SAUNOA S. VAOULI, Appellant,
v.
SUAFA`I P. SATELE, Appellee.
High
Court of
Appellate
Division
AP No. 09-97
(MT No. 08-90)
[1] Under A.S.C.A. 8 3.0242, proceedings before the
land and titles division of the High Court are specifically exempted from the
rules of civil procedure, and that division is specifically authorized to act
in each case in such a manner as it considers to be most consistent with
natural justice and convenience.
[2] In a matai title case all candidates must first comply with the
statutory requirements of A.S.C.A. §8 1.0401- .0414, which include the filing
of a petition signed by at least 25 blood members of the title claimed.
[3] There is no clear legislative intent to preclude otherwise
qualified candidates from participating in the retrial of a matai title
controversy. [3ASRd4]
[4] Absent special circumstances, the general rule is that a judge who
presided at the trial of a case which was reversed and remanded on appeal is
not automatically disqualified to retry the case.
[5] This Territory has no statutory or constitutional
prohibitions against the same judges retrying cases and controversies upon
remand from the appellate division.
[6] The statutory scheme for resolving a matai title
controversy does not indicate any other legal option for resolving a matai
title controversy.
[7] Under Article III of the Revised Constitution of
American Samoa (R.C.A.S.) judicial power is vested in the High Court, District
Court and other courts established by law as an independent branch of
government, with the Chief Justice and Associate Justices appointed by the U.S.
Secretary of the Interior.
[8] A.S.C.A. §§ 83.0101-.0103 provides for the administration
of the independent judicial branch by the Chief Justice, and specifies
generally the jurisdiction of the courts.
[9] Under A.S.C.A. § 3.0208(b), the land and titles division has
exclusive jurisdiction over all matters relating to matai titles and land, and
provides that in matai cases the controversy is heard by one justice and four
associate judges.
[10] Under A.S.C.A. § 3.0240, appeals from the land and titles
division, unlike other appeals, afford the associate judges equal voice in such
appellate decisions.
[11] Under A.S.C.A. § 3.1006, in
the event of inadequate numbers of associate judges to sit at trial or on
appeal, the Chief Justice may appoint temporary associate judges from a panel
of persons recommended by the Chief Justice, found qualified by the Governor,
and confirmed by the Senate.
[12] Under A.S.C.A. § 3.1007, no
judge or justice may sit on the appellate division and determine an appeal from
a decision in which that judge or justice made or joined in at the trial court.
[13] The Legislature having
carefully constructed a statutory scheme for associate judges to decide matai
title controversies, and for the exclusive means of such judges’
recommendation, appointment, and confirmation, there is no legal basis for the
contention that the U.S. Secretary of the Interior could appoint an entirely
new panel. [3ASR3d5]
[14] Because the Revised
Constitution of American Samoa authorizes the Secretary of the Interior to
appoint the Chief Justice and such Associate Justices as necessary under
R.C.A.S. Art. III Sec. 3, and, under 48 U.S.C. 1662(a) (1983), Congress has
prohibited any amendments to or modifications of the R.C.A.S. except by Act of
Congress, it appears clear that the Secretary of the Interior’s judicial
appointment powers extend only to the Chief Justice and Associate Justice(s);
and to judicially extend that power of appointment to include associate judges,
whose role in matai title controversies is to hear and decide matters
pertaining to the Samoan culture, appears neither prudent nor legally possible
without the prior consent of Congress.
[15] Under A.S.C.A. § 3.1007, a judge has a duty not
to recuse himself unless there is a need to do so is, and this duty is not
overridden where the alleged family ties of the judge are too tenuous, and
where no circumstances indicate that the judge’s family members have a personal
or financial interest in the outcome of the case. Alleged relationships which
are too distant to support even an inference of the appearance of impartiality
include a half-sister who is related to an extended family to which a party
belongs, and a wife who may be a first cousin by marriage to a party’s
step-father.
[16] The
ancient common law Rule of Necessity which requires the adjudication of a
controversy by a judge who is, by statute, canon, or other direct interest,
disqualified from hearing that matter when no provision is made for calling in
another judge or no other judge can take the disqualified judge’s place need
not be applied where it is determined that judges who participate in a retrial
were not, ipso facto, disqualified from sitting because of their
participation in the first trial.
[17] Under
A.S.C.A. § 43.0801(b), the court is prohibited from setting aside findings of
fact by the land and titles division unless such findings are clearly
erroneous.
[18] Under
A.S.C.A. § 1.0409 and § 3.0221, by prescribing what the trial court is to
determine in matai title controversies and the priority of the considerations,
and by prohibiting any justice of the High Court from participating in the
ultimate decision of the four-member associate judge panel unless to break a
tie, the Legislature has strongly indicated that in the absence of an
uncontested family consensus as to who should succeed to a vacant matai title,
the next best selectors of the successor are associate judges, who historically
have been ranking titleholders within their own extended families.
[19] To insure that culturally experienced jurists
also fairly participate at the appellate level, the Legislature has provided
that associate judges sitting in the appellate division on appeals from the
land and titles [3ASR3d6] division
have equal decision-making power with the justices assigned to that case.
[20] The carefully developed statutory plan for
deciding matai title controversies is unique and indicates clear legislative
intent to insulate such trials from the strict application of arguably
inapposite judicial rules, practices, and procedures applicable to nearly all
other civil controversies within the jurisdiction of the High Court.
[21] The statutory selection process for a successor
in matai title cases is an alternative to the preferred historical selection
process in which the extended family meets and, by consensus, selects a
successor based upon that family’s particular traditions and practices, and in
order to preserve the broad discretion afforded by statute to the associate
judges to determine the best qualified successor to a matai title, the court
must resist the imposition of broad invariable rules of preference for certain
individual attributes of the candidates.
[22]
Although some matai title controversies have been resolved in favor of the
candidate possessing the higher degree of formal education or the greatest
disposable income or personal wealth, such cases cannot be interpreted to
invariably require the land and titles division to hold that such attributes
always outweigh the accomplishments of other candidates, and to establish such
broad rules of law would at once frustrate the broad grant of discretion given
by the Legislature to the trial court in matai title cases and unduly encroach
upon the specific, constitutional powers of the Legislature to preserve and
protect the Samoan way of life.
[23] That a paramount chief breaks the law by
bestowing an unregistered matai title within his family does not legally excuse
the person using that prohibited title from the application of A.S.C.A. §
1.0414 which makes certain conduct in the use of such a title a misdemeanor.
[24] A prior criminal conviction, especially an
infamous one or one involving moral turpitude, would likely prove fatal to a
candidate’s favorable assessment as to character, but prior statutes which
automatically disqualified certain convicted felons from registering matai
titles have been repealed and not reenacted, and this statutory history must be
construed as reflecting the Legislature’s intent to allow the panel of
associate judges in matai title cases broad discretion to weigh all attributes—both
positive and negative—in evaluating each candidate’s character. [3ASR3d7]
Before
Counsel: For Appellant, Gata E. Gurr
For Appellee,
Asaua Fuimaono
OPINION
Because of illness, death, and perhaps, sheer fatigue,
the field of candidates presently before this court is much smaller than that
in 1994 when we last reviewed this controversy over the selection of a
successor to the Faumuina title. After being remanded for retrial by the land
and titles division in 1994, the matter proceeded to trial during
Discussion
A. Motion to Dismiss
Candidate Fautua
[1] Appellant Saunoa contends that because Fautua failed
to join in the appeal of the trial court’s 1992 decision, he should have been
dismissed from the retrial of this controversy upon remand by this court. We
agree with the trial court’s decision that allowed Fautua to participate in the
retrial. The Legislature has specifically exempted proceedings before the land
and titles division of the High Court from the rules of civil procedure and
specifically authorized that division to act in each case in such a manner as
it considers to be most consistent with natural justice and convenience.
A.S.C.A. 8 3.0242.
[2-3] In a
matai title case all candidates must first comply with the statutory
requirements outlined under A.S.C.A. §§ 1.0401-.0414, which include the filing
of a petition signed by at least 25 blood members of the title claimed. In the
absence of any clear legislative intent to preclude otherwise qualified
candidates from participating in the retrial of a matai title controversy, we
find no compelling reason to impose a rule precluding such participation. Even were we to consider applying this rule
of civil procedure to a land and titles case, the instant controversy does not
present a case in which any part of the trial court’s decision remained valid
and binding upon those parties not joining in the appeal.[3ASR3d8] This court’s opinion in Saunoa v.
Lutali, 26 A.S.R.2d 1 (App. Div. 1994) effectively voided the entire
opinion and order of the trial court and remanded the controversy to that court
for a new trial.
For the above reasons we find Saunoa’s reliance upon Security
Pacific National Bank v. Conquest, 4 A.S.R. 2d 59, 64 (Trial Div. 1987)
to be misplaced. We find no error in the
trial court’s decision to allow Fautua to participate in the retrial of this
controversy.
B. Motion to Disqualify Trial
Judges at Retrial
Saunoa challenges the impartiality of the associate
judges who sat at both the first trial and at the retrial and urges this court
to remand this controversy for yet another trial before a brand new panel of
associate judges. Contrary to Saunoa’s contention that “partiality is one of
the very reasons why the appellate court remanded this case for a new trial”,
this court’s decision in Saunoa centered on the appearance of
impartiality in a situation where a governor who had appointed the associate
judges appeared in court before such judges in his individual capacity.
We further noted that no specific accusations of
impartial conduct were made against those judges and that their conduct was
honorable. The problem, however, was that those judges had been appointed by
Governor Lutali and the Governor was ultimately selected as the new titleholder
at the conclusion of the first trial. The appearance of impartiality in such
circumstances was simply too great to be allowed to stand. Prior to the second trial, however, Governor
Lutali withdrew his petition which effectively resolved the appearance of
impartiality which his presence had engendered.
[4] Saunoa has provided no legal basis for his assertion that
a judge who presided at the trial of a case which was reversed and remanded on
appeal is automatically disqualified to retry the case. Indeed, absent special
circumstances, the general rule is to the contrary. 46 Am. Jur. 2d §
178, Judges—Retrial of case reversed by higher court (2d ed. 1994)
The trial court, in rejecting Saunoa’s motion for a
new trial, stated that it had denied Saunoa’s motion to reconstitute a new
panel of associate judges to retry the case, inter alia, due to the Rule
of Necessity and because appellant failed to timely object to the judges on the
panel. Notwithstanding the court’s order of September 9, 1994 that all parties
submit within 60 days any written objections to any judges that might be
assigned to rehear this controversy, the record indicates that Governor Lutali
did not withdraw his candidacy until just prior to the second trial which
occurred in January 1997. Lutali’s withdrawal from the controversy effectively
removed the disqualification of any associate judges who had been appointed by
him while governor, as required by [3ASR3d9]
this court’s opinion in Saunoa.
[5-6] We need not decide whether Saunoa had effectively
waived his right to address this late development in this case, because we
agree with the trial court’s denial of his motion to reconstitute the panel of
associate judges with judges that had not heard the first trial. As discussed
above, this Territory has no statutory or constitutional prohibitions against
the same judges retrying cases and controversies upon remand from the appellate
division. Nor does the statutory scheme enacted by the Legislature indicate any
other legal option for resolving a matai title controversy.
[7-10] Article III of the Revised Constitution of American
Samoa (R.C.A.S.) vests the judicial power in the High Court, District Court and
other courts established by law as an independent branch of government, with
the Chief Justice and Associate Justices appointed by the U.S. Secretary of the
Interior. The Legislature implemented this constitutional language under
A.S.C.A. §§ 83.0101-.0103 providing for the administration of the independent
judicial branch by the Chief Justice, and specifying generally the jurisdiction
of the courts. Under A.S.C.A. §
3.0208(b), the land and titles division has exclusive jurisdiction over all
matters relating to matai titles and land. In matai cases, the controversy is
heard by one justice and four associate judges. A.S.C.A. § 3.0240. Appeals from the land and titles division,
unlike other appeals, afford the associate judges equal voice in such appellate
decisions. A.S.C.A. § 3.0221. Associate judges are appointed by the Governor
upon recommendation of the Chief Justice and confirmed by the Senate, with the
panel of available, sitting judges to be no less than five members. A.S.C.A. §
3.1004. Upon reaching retirement age of 65, associate judges normally are added
to the panel of temporary associate judges until mandatory separation from the
court at age 70. A.S.C.A. § 3.1006.
[11-12] In the event of inadequate
numbers of associate judges to sit at trial or on appeal, the Chief Justice may
appoint temporary associate judges from a panel of persons recommended by the
Chief Justice, found qualified by the Governor, and confirmed by the Senate.
A.S.C.A. § 3.1006. No judge or justice may sit on the appellate division and
determine an appeal from a decision in which that judge or justice made or
joined in at the trial court. A.S.C.A. § 3.1007.
As stated by the presiding justice at the second
hearing in January 1997, the only associate judges available to rehear this
controversy were assigned to do so. No
additional judges remained from the panel of temporary judges and the other
active associate judges were either off-island or self-recused. [3ASR3d10]
[13-14] Saunoa contends that another, entirely new panel
could have been appointed and suggests that the U.S. Secretary of the Interior
could have fulfilled that duty. We find no legal basis to support this
assertion. The Legislature has carefully constructed a statutory scheme for
associate judges to decide matai title controversies, and for the exclusive
means of such judges’ recommendation, appointment, and confirmation. The
Revised Constitution of American Samoa authorizes the Secretary of the Interior
to appoint the Chief Justice and such Associate Justices as necessary. R.C.A.S.
Art. III Sec. 3. Congress has prohibited any amendments to or modifications of
the R.C.A.S. except by Act of Congress.
48 U.S.C. 1662(a) (1983).
Although the legal ramifications of 48 U.S.C. 1662(a) have not been
fully developed in caselaw, it appears clear that the Secretary of the
Interior’s present judicial appointment powers extend only to the Chief Justice
and Associate Justice(s). To judicially
extend that power of appointment to include associate judges, whose role in
matai title controversies is to hear and decide matters pertaining to the
Samoan culture, presumably enacted under the policy-protective legislation
section of the R.C.A.S. (Article I, Section 3), would appear neither prudent
nor legally possible without the prior consent of Congress. We therefore concur
with the trial court’s decision to deny Saunoa’s motion to appoint a new panel
of judges to retry this case.
C. Recusal of Associate Judges under A.S.C.A.
§ 3.1007
Saunoa also argues that two of the associate judges
assigned to the retrial in this matter should have recused themselves, because
either through marriage or family history, such judges were distantly related
to Suafa`i. We have reviewed the affidavits filed to verify these allegations
and examined the language of A.S.C.A. § 3.1007, which states in pertinent part
that “[n]o judge shall sit in any case in which he, or family of which he is a
member, has a substantial interest or in which he . . . is a member of the same
family with any party to the case.”
[15] Even assuming the hearsay statements contained in the
submitted affidavits are accurate, we do not find that these alleged family
relationships would trigger either judge’s recusal under the statute. The
alleged family ties are simply too tenuous to override either judge’s duty “not
to recuse himself . . . unless there is a need to do so.” Pens
v. A.S.P.A., 10 A.S.R.2d 23 (Trial Div. 1989); Uiagalele
v. Ulufale, 17 A.S.R. 2d 158 (App. Div. 1990). Although we stressed the importance of
avoiding the appearance of partiality in our opinion in Saunoa, we noted
at page 5 of that opinion that the test for this standard is “whether a
disinterested observer would entertain significant doubt that justice would be
done” (emphasis added). [3ASR3d11]
We find no significant doubt as to the impartiality of
the individual judges hearing this matter being affected by family or social
ties. Saunoa’s Position far exceeds the judicial standards embraced in the
statutes and Canons of Judicial Ethics. In one instance, Saunoa alleges that
one judge, though his half-sister, is related to an extended family to which
Suafa`i belongs. In the second instance, Saunoa alleges that another judge’s
wife may be a first cousin by marriage to Suafa`i’s step-father. Absent additional
circumstances tending to indicate that either judge’s family members had a
personal or financial interest in the outcome of this case, these alleged
relationships are too distant to support even an inference of the appearance of
impartiality.
[16] We also
reject Saunoa’s argument that because the trial court invoked the Rule of
Necessity in denying the motion for new trial, that the trial court was somehow
acknowledging that some degree of partiality was present in the panel of
associate judges. As discussed in
The trial court did not invoke this common law rule to
justify the associate judges’ hearing the retrial of this controversy even
though they were disqualified. Rather, the trial court held that even if there
was an appearance of partiality, there were no other available associate judges
to hear the case. Order Denying Motion For Reconsideration at 3 (
Because we have determined that the associate judges
who participated in the retrial were not, ipso facto, disqualified from
sitting because of their participation in the first trial, and that the
individual judges challenged by Saunoa were not otherwise subject to recusal
because of allegations of tenuous or remote family ties to the litigants, we
need not reach the issue of whether the Rule of Necessity applies to the facts
of this case.
D.
Trial Court’s Findings of Fact
[17] Our review of this issue is governed by statute,
which prohibits this court from setting aside findings of fact by the land and
titles division unless such findings are “clearly erroneous.” A.S.C.A. §
43.0801(b). This court may determine that the trial court’s findings are
clearly erroneous when, “although there is evidence to support it, the
reviewing [3ASR3d12] court on the
entire evidence is left with the definite and firm conviction that a mistake
has been committed.”
[18-19] In matai title controversies, the trial court’s
decision as to the best candidate is determined by its findings relative to the
four categories of statutory criteria prescribed by statute. A.S.C.A. § 1.0409.
Not only did the Legislature prescribe what the trial court was to determine,
but also the priority of these considerations. Further, by prohibiting any
justice of the High Court from participating in the ultimate decision of the
four-member associate judge panel unless to break a tie, the Legislature has
strongly indicated that in the absence of an uncontested family consensus as to
who should succeed to a vacant matai title, the next best selectors of the
successor are associate judges, who historically have been ranking titleholders
within their own extended families. To insure that culturally experienced
jurists also fairly participate at the appellate level, the Legislature has
further provided that associate judges sitting in the appellate division on
appeals from the land and titles division have equal decision-making power with
the justices assigned to that case. A.S.C.A. § 3.0221.
[20] The statutory dispute resolution scheme adopted by
the Legislature for deciding matai title controversies is unique, both in the
composition of the judicial panel and the criteria of title succession which
such a panel must assess and determine. The carefully developed statutory plan
indicates clear legislative intent to insulate such trials from the strict
application of arguably inapposite judicial rules, practices, and procedures
applicable to nearly all other civil controversies within the jurisdiction of
the High Court.
[21] Candidates are guaranteed by statute a panel of
judges neutral in act and appearance and an assessment and determination of the
statutorily established and prioritized criteria of consideration for selecting
the successor to the vacant title. It is worth stressing, however, that this
selection process is a statutory alternative to the preferred historical
selection process in which the extended family meets and, by consensus, selects
a successor based upon that family’s particular traditions and practices.
[22] In
order to preserve the broad discretion afforded by statute to the associate
judges to determine the best qualified successor to a matai title, this court
must resist the imposition of broad invariable rules of preference for certain
individual attributes of the candidates. For example, regardless of some matai
title controversies having been resolved in favor of the candidate possessing
the higher degree of formal education or the greatest disposable income or
personal wealth, such cases cannot be interpreted, as Saunoa urges, to
invariably require the [3ASR3d13] land
and titles division to hold that such attributes always outweigh the
accomplishments of other candidates. To establish such broad rules of law would
at once frustrate the broad grant of discretion given by the Legislature to the
trial court in matai title cases and unduly encroach upon the specific,
constitutional powers of the Legislature to preserve and protect the Samoan way
of life.
By way of example, Saunoa argues that Suafa`i’s use of
an unregistered matai title must necessarily be fatal to any positive
evaluation on the criterion of his “forcefulness, character, personality and
knowledge of Samoan customs” under A.S.C.A. § 1.0409(a)(3). Saunoa claims that Suafa`i used an
unregistered matai title in violation of A.S.C.A. § 1.0414 and that this
“crime” allowed Suafa`i to acquire his knowledge of Samoan customs.
[23]
A.S.C.A. § 1.0414, in pertinent part, reads as follows:
A person who uses any matai title or permits the use
of any matai title in his behalf before the same has been registered in
accordance with the provisions of this chapter . . . shall be sentenced as for
a class B misdemeanor.
This statute prohibits at least three types of conduct
with respect to matai titles. It prohibits the actual or permitted use by
individuals of matai titles that have not been duly registered and recorded in
the matai title registry prior to
The record contains sparse mention of Suafa`i’s
alleged criminal activity in the use of an unregistered matai title. See R.T.
p. 182, lines 14-20. Suafa`i did not contest in his brief or during oral
arguments that the talking chief title “Moasili” was conferred upon him by the
previous Faumuina titleholder or that the title is not recorded in the matai
title registry. Suafa`i contends, however, that it is a common practice for
senior matais, and especially paramount chiefs, to create and confer new matai
titles upon members of their families for the limited purpose of serving the
higher-ranking matai of the family. Because of this practice, Suafa`i argues that
the statutory prohibitions against the illegal use of a matai title should be
narrowly construed to apply only to the actual or permitted use of a matai
title which is listed in the matai title registry by a person when the title is
vacant or legally held by another. [3ASR3d14]
As discussed above, the Legislature clearly prohibited
the actual or permitted use of unregistered matai titles when enacting the
broad language of A.S.C.A. § 1.0414, to halt the proliferation of new matai
titles because that practice would “tend to deminish (sic) the dignity and
degrade the matai titles now existing.” Mailo v.
Fuimaono, 4 A.S.R. 757, 761-62 (Trial Div. 1967). Current practices to
the contrary notwithstanding, the fact that a paramount chief breaks the law by
bestowing an unregistered matai title within his family does not legally excuse
the person using that prohibited title from the statute’s application.
We are not presented with any particulars with respect
to the creation or use of the unregistered matai title “Moasili.” Both parties
concede, however, that Suafa`i was never charged or convicted for using this
title under A.S.C.A. § 1.0414. Indeed, Suafa`i, when asked if he knew that for
20 years he had violated the law responded, “Nobody has told me that.” R.T., p 182, lines 18-20.
Saunoa contends that it was clearly erroneous for the
trial court to rank Suafa`i ahead of the other candidates in terms of character
and knowledge of Samoan customs because of Suafa`i’s alleged illegal use of the
unregistered matai title “Moasili.”
Saunoa cites several cases to buttress his assertion that title
candidates who have used unregistered matai titles have invariably lost in
matai title controversies. We have
carefully reviewed those cases and find that although the losing candidates in
each cited case had indeed used an unregistered or vacant title, the court
found that the losing candidates had also been convicted of committing
additional and separate crimes ranging from larceny (Tooto`o v.
Faea, 2 A.S.R. 94 (Trial Div. 1940), Fa`agau
v. Tulei, 4 A.S.R. 490 (Trial Div. 1964)) to adultery (Tuinei v.
Ieliko, 2 A.S.R. 117 (Trial Div. 1964)), and evidenced other personal
shortcomings indicating character flaws.
In the instant case, Saunoa had ample opportunity at trial to
demonstrate his present contention that Suafa`i’s prohibited conduct indicated
a character flaw sufficiently significant to find him unfit to assume the
contested matai title. Upon reviewing the
evidence as a whole on this matter, however, we do not find the trial court’s
findings of fact on the issue of Suafa`i’s character or knowledge of Samoan
custom to be clearly erroneous.
[24] Although we agree with Saunoa that a prior criminal
conviction of a crime, especially an infamous crime or one involving moral
turpitude, would likely prove fatal to any candidate’s favorable assessment as
to character, prior statutes which automatically disqualified certain convicted
felons from registering matai titles have been repealed and not reenacted. See Akemo v. Mulu,
2 A.S.R. 89 (Trial Div. 1940). We must construe this statutory history as
reflecting the Legislature’s intent to allow the panel of associate judges in
matai title cases broad discretion to [3ASR3d15]
weigh all attributes—both positive and negative—in evaluating each
candidate’s character. We do not find
that the trial court exceeded the limits of that discretion in its evaluation
of Suafa`i’s character in this matter.
We have also reviewed Saunoa’s allegations of error in
the trial court’s evaluation of clan support. The trial court found that
Suafa`i’s residence in the village, coupled with active tautua (service)
in meeting the family’s commitments, allowed him to prevail within this
single-clan family. Despite Saunoa’s
spirited arguments to the contrary, we do not find these findings of fact to be
clearly erroneous when reviewing the record as a whole.
Conclusion
Based upon the foregoing, we find no error of law or
fact in the trial court’s decision requiring a new trial. The decision of the
trial court is therefore affirmed.
It is so Ordered.
**********
* The
Honorable John L. Ward II, District Court Judge, serving by designation of the
Secretary of the Interior.