estate because he represented the plaintiff in Puailoa Tavete v. The Estate of Lagafuaina Laisene, LT No. 18-87, and also represented a party in another land dispute involving the same land. Mailo asserted that this constituted a conflict of interest.

In July 2012, the Kupas and Tiatias filed their own motion for summary judgment, asserting that there was no genuine material issue of fact with respect to the duty of Mailo to defend and indemnify them in this action.

[**8**] In response to Mailo‘s supplemental submission, Beaver‘s Estate noted that the High Court stated that the 60 acres belonged to Lagafuaina‘s heirs and assigns. According to Beaver‘s Estate, Beaver was one of those assigns, having received the land in 1971, long before the Appellate Division‘s ruling.

Discussion

―The [summary] judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law.‖ T.C.R.C.P. 56(c). When the moving party sets out a prima facie case for summary judgment, the burden shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." T.C.R.C.P. 56(e). A party is not entitled to a trial upon the unsubstantiated hope that convincing evidence may be produced at trial. Amer. Samoa Govt. Employees Federal Credit Union v. Galea’i, 26 A.S.R. 2d 74, 76 (Trial Div. 1994). "Only disputes over facts that might affect the outcome of the suit under the governing law" are "material," and such a dispute is "genuine" only where the evidence is such [**9**] that a reasonable factfinder could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court must resolve any factual issues in a controversy in favor of the nonmoving party, but conclusory, non- specific allegations are not sufficient to survive a motion for summary judgment, and missing facts will not be presumed. Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990).

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We first address Mailo‘s motion for summary judgment. Mailo first claims that Beaver‘s Estate is not allowed to challenge the transfer of six acres of land from Talanoa to Mailo because the Appellate Division previously stated that the 60 acres of land in Malaeimi, which included the six acres later conveyed to Mailo, belonged to Lagafuaina nd his heirs. According to Mailo, Talanoa was one of these heirs, so the entire 60 acres at issue in Puailoa Tavete v. Estate of Lagafuaina Laisene belonged to Talanoa and he was well within his rights to deed the six acres of Malaeimi land to Mailo.

Mailo‘s claim fails to recognize that the Appellate Division actually stated that the 60 acres belonged to Lagafuaina‘s heirs and assigns. See Puailoa, 19 A.S.R.2d at 41. This group would not only include Talanoa, but Beaver, who [**10**] received the land from Lagafuaina in 1971. Additionally, as a practical matter, the High Court‘s declaration in Puailoa clearly was not intended to void any legitimate and proper land transfers by Lagafuaina of the Malaeimi land, including the 1971 transfer to Beaver, which was properly recorded prior to the High Court‘s declaration.

Mailo next claims that all of Beaver Estate‘s claims are barred by the doctrine of laches. Mailo argues that Beaver‘s Estate was aware of the 1991 transfer of land to Mailo shortly after it happened, yet it delayed approximately 18 years before challenging the transfer. During this time, Mailo made changes to the land, including spending money to improve the properties and the subsequent transfers to the Kupas, Tiatias, and Lu‘uga. Mailo states that Beaver‘s Estate‘s delay in challenging the transfer was unreasonable, and would result in significant prejudice to all [Defendants].

[1] Laches is an equitable defense that bars an action where an unreasonable delay in one party‘s assertion of its rights results in another party‘s undue prejudice. Amituanai v. Sataoa, 6 A.S.R.3d 341, 345 (Land and Titles Div. 2002). The court determines the applicability of laches on a case by case basis and will usually bar recovery only if a party has [**11**] voluntarily delayed asserting a right, and as a result, the opposing party‘s as well as the court‘s ability to ascertain the truth are harmed. Blue Pacific Management Corp. v. Anderson, 8 A.S.R.3d 87, 96 (Trial Div. 2004).

[2] Here, there is evidence that Ms. Beaver knew of the 1991 transfer to Mailo and the subsequent transfers to the remaining Defendants shortly after they occurred. There is evidence that Beaver may have acquiesced to [Defendants‘] occupancy of the land. On the other hand, there is evidence that Beaver as well as her representatives repeatedly told [Defendants] that they were occupying her land and that she believed the

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transfer was improper. If this is true, any improvements made by Mailo and the other Defendants were done with the full knowledge that they may have been making transfers and improvements on land that belonged to another. In the case at bar, there are too many unknown facts surrounding the delay in filing suit to grant summary judgment on the ground of laches. More evidence must be presented before it becomes clear whether laches should apply, and Mailo‘s argument for summary judgment based on laches therefore fails.

Mailo next claims that Beaver‘s Estate‘s claims are barred because, even assuming Beaver validly owned her one-acre parcel [**12**] of land, Mailo had already adversely possessed the land by the time the Beaver Estate filed its complaint. Mailo states that he actually possessed the land after the 1991 transfer and his predecessors (Lagafuaina‘s heirs) possessed the land prior to the 1991 transfer. He claims that they both performed activities on the land for at least 30 years (from 1971 to today) that would constitute actual possession. Moreover, the possession was open and notorious because Beaver was well aware of this possession on her alleged land. He also claims that the possession was exclusive and hostile to others because the land was not shared with others and Mailo was asserting his ownership to the land during this time of possession.

In order to succeed on an adverse possession claim, one must show that the possession was continuous, open, notorious, and hostile to any claim of ownership, for a period in excess of the time required by the adverse possession statute then in force. Fa’atoafe v. Tuia’ana, 30 A.S.R.2d 163, 164-65 (Land and Titles Div. 1991). The adverse possession statute was amended in 1962 to change the prescriptive period from 20 years to 30 years, so occupancy beginning after the effective date of the 1962 amendment must meet the 30-year requirement in order to acquire title by adverse possession. Willis v. Fai’ivae, 17 [**13**] A.S.R.2d 38, 49 (Land Titles Div. 1990). Permission defeats a permittee‘s claim of adverse possession. Williams v. Tupuola, 6 A.S.R.3d 44, 49 (App. Div. 2002).

[3] Here, Mailo has failed to meet the elements of adverse possession. By his own admission in his original motion for summary judgment, Mailo states that Beaver consented to the occupancy on her alleged land. This alone is sufficient to defeat any adverse possession claim. See Williams, 6 A.S.R.3d at 49. Moreover, given the fact that Mailo was only deeded his six acres in 1991, he has failed to meet the statutorily required possession period of 30 years. Mailo asserts that he can tack his possession period onto that of the Lagafuaina heirs prior to 1991, citing to Talo v. Tavai, 2 A.S.R. 63 (Trial Div. 1939) in support. However, Talo is distinguishable because the court there allowed the defendant to tack his possession onto the possession of his matai predecessor. In the

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case at bar, Mailo is not related to Talanoa, the person who deeded him the six-acre parcel of land. Moreover, there is no evidence that Talanoa was in possession of Beaver‘s one-acre parcel of land prior to the 1991 transfer. Mailo‘s adverse possession claim thus fails.

[**14**] Mailo finally asserts that Beaver‘s Estate‘s claims are time- barred by the statute of limitations. Mailo states that the statute of limitations for real property actions is 20 years and that the complaint here was filed in 2009. However, Mailo claims that he and his predecessors (Lagafuaina‘s heirs) have been in possession of the land prior to 1989. In fact, he claims that he and his predecessors combined possession of the land prior to the 1971 transfer to Beaver.

Actions for the recovery of real property must be brought within 20 years after their causes accrue. A.S.C.A. § 43.0120(6). See also Vaivao v. Craddick, 14 A.S.R.2d 108, 116 (Land and Titles Div. 1990).

Here, Mailo‘s statute of limitations claim must be rejected because he was deeded the property by Talanoa in 1991, and the complaint was filed in 2009, within the [?]20-year statute of limitations period. As explained above, Mailo‘s attempt to tack his possession onto the alleged possession of the subject land by Lagafuaina‘s heirs fails.

[4] As a final matter, we reject Mailo‘s contention that Ala`ilima should be disqualified as counsel. While Mailo believes that Ala`ilima has a conflict of interest due to his prior representation of a party making claims upon the Malaeimi [**15**] land, there is insufficient evidence of such a conflict. Ala`ilima represented a party who claimed that the 60 acres of Malaeimi land was his family‘s communal land, a claim which was defeated. This prior representation does not affect his ability to represent himself as the trustee of the Beaver Estate on a claim made upon a portion of the same land. Accordingly, Mailo‘s disqualification claim must be rejected.

[5] The Kupas and Tiatias have also filed a motion for summary judgment on their cross-claim. They essentially argue that there is no question that Mailo is required to defend their title against all other claims to their respective parcels of land in Malaeimi. Because they have had to retain counsel to defend themselves in this lawsuit, they claim that Mailo is required them to indemnify for any costs they incur defending this action. Mailo responds that he used due diligence to survey the property, and that Lagafuaina‘s Estate should be liable to the Kupas and Tiatias or indemnify him because he believed he received valid title to the property in question from Lagafuaina‘s Estate.

There is no doubt that in both deeds of conveyance to the Kupas and Tiatias, Mailo warranted that he had the power to convey the premises to

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the Kupas and Tiatias, respectively. [**16**] Regardless of the fact that Mailo may have believed he received proper title to the property from Talanoa, there is also no question that Mailo warranted that he would defend the Kupas and Tiatias against all claims and demands made upon the land against the Kupas and Tiatias. Accordingly, we grant the Kupas and Tiatias motions for summary judgment on their cross-claims.1 See Edmonson v. Popchoi, 172 Wn.2d 272 (Wash. 2011).

Finally, Beaver‘s Estate contends that partial summary judgment is warranted because there is no question of fact as to whether it has valid title to the one-acre parcel of land in Malaeimi. Beaver‘s Estate argues that the parcel of land was deeded to Beaver and properly recorded in 1971, prior to any transfers of land to [Defendants]. Beaver‘s Estate‘s claim is supported by the affidavit of Lawrence French, the surveyor of the relevant land, who attested that the land deeded to Mailo, and subsequently to the Kupas, Tiatias, and Lu‘uga, encroached upon Beaver‘s Estate‘s land. Moreover, Beaver‘s Estate‘s claim [**17**] was supported by Lagafuaina‘s Estate, which basically conceded that Beaver properly registered her land first in time, and that subsequent transfers of land to [Defendants] overlapped with Beaver‘s Estate‘s land (due to Mailo‘s alleged negligence).

[6] Once title to land is registered, there is a prohibition against further registrations according to a policy favoring finality in title registrations that have been properly completed. Uiliata v. Puailoa, 31 A.S.R.2d 35, 39 (Land and Titles Div. 1996). A landowner cannot register title to land which has been previously registered. Uiliata, 31 A.S.R.2d at 39; see also A.S.C.A. § 37.0101(a).

Here, there is no genuine issue of fact as to the overlap of the deed issued to Beaver and the deeds issued to [Defendants[. Moreover, there is no genuine issue of fact as to the validity of the conveyance of the one-acre parcel of land to Beaver. She properly recorded the land in 1971, prior to all other relevant recordations by [Defendants] in this case. Given this, [Defendants] should not have been able to register title to

1 As to Mailo‘s assertion that Laisene‘s Estate should indemnify him for the costs of defending this action, there is no question that in the 1991 warranty deed, Talanoa, Laisene‘s heir, transferred approximately six acres to Mailo and warranted to defend Mailo against any claims made upon the land. However, the Laisene Estate asserts that it was Mailo‘s responsibility to survey and register the land, and Mailo‘s negligence in doing so is the cause of the current litigation. There is not enough information at this time regarding Mailo‘s process of surveying and registering the property, and any claims regarding Mailo‘s negligence or the Laisene Estate‘s duty to indemnify must be resolved at trial.

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their land to the extent it overlapped with Beaver‘s Estate‘s land. See Uiliata, 31 A.S.R.2d at 39. Because Beaver was properly deeded the one-acre parcel of land and properly recorded it prior [Defendants‘] registrations, we grant Beaver‘s [**18**] Estate‘s motion for partial summary judgment. The 1991 deed from Talanoa to Mailo is void to the extent it encroaches upon Beaver‘s Estate‘s land as surveyed by French. The 1992 deed from Mailo to the Kupas is void to the extent it encroaches upon Beaver‘s Estate‘s land as surveyed Mr. French. The 1997 deed from Mailo to the Tiatias is void to the extent it encroaches upon Beaver‘s Estate‘s land as surveyed by French. The 2003 deed from Mailo to Lu‘uga is void to the extent it encroaches upon Beaver‘s Estate‘s land as surveyed by French. Questions of fact still remain, however, as to any equitable claims made for laches and for compensation for any good faith improvements made upon the land by [Defendants].

Order

The Estate of Lefaga Soliai Beaver‘s motion for partial summary judgment is granted. Sam and Nancy Kupas and Viena and Atumauga Tiatia‘s motion for summary judgment is granted. Albert Mailo‘s motion for summary judgment is denied.

It is so ordered.

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Cite As: Am. Samoa Gov’t v. Avamua, LT No. 10-08, slip op. at [page number] (Land & Titles Div. July 22, 2013)(order on mot. for new trial)

AMERICAN SAMOA GOVERNMENT, Plaintiff,

v.

AVAMUA DAVE HALECK, et al., Defendants.

High Court of American Samoa Land and Titles Division

LT No. 10-08 (CA No. 21-08)

July 22, 2013

[1] In order to have a cognizable claim for deprivation of due process, one must first have a property interest in the government action at issue.

[2] Samoans acquire ownership rights to native bush land through continuous use and occupation and not by simply reducing the native jungle to metes and bounds and then securing a title registration thereto.

Before KRUSE, Chief Justice; and MAMEA, Associate Judge.

Counsel: For Plaintiff, Eleasalo V. Ale, Deputy Attorney General; Marian M. Rapoza, Assistant Attorney General For Defendants, Roy J.D. Hall, Jr.

ORDER ON MOTION FOR NEW TRIAL

Plaintiff American Samoa Government ("ASG") commenced this action on April 11, 2008 by filing a petition for injunctive relief to enjoin Defendant Avamua Dave Haleck ("Haleck"), and other persons of interests ("Defendants"), from developing the remainder of the Tafuna plain's lowland rainforest ("Rainforest"). Trial on the merits was finally held on January 17, 2013, after which we found, among other things, that the Rainforest was indeed an undeveloped rainforest with primal forest growth; and that notwithstanding the registration exercise, Plaintiffs' claim to individually-owned title thereto was entirely baseless in fact and in law. Accordingly, we granted ASG's petition for permanent injunction. Defendants now move for a new trial under A.S.C.A. § 43.0802; T.C.R.C.P. 59. For reasons given, the motion will be denied. [**2**]

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Discussion

A trial court may grant a motion for new trial for manifest error of law or mistake of fact. Letuli v. Leituala, 8 A.S.R.3d 276 (Land & Titles Div. 2004). The court has broad discretion when deciding whether to grant a motion for new trial. Tilo v. Danielson, 8 A.S.R.3d 264 (Land & Titles Div. 2004). While the Defendants have canvassed a number of reasons why a new trial is warranted, our discussion here will be limited to the issues we have not previously addressed in our Opinion and Order issued on May 1, 2013.

[1] Haleck argues that the Court affected a judicial taking of the Rainforest and thereby deprived Defendants of ownership of their land without due process of law. As an argument, the submission is unsound. It merely asserts a conclusion that is grounded on a falsehood; viz, that the Rainforest has been settled and continuously occupied. It is an assertion which necessarily demands of this Court to look the other way and thereby avoid having to deal with a logical contradiction.1 In [**3**] order to have a cognizable claim for deprivation of due process, one must first have a property interest in the government action complained of. Ferstle v. Am. Samoa Gov't, 7 A.S.R.2d 26, 49 (Trial Div. 1988). Haleck's argument necessarily presuppose that Defendants have an individualized proprietary interest in the Rainforest. We found that they do not.2

1 Haleck in his submission necessarily urges this Court to turn a blind eye to the legal and factual reality that the Rainforest lacks the defining characteristics of "individually-owned land," as that class of landholding is defined in American Samoa. Indeed, defense counsel accuses the Court of "judicial activism" by its raising sua sponte the issue of Defendants' status as individual owners of the Rainforest. We will simply note for now that the suggestion by defense counsel for the Court to look the other way is highly improper and we remind counsel of his overriding duty of candor to the Court, per MODEL RULES OF PROF'L CONDUCT R. 3.3 cmt. (2013), as well as his duty to avoid conduct that undermines the integrity of the adjudicative process. See MODEL RULES OF PROF'L CONDUCT R. 3.3(a)(3). 2 Haleck seeks a new trial arguing that in the absence of compelling proof of fraud, a registered land title is beyond question. Haleck cites to Ifopo v. Siatu`u in support of his argument. Ifopo, however, is inapposite; it is factually distinguishable. Ifopo's subject matter was not a tropical rainforest; rather it comprised a small residential plot of land (1/12th of an acre) located in the midst of concentrated habitation that is downtown Fagatogo. The crux of the dispute there was whether the disputed tract was communal or individually-owned. Id. at 68-69. [2] Moreover, and as we discussed more extensively in the Opinion and Order, it is trite law in this jurisdiction that Samoans acquire

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Haleck protests not having notice that the Court would raise the issue of individually-owned Rainforest. First, the issue was raised by the Defendants' predecessor-in-interest at the outset when the astonishing claim to individual ownership of virgin bush was initially asserted. But as we earlier noted "[a] proposition that rainforest land can be individually-owned is plainly nonsense; the two are logical contradictions." Am. Samoa Gov't v. Haleck, LT No. 10-08, slip op. at 4, (Land & Titles Div. Aug. [**4**] 13, 2008) (Order on Plaintiff's Motion For Preliminary Injunctive Relief). Along with every other land claimant in this jurisdiction, Defendants are on notice that in order to claim ownership to virgin bush land, a Samoan must first clear, cultivate, and continuously occupy the land. Id., slip op. at 5, (citing Leuma v. Willis, 1 A.S.R.2d 48, 54 (Land & Titles Div. 1980)).3 Secondly, Defendants' predecessor-in-interest would have had actual notice of the law in this territory, having been previously a party in Haleck v. Tuia, LT No. 1386-74 (Land & Titles Div. 1974), wherein the subject matter of dispute involved his claim to individually-owned title to a substantial acreage of the lowland rainforest, cleared and cultivated, and lying contiguous to the Rainforest. The court concluded that "[w]hen an individual goes upon virgin bush land, clears it develops a plantation, . . . the property becomes the individually owned land of the developer, and he is entitled to have the land registered as his individually owned property." Id.4

Having had notice, the parties before us presented evidence at trial regarding the issue of whether the Rainforest was ever substantially cleared or continuously occupied. On the evidence, [**5**] we found that the Rainforest had not. Thus, the registration of the Rainforest was ownership rights to bush land through continuous use and occupation, Leuma v. Willis, 1 A.S.R.2d 48 (Land & Titles Div. 1980), and not by simply reducing the native jungle to metes and bounds and then securing a title registration thereto, Sese v. Leota, 9 A.S.R.2d 136, 137 (Land & Titles Div. 1988). American Samoa has not adopted a Torrens land title registration system, and even if it had, the compelling evidence--not apparent to the Defendants--is to the trier of fact self-evident and palpable fraud. 3 This case gives an interesting account of caselaw development giving birth to the notion of "homesteading individually-owned" land in the Territory among Samoans. 1 A.S.R.2d at 53. According to Leuma, individual entitlement to land vis a vis communal entitlement was first recognized not through an evidentiary factfinding exercise but on the court's "judicial notice," albeit mistakenly based, of Samoan custom as perceived in the late 1940s. Id. 4 Cited and as quoted in Leuma v. Willis, 1 A.S.R.2d at 54.

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not proper, and should be disregarded. See Fania v. Sipili, 14 A.S.R.2d 70, 77 (citing Ifopo v. Siatu'u, 10 A.S.R.2d 66, aff'd 12 A.S.R.2d 24 (1989)) ("Where it has been clearly proved that title registration was procured by fraud, the registration may be disregarded.").

With regard to the remaining arguments raised by Defendants' motion, this Court finds they are meritless and relies on its prior written orders on the matters regarding individually owned titles. There being no manifest error of law or mistake of fact shown as would warrant a retrial of the issues, the motion for a new trial must, therefore, be denied.

Order

For the reasons set forth above, Defendant's Motion for New Trial is denied. It is so ordered.

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Cite As: In re Estate of Ah Hing, LT Nos. 21-11 & 22-11, slip op. at [page number] (Land & Titles Div. July 22, 2013)

ESTATE OF SALAVEI AH HING, Deceased. ______

ESTATE OF SALAVEI AH HING, By KAIO AH HING, Administrator, Plaintiff/Counter-Defendant,

v.

ANESI LEMANI, Defendant/Counterclaimant/Third-Party Plaintiff, and FEFILOI AH HING, Third-Party Defendant. ______

ESTATE OF SALAVEI AH HING, By KAIO AH HING, Administrator, Plaintiff,

v.

VA’I VANCAMP and MATANIU-MATA’I VA’I, Defendants/Cross-Claimants/Third-Party Plaintiffs,

SATAOA KALEUATI and LITIA KALEUATI, Defendants/Cross- Defendants,

GALUEFA MOSE, SULU OSA, and DOES I-X, Defendants,

and

FEFILOI AH HING, Third-Party Defendant.

High Court of American Samoa Land and Titles Division

PR No. 1-90 LT No. 21-11 (Formerly CA No. 99-07) LT No. 22-11 (Formerly CA No. 80-08)

July 22, 2013

[1] Real property in an estate may be sold, but only with the written approval of the High Court.

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[2] A contract for the sale of real property may be recognized if there has been partial performance. The court may compel specific performance of a partially performed, unwritten agreement.

[3] Under Public Law 26-6, which amended A.S.C.A. § 37.0201(c) to define a native as a full-blooded Samoan person from Tutuila, Manu‘a, Aunu‘u, or Swains Island, it became prohibited to sell any lands other than freehold land to a person with less than one-half native blood.

Before RICHMOND, Associate Justice; and MAMEA, Associate Judge.

Counsel: For Kaio Ah Hing, Administrator of the Estate of Salevai Ah Hing, David P. Vargas For Sataoa Kaleuati and Litia Kaleuati, Fiti A. Sunia For Vancamp Va‘i, Mataniu-Mata‘i Va‘i and Anesi Lemani, Sharron I. Rancourt

OPINION AND ORDER

Background

In 1986, 21.753 acres of land known as ―Alatutu‘i‖ was conveyed to decedent Salevai Ah Hing (―Salevai‖). Salevai died intestate in 1989, and in 1990 her son, Fefiloi Ah Hing (―Fefiloi‖), was appointed to act as the administrator for the estate (―the Estate‖). Fefiloi was removed as administrator in August 1999 and replaced by Salanoa Aumoeualogo Soli, who acted as administrator until August 2003. Thereafter, Joseph Ah Hing acted as director until his death in 2004. The current administrator, Kaio Ah Hing (―Kaio‖), was appointed as administrator in 2006.

Before her death, Salevai agreed to sell approximately .477 acres of Alatutu‘i to the Kaleuatis. In consideration for this land, the Kaleuatis paid the purchase price of $25,000 before Salevai passed away. Before Salevai‘s death, the Kaleuatis cleared the land, built upon it, and occupied it without objection. However, a formal deed was not created and filed prior to Salevai‘s death. In 1991, Fefiloi filed a preliminary accounting report of the Estate with the court. This report stated that Sataoa Kaleatui had an agreement for the sale of the land from Salevai and that the payments had already been made. On September 23, 1992, Fefiloi, acknowledging receipt of the purchase price in full, signed a deed conveying the land to the Kaleuatis. On June 27, 1994, in accordance with the land registration process, and with no objections being filed, the Territorial Registrar issued a certificate of registration of the land as the Kaleuati‘s individually owned land.

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On September 6, 2005, the Kaleuatis sold this same .477 acres of land to Vancamp and Mataniu M. Va‘i. On December 1, 2005, the Office of the Territorial Register issued a notice stating that the Kaleuatis were the owners of record of the land and that there were no liens, encumbrances or mortgages on the land. On September 14, 2007 a warranty deed was created memorializing the transfer and stating that the purchase price had already been paid by the Va‘is.

In 1994, a quit claim deed was executed whereby Fefiloi transferred .289 acres of Alatutu‘i to Galuefa Mose, Sulu Osa, and their heirs for $1500. The deed acknowledged receipt of payment and was signed by Fefiloi. On August 12, 2004, the Territorial Registrar issued a certificate of registration of the land as the individually owned land of Mose, Osa and their heirs.

In 1997, the Lemanis purchased .124 acres of Alatutu`i from the Estate. The Lemanis began making payments on the property as early as November 1997. In July 1999, a deed of transfer of the approximately .124 acres of land to Samuela and Anesi Lemani was recorded. The deed stated that the grantor was Sa Ah Hing and the Estate of Salevai Ah Hing and that the grantees were the Lemanis. The deed was signed by Fefiloi. There is evidence that the land was paid for in full by the Lemanis and that from 1997, the Lemanis occupied and improved upon the land. In 2007, Samuela Lemani passed away.

After Kaio was appointed administrator of the estate, lawsuits were filed challenging the transfers of land. In 2007, Kaio, as administrator of the estate, filed a complaint to quiet title and set aside the deed against the Lemanis, claiming that the transfer of land was improper and invalid. In 2008, Kaio filed a complaint to quiet title to real property against the Kaleuatis, Geluefa Mose, Sulu Osa and their heirs. The 2008 complaint also alleged that the transfers of land were improper and invalid. These cases were consolidated, and trial was held on July 18 through July 20, 2012.

Discussion

The Estate contends that the transfers of land were invalid because Fefiloi improperly transferred the land under his own name and because the transfers never received the required approval of the High Court. We will address the estate‘s claims against each of the defendants regarding the transfer of land.

I. The Transfer of Land to the Kaleuatis and Va’is

The estate contends that the transfer to the Kaleuatis was improper and invalid because the deed of transfer states that Fefiloi transferred the land

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to the Kaleuatis, but Fefiloi was not able to legally transfer the land because the land was in probate and he was not the rightful owner of the land. The estate also contends that the Kaleuatis did not pay the full purchase price for the land and that the Kaleuatis were on notice that they did not have proper title to the land. Finally, the estate claims that the transfer is invalid because the High Court never approved the transfer, as required by law.

[1]-[2] It is well-settled law that a grantor cannot deed land that he does not own. Mailo v. Aumavae, 30 A.S.R.2d 175, 178 (Land and Titles Div. 1996). Moreover, real property in an estate may be sold, but only with the written approval of the High Court. A.S.C.A. § 40.0323(a). No contract for the sale of real property is valid unless it is put in writing. A.S.C.A. § 37.0211. However, a contract for the sale of real property may be recognized if there has been partial performance. Moana v. Fiaigoa, 5 A.S.R.3d 96, 99 (Trial Div. 2001). The court may compel specific performance of a partially performed, unwritten agreement. A.S.C.A. § 37.0211; Manoa v. Jennings, 21 A.S.R.2d 23, 25 (Land and Titles Div. 1992).

The evidence at trial showed that the Kaleuatis had an agreement with Salevai for the purchase of the land in question prior to her death. There is no reason why the Kaleuatis should have believed that the transfer of land was improper where they had already agreed to the transfer with Salevai and cleared and improved upon the land, living there for several years without objection from any outside party. The Estate‘s argument that the Kaleuatis did not pay the full purchase price for the land is without merit because the 1992 deed clearly states that the $25,000 fee was ―fully paid by Grantee to Grantor, receipt of which is acknowledged.‖ The Estate‘s claim that the transfer is invalid because Fefiloi was not qualified to transfer the land also fails. The 1992 deed of conveyance lists Fefiloi as the grantor and the Kaleuatis as the grantees. The Estate claims that the land belonged to the Estate, not Fefiloi, and accordingly the deed naming Fefiloi as the grantor is invalid. We disagree. The deed clearly was intended to memorialize the transfer of land agreed upon between the Kaleuatis and Salevai prior to her death. We do not interpret the deed as naming Fefiloi as grantor of the land in his personal capacity. Rather, the Fefiloi was grantor of the land in his capacity as administrator of the Estate.

The transfer of land to the Kaleuatis, however, did not meet the statutory requirements for the sale of real property in an estate. There is no evidence that the High Court gave its approval of the transfer of land memorialized in the 1992 deed, as required by A.S.C.A. § 40.0323(a). Compliance with A.S.C.A. § 40.0323(a) is not optional, and accordingly, we must vacate the transfer of land to the Kaleuatis. This necessarily vacates the transfer of land from the Kaleuatis to the Va‘is.

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However, our analysis does not end there. In Gabriel v. Pipili, 2 A.S.R.3d 227 (Land and Titles Div. 1998), the plaintiff entered into an agreement with Falefia Ene (―Ene‖) for the sale of land. The plaintiff paid the full purchase price before Ene passed away in 1996, but a deed of conveyance was not signed and delivered to the plaintiff prior to Ene‘s death. Gabriel, 2 A.S.R.3d at 228. Finding that there was a valid agreement between the parties and that the plaintiff had performed their part of the bargain, the court decreed specific performance directing the Estate of Ene to issue a deed to the plaintiff in accordance with their agreement. Gabriel, 2 A.S.R.3d at 228.

Similarly, in the case at bar, it is clear that the Kaleuatis and Salevai had a valid agreement for the sale of .477 acres of land. It is also clear that the Kaleuatis performed their end of the bargain prior to Salevai‘s death. The Kaleuatis also transferred this same .477 acres of land to the Va‘is in 2007. Therefore, although we vacate the prior transfers of land from the Estate to the Kaleuatis and from the Kaleuatis to the Va‘is because there was no official High Court approval of the original transfer, we decree specific performance and direct the Estate of Salevai to issue a deed to the Va‘is for the .477 acres of land in accordance with the 1992 and 2007 deeds.

II. The Transfer of Land to the Lemanis

Similarly to their argument against the Kaleuatis, the Estate contends that the transfer to the Lemanis was improper and invalid because the deed of transfer states that Fefiloi transferred the land, but Fefiloi was not able to legally transfer the land because the land was in probate and he was not the rightful owner of the land. The Estate also contends that the Lemanis took no steps to verify that Fefiloi had authority to transfer the land to them. Further, the Estate claims that the transfer is invalid because the High Court never approved the transfer, as required by law. Finally, the Estate argues that the Lemanis are statutorily prohibited from owning land in American Samoa.

The Estate‘s argument that Fefiloi was not qualified to transfer the .124 acres of land to the Lemanis is without merit because the deed states that the Estate was the grantor of the property, and we find that Fefiloi signed the deed as the administrator of the Estate. Moreover, the Estate‘s argument that the Lemanis failed to take steps to verify that the transfer was valid fails. As stated earlier, Fefiloi transferred the land in his capacity as administrator of the Estate, not in his personal capacity. The evidence at trial also shows that the Lemanis applied for and made several improvements on the land after the transfer. During this time, the Lemanis did not receive legitimate objections to their improvement and occupancy of the land.

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The transfer of land to the Lemanis, however, did not meet the statutory requirements for the sale of real property in an estate. Again, there is no evidence that the High Court gave its approval of the transfer of land memorialized in the 1999 deed, as required by A.S.C.A. § 40.0323(a). Accordingly, we must vacate the transfer of land to the Lemanis.

We earlier directed the Estate of Salevai to issue a deed to the Kaleuatis in accordance with the agreement for .477 acres between the Kaleuatis and Salevai. Before we direct the Estate to similarly issue a deed for the .124 acres to the Lemanis, we must consider whether the Lemanis are statutorily prohibited from owning land in American Samoa, as the Estate claims.

[3] In 1999, the legislature passed Public Law 26-6, which amended A.S.C.A. § 37.0201(c) to define a native as a full-blooded Samoan person from Tutuila, Manu‘a, Aunu‘u, or Swains Island. After this amendment, it became prohibited to sell any lands other than freehold land to a person with less than one-half native blood. See A.S.C.A. § 37.0204(b).

It is undisputed that the Lemanis were born in the Independent State of Samoa.1 Nonetheless, the 1999 amendment does not bar Anesi Lemani from owning the .124 acres of Alatutu‘i she purchased from the Estate. The evidence adduced at trial shows that the agreement to sell the .124 acres of estate land occurred in 1997, and the Lemanis made continuous payments from this time pursuant to the agreement. The evidence also shows that the Lemanis began to occupy the land in 1997. The sale of the .124 acres of land was essentially consummated prior to the 1999 amendment because the agreement to sell the land, the Lemanis occupancy of the land, and substantial payment of the purchase price all occurred prior to the amendment. See Moana v. Fioigoa, 5 A.S.R.3d 96, 100 (finding that continuous payments constituted partial performance entitling the plaintiff to specific performance of an oral real estate agreement). Accordingly, we direct the Estate of Salevai to issue a deed to Anesi Lemani for the .124 acres of land in accordance with the 1999 deed.

III. The Transfer of Land to Galuefa Mose, Sulu Osa, and Their Heirs

The Estate finally contends that the transfer of land to Galuefa Mose, Sulu Osa, and their heirs was improper and invalid. Again, they claim that Fefiloi improperly transferred the land in his own name even though

1 Samuela Lemani passed away in 2007, but his wife, Anesi Lemani, testified that she was born in Samoa.

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the land was in probate and he was not the rightful owner of the land. The Estate also argues that the High Court did not approve the transfer as required by statute. Finally, the Estate argues that title to the land must be quieted in its name because Mose, Osa and heirs have failed to answer the complaint and are in default.

The 1994 deed transferring the .289 acres of Alatutu‘i to Mose, Osa and heirs does appear to name Fefiloi as owner. The deed states that he is the ―owner‖ of the land and makes no reference to the Estate of Salevai. Moreover, there is no evidence that the High Court approved the transfer, as required by statute. Therefore, we vacate the transfer of land to Mose, Osa, and their heirs. However, given the amount of time that passed between the transfer of land and the lawsuit‘s commencement, the fact that the 1994 deed clearly states that the full purchase price was paid, and the fact that the transfer was certified by the Territorial Registrar without any apparent objection, we find that specific performance is again appropriate here. See Gabriel, 2 A.S.R.3d at 228- 29 (finding that specific performance of a real estate agreement by the estate was appropriate even though the defendant had improperly conveyed title she did not have). Accordingly, we again decree specific performance and direct the Estate to issue a deed to Mose, Osa and their heirs for the .289 acres of land in accordance with the 1994 deed.

Order

The prior transfers of land are vacated. However, the Estate of Salevai is directed to issue and have recorded deeds in accordance with their respective prior deeds: (1) to Vancamp and Mataniu-Matai Va‘i for .477 acres of Alatutu‘i; (2) to Anesi Lemani for .124 acres of Alatutu‘i;, and (3) to Galuefa Mose, Sulu Osa and heirs for .289 acres of Alatutu‘i.

It is so ordered.

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High Court of American Samoa Slip Opinions (2013)

Cite As: Atofa’i v. Fau, LT No. 35-81, slip op. at [page number] (Land & Titles Div. July 23, 2013)(order den. pl.‘s mot. to rescind and dismiss and defer ruling, and on def.‘s mot. to den. just comp.)

ATOFA’I FAU NAUMA and her Children, Plaintiffs,

v.

FAU ROBERT TUATAGALOA, Defendant.

High Court of American Samoa Land and Titles Division

LT No. 35-81

July 23, 2013

[1] If a party to an action dies and the claim is not extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successor of the deceased party, and shall be served on the parties as provided in T.C.R.C.P. 5.

[2] Even where a plaintiff was not formally served with a motion to substitute a defendant that was subsequently granted by the court, where the plaintiff failed to show he was prejudiced by the substitution, the court will not rescind the substitution order.

[3] A.S.C.A. § 43.0303 (concerning the court‘s ability to rescind an order) applies to orders prior to a proceeding, such as when the Court believes that there is a dispute that is likely to become the subject of proceedings in the Land and Titles Division and issues an order preventing a party from remaining in possession of land.

[4] Laches is an equitable defense that bars an action where an unreasonable delay in one party‘s assertion of its rights results in another party‘s undue prejudice. The court determines the applicability of laches on a case by case basis and will usually bar recovery only if a party has voluntarily delayed asserting a right, and as a result, the opposing party‘s as well as the court‘s ability to ascertain the truth are harmed.

Before RICHMOND, Associate Justice; MAMEA, Associate Judge; and MUASAU, Associate Judge.

Counsel: For Plaintiffs, M. Talaimalo Uiagalelei For Defendant, Matailupevao Leupolu, Jr.

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ORDER DENYING PLAINTIFFS‘ MOTIONS TO RESCIND PARTY SUBSTITIUTION AND TO DISMISS, AND DFERRING RULING ON MOTION FOR RELIEF FROM JUDGMENT AND ON DEFENDANT‘S MOTION TO DENY JUST COMPENSATION PENDING AN EVIDENTIARY HEARING

Case History

Plaintiffs Lemau Vaiepae, Mauailegalu Selesele and Taulago Nauma (―Plaintiffs‖) are children of the late Atofa‘i Fau Nauma (―Atofa‘i‖), the only originally named Plaintiff, who apparently passed away in 1989. Plaintiffs currently occupy land known as Mali‘o in the village of Vailoatai. Defendant Fau Robert Tuatagaloa became the Fau titleholder in 2001. On September 4, 2012 he was substituted by this Court as the named party Defendant for Fau Pulemau (―Pulemau‖), the originally named Defendant who apparently passed away in 1992.

In 1981, Atofa‘i brought an action for injunctive relief against Pulemau, then the senior matai of the Fau family. After a trial, the court denied Atofa‘i‘s request for a permanent injunction and ruled that Pulemau was entitled to evict her from land where she had been staying, but that in the interest of equity, Atofa‘i was to be justly compensated for the loss of her home and other properties she had built there. Atofa’i v. Fau, LT No. 35-81, slip op. (Land & Titles Div. Sept. 23, 1981). On October 23, 1981, the court granted Atofa`i and Her Children a new trial on the issue of whether or not eviction of a family member from family land is appropriate when reassignment to other available family land could promote family peace and harmony and avoid harshness of effective banishment.

Then, however, until Tuatagaloa‘s present involvement, this action became dormant without anyone‘s effort to pursue either the just compensation or new trial issues. On July 26, 1012, Tuatagaloa moved for his substitution as the party Defendant to resolve compensation issue. On November 9, 2012, after granted opportunity to respond, Plaintiffs filed their combined motion to rescind the substitution, for relief from judgment, and to dismiss. We heard these motions on February 20, 2013.

Post-Judgment Settlement of the Conflict

After the court‘s 1981 decision, Plaintiffs claim that the Atofa`i and Pulemau resolved their conflict. Tuatagaloa expressly denies any such settlement.

According to Plaintiffs‘ affidavit, Pulemau summoned their mother Atofa`i, the whole immediate family, including Plaintiffs, to a meeting at

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his house in November 1981. At the meeting, Pulemau stated that he wished to make peace instead of evicting Atofa‘i and her children from the land. Atofa‘i apologized to Pulemau for having taken the matter to court and thanked him for his willingness to forgive her and her children. After this reconciliation, Atofa‘i and her children were allowed to remain on Mali‘o. Plaintiffs claim that they and their families have been residing on Mali‘o ever since this time. Plaintiffs also claim that after the meeting, they were allowed to build homes on Mali‘o which still stand today and that these houses were built with Pulemau‘s knowledge and permission. Plaintiffs further claim that they were allowed to work the land and grow crops on Mali‘o and that these crops have been used for their own benefit and for the benefit of the Fau family since the Court‘s 1981 order.

Plaintiffs state that they have also rendered service to the Fau family since the time of the reconciliation between Pulemau and Atofa‘i. In addition to the crops used to render service to the Fau family, Plaintiffs assert that they assisted in building Pulemau‘s house and served the family in other ways. After Atofa‘i passed away, Pulemau authorized her to be buried on Fau communal family land and in fact presided over her funeral. Plaintiffs still allegedly continued to render service to the Fau titleholder and family without objection until Pulemau‘s death in 1992.

Discussion

I. Tuatagaloa Substitition

Regarding the substitution, Plaintiffs claim that the order granting leave to substitute Tuatagaloa as a party Defendant should be rescinded because they never were served with notice of the hearing on the substitution issue. They claim that they had no knowledge of Tuatagaloa‘s substitution motion and therefore made no attempt to attend the hearing. Moreover, Plaintiffs were without the benefit of legal counsel at the time the motion was made and were therefore uninformed about the legal details of Tuatagaloa‘s motion. Plaintiffs contend that the order granting substitution is an ex parte order that has prejudiced them and therefore must be rescinded pursuant to A.S.C.A. § 43.0303.

[1] If a party to an action dies and the claim is not extinguished, the court may order substitution of the proper parties. A.S.C.A. § 43.5002; T.C.R.C.P. 25(a). The motion for substitution may be made by any party or by the successor of the deceased party, and shall be served on the parties as provided in T.C.R.C.P. 5. T.C.R.C.P. 25(a). All written motions, other than those which may be heard ex parte, must be served upon each party. T.C.R.C.P. 5(a).

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[2] Here, while Plaintiffs may not have been formally served with the motion to substitute pursuant to T.C.R.C.P. 5, they have failed to show they were prejudiced by the order granting substitution. There is no dispute that Pulemau, the previous Defendant, passed away, and that Tuatagaloa is Pulemau‘s successor as senior matai titleholder for the family. Substitution of parties is routine pursuant to T.C.R.C.P. 25, and Plaintiffs have failed to show that they if they were served properly, they would have been able to prevent Tuatagaloa from being substituted as Defendant here. Even if this Court were to rescind its previous order granting substitution, Plaintiffs have failed to give any reason why any subsequent motion to substitute Tuatagaloa as Defendant would not be granted. Accordingly, we deny Plaintiffs‘ motion to rescind.

[3] Moreover, Plaintiffs contention that this Court may rescind the substitution order pursuant to A.S.C.A. § 43.0303 is mistaken. A.S.C.A. § 43.0303 applies to orders prior to a proceeding, such as when the Court believes that there is a dispute that is likely to become the subject of proceedings in the Land and Titles Division and issues an order preventing a party from remaining in possession of land. See A.S.C.A. § 43.0303(a). The substitution order here was granted well after proceedings began, and A.S.C.A. § 43.0303 would therefore not apply.

II. Relief from Judgment

Plaintiffs next move for relief from this Court‘s previous 1981 order in Defendant Pulemau‘s favor. Plaintiffs argue that it has been over 30 years since this Court‘s ruling in Defendant‘s favor and there has been no attempt to enforce said ruling. Peace was made between the parties after the Court‘s 1981 decision, and the parties lived in relative harmony in the subsequent years after this occurred. The Court issued its 1981 ruling in part due to its desire to observe fa‘a Samoa and give weight to Pulemau‘s authority as senior matai of the family. Plaintiffs state that if this Court recognized a matai‘s authority to evict family members from land, then it must also recognize a matai‘s authority to forgive them. The fact that Plaintiffs stayed on the land for so long after the 1981 ruling and built houses, harvested crops, and rendered service to the family is all evidence of this forgiveness. Plaintiffs assert that allowing Tuatagaloa to proceed now and attempt to evict Plaintiffs would be inequitable and should be barred by the doctrine of laches.

The Court may relieve a party final judgment for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial; (3) fraud misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, release, or discharged, or it is no longer equitable that the judgment should have prospective application; or (6)

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any other reason justifying relief from the operation of the judgment. T.C.R.C.P. 60(b).

[4] Laches is an equitable defense that bars an action where an unreasonable delay in one party‘s assertion of its rights results in another party‘s undue prejudice. Amituanai v. Sataoa, 6 A.S.R.3d 341, 345 (Land and Titles Div. 2002). The court determines the applicability of laches on a case by case basis and will usually bar recovery only if a party has voluntarily delayed asserting a right, and as a result, the opposing party‘s as well as the court‘s ability to ascertain the truth are harmed. Blue Pacific Management Corp. v. Anderson, 8 A.S.R.3d 87, 96 (Trial Div. 2004).

Here, the Court stated in its 1981 decision that Pulemau, as senior matai of the family, was authorized to evict family members from land. This reasoning still holds true for Tuatagaloa, the successor matai of the family. While the Court‘s 1981 eviction order may not have been enforced as of yet, there is insufficient evidence to justify this court voiding its previous 1981 order. Plaintiffs claim that they have stayed on the land and rendered service in the interim, and this justifies voiding the 1981 order, but in his response Tuatagaloa disputes that Plaintiffs have rendered service. Moreover, nothing was filed with the court prior to Pulemau‘s death concerning any alleged reconciliation between the parties which would provide this Court sufficient justification to grant Plaintiffs‘ motion. A plausible explanation for the delay in enforcing the Court‘s 1981 order is that the parties simply never took steps to determine the just compensation to Atofa‘i for the loss of her home and other properties she had built, as ordered by the Court. Moreover, the death of Pulemau certainly contributed to the delay in enforcement of the order. Plaintiffs may have benefitted by staying on the land after the issuance of the 1981 order, but without an evidentiary hearing, they have provided insufficient evidence to justify voiding said order.

Plaintiffs‘ contention that laches applies also fails. Laches generally applies when a party has delayed asserting a right, and as a result, the opposing party‘s as well as the court‘s ability to ascertain the truth are harmed. Blue Pacific Management Corp., 8 A.S.R.3d at 96. Here, the delay in enforcing the Court‘s prior order has not harmed the Court‘s or Plaintiffs‘ ability to ascertain any truths. This action has been decided for many years now, and there really is nothing further to determine. Accordingly, we will defer ruling on Plaintiffs‘ motion for relief from judgment unless and until a basis for granting such relief is established at an evidentiary hearing. Similarly, we will defer any ruling on the just compensation until an we have an evidentiary hearing on this issue as well.

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III. Dismissal

Finally, Plaintiffs contend that this action should be dismissed because Tuatagaloa has not complied with the statute of limitations. Plaintiffs state that there is a statute of limitations period of 10 years for the Court‘s order to be enforced. Because the Court issued its order in 1981, the statute of limitations period has passed, and Tuatagaloa cannot now attempt to enforce the Court‘s order.

Actions founded on written contracts or a judgment of a court of record must be brought within 10 years. A.S.C.A. § 43.0120(5).

The statute of limitations was not violated here. This is not a new action against a new defendant, but rather the continuation of a lawsuit that commenced in the 1980‘s. See Hong v. Chung Yong # 21, 5 A.S.R.3d 197, 204 (Trial Div. 2001). The fact that Tuatagaloa has substituted himself as a party to this action and is attempting to enforce the Court‘s 1981 order does not violate the statute of limitations, which applies to new actions.

Order

Plaintiffs‘ motions to rescind Tuatagaloa‘s substitution as the party Defendant and dismissal of this action are denied. Ruling on Plaintiffs‘ motion for relief from judgment, as well on the just compensation issue, are deferred pending an evidentiary hearing.

It is so ordered.

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Cite As: Alai’asa v. Fa’aolataga, MT No. 06-12, slip op. at [page number] (Land & Titles Div. Sep. 9, 2013)(order dismiss. action for lack of juris. without prej.)

NORRIS M. ALAI’ASA, Claimant,

v.

FA’AOLATAGA FUSITU’A, Counterclaimant.

[In re Matai title “Alai’asa” of the Village of Faleniu]

High Court of American Samoa Land & Titles Division

MT No. 06-12

September 9, 2013

[1] The Land and Titles Division lacks jurisdiction to adjudicate a successor matai controversy unless the family meaningfully meets, adequately noticed with all family members having opportunity to be heard, to select the successor titleholder before any claims to register the title are filed with the Territorial Registrar.

Before RICHMOND, Associate Justice; MAMEA, Associate Judge; FA‘AMAUSILI, Associate Judge; and SATELE, Associate Judge.

Counsel: For Claimant, Sharron I. Rancourt

For Counterclaimant, M. Talaimalo Uiagalelei

ORDER DISMISSING ACTION FOR LACK OF JURISDICTION WITHOUT PREJUDICE TO ALLOW FAMILY TO RENEW THE PROCESS TO SELECT SUCCESSOR TITLEHOLDER

On August 27, 2011 before proceeding with the scheduled trial of this action, the court first heard on an expedited basis in light of the recent decision in Vaeao v. Thompson, Opinion and Order AP No. 11-11 (App. Div., Aug. 7, 2013), the court first heard the motion of Claimant Norris M. Alai‘asa (―Norris‖) to dismiss this for lack of jurisdiction. Counterclaimant Fa‘aolataga Fuisitu‘a (―Fa‘aolataga‖) and both counsel were personally present. Norris telephonically participated. For the reasons set forth below, the motion to dismiss is granted without prejudice to allow the Alai‘asa [**2**] family to renew the process of selecting the successor holder of the matai title ―Alai‘asa.‖

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[1] The Appellate Division in Vaeao clearly held that the Land and Titles Division lacked jurisdiction to adjudicate a successor matai controversy unless the family meaningfully meets, adequately noticed with all family members having opportunity to be heard, to select the successor titleholder before any claims to register the title are filed with the Territorial Registrar. Vaeao, AP 11-11 at 6-7; see also A.S.C.A. § 1.0405(b).

On June 5, 2011, Claimant filed his claim to register the vacant Alai‘asa title in his name. Selection of the successor titleholder came under discussion at two meetings before Claimant filed his registration claim. On February 11, 2011, during the family‘s one-year commemoration of the previous Alai‘asa‘s titleholder‘s passing, the family discussed selection of his successor. No newspaper or radio notice of this discussion was given, however, and Fa‘aolataga did not attend this discussion. Because of complaints over the lack of media notice, a second meeting was held on April 30, 2011. Newspaper but no radio notice was given of this second meeting. This meeting was sparsely attended; present were only a few members of Norris‘ side of the family and Fa‘aolataga, who believes the principal purpose of the meeting was to let her know that Norris would be the next Alai‘asa titleholder.

Norris then filed his claim to the title on June 5, 2011. Fa‘aolataga responded with her counterclaim on August 5, 2011 near the end of the 60-day posting period, June 10 – August 9, 2011 in this case, statutorily required to permit filing of counterclaims or objections to the initiating claim. See A.S.C.A. § 1.0407(a).

Several meetings took place after the posting period-on October 1 and November 5, 2011, and on February 21, 2012 while the dispute resolution proceedings before the Secretary of Samoan Affairs were still in progress. These meetings appear to have been held upon adequate notice and opportunity to be heard. The case is arguably ready for trial as between Norris and Fa‘aolataga if they are the only candidates. However, the present posture of this action cannot overcome the legal insufficiency of the two meetings held prior to Norris filing his title registration claim on June 5, 2011. The two prior meetings did not, and cannot adequately accommodate other qualified aspirants within the family members who may aspire to hold the title at this time.

Accordingly, the dismissal motion is granted. This action is dismissed for lack of jurisdiction without prejudice to allow the Alai‘asa family to meet before any claim to register the title is filed, upon adequate notice and with genuine opportunity for all family members to be heard, on the selection of the next holder of the Alai‘asa matai title.

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It is so ordered.

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Cite As: Ioapo v. Aviata, MT No. 02-02, slip op. at [page number] (Land & Titles Div. Oct. 16, 2013)

TAUA`I IOAPO, JR., Claimant,

v.

AVIATA FANO FA`ALEVAO, Counter-claimant.

[In re Matai Title “PAPALAUENA” of the Village of Olosega]

High Court of American Samoa Land and Titles Division

MT No. 02-02

October 16, 2013

[1] The court has jurisdiction over a matai title controversy where the family has " had a meaningful opportunity to select a matai successor, two series of A.S.C.A. § 43.0302 hearings presided by a disinterested Deputy Secretary of Samoan Affairs were undertaken by the parties, a "disputed claim," A.S.C.A. § 1.0409, is presented.

[2] Under A.S.C.A. § 1.0403., a matai candidate must be more than one- half Samoan blood, born in American Samoa, satisfy the prescribed residency requirements, enjoy the support of his or her family for the title, and live with Samoans as a Samoan.

Before KRUSE, Chief Justice, LOGOAI, Chief Associate Judge, MAMEA, Associate Judge, FA`AMAUSILI, Associate Judge, and MUASAU, Associate Judge

Counsel: For Claimant, Afoa L.S. Lutu, substituted by Matailupevao Leupolu, Jr. For Counter-claimant, Pro se, substituted by Marcellus Talaimalo Uiagalelei

OPINION AND ORDER

This controversy commenced in early 2001 after claimant Taua`i Ioapo, Jr., ("Taua`i") offered the matai title Papalauena of Olosega, Manu`a for registration with the Territorial Registrar. Taua`i's claim was met with Aviata F. Fa`alevao's ("Fa`alevao") objection and counter-claim. Consequently, the dispute was referred by the Territorial Registrar on

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February 28, 2002 to the Land and Titles Division for determination. Accompanying the referral was a Certificate of Irreconcilable Dispute ("CID") issued pursuant to A.S.C.A.§ 43.4302 by then Secretary of Samoan Affairs Sotoa Savali. A series of interlocutory motions then ensued. First, Fa`alevao challenged the validity of the CID as well as an earlier decision of the [**2**] assembled Papalauena family appointing Taua`i as the next titleholder. While we upheld the portion of Fa`alevao's motion questioning the validity of the CID and the § 43.0301 proceedings before Secretary Sotoa, a Papalauena family member and interested party, we declined to meddle with the Papalauena family's meeting and outcome. See In re Matai Title Papalauena, MT No. 02-02, (Land & Titles Div. 2006) (Order On Motion To Dismiss, May 12, 2006). Notwithstanding the interlocutory nature of proceeding, Fa`alevao next moved for "reconsideration," which we denied. See In re Matai Title Papalauena, MT No. 02-02, (Land & Titles Div. 2006) (Order On Motion For Reconsideration, Dec. 21, 2006).

One year later, Taua`i moved for a trial date, attaching with his motion a second CID issued under signature of Deputy Secretary of Samoan Affairs, Nanai Afuola. However, before his motion to set for trial came on for hearing, Taua`i interposed another motion seeking dismissal "for lack of jurisdiction," asserting that there was no controversy for the Court to consider since the Court had earlier upheld the Papalauena family's meeting whereby Taua`i was selected as matai. This motion and Fa`alevao's own cross-motion to dismiss "for lack of jurisdiction" were denied, and the matter was placed on the Court's trial calendar. See In re Matai Title Papalauena, MT No. 02-02, (Land & Titles Div. 2008) (Order, April 10, 2008).

On June 12, 2008--eight days before trial date--the parties filed a stipulation to continue proceedings herein pending final disposition of another matai title dispute before the Land and [**3**] Titles Division concerning the paramount (fa`atui) matai title Tuiolosega, also attached to the village of Olosega. See In re Matai Title Tuiolosega, MT No. 02- 02.1 This matter was thus continued but then languished on our docket, forgotten apparently, until Taua`i filed on April 11, 2012 his motion for a "Status hearing and/or set date for trial." To complicate things, Fa`alevao has taken ill and is on indeterminate medical leave of absence off-island. Consequently, Tui Levao moved to intervene in this dispute on December 12, 2012--some 10 years after the limitations period for the filing a succession claim had expired, see A.S.C.A. § 1.0407(a)--by filing his motion to substitute and replace Fa`alevao, citing Fa`alevao's indefinite off-island medical absence. We denied Tui Levao's motion to

1 Fa`alevao is also a party to this parallel litigation and as far as we can tell from the Clerk's file, the Tuiolosega matai title controversy is still unresolved.

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intervene, see In re Matai Title Papalauena, MT No. 02-02 (Land & Titles Div. 2013) (Order On Motion To Intervene, Jan. 15, 2013); however, Fa`alevao has opted to remain in the case to assert his counter- claim through counsel. Not inclined to grant any further continuances since the matter has sat in abeyance for too long and, more importantly, the Papalauena family has been without a matai during the protracted interim, the matter finally came on for trial on July 25, 2013.

Discussion

After hearing the parties' evidence, we ordered final arguments in writing before taking the matter under advisement. [**4**]

I. Jurisdiction

[1] We assert jurisdiction, satisfied that the Papalauena family has "at first instance" had a "meaningful opportunity" to select a matai successor. In re Matai Title Taliaaueafe, 3 A.S.R.3d 225, 228 (Land & Title Div. 1999). Moreover, we are satisfied that a second series of A.S.C.A. § 43.0302 hearings presided by a disinterested Deputy Secretary of Samoan Affairs were undertaken by the parties, as the Deputy Secretary's CID of October 04, 2007 attests. Finally, a "disputed claim," A.S.C.A. § 1.0409, is presented notwithstanding Taua`i's contention that the Court is somehow deprived of subject matter jurisdiction simply because the Papalauena family has at first instance appointed Taua`i to succeed to the matai title. Indeed, section 1.0409(a) clearly mandates the Court to determine any disputed claim. Moreover, A.S.C.A. § 1.0407 unambiguously provides that "[t]he court shall issue a written decision that must contain finding of facts and conclusions of law on each issue under [1.0407](c) above."

II. Findings

[2] First, we find that Taua`i is eligible and qualified for succession, in accordance with the requirements prescribed by A.S.C.A. § 1.0403. The evidence shows that Taua`i is more than one-half Samoan blood, that he was born in American Samoa, that he satisfies the prescribed residency requirements, that he enjoys the support of his family for the title, and that he has lived with Samoans as a Samoan.

Moreover, guided by the criteria enumerated in A.S.C.A. § [**5**] 1.0409(c), viz: (1) the best hereditary right to the title; (2) the wish of the majority or plurality of the customary clans of the family; (3) the forcefulness, character, personality, and knowledge of Samoan custom; and (4) value to the family, village, and country, we make the further findings:

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A. Hereditary Right

On the evidence received, we find that Taua`i is a blood heir to the matai title Papalauena. Fa`alevao, on the other hand, presented his genealogy through instructions he had given to his daughter who took the stand on his behalf. We allowed Fa`alevao's daughter's double hearsay testimony over Taua`i's objection to not being able to cross-examine Fa`alevao on the latter's pedigree claim, noting that the Court would weigh the evidence accordingly.2 Under the circumstances, we make no finding one way or the other on Fa`alevao's hereditary claim.

We are satisfied that Taua`i is entitled to hold the matai title Papalauena.

B. Wish of the Majority or Plurality of the Clans

Taua`i claims that the Papalauena family is a one clan entity, known as Matatala, while the witnesses called by Fa`alevao claim a multi-clan family with some even suggesting [**6**] that every past titleholder gave rise to a new clan.3 In our assessment of the evidence, we find two distinct descent groups evident within the Papalauena family today as the family has evolved in relatively recent times. One group or clan is known as Matatala, while the other descent group is one that has historical ties to Tau. While Taua`i is a member of the first, Fa`alevao claims his entitlement through the second branch, which has been dominant in immediately past titleholders.

Moreover, we further find that prior to Taua`i's offer to register the Papalauena title with the Territorial Registrar on February 2, 2000, the Papalauena family had previously assembled in Lalovi, Olosega, Manu`a on or about October 28, 1999 to discuss the selection of a successor matai. All clans were represented with a great number of family members in attendance at the family's traditional meeting site. Although Fa`alevao was not present at this meeting, claiming the absence of notice, he was nonetheless nominated by HTC Malaepule and thus his name was accordingly presented before the assembled family's consideration. See In re Matai Title Papalauena, MT No. 02-02, (Land & Titles Div. 2006) (Order On Motion To Dismiss, May 12, 206). The family reached a consensus and resolved on Taua`i to be the next

2 A.S.C.A. § 3.0242(b) reads: "In any matter of practice or procedure not provided for, or the strict compliance with any rule of practice or procedure maybe inequitable or inconvenient, the land and titles division may act in each case in such manner as it considers to be most consistent with natural justice and convenience." 3 Cf. In re Matai Title Sotoa, 2 A.S.R.2d 15 (Land & Titles Div. 1984) ("Every new title holder does not start a new line of heredity.")

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titleholder. This outcome resulted in the traditional presentation of the first `ava cup to Taua`i, signifying his appointment as the next titleholder.

[**7**] We conclude that Taua`i's bid to succeed to the Papalauena matai title is well supported by the family's clans.

C. Forcefulness, Character, Personalty and Knowledge of Samoan Customs

Taua`i is 67 years old and he has been a member of the Olosega Village council for the past 18 years as the registered holder of the Taua`i matai title. As such, he has served the Papalauena family as spokesman in its various affairs, as well the village and church as a serving matai. Taua`i has served the American Samoa Government as an employee subsequent to his to returning to the Territory in the early 1990s. Prior to his return, Taua`i served meritoriously the with the United States Air Force for 26 years, specializing in jet aircraft engine maintenance. Besides the educational and training opportunities the Air Force provided him, Taua`i also secured a college education and degree.

Considering his personal history4--his education and career pursuits as well as his involvement in village and council matters--and from his demeanor5 and responses on the witness [**8**] stand, we are satisfied that Taua`i favorably demonstrates the qualities of forcefulness, character, personality and knowledge of Samoan customs to support his bid to family leadership.

D. Value to Family, Village, and Country

As alluded to above, Taua`i has acquitted himself commendably in his service to the country, village, and his family. Significantly, Taua`i is the family's choice to lead the family. We see nothing whatsoever to warrant our disturbing the family's decision.

4 "Leadership ability, honesty, education, public service, involvement in church and village affairs, and previous experience as a matai are some of the factors which aid in meeting this criterion." In re Matai Title Leaeno, 25 A.S.R.2d 4, 8 (Land & Titles Div. 1994). 5 See Asuega v. Manuma, 4 A.S.R. 616, 629 (Trial Div. 1965) (Court must weigh ". . . personal demeanor, presence of mind, the clarity, speed, and correctness with which answers were given, candidness, the ability to stand up to rigorous cross examination, the education, the self- confidence, and other qualities which are reflected from the speech and behavior of the candidates, matters which can be assessed only from the personal observation of each individual candidate. . . .")

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Conclusion

On the foregoing, we conclude that Taua`i is both eligible and qualified to hold the matai title Papalauena. Pursuant to A.S.C.A. §1.0409, we certify to the Territorial Registrar to register the matai title Papalauena in claimant Taua`i Ioapo, Jr. It is so ordered.

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Cite As: Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09, slip op. at [page number] (Land & Titles Div. Oct. 29, 2013)(order den. def‘s. mot. for recon.)

CHARLES V. ALA’ILIMA as trustee for the ESTATE OF LEFEGA SOLIAI BEAVER, Plaintiff,

v.

TERRITORIAL REGISTRAR, ALBERT MAILO, SAM KUPA and NANCY KUPA, VIENA TIATIA and ATUMAUGA TIATIA, LUANI LU’UGA, FEO LAGAFUAINA as administrator of the ESTATE OF LAGAFUAINA LAISENE, and DOES I-XX, Defendants.

FEO LAGAFUAINA as administrator of the ESTATE OF LAGAFUAINA LAISENE, Cross-Plaintiff,

v.

ALBERT MAILO, Cross-Defendant.

SAM & NANCY KUPA and VIENA & ATUMAUGA TIATIA, Cross-Plaintiffs,

v.

ALBERT MAILO, Cross-Defendant.

High Court of American Samoa Land and Titles Division

LT No. 02-09

October 29, 2013

[1] Under T.C.R.C.P 54(b), it is well settled that trial courts have the authority to reconsider and revise interlocutory orders, including motions for partial summary judgment.

[2] The Court retains absolute discretion to revise interlocutory orders and generally will only do so when necessary to rectify clear error or to avoid manifest injustice.

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[3] Under the equitable doctrine of laches, a defendant has the burden of proving: (1) the plaintiff delayed filing suit for an unreasonable and inexcusable length of time from the time the plaintiff knew or reasonably should have known of its claim against the defendant, and (2) the delay operated to the prejudice or injury of the defendant.

[4] As an equitable defense laches cannot be asserted by a party with unclean hands.

[5] A land owner may defeat a claim of adverse possession by demonstrating that the occupation was permissive and therefore not hostile.

[6] In the context of Samoan culture where many Samoan families allow other families to live on their land, hostility must be shown by evidence of acts unequivocally inconsistent with the owner‘s claim of title.

[7] Tacking allows a claimant to establish title by adverse possession by combining periods of possession from successive occupants who maintain the requisite privity of estate.

[8] While tacking may be established through a transfer between consanguineous possessors, it is also available to any individual who can establish the appropriate privity with a predecessor in interest.

[9] In order to meet the statutory possession period through tacking, an adverse possessor must show the requisite privity with a predecessor in interest as well as a valid land conveyance between the predecessor in interest and the adverse possessor.

[10] The tripartite structure of land registration and recordation includes Torrens registration for previously unregistered lands, a deed recording system typical of many U.S. jurisdictions, and provisions specific to Samoan customs and communal land ownership.

[11] For the first registration of previously unregistered lands, A.S.C.A. §§ 37.0101-0120 provides the local Torrens registration procedures. As to already registered parcels, A.S.C.A. §§ 37.0201-.0230 addresses the alienation of land and recordation of deeds.

[12] While A.S.C.A § 37.0101-.0120 acts as a form of estoppel on any attempt to register already registered land, A.S.C.A. §§ 37.0201-.0230 ensures a party who properly records a deed will prevail on the merits against adverse claimants.

[13] The 60-day public notice provisions and other safeguards outlined in §§ 37.0101-.0120 ensure that any party with an interest in the land has

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sufficient time to object to the pending registration. A registrant‘s compliance with this procedure grants the record owner title that is good against the world and precludes any subsequent attempt to register the same land.

[14] Once land is registered, good title may only be acquired from the record owner by deed or adverse possession.

[15] Recording a deed cannot affect preexisting interests of those not signatories to or otherwise bound by the instrument itself.

[16] In part because a later recorded deed cannot affect preexisting interests, §§ 37.0201-0230 does not provide for a public notice period. [**2**]

Before RICHMOND, Associate Justice; MAMEA, Associate Judge; and FA‘AMAUSILI, Associate Judge.

Counsel: For Plaintiff Charles V. Ala‘ilima as trustee for the Estate of Lefaga Soliai Beaver, Charles V. Ala`ilima and Marcellus Talaimalo Uiagalelei For Defendant Territorial Registrar, Marian M. Raposa, Assistant Attorney General For Defendant/Cross-Defendant Albert Mailo, Roy J.D. Hall, Jr. For Defendants/Cross-Plaintiffs Sam & Nancy Kupa and Viena & Atumauga Tiatia, Marshall Ashley and Richard Desaules For Defendant/Cross-Plaintiff Feo Lagafuaina as admimnistrator of the Estate of Lagafuaina Laisene, Marie A. Ala‘ilima

ORDER DENYING DEFENDANT ALBERT MAILO‘S MOTION FOR RECONSIDERATION

Background

The Court‘s July 19, 2013 Order Granting in Part and Denying in Part the Parties‘ Several Motions for Summary Judgment provides a detailed recitation of this action‘s procedural history and factual background. In that order, the Court granted Plaintiff Charles V. Alailima‘s as administrator of Estate of Lefaga Soliai Beaver (Beaver Estate) motion for partial summary judgment on the validity of Beaver Estate‘s title to the one-acre parcel of land. The Court also denied the motion of Defendant Albert Mailo (Mailo) for summary judgment on matters of laches, adverse possession, and the statute of limitations for actions to

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recover real property. Here, the Court considers Mailo‘s motion to reconsider the above holdings. [**3**]

Discussion

In the interest of judicial economy and efficiency, the Court will generally only entertain a motion to reconsider a final judgment. The several motions for partial summary judgment before the Court in the present motion for reconsideration are ―not really . . . final judgment[s] but only . . . interlocutory order[s].‖ Taylor v. Solaita, 3 A.S.R.3d 218, 222 (Land & Titles Div. 1999).

[1]-[2] However, under T.C.R.C.P 54(b), ―it is well settled that [trial] courts have the authority to reconsider and revise interlocutory orders,‖ including motions for partial summary judgment. Hydranautics v. Filmtec Corp., 306 F. Supp. 2d 958, 968 (S.D. Cal. 2003) (citing Amarel v. Connell, 102 F.3d 1494, 1515 (9th Cir. 1997)). Under Rule 54, ―any order . . . that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties‘ rights and liabilities.‖ See generally Balla v. Idaho State Bd. of Corrections, 869 F.2d 461, 464 (9th Cir. 1989). Thus, the Court retains absolute discretion to revise interlocutory orders and generally will only do so when [**4**] necessary to rectify clear error or to avoid manifest injustice. See Hydranautics, 306 F. Supp. 2d at 968.

I. Mailo’s laches defense fails because an equitable defense is not available to a party with unclean hands.

[3]-[4] We first consider Mailo‘s argument that the Court erred when it denied his motion for partial summary judgment on the basis of laches. Under the equitable doctrine of laches, ―a defendant has the burden of proving two factors: (1) the plaintiff delayed filing suit for an unreasonable and inexcusable length of time from the time the plaintiff knew or reasonably should have known of its claim against the defendant, and (2) the delay operated to the prejudice or injury of the defendant.‖ Hong v. Chung Yong #21, 5 A.S.R.3d 197, 203 (Trial Div. 2001); see TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3, 11 (App. Div. 2003). As an equitable defense, however, ―laches cannot be asserted by a party with unclean hands.‖1 Abraham v. Alpha Chi Omega,

1 The clean hands doctrine ―closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the [opponent].‖ Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S. 806, 814 (1945).

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708 F.3d 614 (5th Cir. Tex. 2013); see also Huff v. Huff, 15 A.S.R.2d 83 (Trial Div. 1990)(noting that party asserting estoppel or laches defense must have clean hands); Hardy v. Anderson, 9 A.S.R.2d 79, 83 [**5**] (Trial Div. 1988)(barring assertion of equitable remedy due to plaintiff‘s unclean hands).

Here, regardless of any prejudice to Mailo from Beaver Estate‘s delay in bringing this claim, Mailo‘s unclean hands preclude an equitable laches defense. By Mailo‘s own admission in his March 4, 2010 deposition, directly after he sold land to Sam and Nancy Kupa in 1994, Lefaga Soliai Beaver (Beaver) informed him of her adverse claim to the land. Moreover, upon receiving such notice, Mailo conducted his own investigation and title search which confirmed that Beaver held a valid recorded deed to a one-acre plot which overlapped Mailo‘s six acres. In spite of these facts, Mailo did not institute proceedings to quiet title but instead subdivided and sold parcels of the disputed land to Defendants/Cross-Plaintiffs Viena Tiatia and Atumauga Tiatia in 1997 and to Luani Lu‘uga in 2003.

While Mailo‘s laches argument charges Beaver Estate with the sole responsibility to file a claim, Mailo is at least as culpable for his failure to undertake the very same action. Rather than seek redress through the courts, Mailo ignores the presence of an adverse claim of title and knowingly sold land to unwitting buyers. At the least, Mailo‘s conduct constitutes bad faith and at the worst, outright fraud. The Court will not [**6**] advance an equitable defense in which the party asserting that defense has himself failed to act in an equitable manner. We therefore deny Mailo‘s motion for reconsideration of his laches defense.

II. Mailo is not entitled to summary judgment on adverse possession because questions of material fact remain as to whether Mailo’s possession was “hostile” and because he cannot invoke tacking to meet the 30-year statutory period.

Mailo next moves to reconsider the Court‘s denial of his motion for partial summary judgment arguing that Mailo adversely possessed the disputed one-acre plot. Mailo first contends that the Court exceeded its authority by prematurely resolving contested facts in an order on summary judgment. As part of our order, we noted that Mailo‘s motion for partial summary judgment at times conceded that Beaver consented to the Kupas‘ occupancy of the .25 acres they purchased from Mailo. If true, such consent would defeat the ―hostility‖ element of Mailo‘s adverse possession defense.

Mailo misreads the Court‘s order as affirmatively establishing the fact of Beaver‘s consent when instead the Court merely highlighted that the issue of consent remained a genuine issue of material fact. The Court is

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not aware of any stipulations or changed circumstances since its order on July 19, 2013 that have resolved this dispute – nor does Mailo argue in [**7**] his present motion that the issue of Beaver‘s consent has been resolved in his favor.

[5]-[6] Moreover, there remains a question of material fact as to whether or not Mailo‘s possession of Beaver Estate‘s land fulfills the ―hostility‖ element of an adverse possession defense. ―Possession is adverse if it is exclusive, continuous, open, notorious, and hostile to another person‘s ownership for the 30-year statutory period.‖ Tiapula v. Isumu Leapagatele’s Children, 6 A.S.R.3d 324, 331 (Land & Titles Div. 2002); A.S.C.A. § 37.0120. A land owner may defeat a claim of adverse possession by demonstrating that the occupation was permissive and therefore not hostile. Williams v. Tupuola, 6 A.S.R.3d 44, 49 (App. Div. 2002) (permissive occupation results in a personal license to the permittee); Alai`asa v. Te`o, 5 A.S.R.3d 266, 269 (Land & Titles Div. 2001). In the context of Samoan culture where ―[m]any Samoan families allow other families to live on their land,‖ hostility must be shown by evidence of acts ―unequivocally inconsistent‖ with the owner‘s claim of title. Sialega v. Taito (Mem.), 3 A.S.R.2d 40, 43-44 (Land & Titles Div. 1986).

Here, Mailo‘s concession that Beaver may have consented to the Kupas‘ occupancy immediately raises the question of whether Mailo has demonstrated hostile possession. Furthermore, in [**8**] light of the Samoan custom of allowing relatives to stay on one‘s land and the blood relationship between Beaver and Nancy Kupa, Mailo‘s claim of hostile possession must be shown by unequivocal evidence, not mere ambiguous and contradictory statements. See Sialega, 3 A.S.R.2d at 43- 44. We therefore deny Mailo‘s motion for reconsideration of his motion for partial summary judgment of his adverse possession defense.

As a secondary matter, the Court will address Mailo‘s arguments on privity and tacking for adverse possession. It is undisputed that Talanoa Lagafuaina (Talanoa) attempted to transfer six acres of land to Mailo through a deed recorded with the Territorial Registrar in 1991. In his original motion for summary judgment, Mailo argued that this transfer established privity of estate with Talanoa. Thus, according to Mailo, tacking Talanoa‘s possession on to that of Mailo fulfills the 30-year requirement for adverse possession. In support of his tacking argument, Mailo cited Talo v. Tavai, 2 A.S.R. 63 (Trial Div. 1939). In our order denying partial summary judgment for adverse possession, the Court distinguished Talo on the grounds that it permitted tacking between a party claiming adverse possession and his matai predecessor. The Court held that because Mailo was not ―related to‖ Talanoa, he could not establish the privity of estate required for tacking.

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[7]-[8] [**9**] Tacking allows a claimant to establish title by adverse possession by combining periods of possession from successive occupants who maintain the requisite privity of estate. See Fruean v. Mageo, 2 A.S.R. 591, 596 (Trial Div. 1950) (citing 2 C.J.S., Tit. Adverse Possession, § 128). While tacking may be established through a transfer between consanguineous possessors, it is also available to any individual who can establish the appropriate privity with a predecessor in interest. See Fruean, 2 A.S.R. at 595-96 (plaintiff adversely possessed land held for a portion of the statutory period by unrelated individuals who occupied the land with plaintiff‘s permission); Lolo v. Heirs of Sekio, 4 A.S.R. 477, 479 (Trial Div. 1964) (holding defendants adversely possessed land where land was held for a time by ―persons with permission‖ from defendants).

Thus, tacking is not as limited as implied in the Court‘s previous order denying Mailo‘s motion for partial summary judgment. In the case at bar, Mailo alleged facts that, if true, may establish privity between Mailo and Talanoa such that Mailot meets the 30-year statutory period for adverse possession.

[9] However, Mailo‘s claim of privity also depends on the validity of the deed that conveyed the six acres from Talanoa to Mailo. An invalid transfer would defeat Mailo‘s claim of [**10**] privity of estate. As explained in section IV below, we hold that Mailo‘s deed was invalid insofar as it overlapped with Beaver Estate‘s preexisting interest in the one-acre parcel recorded in Beaver‘s 1971 deed. In light of the fact that Mailo‘s deed was void ab initio, Mailo was not in privity of estate with Talanoa and therefore cannot satisfy the 30-year period for adverse possession through tacking.

III. Mailo is not entitled to summary judgment for a violation of the statute of limitations because Beaver Estate brought this action within the 20-year limitations period for recovery of real property.

Mailo next moves to reconsider this Court‘s denial of partial summary judgment that Beaver Estate‘s claims are time-barred by the 20-year statute of limitations for the recovery of real property. See A.S.C.A. § 43.0120(6). Mailo took possession of his six acres in 1991. Beaver Estate brought this action in 2009, well within the statue of limitations. Therefore, as with Mailo‘s adverse possession defense, the statute of limitations defense likewise demands that Mailo tack his possession on to Talanoa‘s possession. On the same basis as our holding in section II, we maintain our earlier denial of partial summary judgment on Mailo‘s statute of limitations defense.

High Court of American Samoa Slip Opinions (2013)

IV. Beaver Estate’s title to the one-acre parcel is superior to the claims of the several defendants because Beaver Estate’s title was recorded first-in-time in compliance with [**11**] A.S.C.A. § 37.0201.

Mailo‘s final motion for reconsideration argues that the Court erroneously granted Beaver Estate‘s motion for partial summary judgment concerning the validity of Beaver Estate‘s title to the one-acre parcel. In our original order, we held that Lagafuiaina Laisene properly deeded the land to Beaver in 1971 and that Beaver timely recorded the deed prior to any registrations made by the several Defendants. Therefore, we concluded that Beaver Estate held valid title to the one- acre parcel to the exclusion of all subsequently recorded deeds. In his motion for reconsideration, Mailo contends that because Beaver Estate did not timely challenge Mailo‘s registration or offer evidence of fraud or failure to comply with statutory procedures, the Court cannot consider any claim of title contrary to Mailo‘s deed.

[10] Between Mailo‘s motion, Beaver Estate‘s opposition, and this Court‘s prior order, there is significant confusion concerning the legal standards that govern this dispute. This confusion is due in part to American Samoa‘s ―subtle and complex system for developing and preserving public records of land ownership.‖ Vaimaona v. Tuitasi, 18 A.S.R.2d 88, 93 (App. Div. 1991)(hereafter Vaimaona II); see also Tulifua v. Tuitele, 3 A.S.R.3d 54; 57-58 (App. Div. 1999). The tripartite structure of [**12**] land registration and recordation includes Torrens registration for previously unregistered lands, a deed recording system typical of many U.S. jurisdictions, and provisions specific to Samoan customs and communal land ownership. Vaimaona II, 18 A.S.R.2d at 94. The parties in this case have at times conflated the Torrens and recording systems and misapplied each to the deeds and land registrations at issue.

[11]-[12] American Samoa codified its Torrens and recording systems in A.S.C.A. Title 37 Chapters 1 and 2 respectively. For the first registration of previously unregistered lands, A.S.C.A. §§ 37.0101-0120 provides the local Torrens registration procedures. Id. at 93-95. As to already registered parcels, A.S.C.A. §§ 37.0201-.0230 addresses the alienation of land and recordation of deeds. Id. ―The distinction between registration ‗of the land‘ and ‗of the deed‘ is best characterized as a distinction between substance and procedure.‖ Vaimaona v. Tuitasi, 13 A.S.R.2d 76, 79 (Trial Div. 1989)(hereafter Vaimaona I)(affirmed and remanded on other grounds in Vaimaona II, 18 A.S.R.2d). While A.S.C.A § 37.0101-.0120 acts as a form of estoppel on any attempt to register already registered land, A.S.C.A. §§ 37.0201-.0230 ensures a party who properly records a deed will prevail on the merits against adverse claimants. Vaimaona I, 18 A.S.R.2d at 79-80.

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[13] [**13**] Absent compelling evidence to the contrary, the Court will presume that a title registered through the Territorial Registrar in accordance with A.S.C.A § 37.0101-.0120. is valid. See Ifopo v. Siatu'u, 12 A.S.R.2d 24, 28 (App. Div. 1989); Vaimaona I, 13 A.S.R.2d at 80-81. The 60-day public notice provisions and other safeguards outlined in §§ 37.0101-.0120 ensure that any party with an interest in the land has sufficient time to object to the pending registration. Therefore, compliance with the Torrens procedures grants the record owner title that is ―good against the world‖ and precludes any subsequent attempt to register the same land. Fa`aaua`a v. Tauiliili, 15 A.S.R.2d 71, 72 (Land & Titles Div. 1990)(citing Ifopo, 2 A.S.R.2d); see also Uiliata v. Puailoa, 31 A.S.R.2d 35, 39 (Land & Titles Div. 1996)(citing § 37.0101(a) to prohibit title registration of previously registered land).

[14]-[15] Once land is registered, good title may only be acquired from the record owner by deed or adverse possession. Avegalio v. Leatumauga, 18 A.S.R.2d 9, 11 (Land & Titles Div. 1991). Under A.S.C.A. § 37.0210(b), a land conveyance through a properly recorded deed gives ―notice of the contents of such instrument to all persons thereafter dealing with such land or interest therein.‖ However, recording a deed ―cannot affect preexisting interests of those not signatories to or otherwise [**14**] bound by the instrument itself.‖ Vaimaona II, 18 A.S.R.2d at 96-97.2

Here, as previously discussed, Beaver acquired her one-acre parcel through a deed properly recorded with the Territorial Registrar in 1971. Therefore, pursuant to § 37.0210(b), Mailo and all others claiming an interest in Beaver‘s land were on record notice of Beaver‘s valid title. Given such notice and the fact that a subsequently recorded deed cannot automatically supersede the rights of a prior recordation, Mailo‘s argument as to the superiority of his deed has no foundation in the law.

[16] Mailo‘s reliance on Falefia v. Sipili, 7 A.S.R.2d 1 (Land & Titles Div. 1988) and A.S.C.A. § 37.0103 is misguided. Both Falefia and § 37.0103 primarily address initial land registrations whereas the issue at hand concerns a battle between two deeds to an already registered parcel. Such a dispute is determined by §37.0201-.0230 and associated jurisprudence. Mailo‘s argument that Beaver Estate needed to make a ―timely challenge‖ to Mailo‘s recordation appears to confuse the 60-day notice window in § 37.0103 with the contrasting deed registration procedures in §§ 37.0201-.0230. In part because a later recorded deed

2 As stated otherwise by the Court in Vaimona, ―[r]egistration of the instrument gives notice to people dealing with the land ‗thereafter‘ but does not necessarily affect the interests of persons who dealt with the land before.‖ 18 A.S.R.2d at 96.

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cannot affect preexisting [**15**] interests, §§ 37.0201-0230 does not provide for a public notice period. Overall, Beaver Estate appropriately brought this action to challenge Defendant‘s claim to the disputed land and did so within the time allotted by the statute of limitations. The Court therefore maintains its original ruling granting Beaver Estate‘s motion for partial summary judgment to establish the superiority of Beaver Estate‘s deed over those of the several Defendants.

Order

The Court denies Defendant Albert Mailo‘s motion for reconsideration of the Court‘s July 19, 2013 Order Granting in part and Denying in Part the Parties‘ Several Motions for Partial Summary Judgment.

It is so ordered.

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SLIP OPINIONS

OF THE

FAMILY DRUG AND ALCOHOL DIVISION

OF THE

HIGH COURT OF AMERICAN SAMOA

(2013)

Cite As: In Re a Minor Child, FDAJR No. 40-12 and 58-12, slip op. at [page number] (Fam. Drug & Alcohol Div. May 28, 2013)

IN RE: A MINOR CHILD.

IN RE: A MINOR CHILD.

High Court of American Samoa Family, Drug, and Alcohol Division

FDAJR No. 40-12 FDAJU No. 58-12

May 28, 2013

[1] In 1980 the Legislature enacted the Juvenile Justice Act of 1980, (A.S.C.A. § 45.0101 et seq), which, inter alia, authorized, generally, court approved adoptions of minor children less than age 18, and with specific leave of the Court in appropriate cases, the adoption of young adults age 18 or over, but less than 21.

[2] Public Law 18-52 revised the Immigration Code, (A.S.C.A. § 41.0201 et seq), including A.S.C.A. § 41.0403, which entitled all persons who had been legally adopted by an American Samoan, with the entitlement to apply for a permanent resident immigration status.

[3] By casting A.S.C.A. § 41.0403 (a)(2) in the past tense, the Legislature provided that (foreign national) individuals legally adopted by American Samoans in the past would be entitled to apply to the Attorney General for permanent residency status. For those children qualifying under A.S.C.A. § 41.0406, cast generally in the present tense, their immigration status would be that of an American Samoan, with the caveat that non-qualifying persons must apply to the Immigration Board for permission to remain in the Territory.

[4] The Legislature has chosen to confer upon the Executive Branch of the American Samoa Government exclusive jurisdiction over the Immigration Code, subject to limited judicial review by the courts of specified administrative decisions or acts or omissions.

[5] In special circumstances, the Court had jurisdiction to review whether foreign adoptions of children born within the Territory were legally sufficient to support requests for local birth certificates to be amended to reflect such foreign decrees of adoption.

High Court of American Samoa Slip Opinions (2013)

Before WARD, Associate Justice; SUAPAIA, Associate Judge; and SATELE, Associate Judge:

Counsel: For Petitioners, Toetasi Tuiteleleapaga, Esq. (FDAJR 40-12);

Isalei Iuli, L.P. (FDAJU 58-12) For the American Samoa Government: Terry Bullinger, Esq., Assistant Attorney General

OPINION AND ORDER

These matters came on regularly before the Court on 6 May 2013 for arguments by the parties as to the Court‘s jurisdiction to grant Petitioners relief in their actions for the Court to ―accept‖ an adoption decree issued by the District Court of Samoa in the Independent Nation of Samoa. These two cases, and several other similar cases, have recently been filed with the Court by married parents residing in the Territory who have adopted a foreign national minor child in Samoa and then attempted to legitimize that child‘s immigration status after the child had been admitted to the Territory. [**2**]

Factual Background

In each of these cases, it appears that at least one of the married, adoptive parents is a U.S. National. In both cases, the petitioners adopted a foreign national child under the age of 12, in Samoa, and returned to American Samoa with the child. Pursuant to A.S.C.A. § 41.0403 (a)(2), ―any person who at the time of being legally adopted by an American Samoan was 21 years of age or younger‖ shall be entitled to apply for permanent resident status, ―except that any person legally adopted by an American Samoan prior to 31 December 1980, shall be entitled to apply.‖

Here, the petitioners applied to the Attorney General for a permanent resident status for their adopted child. In each case the then current Attorney General, (Fepulea‘i Arthur Ripley, Jr.), responded with a standard form letter, copy attached hereto, (but redacted to protect the identities of the petitioners and child), as Exhibit A. That letter advised the petitioners that before the Attorney General could rule on their application, a ―written order or document from the Courts of American Samoa accepting the adoption decree from the court in Samoa or other foreign country‖ must be provided. The petitioners herein have duly petitioned the Court for such an order or document. [**3**]

Legislative Background

[1] Prior to 1980, the Territory‘s statutes provided generally for court approved adoptions of adults and minors with the approval of the senior

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matai of the petitioners‘ family. Those statutes were repealed and in 1980 the Legislature enacted the Juvenile Justice Act of 1980, (A.S.C.A. § 45.0101 et seq), which, inter alia, authorized, generally, court approved adoptions of minor children less than age 18, and with specific leave of the Court in appropriate cases, the adoption of young adults age 18 or over, but less than 21.

[2] In 1984 the Legislature enacted Public Law 18-52, a general revision to the Immigration Code, (A.S.C.A. § 41.0201 et seq), which included A.S.C.A. § 41.0403, supra, which entitled all persons (adults and minors) who had been legally adopted by an American Samoan, with the entitlement to apply for a permanent resident immigration status.

Under the same Public Law, the Legislature also enacted a more specific statute (A.S.C.A. § 41.0406) providing for the immigration status of children legally adopted by American Samoans, which reads:

(a) Children legally adopted by American Samoans shall have the same rights as American Samoans under the immigration laws, provided:

[**4**] (1) the child was lawfully admitted and is Residing in American Samoa with his adopted parent or parents; and

(2) the child is 12 years of age or younger at the time of adoption and has been living with its adopted parents for 5 years.

(b) Any other adopted persons must apply to the Board for permission to remain.

Discussion and Decision

[3] The statutory scheme enacted by the Legislature to address the immigration status of persons legally adopted by American Samoans after 1984 appears clear as to its intent. By casting A.S.C.A. § 41.0403 (a)(2) in the past tense, it provided that (foreign national) individuals legally adopted by American Samoans in the past would be entitled to apply to the Attorney General for permanent residency status. For those children qualifying under A.S.C.A. § 41.0406, cast generally in the present tense, their immigration status would be that of an American Samoan, with the caveat that non-qualifying persons must apply to the Immigration Board for permission to remain in the Territory.

Petitioners‘ adopted children clearly are within the ambit of A.S.C.A. § 41.0406, which, for immigration purposes, requires the Immigration Board to hear their application and determine whether they can remain in

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the Territory. [**5**] A.S.C.A. § 41.0205(1), (3). As to whether such foreign adoptions are ―legal‖ for immigration purposes, the Board may rely upon the Attorney General or his delegate, (employee), for a controlling legal opinion pursuant to A.S.C.A. § 41.0207. Petitioners may appeal any adverse Board decision to the Administrative Law Judge pursuant to A.S.C.A. § 41.0206, or if the Board should order deportation, petitioners may seek judicial review pursuant to A.S.C.A. § 41.0210.

[4]-[5] The Legislature has chosen to confer upon the Executive Branch of the American Samoa Government exclusive jurisdiction over the Immigration Code, subject to limited judicial review by the courts of specified administrative decisions or acts or omissions. Although this Court held in In re a Minor Child, HCJR No. 048-09 (FDA Div. Slip op. 5/18/2011], that in special circumstances the Court had jurisdiction to review whether foreign adoptions of children born within the Territory were legally sufficient to support requests for local birth certificates to be amended to reflect such foreign decrees of adoption, the minor child in that case was a U.S. National and the relief sought was limited to legal issues outside of the scope of the Immigration Code.

Although the Petitioners herein have attempted to comply with the Attorney General‘s directives as set forth in [**6**] Exhibit A, the Court can find no clear jurisdiction for the Judicial Branch to exercise the administrative decision-making authority specifically conferred upon the Immigration Board and the Attorney General by the Legislature to determine the immigration status of these children.

Conclusion

The Legislature has enacted a statutory scheme to administratively hear and determine the immigration status of foreign national minors and adults adopted by American Samoans. Under that scheme persons who were either adults or minor children at the time of being legally adopted prior to 1984 are entitled to apply to the Attorney General for permanent residency status. Qualifying, legally adopted children of American Samoans since 1984 are afforded the same immigration rights as American Samoans, but all other non-qualifying adopted persons must apply to the Immigration Board for permission to remain in the Territory. The decision as to whether a foreign decree of adoption was legal, for immigration purposes, falls within the clear authority of the Immigration Board. The Legislature has not provided the Court with any clear direct or ancillary jurisdiction to exercise the powers or duties of the Board, nor has it authorized the Board or the Attorney General to delegate their authority under the Immigration Code to the Court. The Petitioners herein have a [**7**] clear administrative remedy provided by statute to apply to the Immigration Board for determination of the immigration status their adopted foreign national children. In the

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absence of the Court‘s jurisdiction to hear and decide the immigration issues presented in these actions, these petitions are dismissed without prejudice.

Order

So Ordered. The above captioned actions are dismissed without prejudice. The Clerk of Courts shall review all pending FDA/JR cases seeking similar relief and provide a copy of this Opinion to the counsel of record along with a notice of a status hearing before this Court.

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High Court of American Samoa Slip Opinions (2013)

SUPPLEMENT

2012 SLIP OPINIONS

(PREVIOUSLY UNRELEASED)

Cite As: Fa’asala v. O’Brien, CA No. 08-11, slip op. at [page number] (Trial Div. Feb. 21, 2012)(order grant. def. mot. compel)

NIKOLAO FA’ASALA, ADRIENNE D. FA’ASALA, and ALTON H. FA’ASALA, Plaintiffs,

v.

CLIFF U. O’BRIEN, and AMERICAN SAMOA GOVERNMENT, Defendants.

High Court of American Samoa Trial Division

CA No. 08-11

February 21, 2012

[1] Until local rules are updated, we encourage local counsel to informally adopt and make use of F.R.C.P. 37(a)(2)(B) prior to bringing discovery motions before this Court.

[2] As contemplated by T.C.R.C.P. 34(a), a plaintiff‘s medical and psychiatric bills are within the plaintiff‘s ―control.‖ This general rule applies when a plaintiff alleges such bills were sustained as a result of an accident ―caused‖ by the alleged negligence of a named defendant in a personal injury action. Consequently, when a named defendant in such an action requests those aforementioned and relevant bills, the plaintiff must produce the actual documents, not a Health Insurance Portability and Accountability Act of 1996 consent or authorization form.

[3] An attorney who fails to comply with a court order to produce discovery, of which he knew or should have known, amounts to obstructing the due administration of justice. This is a contemptible offense for which it is appropriate to sentence the offending attorney to personally pay a $500 fine and all costs for defending the motion to compel.

Before KRUSE, Chief Justice; LOGOAI, Chief Associate Judge;; and FA‘ASUA, Associate Judge.

Counsel: For Plaintiffs, Fiti A. Sunia, substituted by Mark F. Ude

For Defendant O‘Brien, Fiti A. Sunia For Defendant American Samoa Government, Kevin Kornegay, Assistant Attorney General, substituted by Daniel M. Woods, Assistant Attorney General

High Court of American Samoa Slip Opinions (2013)

ORDER GRANTING DEFENDANT AMERICAN SAMOA GOVERNMENT‘S MOTION TO COMPEL

On January 16, 2009, Defendant Cliff O‘Brien (―O‘Brien‖), the Fire Chief of American Samoa, allegedly crashed a government vehicle into a private vehicle owned and occupied (at the time of the crash) by Plaintiffs Nikolao Fa‘asala, Adrienne Fa‘asala, and Alton Fa‘asala (collectively ―Plaintiffs‖).

After filing an administrative claim letter with the Attorney General‘s Office under the parameters set by the Government Tort Liability Act, A.S.C.A. § 43.1201 et seq., and the claim letter‘s subsequent rejection, Plaintiffs filed [**2**] the present action on January 19, 2011.1 The action names O‘Brien, in his individual capacity, and American Samoa Government (―ASG‖) as defendants in a complaint positing four claims for relief: (1) Negligence against O‘Brien for medical damages; (2) Negligence against ASG (under a theory of respondeat superior) for medical damages; (3) Negligent Infliction of Emotional Distress (against both defendants; (4) ―Loss of Use‖ of a Vehicle (a poorly-phrased ―conversion‖ tort) against both defendants.

This present Order does not implicate the capacity in which Plaintiffs can sue O‘Brien, which we addressed in an earlier Order dated May 16, 2011, but rather concerns a set of interrogatories and requests for production ASG filed on September 27, 2011. ASG requested Plaintiffs produce ―all medical and psychiatric bills, bills for physical therapy, as well as bills for all other services from all medical care providers for which [Plaintiffs] claim compensation . . . in this civil action.‖ Def.‘s Second Set of Interrogatories and Requests at 2 (filed Sep. 27, 2011). These requests are relevant to the underlying action, in that they are related to damages. ASG requested Plaintiffs produce those documents at 10:00 a.m. on October 28, 2011.

On October 28, 2011, counsel for Plaintiffs was involved in [**3**] an unrelated legal hearing before this Court and allegedly could not make the 10:00 a.m. meeting. Counsel did not give much notice to ASG, but did file a ―Request for Extension‖ to address ASG‘s document request on the preceding day, October 27, 2011.

On November 21, 2011, at the hearing concerning Plaintiffs‘ ―Request for Extension,‖ this Court asked Plaintiffs in what amount of time they could provide the discovery documents ASG requested; Plaintiffs‘ counsel

1 We acknowledge our putative jurisdiction to hear this action pursuant to Plaintiffs‘ alleged satisfaction of A.S.C.A. § 43.1205. See A.S.C.A. § 43.1209.

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responded, ―within a week . . . Monday of next week.‖ Transcript of Hearing at 3, Fa’asala v. O’Brien, CA No. 08-11 (No. 21, 2011). We clarified, ―So a seven-day extension?‖ Id. To which Plaintiffs‘ counsel responded, ―Yes, Your Honor.‖ Id. The extension was to last until November 28, 2011.2

November 28, 2011, came and went, with ASG contacting Plaintiffs‘ counsel repeatedly to reschedule a convenient time and place for the production of documents. This magnanimity went unreciprocated for little over a month; accordingly, ASG filed a Motion to Compel on January 13, 2012. On January 27, 2012, [**4**] Plaintiffs‘ counsel filed an Opposition claiming the following:

Defendant ASG had a trial scheduled that involved Plaintiffs‘ lawyer. Defendant ASG knew or should have known that Counsel for Plaintiffs cannot be in two places at once. On October 28, 2011 . . . counsel was sitting in the High Court, awaiting his Motion to Continue the Trial set for 28 October 2011 on . . . C.A. 28-11. []Plaintiff‘s [sic] Counsel did tow things in response. He filed a Response for Production.3 He

2 [1] Additionally, ASG recommended we adopt Rule 37 of the Federal Rules of Civil Procedure (―F.R.C.P.‖) at the November 21, 2011 hearing. Noticeably, ASG contended that F.R.C.P. 37(a)(2)(B) would require the opposing parties in a civil action to meet and confer prior to bringing discovery motions; ASG added that this procedure could benefit the High Court, reducing hearings contesting discovery. In Makro, Inc. v. Progressive Ins. Co., we encouraged local counsel to make use of F.R.C.P. 37(a)(2)(B) prior to bringing discovery motions. 8 A.S.R.3d 189, 190 n.1 (Land & Titles Div. 2004)(order granting motion to compel). Until local rules are updated, we echo our former recommendation and therefore encourage local counsels adopt F.R.C.P. 37(a)(2)(B) informally while they practice law before this Court. 3 We cannot be sure, as Plaintiffs‘ Opposition is bereft of citations, but we believe the ―Response[s]‖ Plaintiffs allude to here were filed on December 5, 2011 (therefore, more than a week late), were laconic, and devoid of the medical and psychiatric bills ASG requested. The only other case-file ―Response‖ we can find within the relevant period of time is the following, whose body reads in its entirety: ―[Request for medical bills]: Objection. Counsel cannot be in two places at once.‖ Pl.‘s Response to ASG‘s Second Set of Requests for Admissions and Interrogatories, Fa’asala v. O’Brien (filed Oct. 27, 2011). This latter ―Response‖ does not articulate a law-based objection (like ―attorney- client privilege‖ or ―attorney work product‖); no, the objection is merely a time and place conflict. Possibly recognizing that weakness, Plaintiffs‘ counsel filed an amended response on January 27, 2012, which objects to the same ASG production request thusly: ―Objection. As to time and

High Court of American Samoa Slip Opinions (2013)

also wrote a letter to Counsel for Defendant ASG, stating that he would not be there.4 Defendant ASG could have [**5**] stipulated to a continuance to the trial date, and thus allowed Plaintiffs‘ Counsel to be available at the date, time and place set forth in Defendant ASG‘s request for production. Defendant ASG did not stipulate, and thus precludes itself from seeking a contempt motion for not being available at Defendant ASG‘s Office. . . . If, for some reason, Defendant ASG cannot ask in person during the multiple times Counsel are [sic] in Court, the proper action for Defendant ASG is to file an Amended Request for Production of Documents with the High Court and serve upon Plaintiffs.

Pl.‘s Opposition at 1-2, Fa’asala v. O’Brien, CA No. 08-11 (Jan. 27, 2012).

At the outset, we note that Plaintiffs‘ Opposition as a paper would not meet the standard of particularity articulated and mandated by T.C.R.C.P. 7(b). Indeed, the Opposition fails to cite even one legal authority, and is woefully mistaken about civil procedure (and therefore possible subject to T.C.R.C.P. 11 sanctions).

Additionally, for more than four months, ASG has waited and amicable asked Plaintiffs‘ counsel for the production of relevant documents. For more than four months Plaintiffs‘ counsel has avoided providing the same and with the temerity of someone bolstered by not a shred of legal support, he asserts that he is precluded from sanctions. We grow weary of

place stated by Defendant, Counsel cannot be in two places at once. Objection, records are equally available to Defendant.‖ Pl.‘s Amended Response to ASG‘s Second Set of Requests for Admissions and Interrogatories, Fa’asala v. O’Brien (filed Jan. 27, 2011). We will not take that amendment into account as it was filed three months too late; we see no reason why Plaintiffs‘ counsel could not have articulated the same timely, three months earlier. See T.C.R.C.P. 34(b). This amendment‘s filing smacks of ineptitude and is partially inaccurate given the state of the HIPAA authorization forms. See infra (only one of three available). 4 Plaintiffs‘ counsel‘s letter, dated October 27, 2011, reads in its entirety: Dear Sir: I am writing in regards to the 10:00 a.m. meeting set for 28 October 2011 for production of documents. I will not be there. Sincerely, /s/ Def.‘s Mot. to Compel at Exh. B, Fa’asala v. O’Brien (filed Jan. 13, 2012).

High Court of American Samoa Slip Opinions (2013)

this particular counsel‘s shenanigans and slapdash filings. Indeed, we treat as contemptuous not only counsel‘s violation of the earlier court order to comply with the same discovery requests, but his [**6**] subsequent and evasive efforts to deflect attention from that violation infra: by order of this court Plaintiffs were to provide all discovery requests for ASG‘s Second Set of Interrogatories and Requests by November 28, 2011. Plaintiffs failed to do so, and the excuses given by counsel are: (1) he was in Court on October 28, 2011 (which of course cannot excuse his non-action for the months of December and January); (2) ASG should have stipulated to continue an unrelated trial and by not doing so, is precluded from asking for sanctions in this action (a bold statement he coupled with no legal support); and (3) ASG‘s ―proper‖ recourse is to amend its discovery request and re-serve the same (agains, a statement he joined with no legal support).

On February 2, 2012, ASG‘s Motion to Compel came on for hearing, counsels appearing. At hearing, ASG withdrew its entirely justified request for T.C.R.C.P. 37 sanctions—ASG merely wanted Plaintiffs to produce the medical and psychiatric bills. Plaintiffs‘ counsel responded by claiming that he had provided ASG with a HIPAA5 consent and authorization form for one (of three) of his clients, and that another arriving by post was forthcoming. Four months after we ordered counsel for Plaintiffs to provide the same, counsel for Plaintiffs has scrounged up one HIPAA consent form, an unasked for document noticeably missing two others if it were to be of any use at all. [**7**]

We cannot tell whether Plaintiffs‘ counsel is whimsical or simply obtuse, but neither quality garners our sympathy. Indeed, an attorney, as an officer of this Court, cannot afford to be whimsical or obtuse because either quality obfuscates the interests of justice and those of the attorney‘s client.

Discussion

I. Order to Compel

A party requesting the production of evidence may seek the production of documents of things ―which are in the possession, custody, or control of the party.‖ T.C.R.C.P. 43(a), we construe the word ―control‖ broadly; indeed, the word ―control‖ includes physical possession or the legal right to obtain the requested documents. Haleck v. TRT, Inc., 7 A.S.R.3d 164, 169 (Trial Div. 2003)(citations omitted).

5 (Health Insurance Portability and Accountability Act of 1996, Public Law 104-191), 45 C.F.R. §§ 164.500-.534.

High Court of American Samoa Slip Opinions (2013)

[2] As contemplated by T.C.R.C.P. 34(a), a plaintiff‘s medical and psychiatric bills are within the plaintiff‘s ―control.‖ This general rule applies when a plaintiff alleges such bills were sustained as a result of an accident ―caused‖ by the alleged negligence of a named defendant in a personal injury action. Consequently, when a named defendant in such an action requests those aforementioned and relevant bills, the plaintiff must produce the actual documents, not a HIPAA consent or authorization form.

Here, the burden of production is upon Plaintiffs; accordingly, Plaintiffs must provide ASG with ―all medical and [**8**] psychiatric bills, bills for physical therapy, as well as bills for all other services from all medical care providers for which [Plaintiffs] claim compensation . . . in this [present] civil action.‖ Def.‘s Second Set of Interrogatories and Requests at 2 (filed Sep. 27, 2011). As Plaintiffs‘ counsel has failed to comply with a previous court order, we have no qualms with compelling Plaintiffs‘ and their counsel to produce the medical bills within seven days of issuance of this Order, proof by filing the same with this Court. We order as much with the threat of more severe sanctions, including dismissal with prejudice.

II. Direct Contempt Order

[3] ―The High Court of American Samoa shall have power to . . . punish for contempt of court.‖ A.S.C.A. § 3.0203(a). The High Court Rules define ―direct contempt‖ as follows: ―misbehavior of any person, including legal counsel, in the presence of the Court . . . that . . . obstructs the administration of justice.‖ H.C.R. 113. Here, counsel for Plaintiffs was well aware of our order to produce documents by November 28, 2011. Plaintiffs‘ counsel not only failed to ensure production of those documents but he also denied in open court that we ever issued such an order. Transcript of Hearing at 5-6, Fa’assala v. O’Brien, CA No. 08-11 (Feb. 2, 2011).6 On the [**9**] foregoing particularized recital of facts, we have no qualms in holding that counsel‘s behavior (including seeming mendacity) and violation of an order to produce discovery, of which he knew or should have known, amounts to obstructing the due administration of justice (and therefore direct contempt). See am. Samoa Gov’t v. Godinet, 7 A.S.R.2d 127, 130 (Trial Div. 1988)(―Courts necessarily possess the inherent ability to take steps to ensure the integrity of the process by which they decide the cases before them‖); H.C.R. 113. This is even more so, when we find ourselves having to be repeatedly and needlessly concerned herein with discovery feuds. Whereas discovery

6The Court asked, ―Didn‘t—didn‘t we order a production date in this matter?‖ Transcript of Hearing at 5, Fa’asala v. O’Brien, CA No. 08-11 (Feb. 2, 2011). To which Plaintiffs‘ counsel responded, ―Your Honors, I believe that‘s another civil matter. Id. at 6.

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rules have been designed to facilitate a self-operating process, with minimal supervision by the court, here we find our resources being wasted in not only having to deal with counsel‘s ineffectual parrying tactics, but his inexcusable defiance of, or inattention to, this Court‘s order.

Accordingly, we hold Plaintiffs‘ counsel in contempt and sentence him to a fine of $500.00 for: (1) including this Court in an unwarranted discovery-dispute that should have been addressed back in November; (2) disobeying a court order demanding production of evidence by November 28, 2011; and (3) flagrantly attempting to mislead this Court about a previous court order that Plaintiffs‘ counsel knew or should have known about.

Furthermore, Plaintiffs‘ counsel shall not charge his clients for defending ASG‘s Motion to Compel, nor shall Plaintiffs‘ counsel charge his clients to share in the sanctions we issue here—counsel shall alone bear those sanctions. [**10**]

Order

1. ASG‘s Motion to Compel is granted. Plaintiffs shall within seven (7) days of entry hereof, produce ―all medical and psychiatric bills, bills for physical therapy, as well as bills for all other services from all medical care providers for which [Plaintiffs] claim compensation . . . in this [present] civil action.‖ Failure to comply may result in, among other things, dismissal with prejudice.

2. Plaintiffs‘ counsel is fined $500.

It is so ordered.

High Court of American Samoa Slip Opinions (2013)

High Court of American Samoa Slip Opinions (2013)

Cite As: Ripley v. Am. Samoa Gov’t, CA No. 12-08, slip op. at [page number] (Trial Div. July 3, 2012)(order den. mot. summ. j.)

RICHARD RIPLEY, Plaintiff,

v.

AMERICAN SAMOA GOVERNMENT/AMERICAN SAMOA MEDICAL CENTER AUTHORITY, Defendant.

High Court of American Samoa Trial Division

CA No. 12-08

July 3, 2012

[1] A noticed hearing before the administrative law judge is a crucial step in government termination proceedings.

[2] The Court is unwilling to speculate on the outcome of a matter currently being heard by the administrative law judge and is reluctant to exercise judicial authority to intervene in any such hearing where the administrative law judge has not rendered a final ruling.

[3] The Court‘s reluctance to intervene in a matter that is appropriately before the administrative law judge stems from the Court‘s concern that such intervention would encroach upon administrative processes completely within the executive branch.

[4] In a matter challenging the validity of American Samoa Medical Center Authority‘s (ASMCA‘s) in-house employee termination policy, the Court may not waive the administrative exhaustion requirement without first looking at whether: (1) the ASMCA‘s in-house employee termination procedures and the administrative law judge‘s preliminary decision clearly and unambiguously violate Plaintiff‘s statutory or constitutional rights; and (2) the ALJ hearing clearly is inadequate to prevent irreparable injury.

[5] The American Samoa Medical Center Authority‘s (ASMCA‘s) interpretation of A.S.C.A. § 13.0108—i.e., the statute authorizing the ASMCA to create an in-house employee termination policy seems just as reasonable as the plaintiff‘s interpretation; consequently, it is entitled to administrative deference.

High Court of American Samoa Slip Opinions (2013)

[6] An administrative process prescribed for resolving a particular issue would be clearly inadequate if: (a) the agency lacks institutional competence to resolve the particular type of issue presented; (b) the challenge is to the adequacy of the agency procedure itself; or (c) the agency lacks authority to grant the type of relief requested.

Before RICHMOND, Associate Justice; and MAMEA, Associate Judge.

Counsel: For Plaintiff, Sharron I. Rancourt

For Defendant, Bensi Benjamin, Assistant Attorney General

ORDER DENYING MOTION FOR SUMMARY JUDGMENT

Plaintiff Richard Ripley moves for summary judgment in this action, which seeks declaratory relief to overturn the opinion of the Administrative Law Judge (―ALJ‖) that employee termination rules promulgated by Defendant American Samoa Government/American Samoa Medical Center Authority (―ASMCA‖) supplant the procedures for terminating government employees as provided in A.S.C.A. §§ 7.0801-0.807.

The Office of the Administrative Law Judge [has] jurisdiction to conduct hearings and issue decisions [regarding] controversies, grievances, and administrative appeals by government employees on matters pertaining to employment, including matters pertaining to hiring, termination, suspension, and discipline.

A.S.C.A. § 4.0604. On the other hand, a [**2**]

person interested under a . . . written instrument . . . may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an action in the . . . High Court for a declaration of his rights and duties, including a determination of any question of construction or validity arising under an instrument or contract.

A.S.C.A. § 43.1101.

Despite the presence of an actual controversy, the Court sill has discretion to refuse declaratory relief when, under all the circumstances, it is not necessary or proper at the time it is sought. A.S.C.A. § 43.1102. Applicant of this statute properly involves the analysis of the administrative-law principle that the exhaustion of the administration remedies is a prerequisite to judicial review in the context of a declaratory relief action.

High Court of American Samoa Slip Opinions (2013)

The exhaustion of administrative remedies standard does not absolutely preclude earlier judicial action, but such action is permissible only in exceptional circumstances. In disciplinary matters, a public employee need not await a final agency decision only if a preliminary agency decision clearly and unambiguously violates a statutory or constitutional right of the employee or if the prescribed administrative process clearly is inadequate to prevent irreparable injury.

Sala v. Am. Samoa Gov’t, 21 A.S.R.2d 50, 57 (Trial Div. 1992).

[1-2] In the present case, Plaintiff clearly has not exhausted all of his administrative remedies. A noticed hearing before the ALJ is a crucial step in government termination proceedings. The ALJ, however, has not rendered a final ruling [**3**] on the case at hand, and we certainly are not inclined to speculate on the outcome of the hearing. This alone makes us reluctant to exercise our discretionary judicial authority to intervene.

[3] Such reluctance stems from our concern that such intervention would encroach upon administrative processes completely within the executive branch. After all, ―the Court is in no position in theory or practice to take on the executive‘s functions to administer territorial laws and rules.‖ Id. at 57 (citing Election Office of Am. Samoa Gov’t v. Tuika, 9 A.S.R.2d 1 (Trial Div. 1988)).

[4] Bearing all of this in mind, we turn to the specific matter at hand and determine whether the circumstances present sufficient reasons for us to waive the administrative exhaustion requirement. To do so, we must determine whether: (1) the ASMCA‘s in-house employee termination procedures and the ALJ‘s preliminary decision clearly and unambiguously violate Plaintiff‘s statutory or constitutional rights; and (2) the ALJ hearing clearly is inadequate to prevent irreparable injury.

[5] Regarding the first issue, we fail to see how the ASMCA‘s employee termination policy and the ALJ‘s subsequent preliminary ruling can be construed as clearly and unambiguously violating Plaintiff‘s statutory or constitutional rights. The statute authorizing the ASMCA to create an in- house employee termination [**4**] policy is itself facially ambiguous.88

88 A.S.C.A. § 13.0108 provides: All officers and employees of the Medical Center other than the Chief Executive Officer, Chief Financial Officer, and Medical Director, are hired and compensated in accordance with the requirement of the American Samoa Government personnel laws, 7.0101 et seq., except that the Board may adopt administrative rules, pursuant to 4.1001 A.S.C.A., et

High Court of American Samoa Slip Opinions (2013)

Consequently, the ASMCA‘s interpretation seems just as reasonable as the interpretation that Plaintiff posits. Although we make no ruling as to which interpretation is correct, it certainly appears that the ASMCA would be entitled to administrative deference. See, generally, Chevron U.S.A., Inc., v. Natural Resources Defense Council, Inc., 467 U.S. 847 (1984). For similar reasons, we fail to see how the ALJ‘s interpretation of the statute clearly and unambiguously violates Plaintiff‘s constitutional or statutory rights.

[6] Regarding the second issue, we fail to see how the ALJ hearing would be clearly inadequate to prevent irreparable injury. Specifically, the prescribed administrative process would be clearly inadequate if‖

(a) the agency lacks institutional competence to resolve the particular type of issue presented; (b) the challenge is to the adequacy of the agency [**5**] procedure itself; or (c) the agency lacks authority to grant the type of relief requested.

Fernandez v. Chertoff, 471 F.3d 45, 58 (2d Cir. 2006)(quotations omitted).

We see none of these concerns in the matter before us. The ALJ hearing is statutorily mandated. It provides Plaintiff with a meaningful opportunity to resolve the matters outside of what could otherwise be costly and drawn-out litigation. Indeed, so much time has already been wasted away without bringing the case closer to resolution. The ALJ certainly is in the position to grant the sort of relief Plaintiff is seeking from this suit. Furthermore, we simply fail to see what irreparable harm Plaintiff faces with having the matter heard before the ALJ. Clearly, adequate remedies in which effective relief can be found remain available to Plaintiff.

Under the Circumstances, we find no reason to waive the administrative exhaustion requirement. Plaintiff‘s request for declaratory relief by means of summary judgment is inappropriate at this time and is therefore denied.

Order

This summary judgment motion is denied. It is so ordered.

seq., to supplant government employee rules in the specific categories of personnel recruitment, employment, termination of employee services, disciplinary action, and compensation at levels comparable to prevailing medical service levels. The status of Medical Center career service employees remains unchanged by this act.

High Court of American Samoa Slip Opinions (2013)

DIGEST OF CASES REPORTED

ADMINISTRATIVE LAW

Powers and Proceedings of Administrative Agencies, Officers, and Agents

The Governor is an agency for APA purposes whenever he approves a lease regarding communal lands, and therefore the court has the authority to review the Governor’s decision under A.S.C.A. § 4.1040. Wall v. Governor, AP No. 09-08 (App. Div. Jan. 18, 2013).

In reviewing an agency’s interpretation of evidence, its factual inferences, and its conclusions of law, the court shall give appropriate weight to the agencies experience, technical competence, and specialized knowledge. Wall v. Governor, AP No. 09-08 (App. Div. Jan. 18, 2013).

The Court may reverse or modify an agency’s decision if substantial rights of the claimant have been prejudiced, pursuant to A.S.C.A. § 4.1044. Wall v. Governor, AP No. 09-08 (App. Div. Jan. 18, 2013).

In reviewing the Land Commission’s actions, the court reviews for violations of due process. Wall v. Governor, AP No. 09-08 (App. Div. Jan. 18, 2013).

When it comes to the alienation of land, the Governor is afforded broad discretionary authority, and therefore the court is limited to determining whether the Governor’s decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Wall v. Governor, AP No. 09-08 (App. Div. Jan. 18, 2013).

Due process only requires notice before a final decision is made; any deviations from the notice requirements in A.S.C.A. §4.1031 is inapposite to, and did not affect, the Governor’s ultimate decision. Wall v. Governor, AP No. 09-08 (App. Div. Jan. 18, 2013).

Where Appellant admitted to participating intimately with the Appellees in proceedings and agency decisions for over a year prior to the issuance of the decision, Appellant was given a meaningful opportunity to be heard. Wall v. Governor, AP No. 09-08 (App. Div. Jan. 18, 2013).

The High Court may not substitute its judgment for that of an agency as to the weight of evidence on questions of fact, and must afford appropriate weight to the agency’s experience, technical competence, and specialized knowledge when reviewing the agency’s interpretation

High Court of American Samoa Slip Opinions (2013) of evidence, factual inferences, and conclusions of law. A.S.C.A. § 4.1043. Segi v. Am.Samoa Gov’t, AP No. 07-12 (App. Div. Aug. 22, 2013).

The Administrative Law Judge’s broad authority to conduct hearings on administrative appeals of decisions from other agencies contrasts with the Administrative Law Judge’s more limited role when serving as a hearings officer of a particular agency pursuant to the A.P.A. Segi v. Am.Samoa Gov’t, AP No. 07-12 (App. Div. Aug. 22, 2013).

When an Administrative Law Judge hears an administrative appeal of another agency’s final decision pursuant to Section 4.0603, the Administrative Law Judge may use the High Court’s rules of procedure and evidence as a guide or may adopt supplemental or additional administrative rules to govern such proceedings. Segi v. Am.Samoa Gov’t, AP No. 07-12 (App. Div. Aug. 22, 2013).

When conducting original proceedings as a hearings officer, an Administrative Law Judge conducts those proceedings consistent with Administrative Procedures Act. Segi v. Am.Samoa Gov’t, AP No. 07-12 (App. Div. Aug. 22, 2013).

Pursuant to the language in the Administrative Law Judge Act of 1998, only the ―responsibilities‖ of the Personnel Advisory Board to hear and decide government employee controversies are transferred to an Office of the Administrative Law Judge; all other statutory functions of the Personnel Advisory Board remain unchanged. Segi v. Am.Samoa Gov’t, AP No. 07-12 (App. Div. Aug. 22, 2013).

Where an Administrative Law Judge acts under the Personnel Advisory Board’s authority and not under separate administrative appellate review powers and authority of the Office of the Administrative Law Judge, the Administrative Law Judge must release his or her decision within the 30- day authority of the Personnel Advisory Board.Segi v. Am.Samoa Gov’t, AP No. 07-12 (App. Div. Aug. 22, 2013).

The American Samoa Medical Center Authority’s (ASMCA’s) interpretation of A.S.C.A. § 13.0108—i.e., the statute authorizing the ASMCA to create an in-house employee termination policy seems just as reasonable as the plaintiff’s interpretation; consequently, it is entitled to administrative deference. Ripley v. Am. Samoa Gov’t, CA No. 12-08 (Trial Div. July 3, 2012)(order den. mot. summ. j.).

An administrative process prescribed for resolving a particular issue would be clearly inadequate if: (a) the agency lacks institutional competence to resolve the particular type of issue presented; (b) the challenge is to the adequacy of the agency procedure itself; or (c) the

High Court of American Samoa Slip Opinions (2013) agency lacks authority to grant the type of relief requested. Ripley v. Am. Samoa Gov’t, CA No. 12-08 (Trial Div. July 3, 2012)(order den. mot. summ. j.).

Judicial Review of Administrative Decisions

The Administrative Procedures Act, A.S.C.A. § 4.1001 et seq. mandates that judicial review of Executive Branch agency decisions be conducted by the Appellate Division of the High Court, except in any proceeding for which, or by any person for whom, the law specifically provides other adequate means of judicial review. Tamaseu Distrib. v. Am. Samoa Gov’t,, AP No. 03-12 (App. Div. Aug. 22, 2013).

Review of the Chief Customs Officer’s excise tax assessments and administrative detention of legally imported goods are ultimately reserved for the Appellate Division to hear and decide pursuant to the Administrative Procedures Act, A.S.C.A. § 4.1040(b). Tamaseu Distrib. v. Am. Samoa Gov’t,, AP No. 03-12 (App. Div. Aug. 22, 2013).

The High Court is authorized by the Legislature to review certain Executive Branch decisions and actions pursuant to the Administrative Procedures Act, A.S.C.A. § 4.1001 et seq. Segi v. Am.Samoa Gov’t, AP No. 07-12 (App. Div. Aug. 22, 2013).

The Workmen’s Compensation statute does not contain language that precludes a party from filing a complaint for injunctive relief after the Administrative Law Judge renders a decision but before the original of the ALJ’s order is filed with the Workermen’s Compensation Commission. Am. Samoa Gov’t v. Tinitali, CA No. 35-12 (Trial Div. May 14, 2013)(order den. mot. to dismiss).

Allowing premature filings while retaining jurisdiction is not unusual, as courts generally seek to avoid dismissals based on technicalities. Am. Samoa Gov’t v. Tinitali, CA No. 35-12 (Trial Div. May 14, 2013)(order den. mot. to dismiss).

In other jurisdictions, a premature appeal taken from an order that is not yet final but which is followed by a final order, ripens into an appealable order in the absence of a showing of prejudice to the opposing party. Am. Samoa Gov’t v. Tinitali, CA No. 35-12 (Trial Div. May 14, 2013)(order den. mot. to dismiss).

A complaint for injunctive relief filed after the Administrative Law Judge issues its decision, but before the original order is filed with the Workmen’s Compensation Commission, ripens once the original order is filed with the Commission. . Am. Samoa Gov’t v. Tinitali, CA No. 35-12 (Trial Div. May 14, 2013)(order den. mot. to dismiss).

High Court of American Samoa Slip Opinions (2013)

Without a copy of the Administrative Law Judge order that has been properly filed with the Office of the Workmen’s Compensation Commission, as mandated by A.S.C.A. § 32.6050, there is no effective order for the court to review. Am. Samoa Gov’t v. Tinitali, CA No. 35- 12 (Trial Div. May 14, 2013)(order den. mot. to dismiss).

In the absence of an effective order from the Workmen’s Compensation Commission for review, Respondent’s motion to stay is necessarily premature. Am. Samoa Gov’t v. Tinitali, CA No. 35-12 (Trial Div. May 14, 2013)(order den. mot. to dismiss).

The Land and Titles Division's jurisdiction to determine a matai title dispute is footed on prior compliance with the requirements of A.S.C.A. § 43.0302. Amani v. Ta’amu, MT No. 01-12 (Land & Titles Div. Feb. 7, 2013).

Where failure to attend scheduled meetings at the Office of Samoan Affairs was willful and deliberate, the Court declined to assert jurisdiction over objector’s claim. Amani v. Ta’amu, MT No. 01-12 (Land & Titles Div. Feb. 7, 2013).

If a party deliberately opts to willfully ignore statutorily mandated conciliation proceedings, set forth in A.S.C.A. § 43.0302, that party's "default" prevents this Court from asserting jurisdiction over his or her claims. Amani v. Ta’amu, MT No. 01-12 (Land & Titles Div. Apr. 29, 2013)(order den. mot. for new trial).

A noticed hearing before the administrative law judge is a crucial step in government termination proceedings. Ripley v. Am. Samoa Gov’t, CA No. 12-08 (Trial Div. July 3, 2012)(order den. mot. summ. j.).

The Court is unwilling to speculate on the outcome of a matter currently being heard by the administrative law judge and is reluctant to exercise judicial authority to intervene in any such hearing where the administrative law judge has not rendered a final ruling. Ripley v. Am. Samoa Gov’t, CA No. 12-08 (Trial Div. July 3, 2012)(order den. mot. summ. j.).

The Court’s reluctance to intervene in a matter that is appropriately before the administrative law judge stems from the Court’s concern that such intervention would encroach upon administrative processes completely within the executive branch. Ripley v. Am. Samoa Gov’t, CA No. 12-08 (Trial Div. July 3, 2012)(order den. mot. summ. j.).

In a matter challenging the validity of American Samoa Medical Center Authority’s (ASMCA’s) in-house employee termination policy, the

High Court of American Samoa Slip Opinions (2013)

Court may not waive the administrative exhaustion requirement without first looking at whether: (1) the ASMCA’s in-house employee termination procedures and the administrative law judge’s preliminary decision clearly and unambiguously violate Plaintiff’s statutory or constitutional rights; and (2) the ALJ hearing clearly is inadequate to prevent irreparable injury. Ripley v. Am. Samoa Gov’t, CA No. 12-08 (Trial Div. July 3, 2012)(order den. mot. summ. j.).

AMERICAN SAMOA GOVERNMENT

Government Employees

The Supreme Court has explained that where there is an office to be filled and one acting under color of authority fills the office and discharges its duties, his actions are those of an officer de facto. Sene v. Molinga, CA No. 13-13 (Trial Div. July 8, 2013).

When one claims a right as an officer by virtue of his office he must show that he is legally entitled to act; that he is an officer de jure as well as de facto. The acts of the former are valid and effectual everywhere, for he is clothed with all the power and authority appertaining to the office, and his acts, within the limits of his authority, cannot be questioned anywhere. The acts of a de facto officer are valid only so far as the rights of the public, or of third parties having an interest in such acts, are involved. Sene v. Molinga, CA No. 13-13 (Trial Div. July 8, 2013).

A right cannot be asserted and enforced on behalf of one who acts merely under color of office, as a de facto officer, without legal authority, as if he were an officer de jure. Sene v. Molinga, CA No. 13- 13 (Trial Div. July 8, 2013).

Under A.S.C.A. § 7.1410(b), there is no doubt that de jure Trustees enjoy certain tenure protection in the form of a fixed five-year term of office with removal by Governor for cause only. Conversely, such protection does not apply to holdover de facto Trustees. Sene v. Molinga, CA No. 13-13 (Trial Div. July 8, 2013).

The "just cause" limitation to the Governor's removal authority under the A.S.C.A. § 7.1410 (concerning the American Samoa Government Employees Retirement Fund Board) does not in any way bind the Governor to unwillingly retain de facto Trustees who seek reappointment. Sene v. Molinga, CA No. 13-13 (Trial Div. July 8, 2013).

High Court of American Samoa Slip Opinions (2013)

The Judiciary

A.S.C.A. § 46.0919 provides language requiring the Court to declare a bond forfeited for non-appearance, but does not limit forfeiture to non- appearance in any way. Am. Samoa Gov’t v. Siaumau, CR No. 53-09 (Trial Div. Feb. 11, 2013)(order den. mot. for recon.).

It is within the District Court’s authority to find probable cause for an uncharged offense that is a lesser included offense of a charged offense for which there was not probable cause. Am. Samoa Gov’t v. Galea’i, CR No. 54-12 (Trial Div. Mar. 20, 2013)(order den. def.’s mot. to dismiss count two).

Under certain circumstance, the Appointing Division of the High Court may expand the jurisdiction of an existing independent prosecutor. Am. Samoa Gov’t v. Ripley, CR Nos. 117-09 & 119-09 (Trial Div. May 7, 2013)(order den. jt. mot. to dismiss).

If 30 days after the Attorney General learns of possible criminal activity from the independent prosecutor elapses without a notification to the High Court that no further investigation is warranted, the Appointing Division of the High Court shall expand the jurisdiction of the appropriate independent prosecutor to include the matters involved or shall appoint another independent prosecutor to investigate such matter. Am. Samoa Gov’t v. Ripley, CR Nos. 117-09 & 119-09 (Trial Div. May 7, 2013)(order den. jt. mot. to dismiss).

The Appointing Division of the High Court does not have unlimited discretion to determine an independent prosecutor’s jurisdiction; the jurisdiction decided upon must be demonstrably related to the factual circumstances that gave rise to the Attorney General’s investigation in that particular case. Am. Samoa Gov’t v. Ripley, CR Nos. 117-09 & 119- 09 (Trial Div. May 7, 2013)(order den. jt. mot. to dismiss).

All statutory construction cases begin with the language of the statute. The inquiry ceases if the statutory language is unambiguous and the statutory scheme is coherent and consistent. Am. Samoa Gov’t v. Tinitali, CA No. 35-12 (Trial Div. May 14, 2013)(order den. mot. to dismiss).

Trial judges have wide discretion in determining whether an accused's speedy trial right has been abridged. Am. Samoa Gov’t v. Barlow, CR No. 26-12 (Trial Div. May 30, 2013)(order den. def.’s mot. to dismiss).

The court will not adopt a rule of statutory construction that urges interpretation of statutes according to cultural notions of consultation. Sene v. Molinga, CA No. 13-13 (Trial Div. July 8, 2013).

High Court of American Samoa Slip Opinions (2013)

It is not necessary that plaintiffs present receipts for damages. The Court has substantial discretion in determining damages, and damages need not be calculated with mathematical precision. Notoa v. Am. Samoa Power Auth., CA No. 81-06 (Trial Div. Sep. 10, 2013).

The Land and Titles Division's jurisdiction to determine a matai title dispute is footed on prior compliance with the requirements of A.S.C.A. § 43.0302. Amani v. Ta’amu, MT No. 01-12 (Land & Titles Div. Feb. 7, 2013).

If a party deliberately opts to willfully ignore statutorily mandated conciliation proceedings, set forth in A.S.C.A. § 43.0302, that party's "default" prevents this Court from asserting jurisdiction over his or her claims. Amani v. Ta’amu, MT No. 01-12 (Land & Titles Div. Apr. 29, 2013)(order den. mot. for new trial).

The procedure in the Land and Titles Division is guided by the standard of natural justice and convenience. Amani v. Ta’amu, MT No. 01-12 (Land & Titles Div. Apr. 29, 2013)(order den. mot. for new trial).

Under T.C.R.C.P 54(b), it is well settled that trial courts have the authority to reconsider and revise interlocutory orders, including motions for partial summary judgment. Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09 (Land & Titles Div. Oct. 29, 2013)(order den. def’s. mot. for recon.).

The Court retains absolute discretion to revise interlocutory orders and generally will only do so when necessary to rectify clear error or to avoid manifest injustice. Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09 (Land & Titles Div. Oct. 29, 2013)(order den. def’s. mot. for recon.).

In special circumstances, the Court had jurisdiction to review whether foreign adoptions of children born within the Territory were legally sufficient to support requests for local birth certificates to be amended to reflect such foreign decrees of adoption. In Re a Minor Child, FDAJR No. 40-12 and 58-12 (Fam. Drug & Alcohol Div. May 28, 2013).

The Legislature

The Independent Prosecutor Act (A.S.C.A. §§ 4.0801-4.0809) provides the general rules and procedures for the appointment of an independent prosecutor to investigate and prosecute crimes against public officials. m. Samoa Gov’t v. Ripley, CR Nos. 117-09 & 119-09 (Trial Div. May 7, 2013)(order den. jt. mot. to dismiss).

High Court of American Samoa Slip Opinions (2013)

Under certain circumstance, the Appointing Division of the High Court may expand the jurisdiction of an existing independent prosecutor. m. Samoa Gov’t v. Ripley, CR Nos. 117-09 & 119-09 (Trial Div. May 7, 2013)(order den. jt. mot. to dismiss).

If the independent prosecutor learns about possible criminal activity, the independent prosecutor may submit such information to the Attorney General, who shall then conduct a preliminary investigation of the information which shall not exceed 30 days from the date such information is received. m. Samoa Gov’t v. Ripley, CR Nos. 117-09 & 119-09 (Trial Div. May 7, 2013)(order den. jt. mot. to dismiss).

The Executive

If the independent prosecutor learns about possible criminal activity, the independent prosecutor may submit such information to the Attorney General, who shall then conduct a preliminary investigation of the information which shall not exceed 30 days from the date such information is received. m. Samoa Gov’t v. Ripley, CR Nos. 117-09 & 119-09 (Trial Div. May 7, 2013)(order den. jt. mot. to dismiss).

If 30 days after the Attorney General learns of possible criminal activity from the independent prosecutor elapses without a notification to the High Court that no further investigation is warranted, the Appointing Division of the High Court shall expand the jurisdiction of the appropriate independent prosecutor to include the matters involved or shall appoint another independent prosecutor to investigate such matter. m. Samoa Gov’t v. Ripley, CR Nos. 117-09 & 119-09 (Trial Div. May 7, 2013)(order den. jt. mot. to dismiss).

In cases where the Attorney General has a conflict of interest, recusal is required. m. Samoa Gov’t v. Ripley, CR Nos. 117-09 & 119-09 (Trial Div. May 7, 2013)(order den. jt. mot. to dismiss).

The Legislature has chosen to confer upon the Executive Branch of the American Samoa Government exclusive jurisdiction over the Immigration Code, subject to limited judicial review by the courts of specified administrative decisions or acts or omissions. In Re a Minor Child, FDAJR No. 40-12 and 58-12 (Fam. Drug & Alcohol Div. May 28, 2013).

High Court of American Samoa Slip Opinions (2013)

CIVIL PROCEDURE

Initial Matters

The Land and Titles Division of the High Court has exclusive jurisdiction over all controversies relating to land. Am. Samoa Veterans Ass’n v. Am. Samoa Gov’t, AP No. 08-11 (App. Div. Jan. 4, 2013).

The Trial Division has jurisdiction over all proceedings to recover possession of premises. Am. Samoa Veterans Ass’n v. Am. Samoa Gov’t, AP No. 08-11 (App. Div. Jan. 4, 2013).

Any case in the High Court may, in the interests of justice and for the conveniences of the parties, be transferred by order of the Chief Justice or Associate Justice to any court in which it might have been brought originally. Am. Samoa Veterans Ass’n v. Am. Samoa Gov’t, AP No. 08- 11 (App. Div. Jan. 4, 2013).

When a summons is mislabeled with the wrong division case caption is a harmless or clerical error, or both, the remedy is to correct the errant case caption, not dismiss the underlying action. Am. Samoa Veterans Ass’n v. Am. Samoa Gov’t, AP No. 08-11 (App. Div. Jan. 4, 2013).

The court may refuse to hear a case where its declaration or determination is not necessary or where another adequate remedy is provided. Faumuina v. Fraser, AP No. 13-10 (App. Div. Jan. 14, 2013)(order den. pet. for reh’g).

Where the Trial Division lacked jurisdiction to hear and decide a case in the first instance, it also lacked jurisdiction upon remand to take any remedial action. Faumuina v. Fraser, AP No. 13-10 (App. Div. Jan. 14, 2013)(order den. pet. for reh’g).

The T.C.R.C.P. do not apply to proceedings before the Land and Titles Division. Special rules governing the proceedings before that Division have also been adopted. Ava v. Corp. of Presiding Bishop, AP No. 10- 11 (App. Div. Aug. 5, 2013).

The Legislature has clearly prohibited any application of The Federal Rules of Civil Procedure, Title 28, U.S.C., to proceedings before the land and titles division. The Chief Justice is required to prescribe rules and forms to govern the conduct of proceedings before that division of the High Court. Ava v. Corp. of Presiding Bishop, AP No. 10-11 (App. Div. Aug. 5, 2013).

The T.C.R.L.T. and applicable statutes create a special, expedited, judicial resolution process for communal land and matai title disputes so

High Court of American Samoa Slip Opinions (2013) that such disputes may be promptly resolved once filed in court, and the underlying inter or intra family tensions or feuding thereby minimized or avoided. Ava v. Corp. of Presiding Bishop, AP No. 10-11 (App. Div. Aug. 5, 2013).

Where Plaintiffs’ conduct indicated intent to pursue litigation against Defendants without giving Defendants a meaningful opportunity to defend their case, the court dismissed the case with prejudice. Fa’asala v. O’Brien, CA No. 08-11 (Trial Div. Jan. 15, 2013)(order dism’l with prej.).

The High Court has exclusive original jurisdiction over all judicial proceedings in American Samoa with respect to the American Samoa Income Tax. Brunt v. Am. Samoa Gov’t, CA No. 107-07 (Trial Div. Feb. 1, 2013).

The court’s jurisdiction properly attaches when a notice of deficiency is mailed to the taxpayer, and the taxpayer files an action contesting the deficiency within 90 days. Brunt v. Am. Samoa Gov’t, CA No. 107-07 (Trial Div. Feb. 1, 2013).

If a taxpayer produces credible evidence with respect to any factual issue relevant to their tax liability, the burden shifts to ASG with respect to such issue. Brunt v. Am. Samoa Gov’t, CA No. 107-07 (Trial Div. Feb. 1, 2013).

The burden of proof shifting with respect to factual issues relevant to tax liability only applies when (1) the taxpayer has complied with the requirements to substantiate any item, (2) the taxpayer has maintained all records required under this title and has cooperated with reasonable requests for information, and (3) in case of partnerships, corporations, or trusts, further special requirements are met. Brunt v. Am. Samoa Gov’t, CA No. 107-07 (Trial Div. Feb. 1, 2013).

Only disputes over facts that might affect the outcome of the suit under the governing law are material, and such a dispute is genuine only where the evidence is such that a reasonable factfinder could return a verdict for the nonmoving party. Kepaoa Dev. Corp. v. Stevensons Trucking, Inc., CA No. 18-09 (Trial Div. Mar. 20, 2013)(order grant. def.’s mot. for summ. j.).

Allowing premature filings while retaining jurisdiction is not unusual, as courts generally seek to avoid dismissals based on technicalities. Am. Samoa Gov’t v. Tinitali, CA No. 35-12 (Trial Div. May 14, 2013)(order den. mot. to dismiss).

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The Land and Titles Division's jurisdiction to determine a matai title dispute is footed on prior compliance with the requirements of A.S.C.A. § 43.0302. Amani v. Ta’amu, MT No. 01-12 (Land & Titles Div. Feb. 7, 2013).

Where failure to attend scheduled meetings at the Office of Samoan Affairs was willful and deliberate, the Court declined to assert jurisdiction over objector’s claim. Amani v. Ta’amu, MT No. 01-12 (Land & Titles Div. Feb. 7, 2013).

If a party deliberately opts to willfully ignore statutorily mandated conciliation proceedings, set forth in A.S.C.A. § 43.0302, that party's "default" prevents this Court from asserting jurisdiction over his or her claims. Amani v. Ta’amu, MT No. 01-12 (Land & Titles Div. Apr. 29, 2013)(order den. mot. for new trial).

Where one party deliberately refuses to comply with jurisdictional prerequisites, the court will only assert jurisdiction over the party- opponent’s claim, assuming that the party-opponent has complied with jurisdictional requirements. Amani v. Ta’amu, MT No. 01-12 (Land & Titles Div. Apr. 29, 2013)(order den. mot. for new trial).

The Land and Titles Division lacks jurisdiction to adjudicate a successor matai controversy unless the family meaningfully meets, adequately noticed with all family members having opportunity to be heard, to select the successor titleholder before any claims to register the title are filed with the Territorial Registrar. Alai’asa v. Fa’aolataga, MT No. 06- 12 (Land & Titles Div. Sep. 9, 2013)(order dismiss. action for lack of juris. without prej.).

The court has jurisdiction over a matai title controversy where the family has " had a meaningful opportunity to select a matai successor, two series of A.S.C.A. § 43.0302 hearings presided by a disinterested Deputy Secretary of Samoan Affairs were undertaken by the parties, a "disputed claim," A.S.C.A. § 1.0409, is presented. Ioapo v. Aviata, MT No. 02-02 (Land & Titles Div. October 16, 2013).

Pretrial Motions

Rule 41(b) of the Trial Court Rules of Civil Procedure provides, in part, that for failure of the plaintiff to prosecute or comply with the rules of civil procedure or any order of court, a defendant may move for dismissal of an action or of any claim against him. Togiai v. Hawaiian Airlines, Inc., CA No. 101-06 (Trial Div. July 24, 2013)(order den. def.’s mot. to dismiss but imposing sanctions).

High Court of American Samoa Slip Opinions (2013)

Dismissal for failure to diligently prosecute is a drastic measure. In determining whether to dismiss for lack of prosecution, the facts of each individual case are important. The court must consider competing policies, such as the court’s need to manage its docket, the public interest in expeditious resolution of the litigation and the risk of prejudice to defendants from any delay versus the law’s strong bias in favor of disposition of claims on their merits. Togiai v. Hawaiian Airlines, Inc., CA No. 101-06 (Trial Div. July 24, 2013)(order den. def.’s mot. to dismiss but imposing sanctions).

The five-factor test to assess the propriety of dismissal for failure to prosecute is: (1) duration of plaintiff’s failures or a history of dilatoriness; (2) willful or bad faith conduct; (3) notice that further delays would result in dismissal; (4) prejudice to the defendant from further delay; (5) the efficacy of lesser sanctions. Togiai v. Hawaiian Airlines, Inc., CA No. 101-06 (Trial Div. July 24, 2013)(order den. def.’s mot. to dismiss but imposing sanctions).

Where the plaintiff willfully delays prosecution for reasons other than bad faith, the proper inquiry is whether such delay is reasonably excusable in light of the circumstances. The burden is on the plaintiff of providing a reasonable excuse for the delay. Togiai v. Hawaiian Airlines, Inc., CA No. 101-06 (Trial Div. July 24, 2013)(order den. def.’s mot. to dismiss but imposing sanctions).

Prejudice from failure to diligently prosecute comes in many forms and does not necessarily refer to irreparable harm. Togiai v. Hawaiian Airlines, Inc., CA No. 101-06 (Trial Div. July 24, 2013)(order den. def.’s mot. to dismiss but imposing sanctions).

Dismissals are rarely granted without adequate notice and opportunity to be heard. Togiai v. Hawaiian Airlines, Inc., CA No. 101-06 (Trial Div. July 24, 2013)(order den. def.’s mot. to dismiss but imposing sanctions).

Involuntary dismissal of a case is a drastic measure to be used only in the most extreme circumstances. A court has the responsibility to look at whether lesser alternative sanctions will satisfy the interests of justice. Togiai v. Hawaiian Airlines, Inc., CA No. 101-06 (Trial Div. July 24, 2013)(order den. def.’s mot. to dismiss but imposing sanctions).

Parties and Claims

If a party to an action dies and the claim is not extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successor of the deceased party, and shall be served on the parties as provided in T.C.R.C.P. 5. Atofa’i v. Fau, LT No. 35-81 (Land & Titles Div. July 23, 2013)(order den. pl.’s

High Court of American Samoa Slip Opinions (2013) mot. to rescind and dismiss and defer ruling, and on def.’s mot. to den. just comp.).

Even where a plaintiff was not formally served with a motion to substitute a defendant that was subsequently granted by the court, where the plaintiff failed to show he was prejudiced by the substitution, the court will not rescind the substitution order. Atofa’i v. Fau, LT No. 35- 81 (Land & Titles Div. July 23, 2013)(order den. pl.’s mot. to rescind and dismiss and defer ruling, and on def.’s mot. to den. just comp.).

Discovery

Upon motion by a person responding to a discovery request, and for good cause shown, we may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. eota v. Dawn, CA No. 16-12 (Trial Div. Jan. 2, 2013)(order on pl.’s mot. for protective order).

For discovery purposes, income records are relevant to calculating future lost wages insomuch as they address what the plaintiff's income would probably have been, how long it would have lasted, and all the contingencies to which it was liable. eota v. Dawn, CA No. 16-12 (Trial Div. Jan. 2, 2013)(order on pl.’s mot. for protective order).

While tax returns are not privileged, courts are reluctant to order their routine disclosure as part of discovery. Disclosure often requires satisfaction of a two prong test: (1) the returns must be relevant to the subject matter of the action; and (2) there is a compelling need for the returns because the information contained therein is not readily obtainable. eota v. Dawn, CA No. 16-12 (Trial Div. Jan. 2, 2013)(order on pl.’s mot. for protective order).

Where Plaintiffs’ counsel failed to comply with discovery rules and Court’s order, case was dismissed pursuant to T.C.R.C.P. Rule 37(b)(2)(C). Fa’asala v. O’Brien, CA No. 08-11 (Trial Div. Jan. 15, 2013)(order dism’l with prej.).

A case may be dismissed with prejudice if the record shows a pattern of discovery abuses. Fa’asala v. O’Brien, CA No. 08-11 (Trial Div. Jan. 15, 2013)(order dism’l with prej.).

Until local rules are updated, we encourage local counsel to informally adopt and make use of F.R.C.P. 37(a)(2)(B) prior to bringing discovery motions before this Court. Fa’asala v. O’Brien, CA No. 08-11 (Trial Div. Feb. 21, 2012)(order grant. def. mot. compel).

High Court of American Samoa Slip Opinions (2013)

As contemplated by T.C.R.C.P. 34(a), a plaintiff’s medical and psychiatric bills are within the plaintiff’s ―control.‖ This general rule applies when a plaintiff alleges such bills were sustained as a result of an accident ―caused‖ by the alleged negligence of a named defendant in a personal injury action. Consequently, when a named defendant in such an action requests those aforementioned and relevant bills, the plaintiff must produce the actual documents, not a Health Insurance Portability and Accountability Act of 1996 consent or authorization form. Fa’asala v. O’Brien, CA No. 08-11 (Trial Div. Feb. 21, 2012)(order grant. def. mot. compel).

Summary Judgment

There are too many unknown facts surrounding the delay in filing suit to grant summary judgment on the ground of laches. More evidence must be presented before it becomes clear whether laches should apply. Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09 (Land & Titles Div. July 19, 2013)(order grant. in pt. and den. in pt. parties’ several mots. for summ. j.).

Injunctions

A preliminary injunction may be issued by a court after there has been a hearing in which sufficient grounds has been established. Am. Samoa Veterans Ass’n v. Am. Samoa Gov’t, AP No. 01-12 (App. Div. Mar. 12, 2013).

Equitable Remedies

Unjust enrichment has both a substance and a remedial aspect. The substantive question is whether the plaintiff has a right at all, that is, whether the defendant is unjustly enriched by legal standards. The remedial aspect often takes the form of restitution. Pago Pago Yacht Club v. Am. Samoa Gov’t, AP No. 04-12 (App. Div. Apr. 24, 2013).

The goal of restitution is to prevent unjust enrichment of the defendant by making him give up what he wrongfully obtained from the plaintiff. Pago Pago Yacht Club v. Am. Samoa Gov’t, AP No. 04-12 (App. Div. Apr. 24, 2013).

Laches is an equitable defense that bars an action where an unreasonable delay in one party’s assertion of its rights results in another party’s undue prejudice. The court determines the applicability of laches on a case by case basis. Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09 (Land & Titles Div. July 19, 2013)(order grant. in pt. and den. in pt. parties’ several mots. for summ. j.).

High Court of American Samoa Slip Opinions (2013)

There are too many unknown facts surrounding the delay in filing suit to grant summary judgment on the ground of laches. More evidence must be presented before it becomes clear whether laches should apply. Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09 (Land & Titles Div. July 19, 2013)(order grant. in pt. and den. in pt. parties’ several mots. for summ. j.).

Laches is an equitable defense that bars an action where an unreasonable delay in one party’s assertion of its rights results in another party’s undue prejudice. The court determines the applicability of laches on a case by case basis and will usually bar recovery only if a party has voluntarily delayed asserting a right, and as a result, the opposing party’s as well as the court’s ability to ascertain the truth are harmed. Atofa’i v. Fau, LT No. 35-81 (Land & Titles Div. July 23, 2013)(order den. pl.’s mot. to rescind and dismiss and defer ruling, and on def.’s mot. to den. just comp.).

Under the equitable doctrine of laches, a defendant has the burden of proving: (1) the plaintiff delayed filing suit for an unreasonable and inexcusable length of time from the time the plaintiff knew or reasonably should have known of its claim against the defendant, and (2) the delay operated to the prejudice or injury of the defendant. Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09 (Land & Titles Div. Oct. 29, 2013)(order den. def’s. mot. for recon.).

As an equitable defense laches cannot be asserted by a party with unclean hands. Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09 (Land & Titles Div. Oct. 29, 2013)(order den. def’s. mot. for recon.).

Judgments

Res judicata bars the relitigation of legal and factual issues that were settled between the same parties in a prior litigation. Am. Samoa Veterans Ass’n v. Am. Samoa Gov’t, AP No. 08-11 (App. Div. Jan. 4, 2013).

Res judicata may apply to issues that could have been raised but were not raised in the prior litigation. Am. Samoa Veterans Ass’n v. Am. Samoa Gov’t, AP No. 08-11 (App. Div. Jan. 4, 2013).

Res judicata applies when (1) there has been a final judgment on the merits (2) in a prior action involving the same parties or their privies (3)

High Court of American Samoa Slip Opinions (2013) and the prior action concerns the same claim. Am. Samoa Veterans Ass’n v. Am. Samoa Gov’t, AP No. 08-11 (App. Div. Jan. 4, 2013).

Courts apply a variety of standards to measure recoverable damages in building destruction incidents. Where plaintiffs replaced their destroyed house and its contents, the reasonable cost of replacing the destroyed house and contents to the substantially same condition they were in prior to destruction, plus loss of use, was the appropriate measure of damages. Notoa v. Am. Samoa Power Auth., CA No. 81-06 (Trial Div. Sep. 10, 2013).

It is not necessary that plaintiffs present receipts for damages. The Court has substantial discretion in determining damages, and damages need not be calculated with mathematical precision. Notoa v. Am. Samoa Power Auth., CA No. 81-06 (Trial Div. Sep. 10, 2013).

Under T.C.R.C.P 54(b), it is well settled that trial courts have the authority to reconsider and revise interlocutory orders, including motions for partial summary judgment. Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09 (Land & Titles Div. Oct. 29, 2013)(order den. def’s. mot. for recon.).

The Court retains absolute discretion to revise interlocutory orders and generally will only do so when necessary to rectify clear error or to avoid manifest injustice. Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09 (Land & Titles Div. Oct. 29, 2013)(order den. def’s. mot. for recon.).

Post Judgment Motions & Appeals

The Appellate Division reviews questions of law de novo. Am. Samoa Veterans Ass’n v. Am. Samoa Gov’t, AP No. 08-11 (App. Div. Jan. 4, 2013). Am. Samoa Veterans Ass’n v. Am. Samoa Gov’t, AP No. 01-12 (App. Div. Mar. 12, 2013). Pago Pago Yacht Club v. Am. Samoa Gov’t, AP No. 04-12 (App. Div. Apr. 24, 2013).

A rehearing is not a matter of right, but it is a privilege at the direction of the appellate court. Faumuina v. Fraser, AP No. 13-10 (App. Div. Jan. 14, 2013)(order den. pet. for reh’g).

In order to be covered under the Servicemembers Civil Relief Act, which allows a stay of civil court proceedings for active duty servicemembers, a party must file a motion to stay and follow the procedures for effectuating a stay, as delineated by the SCRA. Fa’asala v. O’Brien, CA No. 08-11 (Trial Div. Jan. 15, 2013)(order dism’l with prej.).

High Court of American Samoa Slip Opinions (2013)

In other jurisdictions, a premature appeal taken from an order that is not yet final but which is followed by a final order, ripens into an appealable order in the absence of a showing of prejudice to the opposing party. Am. Samoa Gov’t v. Tinitali, CA No. 35-12 (Trial Div. May 14, 2013)(order den. mot. to dismiss).

Reconsideration is appropriate if the court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law. Loloaso v. Satala Land Trust., LT No. 9-11 (Land & Titles Div. Feb. 1, 2013).

A party moving for reconsideration must do more than merely reiterate the trial court’s reasons and then blindly assert that the court was incorrect. Loloaso v. Satala Land Trust., LT No. 9-11 (Land & Titles Div. Feb. 1, 2013).

The decision whether to grant a motion for reconsideration is within the broad discretion of the trial court. Loloaso v. Satala Land Trust., LT No. 9-11 (Land & Titles Div. Feb. 1, 2013)

Reconsideration or new trial is appropriate if the court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law. Schuster, v. Afoa, LT No. 20-07 (Land & Titles Div. Apr. 3, 2013)(order den. pl.’s mot. for recon. or new trial).

Alternative Dispute Resolution

Arbitration provision of an expired contract did not apply where there was no indication that the parties intended for the provision to apply after expiration of the contract. Am. Samoa Veterans Ass’n v. Am. Samoa Gov’t, AP No. 08-11 (App. Div. Jan. 4, 2013).

CONSTITUTIONAL LAW

Justiciable Case or Controversy

A case is moot when the issues are no longer ―live‖ or the parties lack a legally cognizable interest in the outcome. Am. Samoa Veterans Ass’n v. Am. Samoa Gov’t, AP No. 01-12 (App. Div. Mar. 12, 2013).

High Court of American Samoa Slip Opinions (2013)

A court cannot hear cases that are moot. Am. Samoa Veterans Ass’n v. Am. Samoa Gov’t, AP No. 01-12 (App. Div. Mar. 12, 2013).

A.S.C.A. § 43.0302 requires a party to attend the prescribed meetings before such a party's succession claim is ripe for adjudication. Amani v. Ta’amu, MT No. 01-12 (Land & Titles Div. Feb. 7, 2013).

Constitutional and Statutory Interpretation

All statutory construction cases begin with the language of the statute. The inquiry ceases if the statutory language is unambiguous and the statutory scheme is coherent and consistent. Am. Samoa Gov’t v. Tinitali, CA No. 35-12 (Trial Div. May 14, 2013)(order den. mot. to dismiss).

By casting A.S.C.A. § 41.0403 (a)(2) in the past tense, the Legislature provided that (foreign national) individuals legally adopted by American Samoans in the past would be entitled to apply to the Attorney General for permanent residency status. For those children qualifying under A.S.C.A. § 41.0406, cast generally in the present tense, their immigration status would be that of an American Samoan, with the caveat that non-qualifying persons must apply to the Immigration Board for permission to remain in the Territory. In Re a Minor Child, FDAJR No. 40-12 and 58-12 (Fam. Drug & Alcohol Div. May 28, 2013).

Due Process

There may be some constitutional errors in a particular case which are so unimportant and insignificant that they may be deemed harmless and do not require the automatic reversal of the conviction. Masui v. Am. Samoa Gov’t, AP No. 19-10 (App. Div. Jan. 16, 2013).

Constitutional error is harmless only when it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Masui v. Am. Samoa Gov’t, AP No. 19-10 (App. Div. Jan. 16, 2013).

Where the error involves a non-constitutional matter, such error is deemed harmless unless it is more probable than not that the error did not materially affect the verdict. Masui v. Am. Samoa Gov’t, AP No. 19- 10 (App. Div. Jan. 16, 2013).

Special due process procedures have been established for the seizure and forfeiture of illegal commodities under A.S.C.A § 27.1042. The importer or exporter is given written ―Notice of Seizure‖ by the customs officer and is afforded judicial review to contest the seizure by filing a complaint in the High Court within 30 days from receiving the Seizure

High Court of American Samoa Slip Opinions (2013)

Notice. maseu Distrib. v. Am. Samoa Gov’t,, AP No. 03-12 (App. Div. Aug. 22, 2013).

A.S.C.A. § 27.1042 confers specific jurisdiction upon the Trial Division to conduct a due process hearing with respect to the seizure and forfeiture of contraband or goods illegally imported into the Territory by false declaration or non declaration. maseu Distrib. v. Am. Samoa Gov’t,, AP No. 03-12 (App. Div. Aug. 22, 2013).

One party cannot take advantage of a party-opponent's compliance with statutory requirements nor can a party preclude a party-opponent's access to the Court. Amani v. Ta’amu, MT No. 01-12 (Land & Titles Div. Apr. 29, 2013)(order den. mot. for new trial).

The procedure in the Land and Titles Division is guided by the standard of natural justice and convenience. Amani v. Ta’amu, MT No. 01-12 (Land & Titles Div. Apr. 29, 2013)(order den. mot. for new trial).

Pursuant to the standard of natural justice and convenience, a party who complies with A.S.C.A. § 43.0302 should not be prevented from seeking his day in court by an opposing party that deliberately refuses to comply with jurisdictional prerequisites. Amani v. Ta’amu, MT No. 01-12 (Land & Titles Div. Apr. 29, 2013)(order den. mot. for new trial).

In order to have a cognizable claim for deprivation of due process, one must first have a property interest in the government action at issue. Am. Samoa Gov’t v. Avamua, LT No. 10-08 (Land & Titles Div. July 22, 2013)(order on mot. for new trial).

CONSTITUTIONAL TORTS

Searches and Seizures

In a civil case, an allegation that the plaintiff’s sister had her luggage searched and that there was a ―stop order‖ placed on loading any of the plaintiff’s luggage on to an airplane constituted circumstantial evidence that was insufficient to find a violation of the 4th Amendment to the U.S. Constitution. Ala’ilima, et al. v. Am. Samoa Gov’t, et al., CA No. 22-09 (Trial Div. Aug. 15, 2013).

CONTRACTS

Performance and Breach

A contract for the sale of real property may be recognized if there has been partial performance. The court may compel specific performance

High Court of American Samoa Slip Opinions (2013) of a partially performed, unwritten agreement. In re Estate of Ah Hing, LT Nos. 21-11 & 22-11 (Land & Titles Div. July 22, 2013).

CRIMINAL LAW

Specific Crimes

A dangerous instrument is any instrument, article, or substance, which under the circumstances in which it is used, is readily capable of causing death or serious physical injury. Agasiva v. Am. Samoa Gov’t, AP No. 06-12 (App. Div. July 11, 2013).

A serious physical injury is defined as a physical injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ. Agasiva v. Am. Samoa Gov’t, AP No. 06-12 (App. Div. July 11, 2013).

Whether an instrument is a ―dangerous instrument‖ within the meaning of the statute does not require that the actor concurrently intend to cause actual serious physical injury while wielding the instrument. Agasiva v. Am. Samoa Gov’t, AP No. 06-12 (App. Div. July 11, 2013).

Striking an individual with an 18-inch blade, which is designed to cut through wood or tough vegetation can potentially cause serious bodily injury or death. Agasiva v. Am. Samoa Gov’t, AP No. 06-12 (App. Div. July 11, 2013).

Forcible compulsion requires only that the act was consummated with sufficient force to overbear the protests of the woman. Am. Samoa Gov’t v. Malae, CR No. 100-13 (Trial Div. Oct. 22, 2013)(order den. def.’s mot. for bill of particulars and mot.. to sever).

CRIMINAL PROCEDURE

Criminal Complaints, Indictments and Bills of Information

It is within the District Court’s authority to find probable cause for an uncharged offense that is a lesser included offense of a charged offense for which there was not probable cause. Am. Samoa Gov’t v. Galea’i, CR No. 54-12 (Trial Div. Mar. 20, 2013)(order den. def.’s mot. to dismiss count two).

A Bill of Particulars is not required as long as a defendant has enough information to adequately prepare a defense, avoid surprise at trial, and protect him against a second prosecution for an inadequately described offense; as such, a defendant is required to look at all of the

High Court of American Samoa Slip Opinions (2013) government's sources and not simply the information formally charging him with the crime. Am. Samoa Gov’t v. Malae, CR No. 100-13 (Trial Div. Oct. 22, 2013)(order den. def.’s mot. for bill of particulars and mot.. to sever).

The Information need not set forth all facts and evidentiary details of the prosecutor’s case to be sufficient, nor must the prosecutor divulge the precise manner in which the defendant committed the crimes or preview the government’s evidence or legal theories. Am. Samoa Gov’t v. Malae, CR No. 100-13 (Trial Div. Oct. 22, 2013)(order den. def.’s mot. for bill of particulars and mot.. to sever).

Parties & Procedure

Under T.C.R.Cr.P. 8(a), counts pertaining to the same defendant may be joined if they are of the same or similar character, even if the offenses are distinct and unrelated. This rule is to be interpreted broadly, and judicial economy and public interest favors joinder. A defendant must show strong or substantial prejudice flowing from joinder to warrant the court to separate the counts. Am. Samoa Gov’t v. Malae, CR No. 100-13 (Trial Div. Oct. 22, 2013)(order den. def.’s mot. for bill of particulars and mot.. to sever).

Pre-Trial Matters

There is no federal due process right to a pre-trial taint hearing to examine whether a child's interview was unduly suggestive, however, such hearings have been deemed necessary in other contexts. Am. Samoa Gov’t v. Ioramo, CR No. 49-12 (Trial Div. Jan. 23, 2013)(order grant. def.'s mot. to suppress test.).

It is the Court's decision to determine whether a child is competent to testify pursuant to T.C.R.Ev. Rule 104(a). Am. Samoa Gov’t v. Ioramo, CR No. 49-12 (Trial Div. Jan. 23, 2013)(order grant. def.'s mot. to suppress test.).

A.S.C.A. § 46.0919 provides language requiring the Court to declare a bond forfeited for non-appearance, but does not limit forfeiture to non- appearance in any way. Am. Samoa Gov’t v. Siaumau, CR No. 53-09 (Trial Div. Feb. 11, 2013)(order den. mot. for recon.).

Although this Court has not adopted a multi-factor test to determine whether to set aside bond forfeitures, the Court looks to a variety of considerations, such as deterrence, and makes its decision based on the totality of circumstances. Am. Samoa Gov’t v. Siaumau, CR No. 53-09 (Trial Div. Feb. 11, 2013)(order den. mot. for recon.).

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This Court is not tethered to any one set of factors when reviewing bond forfeiture cases. Am. Samoa Gov’t v. Siaumau, CR No. 53-09 (Trial Div. Feb. 11, 2013)(order den. mot. for recon.).

It is in the interest of justice to prevent injury to the public in cases where the defendant is charged with multiple serious crimes and to make reasonably certain that such individuals are released into society with an incentive to comply with the terms of release. Am. Samoa Gov’t v. Siaumau, CR No. 53-09 (Trial Div. Feb. 11, 2013)(order den. mot. for recon.).

Where defendant flagrantly disregarded bond conditions, voluntary appearance was not enough for the Court to set aside bond forfeiture and exonerate bond. Am. Samoa Gov’t v. Siaumau, CR No. 53-09 (Trial Div. Feb. 11, 2013)(order den. mot. for recon.).

Bond conditions must be strictly construed. Am. Samoa Gov’t v. Siaumau, CR No. 53-09 (Trial Div. Feb. 11, 2013)(order den. mot. for recon.).

When court recited bond conditions, Defendant was put on notice that bond would be forfeited if any of the terms and conditions of his release were violated. Am. Samoa Gov’t v. Siaumau, CR No. 53-09 (Trial Div. Feb. 11, 2013)(order den. mot. for recon.).

It is defense counsel's responsibility to make certain that their clients understand the conditions of release and to consult with them regarding the terms of release after they had been set. Am. Samoa Gov’t v. Siaumau, CR No. 53-09 (Trial Div. Feb. 11, 2013)(order den. mot. for recon.).

Trial

Any errors or irregularities at trial which does not affect substantial rights shall be disregarded. Masui v. Am. Samoa Gov’t, AP No. 19-10 (App. Div. Jan. 16, 2013).

A trial court’s choice between two permissible views of the weight of evidence is not clearly erroneous where the evidence would support a conclusion either way. The question that must be determined is whether the trial court’s findings of fact were illogical, implausible, or lack support in the record. Agasiva v. Am. Samoa Gov’t, AP No. 06-12 (App. Div. July 11, 2013).

An offense is necessarily included in another offense when the elements of the lesser offense are a subset of the elements of the greater offense. If the lesser offense requires an element that is not required for the

High Court of American Samoa Slip Opinions (2013) greater offense, it is not a lesser included offense. Am. Samoa Gov’t v. Galea’i, CR No. 54-12 (Trial Div. Mar. 20, 2013)(order den. def.’s mot. to dismiss count two).

Whether one crime is a lesser included offense of another depends on the elements required to prove each crime. Thus, an argument that one crime is not a lesser included offense of another based on the sentencing structure of the two offenses is without merit. Am. Samoa Gov’t v. Galea’i, CR No. 54-12 (Trial Div. Mar. 20, 2013)(order den. def.’s mot. to dismiss count two).

Trial judges have wide discretion in determining whether an accused's speedy trial right has been abridged. Am. Samoa Gov’t v. Barlow, CR No. 26-12 (Trial Div. May 30, 2013)(order den. def.’s mot. to dismiss).

The Court may consider the following factors articulated by the U.S. Supreme Court: (i) length of pretrial delay; (ii) reason(s) for delay; (iii) defendant's assertion of his speedy trial right; and (iv) the degree of prejudice to the defendant. Am. Samoa Gov’t v. Barlow, CR No. 26-12 (Trial Div. May 30, 2013)(order den. def.’s mot. to dismiss).

In determining whether a delay is presumptively prejudicial when considering a defendant’s speedy trial rights, courts take into consideration the nature and complexity of the crime or crimes alleged. Am. Samoa Gov’t v. Barlow, CR No. 26-12 (Trial Div. May 30, 2013)(order den. def.’s mot. to dismiss).

Unintentional delays caused by overcrowded court dockets or understaffed prosecutors are among the factors to be weighed less heavily than intentional delay, calculated to hamper the defense, in determining whether the Sixth Amendment has been violation, but . . . they must nevertheless be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Am. Samoa Gov’t v. Barlow, CR No. 26-12 (Trial Div. May 30, 2013)(order den. def.’s mot. to dismiss).

When determining the reasons for delay, the court will also review delays brought on by the defendant's pretrial motions, requests for continuances, and discovery requests. Am. Samoa Gov’t v. Barlow, CR No. 26-12 (Trial Div. May 30, 2013)(order den. def.’s mot. to dismiss).

The appropriate time to assert the right to a speedy trial is usually at the time the trial date is set. Am. Samoa Gov’t v. Barlow, CR No. 26-12 (Trial Div. May 30, 2013)(order den. def.’s mot. to dismiss).

Courts will not entertain deprivation of speedy trial claims in situations where the defendant could have prevented the delay from occurring but

High Court of American Samoa Slip Opinions (2013) did not do so. Am. Samoa Gov’t v. Barlow, CR No. 26-12 (Trial Div. May 30, 2013)(order den. def.’s mot. to dismiss).

Post-Verdict Motions

It is well-settled that a party may not raise an issue for the first time in a motion for new trial that could have been properly raised at trial. Agasiva v. Am. Samoa Gov’t, AP No. 06-12 (App. Div. July 11, 2013).

In criminal cases, a motion for new trial shall be filed within 10 days after the announcement of judgment or sentence. Thus, errors of law not raised within 10 days of judgment or sentence are waived, at least insofar as they concern the right to appeal. Agasiva v. Am. Samoa Gov’t, AP No. 06-12 (App. Div. July 11, 2013).

The statute of limitations is not a jurisdictional prerequisite; but rather, it is an affirmative defense and the failure to assert the statute before or at trial will constitute a waiver. Agasiva v. Am. Samoa Gov’t, AP No. 06- 12 (App. Div. July 11, 2013).

Appeals

Trial judges have wide discretion in determining whether an accused's speedy trial right has been abridged. Am. Samoa Gov’t v. Barlow, CR No. 26-12 (Trial Div. May 30, 2013)(order den. def.’s mot. to dismiss).

The appropriate time to assert the right to a speedy trial is usually at the time the trial date is set. Am. Samoa Gov’t v. Barlow, CR No. 26-12 (Trial Div. May 30, 2013)(order den. def.’s mot. to dismiss).

Counsel

The U.S. Supreme Court two-prong standard that a petitioner must show in order to prevail on a claim for ineffective assistance of counsel is: (1) the defendant must show that counsel’s performance was deficient; (2) the defendant must show that the deficient performance prejudiced the defense. Agasiva v. Am. Samoa Gov’t, AP No. 06-12 (App. Div. July 11, 2013).

Under prong one of the test for ineffective assistance of counsel, the court must take into account the ―strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Agasiva v. Am. Samoa Gov’t, AP No. 06-12 (App. Div. July 11, 2013).

It is defense counsel's responsibility to make certain that their clients understand the conditions of release and to consult with them regarding the terms of release after they had been set. Am. Samoa Gov’t v.

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Siaumau, CR No. 53-09 (Trial Div. Feb. 11, 2013)(order den. mot. for recon.).

In cases where the Attorney General has a conflict of interest, recusal is required. Am. Samoa Gov’t v. Ripley, CR Nos. 117-09 & 119-09 (Trial Div. May 7, 2013)(order den. jt. mot. to dismiss).

To establish a prosecutorial misconduct violation under Brady, the claimant must demonstrate (1) that the prosecution suppressed evidence (2) that was favorable to the appellants or exculpatory and (3) that the evidence was material. Am. Samoa Gov’t v. Barlow, CR No. 26-12 (Trial Div. May 30, 2013)(order den. def.’s mot. to dismiss).

The government is not obligated under Brady to furnish a defendant with information which he already has or, with any reasonable diligence, he can obtain himself. Am. Samoa Gov’t v. Barlow, CR No. 26-12 (Trial Div. May 30, 2013)(order den. def.’s mot. to dismiss).

The government is not required to disclose information that it does not possess or of which it is not aware. Am. Samoa Gov’t v. Barlow, CR No. 26-12 (Trial Div. May 30, 2013)(order den. def.’s mot. to dismiss).

ELECTIONS

Issues – Candidates

A meeting to decide on the Lealataua senate seat must comprise of the entire Lealataua County Council, not merely of one subdivision alone, or else the decision reached is not an election result of the Lealataua County in accordance with the requirements of Art. II, Sec. 4 of the Revised Constitution of American Samoa. Faletogo v. Pese, CA No. 54- 12 (Trial Div. Jan. 29, 2013).

A meeting between Fagamalo matai and select matai and lower ranking matai of the Samatua does not constitute an election by the Lealataua County Council in accordance with Art. 11, Sec. 4 of the Revised Constitution of American Samoa. Faletogo v. Pese, CA No. 54-12 (Trial Div. Jan. 29, 2013).

Senate Elections

A meeting to decide on the Lealataua senate seat must comprise of the entire Lealataua County Council, not merely of one subdivision alone, or else the decision reached is not an election result of the Lealataua County in accordance with the requirements of Art. II, Sec. 4 of the Revised Constitution of American Samoa. Faletogo v. Pese, CA No. 54- 12 (Trial Div. Jan. 29, 2013).

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A meeting between Fagamalo matai and select matai and lower ranking matai of the Samatua does not constitute an election by the Lealataua County Council in accordance with Art. 11, Sec. 4 of the Revised Constitution of American Samoa. Faletogo v. Pese, CA No. 54-12 (Trial Div. Jan. 29, 2013).

Where the Department of Local Government convened a meeting to resolve county opinion regarding conflicting certifications for senate seat, the decision by the DLG made pursuant to an ad hoc process usurped the function of the Senate as the exclusive ―judge‖ of its election results, pursuant to Art. II, Sec. 22 of the Revised Constitution of American Samoa, and the court's judicial function to determine, in an election contest, whether a county election had in fact occurred, in accordance with Art. 11, Sec. 4. Faletogo v. Pese, CA No. 54-12 (Trial Div. Jan. 29, 2013).

EMPLOYMENT LAW

Workmen’s Compensation

Without a copy of the Administrative Law Judge order that has been properly filed with the Office of the Workmen’s Compensation Commission, as mandated by A.S.C.A. § 32.6050, there is no effective order for the court to review. Am. Samoa Gov’t v. Tinitali, CA No. 35- 12 (Trial Div. Mar. 13, 2013)(order on mot. for stay pending rev.).

The Workmen’s Compensation statute does not contain language that precludes a party from filing a complaint for injunctive relief after the Administrative Law Judge renders a decision but before the original of the ALJ’s order is filed with the Workermen’s Compensation Commission. Am. Samoa Gov’t v. Tinitali, CA No. 35-12 (Trial Div. May 14, 2013)(order den. mot. to dismiss).

EVIDENCE

Relevance

The Territory’s ―rape-shield‖ rule generally provides that in a criminal case in which the defendant is accused of rape or assault with intent to commit rape, reputation or opinion evidence of the past sexual behavior of an alleged victim of such rape or assault is not admissible. Masui v. Am. Samoa Gov’t, AP No. 19-10 (App. Div. Jan. 16, 2013).

The purpose of rape-shield statutes is to protect rape victims from the embarrassing disclosure of the details of their private lives, to encourage reporting of sexual assaults, and to prevent wasting time on distracting

High Court of American Samoa Slip Opinions (2013) collateral and irrelevant matters. Masui v. Am. Samoa Gov’t, AP No. 19- 10 (App. Div. Jan. 16, 2013).

Evidence of a victim’s past sexual behavior may be admissible if it is evidence of past sexual behavior with persons other than the accused, and it is offered on the issue of whether or not the accused was the source of the semen or injury, but only upon a determination that the probative value of such evidence outweighs the danger of unfair prejudice. Masui v. Am. Samoa Gov’t, AP No. 19-10 (App. Div. Jan. 16, 2013).

The Court can exclude unreliable child testimony and prevent a child witness from testifying at trial if it finds that the child is not competent to testify. Am. Samoa Gov’t v. Ioramo, CR No. 49-12 (Trial Div. Jan. 23, 2013)(order grant. def.'s mot. to suppress test.).

Where, in view of the totality of circumstances, the child witness’s responses were more the result of incessant questioning and coercive atmosphere, the child is neither competent nor reliable as a witness to testify. Am. Samoa Gov’t v. Ioramo, CR No. 49-12 (Trial Div. Jan. 23, 2013)(order grant. def.'s mot. to suppress test.).

Witnesses

There is no federal due process right to a pre-trial taint hearing to examine whether a child's interview was unduly suggestive, however, such hearings have been deemed necessary in other contexts. Am. Samoa Gov’t v. Ioramo, CR No. 49-12 (Trial Div. Jan. 23, 2013)(order grant. def.'s mot. to suppress test.).

It is the Court's decision to determine whether a child is competent to testify pursuant to T.C.R.Ev. Rule 104(a). Am. Samoa Gov’t v. Ioramo, CR No. 49-12 (Trial Div. Jan. 23, 2013)(order grant. def.'s mot. to suppress test.).

The decision regarding admissibility of a child's testimony rests primarily with the trial judge, who sees the proposed witness, notices his manner, and his apparent possession or lack of intelligence. Am. Samoa Gov’t v. Ioramo, CR No. 49-12 (Trial Div. Jan. 23, 2013)(order grant. def.'s mot. to suppress test.).

The Court can exclude unreliable child testimony and prevent a child witness from testifying at trial if it finds that the child is not competent to testify. Am. Samoa Gov’t v. Ioramo, CR No. 49-12 (Trial Div. Jan. 23, 2013)(order grant. def.'s mot. to suppress test.).

High Court of American Samoa Slip Opinions (2013)

Where, in view of the totality of circumstances, the child witness’s responses were more the result of incessant questioning and coercive atmosphere, the child is neither competent nor reliable as a witness to testify. Am. Samoa Gov’t v. Ioramo, CR No. 49-12 (Trial Div. Jan. 23, 2013)(order grant. def.'s mot. to suppress test.).

Opinions and Expert Testimony

The court is not required to credit the testimony of an expert with significant formal education over the opposing testimony of an expert with minimal education. The court is the finder of fact in a civil action and determines the credibility of expert witnesses. Notoa v. Am. Samoa Power Auth., CA No. 81-06 (Trial Div. Sep. 10, 2013).

Hearsay

Generally, hearsay is not admissible into evidence, but there are exceptions to this rule. Masui v. Am. Samoa Gov’t, AP No. 19-10 (App. Div. Jan. 16, 2013).

Statements made for medical treatment and describing medical history, past or present symptoms, or the inception or general character of the cause of symptoms are admissible. Masui v. Am. Samoa Gov’t, AP No. 19-10 (App. Div. Jan. 16, 2013).

Reports of acts, events, conditions, opinions or diagnoses may be admitted as evidence of those matters if the writing: (a) was made at or near the time of the acts, events, condition, opinions, or diagnoses recorded; (b) was made by, or from information transmitted by, a person with knowledge; (c) was kept in the course of regularly conducted activity; and (d) was made as the regular practice of that activity. Masui v. Am. Samoa Gov’t, AP No. 19-10 (App. Div. Jan. 16, 2013).

FAMILY LAW

Children & Minors

In 1980 the Legislature enacted the Juvenile Justice Act of 1980, (A.S.C.A. § 45.0101 et seq), which, inter alia, authorized, generally, court approved adoptions of minor children less than age 18, and with specific leave of the Court in appropriate cases, the adoption of young adults age 18 or over, but less than 21. In Re a Minor Child, FDAJR No. 40-12 and 58-12 (Fam. Drug & Alcohol Div. May 28, 2013).

Public Law 18-52 revised the Immigration Code, (A.S.C.A. § 41.0201 et seq), including A.S.C.A. § 41.0403, which entitled all persons who had been legally adopted by an American Samoan, with the entitlement to

High Court of American Samoa Slip Opinions (2013) apply for a permanent resident immigration status. In Re a Minor Child, FDAJR No. 40-12 and 58-12 (Fam. Drug & Alcohol Div. May 28, 2013).

By casting A.S.C.A. § 41.0403 (a)(2) in the past tense, the Legislature provided that (foreign national) individuals legally adopted by American Samoans in the past would be entitled to apply to the Attorney General for permanent residency status. For those children qualifying under A.S.C.A. § 41.0406, cast generally in the present tense, their immigration status would be that of an American Samoan, with the caveat that non-qualifying persons must apply to the Immigration Board for permission to remain in the Territory. In Re a Minor Child, FDAJR No. 40-12 and 58-12 (Fam. Drug & Alcohol Div. May 28, 2013).

In special circumstances, the Court had jurisdiction to review whether foreign adoptions of children born within the Territory were legally sufficient to support requests for local birth certificates to be amended to reflect such foreign decrees of adoption. In Re a Minor Child, FDAJR No. 40-12 and 58-12 (Fam. Drug & Alcohol Div. May 28, 2013).

IMMIGRATION

General Provisions

The Legislature has chosen to confer upon the Executive Branch of the American Samoa Government exclusive jurisdiction over the Immigration Code, subject to limited judicial review by the courts of specified administrative decisions or acts or omissions. In Re a Minor Child, FDAJR No. 40-12 and 58-12 (Fam. Drug & Alcohol Div. May 28, 2013).

In special circumstances, the Court had jurisdiction to review whether foreign adoptions of children born within the Territory were legally sufficient to support requests for local birth certificates to be amended to reflect such foreign decrees of adoption. In Re a Minor Child, FDAJR No. 40-12 and 58-12 (Fam. Drug & Alcohol Div. May 28, 2013).

Public Law 18-52 revised the Immigration Code, (A.S.C.A. § 41.0201 et seq), including A.S.C.A. § 41.0403, which entitled all persons who had been legally adopted by an American Samoan, with the entitlement to apply for a permanent resident immigration status. In Re a Minor Child, FDAJR No. 40-12 and 58-12 (Fam. Drug & Alcohol Div. May 28, 2013).

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LEGAL PROFESSION

The Office of Attorney

In cases where the Attorney General has a conflict of interest, recusal is required. Am. Samoa Gov’t v. Ripley, CR Nos. 117-09 & 119-09 (Trial Div. May 7, 2013)(order den. jt. mot. to dismiss).

Duty to Client

There is no conflict of interest where an attorney presently serving as the administrator of an estate and representing the estate and himself pro se previously represented a third party in an unsuccessful claim to a portion of land included in the estate that is the subject of the current litigation. Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09 (Land & Titles Div. July 19, 2013)(order grant. in pt. and den. in pt. parties’ several mots. for summ. j.)

Duty to Court

An attorney who fails to comply with a court order to produce discovery, of which he knew or should have known, amounts to obstructing the due administration of justice. This is a contemptible offense for which it is appropriate to sentence the offending attorney to personally pay a $500 fine and all costs for defending the motion to compel. Fa’asala v. O’Brien, CA No. 08-11 (Trial Div. Feb. 21, 2012) (order grant. def. mot. compel).

MATAI TITLE DISPUTES

Procedural Rules

A.S.C.A. § 43.0302(a)(2) requires OSA to serve the parties with notice of hearings at least 20 days prior to conducting such hearings. Leautu v. Nu`utai, AP No. 11-11 (App. Div. Aug. 7, 2013).

Under A.S.C.A. § 1.0406(b), any petition for matai registration must certify that a family meeting was called and held for the purpose of selecting a successor to the family’s matai title, according to the traditions of the family. Leautu v. Nu`utai, AP No. 11-11 (App. Div. Aug. 7, 2013).

A family meeting must have been held for the purpose of selecting a successor matai, according to the traditions of the family, prior to filing a claim to succeed to a vacant matai title. Accordingly, where a family has not met to consider the issue of matai succession, there is no

High Court of American Samoa Slip Opinions (2013) disputed claim before the High Court. Leautu v. Nu`utai, AP No. 11-11 (App. Div. Aug. 7, 2013).

The trial court lacked subject matter jurisdiction to determine a matai title controversy after the court had found that a proper family meeting had not taken place in the first instance on Tutuila. Leautu v. Nu`utai, AP No. 11-11 (App. Div. Aug. 7, 2013)

The appropriate action for the Land and Titles Division to undertake after determining the family meeting was improperly conducted is to dismiss the case without prejudice and to direct the Clerk of Courts to provide that Order to the Territorial Registrar so that all existing claims, counter-claims and objections to the title may be administratively set aside. Leautu v. Nu`utai, AP No. 11-11 (App. Div. Aug. 7, 2013).

For a period of 60 days immediately following the posting of notice of a claim to a vacant matai title, any interested person may file a counterclaim or objection. Ioapo v. Aviata, MT No. 02-02 (Land & Titles Div. Jan. 15, 2013)(order on mot. to intervene).

After the 60-day period during which an interested person may object or file a counterclaim to a matai title filing, the law does not permit a substitute candidate for the original objector under any circumstances, including death. Ioapo v. Aviata, MT No. 02-02 (Land & Titles Div. Jan. 15, 2013)(order on mot. to intervene).

A.S.C.A. § 1.0407(a) admits no exception to the substantive 60-day statutory limitations period, even on overriding considerations of equity or convenience. Ioapo v. Aviata, MT No. 02-02 (Land & Titles Div. Jan. 15, 2013)(order on mot. to intervene) . The Land and Titles Division's jurisdiction to determine a matai title dispute is footed on prior compliance with the requirements of A.S.C.A. § 43.0302. Amani v. Ta’amu, MT No. 01-12 (Land & Titles Div. Feb. 7, 2013).

Where failure to attend scheduled meetings at the Office of Samoan Affairs was willful and deliberate, the Court declined to assert jurisdiction over objector’s claim. Amani v. Ta’amu, MT No. 01-12 (Land & Titles Div. Feb. 7, 2013).

A.S.C.A. § 43.0302 requires a party to attend the prescribed meetings before such a party's succession claim is ripe for adjudication. Amani v. Ta’amu, MT No. 01-12 (Land & Titles Div. Feb. 7, 2013).

A party’s deliberate failure to attend scheduled meetings at the Office of Samoan Affairs is akin to deliberate default, where the standard of

High Court of American Samoa Slip Opinions (2013) natural justice and convenience demands that the non-defaulting party should eventually get his day in court. Amani v. Ta’amu, MT No. 01-12 (Land & Titles Div. Feb. 7, 2013).

A.S.C.A. § 43.0302 mandates that each party, individually, is responsible for attending the prescribed meetings. Amani v. Ta’amu, MT No. 01-12 (Land & Titles Div. Apr. 29, 2013)(order den. mot. for new trial).

One party’s dereliction with section 43.0302 requirements will not be held adversely against another party by unduly delaying the timely adjudication of the latter’s succession claim. Amani v. Ta’amu, MT No. 01-12 (Land & Titles Div. Apr. 29, 2013)(order den. mot. for new trial).

If a party deliberately opts to willfully ignore statutorily mandated conciliation proceedings, set forth in A.S.C.A. § 43.0302, that party's "default" prevents this Court from asserting jurisdiction over his or her claims. Amani v. Ta’amu, MT No. 01-12 (Land & Titles Div. Apr. 29, 2013)(order den. mot. for new trial).

Where one party deliberately refuses to comply with jurisdictional prerequisites, the court will only assert jurisdiction over the party- opponent’s claim, assuming that the party-opponent has complied with jurisdictional requirements. Amani v. Ta’amu, MT No. 01-12 (Land & Titles Div. Apr. 29, 2013)(order den. mot. for new trial).

Although the Court declined to assert jurisdiction over one party’s claims due to unsatisfied statutory prerequisites, the nature of the matter did not then evolve into an "undisputed," matter; the matter became unquestionably disputed when a counter-claim was filed with the Territorial Registrar and the section 43.0302 proceedings having been to no avail. Amani v. Ta’amu, MT No. 01-12 (Land & Titles Div. Apr. 29, 2013)(order den. mot. for new trial).

Notwithstanding the fact that only one party’s succession claim was ripe for adjudication, that party still had to meet his burden to prove that he is not only eligible, A.S.C.A. § 1.0404, but also qualified, A.S.C.A. § 1.0409, to hold the important office of matai. Amani v. Ta’amu, MT No. 01-12 (Land & Titles Div. Apr. 29, 2013)(order den. mot. for new trial).

The Land and Titles Division lacks jurisdiction to adjudicate a successor matai controversy unless the family meaningfully meets, adequately noticed with all family members having opportunity to be heard, to select the successor titleholder before any claims to register the title are filed with the Territorial Registrar. Alai’asa v. Fa’aolataga, MT No. 06- 12 (Land & Titles Div. Sep. 9, 2013)(order dismiss. action for lack of juris. without prej.).

High Court of American Samoa Slip Opinions (2013)

The court has jurisdiction over a matai title controversy where the family has " had a meaningful opportunity to select a matai successor, two series of A.S.C.A. § 43.0302 hearings presided by a disinterested Deputy Secretary of Samoan Affairs were undertaken by the parties, a "disputed claim," A.S.C.A. § 1.0409, is presented. Ioapo v. Aviata, MT No. 02-02 (Land & Titles Div. Oct. 16, 2013).

Traditional Determination of Matai

A family’s day-to-day interaction can result in the evolution of distinct sub-clans. Amani v. Ta’amu, MT No. 01-12 (Land & Titles Div. Feb. 7, 2013).

The suggestion of two co-titleholders runs afoul of the law and if implemented, would not only impact the dignity and prestige of the title, but also promote unnecessary divisiveness that necessarily comes with duel (or dueling) leadership. Amani v. Ta’amu, MT No. 01-12 (Land & Titles Div. Feb. 7, 2013).

The Land and Titles Division lacks jurisdiction to adjudicate a successor matai controversy unless the family meaningfully meets, adequately noticed with all family members having opportunity to be heard, to select the successor titleholder before any claims to register the title are filed with the Territorial Registrar. Alai’asa v. Fa’aolataga, MT No. 06- 12 (Land & Titles Div. Sep. 9, 2013) (order dismiss. action for lack of juris. without prej.).

Statutory Qualifications for Title

A variant of the Sotoa rule, which adopts as the heredity yardstick the closest relationship to the parties' nearest common ancestor, is only viable under certain factual scenarios where all of the candidates are closely related. Iuli v. Poloa, MT No. 02-12 (Land & Titles Div. May 7, 2013).

The remoteness of ancestry evident with party pedigree does not lend itself to tenable assessment under the traditional rule. Iuli v. Poloa, MT No. 02-12 (Land & Titles Div. May 7, 2013).

When measuring blood right, the court will rely on ascertainable evidence rather than myth and family lore. Iuli v. Poloa, MT No. 02-12 (Land & Titles Div. May 7, 2013).

Under A.S.C.A. § 1.0403., a matai candidate must be more than one-half Samoan blood, born in American Samoa, satisfy the prescribed residency requirements, enjoy the support of his or her family for the title, and live

High Court of American Samoa Slip Opinions (2013) with Samoans as a Samoan. Ioapo v. Aviata, MT No. 02-02 (Land & Titles Div. Oct. 16, 2013).

REAL PROPERTY

Communal Lands

Under current law, the Governor is under no obligation to absolutely bar the conveyance of land in circumstances where the matai has not consulted with family members prior to the conveyance of communal land. Wall v. Governor, AP No. 09-08 (App. Div. Jan. 18, 2013).

The Governor has historically exercised broad discretionary powers over regulating the leasing of, or alienation of title to, communal lands within the Territory, as well as the limits upon judicial review of his discretionary powers. Ava v. Corp. of Presiding Bishop, AP No. 10-11 (App. Div. Aug. 5, 2013).

Evidence that a person or family exercised any acts of authority over land is an indication that it may be communal land. Loloaso v. Satala Land Trust., LT No. 9-11 (Land & Titles Div. Feb. 1, 2013).

In the context of Samoan culture where many Samoan families allow other families to live on their land, hostility must be shown by evidence of acts unequivocally inconsistent with the owner’s claim of title. Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09 (Land & Titles Div. Oct. 29, 2013)(order den. def’s. mot. for recon.).

Individually Owned Land

Undeveloped bushland is the antithesis of "individually-owned" land, as that notion was interstitially developed by caselaw. Am. Samoa Gov’t v. Avamua, LT No. 10-08 (Land & Titles Div. May 1, 2013).

Where there was clear evidence that the disputed area was indeed a rainforest, the defendant’s individual land ownership claim was simply not sustainable on the facts. Am. Samoa Gov’t v. Avamua, LT No. 10-08 (Land & Titles Div. May 1, 2013).

An individual cannot obtain title to lands as his or her individually- owned land simply by registering title with the Territorial Registrar. Am. Samoa Gov’t v. Avamua, LT No. 10-08 (Land & Titles Div. May 1, 2013).

High Court of American Samoa Slip Opinions (2013)

It is the initial occupation of virgin bush land and continued and effective use thereof which gives rise to individual title as a matter of law, NOT registration. Am. Samoa Gov’t v. Avamua, LT No. 10-08 (Land & Titles Div. May 1, 2013).

The registration statute, A.S.C.A. §§ 37.0101 et seq., does not create individually-owned title to land. Am. Samoa Gov’t v. Avamua, LT No. 10-08 (Land & Titles Div. May 1, 2013).

Where defendant’s predecessor had not obtained lawful individually- owned title to a primary forest, no individual title rights could be acquired by defendants in the land at issue. Am. Samoa Gov’t v. Avamua, LT No. 10-08 (Land & Titles Div. May 1, 2013).

Since the enactment of the American Samoa Coastal Management Act of 1990, A.S.C.A. §§ 24.0501-0510, there can be no more willy-nilly self help to bush land on the Islands of American Samoa, its foreshore and attendant seabed areas. Am. Samoa Gov’t v. Avamua, LT No. 10-08 (Land & Titles Div. May 1, 2013).

Any attempts by individuals to acquire bush land through initial clearing, cultivation and occupation, shall be subject to prior compliance with the provisions of the ASCMA. Am. Samoa Gov’t v. Avamua, LT No. 10-08 (Land & Titles Div. May 1, 2013).

Evidence of Ownership

Evidence that a person or family exercised any acts of authority over land is an indication that it may be communal land. Loloaso v. Satala Land Trust., LT No. 9-11 (Land & Titles Div. Feb. 1, 2013).

Undeveloped bushland is the antithesis of "individually-owned" land, as that notion was interstitially developed by caselaw. Am. Samoa Gov’t v. Avamua, LT No. 10-08 (Land & Titles Div. May 1, 2013).

Where there was clear evidence that the disputed area was indeed a rainforest, the defendant’s individual land ownership claim was simply not sustainable on the facts. Am. Samoa Gov’t v. Avamua, LT No. 10-08 (Land & Titles Div. May 1, 2013).

An individual cannot obtain title to lands as his or her individually- owned land simply by registering title with the Territorial Registrar. Am. Samoa Gov’t v. Avamua, LT No. 10-08 (Land & Titles Div. May 1, 2013).

It is the initial occupation of virgin bush land and continued and effective use thereof which gives rise to individual title as a matter of

High Court of American Samoa Slip Opinions (2013) law, NOT registration. Am. Samoa Gov’t v. Avamua, LT No. 10-08 (Land & Titles Div. May 1, 2013).

The registration statute, A.S.C.A. §§ 37.0101 et seq., does not create individually-owned title to land. Am. Samoa Gov’t v. Avamua, LT No. 10-08 (Land & Titles Div. May 1, 2013).

Where defendant’s predecessor had not obtained lawful individually- owned title to a primary forest, no individual title rights could be acquired by defendants in the land at issue. Am. Samoa Gov’t v. Avamua, LT No. 10-08 (Land & Titles Div. May 1, 2013).

Since the enactment of the American Samoa Coastal Management Act of 1990, A.S.C.A. §§ 24.0501-0510, there can be no more willy-nilly self help to bush land on the Islands of American Samoa, its foreshore and attendant seabed areas. Am. Samoa Gov’t v. Avamua, LT No. 10-08 (Land & Titles Div. May 1, 2013).

Any attempts by individuals to acquire bush land through initial clearing, cultivation and occupation, shall be subject to prior compliance with the provisions of the ASCMA. Am. Samoa Gov’t v. Avamua, LT No. 10-08 (Land & Titles Div. May 1, 2013).

Samoans acquire ownership rights to native bush land through continuous use and occupation and not by simply reducing the native jungle to metes and bounds and then securing a title registration thereto. Am. Samoa Gov’t v. Avamua, LT No. 10-08 (Land & Titles Div. July 22, 2013)(order on mot. for new trial).

Adverse Possession

The defendant failed to prove adverse possession where the plaintiff consented to the his occupancy of the land, he had not met the 30 year statutory possession period, and he could not avail himself of tacking because he was not related to the individual who deeded him the subject land. Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09 (Land & Titles Div. July 19, 2013)(order grant. in pt. and den. in pt. parties’ several mots. for summ. j.).

A land owner may defeat a claim of adverse possession by demonstrating that the occupation was permissive and therefore not hostile. Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09 (Land & Titles Div. Oct. 29, 2013)(order den. def’s. mot. for recon.).

In the context of Samoan culture where many Samoan families allow other families to live on their land, hostility must be shown by evidence of acts unequivocally inconsistent with the owner’s claim of title. Estate

High Court of American Samoa Slip Opinions (2013) of Lefaga Beaver v. Territorial Registrar, LT No. 02-09 (Land & Titles Div. Oct. 29, 2013)(order den. def’s. mot. for recon.)

Tacking allows a claimant to establish title by adverse possession by combining periods of possession from successive occupants who maintain the requisite privity of estate. Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09 (Land & Titles Div. Oct. 29, 2013)(order den. def’s. mot. for recon.).

While tacking may be established through a transfer between consanguineous possessors, it is also available to any individual who can establish the appropriate privity with a predecessor in interest. Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09 (Land & Titles Div. Oct. 29, 2013)(order den. def’s. mot. for recon.).

In order to meet the statutory possession period through tacking, an adverse possessor must show the requisite privity with a predecessor in interest as well as a valid land conveyance between the predecessor in interest and the adverse possessor. Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09 (Land & Titles Div. Oct. 29, 2013)(order den. def’s. mot. for recon.)

Quieting Title

Where a defendant warranted to subsequent purchasers of parcels of his land that he had the authority and right to sell those parcels, he is required to defend the subsequent purchasers title against all other claims to their parcels and is required to indemnify the subsequent purchasers for any costs they incur defending the action. Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09 (Land & Titles Div. July 19, 2013)(order grant. in pt. and den. in pt. parties’ several mots. for summ. j.).

Alienation of Land

The High Court’s approval of a land transfer creates a presumption that the transfer was valid and proper. Loloaso v. Satala Land Trust., LT No. 9-11 (Land & Titles Div. Feb. 1, 2013).

Where a defendant warranted to subsequent purchasers of parcels of his land that he had the authority and right to sell those parcels, he is required to defend the subsequent purchasers title against all other claims to their parcels and is required to indemnify the subsequent purchasers for any costs they incur defending the action. Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09 (Land & Titles Div. July 19, 2013)(order grant. in pt. and den. in pt. parties’ several mots. for summ. j.).

High Court of American Samoa Slip Opinions (2013)

A contract for the sale of real property may be recognized if there has been partial performance. The court may compel specific performance of a partially performed, unwritten agreement. In re Estate of Ah Hing, LT Nos. 21-11 & 22-11 (Land & Titles Div. July 22, 2013).

Under Public Law 26-6, which amended A.S.C.A. § 37.0201(c) to define a native as a full-blooded Samoan person from Tutuila, Manu’a, Aunu’u, or Swains Island, it became prohibited to sell any lands other than freehold land to a person with less than one-half native blood. In re Estate of Ah Hing, LT Nos. 21-11 & 22-11 (Land & Titles Div. July 22, 2013).

Registration of Land

Where there is compelling evidence that someone has procured a registration of land in individual ownership on the basis of an outright misrepresentation of fact, namely, that the subject land had been cleared, cultivated, and occupied, the Court cannot assume that the Territorial Registrar recorded title only after complying with its obligations under the law. Am. Samoa Gov’t v. Avamua, LT No. 10-08 (Land & Titles Div. May 1, 2013).

Once title to land is registered, there is a prohibition against further registrations according to a policy favoring finality in title registrations that have been properly completed. A landowner cannot register title to land which has been previously registered. A.S.C.A. § 37.0101(a). Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09 (Land & Titles Div. July 19, 2013)(order grant. in pt. and den. in pt. parties’ several mots. for summ. j.).

The tripartite structure of land registration and recordation includes Torrens registration for previously unregistered lands, a deed recording system typical of many U.S. jurisdictions, and provisions specific to Samoan customs and communal land ownership. Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09 (Land & Titles Div. Oct. 29, 2013)(order den. def’s. mot. for recon.).

For the first registration of previously unregistered lands, A.S.C.A. §§ 37.0101-0120 provides the local Torrens registration procedures. As to already registered parcels, A.S.C.A. §§ 37.0201-.0230 addresses the alienation of land and recordation of deeds. Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09 (Land & Titles Div. Oct. 29, 2013)(order den. def’s. mot. for recon.).

While A.S.C.A § 37.0101-.0120 acts as a form of estoppel on any attempt to register already registered land, A.S.C.A. §§ 37.0201-.0230

High Court of American Samoa Slip Opinions (2013) ensures a party who properly records a deed will prevail on the merits against adverse claimants. Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09 (Land & Titles Div. Oct. 29, 2013)(order den. def’s. mot. for recon.).

The 60-day public notice provisions and other safeguards outlined in §§ 37.0101-.0120 ensure that any party with an interest in the land has sufficient time to object to the pending registration. A registrant’s compliance with this procedure grants the record owner title that is good against the world and precludes any subsequent attempt to register the same land. Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02- 09 (Land & Titles Div. Oct. 29, 2013)(order den. def’s. mot. for recon.).

Once land is registered, good title may only be acquired from the record owner by deed or adverse possession. Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09 (Land & Titles Div. Oct. 29, 2013)(order den. def’s. mot. for recon.).

Recording a deed cannot affect preexisting interests of those not signatories to or otherwise bound by the instrument itself. Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09 (Land & Titles Div. Oct. 29, 2013)(order den. def’s. mot. for recon.).

In part because a later recorded deed cannot affect preexisting interests, §§ 37.0201-0230 does not provide for a public notice period. Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09 (Land & Titles Div. Oct. 29, 2013)(order den. def’s. mot. for recon.).

Property Torts

A person or entity is liable for trespass if he intentionally enters land in the possession of another, remains on the land, or fails to remove something from the land which he is under a duty to remove. Kepaoa Dev. Corp. v. Stevensons Trucking, Inc., CA No. 18-09 (Trail Div. Mar. 20, 2013) (order grant. def.’s mot. for summ. j.).

Consent is a defense to the tort of trespass. Kepaoa Dev. Corp. v. Stevensons Trucking, Inc., CA No. 18-09 (Trail Div. Mar. 20, 2013) (order grant. def.’s mot. for summ. j.).

Equitable Claims

A.S.C.A. § 43.0303 (concerning the court’s ability to rescind an order) applies to orders prior to a proceeding, such as when the Court believes that there is a dispute that is likely to become the subject of proceedings in the Land and Titles Division and issues an order preventing a party from remaining in possession of land. Atofa’i v. Fau, LT No. 35-81

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(Land & Titles Div. July 23, 2013)(order den. pl.’s mot. to rescind and dismiss and defer ruling, and on def.’s mot. to den. just comp.).

Landlord-Tenant

Before proceeding to the damages phase of a trial, the plaintiff must first establish liability on the defendant’s part. Pago Pago Yacht Club v. Am. Samoa Gov’t, AP No. 04-12 (App. Div. Apr. 24, 2013).

SAMOAN CUSTOMS

Family Law

A family’s day-to-day interaction can result in the evolution of distinct sub-clans. Amani v. Ta’amu, MT No. 01-12 (Land & Titles Div. Feb. 7, 2013).

Village Councils

The village council of Fagamalo is only one constituent of the Tapuaiga. Fagamalo is not the Tapuaiga. Faletogo v. Pese, CA No. 54-12 (Trial Div. Jan. 29, 2013).

A meeting between Fagamalo matai and select matai and lower ranking matai of the Samatua does not constitute an election by the Lealataua County Council in accordance with Art. 11, Sec. 4 of the Revised Constitution of American Samoa. Faletogo v. Pese, CA No. 54-12 (Trial Div. Jan. 29, 2013).

Property Rights

In the context of Samoan culture where many Samoan families allow other families to live on their land, hostility must be shown by evidence of acts unequivocally inconsistent with the owner’s claim of title. Estate of Lefaga Beaver v. Territorial Registrar, LT No. 02-09 (Land & Titles Div. Oct. 29, 2013)(order den. def’s. mot. for recon.).

TAXATION

Procedural Issues

The High Court has exclusive original jurisdiction over all judicial proceedings in American Samoa with respect to the American Samoa Income Tax. Brunt v. Am. Samoa Gov’t, CA No. 107-07 (Trial Div. Feb. 1, 2013).

High Court of American Samoa Slip Opinions (2013)

The court’s jurisdiction properly attaches when a notice of deficiency is mailed to the taxpayer, and the taxpayer files an action contesting the deficiency within 90 days. Brunt v. Am. Samoa Gov’t, CA No. 107-07 (Trial Div. Feb. 1, 2013).

The statute of limitations for assessment of any additional income taxes, penalties, or interest is three years after the tax return is filed. Brunt v. Am. Samoa Gov’t, CA No. 107-07 (Trial Div. Feb. 1, 2013).

Specific Taxes

Under A.S.C.A § 27.1043, upon discovery that imported goods have been received or sold without the proper excise tax having been paid, the customs division may impose back taxes, penalties and interest upon such goods. Tamaseu Distrib. v. Am. Samoa Gov’t,, AP No. 03-12 (App. Div. Aug. 22, 2013).

Under A.S.C.A § 27.1045, if a consignee of imported goods owes any delinquent excise taxes, fees, or penalties, the chief customs officer may refuse to release any goods to the consignee until the delinquent account is settled. Tamaseu Distrib. v. Am. Samoa Gov’t,, AP No. 03-12 (App. Div. Aug. 22, 2013).

Customs officers enforce the statutes prohibiting the import or export of contraband, undeclared merchandise, or falsely declared merchandise. Tamaseu Distrib. v. Am. Samoa Gov’t,, AP No. 03-12 (App. Div. Aug. 22, 2013).

Deficiency Proceedings

The court’s jurisdiction properly attaches when a notice of deficiency is mailed to the taxpayer, and the taxpayer files an action contesting the deficiency within 90 days. Brunt v. Am. Samoa Gov’t, CA No. 107-07 (Trial Div. Feb. 1, 2013).

If it is determined that there is a deficiency with respect to any tax liability, a notice of deficiency may be sent to the taxpayer. Brunt v. Am. Samoa Gov’t, CA No. 107-07 (Trial Div. Feb. 1, 2013).

A notice of deficiency regarding any tax liability sent to the taxpayer’s last known address is sufficient. Brunt v. Am. Samoa Gov’t, CA No. 107-07 (Trial Div. Feb. 1, 2013).

If a taxpayer produces credible evidence with respect to any factual issue relevant to their tax liability, the burden shifts to ASG with respect to such issue. Brunt v. Am. Samoa Gov’t, CA No. 107-07 (Trial Div. Feb. 1, 2013).

High Court of American Samoa Slip Opinions (2013)

The burden of proof shifting with respect to factual issues relevant to tax liability only applies when (1) the taxpayer has complied with the requirements to substantiate any item, (2) the taxpayer has maintained all records required under this title and has cooperated with reasonable requests for information, and (3) in case of partnerships, corporations, or trusts, further special requirements are met. Brunt v. Am. Samoa Gov’t, CA No. 107-07 (Trial Div. Feb. 1, 2013).

TORTS

Negligence

The doctrine of res ipsa loquitur applies when an accident’s nature is such that past experience has shown that it probably resulted from someone’s negligence and that the defendant is probably responsible. Pulu v. Nat’l Pac. Ins. Co., Ltd., CA No. 27-11 (Trial Div. May 10, 2013).

Res ipsa loquitur is applicable when (1) the event is of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it was caused by an agency or instrumentality within the exclusive control of the defendant; (3) it was not due to any voluntary action or contribution on the part of the plaintiff. Pulu v. Nat’l Pac. Ins. Co., Ltd., CA No. 27-11 (Trial Div. May 10, 2013).

The doctrine of res ipsa loquitur, when applicable, merely establishes a permissive inference of negligence which the fact finder is not required to adopt. Pulu v. Nat’l Pac. Ins. Co., Ltd., CA No. 27-11 (Trial Div. May 10, 2013).

Destruction of property by fire generally does not raise the presumption of negligence for res ipsa loquitur purposes, either in the management of the fire or in the alleged kindling. Pulu v. Nat’l Pac. Ins. Co., Ltd., CA No. 27-11 (Trial Div. May 10, 2013).

The doctrine of res ipsa loquitur applies when an accident’s nature is such that past experience has shown that it probably resulted from someone’s negligence and that the defendant is probably responsible. Pulu v. Nat’l Pac. Ins. Co., Ltd., CA No. 27-11 (Trial Div. May 10, 2013).

Damages

Under the collateral source rule if an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages

High Court of American Samoa Slip Opinions (2013) which the plaintiff would otherwise collect from the tortfeasor. Leota v. Dawn, CA No. 16-12 (Trial Div. Jan. 2, 2013) (order on pl.’s mot. for protective order).

The collateral source rule has been applicable in virtually all tort cases, including admiralty cases. Federal admiralty law also makes clear that the ship owner is required to pay for health care expenses related to the injury in addition to maintenance and cure. Leota v. Dawn, CA No. 16- 12 (Trial Div. Jan. 2, 2013) (order on pl.’s mot. for protective order).

Punitive damages may be appropriate where malicious comments damaged the dignity of the individual pursuant to a violation of Article I, Section Four of the American Samoa Constitution. Ala’ilima, et al. v. Am. Samoa Gov’t, et al., CA No. 22-09 (Trial Div. Aug. 15, 2013).

Intentional Torts

Defamation requires: (1) a false and defamatory statement concerning the plaintiff; (2) that is unprivileged; (3) made to a third party; (4) with fault amounting to at least negligence by the publisher; (5) and actionability of the statement irrespective of special harm or because of the existence of special harm caused by publication. Ala’ilima, et al. v. Am. Samoa Gov’t, et al., CA No. 22-09 (Trial Div. Aug. 15, 2013).

Slander is a false and unprivileged publication, other than libel, that a person is charged with a crime or has been indicted, convicted or punished for a crime, which tends to injure him in respect to his profession or causes actual damage. Ala’ilima, et al. v. Am. Samoa Gov’t, et al., CA No. 22-09 (Trial Div. Aug. 15, 2013).

As concerns slander and defamation, a communication made in the proper discharge of an official duty is considered to be a privileged publication. Ala’ilima, et al. v. Am. Samoa Gov’t, et al., CA No. 22-09 (Trial Div. Aug. 15, 2013).

Comments to a newspaper that could be interpreted as blaming a single individual for American Samoa’s financial problems constituted an opinion that was not meant to be taken seriously and were therefore not slanderous. The average person would not believe the comments. Ala’ilima, et al. v. Am. Samoa Gov’t, et al., CA No. 22-09 (Trial Div. Aug. 15, 2013).

Comments that were not defamatory but were nonetheless malicious and damaged the plaintiffs dignity as an individual – as evidenced by his subsequent failure to secure employment – Article I, Section Four of the American Samoa Constitution. Ala’ilima, et al. v. Am. Samoa Gov’t, et al., CA No. 22-09 (Trial Div. Aug. 15, 2013).

High Court of American Samoa Slip Opinions (2013)

Government Tort Liability Act

The Government Tort Liability Act (―GTLA‖) only provides for limited waiver of immunity, and specifically preserves immunity in several instances where a governmental employee acts without due care. Therefore, where an ASG employee was liable for a violation of Article I, Section Four of the American Samoa Constitution, for damaging comments made about the plaintiff, ASG was not liable for the employee’s actions under GTLA. Ala’ilima, et al. v. Am. Samoa Gov’t, et al., CA No. 22-09 (Trial Div. Aug. 15, 2013).

WILLS , TRUSTS, AND ESTATES

Individually Owned Property

Real property in an estate may be sold, but only with the written approval of the High Court. In re Estate of Ah Hing, LT No. 21-11, 22- 11 (App. Div. July 22, 2013) (op. and order).

WORKER'S COMPENSATION

Commission Procedure

Under the first of three steps to remove a career service employee for cause: An employee is notified of the specific charges against him and the recommended action (A.S.C.A. § 7.0803; A.S.A.C. §§ 4.0801-0802); The employee has three days to respond (A.S.A.C. § 4.0802); The agency gives written notice to the employee of its proposed action (A.S.A.C. § 4.0802); Then, the director of the department may send a written recommendation for removal along with supportive evidence to the Director of the Department of Human Resources (A.S.C.A. § 7.0803). Segi v. Am.Samoa Gov’t, AP No. 07-12 (App. Div. Aug. 22, 2013).

Under the second and third of three steps to remove a career service employee for cause, the Director of the Department of Human Resources reviews the request submitted by the department head for reasonableness. If approved, the Director of the Department of Human Resources notifies the employee in writing of the charges, that he will be removed from the career service in 30 days, and that he may request a hearing before the Personnel Advisory Board within 10 days. Segi v. Am.Samoa Gov’t, AP No. 07-12 (App. Div. Aug. 22, 2013).

High Court of American Samoa Slip Opinions (2013)