TE`O
v.
DISTRICT
COURT OF
High Court of
Appellate Division
Before KRUSE, Chief
Justice, RICHMOND, Associate Justice, LOGOAI, Associate Judge, and ATIULAGI,
Associate Judge.
Counsel: For
Petitioner, Arthur Ripley, Jr.
For
Respondent, Elvis R.P. Patea, Deputy Attorney General
[1] A petition for
rehearing must specify with particularity the points of law or fact which in
the opinion of the petitioner the court has overlooked or misapprehended.
[2] The court may deny a
petition for rehearing where the grounds for said petition are new arguments,
raised only for the first time on review.
[3] The mere fact that a
Justice presides over a similar matter involving the same party, does not in
itself create bias or prejudice against the litigant.
[4] Where party had every opportunity to raise
due process argument at initial hearing, his failure to do so then constituted
lack of diligence, and such was proper grounds for denying petition when
argument later raised.
ORDER DENYING PETITION
FOR REHEARING
On
Standard of Review
[1] Under A.C.R. 40, a
petition for rehearing must contain “with particularity the points of law or
fact which in the opinion of the petitioner the court has overlooked or
misapprehended.” The function of a
rehearing is to correct errors of law or fact, leading to material errors. Fanene v. Fanene, 20 A.S.R.2d 115, 116 (
Discussion
Te`o moves for a rehearing on
two grounds: 1) the Chief Justice should have recused
himself from the hearing due to bias and prejudice and 2) Te`o’s
due process rights were violated by imposing a 30-day time limit.
[2] Both arguments are
new arguments, raised for the first time in Te`o’s
petition for rehearing. On this ground
alone, the court may deny Te`o’s petition. See
[3] During December
1997, the Chief Justice presided in another contempt proceeding involving Te`o before the High Court, in an entirely separate matter,
involving an entirely different set of factual circumstances. This very act, contends Te`o,
creates an appearance that the Chief Justice harbors personal animosity against
Te`o. The mere
fact that a Justice presides over a similar matter involving the same party,
however, does not in itself create some sort of bias or prejudice towards a
litigant.
Te`o next contends that the
appellate court erred in imposing a 30-day time limit. By imposing a 30-day time limit, Te`o claims that his due process rights were violated by
the imposition of a retroactively applied 30-day time limit. In support of this argument, Te`o applies the statute of limitations doctrine by
analogy. Te`o
also asserts that Te`o has a right to [2ASR3d58] petition for a writ of
certiorari.
Te`o is only correct in the
contention that Te`o has a right to petition for a
writ of certiorari. This court, however,
acknowledged that the right to petition for a writ of certiorari must be
exercised within a reasonable time. Te`o v. Dist. Court of Am. Samoa, 2
A.S.R.3d 41, 42 (App. Div. Oct. 15, 1998). The court applied by analogy the period for
filing an appeal under the Administrative Procedures Act because the scope of
review is similar. Both review under a
writ of certiorari and review of an administrative hearing are limited to
whether a judicial body acted within the scope of its authority.
[4] Te`o, notably, does not contend that the court committed an
error of law or fact by applying the 30-day time limit. Rather, Te`o again
puts forth a new issue that was not presented in its initial brief. “Issues that were not presented in the
initial briefs and argument will seldom be considered when presented for the
first time by a petition for rehearing.”
16 C. Wright & A. Miller, Federal Practice [AND] Procedure § 3986 (1st ed. 1977 &
Supp. 1996). Te`o
had every opportunity to espouse his due process argument at the initial
hearing. His lack of diligence in
raising this argument is not grounds for a rehearing.
Order
Te`o’s failure to raise
arguments at the appropriate time warrants denial of his motion for
rehearing. Therefore, Te`o’s petition for rehearing is denied.
It
is so Ordered.
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