Scanlan v. Reed,

FOUULUVALU M. EPATI SCANLAN, Appellant

v.

LIKI REED, CHIEF ELECTION OFFICER, and
AMERICAN SAMOA GOVERNMENT, Appellees

High Court of American Samoa
Appellate Division

AP No. 32-88

November 23, 1988

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Under statute providing that a person "does not gain residency in a district without the present intention of establishing his permanent dwelling place within that district," voter who had moved from one district to another eight years earlier upon inheriting a house, but (1) whose family, church, and business were in the district of his former residence; (2) who had continued to serve matai title and participate actively in aumaga within district of former residence; (3) who had always voted in the former district and never in the district wherein his house was located; and (4) who in the two most recent elections had been a successful candidate for the legislature from the district of his former residence, had not [9ASR2d55] established residency in the new district by mere physical presence. A.S.C.A. § 6.0212.

A voter who is physically present in a new place of residence, but fails to gain legal residence in that district because he lacks the intention of establishing his permanent dwelling place there, retains his previous legal residence and may vote there. A.S.C.A. § 6.0212.

Before REES, Associate Justice, TOGAFAU, Acting Associate Justice, LUALEMAGA, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Appellant, Charles Ala'ilima
For Appellees, Caroline B. Crenna, Assistant Attorney General

REES, J. :

This is an appeal from the decision of the Board of Registration that appellee Liki Reed is a qualified elector in House of Representatives District #8, comprising the village of Fagatogo. On November 8, 1988, Reed was re-elected Representative for District 8. Appellant was the only losing candidate. Although the appeal seeks only a declaration that Reed was ineligible to vote in the district and his removal from the list of voters, we assume the intended effect of the appeal is to secure the certification of appellant as the winner of the election.

The facts are undisputed. Reed grew up in Fagatogo and lived there until he went away to college in the United States. Upon his return he lived in Fagatogo for two years and then moved into a house in Gataivai, which is outside District 8. Reed had acquired the house, or a share in it, through inheritance in 1962. His family, his church, and his business are in Fagatogo. He serves the Lutu title, which is appurtenant to Fagatogo although it also has lands in Utulei. He is an officer and active member of the Fagatogo Aumaga. He has voted in Fagatogo since 1974 and has never voted in Gataivai. He was elected Representative from District 8 in 1986 and re- elected this year. [9ASR2d56]

We hold that the Board of Registration was correct in its determination that Reed is a resident of Fagatogo and therefore a qualified elector in District 8. A.S.C.A. § 6.0212(b) provides that "[a] person does not gain residency in any district into which he comes without the present intention of establishing his permanent dwelling place within that district." The point is underscored by A.S.C.A. § 6.0212(d): "The mere intention to acquire a new residence without physical presence at that place does not establish residency, neither does mere physical presence without the concurrent present intention to establish that place as his residence."

Eight years is a long time to live in a place without intending to make it one's permanent residence. The existence of such an intention remains, however, a question of fact to be decided in light of all the circumstances; the statute makes it clear that physical presence alone is not dispositive of intent. In Dole v. Attorney General, AP No. 23-78, this Court held that a man who had resided in Futiga for ten years was still a resident of Fagatogo, since he "resides in Futiga only for convenience, having never intended to give up his residence in Fagatogo." Id., slip opinion at 3, decided December 5, 1978. In , as counsel for appellant points out, the Court noted that the voter owned a house in Fagatogo although he physically resided in Futiga. In this case the objective indicia of intent ---participation in church and aumaga in Fagatogo, voting in Fagatogo, serving the Lutu title in Fagatogo, (1) and running for office in Fagatogo ---are even stronger than those in . Since Reed never intended to make Gataivai his permanent residence, he retains his original voting residence in Fagatogo.

The decision of the Board of Registration is affirmed.

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1. A.S.C.A. § 6.0212(f) provides in pertinent part that "[t]he situs of a person's primary matai obligations are a factor in determining district residency."